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State v. Nistler

Court of Appeals of Oregon

January 22, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
JAMES CHARLES NISTLER, Defendant-Appellant

Argued and Submitted July 31, 2013

Page 1036

Jackson County Circuit Court. 092042AFE. Raymond B. White, Judge. (Judgment). Timothy C. Gerking, Judge. (Judgment - Restitution).

Jedediah Peterson, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Matthew J. Lysne, Assistant Attorney-in-Charge, argued the cause for respondent. With him on the brief was Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.[*]

OPINION

Page 1037

[268 Or.App. 472] HASELTON, C. J.

Defendant, who was convicted of racketeering, eight counts of securities fraud, and eight counts of aggravated first-degree theft, argues that the trial court erred in (1) denying his demurrer to five of the theft charges on statute of limitations grounds, (2) denying his motion for judgment of acquittal on all of the securities fraud charges, and (3) rejecting two distinct challenges to the testimony of a state's witness. As explained below, we conclude that the trial court erred in denying the demurrer as to the five theft charges.[1] However, with respect to the remaining assignments of error, we conclude that the trial court correctly denied defendant's motion for judgment of acquittal on the securities fraud charges, properly determined that the state's witness's testimony was admissible expert testimony under OEC 702, and did not otherwise commit reversible error with respect to the admission of that testimony. Accordingly, we reverse five of the theft convictions and otherwise affirm.

Consistent with the jury's verdict, the facts pertaining generally to defendant's convictions are as follows. In 2004, defendant's wife purchased undeveloped property in Jackson County for $220,000, after which defendant and his wife, along with Kellems, created Jackson County Development, LLC. In March 2006, defendant's wife sold the property to Jackson County Development, LLC, for $800,000, and in exchange received a promissory note for $765,000 secured by a trust deed on the property. The property, called Tennessee Acres, was subdivided into six lots, and the present charges relate to defendant's activities in procuring money from investors for development of houses on lots within Tennessee Acres.

Beginning approximately in early 2006 and through part of 2007, defendant ran an advertisement in a [268 Or.App. 473] newspaper that stated: " ATTENTION INVESTORS[,] Earn 12-15% return. Secured by land. Call Jim Nistler, First Call Mortgage," and defendant's telephone number. Investors--the victims in this case--responded to the ad or heard of defendant from others, and contacted defendant about investing. Defendant suggested to them that they invest in Tennessee Acres, explaining that houses would be built on the six lots, and that the investors would earn interest and be repaid in full within a specified period of time. Between approximately March 2006 and March 2007, the victims entered into agreements with defendant and received promissory notes from defendant, which were secured by trust deeds to various of the lots within Tennessee Acres. The victims were to receive prepaid interest and a full return of the amount invested after a given period. The victims understood that the money they provided to defendant would be used to build houses on the lots in Tennessee Acres. The victims received some of the prepaid interest they had been promised, and some received partial repayment, but were not repaid in full by defendant as promised.

Although some of the funds defendant received from the victims were used for development of Tennessee Acres, the funds were used in significant part to pay defendant's wife and other investors. The houses on the lots in Tennessee Acres were not completed as expected, and defendant was unable to repay the victims pursuant to the terms of the promissory notes. The victims recouped some, but not all, of their losses during foreclosure sales on the lots in Tennessee Acres.

Page 1038

In May 2009, defendant was indicted on the present charges. As discussed in more detail below--and as pertinent to defendant's assignment of error relating to the denial of his demurrer--the offenses were alleged to have occurred between March 2006 and April 2007. Defendant filed a demurrer, arguing, in pertinent part, that five of the theft charges were not ...


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