State v. Waterman
| Decision Date | 25 May 2022 |
| Docket Number | A174309 |
| Citation | 319 Or.App. 695,511 P.3d 78 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Brenden Kyle WATERMAN, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Greg Rios, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge, and Kistler, Senior Judge.
Defendant and some associates attacked a man in downtown Eugene. The victim in this case, B, tried to get them to stop by driving toward them in his car. Defendant responded by stabbing B's driver's side window with a large knife until it broke and denting the driver's side door by kicking it. Defendant's associates caused additional damage to the car, previously valued at around $5,000 to $7,000, totaling it.
For that conduct, defendant was charged with one count of unlawful use of a weapon, ORS 166.220 (Count 1); one count of criminal mischief in the first-degree, ORS 164.365 (Count 2); and one count of menacing, ORS 163.190 (Count 3). A jury found defendant guilty as charged. On appeal, defendant challenges only his conviction for criminal mischief, contending that the evidence is insufficient to support it and, alternatively, that the trial court's instructions to the jury were legally erroneous in two respects. We agree that the instructions were erroneous and reverse and remand for that reason.
The evidence at trial revealed the following. The victim, B, provided ridesharing services. He was using a car he had purchased two weeks earlier for between $5,000 and $7,000. While sitting in the car in downtown Eugene, B saw three people attack a fourth person about 60 feet in front of him. To disrupt the assault, B honked his horn, blinked his lights, and, ultimately, drove toward the group. The attackers then attacked B's car. Defendant, in particular, stabbed the driver's side window with a knife about 30 times until he broke it and also dented the driver's side door. The other attackers broke other windows, the headlight assembly, and the grill assembly of B's car. As a result of all the damage, the car was "totaled out."
For his part in the attack on B and his car, defendant was charged with unlawful use of a weapon, first-degree criminal mischief, and menacing. After the state presented its case, the defense rested without moving for a judgment of acquittal or putting on any evidence and the trial court instructed the jury. With respect to the charge of criminal mischief, the court instructed the jury that it had to find:
In closing arguments, defendant did not contest the amount of damage he was alleged to have caused to the car. Instead, defendant's defense was largely one of mistaken identity—that everything had happened so fast and in a confusing way that B was mistaken about it being defendant who stabbed through his driver's side window.
Not long after it started deliberating, the jury sent out a question about the criminal-mischief charge:
"So to find the Defendant guilty of a crime of criminal mischief in the first degree, does the Defendant need to have caused $1,000 or more damage by himself, or just as part of a group that caused more than a [sic ] $1,000 in damage."
In response to the question, the state took the position that defendant could be liable if the damage caused by the group exceeded $1,000 and that the existing instruction was sufficient because it would allow for the jury to convict based on a finding that the defendant "as part of a group caused more than a [sic ] $1,000 in damage." Defendant took the position that the state needed to show that defendant himself caused damage in excess of $1,000 and "that the answer to [the jury's question], would be that they have to prove—the State has to prove [defendant] did $1,000 or more, worth of damage." The trial court took the approach advocated by the state and instructed the jury:
"The injury instructions you have been given are legally sufficient for you to reach your verdict on the charge of criminal mischief in the first-degree."
When asked for the defense position on that instruction, defense counsel responded that she had nothing to add "than what I already put on the record."
The jury, as noted, found defendant guilty as charged.
On appeal, defendant raises three assignments of error. In the first assignment of error, defendant asserts that there is insufficient evidence that the damage he did to the victim's car—breaking the window and denting the door—was $1,000 or more. In the second assignment of error, he asserts that the court erred when it did not instruct the jury that it had to find that defendant himself caused $1,000 or more in damage to the car. In the third assignment of error, defendant asserts that the trial court plainly erred when it failed to instruct the jury "that defendant committed the criminal mischief charge in Count 2 only if he was criminally negligent with respect to the fact that the amount of the damage exceeded $1,000."
We reject the first assignment as unpreserved. Defendant did not move for a judgment of acquittal or otherwise challenge the sufficiency of the evidence below. Although defendant argues that we should exercise our discretion to review for, and correct, what defendant contends is a plain error, we decline to do so. As we have explained, although we sometimes correct an issue of evidentiary sufficiency as plain error, "we have often declined to exercise our discretion to correct a plain error when the defendant failed to move for a judgment of acquittal[.]" State v. Lusk , 267 Or. App. 208, 212, 340 P.3d 670 (2014). That is mainly because a defendant's failure to challenge the sufficiency of the evidence in the trial court deprives the state of an opportunity to correct any deficiency in the evidence. Id . And in this instance, there is good reason to think that, if defendant had raised the issue below, the state might have been able to present a more calibrated valuation of the damage that defendant caused to the window and the door. The total damage to the car was between $5,000 and $7,000, and defendant's actions alone caused substantial damage by breaking a window and denting a door, making it at least somewhat likely that the portion of the total damages caused by defendant's own conduct exceeded $1,000. Under those circumstances, the equities weigh against the exercise of our discretion to correct any plain error.
In the second assignment of error, defendant contends that the trial court erred when it did not instruct the jury that, to convict him of first-degree criminal mischief, it had to find that the damage caused by defendant himself exceeded $1,000. Although the state asserts that defendant did not preserve the assigned error, we disagree. In our view, defendant preserved the assigned error when he told the trial court that he thought the answer to the jury's question was that the state had to prove that defendant did more than $1,000 in damage.
As for the...
To continue reading
Request your trial