S057652, Opinion — State v. Schoen

207
Argued and submitted March 5, decision of Court of Appeals reversed; judgment of
circuit court reversed, and case remanded to circuit court for further proceedings
April 15, 2010
STATE OF OREGON,
Respondent on Review,
v.
TERRY DEAN SCHOEN,
Petitioner on Review.
(CC 04494; CA Al29669; SC S057652)
228P3d1207

208 	State v. Schoen
CJS, Malicious or Criminal Mischief or Damage to Property§ 9.
En Banc
On review from the Court of Appeals.*
Neil F. Byl, Deputy Public Defender, Salem, argued the
cause and filed the brief for petitioner on review. With him on
the brief was Peter Gartlan, Chief Defender, Office of Public
Defense Services.
Michael A. Casper, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief were John R. 	Kroger, 	Attorney
General, and Jerome Lidz, Solicitor General.
BALMER,J.
The decision of the Court of Appeals is reversed. The judg-
ment of the 	circuit court is 	reversed, 	and the 	case is
remanded to the circuit court for further proceedings.
* Appeal from Baker County Circuit Court, Warner Wasley, Senior Judge. 229
Or App 427, 211 P3d 948 (2009).

Cite as 348 Or 207 (2010) 	209
BALMER,J.
This 	case 	requires 	us 	to 	determine 	whether 	a
reasonable jury could find that defendant "tamper[ed] * * *
with property of another," as that phrase is used in ORS
164.345(1), the statute that defines the crime of third-degree
criminal mischief. At trial, defendant argued that his con-
duct-kicking the door of a police car in which he had been
placed following his arrest-was insufficient to allow a con-
viction for that crime. The trial court rejected that argument,
and the Court of Appeals affirmed in a divided, en bane opin-
ion. State v. Schoen, 229 Or App 427, 211P3d948 (2009). We
allowed review and, for the reasons set out below, now
reverse the decision of the Court of Appeals.
Defendant interfered with the efforts of two police
officers to enter his home to investigate a report of a domestic
dispute. The officers attempted to detain defendant, result-
ing in a physical struggle between him and the officers. After
subduing defendant, the officers placed him in the back seat
of a police car. While in the police car, defendant kicked the
door a number of times. No evidence was introduced at trial
that the door was damaged or otherwise altered, either in
function or appearance, by defendant's acts. Defendant was
charged with assault, disorderly conduct, harassment, and-
for kicking the car door-third-degree criminal mischief,
ORS 164.345(1). That statute provides:
"A person commits the crime of criminal mischief in the
third degree if, with intent to cause substantial inconven-
ience 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 prop-
erty of another."
The criminal complaint alleged, as to the criminal
mischief charge, that defendant "did unlawfully and know-
ingly tamper" with the police car. As noted, at trial, defen-
dant moved for a judgment of acquittal, arguing that evi-
dence that he had kicked the door of the police car was
insufficient to prove that he had committed third-degree
criminal mischief. Instead, he argued, the state was required
to prove that there had been damage to the police car. The
trial court denied the motion, and a jury convicted defendant

State v. Schoen
of all charges. Defendant appealed, challenging only the trial
court's denial of his motion for a judgment of acquittal on the
criminal mischief charge.
The Court of Appeals affirmed in an en bane decision
with three different opinions. At the outset, we observe that,
although defendant was charged only with "tampering" and
not with "interfering," all three Court of Appeals opinions
appear to assume that defendant was charged with "tamper-
ing or interfering" with property. The two opinions that
reached the merits proceeded to determine whether defen-
dant's conduct "tampered or interfered" with the police car.1
Indeed, the plurality opinion ultimately affirmed defendant's
conviction because "[a] reasonable factfinder could find that
defendant's acts constituted an 'interference' within the ordi-
nary meaning of the statute." Schoen, 229 Or App at 436
(Edmonds, J., concurring). Although the opinions in the
Court of Appeals apparently rest on an erroneous assump-
tion as to the nature of the criminal mischief charge of which
defendant was convicted, we nevertheless describe the opin-
ions briefly because they provide useful background for the
discussion that follows.
Four members of the Court of Appeals joined in a
plurality opinion that concluded that the phrase "tampers or
interferes with property of another" in ORS 164.345(1) covers
all "unwarranted interferences with property." Id. at 434
(Edmonds, J., concurring). The plurality thus rejected defen-
dant's argument that the statute required proof that defen-
dant's conduct "affected" the property or impaired the use of
the property and affirmed defendant's conviction.
Three judges agreed that defendant's conviction for
third-degree criminal mischief should be affirmed, but did so
on the grounds that defendant had failed to raise in the trial
court and preserve on appeal his argument that the state
' The Court of Appeals' assumption is understandable, as the parties, in their
briefs in that court, treated the case as though the relevant question was whether
the state had proved that defendant had "tampered or interfered" with the police
car. We nevertheless find it appropriate to consider only whether defendant "tam-
pered" with the police car. As explained more fully below, the case was charged and
tried on that theory, and the trial court, when ruling on defendant's motion for
judgment of acquittal, would have understood the criminal mischief charge to
involve only tampering.

