State v. Elmshauser, No. A-08-119 (Neb. App. 10/28/2008)

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STATE OF NEBRASKA, APPELLEE, v. ASHLEY ELMSHAUSER, APPELLANT.

No. A-08-119.

Court of Appeals of Nebraska.

Filed October 28, 2008.

Appeal from the District Court for Lancaster County: KAREN B. FLOWERS and PAUL D. MERRITT, JR., Judges. Affirmed.

John S. Berry and Kelly D. Hoffart, of Berry, Kelley & Wythers, for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

IRWIN, SIEVERS, and CARLSON, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

IRWIN, Judge.

I. INTRODUCTION

Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1), this case was ordered submitted without oral argument. Ashley Elmshauser appeals her conviction and sentence on charges of theft by receiving, possession of a stolen firearm, and being an accessory to a felony. On appeal, Elmshauser alleges that the State presented insufficient evidence to support the convictions, that her trial counsel was ineffective, that the sentences imposed by the district court violated double jeopardy, and that the sentences imposed were excessive. We find no merit to any of these assertions, and we affirm.

II. BACKGROUND

The incidents which gave rise to this case occurred in February 2006, when Ron Elmshauser discovered that between 40 and 50 firearms were missing from locked metal lockers in his home. Ron notified the police because he "felt that there had been a burglary." He acknowledged at trial that he had not given anyone "specific permission" to remove the firearms from the house, and the hasps on the lockers had been cut with "something" like boltcutters. He estimated the value of the firearms taken from the house as being somewhere between $10,000 and $14,000.

Officer Kathleen Flood of the Lincoln Police Department responded to the burglary call. While at the Elmshauser residence, Flood spoke with Ashley, who is Ron's daughter. At that time Ashley informed Flood that she believed that a man named "Mario Salamanca" had committed the burglary. She also identified two other men who might have been involved, Kyle Cockrell and Douglas Shaw.

The next day, Ashley informed Lincoln police that John Thomas, not Salamanca, had stolen the firearms from her father. A few days later, police were conducting surveillance of Thomas and Ashley at a hotel in Lincoln. Officers observed as Ashley backed a vehicle up outside a hotel room and "popped" the trunk. Thomas then left the hotel room carrying a shotgun and some other items. Thomas and Ashley were both taken into custody. A search of the vehicle revealed more firearms and, in Ashley's purse, a handwritten note which contained a list of firearms.

When interviewed by police, Ashley indicated that the firearms were removed from her father's house on two separate days. She indicated that she and Thomas had gone to the house, Thomas had removed the firearms, and the two had taken them to various locations. Apparently, Thomas exchanged a number of the firearms for methamphetamine, which Thomas and Ashley smoked. Ashley indicated to the police that she had waited in the car and had "popped" the trunk for Thomas when he went into her father's house and removed duffelbags full of firearms. Ashley then drove Thomas and the firearms to the various locations where Thomas disposed of them in exchange for methamphetamine and cash. During the interview, Ashley was asked, "And ultimately, out of the deal, you got to smoke some meth, [Thomas] got some meth and some money?" According to the officer who conducted the interview, Ashley's response was, "I got spoiled for a couple of days."

On October 9, 2007, the State charged Ashley in an amended information with theft by receiving stolen property, possession of a stolen firearm, and accessory to a felony. Trial was held October 9 through 12.

At trial, Ron testified that Ashley had told him that Thomas took the guns and that she had been with him. Ron testified that Ashley told him Thomas put the guns in the car and that she knew the guns were in the car when she drove Thomas around so Thomas could sell them. Ron also testified that he viewed his family as "an extension" of himself and felt that "according to that definition, she was part of [his] family and [they] all shared ownership of the guns." Ron also testified, however, that Ashley would not have had permission to give the firearms to Thomas to dispose of them.

