State v. Wiggins
Case # A154895
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A154895.pdf
Defendant Wiggins and his girlfriend stole a truck. Wiggins ended up causing about $420 worth of damage to the truck’s front end when he crashed it through a gate. Wiggins also broke one of the truck’s windows during a dispute with his girlfriend. Moreover, the girlfriend wrote on the interior of the truck with a paint pen, causing approximately $700 worth of damage.
Wiggins was charged with multiple offenses, including two counts of First-Degree Criminal Mischief, ORS 164.365(1)(A)(a). First-Degree Criminal Mischief includes intentionally damaging the property of another in an amount exceeding $1,000. At trial, Wiggins moved for a judgment of acquittal of that charge, arguing that he was not liable for the $700 worth of damage his girlfriend caused and was, at most, reckless as to the broken window. The State conceded that it had not provide evidence sufficient to prove First-Degree Mischief but asked the court to submit to the jury the lesser-included Second-Degree Mischief, which includes intentional damage to property in an amount exceeding $500. The trial court granted Wiggins’ motion in part. However, the trial court ended up instructing the jury on First-Degree Criminal Mischief and included instruction on a theory of reckless and not intentional damage for Second-Degree Criminal Mischief. The jury returned a guilty verdict on First-Degree Criminal Mischief, and Wiggins now appeals.
The Court of Appeals accepts the State’s concession that the trial court erred in submitting the First-Degree Mischief charge to the jury. The Court disagrees with Wiggins’ argument that the proper disposition is to reverse and remand for a judgment of acquittal. Instead, the Court concludes that, because there was evidence that Wiggins intentionally damaged the truck, the proper remedy is to remand for the lesser-included offense of Second-Degree Criminal Mischief. Accordingly, that conviction is remanded for resentencing.