110 P.3d 1058 (Nev. 2005), 41876, Jezdik v. State

Docket Nº:41876.
Citation:110 P.3d 1058
Opinion Judge:[9] The opinion of the court was delivered by: Maupin, J.
Party Name:Michael JEZDIK, Appellant, v. The STATE of Nevada, Respondent.
Attorney:[7]
Case Date:May 12, 2005
Court:Supreme Court of Nevada
 
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Page 1058

110 P.3d 1058 (Nev. 2005)

Michael JEZDIK, Appellant,

v.

The STATE of Nevada, Respondent.

No. 41876.

Supreme Court of Nevada

May 12, 2005

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[Copyrighted Material Omitted]

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Carmine J. Colucci & Associates and Carmine J. Colucci, Las Vegas, for Appellant.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.

Before MAUPIN, DOUGLAS and PARRAGUIRRE, JJ.

OPINION

MAUPIN, J.

In this appeal we consider the extent to which the State may rebut character evidence introduced by the defendant in a criminal case.

This matter involves allegations of identity theft and fraudulent use of a credit card. The State initially filed charges against appellant Michael Jezdik 1 relating to numerous purchases made in Nevada and California in late April and early May of 2001. However, unable to obtain receipts supporting many of the charges, the State ultimately only pursued charges concerning purchases at three Las Vegas grocery stores on May 6, 2001: Vons, Albertsons, and Raley's. A jury convicted Jezdik on a single count of obtaining and using identification of another, 2 three counts of fraudulent use of a credit card, 3 and two counts of burglary. 4

Jezdik contends on appeal that: (1) the district court erred in allowing the State to introduce prior bad act evidence in rebuttal to Jezdik's character testimony on direct examination, (2) the district court's admission of lay witness testimony regarding handwriting comparisons constitutes plain error, (3) insufficient evidence supports the verdicts, (4) his trial counsel rendered ineffective assistance, and (5) cumulative error warrants reversal. We conclude that the district court properly allowed admission of rebuttal evidence in response to improper evidence of character either intentionally or inadvertently introduced during defense counsel's direct examination of Jezdik. Further, with the exception of one count of fraudulent use and one count of burglary, we conclude that sufficient evidence supports the verdicts. Finally, we decline to reach Jezdik's claims of ineffective assistance of counsel 5 and conclude that Jezdik's remaining assignments of error are without merit.

FACTS AND PROCEDURAL HISTORY

Jezdik and the victim in this case, Anna Behran, are both Czechoslovakian immigrants who met in Las Vegas in early 1997. They became romantically involved for a brief period but soon parted ways. Near the end of 2000, they renewed their friendship. Shortly thereafter, Behran informed Jezdik that she was interested in purchasing a home but was uncertain of the process. Jezdik, who had just completed a mortgage application himself, informed Behran that she could complete a mortgage application online and save money. According to her trial testimony, Jezdik offered to help her with the transaction with the aid of his personal home computer.

In February or March 2001, Behran and Jezdik completed an online mortgage application from Jezdik's residence, located at 3400 Termination Court in Las Vegas. During the application process, Jezdik gained access to Behran's social security number, her mother's maiden name and other confidential information. Behran testified at trial that Jezdik and her estranged husband were the only people with access to this information. Behran further testified that she never gave Jezdik permission to use her personal information to obtain a credit card and that she never went to Jezdik's Termination Court

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address for any purpose other than to generate the mortgage application.

Terry Chodosh, a fraud investigator for Citibank, testified that, on April 2, 2001, Citibank received an online application for a MasterCard listing Anna Behran as the primary cardholder and Michael Jezdik as the secondary cardholder. The application required Behran's social security number and date of birth, provided an address of 3400 Termination Court, and stated that Behran worked for a firm known as Southwest Advertising, Jezdik's employer. Because the application listed Jezdik as a secondary cardholder, Citibank did not require his personal information. Although previously a Citibank cardholder, Behran disclaimed any responsibility for the April 2, 2001, application. She also denied at trial that she had used Jezdik's address for the purpose of receiving mail and denied ever working for Southwest Advertising.

Citibank approved the application on April 19, 2001, and sent two cards to 3400 Termination Court. Subsequent bills went unpaid. Behran testified that she became aware of the second account after receiving Citibank correspondence regarding a recent change of her account address from Termination Court to another Las Vegas address on Flaming Coral Lane. Other testimony at trial established that Jezdik moved from Termination Court to Flaming Coral Lane in May 2001. Citibank's security operations department closed the account in August 2001 at Behran's request.

As part of the subsequent fraud investigation, Detective John Woosnam of the Las Vegas Metropolitan Police Department (LVMPD) contacted a Citibank investigator, learned that Citibank suffered losses in connection with the account, and obtained copies of three receipts and the billing statements. The statements revealed seventeen purchases made between April 25 and May 6, 2001. Four of the transactions occurred in California between April 26 and April 28, 2001. The State ultimately argued that Behran could not have made the California charges because she was in Hawaii at the time. 6 Behran's personal bank statements, admitted at trial, confirmed transactions in Hawaii on April 23, 25, and 26, 2001.

At trial, Detective Woosnam conducted a lay comparison of Jezdik's signature with the Citibank receipts. While Detective Woosnam admitted he was not an expert, he testified that "based on general experience ... [t]he signature on the receipts [is] similar in appearance with the signature that appeared on the copy of the voluntary statement ... obtained from [Michael] Jezdik." Based on this similarity, Woosnam testified that it was his opinion "that the signatures are from the same person, [Michael] Jezdik."

Gene Olewinski, a detective in the LVMPD financial crimes unit, also participated in the investigation concerning Jezdik. Olewinski testified at trial that, as part of the investigation, he required Jezdik to execute exemplar signatures for expert handwriting analysis. Attempts to make comparisons failed due to the type and quality of the signatures on the receipt copies.

The defense theorized that Behran herself opened the Citibank account and was motivated financially to deny ownership of the account. Jezdik testified in his own defense that he and Behran had renewed a romantic relationship at the time of the events in question, that Behran enjoyed unrestricted access to the Termination Court residence, and that she could have used his computer to complete the credit card application in his absence. Jezdik further testified that Behran received mail at both Termination Court and Flaming Coral Lane even after he instructed her to change her mailing address, and that he and Behran were in fact coworkers at Southwest Advertising. The defense also attempted to establish that Jezdik could not have made several of the alleged charges in Nevada because he was in California on some of the days of the alleged transactions on the Citibank card, and that Jezdik originally gained access to Behran's personal information during their first relationship but had never made use of it.

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In an apparent attempt to establish Jezdik's good character, defense counsel asked Jezdik on direct examination, "Have you ever been accused of anything prior to these current charges?" Jezdik responded, "No." The prosecutor then asked to approach the bench and a brief conference occurred off the record. When testimony resumed, defense counsel proceeded to a different line of questioning. Later, outside the jury's presence, the State argued that the "no accusation" evidence "opened the door" to specific rebuttal concerning misconduct similar to that charged in the case. After reviewing a tape-recorded transcript provided by the State, the district court ultimately allowed the testimony of two rebuttal witnesses.

Pursuant to the ruling, Detective Olewinski testified concerning another ongoing investigation of Jezdik. The record does not reveal the nature of this alleged offense or whether Jezdik was aware that he was under investigation, but the record clearly shows that the State had not formally charged Jezdik with any offense relating to it.

Karel Kothera, Jezdik's father-in-law, additionally testified for the State that Jezdik and Kothera's daughter, Monica, approached him sometime during 2001 asking for his assistance in purchasing a home. Kothera agreed to help and provided Monica a power of...

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