Filed 8/22/16 P. v. Bovensiep CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068198
Plaintiff and Respondent,
v. (Super. Ct. No. SCD246266)
THOMAS DANIEL BOVENSIEP,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Michael T.
Smyth, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury found Thomas Daniel Bovensiep guilty of 13 counts of grand theft (Pen.
Code, § 487, subd. (a)), and two counts of securities fraud (Corp. Code, §§ 25401,
25540). The jury also found true certain special allegations or enhancements. Bovensiep received a total prison term of nine years four months. Bovensiep challenges his
convictions, contending the trial court violated his rights to a speedy trial and due
process. He also asserts that the statute of limitations barred ten of the grand theft counts
and the two securities fraud counts. We disagree with Bovensiep's assertions and affirm
the judgment.
GENERAL FACTUAL BACKGROUND
Because the parties are familiar with the facts, we summarize only the general
facts concerning the underlying crimes at issue in this appeal. We present additional
facts concerning the speedy trial and statute of limitation issues in our discussion below.
Ronald Dixon – Count 1
In 2003, Bovensiep persuaded his pastor, Craig Knudsen, and Steven Zoumaras, a
business acquaintance, to purchase shares in a limited liability company (LLC) for the
purpose of purchasing a condominium located in Hawaii (the 835 property).
Unbeknownst to the partners, Bovensiep listed his brother-in-law, John Oakes, as the
owner telling Oakes that he wanted to use Oakes's good credit. Bovensiep told Oakes,
who was not in on the scheme, that he would put the loan in the LLC's name, removing
Oakes, as soon as Bovensiep refinanced the property. Bovensiep secretly refinanced the
835 property and took out a line of credit of over $114,000, but left Oakes listed as the
owner of the property.
Dixon, who had met Bovensiep through Oakes and his church, bought Zoumaras's
interest in the 835 property for a total of $117,578 in June 2005. On Thanksgiving Day
2009, Dixon learned that the 835 property was being foreclosed.
2 The Kneeshaws – Count 7
George Kneeshaw and his wife, Terry, have known Bovensiep for over 35 years.
George and Bovensiep had worked as deputy sheriffs together and they remained friends.
In September 2007, the Kneeshaws, along with other individuals each invested about
$60,000 toward the purchase of a condominium in Kihei, Maui (the Kihei property).
Bovensiep managed the Kihei property. On December 5, 2009, the Kneeshaws learned
that the Kihei property was facing foreclosure. At the end of December 2009, George
reported the matter to the sheriff's department for a potential criminal investigation.
The Kneeshaws – Counts 5, 8-11
Bovensiep convinced the Kneeshaws to make a series of four separate loan
investments, supposedly to people in need. The Kneeshaws were to receive monthly
interest and a return of their principal after a specified time. Bovensiep made some
interest payments, but never repaid the principal. Bovensiep later admitted to Trudianne
Bullard, an investigator for the district attorney's office (DA), that he used the money
himself to keep his scheme afloat.
Frederick Semeit – Count 12
Semeit, the Kneeshaws' son-in-law, believed he could trust Bovensiep as
Bovensiep seemed like a really nice guy. Semeit purchased two homes using
Bovensiep's services and also obtained a $5000 loan from Bovensiep, which Semeit
repaid. After Semeit divorced, he gave Bovensiep a $10,000 down payment in February
2008 for a house. When the purchase allegedly fell through, Semeit gave Bovensiep
another $15,000 and let Bovensiep keep his initial $10,000 with the understanding that
3 Bovensiep would pay Semeit interest on the money and the debt would mature in
November 2008. Semeit gave Bovensiep another $20,000, with a maturity date in
October 2008. Semeit believed Bovensiep would be loaning the funds to a third party.
Bovensiep never repaid Semeit.
