State v. Simonov

No. 1 February 4, 2016 531
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
ALEN VLADIMIR SIMONOV,
Respondent on Review.
(CC CF110325; CA A151415; SC S063135)
On review from the Court of Appeals.*
Argued and submitted November 12, 2015.
Jennifer S. Lloyd, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief were Ellen F. Rosenblum, Attorney
General, and Paul L. Smith, Deputy Solicitor General.
Lindsey Burrows, Deputy Public Defender, Salem, argued
the cause and filed the brief for respondent on review. With
her on the brief was Ernest G. Lannet, Chief Defender, Office
of Public Defense Services.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, Brewer, and Nakamoto, Justices.**
BREWER, J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
______________
**  Appeal from Umatilla County Circuit Court, Christopher Brauer, Judge.
269 Or App 735, 346 P3d 589 (2015).
**  Linder, J., retired December 31, 2015, and did not participate in the deci-
sion of this case.
532 State v. Simonov
Case Summary: Defendant was convicted of unauthorized use of a vehicle
(UUV) under ORS 164.135. Defendant appealed, alleging that the trial court had
improperly instructed the jury that it could convict defendant if it found that he
was criminally negligent with regard to whether the owner had consented to his
use of the owner’s vehicle. The Court of Appeals reversed, holding that the UUV
statute requires that a person using another’s vehicle knows that he or she lacks
the owner’s consent; therefore, the trial court improperly instructed the jury, and
the error was reversible. The state sought review. Held: (1) The act proscribed by
the UUV statute is the use of another’s vehicle without the owner’s consent; (2)
the minimum culpable mental state for that proscribed conduct is knowledge;
and (3) the trial court therefore failed to properly instruct the jury with respect
to the culpable mental state required to convict defendant.
The decision of the Court of Appeals is affirmed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
Cite as 358 Or 531 (2016) 533
BREWER, J.
Defendant appeals a judgment of conviction for
unauthorized use of a vehicle (UUV), a felony offense that is
committed when a person “takes, operates, exercises control
over, rides in or otherwise uses another’s vehicle * * * with-
out consent of the owner.” ORS 164.135(1)(a). At trial, defen-
dant requested an instruction that, to reach a guilty verdict,
the jury must find that he knew that the use of the vehicle
was without the owner’s consent; instead, the trial court
instructed the jury that it could convict defendant if it found
that he was criminally negligent with regard to whether the
owner had consented. The Court of Appeals reversed defen-
dant’s ensuing conviction on the ground that the charged
offense requires that the person riding in the vehicle knows
that the vehicle is being used without the owner’s consent,
the trial court therefore improperly instructed the jury, and
the error was reversible. State v. Simonov, 269 Or App 735,
346 P3d 589 (2015). For the reasons explained below, we
affirm the decision of the Court of Appeals, reverse the judg-
ment convicting defendant, and remand to the circuit court
for further proceedings.
I.  FACTS AND PROCEDURAL BACKGROUND
Because criminal defendants are entitled to have
the jury instructed in accordance with their theory of the
case if the instructions correctly state the law and there is
evidence to support giving them, State v. Barnes, 329 Or
327, 334, 986 P2d 1160 (1999), we set out the facts consis-
tent with that standard. At trial, the state presented evi-
dence that defendant and his brother, Vadim, talked to
their neighbor, Goodnow, about purchasing a 1983 Datsun
pickup truck. Goodnow testified that she agreed to allow
the brothers to take the truck to a car wash in Pendleton to
check for an oil leak. Goodnow watched the brothers drive
away. Because the brothers failed to return the truck when
she expected them to, Goodnow reported the truck stolen.
Defendant later left a voicemail message stating, “I’m in
Portland. We’re bringing the truck back.” Goodnow saw
Vadim pull the truck into her driveway several hours later,
with defendant in the passenger seat.
534 State v. Simonov
At trial, defendant claimed that Vadim had
obtained permission to use the truck and that defendant
had not known that the brothers’ use of the vehicle exceeded
the scope of the consent that Goodnow had given. To sup-
port that theory, defendant presented evidence that Vadim,
not defendant, had received permission from Goodnow to
borrow the truck and that defendant did not know that
Vadim had violated Goodnow’s instructions. Vadim testified
that he had talked to Goodnow about taking the truck to a
mechanic, but he insisted that defendant neither overheard
that conversation nor knew what Goodnow and Vadim had
discussed. According to Vadim, the brothers took the truck
to a mechanic in Hermiston, stopping at a gas station on the
way. The truck failed to start, so defendant called his girl-
friend to pick him up at the gas station. The mechanic met
Vadim at the station and got the truck running. Vadim left
defendant at the station, drove to Portland to deliver money
to his wife, and then picked defendant up from his girl-
friend’s house in Pendleton on the way back to Goodnow’s
house.
