State v. Hilpert

• Decision Date: 25 February 1983
• Docket Number: No. 82-224,82-224
• Citation: State v. Hilpert, 213 Neb. 564, 330 N.W.2d 729 (Neb. 1983)
• Parties: STATE of Nebraska, Appellee, v. Gretchen HILPERT, also known as Leta G. Tyler, Appellant.
• Court: Nebraska Supreme Court

Page 729

330 N.W.2d 729

213 Neb. 564

STATE of Nebraska, Appellee, v. Gretchen HILPERT, also known as Leta G. Tyler, Appellant.

No. 82-224.

Supreme Court of Nebraska.

Feb. 25, 1983.

Syllabus by the Court

1. Directed Verdict: Waiver. Following a motion for a directed verdict at the close of the evidence of the State, the introduction of evidence thereafter by the defendant waives any error in the ruling or failure of ruling on the motion, although the defendant is not prevented from questioning the sufficiency of the evidence in the entire record to sustain a conviction.

2. Witnesses: Self-Incrimination: Waiver. The general rule is that a defendant's testimony at a former trial is admissible in evidence against him in later proceedings. A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives.

3. Criminal Law: Evidence: Joinder. Evidence offered by one defendant in a joint trial, if competent, is evidence against other persons charged in the same information.

4. Witnesses: Joinder. Where one of several defendants on trial together voluntarily becomes a witness, he is a witness for all purposes. If he knows facts injurious to a codefendant, they may be brought out either by his own counsel or by the State.

5. Criminal Law: Jurisdiction. Where the requisite elements of a crime are committed in different jurisdictions, if an essential element of the crime is committed in this state, jurisdiction to prosecute is present.

6. Verdicts: Appeal and Error. This court will not interfere on appeal with a finding of guilt based upon evidence unless it is so lacking in probative force that we can say as a matter of law that it is insufficient to support such finding beyond a reasonable doubt.

7. Sentences: Appeal and Error. A sentence imposed within the limits of the statute will not be disturbed on appeal absent an abuse of discretion.

Dean S. Forney, Box Butte County Public Defender, Alliance, for appellant.

Paul L. Douglas, Atty. Gen., and Patrick T. O'Brien, Asst. Atty. Gen., Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

HASTINGS, Justice.

The defendant, Gretchen Hilpert, and her husband, John B. Hilpert, were charged in separate informations with the crime of theft by deception, a violation of Neb.Rev.Stat. § 28-512(1) (Reissue 1979). Following a stipulated consolidated trial to the court alone, she was convicted and sentenced to a term of imprisonment of 18 months to 2 years. The errors which she has assigned on appeal, listed in the order in which they will be discussed, are essentially as follows: The court erred in that (1) it considered evidence against her which was not introduced as a part of the State's case in chief, nor by her on defense; (2) the evidence was insufficient to establish beyond a reasonable doubt that the crime charged was committed in Nebraska, in that the intent to deprive, an essential element of the crime, did not occur within the State of Nebraska; (3) the evidence was insufficient generally to establish beyond a reasonable doubt that the defendant committed the crime charged; and (4) the sentence was excessive.

This prosecution arose out of a substantial shortage of funds which developed in a certain guardianship estate wherein John B. Hilpert was the guardian and attorney and the defendant, as John's secretary, apparently actually administered the estate.

At the beginning of the trial, the following colloquy occurred between the court and counsel: "THE COURT: ... Both of these [cases] have been consolidated for purposes of trial and in both trial by jury has been waived and they are being tried before the Court.... MR. MARGHEIM [counsel for John B. Hilpert]: Your honor, we have one procedural matter to ask the Court. THE COURT: Surely. MR. MARGHEIM: We are asking for advice on this. These two cases are consolidated for purposes of trial but presume that that still leaves each defendant with the right to present their individual defenses, possibly conflictive defendants [sic], and each individual defendant to testify or not testify? THE COURT: Yes, that will be all right. MR. MARGHEIM: Okay." The record further reflects that Mr. Forney was present representing the defendant Gretchen, and voiced no objection to those statements. The State then presented its case in chief and rested. John B. Hilpert testified in his own behalf and called as a witness the defendant Gretchen, who also testified. No objection to nor request for limitation of applicability of the testimony of either of these witnesses was voiced by the defendant Gretchen. Following John B. Hilpert's rest, counsel for the defendant Gretchen announced that no evidence would be offered in her behalf.