Chris Miller – Count 13
In April 2008, Miller, a church friend of Bovensiep, gave Bovensiep a $48,000
down payment to purchase a condominium for Bovensiep to manage. Bovensiep
eventually told Miller that escrow on the property had been cancelled and he would give
Miller his money back. Bovensiep never paid Miller back. Bovensiep admitted to
Bullard that when he got money from Miller, he used it to pay someone else who had
loaned him money and "lied" to Miller about where Miller's money was going.
Robert Stevens – Count 18
Karen Taylor's husband had invested money with Bovensiep and spoke very
highly of Bovensiep. Taylor believed Bovensiep took the money to extend loans to third
parties. Taylor referred two of her sisters, Laura Colling and Marsha Allen, and her best
friend Diane Mullins to Bovensiep. Allen in turn referred her friend Patricia Osborne to
Bovensiep. Mullins referred Stevens, her father, to Bovensiep.
In January 2007, Stevens invested $25,000 with Bovensiep and was to receive
monthly interest and return of his principal after a specified time. Bovensiep never paid
Stevens back. Bovensiep later admitted to Bullard that he led Stevens and others to
believe the loans were for third parties, but that he used the money to keep his other
schemes afloat.
4 DISCUSSION
I. Rights to Due Process and a Speedy Trial
Bovensiep complains about prosecutorial delay in charging him. Delay in
charging a defendant after commission of an alleged crime (pre-charging delay) does not
implicate speedy trial rights. (People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).)
The federal right to a speedy trial attaches only after an arrest or the filing of an
indictment or information, although California extends the right by holding that it
attaches after a complaint has been filed. (United States v. Marion (1971) 404 U.S. 307,
320; People v. Mirenda (2009) 174 Cal.App.4th 1313, 1327.)
Here, Bovensiep sought to dismiss the charges against him based on alleged
delays in charging him. Bovensiep never sought a dismissal based on post-charging
delay. Notably, the record shows that after charges were filed, Bovensiep requested
numerous continuances of the preliminary hearing and three trial continuances. Under
these facts, Bovensiep waived his right to a speedy trial. (People v. Wilson (1963) 60
Cal.2d 139, 146 [the constitutional or statutory right to a speedy trial may be waived if
not asserted prior to commencement of trial].) Accordingly, we focus on Bovensiep's
claim of pre-charging delay.
A. Additional Background
Before trial, Bovensiep sought to dismiss the case based on violation of his rights
to due process and speedy trial, claiming the delay resulted in the loss of bank documents
destroyed in the normal course of business and the loss of all records he kept in a storage
facility. The trial court deferred consideration of the motion until after trial, so as to
5 better assess any resulting prejudice to Bovensiep. Following trial, Bovensiep again
moved to dismiss the action based on the alleged constitutional violations. The trial court
denied the motion. The court noted that by the People's own admission, the case had "sat
around" from April or May 2010 to October 2010. Nonetheless, it concluded this
unjustified delay did not result in any prejudice as this delay did not cause the missing
documents. The trial court found that the great age of the case was primarily attributable
to how long it took the victims to discover Bovensiep's possible criminal activities and
bring him to the attention of law enforcement.
B. Legal Principles
California's due process clause states, in part, that "[p]ersons may not . . . be
deprived of life, liberty, or property without due process of law." (Cal. Const., art. I,
§ 15.) Pre-charging delay is analyzed as a due process claim. (Scherling v. Superior
Court (1978) 22 Cal.3d 493, 505.) "The due process clause does not permit courts to
abort criminal prosecutions simply because they disagree with a prosecutor's judgment as
to when to seek an indictment. Rather, the task of the reviewing court is to determine
whether pre-charging delay violates the fundamental conceptions of justice which lie at
the base of our civil and political institutions and which define the community's sense of
fair play and decency. Prosecutors are under no duty to file charges as soon as probable
cause exists but before they are satisfied they will be able to establish the suspect's guilt
beyond a reasonable doubt." (People v. Dunn–Gonzalez (1996) 47 Cal.App.4th 899,
914.) "[T]o prosecute a defendant following investigative delay does not deprive the
6 defendant of due process, even if his or her defense might have been somewhat
prejudiced by the lapse of time." (Id. at p. 915.)
