STATE OF OREGON, Petitioner on Review, v. ALEN VLADIMIR SIMONOV, Respondent on Review.
(CC CF110325; CA A151415; SC S063135)
In the Supreme Court of the State of Oregon
Argued and submitted November 12, 2015, decision of Court of Appeals affirmed, judgment of circuit court reversed, and case remanded to circuit court for further proceedings February 4, 2016
368
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.**
BREWER, J.
BREWER, 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.”
I. FACTS AND PROCEDURAL BACKGROUND
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 P2d 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
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
“Oregon law provides that a person commits the crime of unauthorized use of a vehicle when the person knowingly rides [in] another‘s vehicle without the consent of the owner.
“In this case, to establish the crime of unauthorized use of a vehicle, the state must prove beyond a reasonable doubt the following four elements:
“*****
“(4) [Defendant] knew the use of [the 1983] Datsun Pickup was without the consent of the owner.”
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:
“Oregon law *** provides that a person commits the crime of unauthorized use of a vehicle when a person unlawfully and with criminal negligence takes, operates, exercises control over, rides in or otherwise uses another‘s vehicle without the consent of the owner.
“In this case, to establish the crime of unauthorized use of a vehicle, the State must prove beyond a reasonable doubt *** [that defendant] failed to be aware of a substantial and unjustifiable risk that he did not have the consent of the owner.
“A person acts with criminal negligence if that person fails to be aware of a substantial and unjustifiable risk that a particular result will occur or a particular circumstance exists.
“*****
“When used in the phrase, [‘]the defendant *** did unlawfully and with criminal negligence take, operate, exercise control over, ride in and otherwise use a vehicle, a 1983 Datsun pickup[,] without the consent of the owner ***,[‘] criminal negligence or criminally negligent means that the person fails to be aware of a substantial and unjustifiable risk that the 1983 Datsun pickup was being operated, controlled, [ridden] in or otherwise used without the consent of the owner.”
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
respect to the offense of UUV. Simonov, 269 Or App at 743. 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
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
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.
II. ANALYSIS
A. Core Principles
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 P3d 361 (2007). The statute defining an offense determines its applicable mental state (or mental states), as informed by the Oregon Criminal Code1 general culpability provisions,
In practice, then, most elements of offenses set out in the Criminal Code require proof of a culpable mental state.
The legislature sometimes has expressly provided mental states for all or certain of the elements of offenses in the Criminal Code, including the lack of a victim‘s consent.3 If a statute defining an offense in the Criminal Code includes a single mental state “but does not specify the element to which it applies, the prescribed culpable mental state applies to each material element of the offense.”
If, as with the UUV statute,
states do not freely apply to any element; rather, they each apply only to particular types of elements. State v. Crosby, 342 Or 419, 428-29, 154 P3d 97 (2007). The definition of each mental state specifies the types of elements to which the mental state applies:
“(7) ‘Intentionally’ or ‘with intent,’ when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described.
“(8) ‘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.
“(9) ‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously
disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. “(10) ‘Criminal negligence’ or ‘criminally negligent’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
To identify which mental state applies when a statute does not prescribe a culpable mental state for material elements of the offense, it is necessary to determine the type or types of those elements. Unless otherwise indicated for a particular offense, “conduct” elements require proof of an intentional or knowing mental state, “result” elements require proof of an intentional, reckless, or criminally negligent mental state, and “circumstance” elements require
proof of a knowing, reckless, or criminally negligent mental state.
As explained below,
B. The Nature and Scope of Conduct
Unlike “result” or “circumstance,” “conduct” is defined within the Code: “‘Conduct’ means an act or omission and its accompanying mental state.”
As noted, the accompanying mental state for conduct elements is assigned by the statute defining an offense within the Criminal Code. Crosby, 342 Or at 429. If no mental state is provided for a conduct element, the minimum culpable mental state is “knowingly.”
Third New Int‘l Dictionary 1507 (unabridged ed 2002). The phrase “so described” in
Other pertinent statutory context reinforces that conclusion.
“The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which the person is capable of performing.”
In both of those provisions, “conduct” is the foundation of criminal liability, which is consistent with the principle that conduct elements are those that describe the nature or essential character of the defendant‘s act or omission. The question, then, is how conduct differs from circumstance.
The theft statutes provide an example of the role of circumstance elements in a criminal offense. “Theft” in any degree is defined by
property is less than $100, the person commits third-degree theft.
The specific value of the stolen property does not change the essential character of the prohibited conduct. Accordingly, the value of the stolen property for any degree of theft is a circumstance; it is an accessory fact that accompanies, not modifies, the defendant‘s conduct. See State v. Jones, 223 Or App 611, 621, 196 P3d 97 (2008), rev den, 345 Or 618 (2009) (holding that, under a prior version of the first-degree theft statute requiring proof that the value of the property was over $750, the state was not required to prove that the defendant knew that the value of the property exceeded $750).
