State v. Walker , 29 Neb. Ct. App. 292 ( 2020 )

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STATE v. WALKER
Cite as 29 Neb. App. 292State of Nebraska, appellee, v.
Chantell Walker, appellant.
___ N.W.2d ___
Filed December 22, 2020. No. A-19-1026.
1. Rules of Evidence. 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
discretion a factor in determining admissibility.
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, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
3. Rules of Evidence: Hearsay: Appeal and Error. Excluding rulings
under the residual hearsay exception, an appellate court reviews the
factual findings underpinning a trial court’s hearsay ruling for clear
error and reviews de novo the court’s ultimate determination whether the
court admitted evidence over a hearsay objection or excluded evidence
on hearsay grounds.
4. Evidence: Appeal and Error. In reviewing a sufficiency of the evi-
dence claim, whether the evidence is direct, circumstantial, or a com-
bination thereof, the standard is the same: An appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence; such matters are for the finder of fact.
5. Criminal Law: Evidence: Appeal and Error. In reviewing a suffi-
ciency of the evidence claim, the relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
6. Evidence: Records: Hearsay: Proof. The party seeking to admit a
business record under the business records exception to the hearsay
rule bears the burden of establishing foundation under a three-part test.
First, the proponent must establish that the activity recorded is of a type
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Second, the proponent must establish that the record was made as part
of a regular business practice at or near the time of the event recorded.
Third, the proponent must authenticate the record by a custodian or
other qualified witness.
7. Evidence: Records: Hearsay. Firsthand knowledge of the actual record-
ing is not a foundational step to qualifying the record as a business
record, and any lack of firsthand knowledge on the part of the custodian
or other witness who lays foundation for the document goes simply to
its weight.
8. Evidence: Words and Phrases. Unfair prejudice means an undue tend­
ency to suggest a decision based on an improper basis. It speaks to the
capacity of some concededly relevant evidence to lure the fact finder
into declaring guilt on a ground different from proof specific to the
offense charged, commonly on an emotional basis.
Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed in part, and in
part vacated and remanded for resentencing.
Thomas C. Riley, Douglas County Public Defender, Lori A.
Hoetger, and Megan E. Jeffrey for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Moore, Bishop, and Welch, Judges.
Welch, Judge.
I. INTRODUCTION
Chantell Walker was convicted by a jury of theft by decep-
tion in the amount of $1,500 to $5,000. Walker argues the
district court erred in admitting into evidence U.S. Department
of the Treasury payment records (exhibits 14 through 20), a
redeter­mination summary (exhibit 5), and a September 2018
“ruse” interview (exhibit 1). She also contends that the evi-
dence was insufficient to support her conviction. For the rea-
sons set forth herein, we affirm Walker’s conviction but vacate
Walker’s sentence and remand the cause for resentencing.
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Cite as 29 Neb. App. 292II. STATEMENT OF FACTS
1. Charges
In December 2018, the State charged Walker with theft by
deception in the amount of $1,500 to $5,000, a Class IV felony.
See Neb. Rev. Stat. §§ 28-512 and 28-518 (Reissue 2016).
The information alleged that from October 1, 2015, to March
31, 2016, Walker obtained by deception, through her disabled
daughter, between $1,500 and $5,000 of benefits from the
Social Security Administration (SSA).
2. Pretrial Proceedings
Prior to trial, Walker filed motions in limine seeking to
exclude certain pieces of the State’s evidence. Specifically,
Walker sought to exclude an audio recording of a September
2018 “ruse” interview with Walker (exhibit 1), on the bases
that it lacked relevance and that the danger of unfair prejudice
outweighed its probative value. Walker also sought to exclude
Department of the Treasury SSA payment records from 2015
to 2016 (exhibits 14 through 20) on the ground that the records
were not timely disclosed. The district court denied both of
these motions.
3. Trial
At the July 2019 trial, the State called two witnesses:
Melissa Duesman, a technical expert employed by the SSA,
and Matthew Chadderdon, a special agent employed by the
Office of the Inspector General for the SSA. The State also
introduced numerous exhibits into evidence.
Duesman testified that as a technical expert, she had duties
including investigating fraud and misuse cases, and that in
September or October 2017, she received an allegation of mis-
use regarding Walker’s receipt of SSA income benefits for her
disabled daughter on the basis that Walker’s daughter was no
longer in Walker’s custody.
In investigating the allegation of misuse against Walker,
Duesman reviewed various documents within the SSA’s data-
base, including Walker’s daughter’s SSA income record,
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Cite as 29 Neb. App. 292which Duesman described as “a history essentially of the fil-
ing.” This document was received into evidence as exhibit 2
over Walker’s foundation, hearsay, and relevancy objections.
