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STATE v. DIXON

Cite as 306 Neb. 853

State of Nebraska, appellee, v. 

Nathaniel J. Dixon, appellant.

___ N.W.2d ___

Filed August 21, 2020. No. S-19-578.

1. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. When reviewing a trial court’s ruling on a motion 

to suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

2. Property: Appeal and Error. A trial court’s finding that an item of 

personal property has been abandoned is reviewed for clear error.

3. Criminal Law: Convictions: Evidence: Appeal and Error. 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.

4. Constitutional Law: Property: Warrantless Searches. A defendant 

has no Fourth Amendment privacy interest in personal property which 

has been abandoned or discarded, and such property may be searched 

without a warrant.

5. Constitutional Law: Search and Seizure. Both the Fourth Amendment 

to the U.S. Constitution and article I, § 7, of the Nebraska Constitution 

guarantee against unreasonable searches and seizures.

6. ____: ____. A search for Fourth Amendment purposes occurs when the 

government violates a subjective expectation of privacy that society 

recognizes as reasonable.

7. Constitutional Law: Property: Search and Seizure. Once a defendant 

abandons an item of personal property and makes it available to the 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

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police or the public, he or she does not retain a reasonable expectation of privacy in the property for purposes of Fourth Amendment 

protection.

8. Constitutional Law: Property: Search and Seizure: Police Officers 

and Sheriffs: Proof. To show abandonment of personal property for 

purposes of the Fourth Amendment, the State must establish by a preponderance of the evidence that the defendant’s voluntary words or 

conduct would lead a reasonable officer to believe the defendant relinquished his or her property interests in the item.

9. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

10. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A 

defendant who moves for dismissal or a directed verdict at the close of 

the evidence in the State’s case in chief in a criminal prosecution and 

who, when the court overrules the dismissal or directed verdict motion, 

proceeds with trial and introduces evidence, waives the appellate right 

to challenge correctness in the trial court’s overruling the motion for 

dismissal or a directed verdict but may still challenge the sufficiency of 

the evidence.

11. Motions to Dismiss: Directed Verdict: Convictions. Whether styled 

as a motion to dismiss, a motion for directed verdict, or a motion 

for judgment of acquittal, such a motion made at the close of all the 

evidence challenges the sufficiency of the State’s evidence to sustain 

the conviction.

12. Evidence: Appeal and Error. An appellate court does not resolve conflicts in the evidence, pass on credibility of witnesses, or reweigh the 

evidence; such matters are for the finder of fact.

13. Theft: Value of Goods: Proof. In a theft case, the value to be proved 

is market value at the time and place where the property was criminally appropriated.

14. Value of Goods: Proof. 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.

15. Value of Goods: Evidence. Evidence of price, when determined by and 

reflective of current market conditions for the sale of an item, may be 

admissible on the issue of value.

16. Criminal Law: Value of Goods. The owner of chattels may testify as to 

their value in a criminal case.

17. Theft: Value of Goods: Evidence: Proof. An item’s market value at 

the time of the theft may be established by either direct or circumstantial evidence, and it presents a question of fact to be resolved by the 

fact finder.
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18. Theft: Value of Goods: Appeal and Error. When a fact finder determines the value of property in a theft case, an appellate court will not 

set aside the finding unless it is clearly erroneous.

Appeal from the District Court for Sarpy County: George 

A. Thompson, Judge. Affirmed.

Thomas P. Strigenz, Sarpy County Public Defender, for 

appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

Nathaniel J. Dixon was convicted by a jury of one count of 

burglary and one count of theft by receiving stolen property. 

In this direct appeal, he challenges the denial of his motion 

to suppress evidence discovered in a warrantless search of 

a backpack he discarded in a ditch. He also challenges the 

admissibility and sufficiency of the State’s evidence pertaining to the value of the stolen property. Finding no merit to his 

assignments of error, we affirm.

I. FACTS

1. Burglary

On August 2, 2017, police in Papillion, Nebraska, were notified of a burglary at a Papillion residence. Police investigated 

and found numerous items of jewelry missing from the master bedroom.

About an hour before the burglary was reported, police 

had received several reports of a suspicious male jumping 

fences in the area near where the burglary occurred. Police 

obtained a description of the suspect but were not able to 

locate him. Police did find a suspicious vehicle parked in the 

area with the windows down and keys in the ignition. Police 
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determined the vehicle had been reported stolen by a woman 

who Dixon was dating at the time.

