State v. Huwe, Cr. N

• Decision Date: 29 September 1987
• Docket Number: Cr. N
• Citation: 413 N.W.2d 350
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kendal HUWE, Defendant and Appellant. o. 1223.
• Court: North Dakota Supreme Court

Page 350

413 N.W.2d 350

STATE of North Dakota, Plaintiff and Appellee, v. Kendal HUWE, Defendant and Appellant.

Cr. No. 1223.

Supreme Court of North Dakota.

Sept. 29, 1987.

Peter H. Furuseth, State's Atty., Williston, for plaintiff and appellee.

Eaton, Van de Streek & Ward, Minot, for defendant and appellant; argued by Michael Ward.

GIERKE, Justice.

Kendal W. Huwe appeals from a criminal judgment entered on a jury verdict finding him guilty of theft of property by deception, a class C felony, in violation of Secs. 12.1-23-02(2), 12.1-23-05(2)(a) and 12.1-23-10(2)(f), N.D.C.C. We affirm.

The criminal information in this case alleged that Huwe "did knowingly obtain the property of another, namely the Williston Cooperative Credit Union, by deceptively obtaining and using a VISA credit card, in excess of $500.00." The evidence at trial reflects that Huwe and his wife received authorization for use of a VISA credit card from the Credit Union on March 6, 1985. Although Huwe claimed he did not sign the application for the credit card, he admitted receiving the card and using it. The credit card was approved with a $1,000 credit limit. Between March 27 and May 4, 1985, Huwe and his wife made approximately 230 separate purchases with the card in the Williston and Minot areas charging more than $7,000. Only three of those transactions involved purchases of more than $50. The State introduced in evidence 74 charge slips signed by Huwe during that time which totaled approximately $2,400. At the time the charges were made, Huwe was more than $200,000 in debt. Huwe was self-employed as a long-haul trucker and had an income of $26,000 in 1984. His total income from trucking and other employment for 1985 was $12,000. On June 6, 1985, Huwe returned the card to the Credit Union at its request and made a $40 payment on the bill. In December 1985 Huwe filed for bankruptcy. The jury returned a verdict of guilty and Huwe received an 18 month suspended sentence and was ordered to pay a $5,000 fine.

Huwe asserts that the trial court erred in allowing the introduction in evidence of the VISA credit card application, which he claims he did not sign, and the complete listing of credit charges which included charges made by his wife. ¹ He asserts that this evidence was irrelevant and unfairly prejudicial, because it allowed the jury to consider his wife's credit charges as evidence against him.

Relevant evidence is "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." Rule 401, N.D.R.Evid. Relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Rule 403, N.D.R.Evid. Whether evidence is too remote to be relevant and whether the probative value of such evidence is outweighed by the risk of unfair prejudice are questions for the trial court to resolve in the exercise of its sound discretion. State v. Kringstad, 353 N.W.2d 302, 309 (N.D.1984); State v. Moe, 151 N.W.2d 310, 316 (N.D.1967).

In allowing introduction of the VISA application, the trial court reasoned that "[t]he fact that Mr. Huwe did not sign this instrument, the fact that he says he never received a copy of it, and has never seen it, all of that can be brought out on examination and will certainly permit the jury to give this instrument significant[ly] less weight and value that it would have otherwise. But nonetheless, it does have some probative value given all of the circumstances surrounding it and his subsequent use of the credit cards." With regard to evidence of the credit charges made by Huwe's wife, the trial court stated that "[w]e will let the jury hear these facts and let the jury give [them] what weight and value they wish."

The credit card application was certainly relevant. It showed not only that Huwe had been authorized a card, but also that there was a $1,000 credit limit on the account. Huwe's claims that he never signed the application or knew of its contents were properly for the jury to consider. The lists documenting the charges made by both Huwe and his wife were also relevant because they had a tendency of showing that Huwe must have been aware that the credit limit had been exceeded. Huwe and his wife were living together at the time the charges were made. The State did not unduly emphasize the credit charges made by Huwe's wife and introduced in evidence only the 74 charge slips signed by Huwe. The jury, through testimony and argument, was made aware that most of the charges comprising the $7,000 bill were not attributable to Huwe. We do not believe that the trial court abused its discretion in allowing this evidence.

Huwe asserts that if the evidence was properly admitted, the trial court committed reversible error in refusing to give his requested jury instructions to the effect that a husband is not responsible for his wife's actions. ² The trial court refused to give the instructions "because they tend to have the Court comment on the evidence, and it is more appropriate as argument to the jury by counsel than as an essential action or instruction on the law by the Court." The trial court also reasoned that the existing instructions "define in understandable language the legal principles that are involved" in the case.

It is well-settled that if the instructions to the jury, when considered in their entirety, correctly advise the jury as to the applicable law, there is no error even though the trial court refused to submit a requested instruction which itself was a correct statement of the law. State v. Ferguson, 391 N.W.2d 172, 176 (N.D.1986); see also State v. Marcovitz, 63 N.D. 458, 248 N.W. 481, 487 (1933) ["A requested charge need not be given if it is fully covered in the general charge."]

We believe the instructions given in this case adequately apprised the jury that Huwe could only be convicted for his own acts, and not those of his wife. The jury was instructed that the State had the burden of proving beyond a reasonable doubt that "Kendal Huwe obtained property of Williston Cooperative Credit Union;" that "he obtained the property by Deception;" and that "he engaged in this conduct Knowingly and with Intent to deprive the Credit Union of the property." Huwe's counsel was allowed to argue to the jury that he had no knowledge of and was not responsible for his wife's charges. We find no reversible error in the trial court's refusal to give Huwe's requested instructions.

Huwe asserts that the trial court erred in allowing the jury to hear evidence that Huwe filed for bankruptcy in December 1985. Huwe claims that this evidence was also irrelevant and unfairly prejudicial, because there "was no testimony indicating" that Huwe was contemplating bankruptcy at the time the credit charges were made. The trial court determined that the bankruptcy filing was another matter for the jury to consider in regard to Huwe's intent, and further noted that the evidence could be of some benefit to Huwe.

Huwe's filing for bankruptcy within a relatively short time after the credit charges were made has some probative value as to whether he had the intention or ability to pay off the debt at the time the charges were made. This court has recognized that, even with regard to evidence of other acts or offenses otherwise inadmissible, such evidence may be admissible when "(1) the evidence provides a more complete story of the crime by putting it in context of happenings near in time and place; (2) it proves the existence of a...