State v. McCarthy

572 	284 NEBRASKA REPORTS
tax stamp, we cannot allow Howell’s conviction for that charge
to stand.
CONCLUSION
We conclude that Howell’s general consent to search his
vehicle extended to the gift-wrapped box. Howell did not
withdraw or otherwise limit his consent when Lewis inquired
about the box, and the search of the box caused only minimal,
cosmetic damage to it. We therefore affirm the conviction and
sentence for possession of a controlled substance with intent
to distribute.
Because the record contained no evidence regarding the
absence of a drug tax stamp, we reverse the judgment of con-
viction and sentence for that charge and remand the cause with
direction to dismiss the charge for no drug tax stamp.
A ffirmed in pArt, And in pArt reversed
And remAnded with direction.
stAte of nebrAskA, Appellee, v.
sherrie l. mccArthy, AppellAnt.
822 N.W.2d 386
Filed October 26, 2012. 	No. S-12-478.
1. Collateral Estoppel: Appeal and Error. The applicability of the doctrine of
collateral estoppel constitutes a question of law. With regard to such a question,
an appellate court is obligated to reach a conclusion independent from the lower
court’s conclusion.
2. Statutes. The interpretation of a statute presents a question of law.
3. Collateral Estoppel: Words and Phrases. “Collateral estoppel” means that
when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties or their
privies in any future lawsuit.
4. Collateral Estoppel. There are four conditions that must exist for the doctrine
of collateral estoppel to apply: (1) The identical issue was decided in a prior
action, (2) there was a judgment on the merits which was final, (3) the party
against whom the rule is applied was a party or in privity with a party to the prior
action, and (4) there was an opportunity to fully and fairly litigate the issue in the
prior action.
5. Criminal Law: Statutes: Words and Phrases. It is a fundamental principle of
statutory construction that penal statutes are to be strictly construed, and it is not
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

STATE v . McCARTHY 	573
Cite as 284 Neb. 572
for the courts to supply missing words or sentences to make clear that which is
indefinite, or to supply that which is not there.
Appeal from the District Court for Lancaster County: Jodi
nelson, Judge. Affirmed.
Chad J. Wythers, of Berry Law Firm, for appellant.
Jon Bruning, Attorney General, George R. Love, and Dain J.
Johnson, Senior Certified Law Student, for appellee.
heAvicAn, c.J., wright, connolly, stephAn, mccormAck,
miller-lermAn, and cAssel, JJ.
cAssel, J.
INTRODUCTION
Sherrie L. McCarthy was convicted of theft by shoplifting,
$200 or less.1 The district court relied on two prior county
court convictions to enhance the crime for punishment as a
Class IV felony.2 In the second of these two prior proceed-
ings, the county court had refused to enhance the conviction
and had treated it as a first offense. McCarthy argues that the
doctrine of collateral estoppel required the district court to treat
the instant conviction as only a second offense and, thus, as a
Class I misdemeanor.3 Because we reject the statutory interpre-
tation underlying McCarthy’s argument, we affirm.
BACKGROUND
As the issue on appeal is limited to the matter of enhance-
ment of the conviction, and thus the instant penalty, because
of prior convictions, we omit unnecessary details regarding the
underlying offense.
In the case before us, the State charged McCarthy with
theft by shoplifting of goods having a value of $200 or less,
but the information also alleged that the offense should be
enhanced for punishment as a Class IV felony because of two
prior convictions. In due course, McCarthy pled guilty to the
1 See Neb. Rev. Stat. §§ 28-511.01 and 28-518(4) (Cum. Supp. 2010).
2 See § 28-518(6).
3 See id.

