State v. Miner
| Decision Date | 18 April 2003 |
| Docket Number | No. S-02-667.,S-02-667. |
| Citation | 265 Neb. 778,659 N.W.2d 331 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. Dean R. MINER, Appellant. |
Charles R. Maser, Grand Island, of Truell, Murray & Maser, P.C., for appellant.
Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
After a jury trial, Dean R. Miner was convicted of one count of branding another's livestock in violation of Neb.Rev.Stat. § 54-1,124 (Cum.Supp.2002) and sentenced to a term of imprisonment of 3 to 6 years. He perfected this direct appeal.
An information filed on June 19, 2001, charged Miner with willfully and knowingly branding or causing to be branded livestock owned by Gary Langenheder, or willfully and knowingly effacing, defacing, or obliterating Langenheder's brand, in Merrick County, Nebraska, "on or about March 22-March 26, 2001." See § 54-1,124. A jury trial was held on April 16 and 17, 2002.
At trial, Langenheder testified that he farms and also raises cattle near St. Libory, Nebraska. In March 2001, Langenheder was feeding 71 yearling heifers in a pen located approximately 1 mile from his home in Howard County. The cattle were branded with Langenheder's registered brand, consisting of a letter "U" over an arrow placed on the right hip of each heifer. At approximately 3:30 p.m. on March 22, Langenheder observed that all the cattle were in the pen.
When Langenheder went to the pen on the following morning, March 23, 2001, he observed that some of the gates had been opened and that some corral panels had been moved. He also noticed vehicle tracks leading to a cattle load-out facility. After counting only 49 head of cattle, Langenheder concluded that someone had hauled away the other 22 heifers, and he notified law enforcement officials.
Approximately 5 days later, 10 of the missing heifers were located at a sale barn in Beatrice, Nebraska, and another 10 were located at a feedlot in Octavia, Nebraska. Langenheder and Rick Bickford, a criminal investigator and supervisor for the Nebraska Brand Committee, traveled to these locations and identified the heifers. Each of the 20 heifers had new purple ear tags with the name "D.R. Miner" and a number written on the tag.
Langenheder testified that he had branded his cattle approximately 30 days earlier. The cattle located in Beatrice and Octavia had new brands placed over Langenheder's brand on the right hip of each heifer. Each new brand consisted of an "M open 6" pattern and had fresh burn marks. The "M open 6" brand was issued to Miner in October 2000 and expired September 30, 2001. Photographs taken by Bickford depicting the new ear tags and the new brands on the cattle were offered and admitted at trial. Bickford testified that the placement and orientation of the brand on an animal are part of the brand. Miner's "M open 6" brand was to be placed on the left side of the animal. Bickford testified that some of the cattle appeared to have been rebranded more than once in different directions. Upon making inquiry, Bickford learned that the sale barn in Beatrice had issued payment for the cattle to an individual named "Lee Rankin," but that Miner was identified as the owner and seller of the cattle on sale documents dated March 26, 2001.
On March 29, 2001, Bickford and the sheriff of Howard County traveled to Miner's residence near Silver Creek, in Merrick County, Nebraska. When they initially asked Miner about the brands on the cattle, he blamed it on "the damn kids," but did not elaborate. Miner told Bickford that he bought the heifers from an individual in Grand Island, but could not locate the sale documents in his home. He then called the person he had identified as the seller and obtained by fax what Bickford referred to as a "makeshift bill of sale," reflecting a purchase of cows and bulls on November 20, 2000. Bickford doubted these were the cattle in question because the documents made no reference to calves which could have grown to the size of the heifers located in Beatrice. Upon further questioning, Miner told Bickford that the "M open 6" brand had been placed on the heifers sideways because he had carpal tunnel syndrome. He also stated that the weather had been very cold when he branded the cattle 2 weeks earlier and that the cattle had been jumping around in the chute. Bickford testified that the brands did not appear to be 2 weeks old.
Miner then accompanied Bickford and the sheriff to an outbuilding on Miner's property and showed Bickford his "M open 6" electric branding iron. While on Miner's property, Bickford observed feedlot pens, a cattle working chute, corrals, and a cattle load-out chute. When Bickford suggested DNA testing of the heifers in order to prove that they came from the cows and bulls Miner had purchased, Miner stated he did not know which cows the heifers came from and that he no longer had the herd sires.
On the following morning, Miner met with Bickford and the sheriff at the Howard County courthouse in St. Paul, Nebraska. At that meeting, Miner produced a written statement which differed significantly from the account he had given Bickford and the sheriff on the previous day. The statement provided:
I knew "Bob" was in trouble because he had lost several of his trucks, and he had a family member dying of cancer. I figured "Bob" had to have some pretty high medical bills.
On March 31, 2001, the next afternoon, Bickford and the sheriff executed a search warrant at Miner's residence. One item seized during the search was a document stored on the hard drive of a computer in the home, from which it was printed. This document, identified as exhibit 63, was offered by the State at trial and received over the objection of Miner's counsel.
During his cross-examination, Bickford conceded that Miner never directly said he worked or branded the cattle at his residence. He admitted that his investigation produced no witnesses who had observed the cattle in question on Miner's property. Bickford further admitted that the branding iron was portable and that there was no physical evidence that the cattle had been at the Miner residence.
Testifying in his own defense, Miner stated that while living near Silver Creek, he bred cows and then raised and sold the calves. He testified that he bought 84 cows with calves and 3 bulls from an individual in Grand Island in November 1999. From that transaction, he produced two undated bills of sale, which differed from the bill of sale he originally furnished to Bickford.
Miner further testified that he had a trucking agreement with Gail Hammitt whereby Miner furnished a truck used by Hammitt's driver to pull Hammitt's trailers, for which Miner was to receive 26 cents for each mile driven. According to Miner, Hammitt failed to pay him under this agreement, and in October 2000, Miner agreed to take cattle from Hammitt in partial payment of the debt. Miner produced a bill of sale for the transaction dated October 15, 2000, which states that Miner was to take possession of 126 pairs of "running aged" cows and 5 bulls after January 1, 2001.
On direct examination, Miner testified that cattle, including those which he subsequently sold in Beatrice, were delivered to his residence on March 23, 2001, while Miner was attending a basketball tournament. Miner claimed that when he returned home, he discovered that the cattle had been branded with his brand and that new ear tags had been affixed. He denied branding the cattle himself. He stated that he did not realize that the cattle may have been stolen until Bickford and the sheriff came to his home. At that time, Miner stated that he gave Bickford a different account of the delivery of the cattle because he wanted an opportunity to talk to Hammitt before accusing Hammitt. Miner subsequently admitted that the person referred to as "Bob" in his written statement dated March 30, 2001, is Hammitt.
On cross-examination, Miner explained that the 700-pound heifers delivered to him in March 2001 resembled the calves he had seen in Hammitt's pasture the previous October 2000. Miner stated that he paid $418 for each cow-calf pair in October, and by March 2001, he had sold the heifers alone for $500 each. Miner attributed this profit to favorable market conditions. Miner explained that Hammitt had started delivering cattle pursuant to the bill of sale on March 12, and delivered 100 head between then and March 23. Miner testified that he...
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