State v. Clancy

• Decision Date: 02 January 1987
• Docket Number: No. 86-531,86-531
• Citation: 398 N.W.2d 710,224 Neb. 492
• Parties: STATE of Nebraska, Appellee, v. Johnny Don CLANCY, Appellant.
• Court: Nebraska Supreme Court

Page 710

398 N.W.2d 710

224 Neb. 492

STATE of Nebraska, Appellee, v. Johnny Don CLANCY, Appellant.

No. 86-531.

Supreme Court of Nebraska.

Jan. 2, 1987.

Syllabus by the Court

1. Theft: Value of Goods: Proof. Where value of goods is an element of the crime charged and there is a market for the goods, the value to be proved is the market value at the time and place of the alleged crime.

2. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a jury trial, the Supreme Court does not resolve conflicts of evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented to the jury--all of which is within a jury's province for disposition. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.

3. Rules of Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Neb.Evid.R. 401 (Neb.Rev.Stat. § 27-401 (Reissue 1985)).

4. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Neb.Evid.R. 404(2) (Neb.Rev.Stat. § 27-404(2) (Reissue 1985)).

5. Rules of Evidence: Other Acts. Neb.Evid.R. 404(2) is an inclusionary rule permitting the use of relevant, specific acts for all purposes except to prove character of a person in order to show that such person acted in conformity with character. Thus, Rule 404(2) permits evidence of other acts if such acts are relevant for any purpose other than to show a defendant's propensity or disposition to commit the crime charged. Neb.Rev.Stat. § 27-404(2) (Reissue 1985).

6. Rules of Evidence: Other Acts. The "purposes" set forth in Neb.Evid.R. 404(2) (Neb.Rev.Stat. § 27-404(2) (Reissue 1985)) are not exhaustive or mutually exclusive but are illustrative only, and are not pigeonholes for admission of evidence pertaining to "other acts."

7. Evidence: Trial: Appeal and Error. The admission or exclusion of evidence is a matter within the sound discretion of the trial court, whose ruling on an evidential question will be upheld unless such ruling constitutes an abuse of discretion.

8. Rules of Evidence: Other Acts: Witnesses. Under Neb.Evid.R. 404(2), a defendant's attempted intimidation or intimidation of a State's informant or witness is relevant evidence concerning the defendant's conscious guilt that a crime has been committed. Neb.Rev.Stat. § 27-404(2) (Reissue 1985).

9. Motions for Mistrial: Appeal and Error. Determination whether to grant a mistrial is a matter within the sound discretion of a trial court, whose ruling regarding a mistrial will be upheld unless such ruling constitutes an abuse of discretion.

10. Directed Verdict. In a criminal case a court can direct a verdict only when (1) there is a complete failure of evidence to establish an essential element of the crime charged, or (2) evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.

11. Circumstantial Evidence. One accused of a crime may be convicted on the basis of circumstantial evidence if, taken as a whole, the evidence establishes guilt beyond a reasonable doubt. The State is not required to disprove every hypothesis but that of guilt.

Arthur C. Toogood, Adams County Public Defender, for appellant.

Robert M. Spire, Atty. Gen., and Janie C. Castaneda, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

SHANAHAN, Justice.

Johnny Don Clancy appeals his conviction in a jury trial and sentence to imprisonment for a term of 20 months to 5 years for violating the Nebraska Criminal Code, Neb.Rev.Stat. § 28-517 (Reissue 1985), which provides: "A person commits theft if he receives, retains, or disposes of stolen movable property 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."

In accordance with the language found in § 28-517, the information charged that Clancy received, retained, or disposed of stolen property belonging to Todd Burgess and having a value more than $300, a crime which is a Class IV felony. See Neb.Rev.Stat. § 28-518(2) (Reissue 1985). Burgess' property was a 65-horsepower Mercury outboard motor.

Clancy claims the following errors occurred at his trial: (1) Insufficient evidence on the value of the outboard motor in question; (2) Improper admission of evidence (testimony of Jane DeVaney concerning Clancy's telephone call to her); (3) Failure to grant a mistrial; and (4) Failure to grant a directed verdict at the close of all evidence. Clancy also contends that the sentence imposed is excessive.