We employ a three-part test to determine if a defendant's due process right to a fair
trial has been violated because of pre-charging delay: "(1) the defendant must show that
he has been prejudiced by the delay, whereupon (2) the burden shifts to the People to
justify the delay, and (3) the court balances the harm against the justification." (People v.
Pellegrino (1978) 86 Cal.App.3d 776, 779.) Prejudice from pre-arrest delay is not
presumed. (Nelson, supra, 43 Cal.4th at p. 1250.) To avoid criminal charges on this
basis, the defendant "must affirmatively show prejudice." (Ibid.; People v. Martinez
(2000) 22 Cal.4th 750, 767.)
"[W]hether the delay was negligent or purposeful is relevant to the balancing
process. Purposeful delay to gain an advantage is totally unjustified, and a relatively
weak showing of prejudice would suffice to tip the scales towards finding a due process
violation. If the delay was merely negligent, a greater showing of prejudice would be
required to establish a due process violation." (Nelson, supra, 43 Cal.4th at p. 1256.) We
review the trial court's ruling on a motion to dismiss for prejudicial pre-charging delay
for abuse of discretion, deferring to any underlying factual findings supported by
substantial evidence. (People v. Cowan (2010) 50 Cal.4th 401, 431.) Whether a
defendant met the initial burden of showing prejudice is a factual question for the trial
court. (People v. Hill (1984) 37 Cal.3d 491, 499.)
7 C. Analysis
Bovensiep was unable to provide records regarding his bank account prior to
December 21, 2007, because these documents had been destroyed by his bank in the
normal court of business. Bovensiep kept his internal financial and accounting records in
a storage facility. All of these records were destroyed in September 2013 when a storage
unit he had leased was seized for nonpayment. Bovensiep argued below that the bank
records and the records in the storage facility would have shown he used the victim's
funds in the normal course of his real estate business, and that he told some of the victims
that he took their money not to lend to third parties, but to keep his businesses afloat.
The prosecution learned that Bovensiep may have committed a crime on
December 30, 2009, when George Kneeshaw filed a report with the sheriff's department.
It is unclear when the sheriff's department referred the matter to the DA. The prosecutor
represented to the court that the DA received the case in April 2010. However, the
People's opposition papers and a timeline prepared by Bullard indicate the DA received
the matter in February 2010.
In May 2010, a deputy district attorney contacted George Kneeshaw about the
matter. Thereafter, there was about a four-month delay until the DA referred the matter
to Bullard in October 2010. The prosecutor speculated that the unavailability of an
investigator caused this delay, but presented no evidence on the issue. On this basis
alone, the trial court properly found this four-month delay unjustified. The trial court
concluded, however, that this unjustified delay did not cause the missing documents;
8 thus, Bovensiep was not prejudiced by the delay. Substantial evidence supports this
conclusion.
Records from the storage facility show Bovensiep habitually failed to timely pay
the rental fee from June 2008 until the time the storage facility notified him in March
2013, that the stored property would be sold. The documents in the storage facility went
to auction in August 2013, but were not actually destroyed until September 2013. Notes
from the storage facility show that Bovensiep intentionally allowed the contents of the
unit go to auction. Bovensiep was arrested on January 29, 2013, and interviewed the
following day. Accordingly, Bovensiep had adequate time to inform the prosecution of
the importance of these documents before the storage facility had them destroyed. The
trial court correctly found that any pre-charging delay did not result in the destruction of
the storage facility documents. (People v. Cowan, supra, 50 Cal.4th at p. 432 [a suspect
who, knowing of police interest, fails to preserve alibi evidence in his control, cannot
complain that a delay in charging violated his due process rights].)
