State v. Fahlk, S-92-1180

• Decision Date: 18 November 1994
• Docket Number: No. S-92-1180,S-92-1180
• Citation: 246 Neb. 834,524 N.W.2d 39
• Parties: STATE of Nebraska, Appellee, v. Philip FAHLK, Appellant.
• Court: Nebraska Supreme Court

Page 39

524 N.W.2d 39

246 Neb. 834

STATE of Nebraska, Appellee, v. Philip FAHLK, Appellant.

No. S-92-1180.

Supreme Court of Nebraska.

Nov. 18, 1994.

Syllabus by the Court

1. Trial: Rules of Evidence: Appeal and Error. A ruling pursuant to Neb.Evid.R. 403, Neb.Rev.Stat. § 27-403 (Reissue 1989), for exclusion of relevant evidence will be upheld on appeal unless the ruling is an abuse of discretion.

2. Judges: Words and Phrases: Appeal and Error. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

3. Trial: Rebuttal Evidence: Appeal and Error. The abuse of discretion standard is applied to an appellate court's review of a trial court's ruling on the admissibility of rebuttal testimony.

4. Verdicts: Appeal and Error. On a claim of insufficiency of the evidence, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.

5. Criminal Law: Trial: Testimony: Intent. Defendants may testify regarding their intent, or lack of intent, to commit the offenses with which they have been charged.

6. Rules of Evidence. All relevant evidence is admissible. Evidence which is not relevant is not admissible.

7. 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.

8. Evidence. There are two components to relevant evidence: materiality and probative value.

9. Evidence: Pleadings: Words and Phrases. Materiality looks to the relation between the propositions for which the evidence

is offered and the issues in the case. If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial. What is "in issue," that is, within the range of the litigated controversy, is determined mainly by the pleadings, read in the light of the rules of pleading and controlled by the substantive law

10. Evidence: Words and Phrases. The second aspect of relevance is probative value, the tendency of evidence to establish the proposition that it is offered to prove.

11. Theft. Conduct denominated theft in Neb.Rev.Stat. §§ 28-509 through 28-518 (Reissue 1989), constitutes a single offense encompassing the previously separate offenses known as larceny, embezzlement, false pretenses, etc.

12. Theft: Intent. Neb.Rev.Stat. § 28-511(1) (Reissue 1989) proscribes or condemns only that conduct in which criminal intent is present, distinguishing theft from activity which is otherwise permissible as noncriminal conduct.

[246 Neb. 835] 13. Criminal Law: Ratification. Condonation or ratification is, generally speaking, no defense to a crime.

14. Theft. Consent is a valid defense to a charge of theft by taking. That consent may be implied or general consent.

15. Trial: Witnesses. The right to offer the testimony of witnesses is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies.

16. Trial: Prosecuting Attorneys: Judges. Comment regarding the assertion of marital privilege is prosecutorial misconduct. The claim of a privilege is not a permissible subject of comment by judge or counsel.

17. Trial: Motions for Mistrial: Waiver: Appeal and Error. When a party has knowledge during trial of irregularity or misconduct, he must timely assert his right to a mistrial. One may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error.

18. Trial: Rebuttal Evidence. Rebuttal evidence is confined to that which explains, disproves, or counteracts evidence introduced by the adverse party.

19. Appeal and Error. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground.

20. Trial: Rebuttal Evidence. A trial court may in its discretion permit the introduction of evidence in rebuttal that is not strictly rebuttal evidence only for good reason and in the furtherance of justice.

21. Criminal Law: Trial: Evidence: Appeal and Error. Erroneous admission of evidence is harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact. Erroneous admission of evidence in a criminal trial is not prejudicial if it can be said that the error was harmless beyond a reasonable doubt.

22. Criminal Law: Statutes. A penal statute is given a strict construction which is sensible and prevents injustice or an absurd consequence.

23. Criminal Law. Failure to volunteer information is not a physical act that violates Neb.Rev.Stat. § 28-901 (Reissue 1989). Nor are mere words, even those words deliberately intended to frustrate law enforcement, physical acts under § 28-901.

