State v. Edwards

• Decision Date: 02 August 2013
• Docket Number: No. S–12–777,S–12–777
• Citation: 837 N.W.2d 81,286 Neb. 404
• Parties: State of Nebraska, appellee and cross–appellant, v. John Blake Edwards, appellant and cross–appellee.
• Court: Nebraska Supreme Court

286 Neb. 404
837 N.W.2d 81

State of Nebraska, appellee and cross–appellant,
v.
John Blake Edwards, appellant and cross–appellee.

No. S–12–777

Supreme Court of Nebraska.

Filed August 2, 2013

Appeal from the District Court for Keith County: James E. Doyle IV, Judge. Reversed and remanded for a new trial.
Clarence E. Mock, Denise E. Frost, and Matt M. Munderloh, of Johnson & Mock, for appellant.

Jon Bruning, Attorney General, and James D. Smith for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

Syllabus by the Court

[286 Neb. 404]1. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

2. Prosecuting Attorneys: Appeal and Error. A motion for the appointment of a special prosecutor is addressed to the discretion of the trial court, and absent an abuse of discretion, a ruling on such a motion will not be disturbed on appeal.

3. Appeal and Error. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.

4. Jury Instructions. Jury instructions are not prejudicial if they, when taken as a whole, correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence.

5. Criminal Law: Proof. The State carries the burden to prove all elements of the crime charged.

6. Jury Instructions. An instruction which withdraws from the jury an essential element in the case is prejudicial.

7. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court would have been sufficient to sustain a guilty verdict.

8. Appeal and Error. An appellate court may, at its discretion, discuss issues unnecessary to the disposition of an appeal where those issues are likely to recur during further proceedings.

9. Criminal Law: Entrapment: Estoppel. The elements of the defense of entrapment by estoppel are (1) that the defendant must have acted in good faith before [286 Neb. 405]taking any action; (2) that an authorized government official, acting with

[837 N.W.2d 84]

actual or apparent authority and who had been made aware of all relevant historical facts, affirmatively told the defendant that his conduct was legal; (3) that the defendant actually relied on the statements of the government official; and (4) that such reliance was reasonable.

10. Trial: Evidence: Proof. The nature of an affirmative defense is such that the defendant has the initial burden of going forward with evidence of the defense. When the defendant has produced sufficient evidence to raise the defense, the issue is then one which the State must disprove.

Stephan, J.

As the Keith County Attorney, John Blake Edwards established a pretrial diversion program. After an audit by Nebraska's state auditor and an investigation by the Nebraska State Patrol, Edwards was charged with three counts of theft by unlawful taking for checks written from diversion program funds. Edwards was acquitted by a jury of two of the theft counts and convicted of the third, which was based on a check he wrote on a diversion program account to a local trapshooting team (trap team). He was sentenced to probation. Edwards appeals. We find plain error in the jury instructions, and therefore, we reverse, and remand for a new trial.

I. FACTS AND PROCEDURAL BACKGROUND

Edwards took office as the Keith County Attorney in January 2007. He established a pretrial diversion program, which allowed for dismissal of criminal charges after the offender completed program requirements, such as community service or alcohol education. Participants paid an enrollment fee and [286 Neb. 406]court costs and entered into a contract with the county attorney's office. The diversion program was initially approved by the Keith County Board of Commissioners on March 7, 2007, with the understanding that the program would be self-funded.

The fees and costs paid by program participants were deposited into a separate bank account in the name of the diversion program, with Edwards as the only authorized signer on the account. Edwards spent $7,257.11 from the diversion program bank account on supplies for the diversion program between March 7, 2007, and August 13, 2008.

In April 2008, a Keith County commissioner submitted a complaint to the Nebraska Attorney General's office, expressing concern that the diversion program did not have formal approval of the county board and that public funds were being misused. The complaint stated that the program funds were kept in an account available only to Edwards rather than being remitted to the county treasurer. Edwards submitted a response in which he explained that all financial records were kept on the program's computer by his staff and that all deposits and dispersals had been recorded and cross-checked by two employees other than Edwards.

In the spring of 2008, after the commissioner's complaint had been filed, Edwards attended a seminar for county attorneys in Kearney, Nebraska. At the seminar, Edwards had a conversation with

[837 N.W.2d 85]

John Freudenberg, chief of the criminal division of the Nebraska Attorney General's office. The two men later disagreed as to the substance of the conversation. According to Edwards, Freudenberg motioned for Edwards to come talk to him and then said, “Don't worry about the letter that you've received.” Edwards thought Freudenberg was referring to the commissioner's complaint. Edwards testified that Freudenberg told him that he could use the diversion program funds to pay salaries, to supplement employees, or for donations. He further testified that Freudenberg advised him that diversion program funds could be given to employees without being based on the hours they worked.

In contrast, Freudenberg testified that Edwards approached him during a break between sessions of the seminar and that the two discussed the county commissioner's complaint. [286 Neb. 407]Freudenberg told Edwards that if he were a county attorney, he probably would not have a diversion program. Freudenberg denied telling Edwards that he could use diversion funds to pay employees or to make donations. In fact, Freudenberg said they did not discuss the use of diversion program funds, because that was not the nature of the complaint from the county commissioner.

In June 2008, the Attorney General's office informed the county commissioner that it found no basis for involvement by the Attorney General and recommended that the matter be considered by the county board. At its meeting on August 13, 2008, the county board passed a resolution adopting a revised diversion program. An agreement was attached to the resolution. It specifically provided that all program participant fees and costs were to be deposited with the county treasurer. In addition, the county attorney was to maintain a checking account for payment of court costs for diversion participants. Any surplus funds after program costs were paid were to be made available for public projects related to education and prevention of criminal activity, as approved by the board. The board did not give Edwards any direction as to the use of the previous diversion program's checking account.

On January 20, 2009, Edwards wrote a check on the account of the previous diversion program to a local trap team in the amount of $3,681.09. This check was the basis of the theft charge on which he was convicted. The trap team is a program for junior and senior high trapshooters. Edwards testified that the trap team is a nonprofit organization affiliated with a local sports club which is also a nonprofit organization. However, an investigator for the Nebraska Department of Revenue testified that there was no record with the Secretary of State or the Internal Revenue Service that the trap team was a nonprofit organization. Edwards volunteered with the trap team, assisting with legal work, coaching, and fundraising. He was an authorized signer on the team's checking account. On January 20, a check for $981.03 drawn on the account of the trap team was written to Edwards and signed by Edwards and his wife. The memorandum line indicated “knives, shells 09 season reimb.”

[286 Neb. 408]In April or May 2010, the state auditor's office notified Keith County it would conduct an audit of the county, including the county attorney's office. The audit was conducted in July, and a report was issued in September. The audit found that Edwards had been paid $7,257.11 in excess of the amount the board authorized for his salary. It also found that payments of $18,989.04 had been made from the previous diversion program without board approval. Edwards explained that he had been unable to locate the receipt

[837 N.W.2d 86]

folder for the diversion account. He also stated that various payments made to him were not salary but were for reimbursement for items purchased for the office, both for the diversion program and for general office use.

After the auditor's report was released, the Attorney General's office referred the matter to the Nebraska State Patrol for an investigation. Freudenberg was initially assigned to monitor the investigation. But after the State Patrol investigator notified Freudenberg of Edwards' claim that Freudenberg had given Edwards permission to make a donation to the trap team, Freudenberg removed himself from the case because he was a potential witness.

Edwards was charged on September 19, 2011, with three counts of theft by unlawful taking, two counts of income...