Duesman also reviewed Walker’s August 2010 application to
be the representative payee for supplemental SSA income
benefits for Walker’s disabled daughter, which application was
received into evidence as exhibit 3. In the application, Walker
stated that her daughter lived with her. The application set
forth, in several places, the reporting responsibilities of the
representative payee, including updating the SSA “when the
claimant . . . leaves [the representative payee’s] custody or oth-
erwise changes his/her living arrangements.” In another place,
the application stated that the personal representative must
notify the SSA if “the claimant MOVES or otherwise changes
the place where he/she actually lives.” Walker’s 2010 applica-
tion to be the representative payee for her disabled daughter
was granted.
Duesman also reviewed an October 2015 letter that the
SSA sent to Walker concerning Walker’s failure to submit an
accounting report for the money received from February 2014
to January 2015. Walker responded with a verification form
that included a question of whether the daughter lived with
Walker during the time at issue. Walker responded “no” and
wrote, “As Dec. 14 I still get my daughter every weekend she
goes to my sister house I proved . . . . As I been her need and
want pay all phone bill c[lo]thes tran[sporta]tions need and
more.” Duesman also reviewed a February 2016 redetermina-
tion summary, which was received as exhibit 5 over Walker’s
foundation and hearsay objections. In the redetermination sum-
mary, Walker indicated her address had changed in September
2015 and January 2016, but that her daughter continued to
reside with her.
Following her review of these documents, in mid-October
2017, Duesman informed Walker of the allegation that Walker
had misused her daughter’s SSA income benefits, on the basis
that Walker’s daughter had not lived with Walker during a
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living arrangements. In response, Walker told Duesman that
from 2014 to 2016, Walker’s daughter stayed with her only on
the weekends. This prompted Duesman to request that Walker
provide records establishing that Walker’s daughter lived with
Walker during the relevant time period.
After Walker failed several times to produce the requested
information, in January 2018, Duesman sent a letter to Walker
requesting that Walker provide a statement with proof of
how the SSA benefits were used. Thereafter, in April 2018,
Walker submitted a written statement that included the follow-
ing responses: Walker’s daughter last lived with her in 2015;
Walker used the SSA benefits to pay the phone bill, “send
money,” buy “clothes and highgeans,” and pay for a bus pass;
and Walker lost a lot in a house fire. Walker’s submitted state-
ment did not include any supporting documentation to prove
she used the SSA income benefits to pay the bills claimed.
(a) Exhibits 14 Through 20
During Duesman’s testimony, the State also introduced into
evidence various Department of the Treasury records showing
SSA income benefits payments made to Walker during the rel-
evant time period.
The following colloquy took place between the prosecutor
and Duesman regarding the Department of the Treasury pay-
ment records:
Q. And Ma’am, how are payments generally distributed
from the [SSA] to claimants?
A. Either by check or direct deposit.
Q. And who generally distributes them?
A. The Department of the Treasury on behalf of
[the SSA].
Q. And are you aware of how the entire process works
from the payment amounts stemming from the [SSA]
going over to the Department of the Treasury?
A. Basic understanding, yes. We tell the treasury what
to pay.
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Cite as 29 Neb. App. 292Q. And how do you tell the treasury what to pay[?]
A. It is my understanding that it is [an] interface — a
computer interface.
Q. And is that just generated through a system or does
somebody input those payments?
A. No, it is system generated.
Q. And then after the payment information is sent over
to the Department of the Treasury, what occurs after that?
A. A deposit is made or a check is issued.
Q. A check is immediately issued from the Department
of the Treasury to a claimant?
A. On the date that it is scheduled.
Q. And who schedules that date?
A. It is scheduled by [the SSA].
Q. So, [the SSA] kind of dictates the entire proc­
ess, correct?
A. Yes.
Q. And then the Department of [the] Treasury simply
sends out a check to whoever the claimant is or represent­
ative payee is?
A. Yes.
Q. And Ma’am, are you able to access those records at
all that are under the Department of [the] Treasury?
A. Yes.
Q. And how do you have access to them?
A. Through our security clearance. We go through an
additional security clearance to access Department of
[the] Treasury records that are just [the SSA] records. So
it would be, in this case, my ID, my PIN, my password
gives me access.
Q. And Ma’am, do you access that in the normal course
of your duties as an investigator for the [SSA]?
A. Yes.
Q. And did you access that in your investigation on
this matter?
