State v. Waterman

Under ORS 164.365(1)(a)(A), a conviction of first-degree criminal mischief requires proof, among other elements, that Defendant "[d]amage[d] ... property of another***[i]n an amount exceeding $1,000[.]"

Defendant was part of a group that attacked a car and broke the driver's side window by repeatedly hitting it with a large knife. Defendant appealed a conviction of first-degree criminal mischief.
Defendant argued the trial court erred by failing to instruct the jury that, to convict him of first-degree criminal mischief, it had to find that the damage caused by “Defendant himself” exceeded $1,000. The State admitted that the jury instruction could allow the jury to find Defendant guilty based on damage caused by the group in excess of $1,000. Under ORS 164.365(1)(a)(A), a conviction of criminal mischief in the first degree requires proof, among other elements, that Defendant “[d]amage[d] … property of another ***[i]n an amount exceeding $1,000[.]” The Court found that the trial court erred when it did not instruct the jury that “the individual defendant” caused $1,000 or more damage to the car. The Court concluded the error was not harmless because of the probability that the jury based its determination of Defendant’s guilt on damage that other people had caused rather than damage caused by Defendant alone. Conviction on criminal mischief in the first degree reversed and remanded; remanded for resentencing; otherwise affirmed.