State v. Vierra

• Decision Date: 06 April 1994
• Docket Number: No. 20075,20075
• Citation: 872 P.2d 728,125 Idaho 465
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Michael VIERRA, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 728

872 P.2d 728

125 Idaho 465

STATE of Idaho, Plaintiff-Respondent, v. Michael VIERRA, Defendant-Appellant.

No. 20075.

Court of Appeals of Idaho.

April 6, 1994.

[125 Idaho 467] Ringert Clark, Chartered, Boise, for defendant-appellant. David Hammerquist, argued.

Larry EchoHawk, Atty. Gen., Michael A. Henderson (argued), Deputy Atty. Gen., Boise, for plaintiff-respondent.

PERRY, Judge.

Michael Vierra appeals from a judgment of conviction entered against him on seven counts of forgery and thirty-eight counts of embezzlement. For the reasons stated below, we affirm.

FACTS AND PROCEDURE

In 1989, Michael Vierra began working for Topnotch, Inc. (Topnotch), which was owned and operated by Bret and Lori Berier. As the bookkeeper and office manager, Vierra's duties included supervision of the company's financial affairs. After voluntarily leaving his employment at Topnotch in February 1991, Vierra was charged with eight counts of forgery and thirty-eight counts of embezzlement arising out of Vierra's signing of checks on the Topnotch business account and using a corporate credit card. Following his arrest, the police searched Vierra's condominium and retrieved a file cabinet of corporate records.

Following a jury trial in April of 1992, Vierra was convicted of a total of forty-five counts and given concurrent unified sentences of fourteen years with five-year minimum terms of confinement on each count. He was also ordered to pay restitution, $119,493.33 to the Beriers and $25,023.05 to First Security Bank.

Vierra appeals, citing no less than thirty-three instances of alleged error. Of those thirty-three errors alleged, we find the majority of them to be without merit and we reject them without discussion. We do conclude, however, that three specific areas warrant our attention. Those areas include the district court's failure to admit certain evidence that Vierra claims would have shown he had authority to make the expenditures in question, the district court's improper admission of evidence that may have been tampered with or that hadn't been properly disclosed and the district court's admission of evidence of other acts committed by Vierra for which he was not charged.

ANALYSIS

I.

Vierra first argues that the district court erred in failing to admit evidence of Bret Berier's other business ventures apart from Topnotch and evidence that Bret Berier had carried on an extramarital affair, for which he asked Vierra to make various arrangements.

A. BRET BERIER'S OTHER BUSINESS DEALINGS

On appeal, Vierra claims that the other business dealings of Bret Berier were relevant to show that Vierra had done considerable work for Berier aside from his duties with Topnotch. This evidence would have included Bret Berier's dealings with Le Courtage, Bull & Berier Land and Cattle Co., Success Funding, the State Insurance Fund of Idaho and unspecified dealings with a broker from New York. Vierra argues that he was entitled to additional compensation for this work, that Bret Berier agreed to such compensation and that Vierra's authorization to use the company credit card and to write checks for personal expenses was part of that agreement.

We first note that whether evidence is relevant is a question of law over which we exercise free review. See I.R.E. 401 and 402; State v. Raudebaugh, 124 Idaho 758, 864 P.2d 596 (1993).

Prior to trial, on the state's motion in limine, the district court excluded evidence of the other business dealings as irrelevant. At the hearing on the motion in limine, Vierra did not argue that the information was relevant to show that he was entitled to additional compensation for his work and that he had arranged such compensation with Bret Berier through the use of credit cards and personal checks. Instead, the information was offered for the vague purpose of establishing "the big picture" and to establish that Bret Berier had access to a Le Courtage post The Le Courtage material is still relevant for our defense, Your Honor, because one of the things that's going to come out is the fact that Bret Berier knew about the Le Courtage. He knew about the P.O. box number that Le Courtage used, had access to it. And therefore, any statements, such as bank card statements, would have been sent to that P.O. box. Mr. Berier had access.

[125 Idaho 468] office box that received statements of the credit card Vierra was using. At the hearing on the motion in limine, counsel for Vierra stated:

....

