State v. Braglin

504                   March 13, 2024                No. 174

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
               GEORGIA ANN BRAGLIN,
                 Defendant-Appellant.
               Coos County Circuit Court
                 21CR62054; A179281

  Brett A. Pruess, Judge.
  Submitted February 7, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and James Brewer, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
  AOYAGI, P. J.
  Reversed and remanded.
Nonprecedential Memo Op: 

 (2024)                               505

           AOYAGI, P. J.
         A jury convicted defendant of first-degree theft, ORS
164.055, for stealing jewelry from her roommate. Defendant
assigns error to the trial court’s failure to instruct the jury
that a culpable mental state applies to the property-value element of first-degree theft. At trial, defendant requested special instructions defining criminal negligence and requiring
the state to prove that defendant “was criminally negligent
as to the value of the property being $1,000 or more.” The
court declined to give those instructions. That ruling was
consistent with case law at the time, but the Supreme Court
subsequently held that the property-value element of theft
requires a culpable mental state. State v. Shedrick, 

, 

 (2022). For the reasons described
below, we reverse and remand for a new trial.
         Defendant makes two arguments in the alternative on appeal. First, she argues that the requisite mental
state for the property-value element of first-degree theft is
intentional and that the trial court plainly erred by failing to instruct the jury that the state had to prove that
she intended to steal $1,000 or more of jewelry.1 We reject
that argument. The claimed error is not “plain,” because it
is not obvious and is reasonably in dispute which culpable
mental state applies to the property-value element of first-degree theft. See Shedrick, 

 n 2 (holding that
the property-value element of theft carries a mental-state
requirement, such that it was error not to give any mental-state instruction, but leaving open the question of the specific mental state required); State v. Horton, 

, 

 (2023) (rejecting a plain-error argument regarding the specific mental state required for the
property-value element of criminal mischief in the first or
second degree). Moreover, defendant specifically requested a

    1
      “Generally, an issue not preserved in the trial court will not be considered
on appeal.” State v. Wyatt, 

, 

 (2000). However, we have
discretion to correct a “plain” error. ORAP 5.45(1). An error is “plain” when it is
an error of law, the legal point is obvious and not reasonably in dispute, and the
error is apparent on the record without our having to choose among competing
inferences. State v. Vanornum, 

, 

 (2013). It is a matter
of discretion whether we will correct a plain error. State v. Gornick, 

, 

 (2006).
506                                                        State v. Braglin

criminal-negligence instruction, so she invited any error in
not giving an “intentional” mental-state instruction.
          Defendant’s second argument is that the trial court
erred by failing to give the criminal-negligence instructions that she requested. Had the jury been instructed as
requested, it would have understood that, to find defendant
guilty, it had to find that she “fail[ed] to be aware of a substantial and unjustifiable risk” that the stolen jewelry was
worth $1,000 or more, with the risk being “of such nature
and degree that the failure to be aware of it constitute[d] a
gross deviation from the standard of care that a reasonable
person would observe in the situation.” ORS 161.085(10).
         The state concedes that the trial court erred in not
instructing the jury on criminal negligence but argues that
the error was harmless. See State v. Davis, 

, 

 (2003) (an error is harmless, and thus not a basis
for reversal, where there is “little likelihood that the error
affected the jury’s verdict”); State v. Perkins, 

, 

 (2023) (a federal constitutional
error is harmless, and thus not a basis for reversal, if the
state proves beyond a reasonable doubt that the error did
not contribute to the verdict).2
         We are unpersuaded that the error was harmless.
The jewelry box that defendant stole contained a mix of
“real” and “costume” jewelry. Defendant told a police officer
that she took the jewelry “out of spite,” after an argument
with the victim, and it is unclear how familiar she was with
its contents when she took it. The victim estimated the total
value of the stolen jewelry at $3,000, but, given the totality
of the circumstances, it is possible that the jury would not
have been persuaded that defendant was criminally negligent with respect to the value of the jewelry being $1,000 or
more. A jury could find that element proved on this record,
but it could also find it not proved. This case is similar to
Perkins, 

, which involved a stolen U-Haul
van, and State v. Baker, 

, 

      It is unclear whether defendant is claiming an error of state law, subject
to state-law harmlessness analysis, or a federal constitutional error, subject to
federal-law harmlessness analysis. We reach the same conclusion under either
standard.
Nonprecedential Memo Op: 

 (2024)         507

812 (2023), which involved stolen plants and potting soil.
There are enough variables in play as to the value of the
jewelry that we cannot say that the instructional error was
harmless.
         Accordingly, we reverse defendant’s conviction for
first-degree theft and remand for a new trial.
        Reversed and remanded.