State v. Thomas
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Decisions
of the Nebraska Court of Appeals
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a
ssistance of counsel regarding counsel’s alleged failure to
obtain the sexual assault examination report. We affirm the
denial of postconviction relief on all other claims.
Affirmed in part, and in part reversed and
remanded for further proceedings.
State of Nebraska, appellee, v.
Clifford D. Thomas, appellant.
___ N.W.2d ___
Filed May 31, 2011. No. A-10-357.
1. Rules of Evidence: Other Acts: Proof. Evidence of other bad acts allegedly
committed by a criminal defendant are not excludable under Neb. Evid. R. 404,
Neb. Rev. Stat. § 27-404 (Reissue 2008), which prohibits propensity evidence,
in situations where the evidence is so blended or connected with the actions
charged that proof of one incidentally involves proof of the other, explains
the circumstances of the charged conduct, or tends to prove an element of the
charged conduct.
2. Rules of Evidence: Other Acts. The State is entitled to present a coherent picture of the facts of the crime charged and is entitled to present evidence of other
bad acts where the evidence is so closely intertwined with the charged crime that
the evidence completes the story or provides a total picture of the charged crime;
such evidence is intrinsic evidence not governed by Neb. Evid. R. 404, Neb. Rev.
Stat. § 27-404 (Reissue 2008).
3. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue
2008), evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Reversed and remanded for a new trial.
Chad M. Brown for appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
Inbody, Chief Judge, and Irwin and Moore, Judges.
Irwin, Judge.
I. INTRODUCTION
Clifford D. Thomas appeals his convictions and sentences for
terroristic threats, use of a deadly weapon to commit a felony,
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felon in possession of a deadly weapon, and being a habitual
criminal. On appeal, Thomas asserts numerous potential errors.
We conclude that the district court erred in admitting evidence
concerning other bad acts allegedly committed by Thomas, and
because that error requires reversal and remand, we decline to
address the rest of Thomas’ assignments of error.
II. BACKGROUND
Vincent Haynes is an automobile mechanic who owns his
own automobile repair shop in Omaha, Nebraska. Haynes was
acquainted with Thomas and had done repair work on Thomas’
automobiles in the past. In late December 2007, Thomas hired
Haynes to install a used transmission in Thomas’ automobile. Thomas provided the used transmission, and one of the
mechanics working for Haynes performed the installation.
Thomas returned to Haynes’ repair shop approximately a
week later and complained that the transmission was leaking. Another of the mechanics working for Haynes performed the repair work. Thomas returned again approximately
2 weeks later, and again complained that the transmission
was leaking.
When Thomas returned for the second time and complained
that the transmission was leaking, the mechanic who had
worked on the automobile was not in the shop. Haynes testified
that Thomas “started talking out loud . . . and said, you gonna
do — you gonna fix my vehicle today.” Haynes testified that
Thomas “was cussing, you gonna fix my damn car today and
this don’t make no mother-fucking sense I got to keep bringing it back” and that Thomas was “making a scene.” Thomas
eventually left and indicated that he would return.
Later the same day, Thomas returned again. Haynes testified that Thomas was wearing “a long trench coat” and “had
one of his hands in his pocket.” When Haynes approached
Thomas, Thomas “punched [Haynes] in the chest. Then he
pulled the other hand out [of the trench coat pocket] and pulled
this big, old gun out and said, you gonna fix my damn car or
you gonna deal with this.” Thomas also said, “[T]his ain’t no
fucking joke” and “you a bitch-ass nigger and everybody know
you a bitch.” According to Haynes, Thomas said, “I’m gonna
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send somebody else up here to rob you and I’m gonna set your
building on fire.” Haynes testified that he “agreed to everything [Thomas] said he wanted [Haynes] to do” and assured
Thomas that the automobile would be fixed. Thomas eventually
left again.
Two days later, on a Monday morning, Haynes received
a telephone call that prompted him to go to his repair shop.
When he arrived at the building, he observed that firefighters
had arrived and that the garage door was on fire.
On April 27, 2009, Thomas was charged by amended information with terroristic threats, use of a deadly weapon to
commit a felony, and felon in possession of a deadly weapon.
The amended information also included a habitual criminal
a
llegation.
On August 14, 2009, the State filed a notice of its intent to
introduce evidence under Neb. Evid. R. 404, Neb. Rev. Stat.
§ 27-404 (Reissue 2008). The State indicated that it intended
to offer evidence of Thomas’ threat to commit arson at Haynes’
business and the subsequent fire that occurred at the business 2 days after the threat. Also on August 14, Thomas filed
a motion in limine specifically seeking to prevent the State
from introducing evidence concerning the fire. Prior to trial,
the State withdrew its intent to introduce rule 404 evidence.
At the hearing on Thomas’ motion in limine, the State argued
that the evidence concerning the fire was intrinsic evidence and
was intertwined with the charged crime of terroristic threats
and therefore admissible without reference to rule 404. The
court agreed with the State and overruled Thomas’ motion
in limine.