This court‘s previous case law provides some assistance in distinguishing between elements that describe circumstances and other elements. In Crosby, this court recognized that, “[w]ithout definitions, it is not always easy to determine how to categorize a specific material element of a crime.” 342 Or at 429. In that case, the court grappled with the issue whether a victim‘s death in
“Death is not merely an accessory fact that accompanies the defendant‘s conduct. The object of the mental state ‘recklessly’ is ‘causes death.’ That object, ‘death,’ is not a ‘circumstance’ here; no defendant could be reckless ‘that the circumstance [death] exists.’
ORS 161.085(9) . Instead, death is a result; a defendant can be reckless ‘that the result [death] will occur.’Id. For a defendant to have committed manslaughter underORS 163.118(1)(c) , then, the defendant must have been ‘aware of and consciously disregard[ed] a substantial and unjustifiable risk’ of causing a result: death.”
Crosby, 342 Or at 430-31. This court‘s description in Crosby of a circumstance as “an accessory fact that accompanies the defendant‘s conduct” is consistent with the dictionary definition of that term. See Black‘s Law Dictionary 296 (10th ed 2014) (defining “attendant circumstance” as “a fact that is situationally relevant to a particular event or occurrence“).
Although it involved a somewhat different issue pertaining to an offense outside the Criminal Code, this court‘s decision in State v. Rainoldi, 351 Or 486, 488, 268 P3d 568 (2011), also is instructive. In that case, this court interpreted
In explaining that factor, this court distinguished between conduct and “status,” observing that conduct historically required proof of a culpable mental state, whereas status, such as the fact that a person has been convicted of a felony, did not. Id. at 497 (“[W]e note that proof that the defendant ‘has been convicted of a felony’ refers to an established class of persons who are not permitted to possess firearms. As such, the element refers to a status, as opposed to conduct, which ordinarily does not require proof of a culpable mental state.“). Although a particular “status” sometimes is required to complete a crime, it generally is not part of the essential character of a proscribed act; in fact, the defendant‘s mental state usually has nothing to do with whether the status exists. See, e.g., State v. Miller, 309 Or 362, 369, 788 P2d 974 (1990) (“Having a certain [blood alcohol content] or being under the influence is a status, and a person‘s mental state has nothing to do with whether that status exists. The statute requires only that the state prove that a defendant had the status while driving, not that the defendant knew or should have known of it.“).4
To paraphrase this court‘s statement in Crosby, the line between conduct and other elements is not always easy to draw. It could be argued, in a broad sense, that every element that is required to create criminal liability is part of the essential character of the defendant‘s act or omission. If that view were correct, the meanings of conduct and circumstance would confusingly overlap. But, as our previous decisions show, the line between the two types of elements, although sometimes difficult to discern, nevertheless is a principled one. To constitute conduct, an element must make the defendant‘s own act or omission of a described nature, which stands in contrast to circumstance elements of an offense that refer to facts that attend or accompany the defendant‘s conduct. Whether a particular element—including lack of permission or consent—constitutes part of the defendant‘s conduct or is a circumstance depends on a careful examination, using well-established statutory interpretation principles, of the role of the element in the offense and its relationship to the other elements.
Although the legislative history of the Criminal Code‘s culpability provisions is of limited use in illuminating the issue before us, it does merit brief discussion. The 1971 Criminal Code was the product of a years-long revision of Oregon‘s criminal laws by the Criminal Law Revision Commission. The Commission‘s discussions of early drafts of the Code reveal that the drafters were divided about the meanings of conduct and circumstance. See, e.g., Tape Recording, Criminal Law Revision Commission, Subcommittee No. 1, Dec 18, 1968, Tape 29, Side 1 (Commission members disagreeing over meaning of “attendant circumstance” in a variety of hypotheticals). In addition, some
merely negligent would impose criminal consequences on persons who were not aware that they had created the risk of harm for which they were punished. Tape Recording, Criminal Law Revision Commission, Subcommittee No. 1, Dec 18, 1968, Tape 29, Side 2. Punishment for negligent acts or omissions, Arthur opined, would not lead to reform or the deterrence of future criminal conduct. Id.
