State v. Matteson , 313 Neb. 435 ( 2023 )

Nebraska Supreme Court Online Library
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. MATTESON
Cite as 313 Neb. 435State of Nebraska, appellee, v.
Dale Matteson, appellant.
___ N.W.2d ___
Filed February 10, 2023. No. S-21-484.
1. Constitutional Law: Statutes: Judgments: Appeal and Error. The
constitutionality and construction of statutes are questions of law,
regarding which appellate courts are obligated to reach conclusions
independent of those reached by the court below.
2. Constitutional Law: Criminal Law: Statutes. The first step in assess-
ing a void-for-vagueness challenge is to identify and interpret the alleg-
edly vague statutory terms. Only once a court determines what a penal
statute means can it decide whether the statutory language, correctly
interpreted, is so indefinite as to be unconstitutionally vague.
3. Criminal Law: Convictions: Evidence: Appeal and Error. 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 ele-
ments of the crime beyond a reasonable doubt.
4. Proximate Cause: Proof. Three basic requirements must be met in
establishing proximate cause: (1) that without the misconduct, the injury
would not have occurred, commonly known as the “but for” rule; (2)
that the injury was the natural and probable result of the misconduct;
and (3) that there was no efficient intervening cause.
5. Criminal Law: Proximate Cause: Words and Phrases. An efficient
intervening cause is a new and independent cause, itself a proximate
cause of a death, which breaks the causal connection between the origi-
nal illegal act and the death.
6. Jury Instructions. Whether jury instructions given by a trial court are
correct is a question of law.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. MATTESON
Cite as 313 Neb. 4357. Judgments: Appeal and Error. On a question of law, an appellate court
is obligated to reach a conclusion independent of the determination
reached by the court below.
8. Criminal Law: Jury Instructions. If there is an applicable instruction
in the Nebraska Jury Instructions, the court should usually give this
instruction to the jury in a criminal case.
9. Rules of Evidence: Other Acts: Appeal and Error. Whether evidence
is admissible for any proper purpose under the rule governing admis-
sibility of evidence of other crimes, wrongs, or acts rests within the
discretion of the trial court, and the trial court’s decision is reviewed for
abuse of discretion.
10. ____: ____: ____. An appellate court’s analysis under Neb. Rev. Stat.
§ 27-404(2) (Reissue 2016) considers (1) whether the evidence was
relevant for some purpose other than to prove the character of a person
to show that he or she acted in conformity therewith; (2) whether the
probative value of the evidence is substantially outweighed by its poten-
tial for unfair prejudice; and (3) whether the trial court, if requested,
instructed the jury to consider the evidence only for the limited purpose
for which it was admitted.
11. Trial: Convictions: Evidence. Where the evidence is cumulative
and there is other competent evidence to support the conviction, the
improper admission or exclusion of evidence is harmless beyond a rea-
sonable doubt.
12. Rules of Evidence: Appeal and Error. An appellate court reviews rul-
ings under the residual hearsay exception for abuse of discretion.
13. Rules of Evidence: Hearsay: Proof. Under the plain text of Neb. Rev.
Stat. § 27-803(24) (Cum. Supp. 2022), a trial court does not weigh the
criteria set forth in the rule as part of some sort of balancing test. Rather,
the text provides that a hearsay statement must satisfy each of five statu-
tory requirements before it can be admitted.
Appeal from the District Court for Madison County: Mark
A. Johnson, Judge. Affirmed.
Michael J. Wilson, of Berry Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. MATTESON
Cite as 313 Neb. 435Papik, J.
The State charged Dale Matteson with attempted incest and
intentional child abuse resulting in death, in violation of Neb.
