State v. Dixon
| Decision Date | 21 August 2020 |
| Docket Number | No. S-19-578.,S-19-578. |
| Citation | 947 N.W.2d 563,306 Neb. 853 |
| Parties | STATE of Nebraska, appellee, v. Nathaniel J. DIXON, appellant. |
| Court | Nebraska Supreme Court |
Thomas P. Strigenz, Sarpy County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, 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 pertaining to the value of the stolen property. Finding no merit to his assignments of error, we affirm.
On August 2, 2017, police in Papillion, Nebraska, were notified of a burglary at a Papillion residence. Police investigated and found numerous items of jewelry missing from the master 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 determined the vehicle had been reported stolen by a woman who Dixon was dating at the time.
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 permission 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.
The 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 burglary, a Class IIA felony,1 and theft by receiving stolen property 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
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.
The case proceeded to trial. As relevant to the issues on appeal, the State introduced evidence about each piece of jewelry 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 testified 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 he 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 admitted 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 inadmissible 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 juncture [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 argument. That motion was also overruled.
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’ imprisonment 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.
Dixon assigns the district court erred in (1) overruling his motion to suppress the contents of his backpack, (2) overruling 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.
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.7 Regarding historical 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 independently of the trial court's determination.8
A trial court's finding that an item of personal property has been abandoned is reviewed for clear error.9
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
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.
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 may be searched...
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People v. Moore
...price and any recent sales are key factors an appraiser uses to determine the fair market value of a property."); State v. Dixon , 306 Neb. 853, 947 N.W.2d 563, 577 (2020) ("It seems obvious that the price at which an item is offered for sale generally reflects the seller's opinion of the i......
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State v. Simpson
...pass on the credibility of witnesses, or reweigh the evidence presented; such matters are for the finder of fact. See State v. Dixon, 306 Neb. 853, 947 N.W.2d 563 (2020). For these reasons, Simpson's first assignment of error fails.2. MOTIONS IN LIMINE(a) Motion Regarding References to Simp......
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State v. Harris
...error must be both specifically assigned and specifically argued in the brief of the party asserting the error. State v. Dixon, 306 Neb. 853, 947 N.W.2d 563 (2020). Harris argues that because the district court denied the 24-hour waiting period, he was "given only a matter of minutes to dec......
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State v. Prior
...has been abandoned, and thus not subject to a reasonable expectation of privacy, is reviewed for clear error. See State v. Dixon , 306 Neb. 853, 947 N.W.2d 563 (2020). An appellate court reviews the admission of evidence of other acts under § 27-404(2) by considering (1) whether the evidenc......