State v. Hill-Brown, A-01-419 (not designated for permanent publication)

State of Nebraska, appellee,
v. Ilene Hill-Brown, appellant.

State v. Hill-Brown
(not designated for permanent publication)

Filed April 9, 2002. No. A-01-419.

Appeal from the District Court for Lancaster County: Steven D. Burns, Judge. Affirmed.

Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays for appellant.

Don Stenberg, Attorney General, and Marilyn B. Hutchinson for appellee.

Irwin, Chief Judge, and Sievers and Moore, Judges.

Moore, Judge.
I. INTRODUCTION

Ilene Hill-Brown appeals from an order of the district court for Lancaster County sentencing her to 3 years' probation with 120 days of jail time following her conviction for third-offense shoplifting. For the reasons stated below, we affirm.

II. BACKGROUND

An information was filed on October 6, 2000, charging Hill-Brown with theft by shoplifting goods having a value of $200 or less, third or subsequent offense, pursuant to Neb. Rev. Stat. § 28-511.01 (Reissue 1995), a Class IV felony, as a result of an incident that occurred on September 9, 2000, at the Von Maur department store in Lincoln, Nebraska. On January 17, 2001, a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), was conducted, evidence was adduced, and the court held that Hill-Brown's statements to Von Maur employees, and to Officer David D. Goehring of the Lincoln Police Department as to identity, were voluntarily made and were admissible at trial.

A jury trial was held on January 29 and 30, 2001. The evidence presented by the State indicated that on September 9, 2000, Hill-Brown was detained by loss prevention officers from Von Maur for shoplifting. Loss prevention officer Daniel D. Wright was on duty at Von Maur on the previous day, September 8. At 8:55 p.m., about 5 minutes before closing, Wright noticed Hill-Brown and a female companion in the store. Around noon on September 9, Wright was on duty again, working in tandem with another loss prevention officer, Christopher Novak, when he saw Hill-Brown and her companion enter the store. Wright observed Hill-Brown enter the east doors of Von Maur and proceed toward the men's wear department. Wright then left the sales floor and entered an elevated security observation area located in the men's department, where he could observe Hill-Brown and her companion through a vent in the wall without being seen. Wright testified that he was less than 10 yards from Hill-Brown when he saw her take several shirts on hangers from a "rounder" of sale merchandise, move the shirts to the back of the rounder closest to the wall, reselect five shirts, look around, roll the shirts into a bundle, lift her loose-fitting skirt, and conceal the shirts underneath her skirt. Wright's testimony indicates that this observation was made without the use of any visual aids. Wright immediately alerted Novak, who had remained on the sales floor, as well as human resources manager, Stephanie Olsen, to what he had seen. Wright testified that Hill-Brown was under his observation continuously after her concealment of the shirts, except for the approximate 20 seconds that it took for him to exit the observation booth. Wright and Novak followed Hill-Brown and her companion, who proceeded to the east entrance and exited the store, passing eight cash registers along the way.

Wright testified that he did not observe Hill-Brown stop at a cash register on September 9, 2000, nor did he observe her pay for the five shirts that he saw her conceal under her skirt. The court overruled defense counsel's foundation and "not responsive" objections to this testimony.

Hill-Brown was detained outside of the store by Wright and Novak, who requested that she return inside the store with them. Hill-Brown did not resist returning to the store with Wright and Novak. While returning to the store, Wright noticed that Hill-Brown appeared to be getting ill. Hill-Brown and her companion were escorted by Wright, Novak, and Olsen to Olsen's office, an 8- by 10-foot room containing three chairs and a desk. Hill-Brown and her companion took chairs, while Wright sat behind the desk and Novak and Olsen stood. Wright identified Hill-Brown from her driver's license and began to question her regarding her shopping patterns and intentions while inside the Von Maur store.

