State v. Connor

In the instant case, our review of the record shows that the
trial court dismissed Allyson only in her representative capac-
ity, not her individual capacity, and that although the trial
court dismissed Matthew and Whitney, it is unclear whether
the trial court dismissed Matthew and Whitney only in their
individual capacities or also in their capacities as parents of
their children.
[6] Therefore, because the orders from which Ferer appealed
did not dismiss all of the parties in each of their capacities,
the trial court’s orders were not final and appealable until the
trial court dismissed each party in all capacities on September
18, 2007. Ferer failed to appeal from the September 18 order.
Therefore, we lack jurisdiction over his appeal and must dismiss
it. See In re Guardianship & Conservatorship of Woltemath,
268 Neb. 33, 680 N.W.2d 142 (2004) (when appellate court is
without jurisdiction to act, appeal must be dismissed). To avoid
this result, we suggest that trial judges include, at the end of
any entry intended to be a final order, a phrase to the effect that
“any request for relief by any party not specifically granted by
this order is denied.”
CoNClUSIoN
After reviewing the record, we conclude that we lack jurisdic-
tion over Ferer’s appeal because he did not file a timely appeal,
and therefore, we dismiss his appeal.
A ppeAl disMissed .
stAte oF nebrAskA, Appellee , v .
J oseph connor , AppellAnt .
754 N.W.2d 774
Filed July 29, 2008. 	No. A-07-1230.
1. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a crimi-
nal 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. CoNNoR 	871
Cite as 16 Neb. App. 871
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

2. ____: ____: ____: ____. When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the prosecu-
tion, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
3. Motions for Continuance: Appeal and Error. A motion for continuance is
addressed to the discretion of the trial court and will not be disturbed on appeal
absent a showing of an abuse of discretion.
4. Sentences: Appeal and Error. Whether an appellate court is reviewing a sentence
for its leniency or its excessiveness, a sentence imposed by a district court that is
within the statutorily prescribed limits will not be disturbed on appeal unless there
appears to be an abuse of the trial court’s discretion.
5. Judges: Words and Phrases. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in matters submitted
for disposition.
6. Value of Goods: Vendor and Vendee. price tags on items are not sufficient to
establish the value of those items.
7. Theft: Value of Goods: Proof. The State must prove, beyond a reasonable doubt,
the value of the property that is the subject of the theft charge.
8. ____: ____: ____. Value to be proved concerning a theft is market value at the time
and place where the property was criminally appropriated. There is no better way
of showing the market value of any article than the price at which it and others of
its class are being offered and sold on the market.
9. Theft: Value of Goods. In reference to the crime of theft, value is established
by evidence concerning the price at which property identical or reasonably simi-
lar to the property stolen is offered for sale and sold in proximity to the site of
the theft.
10. Value of Goods: Proof. evidence of the purchase price of the goods is competent
evidence of fair market value only where the goods are so new, and thus, have
depreciated in value so insubstantially as to allow a reasonable inference that the
purchase price is comparable to the fair market value.
11. Motions for Continuance: Appeal and Error. Where due diligence by the
moving party has not been shown, the ruling of the trial court overruling a
motion for a continuance for the purpose of securing additional evidence will not
be disturbed.
Appeal from the District Court for Sarpy County: W illiAM
b. ZAsterA, Judge. Affirmed in part, and in part reversed and
remanded with directions.
patrick J. boylan, Chief Deputy Sarpy County public Defender,
for appellant.
Jon bruning, Attorney General, and George R. love for
appellee.
872 	16 NebRASkA AppellATe RepoRTS

