State v. Johnson

Failure to give the jury instruction on culpable mental state for the value element of criminal mischief is a reversible error by the trial court because the value element is a material element that requires mental state under ORS 161.095.

In 2020, the defendant was convicted of first-degree criminal mischief for throwing a rock at a car windshield, which caused $1,024 in damages. At trial, the jury was not instructed on any culpable mental state for the element of the crime constituting the value of the damages. After State v. Owen, 369 Or 288, 505 P3d 953 (2022), all material elements of a crime require a culpable mental state, even if the statute doesn’t explicitly require it. On appeal, the defendant asserted that the trial court erred in failing to instruct the jury about the requisite mental state for the value of damages. The state conceded that the trial court committed plain error by not properly instructing the jury, but argued that the Court of Appeals should not correct the error because the issue was unpreserved at trial. The Oregon Court of Appeals agreed with the defendant that this was plain error and that the error wasn’t harmless because informing the jury of the mental state requirement might have changed the outcome. The Court exercised its discretion in reviewing the decision of the lower court despite the defendant not preserving the issue for appeal. The trial court’s decision was reversed and remanded.