State v. McCarthy

No. 293                  May 1, 2024                        447

   This is a nonprecedential memorandum opinion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.
            CRAIG ABE ALAN McCARTHY,
   aka Craig McCarthy, aka Craig Abe Alen McCarthy,
             aka Craig Abe Aln McCarthy,
                 Defendant-Appellant.
            Clackamas County Circuit Court
    20CR35674, 20CR49451, 20CR53577, 20CR61735;
     A178739 (Control), A178740, A178741, A178742

   Heather Karabeika, Judge.
   Submitted on February 26, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Joshua B. Crowther, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
   HELLMAN, J.
   Convictions on Counts 8 and 10 in Case No. 20CR61735
reversed and remanded; remanded for resentencing; otherwise affirmed.
448                                                      State v. McCarthy

           HELLMAN, J.
         In consolidated cases, defendant appeals from four
judgments of conviction (Case Nos. 20CR61735, 20CR49451,
20CR35674, and 20CR53577), and raises six assignments
of error. For the reasons explained below, we reverse and
remand the convictions on Counts 8 and 10 in Case No.
20CR61735 and remand for resentencing, but otherwise
affirm.
         First through third assignments of error: Failure to
instruct regarding a culpable mental state for theft. Defendant
challenges his convictions for theft on Counts 3, 8, and 10
in Case No. 20CR61735. Those convictions were based on
allegations that he took property from several different cars
and garages. Defendant argued to the trial court that the
culpable mental state of “knowingly” or “with knowledge”
attached to the value element of the theft offenses, but the
trial court did not require the state to prove that defendant knew the value of the property.1 On appeal, defendant
argues that the trial court erred when it failed to instruct
itself that the state was required to prove a culpable mental
state regarding the value element of theft.
         We first address defendant’s first assignment of
error, which involves his conviction for third-degree theft
(Count 3).2 A defendant commits the crime of third-degree
theft if “[t]he total value of the property … is less than
$100.” ORS 164.043(1)(b). “The statute delineating third-degree theft … contains no threshold value requirement at
all, only a ceiling—less than $100. Consequently, the minimum valuation needed to establish that a stolen item falls
within third-degree theft … require[s] only that the item
possess some value[.]” State v. Waterhouse, 

,

 (2016). All of defendant’s arguments relate to
first-degree theft (the charged offense); he does not address
    1
      “ ‘Culpable mental state’ means intentionally, knowingly, recklessly, or
with criminal negligence ….” ORS 161.085(6). “ ‘Knowingly’ or ‘with knowledge,’
when used with respect to conduct or to a circumstance described by a statute
defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described
exists.” ORS 161.085(8).
    2
      Although defendant was charged with first-degree theft, ORS 164.055, he
was convicted of the lesser-included offense of third-degree theft, ORS 164.043.
Nonprecedential Memo Op: 

 (2024)             449

third-degree theft (the lesser-included offense of conviction)
at any point in his brief. Most importantly, he does not make
any argument as to why the claimed instructional error is
not harmless as to third-degree theft—which requires only
that defendant act with some culpable mental state that the
property has “some value”—when the items taken included
a wallet with cash, debit, and credit cards inside, RC cars,
RC car batteries, and a tent. “[I]t is not this court’s function
to speculate as to what a party’s argument might be. Nor is
it our proper function to make or develop a party’s argument
when that party has not endeavored to do so itself.” Beall
Transport Equipment Co. v. Southern Pacific, 

, 700 n 2, 

, adh’d to as clarified on recons,

, 

 (2003). Accordingly, we reject
defendant’s first assignment of error.
          We next turn to defendant’s second and third assignments of error, which challenge his convictions for first-degree theft (Count 8) and second-degree theft (Count 10).
We start with defendant’s argument that an intentional
mental state applies to the value element of theft. Defendant
concedes that the argument is unpreserved and asks for
plain error review. Plain error review is a two-step process.
Ailes v. Portland Meadows, Inc., 

, 

(1991). We first determine whether an error is plain. State
v. Vanornum, 

, 

 (2013) (explaining that a plain error is “an error of law, obvious and not
reasonably in dispute, and apparent on the record without
requiring the court to choose among competing inferences”).
If the error is plain, we then determine whether to exercise
our discretion to consider it. Ailes, 

.
         In State v. Shedrick, 

, 

(2022), the Supreme Court held that the property-value element of theft requires a culpable mental state. However, the
court left open the specific mental state that is required. 

at 270 n 2. Thus, 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 theft.
Cf. State v. Horton, 

