State v. Klein

• Decision Date: 26 April 1989
• Docket Number: No. 16349,16349
• Citation: 444 N.W.2d 16
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Ronald John KLEIN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 16

444 N.W.2d 16

STATE of South Dakota, Plaintiff and Appellee, v. Ronald John KLEIN, Defendant and Appellant.

No. 16349.

Supreme Court of South Dakota.

Considered on Briefs April 26, 1989.

Decided July 12, 1989.

Shawn Jensen Pahlke, Office of Public Defender, Rapid City, for defendant and appellant.

MILLER, Justice.

In this appeal we affirm convictions for burning to defraud an insurer and attempted theft by deception and hold that the trial court did not abuse its discretion by admitting evidence of appellant's prior crimes, wrongs and bad acts.

FACTS

In April 1987, the Rapid City Fire Department received a smoke investigation call concerning a residence. Appellant Ronald John Klein was the owner and sole occupant of the house. Upon their arrival, firemen observed flames through the windows of the house. The firemen were forced to break down the front door which was secured from the inside by a chain lock. Once inside, the firemen found that the house contained few personal items. (Earlier that afternoon a neighbor had observed Klein packing many personal items into his van.) Klein, who had been at a movie, returned home to find the firemen extinguishing the blaze. Fire investigators later concluded that the home was damaged by two fires, both of which had been intentionally set.

At the time of the fire, Klein was a student who had limited sources of income (mostly loans) and was undergoing financial difficulties. He was in default on a contract for deed for the purchase of the home with the entire remaining balance due at the time the fire occurred. Klein had previously let his insurance coverage on the house lapse, but did obtain new coverage thereon one month before the fire.

After the fire, Klein submitted a proof of loss form to his insurer. The amounts listed for the value of lost property were significantly higher than the property values he had previously listed when he had applied for court-appointed legal assistance in June 1986. However, Klein had not made any substantial purchases between the time he made his initial application for legal assistance and the submission of his claim to the insurance company.

State filed an information charging Klein with burning to defraud an insurer in violation of SDCL 22-33-4 and attempted theft by deception, contrary to SDCL 22-30A-3. ¹ Both counts related to the house fire. Klein entered pleas of not guilty to both counts of the Information and entered a denial as to Part II Information, which alleged that he was a habitual offender because of his conviction in October 1986 of two counts of theft by deception. Klein was convicted by a jury on both counts of Part I. Several days later, he entered an admission to Part II. Soon thereafter, Klein filed a motion for new trial, which was ultimately denied. He was sentenced to 10 years in the state penitentiary for burning to defraud an insurer and to 7 1/2 years for attempted theft by deception, both sentences to run concurrently. Klein appeals. We affirm.

DECISION

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING EVIDENCE OF KLEIN'S PRIOR CRIMES, WRONGS OR BAD ACTS.

Klein first claims that the trial court abused its discretion when it allowed the admission of Klein's prior theft by deception convictions (two counts stemming from the same incident) and a sanitized copy of Klein's court-appointed attorney application from an earlier criminal charge, both of which evidenced Klein's financial problems. ² Klein was advised by the trial court that if he should take the stand in his own defense, his prior convictions for theft by deception and the charges contained in his earlier court-appointed counsel application would be admissible.

Our standard of review concerning the trial court's admission of evidence of prior crimes, wrongs or acts is whether the trial court abused its discretion. State v. Champagne, 422 N.W.2d 840 (S.D.1988).