In charging defendant with violating ORS 164.135(1)(a),
the indictment in this case alleged a culpable mental state
of “criminal negligence” for the “without consent” element of
the offense. In accordance with his theory of the case, defen-
dant requested the following jury instruction:
“Oregon law provides that a person commits the crime
of unauthorized use of a vehicle when the person know-
ingly rides [in] another’s vehicle without the consent of the
owner.
“In this case, to establish the crime of unauthorized use
of a vehicle, the state must prove beyond a reasonable doubt
the following four elements:
“* * * * *
“(4) [Defendant] knew the use of [the 1983] Datsun
Pickup was without the consent of the owner.”
Defendant also sought an instruction that, “[w]hen used in
the phrase ‘[defendant] knew the use of [the] vehicle was
without the consent of the owner,’ ‘knowingly’ or ‘with knowl-
edge’ means that the person acts with an awareness that he
had [actual] knowledge [of] the lack of consent of the owner.”
Cite as 358 Or 531 (2016) 535
The trial court declined to give those instructions
and, instead, instructed the jury as follows:
“Oregon law * * * provides that a person commits the
crime of unauthorized use of a vehicle when a person
unlawfully and with criminal negligence takes, operates,
exercises control over, rides in or otherwise uses another’s
vehicle without the consent of the owner.
“In this case, to establish the crime of unauthorized
use of a vehicle, the State must prove beyond a reasonable
doubt * * * [that defendant] failed to be aware of a substan-
tial and unjustifiable risk that he did not have the consent
of the owner.
“A person acts with criminal negligence if that person
fails to be aware of a substantial and unjustifiable risk that
a particular result will occur or a particular circumstance
exists.
“* * * * *
“When used in the phrase, [‘]the defendant * * * did
unlawfully and with criminal negligence take, operate,
exercise control over, ride in and otherwise use a vehicle,
a 1983 Datsun pickup[,] without the consent of the owner
* * *,[’] criminal negligence or criminally negligent means
that the person fails to be aware of a substantial and unjus-
tifiable risk that the 1983 Datsun pickup was being oper-
ated, controlled, [ridden] in or otherwise used without the
consent of the owner.”
On appeal, defendant assigned error to the instruc-
tion that criminal negligence is a sufficient culpable mental
state to prove the “without consent” element of UUV and to
the trial court’s corresponding failure to instruct the jury
that the state had to prove that defendant had known that
the vehicle was being used without the owner’s consent. The
state responded that the trial court properly instructed the
jury in accordance with ORS 161.115(2), which provides
that, if the legislature has not prescribed a culpable mental
state for a particular offense, any among a range of culpable
mental states—intent, knowledge, recklessness, or crimi-
nal negligence—will suffice. The Court of Appeals reversed,
concluding that it was bound by several of its prior decisions
holding that “knowledge” is the minimum culpable men-
tal state that can apply to an owner’s lack of consent with
536 State v. Simonov
respect to the offense of UUV. Simonov, 269 Or App at 743.
We allowed the state’s petition for review to determine the
minimum culpable mental state required for the “without
consent” element of that offense.
In support of its position that the minimum statu-
tory level of culpability—criminal negligence—is applicable,
the state relies on a series of interconnected propositions.
The state first acknowledges that Oregon law generally
requires proof of a culpable mental state for a crime defined
in the Oregon Criminal Code and that most elements of such
crimes also require proof of a culpable mental state. The
state further notes that, under ORS 161.085, the applica-
ble culpable mental state(s) for an element generally depend
on the type of element at issue, in particular whether the
element describes a “circumstance,” a “result,” or “conduct.”
The state next observes that criminal negligence is a suf-
ficient culpable mental state to establish a circumstance,
ORS 161.085(10), whereas knowledge is the minimum cul-
pable mental state for conduct elements. ORS 161.085(8).
Proceeding from those propositions, the state argues
that the owner’s lack of consent in a UUV prosecution is a
circumstance, not conduct, because it is an “accessory fact”
that accompanies an offender’s physical act. According to
the state, the owner’s lack of consent is a fact that exists
independently of the offender’s act and therefore is distin-
guishable from conduct. It follows, the state reasons, that
the trial court did not err by instructing the jury that crim-
inal negligence was a sufficient culpable mental state to
prove the “without consent” element of UUV in this case.
