State v. BostwickState v. Bostwick
Argued and submitted March 28; convictions on Counts 1, 2, 4, and 6 reversed, remanded for resentencing, otherwise affirmed May 25, 2022
Defendant appeals a judgment of conviction for three counts of attempted aggravated first-degree theft by deception (Counts 1, 3, and 5),
Convictions on Counts 1, 2, 4, and 6 reversed; remanded for resentencing; otherwise affirmed.
Neil F. Byl, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Tookey, Presiding Judge, and Egan, Judge, and James, Judge.
TOOKEY, P. J.
Convictions on Counts 1, 2, 4, and 6 reversed; remanded for resentencing; otherwise affirmed.
TOOKEY,
Defendant appeals a judgment of conviction for three counts of attempted aggravated first-degree theft by deception (Counts 1, 3, and 5),
For the reasons explained below, we reverse defendant‘s convictions for simulating legal process in Counts 2, 4, and 6; reverse the conviction for attempted aggravated first-degree theft in Count 1; affirm the convictions for attempted aggravated first-degree theft in Counts 3 and 5; and remand for resentencing.1
I. FACTS
On three consecutive days in September 2015, defendant visited the car-audio store owned by the victim, J. On each occasion, defendant paid for various pieces of car-audio equipment with fraudulent checks. J remembered defendant from prior transactions, and he knew that defendant liked to save money by installing equipment himself. Accordingly, defendant did not pay for any labor or installation of that equipment.
In 2016, J filed a small-claims suit and was awarded $727.13 for the audio equipment defendant had obtained with the fraudulent checks. During the pendency of that small-claims suit, defendant was incarcerated. Defendant twice wrotе to J, stating that he “ha[d] the funds now in my inmate trust account to cover the checks,” and requesting J‘s bank account information—ostensibly for the purpose of repaying J for the audio equipment. J provided defendant with his bank‘s name and address, but he declined to provide his account number because he thought defendant would use it for “some sort of fraud or scheme for theft.”
In 2017, while still incarcerated, defendant filed the first of three virtually identical small-claims suits against J. Defendant had experience with the small-claims process: Before suing J, he had filed more than 40 small-claims suits against various individuals, entities, and government officials and institutions. Because it is relevant to our analysis, we note in particular that, not long before his suit against J, defendant filed a small-claims suit against Fred Meyer, alleging that he was owed $10,000 for an injury to his thumb. Rather than serving the proper documents to Fred Meyer, defendant instead mailed to Fred Meyer only a court schedule from the Skagit County Circuit Court in Washington. Consequently, Fred Meyer had no notice of that action and failed to appear, so defendant was able to obtain a judgment against Fred Meyer for the $10,000. Fred Meyer only later became aware of defendant‘s judgment when its bank notified it that defendant was attempting to garnish $10,000 from its accounts.
Defendant‘s first small-claims suit against J alleged that J owed him $10,000 because the audio equipment he obtained from J with fraudulent checks had “caused a complete short out in my [vehicle‘s] wiring system.” Thе court later notified defendant by letter that he needed to submit a new proof of service, because his original proof of service was deficient in that it indicated that he had served J some two weeks before the court had even given defendant certain documents required for proper service. Defendant then moved for, and was granted, dismissal of that first suit without prejudice, because he planned to garnish J‘s bank account, but that required him to “pay a $35 fee for a garnishment,” and he “didn‘t have the money to go forward” with garnishment at that time.
