State v. Horton, 535 P.3d 338

Horton faced three separate criminal cases tried to three juries and was sentenced in a single proceeding.
Convicted of first-degree criminal mischief (damage to friend’s car, ≈$2,100) and second-degree criminal mischief (damage to concrete barrier, ≈$4,800), among other offenses.
Neither jury was instructed on a culpable-mental-state requirement for the value (amount-of-damage) element of criminal mischief; Horton did not request such instructions at trial.
On appeal Horton argued the absence of a mental-state instruction was error (and preservation was excused); she also challenged imposition of 36 months of post-prison supervision (PPS) for failure-to-render-aid (Count 2).
The court held preservation was not excused, reviewed the instruction issue for plain error (found plain error under current law but declined to exercise discretion to correct it), and accepted the state’s concession that the PPS term was plainly erroneous—remanding for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to instruct jury on culpable mental state for the value element of criminal mischief	Preservation required; at trial controlling precedent did not require such an instruction, so no error	Preservation excused (relying on then-controlling Morales); lack of instruction was plain error and required reversal or new trial	Preservation not excused; under current law omission is plain error (some culpable mental state required) but court declined to exercise discretion to correct; convictions for 1st- and 2nd-degree mischief affirmed
Imposition of 36 months PPS for failure-to-render-aid (Count 2)	PPS term was miscalculated; court must follow OAR severity-level PPS caps; state conceded error	Horton argued PPS exceeded statutory/regulatory maximum for Level 6 offense	State conceded plain error; court agreed and remanded for resentencing (PPS recalculation)

State v. Morales, 326 Or App 177 (holding a culpable mental state is required for the amount-of-damage element of first-degree criminal mischief)
State v. Shedrick, 370 Or 255 (explaining Owen and the general rule that a culpable mental state is ordinarily required for material elements)
State v. Owen, 369 Or 288 (adopting the rule that culpable mental states are generally required for material elements)
State v. Waterman, 319 Or App 695 (holding it was plain error not to instruct on culpable mental state for first-degree criminal mischief value element)
State v. McKinney/Shiffer, 369 Or 325 (confirming plain-error review looks to law at time of appellate decision)
State v. Vanornum, 354 Or 614 (defining when an error qualifies as plain)
Ailes v. Portland Meadows, 312 Or 376 (discussing discretion to correct unpreserved error)