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06/07/2016 09:05 AM CDT




                                                         - 67 -
                               Decisions of the Nebraska Court of A ppeals
                                     24 Nebraska A ppellate R eports
                                                 STATE v. DUBRAY
                                                Cite as 24 Neb. App. 67




                                        State of Nebraska, appellee, v.
                                        Dominick L. Dubray, appellant.
                                                    ___ N.W.2d ___

                                          Filed June 7, 2016.     No. A-15-627.

                1.	 Search and Seizure: Appeal and Error. The denial of a motion for
                    return of seized property is reviewed for an abuse of discretion.
                2.	 Search and Seizure: Property: Presumptions: Proof. When crimi-
                    nal proceedings have terminated, the person from whom property
                    was seized is presumed to have a right to its return, and the burden
                    is on the government to show that it has a legitimate reason to retain
                    the property.
                3.	 Property: Presumptions: Proof. A presumption of ownership is cre-
                    ated by exclusive possession of personal property, and evidence must
                    be offered to overcome that presumption.
                4.	 Search and Seizure: Property: Proof. One in possession of prop-
                    erty has the right to keep it against all but those with better title, and
                    the mere fact of seizure does not require that entitlement be estab-
                    lished anew.
                5.	 ____: ____: ____. Seizure of property from someone is prima facie
                    evidence of that person’s right to possession of the property, and
                    unless another party presents evidence of superior title, the person from
                    whom the property was taken need not present additional evidence
                    of ownership.
                6.	 Appeal and Error. An appellate court is not obligated to engage in an
                    analysis that is not necessary to adjudicate the case and controversy
                    before it.

                  Appeal from the District Court for Box Butte County:
               Travis P. O’Gorman, Judge. Reversed and remanded for fur-
               ther proceedings.
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                        STATE v. DUBRAY
                       Cite as 24 Neb. App. 67

  Dominick L. Dubray, pro se.

   Douglas J. Peterson, Attorney General, and George R. Love
for appellee.

  Moore, Chief Judge, and Inbody and R iedmann, Judges.

   Moore, Chief Judge.
                       INTRODUCTION
   Dominick L. Dubray appeals from an order of the district
court for Box Butte County partially denying his motion for
return of seized property. For the reasons set forth below, we
reverse the order of the district court and remand the cause for
further proceedings.

                        BACKGROUND
                       Prior Proceedings
   The circumstances of the present appeal arise from
Dubray’s February 2012 arrest and convictions for the mur-
ders of Catalina Chavez and Mike Loutzenhiser in Alliance,
Nebraska. See State v. Dubray, 289 Neb. 208, 854 N.W.2d
584 (2014). Dubray’s motion for rehearing was denied
January 29, 2015. Dubray and Chavez were in a relation-
ship and had lived together for 2 to 3 years in Alliance with
their child and Chavez’ older child from a previous relation-
ship. Chavez’ 16-year-old half brother had also been living
at the house since June 2011. Loutzenhiser, who lived in
Scottsbluff, Nebraska, was Chavez’ stepfather and the father
of Chavez’ 16-year-old half brother. On Friday, February 10,
2012, Loutzenhiser arrived in Alliance for a visit. Dubray
murdered Chavez and Loutzenhiser the following morning,
February 11, at the residence. During the subsequent murder
investigation, police officers collected a number of items from
the residence. Dubray’s motion for return of seized property,
at issue in the current appeal, seeks the return of several of
these items.
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                       STATE v. DUBRAY
                      Cite as 24 Neb. App. 67

