Statutes: Appeal and Error. Statutory
interpretation is a question of law that an appellate court
resolves independently of the trial court.
Convictions: Evidence: Appeal and Error.
When reviewing a criminal conviction for sufficiency of the
evidence to sustain the conviction, 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. In reviewing a criminal
conviction, an appellate court does not resolve conflicts in
the evidence, pass on the credibility of witnesses, or
reweigh the evidence. Those matters are for the finder of
Criminal Law: Statutes: Appeal and Error. It
is a fundamental principle of statutory construction that
courts strictly construe penal statutes, and it is not for
the courts to supply missing words or sentences to make clear
that which is indefinite, or to supply that which is not
Statutes: Intent. In construing a statute, a
court must look to the statutory objective to be
accomplished, the evils and mischiefs sought to be remedied,
and the purpose to be served, and then must place on the
statute a reasonable or liberal construction that best
achieves the statute's purpose, rather than a
construction that defeats the statutory purpose.
Theft: Value of Goods. Whether amounts are
taken pursuant to one scheme or course of conduct is relevant
not to whether the defendant is guilty of the underlying
theft offense, but solely to whether the values of multiple
stolen items can be aggregated for purposes of grading the
Neb. 163] 6. Theft: Value of Goods:
Proof. Although Neb. Rev. Stat. § 28-518(8)
(Cum. Supp. 2014) requires some value to be proved as an
element of a theft offense, the statutory language does not
require proof of a particular threshold value.
Theft: Value of Goods: Words and Phrases. A
finding of "one scheme or course of conduct" is not
an essential element of the offense of theft, even when the
State is attempting to aggregate amounts pursuant to Neb.
Rev. Stat. § 28-518(7) (Cum. Supp. 2014).
from the District Court for Seward County: James C. Stecker,
B. Creager, of Anderson, Creager & Wittstruck, PC,
L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and George R. Love for
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and Kelch, JJ.
L. Duncan was accused of unlawfully taking two items
belonging to Hymark Towing (Hymark), a Chevrolet Tahoe and a
combine trailer. Rather than being charged with two Class IV
felonies (theft by unlawful taking, more than $500 but less
than $1, 500), Duncan was charged with one Class III felony
(theft by unlawful taking, more than $1, 500) under the
theory that the values of the Tahoe and the combine trailer
could be aggregated, pursuant to Neb. Rev. Stat. §
28-518(7) (Cum. Supp. 2014), because they were "pursuant
to one scheme or course of conduct." The jury found
Duncan guilty of unlawfully taking both items, but made a
special finding that the items were not taken pursuant to one
scheme or course of conduct. On the jury's verdict, the
district court found that Duncan was guilty of a Class IV
felony (theft by unlawful taking, more than $500 but less
than $1, 500). Duncan appeals. We affirm.
Neb. 164] FACTS
Stava owned and operated Hymark, a full-service lockout and
towing business. As part of the business, Monte sometimes
sold unclaimed vehicles in satisfaction of towing and storage
debts pursuant to Neb. Rev. Stat. § 60-2404 (Reissue
2010). In order to sell the vehicles, Hymark had to obtain
titles to the abandoned vehicles, which could be done through
a sheriff's office.
battled cancer for about 8 years before he passed away in
November 2011. Before his death, there were times when Monte
was extremely ill and his friends and relatives "pitched
in" to help run the business. One of those friends was
Monte passed away, Duncan began handling the day-to-day
operations. Monte's widow, Kasey Stava, decided to try to
continue Hymark. Kasey's mother had been acting as the
bookkeeper for Hymark prior to Monte's death, and after
Monte's death, she wanted to set up a payroll account.
She contacted Duncan and asked him what he would need moving
forward. The parties agreed that Duncan would make $500 per
week, plus $200 per "crush load."
parties dispute whether Hymark was behind on paying Duncan
for the work he performed before Monte's death. The
bookkeeper testified that prior to Monte's death, none of
the people assisting Monte received a regular salary.
Hymark's checking account reflects that Duncan was paid
$400, $500, and $4, 000 in February, June, and December 2011,
respectively, but there was no evidence as to the amount of
work Duncan was performing during those times.
February 2013, the parties had a falling out, and either
Duncan quit Hymark or his employment was terminated. In March
or April, Kasey sold Hymark to a new owner.
claims that in exchange for his help at Hymark, Monte gave
him a heavily damaged Tahoe that had been [294 Neb. 165]
towed and stored on Hymark's lot. At Duncan's trial
on the theft charge, there was evidence that Monte liked to
barter with people and trade favors, and, as explained below,
two witnesses testified that Monte told them he intended to
give Duncan the Tahoe. However, the only evidence that Monte
actually did give Duncan the Tahoe was Duncan's
statements to others that he did.
Payne was a friend of Monte's, and at all relevant times,
he owned a shop out of his home in Seward, Nebraska, where he
worked on cars as a hobby. At Duncan's trial, Payne
testified that Duncan called Payne about 6 months after Monte
died and wanted Payne to pull the motor out of the Tahoe so
that Duncan could put the motor into a demolition derby car.
Rather than pulling the motor out of the Tahoe, Payne offered
to buy a motor and an "intake" for Duncan's
demolition derby car if Duncan would let Payne keep the
Tahoe. Duncan agreed.
testified that when Duncan showed up with the Tahoe, Payne
asked Duncan, '"This Tahoe is yours, right?' . .
. 'Monte gave it to you?'" Duncan said,
"'Yes.'" Payne testified that he had
guessed that Monte had given the Tahoe to Duncan because of a
prior conversation Payne had with Monte.
conversation in question allegedly occurred sometime in late
spring or early summer 2010. Payne testified that Monte had
called Payne and asked Payne if he would come look at some
vehicles in Monte's lot to see if they were worth listing
on the Internet. Payne explained that he would sometimes list
Monte's vehicles on the Internet for him. Payne testified
that he and Monte walked around the lot looking at the
vehicles. They approached the Tahoe, and Payne asked Monte,
'"What's the deal on this one?'" Payne
testified that Monte said, '"I'm saving it for
redirect, Payne admitted that after the exchange with Duncan,
he had sent text messages to Duncan asking Duncan what Kasey
wanted for the Tahoe and offered $500 to $700. On recross,
Payne testified that this was because he was [294 Neb. 166]
trying to "help settle the estate" and make amends.
[T]he estate wasn't settled because of that vehicle . . .
. I just - I had no idea that anybody was mad at me for
anything that I had done. I was just trying to make [amends.]
I just thought if it was a matter of money, I would give her
what she wanted to make her happy with the vehicle.
February 2013, to get a title to the Tahoe for Payne, Duncan
submitted an application for an abandoned title to the Seward
County Sheriff's Department. At the same time, he also
submitted applications for other vehicles on behalf of
Hymark. Duncan paid for all of the application processing
fees with a Hymark check. The officer processing those
applications had frequently processed abandoned title
applications for Hymark. So when he noticed Duncan's name
on the Tahoe's application, he became concerned. When he
confronted Duncan about it, Duncan told him that Monte and
Kasey had given him the Tahoe. The officer asked Duncan to
have Kasey contact him to confirm this, and Duncan indicated
that he would.
days later, a person called the officer in reference to the
Tahoe. She identified herself as Kasey and stated that yes,
she had given the Tahoe to Duncan. But the officer was
familiar with Kasey's voice and did not recognize the
voice on the telephone. He decided to call Kasey's home.
The officer got in contact with Kasey and asked her if she
had called him earlier. She ...