MCCORMACK, J.
Raad S. Almasaudi was charged with theft by receiving stolen property after various items of stolen property were found in his residence. A jury convicted Almasaudi of three counts of felony theft by receiving stolen property. Almasaudi appeals. For the following reasons, we reverse, and remand for a new trial.
Almasaudi was charged with three counts of theft by receiving stolen property pursuant to Neb.Rev.Stat. § 28-517 (Reissue 2008). Count I alleged that an item of stolen property was valued in excess of $1,500, a Class III felony; count II alleged that an item of stolen property was valued at $500 or more but not over $1,500, a Class IV felony; and count III alleged that an item of stolen property was valued in excess of $1,500, a Class III felony.
Almasaudi filed a pretrial motion in limine seeking to exclude, among other things, "any theft allegation or offense, or any other offense, including any convictions thereof, that may be alleged to have occurred at any time or date other than
At a hearing on the motions, the court received transcripts of the interviews between law enforcement and Almasaudi. Almasaudi sought to exclude statements made by Almasaudi and questions asked by law enforcement relating to items not charged in the information—specifically any reference to Almasaudi's purchasing gas at reduced prices from Vandry and Almasaudi's receipt of allegedly stolen property from Vandry that was not named in the information. The State argued that such evidence did not fall under rule 404, because it would be offered to show Almasaudi's knowledge that the charged items were stolen.
The court overruled Almasaudi's motion in limine. Regarding rule 404(2), the court stated: "This provision appears to be inapplicable here. It is not other wrongs or acts of [Almasaudi] that are involved, but the acts of a third person from whom [Almasaudi] allegedly obtained property. Such evidence is admissible to show knowledge or absence of mistake or accident." The court also stated that although the motion was overruled, it would provide a limiting instruction at trial. Prior to trial, Almasaudi received a continuing objection to the matters overruled in his motion in limine.
Sgt. Michael Bassett of the Lincoln Police Department set up a sting operation to catch persons involved in a series of thefts from vehicles at trailheads and parks in southwest Lincoln. Bassett observed Vandry and another person enter the "bait vehicle" and take various items. Vandry and the other person were arrested. During an interview following his arrest, Vandry informed law enforcement that stolen property could be found at Almasaudi's residence.
Bassett went to the residence where Almasaudi lived alone. Almasaudi consented to a search of his residence, and then participated in the search by explaining which items he had purchased from Vandry. Law enforcement seized, among other things, a garden tiller, a television and receiver, and a "four-wheeler" from the residence. Almasaudi admitted to purchasing all the items from Vandry, though he initially told police that he had purchased the television with his residence.
Almasaudi is originally from Iraq. He emigrated from Saudi Arabia to the United States in 1997. At that time, Almasaudi could not speak English, and presently, he cannot read English. Almasaudi's girlfriend testified that he communicates "[f]airly well" in English. Almasaudi testified that he had met Vandry in late January or early February 2009, 3 to 4 months before the property was seized from Almasaudi's residence.
Almasaudi testified that Vandry had told him Vandry had debts and needed money and that Almasaudi purchased various items from him. Almasaudi purchased the four-wheeler from Vandry for $2,000, the television set and receiver for $1,200, and the tiller for $150. Almasaudi testified that he bought these items from Vandry, along with a lawnmower, a snowblower, nail guns, an in-dash DVD player, and a
The tiller had been reported stolen by Kay Roberts. She purchased the tiller in the mid-1990's for around $1,800 to $2,000. Roberts testified that she recognized the tiller seized from Almasaudi's residence as the one taken from her home. She stated that the tiller was in good working condition when stolen, that it appeared to have remained in that condition, and that she would guess that the tiller was currently worth between $600 and $800.
The television and receiver had been reported stolen by Lindsey Emery. She recognized the items seized from Almasaudi's residence as those taken from her home. Emery testified that she had purchased the television and receiver in 2006 for approximately $2,400. She testified that she would have asked for $1,200 for the items were she to attempt to sell them.
The four-wheeler had been reported stolen by Michael Hicks. He testified that he recognized the four-wheeler as his own and that he had purchased it in 2007 for $5,000. Hicks testified that the four-wheeler was now damaged and that it would cost $700 to fix it. He also stated that he would try to sell the four-wheeler for $2,000 without fixing any damage.
