State v. Payne

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
STATE v. PAYNE
Cite as 34 Neb. App. 265
State of Nebraska, appellee, v.
Robert J. Payne, appellant.
___ N.W.3d ___
Filed May 12, 2026. 	No. A-25-630.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
2. ____: ____: ____. When deciding appeals from criminal convictions in
county court, an appellate court applies the same standards of review
that it applies to decide appeals from criminal convictions in dis-
trict court.
3. Jury Instructions. Whether jury instructions given by a trial court are
correct is a question of law.
4. Judgments: Appeal and Error. On a question of law, an appellate court
is obligated to reach a conclusion independent of the determination
reached by the court below.
5. 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 ele-
ments of the crime beyond a reasonable doubt.
6. Theft: Value of Goods: Appeal and Error. When a fact finder deter-
mines the value of property in a theft case, an appellate court will not
set aside the finding unless it is clearly erroneous.
7. Jury Instructions. In giving instructions to the jury, it is proper for the
court to describe the offense in the language of the statute.
8. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:38 AM CDT

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STATE v. PAYNE
Cite as 34 Neb. App. 265
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
9. Jury Instructions: Appeal and Error. All the jury instructions must
be read together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error necessitat-
ing reversal.
10. Jury Instructions. In instructing a jury, the trial court is not required to
define language commonly used and generally understood.
11. 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.
12. 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.
13. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: 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. The relevant question 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.
14. Criminal Law: Evidence: Juries. In a criminal case, the evidence upon
which a jury may rely in making its findings may be direct, circumstan-
tial, or a combination thereof.
15. Circumstantial Evidence. Circumstantial evidence is not inherently
less probative than direct evidence.
16. ____. In finding a defendant guilty beyond a reasonable doubt, a fact
finder may rely upon circumstantial evidence and the inferences that
may be drawn therefrom.
17. Theft: Value of Goods: Proof. Although Neb. Rev. Stat. § 28-518(8)
(Cum. Supp. 2024) 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.
18. Theft: Value of Goods: Evidence: Proof. An item’s market value at
the time of the theft may be established by either direct or circumstan-
tial evidence, and it presents a question of fact to be resolved by the
fact finder.

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Nebraska Court of Appeals Advance Sheets
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STATE v. PAYNE
Cite as 34 Neb. App. 265
19. Theft: Value of Goods: Proof. 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.
20. Theft: Value of Goods: Evidence. Evidence of purchase price, together
with evidence concerning the age, condition, and utility of the item, may
afford a basis for determining market value.
21. Theft: Value of Goods: Appeal and Error. When a fact finder deter-
mines the value of property in a theft case, an appellate court will not
set aside the finding unless it is clearly erroneous.
22. Theft: Value of Goods: Circumstantial Evidence. The market value of
stolen property at the time of the crime may be established circumstan-
tially, as well as by direct evidence.
23. Theft: Value of Goods: Evidence: Juries. The ultimate resolution of
the value of the property at the time and place of the taking is clearly a
fact question for the decision of the jury from the evidence adduced.
24. Value of Goods: Expert Witnesses. Generally, while the preferred
method of establishing value may be by expert testimony, the purchase
price paid by the owner is admissible as a factor for the jury to consider
in determining market value when it is not too remote in time and bears
a reasonable relation to market value.
25. Theft: Value of Goods: Evidence. Evidence of cost together with
evidence concerning age, condition, and utility of the stolen item may
afford a basis for determining value.
26. Value of Goods: Proof. Evidence of the purchase price of the goods is
competent evidence of fair market value only where the goods are so
new, and thus, have depreciated in value so insubstantially as to allow
a reasonable inference that the purchase price is comparable to the fair
market value.
Appeal from the District Court for Lancaster County, Lori
A. Maret, Judge, on appeal thereto from the County Court
for Lancaster County, Matthew L. Acton, Judge. Judgment
of District Court affirmed in part, and in part vacated and
remanded for resentencing.
F. Matthew Aerni, of Liberty Law Group, L.L.C., for
appellant.

