State v. Shedrick

255

Argued and submitted September 24, 2021; decision of Court of Appeals and

judgment of circuit court affirmed October 6, 2022

STATE OF OREGON,

Respondent on Review,

v.

JOHN ANDREW SHEDRICK,

Petitioner on Review.

(CC 17CR79342) (CA A167795) (SC S067620)

518 P3d 559

Defendant was charged with first-degree theft, and the state’s evidence at

trial showed that defendant had taken a bundle of money amounting to $2,000

that was atop an automated teller machine in a bar. Defendant argued that the

state had to prove, but had not proved, that defendant was at least criminally

negligent with respect to his awareness of the value of the money that he took.

Defendant also requested special jury instructions to that effect. The trial court

denied defendant’s motion for a judgment of acquittal and did not give the jury

defendant’s requested instructions. The jury convicted defendant as charged, and

the Court of Appeals affirmed. Held: (1) In a prosecution for first-degree theft,

the state must prove the defendant’s culpable mental state with respect to the

value of the property stolen; (2) the trial court therefore erred in failing to give

the requested instructions; but (3) the error was harmless because the evidence

reflected that defendant’s failure to be aware of the substantial and unjustifiable

risk that the money that he had taken was worth a significant amount was a

gross deviation from the standard of care that reasonable people would exercise.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

On review from the Court of Appeals.*

Neil Byl, Deputy Public Defender, Office of Public Defense

Services, Salem, argued the cause and filed the briefs for

petitioner on review. Also on the briefs was Ernest G.

Lannet, Chief Defender.

E. Nani Apo, Assistant Attorney General, Salem, argued

the cause and filed the brief for respondent on review. Also

on the brief were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

______________

* On appeal from Lane County Circuit Court, Charles M. Zennaché, Judge.

302 Or App 380, 457 P3d 1117 (2020).

256 State v. Shedrick

Before Walters, Chief Justice, and Balmer, Flynn, Duncan,

Nelson, and Garrett, Justices, and Nakamoto, Senior Judge,

Justice pro tempore.**

NAKAMOTO, S. J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

______________

** DeHoog, J., did not participate in the consideration or decision of this case.

Cite as 370 Or 255 (2022) 257

NAKAMOTO, S. J.

Defendant took a bundle of money atop an auto-

mated teller machine, or ATM, and was convicted of first-

degree theft. As defined in ORS 164.055(1)(a), the offense

requires the state to prove, among other things, that the

“total value of the property” stolen in the transaction “is

$1,000 or more.” The issue on review is whether proof of a

culpable mental state concerning the “value of the property”

element is required. The trial court and the Court of Appeals

agreed with the state that none is required. Defendant chal-

lenges the judgment of conviction, arguing that the jury

should have been instructed that, to obtain a conviction, the

state had to prove his culpable mental state—at least crim-

inal negligence—concerning the value of the money taken.

We allowed review and, for the reasons that follow, hold that,

in a prosecution for first-degree theft, the state must prove

the defendant’s culpable mental state with respect to the

value of the property stolen and that the trial court erred

in failing to give the requested instructions. However, we

conclude that the error was harmless and, therefore, affirm

the decision of the Court of Appeals and the trial court’s

judgment of conviction.

FACTS AND PROCEDURAL HISTORY

Defendant walked into a bar and sat at a video

poker machine near the ATM that the bar maintained for

customers. The bar’s owner was about to refill the ATM and

placed a bundle of currency on top of it. The bundle con-

sisted of 100 $20 bills; a currency strap from the bank, which

certified that the bundle contained $2,000, held the bills

together. Within two or three seconds, while the owner had

turned around to greet a patron who had entered the bar,

defendant took the bundle of money, placed it in his jacket

pocket, and walked toward the door. A bar patron saw defen-

dant take the bundle and stopped him before he could leave.

Defendant said “sorry,” handed the bundle to the patron,

and pleaded with him to let him go. The patron declined

and returned the money to the bar owner. The sequence of

events occurred rapidly, in a matter of seconds. The patron

did not know how much money was in the bundle.

