State v. Baker, 528 P.3d 812

Defendant Autumn Wind Echo Baker was seen loading bags of potting soil into a car at a Fred Meyer from which she had been trespassed days earlier; officers later found potted plants in the car and Baker returned to the store with police.
Asset-protection testimony identified the items as Fred Meyer property; the store later determined the total value was about $165.
At trial, Baker was convicted of second-degree criminal trespass and second-degree theft; the theft instruction required intent to deprive/appropriate and that the property be worth $100 or more.
The court’s theft instruction omitted any culpable mental state (e.g., criminal negligence) as to the value element.
Oregon precedent (State v. Shedrick and State v. Prophet) requires at least criminal negligence as to the property-value element; the State here conceded the instructional omission was error but argued it was harmless.
The court held the omission was plain error and not harmless given uncertain quantity/pricing evidence, reversed the second-degree theft conviction and remanded for resentencing, and otherwise affirmed the trespass conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the theft instruction must include a culpable mental state as to value	Conceded omission was error but urged the error was harmless (tags, location, quantity implied value)	Omitted instruction was plain error that could have affected verdict	Court: omission was plain error and not harmless; reversal and remand for theft conviction
Whether the evidence supported harmless-error review (i.e., jury would have found criminal negligence as to value)	Harmless because tags/location/amount of merchandise made >$100 value reasonably apparent	Evidence did not show item prices, display photos, or exact quantities; value was not common knowledge	Court: evidence was insufficient to show little likelihood of impact; not harmless
Prosecutor comments in closing rebuttal—plain error claim	State: any prosecutorial comments were not plainly prejudicial	Baker: comments constituted plain error requiring reversal	Court: did not find plain error on those prosecutorial-comments claims

State v. Shedrick, 370 Or 255 (2022) (holding that the property-value element of theft carries at least criminal negligence and applying harmless-error analysis)
State v. Prophet, 318 Or App 330 (2022) (recognizing a culpable mental state is required as to the value element of theft)
State v. Owen, 369 Or 288 (2022) (harmless-error standard for deciding whether an instructional error likely affected the verdict)
State v. Chitwood, 370 Or 305 (2022) (standards for plain-error review of prosecutorial comments)