2. Arrest

The day after the burglary, police received a report that 

someone who matched the description of the burglary suspect 

was walking near a school in La Vista, Nebraska. Capt. Brian 

Waugh of the police department in La Vista was near the area 

and saw an individual matching the suspect’s description, 

wearing a ball cap and carrying a backpack. Waugh watched 

as the individual, later identified as Dixon, walked toward him. 

When Dixon was approximately 25 yards away, he appeared 

to notice Waugh, who was standing near his marked patrol car. 

Dixon “abruptly” entered a nearby drainage ditch which was 4 

or 5 feet deep, causing Waugh to temporarily lose sight of him. 

When Waugh saw Dixon emerge from the ditch, Dixon was no 

longer wearing either the cap or the backpack.

Waugh made contact with Dixon and asked him where he 

was going. Dixon said he was going home, but did not give a 

street address. At that time, Papillion police officers arrived on 

the scene, and the officers’ interaction with Dixon thereafter 

was recorded on the officers’ body and cruiser cameras.

One of the Papillion officers was Kurt McClannan. Without 

Dixon’s knowing, Waugh informed McClannan that he had 

seen Dixon enter the ditch with a backpack and come out 

without one. While McClannan was talking with Dixon, Dixon 

asked, “Can I get my stuff?” and McClannan responded, “Do 

you have a backpack?” Dixon pointed toward the ditch and 

said, “Yeah its over there.” Dixon said he had gone into the 

ditch because he had seen police. An officer went to retrieve 

the backpack, and when he brought it back, Dixon again stated 

it was his and told the officers they did not have his permission to search it. McClannan asked why Dixon left his cap in 

the ditch and did not go back for it. Dixon said that he fell and 

that his hat fell off and he did not realize it. Officers returned 

Dixon’s hat, but searched the backpack.
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The backpack contained a pillowcase tied in a knot that was 

full of a “big ball of jewelry” all tangled together. Dixon was 

placed under arrest. He was subsequently charged with burglary, a Class IIA felony, 1 and theft by receiving stolen property with a value of more than $1,500 but less than $5,000, a 

Class IV felony. 2 The information also charged that Dixon was 

a habitual criminal. 3

3. Motion to Suppress

Dixon moved to suppress the evidence found during the 

search of the backpack. After an evidentiary hearing at which 

the above-described evidence was admitted, the district court 

denied the motion. It reasoned Dixon had no Fourth Amendment 

privacy expectation in the backpack because he had abandoned 

the backpack before the search.

4. Trial

The case proceeded to trial. As relevant to the issues on 

appeal, the State introduced evidence about each piece of jewelry found in the backpack, including its value.

The owner of the home that was burglarized testified about 

each piece of jewelry found in the backpack. She identified 

all pieces as belonging to her, and explained she had received 

some as gifts and had purchased others herself. She estimated 

the collective value of the jewelry at $2,000.

The State also adduced evidence of the jewelry’s appraised 

value from John Dineen, the general manager of a pawnshop 

that deals in secondhand jewelry and other items. Dineen testified he is an experienced jewelry appraiser who, for the prior 

16 years, had conducted 5 to 10 jewelry appraisals each week.

Dineen appraised all 72 items of jewelry and prepared 

a report styled as an “Appraisal Certificate,” which stated 

1 Neb. Rev. Stat. § 28-507 (Reissue 2016).

2 Neb. Rev. Stat. § 28-518(2) (Reissue 2016).

3 Neb. Rev. Stat. § 29-2221 (Reissue 2016).
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he had “carefully examined the articles listed below and 

appraised those articles [at] current fair market replacement 

value.” The report described each item of jewelry and listed 

its appraised value. Most of the 72 items in Dineen’s appraisal 

were valued between $15 and $40, and collectively, the items 

were appraised at a value of $1,561.50. The appraised values 

were based on Dineen’s inspection of the items and included 

consideration of the size and quality of the items.

Dineen testified the appraised value of each item was 

“[p]retty darn close” to the price the item would sell for in the 

retail market, including stores such as “Kohl’s and Walmart.” 

He regularly referred to this as the “retail value” or the “fair 

market value” of the jewelry items. Dineen also testified that 

the “wholesale value” of the items would be less, and he admitted that if he were to sell the items at his pawnshop, he would 

list them for “a lot less.”

Dixon objected to the admission of Dineen’s appraisal 

report, but did not move to strike Dineen’s opinion testimony. 