Defendant responds that an owner’s lack of consent
is part of the “conduct” proscribed by ORS 164.135(1)(a)
and, therefore, the minimum culpability requirement is
knowledge of that fact. ORS 161.085(8). As defendant sees
it, conduct includes the “essential nature” of criminal activ-
ity that makes it culpable. Defendant agrees with the state
that a “circumstance” is an accessory fact that accompanies
an offender’s conduct and that criminal negligence is a suf-
ficient mental state to establish, with respect to a circum-
stance, to hold a defendant culpable. However, according to
defendant, the owner’s lack of consent is part of the essential
Cite as 358 Or 531 (2016) 537
nature of the offense of UUV, which means that proof of his
knowledge of that fact was required and that the trial court
therefore erred in instructing the jury that criminal negli-
gence was sufficient.
II. ANALYSIS
A.  Core Principles
At the outset, we describe certain core principles
that guide our analysis. “In Oregon, criminal liability gen-
erally requires an act that is combined with a particular
mental state.” State v. Rutley, 343 Or 368, 373, 171 P3d 361
(2007). The statute defining an offense determines its appli-
cable mental state (or mental states), as informed by the
Oregon Criminal Code1 general culpability provisions, ORS
161.085 to 161.115. Id. For crimes defined and set out in the
Criminal Code—including ORS 164.135—every “material
element” of the offense ordinarily requires proof of a culpa-
ble mental state. ORS 161.095(2) (“Except as provided in
ORS 161.105 [governing violations and crimes outside the
Criminal Code], a person is not guilty of an offense unless
the person acts with a culpable mental state with respect
to each material element of the offense that necessarily
requires a culpable mental state.”).2 An element is “mate-
rial” unless it relates “solely to the statute of limitations,
jurisdiction, venue” or similar matters. State v. Blanton, 284
1
ORS 161.005 spells out precisely which provisions of the Oregon Revised
Statutes may be cited as the “Oregon Criminal Code of 1971,” commonly referred
to as the “Oregon Criminal Code” without the date. See, e.g., ORS 161.535 (refer-
ring to “the Oregon Criminal Code”); State v. Rainoldi, 351 Or 486, 491, 268 P3d
568 (2011). ORS 164.135 is within the Criminal Code.
2
By its terms, the circular requirement that there be proof of a culpable
mental state for “each material element of the offense that necessarily requires
a culpable mental state” applies “[e]xcept as provided in ORS 161.105.” State v.
Blanton, 284 Or 591, 595, 588 P2d 28 (1978). The exception to which ORS 161.095
refers provides, in part:
“Notwithstanding ORS 161.095, a culpable mental state is not required
if:
“* * * * *
“(b)  An offense defined by a statute outside the Oregon Criminal Code
clearly indicates a legislative intent to dispense with any culpable mental
state requirement for the offense or for any material element thereof.”
ORS 161.105(1)(b). The statutes thus impose different requirements, depend-
ing on whether the offense at issue is defined by a statute within the Oregon
Criminal Code.
538 State v. Simonov
Or 591, 595, 588 P2d 28 (1978). In practice, then, most ele-
ments of offenses set out in the Criminal Code require proof
of a culpable mental state.
The legislature sometimes has expressly provided
mental states for all or certain of the elements of offenses
in the Criminal Code, including the lack of a victim’s con-
sent.3 If a statute defining an offense in the Criminal Code
includes a single mental state “but does not specify the ele-
ment to which it applies, the prescribed culpable mental
state applies to each material element of the offense.” ORS
161.115(1).
If, as with the UUV statute, ORS 164.135(1)(a), the
statute does not prescribe a culpable mental state for all or
some of the material elements of the offense, “culpability
is nonetheless required and is established only if a person
acts intentionally, knowingly, recklessly or with criminal
negligence.” ORS 161.115(2). Those four enumerated mental
3
The first-degree rape statute, ORS 163.375, provides an apt illustration.
That statute provides:
“(1)  A person who has sexual intercourse with another person commits
the crime of rape in the first degree if:
“(a)  The victim is subjected to forcible compulsion by the person;
“(b)  The victim is under 12 years of age;
“(c)  The victim is under 16 years of age and is the person’s sibling, of the
whole or half blood, the person’s child or the person’s spouse’s child; or
“(d)  The victim is incapable of consent by reason of mental defect, mental
incapacitation or physical helplessness.”