The parties stipulated that Bovensiep's bank retained its records for seven calendar
years, that the bank destroyed the records on a rolling basis, and that the missing bank
records had been destroyed in the normal course of bank business. As a result,
Bovensiep was unable to provide records regarding his bank account prior to
December 21, 2007. Thus, the unjustified four-month delay in getting the case assigned
to an investigator resulted in the loss of a portion of the bank records.
9 As the trial court noted, however, records showing how Bovensiep spent the
money was not the critical inquiry because "[a]t a point it becomes theft when you're
taking money from someone knowing you can't pay it back." Bovensiep admitted to
Bullard that he took about $55,000 from the 835 property as loans for himself or his
business that he never repaid. Bovensiep also admitted taking money from certain
victims telling them the funds would be used as loans to needy third parties, but that he
used these funds to keep the condominiums afloat. Bovensiep stated that things started to
"snowball[]" as he was borrowing from one individual to pay another. Bovensiep
conceded that when the victims confronted him about the money, he lied to them with
false stories because he had already spent the money to keep everything afloat.
The trial court instructed the jury on theft by false pretenses and theft by
embezzlement, and told the jurors that they were not required to agree on the same theory
to find Bovensiep guilty. Bovensiep's statements to Bullard supported an inference that
he took some of the money (1) knowing he would not be able to repay it, supporting theft
by embezzlement, or (2) based on false representations that he would be loaning the
money to needy people, supporting theft by false pretense. (See CALCRIM Nos. 1804,
1806.) Accordingly, the record supports the trial court's finding that Bovensiep did not
suffer actual prejudice.1
1 Bovensiep also contends the bank records were relevant to his defense that the investment losses suffered by the victims were the result of the financial downturn of the economy, rather than any misappropriation he may have committed. While it is probably true that the economic downturn caused the real property investments to lose value, we fail to see how the bank records would have proven this fact.
10 Finally, a prosecutor is entitled to take a reasonable amount of time to investigate
an offense to determine whether prosecution is warranted or to gather more evidence to
build a case against the defendant. (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at
p. 911.) "[T]o prosecute a defendant following investigative delay does not deprive him
of due process, even if his defense might have been somewhat prejudiced by the lapse of
time." (United States v. Lovasco (1977) 431 U.S. 783, 796.)
Here, Bullard prepared a detailed timeline showing an active investigation of the
matter. After Bullard received the matter she immediately started interviewing witnesses
and securing documents. In 2010, Bullard asked for assistance from Steven Papet, an
investigative auditor with the California Department of Justice, because she knew the
matter was going to be "document heavy." In July 2011, Bullard e-mailed Papet that the
DA was ready to file as soon as he finished his analysis. However, the investigation then
led to the discovery of additional victims. In June 2012, Bullard learned that Collings
and Taylor might be victims. Through that interview Bullard learned about Stevens and
Allen and interviewed them in July 2012. Thus, the DA was discovering additional
victims six months before it filed charges against Bovensiep.
The evidence supports the trial court's conclusion that once the DA assigned the
matter to Bullard, the time required to investigate justified any delay in charging
Bovensiep. Even assuming the loss of bank records during the investigation of the case
prejudiced Bovensiep, the justifiable investigative delay outweighed Bovensiep's showing
of prejudice. Thus, we conclude the trial court did not abuse its discretion in refusing to
dismiss the charges against Bovensiep based on pre-charging delay.
11 II. Statute of Limitations Defense
Before trial, the court denied Bovensiep's motion to dismiss some of the charges
on statute of limitations grounds. The court explained that Bovensiep's position of trust
and reasonable excuses allowed him to get away with his crimes longer as the victims
believed Bovensiep's assurances that he would pay them back. The trial court held that
the position of trust that Bovensiep had with the victims created triable issue of fact for
the jury.
