STATE OF OREGON, Plаintiff-Respondent, v. DYLANA CONSTANCE SERENITY HORTON, Defendant-Appellant.
Josephine County Circuit Court 20CR68459, 20CR68461, 21CR03129; A177021 (Control), A177022, A177023
Court of Appeals of Oregon
July 26, 2023
327 Or App 256 | 535 P3d 338
Robert S. Bain, Judge.
Submitted May 25, remanded for resentencing, otherwise affirmed July 26, 2023
Defendant was charged in three separate cases, leading to three separate jury trials and a single sentencing proceeding. On appeal, as relevant to her convictions for first-degree criminal mischief,
Remanded for resentencing; otherwise affirmed.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and Jacquot, Judge.
AOYAGI, P. J.
Remanded for resentencing; otherwise affirmed.
AOYAGI, P. J.
Defendant was charged in three separate cases, leading to three separate jury trials and a singlе sentencing proceeding. As relevant to this consolidated appeal, in Case Number 20CR68459, defendant was convicted of first-degree criminal mischief,
As described below, regarding the jury instructions on criminal mischief, we reject defendant’s contention that preservation was excused, so we are limited to plain-error review. On plain-error review, we conclude that the instructional error is plain under current law, but we are unpersuaded to exercise our discretion to correct it in this сase. As for the sentencing issue, the state concedes, and we agree, that the court erred in its PPS calculation and that we should exercise our discretion to correct that error. Accordingly, we remand for resentencing and otherwise affirm.
I. CRIMINAL MISCHIEF CONVICTIONS
Defendant was convicted of first-degree criminal mischief based on an incident in which she stole her friend’s car and tore apart the dashboard electronics, causing over $2,100 in damage to the car. First-degree criminal mischief requires property damage in excess of $1,000.
In her first assignment of error, defendant argues that it was error not to instruct the jury in Case Number 20CR68459 on the mental-state requirement for the value element of first-degree criminal mischief. In her second assignment of error, she argues that it was error not to instruct the jury in Case Number 20CR68461 on the mental-state requirement for the value element of second-dеgree criminal mischief.
A. Preservation
We begin with preservation. Defendant did not request in either case a jury instruction on the mental-state requirement for the value element of criminal mischief. Generally, an issue not preserved in the trial court will not be considered on appeal. State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). We have discretion, however, to correct a plain error. ORAP 5.45(1). An error is plain when it is an error of law, the legal point is obvious and not reasonably in disputе, and the error is apparent on the record without our having to choose among competing inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). It is a matter of discretion whether we will correct a plain error. State v. Gornick, 340 Or 160, 166, 130 P3d 780 (2006).
Defendant contends that preservation is excused—such that we should conduct regular review, instead of plain-error review—because, at the time of her trials, there was controlling law that the state did not need to prove any culpаble mental state for the value element of criminal mischief. See State v. Morales, 309 Or App 777, 779, 482 P3d 819 (2021), vac‘d, 370 Or 471, 520 P3d 882 (2022) (holding that, for first-degree criminal mischief, no culpable mental state is required with respect to the amount of damages).2 In defendant’s view, given the controlling law, preservation was excused under State v. Merrill, 303 Or App 107, 112, 463 P3d 540 (2020), adh‘d to as modified on recons, 309 Or App 68, 481 P3d 441, rev den, 368 Or 402 (2021). In the alternative, defendant requests plain-error review.
We disagree with defendant’s reading of Merrill. Merrill does not stand for the proposition that a party is excused from preserving an issue if there is unfavorable controlling authority at the time of trial. Such an approach would be inconsistent with the many cases in which we and the Supreme Court have conducted plain-error review as to an issue on which the law changed after trial. See, e.g., State v. McKinney/Shiffer, 369 Or 325, 505 P3d 946 (2022) (conducting plain-error review of the lack of an instruction on the culpable mental state for the physical-injury element of assault, where the controlling law at the time of trial was State v. Barnes, 329 Or 327, 986 P2d 1160 (1999), which was overruled on that issue by State v. Owen, 369 Or 288, 505 P3d 953 (2022), during the pendency of the appeal); State v. Ulery, 366 Or 500, 464 P3d 1123 (2020) (conducting plain-error review of jury instruction allowing nonunanimous guilty verdicts, where the controlling law at the time of trial was Apodaca v. Oregon, 406 US 404, 92 S Ct 1628, 32 L Ed 2d 184 (1972), which was overruled by Ramos v. Louisiana, 590 US 83, 140 S Ct 1390, 206 L Ed 2d 583 (2020), during the pendency of the appeal); State v. Dippre, 320 Or App 317, 512 P3d 835 (2022) (conducting plain-error review of entry of conviction for unlawful delivery of a controlled substance, where the controlling law at the time of trial was State v. Boyd, 92 Or App 51, 756 P2d 1276, rev den, 307 Or 77 (1988), which was overruled by State v. Hubbell, 314 Or App 844, 500 P3d 728 (2021), rev allowed, 369 Or 504 (2022), during the pendency of the appeal).
