State v. Dixon ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/25/2020 12:07 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DIXON
Cite as 306 Neb. 853State of Nebraska, appellee, v.
Nathaniel J. Dixon, appellant.
___ N.W.2d ___
Filed August 21, 2020. No. S-19-578.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. When reviewing a trial court’s ruling on a motion
to suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Property: Appeal and Error. A trial court’s finding that an item of
personal property has been abandoned is reviewed for clear error.
3. Criminal Law: 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 ele-
ments of the crime beyond a reasonable doubt.
4. Constitutional Law: Property: Warrantless Searches. A defendant
has no Fourth Amendment privacy interest in personal property which
has been abandoned or discarded, and such property may be searched
without a warrant.
5. Constitutional Law: Search and Seizure. Both the Fourth Amendment
to the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
6. ____: ____. A search for Fourth Amendment purposes occurs when the
government violates a subjective expectation of privacy that society
recognizes as reasonable.
7. Constitutional Law: Property: Search and Seizure. Once a defendant
abandons an item of personal property and makes it available to the
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306 Nebraska Reports
STATE v. DIXON
Cite as 306 Neb. 853police or the public, he or she does not retain a reasonable expecta-
tion of privacy in the property for purposes of Fourth Amendment
protection.
8. Constitutional Law: Property: Search and Seizure: Police Officers
and Sheriffs: Proof. To show abandonment of personal property for
purposes of the Fourth Amendment, the State must establish by a pre-
ponderance of the evidence that the defendant’s voluntary words or
conduct would lead a reasonable officer to believe the defendant relin-
quished his or her property interests in the item.
9. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
10. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A
defendant who moves for dismissal or a directed verdict at the close of
the evidence in the State’s case in chief in a criminal prosecution and
who, when the court overrules the dismissal or directed verdict motion,
proceeds with trial and introduces evidence, waives the appellate right
to challenge correctness in the trial court’s overruling the motion for
dismissal or a directed verdict but may still challenge the sufficiency of
the evidence.
11. Motions to Dismiss: Directed Verdict: Convictions. Whether styled
as a motion to dismiss, a motion for directed verdict, or a motion
for judgment of acquittal, such a motion made at the close of all the
evidence challenges the sufficiency of the State’s evidence to sustain
the conviction.
12. Evidence: Appeal and Error. An appellate court does not resolve con-
flicts in the evidence, pass on credibility of witnesses, or reweigh the
evidence; such matters are for the finder of fact.
13. Theft: Value of Goods: Proof. In a theft case, the value to be proved
is market value at the time and place where the property was crimi-
nally appropriated.
14. Value of Goods: Proof. There is no better way of showing the market
value of any article than the price at which it and others of its class are
being offered and sold on the market.
15. Value of Goods: Evidence. Evidence of price, when determined by and
reflective of current market conditions for the sale of an item, may be
admissible on the issue of value.
16. Criminal Law: Value of Goods. The owner of chattels may testify as to
their value in a criminal case.
17. Theft: Value of Goods: Evidence: Proof. An item’s market value at
the time of the theft may be established by either direct or circumstan-
tial evidence, and it presents a question of fact to be resolved by the
fact finder.
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STATE v. DIXON
Cite as 306 Neb. 85318. Theft: Value of Goods: Appeal and Error. When a fact finder deter-
mines the value of property in a theft case, an appellate court will not
set aside the finding unless it is clearly erroneous.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed.
Thomas P. Strigenz, Sarpy County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Nathaniel J. Dixon was convicted by a jury of one count of
burglary and one count of theft by receiving stolen property.
In this direct appeal, he challenges the denial of his motion
to suppress evidence discovered in a warrantless search of
a backpack he discarded in a ditch. He also challenges the
admissibility and sufficiency of the State’s evidence pertain-
ing to the value of the stolen property. Finding no merit to his
assignments of error, we affirm.
I. FACTS
1. Burglary
On August 2, 2017, police in Papillion, Nebraska, were noti-
fied of a burglary at a Papillion residence. Police investigated
and found numerous items of jewelry missing from the mas-
ter bedroom.
About an hour before the burglary was reported, police
had received several reports of a suspicious male jumping
fences in the area near where the burglary occurred. Police
obtained a description of the suspect but were not able to
locate him. Police did find a suspicious vehicle parked in the
area with the windows down and keys in the ignition. Police
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STATE v. DIXON
Cite as 306 Neb. 853determined the vehicle had been reported stolen by a woman
who Dixon was dating at the time.