The parties agreed that each of the grand theft and securities fraud counts were
subject to a four-year statute of limitations, which accrued upon discovery, and that the
prosecution of the action began on February 13, 2013, when the original information was
filed. The parties argued the statute of limitations issue to the jury. The trial court
instructed the jury that the People began the prosecution of the case on February 13,
2013, and for the prosecution to be timely the jury needed to find that the People
prosecuted the crimes within four years of the date the victims discovered or should have
discovered Bovensiep's criminal actions.
Thus, to be timely, the jury needed to find that the events giving rise to the vast
majority of the counts could not have been legally discovered before February 13, 2009,
four years prior to the filing of the original information. In finding Bovensiep guilty, the
jury necessarily concluded that the statute of limitations did not bar the 10 counts at issue.
12 B. Legal Principles
A defendant may raise a statute of limitations claim in a pretrial motion, but the
trial court may decide the issue as a matter of law only if the facts are undisputed.
(People v. Le (2000) 82 Cal.App.4th 1352, 1361.) A pretrial motion to dismiss on the
ground the statute of limitations has run "is the functional equivalent of a motion for
summary judgment in the civil context." (People v. Lopez (1997) 52 Cal.App.4th 233,
251 (Lopez).) The court should grant the motion only if the evidence establishes as a
matter of law that the statute has run. (Id. at p. 250.) If the People prevail on the motion,
then the jury must resolve the limitation issue if it remains disputed by the defendant.
(People v. Zamora (1976) 18 Cal.3d 538, 563-564, fn. 25 (Zamora).)
"[T]he statute of limitations is not an ingredient of an offense but a substantive
matter for which the prosecution's burden of proof is a preponderance of the evidence."
(People v. Riskin (2006) 143 Cal.App.4th 234, 241.) "Under the preponderance of
evidence standard, the prosecution is entitled to prevail at trial even if the evidence is
conflicting (and thus does not establish the point as a matter of law) if the fact finder
believes the prosecution's evidence and that finding is supported by substantial evidence."
(Lopez, supra, 52 Cal.App.4th at p. 250.) Under the substantial evidence standard, "we
review the entire record in the light most favorable to the judgment to determine whether
it discloses evidence that is reasonable, credible, and of solid value such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin
(1998) 18 Cal.4th 297, 331.) We resolve all evidentiary and credibility conflicts in favor
13 of the verdict and indulge every reasonable inference the jury could draw from the
evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.)
A four-year statute of limitations applies to grand theft and securities fraud. (Pen.
Code, §§ 801.5, 803, subd. (c)(1) & (3).) The limitations period "does not commence to
run until the discovery of an offense . . . ." (Pen. Code, § 803, subd. (c).) "The crucial
determination is whether law enforcement authorities or the victim had actual notice of
circumstances sufficient to make them suspicious of fraud thereby leading them to make
inquiries which might have revealed the fraud." (Zamora, supra, 18 Cal.3d at pp. 571-
572, italics omitted.) "[I]t is the discovery of the crime, and not just a loss, that triggers
the running of the statute." (Lopez, supra, 52 Cal.App.4th at p. 246, fn. 4.) The inquiry
as to the discovery of the offense is a question of fact for the jury to decide. (Zamora,
supra, at p. 565.) On appeal, a jury's findings on the discovery issue are tested under the
substantial evidence standard. (Ibid.) Where a defendant occupies a position of trust "
'facts which would ordinarily require investigation may not excite suspicion.' " (People
v. Crossman (1989) 210 Cal.App.3d 476, 482.)
C. Analysis
Bovensiep contends his conviction on two securities fraud charges involving the
Kneeshaws and eight grand theft counts involving Dixon, the Kneeshaws, Semeit, Miller
and Stevens must be reversed because the four-year limitations period expired before the
prosecution commenced for these offenses. The jury disagreed that the limitations period
had expired, impliedly finding these individuals did not know they were victims of a
14 crime before February 13, 2009. As we shall explain, substantial evidence supported this
implied finding as to each victim.
