State v. Almasaudi

State of NebraSka , appellee , v.
raad S. almaSaudi , appellaNt.
802 N.W.2d 110
Filed September 2, 2011. 	No. S-10-816.
1. Jury Instructions: Appeal and Error. Whether jury instructions are correct is
a question of law, which an appellate court resolves independently of the lower
court’s decision.
2. Rules of Evidence: Appeal and Error. 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.
3. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
and 27-404(2) (Reissue 2008), and the trial court’s decision will not be reversed
absent an abuse of discretion.
4. Convictions: Theft: Proof. 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.
5. Intent: Circumstantial Evidence. Knowledge, like intent, may be inferred from
the circumstances surrounding the act.
6. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
7. Jury Instructions: Convictions: Appeal and Error. Before an error in the giv-
ing of jury instructions can be considered as a ground for reversal of a conviction,
it must be considered prejudicial to the rights of the defendant.
8. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double
Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court would have been sufficient to sustain a guilty verdict.
9. Theft: Value of Goods: Proof. The statutory language of Neb. Rev. Stat.
§ 28-518(8) (Reissue 2008) requires only that some value be proved as an ele-
ment of a theft offense, not that a particular threshold value be proved as an
element of the offense.
10. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Reissue 2008), prohibits the admission of other bad acts evidence for the pur-
pose of demonstrating a person’s propensity to act in a certain manner.
11. ____: ____. Evidence of other bad acts which is relevant for any purpose other
than to show the actor’s propensity is admissible under Neb. Evid. R. 404(2),
Neb. Rev. Stat. § 27-404(2) (Reissue 2008).
12. Evidence: Words and Phrases. Evidence that is offered for a proper purpose is
often referred to as having a “special” or “independent” relevance, which means
that its relevance does not depend upon its tendency to show propensity.
13. Rules of Evidence: Other Acts: Appeal and Error. An appellate court’s analy-
sis under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008),
162 	282 NEBRASKA REpoRTS
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considers (1) whether the evidence was relevant for some purpose other than to
prove the character of a person to show that he or she acted in conformity there-
with; (2) whether the probative value of the evidence is substantially outweighed
by its potential for unfair prejudice; and (3) whether the trial court, if requested,
instructed the jury to consider the evidence only for the limited purpose for which
it was admitted.
Appeal from the District Court for Lancaster County: Jeffre
C heuvroNt, Judge. Reversed and remanded for a new trial.
Bernard J. Glaser, Jr., for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
heaviCaN, C.J., G errard, StephaN, mCC ormaCk, and miller-
lermaN, JJ.
mCC ormaCk, J.
I. NATURE oF CASE
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.
II. BACKGRoUND
Almasaudi was charged with three counts of theft by receiv-
ing 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.1 The property was allegedly stolen
by Anthony Vandry and later purchased by Almasaudi. A jury
convicted Almasaudi on all counts.
1 See Neb. Rev. Stat. § 28-518(1) and (2) (Reissue 2008).
STATE v. ALMASAUDI 	163
Cite as 282 Neb. 162

1. motioN iN limiNe
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
the date charged in the information,” pursuant to Neb. Evid. R.
403 and 404, Neb. Rev. Stat. §§ 27-403 and 27-404 (Reissue
2008). Almasaudi also filed a “Motion to Disclose Rule 404(2)
Evidence and to Determine Admissibility” under rule 404(2)
and Neb. Evid. R. 103(3) and 104, Neb. Rev. Stat. §§ 27-103(3)
and 27-104 (Reissue 2008). Thereafter, Almasaudi filed a sup-
plemental motion seeking to exclude the admission of por-
tions of videotaped interviews between law enforcement and
Almasaudi and specific lines of the transcribed interviews.
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 acci-
dent.” The court also stated that although the motion was over-
ruled, 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.
2. evideNCe adduCed at trial
Sgt. Michael Bassett of the Lincoln police Department
set up a sting operation to catch persons involved in a series
164 	282 NEBRASKA REpoRTS