Wright questioned Hill-Brown in the presence of Novak and Olsen. At first, Hill-Brown denied any knowledge of why she had been detained, but approximately one-half hour after the interview began, she made an admission of involvement regarding missing merchandise and indicated that she would return the shirts. At this point, Julie Finnegan, manager of the Lincoln Von Maur store, joined the other employees in the interview room. Wright and Novak turned away from Hill-Brown, who retrieved the shirts from under her skirt under the observation of Olsen and Finnegan, placing the shirts on the desk. Wright then telephoned the Lincoln Police Department.

Wright testified that Hill-Brown asked two or three times during the interview to take medication, but she was told each time that she would have to wait until the police arrived to do so. Hill-Brown's request to use the restroom, near the end of the interview and after producing the concealed merchandise, was similarly denied. Wright testified further that these requests were denied for "safety reasons." Wright had noticed Hill-Brown ingest a white pill taken from her purse during the time that he observed Hill-Brown's activities in the men's department. Wright also testified that Hill-Brown's companion requested permission to leave to go to work and that both women were concerned that the companion not be late for work; however, she was told she would have to remain until the police arrived.

Approximately 35 to 45 minutes after the interview began, Goehring arrived at the store. The Von Maur employees explained to Goehring what had happened. Goehring did not ask Hill-Brown any questions, but confirmed her identity from her driver's license. Goehring testified that he placed Hill-Brown under custodial arrest on the basis of his conversations with Von Maur employees and only questioned Hill-Brown to confirm her identity. Hill-Brown reiterated her medical complaint to Goehring as he was taking her from Von Maur, and she was given medical treatment at a Lincoln hospital before being cited and booked into jail.

At trial, Finnegan identified the five items of clothing removed by Hill-Brown from under her skirt, which were accepted by the court as exhibits 3 through 7. Finnegan testified further that these five items all contained price tags, which included information such as the department number, "SKU" number, style, price, and the store name of "Von Maur." Finnegan testified that the SKU numbers used by Von Maur have six to seven digits which identify various things about a piece of clothing such as its color, vendor, or size.

Finnegan also testified that exhibits 9 through 13 were printouts of computer records relating to the clothing items in question. Finnegan indicated that each printout referred to all the sales for items of clothing with a particular SKU number in late August or September 2000. Finnegan indicated that once a sale occurs, that information, such as the SKU number, the transaction date, the store number, the register, the transaction number, the person ringing the sale, the amount of the transaction, and how many pieces were in the transaction, is recorded in a computer database. She indicated further that the information is recorded at the time of the sale, but can be printed out at any time. Finnegan testified that each Von Maur store has a control number. She identified the Lincoln store as number 18 and the Omaha store as number 15. Finnegan testified that the sales activity recorded in exhibits 9 through 13 is the type of activity that occurs regularly in the day-to-day business of Von Maur and that these records were made as a part of the regular business practice of Von Maur at or near the time of the event, or sale, recorded. Finnegan testified further that she had access to this type of information and was the custodian of the sales records for the Lincoln Von Maur store.

Finnegan described exhibit 9 as containing information about sales of articles of clothing with the same SKU number as that reflected on exhibit 3. Finnegan identified a transaction on exhibit 9 showing the sale price of $20 in Omaha on August 30, 2000, of the same article of clothing as exhibit 3. Finnegan testified that the SKU on exhibit 10 corresponded with that on exhibit 4. She identified a transaction on exhibit 10 showing the sale price of $20 for an item identical to exhibit 4, which was sold in Omaha on September 24. Finnegan recognized exhibit 11 as containing an SKU number identical to that on exhibit 5. She testified further that the Omaha store had assigned this item a sale price range of $24 to $32, after identifying three transactions in the Omaha store involving this item in early September 2000. Finnegan recognized exhibit 12 as containing an SKU number corresponding to that found on exhibit 6. She identified a transaction on exhibit 12 revealing a sale price in Lincoln of $32 on August 31, and in Omaha on September 17 for $24, for an item with an SKU number corresponding to exhibit 6. Finnegan described exhibit 13 as containing the same SKU number as exhibit 7 and indicated that for that item, there was a range in sale prices between the Omaha and Lincoln Von Maur stores between $12 and $24 during August and September.

