Submitted September 28, 2018.
Multnomah County Circuit Court 16CR45530; Gregory F. Silver,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Anna Belais, Deputy Public Defender, Offce of Public Defense
Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and E. Nani Apo, Assistant Attorney General, fled
the brief for respondent.
Armstrong, Presiding Judge, and Shorr, Judge, and Landau,
Summary: Defendant appeals from a judgment of conviction for
second-degree criminal mischief, ORS 164.354, assigning error
to the trial court's denial of a motion for judgment of
acquittal. He argues that the statute's
"damage" requirement necessarily requires proof of
economic loss and that the state presented no evidence that
the physical harm defendant caused to another's property
resulted in such loss. Held: The trial court did not
err when it denied defendant's motion. "Damage"
under ORS 164.354 requires proof only of harm to the property
of another; it does not necessarily require proof of economic
Or.App. 265] LANDAU, S. J.
164.354 provides that, to prove the offense of second-degree
criminal mischief, the state must offer evidence that a
defendant engaged in conduct that "damages" the
property of another. At issue in this case is what
"damages" means. Defendant contends that it
requires proof of economic loss to the owner of the property
and, because there was no evidence of such economic loss in
this case, the trial court should have granted a motion for a
judgment of acquittal on that offense. The state argues that,
because the statute requires proof of only harm to the
property of another- regardless of whether any economic loss
resulted-the trial court correctly denied defendant's
motion. We agree with the state and affirm.
as here, the trial court denies a defendant's motion for
judgment of acquittal, we state the facts in the light most
favorable to the state and review those facts to determine
whether a rational trier of fact could have found defendant
guilty beyond a reasonable doubt. State v.
Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994),
cert den, 514 U.S. 1005 (1995).
in the early 1970s, the New Copper Penny in Portland housed a
restaurant, nightclub, and conference facility. Palindrome
Communities acquired the New Copper Penny in April 2016 to
redevelop the property into an apartment community. The
redevelopment plan called for "gut[ting]" the
interior, selling anything of value-including scrap metal-to
a salvage company for recycling, and then demolishing the
evening when the building was vacant, boarded shut, and
surrounded by a secure, chain-link fence, Gibson, the vice
president of development for Palindrome, checked on the
property and noticed that a door had been pried open. Gibson
went inside, where he saw defendant touching flexible copper
water supply pipes. Gibson told defendant that he needed to
leave, but defendant did not respond. He then called the
police, who later escorted defendant out of the building.
When Gibson went back inside, the copper piping defendant had
been touching had been broken in half. The conduct of
breaking the pipe in half neither [298 Or.App. 266] decreased
its salvage value nor caused any other economic loss for
was tried on two offenses: second-degree criminal trespass,
ORS 164.245, and second-degree criminal mischief, ORS
164.354. At the close of the state's case, defendant
moved for a judgment of acquittal on the criminal mischief
charge. He argued that the state had failed to prove that,
when he broke the copper pipe, he caused its owner any
economic loss. According to defendant, evidence of such
economic loss is necessary to establish the statutory element
that his conduct "damage[d]" the property of
another. The trial court denied the motion. Defendant waived
a jury, and the trial court found him guilty of both charges.
appeal, defendant argues that the trial court erred in
denying his motion for a judgment of acquittal on the
criminal mischief charge. He reprises his contention that the
statute requires proof of economic harm to establish that he
"damage[d]" the property of another within the
meaning of ORS 165.354. He argues that the plain meaning of
the verb "damage" necessitates an element of
economic loss and that the plain meaning of the term is
confirmed by the context of the statute-specifically, the
fact that the alternate ways of committing the offense
specify a dollar amount of loss. The state contends that
second-degree criminal mischief does not require proof of
issue, then, is one of statutory construction- that is,
whether the reference to "damages" in the statute
defining the offense of second-degree criminal mischief
requires proof of economic loss. To address that issue, we
examine the text of the statute in context and in light of
any relevant legislative history to determine the meaning
that the legislature most likely intended. State v.
Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009).
begin with the text of the statute. ORS 164.354 (1)(b)
provides that "[a] person commits the crime of criminal
mischief in the second degree if*** [h]aving no right to do
so nor reasonable ground to believe that the person has such
right, the person intentionally damages property of
another[.]" The statute does not define the term
"damages." The verb "damages," however,
is a term of common usage, [298 Or.App. 267] and when
statutes do not define such terms, we assume that the
legislature intended them to have their plain, ordinary
meanings. State v. Dickerson, 356 Or. 822, 831, 345
P.3d 447 (2015). The usual source for determining the
ordinary meaning of statutory terms is a dictionary of common
usage. State v. Murray, 340 Or. 599, 604, 136 P.3d
10 (2006) ("Absent a special definition, we ordinarily
would resort to dictionary definitions, assuming that the
legislature meant to use a word of common usage in its
case, the dictionary defines the verb to "damage"
as "to do or cause damage to: hurt, injure,
impair." Webster's Third New Int'l
Dictionary 571 (unabridged ed 2002). The dictionary
defines the synonyms to the verb damage as follows.
"Hurt" is "to do damage or material harm to:
damage, impair." Id. at 1104.
"Injure" is "to inflict material damage or
loss on." Id. at 1164. "Impair" is
"to make worse: diminish in quantity, value, excellence,
or strength: do harm to: damage, lessen." Id.
at 1131. Additionally, in addressing the nuances of the
synonyms of "injure," the dictionary explains that
"damage implies ...