State v. Duncan, 294 Neb. 162

Background

Duncan worked for Hymark Towing and helped run the business after owner Monte Stava became ill and later died; Duncan claimed Monte had given him a heavily damaged Chevrolet Tahoe in partial payment for work.
Duncan applied for an abandoned title to the Tahoe and later gave the vehicle to a friend (Payne); the county sheriff’s office refused to issue a title after a call purporting to be from Monte’s widow (Kasey) was determined not to be hers.
Duncan also sold a combine trailer and deposited the $1,250 proceeds; he told investigators the sale proceeds were kept to satisfy unpaid wages.
The State charged one count of theft by unlawful taking (Class III felony — over $1,500) under § 28-518(7), aggregating the Tahoe ($750) and trailer proceeds ($1,250) as one scheme or course of conduct.
The jury found Duncan guilty of stealing both items, valued them separately ($750 and $1,250), and specifically found the takings were NOT pursuant to one scheme or course of conduct.
The district court entered judgment for a single Class IV felony (more than $500 but less than $1,500) based on the jury’s verdict; Duncan appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a finding that items were taken "pursuant to one scheme or course of conduct" is an essential element of theft when aggregation under § 28-518(7) is alleged	State: Aggregation fact affects grading, not the existence of the crime; value is an essential element to prove	Duncan: "One scheme" is an essential element the State must prove; absence requires acquittal of charged aggregation	Held: "One scheme" is not an essential element of theft; it only governs whether values may be aggregated for grading the offense
Whether the trial court erred by not instructing the jury that "one scheme" is an element	State: No error because it is not an element	Duncan: Court should have instructed that "one scheme" is required to prove the charged single offense	Held: No error; instruction unnecessary because "one scheme" is not an element
Whether the jury’s negative finding on "one scheme" required acquittal or reversal	State: Negative finding affects grade only; conviction of lesser grade still valid	Duncan: Verdict that there was no one scheme undercuts the single-offense charge and requires not guilty	Held: No reversal; verdict produced a valid conviction of a lesser-degree theft (Class IV)
Sufficiency of evidence as to theft of the Tahoe	State: Combined evidence and Duncan’s statements provided sufficient proof	Duncan: Insufficient evidence specifically as to Tahoe ownership transfer	Held: Sufficient evidence overall (and Duncan did not contest sufficiency as to the trailer proceeds), supporting Class IV conviction

Key Cases Cited

State v. Mendoza-Bautista, 291 Neb. 876 (statutory interpretation reviewed de novo)
State v. Ramirez, 285 Neb. 203 (appellate standard for statutory questions)
State v. Dixon, 282 Neb. 274 (statutory construction principles)
State v. Scott, 284 Neb. 703 (discussing grading under § 28-518)
State v. Thacker, 286 Neb. 16 (interpretation of theft statutes)
State v. Norman, 282 Neb. 990 (statutory objective and construction)
State v. Gartner, 263 Neb. 153 (aggregation and grading of thefts under § 28-518)
State v. Miner, 273 Neb. 837 (value as element of theft)
State v. Garza, 241 Neb. 256 (treatment of grading/value issues and remand for appropriate sentence)
State v. Stricklin, 290 Neb. 542 (severance and joinder principles)