No. 47	                   October 3, 2013	295

            IN THE SUPREME COURT OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Petitioner on Review,
                              v.
                  TAWANNA D. FULLER,
                 aka Tawana Divier Fuller,
                   Respondent on Review.
          (CC 100748130; CA A147724; SC S060808)

   En Banc
   On review from the Court of Appeals.*
   Argued and submitted June 5, 2013.
   Jeremy C. Rice, Assistant Attorney General, Salem,
argued the cause for petitioner on review. With him on the
brief were Ellen F. Rosenblum, Attorney General, and Anna
M. Joyce, Solicitor General.
   Karen J. Mockrin, Portland, argued the cause and filed
the brief for respondent on review.
    Cody Hoesly, Larkins Vacura LLP, Portland, Cooperating
Attorney for ACLU Foundation of Oregon, Inc. and Kevin
Diaz, Legal Director, ACLU Foundation of Oregon, Inc.,
filed a brief in support of the respondent on review.
   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 Multnomah County Circuit Court, Michael Zusman, Judge.
252 Or App 391, 287 P3d 1263 (2012).
296	                                                            State v. Fuller

     Defendant appeals from her conviction for third-degree theft and attempted
first-degree theft arguing that the circuit court erred in rejecting her assertion
of her right to a jury trial and other protections under Article I, section 11, of
the Oregon Constitution. In July 2010, defendant was accused of shoplifting,
and she was arrested and briefly incarcerated. Defendant was charged with
third-degree theft, a Class C misdemeanor, and attempted first-degree theft, a
Class A misdemeanor. At defendant’s arraignment, the state elected under ORS
161.566(1) to prosecute the charges as violations rather than misdemeanors.
Defendant filed a motion to have the charges tried to a jury and to be proved
guilty beyond a reasonable doubt, contending that she was entitled to those
protections even though the state was prosecuting the charges as violations. The
trial court denied the motion and found defendant guilty on both charges by a
preponderance of the evidence. Defendant appealed. Held: For the reasons set
out in State v. Benoit, 354 Or __, __ P3d __ (2013), also decided today, the circuit
court erred in rejecting defendant’s assertion of her right to a jury trial and other
protections under Article I, section 11, of the Oregon Constitution.
    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.
Cite as 354 Or 295 (2013)	297

	          BREWER, J.
	        Like the defendant in State v. Benoit, 354 Or 302, __
P3d __ (2013), also decided today, defendant in this case was
arrested and incarcerated on misdemeanor charges that
the state later reduced to violations under ORS 161.566(1).1
The issue is whether the prosecutor’s election to treat the
offenses as violations precluded defendant from asserting
her right to a jury trial and other protections under Article I,
section 11, of the Oregon Constitution. Consistently with our
decision in Benoit, we conclude that the circuit court erred
in rejecting defendant’s demand for those protections and
that the Court of Appeals correctly reversed defendant’s
convictions after a trial to the court. Accordingly, although
the basis for our decision differs in some respects from that
of the Court of Appeals, we affirm the decision of the Court
of Appeals, reverse the judgment of the circuit court, and
remand the case to the circuit court.
	        In July 2010, defendant was accused of shoplifting,
and she was arrested and briefly incarcerated. Defendant
was charged with third-degree theft, a Class C misdemeanor,
and attempted first-degree theft, a Class A misdemeanor.
At defendant’s arraignment, the state elected under ORS
161.566(1) to prosecute the charges as violations rather than
misdemeanors. Defendant filed a motion to have the charges
tried to a jury and to be proved guilty beyond a reasonable
doubt, contending that she was entitled to those protections
even though the state was prosecuting the charges as vio-
lations. The trial court denied the motion and found defen-
dant guilty on both charges by a preponderance of the
evidence. Defendant was fined $300 on each conviction.
	        Defendant appealed, asserting that the trial court
erred in denying her motion because the proceeding retained
characteristics that made it a “criminal prosecution” for pur-
poses of Article I, section 11, notwithstanding the prosecu-
tor’s election to treat the charges as violations. The state
	1
       The 2009 version of ORS 161.566 was in effect when defendant allegedly
committed her offense. However, because the 2011 version of the statute is iden-
tical in most material respects to the 2009 version, for convenience, we refer to the
current version of the statute in this opinion unless otherwise indicated. We set
out relevant text of ORS 161.566 later in this opinion.
298	                                              State v. Fuller