A. Yes.
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Cite as 29 Neb. App. 292Q. And were you able to determine payment amounts
by accessing that database through the Department of
the Treasury?
A. Yes.
....
Q. Ma’am, I’m handing you what’s been marked as
Exhibit 14. Do you recognize what that document is?
A. Yes.
Q. And how do you recognize what that document is?
A. This is a print out from the Treasury check informa-
tion system, that database from the Treasury.
Q. And this is that database you indicated previously
you had access to, correct?
A. Yes.
At that time, the State offered exhibit 14 and Walker posed
foundation and authentication objections. At a sidebar, Walker’s
counsel argued:
Your Honor, . . . Duesman testified that this is a database
she had access to, not one that she was able to maintain or
enter records into. This is a completely different depart-
ment of the government. It would be fairly similar to if
I was trying to say that I was the custodian of records
for a print out from the court. It is just simply a different
department and I may have access to those records, but
that doesn’t mean I can authenticate them and provide a
proper foundation that they are what they say they are.
And in fact, the exhibit itself at the bottom says it is from
the [Department of the Treasury].
The court then asked the prosecutor if he wanted “to lay
some more foundation,” to which the prosecutor replied:
Your Honor, just in general at this time . . . I would like to
lay some more foundation as well, but . . . Duesman also
indicated how that whole process works. How the [SSA]
is going to dictate the process. That the Department of
[the] Treasury simply sends out the check following the
scheduling that the [SSA] sends to the department at the
time. She said she’s able to access this database. She
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gating these types of matters.
THE COURT: That’s the kind of foundation I didn’t
hear. So, why don’t you ask a few more questions[?]
The prosecutor then continued his colloquy with Duesman:
Q. Ma’am, in regards to your investigation of this mat-
ter, you stated that you were able to access this database
through the Department of the Treasury, correct?
A. Yes.
Q. And you access that throughout the normal course
of business conduct, correct?
A. Yes.
Q. And is that normal business [to] conduct investiga-
tions [into] fraudulent matters similar to this, correct?
A. Yes, in addition to any inquiry regarding a check
from any beneficiary.
Q. So, you have immediate access to this database
[whenever] you would like?
A. Every payment from [the SSA] goes through that
system.
Q. And then as you previously stated, the [SSA] dic-
tates everything other than the check being distributed to
the claimant.
A. Yes, [the SSA] doesn’t actually print or send the
money, but yes.
Q. And the Department of [the] Treasury, that’s what
they do is they print and send the money and that’s it?
A. They print the check and send it via the post office
or send it electronically to the bank that we give them.
Q. And that’s all through your direction, correct?
A. Agency direction, yes.
At that time, Duesman again identified exhibit 14 as a
report documenting the amount of Walker’s supplemental SSA
income issued by the Department of the Treasury to Walker
and obtained from the Department of the Treasury check data-
base, which database Duesman testified she accesses in the
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Cite as 29 Neb. App. 292normal course of business to investigate fraudulent matters.
However, Duesman acknowledged that she could not identify
the acronyms contained in exhibit 14 and that the records are
deposited, stored, and maintained by the Department of the
Treasury. The Department of the Treasury records contained
in exhibits 14 through 20 showed that a total of $4,118.04
had been paid to Walker over the relevant time period. These
Department of the Treasury records were received into evi-
dence as exhibits 14 through 20 over Walker’s foundation
and hearsay objections, as well as Walker’s renewed motion
in limine.
(b) Chadderdon’s Testimony
The State’s second witness, Chadderdon, testified that as a
special agent employed by the Office of the Inspector General
for the SSA, he investigated crimes pertaining to the SSA.
Chadderdon testified that he began his July 2018 investiga-
tion of Walker by reviewing pertinent SSA documents and
by interviewing the custodial father of Walker’s daughter.
Chadderdon learned that the custodial father began receiving
SSA income benefits on behalf of his and Walker’s daughter
in April 2016.
To gather additional information from Walker, Chadderdon
conducted a “ruse” interview of Walker in September 2018.
Chadderdon explained that during a “ruse” interview, he prop-
erly identifies himself but does not provide the specific pur-
pose for the interview, which sometimes helps him obtain
truthful information from a person being investigated for
fraud. Chadderdon testified that he recorded the “ruse” inter-
view of Walker at Walker’s residence. The audio recording of
the interview was received into evidence as exhibit 1, over
Walker’s relevancy and undue prejudice objections, as well
as the renewal of her motion in limine. During the interview,
Walker stated that when she moved to Omaha, Nebraska, in
2015, her daughter’s father obtained “residential custody” of
their daughter, and that their daughter had lived with him for
the past 3 years.
