State v. Garza
| Decision Date | 14 August 1992 |
| Docket Number | No. S-91-538,S-91-538 |
| Citation | 487 N.W.2d 551,241 Neb. 256 |
| Parties | STATE of Nebraska, Appellee, v. Alice GARZA, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Trial: Evidence: Appeal and Error. The erroneous admission of evidence in a bench trial of a law action, including a criminal case tried without a jury, is not reversible error if other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court's necessary factual findings; hence, in a bench trial, a reversal is warranted if the record shows that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence.
2. Theft: Value of Goods. An act of theft involving multiple items of property stolen simultaneously at the same place constitutes one offense, in which the value of the individual stolen items may be considered collectively for the aggregate or total value of the property stolen to determine the grade of the theft offense under Neb.Rev.Stat. § 28-518 (Reissue 1989).
3. Trial: Evidence: Photographs. A photograph is admissible in evidence if the photograph's subject matter or contents are depicted truly and accurately at a time pertinent to the inquiry and the photograph has probative value as relevant evidence.
4. Trial: Evidence: Photographs: Appeal and Error. Admission or exclusion of photographs as evidence is within the discretion of a trial court, whose evidential ruling on the photographs will be upheld on appeal unless the trial court abused its discretion.
5. Theft: Value of Goods. Unless specified by the statute defining a criminal offense of theft, the value of property is not an element of the crime of theft, but is relevant to the grade of the offense and determines the penalty that may be imposed on conviction.
6. Theft: Value of Goods: Appeal and Error. Regarding the grades of theft, expressed in Neb.Rev.Stat. § 28-518 (Reissue 1989), the value of property is a question for the fact finder, whose finding will not be set aside unless clearly erroneous.
7. Theft: Value of Goods: Proof. Although value is not an element of theft, the State must prove, by evidence beyond a reasonable doubt, the value of the property that is the subject of the theft charge.
8. Theft: Value of Goods: Proof. Value to be proved concerning a theft charge is market value at the time and place where the property was criminally appropriated.
9. Theft: Value of Goods. Rules for establishing value in civil actions apply in a criminal case, to determine the grade of the theft prosecuted.
10. Theft: Value of Goods. In reference to the crime of theft, value is established by evidence concerning the price at which property identical or reasonably similar to the property stolen is offered for sale and sold in proximity to the site of the theft.
11. Theft: Value of Goods: Words and Phrases. Price 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.
Gerard A. Piccolo, Hall County Public Defender, for appellant.
Don Stenberg, Atty. Gen., and J. Kirk Brown, for appellee.
Alice Garza appeals from her conviction in a bench trial in the district court for Hall County on the charge of felony shoplifting, theft of movable property with a value more than $300, but less than $1,000, see Neb.Rev.Stat. § 28-518 (Reissue 1989) (grades of theft offenses), which is a violation of Neb.Rev.Stat. § 28-511.01 (Reissue 1989) of the Nebraska Criminal Code, that provides in relevant part:
(1) A person commits the crime of theft by shoplifting when he or she, with the intent of appropriating merchandise to his or her own use without paying for the same or to deprive the owner of possession of such property or its retail value, in whole or in part, does any of the following:
(a) Conceals or takes possession of the goods or merchandise of any store or retail establishment....
Evidence of Theft.
Late in the afternoon of September 29, 1990, Timothy Meguire, an off-duty Grand Island police officer, was working as a security or "loss-prevention" officer for Dillard's department store at the Conestoga Mall in Grand Island. Meguire noticed a couple "weaving through the display racks" in the juniors department at Dillard's. Meguire, as a result of his previous police work, recognized Alice Garza as one of the couple. Garza was wearing a "new suede black jacket" and had "a large black and white shopping bag over her shoulder that was stuffed full." Meguire followed as Garza and her companion left Dillard's and proceeded to an automobile in the mall parking lot, where Meguire observed Garza place the suede jacket in the car.
