State v. Efimoff

402 January 7, 2026 No. 4

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

AFANASI EFIMOFF,

Defendant-Appellant.

Marion County Circuit Court

23CR14483; A183554

Tracy A. Prall, Judge.

Submitted November 13, 2025.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Kristin Carveth, Deputy Public Defender,

Oregon Public Defense Commission, filed the brief for

appellant.

Dan Rayfield, Attorney General, Benjamin Gutman,

Solicitor General, and Julia Glick, Assistant Attorney

General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,

Judge.

AOYAGI, P. J.

Affirmed.

Cite as 346 Or App 402 (2026) 403

404 State v. Efimoff

AOYAGI, P. J.

Defendant appeals his convictions for two counts

of felony strangulation constituting domestic violence, ORS

163.187. The crimes were elevated to a felony based on their

being committed in the immediate presence of or witnessed

by a child. See ORS 163.187(4)(a) (elevating strangulation

from a misdemeanor to a felony if “[t]he crime is committed

in the immediate presence of, or is witnessed by, the per-

son’s or the victim’s minor child or stepchild or a minor child

residing within the household of the person or the victim”).

In his sole assignment of error, defendant contends that the

trial court erred in failing to instruct the jury that a culpable

mental state is required for the presence-of-a-child element,

and he argues that the required mental state is knowledge,

whereas in the trial court he argued for criminal negligence.

We conclude that, under existing case law, the knowledge

argument is unpreserved, and we reject it on that basis. As

for criminal negligence, we do not address any error in that

regard, given defendant’s choice to abandon that preserved

issue on appeal. Accordingly, we affirm.

For offenses within the Criminal Code, except viola-

tions, “a person is not guilty of an offense unless the person

acts with a culpable mental state with respect to each mate-

rial element of the offense that necessarily requires a culpa-

ble mental state.”1 ORS 161.095(2). “An element is ‘material’

unless it relates solely to the statute of limitations, jurisdic-

tion, venue or similar matters.” State v. Simonov, 358 Or

531, 537, 368 P3d 11 (2016) (internal quotation marks omit-

ted). Due to the evolution of case law in this area in the past

decade, we are increasingly being asked to determine what

culpable mental state attaches to an element of a crime that,

historically, has not been treated as requiring a culpable

mental state. See, e.g., State v. Owen, 369 Or 288, 290, 505

1

Defendant summarily asserts that strangulation is not within the Criminal

Code, and the state summarily agrees. However, it appears to us to be within the

Criminal Code. Statutes “enacted as part of the revised Oregon Criminal Code of

1971” or that are “listed in ORS 161.005” are generally understood to be within

the Criminal Code. State v. Turnidge, 359 Or 364, 500 n 83, 374 P3d 853 (2016).

Strangulation is defined in ORS 163.187, which is within a range listed in ORS

161.005. See ORS 161.005 (listing ORS “163.160 to 163.208” as part of Criminal

Code). As it does not affect our analysis, we assume for discussion purposes that

strangulation is within the Criminal Code.

Cite as 346 Or App 402 (2026) 405

P3d 953 (2022) (overruling prior case law and holding that a

culpable mental state is required for serious-physical-injury

element of second-degree assault); State v. Paul, 345 Or App

348, 352-60, ___ P3d ___ (2025) (deciding as matter of first

impression which culpable mental state is required for the

caregiver element of criminal mistreatment).

A threshold question in such cases, as in all cases,

is whether the claim of error presented on appeal was pre-

served in the trial court. “Generally, an issue not preserved

in the trial court will not be considered on appeal.” State v.

Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). However, we have

discretion to correct a “plain” error. ORAP 5.45(1). An error

is “plain” when it is an error of law, the legal point is obvious

and not reasonably in dispute, and the error is apparent on

the record without our having to choose among competing

inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889

(2013). If a plain error occurred, and the error was not harm-

less, it is a matter of discretion whether to correct it. State v.

Ortiz, 372 Or 658, 672, 554 P3d 796 (2024). We may consider

various factors in deciding whether to exercise our discre-

tion, including “whether the policies behind the general rule

requiring preservation of error have been served.”2 Ailes v.

Portland Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956

(1991).