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Cite as 29 Neb. App. 2924. Verdict and Sentencing
At the close of the State’s evidence, Walker moved for
a directed verdict, which motion was denied by the district
court. Walker then rested without presenting any evidence. The
jury found Walker guilty of theft by deception in the amount
of $4,118.04.
At the sentencing hearing held in October 2019, Walker
stipulated that if the district court placed her on probation for
a period of time with a payment of $86 per month, she could
pay that amount. The district court noted it had considered the
information contained in the presentence investigation report
and other relevant factors and sentenced Walker to 4 years
of probation and to pay $4,118.04 in restitution to the SSA.
Walker has timely appealed.
III. ASSIGNMENTS OF ERROR
Walker contends the district court erred in admitting into
evidence (1) the Department of the Treasury records (exhibits
14 through 20), (2) the redetermination summary (exhibit 5),
and (3) the September 2018 “ruse” interview (exhibit 1). She
also contends that the evidence was insufficient to support
her conviction.
IV. STANDARD OF REVIEW
[1,2] 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 discretion a factor in determining admis-
sibility. State v. Martinez, 306 Neb. 516, 946 N.W.2d 445(2020). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. Id.[3] Excluding rulings under the residual hearsay exception,
an appellate court reviews the factual findings underpinning
a trial court’s hearsay ruling for clear error and reviews de
novo the court’s ultimate determination whether the court
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dence on hearsay grounds. See State v. Dady, 304 Neb. 649,
936 N.W.2d 486 (2019).
[4,5] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination
thereof, the standard is the same: An appellate court does not
resolve conflicts in the evidence, pass on the credibility of wit-
nesses, or reweigh the evidence; such matters are for the finder
of fact. State v. Wood, 296 Neb. 738, 895 N.W.2d 701 (2017).
In reviewing a sufficiency of the evidence claim, the relevant
question for an appellate court is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Id.V. ANALYSIS
1. Evidentiary Rulings
on SSA Records
Walker first argues that the district court erred in admitting
into evidence exhibits 14 through 20, which Walker claims
are inadmissible hearsay. Exhibits 14 through 20 are the
Department of the Treasury payment records which purport to
represent the SSA income paid by the department to Walker
from October 1, 2015, through March 1, 2016. The documents
were offered by the State to indicate the amount of funds paid
under the SSA income program to Walker from October 1,
2015, to March 1, 2016, which the State alleges were obtained
by deception.
The State acknowledges that the documents are hearsay
“since they were statements offered to prove the truth of the
matter asserted: that certain payments were made to Walker.”
Brief for appellee at 11. But the State argues that pursuant to
Neb. Rev. Stat. § 27-803(5) (Reissue 2016), the records are
excepted from the general hearsay rule as qualifying busi-
ness records. Stated differently, the State sought to admit
the records from the Department of the Treasury governing
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tion to the hearsay rule.
[6] As the Nebraska Supreme Court held in State v. Robinson,
272 Neb. 582, 613-14, 724 N.W.2d 35, 64-65 (2006), abro-
gated on other grounds, State v. Thorpe, 280 Neb. 11, 783
N.W.2d 749 (2010):
Pursuant to Neb. Evid. R. 803(5), Neb. Rev. Stat.
§ 27-803(5) (Cum. Supp. 2004), the following is not
excluded by the hearsay rule: “A memorandum, report,
record, or data compilation, in any form, of acts, events,
or conditions, other than opinions or diagnoses, made at
or near the time of such acts, events, or conditions, in
the course of a regularly conducted activity, if it was the
regular course of such activity to make such memoran-
dum, report, record, or data compilation at the time of
such act, event, or condition, or within a reasonable time
thereafter, as shown by the testimony of the custodian or
other qualified witness unless the source of information
or method or circumstances of preparation indicate lack
of trustworthiness.”
The party seeking to admit a business record under
this exception to the hearsay rule bears the burden of
establishing foundation under a three-part test. First, the
proponent must establish that the activity recorded is of
a type that regularly occurs in the course of the business’
day-to-day activities. Second, the proponent must estab-
lish that the record was made as part of a regular business
practice at or near the time of the event recorded. Third,
the proponent must authenticate the record by a custodian
or other qualified witness. See, Misle v. Misle, 247 Neb.
592, 529 N.W.2d 54 (1995); State v. Wright, 231 Neb.
410, 436 N.W.2d 205 (1989).
