STATE v. VAUGHT CANTWELL (2026)

Defendant appeals a judgment of conviction for resisting arrest, ORS 162.315, and first-degree criminal mischief, ORS 164.365. In a single assignment of error, he challenges a jury instruction on the culpable mental state as to the amount-of-damage element for the criminal mischief charge. The trial court instructed the jury that it had to find that defendant was criminally negligent—rather than, as defendant requested, that he was reckless—as to the amount of damage caused. We have previously left open the question of which culpable mental state applies to the amount-of-damage element in first-degree criminal mischief. State v. Horton, 327 Or App 256, 261-62, 535 P3d 338 (2023). We conclude that criminal negligence is the applicable minimum culpable mental state and, therefore, that the trial court did not err in giving the jury instruction.

The charges stemmed from the police response to an altercation between defendant and his neighbors at a trailer park. When police attempted to arrest defendant, he pulled away, and a struggle ensued. Once they were able to handcuff defendant, police placed him in the backseat of a patrol car. While in the police car, defendant maneuvered his hands in front of his body and pulled down the car's fiberboard lining, resulting in over $1,000 in damages.

“We review a trial court's jury instructions for legal error.” State v. Prophet, 318 Or App 330, 332, 507 P3d 735, rev. den., 370 Or 472 (2022). “A trial court commits reversible error when it incorrectly instructs the jury on a material element of a claim or defense and that instructional error permits the jury to reach a legally erroneous result.” State v. Harper, 296 Or App 125, 126, 436 P3d 44 (2019) (internal quotation marks omitted).

To convict defendant of a crime, a jury must find that he acted “with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state.” ORS 161.095(2); ORS 161.105. All elements of a crime other than those relating to the statute of limitations, jurisdiction, and venue, are material and require a culpable mental state. Prophet, 318 Or App at 336. The determination of “what mental state is required, ultimately is a matter of legislative intent.” State v. Simonov, 358 Or 531, 546, 368 P3d 11 (2016). Oregon law provides for “four mental states that may apply to material elements of a crime, including, from most to least culpable, intentionally, knowingly, recklessly, and criminally negligent.” State v. Wear, 351 Or App 714, 719, ––– P3d –––– (2026) (citing ORS 161.085(6)-(10) (defining culpable mental states); ORS 161.115(3) (establishing hierarchy of culpable mental states)).

To determine which mental state to apply to a material element of a crime, we typically first determine what type of element the legislature intended it to be by reviewing the text, context, and legislative history. Prophet, 318 Or App at 336-37. By statute, each type of element—conduct, result, or circumstance—is associated with one or more mental states. Simonov, 358 Or at 539-40 (citing ORS 161.085(7)-(10)). If we can determine the type of element intended, the second step is to determine which mental state the legislature intended to attach to that element. Id. If the type of element intended is not apparent, we can instead focus on which mental state the legislature intended to apply. State v. Propp, 345 Or App 376, 392, 583 P3d 344 (2025) (recognizing the “two-step approach to be an available tool that we should use as appropriate but that is not strictly required”).

Turning to the statute at issue, the first-degree criminal mischief statute provides:

“(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:

“(a) Damages or destroys property of another:

“(A) In an amount exceeding $1,000[.]”

ORS 164.365(1)(a)(A). The statute does not explicitly provide a mental state for the “in an amount exceeding $1,000” element, so we first attempt to discern which type of element the legislature intended it to be and then search for evidence to confirm or rebut that the legislature intended the default mental state for that element to apply. Wear, 351 Or App at 721.

