State v. Bealey

                               806

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
       Submitted April 12, reversed and remanded May 10, 2023


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                 AMIAH NOEL BEALEY,
                   aka Amiah N. Bealey,
                   Defendant-Appellant.
                 Coos County Circuit Court
                   20CR34679; A176699


  Martin E. Stone, Judge.
  Frances J. Gray filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
  SHORR, P. J.
  Reversed and remanded.
Nonprecedential Memo Op: 

 (2023)                              807

           SHORR, P. J.
         Defendant appeals a judgment of conviction for
theft in the second degree, ORS 164.045, raising two assignments of error, both relating to the trial court’s failure to
instruct the jury on a culpable mental state for the “value of
the property” element of the theft charge.
         The facts of this case are identical to those set forth
in our recent case, State v. Baker, 

, 

 (2023), which involved defendant’s codefendant.
Briefly, defendant and her codefendant, Baker, took bags
of potting soil and various plants from Fred Meyer without paying for the items. An Asset Protection Manager for
the store confirmed that the total value of the merchandise
was $165. At trial, the court rejected defendant’s request to
instruct the jury that, in order to find defendant guilty, it
had to find that defendant was at least criminally negligent
as to the value of the property being $100 or more.1
         Defendant now assigns error to the court’s failure
to give the requested instruction and asserts that the jury
instructions did not correctly state the law.2 In light of recent
Supreme Court authority, including State v. Shedrick, 

, 

 (2022) and State v. Owen, 

,

 (2022), and our opinion in State v. Prophet, 

, 

 (2022), the state concedes that the
trial court erred by not giving the requested instruction. We
agree with and accept the concession. However, the state
argues that the error was harmless.
        For the reasons set forth in Baker, we conclude that
this was not harmless error. Baker, 325 Or app at 369-71.

    1
      Defendant’s requested instructions included adding a fourth element to
Theft in the Second Degree by Taking: “[defendant] was criminally negligent as
to the value of the property being a hundred dollars or more.” She also requested
the court instruct the jury as follows regarding the definition of “criminally
negligent”:
         “A person acts with criminal negligence if that person fails to be aware
    of a substantial and unjustifiable risk that a particular circumstance exists.
    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 a situation.”
    2
      Unlike in Baker, the parties do not dispute that the issue is preserved in
this matter.
808                                           State v. Bealey

There was no evidence presented regarding the number of
bags of potting soil and plants taken; there was no evidence
that the prices of the items were clearly visible on the items
themselves or on their displays; and it is not clear that the
prices of potting soil and plants are common knowledge in
the way that the Supreme Court considered the value of a
bundle of 100 $20 bills to be in Shedrick. Shedrick, 

. In the circumstances of this case, we cannot be certain that the jury would have concluded beyond a reasonable
doubt that defendant was at least criminally negligent as
to the fact that the property was worth $100 or more. State
v. Perkins, 

, 

 (2023).
Because the failure to give a jury instruction as to the mental state for the value of the property element may have
affected the outcome of the trial, we reverse and remand.
        Reversed and remanded.