State v. Wisinski

680 N.W.2d 205

12 Neb.App. 549

STATE of Nebraska, appellee, v. Clifford WISINSKI, appellant.

No. A-03-467.

Court of Appeals of Nebraska.

May 25, 2004.

Patrick J. Boylan, Deputy Sarpy County Public Defender, for appellant.

Jon Bruning, Attorney General, and Jeffrey J. Lux, for appellee.

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

IRWIN, Chief Judge.

I. INTRODUCTION

Clifford Wisinski appeals from a jury verdict finding him guilty of burglary, a Class III felony, and theft by unlawful taking, more than $1,500, a Class III felony. For the reasons stated below, we affirm.

II. BACKGROUND

On January 31, 2002, Thomas Szynskie and Jana Szynskie went on vacation to Oklahoma. Jana left a key at the home of her friend, Wendy Womochil, with instructions for Womochil to care for Jana's pets while the Szynskies were away. Womochil was not present at her home when Jana left her key, but Womochil's friend, Debra Holub, was present.

Holub contacted a friend, Clesson Wright, and told him about the key Jana had left at Womochil's home. Wright then contacted his friend, Wisinski. According to the testimony of Wright, Wisinski came over to Womochil's home and Wright, Wisinski, and Holub discussed using Jana's key in order to "look for some stuff to take out." Wright testified that he did not have a vehicle and that he had contacted Wisinski because Wisinski did have a vehicle.

The following morning, Wright went over to the Szynskies' home and entered using the key Jana had left at Womochil's house. Wright testified that upon arriving, he removed his boots by the door so as not to track snow or slush into the house and proceeded to feed the Szynskies' cats. Wisinski then arrived and knocked on the door; Wright let Wisinski in. The two men then proceeded to take numerous items from the home, loading them first into the garage so that the items could be loaded into Wisinski's vehicle all at once.

While Wright and Wisinski were looking through the house and loading items into the garage, the telephone rang several times. Wright answered the telephone each time, told the callers that Thomas was out of town, and wrote down their telephone numbers. At trial, Wright stated that he answered the telephone at Wisinski's instructions, "You better answer that. It might be one of the neighbors." Wright also testified that Wisinski took a snowblower and removed the snow from in front of the house and from the driveway. Wisinski told Wright that he did so "[t]o make it look like we're supposed to be there, a strange car in the driveway."

Wright testified that he and Wisinski then loaded all of the items from the garage into the back of Wisinski's vehicle and took them to a friend's home in North Omaha. After unloading the items, they went to a bank. Wright testified that Wisinski had taken a checkbook from the Szynskies' home and that he and Wisinski unsuccessfully attempted to cash a check from that checkbook which they had written to "Melvin Roach." (Wisinski was later found using an identification card with the name "Melvin Roach" on it.) Wright and Wisinski then returned to the Szynskies' home and took some additional items, which they took to Wisinski's home.

The Szynskies returned home early from vacation upon the news that their house had been broken into. An investigation ensued. On February 13, 2002, Wisinski was apprehended in a red truck by police. Located in that truck were some of the items identified as stolen by the Szynskies, including a printer containing some business stationery imprinted with the name of Thomas' business.

At trial, Wisinski was found guilty of burglary and theft by unlawful taking, more than $1,500. Wisinski moved for a new trial. The trial court sentenced Wisinski to 3 to 10 years' imprisonment on each count, to be served concurrently. The trial court also denied Wisinski's motion for new trial. This appeal follows.

III. ASSIGNMENTS OF ERROR

Wisinski alleges, renumbered and restated, that the trial court erred in (1) granting the State's request for a hearing pursuant to Neb. Evid. R. 404, Neb.Rev. Stat. § 27-404 (Reissue 1995); (2) admitting evidence of value of property over objections on foundation, hearsay, and confrontation rights grounds; (3) failing to grant Wisinski's motion to dismiss because of allegedly insufficient evidence; (4) failing to give correct jury instructions; and (5) hearing Wisinski's motion for new trial after, rather than before, sentencing.

