State v. Dick

STATE OF NEBRASKA, APPELLEE, v. MARION W. DICK, APPELLANT.

No. A-12-276

NEBRASKA COURT OF APPEALS

Filed January 8, 2013

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Hall County: WILLIAM T. WRIGHT, Judge. Affirmed.

Glen D. Witte and Corey A. Burns, of Law Office of Glen D. Witte, P.C., L.L.O., and, on brief, Mark D. Raffety for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

INBODY, Chief Judge, and SIEVERS and MOORE, Judges.

MOORE, Judge.

INTRODUCTION

Marion W. Dick appeals from his conviction in the district court for Hall County of theft by unlawful taking. Dick assigns error to, among other things, the admission of opinion testimony by the owner of the property as to its value and the sufficiency of the evidence to support his conviction. Finding no error, we affirm.

BACKGROUND

The State filed an information on October 5, 2010, charging Dick with theft by unlawful taking in violation of Neb. Rev. Stat. § 28-511(1) (Reissue 2008), a Class IV felony. The State alleged that on or between June 28 and July 6, 2010, Dick took or exercised control over movable property of Ronette Stott, having a value of $500 or more but not over $1,500, with the intent to deprive her of the property. A jury trial was held on September 7 and 8, 2011.

The evidence at trial showed that at some point, a relationship developed between Dick and Stott and that in September 2008, Stott moved into a residence owned by Dick. About a yearlater, Stott purchased a set of living room furniture which was delivered to Dick's residence. Stott selected and paid for the furniture herself. Stott understood that the furniture was hers and that if she ever left Dick's residence, she would take the furniture with her. Stott discussed this with Dick.

In June 2010, Stott went to Iowa to visit relatives and attend a class reunion. On Sunday, June 27, Stott and Dick had a telephone conversation during which Stott informed Dick that she was staying in Iowa and would not be returning to his residence. Dick became angry and told Stott to remove her belongings from his house by Friday. Stott contacted a moving company, but because of the Fourth of July holiday weekend, the earliest the movers could pick up Stott's belongings was July 6. Stott requested that the moving company take an inventory of her possessions prior to July 6.

Tammy Rapp, the moving company's office manager, went to Dick's residence on June 28, 2010, to take an inventory of the items Stott wanted to move. Dick was present, and he showed Rapp the items to be moved. Rapp reviewed photographs of the missing items, taken at some point prior to Stott's departure from Dick's residence, and she stated that she was directed by Dick to move the items shown in the photographs.

On July 6, 2010, Stott returned to Dick's residence in order to move her belongings. Dick was not present at that time. Upon entering the residence, Stott noticed that many of her items were missing. According to Stott, the items missing included her sewing machine, a family heirloom desk, a new couch and loveseat, another desk, and a Queen Anne chair, among other things.

Stott contacted Dick by telephone and asked him what he did with her things. Dick informed Stott that he "gave them to a needy family." Stott asked Dick about the individual items, and Dick repeated that he gave them to a needy family. Stott inquired further, but Dick said he did not know the family's name and did not have their telephone number, although he thought they lived in Hastings. During a telephone conversation with Stott on July 12, 2010, Dick admitted he still had the sofa and loveseat. Stott also testified, without objection, that she remembered telephone conversations in which Dick told her that she deserved the truth someday but that he could never return her items because they were "gone forever."

Stott identified exhibit 9 as an invoice from a furniture store that she received when she purchased the missing sofa and loveseat, among other items, which reflects what she paid for those items. Dick initially objected to the receipt of exhibit 9 on the basis of hearsay, foundation, and relevancy. During a sidebar discussion, the following exchange occurred:

THE COURT: Okay, at this point, we do have a foundational problem. But before I sustain the objection, what I need to have the parties know is this has got to be her record. If it's not part of her record, you're going to need to call the person whose record it is. So on that answer, is it something she kept in her records, not something that the furniture -- I mean if this is something from the furniture store, we need the people from the furniture store, not her. If this is her record that she kept, that's the foundation that you're going to have to lay, all right?