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
STATE v. PAYNE
Cite as 34 Neb. App. 265
Michael T. Hilgers, Attorney General, and Teryn Blessin for
appellee.
Riedmann, Chief Judge, and Bishop and Welch, Judges.
Welch, Judge.
INTRODUCTION
Robert J. Payne appeals from the Lancaster County District
Court’s order affirming Payne’s county court jury conviction
for theft by unlawful taking in an amount over $500 but less
than $1,500 and the sentence imposed thereon. Payne argues
on appeal that the trial court erred in overruling his proposed
jury instruction and in finding that the evidence was sufficient
to support the jury’s determination that the value of the stolen
property was more than $500. For the reasons stated herein, we
affirm in part, and in part vacate and remand for resentencing.
STATEMENT OF FACTS
Background
On July 24, 2024, shortly after 5 a.m., Lacey and Christopher
Schneider reported to law enforcement that Lacey’s red Trek
bicycle had been stolen off their front porch in Lincoln,
Nebraska. Lacey kept her bicycle near the end of their home’s
front porch, linked with a cable to three children’s bicycles.
Lacey testified that the cable had a locking mechanism to pre-
vent theft and that the bicycles were covered with a tarp.
Lacey provided security camera footage to law enforce-
ment that showed an individual coming up to the Schneiders’
covered front porch two times. During the first incident, on
July 23, 2024, at about 3 p.m., the individual came up to their
porch. Lacey referred to this incident as “scouting.” During the
second incident, about 11 hours later, the individual walked
onto the Schneiders’ front porch with a boltcutter. Outside the
view of the camera, the individual removed the tarp cover-
ing the bicycles, used the boltcutter to cut the cable securing
the bicycles, and stole Lacey’s bicycle. Lacey notified law

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STATE v. PAYNE
Cite as 34 Neb. App. 265
enforcement a little after 5 a.m. after checking the activity on
her security system notifications.
About a month later, after an image from the Schneiders’
surveillance video was posted on Lincoln’s Crime Stoppers
website, law enforcement received information identifying
Payne as the suspect. Payne was arrested and charged in
Lancaster County Court with theft by unlawful taking in an
amount over $500 but less than $1,500, a Class I misdemeanor.
See Neb. Rev. Stat. § 28-511 (Reissue 2016).
Jury Trial
A jury trial was held in January 2025 with evidence received
as previously set forth. The Schneiders’ surveillance footage
was also offered and received into evidence.
Regarding the value of the bicycle, the following colloquy
occurred between the prosecutor and Lacey:
Q. Do you recall . . . [w]ho purchased the bike?
A. My husband.
Q. Do you recall about how much it cost?
A. I think the bike, itself, was around $800, and with
the attachments, maybe $900.
Q. Altogether?
A. Uh-huh.
Q. The attachments being the water bottle cage —
A. The kickstand, the mount for the infant seat and the
infant seat, itself.
Q. In addition to the water cage?
A. Correct.
Lacey testified that she and Christopher started locking up their
bicycles and covering their bicycles with tarps for about 1 year
due to the theft of another bicycle.
The following colloquy regarding the value of the stolen
bicycle occurred between the prosecutor and Christopher:
Q. 	Now, 	your 	wife’s 	bicycle, 	who 	purchased 	the
bicycle?
A. I did.

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STATE v. PAYNE
Cite as 34 Neb. App. 265
Q. Do you recall when?
A. Spring of . . . ’21.
Q. Spring of 2021?
A. Of ’21, yes.
Q. Where did you purchase the bicycle?
A. Trek of Lincoln.
Q. I’m sorry, what was it?
A. It’s now called Trek of Lincoln.
Q. Trek of Lincoln. Was it called something else in
the —
A. It was Bicycle Rack at that point.
Q. The Bicycle Rack?
A. Yeah.
Q. And that’s here in Lincoln?
A. Yes.
Q. Do you recall how much you spent purchasing the
bicycle?
A. Everything together was about a thousand.
Q. When you say, “everything together,” what do you
mean?
A. It was the bike, a few small accessories and then a
large children’s seat to go on the back.
Q. Do you recall what the accessories were?
A. It would be like a helmet and kickstand because
none of that stuff comes with it.
Q. Do you remember if there was anything else?
A. A water bottle holder. I think that’s about it.
Q. And so when you value all of those items together,
you’re approximating it at about a thousand?
A. Yeah.
Q. Do you recall how much each item cost?
A. Off the top of my head, I don’t.
Q. Would reviewing something refresh your recollection
of the value of each item?
A. Yeah. We have the receipt so I could view that.
[Counsel:] May I approach?

