The Court of Appeals Misses an Easy One
by: Ryan Scott • September 22, 2019 • no comments
On Sept 11, 2019, the Court of Appeals issued a per curiam opinion in State v. Morales.
The date is notable only because the case was argued on January 17th. Eight months is a long time to wait for a per curiam opinion. In it, the Court reiterates its holding from State v. Jones that no mental state applies to dollar value in a theft case, and it references State v. Civil for the high bar of reversing precedent.
The issue can be understood this way: when a person steals an item worth more than $1000, he doesn't need to know the item is worth more than a thousand dollars. He simply needs to know he's stealing it. What defense attorneys have argued is that, under the law, he must at least be criminally negligent as to the value, for the simple reason that for all crimes in the criminal code, a mental state must apply to each material element, and "criminal negligence" is the lowest mental state that could apply.
Obviously, it's not going to matter in most theft cases. If you embezzle $5000, then we can be confident you were negligent that you were stealing more than $1000. But take this real-life scenario: you steal a bike that's worth $800 that someone left unlocked on the sidewalk. You don't know that it's part of a bike-sting operation, and inside the bike is a tracking device worth $250. If no mental state applies to dollar value, then you're guilty of felony theft. If criminal negligence applies, then maybe you're only guilty of misdemeanor theft.
In light of Supreme Court precedent that post-dates Jones, there is every reason to believe that under the law "criminal negligence" does in fact apply to dollar value. Reading between the lines, one could take the Morales opinion as an invitation to the Oregon Supreme Court to overrule Jones. And if the only problem with the Morales opinion was perhaps showing too much deference to precedent when it should obviously be ovverruled, then I might disagree with the Court of Appeals but also respect the position it has taken.
The problem, however, is that there is no reason to overrule Jones, because Jones simply doesn't say what the COA says it does. If you think it's arrogant of me to assume I know better than the COA of what one of their own cases meant, you might be right. But before you judge me too harshly, keep in mind that my opinion is the same one as the author of Jones.
Jones was written by then-Judge David Brewer. Contrary to what the Morales court stated, it ruled only that a "knowing" mens rea does not apply to dollar value. We know this because this is how Supreme Court Justice Brewer referenced Jones in his Simonov opinion:
- See State v. Jones, 223 Or.App. 611, 621, 196 P.3d 97 (2008), rev. den., 345 Or. 618, 201 P.3d 909 (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). [Emphasis in original.]
That emphasized "knew" gives the game away. He cabins the holding in Jones so that it applies exclusively to a single mental state, not every mental state. This is especially clear when you read Simonov in full.
I have gone on record many times over the past few years stating how much I admire and respect the Court of Appeals. This opinion doesn't change that. At the same time, they've kicked upstairs a decision they should have made, based on nothing more than a misreading of one of their own cases. And for those defendants -- small in number to be sure -- who would benefit from a proper application of the law, they're out of luck.