Accordingly, in order to have these records admitted under
this exception, the State had the burden of laying foundation
under this three-part test. Acknowledging the responsibility to
do so, the State points to the testimony of Duesman, a techni-
cal expert employed by the SSA, and argues as follows:
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established the applicability of the business records
exception. Duesman testified that the payments were dis-
tributed by the [Department of the Treasury] on behalf
of the SSA. . . . Duesman explained that she had a
“basic understanding” of how that process worked, that
SSA told [the Department of the Treasury] what to pay
(through a computer interface) and then [it] automatically
made the deposit or issued the check on the scheduled
date. . . . Duesman explained further that “[e]very pay-
ment from [the SSA] goes through that system,” . . . and
the clear implication was that records of each payment
were made at or near the time of payment. . . . Finally,
although Duesman might not have been a “custodian”
of the records, a custodian is not required; § 27-803(5)
says that the requisite foundation may be established
“by the testimony of the custodian or other qualified
witness.” Duesman was an “other qualified witness,” as
she had access to and dealt with these types of records
regularly as part of her duties as a technical expert. . . .
Accordingly, the State established the applicability of the
business records exception and the district court therefore
did not err in overruling Walker’s hearsay objection.
Brief for appellee at 12-13.
Contrary to the State’s argument, there is no testimony
in the record from anyone which establishes that the reports
offered as exhibits 14 through 20 were made as a part of a
regular business practice by the Department of the Treasury
at or near the time that the payments were made. In short,
the State attempts to fulfill its foundation obligations here
through the testimony of an SSA employee, not a Department
of the Treasury employee, who stated she has “access” to the
Department of the Treasury database in which the report was
generated. That SSA employee, Duesman, testified she gener-
ated these reports because she has access to the Department of
the Treasury database and testified to a general understanding
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Treasury database. But in rendering this testimony, Duesman
failed to provide specific testimony governing the second foun-
dation requirement for the business records exception to apply;
nor did she establish whether she had enough familiarity with
the Department of the Treasury records to lay that foundation
even if she was asked.
In arguing that Duesman was a “‘qualified witness’” that
had “access to and dealt with these types of records regularly
as part of her duties as a technical expert,” brief for appel-
lee at 13, the State appears to be arguing for application of
§ 27-803(5)(b), which provides:
A memorandum, report, record, or data compilation, in
any form, of acts, events, or conditions, other than opin-
ions or diagnoses, that was received or acquired in the
regular course of business by an entity from another
entity and has been incorporated into and kept in the
regular course of business of the receiving or acquiring
entity; that the receiving or acquiring entity typically
relies upon the accuracy of the contents of the memo-
randum, report, record, or data compilation; and that the
circumstances otherwise indicate the trustworthiness of
the memorandum, report, record, or data compilation, as
shown by the testimony of the custodian or other quali-
fied witness. Subdivision (5)(b) of this section shall not
apply in any criminal proceeding.
Although Duesman’s testimony—that as a member of the
fraud unit, she has access to the Department of the Treasury
database and regularly uses these reports in her analysis—
might qualify as an exception to the hearsay rule under
§ 27-803(5)(b), this rule clearly, on its face, does not apply
to criminal proceedings. Accordingly, regardless of her use
of these reports in the past, the State here was required to
independently establish the foundational requirements under
§ 27-803(5)(a) in order to qualify these reports as business
records. Duesman’s indication that she gained access to the
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in the past does not establish the very specific foundational
requirements for the business records exception to apply.
The State urges this court to consider its ruling in State v.
Ford, 1 Neb. App. 575, 501 N.W.2d 318 (1993), and argues the
facts in Ford are analogous to its own. In Ford, an employee
of a hotel testified that he obtained computer-generated records
which recorded the date, time, and card identification of per-
sons obtaining access to certain hotel rooms. In holding that
the employee provided sufficient foundation to admit the
records under the business records exception, the court rejected
the appellant’s argument that the employee had an insufficient
understanding of the computer’s component parts or engineer-
ing, holding:
In the case at bar, [the employee] explained how the
computer system worked and testified that the computer
instantaneously recorded the opening of every guestroom
door on the property. Her testimony indicated that she
was proficient at retrieving and printing out information
stored in the computer system. [The employee’s] situation
is analogous to that of the records custodian in [State v.]
Estill[, 13 Kan. App. 2d 111, 764 P.2d 455 (1988),] or the
officer, referred to in Estill, who uses a radar device. The
record on appeal shows that [the employee] was trained
and competent in the use of the computer system. For
purposes of foundation, it did not matter whether [the
employee] could discuss the components or engineering
principles of the computer. [The employee] was qualified
to testify about the computer system and authenticate the
system’s printouts. The third requirement of the business
records exception was satisfied.