Rev. Stat. § 28-707(1)(a) and (8) (Reissue 2016). The theory of
the State’s case was that Matteson sexually propositioned his
daughter, Z.M., which traumatized Z.M. and prompted her to
commit suicide. Matteson entered a guilty plea to the attempted
incest charge, and a jury found him guilty of intentional
child abuse resulting in death. Matteson appeals the inten-
tional child abuse resulting in death conviction. He argues that
§ 28-707(1)(a) and (8) are unconstitutionally vague as applied
in this case, that the evidence was insufficient to sustain a con-
viction, and that the district court committed several reversible
evidentiary errors. We affirm.
I. BACKGROUND
1. Initial Sexual Abuse and
Attempted Suicide
In October 2013, Matteson moved out of the home in which
he had been living with his then-wife and their biological
daughter, Z.M. Approximately a year later, Z.M. expressed
an interest in having a relationship with Matteson and began
to visit him at his house. After one such visit in September
2015, when Z.M. was 12 or 13 years old, Z.M. returned to her
mother’s house crying. She reported that Matteson was molest-
ing her. Z.M.’s mother sought medical attention.
Z.M. was thereafter interviewed in the child advocacy center
of a hospital, a unit designed to help children who have been
exposed to traumatic abuse. During that forensic interview,
Z.M. described how Matteson would rub her bare chest and put
his hands inside her pants when they were alone together. Z.M.
also described waking up with a sore vaginal area on occasion.
Z.M. reported that the assaults occurred “numerous times” in
the previous year—“possibly 40 to 50 times.”
Z.M. subsequently underwent counseling and again reported
that she was sexually abused by Matteson during visitation.
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STATE V. MATTESON
Cite as 313 Neb. 435Z.M. remained in counseling until approximately November
2016. Z.M.’s counselor instructed her mother to keep her away
from Matteson.
Despite the instructions of Z.M.’s counselor, Z.M.’s mother
allowed Z.M. to see Matteson in December 2016. Matteson
had asked to give Christmas presents to Z.M., her mother, and
her sister. Z.M.’s mother met Matteson to receive the pres-
ents; Z.M. was in the passenger seat of her mother’s car. After
briefly seeing Matteson during that exchange, Z.M. became
depressed and started having “nightmares of being raped.”
In February 2017, Z.M. attempted suicide by taking “a
couple handfuls” of her mother’s prescription steroid pills. She
was rushed to an emergency room, where she reported that
she took her mother’s medication because “her father sexually
abused her and she was trying to commit suicide.”
Z.M.’s mother informed Matteson of Z.M.’s suicide attempt
and hospitalization at that time. She also relayed to Matteson
that Z.M. reported being depressed and attempting suicide
“because of the sexual abuse that he had done to her.”
2. July 17, 2019, Incident
In 2019, Z.M., then 17 years old, expressed a desire to her
mother to reunify with Matteson. Z.M.’s mother allowed a
reunification to occur.
On July 17, 2019, Matteson approached Z.M. in his apart-
ment completely naked and propositioned her. Matteson told
Z.M. that “one night God told him that it was okay for them to
have a relationship,” that she was “ready” because she touched
his penis when she was a “little girl,” and that he “could teach
her things that guys her age couldn’t.” Matteson also said that
“sex shouldn’t be difficult, and that if you have any urges to
have sex with somebody, you shouldn’t stop those urges.” Z.M.
went to her bedroom, locked the door, and cried.
Z.M. later reported these details to her mother. Her mother
contacted law enforcement, and Matteson was arrested the
next day.
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STATE V. MATTESON
Cite as 313 Neb. 4353. Z.M.’s Death
Z.M.’s mental and physical health declined following the
July 17, 2019, incident. She rarely slept and had nightmares
when she did. She felt anxious, rarely ate, and devoted little
attention to her appearance.
On September 5, 2019, Z.M. reported suicidal thoughts to
her mother. Her mother took her to a medical clinic. At the
clinic, Z.M. reported that she was having suicidal thoughts and
that she could not get the image of her naked father out of her
head. At the recommendation of the medical provider at the
clinic, Z.M.’s mother then took her to the emergency room.
