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STATE v. MARKS

Cite as 28 Neb. App. 261

State of Nebraska, appellee, v.

Crystal M. Marks, appellant.

___ N.W.2d ___

Filed April 28, 2020. No. A-18-1160.

1. Convictions: Evidence: Appeal and Error. 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.

2. Theft: Value of Goods: Proof. Under Neb. Rev. Stat. § 28-518(8) 

(Reissue 2016), value is an essential element of the offense of theft 

which must be proved beyond a reasonable doubt.

3. Criminal Law: Evidence. The owner of chattel may testify as to its 

value in a criminal case.

4. Witnesses: Juries: Appeal and Error. The credibility and weight of 

witness testimony are for the jury to determine, and witness credibility 

is not to be reassessed on appellate review.

5. Effectiveness of Counsel: Constitutional Law: Statutes: Appeal and 

Error. Whether a claim of ineffective assistance of trial counsel can be 

determined on direct appeal presents a question of law, which turns upon 

the sufficiency of the record to address the claim without an evidentiary 

hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement.

6. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial 

counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective 

performance which is known to the defendant or is apparent from the 

record. Otherwise the issue will be procedurally barred.

7. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 

Nebraska Supreme Court Online Library

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

04/28/2020 08:08 AM CDT
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104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that 

counsel’s performance was deficient and that this deficient performance 

actually prejudiced his or her defense.

8. Effectiveness of Counsel: Records: Appeal and Error. An ineffective 

assistance of counsel claim made on direct appeal can be found to be 

without merit if the record establishes that trial counsel’s performance 

was not deficient or that the appellant could not establish prejudice.

9. Appeal and Error. Plain error may be found on appeal when an error 

unasserted or uncomplained of at trial, but plainly evident from the 

record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness 

of the judicial process.

10. Criminal Law: Sentences. A person cannot be found guilty of or sentenced for a crime greater than that with which he or she was charged.

Appeal from the District Court for Lancaster County: Susan 

I. Strong, Judge. Affirmed in part, and in part reversed and 

remanded for resentencing.

David J. Tarrell, of Berry Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Moore, Chief Judge, and Arterburn and Welch, Judges.

Arterburn, Judge.

I. INTRODUCTION

Crystal M. Marks was convicted by a jury of a certificate 

of title violation and theft by unlawful taking. The district 

court subsequently sentenced Marks to a total of 4 to 6 years’ 

imprisonment. On appeal, Marks challenges only her conviction for theft by unlawful taking. Specifically, she asserts 

that there was insufficient evidence presented at trial to prove 

the value of the item taken. In addition, she asserts that she 

received ineffective assistance of trial counsel because counsel 

failed to object to the victim’s testimony regarding value. Upon 

our review, we affirm Marks’ conviction for theft by unlawful taking. However, we find that the court committed plain 

error in its sentencing of Marks for that conviction. Although 
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the second amended information charged Marks with theft 

by unlawful taking ($1,500 to $5,000), a Class IV felony, at 

sentencing, the district court treated the theft by unlawful taking charge as a Class IIA felony. Upon our review, we affirm 

Marks’ convictions for a certificate of title violation and for 

theft by unlawful taking. However, we reverse her sentences 

for those convictions and remand the cause with directions to 

resentence Marks in accordance with this opinion.

II. BACKGROUND

The State filed an amended information charging Marks 

with a certificate of title violation, a Class IV felony, pursuant to Neb. Rev. Stat. § 60-179 (Reissue 2010) and with theft 

by unlawful taking, $5,000 or more, a Class IIA felony, pursuant to Neb. Rev. Stat. §§ 28-511 and 28-518(1) (Reissue 

2016). The charges against Marks stem from an incident which 

occurred in November 2016.