258 State v. Shedrick

The bar owner asked for someone to call the police,

and he and the patron made sure that defendant did not

leave before the police arrived. The responding officer saw

the bundle of money, which was resting on the bar, but did

not know its value immediately. He then was told the amount

and looked at the bank band around the bundle indicating

that it contained $2,000.

The state charged defendant with theft in the first

degree, ORS 164.055(1)(a). At the close of the state’s case,

defendant moved for a judgment of acquittal, arguing, based

on State v. Simonov, 358 Or 531, 368 P3d 11 (2016), that one

of the elements that the state was required to prove, but

had not proved, was that defendant was at least criminally

negligent with respect to his awareness of the value of the

money that he took. Defendant also requested special jury

instructions to that effect.1

The state opposed the motion and objected to defen-

dant’s requested instructions. It argued that, under Court

of Appeals precedent—specifically, State v. Jones, 223 Or

App 611, 196 P3d 97 (2008), rev den, 345 Or 618 (2009)—the

state was not required to prove knowledge or any other cul-

pable mental state as to the property’s value in a theft case.

Although defendant expostulated that Jones did

not address whether a culpable mental state other than

knowledge attached to the value element of theft, the trial

court disagreed. Concluding that the Court of Appeals had

held that no mental state was required for that element,

the trial court denied the motion for a judgment of acquit-

tal and instructed the jury on the elements of first-degree

theft without including a culpable mental state as to the

1

Defendant’s first requested instruction set out the culpable mental state

that would apply: “[Y]ou must find he was negligently unaware that the value

of the property stolen was valued at $1,000.00 [or] more.” His second instruc-

tion explained, borrowing from the statutory definition of “criminal negligence”

in ORS 161.085(10), that “negligently unaware” meant the failure “to be aware

of a substantial and unjustifiable risk that the property stolen was valued at

$1,000.00 or more. 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 rea-

sonable person would observe in the situation.” The third instruction explained

that, if the state proved that defendant “intended, knew or was reckless as to

the property being valued at $1,000.00 or more,” then the state’s burden to prove

negligence would be satisfied.

Cite as 370 Or 255 (2022) 259

value of the money taken. The jury was instructed that the

state had to prove beyond a reasonable doubt that defen-

dant, “with the intent to appropriate property to himself,

knowingly took property, cash, from the owner * * * and a

total value of that property was $1,000 or more.” Defendant

excepted to the court’s failure to give his requested special

jury instructions.

After the jury found defendant guilty, he challenged

his conviction on appeal. In part, he asserted that the trial

court had erred by failing to instruct the jury that the “crim-

inal negligence” culpable mental state applied to his aware-

ness of the value of the money taken. The Court of Appeals

affirmed in a per curiam decision, citing Jones and several

of its more recent decisions, including State v. Morales, 299

Or App 392, 450 P3d 552 (2019). State v. Shedrick, 302 Or

App 380, 457 P3d 1117 (2020). We allowed defendant’s peti-

tion for review, limited to the question of whether a culpable

mental state attaches to the “value of the property” element

of first-degree theft under ORS 164.055(1)(a).

ANALYSIS

Whether the legislature intended ORS 164.055(1)(a)

to include a culpable mental state for the “value of the prop-

erty” element of first-degree theft is an issue resolved by

statutory construction. State v. Owen, 369 Or 288, 295, 505

P3d 953 (2022). Our analysis of the first-degree theft stat-

ute requires consideration of the statute’s text, context, and

legislative history. State v. Gaines, 346 Or 160, 206 P3d

1042 (2009). And as we explained in Owen, the culpabil-

ity statutes enacted in 1971, through which the legislature

“intended to provide a uniform statutory scheme for deter-

mining which elements of an offense require which culpable

mental states,” provide important instruction for evaluating

what culpable mental states, if any, the legislature intended

to attach to the elements of a criminal offense, like first-

degree theft, that is defined in the Criminal Code. 369 Or

at 295, 317.