                      Current Proceedings
   On May 11, 2015, Dubray filed a motion for return of
seized property. The motion requested the return of the fol-
lowing items collected during the murder investigation: a
“[b]lack and silver colored i-pod”; a “black i-pod with a rub-
berized cover containing 3 [M]onster [energy drink logos]”;
a “black purse with pink playboy bunny logo” containing
$219.98 in cash; a “black carhartt coat size 2xL”; a pair of
gray size 13 athletic shoes; a wooden jewelry box contain-
ing “3 necklaces, 2 nec[k]lace pendants, 1 clasp, 28 rings, 3
watches, 2 bracelets, 2 sets of earrings and 1 penny”; and a
jewelry holder “shaped like a cone containing [a] headband,
a set of gold colored earrings, a beaded necklace, a bracelet,
and 1 beaded earring.”
   Dubray alleged that the property is being held in violation
of Neb. Rev. Stat. § 29-818 (Cum. Supp. 2014) and that this
property should be returned to him, as the rightful owner. In
his accompanying affidavit in support of his motion, Dubray
stated that none of the requested items were introduced or oth-
erwise used as evidence at trial. Additionally, Dubray alleged
that the county has failed to provide him with any notice of
intent to initiate forfeiture proceedings regarding the seized
property, in violation of due process.
   On June 24, 2015, a hearing on the motion was held before
the district court. Dubray appeared pro se via telephone. No
evidence was presented at the hearing by either party; rather,
only the unsworn statements and arguments of Dubray and
counsel for the State were given. The State conceded that
the “Carhartt coat [and] size 13 athletic shoes” belonged to
Dubray, stating that the evidence at trial supported his owner-
ship of these items. However, the State objected to the balance
of the motion for the reason that Dubray had not shown that
he is the actual owner of the property. Counsel for the State
expressed a belief that the other items listed in the motion
belonged to Chavez, but provided no supporting evidence.
Responding to the alleged due process violation, the State
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                        STATE v. DUBRAY
                       Cite as 24 Neb. App. 67

argued that it had insufficient time since the issuance of the
mandate on the direct appeal to ascertain ownership of the
property. Dubray responded, claiming that more than 20 of the
rings contained in the jewelry box are men’s rings and stating
that any returned property would go to the child of Dubray
and Chavez.
   Later that day, the court entered an order on Dubray’s
motion. The court granted the motion with respect to the coat
and shoes and ordered these items be returned to Dubray
immediately. The court denied the motion with regard to the
remaining items for “failure to prove ownership.”
   Dubray subsequently perfected this appeal.

                ASSIGNMENTS OF ERROR
   Dubray assigns, restated, that the district court erred in
partially denying his motion for return of seized property.
Dubray also alleges that the failure to return the property
violated his constitutional due process and property owner-
ship rights.

                  STANDARD OF REVIEW
   [1] The denial of a motion for return of seized property is
reviewed for an abuse of discretion. State v. Agee, 274 Neb.
445, 741 N.W.2d 161 (2007).

                          ANALYSIS
                Denial of Motion for R eturn
                      of Seized P roperty
   Section 29-818 establishes that “property seized under a
search warrant or validly seized without a warrant shall be
safely kept by the officer seizing the same . . . and shall be so
kept so long as necessary for the purpose of being produced as
evidence in any trial.” Neb. Rev. Stat. § 29-820 (Cum. Supp.
2014) specifies that, unless otherwise directed by this statute
or law of Nebraska, when certain property “seized or held is
no longer required as evidence, it shall be disposed of by the
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                        STATE v. DUBRAY
                       Cite as 24 Neb. App. 67

law enforcement agency on such showing as the law enforce-
ment agency may deem adequate,” and that all other property
“shall be disposed of in such manner as the court in its sound
discretion shall direct.”
   The controlling case in Nebraska relied upon by both parties
is State v. Agee, supra. In that case, Timothy E. Agee was sus-
pected of being involved in an ongoing scheme to use checks
and fraudulent driver’s licenses to make purchases at local
department stores. A search warrant was executed at Agee’s
residence and various items were seized. Ultimately, Agee’s
theft by deception charge was dismissed by the State although
Agee was convicted of unlawful possession with intent to
deliver marijuana as a result of evidence discovered during the
execution of the search warrant.
   Agee filed a motion for return of property seized from his
home during the execution of the search warrant; specifi-
cally, “3 watches, 1 diamond bracelet, 2 cellular telephones,
10 assorted articles of clothing, an unspecified number of
photographs, and Agee’s wallet and Social Security card.” Id.
at 447, 741 N.W.2d at 164. Agee alleged that the items were
not illegal per se and that they had value to him. At the tele-
phone hearing at which Agee appeared pro se, counsel for the
State represented that some of the items were stolen property,
that some of the items had already been returned to a depart-
ment store, and that it had no record of other items. Agee
indicated he had receipts for some of the items. No evidence
was adduced at the hearing by either party. Nevertheless,
in reaching its decision, the court noted the statements by
counsel concerning items that were stolen, returned, and
not in existence. The court overruled Agee’s motion except
as to his Social Security card and photographs, which were
ordered returned.
   [2-5] On appeal, the Nebraska Supreme Court recognized
that a motion for the return of property is properly denied
only if the claimant is not entitled to lawful possession of the
property, the property is contraband or subject to forfeiture,
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                        STATE v. DUBRAY
                       Cite as 24 Neb. App. 67