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STATE v. PAYNE
Cite as 34 Neb. App. 265
Q. (By [counsel]) I’m putting what’s been marked as
Exhibit 7 — in front of you. Do you recognize Exhibit 7?
A. Yes.
Q. What is Exhibit 7?
A. It’s the purchase order and sales receipt for the bike
and accessories.
Q. And how do you recognize it?
A. It’s got my name on it. I recognize it because it’s
mine.
Q. Was this given to you after you made your purchase?
A. Yes.
Q. Of the bicycle and all the items and accessories?
A. Yes.
Q. Is . . . this receipt a fair and accurate depiction of
the prices of the items and accessories that you purchased
as related to the bike and its accessories?
A. Yes.
[Exhibit 7 was offered and received into evidence.]
Q. . . . And in Exhibit [7], what are we looking at in
terms of this receipt from the bike rack for this purchase
of the bicycle and other accessories?
. . . .
A. What am I looking at?
Q. Yeah, so can you read off for us the different items
in Exhibit 7?
A. Itemized, is the bike. It’s a Verve 2, Rage Red. It
was $699.99. Then we have a helmet; that was $40.49.
A water bottle cage, $17.99. [An] integrated rear mount
for the kid’s bike, that was $22, and then the actual kid’s,
the . . . back rack small MIK black. It’s a child seat for
the back, $119.99.
Q. And when the bike was taken July 24th, or between
July 23rd and July 24th, what items or accessories were
with the bike?
A. Everything on that list was on that bike. Or sorry,
minus the helmet. Everything minus the helmet.

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STATE v. PAYNE
Cite as 34 Neb. App. 265
Q. So everything on that list, except the helmet, was
taken with the bike?
A. Correct.
Q. Were those accessories attached to the bike?
A. Yes.
Q. But [the] helmet was not?
A. No.
Following the close of the State’s case in chief, Payne
moved for a directed verdict on the basis that the State failed
to meet its prima facie case that the bicycle’s value was “$500
or more.” The county court overruled this motion.
Jury Instruction Conference
During the jury instruction conference, Payne requested
that the jury instructions include a definition of the word
“value” and provided a proposed definition as stated in State
v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002). The pro-
posed jury instruction stated: “‘Value’ means the unlawfully
taken property’s market value as of the date of the commis-
sion of the offense and may account for the unlawfully taken
property’s age and condition as of the date of the commission
of the offense.”
The State objected to Payne’s proposed jury instruction,
arguing that the general definition of “value” is a straight-
forward term and that any layperson would understand the
meaning of the word. The court subsequently provided an
amended jury instruction No. 4; however, Payne’s counsel
again objected, stating: “Your Honor, thank you for adding the
language you did. We would still object and ask for the entire
language from our proposed instruction regarding the defini-
tion or value.” The court declined, stating:
It will be given as I have written it. “Value” means the
market value at the time and place where the property was
criminally appropriated. That’s the Nebraska Supreme
Court speaking in 2020 on Dixon, and that is a direct
quote from their opinion. And while the opinion goes on

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STATE v. PAYNE
Cite as 34 Neb. App. 265
to talk about how that can be proved, the law on what the
term “value” is, is that one sentence.
The court subsequently instructed the jury that “‘[v]alue’ means
the market value at the time and place where the property was
criminally appropriated.”
Verdict and Sentence
The jury convicted Payne of theft, finding that the value
of the property involved was $600. A sentencing hearing was
held on January 24, 2025. The county court sentenced Payne
to 365 days in the Lancaster County Correctional Facility
“until fines and costs are paid” and ordered that the sen-
tence run consecutively to any other sentence and that credit
for days served “be determined by corrections.” Payne was
ordered to pay court costs, sheriff fees, and other fees in the
total amount of $69.70, with “court costs to be sat out concur-
rent with jail sentence.”
Appeal to District Court
Payne timely appealed to the Lancaster County District
Court. Payne asserted in his statement of errors that the trial
court erred in (1) overruling his motion for directed verdict,
(2) overruling his proposed verdict form, and (3) overruling his
proposed jury instruction regarding the definition of “value,”
and that (4) the evidence was insufficient to support the jury’s
determination that the stolen bike had a value of more than
$500 and less than $1,000. The district court found the errors
claimed by Payne to be without merit and affirmed Payne’s
conviction and sentence.
Payne has now timely appealed from the district court’s
order affirming Payne’s county court conviction and sentence.
ASSIGNMENTS OF ERROR
Payne assigns that (1) the trial court erred in overruling his
proposed jury instruction regarding the definition of “value”
and (2) the evidence was insufficient to support the jury’s