As a preliminary matter, Bovensiep asserts each of the above victims should have
known that a crime had potentially occurred before February 13, 2009, based on the
bounced checks, property foreclosures and his failure to respond to their inquiries.
Bovensiep asserts that had the victims investigated, they would have discovered
additional facts requiring further inquiry. Even assuming, however, that each victim had
done some investigation, the testimony of Bovensiep's own expert suggested such an
investigation would not have led the victims to believe a crime had been committed.
Janet McHard, a certified fraud examiner for the defense reconstructed the
accounting records for Bovensiep's companies for five different bank accounts, entering
every transaction into an accounting program. McHard described this as a tedious
process that took at least two months. McHard ultimately formed the opinion that there
were no signs of fraud. Specifically, she found no evidence of deception or
misrepresentation of facts in contemporaneous documents and no false or altered
documents. While McHard agreed with the prosecution's definition of a Ponzi scheme,
she did not find such a scheme in this case. McHard found evidence of a "procurement
violation," meaning money was taken from accounts without permission. While McHard
admitted this could be fraud, she stated it could also be improper training or
forgetfulness. McHard admitted there were "frequent" bounced checks, but stated that a
bounced check "in and of itself, is not a hallmark of fraud." She also stated that losing
property to foreclosure is not a red flag for fraud.
15 Accordingly, there was sufficient evidence for the jury to reject Bovensiep's
argument that the exercise of reasonable diligence would have led each victim to discover
his crimes before February 13, 2009.
Dixon and Bovensiep became friends and started a business relationship, with
Bovensiep helping Dixon sell two parcels of property. Dixon was "extremely satisfied"
with Bovensiep's services. Dixon had a high impression of Bovensiep because
Bovensiep associated with people who Dixon thought of highly. Dixon trusted
Bovensiep as he knew Bovensiep was a past peace officer who attended church and had
real estate knowledge.
In late 2004 or 2005, Bovensiep mentioned a Hawaii condominium investment
opportunity to Dixon. Dixon decided to invest after meeting Craig Knudsen, Bovensiep's
pastor. Dixon felt comfortable joining a partnership with Knudsen and Bovensiep as they
were both Christians, he was a Christian and they appeared very honest and reliable.
Dixon purchased an interest in the 835 property for a total of $117,578 in June
2005. Dixon knew that the operating agreement for the condominium limited Bovensiep,
as the managing partner, to not exceed $1500 in expenses without approval of all three
partners. When Dixon purchased his interest, the 835 property had about $81,000 in
assets.
In late 2005, Dixon received some documents showing the LLC had only about
$500 or $600 in cash. This concerned Dixon. Dixon send some e-mails to Bovensiep
about the issue but never got a response. Dixon believed that Bovensiep had "some
16 explaining to do" regarding depletion of the cash account. When Dixon never got a
response from Bovensiep, he contacted Daniel Tobias, the accountant for the LLC, and
asked where the money had gone. Tobias referred Dixon back to Bovensiep, telling
Dixon that he just reports what he is given. When Bovensiep did not respond, Dixon
went back to Tobias.
Tobias told Dixon that there had been a "loan to buyers" that added up to around
$65,000. Dixon was "shocked" because Bovensiep was limited to $1,500 for
expenditures and there had been no approval from the other partners for this loan. Dixon
did not understand what the term "loans to buyers" meant because he was unaware of the
LLC loaning money to anybody. Dixon was "concerned" when he learned about the loan
because he was unaware of any buyers and had not authorized the expenditure. Dixon
asked Bovensiep for an explanation, but never received one.
On December 9, 2008, Dixon e-mailed a list of 15 questions to Bovensiep after
reviewing the financial statements for the 835 property from May 2005 to December
2007. The first question asked Bovensiep for an explanation regarding the depleted cash
assets. In another question, Dixon asked about a write-off for a bad debt, wanting to
know about the debt, stating "This smells of embezzlement and I demand a full
disclosure."