The court overruled Hill-Brown's motion for a dismissal at the close of the State's evidence. Hill-Brown rested without adducing further evidence and moved for a directed verdict, which motion was also overruled by the court. The jury returned a verdict finding Hill-Brown guilty of shoplifting, with the property having a value of $136. The district court accepted the verdict, entered judgment accordingly, scheduled an enhancement hearing, and ordered a presentence investigation.

At the March 21, 2001, enhancement hearing, evidence was adduced on the question of whether the present matter was Hill-Brown's "third or subsequent offense." On April 3, the district court found that Hill-Brown had previously been found guilty of theft by shoplifting on three occasions, including the jury verdict rendered in the current matter. The court sentenced Hill-Brown to a term of probation for 3 years with 120 days in jail. Hill-Brown subsequently perfected this appeal.

III. ASSIGNMENTS OF ERROR

Hill-Brown makes 23 assignments of error, which we have consolidated, restated, and renumbered for our review. Hill-Brown asserts that the district court erred in (1) holding that her statements to Von Maur employees were made voluntarily and overruling her continuing objections to the testimony of Wright and Novak regarding statements made by Hill-Brown; (2) overruling her "not responsive" and foundation objections to Wright's testimony that Hill-Brown did not pay for merchandise; (3) overruling her foundation, relevance, and hearsay objections to exhibits 3 through 7; (4) overruling her hearsay objection to exhibits 9 through 13; (5) overruling her relevancy objection to the testimony of Finnegan regarding the information contained in exhibits 9 through 13 in that it did not describe transactions at the time or place of the alleged theft; and (6) overruling her motion to dismiss and motion for directed verdict.

Hill-Brown also asserts that the evidence was insufficient as a matter of law to support the jury's verdict and that her sentence was excessive.

IV. STANDARD OF REVIEW

A district court's finding and determination that a defendant's statement was voluntarily made will not be set aside on appeal unless this determination is clearly erroneous. State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2000).

In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in determining admissibility. State v. Trotter, 262 Neb. 443, 632 N.W.2d 325 (2001). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. State v. Castor, 262 Neb. 423, 632 N.W.2d 298 (2001). A judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. Id. When judicial discretion is not a factor involved in assessing admissibility, the court's application of the Nebraska Evidence Rules will be upheld unless clearly erroneous. State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000).

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. Johnson, 261 Neb. 1001, 627 N.W.2d 753 (2001). 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. State v. Redmond, 262 Neb. 411, 631 N.W.2d 501 (2001), cert. denied ___ U.S. ___, 122 S. Ct. 573, 151 L. Ed. 2d 445.

V. ANALYSIS

1. Voluntariness of Statements

Hill-Brown asserts that the district court erred in holding that her statements to Von Maur employees were made voluntarily and in overruling her continuing objections to the testimony of Wright and Novak regarding her statements to them. The district court held a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), to determine whether Hill-Brown's statements to Von Maur employees were voluntary and therefore admissible. The court subsequently found, based on the evidence provided, that the statements made during the interview in the Von Maur store were made voluntarily and were thus admissible at trial. Voluntariness is the ultimate test to use an accused's statement as evidence in a criminal prosecution. State v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985). In making the determination of whether a statement is voluntary, a totality of the circumstances test is applied, and the determination reached by the trial court will not be disturbed on appeal unless clearly wrong. State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2000).

In the present case, after Hill-Brown agreed to return into the store, she was detained by loss prevention and management employees of Von Maur for approximately one-half hour before she admitted taking the five shirts.

According to Wright, Hill-Brown was coherent but evasive in her answers at first. Wright did not notice any sign that she was under the influence of drugs or alcohol. Wright did not use force, oppression, or coercion, or place her in any fear of apprehension to get her to make statements to him. Wright indicated that Hill-Brown made statements to him with apparent knowledge, understanding, and mental appreciation of what was being said; that she made her statements to him without any apparent mental confusion; and that she made her statements voluntarily and intelligently. Novak testified similarly as to the voluntariness of Hill-Brown's statements to store employees.