The requisite mental state to convict a defendant of that offense depends on
the state’s theory of lack of consent. If lack of consent exists because the victim
is under the age of 16, then no culpable mental state is required, creating the
strict-liability offense of statutory rape. See ORS 163.325(1) (providing that, in
such circumstances, “it is no defense that the defendant did not know the child’s
age or that the defendant reasonably believed the child to be older than the age
of 16”). If lack of consent exists because the victim is “under a specified age other
than 16,” then only a reasonable mistake will excuse the defendant’s conduct, and
the applicable mental state is criminal negligence. See ORS 163.325(2) (provid-
ing that, in such circumstances, “it is an affirmative defense for the defendant to
prove that the defendant reasonably believed the child to be above the specified
age at the time of the alleged offense”). But, if lack of consent is based on the
victim’s incapacity, then an honest mistake, even if unreasonable, will excuse
the defendant’s conduct, meaning that the applicable mental state is knowingly.
See ORS 163.325(3) (providing that, in such circumstances, “it is an affirmative
defense for the defendant to prove that at the time of the alleged offense the
defendant did not know of the facts or conditions responsible for the victim’s inca-
pacity to consent”).
Cite as 358 Or 531 (2016) 539
states do not freely apply to any element; rather, they each
apply only to particular types of elements. State v. Crosby,
342 Or 419, 428-29, 154 P3d 97 (2007). The definition of
each mental state specifies the types of elements to which
the mental state applies:
“(7)  ‘Intentionally’ or ‘with intent,’ when used with
respect to a result or to conduct described by a statute
defining an offense, means that a person acts with a con-
scious objective to cause the result or to engage in the con-
duct so described.
“(8)  ‘Knowingly’ or ‘with knowledge,’ when used with
respect to conduct or to a circumstance described by a stat-
ute defining an offense, means that a person acts with an
awareness that the conduct of the person is of a nature so
described or that a circumstance so described exists.
“(9)  ‘Recklessly,’ when used with respect to a result
or to a circumstance described by a statute defining an
offense, means that a person is aware of and consciously
disregards a substantial and unjustifiable risk that the
result will occur or that the circumstance exists. The risk
must be of such nature and degree that disregard thereof
constitutes a gross deviation from the standard of care that
a reasonable person would observe in the situation.
“(10) ‘Criminal negligence’ or ‘criminally negligent’
when used with respect to a result or to a circumstance
described by a statute defining an offense, means that a
person fails to be aware of a substantial and unjustifiable
risk that the result will occur or that the circumstance
exists. The risk must be of such a nature and degree 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(7) - (10).
To identify which mental state applies when a stat-
ute does not prescribe a culpable mental state for material
elements of the offense, it is necessary to determine the type
or types of those elements. Unless otherwise indicated for
a particular offense, “conduct” elements require proof of
an intentional or knowing mental state, “result” elements
require proof of an intentional, reckless, or criminally neg-
ligent mental state, and “circumstance” elements require
540 State v. Simonov
proof of a knowing, reckless, or criminally negligent mental
state. Id. The state may plead and prove the least culpable
of the applicable mental states for a particular element of an
offense. ORS 161.115(3). As a result, the minimum culpable
mental state for elements that constitute conduct is knowl-
edge, and the minimum culpable mental state for result and
circumstance elements is criminal negligence.
As explained below, ORS 164.135 does not expressly
prescribe the applicable mental state(s) for any of the ele-
ments of UUV. It follows that, if the owner’s lack of consent
is part of the conduct that the offense of UUV proscribes,
the minimum culpable mental state for that element is
knowledge, and the trial court improperly instructed the
jury. Thus, the dispositive issue on review is whether the
“without consent” element of UUV is part of the conduct pro-
scribed by the offense or whether it is a circumstance.
B.  The Nature and Scope of Conduct
Unlike “result” or “circumstance,” “conduct” is
defined within the Code: “ ‘Conduct’ means an act or omis-
sion and its accompanying mental state.” ORS 161.085(4).
An “act” is “a bodily movement.” ORS 161.085(1). An “omis-
sion” is “a failure to perform an act the performance of
which is required by law.” ORS 161.085(3). Because conduct
consists of an act (or omission) and an accompanying mental
state, the applicable mental state necessarily informs and
shapes the meaning of “conduct.”