When asked by the emergency room physician about why she
wanted to commit suicide, Z.M. identified several causes of
stress, but reported that “the most predominant one was the
attempted incestuous relationship recently that had happened
between her and her biological father.” The emergency room
physician described Z.M. at that time as “very depressed”
and unable to “think about much else.” Z.M. was referred to
another hospital, where she remained until she was discharged
on September 9.
On the morning of September 18, 2019, Z.M. purchased
pills from a discount store. She was found deceased in a
locked car on September 20. Two bottles of generic Benadryl,
a handwritten journal, and suicide notes were found inside the
car. Poisoning from Benadryl was determined to be the cause
of death.
4. Procedural History
The State charged Matteson with attempted incest and inten-
tional child abuse resulting in death. Matteson entered a plea
of guilty to attempted incest. During the plea hearing, Matteson
made the following statement.
On or about July 17th of 2019, I had a conversation with
my daughter, [Z.M.], and made ill-advised comments or
statements in [an] attempt to commit incest, and from
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STATE V. MATTESON
Cite as 313 Neb. 435that point on, I think I can’t tell you enough how deeply
remorseful and regrettable that was for me and for her.
The district court accepted Matteson’s guilty plea to the
attempted incest charge.
A trial was held on the intentional child abuse resulting
in death charge. The witnesses called by the State included
Z.M.’s mother and various medical professionals who treated
and counseled Z.M. The State also called Matteson’s niece,
who testified that Matteson had groped her, and a friend of
Matteson’s niece, who testified that Matteson’s niece reported
the abuse to her. The State also offered, and the district court
received, a video recording of the 2015 forensic interview of
Z.M. Just prior to the close of the State’s evidence, the State
read the statement Matteson made at his plea hearing to the
jury. Matteson offered the handwritten journal found in Z.M.’s
car, but the district court excluded it from evidence. Additional
details regarding the evidence introduced at trial are discussed
as necessary in the analysis section below.
The jury convicted Matteson of intentional child abuse
resulting in death. The district court sentenced him to 75 to 80
years’ imprisonment on the intentional child abuse resulting
in death conviction and to 2 to 3 years’ imprisonment on the
attempted incest conviction.
Matteson timely appealed. We granted his petition to bypass
the Nebraska Court of Appeals.
II. ASSIGNMENTS OF ERROR
Matteson assigns eight errors: (1) that the statute prohibiting
intentional child abuse resulting in death is unconstitutionally
vague as applied to his conduct, (2) that the evidence was
insufficient to sustain a conviction for intentional child abuse
resulting in death, (3) that the district court erred in declining
to instruct the jury that an efficient intervening cause breaks
the chain of proximate causation, (4) that the district court
erred in admitting the testimony of Matteson’s niece, (5) that
the district court plainly erred by failing to give a limiting
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STATE V. MATTESON
Cite as 313 Neb. 435instruction following the testimony of Matteson’s niece, (6)
that the district court erred in admitting the testimony of
Matteson’s niece’s friend, (7) that the district court erred in
admitting the video recording of the 2015 forensic interview,
and (8) that the district court erred in excluding the handwrit-
ten journal from evidence.
III. ANALYSIS
1. Void-for-Vagueness Challenge
(a) Standard of Review
[1] The constitutionality and construction of statutes are
questions of law, regarding which appellate courts are obli-
gated to reach conclusions independent of those reached by
the court below. State v. Montoya, 304 Neb. 96, 933 N.W.2d
558 (2019).
(b) Analysis
Matteson first argues that § 28-707(1)(a) and (8) are void
for vagueness as applied to his conduct. The Nebraska and
federal Constitutions both guarantee that “[n]o person shall be
deprived of life, liberty, or property, without due process of
law . . . .” Neb. Const. art. I, § 3. See U.S. Const. amend. XIV,
§ 1. The government violates due process when it takes away
someone’s liberty “under a criminal law so vague that it fails to
give ordinary people fair notice of the conduct it punishes, or
so standardless that it invites arbitrary enforcement.” Johnson
v. United States, 576 U.S. 591, 595, 135 S. Ct. 2551, 192 L.
