Summary
The Nebraska Supreme Court held that an information sufficiently charged burglary under Neb. Rev. Stat. § 28-507 by alleging that Michael M. Dicken broke and entered a building with intent to commit stalking or to steal property. The court rejected arguments that stalking could not serve as the felony underlying burglary because it may be a misdemeanor or requires a course of conduct. The court affirmed Dicken’s conviction and sentence, concluding that the district court properly overruled his motion to quash.
Topics
Practice areas
Questions Presented
- Whether the amended information sufficiently charged burglary when it alleged that Dicken entered a building with intent to commit stalking or to steal property of any value.
- Whether stalking may serve as the felony underlying the intent element of burglary under Neb. Rev. Stat. § 28-507 even though stalking may be a misdemeanor absent specified enhancement circumstances.
- Whether the requirement that stalking involve a course or pattern of conduct prevented stalking from serving as the intended felony for burglary.
- Whether the district court erred in convicting and sentencing Dicken based on the information.
Holdings
- The information was sufficient because it used the statutory language of Nebraska's burglary statute, specified stalking as the felony Dicken allegedly intended to commit, alternatively alleged intent to steal property of any value, and reasonably informed him of the charge and the defense he needed to prepare.
- Stalking may serve as the felony underlying the intent element of burglary when it is alleged to be committed in circumstances that classify it as a felony; the fact that stalking is a misdemeanor in other circumstances does not exclude it from the broad statutory phrase "any felony."
- The course- or pattern-of-conduct requirement for stalking does not prevent stalking from serving as the intended felony for burglary.
- The conviction and sentence were not erroneous because the information was sufficient, and Dicken's assignment challenging the factual basis did not establish reversible error.
Key quotations
“Because stalking is an offense that can be a felony, the reference to stalking in place of the “any felony” language of § 28-507 indicated that the State was alleging Dicken had the intent to commit stalking in a manner such that the offense would be classified as a felony.” (312)
“We see no reason that breaking and entering with the intent to commit an act or acts that are part of a pattern or course of conduct that constitutes felony stalking would not be encompassed within the “intent to commit any felony” under § 28-507.” (313)
Factual background
The State alleged that Dicken forcibly broke into the home of a former romantic partner after posting her personal information online, resulting in calls and visits from strangers. The amended information charged burglary based on intent to commit stalking or to steal property of any value. At the plea hearing, the State described multiple break-ins and related conduct, and Dicken did not object to the factual basis. He pleaded guilty and received a sentence of 51 to 108 months' imprisonment.
Procedural history
The State charged Dicken with burglary under Neb. Rev. Stat. § 28-507, alleging that he broke and entered with intent to commit stalking or to steal property. The district court overruled his motion to quash, after which Dicken pleaded guilty pursuant to an agreement under which the State would not charge him as a habitual criminal. The court convicted and sentenced him to 51 to 108 months' imprisonment, consecutive to a sentence in a separate post-release-supervision case. The Nebraska Supreme Court affirmed.