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 bicycle, but that he did
not know they were stolen. In total, Almasaudi spent approxi-
mately $4,000 purchasing these items from Vandry.
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.
STATE v. ALMASAUDI 	165
Cite as 282 Neb. 162

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 previ-
ously 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 ini-
tially, 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:
Members of the jury, you have heard statements by . . .
Almasaudi during the interviews by police officers involv-
ing incidents that do not involve the specific charges in
166 	282 NEBRASKA REpoRTS

this case such as the use of credit cards by . . . Vandry
and others and the purchase of other property by . . .
Almasaudi from . . . Vandry. This evidence should be con-
sidered by you solely, if at all, to show . . . Almasaudi’s
knowledge or absence of mistake involving the property
which is the subject of the charges in this case.
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 knowledge that
the charged items were stolen, and had also failed to prove the
value of those items. The court overruled both motions.
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.
III. ASSIGNMENTS oF ERRoR
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
STATE v. ALMASAUDI 	167
Cite as 282 Neb. 162

“knowingly”; (3) the evidence was insufficient to support a con-
viction 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.
IV. STANDARD oF REVIEW
[1] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision.2
[2,3] 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.3 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 discre-
tion.4 It is within the discretion of the trial court to determine
relevancy and admissibility of evidence of other wrongs or acts
under rules 403 and 404(2), and the trial court’s decision will
not be reversed absent an abuse of discretion.5
V. ANALySIS
1. Jury iNStruCtioN No. 7:
defiNitioN of “kNowiNGly ”
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 instruc-
tions are correct is a question of law, which an appellate court
resolves independently of the lower court’s decision.6
2 State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).
3 State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).
4 Id.
5 Id.
6 State v. Miller, supra note 2.
168 	282 NEBRASKA REpoRTS

[4] 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.7 The central focus of the crime,
therefore, is on the accused’s knowledge or belief.8 This focus
imposes a subjective standard on the knowledge requirement
of § 28-517.
[5] Knowledge, like intent, may be inferred from the cir-
cumstances surrounding the act.9 For example, possession of
recently stolen property, if not satisfactorily explained, is ordi-
narily a circumstance from which the fact finder may reason-
ably draw the inference, but is not required to do so, and find,
in the light of the surrounding circumstances shown by the
evidence in the case, that the person in possession knew the
property had been stolen.10 The jury must still satisfy itself
beyond a reasonable doubt that the defendant actually had the
requisite knowledge or belief.11
The Model penal Code and Commentaries § 223.612 states:
Recent codes and proposals are sharply divided among
three basic approaches to the question of required culpa-
bility for criminal receiving. About a third continue the
requirement that the receiver “know” that the property
7 See § 28-517.
8 State v. LaFreniere, 240 Neb. 258, 481 N.W.2d 412 (1992), overruled on
other grounds, State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).
9 Id.
10 See State v. Parks, 245 Neb. 205, 511 N.W.2d 774 (1994).
11 See, id.; A.L.I., Model penal Code and Commentaries § 223.6, comment
4(d) (1980).
12 Id., comment 4(a) at 238-39.
STATE v. ALMASAUDI 	169
Cite as 282 Neb. 162