The parties contest whether the state had to prove

any culpable mental state for the property-value element

by initially focusing on the meaning of one of those general

culpability statutes, ORS 161.095(2). That statute provides

260 State v. Shedrick

that, to obtain a conviction, the state must prove that the

defendant “acts with a culpable mental state with respect to

each material element of the offense that necessarily requires

a culpable mental state.” ORS 161.095(2) (emphasis added).

Defendant contends that the emphasized text requires a cul-

pable mental state for elements of an offense other than those

pertaining to venue, jurisdiction, and statutes of limitation.

The state contends that “material element” in ORS 161.095(2)

already excludes “elements such as venue and jurisdiction.”

Thus, the state reasons, the qualifying phrase—“that nec-

essarily requires a culpable mental state”—refers to other

elements of an offense and so might not encompass the

property-value element of the theft offense.

That same dispute about the meaning of ORS

161.095(2) arose in Owen, and we resolved that dispute after

the parties had briefed and argued this case. In Owen, we

rejected the argument that the state advances in this case

about the meaning of ORS 161.095(2). We explained that the

statute ordinarily requires the state to prove a mental state

for any “material element” of a criminal offense defined

by a statute in the Oregon Criminal Code that “necessar-

ily requires” a culpable mental state. 369 Or at 295; accord

State v. Rutley, 343 Or 368, 373, 171 P3d 361 (2007). We held

that, as used in ORS 161.095(2), the legislature intended a

“material element” of the offense to refer to any fact that

“the state is legally required to prove to beyond a reasonable

doubt to convict a defendant, including facts about the stat-

ute of limitations, venue, and jurisdiction.” Owen, 369 Or at

309-10. We further held that the phrase “that necessarily

requires a culpable mental state” clarifies that no culpable

mental state is necessary for “material elements relating to

when and where a crime could be prosecuted, like the stat-

ute of limitations, jurisdiction, and venue.” Id. at 310.

Applying that statutory requirement in ORS

161.095(2), it would appear that the state would be required

to prove a culpable mental state as to the property-value

element of the theft offense. As defendant correctly argues,

that element is a material element, and it is not an element

like venue or other elements pertaining to when or where

an offense may be prosecuted that would obviate the need to

prove a culpable mental state.

Cite as 370 Or 255 (2022) 261

Taking a contrary position, the state posits that,

even if ORS 161.095(2) generally requires a culpable men-

tal state for an element like the value of the property sto-

len, this court has recognized that to strictly apply such a

requirement to every offense defined in the Criminal Code

may conflict with what the legislature intended to require

for a particular offense. According to the state, the legisla-

ture intended the offense of theft to be an exception to ORS

161.095(2). Citing State v. Irving, 268 Or 204, 520 P2d 354

(1974), and its reading of the legislative history of the stat-

utes defining theft offenses, the state urges us to hold that

the legislature intended to omit any culpable mental state

for the property-value element of theft offenses.

Courts may recognize exceptions to ORS 161.095(2)

or other general culpability statutes, but to establish such

an exception, a party must show a legislative intent to disre-

gard the statute. In Irving, this court concluded that, despite

the mandate in ORS 161.095(2) requiring proof of a culpa-

ble mental state for material elements of an offense, it was

“clear from the legislative history” of the statute defining the

criminal offense of fraudulent sale of imitation drugs that

the legislature did not intend to require the state to prove a

culpable mental state for a material element, namely, that

the defendant “knew that he was making a sale to a peace

officer.” 268 Or at 206.

And more recently, in State v. Carlisle, 370 Or 137,

515 P3d 867 (2022), a majority of this court concluded that

the legislature did not intend to require the state to prove

that the defendant, who was charged with sexual abuse,

knew that the victim had not consented to sexual contact.

In the lead opinion, three justices agreed that legislative

history revealed uncertainty about whether the legislature

viewed—or would have viewed—the “does not consent” ele-

ment as a “conduct” element that generally requires knowl-

edge as the minimum applicable culpable mental state.