Regarding the appraisal report, Dixon argued it was inadmissible because it focused on the price of the items rather than 

their value. The trial court overruled the objection and admitted 

the appraisal report, reasoning that Dineen had testified about 

“two views” of value and ultimately the value of the items was 

a fact question for the jury to determine.

At the close of the State’s evidence, Dixon moved to dismiss 

the theft by receiving stolen property charge, arguing the State 

had failed to prove the property had a value of $1,500 or more. 

The district court overruled the motion, noting the State had 

adduced evidence of value from both the owner of the jewelry 

and from Dineen and stating, “roughly speaking, at this juncture [there are] three different valuations of the items” which 

presented a question for the jury.

Dixon proceeded to put on a defense, after which he renewed 

his motion to dismiss the theft charge without additional argument. That motion was also overruled.
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5. Verdict and Sentencing

The jury was given a verdict form on which it was directed to 

circle either “[g]uilty” or “[n]ot [g]uilty” for each count charged. 

The verdict form further directed the jury, if it found Dixon 

guilty of theft by receiving stolen property, to find the value 

of the property by circling one of the following: “$1,500.00 to 

$4,999.99,” 4 “$500.00 to $1,499.99,” 5 or “$0.01 to $499.99.” 6

The jury returned the verdict form finding Dixon guilty of both 

burglary and theft by receiving stolen property and finding the 

value of the property was $1,500 to $4,999.99.

After an enhancement hearing, Dixon was found to be a 

habitual criminal. He was sentenced to 20 to 30 years’ imprisonment on the conviction for burglary and to 20 to 30 years’ 

imprisonment on the conviction for theft by receiving stolen 

property. The sentences were ordered to run concurrently.

Dixon timely appealed. We moved the case to our docket on 

our own motion.

II. ASSIGNMENTS OF ERROR

Dixon assigns the district court erred in (1) overruling his 

motion to suppress the contents of his backpack, (2) overruling his objection to the admission of Dineen’s appraisal report, 

and (3) overruling his motion to dismiss the charge of theft by 

receiving stolen property.

III. STANDARD OF REVIEW

[1] When reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review. 7

Regarding historical facts, an appellate court reviews the trial 

4 See § 28-518(2).

5 See § 28-518(3).

6 See § 28-518(4).

7 State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).
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court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of 

law that an appellate court reviews independently of the trial 

court’s determination. 8

[2] A trial court’s finding that an item of personal property 

has been abandoned is reviewed for clear error. 9

[3] 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. 10

IV. ANALYSIS

1. Motion to Suppress

Dixon argues it was clear error for the trial court to find he 

had abandoned his backpack when he left it in the ditch. He 

generally concedes that Fourth Amendment privacy protections 

do not extend to personal property that has been abandoned, 11

but he argues it is “impossible” 12 to find he abandoned the 

backpack because he affirmatively claimed the backpack in 

the ditch was his. According to Dixon, the fact that he did not 

deny ownership of the backpack prevents a finding that he 

abandoned the property. We disagree.

[4] This court has generally recognized that a defendant has 

no Fourth Amendment privacy interest in personal property 

which has been abandoned or discarded, and such property 

8 Id.

9 See U.S. v. Crumble, 878 F.3d 656 (8th Cir. 2018).

10 State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016).

11 See, e.g., Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 

668 (1960); Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 

898 (1924).

12 Brief for appellant at 5.
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may be searched without a warrant. 13 The Nebraska Court of 

Appeals has also recognized and applied this principle. 14 But 

so far, neither Nebraska appellate court has articulated a test 

for determining when personal property has been abandoned 

for purposes of Fourth Amendment protection.

The trial court relied on two federal appellate cases, U.S. 

v. Nowak 15 and U.S. v. Basinski,

 16 both of which articulated 

tests for determining when personal property is abandoned for 

Fourth Amendment purposes. We discuss those cases next and, 

ultimately, adopt a similar framework for determining when 

property has been abandoned.

(a) Determining When Property 

Is Abandoned

[5-7] Both the Fourth Amendment to the U.S. Constitution 

and article I, § 7, of the Nebraska Constitution guarantee 

against unreasonable searches and seizures. 17 A search for 

Fourth Amendment purposes occurs when the government violates a subjective expectation of privacy that society recognizes 

as reasonable. 18 But it is well-settled that once a defendant 

abandons an item of personal property and makes it available 

13 See, e.g., State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000) (finding 

no expectation of privacy in discarded cigarette butts); State v. Wickline, 

232 Neb. 329, 440 N.W.2d 249 (1989) (finding no Fourth Amendment 

protection for cigarette butt discarded at police station), disapproved 

on other grounds, State v. Sanders, 235 Neb. 183, 455 N.W.2d 108 

(1990); State v. Texel, 230 Neb. 810, 433 N.W.2d 541 (1989) (finding no 

expectation of privacy in garbage made accessible to public).