About three weeks later, defendant filed his second small-claims suit against J. He alleged that J owed him $10,000 for “[i]nstalling [a] defective stereo system in [his vehicle] and shorting out [his] entire elеctrical system.” Defendant certified to the court that he had mailed a copy of the summons and notice of small claim to J; however, that mailing did not contain any such summons or notice. Instead, that mailing contained only a copy of the district attorney‘s information from the criminal case in which defendant was
Just one day after obtaining that judgment, defendant filed a third small-claims suit against J. In that third claim, defendant again alleged that J owed him $10,000 for “[i]nstalling [a] defective stereo system in my [vehicle], shorting out my entire electrical system.” Again, defendant certified to the court that he had mailed a copy of the summons and notice of small claim, and, again, that mailing contained no summons or notice to J; rather—similar to his second small-claims suit against J—defendant sent J only a copy of the judgment and conviction in the criminal case relating to his use of fraudulent checks at J‘s business in 2015. As a result, J was again unaware he needed to appear in court, and defendant was able to obtain a second judgment against J for $10,000 plus fees.
In February 2018—shortly after defendant obtained the second $10,000 judgment against J—an attorney at the Oregon Department of Corrections notified the Oregon State Police (OSP) Major Crimes Division that defendant might be involved in a plan inside the prison to defraud “somebody on the outside” by filing small-claims suits without notifying the opposing parties. During the ensuing investigation, an OSP detective discovered defendant‘s two small-claims judgments against J. The detective contacted J about those judgments, and J was “flabbergasted” to learn of defendant‘s “bogus and preposterous” claims against him. J subsequently discovered that the judgments showed up on a title report for his real estate holdings, affected his credit score, and increased his insurance costs.
In July 2018, аn OSP detective contacted defendant in prison and inquired about the basis for the claims against J and why defendant had continued to file redundant claims, even after obtaining a judgment against J. Defendant explained that he filed multiple claims because he “didn‘t know how to sue [J]“—i.e., “if he was supposed to sue the business or if he was supposed to sue the person.” Defendant also stated that, in addition to mailing the appropriate notice documents to J, he had included the district attorney‘s information and conviction records because, as he explained it, “he was trying to relate them back.” The detective also asked defendant about the “many, many small claims” he had previously filed—including one against a McDonald‘s—and defendant responded that he “knows [what] the processes are, and if someone‘s claiming they didn‘t receive the right documents, th[en] they were lying.” Defendant “couldn‘t really answer why he filed [again] after he received a judgment,” and his other answers “did not make a lot of sense” to the OSP detective. After the detective contacted defendant in prison, defendant wrote a letter to the court asking that it dismiss without prejudice the judgments in his second and third small-claims suits.
In total, defendant was able to obtain judgments against J in excess of $20,000, though he agreed that the actual cost of repairing his vehicle‘s audio system was somewhere between $600 and $1,500. Defendant explained that he had filed the small claims for $10,000 each, bеcause “that‘s the most you can sue for.”2
II. PROCEDURAL BACKGROUND
For his conduct relating to the three small-claims suits he filed against J, the state charged defendant with three counts of simulating legal process,
At defendant‘s bench trial, he moved for judgment of acquittal on all counts. Regarding the three counts of simulating legal process, defendant argued that
The trial court summarily denied defendant‘s MJOA and subsequently found defendant guilty on all charges, explaining:
“I find that, when considered together, there are significant factors that lead to a conclusion that these are not run of the mill small claims civil cases where there have been inadvertent errors made.
“And some of those factors are the fact that there were multiple filings made on the same claim, the fact that there was not a proper service regarding the first suit and subsequent dismissal rather than attempting to correct that service error. The fact that relevant documents were not enclosed in the certified mail serving, purporting to serve notice of these suits and suits two and three that we have been discussing here today. The fact that the defendant claimed far in excess of any potential legitimate claim and, in fact, allowed judgment to be taken in the sum, the total sum of $10,000 [each] as opposed to reducing that claim, which he testified [] he knew was in excess of what he was actually owed if one believes that he had a legitimate civil claim against [J].
“The fact that the defendant attempted to get the victim‘s bank account number, the offer to pay for or reimburse the victim for fraudulent checks without making any claim or demand for offset for defendant‘s now purported damage to his vehicle, testimony regarding the fact that there were multiple filings because there were mistakes in
those filings that made no sense whatsoever. I don‘t find that defendant‘s testimony was credible in this case.