At trial, there was also evidence adduced concerning a conversation had prior to trial between Thomas and Haynes. The
conversation was recorded by Thomas. Prior to trial, the State
had filed a motion in limine seeking to prevent introduction of
evidence concerning the conversation, but the court overruled
the motion. The conversation allegedly included discussion
of “what it would take for Haynes to help make the charges
against Thomas go away” and the possibility of Haynes’ taking money from Thomas “in exchange for not showing up in
court.” Brief for appellee at 16. At trial, an audio recording of
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the conversation was played several times, and Haynes testified
that the conversation took place and admitted the basic content
of the conversation.
The jury deliberated for approximately 31⁄2 hours before
returning verdicts of guilty on all charges. An enhancement
hearing was scheduled to occur on September 2, 2009. On
September 14, the parties appeared for the enhancement hearing, which had been continued, and Thomas’ counsel objected
that Thomas had not received sufficient notice of the September
2 hearing. The court overruled Thomas’ objection, received evidence to establish that Thomas was a habitual criminal, and set
a sentencing date.
Thomas filed a motion for new trial on February 3, 2010. In
the motion, Thomas asserted that an enhanced version of the
audio recording of Thomas and Haynes’ conversation about
making the charges “go away” constituted newly discovered
evidence. The court denied the motion for new trial.
On March 5, 2010, Thomas was sentenced to 10 to 30 years’
imprisonment on the terroristic threats conviction, 20 to 40
years’ imprisonment on the use of a deadly weapon to commit a felony conviction, and 10 to 30 years’ imprisonment on
the felon in possession of a deadly weapon conviction. The
court ordered the first two sentences to be served consecutively, and the third sentence to be served concurrently. This
appeal followed.
III. ASSIGNMENTS OF ERROR
Among Thomas’ assignments of error on appeal is an assertion that the district court erred in allowing the State to introduce evidence concerning the fire that occurred at Haynes’
business. Our resolution of this assignment of error obviates
the need to discuss the remaining assignments of error.
IV. ANALYSIS
Thomas challenges the district court’s allowance of testimony proffered by the State concerning a fire that occurred
at Haynes’ repair shop 2 days after Thomas allegedly made
terroristic threats, including a threat to set Haynes’ “building
on fire.” Prior to the trial, Thomas filed a motion in limine
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objecting to this testimony, and he objected to it during trial on
the basis of relevance and Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2008). On appeal, Thomas also argues that
this evidence constitutes impermissible rule 404 evidence of
other bad acts that should not have been admitted.
The State’s argument to the district court, and to this court,
has been that the evidence was properly admitted because it
was intrinsic evidence that is so intertwined with the charged
offenses that it completes the picture and is actually part of the
charged offense, not extrinsic evidence of other bad acts. The
district court agreed, overruled Thomas’ objections, and admitted the testimony on this basis.
We conclude that the State’s argument that this evidence is
intrinsic evidence and intertwined with the charged offenses
and the authorities relied on by the State in support of this
assertion are inapplicable to this case, because the State has
failed to adduce any evidence connecting Thomas with the
fire. Evidence of the fire itself would arguably be intrinsic
evidence and intertwined with the charged offenses only if
there were some evidence that Thomas was involved with the
fire, but the State adduced no evidence to make this connection. As such, we reject the State’s argument on appeal that
“it is without question that the evidence relating to the fire
at Haynes’ shop was so closely intertwined with the crimes
charged that it cannot be considered extrinsic.” Brief for
appellee at 25-26.
[1,2] In a line of cases dating back to 2001, this court and
the Nebraska Supreme Court have repeatedly concluded that
evidence of other bad acts allegedly committed by a criminal defendant are not excludable under rule 404’s prohibition
of propensity evidence in situations where the evidence is
so blended or connected with the actions charged that proof
of one incidentally involves proof of the other, explains the
circumstances of the charged conduct, or tends to prove an
element of the charged conduct. See, State v. Baker, 280 Neb.
752, 789 N.W.2d 702 (2010); State v. Robinson, 271 Neb.
698, 715 N.W.2d 531 (2006); State v. Wisinksi, 268 Neb. 778,
688 N.W.2d 586 (2004); State v. Powers, 10 Neb. App. 256,
634 N.W.2d 1 (2001), disapproved on other grounds, State v.
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Smith, 267 Neb. 917, 678 N.W.2d 733 (2004). In such situations, the State is entitled to present a coherent picture of the
facts of the crime charged and is entitled to present evidence
of other bad acts where the evidence is so closely intertwined
with the charged crime that the evidence completes the story
or provides a total picture of the charged crime; such evidence
is intrinsic evidence not governed by rule 404. See State v.
Powers, supra.