2. Arrest
The day after the burglary, police received a report that
someone who matched the description of the burglary suspect
was walking near a school in La Vista, Nebraska. Capt. Brian
Waugh of the police department in La Vista was near the area
and saw an individual matching the suspect’s description,
wearing a ball cap and carrying a backpack. Waugh watched
as the individual, later identified as Dixon, walked toward him.
When Dixon was approximately 25 yards away, he appeared
to notice Waugh, who was standing near his marked patrol car.
Dixon “abruptly” entered a nearby drainage ditch which was 4
or 5 feet deep, causing Waugh to temporarily lose sight of him.
When Waugh saw Dixon emerge from the ditch, Dixon was no
longer wearing either the cap or the backpack.
Waugh made contact with Dixon and asked him where he
was going. Dixon said he was going home, but did not give a
street address. At that time, Papillion police officers arrived on
the scene, and the officers’ interaction with Dixon thereafter
was recorded on the officers’ body and cruiser cameras.
One of the Papillion officers was Kurt McClannan. Without
Dixon’s knowing, Waugh informed McClannan that he had
seen Dixon enter the ditch with a backpack and come out
without one. While McClannan was talking with Dixon, Dixon
asked, “Can I get my stuff?” and McClannan responded, “Do
you have a backpack?” Dixon pointed toward the ditch and
said, “Yeah its over there.” Dixon said he had gone into the
ditch because he had seen police. An officer went to retrieve
the backpack, and when he brought it back, Dixon again stated
it was his and told the officers they did not have his permis-
sion to search it. McClannan asked why Dixon left his cap in
the ditch and did not go back for it. Dixon said that he fell and
that his hat fell off and he did not realize it. Officers returned
Dixon’s hat, but searched the backpack.
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STATE v. DIXON
Cite as 306 Neb. 853The backpack contained a pillowcase tied in a knot that was
full of a “big ball of jewelry” all tangled together. Dixon was
placed under arrest. He was subsequently charged with bur-
glary, a Class IIA felony, 1 and theft by receiving stolen prop-
erty with a value of more than $1,500 but less than $5,000, a
Class IV felony. 2 The information also charged that Dixon was
a habitual criminal. 3
3. Motion to Suppress
Dixon moved to suppress the evidence found during the
search of the backpack. After an evidentiary hearing at which
the above-described evidence was admitted, the district court
denied the motion. It reasoned Dixon had no Fourth Amendment
privacy expectation in the backpack because he had abandoned
the backpack before the search.
4. Trial
The case proceeded to trial. As relevant to the issues on
appeal, the State introduced evidence about each piece of jew-
elry found in the backpack, including its value.
The owner of the home that was burglarized testified about
each piece of jewelry found in the backpack. She identified
all pieces as belonging to her, and explained she had received
some as gifts and had purchased others herself. She estimated
the collective value of the jewelry at $2,000.
The State also adduced evidence of the jewelry’s appraised
value from John Dineen, the general manager of a pawnshop
that deals in secondhand jewelry and other items. Dineen testi-
fied he is an experienced jewelry appraiser who, for the prior
16 years, had conducted 5 to 10 jewelry appraisals each week.
Dineen appraised all 72 items of jewelry and prepared
a report styled as an “Appraisal Certificate,” which stated
1
Neb. Rev. Stat. § 28-507 (Reissue 2016).
2
Neb. Rev. Stat. § 28-518(2) (Reissue 2016).
3
Neb. Rev. Stat. § 29-2221 (Reissue 2016).
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STATE v. DIXON
Cite as 306 Neb. 853he had “carefully examined the articles listed below and
appraised those articles [at] current fair market replacement
value.” The report described each item of jewelry and listed
its appraised value. Most of the 72 items in Dineen’s appraisal
were valued between $15 and $40, and collectively, the items
were appraised at a value of $1,561.50. The appraised values
were based on Dineen’s inspection of the items and included
consideration of the size and quality of the items.
Dineen testified the appraised value of each item was
“[p]retty darn close” to the price the item would sell for in the
retail market, including stores such as “Kohl’s and Walmart.”
He regularly referred to this as the “retail value” or the “fair
market value” of the jewelry items. Dineen also testified that
the “wholesale value” of the items would be less, and he admit-
ted that if he were to sell the items at his pawnshop, he would
list them for “a lot less.”
Dixon objected to the admission of Dineen’s appraisal
report, but did not move to strike Dineen’s opinion testimony.