In this case, in the trial court, defendant argued

that a culpable mental state is required for the presence-of-

a-child element of felony strangulation, advocated for crim-

inal negligence as the required mental state, and requested

jury instructions to that effect. The state argued that it did

2

Of course, if the purposes of preservation were truly served, then the claim

of error would be deemed preserved. See, e.g., State v. Haynes, 352 Or 321, 335,

284 P3d 473 (2012) (“[I]n analyzing whether a party adequately has preserved an

issue for our review, we examine the individual circumstances of the case at hand to

determine whether the policies underlying the rule have been sufficiently served.”

(Internal quotation marks omitted.)). We understand the above-cited consideration

for exercising discretion when a claim of error is unpreserved—that “the policies

behind the general rule requiring preservation of error have been served,” Ailes, 312

Or at 382 n 6—to refer to situations in which the purposes of preservation were not

sufficiently served to treat the claim of error as preserved but were served enough to

weigh in favor of exercising discretion. See, e.g., State v. McKinney/Shiffer, 369 Or

325, 333, 505 P3d 946 (2022) (choosing to exercise discretion to correct plain error,

where the defendant “did not make the precise argument” at trial that he made on

appeal but did challenge the ongoing viability of the controlling precedent “and con-

tested the culpable mental state that should apply”).

406 State v. Efimoff

not need to prove any culpable mental state for that element.

The trial court agreed with the state and instructed the

jury accordingly. On appeal, defendant claims that the trial

court “erred when it refused to instruct the jury that defen-

dant was [guilty] only if he had a culpable mental state”

as to the presence-of-a-child element. He now argues that

knowledge is the required mental state, rather than crim-

inal negligence. Notwithstanding that shift in his position,

defendant contends that the claim of error is adequately

preserved because he “put the culpability requirement * * *

squarely before the trial court.” The state responds that

the claim of error is unpreserved, that defendant has not

requested plain-error review, that any error is not plain,

and that any error was also harmless.

It is both true and unsurprising that defendant has

not requested plain-error review in the event that we dis-

agree with him on preservation. Where a criminal statute

does not expressly specify the culpable mental state required

for a particular element, it “can be a challenging undertak-

ing” to determine which mental state the legislature intended

to attach. State v. Propp, 345 Or App 376, 387-88, ___ P3d

___ (2025). Once there is case law establishing the required

mental state for an element, it becomes plain error not to

have instructed the jury in that manner—even if the case

was tried before the new case law published, as we decide

error, including plain error, based on the law at the time of

appeal. State v. Jury, 185 Or App 132, 136, 57 P3d 970 (2002),

rev den, 335 Or 504 (2003) (“Error apparent on the face of the

record is merely a subspecies of error generally. Error, in gen-

eral, must be determined by the law existing at the time the

appeal is decided, and not as of the time of trial.” (Footnote

omitted.)); see, e.g., State v. McKinney/Shiffer, 369 Or 325,

334, 505 P3d 946 (2022) (relying on another Supreme Court

case decided the same day to hold that it was plain error not

to give a mental-state instruction on a particular element).

However, until such case law exists, it is extremely difficult,

if not impossible, to successfully argue on plain-error review

for a culpable mental state higher than criminal negligence.

See State v. Horton, 327 Or App 256, 261-62, 535 P3d 338

(2023) (holding that it was plain error not to give any mental-

state instruction at all for a particular element, but that it

Cite as 346 Or App 402 (2026) 407

was not plain error not to give a recklessness instruction, as

the specific mental state attached to that element was “an

open question in Oregon law”).

Defendant’s argument that a knowing mental

state is required for the presence-of-a-child element of fel-

ony strangulation is therefore not one suited to plain-error

review, even if we were inclined to exercise our discretion

to provide such review in the absence of a request, which

we are not in this instance. See ORAP 5.45(7) (“The court

may decline to exercise its discretion to consider plain error

absent a request explaining the reasons that the court should

consider the error.” (Footnote omitted.)); State v. Atwood, 332

Or App 495, 498 n 2, 549 P3d 51 (2024) (“[W]e normally

will not exercise [our] discretion in the absence of an explicit

request for plain-error review and concomitant plain-error

arguments.”). It follows that whether we reach the merits

depends entirely on whether the claim of error is preserved,

as defendant argues, or unpreserved, as the state argues.

As explained below, a review of the case law on

preservation of claims of error relating to culpable mental-

state requirements leads us to the conclude that defendant’s

claim of error must be deemed unpreserved.

