Submitted June 19, 2013
Washington County Circuit Court. C101720CR. D. Charles Bailey, Jr., Judge.
Peter Gartlan, Chief Defender, and Jonah Morningstar, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Tookey, Judge, and Schuman, Senior Judge.
[261 Or.App. 86] TOOKEY, J.
Defendant was charged with criminal mischief in the second degree under ORS 164.354(1)(b). The indictment alleged that
defendant, " having no right to do so nor reasonable ground to believe that [he] had such right, did unlawfully and intentionally damage property of [another person]." The charge was tried to the court, which found defendant guilty of criminal mischief in the third degree, as a lesser-included offense. A person commits third-degree criminal mischief if the person " with intent to cause substantial inconvenience to the owner or to another person, and having no right to do so nor reasonable ground to believe that the person has such right, the person tampers or interferes with property of another." ORS 164.345(1). Defendant appeals, arguing that third-degree criminal mischief is not a lesser-included offense of second-degree criminal mischief under ORS 164.354(1)(b), as charged in this case. We agree and therefore reverse.
The facts relevant to our consideration of this case are largely procedural. Defendant was charged with criminal mischief in the second degree, ORS 164.354(1)(b), and resisting arrest, ORS 162.315, after he became intoxicated and damaged a window while trying to enter another person's house. The criminal mischief charge was tried to the court and the resisting arrest charge was tried to a jury. The trial court found defendant not guilty of second-degree criminal mischief, but found him guilty of third-degree criminal mischief, ORS 164.345, a crime with which defendant had not been expressly charged. The jury then found defendant not guilty of resisting arrest. This exchange followed:
" DEFENSE: Your Honor, at this time we have a motion for Arrest of Judgment on a Criminal Mischief Three.
[261 Or.App. 87] " * * * *
" DEFENSE: An arrest of judgment on ...