Regarding the appraisal report, Dixon argued it was inadmis-
sible because it focused on the price of the items rather than
their value. The trial court overruled the objection and admitted
the appraisal report, reasoning that Dineen had testified about
“two views” of value and ultimately the value of the items was
a fact question for the jury to determine.
At the close of the State’s evidence, Dixon moved to dismiss
the theft by receiving stolen property charge, arguing the State
had failed to prove the property had a value of $1,500 or more.
The district court overruled the motion, noting the State had
adduced evidence of value from both the owner of the jewelry
and from Dineen and stating, “roughly speaking, at this junc-
ture [there are] three different valuations of the items” which
presented a question for the jury.
Dixon proceeded to put on a defense, after which he renewed
his motion to dismiss the theft charge without additional argu-
ment. That motion was also overruled.
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STATE v. DIXON
Cite as 306 Neb. 8535. Verdict and Sentencing
The jury was given a verdict form on which it was directed to
circle either “[g]uilty” or “[n]ot [g]uilty” for each count charged.
The verdict form further directed the jury, if it found Dixon
guilty of theft by receiving stolen property, to find the value
of the property by circling one of the following: “$1,500.00 to
$4,999.99,” 4 “$500.00 to $1,499.99,” 5 or “$0.01 to $499.99.” 6
The jury returned the verdict form finding Dixon guilty of both
burglary and theft by receiving stolen property and finding the
value of the property was $1,500 to $4,999.99.
After an enhancement hearing, Dixon was found to be a
habitual criminal. He was sentenced to 20 to 30 years’ impris-
onment on the conviction for burglary and to 20 to 30 years’
imprisonment on the conviction for theft by receiving stolen
property. The sentences were ordered to run concurrently.
Dixon timely appealed. We moved the case to our docket on
our own motion.
II. ASSIGNMENTS OF ERROR
Dixon assigns the district court erred in (1) overruling his
motion to suppress the contents of his backpack, (2) overrul-
ing his objection to the admission of Dineen’s appraisal report,
and (3) overruling his motion to dismiss the charge of theft by
receiving stolen property.
III. STANDARD OF REVIEW
[1] When reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. 7
Regarding historical facts, an appellate court reviews the trial
4
See § 28-518(2).
5
See § 28-518(3).
6
See § 28-518(4).
7
State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).
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STATE v. DIXON
Cite as 306 Neb. 853court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 8
[2] A trial court’s finding that an item of personal property
has been abandoned is reviewed for clear error. 9
[3] 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. 10
IV. ANALYSIS
1. Motion to Suppress
Dixon argues it was clear error for the trial court to find he
had abandoned his backpack when he left it in the ditch. He
generally concedes that Fourth Amendment privacy protections
do not extend to personal property that has been abandoned, 11
but he argues it is “impossible” 12 to find he abandoned the
backpack because he affirmatively claimed the backpack in
the ditch was his. According to Dixon, the fact that he did not
deny ownership of the backpack prevents a finding that he
abandoned the property. We disagree.
[4] This court has generally recognized that a defendant has
no Fourth Amendment privacy interest in personal property
which has been abandoned or discarded, and such property
8
Id.9
See U.S. v. Crumble, 878 F.3d 656 (8th Cir. 2018).
10
State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016).
11
See, e.g., Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d
668 (1960); Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed.
898 (1924).
12
Brief for appellant at 5.
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STATE v. DIXON
Cite as 306 Neb. 853may be searched without a warrant. 13 The Nebraska Court of
Appeals has also recognized and applied this principle. 14 But
so far, neither Nebraska appellate court has articulated a test
for determining when personal property has been abandoned
for purposes of Fourth Amendment protection.
The trial court relied on two federal appellate cases, U.S.
v. Nowak 15 and U.S. v. Basinski, 16 both of which articulated
tests for determining when personal property is abandoned for
Fourth Amendment purposes. We discuss those cases next and,
ultimately, adopt a similar framework for determining when
property has been abandoned.
(a) Determining When Property
Is Abandoned
[5-7] Both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution guarantee
against unreasonable searches and seizures. 17 A search for
Fourth Amendment purposes occurs when the government vio-
lates a subjective expectation of privacy that society recognizes
as reasonable. 18 But it is well-settled that once a defendant
abandons an item of personal property and makes it available
13
See, e.g., State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000) (finding
no expectation of privacy in discarded cigarette butts); State v. Wickline,
232 Neb. 329, 440 N.W.2d 249 (1989) (finding no Fourth Amendment
protection for cigarette butt discarded at police station), disapproved
on other grounds, State v. Sanders, 235 Neb. 183, 455 N.W.2d 108(1990); State v. Texel, 230 Neb. 810, 433 N.W.2d 541 (1989) (finding no
expectation of privacy in garbage made accessible to public).