Generally, “[w]e evaluate whether an issue is ade-

quately preserved in light of the underlying purposes of the

preservation rule—‘to allow the trial court to consider a con-

tention and correct any error, to allow the opposing party

an opportunity to respond to a contention, and to foster a

full development of the record.’ ” State v. Gray, 286 Or App

799, 806, 401 P3d 1241 (2017), rev den, 362 Or 482 (2018)

(quoting State v. Clemente-Perez, 357 Or 745, 752, 359 P3d

232 (2015)). “In practical terms, a party’s argument to the

trial court must be ‘specific enough to ensure that the [trial]

court can identify its alleged error with enough clarity to

permit it to consider and correct the error immediately, if

correction is warranted.’ ” Id. (quoting Wyatt, 331 Or at 343).

Importantly, “the presence of a common thread between an

objection at trial and an argument on appeal does not satisfy

the preservation requirement if the two arguments are qual-

itatively different.” Id. (internal quotation marks omitted).

The ultimate touchstone of the preservation requirement is

408 State v. Efimoff

procedural fairness to the parties and the trial court. Peeples

v. Lampert, 345 Or 209, 220, 191 P3d 637 (2008); see also

State v. Skotland, 372 Or 319, 329, 549 P3d 534 (2024)

(“Sometimes, the winds of preservation may be gauged by

looking to the weathervane of trial court surprise: Would the

trial court be taken aback to find itself reversed on this issue,

for this reason?” (Emphasis in original.)).

As relevant to preservation, the Supreme Court

has distinguished between “raising an issue at trial, iden-

tifying a source for a claimed position, and making a par-

ticular argument.” State v. Hitz, 307 Or 183, 188, 766 P2d

373 (1988) (emphases in original). “Raising an issue at trial

‘ordinarily is essential,’ whereas identifying a source is less

so, and making a particular argument is the least signifi-

cant.” McKinney/Shiffer, 369 Or at 332 (quoting Hitz, 307 Or

at 188). Of course, as this case illustrates, how one defines

“the issue” can make all the difference when distinguish-

ing between “raising an issue” and “making a particular

argument.”

We understand defendant to argue that he raised

the necessary issue in the trial court—i.e., that the presence-

of-a-child element of felony strangulation requires a culpable

mental state on which the jury must be instructed—even

though his particular argument regarding what mental state

applies has changed from criminal negligence to knowledge.

That contention has some intuitive appeal. Which mental

state attaches to a particular material element is a matter of

statutory construction. Propp, 345 Or App at 390. And, at the

appellate level, when construing a statute, we are not limited

by the parties’ arguments. Stull v. Hoke, 326 Or 72, 77, 948

P2d 722 (1997) (“In construing a statute, this court is respon-

sible for identifying the correct interpretation, whether or

not asserted by the parties.”). It is not unreasonable to sug-

gest that, as long as a defendant raised the issue of a mental

state requirement for a particular element, the state had an

opportunity to respond, and the trial court decided the issue,

the claim of error should be deemed preserved for appeal,

even if the defendant’s arguments have shifted on appeal as

to which specific mental state is required. Such an approach

might be particularly defensible in a case such as this one,

Cite as 346 Or App 402 (2026) 409

where the trial court affirmatively decided that no mental

state attached to the element at issue, arguably making it

irrelevant which mental state the defendant argued for.

The problem for defendant is that his suggested

approach to preservation in this context is foreclosed by

McKinney/Shiffer.

Prior to McKinney/Shiffer, we and the Supreme

Court had addressed preservation of mental-state issues

only in appeals where either no argument had been made

to the trial court (unpreserved) or the same argument had

been made to the trial court (preserved). An example of the

former is State v. Gray, 261 Or App 121, 125, 322 P3d 1094

(2014), in which the trial court gave no instruction on a cul-

pable mental state for the forcible-compulsion element of two

crimes, the defendant did not object, the defendant assigned

error to the omission on appeal, and we recognized the claim

of error as unpreserved. See also Horton, 327 Or App at 260-

61 (“[D]efendant never raised any issue regarding a mental-

state requirement for the value element of criminal mis-

chief. * * * We therefore proceed with plain-error review.”).

Conversely, examples of the latter are Simonov and Owen.

