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07/15/2016 09:06 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          294 Nebraska R eports
                                                 STATE v. DUNCAN
                                                 Cite as 294 Neb. 162




                                        State of Nebraska, appellee, v.
                                         Brody L. Duncan, appellant.
                                                    ___ N.W.2d ___

                                          Filed July 15, 2016.    No. S-15-763.

                1.	 Statutes: Appeal and Error. Statutory interpretation is a question of
                    law that an appellate court resolves independently of the trial court.
                2.	 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. 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. Those matters are for the finder
                    of fact.
                3.	 Criminal Law: Statutes: Appeal and Error. It is a fundamental
                    principle of statutory construction that courts strictly construe penal
                    statutes, and it is not for the courts to supply missing words or sen-
                    tences to make clear that which is indefinite, or to supply that which is
                    not there.
                4.	 Statutes: Intent. In construing a statute, a court must look to the
                    statutory objective to be accomplished, the evils and mischiefs sought
                    to be remedied, and the purpose to be served, and then must place
                    on the statute a reasonable or liberal construction that best achieves
                    the statute’s purpose, rather than a construction that defeats the statu-
                    tory purpose.
                5.	 Theft: Value of Goods. Whether amounts are taken pursuant to one
                    scheme or course of conduct is relevant not to whether the defendant
                    is guilty of the underlying theft offense, but solely to whether the val-
                    ues of multiple stolen items can be aggregated for purposes of grading
                    the offense.
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             Nebraska Supreme Court A dvance Sheets
                     294 Nebraska R eports
                             STATE v. DUNCAN
                             Cite as 294 Neb. 162

 6.	 Theft: Value of Goods: Proof. Although Neb. Rev. Stat. § 28-518(8)
     (Cum. Supp. 2014) requires some value to be proved as an element of a
     theft offense, the statutory language does not require proof of a particu-
     lar threshold value.
 7.	 Theft: Value of Goods: Words and Phrases. A finding of “one scheme
     or course of conduct” is not an essential element of the offense of theft,
     even when the State is attempting to aggregate amounts pursuant to
     Neb. Rev. Stat. § 28-518(7) (Cum. Supp. 2014).

  Appeal from the District Court for Seward County: James C.
Stecker, Judge. Affirmed.
  Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellant.
   Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
  Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
   K elch, J.
                     NATURE OF CASE
   Brody L. Duncan was accused of unlawfully taking two
items belonging to Hymark Towing (Hymark), a Chevrolet
Tahoe and a combine trailer. Rather than being charged with
two Class IV felonies (theft by unlawful taking, more than
$500 but less than $1,500), Duncan was charged with one
Class III felony (theft by unlawful taking, more than $1,500)
under the theory that the values of the Tahoe and the com-
bine trailer could be aggregated, pursuant to Neb. Rev. Stat.
§ 28-518(7) (Cum. Supp. 2014), because they were “pursuant
to one scheme or course of conduct.” The jury found Duncan
guilty of unlawfully taking both items, but made a special
finding that the items were not taken pursuant to one scheme
or course of conduct. On the jury’s verdict, the district court
found that Duncan was guilty of a Class IV felony (theft by
unlawful taking, more than $500 but less than $1,500). Duncan
appeals. We affirm.
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                  294 Nebraska R eports
                       STATE v. DUNCAN
                       Cite as 294 Neb. 162

                            FACTS
   Monte Stava owned and operated Hymark, a full-service
lockout and towing business. As part of the business, Monte
sometimes sold unclaimed vehicles in satisfaction of tow-
ing and storage debts pursuant to Neb. Rev. Stat. § 60-2404
(Reissue 2010). In order to sell the vehicles, Hymark had to
obtain titles to the abandoned vehicles, which could be done
through a sheriff’s office.
   Monte battled cancer for about 8 years before he passed
away in November 2011. Before his death, there were times
when Monte was extremely ill and his friends and relatives
“pitched in” to help run the business. One of those friends
was Duncan.
   After Monte passed away, Duncan began handling the day-
to-day operations. Monte’s widow, Kasey Stava, decided to
try to continue Hymark. Kasey’s mother had been acting as
the bookkeeper for Hymark prior to Monte’s death, and after
Monte’s death, she wanted to set up a payroll account. She
contacted Duncan and asked him what he would need moving
forward. The parties agreed that Duncan would make $500 per
week, plus $200 per “crush load.”
   The parties dispute whether Hymark was behind on paying
Duncan for the work he performed before Monte’s death. The
bookkeeper testified that prior to Monte’s death, none of the
people assisting Monte received a regular salary. Hymark’s
checking account reflects that Duncan was paid $400, $500,
and $4,000 in February, June, and December 2011, respec-
tively, but there was no evidence as to the amount of work
Duncan was performing during those times.
   In February 2013, the parties had a falling out, and either
Duncan quit Hymark or his employment was terminated. In
March or April, Kasey sold Hymark to a new owner.