The first question we must answer is what type of element the legislature intended “in an amount exceeding $1,000” to be—a circumstance or result. The terms “circumstance” and “result” are not defined by statute. Typically, a “result” element “refer[s] to facts external to the defendant's bodily movement that come into existence as a consequence of it—e.g., another person's death or injury, another person's fear, and so on.” Propp, 345 Or App at 389. A circumstance, by contrast is “an accessory fact that accompanies the defendant's conduct.” Simonov, 358 Or at 542 (internal quotation omitted). Defendant contends that the amount is a result element because it describes the damage a defendant commits, and, because of the nature of the criminal mischief statutory framework, it can be necessary to establish that defendant committed a crime at all. The state responds that the amount-of-damage element is a circumstance element because it describes the value of the damage as a fact accompanying the proscribed conduct, and it does not use terms, such as “cause” or “will occur,” that are typical in the definitions of mental states that implicate a result element. ORS 161.085(7), (9), (10).

It is not clear from the statutory text whether the legislature intended the amount-of-damage element to be a circumstance or result. A defendant could cause over $1,000 in damage based on the severity—and as a consequence—of the conduct, making it more like a result. See, e.g., State v. Allen, 321 Or App 678, 685, 517 P3d 1055 (2022) (recognizing that the injury element is a result element for first-degree assault and first-degree criminal mistreatment). Conversely, a defendant could cause $1,000 in damage based on the accessory fact of the value of the damaged item, rather than as a result of the severity of the conduct. See Simonov, 358 Or at 541-42 (for purposes of the theft statute, the value of the stolen property is a circumstance because it is “an accessory fact that accompanies, not modifies, the defendant's conduct”). In most cases, the amount of damage will result from a combination of the severity of defendant's conduct and the value of the damaged item that is difficult, if not impossible, to separate. Nothing in the text, context, or legislative history identified by the parties suggests a “consensus” among the legislators as to what type of element it should be. Propp, 345 Or App at 393.

Acknowledging that the legislative intent as to the type of element is not apparent, we move on to the second step in the analysis—the legislative intent as to the mental state. As to that question, we conclude that the legislature intended for the minimum culpable mental state—criminal negligence—to apply to the amount-of-damage element of first-degree criminal mischief. The text of the statute is silent as to mental state, suggesting that the legislature intended the default mental state to apply. For both result and circumstance elements, the default mental state is criminal negligence. Propp, 345 Or App at 388-89 (“The default rule is that conduct elements require an intentional or knowing mental state, while circumstance and result elements require a reckless or criminally negligent mental state, although the legislature may of course vary from the defaults.”); Simonov, 358 Or at 540 (summarizing ORS 161.115(3) as stating that “[t]he state may plead and prove the least culpable of the applicable mental states for a particular element of an offense”). We have not identified anything in the context or legislative history to rebut that initial conclusion. See State v. Paul, 345 Or App 348, 354, 583 P3d 1045, 1052 (2025), adh'd to as modified on recons., 348 Or App 579, 589 P3d 216 (2026) (“After coming to an initial conclusion based on those default rules, we then consider other evidence directed at determining which mental state the legislature might have intended to attach to the element at issue * * * to confirm or rebut any tentative conclusion reached under the default rule analysis.” (Internal citation omitted)).

In arguing for a contrary result, defendant points to the structure of the criminal mischief statutes. According to defendant, the treatment in the second-degree criminal mischief statute of the amount-of-damage element as a result element supports the conclusion that the legislature intended it to carry a reckless mental state for purposes of the first-degree criminal mischief statute. See ORS 164.354(1)(b) (defining second-degree criminal mischief in part as conduct that tampers or interferes with property of another, and “as a result thereof, damages property in an amount exceeding $500”). However, regardless of whether the element is a result or circumstance, we conclude that the legislature intended to apply the default mental state of criminal negligence. Indeed, the fact that the legislature chose to specify a reckless mental state as to one form of the amount-of-damage element suggests that the omission of a mental in the first-degree criminal mischief statute reflects an intent for that same element to carry the statutory default mental state of criminal negligence. Contrary to defendant's argument, nothing in the commentary suggests an intention to import the express reckless mental state applicable to one way of committing second-degree criminal mischief, ORS 164.354(1)(b), to the first-degree criminal mischief statute.

Because the trial court provided the jury with the correct instruction, it did not err.

Affirmed.

KAMINS, J.