State v. Kayne

No. 553 June 17, 2026 641

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

KAREN V. KAYNE,

Defendant-Appellant.

Josephine County Circuit Court

22CR13236; A181113

Brandon S. Thueson, Judge.

Argued and submitted April 3, 2025, Central Catholic

High School, Portland.

Peter G. Klym, Deputy Public Defender, argued the cause

for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Oregon Public

Defense Commission.

E. Nani Apo, Assistant Attorney General, argued the

cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Shorr, Presiding Judge, Powers, Judge, and Pagán,

Judge.

PAGÁN, J.

Reversed and remanded.

642 State v. Kayne

Cite as 350 Or App 641 (2026) 643

PAGÁN, J.

Defendant appeals from a judgment of conviction for

two counts of maintaining a dangerous dog, ORS 609.098.

Defendant argues, among other things, that the trial court

erred in convicting defendant without applying the requi-

site mental state of criminal negligence. We conclude that

the trial court plainly erred in convicting defendant with-

out finding that she acted with criminal negligence, and we

exercise our discretion to correct the error.1 Accordingly, we

reverse and remand.

For context, we begin with an overview of the ele-

ments that the state must prove to convict a person of main-

taining a dangerous dog. We then summarize the facts and

procedural history, including the parties’ arguments and

the trial court’s speaking verdict, as relevant to the issues

of preservation and plain error, before proceeding to our

analysis.

ORS 609.098(2)

Under ORS 609.098(2), “[a] person commits the crime

of maintaining a dangerous dog if the person is the keeper

of a dog and the person, with criminal negligence, fails to

prevent the dog from engaging in an act described in sub-

section (1) of this section.” As relevant here, ORS 609.098

(1)(b) provides that a “dangerous dog” means a dog that “[a]cts

as a potentially dangerous dog,” defined under ORS 609.035

(8)(c) as a dog that “[w]ithout provocation and while not on

premises from which the keeper may lawfully exclude oth-

ers, inflicts physical injury on or kills livestock or a domes-

tic animal,” after having previously committed an act as a

potentially dangerous dog that resulted in the keeper being

found to have violated ORS 609.095(1)(g) (dog as a public

1

In light of that conclusion, we do not address defendant’s remaining assign-

ments of error, in which she argues that the trial court erred in (1) applying

an incorrect legal standard in finding that defendant was guilty of maintaining

dangerous dogs because the incident “began” on public property and then contin-

ued on defendant’s property; and (2) imposing restitution without a hearing or

stipulation. We decline to address the first claim of error, which is unpreserved,

because we cannot say with confidence that it will arise on remand; and should

it arise on remand, the parties will have an opportunity to address it before the

trial court in the first instance. As to defendant’s challenge to the imposition of

restitution, we note that the state concedes that it was error; however, our dispo-

sition obviates the need to address it.

644 State v. Kayne

nuisance).2 In sum, to convict a defendant of maintaining a

dangerous dog, as relevant here, the state must prove that

the person is the keeper of a dog that has previously injured

or killed another domestic animal, and that the person, with

criminal negligence, failed to prevent the dog from inflicting

injury on or killing a domestic animal without provocation,

while not on property from which the keeper may lawfully

exclude others.3

FACTS AND PROCEDURAL HISTORY

The state charged defendant with two counts of

maintaining a dangerous dog after an incident involving

defendant’s two dogs, Moki and Gyptian, and a dog owned

by another person, Gaul, named Baby Girl. Defendant, who

appeared pro se, waived a jury and proceeded to a bench trial.

At trial, the state argued in its opening statement that the

evidence would show that defendant had previously been con-

victed of maintaining two dogs—Moki and Gyptian—as a

nuisance, and that the two dogs broke through defendant’s

fence and pulled Baby Girl into defendant’s yard. In her open-

ing statement, defendant argued that the evidence would

show that Baby Girl bit her small dog, Zorro, through the

fence, that Gyptian and Moki had been provoked when Zorro

yelped, and that Baby Girl was “stuck in [her] broken fence”

on her private property when Moki and Gyptian grabbed her.

Gaul testified that he was walking Baby Girl on a

public path past defendant’s house, on the outside of a picket

fence that surrounded defendant’s yard. Gaul saw a small

barking dog, Zorro, in defendant’s front yard. Baby Girl

did not bark at Zorro or try to push her nose through the

fence. As they walked by, two large dogs, Moki and Gyptian,

broke through a “makeshift” barrier on defendant’s porch,

charged towards the picket fence, and broke a board off of

the fence. One of the dogs reached through the broken fence,

2

After defendant was convicted, the legislature amended ORS 609.035. Or

Laws 2025, ch 170, § 1. That amendment is not relevant to our analysis, and,

accordingly, we cite to the current version of the statute.

3

Criminal negligence means that “a person fails to be aware of a substan-

tial and unjustifiable risk that [a specified] result will occur or that [a specified]

circumstance exists. The risk must be of such nature and degree that the failure

to be aware of it constitutes a gross deviation from the standard of care that a

reasonable person would observe in the situation.” ORS 161.085(10).

