§ 28-511 — Theft by unlawful taking or disposition

Nebraska § 28-511

• Jurisdiction: Nebraska
• Ch. 28: Crimes and Punishments

Text

(1) 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.
(2) A person is guilty of theft if he or she transfers immovable property of another or any interest therein with the intent to benefit himself or herself or another not entitled thereto.
(3) Except as provided in subsection (4) of this section, it shall be presumed that a lessee's failure to return leased or rented movable property to the lessor after the expiration of a written lease or written rental agreement is done with intent to deprive if such lessee has been mailed notice by certified mail that such lease or rental agreement has expired and he or she has failed within ten days after such notice to return such property.
(4) A person is guilty of theft if he or she (a) rents or leases a motor vehicle under a written lease or rental agreement specifying the time and place for the return of the vehicle and fails to return the vehicle within seventy-two hours of written demand for return of the vehicle made upon him or her by certified mail to the address given by him or her for such purpose or (b) uses a fraudulent or stolen credit card to rent or lease a vehicle. Nothing in this subsection shall apply to any person who (i) through inadvertence, mistake, act of God, or other natural occurrence has unintentionally failed to return a rented motor vehicle or to inform the owner of the location of the vehicle or (ii) has had a rented motor vehicle stolen or otherwise converted from his or her possession and has filed the appropriate report with law enforcement authorities.

Legislative History

Source: Laws 1977, LB 38, § 110; Laws 1980, LB 696, § 4; Laws 1988, LB 606, § 1. Annotations: Read in conjunction with section 28-510, theft by unlawful taking under this section is the same offense as theft by receiving stolen property under section 28-517. State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007). The Nebraska Legislature has unambiguously defined theft as a single offense which can be committed in several different ways. State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007). Sufficient evidence was presented to support a conviction of theft by unlawful taking or disposition where the defendant, who was contractually obligated to place money in escrow, did not place the money in escrow and subsequently lost the money through an investment. State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005). Subsection (1) of this section proscribes or condemns only that conduct in which criminal intent is present, distinguishing theft from activity which is otherwise permissible as noncriminal conduct. Consent is a valid defense to a charge of theft by taking. State v. Fahlk, 246 Neb. 834, 524 N.W.2d 39 (1994). A series of separate acts, each of which is a theft proscribed by subsection (2) of this section, does not constitute one criminal act or a continuing offense of theft. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989). Neither the value of the property stolen nor the time at which it was appropriated are essential elements of the crime of theft. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989). Under subsection (2) of this section, the elements of theft by unlawful disposition are (1) a person's unauthorized transfer of another's immovable property (2) with the intent to benefit himself, herself, or another not entitled to the property or any interest in the property. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989). The value of the property stolen is no longer an element of the crime and is important only in determining the penalty. State v. Culver, 233 Neb. 228, 444 N.W.2d 662 (1989). When a person found guilty of a substantive crime as well as being a habitual criminal is improperly sentenced, both sentences must be set aside and the case remanded for proper sentencing. State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981).