in question is stolen property.[13] A slight plurality agree
with the Model Code judgment that knowledge or belief
“that it has probably been stolen” is the appropriate stan-
dard.[14] The remainder adopt the position taken by some
older statutes[15] and penalize receiving with “reasonable
grounds for believing the property stolen,” thereby impos-
ing liability for negligence.[16]
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 plu-
rality 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
13 See, Cal. penal Code § 496 (West 2010); Haw. Rev. Stat. § 708-830(7)
(1993 & Cum. Supp. 2010); Ind. Code Ann. § 35-43-4-2(b) (LexisNexis
2009); Ky. Rev. Stat. Ann. § 514.110(1) (LexisNexis 2008 & Cum. Supp.
2011); Mont. Code Ann. § 45-6-301(3) (2007); N.y. penal Law §§ 165.40
to 165.54 (McKinney 2010); Tex. penal Code Ann. § 31.03(b)(2) (West
2011); Va. Code Ann. § 18.2-108 (2004 & Cum. Supp. 2008); Wash. Rev.
Code Ann. §§ 9A.56.140 to 9A.56.170 (2009).
14 See, Ala. Code § 13A-8-16 (2006); Conn. Gen. Stat. Ann. § 53a-119(8)
(West 2007); Del. Code. Ann. tit. 11, § 851 (2007 & Cum. Supp. 2010);
Me. Rev. Stat. Ann. tit. 17-A, § 359(1) (1983 & Cum. Supp. 2004); Mass.
Gen. Laws. Ann. ch. 266, § 60 (West 2008); Minn. Stat. Ann. § 609.53
(West 2009); Mo. Ann. Stat. § 570.080 (West 1999 & Cum. Supp. 2011);
Neb. Rev. Stat. § 28-517; N.H. Rev. Stat. Ann. § 637:7(I) (2007); N.J.
Stat. Ann. § 2C:20-7 (West 2005); N.M. Stat. Ann. § 30-16-11(A) (2004
& Cum. Supp. 2008); okla. Stat. Ann. tit. 21, § 1713 (West 2002); 18 pa.
Cons. Stat. Ann. § 3925(a) (West 1983); S.D. Codified Laws § 22-30A-7
(2006); Utah Code Ann. § 76-6-408(1) (LexisNexis 2008 & Supp. 2011);
W. Va. Code Ann. § 61-3-18 (LexisNexis 2005).
15 See, e.g., Ala. Code § 13-3-55 (LexisNexis 1977) (repealed 1978); La.
Rev. Stat. Ann. § 14:69 (1974); 18 pa. Stat. Ann. § 4817 (West 1963)
(repealed 1973).
16 See, Ariz. Rev. Stat. Ann. § 13-1802(A)(5) (2010); Ark. Code Ann.
§ 5-36-106 (2006); Fla. Stat. Ann. § 812.019 (West 2006); Ga. Code Ann.
§ 16-8-7(a) (2007); 720 Ill. Comp. Stat. Ann. 5/16-1(a)(4) (LexisNexis
2008); Iowa Code Ann. § 714.1(4) (West 2003 & Cum. Supp. 2011);
ohio Rev. Code Ann. § 2913.51(A) (LexisNexis 2006); or. Rev. Stat.
§ 164.095(1) (2007).
170 	282 NEBRASKA REpoRTS

has probably been stolen”;17 “knowing that it has been acquired
under circumstances amounting to theft, or believing that it
has been so acquired”;18 “knowing that it has been stolen, or
believing that it has probably been stolen”;19 and “knowing that
it has been stolen, or believing that it has been stolen.”20 These
statutes and § 28-517 impose a standard of culpability which
prohibits an imposition of liability for the negligent receiving
of stolen property.
In contrast, other jurisdictions provide that a person is guilty
of criminal receiving when a person receives stolen property
with “good reason to believe”;21 “under such circumstances as
would reasonably induce him to believe”;22 “which he knows
or should know”;23 with “reasonable cause to believe”;24 or
having “good reason to know”25 that the property was stolen.
Such statutes impose a negligent, and thus objective, standard
of liability. Because § 28-517 contains no such language, the
imposition of a “reasonable prudent person” standard does not
comport with our law.
When a subjective standard of knowledge is dictated by a
criminal receiving statute, the requirement has long been ana-
lyzed in this manner:
[The legislature] used the word “knowing,” and defined
the crime as the purchase of stolen property by one hav-
ing knowledge of the theft. It might have denounced as
a crime the receipt of stolen property under conditions
17 Conn. Gen. Stat. Ann. § 53a-119(8). See Me. Rev. Stat. Ann. tit. 17-A,
§ 359(1).
18 Del. Code. Ann. tit. 11, § 851.
19 N.H. Rev. Stat. Ann. § 637:7(I); 18 pa. Cons. Stat. Ann. § 3925(a). See,
N.J. Stat. Ann. § 2C:20-7; S.D. Codified Laws § 22-30A-7; Utah Code
Ann. § 76-6-408(1).
20 Mo. Ann. Stat. § 570.080; Neb. Rev. Stat. § 28-517. See N.M. Stat. Ann.
§ 30-16-11(A).
21 Ark. Code Ann. § 5-36-106.
22 720 Ill. Comp. Stat. Ann. 5/16-1(a)(4).
23 Ga. Code Ann. § 16-8-7(a). See Fla. Stat. Ann. § 812.019.
24 Iowa Code Ann. § 714.1(4); ohio Rev. Code Ann. § 2913.51(A).
25 or. Rev. Stat. § 164.095(1).
STATE v. ALMASAUDI 	171
Cite as 282 Neb. 162

