State v. Horton

“Whether a plain error occurred does not turn on the law at the time of trial, but rather depends on the law at the time of the appellate decision.” State v. McKinney/Shiffer, 369 Or 325, 333 (2022). “[N]ot instructing the jury on a mental-state requirement for the value element of criminal mischief is plain error.” See State v. Morales, 326 Or App 177, 181 (2023); State v. Waterman, 319 Or App 695, 702 (2022).

Defendant was convicted of multiple offenses, two of which being criminal mischief, and received a 36-month post-prison supervision (PPS) sentence. The jury was not informed of the mental-state requirement for value of the damage element at trial. Defendant appealed, assigning error to the PPS calculation and lack of mental-state requirement in jury instructions. Defendant argued that recklessness is the requisite culpable mental state for criminal mischief and the jury should have been instructed as such. "Whether a plain error occurred does not turn on the law at the time of trial, but rather depends on the law at the time of the appellate decision.” State v. McKinney/Shiffer, 369 Or 325, 333 (2022). “[N]ot instructing the jury on a mental-state requirement for the value element of criminal mischief is plain error.” See State v. Morales, 326 Or App 177, 181 (2023); State v. Waterman, 319 Or App 695, 702 (2022). The Court concluded that it was plain error to not issue a jury instruction regarding the mental-state requirement. While the error was not legally “harmless,” it was not grave enough to be reversed because the evidence against Defendant showed a low likelihood of a different verdict absent the error. However, the Court agreed that the PPS sentence was calculated incorrectly. Remanded for resentencing; otherwise affirmed.