14
State v. Vasquez-Arenivar, 18 Neb. App. 265, 779 N.W.2d 117 (2010)
(finding baggie discarded by vehicle passenger while passenger waited
for officers to investigate whether driver was intoxicated abandoned);
State v. Cronin, 2 Neb. App. 368, 509 N.W.2d 673 (1993) (finding baggie
discarded by defendant while running from police abandoned).
15
U.S. v. Nowak, 825 F.3d 946 (8th Cir. 2016).
16
U.S. v. Basinski, 226 F.3d 829 (7th Cir. 2000).
17
State v. Seckinger, 301 Neb. 963, 920 N.W.2d 842 (2018).
18
See State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018).
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STATE v. DIXON
Cite as 306 Neb. 853to the police or the public, he or she does not retain a reason-
able expectation of privacy in the property for purposes of
Fourth Amendment protection. 19
In Basinski, the Seventh Circuit held:
To demonstrate abandonment, the government must estab-
lish by a preponderance of the evidence that the defend­
ant’s voluntary words or conduct would lead a reasonable
person in the searching officer’s position to believe that
the defendant relinquished his property interests in the
item searched or seized. . . . Because this is an objective
test, it does not matter whether the defendant harbors
a desire to later reclaim an item; we look solely to the
external manifestations of his intent as judged by a rea-
sonable person possessing the same knowledge available
to the government agents. . . . We look at the totality of
the circumstances, but pay particular attention to explicit
denials of ownership and to any physical relinquishment
of the property. 20
Basinski also explained:
There are three general types of abandonment cases,
which are based on these two indicia of abandonment.
The first type is characterized by the presence of a flee-
ing defendant who relinquishes an object to make his
flight easier or because discarding the item might make
it easier for him to later claim that he never possessed
it. . . . Because he has disposed of the property in a loca-
tion that affords easy access to the public, a reasonable
person would believe that the defendant’s possessory
interest in the property is so eroded that anyone has a
right to retrieve it. The second type of case is closely
related to the first, for in so-called “garbage cases” the
defendant places material in or near a refuse receptacle
19
See, e.g., California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L.
Ed. 2d 30 (1988); Buckman, supra note 13; Wickline, supra note 13; Texel,
supra note 13; Vasquez-Arenivar, supra note 14; Cronin, supra note 14.
20
Basinski, supra note 16, 226 F.3d at 836-37 (citations omitted).
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Cite as 306 Neb. 853that is readily accessible to the public, and in which he
usually places other discarded materials. . . . By this
conduct and the location of the receptacle, the defendant
leads reasonable people to believe that he no longer
cares what becomes of his trash, or articles mistaken for
trash. In the third type of case, the defendant is usually
caught red-handed with or near a container of contraband,
whereupon he denies that the container or its contents are
his. . . . Taken at face value, this denial makes it reason-
able to conclude that the defendant claims no possessory
interest in the items. 21
Similarly, the Eighth Circuit explained in Nowak how courts
are to determine when personal property is abandoned:
Whether property has been abandoned “is determined
on the basis of the objective facts available to the inves-
tigating officers, not on the basis of the owner’s subjec-
tive intent.” . . . We consider the dual factors of whether
the defendant physically relinquished his property and
whether he denied ownership of it. . . . However, a ver-
bal denial of ownership is not necessary for a finding of
abandonment, and we reach our ultimate conclusion based
on the totality of the circumstances. 22
Nowak further held that “[w]hether property is discarded in a
public, private, or semi-private place is a factor in considering
whether the property has been abandoned . . . .” 23
[8] We agree with the reasoning of Basinski and Nowak,
and we adopt a similar test for determining abandonment. We
now hold that to show abandonment of personal property for
purposes of the Fourth Amendment, the State must establish
by a preponderance of the evidence that the defendant’s vol-
untary words or conduct would lead a reasonable officer to
believe the defendant relinquished his or her property interests
21
Id. at 837 (citations omitted).
22
Nowak, supra note 15, 825 F.3d at 948 (citations omitted).
23
Id. at 949.
