State v. Babbitt

This court has recently considered this issue. In State v.
Ramirez,18 we held that using the same offense both to establish
the defendant’s status as a felon and to enhance that defend
ant’s sentence was not a violation of double jeopardy. Rhodes
concedes that Ramirez is on point, but asks us to reconsider
that decision. In support of this argument, Rhodes contends this
court’s decision in Ramirez implicitly acknowledged that there
is an ambiguity in the underlying statutes and that the rule of
lenity requires such ambiguity to be decided in Rhodes’ favor.
However, in Ramirez, we addressed and rejected the argument
that the underlying statutes were ambiguous and specifically
addressed the rule of lenity in that context. We therefore
decline Rhodes’ invitation to revisit Ramirez.
Because the use of the same felony both to establish Rhodes’
status as a felon and to enhance his sentence was permissible,
Rhodes’ sentence was lawful. Accordingly, we conclude that
Rhodes has not met his burden of showing he was prejudiced
by his counsel’s failure to object to the use of the same convic
tion for both purposes. Rhodes’ fourth and final assignment is
without merit.
CONCLUSION
The judgment of the district court denying Rhodes’ motion
for postconviction relief is affirmed.
A ffirmed.
18 State v. Ramirez, supra note 11.
STATe v. BABBITT 	327
Cite as 277 Neb. 327
StAte of NebrASkA, Appellee , v.
ANthoNy bAbbitt, AppellANt.
762 N.W.2d 58
Filed March 6, 2009. 	No. S 08 498.
1. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan
dard is the same: 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

2. Convictions: Evidence: Appeal and Error. An appellate court will affirm a
conviction absent prejudicial error, if the evidence admitted at trial, viewed and
construed most favorably to the State, is sufficient to support the conviction.
3. Convictions: Circumstantial Evidence. In finding a defendant guilty beyond
a reasonable doubt, a fact finder may rely upon circumstantial evidence and the
inferences that may be drawn therefrom.
4. Circumstantial Evidence. Circumstantial evidence is not inherently less proba
tive than direct evidence.
5. Criminal Attempt: Intent. A defendant’s conduct rises to criminal attempt if
he or she intentionally engages in conduct which, under the circumstances as he
or she believes them to be, constitutes a substantial step in a course of conduct
intended to culminate in his or her commission of the crime.
6. ____: ____. Conduct shall not be considered a substantial step unless it is
strongly corroborative of the defendant’s criminal intent.
7. Criminal Attempt. Whether a defendant’s conduct constitutes a substantial step
toward the commission of a particular crime and is an attempt is generally a ques
tion of fact.
Appeal from the District Court for Lancaster County: Jodi
NelSoN, Judge. Affirmed.
John S. Berry, of Berry Law Firm, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
Wright, C oNNolly, gerrArd, StephAN, mCC ormACk , and
miller-lermAN, JJ.
C oNNolly, J.
After a bench trial, the district court convicted Anthony
Babbitt of two counts of criminal impersonation for violating
Neb. Rev. Stat. § 28 608 (Reissue 2008). The court sentenced
him to 3 years’ probation for each count, with the sentences to
run concurrently. We affirm.
This case arose when Internet Networks Computer Staffing
Incorporated (INCS), and its sole officer, Anthony Babbitt,
obtained 	default 	judgments 	against 	parties 	who 	were 	not
indebted to INCS. In December 2005 and January 2006,
INCS obtained judgments against six individual defendants
in Lancaster County Small Claims Court. INCS claimed that
the defendants failed to pay for computer services provided by
328 	277 NeBRASKA RepORTS

INCS. The defendants did not appear in court, and the court
awarded INCS default judgments.
After INCS obtained the judgments in Lancaster County,
the 	Douglas 	County 	sheriff’s 	office 	began 	investigating
Babbitt for judgments INCS had obtained in Douglas County
Small Claims Court. Based upon evidence gathered from a
search executed on Babbitt’s residence, the Lincoln police
Department alerted the Lancaster County Small Claims Court
that INCS’ default judgments may have been fraudulently
obtained. Specifically, the evidence presented to the court
showed that none of the defendants whom INCS had brought
claims against had used INCS’ services and so did not owe
INCS any money as INCS alleged. The court set aside the
judgments in May 2006.
The State later charged Babbitt with six counts of criminal
impersonation under § 28 608. At trial, the evidence uncovered
a novel scheme where Babbitt, acting for INCS, had filed the
above mentioned claims in Lancaster County Small Claims
Court. Babbitt, in filing the claims, used the names, partial
Social Security numbers, and dates of birth for individuals liv
ing outside the state. Despite their out of state residences, he
obtained judgments by using the addresses of individuals living
in Lincoln who had names similar to those of the out of state
victims. None of the individuals—those nonresidents whose
names and personal information were used or those living in
Lincoln whose addresses were used—had ever done business
with INCS or Babbitt. Because the State convicted Babbitt of
only two counts of criminal impersonation, we will discuss
only the evidence regarding those two convictions.
Using information from the Internet, INCS filed a claim in
Lancaster County Small Claims Court in October 2005 listing
a “Robert D. Gentry” as the defendant. Although the signa
ture on the claim is illegible, next to the signature appears the
title “president INCS, Inc.” The claim gave a partial Social
Security number, a date of birth, and a Lincoln address for the
defendant. When Robert Gentry failed to make an appearance
in court, INCS obtained a default judgment for $2,098.06. The
clerk then sent a default judgment notice to Robert Gentry at
STATe v. BABBITT 	329
Cite as 277 Neb. 327