IV. ANALYSIS

1. RULE 404 HEARING

Wisinski argues that the trial court erred in granting the State's request for a rule 404 hearing. The only bases for such error that Wisinski argues in his brief are that the State failed to articulate the purpose for which it was offering the evidence presented at the rule 404 hearing and that the court failed to properly state the purpose for which the evidence would be admitted. Wisinski's argument is without merit.

Rule 404 provides in relevant part:

(2) 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.

(3) When such evidence is admissible pursuant to this section, in criminal cases evidence of other crimes, wrongs, or acts of the accused may be offered in evidence by the prosecution if the prosecution proves to the court by clear and convincing evidence that the accused committed the crime, wrong, or act. Such proof shall first be made outside the presence of any jury.

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 offered, and the trial court is required to state on the record the purpose or purposes for which such evidence is received. State v. Powers, 10 Neb.App. 256, 634 N.W.2d 1 (2001) (citing State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000)). Any limiting instruction given upon receipt of such evidence should likewise identify only those specific purposes for which the evidence was received. Id.

However, in the case at bar, the record supports a finding that the trial judge had determined that the evidence presented by the State was not rule 404 evidence. The trial court stated at the beginning of the rule 404 hearing, "Under Rule 404, it's other crimes and so forth. Isn't this just circumstantial evidence of a crime that was committed?" The State responded, "You can certainly view it that way, Judge. We filed this in an abundance of caution because it's several days after the incident and it's a different jurisdiction as well." These statements suggest that at the outset, the trial court did not believe that the evidence to be presented was rule 404 evidence.

At the conclusion of trial, Wisinski requested a limiting jury instruction that stated in part:

[T]he evidence that [Wisinski] may have (here insert particulars of prior similar acts) has been received only for the limited purpose of helping you to decide whether [he] had the (intent, motive, opportunity, here insert pertinent fact in issue from [rule 404]) to commit the Bur[g]lary and Theft by Unlawful taking charged. You must consider the evidence for that limited purpose and for no other.

The judge denied Wisinski's request and explained:

Let the record show that we had a [rule] 404 hearing and I said at the time this is just a matter of circumstantial evidence, the fact that he gets in a truck and is chased and so forth. The issue there was what was found in the truck and it's just simply a matter of circumstantial evidence connecting with the burglary. That's why that [instruction] is not given.

Because the trial court appears by its statements and its actions to have determined that the evidence presented at the rule 404 hearing was not rule 404 evidence, we can only presume that that is why the court refused to grant Wisinski's request for a limiting instruction.

We find that the trial court was primarily correct in determining that the evidence Wisinski objects to was not rule 404 evidence. We find that most of the evidence presented by the State was evidence forming the factual setting of the crime and was evidence of events inextricably intertwined with the charged crime. Accordingly, the State did not need to articulate the purpose for which it was offering that evidence, and the court did not need to state the purpose for which that evidence would be admitted.

In State v. Powers, 10 Neb.App. 256, 634 N.W.2d 1 (2001) (citing U.S. v. O'Dell, 204 F.3d 829 (8th Cir.2000); U.S. v. Luna, 94 F.3d 1156 (8th Cir.1996); and U.S. v. Tate, 821 F.2d 1328 (8th Cir.1987)), this court held that evidence of prior conduct which is inextricably intertwined with the charged crime is not considered extrinsic evidence of other crimes or bad acts and that rule 404 does not apply to evidence of the former kind. We stated that evidence of prior conduct that forms the factual setting of the crime is not rendered inadmissible by rule 404. Powers, supra (citing U.S. v. Phelps, 168 F.3d 1048 (8th Cir.1999), and U.S. v. Williams, 95 F.3d 723 (8th Cir.1996)). We also said that the State is entitled to present a coherent picture of the facts of the crime charged and that evidence of prior conduct that forms an integral part of the crime charged is not rendered inadmissible under rule 404 merely because the acts are criminal in their own right but have not been charged. Powers, supra (citing Williams, supra). Finally, we stated that a court does not err in finding rule 404 inapplicable and in accepting prior conduct evidence where the evidence is of prior conduct so closely intertwined with the charged crime that the evidence completes the story or provides a total picture of the charged crime. Pow...