574 	284 NEBRASKA REPORTS
underlying offense. The case proceeded to an enhancement
hearing, and the State offered evidence of two prior convic-
tions. McCarthy later offered additional evidence regarding the
second conviction.
The first prior conviction was on October 23, 2003, in the
county court for Lancaster County, Nebraska, in case No.
CR03-17867 (the 2003 conviction). Exhibit 1, the record of
the 2003 conviction, shows that McCarthy was convicted of
theft by shoplifting, $200 or less. Exhibit 1 does not show that
McCarthy either was represented by counsel or waived her
right to counsel. Upon conviction of a Class II misdemeanor,
McCarthy was sentenced to pay a fine of $200 and the costs of
the proceeding.
The State also relied upon a prior conviction from November
17, 2006, in Lancaster County Court, case No. CR06-8811 (the
2006 conviction). Exhibit 2, the record of the 2006 conviction,
shows that McCarthy was convicted pursuant to § 28-511.01
(Reissue 2008) of theft by shoplifting of property valued
at $200 or less. Relying on the 2003 conviction, the 2006
complaint also alleged that the incident constituted a second
offense. The record of the 2006 proceeding shows that, at
all relevant times, McCarthy was represented by counsel.
McCarthy pled no contest to the charge and was convicted of
the underlying offense.
The record also shows that the county court judge in the
2006 proceeding declined to enhance the 2006 conviction
for punishment as a second offense and instead determined
that it would be considered a first offense. Exhibit 3, a ver-
batim transcript of the proceedings before the county court
judge at the time of the plea and the enhancement hearing,
was received by the district court in the instant proceeding.
The transcript shows that after the county court had accepted
McCarthy’s plea to the 2006 underlying offense, the following
colloquy occurred:
THE COURT: . . . You’ve got yourself charged with
a shoplift on September 18th, 2003, about, by golly, 7
o’clock in the morning, at HyVee, 2345 North 48th Street,
on September 18th, 2003. You appeared in front of me on
October 23, 2003, don’t know what courtroom, but we

STATE v . McCARTHY 	575
Cite as 284 Neb. 572
were probably going pretty fast, and you were without
any counsel.
[Deputy county attorney], what do you think?
[Deputy county attorney]: The State’s position is that
it is a Constitutionally valid conviction, because she only
received a fine, and there was no jail involved.
THE COURT: There was a jail potential, wasn’t there?
I mean, there [sic] a potential jail sentence?
[Deputy county attorney]: Yes.
THE COURT: [Defense counsel], what do you think?
[Defense 	counsel]: 	No 	additional 	comments, 	Your
Honor.
THE COURT: I’m going to find her guilty of a first
offense, but we’re going to do — Is this the second time
around?
[Deputy county attorney]: I’m sorry?
THE COURT: How many times has she been convicted
of a theft?
[Deputy county attorney]: Oh, of a theft?
THE COURT: Yeah.
[Deputy county attorney]: Numerous.
THE COURT: We’ll do a presentence investigation. I
will find her guilty of a first offense.
After considering this evidence regarding the prior convic-
tions, the district court found McCarthy guilty of the underly-
ing offense and determined that both the 2003 conviction and
the 2006 conviction were valid for purposes of enhancement.
The court accordingly adjudged McCarthy guilty of theft by
shoplifting—$200 or less, third or subsequent offense—and,
pursuant to § 28-518(6), enhanced the offense for punishment
as a Class IV felony. The court later sentenced McCarthy to
300 days in jail and to pay the costs of prosecution.
McCarthy timely appeals. Pursuant to statutory authority,4
we moved this case to our docket. Because McCarthy pled
guilty to the offense, the appeal was automatically submitted
without oral argument.5
4 See Neb. Rev. Stat. § 24-1106 (Reissue 2008).
5 See Neb. Ct. R. App. P. § 2-111(E)(5)(a) (rev. 2008).

576 	284 NEBRASKA REPORTS
ASSIGNMENT OF ERROR
McCarthy assigns that the district court erred by holding
that her 2006 conviction was a “second offense despite [a]
prior finding by the [c]ounty [c]ourt that the 2006 offense was
a first offense.”
STANDARD OF REVIEW
[1] The applicability of the doctrine of collateral estoppel
constitutes a question of law. With regard to such a question,
an appellate court is obligated to reach a conclusion indepen-
dent from the lower court’s conclusion.6
[2] The interpretation of a statute presents a question of
law.7
ANALYSIS
[3,4] McCarthy’s argument relies upon the legal doctrine of
collateral estoppel. “Collateral estoppel” means that when an
issue of ultimate fact has once been determined by a valid and
final judgment, that issue cannot again be litigated between
the same parties or their privies in any future lawsuit.8 There
are four conditions that must exist for the doctrine of collat-
eral estoppel to apply: (1) The identical issue was decided in
a prior action, (2) there was a judgment on the merits which
was final, (3) the party against whom the rule is applied was a
party or in privity with a party to the prior action, and (4) there
was an opportunity to fully and fairly litigate the issue in the
prior action.9
McCarthy asserts that all four conditions were satisfied in
regard to the 2006 conviction and relies on the decision in
State v. Keen10 to support her argument that collateral estoppel
barred the district court from treating the 2006 conviction as
a second offense. In Keen, this court held that the defendant
6 State v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994), overruled in part
on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
7 State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
8 State v. Secret, supra note 6.
9 Id.
10 State v. Keen, 272 Neb. 123, 718 N.W.2d 494 (2006).

