State v. Powers

634 N.W.2d 1

10 Neb. App. 256

STATE of Nebraska, Appellee, v. Terry POWERS, also known as Patrick McBride, Appellant.

No. A-00-1023.

Court of Appeals of Nebraska.

June 12, 2001.

Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays, Lincoln, for appellant.

Don Stenberg, Attorney General, and Susan J. Gustafson for appellee.

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

IRWIN, Chief Judge.

I. INTRODUCTION

Terry Powers, also known as Patrick McBride, appeals from his conviction and sentence for terroristic threats. On appeal, Powers challenges, inter alia, the trial court's ruling concerning evidence of prior threats, jury instructions given by the trial court, the sufficiency of the evidence to support a conviction, and the sentence imposed by the trial court. Because we find the court did not commit reversible error, we affirm the conviction and sentence.

II. BACKGROUND

On or about August 3, 1999, Don Stenberg received a letter purportedly signed by Powers, who was incarcerated at the time. The author of the letter stated, "I'm writing to you in regards to all of the threatening letter's [sic] that I've written to you in the past" and indicated that "in a very short time I'll be able to do all that I told you I would do. I'm in the last stages of my escape from here." The letter went on to indicate that the author, after escaping, would pay a visit to Stenberg, Harold Clarke, Gary Lacey, Thomas J. Monaghan, and David R. Stickman, and included home addresses for Stenberg, Clarke, and Lacey. Testimony at trial indicated that the addresses included in the letter were accurate. On December 17, 1999, Powers was charged by information with making terroristic threats and with being a habitual criminal. The information alleged that Powers, on or about August 3, 1999, threatened to commit a crime of violence with the intent to terrorize Stenberg, Clarke, and/or Monaghan. Although it appears that Powers could have been charged with several different counts of terroristic threats, the information, for some reason, includes only one count, but alleges threats against all the individuals named. Additionally, the information alleged that Powers had twice been convicted and sentenced to at least 1 year in prison for previous crimes.

On May 30, 2000, Powers filed a motion requesting the State to disclose any intent to use evidence of other crimes, wrongs, or acts pursuant to Neb. Evid. R. 404, Neb.Rev.Stat. § 27-404 (Reissue 1995). On June 12, the court held a hearing concerning evidence the State intended to offer involving prior threatening letters allegedly sent from Powers to Stenberg. At the hearing, the State alleged the prior letters were not rule 404 evidence, but, rather, were prior threatening statements specifically referred to in the letter for which Powers was charged. Powers argued the prior letters which the State intended to use were prior threatening letters for which Powers was not being charged and were evidence of prior misconduct as contemplated by rule 404 because they were evidence of other acts being used to prove the elements of the charged crime. The State presented evidence to demonstrate the two prior letters were written by Powers and were sent to and received by Stenberg. The court found the prior letters were not rule 404 evidence, but were part of the same occurrence for which Powers was charged and were therefore admissible.

The first prior letter was received by Stenberg on or about September 10, 1998. In that letter, the author stated, "I'm writing to you in regards to the threatening letter that I wrote to you. I would like to say I'm sorry for writing it to you. I don't have any plans on doing any of the threats that I made...."

The second prior letter was received by Stenberg on or about October 28, 1998. In that letter, the author stated, "I'm writing with Gods [sic] authority to you. I have found out you are stupider then [sic] I thought. You should of [sic] accepted my apology but seeing how you didn't God has blessed me with his unconditionaled [sic] authority to come after you." The author further detailed that he intended to "rape, torture, and molest all of the bitches, and kids in [Stenberg's] family," that he would "make [Stenberg] watch," and that he would make Stenberg drink "some blood of all [his] family members after [Powers] kill[ed] them." The author further detailed plans to "beat [Stenberg] with a bat, and break one bone at a time til [sic] [he had broken] every bone in [Stenberg's] body." The author indicated that he planned to cut off Stenberg's genitals and "cut [Stenberg's] body up into 52 parts, and mail each part to each attorney general of each state." The author again indicated that he had "Gods authority to do all" of these things and told Stenberg he "should count [his] days because Gods wrath is coming." The letter was signed "Gods wrath deliverer," although the author indicated in the letter that he was "Patrick McBride, f.k.a. Terry Powers." The envelope the letter was mailed in indicated with a stamp that it was "correspondence... mailed from an institution operated by the Nebraska Department of Corrections."

At trial, Powers renewed his objection to the admission of the two prior letters and to testimony concerning the two prior letters, again arguing that the evidence was covered by rule 404. The court overruled the objections and received the prior letters as exhibits, as well as allowing witnesses to testify about the letters' contents. At the conclusion of the evidence, Powers moved for dismissal of the charges as they related to Monaghan and Clarke, arguing there had been no evidence presented concerning them. The court granted the motion, leaving only the charge as it related to Stenberg.

Powers requested the court instruct the jury that a communication is a threat "if it carries the promise of evil under such circumstances that a reasonable person receiving the communication would believe that such was to ensue at the hands of the communicator, or his allies." Powers further requested a jury instruction defining "[t]o threaten another in a menacing manner" to be given in conjunction with the court's instruction that third degree assault by threatening another in a menacing manner was a lesser-included offense to the charged offense of terroristic threats. The court declined to give either instruction.

On June 14, 2000, the jury found Powers guilty of terroristic threats. On September 5, the court found Powers to be a habitual criminal and sentenced Powers to a term of 20 to 30 years' imprisonment. Powers filed this timely appeal.

III. ASSIGNMENTS OF ERROR

On appeal, Powers has assigned 35 errors. For purposes of discussion, we consolidate Powers' assigned errors to six: (1) The court erred in determining the evidence of the prior letters was not rule 404 evidence; (2) the admission of the evidence of the prior letters, if not violative of rule 404, was in violation of a prior plea agreement between Powers and the State; (3) the court erred in receiving another exhibit, exhibit 10; (4) the court erred in not giving Powers requested jury instructions defining when a communication is a threat and defining threatening another in a menacing manner; (5) the evidence was insufficient to support the conviction; and (6) the sentence imposed by the district court was excessive.

IV. ANALYSIS

1. RULE 404 EVIDENCE

The first assignment of error that we will consider is Powers' assertion that the trial court erred in concluding that the prior letters and the testimony concerning the prior letters was not rule 404 evidence. On appeal, Powers asserts that the letters were evidence of prior misconduct, that the State should have been required to state on the record the specific proper purpose for which the evidence was offered, and that the court was required to find on the record the proper purpose for which the evidence was received and to give a limiting instruction to the jury concerning the proper purpose for which the evidence was received. Powers further asserts that the court erred in admitting the prior letters into evidence and allowing various witnesses to testify about the content of the letters. The State asserts again that the prior letters do not constitute rule 404 evidence and were relevant to proving that the letter for which Powers was charged was a threat to commit a crime of violence. As noted above, the letter for which Powers was charged did not specifically include any details, but, rather, indicated that the author intended to carry out previous threats, and the two prior letters demonstrated in disturbing detail what the previous threats were.

In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in determining admissibility. State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000). The exercise of judicial discretion is implicit in Neb. Evid. R. 401, Neb.Rev.Stat. § 27-401 (Reissue 1995), and it is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs and acts under rule 404(2). State v. Burdette, supra. The trial court's decision in this regard will not be reversed absent an abuse of that discretion. Id.

Rule 404(2) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The proponent of evidence offered pursuant to rule 404(2), upon objection to its admissibility, is required to state on the record the specific purpose or purposes for which the evidence is being...