1
Submitted on remand from the Oregon Supreme Court December 29, 2022;
conviction on Count 2 reversed and remanded, remanded for resentencing,
otherwise affirmed February 1, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
ASHLEY ANNETTE BOGGS,
Defendant-Appellant.
Gilliam County Circuit Court
17CR69412; A169278
524 P3d 567
On remand from the Supreme Court in light of State v. Shedrick, 370 Or
255,
518 P3d 559 (2022), in which the court held that a culpable mental state
other than knowledge attaches to the property-value element of theft in the first
degree, the Court of Appeals reconsidered its opinion in State v. Boggs,
310 Or
App 164,
483 P3d 686 (2021). Held: The Court of Appeals adhered to its original disposition, affirming defendant’s conviction on Count 1 of theft in the first
degree and reversing the conviction on Count 2 of theft in the first degree, which
had been decided by a nonunanimous verdict. In its reconsideration of Count 1,
the Court of Appeals applied the analysis required by Shedrick, concluding that
the value of the stolen property was an element of the offense for which the state
was required to prove a mens rea. And, as in Shedrick, assuming a culpable mental state of criminal negligence, the court held that the state was required to
prove that defendant acted with criminal negligence with respect to her awareness that the value of the stolen property was at least $1,000. The court thus
concluded that the trial court thus erred in failing to give an instruction on a
required mental state. But the court further concluded that the error was harmless, because, based on the evidence at trial, the jury was required to find that
defendant was at least negligent with respect to the value of the property—i.e.,
that there was a substantial and unjustifiable risk that the value of the stolen
property was at least $1,000, and that the defendant’s failure to be aware of the
risk was a gross deviation from the standard of care that a reasonable person
would observe in that situation.
Conviction on Count 2 reversed and remanded; remanded for resentencing;
otherwise affirmed.
On remand from the Oregon Supreme Court, State v.
Boggs, 370 Or 471,
520 P3d 882 (2022).
Janet L. Stauffer, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah Laidlaw, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
2 State v. Boggs
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Conviction on Count 2 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Cite as 324 Or App 1 (2023) 3
TOOKEY, P. J.
This case is on remand from the Supreme Court for
reconsideration of our original opinion, State v. Boggs, 310
Or App 164,
483 P3d 686 (2021), in light of State v. Shedrick,
370 Or 255,
518 P3d 559 (2022), in which the court held that
a culpable mental state other than knowledge attaches to
the property-value element of theft in the first degree. On
remand, we adhere to our original disposition.
In this case, defendant was found guilty by jury verdict of two counts of theft in the first degree. Boggs, 310 Or
App at 165. A jury poll indicated that the verdict was unanimous on Count 1 but not unanimous on Count 2. On appeal,
defendant claimed in his first and second assignments of
error that the trial court erred in rejecting a requested
jury instruction relating to mens rea as to the value of the
property stolen.
Id. We rejected those assignments, citing our opinion in State v. Stowell,
304 Or App 1,
466 P3d
1009 (2020), in which we held that no culpable mental state
applies to the property-value element of first-degree theft.1
But we reversed the conviction on Count 2, which was based
on a nonunanimous verdict, and remanded the case for
resentencing, and therefore did not reach defendant’s sixth
assignment of error, which challenged the imposition of a
fine on Count 1.
Id.
Defendant filed a petition for review with the Supreme
Court, and the court has remanded the case to us for reconsideration of defendant’s first and second assignments of
error in light of Shedrick. The defendant in Shedrick had
been charged with theft in the first degree for taking a bundle of cash off the top of an ATM machine. He requested a
jury instruction that the culpable mental state for the value
of the property taken was criminal negligence. The court
in Shedrick overruled our conclusion in Stowell that no
1
In Stowell, relying on State v. Jones, 223 Or App 611,
196 P3d 97 (2008),
rev den,
345 Or 618 (2009), we rejected the defendant’s argument that, because
ORS 164.055 and ORS 164.015 do not “explicitly provide for a culpable mental
state with regard to the value of the property that is the subject of a theft,” the state
is required to prove at least criminal negligence with respect to that element.
Stowell,
304 Or App at 11 (emphasis in original). We thus held in Stowell that the
trial court had not erred in refusing to give the defendant’s proposed “negligently
unaware” jury instruction for first-degree theft.
304 Or App at 12.
4 State v. Boggs
culpable mental state applies to the property-value element
of first-degree theft.
370 Or at 269. The court held that, in a
prosecution for first-degree theft, the stolen property’s value
is a material element of the offense that the state must prove
and that requires a culpable mental state.
Id.
However, the court did not decide in Shedrick what
the required mental state would be for the property-value
element of the offense. The state had agreed with the
defendant in Shedrick that, if a culpable mental state was
required for the property-value element, as a “circumstance”
element, the required mental state would be criminal negligence. In light of the parties’ arguments, the court assumed,
without deciding, that the applicable culpable mental state
for the property-value element is criminal negligence. Id. at
270.
The court then determined that the trial court’s
error in failing to give the requested jury instruction was
harmless, concluding that there was little likelihood that
the error affected the verdict. See State v. Owen, 369 Or 288,
323,
505 P3d 953 (2022) (Notwithstanding error, the court
will affirm a judgment of conviction if it determines that
“there was little likelihood that the error affected the verdict.”). In determining harmlessness based on the assumed
culpable mental state of criminal negligence, the court considered the specific evidence at trial, the nature of criminal negligence, and “common knowledge” that jurors can be
expected to have. Shedrick,
370 Or at 271. The court noted
the statutory definition of “criminal negligence.” A person is
criminally negligent if the 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 deviation from the standard of care that a reasonable
person would observe in the situation.”
