State v. Acree

“The test to determine whether the omission of an element from the trial court’s instruction was harmless ‘is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained’… Under the state standard, the question is whether there is 'little likelihood that the particular error affected the verdict’” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).

Defendant assigned error to the trial court, arguing it was an error to refuse jury instructions stating that the value element of theft required a mens rea of criminal negligence. The State concedes that failing to give the requested jury instruction was an error by the trial court, but argues that despite the error, the Court should affirm because the error was harmless beyond a reasonable doubt, and Defendant did not preserve his argument when he requested the instruction as to first-degree theft and failed to include second-degree theft. “The test to determine whether the omission of an element from the trial court’s instruction was harmless ‘is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained’… Under the state standard, the question is whether there is 'little likelihood that the particular error affected the verdict’” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). The Court found that the harmless error rule applies. The Court reasoned that criminal negligence does not require knowledge of the value of the items, but it does require awareness of the risk that the aggregate value of the items exceeded the statutory limit of $100. The Court held that even if the jury had found Defendant was not aware of the risk, they would have found beyond a reasonable doubt that a lack of awareness that the items had a value of more than $100 was a gross deviation from the standard of care of a person similarly situated. Affirmed.