On November 16, 2016, Stephen Gibson-Daniel (Stephen) 

was at home in his apartment in Lincoln, Nebraska, when he 

was notified by one of his neighbors that a tow truck was in 

the parking lot of the apartment complex and was attempting to tow away his 2004 Nissan Titan pickup truck. Stephen 

spoke with the driver of the tow truck. He informed the driver 

that the pickup truck belonged to him and that he did not 

want it towed. The tow truck driver left the parking lot without Stephen’s pickup truck. The next day, a tow truck again 

appeared in the parking lot of the apartment complex in order 

to tow away the pickup truck. Stephen again successfully prevented the towing of his truck.

On November 18, 2016, for the third day in a row, a tow 

truck arrived in Stephen’s apartment complex parking lot in 

order to tow away his pickup truck. This time, Marks was with 

the tow truck. Marks indicated that she and/or her boyfriend 

had recently purchased the pickup truck from Stephen and that 

she wished it to be towed from the parking lot. Stephen disputed this claim. He denied selling Marks or anyone else the 
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pickup truck, and he indicated he had met Marks on only one 

prior occasion, when he gave her a ride to her mother’s house 

after she said she was stranded at his apartment complex. 

When Stephen attempted to enter his pickup truck to obtain 

documentation of his ownership to show to the tow truck 

driver, he claimed that Marks grabbed for his keys, his keyring 

broke, and she took one of the two keys he possessed for the 

pickup truck. Ultimately, the tow truck driver left the parking 

lot without towing the pickup truck.

Marks then sought the assistance of police in order to obtain 

possession of the pickup truck. She showed police a certificate 

of title for the pickup truck which had recently been issued 

in her name. Police returned to Stephen’s apartment complex 

with Marks, where they spoke with Stephen. He again denied 

selling the truck to Marks or to anyone else. After Stephen 

had seen Marks with the tow truck, he had checked his glove 

box and discovered that the title to his truck, along with his 

registration, his insurance card, and his roadside assistance 

information, had been stolen. He surmised that Marks took this 

documentation when he had given her a ride a few weeks prior. 

On the way to Marks’ mother’s house, Stephen had stopped 

at a gas station to purchase a soda. Marks was alone in his 

truck for approximately 5 minutes. Stephen explained that the 

title to the pickup truck was in his glove box because he had 

planned to meet up with his ex-wife so that she could sign the 

truck over to him, as he had been awarded the truck in their 

recent divorce.

Because Marks possessed a certificate of title for the pickup 

truck, police directed Stephen to turn over all of the keys to 

the truck to Marks, to clean out his belongings from the truck, 

and to turn the truck over to Marks. Marks was unable to 

start the pickup truck, so it was ultimately towed away. Two 

days later, Marks sold the pickup truck to her uncle, Richard 

Macku, for $1,500 because “[s]he just wanted the money.” 

Macku has retained possession of the pickup truck since 

that time.
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Stephen subsequently filed a police report claiming that 

Marks had perpetrated a fraud by obtaining a title in her name. 

Both Stephen and his ex-wife, who was also on the title to the 

pickup truck, indicated that they had not signed the title which 

purported to sell the truck to Marks. They claimed that the 

signatures on the title were not theirs. After an investigation, 

police cited Marks.

Prior to trial being held on the charges alleged in the 

amended information, Marks filed a plea in abatement, alleging that “there was insufficient evidence adduced at the preliminary hearing to warrant a bindover of count 2 (theft) in 

this case.” After a hearing, the district court sustained, in part, 

Marks’ plea in abatement. The court explained:

The Amended Information alleges that [Marks] took 

or exercised control over movable property of another 

with intent to deprive him or her thereof, having a value 

of five thousand dollars or more. The evidence adduced 

at the preliminary hearing is consistent with the allegations that [Marks] exercised control over a vehicle 

which belongs to another. There is sufficient evidence 

to support an inference that [Marks] obtained the title 

to the vehicle fraudulently, that she took possession of 

the vehicle, and that she then sold it to someone else. 

However, the only evidence as to the value of the vehicle 

is [Marks’] claim that she purchased it for $1,500 and 

Officer Pinnow’s Kelley Blue Book search which attributed a value of $4,000 to the same make and year of the 

vehicle. Although the evidence in a preliminary hearing 

need not prove the crime charged beyond a reasonable 

doubt there must be evidence for this Court to find probable cause that all elements of the crime exist.