Based on that reasoning, the minimum default culpable mental state for any element under the original proposed Code was “recklessness.” Id. Negligence was “viewed as an exceptional basis for liability” that would apply only if a particular statute defining an offense specified it as the applicable mental state. Id. (statement of Project Director Donald Paillette). That view apparently prevailed through the presentation of the final preliminary draft to the full Commission. Preliminary Draft No. 4, Criminal Law Revision Commission, Article 2, § 3 (Apr 1969). Paillette explained the provision to the full Commission, stating,
“The use of ‘criminal negligence’ has been limited so that it will not generally apply; in fact, it is specifically said that it will not apply unless it clearly appears by wording of the statute defining the crime. This does not depart from the [Model Penal Code.]”
Minutes, Criminal Law Revision Commission, June 17, 1969. The full Commission approved that draft. Id.
Later, without recorded discussion, the Commission amended the minimum culpable mental state provision to the form that the legislature enacted:
“Except as provided in
ORS 161.105 [related to violations and strict-liability offenses], if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligence.”
specific offenses.” Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 10, 9 (July 1970). In the end, the drafters’ eventual willingness to make criminal negligence an applicable mental state for circumstance and result elements does not meaningfully inform the inquiry before us.
To summarize: The determination whether a particular element of an offense within the Criminal Code requires a culpable mental state and, if so, what mental state is required, ultimately is a matter of legislative intent. The statutory interpretation inquiry is holistic, but certain guidelines are useful. As pertinent here, when an element of an offense within the Criminal Code describes the nature, that is, the essential character, of a proscribed act or omission, it generally is a conduct element, and (unless different mental states are specified in the statute defining the offense), the minimum culpable mental state is knowledge. In contrast, when an element of a Criminal Code offense describes an accessory fact that accompanies the defendant‘s conduct, it is a circumstance element for which (again, unless different mental states are specified), the minimum culpable mental state is criminal negligence.
C. Statutory Interpretation of ORS 164.135(1)(a)
With those principles in mind, we conclude that the text and context of
is an additional prepositional phrase (actually two prepositional phrases: “without the consent” and “of the owner“), regardless of which alternative verb applies. “Prepositions are words that show relationships.” Marcilionis v. Farmers Ins. Co., 318 Or 640, 645, 871 P2d 470 (1994). Prepositional phrases can be used as nouns, adverbs, or adjectives. The Chicago Manual of Style § 5.166, 188 (15th ed 2003). When used as adverbs, prepositional phrases are called adverbial phrases, and they modify verbs. Id.
Within the structure of
The state‘s contrasting interpretation would require proof only that a passenger was criminally negligent as to whether the owner of the vehicle in which he or she rode consented to the use. Under that interpretation, naive trust could subject a person to criminal liability for a felony.
That the crime of UUV criminalizes a particular form of conduct—unauthorized use—borders on the axiomatic. See Commentary to the Criminal Code § 134 at 142 (“This section covers the ‘joy-riding’ type of offense where the actor makes unauthorized use of another‘s vehicle but without the intent to steal it or permanently deprive the owner of its use.“). The nature of joyriding is the temporary use of a vehicle without permission. Because riding without permission is part of the essential character of the proscribed act, to be convicted of UUV, a person must know that the vehicle is being used without the owner‘s consent.
D. Application
As discussed, the state‘s evidence in this case showed that defendant rode as a passenger in his neighbor‘s vehicle while his brother drove. Defendant countered that evidence with his own evidence showing that his brother obtained permission from the neighbor to use the truck and that defendant did not know that they had used the truck beyond
The trial court declined to give defendant‘s requested instructions and, instead, instructed the jury that, for purposes of the “without consent” element, the state had to
prove only that defendant acted with criminal negligence as defined in
III. CONCLUSION
To summarize: The nature, that is, the essential character, of the act of UUV proscribed by
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Notes
“Notwithstanding
ORS 161.095 , a culpable mental state is not required if:“*****
“(b) An offense defined by a statute outside the Oregon Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof.”
The requisite mental state to convict a defendant of that offense depends on the state‘s theory of lack of consent. If lack of consent exists because the victim is under the age of 16, then no culpable mental state is required, creating the strict-liability offense of statutory rape. See“(1) A person who has sexual intercourse with another person commits the crime of rape in the first degree if:
“(a) The victim is subjected to forcible compulsion by the person;
“(b) The victim is under 12 years of age;
“(c) The victim is under 16 years of age and is the person‘s sibling, of the whole or half blood, the person‘s child or the person‘s spouse‘s child; or
“(d) The victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness.”
In that provision, the proscribed act—subjecting another person to sexual contact—is set out in a separate paragraph from the element that the victim does not consent to the contact. Although it is not necessary to consider what mental state requirement attaches to the “does not consent” element of“(1) A person commits the crime of sexual abuse in the third degree if:
“(a) The person subjects another person to sexual contact and:
“(A) The victim does not consent to the sexual contact; or
“(B) The victim is incapable of consent by reason of being under 18 years of age[.]”