In Simonov, the defendant argued to the trial court that the

lack-of-consent element of unlawful use of a vehicle required

a knowing mental state, the trial court instructed the jury

that only criminal negligence was required, and the defen-

dant argued on appeal that knowledge was required—an

issue that was obviously preserved. 358 Or at 533-37 (treat-

ing as preserved without discussion). Similarly, in Owen, the

defendant argued to the trial court that the physical-injury

element of assault required a culpable mental state of either

knowledge or criminal negligence, the trial court gave no

mental-state instruction for that element, and the defendant

again argued on appeal that either knowledge or criminal

negligence was required—an issue that was obviously pre-

served. 369 Or at 290 (treating issue as preserved without

discussion).

McKinney/Shiffer appears to be the first appellate

decision addressing preservation in the context of a mental-

state argument that had shifted between trial and appeal.

In that case, both defendants had argued in the trial court

410 State v. Efimoff

that knowledge was required for the serious-physical-injury

element of second-degree assault. 369 Or at 328-31. The trial

courts disagreed, concluding in each case that no culpable

mental state was required for that element. Id. On appeal,

both defendants again argued for a required mental state of

knowledge, but they also argued for the first time that, if

the court disagreed on that point, then at least criminal neg-

ligence was required. Id. at 329, 331. The Supreme Court

treated the defendants’ claims of error as preserved with

respect to knowledge and unpreserved with respect to crim-

inal negligence. Id. at 327, 332-34. On the merits, the court

relied on Owen—a case decided the same day in which the

court overruled prior case law and held that the serious-phys-

ical-injury element of second-degree assault requires a men-

tal state of criminal negligence—to hold that it was plain

error not to instruct on criminal negligence. Id. at 327-28; see

Owen, 369 Or at 320, 322.

In its preservation analysis in McKinney/Shiffer, the

Supreme Court never directly addresses why objecting to the

lack of a mental-state instruction was not enough to preserve

a claim that it was error not to give any mental-state instruc-

tion.3 However, the court clearly considered the matter and

decided that it was not. See McKinney/Shiffer, 369 Or at

332-34.

That is, McKinney/Shiffer clearly holds that merely

raising the mental-state issue in the trial court is not enough

to preserve for appeal an argument that a specific mental

state is required—and does so by reference to the same

general principles of preservation that we have already dis-

cussed. See id. As we understand it, the court necessarily

reasoned that it would be procedurally unfair to reverse a

conviction based on a trial court’s failure to instruct on a spe-

cific culpable mental state, where that specific mental state

3

McKinney/Shiffer discusses the relationship between the arguments made

below and on appeal only in deciding whether to exercise discretion to correct a plain

error. In that context, the court describes the defendants’ arguments on appeal as

differing from the “precise argument” or “specific argument” made in the trial court

but seems to view the similarities as weighing in favor of exercising discretion to

correct the plain error. See 369 Or at 333-34. We take that to be an implicit refer-

ence to the “whether the policies behind the general rule requiring preservation of

error have been served” consideration for exercising discretion to correct plain error.

Ailes, 312 Or at 382 n 6.

Cite as 346 Or App 402 (2026) 411

was not argued in the trial court, even if a different mental

state was argued in the trial court—unless, of course, the

error qualifies as plain. See id. at 333 (citing fairness and

efficiency as the purposes of the preservation requirement).

To put it another way, we understand McKinney/Shiffer to

take the view that, although different mental states may

share a “common thread,” arguments for one mental state

versus another “are qualitatively different” arguments.

Gray, 286 Or App at 806; see also State v. Bordeaux, 323 Or

App 60, 71, 522 P3d 900 (2022), rev den, 371 Or 60 (2023)

(“Unless we consider the ‘issue’ that defendant raised before

the trial court to be the issue of culpable mental states in

general—a proposition that recent Supreme Court cases

appear to reject—defendant’s argument on appeal [(that a

knowing mental state was required)] presents a distinctly

different ‘issue’ from the one that defendant raised before

the trial court [(that an intentional mental state was

required)].”).

McKinney/Shiffer is therefore dispositive as to pres-

ervation in this case. Defendant argued to the trial court that

a criminally negligent mental state is required for the pres-

ence-of-a-child element of felony strangulation. On appeal,

he has abandoned that preserved argument and now argues

instead that knowledge is required—an issue that is unpre-

served under McKinney/Shiffer. Because it is unpreserved,

only plain-error review is available, which we do not provide

for the reasons already discussed.