Cite as 348 Or 207 (2010) 	211
must prove conduct that "affected" the property or its use. Id.
at 437 (Haselton, J., concurring). Like the plurality opinion,
Judge Haselton's concurring opinion treated the proceedings
in the trial court as though defendant had been charged with
"tampering or interfering" with the police car. See id. at 440-
41.
Three judges dissented, concluding that the phrase
"tampers or interferes with property" requires proof of "an
effect on property that changes its physical nature or limits
the property's usefulness." Id. at 445 (Sercombe, J., dissent-
ing). 	In the dissent's view, defendant's conduct did not
impede the use of the patrol car or diminish or change the
property for the worse so as to alter its functionality or value.
For that reason, defendant was not guilty of third-degree
criminal mischief and his motion for judgment of acquittal
should have been granted. Id. at 452.
On review, defendant argues that a person "tampers
or interferes with property" for purposes of ORS 164.345(1)
when the person "appreciably alters the existing condition or
use of the property at issue." Defendant links the word "tam-
per" with a physical effect on the property and the word
"interfere" with a change or rearrangement of the property
that frustrates or hinders its use. The state first argues that
defendant failed to preserve the argument that he asserts in
this court. On the merits, the state argues that third-degree
criminal mischief does not require the state to prove conduct
that "alters the existing condition or use of property." In the
state's view, the statute prohibits "any act in which a person
improperly and intrusively meddles with another person's
property to frustrate or inconvenience that person."
We first consider the issue of preservation and then
turn to the merits. Both issues require us to focus on the
motion for judgment of acquittal in the context of the case as
it was charged and tried. As noted, the criminal complaint
did not charge defendant with "tampering or interfering"
with the police car; the count at issue here alleged only that
defendant, "with intent to cause substantial inconvenience to
Baker City, did unlawfully and knowingly tamper with a
patrol vehicle[.]" (Emphasis added.) The trial court's initial
summary of the case to the prospective jurors, tracking the

State v. Schoen
criminal complaint, similarly described the criminal mischief
count as based on the state's contention that defendant had
"tamper[ed]" with the police car. (Moreover, the jury later
was instructed that, to find defendant guilty of third-degree
criminal mischief, it had to find, among other things, that he
had "tampered" with the police car, again demonstrating that
the trial court and the parties correctly viewed this case as
one about "tampering" and not about "interfering.")
When defendant moved for a judgment of acquittal,
he argued that "[t]here's been no showing there's any damage
to the vehicle of any kind. So we don't believe there's enough
[evidence] there [to support a conviction for criminal mis-
chief]." The trial judge responded that there was "sufficient
evidence" for the jury to hear all the charges. Defendant's
motion, which did not use either the word "tamper" or the
word "interfere," was necessarily directed at the state's
alleged failure to prove the conduct element of third-degree
criminal mischief as that crime was charged in the criminal
complaint-that defendant unlawfully tampered with the
police car. The trial judge's denial of that motion also was
necessarily based on his understanding that the state had
charged tampering and that defendant believed tampering
required damage of some kind.
To be sure, defendant's argument on appeal-that
the state had to show that his acts altered or changed the
physical condition or affected the use of the police car in some
respect-is a refinement of the argument that he made to the
trial court, and defendant now concedes that the state need
not prove that he physically "damaged" the police car. But
because the element of the crime at issue in the motion for
judgment of acquittal was whether defendant had "tam-
pered," and not whether he had "interfered," it was plain that
the motion focused the trial court's attention on whether
defendant's kicking had any physical effect on the police car.
Thus, in our view, the "purposes of fairness and efficiency
that 	underlie 	the 	[preservation] 	requirement," State 	v.
Stevens, 328 Or 116, 122, 970 P2d 215 (1998), were ade-
quately served by the grounds that defendant asserted in his
motion for judgment of acquittal. We therefore turn to the
merits of defendant's appeal.