Ed. 2d 569 (2015). See Montoya, supra.[2] The first step in assessing a void-for-vagueness chal-
lenge is to identify and interpret the allegedly vague statu-
tory terms. See Johnson, supra. Only once a court deter-
mines what a penal statute means can it decide whether the
statutory language, correctly interpreted, is so indefinite as
to be unconstitutionally vague. See State v. Irons, 254 Neb.
18, 574 N.W.2d 144 (1998). As one federal court of appeals
summarized, “[F]irst, we must construe the meaning of the
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STATE V. MATTESON
Cite as 313 Neb. 435term . . . . Second, we must determine whether the [statute] is
void for vagueness under the construction we have adopted.”
U.S. v. Lachman, 387 F.3d 42, 50 (1st Cir. 2004). See, also,
U.S. v. Bronstein, 849 F.3d 1101, 1106 (D.C. Cir. 2017) (“a
statute’s vagueness is either susceptible to judicial construction
or is void for vagueness based on the application of traditional
rules for statutory interpretation”).
The statute challenged here provides that a “person com-
mits child abuse if he or she knowingly, intentionally, or neg-
ligently causes or permits a minor child to be . . . [p]laced in
a situation that endangers his or her life or physical or mental
health.” § 28-707(1)(a). The offense is a Class IB felony if it
is “committed knowingly and intentionally and results in the
death of such child.” § 28-707(8). Matteson contends that the
phrase “results in the death of such child” is unconstitution-
ally vague.
But, in fact, there is little mystery as to what “results in the
death of such child” means, for purposes of § 28-707(8). In
State v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005), we held
that “results in the death of such child” required the govern-
ment to prove that the defendant’s abuse proximately caused
the abused child’s death. Muro thus not only interpreted the
language Matteson claims is unconstitutionally vague, it inter-
preted that language to require the State to establish a very
familiar legal standard with an extensive common-law heritage:
proximate cause. Indeed, Matteson himself does not appear to
truly question what “results in the death of such child” means:
his brief cites Muro and goes on to argue at some length that
the State failed to introduce sufficient evidence that Matteson’s
abuse proximately caused Z.M.’s death.
The fact that we have interpreted the “results in the death
of such child” language in § 28-707(8) to require that the
State prove that the abuse proximately caused the death of
the child makes Matteson’s vagueness challenge difficult.
After all, the void-for-vagueness doctrine protects against laws
that force “men of common intelligence [to] guess at [their]
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STATE V. MATTESON
Cite as 313 Neb. 435meaning.” Connally v. General Const. Co., 269 U.S. 385, 391,
46 S. Ct. 126, 70 L. Ed. 322 (1926). But there is little room
for guesswork if the language of the law in question has “a
well-settled common law meaning, notwithstanding an ele-
ment of degree in the definition as to which estimates might
differ.” Id.Matteson nonetheless insists that “[b]ecause there is no
[l]egislative or judicial guidance as to what circumstances
result in a child abuse victim’s suicide,” persons in his position
are forced to guess whether such a death will be considered
to result from child abuse for purposes of § 28-707(8). Brief
for appellant at 24. But this is simply not so. Under the stat-
ute and our interpretation in Muro, a suicide, like any other
death, “results” from intentional child abuse if it is proximately
caused by such abuse. The concept of proximate cause is fur-
ther defined by our many cases discussing and applying that
common-law concept. See, e.g., State v. Irish, 292 Neb. 513,
873 N.W.2d 161 (2016); Muro, supra.To be sure, proximate cause is a qualitative standard rather
than a bright-line rule—but that alone does not render the stat-
ute so indefinite as to be unconstitutional. A law is not void
for vagueness merely because it “requires a person to conform
his conduct to an imprecise but comprehensible normative
standard.” Coates v. City of Cincinnati, 402 U.S. 611, 614, 91
S. Ct. 1686, 29 L. Ed. 2d 214 (1971). Rather, a statute offends
due process only if “no standard of conduct is specified at
all.” Id. See, also, Johnson v. United States, 576 U.S. 591, 135
S. Ct. 2551, 192 L. Ed. 2d 569 (2015). Here, there is no real
dispute about what “results in the death of such child” means;
it embodies the concept of proximate cause. The more dif-
ficult question is instead whether proximate cause was pres-
ent in this case. But the fact that is a more difficult question
does not render the statute vague. As the U.S. Supreme Court
explained in United States v. Williams, 553 U.S. 285, 306,
128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008), “[w]hat renders
a statute vague is not the possibility that it will sometimes
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STATE V. MATTESON
Cite as 313 Neb. 435be difficult to determine whether the incriminating fact it
establishes has been proved; but rather the indeterminacy of
precisely what that fact is.”