State v. Ford, 1 Neb. App. at 580, 501 N.W.2d at 321. Most
notably, Ford can be distinguished from the instant case because
of the employee’s testimony which established the foundational
elements for the admission of the business records. That did
not occur here.
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Cite as 29 Neb. App. 292We hold that the district court erred in admitting exhibits
14 through 20 following Walker’s hearsay objections. We
will address the impact of the court’s error in admitting those
exhibits in the final section of this opinion, where we discuss
Walker’s argument that there was insufficient evidence to sup-
port her conviction.
2. Evidentiary Rulings on
Redetermination
Summary
Walker next argues the district court erred in admitting the
February 2016 redetermination summary, admitted as exhibit
5, because the State failed to lay proper foundation and the
exhibit contains hearsay within hearsay. More specifically, as
to foundation, Walker contends the State failed to establish
the foundational requirements of the business records excep-
tion insofar as Duesman was not a custodian of records or
other witness qualified to lay foundation, because she did not
explain how the SSA maintains and stores records such as the
February 2016 redetermination summary (exhibit 5), and as a
result, exhibit 5 does not satisfy the business records excep-
tion, preventing its admissibility. As to “‘[h]earsay . . . within
hearsay,’” Walker argues that although a statement within the
redeter­mination summary purports to be Walker’s statement,
which would be allowable under the “party-opponent excep-
tion” to the hearsay rule, Duesman could not establish Walker
made the statement within the record, because she did not con-
duct the interview. Brief for appellant at 19. We will address
these arguments separately.
First, we look to determine whether Duesman was suf-
ficiently qualified to lay foundation for exhibit 5 under the
business records exception. As to Walker’s claim, Duesman,
a technical expert employed by the SSA, testified to her
familiarity with the report in question. She further testified
that it is a common practice or activity for SSA employees to
perform these “[r]edetermination reviews” in the office or by
telephone; for the employees to input the questions and the
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are stored; and for the employees to either print a copy of the
summary of the questions and answers to give directly to the
interviewee or mail a copy later. Because of her familiarity
with the activity, the process, and the report, Duesman clearly
represents a witness qualified to lay foundation for this record
and appropriately established foundation under the three-part
test we previously specified.
As to the statement of Walker herself within that report
constituting hearsay within hearsay, Neb. Rev. Stat. § 27-805(Reissue 2016) provides that “[h]earsay included within hear-
say is not excluded under the hearsay rule if each part of the
combined statements conforms with an exception to the hear-
say rule provided in these rules.” Because we have already
found that the report designated as exhibit 5 was a business
record excluded from the hearsay rule under § 27-803(5), we
now address whether Walker’s statements captured within the
report are subject to another exception.
According to Neb. Rev. Stat. § 27-801(4)(b) (Reissue 2016),
a statement is not hearsay if
[t]he statement is offered against a party and is (i) his
own statement, in either his individual or a representative
capacity, or (ii) a statement of which he has manifested
his adoption or belief in its truth, or (iii) a statement by
a person authorized by him to make a statement concern-
ing the subject, or (iv) a statement by his agent or servant
within the scope of his agency or employment, or (v) a
statement by a coconspirator of a party during the course
and in furtherance of the conspiracy.
(Although § 27-801 was amended in 2019, the amendment was
not effective until September 1, 2019, which was after the trial
in this case.)
[7] Walker acknowledged this rule and conceded it would
otherwise qualify her statements as nonhearsay, but claims the
rule does not apply because Duesman herself, who laid foun-
dation for the record which includes the statement, did not
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§ 27-803(5)(a), which provides in relevant part: “The circum-
stances of the making of such memorandum, report, record, or
data compilation, including lack of personal knowledge by the
entrant or maker, may be shown to affect its weight.” In other
words, firsthand knowledge of the actual recording is not a
foundational step to qualifying the record as a business record
and any lack of firsthand knowledge on the part of the custo-
dian or other witness who lays foundation for the document
goes simply to its weight. See Doe v. Gunny’s Ltd. Partnership,
256 Neb. 653, 663, 593 N.W.2d 284, 291 (1999) (holding
“[p]ursuant to § 27-803(5), ‘[t]he circumstances of the mak-
ing of such memorandum, report, record, or data compilation,
including lack of personal knowledge by the entrant or maker,
may be shown to affect its weight’; however, such factors do
not prohibit admission of the evidence”).
