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State v. Burnett2/3/2004
incarceration.
STANDARD OF REVIEW
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. 734, 668 N.W.2d 504 (2003); State v. Shipps, 265 Neb. 342, 656 N.W.2d 622 (2003). The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. McPherson, supra.
Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Segura, 265 Neb. 903, 660 N.W.2d 512 (2003). An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. State v. Holecek, 260 Neb. 976, 621 N.W.2d 100 (2000).
ANALYSIS
Sufficiency of Evidence
Burnett alleges that there was insufficient evidence to support his conviction of theft by shoplifting, because there was conflicting testimony about the color of clothing that he was allegedly wearing that day and because when he was arrested, the police found two cartons of "Doral" cigarettes rather than Marlboro cigarettes. Brief for appellant at 6.
Burnett was convicted under § 28-511.01(1), which provides in relevant part:
A person commits the crime of theft by shoplifting when he or she, with the intent of appropriating merchandise to his or her own use without paying for the same or to deprive the owner of possession of such property or its retail value, in whole or in part . . . . . . onceals or takes possession of the goods or merchandise of any store or retail establishment[.]
Neb. Rev. Stat. § 28-518 (Reissue 1995) provides: "(4) Theft constitutes a Class II misdemeanor when the value of the thing involved is two hundred dollars or less. . . . (8) In any prosecution for theft under sections 28-509 to 28-518, value shall be an essential element of the offense that must be proved beyond a reasonable doubt."
The State must prove, beyond a reasonable doubt, the value of the property that is the subject of the theft charge. State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002). The value to be proved concerning a theft charge is market value of the property taken at the time and place where the property was criminally appropriated. Id. Evidence of cost together with evidence concerning age, condition, and utility of the stolen item may afford a basis for determining value. Id.
The record in this case, which has been summarized above, was sufficient to support Burnett's conviction for shoplifting. We reiterate the salient facts as follows: (1) Two eyewitnesses (Hallett and Rosch) saw Burnett run out of Russ's with two cartons of Marlboro cigarettes, valued at approximately $64, without paying for them; (2) Burnett was positively identified by Hallett and Rosch after he was arrested as the person who ran out of the store with the cigarettes; (3) Burnett admitted that he was in Bauman's car (license plate No. 14U15), which was seen fleeing from Russ's on the day in question; (4) Bauman admitted to being the driver of the car fleeing from Russ's with Burnett; (5) Bauman turned over to law enforcement two carton
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