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STATE v. DIXON
Cite as 306 Neb. 853in the item. 24 This is an objective test based on the informa-
tion available to the officer, and the defendant’s subjective
intent to later reclaim the item is irrelevant. 25 When determin-
ing whether property has been abandoned, courts consider the
totality of the circumstances, and pay particular attention to
the nature and location of any physical relinquishment of the
property and any explicit denials of ownership. 26 We note this
test is, in substance, the test applied by the district court in
this case.
(b) No Clear Error in Finding
Dixon Abandoned Backpack
Applying the test announced above, we conclude the dis-
trict court did not clearly err in finding that Dixon abandoned
his backpack.
Upon seeing police, Dixon entered a drainage ditch next
to the road, an area generally open to the public, and left his
backpack there. His action in doing so would cause a reason-
able person in the position of the investigating officers to con-
clude he was physically relinquishing the backpack to make
it easier for him to later claim that he never possessed it. 27 In
this respect, his action is similar to those at issue in State v.
Vasquez-Arenivar 28 and State v. Cronin, 29 where the defendants
24
See, Nowak, supra note 15; Basinski, supra note 16. See, also, e.g., State
v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019) (recognizing Fourth
Amendment probable cause determination based on objective reasonable
officer standard).
25
Nowak, supra note 15; Basinski, supra note 16. See, also, e.g., State v.
Krannawitter, 305 Neb. 66, 939 N.W.2d 335 (2020) (recognizing Fourth
Amendment reasonable suspicion and probable cause determinations both
involve consideration of totality of circumstances).
26
Nowak, supra note 15; Basinski, supra note 16.
27
See Basinski, supra note 16. See, also, California v. Hodari D., 499 U.S.
621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991); Hester, supra note 11.
28
Vasquez-Arenivar, supra note 14.
29
Cronin, supra note 14.
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Cite as 306 Neb. 853discarded incriminating substances once they encountered
police, and the Court of Appeals found obvious abandonment.
Further, because Dixon disposed of the backpack in a location
accessible to the general public and walked away, a reason-
able person would believe that his possessory interest in the
property was so eroded that anyone had a right to retrieve it. 30
Viewed objectively, Dixon’s action of discarding the backpack
in the ditch upon seeing a police officer is strong evidence
of intent to physically relinquish the backpack. 31 And while
it is true that Dixon did not deny ownership of the backpack
once it was discovered and retrieved by police, that is just one
of many factors to be considered in the totality analysis and
does not, as Dixon suggests, necessarily preclude a finding
of abandonment.
Considering the totality of the circumstances, we find the
trial court did not clearly err in finding Dixon abandoned the
backpack and thus had no Fourth Amendment privacy interest
in it. His motion to suppress the evidence found as a result of
the search of the backpack was properly denied, and his first
assignment of error has no merit.
2. Theft by Receiving
Stolen Property
Dixon’s second and third assignments of error both pertain
to the conviction for theft by receiving stolen property. Theft
by receiving stolen property is prohibited by Neb. Rev. Stat.
§ 28-517 (Reissue 2016), which provides: “A person commits
theft if he receives, retains, or disposes of stolen movable prop-
erty of another knowing that it has been stolen, or believing
that it has been stolen, unless the property is received, retained,
or disposed with intention to restore it to the owner.”
30
See Basinski, supra note 16. See, also, Hodari D., supra note 27; Hester,
supra note 11.
31
Accord, Vasquez-Arenivar, supra note 14; Cronin, supra note 14.
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Cite as 306 Neb. 853Section 28-518(1) through (4) grades theft offenses as either
misdemeanors or felonies depending on the value of the prop-
erty involved. Summarized, under § 28-518, the lowest offense
grade is a Class II misdemeanor and the highest offense grade
is a Class IIA felony; the offense grades increase as the value
of the property at issue increases. Under this framework, and
given the jury’s finding on the value of the stolen jewelry,
Dixon’s conviction is a Class IV felony.
(a) Admissibility of Appraisal Report
Dixon’s second assignment of error states the district court
erred in admitting Dineen’s appraisal report. However, his
brief presents no argument specific to this assignment. Instead
of arguing why the report was inadmissible under the rules of
evidence, his brief argues only that the report was insufficient
to prove value and that therefore, the State failed to meet its
burden of proving all the elements of theft by receiving sto-
len property.
[9] To be considered by an appellate court, an alleged error
must be both specifically assigned and specifically argued in
the brief of the party asserting the error. 32 Because Dixon did
not present any factual or legal argument to support his conten-
tion that it was error to admit the appraisal report, we do not
consider this assignment.
