State v. Ferguson ( 2024 )

No. 474 July 3, 2024 649
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOAN LORRAINE FERGUSON,
aka Joan Ferguson, aka Joan Lorrainne Ferguson,
aka Joan Lorranine Ferguson,
Defendant-Appellant.
Jackson County Circuit Court
21CR61241; A179909
Kelly W. Ravassipour, Judge.
Submitted December 11, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
MOONEY, J.
Reversed and remanded.
650 State v. Ferguson
MOONEY, J.
Defendant appeals a judgment of conviction for
theft in the first degree, ORS 164.055, assigning error to the
trial court’s failure to instruct the jury that she must have
been “at least criminally negligent” as to the property-value
element of that offense. ORS 164.055 provides, as relevant:
“(1) A person commits the crime of theft in the first
degree if, by means other than extortion, the person com-
mits theft as defined in ORS 164.015 and:
“(a) The total value of the property in a single or aggre-
gate transaction is $1,000 or more[.]”
The state concedes that the trial court plainly erred under
State v. Shedrick, 370 Or 255, 518 P3d 559 (2022), but it
argues that we should “nevertheless affirm because there
was little likelihood that the error affected the jury’s verdict.”
We accept the state’s concession that the trial court plainly
erred, but we do not agree that the error was harmless.
“Harmless error” refers to the legal standard
required by Article VII (Amended), section 3, of the Oregon
Constitution, which provides that a verdict “shall” be affirmed
notwithstanding trial error if the judgment appealed was
“such as should have been rendered in the case[.]” State v.
Davis, 336 Or 19, 28, 77 P3d 1111 (2003) (internal quotation
marks omitted). “Oregon’s constitutional test for affirmance
despite error consists of a single inquiry: Is there little like-
lihood that the particular error affected the verdict?” Davis,
336 Or at 32.
The facts are not in dispute. While shopping at
a Fred Meyer store, defendant placed over 100 items into
her shopping cart. Those items included clothing, cleaning
products, dog food, a clothes hamper, shampoo, makeup, a
broom, and food. Defendant scanned the food items, paid for
them, and then placed them in a bag. She left the store with-
out paying for the nonfood items, which totaled $1,313.48 in
value.
This case is like State v. Baker, 325 Or App 367,
528 P3d 812 (2023), where the defendant had been convicted
of second-degree theft under ORS 164.045 for stealing
Nonprecedential Memo Op: 333 Or App 649 (2024) 651
several bags of potting soil and plants from a Fred Meyer
store. The trial court erred when it did not instruct the jury
that it must find a culpable mental state as to the property-
value element of that crime, and we reversed the conviction
because we concluded that the failure to so instruct the jury
may have affected the outcome of the case. Id. at 371. In par-
ticular, we noted the absence of evidence as to the number
of bags and plants stolen, and the absence of evidence “that
the price of the items was clearly visible on either the items
themselves or on their displays.” Id. at 370-71. We expressly
disagreed “with the proposition that shoppers at depart-
ment stores can always expect to easily find items’ prices”
and we noted that “the jury was not presented with any pho-
tographs of where the items were displayed in the store.” Id.
at 370. As in Baker, there was no evidence presented here of
visible prices on the stolen items or their displays, no pho-
tographs of the items either in the cart or in the vehicle in
which they were placed. We do not consider the approximate
pricing of items such as unspecified cleaning products, dog
food, a clothes hamper, shampoo, makeup, and a broom to
be any more common knowledge than we did the pricing of
soil and plants in Baker. Given the evidence presented to
the jury, we cannot be certain that it would have concluded
beyond a reasonable doubt that there was a substantial and
unjustifiable risk that the items stolen would be worth more
than $1,000 and that defendant’s failure to be aware of that
risk constituted a gross deviation from the standard of care
that a reasonable person would have exercised at the time.
We cannot say that there is little likelihood that the trial
court’s instructional error affected the verdict and, there-
fore, we reverse and remand for further proceedings.
Reversed and remanded.