State v. Smith, A-18-461.

STATE OF NEBRASKA, APPELLEE, v. RONNIE S. SMITH, APPELLANT.

No. A-18-461.

NEBRASKA COURT OF APPEALS

April 16, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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 Lancaster County: JOHN A. COLBORN, Judge. Affirmed.

Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.

BISHOP, Judge.

I. INTRODUCTION

After a jury trial, Ronnie S. Smith was convicted of second degree forgery, $5,000 or more. The Lancaster County District Court found Smith to be a habitual criminal and sentenced him to 10 to 15 years' imprisonment. On appeal, Smith challenges his conviction and asserts that his trial counsel was ineffective. We affirm.

II. BACKGROUND

1. PRETRIAL PROCEEDINGS

In a filing to the county court for Lancaster County in March 2017, the State charged Smith with second degree forgery ($5,000 or more) based on allegations regarding checks drawn on a bank account belonging to "Ed Erdman" (Ed) from August 25 to November 3, 2016. In May 2017, Smith was bound over to the district court where the State filed an information charging Smith as it had in county court. The State later filed an "Amended Information" to add an allegation that Smith was a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 2016). Each party filed pretrial motions in limine, and Smith raised another pretrial motion that he ultimately withdrew; none of which are relevant to this appeal.

2. TRIAL

Trial began on March 8, 2018. On March 13, during the defense's case-in-chief, the State filed an "Amended Amended Information," changing only the alleged timeframe for its claim that Smith drew checks on Ed's account; the timeframe was now alleged to be October 7 to November 30, 2016. During trial, each party adduced evidence, some of which is not pertinent to issues on appeal (e.g., store employees testified about video surveillance; police officer testified about his investigation; Ed's neighbor's testimony). Evidence relevant to the appeal is set forth below.

(a) Relationships Among Primary Witnesses

Sharon Johnson (Sharon) and Ed indicated they were previously married but were divorced during all times relevant to this case. Sharon still kept "in touch with him somewhat" as they share "grandkids and great-grandkids." Sharon and Ed had two sons together, one of whom was Lance Erdman (Lance). Sharon indicated that Lance had five children, including Brandon Erdman and Sonya Sharp (Sonya). Sonya testified that Lance was her father.

Smith testified that his address was an apartment on North 70th Street, that Lance was his neighbor, and they had known each other for 4 years. After getting to know Lance, they "spent quite a bit of time together." Ed testified that he had stayed in Lance's apartment on North 70th Street for at least 2 years. Sharon agreed that Ed had been staying with Lance for a couple of years because Ed's house was in disrepair and Lance was taking care of Ed. Ed said he had been working for a company since 1989. Smith knew Lance was unemployed for as long as he had known Lance. Sometime "way before" Lance's hospitalization (discussed below), Ed met Smith through Smith's "acquaintance" with Lance. Sharon and Sonya first met Smith when Lance was in the hospital.

(b) Lance's Hospitalization and Death

Smith testified that he spoke to Lance on October 7, 2016, and "could tell that his health was declining." The next day, Smith went to check on him and saw blood on the garbage can by Lance's bed and on the floor. Lance's balance "was not there." Smith called "9-1-1." The rescue squad transported Lance to the "'ER,'" and Smith followed them to the hospital in his own vehicle. On arrival, Smith and Lance spoke "about someone looking after [Ed]." At some point, Smith left to go eat and returned to find Lance had been moved to a different area. Smith located Lance, who "was unconscious" with a tube down his throat.

Ed recalled that after Lance went to the hospital, he saw him around October 9, 2016. Sharon and Sonya found out Lance was in the hospital that same day; Sharon thought she first visited Lance on October 10, and Sonya went to see Lance on October 11. Ed, Sharon, and Sonya all indicated that Lance initially had a tube down his throat and could not talk. Sharon said that during the "first few days," Lance was in a medically-induced coma. Ed, Sharon, and Sonya generally related that at some point, Lance was conscious; Sonya said that even then, Lance wasstill intubated and could not speak. Lance's family members generally testified that once Lance could communicate, it was limited. Ed "would talk to [Lance] and then [Lance] would nod his head either yes or no." Sharon described that Lance "would make sounds" but she could not understand them. Sonya said that she never heard Lance express a coherent thought and that Lance was not able to write things down. Lance died on October 27.

