State v. Schoen

211 P.3d 948, 229 Or. App. 427, 2009 Ore. App. LEXIS 960

• Court: Court of Appeals of Oregon
• Decided: July 1, 2009
• Docket: 04494, A129669
• Status: Published

Opinions

EDMONDS, J.,

concurring.

Defendant appeals a judgment of conviction for third-degree criminal mischief, ORS 164.345(1), and argues that the trial court erred when it denied his motion for a judgment of acquittal on the charge. We affirm.

As a result of a domestic dispute, defendant was arrested and placed in the backseat of a patrol car. While inside the car, defendant kicked the car door and window but did not cause any damage. Defendant moved for a judgment of acquittal, asserting that the evidence was insufficient to demonstrate that he had violated the statute. The trial court denied defendant’s motion, and defendant appeals.

ORS 164.345 provides, in part:

“(1) 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.”

Defendant agrees that the statute does not require a showing of actual damage to the victim’s property; however, in his view, “the property must be affected somehow by the defendant’s conduct before he is deemed to have tampered or interfered with it.” The state responds that the issue as framed by defendant was not adequately preserved in the trial court and that review for plain error is not proper on the record before us. ORAP 5.45. Alternatively, the state argues that the evidence is sufficient to show that defendant tampered or interfered with the patrol car by kicking the door and the window of the car and trying to force it to open.

In order to preserve an issue for appeal, a party must provide the trial court with a specific explanation of the objection with enough clarity to ensure that the court can identify and consider any error that it has made and correct it immediately, if correction is warranted. State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000). Paramount to determining whether an issue has been preserved for purposes of appeal in a lower tribunal is the need to properly frame the issue. The issue in this case, when properly framed, is whether the legislature intended ORS 164.345 to apply to the circumstances where an arrested person is confined inside the backseat of a patrol car and forcefully kicks the door and window that function as part of the boundaries of his confinement.

Defendant argued to the trial court:

“We would ask for a motion for judgment of acquittal on the criminal mischief, for damaging a—or kicking a car door and a window. There’s been no showing there’s any damage to the vehicle of any kind. So we don’t believe there’s enough there.”

In substance, defendant told the trial court that the crime of third-degree criminal mischief does not occur under such circumstances without the existence of additional proof that the defendant caused “damage of any kind” to the car door and window.

In the abstract, a car door and window could be “damaged” in many different ways by a person’s forceful kicks. For example, forcefully kicking a door and window could result in the window breaking, the window not retracting, the door lock not operating, the door handle not functioning, or the door being dented or scratched. When defendant argued to the trial court that “there’s been no showing of any damage to the vehicle of any kind[,T he was essentially asking the trial court to address the legal significance of the failure of the state to offer any evidence of the causal effect, if any, of the force that he directed at the door and window of the police car. (Emphasis added.) The trial court rejected defendant’s motion without explanation, other than to state, “I think there’s sufficient evidence for the jury to hear all five charges.” Presumably, when the trial court ruled, it had the elements of ORS 164.345 in mind, including the requirement that the state show that defendant tampered or interfered with the patrol car with the intent to cause substantial inconvenience to the owner or another person.

On appeal, defendant argues, in part:

“[T]he property must be affected somehow by the defendant’s conduct before [the defendant] is deemed to have tampered or interfered with it. That is, the defendant’s conduct must prevent the utilization of the property.”

Later in defendant’s brief, he explains more fully:

“At that point, the sole purpose or ‘value’ of the backseat of that patrol car was to detain defendant. Although defendant kicked the windows and doors of the patrol car while he was in the backseat, he neither damaged the car nor did he prevent the utilization of the backseat—i.e., his detention.”

When the arguments made by defendant to the trial court are compared to the arguments made by him on appeal, we are persuaded that the issue framed in the trial court is the same issue that is before us. As is evident from the above examples, one form of damage to a car door and window is the impairment of its function or utilization, but defendant’s argument to the trial court was not limited to that contention but rather to “damage of any kind.”¹ We perceive no qualitative difference between defendant’s “damage of any kind” argument made to the trial court and his argument on appeal that the car door and window “must be affected somehow” for purposes of alerting the trial court to the issue.

Judge Haselton’s concurrence would hold to the contrary. We do not disagree with the general principles that his concurrence relies on—rather, we disagree with the conclusion that he reaches based on his application of those principles to the circumstances of this case. Defendant has narrowed his argument on appeal to include within his “damage of any kind” argument an argument that his actions did not result in any functional damage to the patrol car (i.e., the patrol car’s use as a means to detain a person). Accordingly, in our view, the issue before the trial court is the same as the issue before us. Because the policies underlying the rule of preservation are adequately served in this case, we turn to the issue of whether the evidence was sufficient for a reasonable trier of fact to infer that defendant tampered or interfered with the patrol car with intent to cause substantial inconvenience to the owner or to another person.