Because the statement within the report designated as exhibit
5 qualifies as a statement of a party opponent offered against
Walker under § 27-801(4)(b), the statement is not hearsay and
her argument fails.
3. Evidentiary Rulings on
“Ruse” Interview
Walker next asserts the district court erred in admitting the
“ruse” interview (exhibit 1), over her relevancy objection and
her claim that the exhibit was unfairly prejudicial in violation
of Neb. Rev. Stat. § 27-403 (Reissue 2016). Walker argues that
whether Walker’s daughter lived with her in 2018 is not rel-
evant to the allegations of Walker’s theft beginning in October
2015 and was unduly prejudicial.
Relevant evidence is defined as “evidence having any tend­
ency to make the existence of any fact that is of consequence
to the determination of the action more probable or less prob-
able than it would be without the evidence.” Neb. Rev. Stat.
§ 27-401 (Reissue 2016). “Relevancy requires only that the
probative value be something more than nothing.” State v.
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relevant, 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, or by consider-
ations of undue delay, waste of time, or needless presentation
of cumulative evidence.” § 27-403.
In State v. Munoz, 303 Neb. at 82, 927 N.W.2d at 36, the
Nebraska Supreme Court articulated the “low bar” for estab-
lishing relevancy. In Munoz, the defendant was convicted of
murder, and on appeal, the Nebraska Supreme Court was asked
to decide whether the blood spatter evidence was relevant to
the case. The Nebraska Supreme Court determined:
The blood spatter evidence satisfied the low bar for
establishing relevancy. It showed the brutal nature of
[the] death, which was consistent with the State’s theory
that [the defendant] believed [the victim] was “cheating
on” him and “react[ed] violently.” This alone satisfies the
minimal requirement that the probative value of the evi-
dence be something more than nothing.
Id. at 82-83, 927 N.W.2d at 36-37.
Here, the “ruse” interview contained Walker’s statements
that the father obtained custody of Walker’s daughter when
Walker moved to Omaha in 2015 and that Walker’s daughter
lived with the father for the past 3 years. Walker’s statements
in the “ruse” interview contradict the information she submit-
ted to the SSA in exhibit 5, the redetermination summary.
Accordingly, the “ruse” interview is relevant because it is
consistent with the State’s theory that Walker failed to inform
the SSA of her daughter’s living arrangements, which fail-
ure resulted in the SSA’s providing Walker with SSA income
benefits. Therefore, the district court did not err in overruling
Walker’s relevance objection.
[8] “Although relevant, 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, or by considerations of undue delay, waste of time,
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“Unfair prejudice means an undue tendency to suggest a deci-
sion based on an improper basis. It speaks to the capacity
of some concededly relevant evidence to lure the fact finder
into declaring guilt on a ground different from proof specific to
the offense charged, commonly on an emotional basis.” State
v. Munoz, 303 Neb. at 83, 927 N.W.2d at 37. As explained
previously, the “ruse” interview contained Walker’s statements
that her daughter lived with the father, which were inconsistent
with the information she provided to the SSA. Although this
evidence was prejudicial to Walker, it was not unfairly preju-
dicial, as its relevancy most certainly outweighed any concern
that the information provided might lead to a finding of guilt
on a different ground. Accordingly, the district court did not
err in overruling Walker’s objection; we find no merit to this
assigned error.
4. Insufficiency of Evidence
Lastly, Walker contends that the evidence was insufficient to
support her conviction. Specifically, she argues the State failed
to establish that Walker reinforced or created a false impression
which “induced the SSA to part with [its] property.” Brief for
appellant at 23.
Walker was convicted of theft by deception in the amount
of $1,500 to $5,000, pursuant to § 28-512 and to § 28-518.
Section 28-518(2) provides that “[t]heft constitutes a Class IV
felony when the value of the thing involved is one thousand
five hundred dollars or more but less than five thousand dol-
lars.” The relevant portion of § 28-512 states:
A person commits theft if he obtains property of another
by deception. A person deceives if he intentionally:
(1) Creates or reinforces a false impression, including
false impressions as to law, value, intention, or other state
of mind; but deception as to a person’s intention to per-
form a promise shall not be inferred from the fact alone
that he did not subsequently perform the promise; or
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would affect his judgment of a transaction; or
(3) Fails to correct a false impression which the deceiver
previously created or reinforced, or which the deceiver
knows to be influencing another to whom he stands in a
fiduciary or confidential relationship[.]