or the government has some other continuing interest in the
property. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
In response to the State’s primary contention on appeal that
Agree presented no evidence supporting his claim to the
property, the court found that this argument “misapprehends
the burden of proof in such a proceeding.” Id. at 450, 741
N.W.2d at 166. The court went on to recognize the follow-
ing propositions:
      When criminal proceedings have terminated, the person
      from whom property was seized is presumed to have a
      right to its return, and the burden is on the government to
      show that it has a legitimate reason to retain the property.
      It is long established that a presumption of ownership
      is created by exclusive possession of personal property
      and that evidence must be offered to overcome that pre-
      sumption. One in possession of property has the right
      to keep it against all but those with better title, and the
      “mere fact of seizure” does not require that “entitlement
      be established anew.” Seizure of property from someone
      is prima facie evidence of that person’s right to posses-
      sion of the property, and unless another party presents
      evidence of superior title, the person from whom the
      property was taken need not present additional evidence
      of ownership.
Id. at 450-51, 741 N.W.2d at 166-67.
   The Supreme Court in Agee concluded that the district court
erred in relying on the representations made by counsel that
the property was stolen instead of demanding evidence rel-
evant to the State’s allegations. The Supreme Court therefore
found that the district court abused its discretion by substan-
tially denying Agee’s motion without requiring the State to
submit evidence supporting its continued retention or disposi-
tion of the property. State v. Agee, supra.
   Similar to the State’s arguments in Agee, the State in the
instant case argues that Dubray failed to present evidence
supporting his claim to the property. The State relies upon
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                        STATE v. DUBRAY
                       Cite as 24 Neb. App. 67

the language quoted above from Agee that the presumption
of ownership is created by the exclusive possession of the
claimed property. The State asserts that because other people
resided with Dubray, he was unable to demonstrate that the
property seized from his residence was in his exclusive posses-
sion, and that therefore, he was not entitled to the presumption
of ownership and the burden to show otherwise was not placed
on the State. Additionally, the State emphasizes that the nature
of the property, particularly the purse, jewelry box, jewelry
holder, and corresponding contents, opposes Dubray’s claim of
ownership. Lastly, the State asserts that as a matter of policy,
Dubray should not receive the property of his murder victims.
We are not persuaded by the State’s arguments.
   In Agee’s underlying criminal case, in response to his argu-
ment that the evidence was insufficient to show that he lived
at the residence where the contraband was found, we noted
that other people besides Agee resided at the residence and
perhaps even occupied the same bedroom as Agee. See State
v. Agee, No. A-05-1153, 2006 WL 2129117 (Neb. App. Aug.
1, 2006) (not designated for permanent publication). Thus,
Agee was arguably not in exclusive possession of the items
seized from the residence. Although this argument was appar-
ently not presented to the Supreme Court in Agee’s appeal
of the denial of his motion for return of property, the court
nevertheless applied the presumption of ownership in favor
of Agee.
   As in State v. Agee, supra, we conclude that once the
criminal proceedings against Dubray were concluded, Dubray
was presumptively entitled to the return of property seized
from him. The State did not overcome that presumption by
presenting evidence of a cognizable claim or right of posses-
sion adverse to Dubray’s. The district court erred in substan-
tially denying Dubray’s motion without requiring the State
to submit such evidence. The district court’s order denying
Dubray’s motion is reversed, and the cause is remanded for
further proceedings.
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                        STATE v. DUBRAY
                       Cite as 24 Neb. App. 67

   [6] Because we are reversing and remanding for further pro-
ceedings, we need not address Dubray’s due process argument.
See Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578
(2015) (appellate court is not obligated to engage in analy-
sis that is not necessary to adjudicate case and controversy
before it).
                         CONCLUSION
   Dubray was presumptively entitled to the return of property
seized from him, and the State did not present evidence jus-
tifying its refusal to do so. The district court’s order denying
Dubray’s motion is reversed, and the cause is remanded for
further proceedings.
	R eversed and remanded for
	                                further proceedings.