inbody, Chief Judge, and sievers and cArlson, Judges.
sievers, Judge.
Joseph Connor was convicted of theft by unlawful taking in
the district court for Sarpy County and sentenced to a term of 1
to 3 years’ imprisonment. He argues that the value of the items
he stole was not established by sufficient evidence and that his
sentence was excessive. We find that the State’s evidence of
value was insufficient to support the gradation of the offense
for which Connor was sentenced, and therefore, we remand the
cause to the trial court for resentencing.
FACTUAl AND pRoCeDURAl bACkGRoUND
on September 22, 2006, Connor was at a home improvement
store in bellevue, Nebraska. Several store employees witnessed
Connor putting high-priced items in a shopping cart and then
leaving the shopping cart in the garden center. The garden center
has an area where customers can enter with their vehicles for the
purpose of loading items into their cars. Connor left the cart in
the garden center but soon returned to the garden center driving
his vehicle, a Suburban. Without paying for the items, Connor
loaded them into his Suburban and attempted to exit the garden
center. At the exit, he was stopped by police who searched his
Suburban and discovered the items that Connor had taken from
the store without paying for them.
The store’s “front-end” manager, Melissa Schwinn, who had
been one of the employees observing Connor, identified the
items in the Suburban as those that Connor had taken from the
store. Schwinn provided the police with a typed description
of the items and their retail value, and at Connor’s jury trial
on September 12, 2007, she testified as to each item’s “retail
sales price” and gave a figure of $1,477.16 as their “total retail
value.” The involved items included chains, cable pullers, router
bits, a circular saw blade, saw blades, a laser-beam level, a
pull scraper, a kitchen faucet, blinds, brackets, and some other
smaller items. At trial, Schwinn was asked about the “retail
sales price” of each of the items Connor had taken, and ulti-
mately she was asked what the “total retail value” (emphasis
supplied) was of the items Connor had taken from the store.
STATe v. CoNNoR 	873
Cite as 16 Neb. App. 871

Schwinn testified that the total retail value of the items was
$1,477.16; however, she did not testify as to whether the store
had sold any similar items to any customer for the “retail sales
price” that she gave for the involved items in response to the
prosecutor’s question.
At trial, Connor made a motion for a continuance so that he
could secure an independent appraisal of the value of the items,
but the district court overruled his motion.
Connor was convicted of theft by unlawful taking involving
property worth more than $500 but less than $1,500 in violation
of Neb. Rev. Stat. § 28-511(1) (Reissue 1995), a Class IV felony
under Neb. Rev. Stat. § 28-518(2) (Reissue 1995). He was sen-
tenced to 1 to 3 years’ imprisonment. Connor timely appealed.
ASSIGNMeNTS oF eRRoR
Connor assigns the following errors to the district court: (1)
using the wrong measure of value to prove the value of the items
at the time of the alleged theft, (2) not granting him a continu-
ance to allow for the items to be examined by an appraiser, and
(3) imposing an excessive sentence.
STANDARD oF ReVIeW
Sufficiency of Evidence.
[1,2] 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. Aldaco, 271 Neb. 160, 710 N.W.2d 101
(2006). When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, 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. Id.
Motion for Continuance.
[3] A motion for continuance is addressed to the discretion
of the trial court and will not be disturbed on appeal absent a
874 	16 NebRASkA AppellATe RepoRTS

showing of an abuse of discretion. State v. Santos, 238 Neb. 25,
468 N.W.2d 613 (1991).
Excessive Sentence.
[4,5] Whether an appellate court is reviewing a sentence for
its leniency or its excessiveness, a sentence imposed by a dis-
trict court that is within the statutorily prescribed limits will not
be disturbed on appeal unless there appears to be an abuse of
the trial court’s discretion. State v. Hamik, 262 Neb. 761, 635
N.W.2d 123 (2001). A judicial abuse of discretion exists only
when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a
just result in matters submitted for disposition. Id.
ANAlYSIS
Whether State Presented Evidence Beyond
Reasonable Doubt of Value of Items.
Connor argues the State did not present sufficient evidence
such that the jury could have determined the value of the sto-
len items beyond a reasonable doubt. The State’s evidence of
the value of the stolen items came through the store’s front-
end manager, Schwinn. Schwinn identified the items found in
Connor’s car, provided the police with a printout of the price
of the items, and testified to the retail sale price of each unpaid
item at Connor’s trial.
[6-9] Connor relies on State v. Garza, 241 Neb. 256, 487
N.W.2d 551 (1992), in which the Supreme Court stated that
price tags on items were not sufficient to establish the value of
those items. The State must prove, beyond a reasonable doubt,
the value of the property that is the subject of the theft charge.
See id. Value to be proved concerning a theft is market value at
the time and place where the property was criminally appropri-
ated. There is no better way of showing the market value of any
article than the price at which it and others of its class are being
offered and sold on the market. Id. In reference to the crime of
theft, value is established by evidence concerning the price at
which property identical or reasonably similar to the property
stolen is offered for sale and sold in proximity to the site of the
theft. Id.
STATe v. CoNNoR 	875
Cite as 16 Neb. App. 871