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STATE v. PAYNE
Cite as 34 Neb. App. 265
determination that the stolen property had a value of more
than $500.
STANDARD OF REVIEW
[1,2] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error or
abuse of discretion. State v. Kalita, 317 Neb. 906, 12 N.W.3d
499 (2024). When deciding appeals from criminal convictions
in county court, an appellate court applies the same standards
of review that it applies to decide appeals from criminal con-
victions in district court. Id.
[3,4] Whether jury instructions given by a trial court are cor-
rect is a question of law. State v. Matteson, 313 Neb. 435, 985
N.W.2d 1 (2023). On a question of law, an appellate court is
obligated to reach a conclusion independent of the determina-
tion reached by the court below. Id.
[5] 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. Id.
[6] 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. State v. Fernandez, 313 Neb.
745, 986 N.W.2d 53 (2023).
ANALYSIS
Proposed Jury Instruction
Payne first assigns as error that the trial court erred in over-
ruling his proposed jury instruction regarding the definition
of “value.” Payne contends that overruling his proposed jury
instruction on the definition of “value” “allowed for entry of
judgment of a class I misdemeanor, as opposed to a class 2
misdemeanor, based on speculation.” Brief for appellant at 9.

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STATE v. PAYNE
Cite as 34 Neb. App. 265
[7-10] In State v. Duncan, 293 Neb. 359, 372-73, 878
N.W.2d 363, 375 (2016), the Nebraska Supreme Court stated:
In giving instructions to the jury, it is proper for
the court to describe the offense in the language of
the statute. To establish reversible error from a court’s
refusal to give a requested instruction, an appellant has
the burden to show that (1) the tendered instruction is a
correct statement of the law, (2) the tendered instruction
is warranted by the evidence, and (3) the appellant was
prejudiced by the court’s refusal to give the tendered
instruction. All the jury instructions must be read together,
and if, taken as a whole, they correctly state the law, are
not misleading, and adequately cover the issues supported
by the pleadings and the evidence, there is no prejudicial
error necessitating reversal.
Jurors are accepted because they are men and women
of common sense and have a common understanding of
words ordinarily used in our language. In instructing a
jury, the trial court is not required to define language
commonly used and generally understood.
Here, Payne’s proposed instruction stated: “‘Value’ means
the unlawfully taken property’s market value as of the date
of the commission of the offense and may account for the
unlawfully taken property’s age and condition as of the date
of the commission of the offense.” The jury instruction given
by the court stated that “‘[v]alue’ means the market value
at the time and place where the property was criminally
appropriated.”
[11,12] Although the Nebraska Jury Instructions do not
specifically define “value,” the comment to NJI2d Crim. 3.6
provides that “‘[m]arket value’ at the time and place where
the property was criminally appropriated determines the value
of property in a theft charge.” Further, in State v. Dixon, 306
Neb. 853, 869-70, 947 N.W.2d 563, 576 (2020), the Nebraska
Supreme Court stated:

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STATE v. PAYNE
Cite as 34 Neb. App. 265
We have long held that in a theft case, the value to be
proved is market value at the time and place where the
property was criminally appropriated. 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.”
The court instructed the jury using the language set forth
by the Nebraska Supreme Court in Dixon, supra. Here,
because the court’s jury instructions, as a whole, correctly
stated the law, were not misleading, and adequately covered
the issues supported by the evidence, Payne cannot show he
was prejudiced by the court’s failure to use Payne’s proposed
instruction on the definition of “value.” This assignment of
error fails.
Sufficiency of Evidence as to Value
Payne assigns and argues that the evidence was insufficient
to support the jury’s determination that the bicycle had a value
of more than $500. Payne was convicted of theft by unlawful
taking in an amount more than $500 but less than $1,500, a
Class I misdemeanor. See § 28-511. He argues that there was
no evidence of the market value of the bicycle and that the
only evidence that was offered was the purchase price paid
approximately 3 years prior to the alleged theft. Payne asserts
that the evidence established only that the bicycle had an
intrinsic value which supported only the grading elements of a
Class II misdemeanor.
[13] In reviewing a criminal conviction for sufficiency of
the evidence, whether the evidence is direct, circumstantial,
or a combination thereof, the standard is the same: An appel-
late 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. State v. Miller, 312 Neb.
17, 978 N.W.2d 19 (2022). The relevant question is whether,
after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found