Carlisle, 370 Or at 155-56 (Flynn, J., lead opinion); see

also ORS 161.085(8) (defining “knowingly” or “with knowl-

edge” as applied to conduct elements). Those justices also

concluded that that uncertainty, coupled with contextual

evidence of the legislature’s intent, established that the

legislature did not intend to require the state to prove the

262 State v. Shedrick

defendant’s knowledge of the victim’s nonconsent. Carlisle,

370 Or at 166.

The decisions in Irving and Carlisle underscore

that the party asserting that a general culpability statute

in ORS chapter 161 does not apply must show that the leg-

islature intended to disregard that statute when it crafted

the statute defining a specific offense. In Irving, the state

presented evidence that, when the legislature prohibited

the sale of imitation drugs, it intended to countermand ORS

161.095(2), the statute requiring a culpable mental state

for the element at issue. 268 Or at 206. And in the case

of Carlisle, the state presented both legislative history for

the crime of sexual abuse and contextual evidence related

to that statute to demonstrate that the legislature did not

intend to require the state to prove that the defendant knew

that the victim did not consent to sexual contact. 370 Or at

156 (Flynn, J., lead opinion).

In this case, the state argues that the legislative

history of the theft statutes establishes that the Criminal

Code’s drafters—and subsequently the 1971 Legislative

Assembly that enacted the code—did not intend that the

state must prove that a defendant acted with a culpable

mental state with respect to the value of the property sto-

len. The state’s primary argument is that the Criminal

Law Revision Commission’s silence on the matter is

compelling:

“The Commission members specifically discussed the

requirement that the state prove the value of the property

in order to convict a defendant of the higher degrees of theft,

and what would happen if it were unable to do so. Tape

Recording, Criminal Law Revision Commission, April 27,

1968, Tape 13, Side 1. But despite thoroughly discussing

how the state must prove the value of stolen property to

support a conviction for second-degree or first-degree theft,

the Commission members did not once mention having to

prove any culpable mental state on the part of defendant.

That legislative history, especially in the context of the lar-

ceny statute that existed at the time, supports the conclu-

sion that the legislature did not contemplate that the state

would be required to prove any culpable mental state as to

that element.”

Cite as 370 Or 255 (2022) 263

The state does not refer us to legislative materials other

than the commission’s meeting on April 27, 1968, but it

asserts that the discussion of the subcommittee that drafted

the theft statutes bolsters the state’s position.

Accordingly, we turn to the text, context, and leg-

islative history of the first-degree theft statute to discern

whether the legislature intended to have courts and liti-

gants disregard ORS 161.095(2) requiring the state to prove

that the defendant acted with a culpable mental state with

respect to material elements of offenses, other than those

relating to venue and the like. In particular, we exam-

ine whether the drafters and, ultimately, the legislature

intended the first-degree theft statute to contain no culpa-

ble mental state for the property-value element. We conclude

that the evidence fails to support that conclusion.

Separate statutes define the differing degrees of

theft. See ORS 164.043 (third-degree); ORS 164.045 (second-

degree); and ORS 164.055 (first-degree). Pursuant to ORS

164.055(1)(a), theft in the first degree is defined, in part,

as follows: “A person commits the crime of theft in the first

degree if, by means other than extortion, the person com-

mits theft as defined in ORS 164.015” and the “total value of

the property in a single or aggregate transaction is $1,000 or

more[.]” A person commits theft as defined in ORS 164.015(1)

when the person, “with intent to deprive another of property

or to appropriate property to the person or to a third person,

* * * [t]akes, appropriates, obtains or withholds such prop-

erty from an owner thereof[.]”

The text of ORS 164.055(1)(a) does not contain an

express determination by the legislature that no culpable

mental state is required for the elements of first-degree

theft. Nor does the text suggest or imply that the legislature

decided to except first-degree theft from the usual statutory

requirement it provided in ORS 161.095(2).

As for context, the state makes a two-part argument.