(c) Smith's Return of Some of Lance's Belongings

Smith recalled that when he met Sonya he told her that he had some of Lance's "stuff." He remembered he had Lance's computer, apartment and mailbox keys, truck keys, car keys, cell phone, and credit card. Sonya said that when she first met Smith, he told her that he had Lance's computer, cell phone, keys, and wallet.

Sharon said she received a text from Smith around November 9, 2016, in which Smith said he left Lance's keys and wallet on the table in Lance's apartment; Sharon had asked that those items be returned. About "a day or two" later, Sharon went to the apartment and found the items. Smith disputed that he initially had Lance's wallet and said he only took one of Lance's credit cards; but, Smith also said "[s]omething happened" and he "had to go get [Lance's] wallet." Exhibit 19 shows that on November 10, Smith texted Sonya that he had returned "the keys" to Lance's apartment table but still had "one key to the apartment." Sonya responded that she would come get the "apt and mailbox key."

(d) Ed's Bank Account

(i) History of Additional Account Holders

Ed testified about his bank checking account. The parties stipulated that exhibits 12, 22, and 23 were true and accurate copies of signature cards issued and maintained by Ed's bank in the ordinary course of business for Ed's account. Lance used to be on Ed's account "in case anything that [sic] ever happened" to him so that "[Lance] could take care of the final arrangements." Exhibit 22 shows Ed and Lance listed as account holders of a checking account as of 2013. Once Lance was on the account, Ed had some checks made with Lance's name on them. Later, Ed no longer wanted Lance on his account as Lance "was delinquent in child support" and money was being drawn out of Ed's account because Lance was a joint account holder on it. Exhibit 23 shows that Lance's name was removed from the account in 2014. After that, Ed "gave [Lance] authorization to pay the rent and so forth" but Lance did not have authority to write checks without asking Ed first. Exhibit 12 shows that on October 26, 2016 (1 day before Lance died), Ed added Sharon as an account holder on his account. Ed asked Sharon if she would be on his account "in case something would happen" to him. Sharon said Ed sometimes needed to be reminded of when bills were due.

(ii) Sharon's Discovery of Certain Checks Drawn on Ed's Account

Sharon first viewed Ed's account (through online banking) around November 8 or 9, 2016. She could view actual checks, and "some checks that were fairly large" caught her attention. Sharon testified that the following checks caused her concern. Dated October 15, exhibit 4 (check 4479) is paid to the order of "Ronnie Smith" for $1,500. Dated October 17, exhibit 5 (check 4478)is paid to the order of a credit union for $1,500 and exhibit 7 (check 4476) is paid to the order of Lincoln Electric System (L.E.S.) for $62.04. Sharon said that Lance was in the hospital on a respirator on October 15 and 17. Dated November 2 (after Lance's death), exhibit 6 (check 4338) is paid to the order of a credit union for $2,500. Sharon indicated that checks 4478 and 4338 were paid on Lance's credit union account. All the checks were signed in Lance's name, which concerned Sharon as Lance "was unable to sign checks."

About November 10 or 11, 2016, Sharon called her "other son" and asked to have Ed call her back, and he did. Sharon recalled she asked Ed "if he knew about those checks and he did not." Ed generally testified that was when he became aware of the checks and that he did not write or authorize the four checks (exhibits 4 to 7) to be written. Thereafter, on a telephone call with Smith, Sharon asked Smith if he "knew anything about four checks that were signed by Lance." Smith apparently admitted that he wrote the checks. Sharon then told Smith that she did not understand how Smith "could do that" when Lance was "not even on that account." Sharon told Smith that "was Ed's account, that was Ed's money." According to Sharon, Smith told her that he had taken the checks out of Lance's apartment. Both Sharon and Smith testified that Smith also told her that Ed knew he was writing those checks; Smith recalled Sharon disagreed with that.

The parties stipulated that exhibits 8 and 9 were true and accurate copies of the business records of Ed's bank on Ed's account showing all transactions upon it, compiled as a bank statement covering certain periods (collectively, from September 23 to November 22, 2016).

(iii) Circumstances of Smith's Writing of Four Checks

During trial, Smith admitted that he wrote each of the four checks (exhibits 4 to 7) and signed Lance's name to them. According to Smith, he wrote check 4479 ($1,500) to himself because he planned to clean Lance's...