State v. Ebert , 303 Neb. 394 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/25/2019 01:06 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    303 Nebraska R eports
    STATE v. EBERT
    Cite as 
    303 Neb. 394
    State of Nebraska, appellee, v.
    A rthur D. Ebert, appellant.
    ___ N.W.2d ___
    Filed June 21, 2019.    No. S-18-752.
    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. Courts: Jurisdiction: Search and Seizure: Property. Neb. Rev. Stat.
    § 29-820 (Reissue 2016) applies only where the exclusive jurisdic-
    tion of a court under Neb. Rev. Stat. § 29-818 (Reissue 2016) has not
    been invoked.
    3. ____: ____: ____: ____. 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. Criminal Law: Search and Seizure: Property. Upon the termination
    of criminal proceedings, seized property, other than contraband, should
    be returned to the rightful owner unless the government has a continuing
    interest in the property.
    5. Criminal Law: Search and Seizure: Property: Presumptions: Proof.
    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.
    6. Property: Presumptions: Evidence. A presumption of ownership is
    created by exclusive possession of personal property, and evidence must
    be offered to overcome that presumption.
    7. Search and Seizure: Property: Presumptions: Title. Seizure of prop-
    erty 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.
    8. ____: ____: ____: ____. The presumptive right to possession of seized
    property may be overcome when superior title in another is shown by a
    preponderance of the evidence.
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    Nebraska Supreme Court A dvance Sheets
    303 Nebraska R eports
    STATE v. EBERT
    Cite as 
    303 Neb. 394
    Appeal from the District Court for Stanton County: M ark
    A. Johnson, Judge. Reversed and remanded for further
    proceedings.
    Bradley A. Ewalt, of Ewalt Law Office, P.C., L.L.O., for
    appellant.
    Douglas J. Peterson, Attorney General, and Melissa R.
    Vincent 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 subse-
    quently 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 fur-
    ther 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
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    STATE v. EBERT
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    303 Neb. 394
    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 prop-
    erty was offered and received. The exhibit identified the same
    items of property that had been listed in the dismissed infor-
    mation 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
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    STATE v. EBERT
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    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 oth-
    ers 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 tes-
    tify 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
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    STATE v. EBERT
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    303 Neb. 394
    Ebert’s employment, 3D Metal was very busy and was pur-
    chasing new tools often, and that not all of the new tools were
    properly marked. Ledford testified that after Ebert’s employ-
    ment 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 com-
    mon 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 inter-
    mingled 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
    [1] The denial of a motion for return of seized property is
    reviewed for an abuse of discretion.1
    1
    State v. McGuire, 
    301 Neb. 895
    , 
    921 N.W.2d 77
     (2018).
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    Nebraska Supreme Court A dvance Sheets
    303 Nebraska R eports
    STATE v. EBERT
    Cite as 
    303 Neb. 394
    ANALYSIS
    Ebert’s brief challenges the factual findings made by the
    trial court, but after reviewing the record, we find a more fun-
    damental 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 A pplies
    Neb. Rev. Stat. § 29-818 (Reissue 2016) provides in rel-
    evant part:
    [P]roperty seized under a search warrant . . . shall be
    safely kept . . . and shall be so kept so long as neces-
    sary 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 dis-
    position 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 dis-
    posed of by the law enforcement agency on such showing as
    the law enforcement agency may deem adequate . . . .”
    [2,3] 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
    2
    Id.
    3
    Id. at 903, 921 N.W.2d at 84.
    4
    Id., citing State v. Agee, 
    274 Neb. 445
    , 
    741 N.W.2d 161
     (2007).
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    STATE v. EBERT
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    filed against Ebert, § 29-818 is the statute governing disposi-
    tion here.
    Burden of Proof Under
    § 29-818 Was on State
    [4-7] 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 ter-
    mination of criminal proceedings, seized property, other
    than contraband, should be returned to the rightful owner
    unless the government has a continuing interest in the
    property. . . . While the government is permitted to seize
    evidence for use in investigation and trial, such property
    must be returned once criminal proceedings have con-
    cluded, unless it is contraband or subject to forfeiture. .
    . . Thus, a motion for the return of property is properly
    denied only if the claimant is not entitled to lawful pos-
    session of the property, the property is contraband or
    subject to forfeiture, or the government has some other
    continuing interest in the property.”5
