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Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge.
Joe Nigro, Lancaster County Public Defender, and Yohance Christie for appellant.
Douglas J. Peterson, Attorney General, and George R. Love for appellee.
MOORE, Chief Judge, and IRWIN and INBODY, Judges.
[23 Neb.App. 562] Irwin, Judge.
Clinton Brooks appeals his convictions and sentences for theft by deception and the unauthorized practice of law. On appeal, Brooks argues that the district court erred in failing to allow testimony regarding a witness' reputation for untruthfulness, that the district court erred when it did not allow the testimony of four character witnesses on Brooks' behalf, that there was insufficient evidence to sustain his conviction for the unauthorized practice of law, that the district court provided erroneous instructions to the jury on the unauthorized [23 Neb.App. 563] practice of law, that there was insufficient evidence to sustain his conviction for theft by deception, that the district court violated Brooks' right to allocution, that the district court considered improper evidence at the sentencing hearing, that Brooks received excessive sentences, that the district court erred in not granting Brooks' motion for a new trial, and that Brooks' trial counsel was ineffective.
Upon our review, we find that the district court erred in providing incorrect instructions to the jury with respect to the statute of limitations for the unauthorized practice of law. We reverse, and remand for a new trial on the unauthorized practice of law conviction. We find no merit to Brooks' other assertions on appeal. Accordingly, we affirm Brooks' conviction and sentence for theft by deception.
On September 26, 2013, Brooks was charged by information with theft by deception involving $500 to $1,500. On December 11, the State amended the information to include a second charge of the unauthorized practice of law.
The events giving rise to this case began in the fall of 2011 in Lincoln, Nebraska, when Joshua Jordan Fitzgerald began contemplating dissolving his marriage. At the time, Joshua was 19 years old and had an infant son with his wife. Joshua and his mother, Sharon Fitzgerald, began looking for an attorney to help Joshua obtain a divorce and gain custody of his son. Despite meeting with two or three attorneys for consultations, Joshua and Sharon did not retain an attorney because they could not afford the fees.
While Joshua and Sharon were looking for an attorney, Sharon became aware that Brooks offered assistance to people with their legal problems. Sharon knew Brooks because he often came to her place of employment, George's Auto Sales, a car dealership and garage. Brooks was not and had never been an attorney licensed by the State of Nebraska. Brooks operated a business named " P.U.R.G.E., INC, People Utilizing Resources Gaining Education"
(P.U.R.G.E.). P.U.R.G.E. [23 Neb.App. 564] purported to help low-income individuals proceed pro se through the legal system by providing research assistance and guidance.
According to Sharon, Brooks offered to help Joshua with his divorce. Joshua and Sharon knew Brooks was not an attorney, but they hired Brooks because he offered to handle the paperwork for them for $1,500. On December 8, 2011, Sharon paid Brooks $750. Between December 2011 and April 2012, Joshua paid Brooks an additional $750 in $100 installments every 2 weeks.
On December 15, 2011, a complaint for dissolution of marriage listing Joshua as the plaintiff was filed in the district court for Lancaster County. A motion for ex parte order for temporary custody and a motion for leave to proceed in forma pauperis were also filed on Joshua's behalf. Joshua and Sharon, as well as Brooks, dispute whether Brooks drafted and filed these pleadings or whether Joshua and Sharon did.
On January 6, 2012, Joshua, Sharon, Joshua's father, and Brooks went to the Lancaster County District Court for a hearing. Brooks sat in the back of the courtroom. The hearing did not take place, because Joshua's wife had continued the proceedings. It later became apparent that Joshua's wife had filed for dissolution of marriage before Joshua had and that the January 6 hearing was for the case involving the wife's complaint for dissolution of marriage, not Joshua's. The wife's attorney had continued the hearing because Joshua had not yet been served. Although it is not entirely clear from the record, it appears that Joshua's complaint for dissolution of marriage was eventually returned to him due to the fact that Joshua's wife had already filed a complaint.
On January 13, 2012, there was another hearing in the dissolution of marriage case filed by Joshua's wife. At this hearing, Joshua and his wife presented evidence on temporary custody. The judge took the matter under advisement. On February 13, the court issued a written order granting temporary custody to Joshua's wife.