14 State v. Vasquez-Arenivar, 18 Neb. App. 265, 779 N.W.2d 117 (2010) 

(finding baggie discarded by vehicle passenger while passenger waited 

for officers to investigate whether driver was intoxicated abandoned);

State v. Cronin, 2 Neb. App. 368, 509 N.W.2d 673 (1993) (finding baggie 

discarded by defendant while running from police abandoned).

15 U.S. v. Nowak, 825 F.3d 946 (8th Cir. 2016).

16 U.S. v. Basinski, 226 F.3d 829 (7th Cir. 2000).

17 State v. Seckinger, 301 Neb. 963, 920 N.W.2d 842 (2018).

18 See State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018).
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to the police or the public, he or she does not retain a reasonable expectation of privacy in the property for purposes of 

Fourth Amendment protection. 19

In Basinski, the Seventh Circuit held:

To demonstrate abandonment, the government must establish by a preponderance of the evidence that the defend

ant’s voluntary words or conduct would lead a reasonable 

person in the searching officer’s position to believe that 

the defendant relinquished his property interests in the 

item searched or seized. . . . Because this is an objective 

test, it does not matter whether the defendant harbors 

a desire to later reclaim an item; we look solely to the 

external manifestations of his intent as judged by a reasonable person possessing the same knowledge available 

to the government agents. . . . We look at the totality of 

the circumstances, but pay particular attention to explicit 

denials of ownership and to any physical relinquishment 

of the property. 20

Basinski also explained:

There are three general types of abandonment cases, 

which are based on these two indicia of abandonment. 

The first type is characterized by the presence of a fleeing defendant who relinquishes an object to make his 

flight easier or because discarding the item might make 

it easier for him to later claim that he never possessed 

it. . . . Because he has disposed of the property in a location that affords easy access to the public, a reasonable 

person would believe that the defendant’s possessory 

interest in the property is so eroded that anyone has a 

right to retrieve it. The second type of case is closely 

related to the first, for in so-called “garbage cases” the 

defendant places material in or near a refuse receptacle 

19 See, e.g., California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. 

Ed. 2d 30 (1988); Buckman, supra note 13; Wickline, supra note 13; Texel,

supra note 13; Vasquez-Arenivar, supra note 14; Cronin, supra note 14.

20 Basinski, supra note 16, 226 F.3d at 836-37 (citations omitted).
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that is readily accessible to the public, and in which he 

usually places other discarded materials. . . . By this 

conduct and the location of the receptacle, the defendant 

leads reasonable people to believe that he no longer 

cares what becomes of his trash, or articles mistaken for 

trash. In the third type of case, the defendant is usually 

caught red-handed with or near a container of contraband, 

whereupon he denies that the container or its contents are 

his. . . . Taken at face value, this denial makes it reasonable to conclude that the defendant claims no possessory 

interest in the items. 21

Similarly, the Eighth Circuit explained in Nowak how courts 

are to determine when personal property is abandoned:

Whether property has been abandoned “is determined 

on the basis of the objective facts available to the investigating officers, not on the basis of the owner’s subjective intent.” . . . We consider the dual factors of whether 

the defendant physically relinquished his property and 

whether he denied ownership of it. . . . However, a verbal denial of ownership is not necessary for a finding of 

abandonment, and we reach our ultimate conclusion based 

on the totality of the circumstances. 22

Nowak further held that “[w]hether property is discarded in a 

public, private, or semi-private place is a factor in considering 

whether the property has been abandoned . . . .” 23

[8] We agree with the reasoning of Basinski and Nowak, 

and we adopt a similar test for determining abandonment. We 

now hold that to show abandonment of personal property for 

purposes of the Fourth Amendment, the State must establish 

by a preponderance of the evidence that the defendant’s voluntary words or conduct would lead a reasonable officer to 

believe the defendant relinquished his or her property interests 

21 Id. at 837 (citations omitted).

22 Nowak, supra note 15, 825 F.3d at 948 (citations omitted).

23 Id. at 949.
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in the item. 24 This is an objective test based on the information available to the officer, and the defendant’s subjective 

intent to later reclaim the item is irrelevant. 25 When determining whether property has been abandoned, courts consider the 

totality of the circumstances, and pay particular attention to 

the nature and location of any physical relinquishment of the 

property and any explicit denials of ownership. 26 We note this 

test is, in substance, the test applied by the district court in 

this case.