Id.
The court in Shedrick said that, in order to prove
that the error in failing to give the instruction was harmless, the state was required to prove (1) that there was a
substantial and unjustifiable risk that the money left on
the top of the ATM was at least $1,000; and (2) that the
defendant’s “failure to be aware of [the risk that there was
Cite as 324 Or App 1 (2023) 5
more than $1,000] was a gross deviation from the standard
of care that a reasonable person would observe in that situation.”
370 Or at 271. The court concluded that the evidence
at trial required the conclusion that there was a substantial
and unjustifiable risk that the value of the amount taken
exceeded $1,000, reasoning that “[j]urors with common
knowledge about ATMs, including the kinds of denominations 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 circumstances indicated a substantial risk that a large amount of
money, at least $1,000, was in the stack.”
Id. The court further concluded that, assuming the jury would have found
that the defendant was nonetheless unaware of that risk,
the evidence at trial would have required the jury to find
that, considering the nature of the risk, the 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.
Id. The court ultimately concluded that there was
little likelihood that the jury would not have found that the
defendant was at least criminally negligent with respect to
his awareness that “a sizeable bundle of cash” for refilling
an ATM “was worth a significant amount.”
Id. Thus, despite
the trial court’s error in failing to give the requested instruction, the Supreme Court upheld our affirmance of the defendant’s conviction.
After Shedrick, the Supreme Court allowed review
in this case and has remanded the case to us to reconsider
defendant’s first and second assignments of error, relating
to the trial court’s failure to give the requested jury instruction on the mens rea as to the value of stolen property. Here,
defendant was charged by indictment with two counts of
first-degree theft, arising out of a theft of household fixtures,
a boat, and other items from a house in which defendant
had been living. ORS 164.055(1)(a) provides that a “person
commits the crime of theft in the first degree if, by means
other than extortion, the person commits theft as defined in
ORS 164.015 and … [t]he total value of the property in a
single or aggregate transaction is $1,000 or more.” The stolen items consisted of eight gallons of paint valued at $20.50
per gallon, a refrigerator valued at $1,167.30, a stove valued
6 State v. Boggs
at $449.10, a hand-made cabinet valued between $469 and
$796, a high-capacity dual-flush elongated toilet valued at
$216, a sink faucet valued at $100, a 12-foot aluminum fishing boat valued at approximately $1,000, and a motor, seats,
life jackets, and a fishing net.
As in Shedrick, the trial court declined to give a jury
instruction requested by defendant as to a mental state of
negligence with respect to the value of the stolen property.2
As in Shedrick, we conclude that the value of the stolen property was an element of the offense for which the state was
required to prove a mens rea. And, as in Shedrick, assuming a culpable mental state of criminal negligence, the state
was required to prove that defendant acted with criminal
negligence with respect to her awareness that the value of
the stolen property was at least $1,000. The trial court thus
erred in failing to give an instruction on a required mental
state.
As the Supreme Court noted in Shedrick, the mens
rea of criminal negligence includes two components: (1) A
failure of the person “to be aware of a substantial and
unjustifiable risk that … the circumstance exists,” ORS
161.085(10); and (2) a risk “of such nature and degree that
the failure to be aware of it constitutes a gross deviation
from the standard of care that a reasonable person would
observe in the situation.” Id. Here, as in Shedrick, we conclude that any error by the trial court in failing to instruct
the jury on criminal negligence was harmless, because there
is little likelihood that the error affected the verdict. Jurors
with common knowledge about the values of the various
stolen items, including the appliances and boat, would have
understood that the circumstances indicated a substantial
risk that the value of the stolen property was at least $1,000.
2
The requested instruction stated:
“For theft in the first degree, in order to find the defendant guilty, you
must find she was negligently unaware that the value of the property [taken]
was valued at $1000 or more.
“To find that she was negligently unaware that the value of the property
[taken] was more than $1000, you must find she failed to be aware of a substantial and unjustifiable risk that the property was valued at $1000 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 reasonable
person would observe in the situation.”
Cite as 324 Or App 1 (2023) 7
Assuming, as the court did in Shedrick, that the jury
would have found that defendant nevertheless was unaware
of that risk, the jury would then have had 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.
370 Or at 271. The evidence at trial would have required
the jury to find that defendant’s failure to be aware of the
risk was a gross deviation: The evidence was that the refrigerator and the oven were in relatively new condition and
that the toilet was a higher model. At the time of the theft,
defendant had lived in the house from which the property
was stolen for ten days, and defendant was thus familiar
with the stolen property and its condition. In view of that
evidence, defendant’s failure to be aware of the substantial
and unjustifiable risk that the stolen property was worth at
least $1,000 was a gross deviation from the standard of care
that reasonable people would exercise. Thus, as in Shedrick,
it is unlikely that the jury would not have concluded that
defendant was criminally negligent. For those reasons, we
conclude that the trial court’s error in failing to give defendant’s requested jury instructions requiring the state to
prove that she was criminally negligent with respect to the
value of the stolen property had little likelihood of affecting
the verdict and therefore was harmless. We therefore adhere
to our original disposition affirming defendant’s conviction
on Count 1.
Conviction on Count 2 reversed and remanded;
remanded for resentencing; otherwise affirmed.
