State v. Martusheff , 321 Or. App. 377 ( 2022 )

377
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted July 1; reversed and remanded for entry of judgment of conviction
for second-degree criminal mischief, restitution award vacated, remanded for
resentencing August 10, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
KIRIL EFIMOVICH MARTUSHEFF,
Defendant-Appellant.
Linn County Circuit Court
20CR28912; A176152
Michael B. Wynhausen, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
Reversed and remanded for entry of judgment of convic-
tion for second-degree criminal mischief; restitution award
vacated; remanded for resentencing.
378 State v Martusheff
SHORR, P. J.
Defendant appeals a judgment of conviction for
first-degree criminal mischief, ORS 164.365, arguing that
the trial court erred in denying his motion for judgment of
acquittal and similarly erred in imposing restitution in the
amount of $1,439.55 because, although the state adduced
sufficient proof that he intentionally damaged property,
it failed to prove that he damaged the property “[i]n an
amount exceeding $1,000[.]” ORS 164.365(1)(a)(A). The state
concedes that the evidence in this case does not support
the conviction. The parties agree that the proper disposi-
tion is to remand for entry of judgment of conviction for the
lesser-included offense of second-degree criminal mischief,
ORS 164.354(1)(b) (“[a] person commits the crime of crim-
inal mischief in the second degree if * * * [h]aving no right
to do so nor reasonable ground to believe that the person
has such right, the person intentionally damages property
of another[.]”). The parties also agree that the restitution
award should be set aside. The issue of restitution may be
reconsidered on resentencing.
A lengthy discussion of the facts would not bene-
fit the bench, the bar, or the public. Suffice it to say that
defendant damaged a Pepsi machine and the state adduced
evidence that its “book value” was $1,439.55. The court con-
cluded that the evidence was sufficient to establish that the
machine had been destroyed and that its replacement value
was that amount. As the parties correctly observe, however,
the state failed to present sufficient evidence to support a
conclusion that the machine was destroyed or that its value
was diminished in any particular amount. See generally
ORS 164.115(1) (“value means the market value of the prop-
erty at the time and place of the crime, or if such cannot
reasonably be ascertained, the cost of replacement of the
property within a reasonable time after the crime”).1
1
Defendant filed a supplemental brief assigning error to the trial court’s
failure to instruct the jury that a mental state of at least criminal negligence
applied to the value element of first-degree criminal mischief. Because we
accept the state’s concession that the trial court should have granted defen-
dant’s motion for judgment of acquittal on the first-degree criminal mis-
chief charge, we need not address defendant’s supplemental assignment of
error.
Nonprecedential Memo Op: 321 Or App 377 (2022) 379
Reversed and remanded for entry of judgment of
conviction for second-degree criminal mischief; restitution
award vacated; remanded for resentencing.