(b) No Clear Error in Finding 

Dixon Abandoned Backpack

Applying the test announced above, we conclude the district court did not clearly err in finding that Dixon abandoned 

his backpack.

Upon seeing police, Dixon entered a drainage ditch next 

to the road, an area generally open to the public, and left his 

backpack there. His action in doing so would cause a reasonable person in the position of the investigating officers to conclude he was physically relinquishing the backpack to make 

it easier for him to later claim that he never possessed it. 27 In 

this respect, his action is similar to those at issue in State v.

Vasquez-Arenivar 28 and State v. Cronin,

 29 where the defendants 

24 See, Nowak, supra note 15; Basinski, supra note 16. See, also, e.g., State 

v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019) (recognizing Fourth 

Amendment probable cause determination based on objective reasonable 

officer standard).

25 Nowak, supra note 15; Basinski, supra note 16. See, also, e.g., State v. 

Krannawitter, 305 Neb. 66, 939 N.W.2d 335 (2020) (recognizing Fourth 

Amendment reasonable suspicion and probable cause determinations both 

involve consideration of totality of circumstances).

26 Nowak, supra note 15; Basinski, supra note 16.

27 See Basinski, supra note 16. See, also, California v. Hodari D., 499 U.S. 

621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991); Hester, supra note 11.

28 Vasquez-Arenivar, supra note 14.

29 Cronin, supra note 14.
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discarded incriminating substances once they encountered 

police, and the Court of Appeals found obvious abandonment. 

Further, because Dixon disposed of the backpack in a location 

accessible to the general public and walked away, a reasonable person would believe that his possessory interest in the 

property was so eroded that anyone had a right to retrieve it. 30

Viewed objectively, Dixon’s action of discarding the backpack 

in the ditch upon seeing a police officer is strong evidence 

of intent to physically relinquish the backpack. 31 And while 

it is true that Dixon did not deny ownership of the backpack 

once it was discovered and retrieved by police, that is just one 

of many factors to be considered in the totality analysis and 

does not, as Dixon suggests, necessarily preclude a finding 

of abandonment.

Considering the totality of the circumstances, we find the 

trial court did not clearly err in finding Dixon abandoned the 

backpack and thus had no Fourth Amendment privacy interest 

in it. His motion to suppress the evidence found as a result of 

the search of the backpack was properly denied, and his first 

assignment of error has no merit.

2. Theft by Receiving 

Stolen Property

Dixon’s second and third assignments of error both pertain 

to the conviction for theft by receiving stolen property. Theft 

by receiving stolen property is prohibited by Neb. Rev. Stat. 

§ 28-517 (Reissue 2016), which provides: “A person commits 

theft if he receives, retains, or disposes of stolen movable property of another knowing that it has been stolen, or believing 

that it has been stolen, unless the property is received, retained, 

or disposed with intention to restore it to the owner.”

30 See Basinski, supra note 16. See, also, Hodari D., supra note 27; Hester, 

supra note 11.

31 Accord, Vasquez-Arenivar, supra note 14; Cronin, supra note 14.
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Section 28-518(1) through (4) grades theft offenses as either 

misdemeanors or felonies depending on the value of the property involved. Summarized, under § 28-518, the lowest offense 

grade is a Class II misdemeanor and the highest offense grade 

is a Class IIA felony; the offense grades increase as the value 

of the property at issue increases. Under this framework, and 

given the jury’s finding on the value of the stolen jewelry, 

Dixon’s conviction is a Class IV felony.

(a) Admissibility of Appraisal Report

Dixon’s second assignment of error states the district court 

erred in admitting Dineen’s appraisal report. However, his 

brief presents no argument specific to this assignment. Instead 

of arguing why the report was inadmissible under the rules of 

evidence, his brief argues only that the report was insufficient 

to prove value and that therefore, the State failed to meet its 

burden of proving all the elements of theft by receiving stolen property.

[9] To be considered by an appellate court, an alleged error 

must be both specifically assigned and specifically argued in 

the brief of the party asserting the error. 32 Because Dixon did 

not present any factual or legal argument to support his contention that it was error to admit the appraisal report, we do not 

consider this assignment.