As noted, the accompanying mental state for con-
duct elements is assigned by the statute defining an offense
within the Criminal Code. Crosby, 342 Or at 429. If no men-
tal state is provided for a conduct element, the minimum
culpable mental state is “knowingly.” ORS 161.085(8); ORS
161.115(2). “ ‘Knowingly’ or ‘with knowledge,’ when used
with respect to conduct * * * means that a person acts with
an awareness that the conduct of the person is of a nature so
described * * *.” ORS 161.085(8). When used with respect to
“conduct,” “knowledge” therefore applies to more than a bodily
movement; the person also must be aware that the “conduct”
is “of a nature so described.” Id. “Nature,” in turn, refers to
“the essential character or constitution of something * * *;
esp : the essence or ultimate form of something.” Webster’s
Cite as 358 Or 531 (2016) 541
Third New Int’l Dictionary 1507 (unabridged ed 2002). The
phrase “so described” in ORS 161.085(8) directs the reader
to the statute defining the offense, which describes the entire
conduct proscribed by the legislature. The other mental state
that applies to conduct elements, “intentionally,” includes
similar phrasing. See ORS 161.085(7) (“ ‘Intentionally’ * * *
means that a person acts with a conscious objective * * * to
engage in the conduct so described.”). Read together, then,
the definitions of the mental states that apply to “conduct”
indicate that they do not merely apply to a particular bodily
movement; they also more broadly apply to other elements
that describe the nature, that is, the essential character, of
the prohibited act.
Other pertinent statutory context reinforces that
conclusion. ORS 161.150 provides that “[a] person is guilty
of a crime if it is committed by the person’s own conduct or
by the conduct of another for which the person is criminally
liable, or both.” In addition, ORS 161.095(1), which defines
the minimum requirements of criminal liability, provides:
“The minimal requirement for criminal liability is the
performance by a person of conduct which includes a volun-
tary act or the omission to perform an act which the person
is capable of performing.”
In both of those provisions, “conduct” is the foundation of
criminal liability, which is consistent with the principle
that conduct elements are those that describe the nature or
essential character of the defendant’s act or omission. The
question, then, is how conduct differs from circumstance.
The theft statutes provide an example of the role
of circumstance elements in a criminal offense. “Theft” in
any degree is defined by ORS 164.015, which describes the
prohibited conduct (the taking of property) and the applica-
ble mental state (intent to deprive another of property). The
prohibited conduct for theft in any degree is the taking of
another’s property with the intent to deprive the owner of
it. Id. A person commits first-degree theft when the person
commits theft as defined in ORS 164.015, and the value of
the property is $1,000 or more. ORS 164.055. If the value
of the property is $100 or more and less than $1,000, the
person commits second-degree theft, and if the value of the
542 State v. Simonov
property is less than $100, the person commits third-degree
theft. ORS 164.045 (second-degree theft); ORS 164.043
(third-degree theft).
The specific value of the stolen property does not
change the essential character of the prohibited conduct.
Accordingly, the value of the stolen property for any degree
of theft is a circumstance; it is an accessory fact that accom-
panies, not modifies, the defendant’s conduct. See State v.
Jones, 223 Or App 611, 621, 196 P3d 97 (2008), rev den, 345
Or 618 (2009) (holding that, under a prior version of the
first-degree theft statute requiring proof that the value of
the property was over $750, the state was not required to
prove that the defendant knew that the value of the property
exceeded $750).
This court’s previous case law provides some assis-
tance in distinguishing between elements that describe cir-
cumstances and other elements. In Crosby, this court rec-
ognized that, “[w]ithout definitions, it is not always easy to
determine how to categorize a specific material element of
a crime.” 342 Or at 429. In that case, the court grappled
with the issue whether a victim’s death in ORS 163.118(1)(c)
(defining first-degree manslaughter) is a circumstance or a
result. Id. at 430-31. In concluding that death in that con-
text was a result, the court reasoned:
“Death is not merely an accessory fact that accompa-
nies the defendant’s conduct. The object of the mental state
‘recklessly’ is ‘causes death.’ That object, ‘death,’ is not a
‘circumstance’ here; no defendant could be reckless ‘that
the circumstance [death] exists.’ ORS 161.085(9). Instead,
death is a result; a defendant can be reckless ‘that the
result [death] will occur.’ Id. For a defendant to have com-
mitted manslaughter under ORS 163.118(1)(c), then, the
defendant must have been ‘aware of and consciously disre-
gard[ed] a substantial and unjustifiable risk’ of causing a
result: death.”
Crosby, 342 Or at 430-31. This court’s description in Crosby
of a circumstance as “an accessory fact that accompanies
the defendant’s conduct” is consistent with the dictionary
definition of that term. See Black’s Law Dictionary 296 (10th
ed 2014) (defining “attendant circumstance” as “a fact that is
situationally relevant to a particular event or occurrence”).
