State of Nebraska v. Dale Gartner

Summary

The Supreme Court of Nebraska reviews Dale Gartner’s convictions for theft of county property, focusing primarily on whether the State presented sufficient evidence of the property’s market value at the time of the thefts. The court addresses jury instructions, verdict forms, prosecutorial misconduct, and the appropriate disposition when evidence supports theft but does not establish the felony-level value threshold. The excerpt concludes that the evidence was sufficient for several counts but insufficient to support the fax machine conviction as a Class IV felony.

Holdings

1. A defendant who moves for directed verdict at close of State's case, and when the motion is overruled proceeds with trial and introduces evidence, waives the appellate right to challenge the overruling of the motion, but may still challenge sufficiency of the evidence.
2. The district court erred in giving jury instruction No. 6 which implied guilt could be determined before value, but the error was not prejudicial because the jury was clearly instructed that value must be proved beyond a reasonable doubt and the record shows the jury found value proved for each conviction.
3. The district court did not err in providing verdict forms that specified dates for determining value of stolen items because the forms were consistent with jury instructions that required the State to prove thefts occurred on dates alleged in the information.
4. The district court did not abuse its discretion in overruling motion for mistrial based on prosecutor's improper statement about uncharged items because the prompt admonition to the jury was sufficient to dispel potential prejudice.
5. For Counts III and VI (file cabinet and fax modem), evidence of purchase price at time of theft was sufficient. For Count V (inkjet printer), expert testimony of $25-$50 value was sufficient. For Count II (digital camera), purchase price of $799 less than a month before theft with evidence camera was unused was sufficient evidence of fair market value. For Count VII (fax machine), evidence of $525 purchase price nearly 7 months before theft with insufficient evidence of condition was insufficient to support felony conviction but sufficient to prove some intrinsic value.
6. Section 28-518(8) requires proof that stolen item has at least some intrinsic value as an element of the offense, but proof of specific value at time of theft is necessary only for gradation of the offense above Class II misdemeanor.

Questions Presented

1. Whether the district court erred in overruling motion for directed verdict at close of State's case
2. Whether the district court erred in giving jury instruction No. 6 and rejecting Gartner's proposed instruction
3. Whether the district court erred in giving verdict forms that limited jury's discretion as to dates of alleged thefts
4. Whether the district court erred in denying motion for mistrial based on prosecutorial misconduct
5. Whether the evidence was sufficient to sustain the convictions, particularly regarding value of stolen property at time of theft

Disposition

affirmed_in_part_and_remanded_in_part