sufficient to create a suspicion in the mind of a reasonable
man, but it did not do so. The gist of the offense is the
actual state of the defendant’s mind when he purchases
the property, and not what, under like circumstances,
might be the state of mind of some other person; the
standard by which guilty knowledge is to be imputed is
the defendant’s mental attitude, and not that of the imagi-
nary average man. . . . Knowledge may be inferred from
circumstances. Anything amounting to notice, whether
such notice be direct or indirect, positive or inferential,
will satisfy the statute. But, even so, the ultimate fact
which the jury must find before a conviction is warranted
is that the defendant had such knowledge; and knowledge
is something more than a suspicion. Moreover, circum-
stances which would create a strong suspicion in the mind
of one man might have little significance for another, and
one is not to be convicted of a crime because he is of a
less suspicious nature than the ordinary man, and where,
therefore, he may have acted in entire good faith in the
face of conditions which might have put another upon
his guard.26
The model federal jury instruction for criminal receiving
reflects the same:
In deciding whether the defendant knew the property
was stolen at the time of its sale or receipt, you must
focus upon his actual knowledge at that time. Even if
you find that a prudent person would have known that the
property was stolen at the time of its sale or receipt, if
you find that the defendant did not know, then you cannot
find the defendant guilty.27
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
26 Peterson v. United States, 213 F. 920, 922-23 (9th Cir. 1914) (interpreting
Federal penal Code of 1910).
27 3 Leonard B. Sand et al., Modern Federal Jury Instructions—Criminal,
§ 54-56 at 54-109 (2005).
172 	282 NEBRASKA REpoRTS

only a showing of “reasonable grounds for believing the prop-
erty stolen.”
As stated above, the court accepted the State’s proposed
instruction over Almasaudi’s objection and submitted the instruc-
tion 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 per-
son to believe an item is stolen.” The State’s proposed instruc-
tion 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 rele-
vant case law.
The instruction proposed by the State and given to the jury
in this case is contrary to the requirement of subjective knowl-
edge 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.
[6,7] 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.28 Before an error
in the giving of jury instructions can be considered as a ground
for reversal of a conviction, it must be considered prejudicial to
the rights of the defendant.29
Jury instruction No. 7 allowed the jury to convict Almasaudi
on a showing of objective, rather than subjective, knowledge or
belief. This permitted the jury to convict Almasaudi on a much
broader standard of liability than that which is contemplated
by § 28-517. Therefore, we determine that Almasaudi was
prejudiced by the instruction and that the judgment should be
reversed. An instruction directing the jury to apply an objective
standard to the knowledge requirement is contrary to law and
fails to conform to the criminal code.
28 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).
29 State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
STATE v. ALMASAUDI 	173
Cite as 282 Neb. 162

