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Known Knowns and Should Have Knowns: the State's Soon-to-Be-Requested Special Instruction for PSV

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by: Ryan • May 12, 2011 • no comments

It's never fun to nitpick an appellate opinion that's quite favorable to the defense. Not unlike being the only sober person at a party. You probably won't have as much fun, and you put a damper on everyone else's fun a little bit too.

But there's a flaw in the State v. Noe decision that may come back to bite you, if you plan to go to trial on a Possession of a Stolen Vehicle case.

The court - before deciding that UUV and PSV merge - had this to say.

The state argues, and we agree, that UUV, as charged in this case, requires proof of a "knowing" mental state, while PSV as charged requires only that defendant commit the theft "ha[ving] reason to believe that" the vehicle was stolen. Thus, UUV requires proof of an element that PSV does not have: knowledge.

Wrong, wrong, wrong. The two have exactly the same mental state requirement, which is that the defendant must have known the vehicle was stolen or believed it was stolen. But don't take my word for it.

For the reasons stated above we find the statutory phrase, "having good reason to know," to be ambiguous. We resolve the ambiguity by interpreting it to mean belief by the defendant. The limitations of language in conveying ideas are such that resolution of ambiguities is many times only a matter of degree. Nevertheless, even if absolute precision is not attainable, jury instructions should be couched in as unambiguous terms as can be devised. To meet the requirements of Aschenbrenner and Redeman, an instruction dealing with the provisions of ORS 164.095 should simply advise a jury that the culpable mental state required is actual knowledge on the part of the defendant, or belief by the defendant that the property was the subject of theft.

State v. Thomas, 13 Or App 164, 173 (1973) [Emphasis added.]

The Oregon Supreme Court has adopted the Thomas analysis:

We approve the decision in State v. Thomas, supra. A finding of either actual knowledge or a belief by the defendant that the property was stolen is essential to a conviction for theft by receiving. State v. Korelis, 273 Ore. 427, 429 (1975). [Emphasis added.]

So, if you're going to trial on a PSV, expect the prosecutor to ask for an instruction that says that it is sufficient to convict if the defendant "should have known" that the vehicle was stolen, relying on Noe. Object, cite the above authority, and after the jury is sworn, except to the instruction, if necessary.