                        Tahoe
 Duncan claims that in exchange for his help at Hymark,
Monte gave him a heavily damaged Tahoe that had been
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                  294 Nebraska R eports
                       STATE v. DUNCAN
                       Cite as 294 Neb. 162

towed and stored on Hymark’s lot. At Duncan’s trial on the
theft charge, there was evidence that Monte liked to barter
with people and trade favors, and, as explained below, two
witnesses testified that Monte told them he intended to give
Duncan the Tahoe. However, the only evidence that Monte
actually did give Duncan the Tahoe was Duncan’s statements
to others that he did.
    Larry Payne was a friend of Monte’s, and at all relevant
times, he owned a shop out of his home in Seward, Nebraska,
where he worked on cars as a hobby. At Duncan’s trial, Payne
testified that Duncan called Payne about 6 months after
Monte died and wanted Payne to pull the motor out of the
Tahoe so that Duncan could put the motor into a demolition
derby car. Rather than pulling the motor out of the Tahoe,
Payne offered to buy a motor and an “intake” for Duncan’s
demolition derby car if Duncan would let Payne keep the
Tahoe. Duncan agreed.
    Payne testified that when Duncan showed up with the
Tahoe, Payne asked Duncan, “‘This Tahoe is yours, right?’ . . .
‘Monte gave it to you?’” Duncan said, “‘Yes.’” Payne testified
that he had guessed that Monte had given the Tahoe to Duncan
because of a prior conversation Payne had with Monte.
    The conversation in question allegedly occurred sometime
in late spring or early summer 2010. Payne testified that
Monte had called Payne and asked Payne if he would come
look at some vehicles in Monte’s lot to see if they were worth
listing on the Internet. Payne explained that he would some-
times list Monte’s vehicles on the Internet for him. Payne tes-
tified that he and Monte walked around the lot looking at the
vehicles. They approached the Tahoe, and Payne asked Monte,
“‘What’s the deal on this one?’” Payne testified that Monte
said, “‘I’m saving it for [Duncan].’”
    On redirect, Payne admitted that after the exchange with
Duncan, he had sent text messages to Duncan asking Duncan
what Kasey wanted for the Tahoe and offered $500 to $700.
On recross, Payne testified that this was because he was
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                   294 Nebraska R eports
                        STATE v. DUNCAN
                        Cite as 294 Neb. 162

trying to “help settle the estate” and make amends. Payne
explained:
      [T]he estate wasn’t settled because of that vehicle . .
      . . I just — I had no idea that anybody was mad at me
      for anything that I had done. I was just trying to make
      [amends.] I just thought if it was a matter of money, I
      would give her what she wanted to make her happy with
      the vehicle.
   In February 2013, to get a title to the Tahoe for Payne,
Duncan submitted an application for an abandoned title to
the Seward County Sheriff’s Department. At the same time,
he also submitted applications for other vehicles on behalf
of Hymark. Duncan paid for all of the application process-
ing fees with a Hymark check. The officer processing those
applications had frequently processed abandoned title appli-
cations for Hymark. So when he noticed Duncan’s name
on the Tahoe’s application, he became concerned. When he
confronted Duncan about it, Duncan told him that Monte and
Kasey had given him the Tahoe. The officer asked Duncan to
have Kasey contact him to confirm this, and Duncan indicated
that he would.
   Two days later, a person called the officer in reference to
the Tahoe. She identified herself as Kasey and stated that yes,
she had given the Tahoe to Duncan. But the officer was famil-
iar with Kasey’s voice and did not recognize the voice on the
telephone. He decided to call Kasey’s home. The officer got in
contact with Kasey and asked her if she had called him earlier.
She indicated that she had not. As a result of the conversation,
the officer did not issue the title to Duncan.
   After Duncan had failed to provide Payne with a title for
over a year, Payne asked Duncan for the telephone number of
the attorney handling Monte’s estate, who was also a friend
of Monte’s prior to his death, so that Payne could try to make
some progress on the title himself.
   After Payne called the attorney handling the estate, the
attorney checked the estate’s inventory for the Tahoe but did
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                        STATE v. DUNCAN
                        Cite as 294 Neb. 162

