State v. Weik, 42851

• Decision Date: 06 May 1980
• Docket Number: No. 42851,42851
• Citation: 206 Neb. 217,292 N.W.2d 289
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. David Edward WEIK, Appellant.

Page 289

292 N.W.2d 289

206 Neb. 217

STATE of Nebraska, Appellee, v. David Edward WEIK, Appellant.

No. 42851.

Supreme Court of Nebraska.

May 6, 1980.

Syllabus by the Court

1. Value of Goods: Larceny. Where value of goods is an element of the crime charged and there is a market for the goods, the value to be proved is the market value at the time and place of the crime charged.

2. Value of Goods: Larceny. The value of the property at the time and place of the taking is a fact question for the decision of the jury from the evidence adduced.

3. Lesser-Included Offense. The test which must be applied in determining whether or not to submit a lesser-included offense is whether there is evidence which produces a rational basis for a verdict acquitting defendant of the offense charged and convicting him of the lesser offense.

4. Larceny. Rules for establishing value in civil cases are ordinarily applicable in distinguishing between grand and petit larceny.

5. Sentences: Appeal and Error. A sentence imposed which is within the statutory limits will not be disturbed by this court on appeal, absent an abuse of discretion by the trial court.

William B. Zastera, Nebraska City, for appellant.

Paul L. Douglas, Atty. Gen., and Linda A. Akers, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ.

BRODKEY, Justice.

Defendant, David Edward Weik, was charged in an information with committing the offense of grand larceny. He was convicted of this offense after trial to a jury and was sentenced to imprisonment in the Nebraska Penal and Correctional Complex for a term of not less than 1 nor more than 3 years. He has appealed the conviction and sentence to this court. We affirm.

The material facts in this case are that during the late evening hours of November 17, 1978, some tools belonging to one Richard Aufenkamp were taken from the box of a pickup truck owned by him and parked on the street in front of his residence in Nebraska City. The tools in question were contained in two separate tool boxes. In the early part of December, the tools were located at a car dealership in Tecumseh, Nebraska. It appears that one Rodney Huffmann had brought the tools to the automobile dealer as collateral for his indebtedness on an automobile he purchased.

Rodney Huffmann appeared as a witness for the State at the trial. He testified that on the evening of November 17, 1978, he and Weik were driving around the streets of Nebraska City, and that both he and Weik expressed a desire to gain possession of some tools. Huffmann testified that he and Weik removed two boxes of tools from the back of a parked pickup truck, and that he and Weik each took one of the boxes. The tools and the tool boxes were later identified as the ones taken from Aufenkamp's truck. Huffmann further testified that Weik subsequently gave his box of tools to Huffmann and permitted Huffmann to use them as collateral on the vehicle Huffmann purchased.

Weik disputed this testimony. He testified that he did not remove either tool box from the back of the pickup and that he never had possession of either tool box. He also contended he never had a discussion with Huffmann about using the tools as collateral for the purchase of a vehicle.

The principal issue in this appeal involves the sufficiency of the evidence as to the value of the tools taken. The owner of the tools, Aufenkamp, testified at the trial that their value was $500. One Cecil Neil, an expert witness, also testified as to the value of the tools. Mr. Neil was in the business of buying and selling tools, both new and used. He testified that the market value of the tools was $442.75. However, neither of these witnesses testified as to the value of the tools on the specific date of the theft; nor was there any testimony adduced by either party with reference to the variation, if any, in the market value of the tools between the date of the taking and the date of trial.

After hearing the evidence, the jury, which was given the "aiding and abetting" instruction, returned a verdict of guilty and found the value of the stolen tools to be $301.

Weik was sentenced, as previously stated, and has appealed to this court. He assigns the following errors as justifying reversal: (1) That the trial court erred in allowing Aufenkamp and Neil to testify as to the value of the tools and in failing to grant Weik's motion to dismiss the case following the State's rest; (2) That the trial court erred in failing to give an instruction to the jury on the lesser-included offense of petit larceny; and (3) That the sentence imposed was excessive. We now examine these assignments of error.

Weik contends, first, that it was error to allow the testimony as to value by witnesses Aufenkamp and Neil. Specifically, Weik claims that the witnesses did not testify as to the value of the tools as of the date of the taking, the value being an essential element distinguishing grand larceny from petit larceny. Weik was charged with a violation of Neb.Rev.Stat. § 28-506 (Reissue 1975), which provides, in pertinent part:

Whoever steals any money or goods and chattels of any kind whatever, whether the same be wholly money, or wholly in other property, or partly in money and partly in other property, the property of another, of the value of three hundred dollars or upwards ; or steals or maliciously destroys any money, promissory note, bill of exchange, order, draft, receipt, warrant, check, or bond, given for the payment of money, or receipt acknowledging the receipt of money, or other property, of the value of three hundred dollars or upwards shall, upon conviction thereof, be imprisoned in the Nebraska Penal and Correctional Complex not more than seven years nor less than one year.

(Emphasis supplied.)

In construing this section, this court has stated: "(W)here value of goods is an element of the crime charged and there is a market for the goods, the value to be proved is the market value at the time and place (of the taking)." State v. Hayes, 187 Neb. 325, 326, 190 N.W.2d 621, 622 (1971); State v. Stowell, 190 Neb. 615, 211 N.W.2d 130 (1973). See, also, State v. Carroll, 186 Neb. 148, 181 N.W.2d 436 (1970).

While it is true that, under the above statutory rule, it is necessary for the State to establish the market value of the stolen property as of the date of the commission of the offense, which in this case was the taking of the property on November 17, 1978, yet we do not interpret this rule in such a narrow fashion as to require testimony of a witness or witnesses in haec verba that, at the specific time of the taking of the stolen property, it had a market value of a specific amount. These facts may be established circumstantially, as well as by direct evidence, and the ultimate resolution of the value of the property at the time and place of the taking is clearly a fact question for the decision of the jury from the evidence adduced.

In the instant case, while it is true that neither the owner of the property, nor the expert witness, Mr. Neil, testified to the value of the tools as of the date of taking, November 17, 1978, yet the testimony of both witnesses was to the effect that the tools greatly exceeded the $300 specified in the applicable statute. Both witnesses testified at the trial that commenced on April 30, 1979. However, the record is clear that the witness Neil had seen the tools on several prior occasions, and had, in fact, inventoried and placed the valuation upon the tools on December 29, 1978, or approximately 6 weeks after their theft, and long before the trial itself. There is absolutely nothing in the record to indicate that the value of...