State v. Simonov, 358 Or. 531

Defendant Alen Simonov was convicted of unauthorized use of a vehicle (UUV) under ORS 164.135(1)(a) after riding as a passenger in a neighbor’s 1983 Datsun; state evidence showed the brothers took the truck and returned it later; defendant claimed he did not know use exceeded permission his brother had received.
The indictment alleged a culpable mental state of criminal negligence for the “without consent” element; defendant requested jury instructions requiring that he knew the use was without the owner’s consent.
Trial court refused defendant’s requested instruction and instead instructed the jury that criminal negligence (failure to be aware of a substantial and unjustifiable risk) as to lack of owner consent was sufficient.
The Court of Appeals reversed the conviction, holding that knowledge is the minimum culpable state for the consent element of UUV.
The Oregon Supreme Court granted review to decide whether the “without consent” element is conduct (requiring knowledge) or a circumstance (allowing criminal negligence).
The Supreme Court held that lack of owner consent is part of the essential nature of the proscribed conduct (unauthorized use) and therefore the minimum culpable mental state is knowledge; it affirmed the Court of Appeals, reversed the conviction, and remanded for further proceedings.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Simonov)	Held
Whether the “without consent” element of UUV is a circumstance (allowing criminal negligence) or part of the conduct (requiring knowledge)	The owner’s lack of consent is an accessory fact (a circumstance) that accompanies the physical act; statutes classify circumstances to which criminal negligence may apply.	Lack of consent is part of the essential nature of the proscribed conduct (unauthorized use); therefore the minimum mental state is knowledge.	Held: Lack of consent is part of the conduct (the essence of unauthorized use); the minimum culpable mental state is knowledge.
Whether the trial court erred by instructing the jury that criminal negligence sufficed for the consent element	Instruction was correct under ORS 161.115(2) if lack of consent is a circumstance.	Requested knowledge instruction correctly stated law given the element is conduct.	Held: Trial court erred by giving criminal-negligence instruction and failing to give knowledge instruction.
Whether the error was reversible	State did not contest prejudice finding below.	Defendant argued instructional error affected the verdict.	Held: Court of Appeals’ prejudice conclusion stands; reversal and remand required.
Proper remedy	State urged affirmance of conviction if instruction proper.	Defendant asked for reversal and new trial.	Held: Conviction reversed; case remanded for further proceedings (new trial).

State v. Barnes, 329 Or 327 (recognizing defendants are entitled to instructions supporting their theory when legally correct and supported by evidence)
State v. Rutley, 343 Or 368 (discussing culpable mental states and elements in offenses outside the Criminal Code)
State v. Blanton, 284 Or 591 (material elements generally require culpable mental state)
State v. Crosby, 342 Or 419 (distinguishing result and circumstance elements; death as a result)
State v. Rainoldi, 351 Or 486 (analyzing nature of an element in determining culpability requirements)
State v. Miller, 309 Or 362 (status elements may not require proof of defendant’s mental state)
Williams v. Philip Morris Inc., 344 Or 45 (discussing types of jury-instruction error)
State v. Jones, 223 Or App 611 (value as circumstance in theft statute)
State v. Wier, 260 Or App 341 (Court of Appeals holding that criminal negligence suffices for lack-of-consent element in a separate statute)