Accordingly, the State has met its requisite burden 

to prove that there is probable cause to believe the 

crime of Theft by Unlawful Taking under Neb. Rev. Stat. 

§ 28-511 has occurred and that [Marks] committed the 

crime. However, the evidence of the value of the vehicle 
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provides probable cause for the lesser included offense of 

Theft by Unlawful Taking, $1,500 - $5,000, a Class IV 

felony, not Theft by Unlawful Taking, $5,000 or more, a 

Class IIA Felony.

(Emphasis in original.)

Given the district court’s decision to sustain, in part, the 

plea in abatement, the State filed a second amended information. In the second amended information, it again charged 

Marks with a certificate of title violation, but it amended the 

second count to charge Marks with theft by unlawful taking, 

$1,500 to $5,000, a Class IV felony, pursuant to §§ 28-511 and 

28-518(2).

In September 2018, a jury trial was held on the charges 

alleged in the second amended information. Ultimately, the 

jury found Marks guilty of both a certificate of title violation 

and theft by unlawful taking. The jury found that the value 

of Stephen’s pickup truck at the time of the theft was $7,000. 

The district court sentenced Marks to 1 to 1 year’s imprisonment on her conviction for a certificate of title violation and 

to 3 to 5 years’ imprisonment on her conviction for theft by 

unlawful taking. The court ordered the sentences to run consecutively to one another.

Marks appeals here.

III. ASSIGNMENTS OF ERROR

On appeal, Marks asserts that there was insufficient evidence presented at trial to prove the value of the 2004 Nissan 

pickup truck. She also asserts that her trial counsel provided ineffective assistance when counsel failed to object to 

Stephen’s testimony regarding his opinion of the value of 

the truck.

IV. ANALYSIS

1. Sufficient Evidence of Value

Marks asserts that the evidence presented at trial was insufficient to prove the value of the 2004 Nissan pickup truck. 

Specifically, Marks alleges that “there is nothing in the record, 
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other than the victim’s unreliable and irrelevant guess, to prove 

that the vehicle was worth $4000 to $5000.” Brief for appellant at 12. Upon our review, we find the evidence presented at 

trial was sufficient to support Marks’ conviction for theft by 

unlawful taking.

(a) Standard of Review

[1] 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. McPherson, 266 Neb. 715, 

668 N.W.2d 488 (2003); State v. Shipps, 265 Neb. 342, 656 

N.W.2d 622 (2003).

(b) Evidence Presented at Trial

At trial, Stephen testified about the condition of the pickup 

truck and offered his opinion about its value at the time of 

the theft in November 2016. Stephen described the pickup 

truck as a 2004 green, four-door Nissan Titan pickup truck. 

The truck’s features included four-wheel drive, an “off-road 

package,” an ability to tow, a leather steering wheel, and a 

liner in the truck bed. He purchased the truck from a dealership in 2008 for “[j]ust over $17,000.” Stephen estimated 

that in November 2016, the pickup truck had 100,000 miles. 

Stephen also described some minor problems with the pickup 

truck, including that the compact disc player was not in working order, that there was a rust spot near the driver’s side rear 

tire, and that there was a “coin console” in the dashboard that 

was “kind of broken.” The pickup truck had previously been 

in three minor accidents, but any damage sustained in those 

accidents had been fully repaired. Stephen denied that the 

pickup truck had any water or flood damage or that it had any 

major or operational issues. Stephen testified that he drove the 

pickup truck every day because it was his only vehicle.
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When questioned about the exact value of the pickup truck 

in November 2016, Stephen explained that a few months 

prior to the trial, he had looked at a similar pickup truck with 

148,000 miles. The vehicle was priced at “around $11,000.” 

Stephen estimated that based upon his comparison between his 

pickup truck and the one he looked at recently, that he would 

estimate his pickup truck to have been worth about $8,000 at 

the time of the theft. Stephen indicated that he believed that 

his pickup truck had been in good condition, but even if it was 

considered to be in “fair” condition, it would have been worth 

$4,000 to $5,000.