[Dick's attorney]: With all due respect, Your Honor, she can probably hear you and guide her answers that way.

Following that exchange, the district court sustained Dick's objection on the basis of foundation but stated that the exhibit was relevant as "it does go to establishing something about the value. It doesn't necessarily establish the value. But it is evidence of value."

Upon further questioning by the State, Stott stated that exhibit 9, which contains both an invoice and a charge receipt, was what she received at the time of the purchase and that she kept the documents as part of her records indicating that she had completed that transaction. When Stott offered exhibit 9 a second time, Dick objected again, this time only on the grounds of relevancy and foundation. The district court overruled the foundation objection and received the exhibit, stating that Stott's name was on the invoice and that she established that the documents in exhibit 9 were part of her records. Stott then testified that exhibit 9 reflects what she paid for the individual items. Exhibit 9 reflects that the purchase price of the sofa was $521.84 and the loveseat was $508.

Stott further testified that because the sofa and loveseat were in excellent condition and less than a year old, they should be valued at their purchase price or "a small fraction less." Stott then opined, somewhat in contradiction to her previous statement and the purchase price reflected on exhibit 9, that the value of the sofa in June and July 2010 was $700 and the value of the loveseat was $400 or $500.

Stott gave further testimony of her opinion as to the value of her other missing items in Hall County in June 2010. She opined, over Dick's foundation objections, that the value of her sewing machine was $500, the Queen Anne chair was $300, the wicker chair was $400, and the items in her Victorian bedroom totaled over $1,500. Finally, Stott opined that the value of the items in the antique desk in June 2010 in Hall County totaled over $600 and the desk was $1,000.

Dick made a motion for a directed verdict, which the district court overruled.

During its deliberations, the jury sent out a written question, asking "Was the statement by [Stott] that [Dick] gave her items away objected to or stricken from the evidence?" In the presence of Dick's attorney and the prosecutor, the district court stated its intent to respond as follows: "No. Please review the instructions with regard to objections." Dick's attorney objected to the court's proposed response, and he argued that the jury is not supposed to take into account counsel's statements and objections, or the court's ruling thereon. Dick's attorney suggested that the court answer "no" to whether or not the statement was stricken, and then simply refer the jury back to the instructions on what it should consider as evidence for the objection portion of the question. The court observed that, since there was no objection, whether it had overruled or granted the objection was not an issue. The court then provided the following written response to the jury's question, "No. Please review the court's instructions on objections."

The jury found Dick guilty of theft by unlawful taking and valued the property taken at $3,900. Specifically, the jury valued the living room furniture at $500, the antique desk at $1,000, the miscellaneous desk items at $200, the Queen Anne chair at $150, the sewing machine at $500, the wicker chair at $50, and the items in the Victorian bedroom at $1,500.

Dick filed a motion for new trial on September 15, 2011, alleging, among other things, that the district court abused its discretion on multiple evidentiary rulings by failing to direct a verdict in Dick's favor and by answering a jury question over Dick's objection. Dick also alleged misconduct of the jury.

At a hearing on September 21, 2011, called on the district court's own motion, the court informed the attorneys that it had been advised by the court reporter of certain documents she found in the jury room. The court received the documents, two copies of the information filed by the State against Dick, into evidence for purposes of the hearing. The court stated that it had called the hearing primarily to inform the parties of what the court had learned and asked if either party wanted to make any further record. The prosecutor declined, but Dick's attorney called the court reporter as a witness. The court reporter testified that following the release of the jury by the court, she discovered in the jury room two copies of the information filed by the State in this case which were sitting on top of the exhibits to which the jury had access. Dick filed a supplemental motion for new trial on September 22, alleging misconduct of the jury based on the evidence brought forth during the September 21 hearing.

On February 2, 2012, the district court entered an order overruling Dick's motions for new trial. With regard to the copies of the information found in the jury room, ...