The State offered into evidence DVD's of interviews between Almasaudi and Bassett, Officer David Moody, and Det. Timothy Kennett. The DVD's were the subject of Almasaudi's previously submitted motion in limine, but Almasaudi did not object when the DVD's were offered as exhibits at trial or when they were played for the jury. In the interviews, Almasaudi stated that Vandry would come to his residence with a Visa credit card and fill up Almasaudi's car with gas for $20. Almasaudi purchased gas in this manner six to eight times.
Regarding the stolen items seized, Almasaudi stated that initially, he believed the four-wheeler was stolen, but that Vandry presented him with a paper that he believed to be a bill of sale. Almasaudi told Kennett that everything he bought from Vandry was cheap, and when asked what he thought about that, he said, "I mean, it's stolen, I'm sure."
At the close of evidence, Almasaudi moved for a mistrial on the basis that the "404(2) evidence was improperly presented to the jury." The court overruled Almasaudi's motion, and stated that it did not think the evidence objected to in Almasaudi's motion in limine was "404 evidence" and that such evidence was relevant to show knowledge. However, the court did issue an oral limiting instruction. It stated:
The jury was given a written limiting instruction which read: "During this trial I called your attention to certain evidence that was received for specified limited purposes; you must consider that evidence only for those limited purposes and for no other."
At the close of the State's evidence and at the close of trial, Almasaudi moved for a directed verdict. Almasaudi argued that the State had failed to establish Almasaudi's
At the jury instruction conference, the State and Almasaudi offered different proposed instructions on the definition of "knowingly" as it is used in regard to § 28-517. The court accepted the State's proposed instruction over Almasaudi's objection and submitted the instruction as jury instruction No. 7. It read in part: "`Knowingly' is defined as having actual knowledge that an item is stolen or that the surrounding facts would lead a reasonable prudent person to believe an item is stolen." The jury returned a unanimous guilty verdict on all three counts. It specifically found that the property in count I had a value of $2,700, the property in count II had a value of $1,000, and the property in count III had a value of $600. The district court sentenced Almasaudi to 2 years of probation on each count to be served consecutively, and on each of the counts, Almasaudi was ordered to serve 160 days in county jail, with credit for time served of 69 days on count II. Almasaudi timely appeals.
Almasaudi assigns, restated, that (1) the district court erred in admitting evidence of prior bad acts; (2) the district court erred in wrongly instructing the jury on the definition of "knowingly"; (3) the evidence was insufficient to support a conviction of receiving stolen property having a value of $500 or more, count II in the information, because the State's evidence of value was speculative; (4) the evidence was insufficient to support a guilty verdict on all counts; and (5) the district court erred in refusing to direct a verdict in favor of Almasaudi.
Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.
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.
Almasaudi argues that the term "knowing" in § 28-517 dictates a subjective standard and that the court's instruction defining "knowingly" was erroneous because it led the jury to apply an objective standard in this case. Whether jury instructions are correct is a question of law, which an
Section 28-517 of the Nebraska Criminal Code is based on the Model Penal Code § 223.6, 10A U.L.A. 561 (2001), and provides: "A person commits theft if he receives, retains, or disposes of stolen movable property of another knowing that it has been stolen, or believing that it has been stolen, unless the property is received, retained, or disposed with intention to restore it to the owner." In order for a defendant to be convicted of receiving stolen property, it must be found that the accused received, retained, or disposed of stolen property knowing or believing that it was stolen.
Knowledge, like intent, may be inferred from the circumstances surrounding the act.
The Model Penal Code and Commentaries § 223.6
As noted by the Model Penal Code and Commentaries, Nebraska's criminal receiving statute, § 28-517, falls in the "slight plurality" mentioned above. Statutes falling in the plurality dictate a knowledge requirement similar to the element in § 28-517. They provide that a person is guilty of theft by receiving if the person intentionally receives stolen property "knowing that it has probably been stolen or believing that it has probably been stolen";
In contrast, other jurisdictions provide that a person is guilty of criminal receiving when a person receives stolen property with "good reason to believe";
When a subjective standard of knowledge is dictated by a criminal receiving statute, the requirement has long been analyzed in this manner:
The model federal jury instruction for criminal receiving reflects the same:
It is clear that § 28-517 and the Model Penal Code impose a subjective standard of knowledge or belief, as opposed to the objective standard imposed by those jurisdictions which require only a showing of "reasonable grounds for believing the property stolen."