Stephen further explained why he believed the pickup truck 

would not start when Marks attempted to drive it away on 

November 18, 2016. He remembered that one of the doors 

to the vehicle had been left ajar after his first encounter with 

Marks and the tow truck on the afternoon of November 18. He 

opined that because the door was left ajar, the battery of the 

vehicle may have died. Alternatively, Stephen believed it was 

possible that Marks may have attempted to start the vehicle 

with the key which only opened the vehicle’s doors, but which 

would not start the ignition. In any event, Stephen indicated 

that he had driven the vehicle on November 17 and that it was 

operating fine at that time.

Macku also provided testimony regarding the value of the 

pickup truck. When Macku was originally approached by 

Marks to purchase the truck, Marks told him that the price 

was $8,000. Macku testified that he believed $8,000 was 

too much to pay for the truck, so he offered Marks $2,500. 

However, after he moved the truck to his home and began to 

inspect it, he discovered that there was “so much wrong with 

it” that he only paid Marks $1,500. Macku listed the problems with the pickup truck at the time he received it. Those 

problems included having two flat tires on the passenger side, 

bad transmission fluid, a leaky radiator, a “busted” dashboard, 

windows that would not roll up or down, and leaking in the 

back end of the vehicle. Macku described the truck as “pretty 
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well tore up, and pretty well stripped, too.” The biggest 

problem with the truck, however, was that it would not start 

even after Macku changed the battery. Macku indicated that, 

apparently, the vehicle’s “computer [had] locked up,” possibly 

due to having been towed. Macku testified that he has put at 

least $5,000 in parts toward fixing the truck. He indicated that 

when he purchased the truck in November 2016, it had about 

100,000 miles on it. Now, the truck has 112,000 or 113,000 

miles on it. Macku testified that his ex-wife drives the truck 

on a regular basis.

(c) Analysis

[2] Section 28-511(1) provides, “A person is guilty of theft 

if he or she takes, or exercises control over, movable property 

of another with the intent to deprive him or her thereof.” Under 

§ 28-518(8), value is an essential element of the offense of 

theft which must be proved beyond a reasonable doubt. See, 

also, State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002). 

In the second amended information, the State alleged that the 

value of the pickup truck was $1,500 to $5,000. Ultimately, 

the jury found that the pickup truck was worth $7,000 at the 

time of the theft. On appeal, Marks asserts that there was insufficient evidence presented at trial to prove the value of the 

pickup truck. Upon our review, we find that the State met its 

burden of proof with regard to the value of the truck.

[3] It has long been the rule in Nebraska that the owner 

of chattel may testify as to its value in a criminal case. In re 

Interest of Zoie H., 304 Neb. 868, 937 N.W.2d 801 (2020). 

Here, Stephen testified both about the condition of the pickup 

truck at the time of the theft and about his opinion of the 

value of the truck. Stephen believed that the pickup truck was 

in good condition, because there were no major operational 

problems with it and he was able to drive it every day with no 

issues. Stephen also testified about the features on the truck. 

Ultimately, Stephen testified that, based upon his knowledge of 

the pickup truck and his comparison of it to a similar vehicle, 
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he believed the pickup truck to have been worth about $8,000 

in November 2016. Stephen indicated that at a minimum, the 

truck would have been worth $4,000 or $5,000. Contrary to 

Stephen’s testimony, Macku testified that he purchased the 

truck from Marks in November 2016 for $1,500 and that, at 

that time, the truck was probably worth only $1,500 for someone, like him, who could fix it themselves.

