State v. Bostwick

319 Or.App. 762

512 P.3d 855

STATE of Oregon, Plaintiff-Respondent,

v.Aaron Paul BOSTWICK, Sr., Defendant-Appellant.

A173880

Court of Appeals of Oregon.

Argued and submitted March 28, 2022.

May 25, 2022

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, Salem, 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.

Defendant appeals a judgment of conviction for three counts of attempted aggravated first-degree theft by deception (Counts 1, 3, and 5), ORS 161.405 ; ORS 164.057 ; ORS 164.085, and three counts of simulating legal process (Counts 2, 4, and 6), ORS 162.355. In his combined first, second, and third assignments of error, defendant argues that the trial court erred by denying his motion for judgment of acquittal (MJOA) on all three counts of simulating legal process, because none of the documents in question falsely simulated any civil or criminal process within the meaning of ORS 162.355. In his combined fourth, fifth, and sixth assignments of error, defendant argues that the trial court erred by denying his MJOA on all three counts of attempted aggravated first-degree theft, because defendant's conduct did not constitute a substantial step toward aggravated first-degree theft by deception.

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

"We review the denial of a motion for a judgment of acquittal by examining the evidence in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential elements of the crime beyond a reasonable doubt." State v. Fuller , 303 Or. App. 47, 48, 463 P.3d 605 (2020) (brackets and internal quotation marks omitted). In accordance with that standard, we state the following facts.

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 wrote 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." The 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 electrical 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 charged with first-degree theft and identity theft in relation to his use of fraudulent checks at J's store in 2015. When J received that information, he did not understand why he was receiving it, but he assumed it had to do with his participation in a crime-victim's notification network, so he "didn't pay much mind to it at that point in time." Consequently, J made no appearance in the small-claims case, and defendant was able to obtain a default judgment against J for $10,000 plus fees.

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, an 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 some-where between $600 and $1,500. Defendant explained that he had filed the small claims for $10,000 each, because "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, ORS 162.355, and three counts of attempted first-degree theft, ORS 161.405 ; ORS 164.057.

Regarding the three counts of simulating legal process under ORS 162.355,³ the state's theory was that defendant had committed those offenses by three times filing unmeritorious small-claims suits and mailing irrelevant legal documents to J instead of proper notices of those suits. Likewise, regarding the three counts of...