Bovensiep e-mailed a response on December 17, 2008, but Dixon could not recall
if Bovensiep had completely answered his questions. Bovensiep ended the e-mail with
"good news" including that rates were dropping and this would enable him to refinance a
bunch of loans. Dixon e-mailed a response to Bovensiep's answer that same day,
17 thanking Bovensiep for the update. When asked whether Bovensiep had done a good job
in keeping Dixon informed up to this point, Dixon responded "Not totally." Around
December 21, 2008, Dixon was "[a] little frustrated" with Bovensiep because Bovensiep
had not provided full explanations.
This evidence shows that Dixon knew, and was concerned about, the depleted cash
reserves for the 835 property since late 2005. Dixon also knew that the unauthorized
"loans to buyers" violated a provision in the operating agreement. The jury, however,
could have reasonably concluded that Dixon did not have sufficient information that
would have led him to discover that Bovensiep had committed a crime. Bovensiep's lack
of responsiveness to Dixon's inquires, while frustrating, did not evidence a crime
particularly when viewed in conjunction with Dixon's general high impression of
Bovensiep and his belief that Bovensiep was honest and reliable.
It was not until Thanksgiving Day 2009, that Dixon was shocked to learn that the
835 property was being foreclosed. On December 2, 2009, Dixon and others met with
Bovensiep at a Coco's restaurant. The participants recorded the meeting and the jury
listened to the recording. The general tone of the meeting was cordial and not accusatory,
with Bovensiep expressing his gratitude on how congenial and gracious everyone has
been.
During the meeting, Bovensiep stated they were together to "fix" things, that the
past two years have been devastating and he was receiving counseling. Dixon indicated
that he did not think Bovensiep was a bad person, that Bovensiep had good intentions and
everyone was trying to work with Bovensiep because Dixon knew the current situation in
18 the real estate market. Dixon again expressed his trust in Bovensiep telling him: "We
had, we had some serious doubts, and again my paranoia goes when you don't talk to me.
I've told you a thousand times, but if you talk to us, we could take that as good news."
The meeting closed with Bovensiep telling everyone that he had his "list" and would "get
back to you guys" with more information.
Thus, even at this late date, Bovensiep promised to provide more information to
ease Dixon's concerns. Dixon believed Bovensiep had "good intentions" and was most
concerned about Bovensiep's lack of communication. On these facts, the jury could
reasonably conclude that Dixon did not have sufficient information of criminal activity
until Dixon was served with a lawsuit regarding the 835 property in February 2009.
The Kneeshaws - Counts 5, 7-11
The Kneeshaws were longtime friends of Bovensiep. They knew him as a "great
family man" and "church man" who had helped them and their son with their respective
homes. Terry had an "overwhelming" amount of trust in Bovensiep. In 2007, the
Kneeshaws invested in the Kihei property and entered into three separate loan
investments with Bovensiep, supposedly to people in need. When Terry inquired about
missed interest payments, Bovensiep told her that the people who had her money were
having difficulties, but that her money was safe and she should not worry. Bovensiep
preyed on Terry's sympathies, telling her children were in danger of losing their homes or
meals.
In 2008, the Kneeshaws made a fourth loan investment that had a due date in July
2011. Although Terry was hesitant to make the last loan because the earlier loans had not
19 been repaid, she still trusted Bovensiep and did not want other people to lose their homes.
During this time period, the Kneeshaws received monthly interest payments from
Bovensiep on the first loan for about one year.
On December 5, 2009, George learned that the Kihei property was facing
foreclosure. George met with the other investors two times, a couple of weeks apart, to
discuss the situation and attempt to gather documents about what was owed on the
property. The investors realized they had no standing to talk to the bank or the
homeowner's association because the Kihei property was not in their names. At the end
of December 2009, George reported the matter to the sheriff's department for a potential
criminal investigation. Until the day he learned about the foreclosure, George still trusted
Bovensiep, never believed Bovensiep would steal from him and believed Bovensiep's
reassurances about repayment of the notes.