Matteson also argues that the statute fails the second prong
of the void-for-vagueness test because it does not provide
“‘minimal guidelines to govern law enforcement.’” Brief for
appellant at 24, quoting Smith v. Goguen, 415 U.S. 566, 94 S.
Ct. 1242, 39 L. Ed. 2d 605 (1974). This argument, however,
encounters essentially the same difficulties we have already
discussed. In the cases Matteson relies on in support of this
argument, the statutes at issue were found unconstitution-
ally vague because they used phrases that lacked any well-
understood meaning and thus permitted “policemen, prosecu-
tors, and juries to pursue their personal predilections.” Goguen,
415 U.S. at 575. These statutes criminalized actions such as
treating the American flag “contemptuously,” id. (internal quo-
tation marks omitted); failing to provide “credible and reliable”
identification to a peace officer, Kolender v. Lawson, 461 U.S.
352, 358, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983) (internal
quotation marks omitted); and “loitering [among] criminal
street gang members,” Chicago v. Morales, 527 U.S. 41, 46-47,
119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999) (internal quotation
marks omitted).
But that same concern is not present here. Unlike the cases
discussed above, police officers, prosecutors, and juries are
not free to arrest, charge, or convict someone of intentional
child abuse resulting in death unconstrained by any mean-
ingful standards. As we have discussed, the statute applies
only if the intentional child abuse proximately causes the
child’s death.
Whether viewed through the lens of adequate notice or the
risk of arbitrary enforcement, Matteson’s void-for-vagueness
argument is not actually premised on any contention that the
meaning of the statute’s text is vague. His argument instead
rests on his assertion that it is unclear whether the facts of
this case are covered by the well-defined legal concept of
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STATE V. MATTESON
Cite as 313 Neb. 435proximate cause expressed in the statute or, in other words,
that this is a factually close case. The U.S. Supreme Court has
instructed, however, that the possibility or existence of a factu-
ally close case does not render a statute vague. See Williams,
supra. The existence of close cases, the Court has explained,
is “addressed, not by the doctrine of vagueness, but by the
requirement of proof beyond a reasonable doubt.” Id., 553 U.S.
at 306. At this point, we thus conclude that Matteson’s void-
for-vagueness assignment of error lacks merit and turn to his
argument that there was insufficient evidence to prove beyond
a reasonable doubt that his intentional child abuse proximately
caused Z.M.’s death.
2. Sufficiency of Evidence
(a) Standard of Review
[3] 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. Pauly, 311 Neb. 418, 972
N.W.2d 907 (2022).
(b) Analysis
As we have discussed, in order to convict Matteson of inten-
tional child abuse resulting in death, the State was required
to prove that Matteson’s act of intentional child abuse prox-
imately caused Z.M.’s death. Although Matteson does not
challenge the evidence that he committed intentional child
abuse, he contends that the State failed to introduce sufficient
evidence that his intentional child abuse of Z.M. proximately
caused her death. We disagree. Viewing the evidence in the
light most favorable to the jury’s verdict, as our standard of
review requires, we conclude that a rational trier of fact could
have found beyond a reasonable doubt that Matteson proxi-
mately caused Z.M.’s death.