(b) Sufficiency of Evidence
[10] Dixon’s third assignment of error argues the district
court erred in overruling his motion to dismiss. As noted,
Dixon moved to dismiss both at the close of the State’s evi-
dence and at the close of all evidence. It is well settled that a
defendant who moves for dismissal or a directed verdict at the
close of the evidence in the State’s case in chief in a criminal
prosecution and who, when the court overrules the dismissal
32
State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
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Cite as 306 Neb. 853or directed verdict motion, proceeds with trial and introduces
evidence, waives the appellate right to challenge correctness
in the trial court’s overruling the motion for dismissal or a
directed verdict but may still challenge the sufficiency of
the evidence. 33
Here, Dixon proceeded with trial and introduced evidence
after the denial of his motion to dismiss. He has therefore
waived his claim that the district court erred in overruling
his initial motion to dismiss. But when a defendant makes a
motion at the close of the State’s case in chief and again at the
conclusion of all the evidence, it is proper to assign as error
that the defendant’s motion to dismiss made at the conclusion
of all the evidence should have been sustained. 34 We therefore
consider Dixon’s third assignment of error only to the extent it
relates to his motion to dismiss at the close of all the evidence.
And as explained below, we treat his motion as a challenge to
the sufficiency of the evidence.
[11] A motion to dismiss at the close of all the evidence
has the same legal effect as a motion for a directed verdict. 35
And a motion for directed verdict is simply another name for
a motion for judgment of acquittal. 36 All three motions assert
that the defendant should be acquitted of the charge because
there is no legally sufficient evidentiary basis on which a
reasonable jury could return a guilty verdict. 37 Thus, however
styled, this type of motion made at the close of all the evidence
challenges the sufficiency of the State’s evidence to sustain
the conviction. 38
33
State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020); State v. Briggs, 303
Neb. 352, 929 N.W.2d 65 (2019).
34
State v. Savage, 301 Neb. 873, 920 N.W.2d 692 (2018).
35
State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017).
36
See id.37
See id.38
See id.- 868 -
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STATE v. DIXON
Cite as 306 Neb. 853[12] 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. 39 An appellate court does not
resolve conflicts in the evidence, pass on credibility of wit-
nesses, or reweigh the evidence; such matters are for the finder
of fact. 40
As stated, Dixon’s argument regarding the insufficiency of
the evidence focuses exclusively on the evidence regarding
the value of the stolen jewelry. We understand his argument
to be that the State’s evidence focused on price, rather than
“market value” as that concept has been defined in our cases,
and so, there was no competent evidence to support the jury’s
finding that the stolen jewelry had a value of at least $1,500.
Dixon argues this requires reversal of his conviction for theft
by receiving stolen property. There are two problems with
his argument.
(i) No Threshold Value Needed
to Sustain Conviction
First, Dixon is incorrect that insufficient evidence of mar-
ket value would require a reversal of his conviction. Section
28-518(8) states that “[i]n any prosecution for theft under
sections 28-509 to 28-518, value shall be an essential ele-
ment of the offense that must be proved beyond a reasonable
doubt.” But in State v. Almasaudi, 41 we held that the statu-
tory language of § 28-518(8) requires only that some value
be proved beyond a reasonable doubt, not that a particular
threshold value be proved. Stated differently, § 28-518(8)
39
Olbricht, supra note 10.
40
Ferrin, supra note 33; Olbricht, supra note 10.
41
State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).
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Cite as 306 Neb. 853requires proof of a specific value only so the offense may be
classified for purposes of punishment, but no specific value
must be proved for the theft conviction to be sustained. 42
Thus, even if the evidence in the record before us failed to
support the specific value found by the jury here, such insuf-
ficiency would result only in a reduction in the offense grade
and a remand for resentencing, not a reversal of the convic-
tion for theft by receiving stolen property. 43 And importantly,
Dixon has not challenged the gradation of his offense either
in his motions before the district court or in his argument
on appeal.
(ii) Sufficient Evidence of Value
Additionally, there is simply no merit to Dixon’s sugges-
tion that the evidence adduced at trial—which consisted of
both the property owner’s testimony as to value and expert
testimony as to value—was insufficient to support the jury’s
finding regarding the value of the property for purposes of
grading the offense. Dixon’s argument in this regard is that
“the State sought only to prove the value of the goods by
testimony relating to their price” 44 and that there was “no
testimony presented regarding the condition of the jewelry
that may have caused its value to differ [from] its purchase
price.” 45 His argument mischaracterizes both our case law on
establishing value in theft cases generally, and the State’s evi-
dence of value in this case.
