State v. Schaaf
| Decision Date | 29 December 1989 |
| Docket Number | No. 88-852,88-852 |
| Citation | 449 N.W.2d 762,234 Neb. 144 |
| Parties | STATE of Nebraska, Appellee v. Victor SCHAAF, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Indictments and Informations. To charge a defendant with the commission of a criminal offense, an information or complaint must allege each statutorily essential element of the crime charged, expressed in the words of the statute which prohibits the conduct charged as a crime or in language equivalent to the statutory terms defining the crime charged.
2. Criminal Law: Indictments and Informations. Where an indictment, information, or complaint alleges commission of a crime, using the language of the statute defining that crime or terms equivalent to such statutory definition, a formal charge against an accused is sufficient.
3. Criminal Law: Theft: Intent. Under Neb.Rev.Stat. § 28-511(2) (Reissue 1985) of the Nebraska Criminal Code, the elements of theft by unlawful disposition are (1) a person's unauthorized transfer of another's immovable property or unauthorized transfer of any interest in another's immovable property (2) with the intent to benefit himself, herself, or another not entitled to the property or any interest in the property.
4. Criminal Law: Theft. Neither the time of the criminal appropriation nor the value of the property criminally appropriated is substantive and, therefore, an element of the crime of theft prohibited by Neb.Rev.Stat. § 28-511 (Reissue 1985).
5. Criminal Law: Jurisdiction. When some requisite elements of a crime are committed outside Nebraska, but an essential element of the crime is committed or occurs in Nebraska, a Nebraska court has subject matter jurisdiction for prosecution of a defendant charged with the crime.
6. Criminal Law: Statutes. Whether several acts in series constitute a continuing offense or separate offenses depends on construction of the statute defining the crime.
7. Criminal Law. There are no common-law crimes in Nebraska.
8. Criminal Law: Statutes. In construing a penal statute, a court cannot supply 9. Criminal Law: Theft. A series of separate acts, each of which is a theft proscribed by Neb.Rev.Stat. § 28-511(2) (Reissue 1985), does not constitute one criminal act or a continuing offense of theft.
language which is absent from the statutory definition for a criminal offense.
10. Rules of Evidence: Other Acts: Limitations of Actions. Subject to the balancing test contained in Neb.Evid.R. 403, Neb.Rev.Stat. § 27-403 (Reissue 1985), evidence of prior crimes, wrongs, or acts which cannot be criminally prosecuted on account of the statute of limitations may be admissible under Neb.Evid.R. 404(2), Neb.Rev.Stat. § 27-404(2) (Reissue 1985).
11. Rules of Evidence: Other Acts: Time. Remoteness, or the temporal span between a prior crime, wrong, or other act offered as evidence under Neb.Evid.R. 404(2) and a fact to be determined in a present proceeding, goes to the weight to be given to such evidence and does not render the evidence of the other crime, wrong, or act irrelevant and inadmissible.
12. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or acts, otherwise admissible under Neb.Evid.R. 404(2), may be discretionarily excluded pursuant to the balancing test contained in Neb.Evid.R. 403.
Charles F. Fitzke, Scotts Bluff County Public Defender, for appellant.
Robert M. Spire, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.
After its complaint was filed on October 16, 1987, the State, in its amended information filed on January 12, 1988, charged that Victor Schaaf, in violation of Neb.Rev.Stat. § 28-511(2) (Reissue 1985), committed a theft of property, "valued at more than $1,000.00," which belonged to Lenhart Land and Livestock Company, that is, theft which occurred "on or about April, 1980 to January 7, 1985," in Scotts Bluff County, Nebraska.
A jury in the district court for Scotts Bluff County convicted Schaaf of felonious theft of property with a value of $404,504. Section 28-511(2) provides: "A person is guilty of theft if he or she transfers immovable property of another or any interest therein with the intent to benefit himself or herself or another not entitled thereto." Under Neb.Rev.Stat. § 28-518(1) (Reissue 1985), "[t]heft constitues a Class III felony when the value of the thing involved is over one thousand dollars," and is punishable by imprisonment for a maximum term of 20 years, a fine of up to $25,000, or both such imprisonment and fine. See Neb.Rev.Stat. § 28-105(1) (Reissue 1985). The district court sentenced Schaaf to imprisonment for not less than 4 nor more than 8 years.
In his appeal, Schaaf contends that (1) the information by which he was charged is legally deficient; (2) the trial court lacked jurisdiction because no criminal act charged against Schaaf occurred in the State of Nebraska; (3) criminal prosecution of Schaaf was barred by the 3-year statute of limitations prescribed by Neb.Rev.Stat. § 29-110 (Reissue 1985); (4) the evidence is insufficient for Schaaf's conviction; and (5) the sentence imposed is excessive.