Cite as 348 Or 207 	213
We begin with the text of ORS 164.345(1). The crime
of third-degree criminal mischief, as charged in this case,
consists of two elements: (1) "tamper[ing] ***with property
of another" when one has "no right to do so nor reasonable
ground to believe that [one] has such right," and (2) the
"intent to cause substantial inconvenience to the owner [of
the property] or to another person." Here, defendant does not
dispute that, by kicking the inside surface of the door of the
police car, he intended to cause substantial inconvenience to
the police officers at the scene. Nor does he argue that he
believed that he had a right to kick the door. His only claim is
that kicking the door did not "tamper" with property. 2
The word "tamper" is not defined in ORS 164.345(1),
and, because it is a word of common usage, we turn first to its
ordinary meaning. See State v. Briney, 345 Or 505, 511, 200
P3d 550 (2008) (court gives words of common usage their
plain, ordinary meaning). Although the dictionary offers sev-
eral definitions of"tamper," the parties agree that the second
definition is applicable here: "to interfere so as to weaken or
change for the worse." Webster's Third New Int'l Dictionary
2336 (unabridged ed 2002). The dictionary also identifies
"meddle" as a synonym for "tamper," and under the definition
of "meddle," it distinguishes tamper from the other verb used
in the statute, "interfere," noting that "TAMPER suggests
unwarranted alteration or change, ill-advised readjustment,
meddlesome experimentation, or improper influence," while
"INTERFERE suggests taking part obtrusively and offi-
ciously in the affairs of others so as to hinder, frustrate,
check, or defeat." Id. at 1401. As an initial matter, then, "tam-
pering" with property would seem to require some improper
alteration, change, or "readjustment" of the property.
The legislative history of the crime of third-degree
criminal mischief is also helpful to our inquiry. See State v.
Gaines, 346 Or 160, 172, 206 P3d 1042 (2009) (court may con-
sider legislative history proffered by the parties, if useful).
2 Because defendant was not charged with "interfering" with property, we have
no occasion to adjudicate the scope of that term or decide whether a reasonable
juror could conclude that defendant's conduct constituted "interfering." We discuss
the meaning of"interfere" only insofar as it assists in our interpretation of the word
"tamper."

v.Schoen
ORS 164.345 was enacted as part of the 1971 revision of the
Oregon criminal code. Or Laws 1971, ch 743, § 145. The com-
mentary to the code noted that the new criminal mischief sec-
tions were intended to replace the statutes that "prohibit[ed]
'interference' or 'tampering' with certain classes of property."
Commentary 	to 	Criminal 	Law 	Revision 	Commission
Proposed Oregon Criminal Code, Final Draft and Report,
§§ 145-147, 153 (July 1970). The statutes to be replaced
included a variety of laws that criminalized "interference"
with various kinds of utility property. Id. Those statutes did
not prohibit mere unauthorized "contact" with the physical
property, but rather conduct that affected the property or its
use. They used the words "tamper" and "interfere" along with
other verbs that suggest that some kind of adverse effect on
the property or its use must be shown. See, e.g., former ORS
164.610 (1969), repealed by Or Laws 1971, ch 743, § 432 (a
person commits the crime of "interference with water rights
and appliances" if the person intentionally "cuts, breaks
down, injures, destroys, extends, alters, tampers or interferes
with or removes" property related to pumping or transport-
ing water) (emphasis added). In writing the new criminal
mischief statute-which, as noted, was intended to prohibit
the same conduct as the earlier statutes-the drafters of the
code used the verbs "tamper" and "interfere," but not the
other verbs from the earlier statutes. It thus appears that the
drafters intended those two words to carry forward the con-
cept of requiring some improper alteration of the property
(tampering) or adverse effect on its use (interfering), rather
than merely any unauthorized contact with the property.
The crux of the legal dispute here is whether "tam-
pering," for purposes of ORS 164.345(1), can be established
even without a showing that the property or its use was
"affected" by the defendant's conduct, as the state argues.
The Court of Appeals plurality opinion concluded that all
"unwarranted interferences with property with the intent to
cause substantial inconvenience to the owner or other per-
sons [are] unlawful under ORS 164.345." Schoen, 229 Or App
at 434 (Edmonds, J., concurring) (emphasis added). That
holding, however, as previously noted, appears to have been
based on the erroneous assumption that defendant had been
charged with "interfering" with the police car, in addition to