, 

(2023) (similarly rejecting plain-error argument that recklessness is the required mental state for the value element
450                                        State v. McCarthy

of criminal mischief in the first or second degree). For that
reason, we reject defendant’s plain-error argument regarding an intentional mental state.
          We then turn to defendant’s argument that the
trial court was required to instruct itself that the value element of first-degree theft required a culpable mental state
of at least criminal negligence. The state takes the position
that we do not need to decide whether defendant’s argument
at trial—which focused on a “knowing” mental state—
preserved his argument that some minimal mental state is
required for the value element of theft “because the state
concedes that the error is plain.”
         We do not accept the state’s concession because we
determine that defendant preserved his argument. In
descending order, the four culpable mental states are: intentionally, knowingly, recklessly, and criminal negligence.
ORS 161.085(6); see also ORS 161.115(3) (explaining that
when the culpable mental state is criminal negligence, “it
is also established if a person acts intentionally, knowingly
or recklessly”). Because greater culpable mental states subsume or include lesser mental states, defendant’s argument
that the state must prove he knew the property’s value was
sufficient to preserve his appellate argument that a culpable
mental state of at least criminal negligence applies to the
value element of theft. See State v. Owen, 

,

 (2022) (holding that because the jury found that
the defendant acted with knowledge, the jury also “would
have found that, at least, he was criminally negligent”).
         On the merits, we agree with defendant’s argument
that the trial court erred. See Shedrick, 

 (determining that the trial court erred when it failed to give an
instruction that the property-value element of theft required
a culpable mental state of at least criminal negligence).
        Defendant argues that the error was not harmless
under either the state or federal constitutions and the state
concedes that the error was not harmless on Counts 8 and 10.
We agree with and accept the state’s concession on those
counts.
Nonprecedential Memo Op: 

 (2024)                            451

          Whether we apply a state or a federal standard of
harmless error, we cannot be certain that the jury would
have concluded that there was a substantial and unjustifiable risk that the property at issue in Count 8 was worth
at least $1,000, that the property at issue on Count 10 was
worth at least $100, and that defendant’s failure to be aware
of that risk amounted to a gross deviation from the standard
of care that a reasonable person would exercise.3 On Count 8,
the victim estimated that the total value of the missing
property—including two pairs of sunglasses, a pair of prescription glasses, a blanket, and coaxial cables—was about
$1,700. On Count 10, the victim did not know the value of a
missing camera because it was a gift, and she acknowledged
that she did not lose any money that was loaded onto a missing debit card. As a consequence, the record lacked evidence
“that would signal to a person in defendant’s position” that
the value of the items exceeded $1,000 on Count 8 or $100 on
Count 10. State v. Perkins, 

, 

 (2023) (U-Haul van); see also State v. Baker, 

, 

 (2023) (potting soil and plants).
Because we cannot say that the instructional error was
harmless, we reverse the convictions on Counts 8 and 10
in Case No. 20CR61735.
          Fourth assignment of error: Failure to instruct
regarding a culpable mental state for assault. Defendant
challenges his conviction for second-degree assault, ORS
163.175 (Count 1), in Case No. 20CR49451. In that case,
defendant was driving an SUV that collided with a police
officer’s patrol vehicle. Defendant requested special jury
instructions requiring the jury to find that defendant
either “knew or believed his actions would result in physical injury,” or that he “negligently caused physical injury.”
The trial court denied defendant’s request and instructed
the jury that the state was required to prove that defendant
“knowingly caused physical injury to [the police officer] by
means of a dangerous weapon.” The court did not instruct
the jury on a culpable mental state for the result or injury
element of the crime.

    3
      Defendant argues that the error was not harmless under either the state or
federal standard of harmlessness.
452                                        State v. McCarthy

        After the verdict, but before sentencing, the
Supreme Court decided Owen, 

, in which the
court held that “the state, at a minimum, must prove that
a defendant was criminally negligent with respect to the
injury caused by the defendant’s actions.” Defendant moved
for a new trial. Because the trial court had instructed the
jury on recklessness with respect to defendant’s reckless
endangerment charge, it denied the motion, determining
that “the result element was found by the jury.”
         As above, the state argues that we “need not resolve
any dispute” regarding preservation “because the state concedes that the error is plain.” And again, we do not accept
the state’s concession because defendant preserved the issue
through his proposed jury instructions, motion for a new
trial, and the arguments that he made after the Supreme
Court’s decision in Owen. Indeed, the trial court expressly
noted that “this issue has been preserved.”
         On the merits, we conclude that the trial court
erred when it failed to instruct the jury that the state, at a
minimum, was required to prove that defendant was criminally negligent with respect to the result or injury element
of second-degree assault. Owen, 

.
          We then turn to the question of whether the error
was harmless. Generally, to determine whether an instructional error was harmless in the context of the failure to
instruct regarding a defendant’s culpable mental state, we
review the question of “whether there is some likelihood
that the jury might not have been persuaded that he had the
requisite mental state, had it considered that issue.” State v.
Stone, 