responded that a violation case is not a criminal prosecution
and that defendant was not entitled to a jury trial and to a
standard of proof requiring evidence of her guilt beyond a
reasonable doubt. The Court of Appeals agreed with defen-
dant, and reversed and remanded the case. State v. Fuller,
252 Or App 391, 287 P3d 1263 (2012). The state now seeks
review.
	     ORS 161.566 provides, in part, that, except for mis-
demeanors created under the vehicle code,
   	 “(1)  * * * a prosecuting attorney may elect to treat any
   misdemeanor as a Class A violation. *  * If no election is
                                          * 
   made within the time allowed, the case shall proceed as a
   misdemeanor.
   	 “(2)  * * * Notwithstanding ORS 153.018, the maximum
   fine that a court may impose upon a conviction of a violation
   under this section may not exceed the amount provided
   in ORS 161.635 for the class of misdemeanor receiving
   violation treatment.”
	         As discussed in Benoit, this court determined in
Brown v. Multnomah County Dist. Ct., 280 Or 95, 100-02,
570 P2d 52 (1977), that the legislature may decriminalize
minor offenses by enacting a system to prosecute violations,
but, in doing so, may not deny an accused the right to a jury
trial under Article I, section 11, if the proceeding retains
attributes of a “criminal prosecution.” Id. at 102-04. In Brown,
the court outlined five factors that bear on whether a vio-
lation proceeding is so similar to a criminal proceeding that
the constitutional right to a jury trial attaches: (1) the type
of offense, including, for example, whether the offense was a
crime at common law, or whether it involves traditional ele-
ments of mens rea or a lower degree of culpability; (2) the
penalty incurred, and, specifically, whether there is the poten-
tial for imprisonment or a heavy fine; (3) collateral conse-
quences, such as, in Brown, the revocation or suspension of
a driver license; (4) punitive significance of the prosecution,
that is, whether a judgment is stigmatizing and condem-
natory; and (5) the role, if any, of pretrial arrest and deten-
tion. Id. at 102-09. The court stated, further, that “[a]ll
[of those factors] are relevant, but none is conclusive” in
reaching the “ultimate determination” whether a proceeding
Cite as 354 Or 295 (2013)	299

is a “criminal prosecution” for constitutional purposes.2 Id.
at 102. Applying those factors in Brown, the court concluded
that a DUII proceeding was properly characterized as a
criminal prosecution. Id. at 109-10.
	        In deciding this case, the Court of Appeals applied
the Brown factors and determined that prosecuting defen-
dant for third-degree theft and attempted first-degree theft
“retains too many characteristics of a criminal prosecu-
tion to deny defendant the protections of a jury trial and
an evidentiary standard of proof of the offenses beyond a
reasonable doubt.” Fuller, 252 Or App at 399. In doing so,
the court reasoned that society has long considered theft to
be a crime and, therefore, it would be difficult for the public
“to discriminate between the significance of a conviction for
theft [as] a misdemeanor” versus a violation. Id. at 397-98.
The court further noted that, under ORS 161.566 (2009), the
penalty for a misdemeanor charged as a violation would be
the same as if the charge was tried as a misdemeanor, and
that defendant was subject to criminal procedures—that is,
arrest and detention—before her arraignment.
	        In its petition for review, the state asserted that the
Court of Appeals improperly relied on erroneous conclusions
that this court had reached in Brown; alternatively, the
state argued that the Court of Appeals misapplied the
Brown factors. In its brief on the merits, the state no longer
challenges Brown; instead, the state asserts, as it did in
Benoit, that a proper application of the Brown factors compels
the conclusion that, after the prosecutor elected to treat the
charges against defendant as violations, the constitutional
protections afforded to defendant under Article I, section 11,
no longer applied.
	        The state’s arguments in its brief on the merits
mirror its arguments in Benoit. In particular, the state urges
that, because defendant did not face the risk of additional
incarceration if convicted of violation-level offenses after
the prosecutor elected to reduce the charges, the ensuing
proceeding presumptively was not a criminal prosecution.
	2
       After considering those indicia, the court in Brown concluded that the first
DUII offense retained “too many penal characteristics” not to be a criminal prose-
cution for purposes of Article I, section 11. Id. at 109-11.
300	                                                          State v. Fuller