Cite as 358 Or 531 (2016) 543
Although it involved a somewhat different issue per-
taining to an offense outside the Criminal Code, this court’s
decision in State v. Rainoldi, 351 Or 486, 488, 268 P3d 568
(2011), also is instructive. In that case, this court interpreted
ORS 166.270(1) (defining felon in possession of a firearm, an
offense codified outside the Criminal Code) in determining
whether the element that the defendant previously had been
convicted of a felony required proof of a culpable mental
state. This court in Rainoldi outlined a four-factor test for
determining whether the legislature intended to dispense
with a culpable mental state for an element of an offense
outside the Criminal Code. Id. at 492-95. The second factor
requires the court to determine “the nature of the element
at issue.” Id. at 493.
In explaining that factor, this court distinguished
between conduct and “status,” observing that conduct his-
torically required proof of a culpable mental state, whereas
status, such as the fact that a person has been convicted
of a felony, did not. Id. at 497 (“[W]e note that proof that
the defendant ‘has been convicted of a felony’ refers to an
established class of persons who are not permitted to pos-
sess firearms. As such, the element refers to a status, as
opposed to conduct, which ordinarily does not require proof
of a culpable mental state.”). Although a particular “status”
sometimes is required to complete a crime, it generally is
not part of the essential character of a proscribed act; in
fact, the defendant’s mental state usually has nothing to do
with whether the status exists. See, e.g., State v. Miller, 309
Or 362, 369, 788 P2d 974 (1990) (“Having a certain [blood
alcohol content] or being under the influence is a status, and
a person’s mental state has nothing to do with whether that
status exists. The statute requires only that the state prove
that a defendant had the status while driving, not that the
defendant knew or should have known of it.”).4
4
Another case to which the parties refer is Rutley, which involved the unlaw-
ful delivery of controlled substances within 1,000 feet of a school. Rutley arose
under former ORS 475.999 (1999), renumbered as ORS 475.904 (2005), an offense
outside the Criminal Code. The principal issue in Rutley was whether former ORS
475.999 required a defendant to know that he was within 1,000 feet of a school
when he delivered a controlled substance. 343 Or at 370. The court concluded
that the legislature clearly intended to dispense with the culpable mental state
requirement with respect to the distance element based on three factors: “[T]he
544 State v. Simonov
To paraphrase this court’s statement in Crosby, the
line between conduct and other elements is not always easy
to draw. It could be argued, in a broad sense, that every
element that is required to create criminal liability is part
of the essential character of the defendant’s act or omission.
If that view were correct, the meanings of conduct and cir-
cumstance would confusingly overlap. But, as our previous
decisions show, the line between the two types of elements,
although sometimes difficult to discern, nevertheless is
a principled one. To constitute conduct, an element must
make the defendant’s own act or omission of a described
nature, which stands in contrast to circumstance elements
of an offense that refer to facts that attend or accompany
the defendant’s conduct. Whether a particular element—
including lack of permission or consent—constitutes part of
the defendant’s conduct or is a circumstance depends on a
careful examination, using well-established statutory inter-
pretation principles, of the role of the element in the offense
and its relationship to the other elements.
Although the legislative history of the Criminal
Code’s culpability provisions is of limited use in illuminat-
ing the issue before us, it does merit brief discussion. The
1971 Criminal Code was the product of a years-long revision
of Oregon’s criminal laws by the Criminal Law Revision
Commission. The Commission’s discussions of early drafts of
the Code reveal that the drafters were divided about the mean-
ings of conduct and circumstance. See, e.g., Tape Recording,
Criminal Law Revision Commission, Subcommittee No. 1,
Dec 18, 1968, Tape 29, Side 1 (Commission members dis-
agreeing over meaning of “attendant circumstance” in a
variety of hypotheticals). In addition, some of the drafters
were skeptical of including criminal negligence as a min-
imum culpable mental state. In a subcommittee discus-
sion of culpability requirements, Law Commission reporter
Courtney Arthur objected that punishing conduct that was
legislature’s obvious intent to protect children from predatory drug dealers by
enhancing the penalty for delivery in the vicinity of a school, the grammatical
structure of the statute’s text, and the nature of the element (no mental state is
logically required for a distance element)[.]” Id. at 377. Based on the issue before
it, in the context of an offense outside the Criminal Code, the court in Rutley had
no occasion to characterize the distance element of the charged offense by type.
That issue simply was not relevant to the analysis.
