State v. Gartner
| Decision Date | 08 February 2002 |
| Docket Number | No. S-00-1215.,S-00-1215. |
| Citation | 638 N.W.2d 849,263 Neb. 153 |
| Parties | STATE of Nebraska, Appellee, v. Dale GARTNER, Appellant. |
| Court | Nebraska Supreme Court |
Arthur R. Langvardt, Hastings, of Langvardt & Valle, P.C., for appellant.
Don Stenberg, Attorney General, and Kimberly A. Klein for appellee.
Dale Gartner, former Adams County assessor, was charged with theft after several items of county property were found in his possession after he left office. The primary question presented in this appeal is whether the State presented sufficient evidence regarding the value of the property at the time that it was stolen.
Gartner was appointed Adams County assessor in 1993 and was elected to a 4-year term in 1995. Gartner sought reelection but was defeated in the primary election on May 12, 1998. Gartner left office on January 6, 1999.
In November 1998, Adams County retained a private accounting firm, Contryman Associates, to conduct an audit of the Adams County assessor's office. The audit began on January 7, 1999. Contryman obtained, from the Adams County clerk, a list of invoices for items purchased by the assessor's office from August 1998 through January 1999. Contryman found invoices for several items that could not be located and prepared a list of those items.
Investigators from the Nebraska State Patrol obtained a search warrant for the items. Searches were conducted on February 26, 1999, at Gartner's residence and at commercial property owned by Gartner. Several items of county property were seized, including an inkjet printer, a fax modem, and a file cabinet. Investigators later obtained a second search warrant, executed on March 26, 1999, and seized another item, a fax machine. The final item relevant to this appeal, a digital camera, was surrendered to the prosecution by Gartner, through his attorney, shortly before trial.
Gartner was charged by information with seven counts of theft, pursuant to Neb.Rev.Stat. § 28-511(1) (Reissue 1995). Count I of the information was dismissed prior to trial, and the jury found Gartner not guilty on count IV of the information; neither of these charges is relevant to this appeal.
Count II of the information charged Gartner with the theft of a digital camera. The camera was purchased by the assessor's office on December 9, 1998, at a price of $799. The information alleged that Gartner stole the camera sometime between December 9, 1998, and January 7, 1999. When the camera was recovered, it was still in its box and it did not appear that the camera had been used or that the box had ever been opened.
Count III of the information charged Gartner with the theft of a file cabinet. The file cabinet was purchased for the assessor's office on June 13, 1998, for a price of $154.95, and the information alleged that the cabinet was stolen on the date of purchase.
Count V of the information charged Gartner with the theft of an inkjet printer. The printer was sold to the assessor's office on September 14, 1996, for a price of $400. Shayne Raitt, the manager of Computer Hardware, a retail computer store in Hastings, Nebraska, testified that on January 7, 1999, the date on which the printer was allegedly stolen, the printer was worth approximately $25 to $50.
Count VI of the information charged Gartner with the theft of a fax modem. The fax modem was sold to the assessor's office on June 13, 1998, for a price of $140. The information alleged that Gartner stole the fax modem on the date of purchase. Count VII of the information charged Gartner with the theft of a fax machine. The fax machine was purchased on June 13, 1998, by the assessor's office, at a price of $525. The information alleged that the fax machine was stolen sometime between June 13, 1998, and January 7, 1999.
After trial, Gartner was convicted, pursuant to jury verdict, on counts II, III, V, VI, and VII. On count II, the jury determined that the theft occurred on January 7, 1999, and that the value of the digital camera was $799, thus finding Gartner guilty of a Class IV felony. See Neb. Rev.Stat. § 28-518(2) (Reissue 1995). On count VII, the jury found that the theft occurred on January 7, 1999, and that the value of the fax machine was $525, thus finding Gartner guilty of another Class IV felony. See id. On counts III, V, and VI, the jury found that the value of the property for each charge was less than $200 at the time of the theft, thus finding Gartner guilty of three Class II misdemeanors. See § 28-518(4).
Gartner was sentenced to 24 months' probation and 180 days in jail on counts II and VII and to 90 days in jail on counts III, V, and VI, with jail terms to be served concurrently. Gartner was also fined $10,000 for each felony conviction, fined $1,000 for each misdemeanor conviction, assessed court costs, and ordered to perform community service and rehabilitation therapy.
Gartner assigns the following errors, as consolidated: (1) The district court erred in overruling Gartner's motion for directed verdict at the close of the State's case; (2) the district court erred in giving its instruction No. 6 and in rejecting Gartner's proposed instruction as to the elements of the crime of theft and the methodology the jury was to follow; (3) the district court erred in giving verdict forms that limited the jury's discretion as to its determination of the dates of the alleged thefts to those dates charged in the information despite the lack of value evidence relating to those dates; (4) the district court erred in denying Gartner's motion for declaration of a mistrial based upon the prosecutor's misconduct; and (5) because of a lack of evidence of value at the times of the takings, the jury's verdict is not supported by adequate evidence.
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. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Ildefonso, 262 Neb. 672, 634 N.W.2d 252 (2001). 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. State v. Redmond, 262 Neb. 411, 631 N.W.2d 501 (2001), cert. denied ___ U.S. ___, 122 S.Ct. 573, 151 L.Ed.2d 445.
Whether jury instructions given by a trial court are correct is a question of law. State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001). The meaning of a statute is a question of law. State v. Johnson, 250 Neb. 933, 554 N.W.2d 126 (1996). On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. State v. Isham, 261 Neb. 690, 625 N.W.2d 511 (2001).
The decision to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent a showing of abuse of discretion. State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001).
Gartner was charged with violation of § 28-511(1), which provides that "[a] person is guilty of theft if he or she takes, or exercises control over, movable property of another with the intent to deprive him or her thereof." Section 28-518 further provides, in relevant part:
Gartner's first assignment of error is that the district court erred in overruling his motion for directed verdict made at the end of the State's case in chief. However, the record shows that after the overruling of his motion for directed verdict, Gartner presented evidence and did not renew his motion for directed verdict at the conclusion of all the evidence.
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 challenge sufficiency of the evidence for the defendant's conviction. State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996). Thus, Gartner has waived any error regarding his motion for directed verdict made at the close of the State's case in chief, and we do not address his assignment of error. Gartner, however, may still challenge the sufficiency of the evidence to sustain his convictions, which we address below as presented by his fifth assignment of error.
Gartner's second assignment of error relates to the district court's jury instruction No. 6. That instruction stated for each charge that the value of the property was an element of the offense and that, before the jury could find Gartner guilty, "the value of the property must be proved beyond a reasonable doubt and determined pursuant to the last...
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