State v. Moore
| Citation | 221 Neb. 706,380 N.W.2d 288 |
| Decision Date | 24 January 1986 |
| Docket Number | No. 85-160,85-160 |
| Parties | STATE of Nebraska, Appellee, v. Richard D. MOORE, Appellant. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Criminal Law: Evidence: Other Acts. The rule as to admission of evidence of other crimes or acts is one of relevance.
2. Evidence: Words and Phrases. "Relevant evidence," as defined in Neb.Rev.Stat. § 27-401 (Reissue 1979), "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."
3. Trial: Witnesses: Appeal and Error. The scope of cross-examination of a witness rests largely in the discretion of the trial court, and its ruling will be upheld on appeal unless there is an abuse of discretion.
Thomas M. Kenney, Douglas Co. Public Defender, and Stanley A. Krieger, Asst. Public Defender, for appellant.
Robert M. Spire, Atty. Gen., and Mel Kammerlohr, Asst. Atty. Gen., for appellee.
Defendant, Richard D. Moore, was charged by information filed in Douglas County District Court with one count each of theft by deception and attempted theft by deception. After jury trial Moore was convicted on both counts. Moore was then sentenced to 4 months in the Douglas County Corrections Center on each count, with the sentences running concurrently. In this appeal Moore assigns as error that the district court improperly admitted into evidence (1) "testimony concerning other acts of the Defendant" and (2) "testimony concerning the Defendant's family income." For the reasons hereinafter stated we reverse and remand for new trial.
The facts show that Moore filed loss claims with Royal Insurance Company and Fireman's Fund Insurance Company, setting out losses on September 21, 1981, and on January 9, 1982, respectively. In both instances the insurance companies had issued a standard homeowner's policy to Moore, and Moore had timely paid the premium. Evidence was adduced at trial concerning Moore's actions in filing these claims, and Moore was convicted of theft by deception on the September 21, 1981, claim and attempted theft by deception on the January 9, 1982, claim. There is no contention in this court that the evidence on these two counts was not sufficient to support Moore's conviction.
Both in the State's case in chief and during the State's cross-examination of defendant, the prosecution repeatedly, over defendant's counsel's objection, introduced testimony concerning a series of insurance claims filed by Moore from mid-1979 to late 1984. The claims referred to in the State's case in chief, in addition to those charged, were the following:
(A)
Mark Schwartz, a claims representative for Royal Insurance, testified that Moore filed a claim for a loss occurring April 25, 1981, for $4,847 worth of stereo equipment. Schwartz testified that he had obtained a taped statement from Moore and that Moore had told him that Moore's stereo equipment, which he had loaned to his brother for a party, had been stolen from his brother's van in Merriam, Kansas. Royal paid Moore approximately $4,400 on the claim.
(B)
Lonnie Howell, a claims adjuster for Fireman's Fund Insurance Company, testified that Moore filed a loss claim on October 30, 1981. This claim alleged a break-in of the defendant's mother's car in the Midlands Mall parking garage in Council Bluffs, Iowa, on October 12, 1981, which was 12 days after the insurance went into effect. Howell testified that the police report indicated that the vehicle was locked, had the windows rolled up, and had no appearance of forced entry. Moore claimed a total loss of approximately $3,500 for articles stolen from the car which were owned by him. Fireman's paid $3,150 on the claim.
On cross-examination of Moore, the State, over defendant's counsel's objection, went into detail as to the two claims put in evidence in the State's case in chief. Also on cross-examination, the State elicited evidence of the following claims:
(A)
Moore testified that on July 10, 1979, he had a boat, motor, and trailer stolen from Carter Lake, Iowa. Moore further testified that he filed a claim with his insurance carrier, State Farm Mutual Insurance Company, which paid the claim in an amount not specified.
(B)
Moore testified concerning a burglary of his home on November 3, 1979, and stated he sustained a loss of $6,000 in stereo equipment. State Farm Mutual Insurance Company paid the claim in an amount not specified.
(C)
Moore testified that in June of 1982 he and his brother visited the Ocean Wave Bar in Council Bluffs, Iowa, and when they left the bar they discovered that Moore's car had been stolen. The car was later found near Missouri Valley, Iowa, where it had apparently been stripped and set afire. Moore filed a claim with his insurance company, Western Casualty, which paid $12,000 on the claim.
(D)
Moore testified that he filed two loss claims in November of 1984. The claims were filed with two different insurance companies; one for loss of personal property in the car and the other for damage to the car. Moore submitted a claim of $2,500 for a video camera and recorder which were stolen out of his car while parked in the Blue Ridge Mall parking lot in Kansas City, Missouri, where Moore was visiting, and a claim of $600 for damages to his car at the time. Moore was paid in full for both of these claims.
Moore testified on his own behalf on direct examination. He testified as to facts in connection with the specific charge in the information concerning his claim submitted on the January 9, 1982, loss. He also denied generally that he intended to or did defraud either of the insurance companies at any time. There was no testimony on his direct examination concerning his income, living expenses, or any related matters. Moore's entire testimony on his direct examination covered seven pages of the bill of exceptions. The State's cross-examination of Moore covered 56 pages of the bill of exceptions. The second question asked on cross-examination was:
In response to a long series of questions beginning with the foregoing question, the trial court admitted into evidence, over objection, Moore's testimony concerning his occupation, income, and expenses. The prosecutor's inquiry ranged into subjects concerning Moore's various jobs, his house, his rate of pay, his mortgage payment, his utility bills, his car payments, the number of children he had, his grocery bills, his insurance premiums for life and health insurance, his charge card purchases, his car ownership, how he financed his cars, and his expenses for maintenance of his vehicles.
The prosecutor also inquired of the defendant about the defendant's wife's job, name of her current employer, current income, previous employers, past income, and whether she had obtained raises. This evidence was objected to as being beyond the scope of direct examination and also as irrelevant to the determination of whether fraud was committed in the instant case.
Moore contends in his first assignment of error that the district court erred in improperly admitting testimony of "other acts." Neb.Rev.Stat. § 27-404(2) (Cum.Supp.1984) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she 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.
Section 27-404(2), of course, is merely a part of § 27-404, entitled "Character evidence; not admissible to prove conduct; exceptions; evidence of other crimes, wrongs, or acts." Underlying the admissibility of such evidence under § 27-404(2) is the requirement that such evidence is relevant. "The rule is one of relevance." State v. Coca, 216 Neb. 76, 80, 341 N.W.2d 606, 609 (1983).
Relevancy is defined in Neb.Rev.Stat. § 27-401 (Reissue 1979). "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."
In considering the relevance of the evidence in question, we note that the gist of the two crimes with which Moore was charged, as set out in Neb.Rev.Stat. § 28-512 (Reissue 1979), was obtaining, or attempting to obtain, property of another by deception. Deception, in turn, is defined in subsection (1) of the same statute as intentionally creating a false impression, "including false impressions as to law, value, intention, or other state of mind...."
There is no doubt in these cases that Moore obtained property (cash) of another...
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