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The Standard Theft-by-Taking Jury Instruction is Wrong

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by: Ryan Scott • May 10, 2017 • no comments

I've written on this before, in the hope I can get some defense attorney to preserve the issue. Here I go again.

In State v. Simonov, the Oregon Supreme Court lays out the law on applying which mental states to which elements.  The charge was UUV, but it's a great place to start if you ever have any questions about mental states and material elements.  

In his opinion, Justice Brewer points out that the "knowing" mental state is the lowest applicable mental state that can be applied to conduct.  When it comes to results and circumstances, the lowest applicable mental state is criminal negligence.  He points out that if a crime is in the criminal code, and no mental state is explicitly applied to a particular element, then the lowest possible mental state applies, which, in the case of a conduct element, is "knowingly" and in the case of a circumstance element is "negligently."

He briefly uses theft to highlight the difference between conduct and circumstance, specifically the fact that value of an item is a circumstance.

The theft statutes provide an example of the role of circumstance elements in a criminal offense. “Theft” in any degree is defined by ORS 164.015, which describes the prohibited conduct (the taking of property) and the applicable mental state (intent to deprive another of property). The prohibited conduct for theft in any degree is the taking of another’s property with the intent to deprive the owner of it. Id. A person commits first-degree theft when the person commits theft as defined in ORS 164.015, and the value of the property is $1,000 or more. ORS 164.055. If the value of the property is $100 or more and less than $1,000, the person commits second-degree theft, and if the value of the property is less than $100, the person commits third-degree theft. ORS 164.045 (second-degree theft); ORS 164.043 (third-degree theft).

But what he says next is what's most important.  He cites St v Jones, a COA case (authored by then-Chief Justice of the Court of Appeals, David Brewer) that specifically involves whether one should apply a knowing mental state to the value of items stolen.  And he summarizes Jones as follows:

The specific value of the stolen property does not change the essential character of the prohibited conduct. Accordingly, the value of the stolen property for any degree of theft is a circumstance; it is an accessory fact that accompanies, not modifies, the defendant’s conduct. See State v. Jones, 223 Or App 611, 621, 196 P3d 97 (2008), rev den, 345 Or 618 (2009) (holding that, under a prior version of the first-degree theft statute requiring proof that the value of the property was over $750, the state was not required to prove that the defendant knew that the value of the property exceeded $750). [Italics in original.]

So read that last sentence again, and please put emphasis on "knew."  When you do, you'll realize the Simonov author is not saying Jones stands for the idea that no mental state applies to value.  He's only saying "knowing" doesn't apply to value.

So to summarize what this means:

(1)   Theft is in the criminal code.
(2)   Every material element for a crime in the criminal code must have an applicable mental state attached, unless the legislature explicitly says otherwise.
(3)   The lowest possible mental state for a circumstance element is criminal negligence.
(4)   Value in theft cases is a circumstance element.
(5)   "Knowingly" doesn't apply to value.

Put that altogether and there is no doubt criminal negligence applies to the value of property stolen.  It won't help if your client is accused of taking $1000 in cash, but it definitely helps if he had no particular reason to think the backpack he took contained $1000 worth of sunglasses and schoolbooks.

Please, please, please, don't go to trial on theft by taking (felony or A misdemeanor) without preserving this argument.