State v. Simonov

The consent element of ORS 164.135(1) is a conduct element, as opposed to a circumstance element, which requires a minimum culpable mental state of knowing, meaning the State must prove the defendant knew that the owner of the vehicle he used, rode in, or otherwise exercised control over did not give consent.

Defendant appealed a judgment of conviction for unauthorized use of a vehicle (UUV) under ORS 164.135(1), an offense that requires a person take, operate, exercise control over, ride in or otherwise use another’s vehicle without consent of the owner. Defendant’s brother had obtained permission from the owner of a truck to take the truck for a short trip into Pendleton; instead, Defendant and his brother took the truck for several hours during which Defendant’s brother took the truck to Portland and then picked Defendant up before returning the truck to its owner. The indictment called for a criminal negligence culpable mental state for the element dealing with consent; at trial, Defendant requested jury instructions explaining the culpable mental state was knowing with regard to the owner’s consent and also that “knowing” means Defendant had actual knowledge of lack of the owner’s consent. The trial court instead gave an instruction that criminal negligence was the proper mental state and that the State only had to prove Defendant had failed to be aware of the substantial and unjustifiable risk that he did not have the owner’s consent. On appeal, Defendant assigned error to the instruction given at trial because, under ORS 161.115(2), when the legislature fails to provide a culpable mental state for a particular offense intent, knowledge, recklessness, or criminal negligence would be sufficient. The Court of Appeals reversed based on precedent that held knowledge is the minimum culpable mental state that can apply to the consent element in UUV offenses. After extensive analysis of the text and legislative history of several statutes in the Oregon Criminal Code and the grammar used in ORS 164.135(1)(a), the Court held that the minimum culpable mental state for the consent element of a UUV offense is knowledge because the consent element is part of the “essential nature” of the conduct proscribed by the UUV statute, which requires a minimum culpable state of knowledge, and not merely part of the attendant circumstances of the crime, which requires only a minimum culpable mental state of only criminal negligence. Therefore, the trial court erred. Decision of the Court of Appeals affirmed; judgment of the circuit court reversed and case remanded to the circuit court for further proceedings.