State v. Cannon

671 P.2d 761, 65 Or. App. 327, 1983 Ore. App. LEXIS 3847

• Court: Court of Appeals of Oregon
• Decided: November 9, 1983
• Docket: 7139, 7140; CA A26942
• Status: Published

Opinions

BUTTLER, P. J.

Defendants were convicted in a bench trial of criminal mischief in the first degree, ORS 164.365, a Class C felony, for shooting at and breaking insulators on power lines belonging to the Bonneville Power Administration. The only issue presented on appeal is whether the Bonneville Power Administration comes within the definition of a public utility under ORS 757.005(1) (a), which is incorporated by reference in ORS 164.365(l)(d).¹ ORS 757.005(l)(a) defines a “public utility” as:

“Any corporation, company, individual, association of individuals, or its lessees, trustees or receivers, that owns, operates, manages or controls all or a part of any plant or equipment in this state for the conveyance of telephone messages, with or without wires, for the transportation of persons or property by street railroads or other street transportation as common carriers, or for the production, transmission, delivery or furnishing of heat, light, water or power, directly or indirectly to or for the public, whether or not such plant or equipment or part thereof is wholly within any town or city.”

It is apparent that the legislature did not use the term “public utility” in its generic sense in defining criminal mischief in the first degree. Rather, it specifically incorporated the definition used in the chapter of the code defining that term for the purposes of state public utility regulation. The reason for the legislature’s having done so is not our concern. Whatever the reason, it is clear that the Bonneville Power Administration is a federal agency and not a corporation, company, or individual within the meaning of ORS 757.005(1)(a). Accordingly, we conclude that defendants could not have been convicted of criminal mischief in the first degree for destroying insulators belonging to a public utility, as defined in ORS 164.365(l)(d).

We may, nevertheless, direct a judgment for a lesser included offense if we are able to determine from the record that such a judgment should have been entered. Or Const, Art VII (Amended) § 3; State v. Washburn, 53 Or App 258, 631 P2d 827, modified 54 Or App 64, 633 P2d 1321 (1981); State v. Capwell, 52 Or App 43, 47, 627 P2d 905 (1981). Defendants are guilty of criminal mischief in the second degree, ORS 164.354, a Class A misdemeanor, if, without legal right, they intentionally damaged the property of another or recklessly damaged the property of another in an amount exceeding $100. Here, the state has proven the elements of criminal mischief in the second degree beyond a reasonable doubt. There is no need for a new trial; the appropriate remedy is to direct entry of a judgment for that offense.

Reversed and remanded for entry of new judgment and for resentencing.

1 ORS 164.365 provides, in pertinent part:

“(1) A person commits the crime of criminal mischief in the first degree who, with intent to damage property, and having no right to do so nor reasonable ground to believe that the person has such right, damages or destroys property of another:

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“(d) Which is the property of a public utility, railroad, or public transportation facility used in direct service to the public, or who wilfully uses, manipulates, arranges or rearranges the property of a public utility, railroad, or public transportation facility used in direct service to the public so as to interfere with its efficiency, or who wilfully interferes with, obstructs or adulterates in any manner the service of such public utility, railroad, or public transportation facility.

“(2) As used in paragraph (d) of subsection (1) of this section:

“(a) ‘Public utility’ has the meaning provided for that term in ORS 757.005(1) and includes any cooperative, public utility district or other municipal corporation providing an electric, gas, water, communication or other utility service.”