not see it listed and did not remember coming across it when
conducting the inventory in the winter and spring of 2012.
The attorney then asked Kasey if she knew anything about
the Tahoe, and Kasey stated that she had reported it as stolen.
Sometime later, the attorney told Payne that the Tahoe had
been listed as stolen. Payne responded that the Tahoe was not
stolen—that Monte had given it to Duncan and that it was at
Payne’s house.
   A search warrant was executed, and an investigator seized the
Tahoe from Payne’s property in October 2013. Approximately
2 days later, Duncan called the investigator, wanting to explain
the circumstances surrounding the Tahoe. Duncan met with and
was interviewed by the investigator on January 16, 2014. The
interview was recorded, and a portion of it was published to
the jury.
   During the interview, Duncan told the investigator that
Monte had given him the Tahoe in exchange for work that
Duncan had done for Hymark. He said that this kind of trans-
action was common with Monte: “If he couldn’t pay me, he
found a way that . . . would help me out.” Duncan explained
that at the time Monte gave him the Tahoe, Duncan had a
Chevrolet pickup on which the Tahoe’s parts would fit. Duncan
said that the Tahoe sat on Hymark’s lot until July 2012, when
he needed a motor for his demolition derby car and called
Payne to have him remove the motor from the Tahoe.
   Duncan told the investigator that when he gave Payne the
Tahoe, he assumed Hymark had the title to it, but that he later
found out that Hymark did not. Duncan said he then submit-
ted the application for the title himself, along with the titles
for Hymark. Duncan told the investigator that when he later
called about the Tahoe’s title, the officer processing his appli-
cation told him that the title could not be issued to Duncan.
Duncan said that he did not understand what the problem was
and gave up on the title.
   The investigator told Duncan that somebody called the
officer, but that it was not Kasey. Duncan responded, “Okay,”
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                        STATE v. DUNCAN
                        Cite as 294 Neb. 162

and then stated that he did not know who else it would
have been.
                  Proceeds of Combine Trailer
   The investigator also asked Duncan about a combine trailer
that Monte had bought at an auction. Duncan told the inves-
tigator that he had sold it for Hymark and kept the proceeds.
Duncan said that Hymark was behind on paying him for the
first year he worked and that Kasey’s mother, the bookkeeper,
told Duncan that he should keep the proceeds as payment for
his services.
   The purchaser of the trailer testified that in December 2011,
he negotiated with Kasey for the trailer and agreed to pay
$1,250. The purchaser testified that he wrote the check and
gave it to Duncan, but that he did not fill in the payee line of
the check because he did not know how to spell Kasey’s name.
When the purchaser received his bank statement, he noticed
Duncan’s name on the payee line of the check, but he testified
that this did not disturb him, “[b]ecause Monte and [Duncan]
were friends and worked together all their life[,] and . . . more
than likely [Duncan] was owed labor or owed something so
they just did it that way.”
   The bookkeeper testified that she did not tell Duncan that
he could sell the combine trailer to make up for his salary.
Kasey also testified that she never gave Duncan permission to
sell the trailer and take the proceeds.
                           Duncan’s Trial
   After the State rested its case, Duncan moved to dismiss
the charge, arguing that no reasonable juror could find Duncan
guilty beyond a reasonable doubt of the charge set forth in the
information. Although Duncan conceded there was sufficient
evidence that, if believed, created a jury question on whether
Duncan had unlawfully taken the proceeds of the combine
trailer, he argued:
      [I]f this [theft of the Tahoe] count stood on its own, there
      would be insufficient evidence for the Court to send
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                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                               STATE v. DUNCAN
                               Cite as 294 Neb. 162

