State v. Wood
| Decision Date | 28 January 1994 |
| Docket Number | No. S-93-126,S-93-126 |
| Citation | 245 Neb. 63,511 N.W.2d 90 |
| Parties | STATE of Nebraska, Appellee, v. Elizabeth E. WOOD, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Trial: Appeal and Error. Absent plain error, when an issue is raised for the first time in an appellate court, it will be disregarded, inasmuch as the court whose judgment is being reviewed cannot commit error regarding an issue never presented and submitted for disposition.
2. Right to Counsel: Probation and Parole: Attorney Fees. When a defendant is appointed counsel after a finding of indigence, a determination that the defendant is no longer indigent is necessary before the court can require reimbursement of fees for the court-appointed attorney as a condition of probation.
3. Sentences: Probation and Parole. When a court sentences a defendant to probation, it may impose any conditions of probation that are authorized by statute.
4. Sentences: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed upon appeal in the absence of an abuse of discretion by the trial court.
5. Sentences: Probation and Parole: Restitution: Attorney Fees. A trial court is given the authority to attach broad conditions to probation, in order to rehabilitate a defendant, including conditioning probation on the restitution of fees for the court-appointed attorney.
6. Statutes. Special provisions of a statute in regard to a particular subject will prevail over general provisions in the same or other statutes so far as there is a conflict.
7. Sentences. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.
8. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in the admissibility of evidence.
9. Rules of Evidence: Other Acts: Proof. Neb.Rev.Stat. § 27-404(2) (Reissue 1989) is an inclusionary rule which permits the use of relevant prior bad acts for all purposes except to prove the character of a person in order to show that such person acted in conformity with that character.
10. Rules of Evidence: Other Acts: Proof. Evidence of prior bad acts is admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
11. Rules of Evidence: Other Acts: Appeal and Error. In reviewing the admission of evidence of prior bad acts, an appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted.
12. Trial: Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine admissibility of evidence of other wrongs or acts, and the trial court's decision will not be reversed absent an abuse of that discretion.
13. Rules of Evidence: Words and Phrases. Relevant evidence means any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable 14. Evidence. To be relevant, evidence must be rationally related to the issue by a likelihood, not a mere possibility, of proving or disproving the issue to be decided.
or less probable than it would be without the evidence.
15. Rules of Evidence: Words and Phrases. Most evidence a party offers is prejudicial to the opposing party, and it is only unfair prejudice if it tends to suggest a decision on an improper basis.
David R. Uher, Norfolk, for appellant.
Don Stenberg, Atty. Gen., and Kimberly A. Klein, Lincoln, for appellee.
Elizabeth E. Wood appeals her conviction and sentence for possession of marijuana with intent to deliver. Before trial, the court determined that Wood was indigent and appointed an attorney for her. At trial, the district court admitted testimony, over Wood's objections, of her prior misconduct. After conviction, the district court sentenced Wood to 36 months' probation and ordered her to reimburse the county for her court-appointed attorney's fees as a condition of probation. This court granted her petition to bypass review by the Nebraska Court of Appeals. We affirm as modified.
On June 8, 1992, during a routine traffic stop, Wood consented to a search of her vehicle by Nebraska State Trooper Duff Jensen. For his own safety, Jensen asked Wood and another passenger, Wood's son, to step out of the vehicle while he conducted the search. Again for safety reasons, he then asked Wood if she had anything in the pockets of the jacket she was wearing. Wood reluctantly removed a small cloth pouch from her pocket and showed it to Jensen. When Jensen asked her what the contents of the bag were, she responded by opening the bag far enough for him to see some plastic baggies containing a green leafy substance. Believing the substance to be marijuana, Jensen asked Wood to give him the pouch. In the pouch Jensen discovered five plastic bags of marijuana, an empty bag, a pipe made from a deer antler, two packs of rolling papers, a small pair of scissors, and $182.25 in cash. A search of the vehicle produced a marijuana pipe and a pair of forceps.
After being informed of her rights, Wood later admitted to the investigating officer, Galen Svoboda, that the marijuana belonged to her. An attorney was appointed to represent Wood after a finding of indigence. At trial, Wood testified on her own behalf that she was a marijuana user and that the marijuana found in the pouch was for her own personal use. Carl Schultz, a witness for the prosecution, testified he had seen Wood with marijuana on approximately four or five prior occasions. One of those occasions occurred when Wood came to Schultz' home and asked Schultz if he wanted to "get high." Schultz accepted Wood's offer and testified that Wood "rolled" a marijuana cigarette and gave it to him to smoke. Wood's objections to the testimony were overruled. The trial court advised the jury that Schultz' testimony was only for the purpose of assisting them in deciding whether or not Wood had intended to commit the offense charged, possessing marijuana with the intent to deliver. The court repeated this instruction at the end of Schultz' testimony.
Wood was convicted, and on January 11, 1993, she was sentenced to a term of probation of 36 months. One of the conditions of her probation required Wood to reimburse Pierce County for fees paid to her court-appointed attorney. Wood raised no objections to this condition of probation at the time of sentencing.
Wood asserts the trial court erred in conditioning her probation on her reimbursing Pierce County for her court-appointed attorney's fees, without making a determination that she was no longer indigent. In the alternative, she claims that if the statutory scheme authorizes recoupment of attorney fees absent a reconsideration of continued indigence, then the statutory scheme violates
her constitutional right to counsel. Wood also claims the court erred in admitting the testimony of Schultz regarding Wood's prior bad acts.
At Wood's sentencing hearing, the trial court sentenced Wood to a term of 36 months' probation. As a condition of probation, the court ordered Wood to reimburse the county for the expenses incurred in providing a court-appointed attorney for her after an earlier finding of indigence. After imposing the sentence, the trial court asked Wood if she had any objection to this sentence. Wood replied in the negative. The amount of fees had not been predetermined. She now claims the court went beyond its power in imposing the reimbursement of attorney fees as a condition of probation without first determining that she was no longer indigent.
The State asserts we cannot hear the sentencing issue because Wood did not raise an objection at trial. Absent plain error, when an issue is raised for the first time in an appellate court, it will be disregarded, inasmuch as the court whose judgment is being reviewed cannot commit error regarding an issue never presented and submitted for disposition. State v. Bell, 242 Neb. 138, 493 N.W.2d 339 (1992). However, since it is the sentence which is the judgment, Wood's objection to her sentence was through the appeal procedure as set forth in Neb.Rev.Stat. § 25-1911 et seq. (Reissue 1989 & Cum.Supp.1992). See, State v. Beverlin, 244 Neb. 615, 508 N.W.2d 271 (1993); State v. Spotted Elk, 227 Neb. 869, 420 N.W.2d 707 (1988). As such, this matter is properly before us.
Wood claims there is no statutory authorization for the condition of requiring payment of fees of the court-appointed attorney, without the court's first making a determination that she was no longer indigent. In the alternative, she claims that if this court finds there is statutory authorization for the imposition of such a condition of probation, then such a statutory scheme denies Wood her constitutional right to counsel.
We find the statutes of this state require that when a defendant is appointed counsel after a finding of indigence, a determination that the defendant is no longer indigent is necessary before the court can require reimbursement of fees for the court-appointed attorney as a condition of probation. We do not address Wood's constitutional claim, since its determination is not necessary for the proper disposition of the question. See State...
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