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Cite as 313 Neb. 435[4] The concept of proximate cause is applicable in both
criminal and tort law, and the analysis is parallel in many
instances. State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016).
Three basic requirements must be met in establishing proxi-
mate cause: (1) that without the misconduct, the injury would
not have occurred, commonly known as the “but for” rule; (2)
that the injury was the natural and probable result of the mis-
conduct; and (3) that there was no efficient intervening cause.
Id. Accordingly, to prove that Matteson proximately caused
Z.M.’s death by suicide, the State had to prove the following:
(1) that but for Matteson’s act of child abuse, Z.M. would not
have committed suicide; (2) that Z.M.’s death was a natural
and probable result of the attempted incest; and (3) that there
was no efficient intervening cause. In his brief, Matteson pri-
marily contends that a rational finder of fact could conclude
only that Z.M.’s act of suicide was an efficient intervening
cause. In addition, at oral argument, he briefly claimed that
there was insufficient evidence that Matteson’s abuse was a
“but for” cause of Z.M.’s death.
We begin by addressing Matteson’s suggestion that the State
failed to introduce adequate evidence of “but for” causation.
To resolve this issue, we must ask whether a rational trier
of fact could conclude that Z.M. would not have commit-
ted suicide if not for Matteson’s act of abuse. We conclude
that a rational jury could. Z.M.’s mother testified that Z.M.’s
physical and mental health deteriorated following Matteson’s
propositioning of Z.M. In addition, Z.M.’s mother also tes-
tified that on September 5, 2019, when medical attention
was sought for Z.M., Z.M. told medical professionals that
she was having suicidal thoughts, that she could not get the
image of Matteson’s naked body out of her head, and that she
wanted to commit suicide because of what Matteson had done
to her on July 17. An emergency room physician corrobo-
rated this account, testifying that Z.M. attributed her desire
to commit suicide to “several stressors,” but that the “most
predominant one” was Matteson’s recent suggestion of an
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Cite as 313 Neb. 435incestuous relationship. Evidence that Z.M. experienced a
mental health decline following Matteson’s propositioning her
and that just weeks before committing suicide she explicitly
tied her desire to do so to Matteson’s abuse is sufficient to
allow a rational jury to conclude that, if not for Matteson’s
abuse, Z.M. would not have committed suicide.
We are not dissuaded from this conclusion by evidence that
Z.M. was suffering from other “stressors” in the time lead-
ing up to her death. Even assuming that factors other than
Matteson’s abuse contributed to Z.M.’s decision to commit
suicide, it does not follow that his abuse was not a “but for”
cause of her death. Other factors may have combined with
Matteson’s misconduct to cause Z.M. to commit suicide, but
so long as a “reasonable trier of fact could conclude that the
other factors alone would not have done so,” there is sufficient
evidence of “but for” causation. See Irish, 292 Neb. at 522,
873 N.W.2d at 168. Based on the evidence discussed above, the
jury could have reasonably concluded as much here.
[5] Matteson’s more developed argument is focused on effi-
cient intervening cause. He argues that the evidence conclu-
sively demonstrated that Z.M.’s act of committing suicide was
an efficient intervening cause and that therefore, Matteson’s
abuse did not proximately cause her death. An efficient inter-
vening cause is a new and independent cause, itself a proxi-
mate cause of a death, which breaks the causal connection
between the original illegal act and the death. State v. Hudson,
268 Neb. 151, 680 N.W.2d 603 (2004). An intervening cause
supersedes and cuts off the causal link only when the interven-
ing cause is not foreseeable. State v. Irish, 292 Neb. 513, 873
N.W.2d 161 (2016).