Here, although Schwinn testified to the “retail value” of
the items, it is clear from our review of the evidence that this
figure provided by Schwinn is simply the sum of the various
amounts she said were the “retail sales prices” of the items.
Thus, Schwinn’s total figure of $1,477.16 for retail value, using
the rubric of Garza, was merely the sum of the “price tags”
to arrive at “retail value” of the stolen items. Garza makes it
clear that the amount an item is priced for sale does not equate
to market value and that the State’s burden is to prove mar-
ket value.
[10] After Garza was decided, the court decided State v.
Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002), which also
held that proof of price at which a stolen item was offered for
sale and sold in proximity to the site of the theft is evidence of
market value. However, the court in Gartner also said:
evidence of the purchase price of the goods, however, is
competent evidence of fair market value only where the
goods are so new, and thus, have depreciated in value so
insubstantially as to allow a reasonable inference that the
purchase price is comparable to the fair market value.
263 Neb. at 165, 638 N.W.2d at 860.
In the present case, the State’s evidence of value was simply
the “price tags”—disapproved in Garza, supra, when such is the
sole evidence of value. The State failed to ask whether items like
those taken by Connor had been recently sold at the prices that
Schwinn said they were offered for retail sale on September 22,
2006, the day of the theft. As a result, we are forced by the clear
precedent laid down in Garza, supra, and Gartner, supra, to find
that the evidence was insufficient to support the jury’s finding
that the value of the stolen goods was $1,283.23. Consequently,
there was insufficient evidence for the jury to find beyond a rea-
sonable doubt that the items Connor stole from the store were
worth $500 to $1,500. We reverse the district court’s order in
this regard.
Whether District Court Erred in Failing to Sustain
Connor’s Motion for Continuance.
[11] Connor argues that the district court erred when it over-
ruled his motion for a continuance, which he requested so that
876 	16 NebRASkA AppellATe RepoRTS

he could obtain an independent appraisal of the items’ values.
However, the State filed charges against Connor on November
1, 2006, and the trial was held on September 12, 2007, which
means that Connor had more than 9 months to obtain an
appraisal of the items. “‘“Where due diligence by the moving
party has not been shown, the ruling of the trial court overruling
a motion for a continuance for the purpose of securing additional
evidence will not be disturbed.”’” State v. Broomhall, 221 Neb.
27, 31, 374 N.W.2d 845, 847-48 (1985). Connor did not show
due diligence by waiting until his trial had already commenced
to claim that he needed to obtain an independent appraisal of
the items’ values, given that he had more than 9 months to
obtain an appraisal—if he really wanted such. The district court
did not abuse its discretion in overruling Connor’s motion for
a continuance.
Whether District Court Imposed Excessive Sentence.
Connor was convicted of a Class IV felony and sentenced to
1 to 3 years’ imprisonment. However, because we have found
that the jury could not have found beyond a reasonable doubt
that the items Connor stole were worth more than $500 but less
than $1,500, we cannot affirm Connor’s conviction of a Class IV
felony or the corresponding prison sentence. See State v. Garza,
241 Neb. 256, 487 N.W.2d 551 (1992). However, the Garza
court found that the evidence showed beyond a reasonable doubt
that the property stolen had some intrinsic value that translates
into nominal market value, notwithstanding the absence of
evidence establishing a specific value for the stolen property.
Therefore, the Garza court set aside the felony sentence imposed
and remanded the matter to the district court with direction to
impose an appropriate sentence for misdemeanor theft of prop-
erty with a value less than $100, a Class II misdemeanor under
§ 28-518(4), now $200 or less.
We reach the same result here, and therefore, we set aside
Connor’s felony conviction and remand this matter to the dis-
trict court with direction to impose an appropriate sentence
on Connor for misdemeanor theft of property with a value
less than $200, a Class II misdemeanor. See, § 28-518(4);
Garza, supra.
STATe v. CoNNoR 	877
Cite as 16 Neb. App. 871

CoNClUSIoN
For the foregoing reasons we affirm in part and reverse in
part the judgment of the district court, and we remand the cause
with directions.
AFFirMed in pArt , And in pArt reversed
And reMAnded With directions .
878 	16 NebRASkA AppellATe RepoRTS