State v. Bostwick ( 2022 )

762
Argued and submitted March 28; convictions on Counts 1, 2, 4, and 6 reversed,
remanded for resentencing, otherwise affirmed May 25, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
AARON PAUL BOSTWICK, SR.,
Defendant-Appellant.
Linn County Circuit Court
19CR28161; A173880
512 P3d 855
Defendant appeals a judgment of conviction for three counts of attempted
aggravated first-degree theft by deception (Counts 1, 3, and 5), 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, defen-
dant 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 committing that offense. Held: Regarding
the charges for simulating legal process, the trial court erred when it denied
defendant’s MJOA as to those charges, because the record shows that the doc-
uments in question were not fake, imitation, counterfeit, or pretend documents
that falsely appear to be, in both form and substance, genuine legal documents.
Regarding the charges for attempted aggravated first-degree theft by deception,
the trial court did not err in denying defendant’s MJOA as to Counts 3 and 5;
however, the trial court erred in denying defendant’s MJOA as to Count 1,
because the evidence was legally insufficient to show that defendant’s conduct
underlying Count 1 constituted a substantial step toward the commission of the
charged offense.
Convictions on Counts 1, 2, 4, and 6 reversed; remanded for resentencing;
otherwise affirmed.
David E. Delsman, Judge.
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.
Cite as 319 Or App 762 (2022) 763
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.
764 State v. Bostwick
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, sec-
ond, 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 mean-
ing 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 defen-
dant’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 favor-
able to the state to determine whether a rational trier of
fact, accepting reasonable inferences and reasonable credi-
bility choices, could have found the essential elements of the
crime beyond a reasonable doubt.” State v. Fuller, 303 Or
App 47, 48, 463 P3d 605 (2020) (brackets and internal quo-
tation marks omitted). In accordance with that standard,
we state the following facts.
1
Defendant also assigns error to the trial court’s imposition of a departure
sentence on Count 1. Because we reverse defendant’s conviction as to Count 1
and remand for resentencing, we do not reach that issue. Defendant is entitled to
present argument about that matter at his resentencing proceeding. See State v.
Zolotoff, 275 Or App 384, 393-95, 365 P3d 131 (2015) (“[W]here an appellate court
reverses one conviction of a multiple-conviction judgment, all of a defendant’s
convictions must be remanded for resentencing,” and “the defendant is entitled
to present evidence and argument pertaining to the resentencing proceeding.”
(Internal quotation marks omitted.)).
Cite as 319 Or App 762 (2022) 765
I. FACTS
On three consecutive days in September 2015, defen-
dant 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 defen-
dant 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 offi-
cials 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 sched-
ule 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 noti-
fied 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
766 State v. Bostwick
obtained from J with fraudulent checks had “caused a com-
plete 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 ser-
vice 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 gar-
nishment,” and he “didn’t have the money to go forward”
with garnishment at that time.
About three weeks later, defendant filed his sec-
ond 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 partic-
ipation 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 defen-
dant was able to obtain a default judgment against J for
$10,000 plus fees.
Just one day after obtaining that judgment, defen-
dant 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 sum-
mons 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
Cite as 319 Or App 762 (2022) 767
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 judg-
ment 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 notify-
ing 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 infor-
mation 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 pre-
viously 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 judg-
ment,” 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.
768 State v. Bostwick
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 fil-
ing unmeritorious small-claims suits and mailing irrele-
vant legal documents to J instead of proper notices of those
suits. Likewise, regarding the three counts of attempted
first-degree theft, the state proceeded on a theory of theft
by deception under ORS 164.085(a) and (d),4 alleging that
defendant had committed those offenses by three times
attempting to fraudulently obtain $10,000 from J by filing
three successive unmeritorious small-claims suits and fail-
ing to provide proper notice of those suits in order to obtain
default judgments against J.
2
Eventually, with the assistance of counsel, J was able to vacate the judg-
ments in both the second and third small-claims suits.
3
ORS 162.355(1) provides, “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.”
4
ORS 164.085 provides, in part:
“(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, inten-
tion 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 dis-
close 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[.]”
Cite as 319 Or App 762 (2022) 769
At defendant’s bench trial, he moved for judgment
of acquittal on all counts. Regarding the three counts of sim-
ulating legal process, defendant argued that ORS 162.355
was not intended to criminalize defendant’s alleged conduct.