Cite as 350 Or App 641 (2026) 645

grabbed Baby Girl, and dragged her through the fence into

defendant’s yard, where both dogs “started mauling her”

until Gaul went into the yard and defendant came out of her

house to intervene. Another witness, Shoesmith, testified

that she was driving past defendant’s house and saw defen-

dant’s two dogs break the fence and pull Baby Girl into the

yard, and that Baby Girl did not “initiate the physical alter-

cation.” The state presented photos of injuries on Baby Girl’s

chest, back, and underarm, as well as photos of the fence

where a board had been replaced in the location where Gaul

and Shoesmith testified that the dogs had broken through.4

Defendant called her neighbor, McCrery, as a wit-

ness, who testified that as Gaul and Baby Girl were walking

by the fence, Baby Girl was barking and nipping at Zorro

through the fence. McCrery testified that Baby Girl pushed

her head through the fence and bit Zorro, and that Moki

and Gyptian grabbed Baby Girl’s head when it was stick-

ing through the fence and pulled her farther into the yard.

Defendant also offered photos of a small, decorative fence in

her yard that had been knocked over and argued that the

direction that the small fence was knocked over rebutted

the state’s theory that her dogs charged at and broke the

larger fence.

In closing argument, the state argued that defen-

dant should be found guilty because her dogs “caused phys-

ical injury to a domestic animal without provocation and on

a location where [defendant] has no lawful right to exclude

another.” The state pointed to Gaul and Shoesmith’s testi-

mony that defendant’s dogs charged at the fence, broke a

fence board, grabbed Baby Girl, dragged her into defen-

dant’s yard, and attacked her, causing injuries. The state

also argued that McCrery’s testimony was not credible, and

that Baby Girl did not provoke the dogs by barking at or

biting Zorro and that she was dragged from public property

onto defendant’s property.

In her closing argument, defendant argued that

Baby Girl provoked her dogs by nipping at Zorro through

4

The state also presented evidence that defendant had previously been con-

victed of two counts of maintaining a potentially dangerous dog as a public nui-

sance after Moki and Gyptian attacked another dog at a campground.

646 State v. Kayne

the fence and that Baby Girl “somehow * * * got through

the boards and was a sitting duck on [defendant’s] private

property.” Defendant argued that “for the first time in three

years” her “big dogs” got the gate open on her porch to “go

save * * * Zorro” and that she “reacted as quickly as possible.”

Before announcing its verdict, the trial court

explained that “[t]he state bears the burden of proving each

and every issue, or element, beyond a reasonable doubt.”

The court said that certain elements were not in dispute,

including that defendant is a keeper of Moki and Gyptian;

there is a previous conviction for those dogs as a public nui-

sance; and that the two dogs inflicted physical injury on

Baby Girl. The court stated that what was in dispute was

whether there was provocation by Baby Girl and whether

the “incident occurred or began * * * on premises from which

defendant could lawfully exclude others.” The court found

defendant guilty of two counts of maintaining a dangerous

dog after finding that Gaul and Shoesmith’s testimony was

credible, that “the area in which this began were premises

that * * * defendant could not lawfully exclude others,” and

that Moki and Gyptian were not provoked.

ANALYSIS

On appeal, defendant argues that the trial court

erred in convicting her without finding that she acted

with criminal negligence, as required by ORS 609.098(2).

Defendant contends that that claim of error is preserved

but asks us, in the alternative, to correct the error as plain

error. See State v. Graham, 333 Or App 228, 230, 551 P3d

998, rev den, 372 Or 787 (2024) (explaining that generally an

issue not preserved in the trial court will not be considered

on appeal; however, under ORAP 5.45(1), we have discretion

to review for plain errors). The state responds that defen-

dant’s argument is unpreserved and that it does not meet

the requirements for plain error review because it is not

apparent on the record that the trial court omitted the ele-

ment of criminal negligence when it found defendant guilty.

See State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013)

(an error is plain when it is “an error of law, obvious and not

reasonably in dispute, and apparent on the record without

requiring the court to choose among competing inferences”).

Cite as 350 Or App 641 (2026) 647

Beginning with preservation, defendant argues that

statements she made during closing argument, including

that her dogs got her gate on the porch open for the first time

in three years; that she reacted as “quickly as possible”; that

there was an “interior fence that was knocked over”; and

that the exterior fence was broken “were relevant only to the

issue of whether defendant had a culpable mental state.” In

defendant’s view, her arguments can be interpreted as ask-

ing the court to find that she was not criminally negligent in

maintaining her dogs. We disagree.

