98 February 20, 2025 No. 122
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JEREMY JAMES ACREE,
Defendant-Appellant.
Douglas County Circuit Court
22CR24837; A179401
Kathleen E. Johnson, Judge.
Argued and submitted February 26, 2024.
Emma E. McDermott, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
Cite as 338 Or App 98 (2025) 99
HELLMAN, J.
Defendant appeals a judgment of conviction for
second-degree theft, ORS 164.045, and second-degree criminal trespass, ORS 164.245, for stealing construction items
from a construction company. In a single assignment of
error, defendant argues that the trial court erred when it
refused to instruct the jury that the value element of theft
required a mental state of criminal negligence.1 Reviewing
for errors of law, we affirm. See State v. Lotches, 331 Or 455,
472,
17 P3d 1045 (2000).
During a nighttime patrol, a police officer observed
defendant2 run down the street, carrying “something very
large.” The officer followed defendant and watched him dive
into the front yard of a house. When the officer located defendant, they found a Milwaukie battery charger nearby. Some
hours later, a generator was found near to where the officer
stopped defendant, and police learned that both items were
taken from a construction company. The items had been
stored in a locked trailer, behind a locked chain link fence
topped with barbed wire. A hole had been cut in the chain
link fence, and video evidence, taken right before the officer observed defendant, showed a person crawling through
the hole carrying a large object. The construction company
reported that other construction tools were also missing,
but those additional items were not recovered. An employee
for the company testified regarding the approximate price
paid for the items when new: $600 for the generator, $100
for the battery charger, $1,500 to $1,600 for a hot saw, $300
for a half-inch impact gun, $300 for a grease gun, and $150
to $200 for missing batteries. The company owner testified that the items had been purchased within the last six
months; another employee testified that the items had been
purchased within the last one to two years.
1
Defendant also argues that the trial court committed plain error by not
instructing the jury that a mental state of “intentionally” applied to the value element of first-degree theft. But defendant specifically requested a criminal-negligence instruction, so he invited any error in not giving an intentional mentalstate instruction. Anderson v. Oregon Railroad Co., 45 Or 211, 216-17,
77 P 119
(1904) (an error is invited if the defendant was “actively instrumental in bringing
it about”).
2
Although the officer did not know the person’s identity when he first
observed him, the person he saw and followed was defendant.
100 State v. Acree
The state charged defendant with first-degree theft,
third-degree criminal mischief, and second-degree criminal
trespass. Defendant requested that the court instruct the
jury that a conviction for first-degree theft required a mental state of criminal negligence as to the value of the stolen
property. Specifically, defendant requested an instruction
that to find defendant guilty of first-degree theft, the jury
had to find that defendant “failed to be aware of a substantial and unjustifiable risk” that the stolen construction tools
were worth at least $1,000, as well as that the risk was “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.” See
ORS 161.085(10) (defining criminal negligence). The trial
court declined to give that instruction and did not include
any instruction as to a requisite culpable mental state with
respect to the value of the stolen property.
The court instructed the jury on both first and
second-degree theft, as a lesser included offense. The court
read the jury instruction that related to second-degree theft
as:
“The charged crime of Theft in the First Degree has a
lesser included offense of Theft in the Second Degree. …
[T]o establish the lesser included offense of Theft in the
Second Degree the State must prove, beyond a reasonable doubt, each of the following three elements. (1) That
the act occurred on or about March 9th of 2022. (2) That
the Defendant, Jeremy Acree, with the intent to deprive
another of property, took the following property. A Predator
2000 generator, a Husqvarna hot saw, Milwaukie batteries,
a battery charger, grinder, and other tools, the property of
Black Pearl Paving and Excavation. And the property had
a value of $100 or more.”
The jury acquitted defendant of first-degree theft
but found him guilty of second-degree theft and criminal
trespass. On appeal, defendant contends that the instructional error violated his rights under both state and federal
law.
It is now well-established that the trial court must
instruct the jury on a mental state with regards to the value
Cite as 338 Or App 98 (2025) 101
element of theft charges. State v. Shedrick,
370 Or 255, 269,
518 P3d 559 (2022). And the state correctly concedes that the
trial court erred when it did not do so in this case. However,
the state argues that we should nonetheless affirm because
(1) the error was harmless beyond a reasonable doubt, and
(2) defendant’s requested instruction pertained only to first-degree theft and thus he failed to preserve his argument as
it relates to second-degree theft.