More specifically, he argued that neither filing unmeritori-
ous claims nor providing improper or ineffective service to
J constituted simulating legal process. Regarding the three
counts of attempted aggravated first-degree theft by decep-
tion, defendant argued that the state had failed to meet its
burden. In particular, defendant argued that the evidence
was insufficient to show a fraudulent intent, because defen-
dant “believed that he had a valid dispute regarding injury
to his [vehicle],” had obtained “an actual judgment certified
by the court,” and had later written a letter to the court
requesting dismissal of his claims.
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 signifi-
cant 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 sub-
sequent 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 vic-
tim’s bank account number, the offer to pay for or reim-
burse 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
770 State v. Bostwick
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 car-
ried 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, therefore, the trial court erred by denying
his MJOA on all six counts.
III. ANALYSIS
We begin our analysis by addressing the offense of
simulating legal process, concluding that, because defen-
dant’s acts do not fall within the conduct proscribed by ORS
162.355, the trial court erred when it denied his MJOA as
to that offense. We then address the offense of attempted
aggravated first-degree theft by deception under ORS
164.085, concluding that the trial court did not err in deny-
ing defendant’s MJOA as to Counts 3 and 5 of that offense,
but erred in denying defendant’s MJOA as to Count 1.
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 ORS 162.355, and that “analysis of
the text, context, and legislative history of [ORS 162.355]
reveals that the legislature intended to criminalize the
delivery of legal documents that falsely imitate, in structure
and content, the kinds of documents that would be issued by
a legitimate court”—i.e., “fake legal documents.”
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 con-
stitutes falsely simulating legal process because he deliber-
ately 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
Cite as 319 Or App 762 (2022) 771
those suits. At oral argument, however, the state acknowl-
edged 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 ORS
162.355, which is a matter of statutory construction. In con-
struing a statute, “the paramount goal [is] discerning the
legislature’s intent,” which we do by examining the statute’s
text and context, along with relevant legislative history.
State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).
The text of ORS 162.355 provides, in part:
“(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, com-
plaint, warrant, injunction, writ, notice, pleading or sub-
poena, 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 lia-
bility to attach, the document must falsely “simulate” the
772 State v. Bostwick
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 context of ORS 162.355 provides further inter-
pretive clues as to the legislature’s intent. “The broader con-
text of a statute * * * includes prior versions of the statute
and related statutes.” State v. Stamper, 197 Or App 413, 419,
106 P3d 172, rev den, 339 Or 230 (2005). “Also considered
part of the broader context of a statute is the legislative his-
tory of related statutes.” Id. at 420.
The first version of ORS 162.355 was enacted in
1971, see Or Laws 1971, ch 743, § 210, and provided, in rele-
vant part:
“(1) A person commits 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 draft-
ers’ intent.” State v. Henderson, 366 Or 1, 10, 455 P3d 503
(2019) (brackets and internal quotation marks omitted).
In Tentative Draft No. 1 of ORS 162.355, the commission
explained that “ ‘[s]imulate’ means: ‘To assume the mere
appearance of, without the reality; to assume the signs or
indications of, falsely; to counterfeit; feign, imitate; pretend.”
Criminal Law Revision Commission, Subcommittee No. 1,
Tentative Draft No. 1, Article 24, section 14 (Feb 1970) (cit-
ing Black’s Law Dictionary 1555 (4th ed 1951)). Additionally,
a report from the commission notes that ORS 162.355 “is
designed to discourage the use of misleading documents in
the debt collection process,” and that “false simulation of
an official legal document subverts the legitimacy of judi-
cial administration by impairing public confidence in the
genuine article.” Commentary to Criminal Law Revision
Cite as 319 Or App 762 (2022) 773
Commission Proposed Oregon Criminal Code, Final Draft
and Report § 210, 207 (July 1970) (emphasis added). Based
on the above text and context, we understand that the legis-
lature intended ORS 162.355 to proscribe issuing or deliver-
ing a fake, imitation, counterfeit, or pretend document that
misleadingly appears to be a genuine legal document.
Additional legislative history relevant to ORS
162.355 supports that understanding. After its enactment
in 1971, ORS 162.355 was amended by the 1997 legislature,
in part, to define that statute’s use of the phrase “criminal
or civil process.” See Or Laws 1997, ch 395, § 1. An attorney
from the Oregon Department of Justice, Brenda JP Rocklin,
explained the impetus for those amendments:
“[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 cur-
rently being used to falsely simulate civil or criminal process.”