First, according to the state, before the 1971 adoption of the

overhauled Oregon Criminal Code and the consolidation of

theft-related crimes, the crime of larceny, as defined in for-

mer ORS 164.310 (1967), repealed by Or Laws 1971, ch 743,

§ 432, provided for a separate determination of the value

264 State v. Shedrick

of the property taken, to be made after a finding of guilt,

for purposes of punishment. The state thus suggests that

former ORS 164.310 (1967) did not require proof of the value

of the stolen property to obtain a conviction; the value was

relevant only in determining the appropriate punishment

for the crime. From that premise, the state then argues that

the first-degree theft offense that the commission drafted

and that the legislature adopted in 1971 was designed to

retain that separation of the property-value determina-

tion from the factfinder’s role to determine whether the

state has proved the elements of the theft offense. We are

unpersuaded.

The crime of larceny was defined, in part, as follows:

“(1) Any person who steals the property of another,

or who wilfully takes, carries, leads or drives away the

property of another with the intent to deprive such other of

such property permanently, is guilty of larceny; and

“(a) If such property exceeds $75 in value, shall be

punished upon conviction by imprisonment in the peniten-

tiary for not more than 10 years.

“(b) If such property does not exceed $75 in value,

shall be punished upon conviction by imprisonment in the

county jail for not more than one year, or by a fine of not

more than $500, or both.”

Former ORS 164.310 (1967).

Although the text of former ORS 164.310 (1967)

could suggest that the initial premise of the state’s argu-

ment is correct, case law indicates that proof of the value of

the property was in fact an element of the crime of larceny.

In State v. Lewis, 248 Or 217, 219-20, 433 P2d 617 (1967),

this court held that, “to prove that the offense was grand

larceny,” the state had to establish the value of the stolen

property, which could be done through the owner’s testi-

mony as to value. In other words, the court considered the

value of the property to be a material element of the crime

of grand larceny necessary for the state to prove to secure

a conviction. The same conclusion can be drawn from State

v. Grinolds, 223 Or 68, 353 P2d 851 (1960). In that case,

this court analyzed whether, under a habitual criminal act,

the defendant’s conviction of larceny in Minnesota would be

Cite as 370 Or 255 (2022) 265

considered a felony in Oregon that could be counted against

the defendant in assessing a habitual criminal penalty. 223

Or at 73-78. The court held that, because the statute defin-

ing felony larceny in Minnesota required taking property

worth more than $25 but the statute defining felony larceny

in Oregon required taking property worth more than $75,

the defendant’s Minnesota conviction could not be counted

as a felony larceny conviction in Oregon. Id. at 78.

In addition, the legislative history of the commis-

sion’s consideration of the draft of the theft statutes indicates

that the members of the commission contemplated that the

state would have to prove the stolen property’s value to con-

vict a defendant of grand larceny. At the April 1968 meet-

ing of the Criminal Law Revision Commission on which the

state relies, the full commission addressed Article 14, the

theft provisions, as contained in Preliminary Draft No. 4.

The commission addressed all sections of the draft, and for

approximately 15 minutes it discussed section 8, pertaining

to the value of property. In its discussion of section 8 of the

draft, the commission briefly addressed what would happen

if the state failed to establish that the property value was

over $75 in a grand larceny case. Tape Recording, Criminal

Law Revision Commission, Apr 27, 1968, Tape 13, Side 1. A

commission member explained that he knew from practice

that the judge would instruct the jury on the lesser included

offense of petty larceny. Id. Another member agreed and then

wondered whether crimes involving credit cards might be

different, and a third member interjected that there would

be a separate section drafted related to credit cards. Id. The

subcommittee then turned to section 9 of the draft relating

to defenses to theft. Id. That discussion further undermines

the state’s argument that former ORS 164.310 (1967) did not

require the state to prove the value of the property stolen to

convict a defendant of larceny and that the commission like-

wise intentionally excluded the value of the property stolen

as one of the elements of theft.

Turning to the state’s reliance on silence in the leg-

islative history of ORS 164.055(1)(a), we agree with the state

that the drafters did not mention a culpable mental state

with respect to the value of the property taken. Nowhere in

its discussion of the property-value provisions on April 27,

266 State v. Shedrick

1968, did the commission members make any comment indi-

cating that the state was required to prove that the defen-

dant had a culpable mental state with respect to the value of

the stolen property. Nor did the subcommittee’s discussions

contain affirmative statements that a culpable mental state

would apply to the value of the property.