    Regarding the burden of proof in such a proceeding, we
    explained:
    “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 presump-
    tion. 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
    5
    Id. at 906, 921 N.W.2d at 85-86, quoting Agee, supra note 4.
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    evidence of that person’s right to possession of the prop-
    erty, and unless another party presents evidence of supe-
    rior title, the person from whom the property was taken
    need not present additional evidence of ownership.”6
    Based on the foregoing, once the theft by unlawful taking
    charge against Ebert was dismissed and the State no longer
    needed the evidence, Ebert was “presumptively entitled to the
    return of property seized from him unless the State presented
    evidence justifying its refusal to do so.”7
    Here, Ebert waived the presumption of possession with
    respect to all but five of the items seized by conceding on the
    record that such items belonged to 3D Metal. But Ebert sought
    the return of (1) the nylon harness, (2) the square and level,
    (3) one of the DeWalt tool cases and included tools, (4) the
    Milwaukee sawzall, and (5) the JVC speakers, and the State’s
    only reason for opposing return of these items was that they
    too belonged to 3D Metal. And although it was the State’s bur-
    den to prove superior title to these items, the record indicates
    that both the State and the trial court misapplied that burden of
    proof to Ebert.
    To the extent the trial court’s ruling was based on a mis-
    application of the law regarding the burden of proof, we are
    not able to review it for an abuse of discretion.8 We therefore
    reverse, and remand for further proceedings applying the cor-
    rect legal framework. Because we are remanding the matter, we
    take this opportunity to address the quantum of proof the State
    must meet to overcome Ebert’s presumption of ownership.
    Preponderance of
    Evidence Standard
    We have not directly addressed what quantum of proof the
    State must meet to rebut the presumption of ownership and
    6
    Id. at 906-07, 921 N.W.2d at 86 (emphasis in original), quoting Agee,
    supra note 4.
    7
    Agee, supra note 4, 274 Neb. at 453, 741 N.W.2d at 168.
    8
    See McGuire, supra note 1.
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    show another has superior title. In State v. Agee,9 we held that
    when criminal proceedings have terminated, the person from
    whom the 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.” Agee
    also said a “presumption of ownership is created by exclusive
    possession of personal property” so that evidence must be
    offered to overcome that presumption.10 McGuire used similar
    “presumption” language, as noted above. But no case has yet
    described the quantum of proof necessary to overcome or rebut
    the presumption.
    The Nebraska Evidence Rules provide that “[i]n all cases
    not otherwise provided for by statute or by these rules a pre-
    sumption imposes on the party against whom it is directed the
    burden of proving that the nonexistence of the presumed fact
    is more probable than its existence.”11 More probable than not
    is generally a preponderance of the evidence standard,12 com-
    monly used in civil proceedings.13
    This description of the quantum of proof necessary to over-
    come the presumption of ownership is generally consistent
    with that articulated in the case law of other jurisdictions on
    which we have relied in our jurisprudence addressing motions
    for the return of seized property. In the case of State v. Card,14
    cited by Agee, the Washington Court of Appeals explained the
    State had the burden to prove a greater right of possession
    than the one from whom property was seized, and was thus
    required to prove “by a preponderance of the evidence that the
    property is stolen property.”15 Similarly, in the case of DeLoge
    9
    Agee, supra note 4, 274 Neb. at 450, 741 N.W.2d at 166.
    10
    Id.
    11
    Neb. Evid. R. 301, Neb. Rev. Stat. § 27-301 (Reissue 2016).
    12
    State v. Taylor, 
    286 Neb. 966
    , 
    840 N.W.2d 526
     (2013).
    13
    See State v. Bain, 
    292 Neb. 398
    , 
    872 N.W.2d 777
     (2016).
    14
    State v. Card, 
    48 Wash. App. 781
    , 
    741 P.2d 65
     (1987).
    15
    Id. at 790, 741 P.2d at 71.
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    v. State,16 cited by this court in both Agee and McGuire, the
    Wyoming Supreme Court held that postconviction motions for
    the return of seized property are civil proceedings to which a
    preponderance of the evidence standard would apply.
    [8] We have consistently said that the seizure of property
    from someone is prima facie evidence of that person’s right
    to possession of the property,17 and we now hold that the pre-
    sumptive right to possession of seized property may be over-
    come when superior title in another is shown by a preponder-
    ance of the evidence.
    CONCLUSION
    It was error as a matter of law to require Ebert, as the
    proponent of a motion seeking the return of property seized
    from him, to prove ownership of the property seized. We thus
    reverse the order and remand this matter for further proceed-
    ings applying the correct burden of proof.
    R eversed and remanded for
    further proceedings.
    Freudenberg, J., not participating.
    16
    DeLoge v. State, 
    156 P.3d 1004
     (Wyo. 2007).
    17
    See, McGuire, supra note 1; Agee, supra note 4.
    

Document Info

Docket Number: S-18-752

Citation Numbers: 303 Neb. 394

Filed Date: 6/21/2019

Precedential Status: Precedential

Modified Date: 7/25/2019