The record established that in 2010, when Walker applied to
be her daughter’s representative payee, she indicated that her
daughter lived with her. Part of the application included a state-
ment notifying Walker that she was required to notify the SSA
of the occurrence of certain events including “when the claim-
ant . . . leaves [the representative payee’s] custody or otherwise
changes his/her living arrangements.” In another place, the
application stated that the personal representative must notify
SSA if “the claimant MOVES or otherwise changes the place
where he/she actually lives.” The State then offered evidence
which indicated Walters was made her disabled daughter’s
SSA benefit payee on the basis of these specific representa-
tions. Although Walker informed the SSA that her daughter did
not live with her from February 1, 2014, to January 31, 2015,
in February 2016, Walker indicated her address had changed
in September 2015 and January 2016, but noted her daughter
continued to live with her.
In October 2017, Walker informed Duesman that from
2014 to 2016, Walker’s daughter stayed with her only on
the weekends. Walker made similar statements during the
September 2018 “ruse” interview, including that when Walker
moved to Omaha in September 2015, her daughter’s father
obtained “residential custody” of their daughter, who had
lived with him for the past 3 years. It is clear from the record
that Walker’s daughter’s living and custodial arrangements
changed for the time period relevant to the State’s charge, but
that Walker did not inform the SSA as required. This resulted
in Walker’s continuing to receive SSA income benefits as
her daughter’s representative payee on the basis of a false
impression. Further, notwithstanding the SSA’s request that
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to her from September 2015 through March 2016 on behalf of
her disabled daughter, Walker failed to do so. This evidence
further corroborates that the benefits paid to Walker for the
benefit of her daughter were not used for her daughter, which
reinforces she created a false impression with the SSA that she
was receiving those benefits on her disabled daughter’s behalf.
Walker’s April 2018 submitted statement did not include any
supporting documentation to prove she used the SSA benefits
to pay the bills claimed.
Notwithstanding the above, without the benefit of exhib-
its 14 through 20 in the record, which we have determined
were erroneously received into evidence by the district court,
the State failed to prove the exact amount of benefits paid to
Walker within the relevant timeframe. In fact, Duesman testi-
fied that she established the amount paid by the Department
of the Treasury to Walker only by reviewing those documents.
Although certain admissions by Walker in the record establish
that she received some value in the relevant timeframe, the
State has failed to prove how much.
The State charged Walker with theft by deception, in vio-
lation of § 28-512. Specifically, the State sought to grade
Walker’s theft under § 28-518(2), which provides that “[t]heft
constitutes a Class IV felony when the value of the thing
involved is one thousand five hundred dollars or more but less
than five thousand dollars.” Further, § 28-518(8) provides that
“[i]n 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.”
Here, as explained above, the State successfully proved the
elements of § 28-512 and proved that Walker obtained value
for her deception, albeit having failed to prove the specific
amount of value because of our ruling governing exhibits 14
through 20.
A similar scenario occurred in State v. Gartner, 263 Neb.
153, 638 N.W.2d 849 (2002), wherein the State successfully
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to prove the value of one of the items of property stolen (a fax
machine), the State provided inadmissible evidence to support
the actual value of the property, thus failing to satisfy its bur-
den to support a gradation of the theft as a Class IV felony. As
a result, the Nebraska Supreme Court held:
In the instant case, while the State failed to pre­
sent evidence sufficient to support the jury’s conclusion
regarding the $525 value of the fax machine at the time
of the theft, the evidence does establish beyond a reason-
able doubt that the fax machine had some intrinsic value
that translated to at least nominal market value at the
time of the theft. Compare State v. Garza, 241 Neb. 256,
487 N.W.2d 551 (1992)[, disapproved on other grounds,
State v. Dixon, 306 Neb. 853, 947 N.W.2d 563 (2020)].
Consequently, the evidence is sufficient to support [the
defendant’s] conviction for theft. However, because the
evidence of specific value at the time of the theft is not
sufficient to support the gradation of the theft as a Class
IV felony, [the defendant’s] sentence on count VII must
be vacated, and the cause remanded for imposition of an
appropriate sentence for a Class II misdemeanor, pursuant
to § 28-518(4). See Garza, supra.State v. Gartner, 263 Neb. at 170, 638 N.W.2d at 863.
We likewise vacate Walker’s sentence here and remand the
cause for imposition of an appropriate sentence for a Class II
misdemeanor. See § 28-518(4).
VI. CONCLUSION
For the foregoing reasons, we affirm Walker’s convic-
tion and vacate Walker’s sentence and remand the cause for
resentencing.
Affirmed in part, and in part vacated
and remanded for resentencing.