State v. Wisinski, S-03-467.

• Decision Date: 05 November 2004
• Docket Number: No. S-03-467.,S-03-467.
• Parties: STATE OF NEBRASKA, APPELLEE, v. CLIFFORD WISINSKI, APPELLANT.
• Court: Nebraska Supreme Court

268 Neb. 778

688 NW 2d 586

STATE OF NEBRASKA, APPELLEE, v. CLIFFORD WISINSKI, APPELLANT.

No. S-03-467.

Supreme Court of Nebraska.

Filed November 5, 2004.

Patrick J. Boylan, Deputy Sarpy County Public Defender, for appellant.

Jon Bruning, Attorney General, and Jeffrey J. Lux for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

Clifford Wisinski was convicted in the district court for Sarpy County of burglary and of theft by unlawful taking of more than $1,500. Wisinski appealed to the Nebraska Court of Appeals and assigned errors regarding evidentiary rulings, sufficiency of the evidence, and jury instructions. The Court of Appeals affirmed Wisinski's convictions and sentences. State v. Wisinski, 12 Neb. App. 549, 680 N.W.2d 205 (2004). We granted Wisinski's petition for further review. We affirm the Court of Appeals' decision.

STATEMENT OF FACTS

The facts of the underlying case were described in the Court of Appeals' opinion as follows:

On January 31, 2002, Thomas Szynskie and Jana Szynskie went on vacation to Oklahoma. Jana left a key at the home of her friend, Wendy Womochil, with instructions for Womochil to care for Jana's pets while the Szynskies were away. Womochil was not present at her home when Jana left her key, but Womochil's friend, Debra Holub, was present.

Holub contacted a friend, Clesson Wright, and told him about the key Jana had left at Womochil's home. Wright then contacted his friend, Wisinski. According to the testimony of Wright, Wisinski came over to Womochil's home and Wright, Wisinski, and Holub discussed using Jana's key in order to "look for some stuff to take out." Wright testified that he did not have a vehicle and that he had contacted Wisinski because Wisinski did have a vehicle.

The following morning, Wright went over to the Szynskies' home and entered using the key Jana had left at Womochil's house. Wright testified that upon arriving, he removed his boots by the door so as not to track snow or slush into the house and proceeded to feed the Szynskies' cats. Wisinski then arrived and knocked on the door; Wright let Wisinski in. The two men then proceeded to take numerous items from the home, loading them first into the garage so that the items could be loaded into Wisinski's vehicle all at once.

While Wright and Wisinski were looking through the house and loading items into the garage, the telephone rang several times. Wright answered the telephone each time, told the callers that Thomas was out of town, and wrote down their telephone numbers. At trial, Wright stated that he answered the telephone at Wisinski's instructions, "You better answer that. It might be one of the neighbors." Wright also testified that Wisinski took a snowblower and removed the snow from in front of the house and from the driveway. Wisinski told Wright that he did so "[t]o make it look like we're supposed to be there, a strange car in the driveway."

Wright testified that he and Wisinski then loaded all of the items from the garage into the back of Wisinski's vehicle and took them to a friend's home in North Omaha. After unloading the items, they went to a bank. Wright testified that Wisinski had taken a checkbook from the Szynskies' home and that he and Wisinski unsuccessfully attempted to cash a check from that checkbook which they had written to "Melvin Roach." (Wisinski was later found using an identification card with the name "Melvin Roach" on it.) Wright and Wisinski then returned to the Szynskies' home and took some additional items, which they took to Wisinski's home.

The Szynskies returned home early from vacation upon the news that their house had been broken into. An investigation ensued. On February 13, 2002, Wisinski was apprehended in a red truck by police. Located in that truck were some of the items identified as stolen by the Szynskies, including a printer containing some business stationery imprinted with the name of Thomas' business.

At trial, Wisinski was found guilty of burglary and theft by unlawful taking, more than $1,500. Wisinski moved for a new trial. The trial court sentenced Wisinski to 3 to 10 years' imprisonment on each count, to be served concurrently. The trial court also denied Wisinski's motion for new trial.

State v. Wisinski, 12 Neb. App. 549, 553-54, 680 N.W.2d 205, 212 (2004).

Wisinski appealed to the Court of Appeals and asserted that the district court erred in (1) granting the State's request for a hearing pursuant to Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 1995), when the State had not articulated a proper purpose for which it offered evidence regarding the circumstances of Wisinski's apprehension; (2) admitting evidence of value of property over various objections; (3) failing to grant Wisinski's motion to dismiss because of allegedly insufficient evidence; (4) failing to give certain jury instructions; (5) giving an aiding and abetting instruction when the information charging Wisinski did not include aiding and abetting language; and (6) hearing Wisinski's motion for new trial after, rather than before, sentencing.

The Court of Appeals rejected each of Wisinski's assignments of error and concluded that (1) regarding the rule 404 assignment of error, the district court had properly determined that the evidence at issue was evidence of events inextricably intertwined with the charged crime and was not rule 404 evidence of other crimes; (2) Wisinski failed to argue his assignment of error regarding admission of evidence of value of property; (3) there was sufficient evidence to support the convictions; (4) the district court did not err in refusing the jury instructions urged by Wisinski; (5) the evidence supported the aiding and abetting instruction, and Wisinski need not have been charged with aiding and abetting in order for the jury to receive an aiding and abetting jury instruction; and (6) Wisinski suffered no prejudice from the timing of the court's ruling on his motion for new trial. The Court of Appeals affirmed Wisinski's convictions and sentences. We granted Wisinski's petition for further review.

ASSIGNMENTS OF ERROR

On further review, Wisinski asserts that the Court of Appeals erred in (1) affirming the district court's determination that the evidence regarding the circumstances surrounding his apprehension was not rule 404 evidence of other crimes and affirming the district court's refusal to give a limiting instruction with respect to such evidence; (2) affirming the district court's giving of an aiding and abetting instruction when the information did not contain aiding and abetting language; and (3) affirming the district court's refusal to give Wisinski's requested jury instructions regarding voluntariness of statements, determination of value of property taken, and accomplice testimony.

STANDARDS OF REVIEW

[1,2] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. Id. The admissibility of evidence under rule 404(2), § 27-404(2), must be determined upon the facts of each case and is within the discretion of the trial court. Id.

[3-5] Whether jury instructions given by a trial court are correct is a question of law. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003). In an appeal based on a claim of erroneous jury instructions, the appellant has the burden to show that the questioned instructions were prejudicial or otherwise adversely affected a substantial right of the appellant. Id. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. Id.

ANALYSIS

Alleged Rule 404 Evidence.

Wisinski asserts that the Court of Appeals erred in affirming the district court's determination that certain evidence was not evidence of other crimes subject to rule 404. Wisinski claims that because of such determination, the district court erred when it did not require the State to articulate a proper purpose for admitting the evidence under rule 404 and did not give the jury a limiting instruction with respect to the evidence. We conclude that the district court did not err in determining that the evidence at issue was not rule 404 evidence and that the Court of Appeals did not err in affirming such determination.

Rule 404(2) 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.

Prior to trial, the State filed a motion to admit evidence under rule 404. The State sought admission of evidence it described as

[e]vidence that on or about February 12, 2002, approximately ten days after the reported burglary, [Wisinski] was apprehended by Omaha police in a vehicle. After the owner of the vehicle recovered it, he noticed in it meat in coolers and a computer printer with paper bearing the name Guaranteed Roofing. Meat and a printer were reported taken in the burglary, and Guaranteed Roofing is the name of victim's business.

The State asserted that the evidence was admissible to show proof of motive, intent, plan, and identity.

At the rule 404 hearing, the court...