State v. Fuller

No. 47 October 3, 2013 295

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

TAWANNA D. FULLER,

aka Tawana Divier Fuller,

Respondent on Review.

(CC 100748130; CA A147724; SC S060808)

En Banc

On review from the Court of Appeals.*

Argued and submitted June 5, 2013.

Jeremy C. Rice, Assistant Attorney General, Salem,

argued the cause for petitioner on review. With him on the

brief were Ellen F. Rosenblum, Attorney General, and Anna

M. Joyce, Solicitor General.

Karen J. Mockrin, Portland, argued the cause and filed

the brief for respondent on review.

Cody Hoesly, Larkins Vacura LLP, Portland, Cooperating

Attorney for ACLU Foundation of Oregon, Inc. and Kevin

Diaz, Legal Director, ACLU Foundation of Oregon, Inc.,

filed a brief in support of the respondent on review.

BREWER, J.

The decision of the Court of Appeals is affirmed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

______________

*  Appeal from Multnomah County Circuit Court, Michael Zusman, Judge.

252 Or App 391, 287 P3d 1263 (2012).

296 State v. Fuller

Defendant appeals from her conviction for third-degree theft and attempted

first-degree theft arguing that the circuit court erred in rejecting her assertion

of her right to a jury trial and other protections under Article I, section 11, of

the Oregon Constitution. In July 2010, defendant was accused of shoplifting,

and she was arrested and briefly incarcerated. Defendant was charged with

third-degree theft, a Class C misdemeanor, and attempted first-degree theft, a

Class A misdemeanor. At defendant’s arraignment, the state elected under ORS

161.566(1) to prosecute the charges as violations rather than misdemeanors.

Defendant filed a motion to have the charges tried to a jury and to be proved

guilty beyond a reasonable doubt, contending that she was entitled to those

protections even though the state was prosecuting the charges as violations. The

trial court denied the motion and found defendant guilty on both charges by a

preponderance of the evidence. Defendant appealed. Held: For the reasons set

out in State v. Benoit, 354 Or __, __ P3d __ (2013), also decided today, the circuit

court erred in rejecting defendant’s assertion of her right to a jury trial and other

protections under Article I, section 11, of the Oregon Constitution.

The decision of the Court of Appeals is affirmed. The judgment of the circuit

court is reversed, and the case is remanded to the circuit court for further

proceedings.

Cite as 354 Or 295 (2013) 297

BREWER, J.

Like the defendant in State v. Benoit, 354 Or 302, __

P3d __ (2013), also decided today, defendant in this case was

arrested and incarcerated on misdemeanor charges that

the state later reduced to violations under ORS 161.566(1).1

The issue is whether the prosecutor’s election to treat the

offenses as violations precluded defendant from asserting

her right to a jury trial and other protections under Article I,

section 11, of the Oregon Constitution. Consistently with our

decision in Benoit, we conclude that the circuit court erred

in rejecting defendant’s demand for those protections and

that the Court of Appeals correctly reversed defendant’s

convictions after a trial to the court. Accordingly, although

the basis for our decision differs in some respects from that

of the Court of Appeals, we affirm the decision of the Court

of Appeals, reverse the judgment of the circuit court, and

remand the case to the circuit court.

In July 2010, defendant was accused of shoplifting,

and she was arrested and briefly incarcerated. Defendant

was charged with third-degree theft, a Class C misdemeanor,

and attempted first-degree theft, a Class A misdemeanor.

At defendant’s arraignment, the state elected under ORS

161.566(1) to prosecute the charges as violations rather than

misdemeanors. Defendant filed a motion to have the charges

tried to a jury and to be proved guilty beyond a reasonable

doubt, contending that she was entitled to those protections

even though the state was prosecuting the charges as vio-

lations. The trial court denied the motion and found defen-

dant guilty on both charges by a preponderance of the

evidence. Defendant was fined $300 on each conviction.