Id. That exhibit includes various “common law court” docu-
ments 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
Judiciary, Subcommittee on Criminal Law, HB 2310, Jan 30,
1997 (accompanying statement of Assistant Attorney General
Brenda JP Rocklin). None of those documents were genuine
774 State v. Bostwick
legal documents, but those documents were designed to cre-
ate the impression that they were.
Based on the foregoing text, context, and legisla-
tive history of ORS 162.355, we conclude that the offense of
simulating legal process was intended to proscribe issuing
or delivering a fake, imitation, counterfeit, or pretend doc-
ument that appears to be, in both form and substance, a
genuine legal document.
Applying that understanding of ORS 162.355 to the
facts of this case, we further conclude that the trial court
erred when it denied defendant’s MJOA as to Counts 4 and 6
for simulating legal process. Even viewed in the light most
favorable to the state, the record shows that the documents
defendant mailed to J—which formed the basis for the
state’s charges against defendant in Counts 4 and 6—did
not simulate civil or criminal process in form and substance
within the meaning of ORS 162.355. The documents defen-
dant mailed to J were copies of genuine court records con-
cerning defendant’s prior criminal prosecution for his use of
fraudulent checks to obtain audio equipment from J’s store.
To be sure, those documents were irrelevant to, and failed
to notify J about, the existence of defendant’s small-claims
suits against J. Yet those documents were not fake, imita-
tion, counterfeit, or pretend documents that falsely appear
to be, in both form and substance, genuine legal documents.
For that reason, the trial court erred in denying defendant’s
MJOA as to Counts 4 and 6.
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, ORS
161.405 (attempt); ORS 164.057 (aggravated first-degree
theft),5 and prosecuted those charges on a theory of theft
5
ORS 161.405 provides, in part:
“(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.”
Cite as 319 Or App 762 (2022) 775
by deception under ORS 164.085(1)(a) and (d). Each count
corresponded, respectively, to defendant’s first (Count 1),
second (Count 3), and third (Count 5) small-claims suits
against J. Because it is dispositive, we focus our analysis on
ORS 164.085(1)(a).
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 substan-
tial 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 ORS 164.085(1)(a) shows that that offense
was intended to criminalize only creating a false impression
of pecuniary significance in the victim’s mind that induces
the victim to transfer property to the offender and, therefore,
does not apply to defendant’s conduct.
The state responds that defendant attempted to
commit aggravated first-degree theft “by fraudulently obtain-
ing 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 exe-
cute 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
ORS 164.057 provides, in part:
“(1) A person commits the crime of aggravated theft in the first degree,
if:
“(a) The person violates ORS 164.055 with respect to property, other
than a motor vehicle used primarily for personal rather than commercial
transportation; and
“(b) The value of the property in a single or aggregate transaction is
$10,000 or more.”
6
As noted above, the state below prosecuted the attempted aggravated first-
degree theft charges (i.e., Counts 1, 3, and 5) on a theory of theft by deception
776 State v. Bostwick
ORS 164.085(1)(a) provides:
“(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 aggravated theft in
the first degree, * * * the state [must] prove that defendant
(1) intentionally, (2) took a substantial step toward obtain-
ing $10,000 or more of another’s property, (3) by misrepre-
sentation.” 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,” defen-
dant 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 ORS 164.085, to “obtain” property
“includes, but is not limited to, the bringing about of a
transfer or purported transfer of property or of a legal inter-
est therein[.]” ORS 164.005(3). And, generally speaking,
“[a] false pretense is a false and fraudulent representation or
statement * * * made with knowledge of its falsity and with
the intent to deceive and defraud, by reliance upon which
representation or statement another is induced to part with
money or property of value.” State v. Miller, 47 Or 562, 568,
85 P 81 (1906).
under ORS 164.085(1)(a) and (1)(d). On appeal, the state argues for the first time
in its briefing that defendant’s convictions for that offense could be affirmed
under ORS 164.085(1)(b) and (c). We decline to address those arguments on
appeal, because the record might have developed differently had the state raised
those arguments below, and the state neither asks this court to exercise discre-
tion, nor explains why this court should exercise discretion, to reach those argu-
ments. See Outdoor Media Dimensions v. State of Oregon, 331 Or 634, 659-60,
20 P3d 180 (2001) (affirming on alternate basis requires, among other things,
“that the record materially be the same one that would have been developed had
the prevailing party raised the alternative basis for affirmance below”); State v.