“I do find defendant guilty with regard to each of the six counts, One through Six. It‘s clear from the evidence received by the Court that this—these lawsuits were carried out with fraudulent intent from beginning to end.”
Defendant now appeals, arguing that the record does not contain legally sufficient evidence to support those convictions and,
III. ANALYSIS
We begin our analysis by addressing the offense of simulating legal process, concluding that, because defendant‘s acts do not fall within the conduct proscribed by
A. Simulating Legal Process, ORS 162.355
With respect to his convictions for simulating legal process (Counts 2, 4, and 6), defendant contends on appeal that “none of the documents delivered by defendant falsely simulated, in form and substance, civil or criminal process within the meaning of
In its briefing, the state responds that—viewing the facts in the light most favorable to the state—the trial court did not err in denying defendant‘s MJOA as to Counts 2, 4, and 6. The state contends that defendant‘s conduct constitutes falsely simulating legal process because he deliberately sent irrelevant documents to J in lieu of proper service documents in order to mislead J about the existence of the small-claims suits and to defraud J out of $10,000 in each of those suits. At oral argument, however, the state acknowledged that—unlike his second and third suits against J—defendant did not send any “fake” summons to J in the first suit; therefore, the state conceded, the evidence was legally insufficient to sustain conviction on Count 2 (relating to defendant‘s first small-claims suit against J) and that the trial court erred in that regard.
We agree with and accept the state‘s concession as to Count 2; consequently, we focus our analysis on defendant‘s remaining convictions for simulating legal process—i.e., Counts 4 and 6 (relating to defendant‘s second and third small-claims suits against J).
The parties’ dispute concerns the scope of
The text of
“(1) A person commits the crime of simulating legal process if, with the intent to harass, injure or defraud another person, the person knowingly issues or delivers to another person any document that in form and substance falsely simulates civil or criminal process.
“(2) As used in this section:
“(a) ‘Civil or criminal process’ means a document or order, including, but not limited to, a summons, lien, complaint, warrant, injunction, writ, notice, pleading or subpoena, that is issued by a court or that is filed or recorded for the purpose of:
“*****
“(C) Directing a person to appear before a court or tribunal[.]”
As relevant to this case, that text refers to documents such as “a summons” or “notice” issued, filed, or recorded for the purpose of “[d]irecting a person to appear before a court or tribunal.” That text also provides that, for criminal liability to attach, the document must falsely “simulate” the form and substance of civil or criminal process. Though not defined by statute, the term “simulate” ordinarily means “to give the appearance of : feign, imitate,” Webster‘s Third New Int‘l Dictionary 2122 (unabridged ed 2002), and “[t]o assume the mere appearance of, without the reality; to assume the signs or indications of, falsely; to counterfeit; feign; imitate; pretend,” Black‘s Law Dictionary 1631 (3d ed 1933).
The first version of
“(1) A person cоmmits the crime of simulating legal process if he knowingly issues or delivers to another any document that in form and substance falsely simulates civil or criminal process.”
That provision was drafted by the Criminal Law Revision Commission, and the “carefully kept records of the proceedings of the Commission and of its subcommittees *** provide a rich source for determination of the drafters’ intent.” State v. Henderson, 366 Or 1, 10, 455 P3d 503 (2019) (brackets and internal quotation marks omitted). In Tentative Draft No. 1 of
Additional legislative history relevant to
“[House Bill 2310] is one of two bills proposed by the Oregon Department of Justice in response to anti-government activities that have escalated recently in Oregon and in other states. ***
“House Bill 2310 addresses *** the false simulation of legal process *** that ha[s] arisen, at least in part, because of the emergence of ‘common law courts.’ A common law court is not a court at all, at least in the sense that a court is a governmental entity; it is just a group of private citizens who have appointed themselves as judges and juries[.]”