Merrill simply applies traditional preservation principles to one particular situation
This situation is different. In Merrill, the relevant legal issue—whether the evidence was legally sufficient to prove the physical-injury element of assault—had been raised in the trial court. It was only the specific argument challenging Hendricks as wrong that had not been made to the trial court. Under the circumstances, the purposes of preservation were adequately served. Compare id. at 112 (describing the purposes of preservation), with id. at 113 (describing when we will consider a litigant’s request that we disavow existing precedent when it is made for the first time on appeal). By contrast, in State v. Mailman, 303 Or App 101, 103-06, 463 P3d 20 (2020), adh‘d to as modified, 309 Or App 158, 480 P3d 339, rev den, 368 Or 561 (2021)—decided the same day as Merrill—we refused to consider the defendant’s argument that Hendricks is plainly wrong and should be disavowed, where the defendant’s motion for judgment of acquittal on the physical-injury element of assault had been narrowly focused on the victim’s recantation (which had nothing to do with the Hendricks issue), and where allowing him to challenge Hendricks for the first time on appeal would have been unfair to the other party.
Here, defendant never raised any issue regarding a mental-state requirement for the value element of criminal mischief. The purposes of preservation were not met, nor is preservation excused. We therefore proceed with plain-error review.
B. Plain-Error Review
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. McKinney/Shiffer, 369 Or at 333 (internal quotation marks omitted). We agree with defendant that, under current law, not 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, 530 P3d 932 (2023) (holding, on remand for reconsideration in light of State v. Shedrick, 370 Or 255, 518 P3d 559 (2022), that a culpable mental state is required for the amount-of-damage element of first-degree criminal mischief); State v. Waterman, 319 Or App 695, 702, 511 P3d 78 (2022) (holding, [i]n light of recent cases on the law of culpable mental states, that it was plain error not to instruct the jury that a culpablе mental state was required with respect to the value of the property damaged on the first-degree criminal mischief charge); see generally Shedrick, 370 Or at 260, 269 (explaining that, under Owen, the state ordinarily must prove a culpable mental state for any material element of a criminal offense, except those relating to when and where a crime can be prosecuted, and holding that the state needed to prove a culpable mental state for the value element of first-degree theft). That is, it is an error of law, the legal point is obvious and not reasonably in dispute, and it is apparent on the record. Vanornum, 354 Or at 629.
As for the specific mental state at issue, defendant argues that recklessness is the required culpable mental state for the value element of both first- and second-degree criminal mischief. It would be improper for us to decide that issue, however, in a plain-error posture. As to both degrees of criminal mischief, it is an open question in Oregon law which mental-state requirement actually applies to the value element—cf. Shedrick, 370 Or at 270 (leaving
In other words, it was plain error not to instruct the juries that at least criminal negligence had to be proved as to the value element, because it is now obvious and beyond reasonable dispute that some culpable mentаl state applies to the value element, and criminal negligence is the lowest one. See
We now turn to whether the error was harmless and, if not, whether we should exercise our discretion to correct it. We cannot reverse a judgment based on a harmless error, so if the error was truly harmless, then we have no discretion and must affirm. See Montara Owners Assn. v. La Noue Development, LLC, 357 Or 333, 350-51, 353 P3d 563 (2015) (under
Whether an error was harmless is a binary question. [A]pplication of the harmless-error test permits only one legally correct outcome—an error is either harmless, or it is not. State v. Ramoz, 367 Or 670, 703, 483 P3d 615 (2021). A determination that there is little likelihood that an error affected the verdict is not a finding about how the [appellate] court views the weight of the evidence, but rather a legal conclusion about the likеly effect of the error on the verdict. Davis, 336 Or at 32. In the mental-state context in particular, the pertinent inquiry is not whether a jury could have found defendant to have the requisite mental state on this record; rather, it is whether there is some likelihood that the jury might not have been persuaded that he had the requisite mental state, had it considered that issue. State v. Stone, 324 Or App 688, 695, 527 P3d 800 (2023) (emphases in original).