[4] Based upon the evidence presented at trial, we find that 

the State presented sufficient evidence to prove the value of 

the pickup truck. Essentially, the evidence indicated that the 

value of the truck was somewhere between $1,500, the amount 

Macku purchased it for, and $8,000, the value attributed to the 

truck by Stephen. We note that during oral argument, Marks’ 

counsel conceded that there was sufficient evidence presented 

during the trial to establish that the value of the pickup truck 

was at least $1,500. The jury clearly found Stephen’s testimony regarding the value of the truck to be credible, because 

it found the truck was worth $7,000 in November 2016. The 

credibility and weight of witness testimony are for the jury to 

determine, and witness credibility is not to be reassessed on 

appellate review. State v. Archie, 273 Neb. 612, 733 N.W.2d 

513 (2007). Our task is limited to determining whether, after 

viewing the evidence in the light most favorable to the State, 

any rational trier of fact could have found beyond a reasonable 

doubt that the pickup truck had some value. Based on the evidence summarized above, we conclude it could.

2. Ineffective Assistance of Trial Counsel

(a) Standard of Review

[5] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of 

law, which turns upon the sufficiency of the record to address 

the claim without an evidentiary hearing or whether the claim 

rests solely on the interpretation of a statute or constitutional 

requirement. See State v. Castillo-Zamora, 289 Neb. 382, 855 

N.W.2d 14 (2014). We determine as a matter of law whether 
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the record conclusively shows that (1) a defense counsel’s 

performance was deficient or (2) a defendant was or was not 

prejudiced by a defense counsel’s alleged deficient performance. See id.

(b) Analysis

[6] Marks is represented in this direct appeal by different 

counsel than the counsel who represented her at trial. When 

a defendant’s trial counsel is different from his or her counsel 

on direct appeal, the defendant must raise on direct appeal 

any issue of trial counsel’s ineffective performance which 

is known to the defendant or is apparent from the record. 

Otherwise the issue will be procedurally barred. State v. 

Casares, 291 Neb. 150, 864 N.W.2d 667 (2015). The fact that 

an ineffective assistance of counsel claim is raised on direct 

appeal does not necessarily mean that it can be resolved. State 

v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017). 

The determining factor is whether the record is sufficient to 

adequately review the question. Id.

[7] To prevail on a claim of ineffective assistance of counsel 

under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 

80 L. Ed. 2d 674 (1984), the defendant must show that counsel’s performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Ortega, 

290 Neb. 172, 859 N.W.2d 305 (2015).

When a claim of ineffective assistance of trial counsel is 

raised in a direct appeal, the appellant is not required to allege 

prejudice; however, an appellant must make specific allegations of the conduct that he or she claims constitutes deficient 

performance by trial counsel. See State v. Casares, supra. 

General allegations that trial counsel performed deficiently or 

that trial counsel was ineffective are insufficient to raise an 

ineffective assistance claim on direct appeal and thereby preserve the issue for later review. Id.

[8] Appellate courts have generally reached ineffective 

assistance of counsel claims on direct appeal only in those 
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instances where it was clear from the record that such claims 

were without merit or in the rare case where trial counsel’s 

error was so egregious and resulted in such a high level of 

prejudice that no tactic or strategy could overcome the effect 

of the error. Id. An ineffective assistance of counsel claim 

made on direct appeal can be found to be without merit if the 

record establishes that trial counsel’s performance was not 

deficient or that the appellant could not establish prejudice. 

Id. See, also, State v. Filholm, 287 Neb. 763, 848 N.W.2d 

571 (2014).

In her brief on appeal, Marks asserts that her trial counsel 

was ineffective in failing to object to Stephen’s testimony 

about the value of the pickup truck. She asserts that counsel 

should have objected to Stephen’s testimony as being not relevant based upon the Nebraska Supreme Court’s holding in 

State v. Roche, Inc., 246 Neb. 568, 520 N.W.2d 539 (1994). 

Based upon our reading of the holding in State v. Roche, Inc., 

supra, we find Marks’ contention to be misplaced.

In State v. Roche, Inc., supra, the Supreme Court analyzed 

how the value of an item involved in a theft should be calculated when a victim was deceived into paying more money 

for an item than it was worth due to a defendant’s fraud. The 

defendant had sold two copiers with the meters rolled back, 

thereby deceiving the buyers with regard to the value of the 

machines. The Supreme Court held that the property obtained 

through deception was the amount of money received for 

the copiers. Thus, the value of that property was simply the 

amount each victim paid for the copier, regardless of whether 

the victim had received any value from the copier. The court 

explained that “the degree of the crime must be measured 

by the value of the property obtained by the defendant as 

a result of the deception and that the value of any property 

received by the victim is immaterial.” Id. at 571, 520 N.W.2d 

at 540.