(b) Sufficiency of Evidence

[10] Dixon’s third assignment of error argues the district 

court erred in overruling his motion to dismiss. As noted, 

Dixon moved to dismiss both at the close of the State’s evidence and at the close of all evidence. It is well settled that a 

defendant who moves for dismissal or a directed verdict at the 

close of the evidence in the State’s case in chief in a criminal 

prosecution and who, when the court overrules the dismissal 

32 State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
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or directed verdict motion, proceeds with trial and introduces 

evidence, waives the appellate right to challenge correctness 

in the trial court’s overruling the motion for dismissal or a 

directed verdict but may still challenge the sufficiency of 

the evidence. 33

Here, Dixon proceeded with trial and introduced evidence 

after the denial of his motion to dismiss. He has therefore 

waived his claim that the district court erred in overruling 

his initial motion to dismiss. But when a defendant makes a 

motion at the close of the State’s case in chief and again at the 

conclusion of all the evidence, it is proper to assign as error 

that the defendant’s motion to dismiss made at the conclusion 

of all the evidence should have been sustained. 34 We therefore 

consider Dixon’s third assignment of error only to the extent it 

relates to his motion to dismiss at the close of all the evidence. 

And as explained below, we treat his motion as a challenge to 

the sufficiency of the evidence.

[11] A motion to dismiss at the close of all the evidence 

has the same legal effect as a motion for a directed verdict. 35

And a motion for directed verdict is simply another name for 

a motion for judgment of acquittal. 36 All three motions assert 

that the defendant should be acquitted of the charge because 

there is no legally sufficient evidentiary basis on which a 

reasonable jury could return a guilty verdict. 37 Thus, however 

styled, this type of motion made at the close of all the evidence 

challenges the sufficiency of the State’s evidence to sustain 

the conviction. 38

33 State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020); State v. Briggs, 303 

Neb. 352, 929 N.W.2d 65 (2019).

34 State v. Savage, 301 Neb. 873, 920 N.W.2d 692 (2018).

35 State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017).

36 See id.

37 See id.

38 See id.
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[12] 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. 39 An appellate court does not 

resolve conflicts in the evidence, pass on credibility of witnesses, or reweigh the evidence; such matters are for the finder 

of fact. 40

As stated, Dixon’s argument regarding the insufficiency of 

the evidence focuses exclusively on the evidence regarding 

the value of the stolen jewelry. We understand his argument 

to be that the State’s evidence focused on price, rather than 

“market value” as that concept has been defined in our cases, 

and so, there was no competent evidence to support the jury’s 

finding that the stolen jewelry had a value of at least $1,500. 

Dixon argues this requires reversal of his conviction for theft 

by receiving stolen property. There are two problems with 

his argument.

(i) No Threshold Value Needed 

to Sustain Conviction

First, Dixon is incorrect that insufficient evidence of market value would require a reversal of his conviction. Section 

28-518(8) states that “[i]n 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.” But in State v. Almasaudi,

 41 we held that the statutory language of § 28-518(8) requires only that some value 

be proved beyond a reasonable doubt, not that a particular 

threshold value be proved. Stated differently, § 28-518(8) 

39 Olbricht, supra note 10.

40 Ferrin, supra note 33; Olbricht, supra note 10.

41 State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).
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requires proof of a specific value only so the offense may be 

classified for purposes of punishment, but no specific value 

must be proved for the theft conviction to be sustained. 42

Thus, even if the evidence in the record before us failed to 

support the specific value found by the jury here, such insufficiency would result only in a reduction in the offense grade 

and a remand for resentencing, not a reversal of the conviction for theft by receiving stolen property. 43 And importantly, 

Dixon has not challenged the gradation of his offense either 

in his motions before the district court or in his argument 

on appeal.

(ii) Sufficient Evidence of Value

Additionally, there is simply no merit to Dixon’s suggestion that the evidence adduced at trial—which consisted of 

both the property owner’s testimony as to value and expert 

testimony as to value—was insufficient to support the jury’s 

finding regarding the value of the property for purposes of 

grading the offense. Dixon’s argument in this regard is that 

“the State sought only to prove the value of the goods by 

testimony relating to their price” 44 and that there was “no 

testimony presented regarding the condition of the jewelry 

that may have caused its value to differ [from] its purchase 

price.” 45 His argument mischaracterizes both our case law on 

establishing value in theft cases generally, and the State’s evidence of value in this case.