As defendant acknowledges, she did not explicitly

make any argument on the issue of criminal negligence

or ask the trial court to make a finding on the applicable

mental state. And to the extent that defendant argued that

her dogs had not broken through the porch barrier in three

years and that she reacted quickly, that evidence was never

presented to the trial court in testimony or otherwise, and

her brief reference to those issues was not “used in a way

and context in which the other parties and the court would

understand * * * from that single reference the essential con-

tours of the full argument.” State v. Haynes, 352 Or 321, 335,

284 P3d 473 (2012).

As to defendant’s discussion of the fences, through-

out the trial she referred to the fences not in the context of

her mental state but rather related to the issue of whether

her dogs broke the fence and grabbed Baby Girl outside the

fence. In those circumstances, even if we were to interpret

the rules regarding preservation of error “liberally,” defen-

dant’s statements during closing argument did not provide

the trial court with an explanation of her objection that was

“specific enough to ensure that the court [could] identify its

alleged error with enough clarity to permit it to consider

and correct the error immediately.” State v. Balfour, 311 Or

434, 453, 814 P2d 1069 (1991) (the “rules regarding preser-

vation of error * * * might be interpreted liberally if a person

had proceeded pro se at trial”); State v. Wyatt, 331 Or 335,

343, 15 P3d 22 (2000) (explaining what a party must do to

preserve a claim of error).

Because defendant’s argument is unpreserved,

we must determine if it meets the requirements for plain

648 State v. Kayne

error. The parties do not dispute that whether the trial

court applied the applicable elements of a criminal offense

is a question of law, and that the legal point that a fact-

finder must find a defendant criminally negligent under

ORS 609.098(2) is obvious and not reasonably in dispute.

See State v. McKinney/Shiffer, 369 Or 325, 333, 505 P3d

946 (2022) (whether the trial court failed to apply culpable

mental state of criminal negligence to physical injury ele-

ment of assault was a question of law); ORS 609.098(2) (a

person is guilty of maintaining a dangerous dog if they act

“with criminal negligence”). Thus, the question before us is

whether the error is apparent on the record without requir-

ing us to choose among competing inferences.

The state argues that the trial court is not required

to explain its verdict and that the court’s silence with respect

to the criminal negligence element gives rise to competing

inferences on the record—either the trial court failed to

consider the element or the trial court found that defendant

acted with the requisite mental state and failed to say so

out loud. In our view, the inference that the state suggests—

that the trial court considered the mental state element but

merely failed to discuss it in its speaking verdict—is not

plausible on this record. See State v. Lovern, 234 Or App 502,

512, 228 P3d 688 (2010) (for plain error analysis, competing

inferences must be plausible). As defendant points out, the

trial court walked through each element in its speaking ver-

dict except for the criminal negligence element; the state did

not make any argument in opening or closing on the issue of

criminal negligence; and the state did not explicitly present

any evidence on that issue or discuss any of the evidence in

the context of how it related to the issue. In those circum-

stances, the only plausible inference apparent on the record

is that the trial court failed to consider whether defendant

was criminally negligent, and the trial court’s error was

plain.

Having determined that the trial court plainly

erred, the next question is whether the error was harmless,

as we cannot reverse a judgment based on harmless error.

State v. Ortiz, 372 Or 658, 671, 554 P3d 796 (2024) (“Under

Article VII (Amended), section 3, of the Oregon Constitution,

Cite as 350 Or App 641 (2026) 649

an appellate court may not reverse a criminal defendant’s

conviction based on an error—whether preserved or unpre-

served—that is harmless.”). An error is harmless if there is

“little likelihood” that it affected the verdict. State v. Davis,

336 Or 19, 32, 77 P3d 1111 (2003).

Here, some of the evidence in the record that could

plausibly relate to the issue of criminal negligence weighed

in favor of the state, including the size of the dogs, defen-

dant’s awareness that the dogs had previously attacked

another dog, and that the dogs were outside while defendant

was in the house. However, there was also evidence that

would weigh in favor of a finding that defendant was not

criminally negligent, including pictures of the exterior fence

and testimony that the dogs were contained on the porch

behind a “makeshift” barrier. In light of that evidence and

the absence of any argument before the trial court on the

issue of criminal negligence, there is at least some possibil-

ity that the trial court may not have found defendant crimi-

nally negligent had it considered that element, and thus we

conclude that the error was not harmless. See State v. Stone,

324 Or App 688, 695, 527 P3d 800 (2023) (In the mental-

state context, in assessing whether an error was harmless,

the pertinent inquiry is “whether there is some likelihood

that the [factfinder] might not have been persuaded that

[the defendant] had the requisite mental state, had it con-

sidered that issue.” (Emphasis in original.)).

Finally, because we conclude that the trial court’s

error is both plain and not harmless, we must decide whether

to exercise our discretion to correct it. Ortiz, 372 Or at 672.

Based on the gravity of the error, the competing interests of

the parties, and the interests of justice, we conclude that the

trial court’s error in finding defendant guilty without hav-

ing found that she was criminally negligent—an element of

the offense that the state was required to prove beyond a

reasonable doubt—warrants the exercise of our discretion to

correct the error. See Ailes v. Portland Meadows, Inc., 312 Or

376, 382 n 6, 823 P2d 956 (1991) (outlining nonexclusive list

of factors that are relevant in deciding whether to exercise

our discretion to correct a plain error).

Reversed and remanded.