State v. Ebert

303 Neb. 394

929 N.W.2d 478

STATE of Nebraska, appellee,

v.Arthur D. EBERT, appellant.

No. S-18-752.

Supreme Court of Nebraska.

Filed June 21, 2019

Bradley A. Ewalt, of Ewalt Law Office, P.C., L.L.O., Norfolk, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, and Papik, JJ.

Stacy, J.

As part of a plea agreement with Arthur D. Ebert, the State dismissed a charge of theft by unlawful taking. Ebert subsequently filed a motion for return of the property seized from him and originally alleged to be stolen. After conducting an evidentiary hearing, the district court ordered some items of property returned to Ebert and others were returned to his former employer. Ebert appeals. Because the burden of proof was not properly applied, we reverse, and remand for further proceedings.

FACTS

In December 2016, an information was filed in the district court for Stanton County charging Ebert with one count of theft by unlawful taking. The information alleged Ebert had, between the dates of June 6 and November 1, 2016, exercised control over movable property belonging to "3D Metal — Nucor Steel" (3D Metal) with the intent to deprive "him/her thereof." The information listed the movable property as:

(2) Husky plastic sheeting rolls, (2) DeWalt tool cases each containing tools, (1) Red Milwaukee case with Milwaukee sawzall, (2) JVC tower speakers SX-F7TH, (1) Blue nylon braided rope, (1) Coral blue 1 gallon jug of wiper fluid, (12) Foam nitrile gloves, (2) Milwaukee saw blades, (4) Abus metal locks, (4) AC100+ gold adhesive tubes, (1) Stanley vice grip, (4) Pair of white neoprene gloves, (1) Miller brand harness, [and] Miscellaneous assorted tools with (1) tape measure[.]

In a separate case in Stanton County, Ebert was charged with one count of first degree sexual assault and one count of first degree false imprisonment. Pursuant to a plea agreement, Ebert entered guilty pleas to both of those counts and, in exchange, the State dismissed in its entirety the case charging theft by unlawful taking.

Several months after Ebert’s theft case was dismissed, he moved for the return of "his property seized from his vehicle by the Stanton County Sheriff’s office." At the evidentiary hearing on this motion, an exhibit identifying the seized property was offered and received. The exhibit identified the same items of property that had been listed in the dismissed information charging Ebert with theft by unlawful taking.

Ebert testified that he was employed by 3D Metal from June 6 to November 1, 2016, as a laborer and welder. Ebert conceded that many of the items seized from him actually belonged to 3D Metal. Ultimately, he requested the return of only five items: (1) the nylon harness, (2) a square and level, (3) one of the DeWalt tool cases and included tools, (4) the Milwaukee sawzall, and (5) the JVC speakers. With respect to these five items, we summarize the evidence adduced.

Ebert testified the speakers were gifted to him by his work supervisor, and he claimed to have purchased the other four items. He did not offer receipts for any of the items, but he testified as to the circumstances surrounding their purchase. According to Ebert, he purchased the nylon harness from 3D Metal by having $ 25 deducted from his weekly paychecks. He purchased the square and level at a department store in the summer of 2016, and he purchased the DeWalt tool case at a yard sale for $ 125 the week before his arrest. Ebert testified he knew one of the two DeWalt tool cases seized belonged to him, because the other tool case had a serial number written on it by 3D Metal. Ebert testified he purchased the Milwaukee sawzall from a store in Norfolk, Nebraska, in early June 2016, because he needed it to do a porch repair job for a client.

On cross-examination, Ebert testified he needed tools to do his job at 3D Metal because he mostly did "demolition and refabrication." He testified that he used a truck owned by 3D Metal while he was employed, but the truck stayed on 3D Metal’s premises during the evenings. He stated the DeWalt tool case owned by 3D Metal stayed on the truck. Ebert admitted that 3D Metal owned and used Milwaukee sawzalls just like the one seized from him. He stated that 3D Metal kept its sawzalls locked in a cabinet inside the shop and that he did not have a key to the cabinet. He testified that although he had used a different brand of sawzall while employed by 3D Metal, he never used a Milwaukee sawzall during that employment.

The State then called Joe Ledford, an onsite supervisor for 3D Metal. He confirmed that 3D Metal provided work trucks to employees and that the trucks were used only during the day and returned to 3D Metal in the evening. Ledford testified that some tools would remain on the work truck and that others would be locked in a shop overnight. Generally, the trucks would contain a DeWalt toolkit like the two seized from Ebert. And Ledford testified a sawzall was a common tool used on the jobs Ebert did.