, 

 (2023) (emphasis
in original). In doing that, “we consider the instructions as a
whole and in the context of the evidence and record at trial,
including the parties’ theories of the case with respect to
the various charges and defenses at issue.” Owen, 

 (internal quotation marks omitted). 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. Perkins, 

.
Nonprecedential Memo Op: 

 (2024)              453

         Here, there was evidence that defendant crashed
an SUV into the patrol vehicle, and that it “felt like a very
violent impact.” The officer’s airbag deployed, he smelled
melted plastic, and the engine shut off. The officer heard
another “engine revving” and he realized “that [it] was the
suspect vehicle backing up after hitting my patrol car.” As
a result of the crash, the officer suffered physical injuries,
including a fractured thumb and wrist, as well as pain in
those and other body parts. The officer testified that “[i]t
was a really hard hit and I remember my head hurting, my
left wrist, and left arm hurting and my left leg hurting a
lot.” At the hospital, defendant told detectives that he did
not know why the SUV “ripped over into that last car.”
        During deliberations, the jury submitted several
questions indicating that it was “split on assault 2 right
now” and seeking “more direction on the definition of knowingly” and the definition of awareness of assaultive conduct.
However, the jury ultimately returned a verdict of guilty on
the charge of second-degree assault.
         Whether we assess that error under the state or
federal standard of harmlessness, we conclude that the jury
would have found that defendant was criminally negligent
with respect to the risk of causing physical injury to the police
officer. We reach that conclusion for a number of reasons,
including because the jury’s verdict shows that it found that
defendant “knowingly caused physical injury” to the victim
“by means of a dangerous weapon.” The jury was instructed
that “a dangerous weapon” includes a device that “is readily
capable of causing death or serious physical injury.” Thus,
the jury necessarily found that when defendant crashed the
SUV into the patrol vehicle, the defendant used the SUV in
a manner that was capable of causing injury.
         The jury also found defendant guilty of the crime of
recklessly endangering another person, ORS 163.195, which
required it to find that defendant “recklessly engaged in
conduct that created a substantial risk of serious physical
injury” to the police officer “by driving and crashing into his
patrol vehicle.” The jury was instructed that,
   “recklessly means a person is aware of and consciously
   disregards a substantial and unjustifiable risk that his
454                                            State v. McCarthy

   conduct creates a substantial risk of serious physical injury.
   The risk must be of such nature and degree that disregard
   thereof constitutes a gross deviation from the standard of
   care a reasonable person would observe in [the] situation.”
          Given the evidence presented at trial, the parties’
theories of the case, and those findings, we conclude that
the jury would not have found that defendant was not at
least criminally negligent with respect to the result or
injury element of second-degree assault. See Owen, 

 (“Even if the court had given defendant’s requested
instruction about criminal negligence, in view of the jury’s
findings that defendant engaged in assaultive conduct …
and knowingly used his boots and the ground as dangerous
weapons, the jury would not have found that defendant was
unaware that his actions would cause … physical injuries.”). Accordingly, we reject defendant’s fourth assignment
of error.
         Fifth and sixth assignments of error: Whether unauthorized use of a vehicle includes a utility trailer. Defendant
argues that the trial court erred when it denied his motions
for judgments of acquittal on the charges of unauthorized
use of a vehicle in Case No. 20CR35674 (Count 5) and in
Case No. 20CR53577 (Count 1). Those charges were based
on allegations that defendant took a utility trailer without
consent. Although defendant stipulated to evidence showing that he used the utility trailer, he argued that a trailer
is not a “vehicle” under ORS 164.135(1)(a) and renews that
argument on appeal. But, in State v. Phillips, 

, 

 (2021), rev den, 

 (2022),
we engaged in an analysis of the text, context, and legislative history of ORS 164.135(1)(a) and determined that the
term “vehicle” in that statute includes trailers. We therefore concluded that the trial court did not err in denying the
defendant’s motion for judgment of acquittal. Phillips, 

.
         Here, defendant requests that we overrule Phillips.
“We start from the assumption that our prior cases were
decided correctly, and the party urging us to abandon precedent must affirmatively persuade us to the contrary that
a decision is plainly wrong.” State v. McKnight, 293 Or App
Nonprecedential Memo Op: 

 (2024)          455

274, 278-79, 

, rev den, 

 (2018) (internal quotation marks omitted). Having considered defendant’s arguments, we are not persuaded that Phillips was
plainly wrong. We therefore reject defendant’s fifth and
sixth assignments of error.
        Convictions on Counts 8 and 10 in Case No.
20CR61735 reversed and remanded; remanded for resentencing; otherwise affirmed.