Testimony, House Committee on Judiciary, Subcommittee of Criminal Law, HB 2310, Jan 30, 1997, Ex B (statement of Brenda JP Rocklin, Assistant Attorney General, Criminal Justice Division (internal quotation marks omitted)).
Assistant Attorney General Rocklin also submitted an exhibit containing “examples of documents that are currently being used to falsely simulate civil or criminal process.” Id. That exhibit includes various “common law court” documents that mimic conventional legal document formatting, case captioning, party-naming conventions, case numbering, and even official state seals. The exhibit contains documents that falsely purport to be, among other things, a “Summons,” a “Notice to Appear,” an “Order of Default,” an “Affidavit,” and a “Claim of Lien.” See Exhibit C, House Committee on Judiciаry, Subcommittee on Criminal Law, HB 2310, Jan 30, 1997 (accompanying statement of Assistant Attorney General Brenda JP Rocklin). None of those documents were genuine legal documents, but those documents were designed to create the impression that they were.
Based on the foregoing text, context, and legislative history of
Applying that understanding of
B. Theft by Deception, ORS 164.085
We next address the issue raised in defendant‘s fourth through sixth assignments of error regarding attempted aggravated first-degree theft.
As noted above, the state charged defendant with three counts of attempted aggravated first-degree theft,
by deception under
With respect to his convictions for theft by deception, defendant argues, among other points, that “[t]he record shows that defendant never notified [J] of his claim[s] against him, much less tried to persuade [J] to give him $10,000“; therefore, defendant contends, he “did not take a substantial step to try to induce [J] to give him $10,000 by creating a false impression in [J]‘s mind, and therefore defendant‘s actions did not constitute attempted theft by deception under subsection (1)(a).” Defendant also contends that legislative history relevant to
The state responds that defendant attempted to commit aggravated first-degree theft “by fraudulently obtaining final judgments against [J] for $10,000 in damages, based on what he knew was a factually false claim, and then scheming (albeit without success) to obtain [J]‘s bank-account information, which would have allowed him to execute on that judgment by garnishing [J]‘s bank account,” and that defendant‘s conduct involved deception, because defendant sent J “fake service documents, which lulled [J] into not being aware that defendant had filed the [small-claims] lawsuits.”6
“(1) A person, who obtains property of another thereby, commits theft by deception when, with intent to defraud, the person: “(a) Creates or confirms another‘s false impression of law, value, intention or other state of mind that the actor does not believe to be true[.]”
Under that statute, we have previously explained that, “to convict defendant of attempted aggravatеd theft in the first degree, *** the state [must] prove that defendant (1) intentionally, (2) took a substantial step toward obtaining $10,000 or more of another‘s property, (3) by misrepresentation.” State v. McNall, 307 Or App 435, 436-37, 476 P3d 1259 (2020), rev den, 367 Or 496 (2021). In other words, the state had to prove that, “with the intent to defraud,” defendant attempted to “obtain[] property through some sort of false pretenses.” Monfore v. Persson, 296 Or App 625, 634, 439 P3d 519 (2019).
As used in
Because it is responsive to defendant‘s arguments on appeal and, therefore, useful to our analysis, we provide some brief remarks about the legislative history relating to
The commentary for section 223.3 of the 1962 Model Penal Code states that theft by deception “is intended broadly tо include the many kinds of behavior that can amount to the obtaining of property by deception,” which “includes misrepresentations of value, law, opinion, intention, or other state of mind, as well as certain cases where the actor knowingly takes advantage of another‘s misinformation,” Model Penal Code, § 223.3, comments 1, 3, at 181, 184 (Official Draft and Revised Comments 1980) (emphasis added)—the latter behavior being particularly relevant here, as defendant failed to properly inform J about the small-claims suits and took advantage of that circumstance to obtain the default judgments against J. The commentary goes on to state:
“Schemes designed to create a false impression *** should thus be included even though there has been no false representation in the sense of affirmative statements that are in fact untrue[.] *** [I]t is the falsity of the impression purposely created or reinforced that is determinative, rather than the falsity of any particular representations made by the actor.”
given by the drafters of
“a conviction is not necessarily precludеd if the deception is ineffective. If the actor engages in conduct designed to deceive another for the purpose of obtaining his property but either does not obtain the property or does not obtain it as a result of the deception ***, there would be liability *** for attempt.”
