State v. Copple

• Decision Date: 13 February 1987
• Docket Number: No. 85-470,85-470
• Citation: 401 N.W.2d 141,224 Neb. 672
• Parties: STATE of Nebraska, Appellee, v. Marvin E. COPPLE, Appellant.
• Court: Nebraska Supreme Court

Page 141

401 N.W.2d 141

224 Neb. 672

STATE of Nebraska, Appellee, v. Marvin E. COPPLE, Appellant.

No. 85-470.

Supreme Court of Nebraska.

Feb. 13, 1987.

Syllabus by the Court

1. Constitutional Law: Statutes. A statute which is clear and precise, and therefore not vague, may nonetheless fail to pass constitutional muster by virtue of being overbroad in the sense that it prohibits the exercise of constitutionally protected conduct.

2. Constitutional Law: Statutes: Standing. Irrespective of standing to challenge a statute for vagueness, an individual may have standing to assert that a statute is overbroad when such statute reaches a substantial amount of constitutionally protected conduct.

3. Constitutional Law: Statutes: Standing. In determining whether standing exists for a facial challenge to a statute as overbroad, a court must first determine whether the statute reaches a substantial amount of constitutionally protected conduct. If the statutory proscription does not reach a substantial amount of constitutionally protected conduct, there is no standing to challenge a statute on the basis that the statute is overbroad, and such challenge must fail.

4. Constitutional Law: Statutes: Standing. In order to have standing to challenge a statute on the ground of vagueness, one must not have engaged in conduct which is clearly proscribed by the statute, and cannot complain of the vagueness of a law as applied to the conduct of others.

5. Criminal Law: Statutes: Constitutional Law: Due Process. An essential purpose of a penal statute is to provide notice to the ordinary person concerning conduct which is proscribed as criminal. When a penal statute supplies an ordinary person with notice concerning conduct forbidden as criminal, such statute meets the constitutional standard of due process.

6. Criminal Law: Evidence: Witnesses: Immunity. At a hearing to determine whether the State had violated its agreement for immunity and restricted evidence or information, the State must present a prima facie case that it has fulfilled its agreement with the defendant, that is, demonstrate that the State's evidence, to be adduced at the defendant's trial, was obtained from a source or sources independent of the defendant and not by direct or indirect use of information obtained from the defendant as the result of defendant's agreement for immunity and restricted evidence or information.

7. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, the Supreme Court will uphold the trial court's findings of fact unless those findings are clearly erroneous.

8. Trial: Rules of Evidence: Hearsay: Words and Phrases. "(1) A statement is (a) an oral or written assertion or (b) nonverbal conduct of a person if it is intended by him as an assertion.... (3) Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Neb. Evid.R. 801 (Neb.Rev.Stat. § 27-801 (Reissue 1985)).

9. Words and Phrases. Conceal means to hide, secrete, or withhold from knowledge of others; to withhold from utterance or declaration; to cover or keep from sight; to hide or withdraw from observation, cover or keep from sight, or prevent discovery. The word conceal pertains to affirmative action likely to prevent or intended to prevent knowledge of a fact and has reference to some advantage to the concealing party or a disadvantage to some interested party from whom the fact is withheld.

10. Rules of Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Neb.Evid.R. 401 (Neb.Rev.Stat. § 27-401 (Reissue 1985)).

11. Conspiracy. The principal element of a conspiracy is an agreement or understanding between two or more persons to inflict a wrong against or injury upon another. The very nature of a conspiracy requires an element of intent.

12. Conspiracy: Circumstantial Evidence. Circumstantial evidence may establish existence of a conspiracy or the criminal intent necessary for a conspiracy.

13. Conspiracy. When a conspiracy has been proved, a conspirator's acts and declarations, in furtherance of the conspiracy, are the acts and declarations of all conspirators and are admissible evidence against the coconspirators.

14. Conspiracy. An overt act, as something done pursuant to a conspiracy, tends to show a preexisting conspiracy and manifests an intent or design toward accomplishment of a crime. An overt act, by itself, need not have the capacity to accomplish the conspiratorial objective and does not have to be a criminal act.

15. Conspiracy. Silence, which is designed to conceal, may indicate an intention to conspire and, if intended to facilitate the conspiracy, may be an overt act pursuant to the conspiracy.