[23 Neb.App. 565] On March 5, 2012, a notice of appeal from the temporary custody ruling was filed on Joshua's behalf. The notice of appeal was accompanied by a motion to proceed on appeal in forma pauperis. On March 8, a motion to reconsider the temporary custody ruling was filed in the district court. Joshua and Sharon, as well as Brooks, dispute whether Brooks drafted and filed the appeal and motion to reconsider or whether Joshua and Sharon did. On April 13, the district court denied the motion for reconsideration, indicating it no longer retained jurisdiction over the case because Joshua had filed an appeal. Around June 4, Joshua received a letter dismissing the appeal. Joshua eventually hired an attorney in September 2012.
The attorney Joshua retained learned about Brooks' actions in the case, and the attorney's law firm notified the Nebraska State Bar Association, which referred the case involving Brooks to the Lancaster County Attorney. Brooks was consequently charged with theft by deception and the unauthorized practice of law.
A trial on the theft by deception and the unauthorized practice of law charges against Brooks was held from October 14 to 17, 2014. At the trial, Joshua testified that Sharon had first arranged for Joshua to meet with Brooks in early December 2011. At their first meeting, Brooks said he could " do the paperwork" for Joshua's divorce and custody case. Joshua testified that Brooks drafted and gave Joshua the completed complaint for dissolution of marriage and motion for ex parte order for
temporary custody. According to Joshua, he signed the pleadings and returned them to Brooks. Joshua also testified that Brooks prepared the notice of appeal and the motion to reconsider. Joshua testified that he never personally filed any pleadings with the district court.
According to Joshua, after he received notice that the appeal had been dismissed, he called Brooks to make an appointment. Joshua testified that he called Brooks in " mid June to late June" and met with Brooks thereafter. At this meeting, Joshua and Brooks discussed " continuing the case." Brooks [23 Neb.App. 566] advised Joshua to read some books " so [he] could better represent [him]self." Joshua testified that he had given up hope on Brooks, but that during the meeting, Brooks indicated he would continue to work on the case. Joshua testified that " the basic plan was just to do appeals."
Sharon also testified at the trial. Sharon testified that when she paid Brooks the $750 on December 8, 2011, she relied on his statement that he was a paralegal and that he would " handle all of the paperwork." Sharon testified she did not draft the complaint for dissolution of marriage, the motion for ex parte order for temporary custody, the motion for leave to proceed in forma pauperis, or the notice of appeal. Sharon also testified that she never filed any pleadings with the clerk of the court.
Sharon testified that after Joshua's appeal was dismissed, she also contacted and met with Brooks, separately from Joshua. According to Sharon, she first spoke with Brooks by telephone sometime after July 15, 2012. During this telephone conversation, Sharon expressed her frustration with Brooks and with how the case had proceeded. Sharon testified that during the telephone conversation, Brooks said " [they] would continue and get more paperwork filed."
Sharon testified she also met with Brooks in person after their telephone conversation. During the meeting, Sharon and Brooks discussed " [t]he paperwork that needed to be continued" and " which document [Brooks] wanted to file next." Sharon testified that she did not know what Brooks wanted to file, but stated, " I just know that there [were] more papers to file."
Brooks testified in his own defense. According to Brooks, he never claimed to be an attorney or a paralegal in his interactions with Joshua and Sharon. Brooks testified that he told Joshua and Sharon he could not represent them in court or file documents for them. Brooks' testimony was that he offered to help " navigate [Joshua and Sharon] through the judicial system." Brooks testified that he gave Joshua and Sharon advice [23 Neb.App. 567] on styling the pleadings, but that he never drafted or filed any of the pleadings himself. According to Brooks, he advised Joshua and Sharon not to appeal the temporary custody ruling because it was not a final order. Brooks testified that he did not draft the motion to reconsider, but that he did review it and advised Sharon to make some changes to the motion before filing it.
After the trial, the jury found Brooks guilty of theft by deception and the unauthorized practice of law. The court sentenced Brooks to 15 to 35 months' imprisonment on the theft by deception conviction and 3 to 3 months' imprisonment on the unauthorized practice of law conviction, to be served consecutively. Brooks appeals from his convictions and sentences. Additional facts will be discussed, as necessary, in the analysis section of this opinion.
