State v. Besson

There is little likelihood that an error affects the trial court’s verdict when the jury would understand that the appellant’s failure to be aware that the property stolen was at least $100 was a gross deviation from the standard of care that a reasonable person would exercise under those circumstances.

Appellant appealed her judgment of conviction for theft in the second degree, assigning error to the trial court’s failure to instruct the jury of the requisite culpable mental state with respect to the value of the stolen property. Appellant argues, and the state concedes, that the “property value” element is a material element of theft offenses and thus requires the state to prove a culpable mental state. Although the Oregon Court of Appeals held that the trial court plainly erred in failing to instruct the jury, they held that there was little likelihood that the error affected the verdict because the jury would have understood that appellant’s failure to be aware that the stolen property was at least $100 was a gross deviation from the standard of care that a reasonable person would exercise under those circumstances. AFFIRMED.