When Wright questioned her as to whether she shopped in the Von Maur men's department, Hill-Brown at first denied doing so, but after being told they had observed her in the men's department, and asking her to be a little more truthful, Hill-Brown admitted being in the men's department. Wright then proceeded to ask Hill-Brown specific questions about the five shirts concealed on her person. At first, Hill-Brown denied looking at the shirts. Once she admitted looking at the shirts, she denied touching them. Wright informed Hill-Brown that they were certain she had in fact looked at those particular items and that he was "going to ask her one more time." When asked again about the shirts, Hill-Brown admitted handling this merchandise.

Wright next questioned Hill-Brown about the location of the shirts. When Hill-Brown indicated that she put them back on the sales rounder, Wright told her they knew the shirts were not there. Wright told Hill-Brown that they needed to know where the shirts were and asked Hill-Brown if she could be "completely honest" with them. Hill-Brown stated to Wright that if they allowed her companion to leave the office she would "tell [him] everything." Wright testified that this request was denied "because [they] had originally apprehended both of them [so] they were both in the office until the police officer assisted." Wright next asked Hill-Brown if they could talk about the merchandise and ways of getting it back. Wright testified that Hill-Brown then said that she would return the merchandise to them. Hill-Brown then proceeded to retrieve the merchandise as described above.

During his surveillance of Hill-Brown in the men's department, Wright observed Hill-Brown's companion get her a glass of water with which Hill-Brown then swallowed a white pill she had taken from her purse. When Hill-Brown asked to take more medication during her detention, she was refused permission to do so. Hill-Brown did not disclose the nature of her "medical condition" to the store employees, nor did she identify the "medication." Wright testified that when someone is in their custody after they "make an apprehension," that person is not allowed to take any medication because they "never know exactly what people have" in the way of "medication." Wright testified further that "[i]t's for our safety as well as theirs."

Hill-Brown asserts that her statements were not made voluntarily and that they were made under duress. Circumstances cited by Hill-Brown are that she was "interrogated by [3] store employees in a small room for approximately 25 minutes," that she was told that "she could not take her [companion] to work until after she answered [the employees'] questions," and that her requests to take her medications and use the restroom were denied despite the fact that she "appeared to be getting ill." Brief for appellant at 15-16.

The totality of the circumstances reflected in the record before us supports the trial court's determination that Hill-Brown's statements to the employees of Von Maur were made voluntarily. Accordingly, the trial court's determination in that regard was not clearly erroneous.

2. Admissibility of Evidence

Hill-Brown makes several assignments of error related to the admissibility of testimony from various witnesses and certain exhibits. When judicial discretion is not a factor involved in assessing admissibility, the court's application of the Nebraska Evidence Rules will be upheld unless clearly erroneous. State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000). The admissibility of these pieces of evidence are discussed separately below.

(a) Wright's Testimony

Hill-Brown asserts that the district court erred in overruling her "not responsive" and foundation objections to Wright's testimony that Hill-Brown did not pay for merchandise. Wright testified that he saw Hill-Brown pass eight cash registers without stopping on her way out of the store. When asked if he observed Hill-Brown pay for the five shirts he saw her conceal, Wright responded, "She did not." After the trial court overruled Hill-Brown's objection that this answer was not responsive to the question, Wright clarified that he "did not observe [Hill-Brown] pay for any merchandise." The trial court then overruled Hill-Brown's objection based on foundation. In her brief on appeal, Hill-Brown only argues that there was insufficient foundation for Wright's testimony that she did not pay for the shirts in question, and her brief does not address her asserted error that Wright's testimony was not responsive to the question asked. Errors assigned but not argued will not be addressed on appeal. Skinner v. Ogallala Pub. Sch. Dist. No. 1, 262 Neb. 387, 631 N.W.2d 510 (2001).