     this count to the jury and the case would be dismissed.
     However, since we can’t really dismiss something that
     isn’t a count, my request would be that the Court rule that
     this issue does not go to the jury.
The court overruled Duncan’s motion.
   The jury reached its verdict the day after the conclusion
of the evidence. The jury found that Duncan stole the Tahoe,
which the jury valued at $750, and the check, which the jury
valued at $1,250. The jury also found that the Tahoe and
the check were not taken pursuant to one scheme or course
of conduct. Because the value of the check and that of the
Tahoe could not be aggregated, the judge found Duncan guilty
of unlawful taking, more than $500 but less than $1,500, a
Class IV felony. On June 26, 2015, Duncan filed a motion for a
new trial, which was denied. Duncan was sentenced to 4 years
of probation. He timely appeals.

                  ASSIGNMENTS OF ERROR
   Duncan assigns that the trial court erred (1) in instructing
the jury on the elements of the offense and the effect of its
finding on the element of “one scheme or course of conduct”
under § 28-518(7), (2) in failing to find Duncan not guilty
based upon the jury’s finding that the thefts were not part of
one scheme or course of conduct, and (3) in failing to grant
a new trial based upon the jury verdict. He also assigns that
(4) the evidence was insufficient to support the verdict on the
theft of the Tahoe and (5) he was prejudiced by the improper
joinder for trial of two unrelated offenses.

                  STANDARD OF REVIEW
  [1] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.1

 1	
      State v. Mendoza-Bautista, 291 Neb. 876, 869 N.W.2d 339 (2015); State v.
      Ramirez, 285 Neb. 203, 825 N.W.2d 801 (2013); State v. Dixon, 282 Neb.
      274, 802 N.W.2d 866 (2011).
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                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                               STATE v. DUNCAN
                               Cite as 294 Neb. 162

   [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 prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. 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.
Those matters are for the finder of fact.2

                           ANALYSIS
   The primary issue in this case is whether a finding that the
amounts were “taken pursuant to one scheme or course of
conduct” is an essential element of the crime of theft when a
defendant is charged with one theft offense involving multiple
items pursuant to § 28-518(7). Duncan argues that it is, that
the district court erred in failing to instruct the jury that it is,
and that the district court erred in finding Duncan guilty of
theft on the jury’s verdict. We conclude that such a finding
is not an essential element of the crime of theft, regardless of
whether the State is attempting to aggregate amounts pursuant
to § 28-518(7), but is instead relevant for purposes of grading
the offense. We therefore affirm Duncan’s conviction of theft
by unlawful taking, a Class IV felony.
   The information charged Duncan with one count of
“Theft By Unlawful Taking More Than $1,500,” “Class III
Felony,” pursuant to § 28-518 and Neb. Rev. Stat. § 28-511
(Reissue 2008).
   Section 28-511(1) states that “[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.” The
grading of theft crimes is governed by § 28-518, which pro-
vides, in relevant part:

 2	
      State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).
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                             STATE v. DUNCAN
                             Cite as 294 Neb. 162

         (1) Theft constitutes a Class III felony when the value
      of the thing involved is over one thousand five hun-
      dred dollars.
         (2) Theft constitutes a Class IV felony when the value
      of the thing involved is five hundred dollars or more, but
      not over one thousand five hundred dollars.
         ....
         (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 clas-
      sification 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.
   [3,4] It is a fundamental principle of statutory construction
that courts strictly construe penal statutes, and it is not for the
courts to supply missing words or sentences to make clear that
which is indefinite, or to supply that which is not there.3 In
construing a statute, a court must look to the statutory objec-
tive to be accomplished, the evils and mischiefs sought to be
remedied, and the purpose to be served, and then must place
on the statute a reasonable or liberal construction that best
achieves the statute’s purpose, rather than a construction that
defeats the statutory purpose.4
   [5] Whether amounts are taken pursuant to one scheme or
course of conduct is relevant not to whether the defendant is
guilty of the underlying theft offense, but solely to whether
the values of multiple stolen items can be aggregated for
purposes of grading the offense.5 This is supported by the
statutory language, as well as our case law. Section 28-518