[13,14] We have long held that in a theft case, the value 

to be proved is market value at the time and place where the 

42 See id.

43 See id. Accord, State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002) 

(theft conviction affirmed, but matter remanded for resentencing); State 

v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992) (shoplifting conviction 

affirmed, but matter remanded for resentencing).

44 Brief for appellant at 7.

45 Id. at 8.
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property was criminally appropriated. 46 And we have often 

observed, “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.” 47

In State v. Gartner,

 48 a former county assessor was convicted of multiple counts of theft after an audit of his office 

showed several items of property purchased by the office were 

missing. The missing items, which included a file cabinet, 

a fax modem, a fax machine, an inkjet printer, and a digital 

camera, were later found in the defendant’s possession. Based 

on the items’ values as determined by the jury, some of the 

defendant’s convictions were graded as Class IV felonies, and 

others were graded as Class II misdemeanors. On appeal, the 

defendant challenged the sufficiency of the evidence as it pertained to the jury’s findings of value.

Several of the items had been purchased new from a retail 

store shortly before they were stolen, and we held that evidence of the retail purchase price was sufficient to prove 

value because it showed both the price at which those items 

had been offered for sale and the price at which the items 

were sold. But the fax machine had been stolen about 7 

months after it was purchased, and with respect to that item, 

we held that evidence of the purchase price alone was insufficient to prove its market value on the date it was stolen. 

We explained that under those circumstances, “The value of 

the stolen property . . . may be established by proof of the 

original cost of the item reduced to reflect the actual condition of the property, in terms of how long it has been used 

and its state of utility or damage.” 49 And we emphasized that 

46 Gartner, supra note 43; Garza, supra note 43.

47 Gartner, supra note 43, 263 Neb. at 163, 638 N.W.2d at 859. Accord 

Garza, supra note 43 (Boslaugh, J., dissenting).

48 Gartner, supra note 43.

49 Id. at 165, 638 Neb. at 860.
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evidence of purchase price, together with evidence concerning the age, condition, and utility of the item, may afford a 

basis for determining market value. 50 Because there was no 

evidence presented in Gartner regarding the condition of the 

fax machine at the time of the theft, we found the evidence 

of purchase price alone was insufficient to support the jury’s 

finding of value. We thus set aside the felony gradation as 

to that count and remanded the matter for resentencing as a 

Class II misdemeanor.

We also addressed evidence of the jury’s value finding in 

State v. Garza.

 51 There, we held that photographs of price tags 

on items stolen from a retail store, without more, were insufficient to prove the value of those items for purposes of grading 

the defendant’s shoplifting conviction. Our opinion suggested 

“an important distinction” 52 between the concepts of price and 

value, reasoning:

[P]rice is the amount that a willing seller indicates as 

acceptable payment for an article offered for sale, whereas 

value, in relation to a theft charge, is the price obtainable 

for property offered for sale in a market. Consequently, a 

price tag merely expresses the amount at which a seller 

offers an article for sale, a sum the seller hopes to obtain, 

and does not necessarily indicate the amount obtainable 

in the market through payment for the article offered 

for sale. 53

[15] But in Garza, we also cautioned that our reasoning 

should not be misconstrued to suggest that “a price tag, reflecting a seller’s expression of the price for a sale, is never evidence of value.” 54 We stated that “[e]vidence of price, when 

50 See id.

51 Garza, supra note 43.

52 Id. at 264, 487 N.W.2d at 557.

53 Id.

54 Id. at 265, 487 N.W.2d at 557.
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determined by and reflective of current market conditions for 

the sale of an item, may be admissible on the issue of value.” 55

Because the evidence in Garza consisted of nothing but the 

price tags, we found it was insufficient to support the felony 

gradation of the shoplifting conviction and we remanded the 

matter for resentencing as a Class II misdemeanor. One justice 

dissented in Garza, reasoning that in a retail setting, uncontroverted evidence of the price at which the merchandise was 

offered for sale is more than sufficient to permit the finder of 

fact to determine the retail value of the property for purposes 

of grading the offense. 56

We take this opportunity to revisit one aspect of the majority opinion in Garza we think was incorrect: our statement that 

the price tag evidence offered by the State “was irrelevant to 

the issue of value for the property taken by [the defendant] 

and should have been excluded pursuant to [the defendant’s] 

relevance objection.” 57 Garza reasoned the price tag evidence 

was irrelevant because it showed only the seller’s asking price 

for the item, and not the ultimate purchase price. But this was 

not a problem of relevancy.