Gladyce Lenhart Heye owned shares of capital stock in Lenhart Land and Livestock Company (Lenhart Company), a Wyoming corporation which owned land and maintained bank accounts in both Wyoming and Nebraska. Schaaf was the accountant for Lenhart Company. By her last will and testament, Heye created a trust (Heye Trust) which included capital stock of the Lenhart Company; appointed Schaaf as trustee; and designated her brother, Robert Lenhart, and Robert's two children, Connie Lenhart Graybill and Pat Lenhart, as beneficiaries of the trust. The Heye Trust commenced after Heye's death in 1976. Schaaf accepted trusteeship of the Heye Trust in 1977, was elected to the In December 1977, Schaaf began to use Lenhart Company's funds as "loans" to himself, although he never signed a promissory note to the corporation for the funds "borrowed." The corporation's board of directors had not authorized any corporate loan to Schaaf, and Schaaf never informed the corporation's directors or shareholders that he was borrowing from the corporation. In the corporation's balance sheets and ledgers, corporate funds transferred by Schaaf were listed under "Savings and Time Certificates" rather than under "Accounts Receivable."
board of directors for Lenhart Company, and became president, as well as treasurer and manager, of Lenhart Company, which paid him a monthly salary of $835 and reimbursed him for his expenses incurred in connection with corporate business. In his role as manager of Lenhart Company, Schaaf kept the corporation's books, exercised absolute control over corporate assets, and was the only person authorized to write corporate checks and manage corporate property. Schaaf, throughout his activities as an officer of the Lenhart Company, lived in Wyoming and from his Wyoming residence conducted business for the corporation.
As a result of the U.S. grain embargo, Schaaf felt that the commodities market offered investment opportunities. Sometime in mid-1979, Schaaf formed a Wyoming partnership, "4-S Investments," which consisted of Schaaf, his wife, and their two children. The partnership had a checking account at the First National Bank in Mitchell, Nebraska, in Scotts Bluff County, the same bank in which Lenhart Company maintained its Nebraska checking account. In several transactions, Schaaf transferred funds of Lenhart Company through unauthorized checks which Schaaf made payable to himself, endorsed, and deposited in the checking account of 4-S Investments or by direct disbursement from the corporation's account to brokerages which maintained a commodities account for 4-S Investments, for example, Bache & Co. Apparently, all the transactions in question, which involved the bank accounts of Lenhart Company and 4-S Investments, were conducted without Schaaf's physical presence in Nebraska. Lenhart Company's funds transferred by Schaaf to 4-S Investments' account were then disbursed to the various brokerage houses which had handled commodities transactions for the Schaaf partnership. The partnership lost $379,430.90 in the commodities market. Between April 9, 1980, and January 7, 1985, Schaaf wrote 25 unauthorized checks on Lenhart Company's account for a total of $404,504, which was disposed as follows:
Date Amount Disposition
4/9/80 $ 56,484 Deposit--4"S Investments Account
4/17/80 50,000 Deposit--4"S Investments Account
5/1/80 6,000 Deposit--4"S Investments Account
5/9/80 20,000 Deposit--4"S Investments Account
5/29/80 10,000 Deposit--4"S Investments Account
6/4/80 6,000 Deposit--4"S Investments Account
6/12/80 10,000 Deposit--4"S Investments Account
11/10/80 12,000 Deposit--4"S Investments Account
11/21/80 14,000 Deposit--4"S Investments Account
12/1/80 12,000 Deposit--4"S Investments Account
2/3/81 8,500 Deposit--4"S Investments Account
3/20/81 7,500 Deposit--4"S Investments Account
4/6/81 3,200 Deposit--4"S Investments Account
4/13/81 3,500 Deposit--4"S Investments Account
5/7/81 11,520 Money wire to Bache & Co
6/12/81 3,500 Deposit--4"S Investments Account
6/24/81 17,800 Deposit--4"S Investments Account
8/23/82 6,000 Deposit--Schaaf Personal Account
9/17/82 10,000 Deposit--4"S Investments Account
11/24/82 20,000 Deposit--4"S Investments Account
2/23/83 2,000 Deposit--4"S Investments Account
6/2/83 $100,000 Deposit--4"S Investments Account
9/3/83 5,000 Deposit--4"S Investments Account
2/23/84 6,000 Deposit--Schaaf Personal Account
1/7/85 3,500 Deposit--4"S Investments Account
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In 1986, Pat Lenhart, who had become suspicious of Schaaf's activities and management of Lenhart Company,...
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