As stated above, the court accepted the State's proposed instruction over Almasaudi's objection and submitted the instruction as jury instruction No. 7. It read in part: "`Knowingly' is defined as having actual knowledge that an item is stolen or that the surrounding facts would lead a reasonable prudent person to believe an item is stolen." The State's proposed instruction imposed an objective standard and directed the jury to consider a "reasonable prudent person." Almasaudi argues that the instruction given is therefore contrary to law. We agree, and determine that the objective standard of a "reasonable prudent person" is contrary to our criminal receiving statute and relevant case law.
The instruction proposed by the State and given to the jury in this case is contrary to the requirement of subjective knowledge or belief as prescribed by statute. In a prosecution for receiving stolen property, the court must instruct the jury on the subjective standard of "knowing . . . or believing" as it is used in § 28-517.
In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.
Having found reversible error, we must determine whether the totality of the evidence admitted by the district court was sufficient to sustain Almasaudi's conviction. If it was not, then concepts of double jeopardy would not allow a remand for a new trial.
Almasaudi also argues that the State did not properly establish the value of the stolen tiller to sustain the conviction on count II and that the district court erred in admitting evidence of "prior bad acts" in violation of rules 403 and 404(2). Although the foregoing determination resolves this appeal, we address these issues because they are likely to recur on remand.
Section 28-518(8) states: "In any prosecution for theft under sections 28-509 to 28-518, value shall be an essential element of the offense that must be proved beyond a reasonable doubt." The statutory language of § 28-518(8) requires only that some value be proved as an element of a theft offense, not that a particular threshold value be proved as an element of the offense.
It has long been the rule in this jurisdiction that the owner of chattels may testify as to their value in a criminal case.
Almasaudi asserts that the court erred in permitting the introduction of evidence of prior bad acts in violation of rules 403 and 404(2). As a threshold matter, we must determine whether Almasaudi's continuing objection preserved this issue for appeal. The failure to make a timely objection waives the right to assert prejudicial error on appeal.
Almasaudi made a motion in limine seeking to exclude, among other things, "any theft allegation or offense, or any other offense, including any convictions thereof, that may be alleged to have occurred at any time or date other than the date charged in the information," pursuant to rules 403 and 404. Thereafter, Almasaudi filed a supplemental motion seeking to exclude the admission of portions of videotaped interviews between law enforcement and Almasaudi and specific lines of the transcribed interviews. These motions were overruled. The State offered the taped interviews for the purported purpose of establishing that Almasaudi had knowledge that the items he purchased from Vandry were stolen—because he received them at a cheap price, he engaged in other questionable transactions with Vandry to purchase gas, and he spent a large portion of his income on these items. Almasaudi did not specifically object when DVD copies of the interviews were offered into evidence or when they were played for the jury. The district court admitted the evidence at trial. Almasaudi argues its admission constituted error.
Because overruling a motion in limine is not a final ruling on admissibility of evidence and, therefore, does not present a question for appellate review, a question concerning admissibility of evidence which is the subject of a motion in limine is raised and preserved for appellate review by an appropriate objection to the evidence during trial.
Almasaudi argues that the district court erred in admitting the taped interviews, because they contain evidence of prior bad acts inadmissible under rule 404(2). Almasaudi argues that the evidence was not admitted for a proper purpose. He does not take issue with the limiting instruction given by the court, nor does he assert that he was not sufficiently informed of the proper purpose for which the evidence was admitted. For the following reasons, we find Almasaudi's arguments to be without merit.
The district court was unclear as to whether the evidence was ruled admissible for a proper purpose under rule 404(2) or whether the evidence was admissible because it was not covered by rule 404. The court stated that it did not think that the evidence was "404 evidence." But it also stated that such evidence was relevant to show knowledge and gave a limiting instruction.