We do not need to resolve the dispute regarding
preservation, because even if the error was preserved as
to second-degree theft, we conclude that it was harmless
beyond a reasonable doubt under both Article VII (amended),
section 3, of the Oregon Constitution and the United States
Constitution. See State v. Perkins, 325 Or App 624, 630-31,
529 P3d 999 (2023) (applying federal constitutional harmless error standard to a preserved claim challenging the
failure to instruct on the property-value element of theft);
State v. Horton,
327 Or App 256, 263 n 3,
535 P3d 338 (2023)
(noting that we apply federal harmlessness analysis when
considering federal errors). The test to determine whether
the omission of an element from the trial court’s instruction
was harmless “is whether it appears beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.” Id. at 631 (citation and internal quotation
marks omitted). Under the state standard, the question is
whether there is “little likelihood that the particular error
affected the verdict.” State v. Davis,
336 Or 19, 32,
77 P3d
1111 (2003).
Although he argues otherwise, the jury instruction
demonstrates that the jury necessarily found that defendant took “a Predator 2000 generator, a Husqvarna hot saw,
Milwaukie batteries, a battery charger, grinder, and other
tools.” The items were taken from a construction business,
which was surrounded by a locked chain link fence topped
with barbed wire. On that locked property, the items were in
a trailer that was also separately locked. That level of security indicates that the owner believed the items had enough
value to need to prevent others from taking them. The items
included power sources and tools designed and built for
construction and were substantial enough to be used in a
102 State v. Acree
construction business. The nature of the items themselves
indicates that the aggregate value of the items was likely
more than $100. Indeed, testimony established that the
value of the items if they were new was close to $3,000, and
that they were under two years old.
Had the jury been instructed on the criminal negligence mental state as to the value of the items, it would have
been required to determine whether defendant “fail[ed] to be
aware of a substantial and unjustifiable risk” that the value
of the items taken was over $100 and, further, whether that
risk was “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.”3 ORS 161.085(10). Given the undisputed evidence as
to the nature of the stolen items and level of security at the
location where the items were stored, we conclude, beyond a
reasonable doubt, that the jury would have found that there
was a “substantial and unjustifiable risk” that those items
had a value of more than $100.4
Importantly, criminal negligence does not require
defendant to have known the value of the items. The key
questions under negligence are ones of risk and awareness
of that risk. Awareness involves “realization, perception,
3
We observe that importing a general civil negligence framework into the
criminal context presents serious challenges for trial courts and jurors who must
apply it in practice. While examining the “standard of care” may work for doctors
or drivers, it is not easily applicable to a situation in which someone is charged
with stealing something, because, logically, a “reasonable person” observing a
“standard of care” would not likely be taking something that did not belong to
them. In addition, it is unclear what “standard of care” is employed by a person
taking something that is not theirs. That said, barring intervention from the legislature, this is the framework that trial courts and jurors must currently work
with and is the standard under which we resolve this case.
4
The evidence of the security measures, the nature of the items, and the
conviction of second-degree theft all distinguish this case from Perkins, in which
we held that the court’s failure to instruct on the mental state for aggravated
first-degree theft for stealing a U-Haul van was not harmless. Importantly, we
held that the record in Perkins “provide[d] little evidence that would allow a jury
to assess whether [the] defendant was negligently unaware of a ‘substantial and
unjustifiable risk’ that the van was worth $10,000 or more.” 325 Or App at 631.
For example, there was no evidence about the van’s condition or mileage, or that
the defendant was aware of the model year.
Id. at 632. In contrast, on this record
“ ‘no reasonable juror could draw any conclusion other than’ ” that defendant
acted with criminal negligence as to the risk that the value of the items exceeded
$100.
Id. (quoting State v. Bray,
342 Or 711, 725-26,
160 P3d 983 (2007)).
Cite as
338 Or App 98 (2025) 103
or knowledge.” Webster’s Third New Int’l Dictionary 152
(unabridged ed 2002). And risk is defined as “the possibility of loss, injury, disadvantage, or destruction” or “someone
or something that creates or suggests a hazard or adverse
chance.” Id. at 1961. It bears emphasizing that the awareness is not of the value of the items themselves; it is of the
risk—the possibility or chance—that the aggregate value of
the items exceeded the value limit in the statute.
Moreover, on this record, we conclude, beyond a reasonable doubt, that the jury would also have found that failing to be aware of the risk that the items had a value of more
than $100 was a “gross deviation from the standard of care
that a reasonable person would observe in the situation.”
ORS 161.085(10). The evidence supports only one reasonable
inference: that a reasonable person in “the situation”—here,
a person stealing items—would be aware that there was a
risk that the items were worth more than $100. And whatever precise “standard of care” is applied in this situation,
failing to be aware of the risk of a value over $100 for these
items was a gross deviation from it. Accordingly, the error
is harmless beyond a reasonable doubt and, for the same
reasons, had little likelihood of affecting the verdict. And
because the error is harmless, we must affirm. Horton, 327
Or App at 262.
Affirmed.
