State v. Peterson

309 Or.App. 31

482 P.3d 68

STATE of Oregon, Plaintiff-Respondent,

v.Roy Richard PETERSON, Defendant-Appellant.

A163668

Court of Appeals of Oregon.

Argued and submitted August 7, 2018.

February 3, 2021

Benjamin Boyd, Enterprise, argued the cause for appellant. Also on the brief were D. Zachary Hostetter and Hostetter Law Group, LLP.

E. Nani Apo, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.^*

DeHOOG, P. J.

Defendant appeals a judgment convicting him of first-degree theft, ORS 164.055 (Count 2), aggravated first-degree theft, ORS 164.057 (Count 3), and possession of a stolen vehicle (PSV), ORS 819.300 (Count 5). Those charges related to funds, equipment, and vehicles that defendant acquired as chief of a voluntary fire department (the department). Defendant was convicted after submitting false invoices to the state to procure state grant funding and refusing to transfer possession of firefighting equipment and vehicles (the department property) when members of the department formed a tax-funded, rural fire protection district (the district or MRFD). Defendant's opening brief raises four assignments of error, all directed at his convictions for aggravated theft and PSV.¹ In his first assignment of error, defendant argues that the trial court erred in denying his motion for judgment of acquittal (MJOA) as to Counts 3 and 5, because, as a matter of law, he could not have stolen the department property—nor could his possession of that property constitute PSV—when he had an ownership interest in the property and the district, the purported victim of his offenses, did not. The state responds that the evidence was sufficient for the jury to find that, at the time of the alleged offenses, defendant had no ownership interest in the department property and that the district, in fact, was its owner. For the reasons that follow, we agree that the trial court committed reversible error in denying defendant's MJOA.² Accordingly, we reverse defendant's convictions on Counts 3 and 5, remand for resentencing, and otherwise affirm.

In reviewing the denial of an MJOA, we view "the evidence in the light most favorable to the state" to determine whether "a rational trier of fact, making reasonable inferences, could find the essential elements of the crime beyond a reasonable doubt." State v. Hedgpeth , 365 Or. 724, 730, 452 P.3d 948 (2019) (internal quotation marks omitted). We state the facts accordingly.

In 2001, a large fire spread through defendant's hometown of Monument, Oregon, burning thousands of acres and multiple structures. In response, defendant, who had been fighting fires since the age of 16, began organizing the department to protect the rural region against future fires and to supplement the fire protection provided by governmental agencies, which did not fight structure fires in that region. Defendant formed the group with the goal of becoming a recognized, tax-funded fire district. See ORS 478.001(1)(d) (" ‘District’ means a rural fire protection district proposed to be organized or organized under, or subject to, [ORS chapter 478]."). Although the group established a "steering committee" that helped guide the direction of the department, there were no bylaws or any other form of governing agreement that controlled the group's operations. Instead, defendant spearheaded the group's efforts and was the self-appointed organizer and acting fire chief of the group.

Acting in that capacity, defendant opened a checking account for the department to which only he had access. Between 2001 and 2012, defendant procured firefighting equipment and vehicles for the department's use. Defendant acquired the property through various means, including donations, scavenging efforts, and purchases defendant made with annual state and federal grant funding. The property at issue on appeal was acquired through such grants. Oregon Department of Forestry (ODF) employees who administered the grant programs testified that ownership of property acquired with grant funds vests in the organization awarded the grant. Defendant kept the equipment that he acquired for the department at his private residence.

Despite the group's goal of establishing an official fire district, the department remained a voluntary organization for a number of years. However, in 2007, another large fire hit the region and reinvigorated community interest in establishing a tax-based rural fire protection district. As a prerequisite to circulating a petition to form an official district, defendant formed an advisory committee, naming all of the department's volunteer members to the committee and designating himself the committee chair. Although the county initially rejected their petition, defendant successfully challenged that denial after using some of the department's grant money to hire an attorney. Due to the delays of litigation, however, the department's petition for formation of a district was not approved by county officials and put to a county-wide vote until November 2012. The county voted in favor of the proposed district, and, shortly thereafter, on November 21, 2012, the Grant County Court issued an order officially forming and establishing the Monument Rural Fire District (MRFD).³

Once formed, the district was initially governed by a board composed primarily of members of the department. Defendant was not on the board, but he was considered the district's fire chief. The district's initial board soon disbanded. In December 2012, after having met only twice, the entire board resigned, citing differences in opinion with defendant in his role as fire chief. Those differences arose when the board made preliminary efforts to operate the district and made certain demands with which defendant did not agree. For example, rather than defendant's personal post office box, which had served as the department's mailing address, the board attempted to designate the home address of the new board president as the district's official address. Additionally, the district board demanded that defendant turn over the department's checkbook and financial records and that defendant no longer use district vehicles for personal purposes. In response, defendant expressed frustration that the board was, in his opinion, improperly running the district by holding meetings at a private residence and attempting to conduct business without having filed the district's articles of incorporation with the Secretary of State, a task the board did not complete until January 2014. At trial, members of the board also testified that, in addition to expressing those concerns, defendant had told the board " ‘Well, if that's the way you guys feel, I'll just step down.’ "⁴ Despite uniformly testifying to that understanding of events, the board's entire membership subsequently resigned, citing their differences with defendant as fire chief.

Following the board's resignation, defendant continued fighting fire with the department property. In January 2013, a month after the resignations, the county court appointed three new members to the district board, who then brought on two other individuals to fill the board's remaining vacancies. Although defendant applied to be on the board, he was not selected. Defendant eventually turned over the volunteer department's ledger and checkbook as requested, but he retained the department property.

When the new board held its first meeting in February 2013, it formally appointed a district fire chief. Defendant attended that meeting, but he did not express interest in being appointed chief. Instead, the position went to the only person who had expressed interest. At trial, the board's president testified that, as of that time, he understood that defendant no longer had any involvement with the district.

At the time of its February 2013 meeting, the board was aware that the ownership of the department property was in dispute and knew that defendant was keeping it at his residence. As of that date, no action had been taken to transfer title to any of the department property to the newly established district. Nevertheless, the board asked at the February 2013 meeting that defendant turn the department property over to the district. According to the testimony of the district's fire chief, defendant declined, asserting that " ‘everyone needed to get together and figure out the ownership interests first.’ " No such meeting took place, and, according to defendant, he continued operating the department formerly known as the Monument Rural Fire Department under the new name of "Top Rural Fire Department" or "Top Rural Fire District." Defendant went so far as to transfer title of some of the department vehicles to Top Rural. Days later, on February 21, 2013, the district fire chief sent defendant a letter demanding that he "return any and all belongings" of the Monument Rural Fire Department in his possession. Defendant did not comply with that request. In October 2013, the state police seized the department property from defendant's land pursuant to a warrant. As relevant here, defendant subsequently was charged with aggravated first-degree theft and PSV, alleged to have occurred "on or about February 21, 2013," the date of the district chief's demand.

At trial, the state's theory was that defendant had committed the charged offenses when he withheld the department property from the district after receiving its February 21, 2013, demand letter. Defendant's primary argument in response was that the case concerned a civil property dispute, not criminal wrongdoing. At the conclusion of the state's case-in-chief, defendant moved for judgment of acquittal on the charges of aggravated first-degree theft and PSV. Defendant argued that he had an ownership interest in the department property that precluded...