This week's COA opinion in State v. Davis is a good one. And it's a reminder that, when requesting mental state jury instructions, you need to do more than just identify the correct mental state. More on that in a bit.
First I want to highlight that the defendant was convicted of misdemeanor criminal mischief in the second degree, and he was ordered to pay restitution in an amount greater than $80k. The maximum fine for CM II is $6250, I believe.
Criminal Mischief II is the crime, more than any other crime in Oregon, which has the potential of a restitution award significantly greater than the maximum fine. All you need is reckless behavior which sets off a chain reaction or throwing around a baseball in a Ming vase outlet. So anytime you get a CM II, you should be prepared to argue, at the time of sentencing, that no restitution greater than $6250 can be ordered, because, under the federal constitution, it's a jury question when the amount exceeds the maximum fine, and the jury was never asked to determine restitution. Want authority? Go here .
Having said that, many very smart people think that the Southern Union case would apply to any amount of restitution. They may be right, and the issue is worth preserving. But the only time you'll win that argument at the trial level, in my opinion, is on a criminal mischief two with a restitution figure greater than $6250.
And this is why misdemeanor attorneys now get to enjoy the pleasures of Blakely.
Oh, and by the way, did you know that the Oregon Supreme Court has granted review to whether restitution is a jury question under the Oregon Constitution?
But now back to what I really want to write about: mental states and jury instructions. While Davis was a reckless case, I really want to focus on the intent jury instruction.
Keep in mind that the standard jury instruction on intent -- an instruction that was upheld in Woodman but discouraged -- the jury can find either an intent to cause a particular result or an intent to engage in particular behavior. In Woodman, a murder case, the Oregon Supreme Court held the two alternatives to be equally applicable to murder: a defendant either intends to cause a death or the defendant intends to kill someone. Either way, the jury ends up at the same place.
Whatever quibbles one might have with the Woodman decision, it's worth noting that the holding doesn't apply across the board to every crime with an intentional mental state.
As the Crosby court noted, in Woodman, "it did not make a difference whether one categorized 'causing death' as a result or as conduct, so the court in Woodman did not decide that question." 342 Or at 434.
If you had a crime that was clearly result oriented, you wouldn't want an intent instruction that convicted under a theory that your client engaged in particular behavior. Rather, you want to amend the standard instruction to specifically require that your client intended that particular result. As we saw in Davis, failure to make that distinction can result in a reversal of your client's conviction.
So, to take one example, first-degree Arson. A person can be guilty of arson if, by starting a fire or causing an explosion, the person intentionally damages protected property of another. In this case, you wouldn't want an instruction that defined intent as intentionally engaging in particular behavior. That would be enough to convict if the jury found he merely -- and intentionally -- started the fire. Instead, you would want an instruction that limited guilt to those circumstances where your client intended to damage protected property of another person. Thus, in the right case, your client is acquitted because, even though he started the fire, the damage to protected property was inadvertent.
You may not think there's that many felonies where this issue would come up, but keep in mind, any crime where your client is charged under a theory of accomplice liability, it's an intent crime. St v. Lopez-Minjarez. More on this topic in my presentation at OCDLA's December conference in Portland.