Argued and Submitted November 27, 2013
Lane County Circuit Court. 211122942. R. Curtis Conover, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Hadlock, Judge, and Wollheim, Senior Judge.
[268 Or.App. 588] DUNCAN, P. J.
In this criminal case, defendant appeals the trial court's judgment convicting him of one count of criminal mischief in the third degree as defined by ORS 164.345(1). The charge was based on an allegation that, with the intent to cause substantial inconvenience to another person, defendant knowingly tampered with the person's property and, when he did, he had neither the right to do so nor reasonable ground for believing that he had such a right. On appeal, defendant contends that the trial court erroneously instructed the jury on the meaning of " tamper." The trial court instructed the jury that " [t]amper requires conduct that alters, rearranges, or changes property." Defendant argues, as he did in the trial court, that the instruction is incomplete. According to defendant, in order for a person to tamper with another's property, the person must alter, rearrange, or change the property in a way that adversely affects the property or its use. As explained below, based on the text, context, and legislative history of ORS 164.345(1), we agree with defendant and, therefore, we conclude that the trial court erred in instructing the jury. We further conclude that the error was not harmless. Accordingly, we reverse and remand.
To frame the legal issue before us, we begin with a brief statement of the facts and the procedural history of the case. The state charged defendant with third-degree criminal mischief for violating ORS 164.345(1), which provides:
" A person commits the crime of criminal mischief in the third degree if, 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."
Under ORS 164.345(1), a person can commit third-degree criminal mischief by tampering or interfering with another person's property. Here, the state charged defendant with knowingly tampering with another person's property. At trial, the state's evidence was that, upon discovering an SUV in his parking spot, defendant chained the SUV to his truck and towed the SUV about 20 feet, causing damage [268 Or.App. 589] to the SUV's bumper. Defendant admitted towing the SUV, but contended that he did not intend to damage it.
When discussing jury instructions at trial, the parties disputed the meaning of " tamper." Relying on State v. Schoen, 348 Or 207, 228 P.3d 1207 (2010), the state asked the trial court to instruct the jury that " tampering is defined as conduct that alters, rearranges, or changes property." Also relying on Schoen, defendant objected, arguing that the state's instruction was incomplete because " some kind of adverse effect on the property or its use must be shown." As mentioned, the trial court instructed the jury by stating, " [t]amper requires conduct that alters, rearranges, or changes property." The court's instruction is a quote from Schoen, in which, as discussed below, the Supreme Court held that " tamper" requires an effect on property or its use, but did not have occasion to address, and did not address, whether the effect must be adverse. Defendant took exception to the instruction on the ground that it did not include any language to indicate that the required alteration, rearrangement, or change must have an adverse effect on the property or its use.
A jury found defendant guilty, and this appeal followed. On appeal, the parties renew their arguments regarding the meaning of " tamper" and ...