SDCL 19-12-5 provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

SDCL 19-12-3 states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The test for determining whether evidence of other crimes or wrongs was properly admitted against a defendant involves a two-step inquiry. It first must be determined whether the proffered evidence is relevant to proving one of the stated exceptions of SDCL 19-12-5. State v. Bradley, 431 N.W.2d 317 (S.D.1988). See also State v. Titus, 426 N.W.2d 578 (S.D.1988), and Champagne, supra. If the evidence is found to be relevant, it next must be determined whether its prejudicial effect substantially outweighs its probative value. Bradley, supra; Titus, supra; Champagne, supra; see also SDCL 19-12-3. Evidence is relevant and has probative value if it contains any fact which tends to connect an accused with the commission of a crime. See State v. Reutter, 374 N.W.2d 617 (S.D.1985). However, if the court determines that the evidence is relevant, but that its submission will unfairly prejudice the defendant's case, such evidence cannot be admitted. Bradley, supra; Titus, supra; Reutter, supra. Under State v. Holland, 346 N.W.2d 302 (S.D.1984), this balancing process is within the sound discretion of the trial court. Further, this balancing process must be conducted on the record. See State v. Eagle Hawk, 411 N.W.2d 120 (S.D.1987).

A. Klein's Prior Convictions

Our review of the evidence leads us to the conclusion that the trial court did not abuse its discretion by admitting Klein's two prior felony convictions for theft by deception. We believe, as did the trial court below, that the convictions, especially the count charging him with theft by deception which involved a check scheme designed to assist Klein with his house payments, was relevant to show his motive and intent. We note that his convictions were to be admitted in a "sanitized" fashion so that the jury would not be able to consider their other, less relevant aspects.

The admission of Klein's prior convictions fits squarely within the motive exception to SDCL 19-12-5. Klein was motivated by financial difficulties at the time of the fire, as he had been previously when he committed the 1986 check scheme in order to make his house payments. Even Klein himself went so far as to admit that he had previously committed theft by deception because of his financial difficulties. Thus, the admission of his prior convictions is clearly relevant on the issue of Klein's motive. See State v. Swallow, 405 N.W.2d 29 (S.D.1987).

Evidence of Klein's prior convictions also would be admissible under the intent exception to SDCL 19-12-5. As we stated in Champagne, supra, where specific intent is an element of an offense, proof of similar acts may be admitted so that the State may carry its burden even if the defense to the charge is a complete denial. It is beyond dispute that intent is an element of both burning with intent to defraud an insurer and theft by deception. ³ We believe that evidence of prior similar crimes is admissible to show that Klein's action was done with the specific intent necessary to convict under these two statutes. See also State v. Pedde, 334 N.W.2d 41, 43 (S.D.1983), wherein we stated that evidence of prior acts need not be that of an identical offense but only "of similar involvement reasonably related to the offending conduct." Citing United States v. Gocke, 507 F.2d 820, 825 (8th Cir.1974), cert. denied 420 U.S. 979, 95 S.Ct. 1407, 43 L.Ed.2d 660 (1975).

Having determined that Klein's prior convictions were relevant, we must next turn to the issue of whether their admission would be unfairly prejudicial. The evidence tends to show that Klein was in dire financial straits and that he had previously committed similar acts because of his financial condition. We do not believe that the trial court erred in determining that the probative value of the evidence, as admitted, was not outweighed by its prejudicial effect. The trial court did not abuse its discretion in admitting such evidence. See Swallow, supra.

We further note that Klein's counsel, during cross-examination of one of State's expert witnesses, "opened the door" to the admission of Klein's prior convictions when he asked the witness whether he was aware that Klein was a convicted felon. The trial court later noted that this question by Klein's counsel was the functional equivalent of putting Klein himself on the stand and therefore evidence concerning Klein's status as a convicted felon was admissible. Having opened the door to the admission of evidence of Klein's prior convictions, Klein may not now challenge its admission on appeal. See United States v. Gipson, 862 F.2d 714 (8th Cir.1988). He cannot seek to advantage himself through the use of an error which he himself committed. See State v. Vogel, 315 N.W.2d 321 (S.D.1982).

B. Klein's Prior Application for a Court-Appointed

Attorney.

Klein next contends that the trial court abused its discretion when it admitted his 1986 application for court-appointed counsel. ⁴ It appears from the record that the application was admitted as a statement of Klein's assets. Klein contends that the application should not have been admitted because it could have inferred to the jury that he faced serious criminal charges in the past. Using the same two-prong test set forth earlier herein, we believe that the application was relevant evidence of Klein's financial condition and that its probative value outweighed any prejudicial effect.

Moreover, in addition to...