When a jury was not instructed at all on one element of an offense—a situation that is normally rare but with which we are currently regularly faced due to the change in the law under Owen and Shedrick—an appellate court is in a difficult position in trying to assess whether the jury might have found that element to be unproved, had it been instructed on it. Although harmlessness is often a difficult analysis, it is especially difficult in that procedural posture, as we must be extremely wary of usurping the jury’s function. We should therefore be appropriately cautious about concluding that the failure
Here, as to each of defendant’s criminal-mischief convictions, we conclude that the error does not meet the legal standard for harmlessness.3 There is at least some possibility that the jury might not have been persuaded that defendant had the requisite mental state for criminal mischief. Stone, 324 Or App at 695. Moreover, if the claim of error was preserved—i.e., if defendant had requested an instruction on the mental-state elеment for criminal mischief, and the trial court had refused to give it—we would conclude that reversal was necessary. Given that reality, it would be inconsistent to conclude in the present posture that the error was legally harmless.
Having concluded that failure to instruct the jury on a required element of the offense was not legally harmless, it follows that we have discretion to correct the error, if we choose, so we procеed to our discretionary analysis. [T]he harmless-error analysis does not govern our discretionary decision about whether to address unpreserved claims of error. Instead, we must balance the gravity of any error, in the context of the nature of the case, against the other factors set forth in Ailes, Vanornum, Fults, and other plain-error cases. State v. Inman, 275 Or App 920, 936, 366 P3d 721 (2015), rev den, 359 Or 525 (2016) (internal quotation marks omitted); see Ailes v. Portland Meadows, Inc., 312 Or 376, 823 P2d 956 (1991); Vanornum, 354 Or at 614; State v. Fults, 343 Or 515, 173 P3d 822 (2007).
Even if an error does not qualify as harmless, our assessment of where it falls on the spectrum of likelihood of having affected the verdiсt can be an important consideration to the exercise of discretion. The likelihood that the error affected the outcome goes to its gravity and to the ends of justice. Inman, 275 Or App at 936 ([T]he error in this case was not particularly grave, in terms of its likelihood of affecting the verdict.); State v. Pergande, 270 Or App 280, 285-86, 348 P3d 245 (2015) (citing the ends of justice and the gravity of the error in exercising discretion to correct a plain error that was likely harmful and carried a significant risk that it affected the verdict).
Some plain errors are so grave, due to either their nature or their likelihood of having affected the outcome, that we or the Supreme Court will exercise our discretion to correct them based on that consideration alone—or at least without feeling the need to expressly discuss any other considerations. See, e.g., State v. Flores Ramos, 367 Or 292, 295, 478 P3d 515 (2020) ([T]he receipt of a nonunanimous verdict is an error sufficiently grave that appellate courts should exercise their discretion to correct the error on appeal, despite the state’s interest in avoiding the expense and difficulty associated with a retrial. (Internal quotation marks omitted.)); Pergande, 270 Or App at 285-86 (exercising discretion to correct plain error in allowing vouching testimony, where there was a significant risk that the error affected the jury’s credibility assessments in a case that came down to a credibility contest).
In many cases, however, other considerations also come into play, such as the competing interests of the parties; the nature of the case; * * * how the error came to the
Here, we ultimately are not persuaded to exercise our discretion to correct the instructional error. There is no question that the evidence in each case was legally sufficient to prove that defendant was criminаlly negligent as to the value element—but that alone, of course, is minimally relevant to whether the error was grave. What is relevant is that, viewing the records as a whole and in the context of the juries’ other findings, even though there is some likelihood that the verdict would have been different (such that the error was not legally harmless), it is an extremely low likelihood. We have not treated failure to instruct on a mentalstate element as the tyрe of plain error that is so grave as to merit the exercise of discretion in every case.4 Each case therefore must necessarily be decided on its own particular facts. Here, we are ultimately unpersuaded that the gravity of the error, the ends of justice, or the other relevant considerations warrant exercising our discretion to reverse and remand for new trials based on the failure to give a mental-stаte instruction on the value element. We therefore affirm defendant’s convictions for first- and second-degree criminal mischief.
II. PPS TERM ON COUNT 2
In her third assignment of error, defendant contends that the court plainly erred by imposing 36 months of PPS for Count 2, failure to perform the duties of a driver, in Case Number 20CR68461, because the offense has a crime seriousness rating of Level 6, which carries a maximum PPS term of 24 months.
Remanded for resentencing; otherwise affirmed.