Defendant appealed, asserting that the trial court

erred in denying her motion because the proceeding retained

characteristics that made it a “criminal prosecution” for pur-

poses of Article I, section 11, notwithstanding the prosecu-

tor’s election to treat the charges as violations. The state

1

The 2009 version of ORS 161.566 was in effect when defendant allegedly

committed her offense. However, because the 2011 version of the statute is iden-

tical in most material respects to the 2009 version, for convenience, we refer to the

current version of the statute in this opinion unless otherwise indicated. We set

out relevant text of ORS 161.566 later in this opinion.

298 State v. Fuller

responded that a violation case is not a criminal prosecution

and that defendant was not entitled to a jury trial and to a

standard of proof requiring evidence of her guilt beyond a

reasonable doubt. The Court of Appeals agreed with defen-

dant, and reversed and remanded the case. State v. Fuller,

252 Or App 391, 287 P3d 1263 (2012). The state now seeks

review.

ORS 161.566 provides, in part, that, except for mis-

demeanors created under the vehicle code,

“(1)  * * * a prosecuting attorney may elect to treat any

misdemeanor as a Class A violation. *  * If no election is

*

made within the time allowed, the case shall proceed as a

misdemeanor.

“(2)  * * * Notwithstanding ORS 153.018, the maximum

fine that a court may impose upon a conviction of a violation

under this section may not exceed the amount provided

in ORS 161.635 for the class of misdemeanor receiving

violation treatment.”

As discussed in Benoit, this court determined in

Brown v. Multnomah County Dist. Ct., 280 Or 95, 100-02,

570 P2d 52 (1977), that the legislature may decriminalize

minor offenses by enacting a system to prosecute violations,

but, in doing so, may not deny an accused the right to a jury

trial under Article I, section 11, if the proceeding retains

attributes of a “criminal prosecution.” Id. at 102-04. In Brown,

the court outlined five factors that bear on whether a vio-

lation proceeding is so similar to a criminal proceeding that

the constitutional right to a jury trial attaches: (1) the type

of offense, including, for example, whether the offense was a

crime at common law, or whether it involves traditional ele-

ments of mens rea or a lower degree of culpability; (2) the

penalty incurred, and, specifically, whether there is the poten-

tial for imprisonment or a heavy fine; (3) collateral conse-

quences, such as, in Brown, the revocation or suspension of

a driver license; (4) punitive significance of the prosecution,

that is, whether a judgment is stigmatizing and condem-

natory; and (5) the role, if any, of pretrial arrest and deten-

tion. Id. at 102-09. The court stated, further, that “[a]ll

[of those factors] are relevant, but none is conclusive” in

reaching the “ultimate determination” whether a proceeding

Cite as 354 Or 295 (2013) 299

is a “criminal prosecution” for constitutional purposes.2 Id.

at 102. Applying those factors in Brown, the court concluded

that a DUII proceeding was properly characterized as a

criminal prosecution. Id. at 109-10.

In deciding this case, the Court of Appeals applied

the Brown factors and determined that prosecuting defen-

dant for third-degree theft and attempted first-degree theft

“retains too many characteristics of a criminal prosecu-

tion to deny defendant the protections of a jury trial and

an evidentiary standard of proof of the offenses beyond a

reasonable doubt.” Fuller, 252 Or App at 399. In doing so,

the court reasoned that society has long considered theft to

be a crime and, therefore, it would be difficult for the public

“to discriminate between the significance of a conviction for

theft [as] a misdemeanor” versus a violation. Id. at 397-98.

The court further noted that, under ORS 161.566 (2009), the

penalty for a misdemeanor charged as a violation would be

the same as if the charge was tried as a misdemeanor, and

that defendant was subject to criminal procedures—that is,

arrest and detention—before her arraignment.

In its petition for review, the state asserted that the

Court of Appeals improperly relied on erroneous conclusions

that this court had reached in Brown; alternatively, the

state argued that the Court of Appeals misapplied the

Brown factors. In its brief on the merits, the state no longer

challenges Brown; instead, the state asserts, as it did in

Benoit, that a proper application of the Brown factors compels

the conclusion that, after the prosecutor elected to treat the

charges against defendant as violations, the constitutional

protections afforded to defendant under Article I, section 11,

no longer applied.