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STATE v. PAYNE
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the essential elements of the crime beyond a reasonable
doubt. Id.
[14-16] In a criminal case, the evidence upon which a jury
may rely in making its findings may be direct, circumstantial,
or a combination thereof. State v. Escamilla, 291 Neb. 181, 864
N.W.2d 376 (2015). Circumstantial evidence is not inherently
less probative than direct evidence. Id. In finding a defendant
guilty beyond a reasonable doubt, a fact finder may rely upon
circumstantial evidence and the inferences that may be drawn
therefrom. Id.
Section 28-511 provides, in relevant part, 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.” And “[u]nder § 28-518, the greater the value of
the property involved in a theft, the more severe the punish-
ment which may be imposed on conviction for the theft.” State
v. Fernandez, 313 Neb. 745, 751, 986 N.W.2d 53, 59 (2023).
As relevant to this appeal, the grading subsections of Neb. Rev.
Stat. § 28-518 (Cum. Supp. 2024) provide:
(3) Theft constitutes a Class I misdemeanor when the
value of the thing involved is more than five hundred
dollars but less than one thousand five hundred dollars.
(4) Theft constitutes a Class II misdemeanor when the
value of the thing involved is five hundred dollars or less.
[17] Section 28-518(9) provides 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.” Although § 28-518(8) requires some
intrinsic value to be proved as an element of a theft offense,
the statutory language does not require proof of a particular
threshold value. State v. Duncan, 294 Neb. 162, 882 N.W.2d
650 (2016).
[18-21] 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.
State v. Dixon, 306 Neb. 853, 947 N.W.2d 563 (2020). The

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STATE v. PAYNE
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value of the stolen property may be established by proof of
the original cost of the item reduced to reflect the actual con-
dition of the property, in terms of how long it has been used
and its state of utility or damage. Id. Evidence of purchase
price, together with evidence concerning the age, condition,
and utility of the item, may afford a basis for determining
market value. Id. 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. Id.
Here, Christopher testified that he purchased the bicycle
and all the attachments for Lacey in April 2021 and that the
total purchase price for the bicycle, helmet, water bottle cage,
kickstand, back rack, and child seat mount was $1,000.58. The
cost of the bicycle alone was $699.99 in 2021, as evidenced by
the sales receipt admitted into evidence during the trial. The
evidence established that, at the time the bicycle was stolen,
all the attachments were still on the bicycle except the helmet,
all the family’s bicycles were kept on a covered porch and
were locked up in a bike rack with a cable running through
them with a padlock, and the bicycles had been covered with a
tarp for the past year following another incident where another
bicycle was stolen. Notably, although the bicycle and its con-
tents were purchased nearly 3 years before they were stolen,
there was no evidence presented governing the current condi-
tion of the bicycle, how much it had been used, or its state
of utility or damage. Despite a lack of evidence governing
the bicycle’s condition, the jury determined that the value of
the bicycle was $600. In short, Payne argues there was insuf-
ficient evidence adduced at trial to support the jury’s finding
that the market value of the bicycle was over $500 but less
than $1,500 when taken.
A similar argument was made in State v. Gartner, 263 Neb.
153, 638 N.W.2d 849 (2002). In Gartner, the appellant, a for-
mer Adams County assessor, was charged with theft after sev-
eral items of county property were found in his possession after
he left office. Two of those items were a new camera recently

