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State v. Duncan

Supreme Court of Nebraska

July 15, 2016

State of Nebraska, appellee,
Brody L. Duncan, appellant.

         1. Statutes: Appeal and Error. Statutory interpretation is a question of law that an appellate court resolves independently of the trial court.

         2. 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 fact.

         3. 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 there.

         4. 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.

         5. 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 offense.

          [294 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.

         7. 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).

         Appeal from the District Court for Seward County: James C. Stecker, Judge.

          Robert B. Creager, of Anderson, Creager & Wittstruck, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and George R. Love for appellee.

          Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          KELCH, J.


         Brody 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.

          [294 Neb. 164] FACTS

         Monte 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.

         Monte 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 Duncan.

         After 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."

         The 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.

         In 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.


         Duncan 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.

         Larry 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.

         Payne 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.

         The 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 [Duncan].'"

         On 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. Payne explained:

[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.

         In 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.

         Two 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 ...

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