State v. Thomas
This text of 780 P.2d 1197 (State v. Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
Defendant appeals from a judgment finding her guilty of theft in the third degree, a violation. ORS 164.043. Before defendant pled not guilty to the charge, the trial court, pursuant to ORS 161.565(2),1 amended the complaint to convert the charge from a misdemeanor to a violation. In a trial to the court, she was found guilty.2 Defendant argues that she was denied her constitutional rights under Article I, section 11, of the Oregon Constitution and the Fourteenth Amendment as a defendant in a criminal proceeding. We reverse.3
ORS 161.565(2) empowered the court to reduce a misdemeanor to a violation on a case-by-case basis by following a specified procedure. The legislature is not prohibited from decriminalizing a criminal offense. However, the legislature cannot avoid the constitutional guarantees that attach to a criminal prosecution by decriminalizing conduct while retaining the consequences that result from prosecution and conviction for a crime. Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977). The issue, therefore, is whether a prosecution for theft III may be tried as a violation without the [35]*35constitutional safeguards guaranteed in criminal prosecutions. If theft III, as a violation, retains traits that characterize a criminal prosecution, then defendant’s rights to a jury trial and to have her guilt proven beyond a reasonable doubt cannot be abrogated by the legislature.
In Brown, the court established five factors that must be balanced in deciding this issue. No single element is conclusive. 280 Or at 102. The factors are:
(1) The type of the offense;
(2) The nature of the penalty;
(3) The collateral consequences associated with a conviction;
(4) The punitive significance of the conviction to the community;
(5) The criminal type pre-trial practices such as arrest, physical restraint, search, booking and pre-trial detention.
The prohibition against theft is a cultural value that predates our constitutions and the common law. The prohibition has been carried into statutory enactments to the extent that, in Oregon today, ORS chapter 164 contains at least nine statutory offenses that include the word “theft” in their definition.4 At common law and by statute, a prosecution for theft has always required proof of “mens rea, ’’proof of guilt beyond a reasonable doubt and the right to a jury trial. Those factors weigh in favor of the argument that theft III, as a violation, retains its criminal characteristics.
The maximum penalty for theft III, as a violation, is a fine of $250. At the time of the adoption of the Oregon Constitution, petty offenses where the penalties were light did not have criminal connotations. See Behnke v. Jordan, 275 Or 199, 202, 550 P2d 736 (1976). As to collateral consequences, ORS 161.565(3) provides that a “conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime.” Both of those factors weigh in favor of the argument that the criminal characteristics of theft III as a [36]*36misdemeanor are not retained when the charge is converted to a violation. See City of Portland v. Tuttle, 295 Or 524, 668 P2d 1197 (1983).
The fourth factor focuses on the stigma or condemnation that accompanies a conviction. “What distinguishes a criminal from a civil sanction * * * is the judgment of community condemnation which accompanies and justifies its imposition.” Hart, “The Aims of the Criminal Law,” 23 Law & Contemp Probs 401, 404 (1958). Non-penal sanctions do not inevitably dictate the community’s perception of the conviction. See Kennedy v. Mendoza-Martinez, 372 US 144, 168, 83 S Ct 554, 9 L Ed 2d 644 (1963). Rather, that perception is typically based more on societal values. This factor weighs in favor of defendant.
The final factor requires examination of the pre-trial practices associated with the application of ORS 161.565(2) to theft III. Because the arrest is initially for a misdemeanor, all of the procedures that accompany being arrested for a crime attach. It is only after the defendant is brought to court for arraignment and after the court modifies the charge that noncriminal processes come into play.
Having weighed each factor, without any one factor being dispositive, we conclude that, when ORS 161.565(2) is applied to ORS 164.043, a prosecution for theft III as a violation does not lose the traits that characterize a criminal prosecution. We are particularly persuaded by the factors pertaining to the type of offense and its social significance in the community. Our culture has always viewed theft as a crime and continues to do so. Because of that heritage, we believe it would be difficult for our society to discriminate between the significance of a conviction for theft III, a misdemeanor, with its attendant criminal connotations, and a conviction for decriminalized theft III, a violation. Accordingly, defendant was entitled to a jury trial and to have her guiltproven beyond a reasonable doubt.
Reversed and remanded for a new trial.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
780 P.2d 1197, 99 Or. App. 32, 1989 Ore. App. LEXIS 1521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thomas-orctapp-1989.