24. Criminal Law: Public Officers and Employees. The kind of official misconduct contemplated by Neb.Rev.Stat. § 28-901 (Reissue 1989) is a particularly dangerous and reprehensible kind of official misconduct, the purposeful obstruction of governmental function by breach of official duty.

25. Criminal Law: Torts: Administrative Law. An unlawful act in violation of Neb.Rev.Stat. § 28-901 (Reissue 1989) is any affirmative violation of legal duty, whether imposed by criminal statute, tort law, or administrative regulation.

[246 Neb. 836] David A. Domina and Denise E. Frost, of Domina & Copple, P.C., Omaha, for appellant.

Don Stenberg, Atty. Gen., J. Kirk Brown, and, on brief, Donald A. Kohtz, Lincoln, for appellee.

HASTINGS, C.J., WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and BOSLAUGH, J., Retired.

LANPHIER, Justice.

Following a jury trial in Otoe County District Court, Philip Fahlk was convicted of theft by unlawful taking and of obstruction of government operations. The jury found that Fahlk, a superintendent for the Nebraska City Public School District, committed theft by unlawful taking when he took a computer from the school where he worked, in violation of Neb.Rev.Stat. § 28-511(1) (Reissue 1989). The jury further found that Fahlk obstructed government operations, in violation of Neb.Rev.Stat. § 28-901(1) (Reissue 1989), by giving a purported equipment checkout sheet to investigators inquiring about the missing computer. Fahlk was sentenced to 1 year of probation followed by 30 days in the Otoe County jail. Fahlk, thereafter, appealed to the Nebraska Court of Appeals.

Fahlk's assignments of error to the Court of Appeals alleged that the trial court erred in (1) preventing him from offering direct testimony that he did not intend to commit the crime of theft; (2) excluding evidence that the school board generally consented to the taking; (3) allowing the State to comment in closing argument that Fahlk's wife did not testify, therefore commenting on his assertion of the marital privilege; (4) improperly admitting rebuttal testimony that calls were made from Fahlk's home telephone to a witness; and (5) concluding that the weight of the evidence supported his convictions. See State v. Fahlk, 2 Neb.App. 421, 510 N.W.2d 97 (1993).

The Court of Appeals affirmed the judgment of the district court. See Fahlk, supra. Fahlk petitioned this court for further review. We granted the petition. Upon review of the assigned [246 Neb. 837] errors, we hold that evidence regarding consent of the school board to the taking was relevant and should have been admissible. We further hold that the admission of the rebuttal testimony was improper. Accordingly, we reverse Fahlk's conviction of theft by unlawful taking. We reverse Fahlk's conviction of obstruction of government operations because the State failed to prove the requisite elements of that crime.

BACKGROUND

Fahlk was employed as the superintendent of the Nebraska City Public School District beginning July 1, 1991. Fahlk's initial duties included negotiating teacher contracts and preparing the Nebraska City Public Schools' budget. Fahlk testified that the school district had not equipped the superintendent's office with a computer, so he borrowed an Apple IIc computer from an elementary school and brought his family's computer printer to work in order to accomplish his duties.

On August 22, 1991, several computer printers were delivered to the superintendent's building for use in the senior high school. Jodi Rathe, an administrative assistant and bookkeeper for the school district, testified that she signed an invoice acknowledging the delivery of the three printers. The printers were placed in a locked kitchen area for overnight storage.

Another employee of the Nebraska City school system, William Lambrecht, testified that three printers were in the kitchen when he arrived at work on August 23, 1991, at approximately 7 a.m. Lambrecht returned to the kitchen area at approximately 7:20 a.m. At that time, Fahlk was present in the kitchen and only two printers remained.

Shortly thereafter, Rathe entered and noticed that one of the printer boxes was missing. Rathe conducted a thorough search for the printers with Lambrecht's help. They soon determined that none of the employees in the building had any knowledge of the printer.

Fahlk had left the building to attend a breakfast meeting; therefore, Rathe left a note on Fahlk's desk explaining the situation. As soon as Fahlk returned to the school, Rathe [246 Neb. 838] provided him...