We emphasize that the only issue before us in this

appeal is whether knowledge is required for the presence-

of-a-child element of felony strangulation. As previously

explained, for offenses within the Criminal Code (except vio-

lations), a culpable mental state is required for “each mate-

rial element of the offense that necessarily requires a culpa-

ble mental state.” ORS 161.095(2). It is undisputed that the

presence-of-a-child element of felony strangulation is a mate-

rial element. If defendant had said nothing about a men-

tal state requirement in the trial court, sought plain-error

review on appeal, and argued for knowledge as the required

mental state, we would likely conclude that it was plain error

not to give any mental-state instruction on the element at

412 State v. Efimoff

issue, even if it was not plain error not to give a knowledge

instruction. That is exactly what we did in Horton.

In Horton, the trial court gave no mental-state

instruction for the value element of criminal mischief, and

the defendant “never raised any issue regarding a mental-

state requirement” for that element. 327 Or App at 260. On

appeal, the defendant assigned error to the omission and

argued that recklessness was the required mental state.

Id. at 261. We held that it was not plain error not to give a

recklessness instruction, because the specific mental state

required for the element at issue was “an open question”

without an “obvious” answer, id., but that it was plain error

not to require any mental state to be proved for that element:

“Because it is an open question which specific mental state

is required, the only error that qualifies as ‘plain’ is the

error in failing to instruct the juries on any mental-state

requirement for the value element.

“In other words, it was plain error not to instruct the

juries that at least criminal negligence had to be proved as

to the value element, because it is now obvious and beyond

reasonable dispute that some culpable mental state applies

to the value element, and criminal negligence is the low-

est one. However, it is not obvious, and is reasonably dis-

puted, that recklessness had to be proved, so it cannot be

said to be plain error to have failed to give a recklessness

instruction.”

Id. at 262 (emphases in original; citation omitted). We ulti-

mately decided not to exercise our discretion to correct the

plain error. Id. at 266.

Unlike the defendant in Horton, defendant in this

case argued for criminal negligence in the trial court, pre-

serving that issue, but then chose to abandon that argument

on appeal. We can only assume that he did so because he did

not believe that he could successfully argue that the failure

to give a criminal-negligence instruction was prejudicial. See

id. at 262 (recognizing that a criminal conviction cannot be

reversed based on harmless error, i.e., when there is little

likelihood that the error affected the verdict). In any event,

given defendant’s choice not to raise the preserved claim of

error regarding criminal negligence, the only issue before us

Cite as 346 Or App 402 (2026) 413

is the unpreserved claim of error regarding knowledge. That

is why we do not address criminal negligence. In not address-

ing it, we do not mean to suggest that it was legally correct

not to require the state to prove any mental state for the

presence-of-a-child element of felony strangulation.

Finally, we briefly address an argument made by

the state. In its answering brief, the state argues that one

reason that “defendant cannot prevail” on appeal is that “he

now argues for a jury instruction that differs from—and

contradicts—the one he requested at trial.” That argu-

ment is misplaced. It is true, as the state argues, that, if

knowledge is not the required mental state for the element

at issue, then the trial court cannot have erred in rejecting

defendant’s proffered jury instruction on knowledge, as it did

not correctly state the law. But a defendant is not limited

to assigning error to the refusal of a requested instruction:

“Under Oregon law, there are two different types of error

respecting jury instructions: (1) error in the failure to give a

proposed jury instruction, and (2) error in the jury instruc-

tions that actually were given.” Williams v. Philip Morris Inc.,

344 Or 45, 55, 176 P3d 1255 (2008), cert dismissed, 556 US

178 (2009). If defendant’s proposed instruction was wrong,

that forecloses the first type of error, but not the second type,

and it is the second type that defendant asserts in this case.

Defendant has not assigned error to the failure to give his

proposed instruction; rather, he has assigned error to the

omission of a culpable mental state from the instructions

that were actually given. That claim of error fails for the

reasons that we have discussed. But its failure is unrelated

to the correctness or incorrectness of defendant’s proposed

instruction. We think it important to clarify that point, lest

the state have a misunderstanding of it.

Accordingly, for the reasons explained, we reject

defendant’s claim of error based on lack of preservation.

Affirmed.