Cite as 358 Or 531 (2016) 545
merely negligent would impose criminal consequences on
persons who were not aware that they had created the risk
of harm for which they were punished. Tape Recording,
Criminal Law Revision Commission, Subcommittee No. 1,
Dec 18, 1968, Tape 29, Side 2. Punishment for negligent acts
or omissions, Arthur opined, would not lead to reform or the
deterrence of future criminal conduct. Id.Based on that reasoning, the minimum default cul-
pable mental state for any element under the original pro-
posed Code was “recklessness.” Id. Negligence was “viewed
as an exceptional basis for liability” that would apply only
if a particular statute defining an offense specified it as the
applicable mental state. Id. (statement of Project Director
Donald Paillette). That view apparently prevailed through
the presentation of the final preliminary draft to the
full Commission. Preliminary Draft No. 4, Criminal Law
Revision Commission, Article 2, § 3 (Apr 1969). Paillette
explained the provision to the full Commission, stating,
“The use of ‘criminal negligence’ has been limited so that it
will not generally apply; in fact, it is specifically said that
it will not apply unless it clearly appears by wording of the
statute defining the crime. This does not depart from the
[Model Penal Code].”
Minutes, Criminal Law Revision Commission, June 17,
1969. The full Commission approved that draft. Id.
Later, without recorded discussion, the Commission
amended the minimum culpable mental state provision to
the form that the legislature enacted:
“Except as provided in ORS 161.105 [related to viola-
tions and strict-liability offenses], if a statute defining an
offense does not prescribe a culpable mental state, culpa-
bility is nonetheless required and is established only if a
person acts intentionally, knowingly, recklessly or with
criminal negligence.”
ORS 161.115(2). The Commentary to the Code provides no
explanation for that change, stating only that “[t]his sec-
tion provides a statutory framework for construing penal
statutes as regards their culpability content, and the
application of the culpable mental state requirement to
546 State v. Simonov
specific offenses.” Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft
and Report § 10, 9 (July 1970). In the end, the drafters’ even-
tual willingness to make criminal negligence an applicable
mental state for circumstance and result elements does not
meaningfully inform the inquiry before us.
To summarize: The determination whether a par-
ticular element of an offense within the Criminal Code
requires a culpable mental state and, if so, what mental
state is required, ultimately is a matter of legislative intent.
The statutory interpretation inquiry is holistic, but certain
guidelines are useful. As pertinent here, when an element of
an offense within the Criminal Code describes the nature,
that is, the essential character, of a proscribed act or omis-
sion, it generally is a conduct element, and (unless differ-
ent mental states are specified in the statute defining the
offense), the minimum culpable mental state is knowledge.
In contrast, when an element of a Criminal Code offense
describes an accessory fact that accompanies the defen-
dant’s conduct, it is a circumstance element for which (again,
unless different mental states are specified), the minimum
culpable mental state is criminal negligence.
C.  Statutory Interpretation of ORS 164.135(1)(a)
With those principles in mind, we conclude that the
text and context of ORS 164.135(1)(a), as well as the perti-
nent commentary to the Criminal Code, indicate that “with-
out the consent of the owner” is part of the nature or essen-
tial character of the act proscribed by that statute. As noted,
that statute provides that a person commits the crime of
UUV when “[t]he person takes, operates, exercises control
over, rides in or otherwise uses another’s vehicle, boat, or
aircraft without the consent of the owner.” The grammat-
ical role of each of the phrases in that provision is telling.
“The person” is the subject of the sentence, and “takes,”
“operates,” “exercises,” “rides,” and “uses” are verbs describ-
ing bodily movements that the person makes. The phrase
“[a]nother’s vehicle, boat or aircraft” is the direct object of
some of the listed verbs (takes, operates, uses), and it is the
object of a prepositional phrase in the others (exercises con-
trol over and rides in). “Without the consent of the owner”
Cite as 358 Or 531 (2016) 547
is an additional prepositional phrase (actually two preposi-
tional phrases: “without the consent” and “of the owner”),
regardless of which alternative verb applies. “Prepositions
are words that show relationships.” Marcilionis v. Farmers
Ins. Co., 318 Or 640, 645, 871 P2d 470 (1994). Prepositional
phrases can be used as nouns, adverbs, or adjectives. The
Chicago Manual of Style § 5.166, 188 (15th ed 2003). When
used as adverbs, prepositional phrases are called adverbial
phrases, and they modify verbs. Id.
Within the structure of ORS 164.135(1)(a), “with-
out the consent of the owner” is an adverbial phrase, and it
modifies the verb “rides” or one of the other verbs set out.
That adverbial phrase describes how the person rides: with-
out the owner’s consent. In that way, the text describes a
particular form of conduct, unauthorized use. If the legisla-
ture had meant to criminalize riding in another’s vehicle,
regardless of whether the actor knew that the owner did not
consent, it could have described particular acts and then,
in a series of separately numbered provisions, it could have
described the circumstance elements attendant to those
acts.5 Even separating the owner’s lack of consent from the
verb in independent clauses arguably could have signaled
a legislative intent to create an independent circumstance
element. But, where, as in ORS 164.135(1)(A), the owner’s
lack of consent changes the meaning of “ride,” the lack of
consent is part of the nature or essential character of the
proscribed act.
