State v. Reed
| Decision Date | 27 May 1988 |
| Docket Number | No. 87-268,87-268 |
| Citation | 423 N.W.2d 777,228 Neb. 645 |
| Parties | STATE of Nebraska, Appellee, v. Dan REED, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Circumstantial Evidence: Convictions. Circumstantial evidence is sufficient to support a conviction if such evidence and reasonable inferences that may be drawn from the evidence establish defendant's guilt beyond a reasonable doubt.
2. Intent: Words and Phrases. The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.
3. Convictions: Appeal and Error. It is the province of the Supreme Court, on appeal from a conviction, to refrain from resolving conflicts in the evidence and to sustain the judgment of conviction if, taking the view most favorable to the State, there is sufficient evidence to support the conviction.
4. Criminal Law: Trial: Appeal and Error. Where a jury has been waived and the judge is the trier of the facts in a criminal case, the factual findings will not be disturbed on appeal unless they are clearly wrong.
5. Criminal Law: Trial: Theft. In a theft case where a jury trial has been waived, the value of the property is one of the facts and elements of the crime to be determined by the trial judge, and Neb.Rev.Stat. § 29-2026.01 (Reissue 1985) is not applicable.
Charles F. Fitzke, Scotts Bluff County Public Defender, for appellant.
Dan Reed, pro se.
Robert M. Spire, Atty. Gen., and Lisa D. Martin-Price, Lincoln, for appellee.
Defendant, Dan Reed, appeals his conviction of the crime of felony theft, Neb.Rev.Stat. § 28-511(1) (Reissue 1985), and his sentence of 2 to 4 years' confinement. A jury was waived. We affirm.
The five errors assigned are that the trial court erred in (1) finding the defendant guilty on insufficient evidence, (2) overruling the defendant's motion for directed verdict or dismissal, (3) not making a finding concerning the amount of the theft, (4) allowing the admission of exhibits 1 and 2 at trial, and (5) sentencing the defendant to serve a term of 2 to 4 years, because the sentence is excessive and constitutes an abuse of discretion.
Dan Reed was a short-term resident of Scottsbluff, Nebraska, where he represented himself as engaged in the sale and installation of siding on houses. He did not have a permanent residence address, a vehicle registered in the county, a business location, nor an inventory of siding materials. In May 1984, Reed stopped at the home of James Marshall in Gering, having noticed that the Marshall house needed repairs. Reed left some siding samples with Marshall. Within a few days, Reed returned and measured the Marshall house. On May 17, 1984, Reed had a discussion with Marshall regarding siding for Marshall's house, culminating in the execution of a written agreement, signed by Marshall and Reed, to put siding on the Marshall house for $2,550. Marshall gave Reed his bank check for $1,750 payable to Reed Home Improvement-Dan Reed. Reed told Marshall that he needed the money since he was going to Omaha to get the siding materials so that he could start on the job the following Monday. The agreement had no performance deadline. Marshall offered to give Reed a cashier's check, but Reed said that it was not necessary and that if needed, he could get one. The next day, Reed endorsed and cashed the check, and Marshall's bank account was debited $1,750.
About 10 days later, Reed contacted Marshall and requested an additional $200 for labor. Marshall refused. On about June 8 or 9, 1984, Reed contacted Mrs. Marshall by telephone and said that he understood that Mr. Marshall had suffered a stroke. Reed offered to return the $1,750, but Mrs. Marshall declined the offer and told Reed to put on the siding.
The siding was neither delivered nor installed, and no part of the $1,750 was returned to Marshall. Marshall endeavored to find Reed, since he had become suspicious of Reed's behavior. However, Reed could not be located in the Scottsbluff area. Marshall filed a report with the sheriff's office. A criminal complaint was filed against Reed on June 26, 1984. He was later located and arrested in Denver, Colorado, in the fall of 1985. At the trial, defendant offered no evidence on his behalf. During all of these proceedings defendant was represented by legal counsel. On appeal, defendant filed an additional brief, pro se.
At the conclusion of the State's case in chief, defendant moved for dismissal for failure of proof, which was denied.
Where a jury has been waived and the judge is the trier of the facts in a criminal case, the factual findings will not be disturbed on appeal unless they are clearly wrong. State v. Laue, 225 Neb. 57, 402 N.W.2d 313 (1987).
The first two assignments are discussed together.
The information charged that defendant, "on or about May 17, 1984 ... did unlawfully and feloniously then and there take or exercise control over movable property of James Marshall, with the intent to deprive him thereof, to wit: cash in an amount of $1,750.00...."
Section 28-511(1) provides: "A person is guilty of theft if he or she takes, or exercises control over, movable property of another with the intent to deprive him or her thereof." A conviction under § 28-511(1) is a Class III felony when the value of the property is over $1,000; the value of the property is an element of the crime to be proven by the State; and the jury must make a finding of fact as to that issue. See State v. Scott, 225 Neb. 146, 403 N.W.2d 351 (1987).
In theft cases, it is necessary to consider the application of Neb.Rev.Stat. § 28-510 (Reissue 1985):
Consolidation of theft offenses. Conduct denominated theft in sections 28-509 to 28-518 constitutes a single offense embracing the separated offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and the like. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under sections 28-509 to 28-518, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of the court to insure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.
(Emphasis supplied.)
From the evidence, attention is directed to Neb.Rev.Stat. § 28-512 (Reissue 1985):
Theft by deception. A person commits theft if he obtains property of another by deception. A person deceives if he intentionally:
(1) Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise ...
....
The word deceive does not include falsity as to matters having no pecuniary significance, or statements unlikely to deceive ordinary persons in the group addressed.
The following statutory definitions found in Neb.Rev.Stat. § 28-509 (Reissue 1985) are relevant:
(1) Deprive shall mean:
(a) To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or
(b) To dispose of the property of another so as to create a substantial risk that the owner will not recover it in the condition it was when the actor obtained it;
....
(3) Movable property shall mean property the location of which can be changed ... and documents although the rights represented thereby may have no physical location. Immovable property shall mean all other property;
(4) Obtain shall mean:
(a) In relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another ...
....
(5) Property shall mean anything of value, including real estate, tangible and intangible personal property, contract rights, credit cards, charge plates, or any other instrument which purports to evidence an undertaking to pay for property or services delivered or rendered to or upon the order of a designated person or bearer, choses in action and other interests in or claims to wealth ...
(6) Property of another shall mean property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property....
From the charges in the information, the evidence, and the applicable statutes, the State had the burden to prove beyond a reasonable doubt these elements: (1) Reed took and exercised control over property of another (Marshall); (2) Reed intended to and did obtain the property of another (Marshall) by deception, in that he created or reinforced a false impression of his (Reed's) intention or state of mind; (3) Reed intended to deprive Marshall of the property; and (4) the value of the property was in excess of $1,000.
Much of the proof of those foregoing elements must be found in the circumstantial evidence.
"[C]ircumstantial evidence is sufficient to support a conviction if such evidence and reasonable inferences that may be drawn from the evidence establish defendant's guilt beyond a reasonable doubt." State v. Hunt, 224 Neb. 594, 596, 399 N.W.2d 806, 807 (1987). The State is not required to disprove every hypothesis but that of guilt. State v. Piskorski, 218 Neb. 543, 357 N.W.2d 206 (1984).
"The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident." State...
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