To prove the value of Burgess' outboard motor, the State called Leonard Heil as a witness. Heil owned Heil Marine Center, a business involving sales, purchases, and appraisals of new and used outboard motors, including Mercury outboards. After he had inspected Burgess' motor before trial, Heil testified that he would buy that outboard for $250 in the hope that the motor might be sold in the course of Heil's business, giving Heil a profit on resale. Heil then testified that the Burgess outboard, "as is," had a "fair market value" of, or was worth, $400 "on the open market." Clancy argues, "The evidence clearly established that the price which would be paid for the motor by a willing, knowledgable buyer was only $250.00 and not over $300.00 as charged in the information." Brief for Appellant at 6.

State v. Hayes, 187 Neb. 325, 190 N.W.2d 621 (1971), involved prosecution for receiving or buying stolen goods which had a value greater than $100 (grand larceny), in violation of Neb.Rev.Stat. § 28-513 (Reissue 1964). In Hayes this court stated at 326, 190 N.W.2d at 622:

The value of the goods in question is an essential element of the crime and like all other elements thereof the evidence must be sufficient to support a finding of the necessary value beyond a reasonable doubt.

This and other courts have long held that where value of goods is an element of the crime charged and there is a market for the goods, the value to be proved is the market value at the time and place. [Citations omitted.]

See, also, State v. Redding, 213 Neb. 887, 331 N.W.2d 811 (1983); State v. Weik, 206 Neb. 217, 292 N.W.2d 289 (1980).

Although Heil initially indicated that, in conjunction with his business activity, he would pay $250 for the Burgess outboard, he also testified about the Burgess outboard in terms of "fair market value" and its value "on the open market," thereby distinguishing "market value" from the price he might pay as a motor merchant anticipating a profitable resale of the motor.

In determining whether evidence is sufficient to sustain a conviction in a jury trial, [the Supreme Court] does not resolve conflicts of evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented to a jury--all of which is within a jury's province for disposition. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.

State v. Schott, 222 Neb. 456, 462, 384 N.W.2d 620, 624-25 (1986).

Heil's testimony supplied the jury with relevant evidence from which a jury could reasonably find that the value of Burgess' outboard motor was "three hundred dollars or more." See § 28-518(2).

Next, Clancy complains that his telephone call to Jane DeVaney was erroneously admitted as evidence. According to her testimony, for 3 years Jane DeVaney had been acquainted with Clancy, who dated DeVaney's daughter. About 11 p.m. on an unspecified date early in December 1985, Clancy brought a Mercury outboard motor to DeVaneys' home and asked to leave the motor in the DeVaney garage. Sometime later, Jane DeVaney became suspicious about the motor and "thought it might have been stolen." On February 4, 1986, she telephoned the Adams County Sheriff's Department concerning the outboard motor. In response to Mrs. DeVaney's call, Deputy Larry Peterson came to the DeVaney home on February 4 to investigate, and later transported the outboard to the basement of the Adams County Courthouse, where Burgess identified the motor as his missing and stolen property. At the sheriff's office on the evening of February 5, Deputy Peterson interrogated Clancy concerning the Mercury motor. After his arrest Clancy posted bond, was released from custody, and, in a telephone call to Jane DeVaney, said "he was going to come over and kill Gary and I, or else have our house blown up." Gary is Jane DeVaney's husband. On the basis of relevancy Clancy objected to Jane DeVaney's testimony about the telephone call, and when that objection was overruled, Clancy requested a mistrial, which the court denied. In his testimony Clancy never denied the telephone call to Jane DeVaney or the contents of that call as testified by her. In pertinent part Neb.Rev.Stat. § 28-919 (Reissue 1985) states:

(1) A person commits an offense if, believing that an official proceeding or investigation of a criminal matter is pending or about to be instituted, he attempts to induce or otherwise cause a witness, informant, or juror to:

....

(b) Withhold any testimony, information, document, or thing; ...

....

(2) Tampering with witnesses, informants, and jurors is a Class IV felony.

Clancy contends: "Since Appellee did not establish that [the telephone call to...