NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for York County: James C. Stecker, Judge.
Nancy G. Waldron, York County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.
Moore, Chief Judge, and Pirtle and Bishop, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Ronald D. Noyd appeals his conviction and sentence for conspiracy to commit theft by deception (greater than $1, 500) in the district court for York County. He contends that the evidence was insufficient to convict him of the charge and that his sentence is excessive. Based on the reasons that follow, we affirm in part, vacate the sentence of restitution, and remand with directions.
On August 15, 2013, an employee of Cornerstone Bank in York, Nebraska, contacted the local police department about a deposit made at one of the bank's ATM's. An envelope containing a deposit slip for $4, 190 had been deposited into the ATM for an account belonging to Ricky Turco. The envelope did not contain any cash or check. Immediately after the false deposit was made, money had been withdrawn from the same account. The account had a negative balance when the false deposit and withdrawals were made. The employee provided the police with the deposit envelope, the deposit slip, and still photographs and video surveillance obtained from the ATM's security camera showing the various transactions. The investigation that followed led to the discovery of Noyd's involvement in the crime and his arrest. The apparent motive for the crime was to obtain enough money to post bond for Turco who was in jail at the time.
The State charged Noyd with conspiracy to commit theft by deception (greater than $1, 500), two counts of theft by deception ($500-$1, 500), and attempted theft by deception (greater than $1, 500). The State proceeded to trial against Noyd on the conspiracy charge. The remaining charges were apparently dismissed.
At trial, the State presented multiple witnesses. The State's first witness was York Police Officer John Wilmes, who was the officer who initially spoke with the bank employee and conducted the investigation. Wilmes testified, based on the materials provided to him and his investigation, that on August 13, 2013, at approximately 9:30 p.m., Becky Batterton and another individual (later identified as Noyd), made a false deposit at an ATM and immediately withdrew $500. On August 14, around 12:30 a.m., Batterton and Noyd returned and withdrew another $500. At around 8 a.m., Batterton went to Cornerstone Bank and tried to cash a check written to her for $1, 600 from Ricky Turco, but the bank refused to cash it. Wilmes testified that video surveillance from the bank showed Batterton's transactions at the ATM, as well as another occurrence in which Turco, Batterton, and Noyd returned to the ATM after Turco was released from jail.
Wilmes testified that as part of his investigation, he had access to telephone calls that were recorded by the jail when Turco was incarcerated between August 10 and August 13, 2013. He testified he listened to telephone calls between Turco and an individual named Tina Elliott, and between Turco and Batterton, planning the false deposit and immediate cash withdrawals. He testified that the plans discussed during the telephone conversations were substantially similar to the way the false deposit and withdrawals took place.
Darcy Friesen, the bank employee who contacted Wilmes, also testified. She testified as to how an individual makes an ATM deposit and how and when the false deposit at issue was discovered by the bank. She also testified that the check Batterton tried to cash on August 14, 2013, was not cashed by the teller because the bank had discovered there was an issue with the deposit made the night before.
During Friesen's testimony, the State offered into evidence the surveillance videos from the ATM, as well as still photos from the ATM, showing the various transactions at the ATM involving Batterton and Noyd, as well as the return by Batterton, Noyd, and Turco to ...