 3	
      State v. Thacker, 286 Neb. 16, 834 N.W.2d 597 (2013).
 4	
      State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012).
 5	
      See § 28-518(7) and State v. Gartner, 263 Neb. 153, 638 N.W.2d 849
      (2002).
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                        294 Nebraska R eports
                              STATE v. DUNCAN
                              Cite as 294 Neb. 162

grades the degree of theft according the value of the property
stolen. Under § 28-518(7), an act of theft involving multiple
items of property constitutes one offense if the items were
taken “pursuant to one scheme or course of conduct.”6 With
such an offense, § 28-518(7) provides that the value of the
individual stolen items may be considered collectively for
the explicit purpose of “determining the classification of the
offense.”7 If the Legislature had intended to make a finding of
“one scheme or course of conduct”8 an essential element of
the crime of theft, we believe it would have done so explicitly,
just as it explicitly made “value” an essential element of the
crime of theft in the very next subsection.9
   [6] We have previously explained that although § 28-518(8)
requires some value to be proved as an element of a theft
offense, the statutory language does not require proof of a par-
ticular threshold value.10 Accordingly, when the jury here deter-
mined the values of the check and the Tahoe, the value element
set forth in § 28-518(8) was satisfied. Although those values
could not be aggregated pursuant to § 28-518(7), Duncan is
no less guilty of theft. Instead, he is guilty of a lesser degree
of theft.
   We conclude that the district court was correct in determin-
ing, based on the jury verdict, that Duncan was guilty of a
Class IV felony theft offense. We note that this disposition is
not unlike the disposition of the charges in State v. Garza,11
which was upheld after the 1992 amendments to § 28-518.12
In Garza, the defendant was convicted of theft by shoplifting

 6	
      See State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).
 7	
      See State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).
 8	
      See § 28-518(7).
 9	
      See § 28-518(8).
10	
      See § 28-518 and State v. Gartner, supra note 5.
11	
      State v. Garza, supra note 7.
12	
      State v. Gartner, supra note 5.
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                         294 Nebraska R eports
                                   STATE v. DUNCAN
                                   Cite as 294 Neb. 162

as a Class IV felony. This court found that there was insuf-
ficient evidence of the value of the stolen property to justify
a finding of theft punishable as a felony. We concluded, how-
ever, that the evidence showed beyond a reasonable doubt that
the property stolen had some intrinsic value, notwithstanding
the absence of evidence establishing a specific value. We thus
set aside the felony sentence and remanded the matter to the
district court with direction to impose an appropriate sentence
for theft as a Class II misdemeanor. Here, the judge similarly
imposed an appropriate sentence according to the jury’s ver-
dict and the value of the items stolen. The value of the check
($1,250) and the value of the Tahoe ($750) both fell within
the Class IV felony range ($500 to $1,500). Had the values of
these items been aggregated, Duncan would have been guilty
of a Class III felony (more than $1,500). However, the judge
properly found that Duncan was guilty of a Class IV felony
and sentenced him accordingly.
   Duncan argues that the jury’s finding that there was no
“one scheme or course of conduct” under § 28-518(7) requires
a finding of not guilty. He argues that “if the state seeks to
implicate the penalty provisions of § 28-518(7), [the subsec-
tion allowing aggregation,] it must assume the risk if it fails
to prove the ‘one scheme’ element.”13 Otherwise, Duncan says,
“the net result is the defendant faces trial on two unrelated
offenses that could not otherwise have been properly joined for
trial” under Neb. Rev. Stat. § 29-2002 (Reissue 2008).14
   Section 29-2002 provides, in relevant part:
         (1) Two or more offenses may be charged in the same
      indictment, information, or complaint in a separate count
      for each offense if the offenses charged, whether felonies
      or misdemeanors, or both, are of the same or similar
      character or are based on the same act or transaction or