As to foundation, Neb. Rev. Stat. § 27-602 (Reissue 1995) provides in pertinent part that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself." Hill-Brown argues that Wright did not have personal knowledge as to whether or not Hill-Brown paid for the five shirts and that his testimony that she did not do so should not have been received. We disagree.

Wright testified that he had Hill-Brown under surveillance from the time she entered the store until she exited it with the five shirts rolled up and tucked under her ample, long skirt, except for the brief time required to leave the observation booth. He testified further that he saw her pass eight cash registers without paying for the shirts. It was not clearly erroneous for the trial court to overrule Hill-Brown's objection that foundation was lacking for Wright's testimony that Hill-Brown did not pay for the five shirts in question.

(b) Price Tags

Hill-Brown asserts that the district court erred in overruling her foundation, relevance, and hearsay objections to exhibits 3 through 7, which are the shirts in question. More specifically, Hill-Brown asserts that the district court should not have allowed the price tags to remain on the shirts because they constituted irrelevant hearsay. Hill-Brown argues only the relevancy and hearsay objections in her brief on appeal, so those are the only two objections with regard to exhibits 3 through 7 that are properly before this court. See Skinner v. Ogallala Pub. Sch. Dist. No. 1, supra.

Value is an element of theft by shoplifting. See Neb. Rev. Stat. § 28-518(8) (Reissue 1995). In reference to the crime of theft, value is established by evidence concerning the price at which property identical or reasonably similar to the property stolen is offered for sale and sold in proximity to the site of the theft. State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992). Evidence is relevant when it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. State v. Trotter, 262 Neb. 443, 632 N.W.2d 325 (2001). Price tags alone do not sufficiently prove value of merchandise. State v. Garza, supra; State v. Ybarra, 9 Neb. App. 230, 609 N.W.2d 696 (2000). A price tag expresses merely the amount at which a seller offers an article for sale, a sum the seller hopes to obtain, and does not necessarily indicate the amount obtainable in the market through payment for the article offered for sale. Id. Clearly the price tags attached to exhibits 3 through 7 were relevant to show the price at which the shoplifted shirts were offered for sale. See State v. Mohr, 10 Neb. App. 442, 632 N.W.2d 382 (2001) (holding price tags were required as "best evidence" of price when State attempted to prove their contents by asking loss prevention employee what tags "said").

With regard to price tags and hearsay, this court in State v. Mohr, supra, cited Robinson v. Com., 258 Va. 3, 516 S.E.2d 475 (1999), wherein the court recognized a hearsay exception in shoplifting cases permitting admission of price tags into evidence. Before reaching that decision, the Robinson court cited other cases where price tags were admitted when proper foundation was laid to bring them within the business records exception or when the court took judicial notice of them because the inherent unreliability of hearsay is not present in this type of evidence, and because the fact that price tags generally reflect market value is commonly known and capable of ready demonstration. In the present case, Finnegan testified that Von Maur was in the practice of putting price tags on the items it offered for sale. She further testified as to the type of information contained on the price tags utilized by Von Maur, how the price tags were generated, and how that information is subsequently used by the Von Maur stores. The district court was not clearly erroneous in overruling Hill-Brown's relevance and hearsay objections to exhibits 3 through 7.

Hill-Brown asserts that the district court erred in overruling her hearsay objection to exhibits 9 through 13, the computer printouts. These printouts reflected sales in the 15 Von Maur stores located throughout the Midwest in August and September 2000 of shirts with the same SKU numbers as the five shirts Hill-Brown removed from the Lincoln store on September 9. The court received these documents under the business record exception to the hearsay rule, Neb. Rev. Stat. § 27-803(5) (Cum. Supp. 2000), which provides:

A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, other than opinions or diagnoses, made at or near the time of such acts, events, or conditions, in the course of a regularly conducted activity, if it was the regular course of such activity to make such memorandum, report, record, or data compilation at the time of such act, event, or condition, or within a reasonable time thereafter, as shown by the testimony of the custodian or other qualified witness unless the source of information or method or circumstances of preparation indicate lack of trustworthiness. The circumstances of the making of such memorandum, report, record, or data compilation, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight.

