28-518. Grading of theft offenses; aggregation allowed; when.

(1) Theft constitutes a Class IIA felony when the value of the thing involved is five thousand dollars or more.

(2) Theft constitutes a Class IV felony when the value of the thing involved is one thousand five hundred dollars or more but less than five thousand dollars.

(3) Theft constitutes a Class I misdemeanor when the value of the thing involved is more than five hundred dollars but less than one thousand five hundred dollars.

(4) Theft constitutes a Class II misdemeanor when the value of the thing involved is five hundred dollars or less.

(5) For any second or subsequent conviction under subsection (3) of this section, any person so offending shall be guilty of a Class IV felony.

(6) 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.

(7) Amounts taken pursuant to one scheme or course of conduct from one or more persons may be aggregated in the indictment or information in determining the classification of the offense, except that amounts may not be aggregated into more than one offense.

(8) In any prosecution for theft under sections 28-509 to 28-518, value shall be an essential element of the offense that must be proved beyond a reasonable doubt.

Source

Annotations

1. Value

2. Aggregation

3. Miscellaneous

1. Value

Subsection (8) of this section requires only that some value be proved as an element of a theft offense, not that a particular threshold value be proved as an element of the offense. State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).

While subsection (8) of this section now requires that intrinsic value be proved beyond a reasonable doubt as an element of the offense, proof of a specific value at the time of the theft is necessary only for gradation of the offense. State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002).

The degree of the crime for grading purposes of this section must be measured by the value of the thing involved as obtained by defendant through deception, and the value of the thing involved as to the victim is immaterial. State v. Roche, Inc., 246 Neb. 568, 520 N.W.2d 539 (1994).

The greater the value of the property involved in a theft, the more severe the punishment which may be imposed on conviction for the theft; and the determination of value is a question for the fact finder, whose finding will not be set aside unless clearly erroneous. State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).

In a theft charge, the value of the thing involved is an element of the charge against defendant and must be proved by the State beyond a reasonable doubt and must be established by the jury. State v. Scott, 225 Neb. 146, 403 N.W.2d 351 (1987).

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. State v. Connor, 16 Neb. App. 871, 754 N.W.2d 774 (2008).

Pursuant to subsection (8) of this section, value is an essential element of the crime of theft by receiving stolen property. In re Interest of Shea B., 3 Neb. App. 750, 532 N.W.2d 52 (1995).

2. Aggregation

Where a jury found that the defendant unlawfully took multiple items, the jury's finding that the defendant did not take the items "pursuant to one scheme or course of conduct" did not require that the defendant be found not guilty. State v. Duncan, 294 Neb. 162, 882 N.W.2d 650 (2016).

Whether the theft of multiple items was "taken pursuant to one scheme or course of conduct" is not an essential element of a theft offense; instead, whether the items were "taken pursuant to one scheme or course of conduct" is relevant to the determination of whether the value of the items taken could be aggregated for purposes of grading the offense. State v. Duncan, 294 Neb. 162, 882 N.W.2d 650 (2016).

Subsection (7) of this section permits the value of all items of property taken pursuant to one scheme or course of conduct from one person to be aggregated in order to determine the classification of the theft offense, but specifically prohibits aggregation of individual values into more than one offense. State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).

An act of theft involving multiple items of property stolen simultaneously at the same place constitutes one offense, in which the value of the individual stolen items may be considered collectively for the aggregate or total value of the property stolen to determine the grade of the offense under this section. State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).

3. Miscellaneous

For enhancement as a third or subsequent offense under subsection (4), this section requires only that a person have at least two prior valid convictions of theft under subsection (4); it does not require that a person be progressively convicted from first offense to second offense before he or she can be found guilty of an enhanced third or subsequent offense. State v. McCarthy, 284 Neb. 572, 822 N.W.2d 386 (2012).

The defendant's prior two convictions for theft by shoplifting could be used to enhance his third conviction for theft by shoplifting, although the prior two convictions occurred before subsection (4) of this section was amended by 2015 Neb. Laws, L.B. 605, to increase the maximum value of the thing involved, since the defendant's third conviction would have been classified under subsection (4) under either the old or the new version of this subsection. State v. Sack, 24 Neb. App. 721, 897 N.W.2d 317 (2017).

A conviction under subsection (2) or (3) of this section does not include a conviction of a lesser offense under subsection (4) of this section for purposes of enhancement. State v. Long, 4 Neb. App. 126, 539 N.W.2d 443 (1995).