13	
      Brief for appellant at 17.
14	
      Id.
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                               STATE v. DUNCAN
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      on two or more acts or transactions connected together
      or constituting parts of a common scheme or plan.
         ....
         (3) If it appears that a defendant or the state would
      be prejudiced by a joinder of offenses in an indictment,
      information, or complaint or by such joinder of offenses
      in separate indictments, informations, or complaints for
      trial together, the court may order an election for separate
      trials of counts, indictments, informations, or complaints,
      grant a severance of defendants, or provide whatever
      other relief justice requires.
We note that § 29-2002 does not apply here because Duncan
was not charged with two or more offenses within the same
information; instead, Duncan was charged with committing
one offense, a theft involving multiple items of property.
   Duncan argues that the same potential for prejudice exists
whether a defendant is charged with multiple offenses within
the same information pursuant to § 29-2002 or charged
with one theft offense involving multiple items pursuant to
§ 28-518(7). Duncan’s concern appears to be that by aggregat-
ing the thefts of multiple items into one offense pursuant to
§ 28-518(7), rather than charging the thefts as separate counts
within the same information pursuant to § 29-2002, the State
can effectively avoid § 29-2002(3), which allows a court to
order separate trials for separate counts if it appears that the
defendant or the State would be prejudiced by the joinder.
Duncan argues that although a defendant charged with mul-
tiple offenses could have filed a motion to sever, there is noth-
ing he could have done to challenge the State’s choice to plead
the theft of the two items as a single offense.
   Indeed, we have said that the right to sever is statutory,15
and nothing in § 28-518(7) allows a court to sever a single
offense into multiple counts. However, we are not convinced

15	
      State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).
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                        STATE v. DUNCAN
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that the absence of such a provision within § 28-518 shows
any intent by the Legislature that a finding of “one scheme”
under § 28-518(7) is to be interpreted as an essential element
of the offense.
   Duncan’s argument about prejudice seems to contemplate
a situation where the State has alleged, without a good faith
basis, that acts of theft were committed pursuant to “one
scheme or course of conduct” as contemplated by § 28-518(7).
However, we note that if the jury determines that the acts of
theft were not pursuant to one scheme or course of conduct,
the values of the stolen items cannot be aggregated and the
State is limited to one conviction of a lesser degree than it
charged. In such a case, the State will have forgone obtaining
multiple convictions for the separate acts of theft.
   Here, the State took a risk when it alleged that Duncan was
guilty of one offense involving two items, rather than two
offenses. Had the State charged Duncan with two offenses, the
jury verdict suggests that Duncan would have been found guilty
of two Class IV felonies. But because the State chose to charge
him with one offense, he was convicted of only one.
   [7] Because we conclude that a finding of “one scheme or
course of conduct” is not an essential element of the offense,
even when the State is attempting to aggregate amounts pur-
suant to § 28-518(7), a number of Duncan’s assignments of
error are without merit. The trial court did not err in failing
to instruct the jury that “one scheme or course of conduct”
is an element of the offense under § 28-518(7), because it is
not. The trial court also did not err in finding Duncan guilty
of the Class IV felony offense or in refusing to grant Duncan’s
request for a new trial, notwithstanding the jury’s finding that
the takings of the Tahoe and the check were not pursuant to
one scheme or course of conduct.
   The only remaining assignment of error is Duncan’s assign-
ment that the evidence was insufficient to support the jury’s
verdict on the theft of the Tahoe. However, Duncan spe-
cifically stated in his brief that he “does not challenge the
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sufficiency of the evidence to support the jury verdict regard-
ing [his] conversion of the proceeds from the sale of the com-
bine trailer.”16
   We conclude that there was sufficient evidence to support
Duncan’s conviction, because even without the evidence relat-
ing to the Tahoe, any rational trier of fact could have found
the essential elements of the crime of theft beyond a reason-
able doubt. Duncan does not challenge the jury’s finding
that he was guilty of theft by unlawful taking of the check.
Nor does he challenge the jury’s valuation of the check at
$1,250. These findings support Duncan’s conviction of theft
by unlawful taking, more than $500 but less than $1,500, a
Class IV felony. Therefore, Duncan’s last assignment of error
is without merit.
                        CONCLUSION
   We conclude that a finding of “one scheme or course of con-
duct” is not an essential element of the crime of theft, regard-
less of whether the State is attempting to aggregate amounts
pursuant to § 28-518(7). We also conclude that there was suf-
ficient evidence to support Duncan’s conviction of the Class IV
felony theft offense. We therefore affirm.
                                                    A ffirmed.

16	
      Brief for appellant at 22.
