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State v. Jones

Court of Appeals of Oregon

June 19, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
STEVEN MICHAEL JONES, aka James Michael Stevens, Defendant-Appellant.

          Submitted September 28, 2018.

          Multnomah County Circuit Court 16CR45530; Gregory F. Silver, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anna Belais, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Shorr, Judge, and Landau, Senior Judge.

         Case 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 loss.

         [298 Or.App. 265] LANDAU, S. J.

         ORS 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.

         When, 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).

         Beginning 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 building.

         On an 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 Palindrome.

         Defendant 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.

         On 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 economic harm.

         The 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).

         We 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 ordinary sense.").

         In this 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 ...


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