State v. Petrovskiy ( 2021 )

699
Argued and submitted October 7; conviction on Count 1 reversed and remanded,
remanded for resentencing, otherwise affirmed November 17, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
ALEKSEY V. PETROVSKIY,
aka Aleksay Petroviskiy,
aka Aleksay Vasilyevi Petrovskiy,
Defendant-Appellant.
Multnomah County Circuit Court
17CR81994; A172907
501 P3d 94
Heidi H. Moawad, Judge.
Marc D. Brown, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
700 State v. Petrovskiy
PER CURIAM
Defendant appeals a judgment of conviction for
unlawful possession of heroin (Count 1), ORS 475.854; and
driving under the influence of intoxicants (Count 2), ORS
813.010. Defendant’s first and second assignments of error
are unpreserved and do not demonstrate plain error, and we
reject defendant’s third assignment of error without discus-
sion. In defendant’s fourth and final assignment of error, he
contends that the trial court plainly erred when, in connec-
tion with the unlawful-possession count, it failed to instruct
the jury that the state had to prove that defendant knowingly
possessed heroin. In this case, the court instructed the jury
that “knowingly possessed heroin, knowingly or with knowl-
edge means that a—the person acts with an awareness that
they possess heroin.” It also instructed the jury that “Oregon
law provides that a person commits the crime of Unlawful
Possession of Heroin if the person unlawfully and intention-
ally or knowingly possesses heroin.” Nevertheless, in setting
forth the elements of the state’s case, the court omitted the
mental state element, instructing that, “[i]n this case, to
establish the crime of Unlawful Possession of Heroin, the
State must prove beyond a reasonable doubt the following
elements: One, the act occurred on or about November 12th,
2017; and, two, [defendant] possessed heroin.”
Defendant argues that the trial court’s omission of
the mental state element was plainly erroneous and requires
reversal under State v. Hooper, 310 Or App 715, 719, 487
P3d 428 (2021) (concluding that the trial court plainly erred
when the court’s instruction stated a generalized definition
of the charged crime, but the second part of the instruction
that told the jurors what their task was in the case omitted
any reference to the necessity of finding a culpable mental
state). The state responds that, read together, the instruc-
tions completely and correctly instructed the jury. Further,
the state contends that, at a minimum, the court did not
plainly err. Finally, the state contends that any error was
harmless because defendant admitted that he had just come
from purchasing heroin, such that there is little doubt that
the jury would have had to have found that defendant knew
that he possessed heroin, if instructed to do so.
Cite as 315 Or App 699 (2021) 701
We agree with defendant that the facts here are
similar to Hooper and we thus conclude that the trial court
plainly erred. Id. (“[S]uch an instruction, which lacks con-
sistent language, is reasonably capable of confusing or mis-
leading jurors as they carry out their task. That alone con-
stitutes grounds for reversal.”). Further, we conclude that
the error was not harmless for reasons similar to those
stated in State v. Ramoz, 367 Or 670, 708, 483 P3d 615
(2021) (“Because the jury instructions could have indicated
that the state need not prove, and the jury need not find, the
mens rea element of each of the charged crimes, the error
was not harmless[.]”). Finally, we exercise our discretion to
correct the grave error for reasons similar to those discussed
in Hooper, 310 Or App at 722.
Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.