For admissibility of a document as a business record under § 27-803(5), first, the activity recorded must be a type which regularly occurs in the course of the business' day-to-day activity. Second, the record must have been made as a part of a regular business practice at or near the time of the event recorded. Third, the record must be authenticated by a custodian or other qualified witness. State v. Wright, 231 Neb. 410, 436 N.W.2d 205 (1989).

In the present case, there was evidence that these computer printouts reflected activity of a type regularly occurring in the course of Von Maur's day-to-day business activity. The evidence indicated that the 15 Von Maur stores use the same SKU numbers to designate merchandise that is identical in terms of manufacturer and blend, style, size, and color. These numbers are also used for tracking sales and inventory. The Von Maur stores are able to produce a computer printout of their inventory at any time and find out how many pieces of an item they have at their store, another store, and in the warehouse. Such printouts also show when items with the same SKU were sold, how much they were sold for, and which store made the sale.

The evidence also reflected that the SKU number is recorded as a part of the regular business practice of Von Maur at or near the time of each sale transaction. Once a sale occurs, information concerning that sale is entered into a computer and is recorded on a database. This information can be printed out at any time, and the printout will show the dates of the various sales listed.

Exhibits 9 through 13 were offered and received during testimony by Finnegan, the manager of the Lincoln Von Maur store. Hill-Brown argues that Finnegan was not a qualified witness who could authenticate the record contained in these printouts. The trial court is given discretion in determining whether or not a witness is qualified to state his opinion, and such determination will not be disturbed on appeal absent an abuse of discretion. Bristol v. Rasmussen, 249 Neb. 854, 547 N.W.2d 120 (1996). The district court did not abuse its discretion in this instance by accepting Finnegan as a qualified witness. Prior to becoming manager, as assistant manager, Finnegan had special training which included handling confidential matters, loss prevention, human resources matters, and "turning in reports." Finnegan testified that one of her duties as store manager is to monitor sales at the Lincoln Von Maur store because "we're in business to . . . make sales." Finnegan testified that she is familiar with the use of SKU numbers on price tags and the use of those numbers in keeping track of sales and inventory. She testified further that as custodian of the sales records of her store, she has access to the computer information about sales of specific SKU items, including those in the Von Maur system of 15 stores.

There was evidence in this case of the three foundational facts bringing the computer printouts within the business record exception to the hearsay rule. The computer printouts provided evidence of the prices at which goods identical to the shoplifted shirts in the present case were actually sold in August and September 2000 at either the Lincoln or Omaha store or in other Von Maur stores throughout the Midwest. Accordingly, the district court did not err when it overruled Hill-Brown's hearsay objection to those records and admitted them under the business record exception.

(d) Finnegan's Testimony

Hill-Brown also asserts that the district court erred in overruling her relevancy objection to the testimony of Finnegan regarding the information contained in exhibits 9 through 13 because it did not describe transactions at the time or place of the alleged theft. In reference to the crime of theft, value is established by evidence concerning the price at which property identical or reasonably similar to the property stolen is offered for sale and sold in proximity to the site of the theft. State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).

Exhibits 9 through 13 contained information concerning sales that actually occurred in the Lincoln, Omaha, and other Von Maur stores throughout the Midwest in August and September 2000 of shirts with SKU numbers identical to the shirts removed by Hill-Brown from the Lincoln store on September 9, 2000. This information was relevant to establish the value of the shirts removed from the Lincoln store by Hill-Brown. We cannot say that the district court was clearly erroneous in allowing Finnegan to testify about the information contained in these exhibits.

3. Sufficiency of Evidence as to Value

Hill-Brown next asserts that the district court erred in overruling her motion to dismiss and motion for directed verdict and that the evidence was insufficient as a matter of law to support the jury's verdict. Hill-Brown asserts more specifically that the evidence presented in this case was insufficient as a matter of law to establish the material element of value. 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. Johnson, 261 Neb. 1001, 627 N.W.2d 753 (2001). 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. State v. Redmond, 262 Neb. 411, 631 N.W.2d 501 (2001), cert. denied ___ U.S. ___, 122 S. Ct. 573, 151 L. Ed. 2d 445.