Shields, 309 Or App 516, 526, 482 P3d 784 (2021) (declining to address state’s
arguments raised for the first time on appeal where state “neither addressed
Outdoor Media Dimensions Inc. conditions, nor explained why we should exercise
our discretion”).
Cite as 319 Or App 762 (2022) 777
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
ORS 164.085(1)(a). The drafters of ORS 164.085 explained
that, under paragraph (1)(a), “[t]he false impression may
relate to law, value, intention or other state of mind,” and
that, “[i]n paragraph (a) the phrase, ‘of law, value, intention
or other state of mind,’ which modifies the word ‘impres-
sion,’ is taken from Model Penal Code § 233.3.” Commentary
to Criminal Law Revision Commission Proposed Oregon
Criminal Code, Final Draft and Report § 128, 136-37 (July
1970).
The commentary for section 233.3 of the 1962 Model
Penal Code states that theft by deception “is intended broadly
to include the many kinds of behavior that can amount to the
obtaining of property by deception,” which “includes misrep-
resentations 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)7—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.”
Model Penal Code, § 223.3, comment 3, at 184-85 (emphasis
added). That commentary is consistent with the explanation
7
The above-cited official commentary to the 1962 Model Penal Code was
published in 1980—i.e., after ORS 164.085 was first enacted in 1971; however,
our Supreme Court has relied on that commentary to discern the legislature’s
intent in revising the Criminal Code in 1971. See, e.g., State v. Fonte, 363 Or
327, 345, 422 P3d 202 (2018) (examining Model Penal Code, § 223.6, comment 1,
at 231-32 (Official Draft and Revised Comments 1980), in order “[t]o further
explore the legislature’s intent” behind the 1971 “consolidation of theft into a
single offense”).
778 State v. Bostwick
given by the drafters of ORS 164.085: The offense of theft
by deception concerns “the impression which the actor’s
total conduct has on the victim.” Commentary to Criminal
Law Revision Commission Proposed Oregon Criminal Code,
Preliminary Draft No 3, Art 14, § 5 (Apr 1968). Impor-
tantly, the Model Penal Code commentary also explains
that
“a conviction is not necessarily precluded 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 ORS 164.085(1)(a) in
mind, we conclude that the trial court did not err in deny-
ing defendant’s MJOA as to Counts 3 and 5 (relating to his
second and third small-claims suits against J), but did err
in denying defendant’s MJOA as to Count 1 (relating to his
first small-claims suit against J).
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 ele-
ments 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, intend-
ing to deceive or mislead J as to the existence of the
claims against him;
Cite as 319 Or App 762 (2022) 779
• that defendant intended to mislead J about the
existence of those claims in order 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 obtain-
ing $10,000 or more of another’s property, (3) by misrepre-
sentation.”). 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 the sec-
ond and third small-claims, J did not receive irrelevant doc-
uments from defendant in lieu of proper notice that misled
8
As noted above, the state prosecuted defendant’s theft charges under a the-
ory of theft by deception under ORS 164.085(1)(a) and (1)(d). Because we conclude
that the evidence was sufficient to sustain defendant’s convictions on Counts 3
and 5 under ORS 164.085(1)(a), we do not discuss whether the evidence would also
be sufficient to sustain the convictions on those counts under ORS 164.085(1)(d).
780 State v. Bostwick
him as to the existence of the first suit. Further, nothing in
the record shows that defendant created, reinforced, or took
advantage of a false impression that J had regarding the
first suit.
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 ORS 164.085(1)(a).
Cf. State v. Kyger, 369 Or 363, 370, 506 P3d 376, adh’d to
as modified on recons, 369 Or 604, 509 P3d 112 (2022)
(“[T]o be a substantial step the act must be strongly corrob-
orative of the actor’s criminal purpose”—i.e., “defendant’s
conduct must (1) advance the criminal purpose charged and
(2) provide some verification of the existence of that pur-
pose.” (Internal quotation marks omitted.)).
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 other-
wise transfer[ing] or encumber[ing] property, [and] failing
to disclose a lien” under paragraph (1)(d) of ORS 164.085,
we conclude that the evidence was also legally insufficient
to support conviction for Count 1 on that theory, because
nothing in the record indicates that, with respect to the first
small-claims suit, defendant sold, otherwise transferred, or
encumbered property to J without disclosing to J a lien or
other legal impediment on that property.
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.