2. SuffiCieNCy of evideNCe
[8] 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.30 The Double Jeopardy Clause does not forbid a
retrial so long as the sum of all the evidence admitted by a trial
court would have been sufficient to sustain a guilty verdict.31
We find that Almasaudi’s statements to the police and the cir-
cumstantial evidence against him were sufficient to sustain the
verdict. We therefore reverse the conviction and remand the
cause for a new trial.
3. remaiNiNG aSSiGNmeNtS of error
Almasaudi also argues that the State did not properly estab-
lish 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.
(a) Valuation of Stolen property
[9] 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.32
The plain language of § 28-518(8) requires that the State
must prove, as an element of a theft offense, that the
item stolen has at least some intrinsic value. The statute
does not require that proof of a specific value must be
presented in order for the conviction to be sustained,
although the State must prove the specific value of the
30 See State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
31 See id.
32 State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002).
174 	282 NEBRASKA REpoRTS

stolen property at the time of the theft beyond a reason-
able doubt in order to obtain a conviction for any offense
greater than a Class II misdemeanor.
. . . [W]hile § 28-518(8) now requires that intrinsic
value be proved beyond a reasonable doubt as an element
of the offense, proof of a specific value at the time of the
theft is necessary only for gradation of the offense.33
It has long been the rule in this jurisdiction that the owner
of chattels may testify as to their value in a criminal case.34
Because the owner of the tiller testified to its value, we find
that a rational trier of fact could have found that the tiller had
some value. This is all that is required to support a conviction
on a theft offense. Almasaudi’s argument is therefore with-
out merit.
(b) Rule 404(2) Evidence
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.35
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
33 Id. at 169, 638 N.W.2d at 863 (emphasis in original).
34 State v. Holland, 213 Neb. 170, 328 N.W.2d 205 (1982).
35 State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).
STATE v. ALMASAUDI 	175
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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 admit-
ted the evidence at trial. Almasaudi argues its admission con-
stituted 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 admis-
sibility 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.36 prior to trial, Almasaudi
made a continuing objection to “those matters that were over-
ruled” on the motion in limine. The court granted Almasaudi
a standing objection. The matters contained in the motion in
limine and supplemental motion filed by Almasaudi included
portions of the transcribed interviews and their corresponding
video. We determine that Almasaudi’s continuing objection to
the matters overruled on his motions in limine preserved the
issue for our review.
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 with-
out 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. on appeal, the State argues that the evidence is not
36 State v. Coleman, 239 Neb. 800, 478 N.W.2d 349 (1992).
176 	282 NEBRASKA REpoRTS

part of rule 404(2) coverage, because it forms an integral part
of the crimes charged.37
This court has recognized the rule that prior conduct which
is inextricably intertwined with the charged crime is not con-
sidered extrinsic evidence of other crimes or bad acts and that,
therefore, rule 404 does not apply.38 Evidence of such acts is
sometimes termed “‘same transaction evidence.’”39 We have
applied this exception to rule 404 coverage in cases where the
acts were inextricably intertwined with the charged offense
and committed as part of a continuing crime to carry out the
same objective,40 in furtherance of the same crime spree,41
and to conceal previous crimes,42 and when the conduct was
necessary to show a coherent picture of the facts of the
crime charged.43
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 regard-
ing 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 previ-
ous dealings constitute unrelated acts that were not interwoven
with the charged crimes. Accordingly, we determine the evi-
dence falls under rule 404 coverage, and we address the admis-
sibility of the evidence under rule 404(2).
37 See State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004).
38 Id.
39 See U.S. v. Forcelle, 86 F.3d 838, 841 n.1 (8th Cir. 1996).
40 Id.
41 See State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
42 See id.
43 State v. Baker, supra note 3; State v. Robinson, supra note 41; State v.
Wisinski, supra note 37; State v. McPherson, 266 Neb. 734, 668 N.W.2d
504 (2003); State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002); State
v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).
STATE v. ALMASAUDI 	177
Cite as 282 Neb. 162