Cite as 348 Or 207 	215
"tampering" with the police car, and thus appears to be the
plurality's interpretation of the words "tampers or inter-
feres," rather than the word "tampers" considered on its own.
The state nevertheless continues to maintain that "tampers"
refers not only to "altering something's existing condition,"
but also to "interfering with it" or simply "meddling" with it.
As the discussion above suggests, we disagree with
the state's interpretation. The legislature set out a specific
mens rea in ORS 164.345(1)-the intent to cause substantial
inconvenience. But the statute does not simply criminalize
all acts done with that intent. Rather, it also sets out a spe-
cific actus reus for third-degree criminal mischief: "tam-
per[ing] or interfer[ing] with property of another." And, in
this case, only "tampering'' was charged. The statute, as
applicable 	here, 	thus 	requires 	some 	specific 	conduct-
tampering-with respect to property. But what conduct is
sufficient to violate the statute?
The state argues that the wrongful conduct is that
which "improperly and intrusively meddles" with another
person's property with intent "to frustrate or inconvenience
that person." Obviously, the last part of the state's proposed
test is merely the mens rea element of ORS 164.345(1) and is
not disputed here. And the addition of the adverbs "improp-
erly" and "intrusively" merely emphasizes the conclusion
that the "meddling" is unauthorized or wrongful in some
way; those words do not assist us in defining the kind of con-
duct prohibited by the statute. Arguably, any conduct that a
person engages in with respect to another's property could be
considered "improper" or "intrusive" ifit is performed with an
intent to cause substantial inconvenience to the owner of the
property (or another). But the text, context, and legislative
history of ORS 164.345, described above, lead us to conclude
that the phrase "tampers * * * with property" was not
intended to sweep so broadly.
As discussed above, "tamper" ordinarily refers to a
change or alteration-ordinarily for the worse-in some
thing (tangible or intangible). We have found nothing in the
text, context, or legislative history of ORS 164.345 to suggest
that the legislature intended some different meaning when it
used that word in the criminal mischief statute. The state

216 	State v. Schoen
nevertheless argues that the word "tampers," standing alone,
encompasses all (or virtually all) conduct that is prohibited
by the words "tampers or interferes." However, those two
words, although arguably overlapping in certain respects, do
point in different directions. Indeed, the legislature's use of
both words is at least some indication that the legislature
intended "interfere" to mean something different than "tam-
per." See ORS 174.010 ("[W]here there are several provisions
or particulars such construction is, if possible, to be adopted
as will give effect to all."). It is the word "interfere," not "tam-
per," that ordinarily is used in the sense of being "in opposi-
tion" to, "at cross-purposes" with, or hindering or frustrating
a use or purpose. See Webster's at 1178 (so defining "inter-
fere"). We conclude that the word "tampering," as used in
ORS 164.345(1), requires conduct that alters, rearranges, or
changes property.
The foregoing interpretation, in our view, captures
the majority of the hypotheticals raised by the drafters of the
criminal code and discussed in the Court of Appeals opin-
ions.3 See Schoen, 229 Or App at 435-36 (Edmonds, J., con-
curring); id. at 450-51 (Sercombe, J., dissenting) (both dis-
cussing 	hypothetical 	examples 	of third-degree 	criminal
mischief). Throwing a switch on a train track that could
change the path of a train or opening a gate that blocks access
to a forest service road is conduct that alters, rearranges, or
changes property, and constitutes "tampering" with prop-
erty. If done with the intent to cause substantial inconven-
ience, it constitutes third-degree criminal mischief. Simi-
larly, mixing up library books and reshelving them out of
order is an alteration and rearrangement of property and
constitutes "tampering" with property. What constitutes
tampering with property for purposes of ORS 164.345(1) may
depend on the nature of the property: merely entering a
"clean room" at a manufacturing facility for silicon wafers or
touching a valuable painting with one's finger might consti-
tute tampering, while the same conduct with respect to other
property would not. The actus reus element of "tamper[ing]
* * * with property" for purposes of third-degree criminal
" Other conduct might constitute "interfering" with property for purposes of
ORS 164.345(1), and therefore third-degree criminal mischief, but the present case
requires us to consider only whether the charged conduct was "tampering."

Cite as 348 Or 207 	217
mischief may be easily met in many cases, but it requires
some showing, beyond the intent to cause substantial incon-
venience, of an appreciable physical change or rearrange-
ment to property.
Returning to the facts of this case, the state does not
argue that defendant's kicking damaged the police car.
Nor, as noted, was there any evidence that the kicks altered,
rearranged, or had any effect whatever on the car. The state
thus failed to introduce evidence that defendant "tampered"
with the car. Because the state introduced no evidence that
defendant "tamper[ed] * * * with property," the trial court
erred in not granting defendant's motion for a judgment of
acquittal on the third-degree criminal mischief charge.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.