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STATE v. PAYNE
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purchased for $799 by the assessor’s office approximately 1
month before it was stolen, with evidence adduced that the
camera was unused and still in the box, and a fax machine
purchased for $525 by the assessor’s office 7 months before it
was stolen with no evidence adduced regarding its condition
at the time it was stolen. Following a jury trial, the appellant
was convicted of theft pursuant to § 28-511(1), and in grading
the offenses, the jury found the value of the camera was $799
and the value of the fax machine was $525, thus finding him
guilty of a Class IV felony under § 28-518(2). We note that this
statute has since been amended such that the gradation for theft
in an amount over $500 but less than $1,500 is now a Class I
misdemeanor found at § 28-518(3).
[22-26] In Gartner, the appellant challenged the grading
of his offenses, arguing that there was insufficient evidence of
current market value at the time the articles were stolen result-
ing in an improper gradation of the offenses. The Nebraska
Supreme Court agreed as to the fax machine but not the cam-
era. We quote at length from the Supreme Court’s rationale
because we find the analysis dispositive of the case at bar. As
to the camera, the Supreme Court held:
[The] question is presented regarding the sufficiency
of the evidence to sustain [the appellant’s] conviction
. . . for the theft of a digital camera. The jury determined
that the digital camera was stolen on January 7, 1999,
and that it was worth $799 at the time of the theft. The
only evidence supporting this determination, however, is
that the digital camera cost $799 when it was purchased
on December 9, 1998, less than a month before the date
on which the jury determined that the theft occurred.
We have stated: “While it is true that . . . it is
necessary for the State to establish the market value
of the stolen property as of the date of the commission
of the offense, . . . we do not interpret this rule in such
a narrow fashion as to require testimony of a witness
or witnesses in haec verba that, at the specific time of

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the taking of the stolen property, it had a market value
of a specific amount. These facts may be established
circumstantially, as well as by direct evidence, and
the ultimate resolution of the value of the property at
the time and place of the taking is clearly a fact question
for the decision of the jury from the evidence adduced.”
(Emphasis in original.) State v. Weik, 206 Neb. 217, 221,
292 N.W.2d 289, 291 (1980).
Generally, while the preferred method of establishing
value may be by expert testimony, the purchase price
paid by the owner is admissible as a factor for the jury to
consider in determining market value when it is not too
remote in time and bears a reasonable relation to market
value. See Coley v. State, 302 Ark. 526, 790 S.W.2d 899
(1990). The value of the stolen property at the time of the
crime 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. People v. White, 167 A.D.2d
256, 561 N.Y.S.2d 756 (1990). Evidence of cost together
with evidence concerning age, condition, and utility of
the stolen item may afford a basis for determining value.
People v. Langston, 96 Ill. App. 3d 48, 420 N.E.2d 1090,
51 Ill. Dec. 532 (1981). See, also, e.g., [citations omitted]
(cases finding purchase price to be sufficient evidence
of market value where purchase is recent and condition
of property is good).
Evidence of the purchase price of the goods, however,
is competent evidence of fair market value only where
the goods are so new, and thus, have depreciated in value
so insubstantially as to allow a reasonable inference that
the purchase price is comparable to the fair market value.
See [citations omitted] (cases finding purchase price to be
insufficient evidence of market value where evidence was
not presented as to age or good condition of property).

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STATE v. PAYNE
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In the instant case, the digital camera was purchased,
new, less than a month prior to the time that the theft was
found to have taken place. The evidence indicated that
the camera had never been used and, in fact, had not been
removed from its packaging before it was turned over
to the prosecution. We also note that the purchase price
of the camera was well in excess of the $500 threshold
established by § 28-518(2) for a Class IV felony. See
White, supra (original cost sufficient evidence of value
where margin between cost and statutory threshold is
wide). Compare Lyman, supra (original cost insufficient
evidence 	of 	value 	where 	price 	paid 	for 	goods 	not
significantly greater than statutory threshold).
Given these facts, we conclude that, in the light most
favorable to the State, the purchase price of the digital
camera was sufficient evidence of fair market value
to support [the appellant’s] conviction on count II of
the information. The short amount of time between the
purchase and the theft, in addition to the evidence of
the camera’s condition when stolen, supports a reasonable
inference made by the trier of fact that the purchase
price of the camera reflected the fair market value of the
camera at the time of the theft.
State v. Gartner, 263 Neb. 153, 164-66, 638 N.W.2d 849,
859-61 (2002).
But in analyzing the record regarding the evidence adduced
in support of market value governing the fax machine, the
Supreme Court reached a different result. Again, we quote
extensively from the Supreme Court’s opinion:
The same principles applied to [the theft of the camera]
lead to a different result with regard to . . . the theft of
the fax machine. The fax machine was purchased on June
13, 1998, for a price of $525, and the jury found that the
fax machine was stolen on January 7, 1999, and was still
worth $525 at the time of the theft.