The situation in State v. Roche, Inc., supra, is unlike the 

situation presented by this case. First, Marks was convicted 
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of theft by unlawful taking and not theft by deception. Marks 

took or exercised control over a pickup truck that belonged to 

Stephen. Unlike the defendant in State v. Roche, Inc., supra, 

she did not deceive Stephen into paying more for an item than 

the item was actually worth. Thus, the calculation of value discussed in State v. Roche, Inc., supra, is entirely different than 

the calculation of value in this case. The value of the pickup 

truck is essentially what the pickup truck was worth at the 

time it was stolen. Stephen’s testimony was highly relevant to 

that issue and was properly permitted in evidence because, as 

we stated above, an owner is permitted to testify regarding an 

item’s value. See In re Interest of Zoie H., 304 Neb. 868, 937 

N.W.2d 801 (2020).

Given that Stephen’s testimony regarding the condition and 

the value of the pickup truck at the time of the theft was 

relevant to the issue of the pickup truck’s ultimate valuation and given that such testimony was proper, we find that 

Marks’ trial counsel did not provide deficient performance in 

failing to object to such testimony. Counsel had no basis to 

object to Stephen’s testimony regarding the value of the truck. 

Therefore, trial counsel did not perform in a deficient manner.

3. Plain Error in Sentencing

(a) Standard of Review

[9] Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the 

record, prejudicially affects a litigant’s substantial right and, if 

uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. State v. Thompson, 

301 Neb. 472, 919 N.W.2d 122 (2018).

(b) Additional Background

The State originally charged Marks with theft by unlawful 

taking of an item with a value of $5,000 or more. This charge 

constituted a Class IIA felony pursuant to § 28-518(1). A Class 

IIA felony is punishable by up to 20 years’ imprisonment. 
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Neb. Rev. Stat. § 28-105 (Reissue 2016). However, after 

the district court granted, in part, Marks’ plea in abatement, 

the State amended the theft charge to reflect that Stephen’s 

pickup truck was valued at $1,500 to $5,000. The amended 

theft charge constituted a Class IV felony. See § 28-518(2). 

A Class IV felony is punishable by up to 2 years’ imprisonment and 12 months of postrelease supervision. § 28-105. 

Ultimately, the jury found that the value of Stephen’s pickup 

truck at the time of the theft was $7,000.

At the start of the sentencing hearing, the district court 

explained to Marks the convictions for which she was being 

sentenced: “[You] hav[e] been found guilty of Count 1, certificate of title violation, a Class 4 felony; and Count 2, theft 

by unlawful taking, $5000 or more, a Class 2A felony.” After 

her counsel made some remarks regarding an appropriate 

sentence, Marks expressed to the court some confusion about 

her convictions. She stated, “To be honest, Your Honor, I’m 

— I’m confused about my charges. I thought I was being 

charged with two Felony 4s, and today I hear you say it’s 

a Felony 2 and a Felony 4.” After being prompted by the 

court, the State explained the gradation of the theft conviction 

as follows:

[M]y understanding is it’s based on the jury’s findings, 

the — I mean, the preliminary hearing evidence was 

4000, and so that’s why it was — the count was amended, 

I think, in the Second Amended Complaint, to the 1500 

to 5000; but ultimately, you know, it’s the State’s position 

that the jury decides the value, which then determines the 

classification or the punishment.

Based on that value in this case, the jury found the 

vehicle — that the theft occurred and that the value of the 

property that was stolen was $7000, which is more than 

the $5000. And so I believe that then means that it’s the 

2A or can be punished up to the 20 years in prison.

The district court continued to treat Marks’ theft conviction as a Class IIA felony and, accordingly, sentenced her to 
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3 to 5 years’ imprisonment for that conviction. Such sentence 

is outside of the sentencing range for a Class IV felony. On 

appeal, Marks does not challenge the district court’s decision 

to sentence her on a Class IIA felony. However, during oral 

argument, the State conceded that Marks’ sentence for her theft 

conviction constituted plain error.