But, by the same token, the members of the commis-

sion and the subcommittee members responsible for draft-

ing and presenting the theft provisions to the commission

never mentioned that the state need not prove a culpable

mental state with respect to the value of the property taken.

See Tape Recording, Criminal Law Revision Commission,

Apr 27, 1968, Tape 13, Side 1. Thus, that legislative history

is far from clearly indicating that the legislature intended

to depart from the statutory requirement in ORS 161.095(2)

for criminal liability: With statutory exceptions not relevant

here, “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, other than those elements like

venue and jurisdiction.

The commission’s and the subcommittee’s lack of

discussion concerning a culpable mental state requirement

for the value of the property stolen is not surprising, consid-

ering the text and purpose of section 8 of the draft theft pro-

visions concerning the value of stolen property. Preliminary

Draft No. 4 stated that “the value of property shall be ascer-

tained as follows” and then contained three subsections con-

cerning valuation:

“(1) Except as otherwise specified in this section, value

means the market value of the property at the time and

place of the crime, or if such cannot reasonably be ascer-

tained, the cost of replacement of the property within a rea-

sonable time after the crime.

“(2) Whether or not they have issued or delivered, cer-

tain written instruments, not including those having a

readily ascertainable market value, should be evaluated as

follows:

“(a) The value of an instrument constituting evidence

of debt, including, but not limited to, a check, draft or prom-

issory note, shall be deemed the amount due or collectible

thereon or thereby.

Cite as 370 Or 255 (2022) 267

“(b) The value of any other instrument which creates,

releases, discharges or otherwise affects any valuable legal

right, privilege or obligation shall be deemed the greatest

amount of economic loss which the owner might reasonably

suffer because of the loss of the instrument.

“(3) When the value of property cannot reasonably be

ascertained, it shall be presumed to an amount less than

one hundred dollars.”

Preliminary Draft No. 4, Criminal Law Revision Com-

mission, Article 14 (Apr 18, 1968) at 16. The commentary to

section 8 concerning the value of the property in the theft

offenses informed the subcommittee and the full commis-

sion that it served to define the “criteria to establish value.”

Commentary to Preliminary Draft No. 4 at 16 (“This section

sets forth three criteria to establish value.”). The final draft

of the proposed Criminal Code did the same. Commentary

to Criminal Law Revision Commission Proposed Oregon

Criminal Code, Final Draft and Report § 131, 138-39 (July

1970).

The commission’s discussion tracked the draft’s

provisions on ascertaining the value of stolen property.

The commission initially focused on how the value of sto-

len property should be calculated. The chair of the subcom-

mittee that had drafted the theft provisions, Senator John

D. Burns, informed the commission that the Model Penal

Code (MPC) provided that the value of stolen property is

calculated using the “highest value by any reasonable stan-

dard,” whereas subsection (1) provided that the value was

to be determined based on market value, borrowing from

New York’s law. Tape Recording, Criminal Law Revision

Commission, Apr 27, 1968, Tape 13, Side 1. When a com-

mission member asked whether the draft would change

how Oregon would establish the value of stolen property,

another answered that it would not change existing case

law but would be included in the statute. Id. The commis-

sion briefly addressed subsection (2) concerning valuation

of instruments. Id. With respect to subsection (3), the provi-

sion that, if the value could not “reasonably be ascertained

it shall be presumed to be an amount less than one hundred

dollars,” the commission was told that the provision was to

take care of cases in which proof of the property’s value was

268 State v. Shedrick

not established. Id. A member referred to the value elements

of larceny and explained that he knew of cases in which the

prosecution failed to prove the value of the property taken

and the trial court concluded that all the elements of larceny

were not proved and that a motion for judgment of acquit-

tal was well taken. Id. The commission eventually decided

to replace “one hundred dollars” with a blank placeholder

instead, to be filled in following a determination of penalty

provisions. Id. Thus, the commission members did not affirm

or disclaim that the state would have to prove a culpable

mental state with respect to the value of the property. At the

end of the meeting, no commission members expressed con-

cerns about the general approach to the theft offenses after

being invited to do so. Id.; Minutes, Criminal Law Revision

Commission, Apr 27, 1968, 15-16.