Evidence, in general, Your Honor, about Mr. Berier is what the jury has to understand in his case, is: What is Topnotch? Who are the people that make up Topnotch, and who are these people themselves? How does Lori Berier work? How does she think? What does she do? How does Bret Berier work? How does he think? What does he do? What are his tendencies to do what and act upon a given situation?

Because all that ties back into the credibility issue, why it's reasonable that Michael Vierra would have the authority to do the acts the state complains are crimes. With the big picture in mind, all this evidence we are seeking is certainly relevant. We have to understand the corporation's financial dealings, how they did the financial dealings, why.

....

The contention that the evidence regarding Bull & Berier, Le Courtage and other general information is not related to the defense is incorrect. As I'm saying, it's the big picture that we're talking about. This helps establish the big picture. These people don't sit in an office every day and do other activities that leads to the explanation of why it was likely that Michael Vierra had the authority to do the acts in question.

Vierra, having lost the motion in limine, cannot on appeal advance other factual theories as to why the challenged evidence was relevant. See Kinsela v. State, Dept. of Finance, 117 Idaho 632, 634, 790 P.2d 1388, 1390 (1990); Berning v. Drumright, 122 Idaho 203, 209, 832 P.2d 1138, 1144 (Ct.App.1992); 4 C.J.S. Appeal and Error §§ 202-205 (1993). Therefore, our free review is limited to the evidence, theories and arguments that were presented to the trial court below.

Having reviewed the record, we conclude that the district court did not err in rejecting this evidence. The district court's ruling on the motion was not that the evidence would be excluded absolutely, but that from the arguments made, the evidence appeared to be unrelated to the offenses charged and would needlessly distract the jury. The district court qualified this ruling by stating that if the evidence later became relevant to impeachment or on cross-examination, it would be admitted at that time. The district court specifically noted:

[D]epending upon what the direct testimony is of some witnesses, there may be some items that may become relevant to cross-examination. What we're concerned about in this case is authorization to either sign the name or use the credit card. And if the evidence bears upon those items, fine, but we're not going to go back to the life history of Mr. Berier and do as they're doing in presidential campaigns right now, go back five, ten, twenty years, whatever it takes.

Given the arguments made below and the reasons put forth for the use of the evidence, we agree that evidence of Bret Berier's other business activities was properly excluded as irrelevant.

B. EVIDENCE OF BRET BERIER'S ALLEGED EXTRAMARITAL AFFAIR

Vierra argues that the district court improperly excluded evidence that Bret Berier was involved in an extramarital affair. He argues that this information would have demonstrated Bret Berier's deceitfulness and desire to keep his wife from being involved in business affairs where she might discover the affair. This desire to keep the business dealings from his wife allegedly included keeping Vierra's compensation plan from her as well.

Vierra identifies this information as character evidence of the victim, Berier, but argues Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes.--(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

[125 Idaho 469] it should be admitted under I.R.E. 404(a)(2). That section states:

....

(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor. [Emphasis added.]

In his brief, Vierra attempts to establish the "pertinence" of evidence of the girlfriend as follows, "Evidence of Bret Berier's character will prove his involvement in these activities which prove the existence of agreements from which Mr. Vierra's authority sprang." We fail to see how the existence of an extramarital affair would establish Vierra's authority to make the expenditures in question. Even if Vierra could establish such a connection on appeal, the only argument made before the district court was that this evidence would again establish the "big picture." No arguments were made directly relating the affair to Vierra's authority to use the credit cards and write company checks as compensation. In fact, in a hearing held on March 13, 1992, Vierra expressly stated that he did not expect additional compensation for his efforts in regard to Bret Berier's affair. Thus, there was no showing that the asserted character trait of Bret Berier, i.e., an amenability to extramarital affairs, was "pertinent" as required for admission under I.R.E. 404(a)(2).

Therefore, we agree with the district court that this evidence was irrelevant to the crimes charged and was offered merely to impugn Bret Berier's character. This character evidence could not be admitted under I.R.E. 404(a)(2). The...