(c) Analysis

[10] Based on the foregoing record, it appears that the district court may have considered the value of the item stolen 

to be a sentencing factor rather than an element of the crime 

of theft. However, § 28-518(8) clearly delineates value as “an 

essential element of the offense that must be proved beyond a 

reasonable doubt.” See, also, State v. Gartner, 263 Neb. 153, 

638 N.W.2d 849 (2002). We find that the district court committed plain error in sentencing Marks on a Class IIA felony 

when she was charged with a Class IV felony. Even though 

the jury found that the value of the pickup truck was $7,000, 

which would have placed the theft offense into the Class IIA 

category pursuant to § 28-518(1), the State’s second amended 

information charged Marks with a Class IV felony. There is 

nothing in our record to suggest that the operative information 

was ever amended or otherwise superseded. Simply stated, 

Marks could not be found guilty of or sentenced for a crime 

greater than that with which she was charged. As such, the 

district court committed plain error in treating Marks’ theft by 

unlawful taking conviction as a Class IIA felony and sentencing her to 3 to 5 years’ imprisonment. Marks was charged with 

and convicted of theft by unlawful taking, a Class IV felony. 

A Class IV felony is punishable by up to 2 years’ imprisonment and 12 months of postrelease supervision. The sentence 

imposed by the district court was clearly not within these 

statutory limits. We reverse, and remand with regard to Marks’ 

sentence for theft by unlawful taking. On remand, Marks 

should be resentenced such that the new sentence is within the 

statutory confines for a Class IV felony.
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STATE v. MARKS

Cite as 28 Neb. App. 261

Given our finding that Marks was charged with and convicted of theft by unlawful taking, a Class IV felony, we must 

also reverse the district court’s sentence for Marks’ conviction 

for a certificate of title violation, also a Class IV felony.

The district court sentenced Marks to an indeterminate sentence of 1 to 1 year’s imprisonment on her conviction for 

a certificate of title violation. Pursuant to Neb. Rev. Stat. 

§ 29-2204.02 (Reissue 2016), this sentence would have been 

proper had Marks’ conviction for theft by unlawful taking constituted a Class IIA felony. Section 29-2204.02(4) provides in 

relevant part:

For any sentence of imprisonment for a Class III, IIIA, or 

IV felony for an offense committed on or after August 30, 

2015, imposed consecutively or concurrently with . . . (b) 

a sentence of imprisonment for a Class I, IA, IB, IC, ID, 

II, or IIA felony, the court shall impose an indeterminate 

sentence within the applicable range in section 28-105 

that does not include a period of post-release supervision . . . .

However, Marks’ conviction for theft by unlawful taking 

constituted a Class IV felony. As such, each of her sentences for a Class IV felony is governed by the language in 

§ 29-2204.02(1):

[I]n imposing a sentence upon an offender for a Class III, 

IIIA, or IV felony, the court shall:

(a) Impose a determinate sentence of imprisonment 

within the applicable range in section 28-105; and

(b) Impose a sentence of post-release supervision, under the jurisdiction of the Office of Probation 

Administration, within the applicable range in section 

28-105.

The district court’s sentence for Marks’ conviction for a certificate of title violation did not comport with the requirements delineated in § 29-2204.02(1). The court did not impose 

a determinate sentence, nor did it impose any period of 

postrelease supervision. As such, we must remand Marks’ 
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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

STATE v. MARKS

Cite as 28 Neb. App. 261

sentence for the certificate of title violation with directions to 

resentence her in accordance with § 29-2204.02(1).

V. CONCLUSION

Upon our review, we affirm Marks’ convictions for a certificate of title violation and for theft by unlawful taking. However, 

we reverse her sentences for those convictions and remand the 

cause with directions to resentence Marks in accordance with 

this opinion.

Affirmed in part, and in part reversed 

and remanded for resentencing.