Hill-Brown was charged with third-offense shoplifting. Section 28-511.01 provides:

(1) A person commits the crime of theft by shoplifting when he or she, with the intent of appropriating merchandise to his or her own use without paying for the same or to deprive the owner of possession of such property or its retail value, in whole or in part . . . :
(a) Conceals or takes possession of the goods or merchandise of any store or retail establishment.

Neb. Rev. Stat. § 28-518 (Reissue 1995) provides in relevant part:

    (4) Theft constitutes a Class II misdemeanor when the value of the thing involved is two hundred dollars or less.
    . . . .
    (6) . . . [F]or any third or subsequent conviction under subsection (4) of this section, the person so offending shall be guilty of a Class IV felony.
    . . . .
    (8) In 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.

The Nebraska Supreme Court recently addressed the sufficiency of evidence regarding the value of stolen property in State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002). In interpreting § 28-518(8), the court stated:

The plain language of § 28-518(8) requires that the State must prove, as an element of a theft offense, that the item stolen has at least some intrinsic value. The statute does not require that proof of a specific value must be presented in order for the conviction to be sustained, although the State must prove the specific value of the stolen property at the time of the theft beyond a reasonable doubt in order to obtain a conviction for any offensegreater than a Class II misdemeanor.
In other words, while § 28-518(8) now requires that intrinsic value be proved beyond a reasonable doubt as an element of the offense, proof of a specific value at the time of the theft is necessary only for gradation of the offense.

Id. at 169, 638 N.W.2d at 863. See, also, State v. Mohr, 10 Neb. App. 442, 632 N.W.2d 382 (2001) (where evidence showed stolen dresses had intrinsic value, apart from flawed price tag evidence, although there was insufficient proof of market value). In the present case, since this was a Class IV felony charge, it was necessary for the State to prove the specific value of the stolen property.

With regard to value, value to be proved concerning a theft charge is market value at the time and place where the property was criminally appropriated. State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992); State v. Ybarra, 9 Neb. App. 230, 609 N.W.2d 696 (2000). As we noted above, value in this context is established by evidence concerning the price at which property identical or reasonably similar to the property stolen is offered for sale and sold in proximity to the site of the theft. State v. Garza, supra.

As stated by the Nebraska Supreme Court in Garza and applied by this court in State v. Ybarra, supra, price is not sufficient to prove value.

[P]rice is the amount that a willing seller indicates as acceptable payment for an article offered for sale, whereas value, in relation to a theft charge, is the price obtainable for property offered for sale in a market. Consequently, a price tag merely expresses the amount at which a seller offers an article for sale, a sum the seller hopes to obtain, and does not necessarily indicate the amount obtainable in the market through payment for the article offered for sale.

Garza, 241 Neb. at 264, 487 N.W.2d at 557.

In the present case, the State submitted evidence that Hill-Brown had taken five shirts from a sale rack in the Lincoln Von Maur store without paying for those items. There were price tags on those items giving the price at which they were offered for sale. The evidence also revealed that similar items of merchandise were sold in the Lincoln and Omaha stores at or about the time in question. In the Omaha store, a shirt identical to the first shirt was sold on August 30, 2000, for $20; one identical to the second shirt was sold on September 24 for $20; one identical to the third shirt was sold on September 3 for $32, on September 8 for $24, and on September 18 for $24; one like the fourth shirt was sold on September 17 for $24; and one like the fifth shirt was sold on September 17 for $24. In the Lincoln store, a shirt identical to the fourth shirt was sold on August 31 for $32, and one like the fifth shirt was sold on September 21 for $12.