The state’s arguments in its brief on the merits

mirror its arguments in Benoit. In particular, the state urges

that, because defendant did not face the risk of additional

incarceration if convicted of violation-level offenses after

the prosecutor elected to reduce the charges, the ensuing

proceeding presumptively was not a criminal prosecution.

2

After considering those indicia, the court in Brown concluded that the first

DUII offense retained “too many penal characteristics” not to be a criminal prose-

cution for purposes of Article I, section 11. Id. at 109-11.

300 State v. Fuller

We rejected the identical argument in Benoit and will not

repeat our discussion of that issue here. Benoit, 354 Or at

312-13.

Insofar as the overall application of the Brown factors

is concerned, if anything, the first and second Brown factors

tilt more strongly in this case than in Benoit toward the

conclusion that defendant faced a criminal prosecution under

Article I, section 11. With respect to the “type of offense”

factor, as we stated in Benoit, even though the legislature has

authorized a prosecutor to reduce the crimes of attempted

first-degree theft and third-degree theft to violations, the

legislature nonetheless has declared those offenses to be

a crime. Benoit, 354 Or at 312-13. Those declarations are

consistent with the fact that theft is generally regarded as a

crime involving dishonesty. In re Kimmell, 332 Or 480, 488-

89, 31 P3d 414 (2001); State v. Gallant, 307 Or 152, 157, 764

P2d 920 (1988). Furthermore, as the Court of Appeals noted,

“the prohibition against theft predates our constitutions and

the common law,” and “a conviction for theft has always

required proof of mens rea.” Fuller, 252 Or App at 397.

The “penalty” factor also weighs in defendant’s favor

here. Brown, 280 Or at 103-05. Although incarceration was

not an available sanction against defendant on conviction,

she was exposed to the risk of imposition of the harshest pos-

sible fine for a misdemeanor conviction, $6,500. See 161.566(2);

(3). The legislature’s determination not to downgrade the

maximum misdemeanor-level fines for violation-level con-

victions in the statutory regime that applies to the charges

against defendant weighs in favor of the conclusion that it

chose to allow prosecutors to decriminalize the process, not

the offense.3

Finally, and importantly, defendant was arrested

and incarcerated for theft-related crimes. No subsequent

election by the state to purportedly decriminalize the charges

could change the fact that defendant was subjected to those

uniquely criminal procedures and their stigmatizing effect.

3

As discussed in Benoit, in 2011, the legislature amended ORS 161.566(2) to

provide that, in reduced misdemeanor cases, the fine structure for violations, not

misdemeanors, applies. ORS 161.566(2) (2011). However, the parties agree that

that amendment is not applicable in this case.

Cite as 354 Or 295 (2013) 301

Benoit, 354 Or at 316. As we explained in Benoit¸ particularly

in a case in which the accused already has been subjected

to pretrial arrest and detention, a prosecutor’s election to

reduce the charges to violations does not deprive the accused

of the right to a jury trial. Id. at 317.4 Accordingly, the trial

court erred in denying defendant’s request for a jury trial.

We turn briefly to the issue of defendant’s request for

application of the standard of proof that applies in “criminal

prosecutions.” Defendant’s argument in that regard mirrors

her argument concerning her right to a jury trial. The state

has not developed any distinct argument on review concern-

ing the applicable standard of proof. Without some reason

for reaching a different conclusion regarding the standard of

proof, we affirm the Court of Appeals decision with respect

to that issue.

The decision of the Court of Appeals is affirmed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.

4

There is no need to discuss the remaining Brown factors at length. As was

the circumstance in Benoit, defendant here does not assert that adverse collateral

consequences will flow from an adjudication in this case. We also conclude that

determining the punitive significance of violation-level theft convictions is fraught

with difficulty, see Brown¸ 280 Or at 106, and not a particularly helpful exercise in

contrast to the application of other factors in this case.