[13,14] We have long held that in a theft case, the value
to be proved is market value at the time and place where the
42
See id.43
See id. Accord, State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002)
(theft conviction affirmed, but matter remanded for resentencing); State
v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992) (shoplifting conviction
affirmed, but matter remanded for resentencing).
44
Brief for appellant at 7.
45
Id. at 8.
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Cite as 306 Neb. 853property was criminally appropriated. 46 And we have often
observed, “There is no better way of showing the market value
of any article than the price at which it and others of its class
are being offered and sold on the market.” 47
In State v. Gartner, 48 a former county assessor was con-
victed of multiple counts of theft after an audit of his office
showed several items of property purchased by the office were
missing. The missing items, which included a file cabinet,
a fax modem, a fax machine, an inkjet printer, and a digital
camera, were later found in the defendant’s possession. Based
on the items’ values as determined by the jury, some of the
defendant’s convictions were graded as Class IV felonies, and
others were graded as Class II misdemeanors. On appeal, the
defendant challenged the sufficiency of the evidence as it per-
tained to the jury’s findings of value.
Several of the items had been purchased new from a retail
store shortly before they were stolen, and we held that evi-
dence of the retail purchase price was sufficient to prove
value because it showed both the price at which those items
had been offered for sale and the price at which the items
were sold. But the fax machine had been stolen about 7
months after it was purchased, and with respect to that item,
we held that evidence of the purchase price alone was insuf-
ficient to prove its market value on the date it was stolen.
We explained that under those circumstances, “The value of
the stolen property . . . may be established by proof of the
original cost of the item reduced to reflect the actual condi-
tion of the property, in terms of how long it has been used
and its state of utility or damage.” 49 And we emphasized that
46
Gartner, supra note 43; Garza, supra note 43.
47
Gartner, supra note 43, 263 Neb. at 163, 638 N.W.2d at 859. Accord
Garza, supra note 43 (Boslaugh, J., dissenting).
48
Gartner, supra note 43.
49
Id. at 165, 638 Neb. at 860.
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Cite as 306 Neb. 853evidence of purchase price, together with evidence concern-
ing the age, condition, and utility of the item, may afford a
basis for determining market value. 50 Because there was no
evidence presented in Gartner regarding the condition of the
fax machine at the time of the theft, we found the evidence
of purchase price alone was insufficient to support the jury’s
finding of value. We thus set aside the felony gradation as
to that count and remanded the matter for resentencing as a
Class II misdemeanor.
We also addressed evidence of the jury’s value finding in
State v. Garza. 51 There, we held that photographs of price tags
on items stolen from a retail store, without more, were insuffi-
cient to prove the value of those items for purposes of grading
the defendant’s shoplifting conviction. Our opinion suggested
“an important distinction” 52 between the concepts of price and
value, reasoning:
[P]rice is the amount that a willing seller indicates as
acceptable payment for an article offered for sale, whereas
value, in relation to a theft charge, is the price obtainable
for property offered for sale in a market. Consequently, a
price tag merely expresses the amount at which a seller
offers an article for sale, a sum the seller hopes to obtain,
and does not necessarily indicate the amount obtainable
in the market through payment for the article offered
for sale. 53
[15] But in Garza, we also cautioned that our reasoning
should not be misconstrued to suggest that “a price tag, reflect-
ing a seller’s expression of the price for a sale, is never evi-
dence of value.” 54 We stated that “[e]vidence of price, when
50
See id.51
Garza, supra note 43.
52
Id. at 264, 487 N.W.2d at 557.
53
Id.54
Id. at 265, 487 N.W.2d at 557.
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Cite as 306 Neb. 853determined by and reflective of current market conditions for
the sale of an item, may be admissible on the issue of value.” 55
Because the evidence in Garza consisted of nothing but the
price tags, we found it was insufficient to support the felony
gradation of the shoplifting conviction and we remanded the
matter for resentencing as a Class II misdemeanor. One justice
dissented in Garza, reasoning that in a retail setting, uncon-
troverted evidence of the price at which the merchandise was
offered for sale is more than sufficient to permit the finder of
fact to determine the retail value of the property for purposes
of grading the offense. 56
We take this opportunity to revisit one aspect of the major-
ity opinion in Garza we think was incorrect: our statement that
the price tag evidence offered by the State “was irrelevant to
the issue of value for the property taken by [the defendant]
and should have been excluded pursuant to [the defendant’s]
relevance objection.” 57 Garza reasoned the price tag evidence
was irrelevant because it showed only the seller’s asking price
for the item, and not the ultimate purchase price. But this was
not a problem of relevancy.