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STATE v. PAYNE
Cite as 34 Neb. App. 265
The fax machine was recovered by investigators on
March 26, 1999. While [the appellant] testified that he
had not opened the fax machine box, the only evidence
presented regarding the condition of the fax machine at the
time it was found came from a criminal investigator with
the Nebraska State Patrol. The patrol investigator testified
that he was not the one who actually located the fax
machine and that the fax machine box had been opened
when the investigator first saw it.
Thus, with respect to [the theft of the fax machine],
the only evidence of the market value of the fax machine
at the time of the theft is the $525 price at which the fax
machine was purchased, nearly 7 months prior to the
theft. There was no substantial evidence presented as to
the condition of the fax machine at the time of the theft
from which the jury could make any reasonable inference
regarding depreciation. Furthermore, the value that the
jury found for the item, $525, is only marginally greater
than the statutory threshold for a felony theft conviction
established by § 28-518(2). Compare State v. Lyman,
966 P.2d 278 (Utah App. 1998). Under the principles set
forth above, we conclude that the evidence presented is
insufficient to support the jury’s determination regarding
the value of the fax machine.
State v. Gartner, 263 Neb. at 166-67, 638 N.W.2d at 861.
We make a similar finding here. On this record, the bicycle
and assorted bicycle equipment were purchased 3 years prior
to the theft for $1,000.58. There was testimony that the sto-
len bicycle included all of the equipment except the helmet
purchased for approximately $40. However, there was no
evidence adduced regarding the condition of the bicycle or
its assorted equipment some 3 years later at the time of the
theft. Unlike the camera in State v. Gartner, supra, the bicycle
was not new but was 3 years old. And there was absolutely
no evidence adduced regarding the bicycle’s current condi-
tion, including, but not limited to, how often it had been used,

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STATE v. PAYNE
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whether the bicycle had been involved in prior accidents, or
any other details governing the bicycle’s current condition.
Notwithstanding the lack of evidence of value, the jury con-
cluded that the bicycle was worth $600 at the time of the theft,
which, similar to the fax machine in Gartner, supra, is only
marginally greater than the statutory threshold for a Class I
misdemeanor under § 28-518(3).
While it is true that the original purchase price of the sto-
len items was $960.58, which is significantly greater than the
$501 statutory threshold for a Class I misdemeanor theft, we
find that a complete lack of evidence governing the bicycle’s
condition 3 years following its purchase left the jury without
evidence to make a reasonable inference regarding depreciation
and current market value. Accordingly, under the principles set
forth above, we conclude the evidence presented was insuf-
ficient to support the jury’s determination regarding the value
of the bicycle.
Under similar circumstances in State v. Gartner, 263 Neb.
153, 638 N.W.2d 849 (2002), the Nebraska Supreme Court
held that while the State failed to present sufficient evidence to
support the jury’s conclusion regarding the $525 market value
of the fax machine at the time of the theft, the evidence estab-
lished beyond a reasonable doubt that the fax machine had
some intrinsic value that translated to at least nominal market
value. Payne makes a similar concession here. Consequently,
the evidence is sufficient to support Payne’s conviction for
theft. However, because the evidence of the specific value at
the time of the theft is insufficient to support the gradation
of the theft as a Class I misdemeanor, Payne’s sentence for
a Class I misdemeanor is vacated and the cause is remanded
to the district court to remand to the county court for imposi-
tion of an appropriate sentence for a Class II misdemeanor
pursuant to § 28-518(4). See State v. Dixon, 306 Neb. 853,
947 N.W.2d 563 (2020) (even if evidence in record in theft
case failed to support specific value found by jury, such insuf-
ficiency would result only in reduction in offense grade and

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remand for resentencing, not reversal of conviction for theft by
receiving stolen property).
CONCLUSION
For the above-stated reasons, we affirm Payne’s convic-
tion for theft by unlawful taking but vacate the sentence and
remand to the district court to remand to the county court with
directions to impose an appropriate sentence for a Class II
misdemeanor.
Affirmed in part, and in part vacated
and remanded for resentencing.