Relevant evidence means evidence having any tendency to 

make the existence of any fact of consequence to the determination of the action more probable or less probable than 

it would be without the evidence. 58 It seems obvious that the 

price at which an item is offered for sale generally reflects the 

seller’s opinion of the item’s market value, and while that is 

certainly not conclusive evidence of the item’s market value, 

55 Id.

56 See Garza, supra note 43 (Boslaugh, J., dissenting). Accord State v. 

Ybarra, 9 Neb. App. 230, 609 N.W.2d 696 (2000) (Sievers, Judge, 

concurring) (suggesting Nebraska Supreme Court reconsider this aspect of 

Garza), disapproved on other grounds, Gartner, supra note 43.

57 Garza, supra note 43, 241 Neb. at 264, 487 N.W.2d at 557.

58 Neb. Rev. Stat. § 27-401 (Reissue 2016).
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it is nevertheless relevant evidence. 59 To the extent our opinion 

in Garza suggested otherwise, it is expressly disapproved.

Dixon relies on our holding in Garza to argue that the evidence adduced here, which he suggests was limited to the price 

at which the jewelry would be offered for sale, was insufficient 

to support the jury’s finding of value. We disagree.

[16] First, his argument ignores the testimony of the owner 

of the jewelry, who valued the items collectively at $2,000. It 

has long been the rule in Nebraska that the owner of chattels 

may testify as to their value in a criminal case. 60

Moreover, Dixon’s argument misconstrues the nature of 

the expert appraisal evidence in this case. Dineen appraised 

each piece of jewelry individually, and his opinion on the fair 

market value of the jewelry was not based just on the price at 

which similar items might be offered for sale in either a retail 

or a wholesale setting. To the contrary, it included consideration of the condition of each item as well as what buyers in 

the area were willing to pay for the item.

59 See, e.g., State v. Jerrome, 233 W. Va. 372, 758 S.E.2d 576 (2014) 

(holding market value of stolen items may be proved by evidence of 

price, replacement cost, or owner’s belief as to value; weight to be given 

is for trier of fact); State v. Downing, 2002 S.D. 148, 654 N.W.2d 793 

(2002) (disapproving of reasoning in Garza and adopting majority view 

that evidence of price tag on stolen good is admissible as seller’s opinion 

of value); Robinson v. Com., 258 Va. 3, 516 S.E.2d 475 (1999) (finding 

price tags affixed to items offered for sale admissible as evidence of items’ 

value in shoplifting case); Calbert v. State, 99 Nev. 759, 670 P.2d 576 

(1983) (holding price tags attached to goods at time of theft are competent 

evidence of value); State v. McDonald, 312 Minn. 320, 251 N.W.2d 705 

(1977) (reasoning evidence of price tag on stolen item ordinarily sufficient 

to show market value but is not conclusive when asking price does not 

accurately reflect market value); State v. Sorrell, 95 Ariz. 220, 388 P.2d 

429 (1964) (finding evidence of retail price of stolen goods admissible to 

show value); Morris v. State, 334 P.3d 1244 (Alaska App. 2014) (finding 

retail price of stolen item is prima facie evidence of item’s market value 

but wholesale price may also be relevant).

60 See, e.g., Almasaudi, supra note 41.
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[17,18] We pause here to emphasize that our cases discussing the type of evidence which is sufficient to prove market 

value should not be construed either to require expert testimony of an item’s market value or to exclude evidence of 

purchase price and other evidence that may be relevant to 

determining market value. As we recognized in Gartner, an 

item’s market value at the time of the theft may be established 

by either direct or circumstantial evidence, and it presents a 

question of fact to be resolved by the fact finder. 61 And when a 

fact finder determines the value of property in a theft case, 

an appellate court will not set aside that finding unless it is 

clearly erroneous. 62

Here, there was both expert testimony regarding the 

appraised value of the stolen jewelry and testimony from the 

owner as to the value of the jewelry. Both the expert’s testimony and the owner’s testimony set the value of the stolen 

jewelry above $1,500. While there was also evidence that the 

wholesale value of the jewelry was less than $1,500, there 

nevertheless was sufficient, competent evidence from which 

the jury could find the market value of the stolen property was 

at least $1,500.

We conclude the jury’s finding regarding value was supported by sufficient evidence and was not clearly erroneous. 

Dixon’s third assignment of error has no merit.

V. CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed.

61 See Gartner, supra note 43.

62 See Garza, supra note 43.