State v. Glassco, No. A-08-837 (Neb. App. 7/28/2009)

Decision Date28 July 2009
Docket NumberNo. A-08-837.,A-08-837.
PartiesSTATE OF NEBRASKA, APPELLEE, v. SCOTTY GLASSCO, APPELLANT.
CourtNebraska Court of Appeals

Appeal from the District Court for Nance County: MICHAEL J. OWENS, Judge. Affirmed.

F. Matthew Aerni and Chad J. Wythers, of Berry Law Firm, for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

INBODY, Chief Judge, and SIEVERS and CASSEL, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

INBODY, Chief Judge.

INTRODUCTION

Scotty Glassco appeals his convictions for burglary and misdemeanor theft. His sentence on the burglary conviction was enhanced pursuant to the habitual criminal statute. Glassco claims that the district court erred in denying his motion to suppress evidence, that the evidence was insufficient to support his convictions, and that the court erred in applying the habitual criminal statute to him.

STATEMENT OF FACTS

Since 1983, Duane Myer and his father, Elmer Myer, have rented a house in rural Nance County, Nebraska. In March or April 2006, Donald Kilday purchased the property on which the house was located, and the following year, in June 2007, Kilday informed the Myers that they would need to move. In addition to the house that the Myers had rented, the property also included other improvements including a steel building, a barn, a corn crib, three or four grain bins, and several other outbuildings. Kilday intended to burn several of these outbuildings down, but before he could do that, the buildings needed to be cleaned out, so in July 2007, Kilday hired Glassco to help clean out the buildings. Kilday told Glassco that, if Glassco wanted some specific items located in the outbuildings that were just going to be burned, he could take the items. Glassco continued working for Kilday until approximately November 23.

In September 2007, the Myers started the process of moving, which included clearing their possessions out of the house and removing their property from the outbuildings, which move was completed in February 2008. During this process, the Myers resided between two residences. On November 4, Duane reported to the Nance County Sheriffs Department that his home on Kilday's property had been broken into and some items had been stolen, including an extensive serialized Nebraska Cornhusker belt buckle collection, other belt buckle collections, over $300 in coins, and some tools. Upon investigation, Nance County Chief Deputy Sheriff Mark Monroe discovered that the doorjamb of the Myers' house had been broken and that the door had been jammed shut. Duane indicated that the door had not previously been like that. Later, Duane discovered that a pair of binoculars and his checkbook had also been stolen and informed the sheriffs office that someone had forged his signature on checks from his account. It was determined that one of the checks had been passed at a drug store in Lincoln, Nebraska, and Lincoln police were able to obtain video surveillance footage of the transaction. Lincoln police sent still photographs taken from the video via e-mail to the Nance County Sheriffs Department. The Myers viewed the photographs at the sheriffs office and identified the person in the picture as Kilday's hired man, but they did not know his name. Kilday viewed the photographs and identified the individual in the photographs as Glassco.

Deputy Monroe obtained a search warrant for Glassco's residence in Columbus, Nebraska, which warrant included all vehicles located at that address and specifically included, but was not limited to, a white 1984 GMC C2500 van, license plate number 10BL86. (The search warrant is not included in the record before this court; however, the affidavit in support of the search warrant is included in our record, so we have used this to determine the scope of the search warrant requested.) Officers did not discover any incriminating evidence as a result of this search. However, neither Glassco nor the van was located at the residence at the time of the execution of the search. Glassco's girlfriend informed officers that Glassco was at work and indicated that she would take officers to the vehicle's location and give her consent to search the van.

En route to the location, Deputy Monroe learned that the van was registered and titled in the names of Lawrence and Linda Klink, so officers attempted to contact the Klinks for permission to search the van. Deputy Monroe was told at a later time by Glassco's girlfriend that she and Glassco were in the process of purchasing the van from the Klinks, and several days later, this information was confirmed by the Klinks. Upon arriving at Glassco's work location, a construction site, Glassco's girlfriend rescinded her consent to search.