To assess the sufficiency of the evidence, we must initially determine what conduct the legislature intended would violate the statute. To that end, we begin by examining the text and the context of the statute. Second, we consider the legislative history underlying the statute where the history appears useful for discerning the legislature’s intent, even if there is no ambiguity in the statute’s text. The third step in the analysis for interpreting the legislature’s intention, if its intent remains unclear after examining the text, context, and the legislative history underlying the statute, is to resort to general maxims of statutory construction. State v. Gaines, 346 Or 160, 206 P3d 1042 (2009).

To establish the elements of third-degree criminal mischief, the state must prove that a person (1) tampered or interfered with the property of another, (2) acted with the intent to cause substantial inconvenience to the owner or to another person, and (3) had neither a right to do so nor a reasonable ground to believe that he or she had such right. Whether the legislature intended ORS 164.345 to govern the conduct of defendant in this case depends on the interpretation of the words “tampers or interferes” in the statute. We are not aware of, and the parties do not cite, any statute that defines “tampers or interferes” for purposes of ORS 164.345. Consequently, we commence the analysis by applying the principle that words of common usage in a statute should be given their plain, natural, and ordinary meaning. The word “tamper” in the context of the statute could mean “2a: to interfere so as to weaken or change for the worse * * *.” Webster’s Third New Int’l Dictionary 2336 (unabridged ed 2002). Also, Black’s Law Dictionary defines the word “tamper” as “1. To meddle so as to alter (a thing); esp., to make changes that are illegal, corrupting or perverting. 2. to interfere improperly; to meddle.” Black’s Law Dictionary 1494 (8th ed 2004). In addition, according to Webster’s, the word “interfere,” among other meanings, can mean “2: to come in collision * * Id. at 1178. Similarly, Black’s defines the word “interference” as “1. The act of meddling in another’s affairs. 2. An obstruction or hindrance.” Id. at 831.

Also, the crime of third-degree criminal mischief must be construed in the context of the crimes of second-degree criminal mischief, ORS 164.354, and first-degree criminal mischief, ORS 164.365. A comparison of the elements of third-degree criminal mischief with the elements of first- and second-degree criminal mischief further informs the intent of the legislature as to ORS 164.345. Second-degree criminal mischief incorporates by reference the elements of third-degree criminal mischief and adds the element of damage to property exceeding $100. A person commits the crime of first-degree criminal mischief when “with intent to damage property, and having no right to do so nor reasonable ground to believe that the person has such right[,]” the person damages or destroys property of another in “an amount exceeding $750” or commits another act enumerated by the statute. A comparison of the elements of third-degree criminal mischief with the elements of first- and second-degree criminal mischief suggests that the legislature did not intend that damage to the object tampered or interfered with constitute an element of third-degree criminal mischief.

The legislative history is particularly helpful in clarifying what a comparison of the elements of first-, second-, and third-degree criminal mischief suggests. ORS 164.345 has its genesis in the proposed 1971 Oregon Criminal Code. Section 145 of the proposed code became ORS 164.345, the statute at issue in this case; section 146 became ORS 164.354, second-degree criminal mischief; and section 147 became ORS 164.365, first-degree criminal mischief. The commentary to sections 145 to 147 states the following:

“Section 145 is intended to cover the type of conduct that is not thievery, but, rather, amounts to unauthorized and unlawful interference with the property of another. Damage to property is not an element of this crime.

“Section 146 defines three ways of committing the crime of criminal mischief in the second degree by damaging property of another. Note that under paragraph (b) intentionally damaging property in any amount is a violation but recklessly damaging requires the damage to exceed $100.

“Section 147 is the same basic offense as that described in [section] 146, except that it is aggravated by the amount of the damage or because explosives were used. An intent to damage property is a necessary element of the offense.

“Taken as a whole, the proposed draft combines the features of ‘criminal tampering or interference’ with those of ‘malicious mischief.’ ”

(Emphasis omitted; emphasis added.) Also, when the legislature codified sections 145 to 147, it repealed a number of statutes pertaining to malicious destruction or injury to property, including former ORS 164.900 (1971), repealed by Or Laws 1971, ch 743, § 432, which made it unlawful to maliciously destroy or injure personal property.

We think one understanding is clear from the legislative history. ORS 164.345 encompasses more than circumstances where the property of another is affected or damaged. Indeed, Donald L. Paillette, Project Director of the Criminal Law Revision Commission, explained that third-degree criminal mischief “would cover the type of conduct that * * * might not result in any damage to the utility or the property but was still interfering with the property in some manner.” Minutes, Criminal Law Revision Commission, May 17,1968, 7. As the legislative history provides, the statute is intended to cover both acts of criminal tampering or interference and acts of malicious injury to property. Paillette’s remarks from the minutes reflect the effort to provide broad protection for every unwarranted interference with the property of another when he recommended the insertion of language in the draft that a person violates the statute if the person tampers or interferes with property of another with intent to cause substantial inconvenience to the owner or to another person without any resulting damage to the property itself. Among the examples considered by the commission were the following:

“[tampering with railroad ties or switches, tampering with a bicycle so the brakes wouldn’t work, and removing cattle guards so the cattle were turned loose. Chairman Burns recalled an incident where someone removed the locks from the snow gates on Lark Mountain and some young people had subsequently entered the area, became snowbound, and one of them had died as a result.”