STATE v . McCARTHY 	577
Cite as 284 Neb. 572
could not collaterally attack his prior conviction for driv-
ing under the influence. The defendant claimed that the prior
conviction could not be used for enhancement because it was
obtained pursuant to a municipal ordinance which was later
declared to be unenforceable as inconsistent with a state stat-
ute. We reasoned that collateral attacks on previous proceed-
ings are impermissible unless the attack is grounded upon the
court’s lack of jurisdiction over the parties or subject matter
and that although the defendant’s prior conviction may have
been voidable and subject to reversal upon appeal, it was not
void. In the case before us, McCarthy argues that because of
the earlier county court determination, she had two prior con-
victions for first offense, and that those convictions did not
satisfy the requirement of § 28-518(6) for enhancement of the
instant conviction as a third offense.
The State responds that McCarthy’s argument is based on a
faulty premise—that a person must be progressively convicted
from first offense to second offense before he or she can be
found guilty of an enhanced third or subsequent offense. The
correct rule for a third or subsequent offense, the State urges,
requires only that the person have at least two prior valid con-
victions for theft by shoplifting, $200 or less. We agree with
the State.
[5] The plain language of § 28-518 supports the State’s argu-
ment. The statute initially declares that “[t]heft constitutes a
Class II misdemeanor when the value of the thing involved is
two hundred dollars or less.”11 It then states: “For any second
conviction under subsection (4) of this section, any person so
offending shall be guilty of a Class I misdemeanor, and for
any third or subsequent conviction under subsection (4) of this
section, the person so offending shall be guilty of a Class IV
felony.”12 It is a fundamental principle of statutory construc-
tion that penal statutes are to be strictly construed, and it is not
for the courts to supply missing words or sentences to make
clear that which is indefinite, or to supply that which is not
11 § 28-518(4).
12 § 28-518(6).

578 	284 NEBRASKA REPORTS
there.13 The statute does not say, as McCarthy would have us
read it, that a person who has previously been convicted of a
second offense shall, upon another conviction, be guilty of a
third offense.
The Nebraska Court of Appeals has previously stated that
the meaning of § 28-518(6) is plain and unambiguous and that
it specifically provides that if an individual has two or more
Class II misdemeanor convictions under subsection (4), then a
third or subsequent conviction pursuant to subsection (4) will
be enhanced to a Class IV felony.14 We agree with the Court of
Appeals’ reading of § 28-518.
This reading is consistent with the analogous situation of
enhancement in cases involving driving under the influence of
alcohol or drugs. We have adhered to this interpretation in two
instances. First, we held that for a defendant to be punished
as a third offender, it is necessary only that the defendant be
charged and found to have been twice previously convicted of
driving while under the influence of intoxicating liquor.15 In the
second case, we stated that to constitute a third-offense viola-
tion of the then-existing statute, it was necessary only that a
violator be properly convicted of two previous violations of the
statute, whether the earlier convictions be called first offense
or second offense.16 McCarthy has not cited any authority that
persuades us that this reading is not correct or that it should not
be applied in the present context.
CONCLUSION
We adhere to the principles of statutory interpretation and
conclude that for enhancement as a third or subsequent offense,
the plain language of the statute requires only that McCarthy
have been previously convicted of two instances of theft by
shoplifting under § 28-518(4), whether the earlier convictions
13 State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996), overruled on other
grounds, State v. Burlison, supra note 6.
14 State v. Long, 4 Neb. App. 126, 539 N.W.2d 443 (1995).
15 State v. Orosco, 199 Neb. 532, 260 N.W.2d 303 (1977), overruled on other
grounds, State v. Smith, 213 Neb. 446, 329 N.W.2d 564 (1983).
16 State v. Donaldson, 234 Neb. 683, 452 N.W.2d 531 (1990).

STATE v . McCARTHY 	579
Cite as 284 Neb. 572
were called first offense or second offense. Because McCarthy’s
two prior convictions clearly satisfy this requirement and
because she makes no other challenge to the use of these con-
victions for purposes of enhancement, we affirm the judgment
of the district court.
A ffirmed.