the Lincoln address listed on the claim form. It was returned as
undeliverable and unable to forward.
At trial, the State called two witnesses regarding the infor
mation given to the court by INCS: John Gentry, who lives at
the Lincoln address, and Robert Gentry, whose name, partial
Social Security number, and date of birth matched those listed
on the claim. John Gentry testified that he lived at the Lincoln
address since August 1992 and that no one by the name “Robert
Gentry” lives at that address. He also testified that neither the
partial Social Security number nor the date of birth shown on
the claim was his and that he had never purchased computer
services from INCS or Babbitt.
Robert Gentry, the alleged victim of the scam, lives in Mesa,
Arizona, and before the trial had never been in Nebraska. He
identified his name, his partial Social Security number, and his
date of birth as the same as those shown on the claim. He also
testified that he had never done business with INCS or Babbitt
and had never given anyone permission to use his name, Social
Security number, or date of birth on any document.
In November 2005, INCS filed a second claim in Lancaster
County Small Claims Court listing a “Joanne Bonascorso” as
the defendant. Like the Gentry claim, the signature on this
claim is also illegible, but next to the signature shows the title,
“president INCS, Inc.” The claim provided a partial Social
Security number, date of birth, and Lincoln address for the
defendant. INCS obtained a judgment for $1,495.
At trial, Linda Bonascorso testified that she lived at the
Lincoln address for the previous 9 years. She could not iden
tify the name “Joanne Bonascorso,” the partial Social Security
number, or the date of birth listed on the claim. Joanne
Bonascorso, of Las Banos, California, also testified. Although
she had never been to Nebraska before the trial, the name,
partial Social Security number, and date of birth listed on the
claim matched her own. She too, had never heard of INCS
or Babbitt.
Based upon this testimony and evidence seized from Babbitt’s
residence, the court convicted Babbitt of two counts of criminal
impersonation. The court sentenced him to 3 years’ probation
on each count.
330 	277 NeBRASKA RepORTS

Babbitt assigns as error that the State failed to adduce suffi
cient evidence to support his convictions and that the trial court
erred in denying his motion for a new trial.
[1,2] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination
thereof, the standard is the same: We do not resolve conflicts
in the evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact. We will
affirm a conviction absent prejudicial error, if the evidence
admitted at trial, viewed and construed most favorably to the
State, is sufficient to support the conviction.1
We first address Babbitt’s argument that the evidence is
insufficient to prove that he obtained the fraudulent judg
ments for INCS. Babbitt argues that someone else could have
obtained the judgments for INCS.
[3,4] In finding a defendant guilty beyond a reasonable
doubt, a fact finder may rely upon circumstantial evidence and
the inferences that may be drawn therefrom.2 And remember,
circumstantial evidence is not inherently less probative than
direct evidence.3
The individual’s signature who filed the claims in small
claims court for INCS is illegible but the title following the
signature clearly reads, “president INCS, Inc.” evidence seized
from Babbitt’s home during the execution of a search warrant
shows that Babbitt was the only officer of INCS. The record
shows no one other than Babbitt was involved in the corpora
tion. Furthermore, a lieutenant of the Douglas County sheriff’s
office identified Babbitt as appearing in Douglas County Small
Claims Court for INCS when Babbitt represented he was
the president of INCS. But most damaging is what could be
described as Babbitt’s “How to Scam Kit” seized by the sher
iff’s department. It included notes and reminders that Babbitt
had written to himself on how to scam people and how to cre
ate a “crazy” paper trail that would be difficult to follow.
1 See State v. Segura, 265 Neb. 903, 660 N.W.2d 512 (2003).
2 State v. Miner, 265 Neb. 778, 659 N.W.2d 331 (2003).
3 Id.
STATe v. BABBITT 	331
Cite as 277 Neb. 327