The jury could have reasonably concluded that the Kneeshaws did not have
sufficient information that Bovensiep had committed a crime until the sheriff's office
referred the matter to the DA in February 2010.
Semeit received two notes from Bovensiep with maturity dates in November and
October 2008, with the belief that he would be paid interest and would receive his
principal back when the notes matured. Bovensiep claims that Semiet's receipt of only
one interest payment put him on inquiry notice and with further inquiry he would have
discovered that he was the victim of a crime.
20 This argument ignores Semiet's trust in Bovensiep and Bovensiep's constant
reassurances that he simply needed more time to get Semiet's money back. Semiet last
spoke to Bovensiep for the purpose of inquiring about repayment in 2009, when
Bovensiep again told Semiet "Don't worry. I'll pay you back." While the evidence shows
Bovensiep failed to repay Semiet, it does not show that Semiet suspected Bovensiep of a
crime. Nor does the evidence suggest what further inquiry Semiet could have undertaken
to discover Bovensiep's crime after Bovensiep failed to pay on the notes.
In April 2008, Miller gave Bovensiep $48,000 to purchase a condominium.
Around April 2009, Miller told Bovensiep that he wanted out of the investment as he had
yet to receive any paperwork. Bovensiep promised to return Miller's money as soon as
Bovensiep got another investor. After 60 days went by, Miller asked Bovensiep for a
promissory note, which Bovensiep provided in April 2009, which stated payment was
due in 60 days. Bovensiep later replaced that promissory note in June 2009, with another
note due in 60 days. In November 2009, Miller knew Bovensiep was lying to him, but
after speaking to Bovensiep's wife he "absolutely" believed he would get his money back.
Although Miller testified that Bovensiep had deceived him about the investment
from April 2008 to April 2009, Bovensiep promised to return Miller's money and gave
Miller two promissory notes. Miller believed that Bovensiep would repay him. A
reasonable jury could have concluded that Miller did not discover Bovensiep's theft until
Bovensiep failed to pay on the June 2009 promissory note in August 2009. Thus, Miller
did not realize he was the victim of a crime until after February 13, 2009.
21 Robert Stevens – Count 18
In January 2007, Stevens invested $25,000 with Bovensiep. Stevens knew that
Taylor had been doing business with Bovensiep for quite a while and believed Bovensiep
to be a good honest person. Stevens received about four monthly interest payments, but
then the checks started to bounce. Bovensiep blamed the problem on someone else and
told Stevens he would take care of the issue. Bovensiep then stopped sending Stevens
any checks. Stevens sent Bovensiep a couple of letters, but got no response. Bovensiep
eventually told Stevens that he would repay him from a business deal in Brazil that would
be paying Bovensiep a lot of money. Stevens talked to Bovensiep again, who told
Stevens that he was still working on the Brazil deal. Bovensiep also told Stevens that he
would repay Stevens when the economy improved.
On July 21, 2009, Mullins helped Stevens write Bovensiep a letter, which Stevens
signed. In March 2010, Stevens agreed to Bovensiep extending the note for another year.
In May 2010, Bovensiep reassured Mullins that the note would stay in effect until he
repaid Stevens. Mullins helped Stevens with a second letter in July 2010. In August
2010, Bovensiep again promised to take care of Stevens, but was unclear about the
timing.
Bovensiep claims Stevens should have discovered the theft in 2008 when the
checks Stevens received bounced. A reasonable jury, however, could have concluded
that based on Bovensiep's promises to repay Stevens from the Brazil deal, that Stevens
had no reason to suspect Bovensiep until July 2009, when Mullins and Stevens sent their
22 first letter to Bovensiep. Thus, the jury reasonably concluded that Stevens could not have
discovered the theft before February 13, 2009.
Accordingly, substantial evidence supported the jury's implied finding that the
statute of limitations had not expired for the challenged counts.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.