5
An example of such a structure is found in ORS 163.415, describing the
offense of sexual abuse in the third degree. That statute provides, in part:
“(1)  A person commits the crime of sexual abuse in the third degree if:
“(a)  The person subjects another person to sexual contact and:
“(A)  The victim does not consent to the sexual contact; or
“(B)  The victim is incapable of consent by reason of being under 18 years
of age[.]”
In that provision, the proscribed act—subjecting another person to sexual
contact—is set out in a separate paragraph from the element that the victim does
not consent to the contact. Although it is not necessary to consider what mental
state requirement attaches to the “does not consent” element of ORS 163.415 in
this case, we note that the Court of Appeals has held that criminal negligence
will suffice. See State v. Wier, 260 Or App 341, 354, 317 P3d 330 (2013) (“ORS
163.415 requires the state to prove that a defendant acted knowingly, recklessly,
or with criminal negligence with respect to a victim’s lack of consent[.]”).
548 State v. Simonov
The state’s contrasting interpretation would require
proof only that a passenger was criminally negligent as to
whether the owner of the vehicle in which he or she rode
consented to the use. Under that interpretation, naive trust
could subject a person to criminal liability for a felony. ORS
164.135(2). The severity of that consequence suggests that
the legislature did not contemplate that mere criminal neg-
ligence would suffice to establish criminal liability for UUV.
That the crime of UUV criminalizes a particular
form of conduct—unauthorized use—borders on the axiom-
atic. See Commentary to the Criminal Code § 134 at 142
(“This section covers the ‘joy-riding’ type of offense where
the actor makes unauthorized use of another’s vehicle but
without the intent to steal it or permanently deprive the
owner of its use.”). The nature of joyriding is the temporary
use of a vehicle without permission. Because riding with-
out permission is part of the essential character of the pro-
scribed act, to be convicted of UUV, a person must know
that the vehicle is being used without the owner’s consent.
D.  Application
As discussed, the state’s evidence in this case
showed that defendant rode as a passenger in his neighbor’s
vehicle while his brother drove. Defendant countered that
evidence with his own evidence showing that his brother
obtained permission from the neighbor to use the truck and
that defendant did not know that they had used the truck
beyond the neighbor’s permission. Consistently with that
evidence, defendant requested jury instructions that would
have permitted a finding of guilt only if he “knew the use of
the [vehicle] was without the consent of the owner,” and he
had “actual knowledge” that the owner had not consented to
the use. Defendant also sought an instruction that “[w]hen
used in the phrase ‘[defendant] knew the use of [the] vehicle
was without the consent of the owner,’ ‘knowingly’ or ‘with
knowledge’ means that the person acts with an awareness
that he had [actual] knowledge [of] the lack of consent of the
owner.”
The trial court declined to give defendant’s requested
instructions and, instead, instructed the jury that, for pur-
poses of the “without consent” element, the state had to
Cite as 358 Or 531 (2016) 549
prove only that defendant acted with criminal negligence
as defined in ORS 161.085(10)—that is, that defendant had
“failed to be aware of a substantial and unjustifiable risk
that he did not have the consent of the owner.” Because the
state had to prove that defendant knew that the owner of the
vehicle in which he rode did not consent to its use to convict
defendant, the trial court erred by instructing the jury that
criminal negligence was the applicable mental state for the
offense. For the same reason, the trial court erred in failing
to give defendant’s requested instructions, which provided a
correct statement of the law. See Williams v. Philip Morris
Inc., 344 Or 45, 55, 176 P3d 1255 (2008) (“Under Oregon
law, there are two different types of error respecting jury
instructions: (1) error in the failure to give a proposed jury
instruction, and (2) error in the jury instructions that were
actually given.”).
III. CONCLUSION
To summarize: The nature, that is, the essential
character, of the act of UUV proscribed by ORS 164.135(1)(a)
is the use of a vehicle without the owner’s consent. Lack of
consent therefore is part of the conduct that the offense pro-
scribes, and the minimum culpable mental state for that ele-
ment is knowledge. Because the trial court failed to properly
instruct the jury with respect to the culpable mental state
required to convict defendant, we affirm the decision of the
Court of Appeals, reverse the judgment of conviction, and
remand to the circuit court for a new trial.6
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
6
The state does not challenge the Court of Appeals’ conclusion that the
instructional error in this case was prejudicial and, therefore, reversible.
Accordingly, we need not address that issue.