Relevant evidence means evidence having any tendency to
make the existence of any fact of consequence to the deter-
mination of the action more probable or less probable than
it would be without the evidence. 58 It seems obvious that the
price at which an item is offered for sale generally reflects the
seller’s opinion of the item’s market value, and while that is
certainly not conclusive evidence of the item’s market value,
55
Id.56
See Garza, supra note 43 (Boslaugh, J., dissenting). Accord State v.
Ybarra, 9 Neb. App. 230, 609 N.W.2d 696 (2000) (Sievers, Judge,
concurring) (suggesting Nebraska Supreme Court reconsider this aspect of
Garza), disapproved on other grounds, Gartner, supra note 43.
57
Garza, supra note 43, 241 Neb. at 264, 487 N.W.2d at 557.
58
Neb. Rev. Stat. § 27-401 (Reissue 2016).
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Cite as 306 Neb. 853it is nevertheless relevant evidence. 59 To the extent our opinion
in Garza suggested otherwise, it is expressly disapproved.
Dixon relies on our holding in Garza to argue that the evi-
dence adduced here, which he suggests was limited to the price
at which the jewelry would be offered for sale, was insufficient
to support the jury’s finding of value. We disagree.
[16] First, his argument ignores the testimony of the owner
of the jewelry, who valued the items collectively at $2,000. It
has long been the rule in Nebraska that the owner of chattels
may testify as to their value in a criminal case. 60
Moreover, Dixon’s argument misconstrues the nature of
the expert appraisal evidence in this case. Dineen appraised
each piece of jewelry individually, and his opinion on the fair
market value of the jewelry was not based just on the price at
which similar items might be offered for sale in either a retail
or a wholesale setting. To the contrary, it included consider-
ation of the condition of each item as well as what buyers in
the area were willing to pay for the item.
59
See, e.g., State v. Jerrome, 233 W. Va. 372, 758 S.E.2d 576 (2014)
(holding market value of stolen items may be proved by evidence of
price, replacement cost, or owner’s belief as to value; weight to be given
is for trier of fact); State v. Downing, 2002 S.D. 148, 654 N.W.2d 793(2002) (disapproving of reasoning in Garza and adopting majority view
that evidence of price tag on stolen good is admissible as seller’s opinion
of value); Robinson v. Com., 258 Va. 3, 516 S.E.2d 475 (1999) (finding
price tags affixed to items offered for sale admissible as evidence of items’
value in shoplifting case); Calbert v. State, 99 Nev. 759, 670 P.2d 576(1983) (holding price tags attached to goods at time of theft are competent
evidence of value); State v. McDonald, 312 Minn. 320, 251 N.W.2d 705(1977) (reasoning evidence of price tag on stolen item ordinarily sufficient
to show market value but is not conclusive when asking price does not
accurately reflect market value); State v. Sorrell, 95 Ariz. 220, 388 P.2d
429 (1964) (finding evidence of retail price of stolen goods admissible to
show value); Morris v. State, 334 P.3d 1244 (Alaska App. 2014) (finding
retail price of stolen item is prima facie evidence of item’s market value
but wholesale price may also be relevant).
60
See, e.g., Almasaudi, supra note 41.
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Cite as 306 Neb. 853[17,18] We pause here to emphasize that our cases discuss-
ing the type of evidence which is sufficient to prove market
value should not be construed either to require expert testi-
mony of an item’s market value or to exclude evidence of
purchase price and other evidence that may be relevant to
determining market value. As we recognized in Gartner, an
item’s market value at the time of the theft may be established
by either direct or circumstantial evidence, and it presents a
question of fact to be resolved by the fact finder. 61 And when a
fact finder determines the value of property in a theft case,
an appellate court will not set aside that finding unless it is
clearly erroneous. 62
Here, there was both expert testimony regarding the
appraised value of the stolen jewelry and testimony from the
owner as to the value of the jewelry. Both the expert’s testi-
mony and the owner’s testimony set the value of the stolen
jewelry above $1,500. While there was also evidence that the
wholesale value of the jewelry was less than $1,500, there
nevertheless was sufficient, competent evidence from which
the jury could find the market value of the stolen property was
at least $1,500.
We conclude the jury’s finding regarding value was sup-
ported by sufficient evidence and was not clearly erroneous.
Dixon’s third assignment of error has no merit.
V. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
61
See Gartner, supra note 43.
62
See Garza, supra note 43.