This court has recognized the rule that prior conduct which is inextricably intertwined with the charged crime is not considered extrinsic evidence of other crimes or bad acts and that, therefore, rule 404 does not apply.
The evidence admitted in Almasaudi's case is significantly different from the evidence considered in cases where we have found rule 404 inapplicable. The evidence admitted regarding Almasaudi's previous dealings with Vandry is not "same transaction evidence." Such dealings are previous transactions separate and distinct from the transactions forming the charged conduct. Further, Almasaudi's previous dealings with Vandry are not necessary to show a coherent picture of the facts, nor do they form an integral part of the crimes charged. The previous dealings constitute unrelated acts that were not interwoven with the charged crimes. Accordingly, we determine the evidence falls under rule 404 coverage, and we address the admissibility of the evidence under rule 404(2).
Before the prosecution may offer evidence of other crimes, wrongs, or acts pursuant to rule 404(2), it must first prove to the trial court, out of the presence of the jury and by clear and convincing evidence, that the accused committed the crime, wrong, or act.
Rule 404(2) provides:
Rule 404(2) prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner.
A proponent of evidence offered pursuant to rule 404(2) shall, upon objection to its admissibility, be required to state on the record the specific purpose or purposes for which the evidence is being offered, and the trial court shall similarly state the purpose or purposes for which such evidence is received.
The court overruled Almasaudi's objection to the admission of the evidence and his motion for a mistrial related to the allegedly improper admission of the evidence. The State asserted the evidence was being offered for lack of mistake or knowledge that the property was stolen. The State also stated that it did not object to the court's giving a limiting instruction regarding the evidence.
The court issued the following oral limiting instruction:
The jury was also given a written limiting instruction which read: "During this trial I called your attention to certain evidence that was received for specified limited purposes; you must consider that evidence only for those limited purposes and for no other."
Knowledge is an essential element of the crime of theft by receiving, and, as stated above, knowledge may be inferred from the circumstances surrounding the criminal act.
The evidence admitted focused on Almasaudi's relationship and dealings with Vandry. The evidence shows Almasaudi's knowledge of the pertinent facts surrounding his dealings with Vandry, all of which were closely related in time and character to the dealings which led to the charges brought against Almasaudi. Almasaudi had known Vandry only for a period of 3 months, and, during that time, Almasaudi took part in numerous transactions with Vandry. Almasaudi spent approximately $4,000 on the items he purchased. The transactions took place frequently over a short period of time. The record indicates that each item or service Almasaudi purchased from Vandry was acquired for far less consideration than its reasonable value. Each interaction between Almasaudi and Vandry informs the issue of whether Almasaudi knew he was purchasing stolen goods. And the taped interviews which were admitted deal directly with whether Almasaudi knew or believed the items to be stolen. The evidence of conduct relating to the prior dealings was substantially similar to the charged incidents and was probative of Almasaudi's knowledge and absence of mistake. We therefore conclude that the evidence of Almasaudi's relationship with Vandry and their prior dealings was relevant for a proper purpose under rule 404(2).
We next consider whether the probative value of such evidence was substantially outweighed by its potential for unfair prejudice. The incidents admitted into evidence all occurred within a period of 3 months. As we noted in State v. Floyd,
Limiting instructions were given to the jury regarding the admission of evidence relating to Almasaudi's prior dealings with Vandry. The instructions properly indicated that the evidence was to be considered to determine Almasaudi's knowledge regarding the property at issue in the case.
We conclude that the district court did not abuse its discretion in admitting evidence of Almasaudi's prior dealings with Vandry, because the evidence was admitted for the proper purposes of knowledge and absence of mistake. Because we determine the probative value of the evidence was not substantially outweighed by its potential for unfair prejudice, we need not further address this issue in relation to Almasaudi's assignment of error regarding rules 403 and 404(2).
For the foregoing reasons, we determine that Almasaudi was prejudiced by the court's erroneous instruction on the definition of "knowingly." Accordingly, we reverse the judgment of the district court and remand the cause for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
CONNOLLY, J., participating on briefs.
WRIGHT, J., not participating.