Similarly, the subcommittee’s discussion of the

value of the stolen property focused on valuation. The sub-

committee first discussed the theft offenses in February

1968. The discussion of the value of the stolen property was

limited to reading and describing the effect of the draft.

Tape Recording, Criminal Law Revision Commission,

Subcommittee No. 1, Feb 24, 1968, Tape 5, Side 1. The sub-

committee met again in March to consider the theft stat-

utes as set out in Preliminary Draft No. 2 and reviewed the

section concerning the value of stolen property. Minutes,

Criminal Law Revision Commission, Subcommittee No. 1,

Mar 23, 1968, 9. The subcommittee discussed how to deter-

mine the value of stolen property, noting the difference

between the MPC’s use of the “highest value by any rea-

sonable standard” as the criterion and “reasonable market

value” in the draft. Tape Recording, Criminal Law Revision

Commission, Subcommittee No. 1, Mar 23, 1968, Tape 6,

Side 2. The subcommittee also discussed valuations of

instruments, approving related modifications to the draft,

and the “presumption” that, without proof of the value of

stolen property, only a conviction of petty larceny was

possible. Id. At its April 1968 meeting, the subcommittee

approved the section concerning the value of stolen property

as drafted, with no substantive discussion. Tape Recording,

Criminal Law Revision Commission, Subcommittee No. 1,

Apr 6, 1968, Tape 11, Side 1; see also Minutes, Criminal Law

Cite as 370 Or 255 (2022) 269

Revision Commission, Subcommittee No. 1, Apr 6, 1968, 11.

The subcommittee did not discuss a culpable mental state

with respect to the value of the property.

But although the drafters did not discuss a culpable

mental state, the legislative history does not provide clear

evidence for the conclusion that the state offers. The drafters’

silence about a defendant’s culpable mental state concern-

ing the property-value element of theft during the discus-

sions about how to prove the value of property is unsurpris-

ing and does not clearly reflect an intention by them or the

legislature to omit the need for the state to prove a culpable

mental state for the property value, a material element of

the offense. Following our decision in Owen, we hold that, by

virtue of ORS 161.095(2), the legislature intended a culpable

mental state to apply to the property-value element of theft.

Accordingly, the Court of Appeals erred in holding,

in this case and in Jones, Morales, and similar cases, such

as State v. Stowell, 304 Or App 1, 466 P3d 1009 (2020), that

no culpable mental state applies to the property-value ele-

ment of first-degree theft. As a result, the trial court, fol-

lowing the Court of Appeals case law, erred in declining to

give defendant’s requested jury instructions requiring the

state to prove a culpable mental state as to the value of the

property taken. However, we nonetheless affirm the deci-

sion of the Court of Appeals in this case and the judgment

of conviction entered by the trial court, because the error in

instructing the jury was harmless.

As is evident from defendant’s requested jury

instructions, defendant contends that the applicable cul-

pable mental state for the value of the property taken is

criminal negligence. He contends that the property-value

element is a “circumstance” element, an “accessory fact

that accompanies, not modifies, the defendant’s conduct.”

Simonov, 358 Or at 542. Defendant further contends that

the legislature intended the state to prove at least that he

was criminally negligent regarding the “value of property”

element, because “circumstance” elements normally require

the state to prove that the defendant acted knowingly, reck-

lessly, or with criminal negligence as to the circumstance.

Id. at 539-40; see also ORS 161.085(7) - (10) (definitions of

270 State v. Shedrick

mental states); ORS 161.115(3) (when criminal negligence

suffices to establish a culpable mental state, the mental

state may also be proved by knowledge or recklessness). The

state agrees that, if the property-value element requires a

culpable mental state, then that element is a “circumstance”

