State v. Fierro

• Docket Number: A-23-231
• Decision Date: 26 December 2023
• Parties: State of Nebraska, appellee, v. Kristin Fierro, appellant.
• Court: Nebraska Court of Appeals

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State of Nebraska, appellee,
v.
Kristin Fierro, appellant.

No. A-23-231

Court of Appeals of Nebraska

December 26, 2023

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Dawson County: JAMES E. DOYLE IV, Judge. Affirmed.

Brian J. Davis, of Davis Law, L.L.C., for appellant.

Michael T. Hilgers, Attorney General, and Teryn Blessin for appellee.

RIEDMANN, BISHOP, and WELCH, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

RIEDMANN, JUDGE.

INTRODUCTION

Kristin Fierro appeals her conviction for perjury from the Dawson County District Court. She assigns that there was insufficient evidence to support her conviction and her trial counsel was ineffective in advising her to waive her right to a jury trial. We determine that the evidence was sufficient to support her conviction and we reject her ineffective assistance of counsel claim. Therefore, we affirm.

BACKGROUND

In May 2020, a complaint was filed against Fierro in the county court for Dawson County alleging second degree forgery. It alleged that Fierro "with intent to deceive or harm" completed a written instrument affecting the legal right of another. In June, Fierro pled no contest to the charge. Prior to the county court accepting her plea, she was advised of the nature of the charge, and the court found that she knowingly, voluntarily, and intelligently entered into her no contest

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plea. The court determined a factual basis for her plea existed, and Fierro was found guilty and sentenced to pay a $100 fine.

On July 16, 2020, Fierro was arrested for theft by unlawful taking ($0-$500) after she was accused of stealing a rug from a local laundromat. She was subsequently charged with theft.

Theft Trial.

Fierro was tried by a jury for the theft charge on February 19, 2021. Fierro took the stand to explain the circumstances of her alleged theft and was sworn under oath. During her testimony, the following exchange occurred on cross-examination:

[Prosecution:] In the last - in this state or in any other state or in the United States, have you ever been convicted of a felony or a crime involving dishonesty within the last 10 years

[Fierro:] No

Fierro was ultimately found not guilty of theft by unlawful taking.

Perjury Charge.

Following the theft trial, the State contacted Sergeant Erik Rowan of the Lexington Police Department and requested that he investigate whether Fierro had committed perjury in her testimony. After receiving and reviewing the transcripts from the theft trial, Rowan concluded that Fierro had committed perjury when she stated she had not been convicted of a crime of dishonesty. Rowan later arrested Fierro and cited her for perjury.

Fierro was charged in the county court and bound over to district court. Fierro filed a plea in abatement claiming that the bindover to district court was not supported by sufficient evidence and was in violation of various constitutional protections. The district court disagreed, and after a hearing, issued an order overruling the plea in abatement.

Perjury Trial.

At the pretrial hearing on her charge of perjury, Fierro informed the district court that she intended to waive her right to a jury trial. Fierro affirmed that she had spoken with her lawyer about waiving her right to a jury.

At trial, the district court informed Fierro of her constitutional right to a jury trial. It also asked Fierro a series of questions to ensure she was waiving her right to a jury trial knowingly, voluntarily, and intelligently. The district court then accepted Fierro's waiver.

The district court received four exhibits into evidence: a journal entry from Fierro's theft trial in which she was found not guilty; a journal entry from her plea hearing and sentencing on the forgery conviction; the complaint filed in the forgery action; and a partial transcript from the theft trial that included Fierro's testimony denying conviction of a crime of dishonesty.

The State's sole witness was Rowan who testified as to his investigation into the alleged perjury. He testified that during the theft trial, Fierro was asked if she had "ever been convicted of a felony or a crime involving dishonesty" in the last 10 years and she responded "no." Based upon Fierro's 2020 conviction of forgery, he knew that not to be true.

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Fierro testified on her own behalf to explain that she believed the question at her theft trial was asking her only if she had been convicted of a felony. She claimed that at the time of her testimony, she did not know what a crime of dishonesty was.

Fierro's defense attorney who represented her on the theft charge also testified. He explained that at the time of Fierro's theft trial, he was unaware of her criminal history. He clarified that when she responded "no" to the State's question regarding her criminal history and there was no impeachment, he thought they "were over that hump." Had he known about the forgery conviction, he would have questioned her regarding crimes of dishonesty on redirect examination so she could rectify her mistake.

Judgment of Conviction.

The district court found Fierro guilty of perjury. It found that the State proved beyond a reasonable doubt that when Fierro testified that she had not been convicted of a crime of dishonesty, she did not believe the statement to be true. It explained to find otherwise would negate the adjudicative facts established by the county court in 2020.

The district court found that Fierro's statement was material and forgery was a crime of dishonesty. It also identified two adjudicative facts from the county court to aid its analysis. First, Fierro knew she was charged with forgery when she entered into her plea of no contest. Second, Fierro knew that forgery is a crime committed with the "intent to deceive." The district court found that the plain, ordinary, and commonly known definitions of "dishonesty" includes, "lack of honesty or integrity: disposition to defraud or deceive." It concluded that because Fierro knew she was charged with forgery, which was a crime committed with the intent to deceive, and the definition of dishonesty included the "disposition to defraud or deceive," then she must have known that forgery was a crime of dishonesty when she responded "no" to the question regarding a prior conviction of a crime of dishonesty.

At sentencing, Fierro told the district court, "I honestly was misguided if anything as far as my bench trial or my right to waive a jury trial. I was also misguided as far as my history of my criminal record." Fierro was...