State v. Simonov
| Decision Date | 04 February 2016 |
| Docket Number | CA A151415,CC CF110325,SC S063135. |
| Citation | 358 Or. 531,368 P.3d 11 |
| Parties | STATE of Oregon, Petitioner on Review, v. Alen Vladimir SIMONOV, Respondent on Review. |
| Court | Oregon Supreme Court |
Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.
Lindsey Burrows, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With her on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.
Before BALMER, Chief Justice, and KISTLER, WALTERS, LANDAU, BALDWIN, BREWER, and NAKAMOTO, Justices.**
, J.
Defendant appeals a judgment of conviction for unauthorized use of a vehicle (UUV), a felony offense that is committed when a person "takes, operates, exercises control over, rides in or otherwise uses another's vehicle * * * without consent of the owner." ORS 164.135(1)(a)
. At trial, defendant requested an instruction that, to reach a guilty verdict, the jury must find that he knew that the use of the vehicle was without the owner's consent; instead, the trial court instructed the jury that it could convict defendant if it found that he was criminally negligent with regard to whether the owner had consented. The Court of Appeals reversed defendant's ensuing conviction on the ground that the charged offense requires that the person riding in the vehicle knows that the vehicle is being used without the owner's consent, the trial court therefore improperly instructed the jury, and the error was reversible. State v. Simonov, 269 Or.App. 735, 346 P.3d 589 (2015). For the reasons explained below, we affirm the decision of the Court of Appeals, reverse the judgment convicting defendant, and remand to the circuit court for further proceedings.
Because criminal defendants are entitled to have the jury instructed in accordance with their theory of the case if the instructions correctly state the law and there is evidence to support giving them, State v. Barnes, 329 Or. 327, 334, 986 P.2d 1160 (1999)
, we set out the facts consistent with that standard. At trial, the state presented evidence that defendant and his brother, Vadim, talked to their neighbor, Goodnow, about purchasing a 1983 Datsun pickup truck. Goodnow testified that she agreed to allow the brothers to take the truck to a car wash in Pendleton to check for an oil leak. Goodnow watched the brothers drive away. Because the brothers failed to return the truck when she expected them to, Goodnow reported the truck stolen. Defendant later left a voicemail message stating, Goodnow saw Vadim pull the truck into her driveway several hours later, with defendant in the passenger seat.
At trial, defendant claimed that Vadim had obtained permission to use the truck and that defendant had not known that the brothers' use of the vehicle exceeded the scope of the consent that Goodnow had given. To support that theory, defendant presented evidence that Vadim, not defendant, had received permission from Goodnow to borrow the truck and that defendant did not know that Vadim had violated Goodnow's instructions. Vadim testified that he had talked to Goodnow about taking the truck to a mechanic, but he insisted that defendant neither overheard that conversation nor knew what Goodnow and Vadim had discussed. According to Vadim, the brothers took the truck to a mechanic in Hermiston, stopping at a gas station on the way. The truck failed to start, so defendant called his girlfriend to pick him up at the gas station. The mechanic met Vadim at the station and got the truck running. Vadim left defendant at the station, drove to Portland to deliver money to his wife, and then picked defendant up from his girlfriend's house in Pendleton on the way back to Goodnow's house.
In charging defendant with violating ORS 164.135(1)(a)
, the indictment in this case alleged a culpable mental state of "criminal negligence" for the "without consent" element of the offense. In accordance with his theory of the case, defendant requested the following jury instruction:
Defendant also sought an instruction that, "[w]hen used in the phrase ‘[defendant] knew the use of [the] vehicle was without the consent of the owner,’ ‘knowingly’ or ‘with knowledge’ means that the person acts with an awareness that he had [actual] knowledge [of] the lack of consent of the owner."
The trial court declined to give those instructions and, instead, instructed the jury as follows:
On appeal, defendant assigned error to the instruction that criminal negligence is a sufficient culpable mental state to prove the "without consent" element of UUV and to the trial court's corresponding failure to instruct the jury that the state had to prove that defendant had known that the vehicle was being used without the owner's consent. The state responded that the trial court properly instructed the jury in accordance with ORS 161.115(2)
, which provides that, if the legislature has not prescribed a culpable mental state for a particular offense, any among a range of culpable mental states—intent, knowledge, recklessness, or criminal negligence—will suffice. The Court of Appeals reversed, concluding that it was bound by several of its prior decisions holding that "knowledge" is the minimum culpable mental state that can apply to an owner's lack of consent with respect to the offense of UUV. Simonov, 269 Or.App. at 743, 346 P.3d 589
. We allowed the state's petition for review to determine the minimum culpable mental state required for the "without consent" element of that offense.
In support of its position that the minimum statutory level of culpability—criminal negligence—is applicable, the state relies on a series of interconnected propositions. The state first acknowledges that Oregon law generally requires proof of a culpable mental state for a crime defined in the Oregon Criminal Code and that most elements of such crimes also require proof of a culpable mental state. The state further notes that, under ORS 161.085
, the applicable culpable mental state(s) for an element generally depend on the type of element at issue, in particular whether the element describes a "circumstance," a "result," or "conduct." The state next observes that criminal negligence is a sufficient culpable mental state to establish a circumstance, ORS 161.085(10), whereas knowledge is the minimum culpable mental state for conduct elements. ORS 161.085(8).
Proceeding from those propositions, the state argues that the owner's lack of consent in a UUV prosecution is a circumstance, not conduct, because it is an "accessory fact" that accompanies an offender's physical act. According to the state, the owner's lack of consent is a fact that exists independently of the offender's act and therefore is distinguishable from conduct. It follows, the state reasons, that the trial court did not err by instructing the jury that criminal negligence was a sufficient culpable mental state to prove the "without consent" element of UUV in this case.
Defendant responds that an owner's lack of consent is part of the "conduct" proscribed by ORS 164.135(1)(a)
and, therefore, the minimum culpability requirement is knowledge of that fact. ORS 161.085(8). As defendant sees it, conduct includes the "essential nature" of criminal activity that makes it culpable. Defendant agrees with the state that a "circumstance" is an accessory fact that accompanies an offender's conduct and that criminal negligence is a sufficient mental state to establish, with respect to a circumstance, to hold a defendant culpable. However, according to defendant, the owner's lack of consent is part of the essential nature of the offense of UUV, which means that proof of his knowledge of that fact was required and that the trial court therefore erred in instructing the jury that criminal negligence was sufficient.
At the outset, we describe certain core principles that guide our analysis. "In Oregon, criminal liability generally requires an act that is combined with a particular mental state." State v. Rutley, 343 Or. 368, 373, 171 P.3d 361 (2007)
. The statute defining an...
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