element with a required culpable mental state of criminal

negligence. In light of the parties’ arguments, we assume,

without deciding, that the applicable culpable mental state

for the property-value element is criminal negligence.2

As we have discussed, the jury was not instructed

that it had to find that defendant was criminally negligent

with respect to his awareness of the amount of the money

that he took to find him guilty of first-degree theft, and we

conclude that the court’s failure to give an instruction on the

culpable mental state was error. However, notwithstanding

that error, we will affirm the judgment below if we deter-

mine that “there was little likelihood that the error affected

the verdict.” Owen, 369 Or at 323 (so stating); State v. Davis,

336 Or 19, 33, 77 P3d 1111 (2003) (same).

Assuming a culpable mental state of criminal negli-

gence, the state was required to prove that defendant acted

2

The parties do not discuss whether ORS 161.115(1) or ORS 161.115(2) applies

to the determination of which culpable mental state governs the property-value

element of first-degree theft, but they appear to assume that ORS 161.115(2)

applies. Those two subsections of ORS 161.115 provide the following guidance:

“(1) If a statute defining an offense prescribes a culpable mental state

but does not specify the element to which it applies, the prescribed culpable

mental state applies to each material element of the offense that necessarily

requires a culpable mental state.

“(2) Except as provided in ORS 161.105, if a statute defining an offense

does not prescribe a culpable mental state, culpability is nonetheless required

and is established only if a person acts intentionally, knowingly, recklessly or

with criminal negligence.”

First-degree theft is defined in ORS 164.055 as “theft as defined in ORS 164.015,”

committed under certain enumerated circumstances, including, as applicable

here, when the value of the amount taken is $1,000 or more. ORS 164.055(1)(a).

That provision contains no culpable mental state, and, therefore, ORS 161.115(2)

suggests that the applicable mental state for the crime of first-degree theft is

at least criminal negligence. However, ORS 164.015, which defines “theft,” pre-

scribes an intentional culpable mental state: “A person commits theft when, with

intent to deprive another of property,” the person commits certain enumerated

acts. It could be argued that the reference to the theft statute prescribes an inten-

tional mental state that should apply to all elements of the crime of first-degree

theft. See ORS 161.115(1) (prescribed mental state applies “to each material ele-

ment of the offense that necessarily requires a culpable mental state”).

Cite as 370 Or 255 (2022) 271

with criminal negligence with respect to his awareness of

the value of the property taken—here, that the value of the

bundle of money was $1,000 or more. “Criminal negligence”

means that a person “fails to be aware of a substantial and

unjustifiable risk that * * * the circumstance exists.” ORS

161.085(10). “The risk must be of such nature and degree

that the failure to be aware of it constitutes a gross devi-

ation from the standard of care that a reasonable person

would observe in the situation.” Id.

We agree with the state that there is little likeli-

hood that the error affected the verdict. Jurors with com-

mon knowledge about ATMs, including the kinds of denomi-

nations of bills typically in an ATM, and about the interests

of a bar owner in maintaining the cash levels in the ATM for

customers to use it, would have understood that the circum-

stances indicated a substantial risk that a large amount of

money, at least $1,000, was in the stack. Assuming that the

jury would have concluded that defendant nevertheless was

unaware of that risk, the jury would then have to consider

the nature of the risk and whether defendant’s failure to be

aware of it was a gross deviation from the standard of care

that a reasonable person would observe in that situation. On

that question, defendant argues that the evidence reflects

that he took the money quickly and that he and others did

not know from looking at the bundle from a distance how

much money was in it or what amount was printed on the

bank band. But that argument goes more to defendant’s lack

of knowledge of the exact amount of the cash rather than to

the substantial risk that the amount was significant. The

evidence reflected that, before he took the cash, defendant

sat near the ATM in a video poker area and watched the

bar owner prepare to fill the ATM with a sizeable bundle

of cash, specifically 100 bills secured with a bank band. In

view of that evidence, defendant’s failure to be aware of the

substantial and unjustifiable risk that the cash was worth

a significant amount, at least $1,000, was a gross deviation

from the standard of care that reasonable people would exer-

cise. For those reasons, we conclude that the trial court’s

error in failing to give defendant’s requested jury instruc-

tions requiring the state to prove that he was criminally

negligent with respect to the value of the property taken

272 State v. Shedrick

had little likelihood of affecting the verdict and therefore

was harmless.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.