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State v. Burnett2/3/2004
(not designated for permanent publication)
INTRODUCTION
Derrick R. Burnett was convicted of theft by shoplifting in violation of Neb. Rev. Stat. § 28-511.01 (Reissue 1995) and sentenced to 1 year's imprisonment, with 23 days' credit for time served. Burnett challenges his conviction and sentence, claiming that there was insufficient evidence to support his conviction and that his sentence of incarceration was an abuse of discretion. Pursuant to this court's authority under Neb. Ct. R. of Prac. 11B(1) (rev. 2000), this case was ordered submitted without oral argument. For the reasons set forth herein, we affirm.
BACKGROUND
On December 13, 2001, Burnett was charged by information in the district court for Adams County, Nebraska, with one count of theft by shoplifting ($200 or less), third offense, in violation of § 28-511.01. Burnett was convicted in a bench trial on June 26, 2002.
Kandy Hallett, a security employee at Russ's IGA grocery store (Russ's) in Hastings, Nebraska, testified that on the afternoon of June 4, 2001, she observed a black male (later identified as Burnett) wearing a dark hooded sweatshirt, with the hood up over his head, walk into the store, take two cartons of Marlboro cigarettes from the display case positioned between two aisles, walk through a checkout stand, and then begin to exit the store without paying for the merchandise. Hallett testified that when Burnett reached the first set of doors that lead into the vestibule area of the store, Burnett briefly turned around and started to come back into the store, but then turned back around and ran out. Hallett observed this incident from the second floor at the back of the store, behind a one-way glass window. Hallett immediately announced over the store intercom a code that alerted the employees that a shoplifting incident had occurred. The store manager, Brad Rosch, responded to Hallett's intercom announcement via telephone, and Hallett explained to Rosch what had happened. Hallett then observed Rosch chase Burnett out of the store. Thereafter, Hallett went to the front of the store, where she met Rosch coming back in. Rosch gave Hallett the license plate information from the car in which Burnett had fled, after which time Hallett called the 911 emergency dispatch service.
Hallett testified that after the shoplifting incident occurred, she scanned a carton of Marlboro cigarettes in the store's computer system, which indicated that the carton's retail value, or price, was approximately $32. Hallett included this information in a report that she prepared in the ordinary course of her job duties.
Rosch testified, and he corroborated Hallett's testimony. Rosch also testified that after he chased Burnett, he saw Burnett get into the passenger side of a blue car parked along the south side of the building. Rosch heard Burnett yell to the driver, " o, go, go." Rosch further stated that he ran up to the car and saw Burnett and the driver, but saw no one else in the car. Rosch took down the car's license plate information, and then he and Hallett called the police. Rosch stated that he thought Burnett was wearing a red sweatshirt. In addition, Rosch testified that the retail value of each carton of cigarettes was approximately $32.
Andrea Towler, a police officer with the Hastings Police Department, testified that she was dispatched to Russ's in connection with a shoplifting incident that had been reported at approximately 3 o'clock in the afternoon on June 4, 2001. It was reported that a black male had been observed running out of the store with two cartons of cigarettes. Towler was given a description of the car in which Burnett had fled and t
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