The State's case in chief consisted of testimony by Samuel L. O'Brien, a former county judge of Box Butte County; Lane Nansel, vice president and cashier of the Guardian State Bank, Alliance; L. Leroy Schommer, also a vice president of that bank; Albert T. Reddish, an Alliance attorney; and Lois Pedersen, vice president of the Alliance National Bank; and a great deal of documentary evidence.

Mr. O'Brien identified in person both the defendant and John B. Hilpert. He also testified that John was appointed guardian of the particular estate, that he signed various documents, and that the defendant worked for John as a secretary from the mid-1960s to 1972.

The various annual reports covering the period from September 17, 1971, to September 15, 1979, purportedly made out by the guardian, John B. Hilpert, were examined by the witness Lane Nansel. Each of those reports contained what appeared to be the signature of Lane R. Nansel, as vice president of the bank, certifying the accuracy of the amounts claimed on the report to be on deposit in the bank. However, he testified that with the exception of the one for the year September 17, 1971, to September 16, 1972, none of his signatures were genuine. As examples of discrepancies in the reports, the witness pointed to his purported certification for the year ending on September 15, 1979, which showed $34,000 in certificates of deposit with his bank, whereas in fact there was but $7,500, and for the year ending on September 16, 1973, an alleged balance of $10,000 in savings certificates, as compared to an actual balance of $5,500. The report for that same year disclosed that the guardian had written a check to the Guardian State Bank in the amount of $5,000 for a certificate of deposit, whereas Mr. Nansel testified that no such certificate was purchased during that time period. Similar instances of false information were detailed by this witness as to many of the other reports.

Mr. Nansel also testified that as of September 24, 1979, there was a total of $8,000 in certificates of deposit in the guardianship account, and that two certificates in the total sum of $5,500 were cashed on April 24, 1980, leaving a June 24, 1980, balance in certificates of deposit of $2,500. He also stated that during the period April 24, 1972, to June 24, 1980, there never was a balance in time certificates for the guardianship of more than $8,000. However, the report for the year ending September 15, 1977, showed a balance of $24,000; for September 15, 1978, a balance of $29,000; and for September 15, 1979, a balance of $34,000.

Exhibit 10 is a photocopy of one Guardian State Bank cashier's check in the amount of $5,489, dated April 24, 1980, payable to the guardianship account in the Alliance National Bank, stamped endorsed for credit to that account, and a draft dated August 7, 1980, in the amount of $2,461.35, drawn on the Colorado National Bank of Denver with the Guardian State Bank as payor, "John B. Hilpert Guardian of Harold E. Uhrich" as payee, with a hand-printed endorsement as follows:

"John B. Hilpert, Guardian

of Harold E. Uhrich

For Deposit Only

Gretchen Hilpert

02-244578

/s/ Gretchen Hilpert."

The $5,489 figure represented the $5,500 of certificates cashed in April, and the $2,461.35 figure represented the balance of the certificates then remaining. These transactions were initiated by way of letters from John B. Hilpert. However, according to a handwriting expert, John B. Hilpert's signature on one of the letters requesting the bank to cash the certificates of deposit was actually written by the defendant. With the payment of $2,461.35, according to Mr. Nansel, any balance which the guardianship had with his bank was "wiped out."

The witness Lois Pedersen of the Alliance National Bank testified that there was a total of approximately 25 checks written on the guardianship account naming defendant as payee, signed by John B. Hilpert, and endorsed by the defendant. The checks were in varying amounts, ranging from $100 to $5,000, totaling something in excess of $14,000, and covered the period from March 10, 1979, to July 31, 1980. The signatures of both parties were verified by a handwriting expert. Ms. Pedersen also testified that the $5,489 cashier's check previously mentioned was deposited in her bank and that shortly thereafter a check in the amount of $5,000, signed by John B. Hilpert, made out to the defendant and endorsed by the defendant to her account, was paid.

L. Leroy Schommer, formerly an employee of the Alliance National Bank, also testified that as to several of the certifications of balance on deposit contained in the guardian's annual reports, the signatures purporting to be his were not in fact genuine.

The witness Albert T. Reddish testified to his acquaintanceship with John B. Hilpert and the defendant, that John practiced law in Alliance, and that the defendant worked as John's secretary. He described conferences with the family of the ward requesting a change in the guardian and correspondence with John B. Hilpert and the defendant, who were then in California, to accomplish this change. In spite of his various...