16. Trial: Evidence: Proof. Prima facie proof of a case is less stringent than proof by a preponderance of the evidence. A "prima facie" case requires only enough evidence to take the question to the jury, whereas "preponderance of the evidence" requires proof which leads the jury to find the existence of the contested fact is more probable than its nonexistence.

17. Conspiracy: Proof. For admission of a coconspirator's act as evidence against a defendant-coconspirator being tried for a crime other than the conspiracy itself, the trial court must first determine whether the State has proved a prima facie case that (1) a conspiracy existed, (2) the defendant and the witness were members of the conspiracy, and (3) the witness' act was done during and in furtherance of the conspiracy.

18. Conspiracy: Rules of Evidence. Whether the State has established a prima facie case of conspiracy, thereby constituting anything within execution or furtherance of the common purpose as the act of every coconspirator, is a preliminary question for the trial court concerning admissibility of evidence. Neb.Evid.R. 104(1) (Neb.Rev.Stat. § 27-104(1) (Reissue 1985)).

19. Conspiracy: Appeal and Error. A trial court's finding that a prima facie case has been established concerning existence of a conspiracy will be upheld unless such finding is clearly erroneous.

20. Witnesses: Expert Witnesses. Whether a witness is qualified as an expert is a preliminary question for a trial court, Neb.Evid.R. 104(1) ( Neb.Rev.Stat. § 27-104(1) (Reissue 1985)). Determination of a witness' qualification as an expert is a matter within the sound discretion of a trial court, whose ruling will be upheld unless such ruling constitutes an abuse of discretion.

21. Appeal and Error. In order that assignments of error as to the admission or rejection of evidence may be considered, the Supreme Court requires that appropriate reference be made to the specific evidence against which objection is urged. A party who claims error in a proceeding is required to point out the factual and legal basis that shows the error.

22. Appeal and Error. To be considered by the Supreme Court, errors must be assigned and discussed in the brief of the one claiming that prejudicial error has occurred.

23. Jury Instructions: Appeal and Error. Prejudicial error regarding jury instructions may not be predicated solely upon a particular sentence or phrase in an isolated instruction, but must appear from consideration of the entire instruction of which the questioned sentence or phrase is a part, as well as consideration of other relevant instructions given to the jury. All other instructions must be read together, and if the instructions taken as a whole correctly state the law, are not misleading, and adequately cover the issues, there is no prejudicial error.

David L. Herzog, P.C., Omaha, for appellant.

Robert M. Spire, Atty. Gen., Laura L. Freppel, and Lynne R. Fritz, Lincoln, for appellee.

Before KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN and GRANT, JJ.

SHANAHAN, Justice.

The information in the district court for Lancaster County charged Marvin E. Copple with two counts of theft in violation of Neb.Rev.Stat. § 28-511(1) (Reissue 1985), alleged to have occurred as a result of Copple's receipt of $500,000 from Commonwealth Savings Company in reference to real estate purchased by Commonwealth. A jury found Copple guilty on both counts of theft. We affirm.

Commonwealth is a Nebraska corporation licensed as an industrial loan and investment company with five members of its board of directors. Marvin Copple owned and operated a real estate investment and development company and was also a vice president and director of Commonwealth from 1978 to 1981. During those same years, Marvin's father, S.E. Copple, was Commonwealth's majority shareholder, president, and chairman of the board of directors. S.E. Copple, personally or individually, and Commonwealth had been involved in real estate development in excess of 20 years.

In November 1983 the Nebraska Department of Banking and Finance forced Commonwealth into receivership. As a result of subsequent State investigation of Commonwealth's collapse, the two theft charges were filed against Marvin Copple on January 12, 1984.

On May 10, 1984, acknowledging that Copple was under investigation regarding Commonwealth, the State, the United States, and Copple agreed to dispose of all possible criminal charges as follows: Copple would cooperate in all investigations and would testify truthfully; the federal government would file no charge against Copple; the State would file no additional charge against Copple but was entitled to continue prosecution of the two theft charges pending against Copple; and nothing restricted the State's use of "any relevant evidence within [the county attorney's] possession, providing such evidence was not derived, either directly or indirectly, from information...