Viewing this evidence in a light most favorable to the
State, we determine the State adduced sufficient evidences
that Babbitt was the individual who obtained the judgments
for INCS.
Babbitt’s remaining arguments are related to his interpre
tation of § 28 608(1)(d). The State convicted Babbitt of two
counts of criminal impersonation in violation of § 28 608,
which provides:
(1) A person commits the crime of criminal imperson
ation if he or she:
. . . .
(d) Without the authorization or permission of another
and with the intent to deceive or harm another:
(i) Obtains or records personal identification docu
ments or personal identifying information; and
(ii) 	Accesses 	or 	attempts 	to 	access 	the 	financial
resources of another through the use of a personal identi
fication document or personal identifying information for
the purpose of obtaining credit, money, goods, services,
or any other thing of value.
Babbitt contends that although he may be guilty of some
offense, his conduct does not violate § 28 608(1)(d), and that
thus, the evidence is insufficient to support his convictions.
Babbitt argues (1) that obtaining a fraudulent judgment in
small claims court does not constitute an attempt to access the
financial resources of his victims and (2) that a judgment is not
a “thing of value.”
Under § 28 608(1)(d), a defendant must have accessed, or
attempted to access, the financial resources of his or her victim.
Babbitt asserts that he did not take steps to enforce the judg
ments or to sell them. Thus, he argues he did not attempt to
access the financial resources of any of his victims. Moreover,
he argues that even if he had sold the judgments, it would have
been the innocent purchaser of the judgments and not Babbitt
who would have accessed or attempted to access the victims’
financial resources. Babbitt presents a novel argument, but
after examining § 28 608(1)(d), it loses its luster.
[5 7] A defendant’s conduct rises to criminal attempt if he
or she “[i]ntentionally engages in conduct which, under the
332 	277 NeBRASKA RepORTS

circumstances as he or she believes them to be, constitutes a
substantial step in a course of conduct intended to culminate
in his or her commission of the crime.”4 Conduct “shall not be
considered a substantial step . . . unless it is strongly corrobora
tive of the defendant’s criminal intent.”5 Whether a defendant’s
conduct constitutes a substantial step toward the commission
of a particular crime and is an attempt is generally a question
of fact.6
We conclude that in obtaining the judgments, Babbitt took
a first and substantial step toward accessing the financial
resources of his victims. After receiving the judgments, Babbitt
could have attempted to execute on the judgments. Although
Babbitt did not take any of these steps, the options were avail
able to him once he received the judgments, and his obtain
ing the fraudulent judgments was a necessary first step in his
scheme to obtain his victims’ money. Thus, the State adduced
sufficient evidence that Babbitt attempted to access the finan
cial resources of his victims.
In addition, § 28 608(1)(d) requires the State to prove
beyond a reasonable doubt that Babbitt used his victims’ per
sonal identifying information to attempt to access their finan
cial resources for obtaining “credit, money, goods, services,
or any other thing of value.” Babbitt argues that the default
judgments he obtained in small claims court are not “thing[s]
of value,” and, thus, he did not violate the statute. The State
argues that judgments are personal property and therefore
“thing[s] of value” under the statute.7
We conclude that whether a judgment in this case is a
“thing of value” is irrelevant. Here, Babbitt’s ultimate goal in
obtaining the judgments was to obtain money from his victims.
As discussed, his obtaining a default judgment constituted
4 Neb. Rev. Stat. § 28 201(1)(b) (Reissue 2008).
5 § 28 201(3).
6 See State v. Green, 238 Neb. 475, 471 N.W.2d 402 (1991).
7 See Neb. Rev. Stat. § 28 109(22) (Reissue 2008) (defining “thing of value”
for prosecutions under chapter 28, article 6). See, also, State v. Spaulding,
211 Neb. 575, 319 N.W.2d 449 (1982).
STATe v. BABBITT 	333
Cite as 277 Neb. 327

an “attempt” to access his victims’ financial resources to
obtain money.
We have already concluded that Babbitt attempted to access
his victims’ financial resources and did so to obtain money.
We now focus on whether Babbitt (1) obtained personal iden
tifying information of his victims, (2) did so without their
permission, (3) did so with the intent to deceive or harm them,
and (4) used that information in his attempt to access their
financial resources. The district court concluded he did, and
we do also.
The criminal impersonation statute defines personal identi
fying information as meaning “any name or number that may
be used, alone or in conjunction with any other information,
to identify a specific person including a person’s: (i) [n]ame;
(ii) date of birth; (iii) address; [and] (v) [S]ocial [S]ecurity
number . . . .”8 The evidence shows that Babbitt obtained his
victims’ names, partial Social Security numbers, and dates
of birth and that he used those numbers without their con
sent. Babbitt’s obtaining civil judgments for services that
he had not provided showed an intent to deceive or harm
his victims.
Moreover, to file the claims in small claims court, Babbitt
had to provide the victims’ names, partial Social Security
numbers, dates of birth, and addresses. Without that informa
tion, he could not file the original claims. Because the per
sonal identifying information leads directly to his obtaining
the judgments, we conclude that Babbitt did use the personal
identifying information in his attempt to access the financial
resources of his victims.
Viewed in a light most favorable to the State, we determine
the evidence is sufficient to prove Babbitt’s convictions beyond
a reasonable doubt.
A ffirmed.
heAviCAN, C.J., participating on briefs.
8 § 28 608(4)(b).
334 	277 NeBRASKA RepORTS