Ledford agreed that Ebert purchased a harness from 3D Metal when he began working, but testified that at some point, Ebert reported it had been stolen. Instead of requiring Ebert to buy a new harness, 3D Metal loaned him a spare. Ledford stated that all of the harnesses had serial numbers to identify them, but that he did not bring the paperwork necessary to identify whether the harness seized from Ebert was the one purchased by Ebert or the one loaned to him. Ledford did testify that the harness loaned to Ebert had not been returned after his employment was terminated.

Ledford explained that 3D Metal’s general practice was to mark and number its tools with an inscriber, including its DeWalt toolkits. He stated, however, that during the time of Ebert’s employment, 3D Metal was very busy and was purchasing new tools often, and that not all of the new tools were properly marked. Ledford testified that after Ebert’s employment ended, he noticed tools were missing from some of his trucks. Ledford thought the DeWalt toolkit and the Milwaukee sawzall belonged to 3D Metal, "[b]ecause that’s the kind of tools that I lost about [the] time [Ebert’s employment ended]." He admitted he did not "know specifically" that those items belonged to 3D Metal, and he admitted that both were common items that anyone could buy. He also admitted that he lost "a lot" of tools during the time period of Ebert’s employment, because 3D Metal was busy and some of its tools got intermingled with tools belonging to other companies.

At the conclusion of the hearing, the State argued "this is ... Ebert’s motion to get the property back. I didn't see any written proof of anything that he ever bought anything." On the record, the court found that Ebert "has failed to prove that the harness is his." It found the square and level should be returned to Ebert, because "there’s been no indication that that was owned by anyone other than" him. It found that Ebert had "failed to sustain his burden of proof as to the DeWalt tool case" and had "failed to meet [his] burden of proof" for the return of the sawzall. The court found the speakers should be returned to Ebert, because "there’s no one to dispute" his claim of ownership. In all, the court found that Ebert was entitled to the return of the speakers and the square and level; all other items were ordered returned to 3D Metal. The court entered a written order so disposing of the property on July 2, 2018.

Ebert filed this timely appeal, asserting that the district court abused its discretion in not returning all five items of property to him. We moved the case to our docket on our own motion.

STANDARD OF REVIEW

The denial of a motion for return of seized property is reviewed for an abuse of discretion.¹

ANALYSIS

Ebert’s brief challenges the factual findings made by the trial court, but after reviewing the record, we find a more fundamental error occurred below. As explained below, the trial court incorrectly placed the burden of proof on Ebert. We begin our analysis with an overview of the governing statute, after which we discuss our cases applying that statute.

§ 29-818 APPLIES

Neb. Rev. Stat. § 29-818 (Reissue 2016) provides in relevant part:

[P]roperty seized under a search warrant ... shall be safely kept ... and shall be so kept so long as necessary for the purpose of being produced as evidence in any trial.... [T]he court in which [a complaint has been filed in connection to the property] shall have exclusive jurisdiction for disposition of the property ... and to determine rights therein, including questions respecting the title, possession, control, and disposition thereof.

For the sake of completeness, we note that another statute, Neb. Rev. Stat. § 29-820 (Reissue 2016), also relates to the disposition of seized property. That statute provides that "[u]nless other disposition is specifically provided by law, when property seized or held is no longer required as evidence, it shall be disposed of by the law enforcement agency on such showing as the law enforcement agency may deem adequate ...."

We recently addressed the interplay between §§ 29-818 and 29-820 in State v. McGuire .² McGuire held that § 29-820 "applies only where the exclusive jurisdiction of a court under § 29-818 has not been invoked."³ And McGuire reiterated that "the court in which a criminal charge was filed has exclusive jurisdiction to determine the rights to seized property, and the property’s disposition."⁴ Because a criminal charge was filed against Ebert, § 29-818 is the statute governing disposition here.

BURDEN OF PROOF UNDER § 29-818 WAS ON STATE

Case law applying and interpreting § 29-818 provides guidance on how proceedings related to a motion for the return of seized property are to be conducted. In McGuire , we explained:

"[T]he general rule is well established that upon the termination of criminal proceedings, seized property, other than

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