State v. Lee

Case # A150812

Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A150812.pdf

Defendant Lee was convicted of one count of third-degree criminal mischief, ORS 164.345(1).  The charge was based on an allegation that, with the intent to cause substantial inconvenience to another person, Lee knowingly tampered with another person’s property and, when he did, he had neither the right to do so nor reasonable ground for believing that he had such a right.  The charges arose when, upon discovering an SUV in his parking spot, Lee chained the SUV to his truck and towed it about 20 feet, causing damage to the SUV’s bumper.

On appeal, Lee contends that the trial court erroneously instructed the jury on the meaning of “tamper.”  The trial court instructed the jury that “[t]amper requires conduct that alters, rearranges, or changes property.” Lee now argues, as he did in the trial court, that the instruction is incomplete. According to Lee, in order for a person to tamper with another’s property, the person must alter, rearrange, or change the property in a way that adversely affects the property or its use.

ORS 164.345(1) states:

“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.”

The Court of Appeals finds that the definition of “tamper” is “to interfere so as to weaken or change for the worse.”  Additionally, “tamper” is a synonym for “meddle,” the definition of which specifies that “TAMPER suggests unwarranted alteration or change, ill-advised readjustment, meddlesome experimentation, or improper influence.”  (Emphasis in original.)  Thus, the definition of tamper, the fact that it is synonymous with “meddle,” and the fact that “meddle” gives a negative aspect to tampering all indicate that tampering requires an adverse effect.  The context and legislative history of ORS 164.345(1) supports this assessment.  Accordingly, the trial court erred in refusing Lee’s request that the jury be instructed that “tampering” requires an adverse effect.

Because the error misinformed the jury about an element of the charged crime and the element related to the central disputed issue at trial, – whether Lee intended to damage the SUV – the error was not harmless.  The conviction is therefore reversed and remanded.