III. ASSIGNMENTS OF ERROR
On appeal, Brooks assigns numerous errors. Restated and renumbered, those assigned errors are that (1) the district court erred in failing to allow testimony regarding Sharon's reputation for untruthfulness; (2) the district court erred when it did not allow four witnesses to testify about their prior positive interactions with Brooks nor to testify that Brooks never told them he was a paralegal; (3) there was insufficient evidence to sustain Brooks' conviction for the unauthorized practice of law because the evidence the State presented to support the conviction fell outside the statute of limitations; (4) the district court erred when it provided a jury instruction that allowed the jury to consider evidence outside the statute of limitations on the unauthorized practice of law charge; (5) there was insufficient evidence to sustain Brooks' conviction for theft by deception; (6) the district court violated Brooks' right to allocution when it refused to allow Brooks' wife to speak at the sentencing hearing; (7) the district court abused its discretion because when sentencing Brooks, it considered three letters from attorneys regarding Brooks' actions; (8) the sentences Brooks received were excessive; (9) the district court erred in [23 Neb.App. 568] not granting Brooks' motion for new trial; and (10) Brooks' trial counsel was ineffective.
1. Testimony Regarding Sharon's Reputation for Untruthfulness
Brooks argues the district court erred when it excluded the testimony of one of Brooks' witnesses, Christine Johnson, as to Sharon's reputation for untruthfulness. Brooks argues that Johnson's testimony was admissible under Neb. Evid. R. 608, Neb. Rev. Stat. § 27-608 (Reissue 2008). Brooks failed to lay the proper foundation for the admission of Johnson's testimony regarding Sharon's untruthfulness. We find this assertion to be without merit.
An appellate court reviews the trial court's conclusions with regard to evidentiary foundation for an abuse of discretion. State v. Richardson, 285 Neb. 847, 830 N.W.2d 183 (2013). Rule 608 allows the credibility of a witness to be attacked by evidence in the form of reputation or opinion, but such evidence may refer only to the witness' character for truthfulness or untruthfulness. State v. Eldred, 5 Neb.App. 424, 559 N.W.2d 519 (1997). The reputation of a witness for truthfulness or untruthfulness must be proved by a witness qualified by an opportunity to obtain knowledge of it. Id. Phrased another way, testimony regarding a witness' reputation for truthfulness or untruthfulness is admissible only after proper foundation has been laid. See id.
At the trial, Brooks called Johnson to the stand. Johnson testified that she worked at George's Auto Sales with Sharon and had known Sharon since 2011. According to Johnson, she had contact with Sharon " [o]n the days that [Sharon] would work." Johnson also testified that she had come into contact with other people who worked with Sharon. Brooks' attorney then asked, " As a result of your working with [Sharon], do you have an opinion as to her reputation for truthfulness and veracity in the work community?" Johnson indicated she did have an opinion as to Sharon's reputation for truthfulness. Brooks' attorney [23 Neb.App. 569] asked whether Johnson's opinion of Sharon's reputation was " good or bad," and the State objected on relevance grounds. The court sustained the objection " on foundation."
After the court sustained the objection, there was a sidebar with both Brooks' attorney and the prosecutor. The court
elaborated that foundation was lacking because Johnson " ha[d] not testified as to [Sharon's] reputation in the community." The court stated, " Now, maybe she has lied to this witness on an occasion, again, I'm not sure that that's relevant. But [Johnson] certainly has not laid the foundation to show that Sharon . . . has a character of not being honest."
After the sidebar, Brooks' attorney had the following exchange with Johnson:
[Brooks' attorney:] As a result of working in the same community as [Sharon], have you had an opportunity to come to an understanding after interacting with other individuals in the working area as to what the reputation of Sharon . . . is for truth and veracity in that community? Yes or no.
[Johnson:] So are you asking me do I have an opinion about her truth and veracity or what is my opinion?
Q. Do you have an opinion as to what her reputation is in the community.
A. Yes. I do, yes, sir.
Q. For truth and veracity?
A. Yes, sir, I do.
Q. And is that good or bad?
[The State]: I'm going to ...