Model Penal Code, § 223.3, comment 1, at 181 (emphasis added).
With that understanding of
Regarding Counts 3 and 5—viewing the evidence in the light most favorable to the state, and accepting all reasonable inferences and reasonable credibility choices—a rational finder of fact could have found the essential elements of attempted aggravated first-degree theft beyond a reasonable doubt. Specifically, on this record, a rational finder of fact could have found
- that defendant filed his second and third small-claims suits against J for $10,000 each—an amount that, according to defendant‘s own statements, vastly exceeded the value of the damage, if any, to his vehicle;
- that defendant falsely certified to the court that he had properly notified J of those claims and, instead, mailed irrelevant documents to J, intending to deceive or mislead J as to the existence of the claims against him;
- that defendant intended to mislead J about the existence of those claims in ordеr to ensure that J would fail to appear in those cases;
- that, after misleading J as to the existence of those suits, defendant took advantage of J‘s failure to appear by obtaining default judgments totaling more than $20,000;
- that defendant planned to use those judgments—just as he had attempted to do previously in his case against Fred Meyer—to garnish J‘s bank account, using the bank account information that he tried (in part, successfully) to acquire from J; and
- that defendant abandoned his plan to defraud J only after he discovered that OSP detectives were investigating his claims against J.
On those facts, a rational finder of fact could find beyond a reasonable doubt that defendant, acting with the intent to defraud J, took a substantial step toward obtaining $20,000 from J by way of false impression, false pretense, or misrepresentation. See McNall, 307 Or App at 436-37 (“[T]o convict defendant of attempted aggravated theft in the first degree *** the state [must] prove that defendant (1) intentionally, (2) took a substantial step toward obtaining $10,000 or more of another‘s property, (3) by misrepresentation.“). Therefore, the trial court did not err in denying defendant‘s MJOA as to Counts 3 and 5.8
We do not reach the same conclusion with respect to Count 1, which relates to defendant‘s first small-claims suit against J. The record shows that, in contrast to his second and third suits, shortly after defendant had filed the first suit, he dismissed it, and, consequently, he did not obtain any judgments against J in that case. Also unlike
Concededly, defendant still filed that first claim, and he therein represented to the court that J owed him $10,000—again, an amount, by defendant‘s own admission, far in excess of any actual damage to his vehicle. Yet, we do not think defendant‘s filing of an unmeritorious small-claims suit, without more, constitutes a substantial step toward the commission of theft by deception under
To the extent that the trial court denied defendant‘s MJOA as to Count 1 based on the state‘s alternate theory at trial that defendant‘s conduct constituted “sell[ing] or otherwise transfer[ing] or encumber[ing] property, [and] failing to disclose a lien” under paragraph (1)(d) of
Accordingly, we conclude that the trial erred in denying defendant‘s MJOA as to Count 1.
Convictions on Counts 1, 2, 4, and 6 reversed; remanded for resentencing; otherwise affirmed.
Notes
“(1) A person, who obtains property of another thereby, commits theft by deception when, with intent to defraud, the person:
“(a) Creates or confirms another‘s false impression of law, value, intention or other state of mind that the actor does not believe to be true; [or]
“*****
“(d) Sells or otherwise transfers or encumbers property, failing to disclose a lien, adverse claim or other legal impediment to the enjoyment of the property, whether such impediment is or is not valid, or is or is not a matter of official record[.]”
“(1) A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.”