We rejected the identical argument in Benoit and will not
repeat our discussion of that issue here. Benoit, 354 Or at
312-13.
	        Insofar as the overall application of the Brown factors
is concerned, if anything, the first and second Brown factors
tilt more strongly in this case than in Benoit toward the
conclusion that defendant faced a criminal prosecution under
Article I, section 11. With respect to the “type of offense”
factor, as we stated in Benoit, even though the legislature has
authorized a prosecutor to reduce the crimes of attempted
first-degree theft and third-degree theft to violations, the
legislature nonetheless has declared those offenses to be
a crime. Benoit, 354 Or at 312-13. Those declarations are
consistent with the fact that theft is generally regarded as a
crime involving dishonesty. In re Kimmell, 332 Or 480, 488-
89, 31 P3d 414 (2001); State v. Gallant, 307 Or 152, 157, 764
P2d 920 (1988). Furthermore, as the Court of Appeals noted,
“the prohibition against theft predates our constitutions and
the common law,” and “a conviction for theft has always
required proof of mens rea.” Fuller, 252 Or App at 397.
	         The “penalty” factor also weighs in defendant’s favor
here. Brown, 280 Or at 103-05. Although incarceration was
not an available sanction against defendant on conviction,
she was exposed to the risk of imposition of the harshest pos-
sible fine for a misdemeanor conviction, $6,500. See 161.566(2);
(3). The legislature’s determination not to downgrade the
maximum misdemeanor-level fines for violation-level con-
victions in the statutory regime that applies to the charges
against defendant weighs in favor of the conclusion that it
chose to allow prosecutors to decriminalize the process, not
the offense.3
	        Finally, and importantly, defendant was arrested
and incarcerated for theft-related crimes. No subsequent
election by the state to purportedly decriminalize the charges
could change the fact that defendant was subjected to those
uniquely criminal procedures and their stigmatizing effect.

	3
       As discussed in Benoit, in 2011, the legislature amended ORS 161.566(2) to
provide that, in reduced misdemeanor cases, the fine structure for violations, not
misdemeanors, applies. ORS 161.566(2) (2011). However, the parties agree that
that amendment is not applicable in this case.
Cite as 354 Or 295 (2013)	301

Benoit, 354 Or at 316. As we explained in Benoit¸ particularly
in a case in which the accused already has been subjected
to pretrial arrest and detention, a prosecutor’s election to
reduce the charges to violations does not deprive the accused
of the right to a jury trial. Id. at 317.4 Accordingly, the trial
court erred in denying defendant’s request for a jury trial.
	        We turn briefly to the issue of defendant’s request for
application of the standard of proof that applies in “criminal
prosecutions.” Defendant’s argument in that regard mirrors
her argument concerning her right to a jury trial. The state
has not developed any distinct argument on review concern-
ing the applicable standard of proof. Without some reason
for reaching a different conclusion regarding the standard of
proof, we affirm the Court of Appeals decision with respect
to that issue.
	       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.




	4
       There is no need to discuss the remaining Brown factors at length. As was
the circumstance in Benoit, defendant here does not assert that adverse collateral
consequences will flow from an adjudication in this case. We also conclude that
determining the punitive significance of violation-level theft convictions is fraught
with difficulty, see Brown¸ 280 Or at 106, and not a particularly helpful exercise in
contrast to the application of other factors in this case.