At trial, Ashley acknowledged that Ron had never told her she could take the firearms and that she knew she did not have permission to do so. She also acknowledged that one of the stolen firearms belonged to her brother, not Ron. She acknowledged driving Thomas around to dispose of the firearms and acknowledged initially lying to the police about who had stolen the firearms. She asserted that she did both because she was afraid of Thomas.

The jury returned guilty verdicts on all charges. On January 8, 2008, the court sentenced Ashley to 4 to 8 years' imprisonment on the theft by receiving conviction, 4 to 8 years' imprisonment on the possession of a stolen firearm conviction, and 20 months' to 5 years' imprisonment on the accessory to a felony conviction. On January 14, the court amended its sentence to change the sentence on the possession of a stolen firearm charge to 1 to 2 years' imprisonment. All sentences were ordered to be served concurrently. This appeal followed.

III. ASSIGNMENTS OF ERROR

Ashley assigns four errors on appeal. First, Ashley asserts that the district court erred in finding sufficient evidence to support the convictions on each charge. Second, Ashley asserts that her trial counsel was ineffective in several respects. Third, Ashley asserts that the sentences imposed by the district court violated principles of double jeopardy. Fourth, Ashley asserts that the sentences imposed by the district court were excessive and unlawful.

IV. ANALYSIS

1. SUFFICIENCY OF EVIDENCE

Ashley first asserts that the State failed to adduce sufficient evidence of the essential elements of each charge. She asserts that the State adduced no evidence to show that she received, retained, or disposed of stolen property of another; no evidence to show that she possessed, received, retained, or disposed of a stolen firearm; and no evidence to show that she had the requisite intent to be an accessory to a felony. Upon our review of the record, we find no merit to any of Ashley's assertions.

Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. McGhee, 274 Neb. 660, 742 N.W.2d 497 (2007).

(a) Theft by Receiving

Ashley first asserts that the State failed to adduce sufficient evidence to support a conviction for theft by receiving. She asserts both that the firearms were not truly "stolen," if and when she had possession of them, because she had some kind of ownership interest in them and that there was no evidence she ever possessed any of the firearms and only that she transported Thomas while he disposed of the firearms. We find no merit to either assertion.

Neb. Rev. Stat. § 28-517 (Reissue 1995) provides that a person commits theft if she receives, retains, or disposes of stolen movable property of another knowing that it has been stolen, or believing that it has been stolen, unless the property is received, retained, or disposed of with the intent to restore it to the lawful owner. Neb. Rev. Stat. § 28-509(8) (Reissue 1995) provides that "stolen" shall mean property which has been the subject of a theft or robbery.

From our review of the record, and the factual background set forth above, it is apparent that there was evidence presented to the jury from which it could conclude that Ashley played an active role in the removal and disposition of her father's firearms. There was evidence presented from which the jury could conclude that Ashley and Thomas decided to steal the firearms, Ashley provided transportation, Ashley backed the car up to the house and "popped" the trunk so Thomas could place the firearms in the trunk, and Ashley transported Thomas from place to place for disposal of the firearms. Further, even though Ashley's father attempted to testify that she had some kind of ownership interest in the firearms because they belonged to the "whole family," even he testified that she did not have permission to dispose of them or allow Thomas to do so. At most, Ashley has demonstrated that there was a factual question for the jury to resolve concerning her level of participation in the theft, but we find no merit to her assertion that the State failed to adduce sufficient evidence to support the jury's conclusion that she was guilty.

(b) Possession of Stolen Firearm

Ashley next asserts that the State failed to adduce sufficient evidence to support a conviction for possession of a stolen firearm. Ashley's argument in this regard is that "the same analysis" applies to this issue as the previous one. Similarly, we find no merit to Ashley's assertion on this charge. In addition, we note that the State adduced evidence from which the jury could have found that at least one of the firearms removed from the house belonged to Ashley's brother, not her father, and that the evidence did not indicate that she had any ownership interest in her brother's firearm. We find no merit to Ashley's argument that the State failed to adduce sufficient evidence to support the jury's conclusion that she was guilty.

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