Every one of those cases, however, shared a common characteristic: there was evidence demonstrating that the other bad
acts at issue were actually committed by the defendant so that
they did help to complete the story or provide a total picture
of the defendant’s alleged actions. In State v. Powers, supra,
the defendant was charged with committing terroristic threats
when he sent threatening letters to the victim. The other bad
acts evidence at issue was prior letters from the defendant to
the victim. Id.
In State v. Wisinski, supra, the defendant was charged with
burglary and theft by unlawful taking. The other bad acts
evidence at issue was evidence that the defendant was apprehended several days after the reported burglary in a vehicle
containing items stolen during the burglary. Id.
In State v. Robinson, supra, the defendant was charged
with, among other crimes, first degree murder. The evidence
adduced against the defendant included testimony of a witness
who had been a passenger in a Chevrolet Tahoe driven by the
defendant to the crime scene who testified that he waited in the
Tahoe while the defendant committed the murder. There was
also evidence adduced that the defendant had told another witness that he was going to “‘get rid of the truck’” in “‘Kansas
or Texas.’” Id. at 712, 715 N.W.2d at 548. The other bad acts
evidence at issue was evidence that a Tahoe registered to
the defendant’s grandmother was found destroyed by a fire
in Texas and that a Kansas City police officer had seen the
defendant in Kansas City exiting a bus which had originated
in Houston. Id.
In State v. Baker, supra, the defendant was charged with first
degree sexual assault and third degree sexual assault of a child.
The other bad acts evidence at issue was evidence concerning
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physical abuse and threats of harm committed by the defendant
and directed at the victim and her mother. Id.
The present case, however, is entirely different from each
of these prior cases where this court or the Nebraska Supreme
Court has approved of the admission of evidence as intrinsic
evidence intertwined with the charged offense. In the present
case, the challenged evidence does not include any evidence
actually linking Thomas to the subsequent fire at Haynes’
repair shop. The State’s arguments, both to the district court
and to this court, all seem to presuppose such connection,
but no such connection was ever demonstrated. Indeed, when
an Omaha Fire Department captain testified, over Thomas’
objection, concerning his investigation into the fire, he was
specifically asked whether he searched for and found any evidence to link any specific suspect to the fire. He testified that
he “found no evidence . . . that linked [a possible suspect] to
the fire.”
Because the evidence that a fire occurred at Haynes’ repair
shop 2 days after Thomas allegedly threatened to burn the
building down did not actually include any evidence to indicate
that Thomas was in any way involved in starting the fire, it was
not intrinsic evidence intertwined with the charged offense.
The district court erred in so finding.
[3] Evidence which is not relevant is not admissible. State
v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010). Relevant
evidence is that which has any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without
the evidence. Id. Under rule 403, however, evidence may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury. State v. Sellers, supra.
In this case, any minimal relevance that the evidence concerning the fire at Haynes’ repair shop might have had was
outweighed by the substantial danger of unfair prejudice. There
was no evidence presented linking Thomas to the fire. In fact,
testimony indicated that there was no such evidence. The only
way the evidence was of use to the jury was for the jury to hear
that Thomas had threatened to burn the building down and then
Decisions
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infer that he must have meant it because somebody actually
started a fire at the repair shop 2 days later. Such an inference,
without any evidence to connect Thomas to the subsequent
fire, is certainly prejudicial and suggests a finding of guilt on
improper grounds.
Because there was no connection between Thomas and the
subsequent fire, we conclude that there was little or no probative value to the fire evidence, and any minimal probative value
would be outweighed by the danger of unfair prejudice. See
State v. Sellers, supra (evidence of handguns located at time
of defendant’s arrest lacked probative value and was unfairly
prejudicial because there was no connection between handguns
and defendant). The district court abused its discretion in not
excluding this evidence, and this error requires that we reverse,
and remand for a new trial.
V. CONCLUSION
The district court erred in overruling Thomas’ objections to
the State’s proffer of evidence concerning the fire at Haynes’
repair shop, because there was no evidence linking Thomas to
the fire. We reverse, and remand for a new trial.
R eversed and remanded for a new trial.
Michael Turnbull, appellant, v. County
Pawnee, Nebraska, appellee.
of
___ N.W.2d ___
Filed May 31, 2011. No. A-10-489.
1. Judgments: Appeal and Error. Neb. Rev. Stat. § 25-1901 (Reissue 2008) provides for a district court to review the judgment rendered or final order made by
a tribunal inferior in jurisdiction and exercising judicial functions.
2. Administrative Law: Public Officers and Employees: Claims: Notice: Breach
of Contract: Appeal and Error. Where an original breach of contract action
requires compliance with the county claims statute, Neb. Rev. Stat. § 23-135
(Reissue 2007), to provide sufficient notice to a county of the claim, when an
employee seeks judicial review of a final order rendered by an administrative
body, the county is on full notice of the claim by virtue of the employee’s compliance with agreed-upon procedures for asserting the claim at the administrative level.
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