Deputy Monroe talked to the site foreman who brought Glassco back to the area where Deputy Monroe was waiting. Aware that the search warrant did not include the address where the van had been located, Deputy Monroe twice asked Glassco for consent to search the van, and each time, Glassco refused. After Glassco's second refusal, Deputy Monroe told Glassco that he was being "looked into" by Lancaster County, Nebraska, law enforcement regarding forged checks and informed Glassco that Deputy Monroe was aware Glassco was on parole and that a parole officer could give consent to search. Deputy Monroe said that he would be contacting Glassco's parole officer to see if he could obtain a consent to search Glassco's person and property. Deputy Monroe also told Glassco that the van "was included" in a search warrant he had obtained. Deputy Monroe then contacted Glassco's parole officer attempting to get consent to search Glassco's vehicle, but the parole officer stated that he needed to check with his supervisor and would get back to Deputy Monroe. At that point, through radio traffic, Deputy Monroe learned that the Klinks had consented to a search of the van, which Deputy Monroe believed that Glassco could also hear due to Glassco's proximity. Immediately after the communication was received regarding the Klinks' consent to search the van, Glassco consented to a search of the van. Glassco's consent was granted approximately 5 minutes from the time that Glassco first arrived on the scene. A search of the van revealed, among other things, two hunting knives, a Nebraska Cornhusker belt buckle serial number 1556, two watches, a ring, and a pair of binoculars.

Glassco was charged with burglary and theft by unlawful taking over $1,500, both Class III felonies. The information also alleged that Glassco was a habitual criminal in that he "has been twice convicted of a crime and committed to prison in this or another state or by the United States for terms of not less than one year." Glassco moved to suppress the evidence obtained pursuant to the search of his van on the basis that the search was conducted without a valid warrant, was made without probable cause, was without consent, and was without the existence of exigent circumstances. A hearing thereon was held, and the district court denied the motion, noting that the validity of the search of the van depends on the voluntariness of the consent obtained from Glassco because the van was searched at a different location than provided for in the search warrant. The district court found that, based on a totality of the circumstances, Glassco's consent to search was voluntarily made as there was no evidence of coercion or threats.

At trial, in addition to evidence establishing the facts as previously set forth, Elmer identified the two watches found in Glassco's van as belonging to his wife and testified that he recognized the ring because it was his wife's engagement ring. He testified that at least one of the watches was on a dresser in his bedroom before it was taken, that the other items were located inside the house, and that the house was always locked when he and Duane were not there. Further, according to Kilday, after September 2007, Kilday would check weekly to see if the Myers were still residing at the property and always found the house locked. Furthermore, Kilday stated that Glassco did not have permission to enter the house. Duane identified that the hunting knives, the Nebraska Cornhusker belt buckle with number 1556 on it, and a pair of binoculars taken from his home were all found in Glassco's vehicle. The owner of a belt buckle company testified that the newer Nebraska Cornhusker belt buckles are worth $25 each.

Glassco testified in his own defense. He generally denied taking the items from the Myers' home and denied knowing that the items were in the van. He further testified that Kilday had instructed him that Glassco could have other items from the shed that he might find useful. Glassco testified that he was never in the Myers' home, nor did he remove anything from their home, and that he found the Nebraska Cornhusker belt buckle in a wood box in the outbuilding he was cleaning out. According to Glassco, he found the two knives in late August or early September 2007, at Genoa Lakes, when he and his girlfriend were having a picnic. Glassco testified that he purchased the binoculars.

The district court found Glassco guilty of both offenses, but found that the value of the property taken was $25, making the theft offense a Class II misdemeanor, rather than a Class III felony as originally charged. On July 1, 2008, which was after Glassco's convictions, the State sought leave to amend the information to add specificity to the habitual criminal allegations over Glassco's objections that the State had sufficient time prior to Glassco's convictions to amend the information and that allowing the State to do so at such a late time unfairly prejudiced Glassco. The court overruled Glassco's objection and granted the State leave to amend the habitual criminal allegations of the information to allege that Glassco

has been twice convicted of a crime, sentenced and committed to prison in this or any...

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