Unlike Garza and Ybarra, where there was evidence of price but not value, in the present case, we have evidence of both price and value. The actual shirts removed by Hill-Brown from the Lincoln store, including their price tags, were admitted into evidence by the district court. Computer printouts showing actual sales for identical shirts in Lincoln, Omaha, and other regional Von Maur stores in August and September 2000 were admitted into evidence. Finnegan, manager of the Lincoln store, testified regarding these exhibits. We have already found that these exhibits and Finnegan's testimony were properly admitted into evidence. We further find that the evidence in this case, viewed in a light most favorable to prosecution, was sufficient to support Hill-Brown's conviction, and that accordingly, the district court did not err in overruling Hill-Brown's motion to dismiss and motion for directed verdict. Hill-Brown asserts in her brief that Finnegan did not identify the store number for the Lincoln Von Maur store. While it is true that the portion of Finnegan's testimony cited in Hill-Brown's brief was not responsive to the question of whether the Lincoln Von Maur store is identified as number 18, Finnegan testified to that fact elsewhere in the record. Hill-Brown further argues that because the incident in question occurred on September 9, 2000, evidence of sales in the Lincoln Von Maur store on dates earlier or later than September 9 (and by implication evidence of sales in other Von Maur stores on all dates) is insufficient to establish value in this case. Essentially, Hill-Brown argues that value would only be established by evidence of sales of identical shirts, occurring only on September 9, 2000, in the Lincoln Von Maur store. This argument is without merit. The computer printouts contained information about the prices at which shirts, identical or reasonably similar to the shirts stolen by Hill-Brown, were offered for sale and sold in Lincoln, Omaha, and other regional Von Maur stores in August and September 2000. These sales occurred at locations and on dates in reasonable proximity to the location and date of Hill-Brown's theft. We find that the evidence presented in this case was sufficient to establish the material element of value.

4. Sentencing

Finally, Hill-Brown asserts that she received an excessive sentence. More specifically, Hill-Brown asserts that the district court abused its discretion in imposing a 120-day jail sentence as a term of her probation. We do not agree.

Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Heitman, 262 Neb. 185, 629 N.W.2d 542 (2001). In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001). Where a sentence imposed within statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying these factors as well as any applicable legal principles in determining the sentence to be imposed. Id. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. Id.

Hill-Brown was convicted of theft by shoplifting goods valued at $200 or less, third or subsequent offense, a Class IV felony. Third-offense shoplifting carries a possible penalty of 0 to 5 years' imprisonment, a fine of up to $10,000, or a combination of such fine and imprisonment. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2000).

Hill-Brown argues that the 120-day jail term portion of her sentence was an abuse of discretion, exceeding what was "rational and just," in light of her work history, family history, lack of an extensive prior record, and the facts of the case before this court. Brief for appellant at 32. Hill-Brown's criminal record dates back to 1972 in Indianapolis, beginning in Lincoln in 1981. Most of the entries are for theft for which Hill-Brown was fined or jailed, sometimes in conjunction with probation, including her two prior shoplifting offenses.

Hill-Brown's sentence falls within the statutory limits, and our review of the record in this case leads us to conclude that the district court adequately considered the relevant factors in imposing a sentence including a 120-day jail term. Accordingly, we find that the district court did not abuse its discretion in imposing this sentence.

VI. CONCLUSION

The district court's determination that Hill-Brown's statements to Von Maur employees were made voluntarily is not clearly erroneous. Nor was it clearly erroneous for the trial court to overrule Hill-Brown's objection that foundation was lacking for Wright's testimony that Hill-Brown did not pay for the five shirts in question. The district court did not err in overruling Hill-Brown's relevance and hearsay objections to exhibits 3 through 7, the shirts in question, and her hearsay objection to exhibits 9 through 13, the computer printouts. Nor was the district court clearly erroneous in allowing Finnegan to testify about the information contained in the computer printouts. We further find that the evidence presented in this case was sufficient as a matter of law to establish the material element of value. Finally, the district court did not abuse its discretion in imposing a sentence including a 120-day jail term.

Affirmed.