State v. Marks
| Decision Date | 28 April 2020 |
| Docket Number | No. A-18-1160.,A-18-1160. |
| Parties | STATE of Nebraska, appellee, v. Crystal M. MARKS, appellant. |
| Court | Nebraska Court of Appeals |
David J. Tarrell, of Berry Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
Crystal M. Marks was convicted by a jury of a certificate of title violation and theft by unlawful taking. The district court subsequently sentenced Marks to a total of 4 to 6 years’ imprisonment. On appeal, Marks challenges only her conviction for theft by unlawful taking. Specifically, she asserts that there was insufficient evidence presented at trial to prove the value of the item taken. In addition, she asserts that she received ineffective assistance of trial counsel because counsel failed to object to the victim’s testimony regarding value. Upon our review, we affirm Marks’ conviction for theft by unlawful taking. However, we find that the court committed plain error in its sentencing of Marks for that conviction. Although the second amended information charged Marks with theft by unlawful taking ($1,500 to $5,000), a Class IV felony, at sentencing, the district court treated the theft by unlawful taking charge as a Class IIA felony. Upon our review, we affirm Marks’ convictions for a certificate of title violation and for theft by unlawful taking. However, we reverse her sentences for those convictions and remand the cause with directions to resentence Marks in accordance with this opinion.
The State filed an amended information charging Marks with a certificate of title violation, a Class IV felony, pursuant to Neb. Rev. Stat. § 60-179 (Reissue 2010) and with theft by unlawful taking, $5,000 or more, a Class IIA felony, pursuant to Neb. Rev. Stat. §§ 28-511 and 28-518(1) (Reissue 2016). The charges against Marks stem from an incident which occurred in November 2016.
On November 16, 2016, Stephen Gibson-Daniel (Stephen) was at home in his apartment in Lincoln, Nebraska, when he was notified by one of his neighbors that a tow truck was in the parking lot of the apartment complex and was attempting to tow away his 2004 Nissan Titan pickup truck. Stephen spoke with the driver of the tow truck. He informed the driver that the pickup truck belonged to him and that he did not want it towed. The tow truck driver left the parking lot without Stephen’s pickup truck. The next day, a tow truck again appeared in the parking lot of the apartment complex in order to tow away the pickup truck. Stephen again successfully prevented the towing of his truck.
On November 18, 2016, for the third day in a row, a tow truck arrived in Stephen’s apartment complex parking lot in order to tow away his pickup truck. This time, Marks was with the tow truck. Marks indicated that she and/or her boyfriend had recently purchased the pickup truck from Stephen and that she wished it to be towed from the parking lot. Stephen disputed this claim. He denied selling Marks or anyone else the pickup truck, and he indicated he had met Marks on only one prior occasion, when he gave her a ride to her mother’s house after she said she was stranded at his apartment complex. When Stephen attempted to enter his pickup truck to obtain documentation of his ownership to show to the tow truck driver, he claimed that Marks grabbed for his keys, his keyring broke, and she took one of the two keys he possessed for the pickup truck. Ultimately, the tow truck driver left the parking lot without towing the pickup truck.
Marks then sought the assistance of police in order to obtain possession of the pickup truck. She showed police a certificate of title for the pickup truck which had recently been issued in her name. Police returned to Stephen’s apartment complex with Marks, where they spoke with Stephen. He again denied selling the truck to Marks or to anyone else. After Stephen had seen Marks with the tow truck, he had checked his glove box and discovered that the title to his truck, along with his registration, his insurance card, and his roadside assistance information, had been stolen. He surmised that Marks took this documentation when he had given her a ride a few weeks prior. On the way to Marks’ mother’s house, Stephen had stopped at a gas station to purchase a soda. Marks was alone in his truck for approximately 5 minutes. Stephen explained that the title to the pickup truck was in his glove box because he had planned to meet up with his ex-wife so that she could sign the truck over to him, as he had been awarded the truck in their recent divorce.
Because Marks possessed a certificate of title for the pickup truck, police directed Stephen to turn over all of the keys to the truck to Marks, to clean out his belongings from the truck, and to turn the truck over to Marks. Marks was unable to start the pickup truck, so it was ultimately towed away. Two days later, Marks sold the pickup truck to her uncle, Richard Macku, for $1,500 because "[s]he just wanted the money." Macku has retained possession of the pickup truck since that time.
Stephen subsequently filed a police report claiming that Marks had perpetrated a fraud by obtaining a title in her name. Both Stephen and his ex-wife, who was also on the title to the pickup truck, indicated that they had not signed the title which purported to sell the truck to Marks. They claimed that the signatures on the title were not theirs. After an investigation, police cited Marks.
Prior to trial being held on the charges alleged in the amended information, Marks filed a plea in abatement, alleging that "there was insufficient evidence adduced at the preliminary hearing to warrant a bindover of count 2 (theft) in this case." After a hearing, the district court sustained, in part, Marks’ plea in abatement. The court explained:
(Emphasis in original.)
Given the district court’s decision to sustain, in part, the plea in abatement, the State filed a second amended information. In the second amended information, it again charged Marks with a certificate of title violation, but it amended the second count to charge Marks with theft by unlawful taking, $1,500 to $5,000, a Class IV felony, pursuant to §§ 28-511 and 28-518(2).
In September 2018, a jury trial was held on the charges alleged in the second amended information. Ultimately, the jury found Marks guilty of both a certificate of title violation and theft by unlawful taking. The jury found that the value of Stephen’s pickup truck at the time of the theft was $7,000. The district court sentenced Marks to 1 to 1 year’s imprisonment on her conviction for a certificate of title violation and to 3 to 5 years’ imprisonment on her conviction for theft by unlawful taking. The court ordered the sentences to run consecutively to one another.
Marks appeals here.
On appeal, Marks asserts that there was insufficient evidence presented at trial to prove the value of the 2004 Nissan pickup truck. She also asserts that her trial counsel provided ineffective assistance when counsel failed to object to Stephen’s testimony regarding his opinion of the value of the truck.
Marks asserts that the evidence presented at trial was insufficient to prove the value of the 2004 Nissan pickup truck. Specifically, Marks alleges that "there is nothing in the record, other than the victim’s unreliable and irrelevant guess, to prove that the vehicle was worth $4000 to $5000." Brief for appellant at 12. Upon our review, we find the evidence presented at trial was sufficient to support Marks’ conviction for theft by unlawful taking.
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. McPherson , 266 Neb. 715, 668 N.W.2d 488 (2003) ; State v. Shipps , 265 Neb. 342, 656 N.W.2d 622 (2003).
At trial, Stephen testified about the condition of the pickup truck and offered his opinion about its value at the time of the theft in November 2016. Stephen described the pickup truck as a 2004 green, four-door Nissan Titan pickup truck. The truck’s...
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