Meguire, who had returned to Dillard's, used a store telephone to contact a salesperson in Dillard's juniors department and ascertain whether any jackets had been sold. At that point, Meguire saw Garza and her companion reenter Dillard's, where Meguire detained the couple and summoned Nancy VanBibber, Dillard's assistant store and operations manager. When VanBibber appeared on the scene, Meguire recounted what he had observed and asked Garza to accompany him to the car in the parking lot. En route, Garza, without any inquiry or prompting from Meguire, said: When Garza and Meguire arrived at the car, Garza opened the car's door, "reached in, pulled the two jackets and the two dresses out and gave them" to Meguire. On returning to Dillard's with Garza, Meguire took the articles that Garza had handed over and placed them on a store counter in the presence of VanBibber. Meguire then took a color photograph of the suede jacket, brown jacket, gold dress, and blue dress which Garza had removed from the car in the parking lot. Garza "admitted stealing" the jackets and dresses. Police were summoned and, apparently, arrested Garza for shoplifting.
Under Dillard's procedure, a clerk at a checkout counter "rings a sale on the register" and then, without removing the sales or price tag, places the sold item in a bag with a Dillard's receipt. Sales or price tags were still affixed to the dresses surrendered by Garza and depicted in the photograph taken by Meguire.
At Garza's trial, the photograph taken by Meguire was offered during the State's case. Meguire testified that the photograph "fairly and accurately represented the condition of the property [that he] received from [Garza] on September 29, 1990." VanBibber, who was present when the photograph was taken, testified that the depicted items were offered for sale at Dillard's. When the State offered the photograph as evidence, there was no accompanying written statement containing verification by the arresting officer. Over Garza's objection (relevance, foundation), the court received the photograph into evidence on the basis of § 28-511.01(2), which provides:
In any prosecution for theft by shoplifting, photographs of the shoplifted property may be accepted as prima facie evidence as to the identity of the property. Such photograph shall be accompanied by a written statement containing the following:
(a) A description of the property;
(b) The name of the owner or owners of the property;
(c) The time, date, and location where the shoplifting occurred;
(d) The time and date the photograph was taken;
(e) The name of the photographer; and
(f) Verification by the arresting officer.
The purpose of this subsection is to allow the owner or owners of shoplifted property the use of such property during pending criminal prosecutions.
Evidence of Property Value.
Regarding the items surrendered by Garza and depicted in the photograph taken by Meguire, the court sustained Garza's objection to VanBibber's testifying about the "value" of the four items. Immediately thereafter, over Garza's objection and referring to the price or sales tag for each item taken by Garza, VanBibber testified and verified Dillard's price: The suede jacket had a price of $85, while the brown jacket was priced at $170, the gold dress at $130, and the blue dress at $152, so that the total of the prices was $537.
Garza offered no evidence.
At the conclusion of the trial, the court found Garza guilty of shoplifting property with a value greater than $300, but less than $1,000, and later sentenced Garza to prison for a term of 1 to 2 years. See § 28-518(2) () and Neb.Rev.Stat. § 28-105(1) (Reissue 1989) (punishment for a Class IV felony conviction).
Garza contends that the photograph taken by Meguire was inadmissible under § 28-511.01(2) () and that the evidence is insufficient to sustain Garza's conviction and sentence.
The erroneous admission of evidence in a bench trial of a law action, including a criminal case tried without a jury, is not reversible error if other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court's necessary factual findings; hence, in a bench trial, a reversal is warranted if the record shows that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence. See, State v. Thomas, 240 Neb. 545, 483 N.W.2d 527 (1992); State v. Lomack, 239 Neb. 368, 476 N.W.2d 237 (1991).
Before addressing Garza's assignments of error, we must consider a particular aspect of Garza's appeal that has been only obliquely and briefly mentioned by the parties in their briefs and oral arguments before this court. Each...
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