Minutes, Criminal Law Revision Commission, May 17,1968, 8.

Later, that understanding was reinforced by the subcommittee’s decision to enact a crime of third-degree criminal mischief aimed at circumstances where “a person tampered with property and caused inconvenience but no damage[.]” Minutes, Criminal Law Revision Commission, May 27, 1968, 5-6. Based on the legislative history and the language of the statutes themselves, it appears that defendant’s argument “that the property must be affected somehow by the defendant’s conduct before [the offender] is deemed to have tampered or interfered with it” for purposes of third-degree criminal mischief is incorrect.

The dissent disagrees. In its view, because there was no evidence in this case that kicking the rear door and window of the police cruiser affected the vehicle’s condition or usefulness, defendant’s motion for a judgment of acquittal should have been granted. 229 Or App at 443 (Sercombe, J., dissenting). In other words, the dissent views ORS 164.345 as limited to criminalizing only those circumstances where there is actual injury to the object or where its use is interfered with.

With respect, the dissent reads qualifying words into the commentary for purposes of ORS 164.345 that do not exist. The dissent would require a physical effect on the property or an interference with the utility of the property before the statute is deemed to be violated. But that position is at odds with the ordinary connotation of the statement in the commentary, “Damage to property is not an element of this crime.” That statement constitutes an absolute and plenary declaration that any form of damage to property, including the loss of use of property, is not intended by the legislature to constitute as an element of the crime, and the statement evidences the acceptance by the subcommittee of Paillette’s proposal that the statute provides for protection from all unwarranted interferences with the property of another. Moreover, the examples considered by the subcommittee demonstrate that the legislature intended to make unwarranted interferences with property with the intent to cause substantial inconvenience to the owner or other persons unlawful under ORS 164.345.

Defendant’s argument suffers from a similar infirmity. He, also, would add qualifications to the statute not provided by the language of the statute. Defendant would read into the statute a requirement that, as applied to the circumstances of this case, his actions physically affected the car door and window or, alternatively, that his actions prevented the police from using the car door or window in some respect. But that reading would require that the owner of the property suffer some ascertainable loss of use of the property or that the property itself be injured physically, an argument that is at odds with not only the absence of any requirement to prove damage but also with the examples considered by the subcommittee.²

Admittedly, the legislative history does not expressly answer the question for us, but it does provide some guidance. The commentary and legislative history informs us about the intended breadth of the scope of the statute—e.g., that ORS 164.345 is “intended to cover the types of conduct that is not thievery, but rather amounts to unauthorized and unlawful interference with the property of another.” Also, as we have observed above, one of the ordinary definitions of the word “interference” is the word “collision.” Thus, an unlawful collision or contact with another’s property is within the purview of the meaning of the word “interference” in the statute. In addition, the legislature’s emphasis on the scienter or intent element of the statute—“to cause substantial inconvenience to the owner or another person”—informs the issue. Finally, contrary to the dissent’s assertion, it is not just the intent to cause any inconvenience that violates the statute; rather, the intent must be to cause a substantial inconvenience.³ It is evident from a comparison of the different degrees of criminal mischief that the legislature intended the scienter element in the statute to function in lieu of the requirement of damage to the property of another and that, additionally, the element serves to distinguish criminal tampering or interfering with the property of another from noncriminal, incidental tampering or interference with the property of another.

In light of the above considerations, we conclude that the legislature contemplated that defendant’s actions were subject to ORS 164.345(1). A reasonable factfinder could find that defendant’s acts constituted an “interference” within the ordinary meaning of the statute because his foot repeatedly and forcefully collided with the property of another and that he intended to cause the owner or another person inconvenience when he had no right to do so nor any reasonable ground to believe he had such a right.

Affirmed.

Ortega and Rosenblum, JJ., and Carson, S. J., join in this concurrence.

1 The ordinary meaning of damage is ‘loss or injury to person or property ** * Black’s Law Dictionary 416 (8th ed 2004); see also ORS 31.710(2)(a) (“ ‘Economic damages’ means objectively verifiable monetary losses including but not limited to * * * reasonable and necessarily incurred costs due to loss of use of property* * *.”).

2 For example, the malicious changing of a railroad switch could cause a train to derail, fulfilling the damage element of criminal mischief in the first degree. On the other hand, the malicious changing of a railroad switch so that a line of boxcars enters a siding would cause no damage but only substantial inconvenience to the railroad. In the latter circumstance, there would be no damage to or impairment of the use of the railroad’s property. Rather, the switch would merely have to be returned to its proper setting. Thus, the assertion that there must be some “effect” on the property itself in addition to the intent to cause substantial inconvenience to the owner of the property is inconsistent with the examples considered by the subcommittee for purposes of criminal mischief in the third degree.

3 For example, if a person repeatedly rings the doorbell of a residence with the intent to cause inconvenience to the occupant to come to the door and answer the ring, the person interferes with the property of another (the doorbell) with the intent to cause substantial inconvenience to another person and without any right or reasonable ground to believe that the offender has such a right. Given the breadth of protection against unwarranted interferences with the property of another intended by the legislature, the conduct would also constitute a violation of ORS 164.345(1).