State v. Baker

“Criminal negligence requires that a defendant ‘fail[ed] to be aware of a substantial and unjustifiable risk’ such 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.’” ORS 161.085(10).

Defendant appealed a judgment of conviction for second degree criminal trespass and theft. Although trespassed from Fred Meyer, Defendant took $165 in merchandise from the property. Defendant assigned error to the trial court’s omission of jury instructions regarding the requisite culpable mental state of criminal negligence. The State argued that the error was harmless because the evidence demonstrated that the Defendant took a “substantial and unjustifiable risk” that the merchandise was worth more than $100. “Criminal negligence requires that a defendant ‘fail[ed] to be aware of a substantial and unjustifiable risk’ such 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.’” ORS 161.085(10). The Court reasoned that the jury was not presented with evidence that the price was visible, could have been inferred, or was common knowledge. As a result, the jury might not have found that the Defendant took a “substantial and unjustifiable risk” that the property was worth more than $100. Thus, the absence of the jury instructions may have affected the outcome on the case, and the error was not harmless. SECOND DEGREE THEFT CONVICTION REVERSED AND REMANDED; OTHERWISE AFFIRMED.