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.44 Almasaudi does not argue on appeal that the
State failed to prove by clear and convincing evidence that he
participated in prior dealings with Vandry. Therefore, we do
not address this issue.
[10-13] Rule 404(2) provides:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
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.45 But evidence of other bad acts which is rele-
vant for any purpose other than to show the actor’s propensity
is admissible under rule 404(2).46 Evidence that is offered for
a proper purpose is often referred to as having a “special” or
“independent” relevance, which means that its relevance does
not depend upon its tendency to show propensity.47 An appel-
late court’s analysis under rule 404(2) considers (1) whether the
evidence was relevant for some purpose other than to prove the
character of a person to show that he or she acted in conform-
ity therewith; (2) whether the probative value of the evidence
is substantially outweighed by its potential for unfair prejudice;
and (3) whether the trial court, if requested, instructed the jury
to consider the evidence only for the limited purpose for which
it was admitted.48
44 State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).
45 State v. Baker, supra note 3.
46 See id.
47 Id.
48 Id.
178 	282 NEBRASKA REpoRTS

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 evi-
dence is being offered, and the trial court shall similarly state
the purpose or purposes for which such evidence is received.49
And any limiting instruction given upon receipt of such evi-
dence shall likewise identify only those specific purposes for
which the evidence was received.50
The court overruled Almasaudi’s objection to the admis-
sion 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:
Members of the jury, you have heard statements by . . .
Almasaudi during the interviews by police officers involv-
ing incidents that do not involve the specific charges in
this case such as the use of credit cards by . . . Vandry
and others and the purchase of other property by . . .
Almasaudi from . . . Vandry. This evidence should be con-
sidered by you solely, if at all, to show . . . Almasaudi’s
knowledge or absence of mistake involving the property
which is the subject of the charges in this case.
The jury was also given a written limiting instruction which
read: “During this trial I called your attention to certain evi-
dence 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.51 Normally,
absence of mistake is not at issue unless the defendant claims
49 State v. Sanchez, supra note 44.
50 Id.
51 State v. LaFreniere, supra note 8.
STATE v. ALMASAUDI 	179
Cite as 282 Neb. 162

that his or her conduct in committing the charged crime was
an accident or mistake, or the defendant’s act could be crimi-
nal or innocent depending on the defendant’s state of mind.52
Almasaudi admitted he purchased the items from Vandry,
but essentially argued that he did not know the items were
stolen and that he unintentionally purchased stolen items.53
Accordingly, both knowledge and absence of mistake were at
issue below.
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 charac-
ter 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 numer-
ous 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 deal-
ings 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 rela-
tionship 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 evi-
dence was substantially outweighed by its potential for unfair
prejudice. The incidents admitted into evidence all occurred
52 See, State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007) (citing United
States v. Woods, 484 F.2d 127 (4th Cir. 1973)); State v. Trotter, 262 Neb.
443, 632 N.W.2d 325 (2001).
53 See State v. Trotter, supra note 52.
180 	282 NEBRASKA REpoRTS

within a period of 3 months. As we noted in State v. Floyd,54
such proximity in time suggests a higher probative value than if
the incidents had been more remote in time. The evidence was
relevant to show knowledge, an essential element of the crimes
charged. And the record does not indicate that the taped inter-
views suggested a decision on an improper basis. We therefore
conclude that the probative value of the evidence was not out-
weighed by the potential for unfair prejudice.
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 evi-
dence was to be considered to determine Almasaudi’s knowl-
edge regarding the property at issue in the case.
We conclude that the district court did not abuse its discre-
tion in admitting evidence of Almasaudi’s prior dealings with
Vandry, because the evidence was admitted for the proper pur-
poses of knowledge and absence of mistake. Because we deter-
mine 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).
VI. CoNCLUSIoN
For the foregoing reasons, we determine that Almasaudi was
prejudiced by the court’s erroneous instruction on the defini-
tion 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 .
C oNNolly, J., participating on briefs.
wriGht, J., not participating.
54 State v. Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009).
STATE v. ALMASAUDI 	181
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