Recognizing the need to demonstrate that Z.M.’s suicide
was not foreseeable, Matteson turns to testimony from several
witnesses called by the State. He acknowledges that several
such witnesses testified that victims of sexual abuse like
Z.M. face a higher risk of suicidal ideation, but he contends
that no evidence demonstrated a relationship between sexual
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Cite as 313 Neb. 435abuse and completed suicides. In addition, he points to testi-
mony from Melissa Armstrong, a mental health therapist who
treated Z.M., and Ben McBride, a police detective who inves-
tigated the case. Armstrong testified that suicidal ideation is
very common among females who are sexually assaulted by a
family member, but that she had not experienced a high cor-
relation between such abuse and completed suicides. McBride
estimated that he had investigated over 1,000 cases of child
abuse but testified that this was the only case he was aware of
in which a victim of child abuse committed suicide. The only
reasonable conclusion that can be drawn from this evidence,
Matteson contends, is that it was not reasonably foreseeable
that Matteson’s propositioning Z.M. would lead Z.M. to take
her own life approximately 2 months later. As we will explain
below, however, Matteson’s argument overlooks evidence in
the record that we cannot ignore.
First, Matteson fails to note that there was some evidence
in the record of a link between the type of abuse Z.M. suf-
fered and not just suicidal ideation, but suicidal behavior. A
mental health nurse practitioner who had previously treated
Z.M. testified that in her experience, multiple traumatic child-
hood experiences “greatly increase[]” a victim’s “risk of sui-
cide,” and that for “a lot” of adolescent females, sexual
trauma can “result[] in acute suicidal behavior.” Second, and
perhaps more importantly, Matteson also fails to account for
Matteson’s earlier acts of abuse, Z.M.’s response to those acts,
and Matteson’s knowledge thereof. As set forth above, the
State introduced evidence that Z.M. first attempted suicide in
February 2017 and that she then attributed her desire to do so
to Matteson’s previous sexual abuse. Moreover, Z.M.’s mother
testified that she told Matteson that Z.M. had attempted sui-
cide because of the depression caused by Matteson’s acts of
sexual abuse.
Considering this evidence along with the rest of the record,
we cannot say that no rational jury could have found that
the State proved that Matteson proximately caused Z.M.’s
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Cite as 313 Neb. 435death beyond a reasonable doubt. Viewing the evidence, as we
must, in the light most favorable to the prosecution, a rational
trier of fact could have concluded that, despite the testimony
of Armstrong and McBride that they had not personally expe-
rienced a case in which an abuse victim committed suicide, it
was nonetheless reasonably foreseeable that the act of child
abuse Matteson committed on July 17, 2019, would lead Z.M.
to commit suicide. To the extent that the State’s witnesses gave
competing accounts of the likelihood that sexual abuse of a
minor may lead to a completed suicide, it is especially within
the province of the jury to resolve conflicting testimony and
weigh the evidence. See State v. Wheeler, 308 Neb. 708, 956
N.W.2d 708 (2021).
Moreover, the precise foreseeability question in this case
was not whether it is foreseeable that sexual abuse of children
can lead to suicide in general; it was whether it was foresee-
able that Z.M. would commit suicide as a result of Matteson’s
abuse. And, on this question, it would not be unreasonable for
a jury to conclude, based on evidence that Z.M. had previously
attempted suicide as a result of Matteson’s sexual abuse, that it
was foreseeable that if Matteson sexually abused Z.M. again,
she would again try to take her own life.
Because a jury could reasonably find that Z.M.’s death was
a foreseeable consequence of Matteson’s abuse, Matteson’s
reliance on Lewis v. State, 474 So. 2d 766 (Ala. Crim. App.
1985), does not aid him. In that case, the Court of Criminal
Appeals of Alabama held that the child victim’s decision to
play Russian roulette was a superseding cause and thus that
the defendant could not be found guilty of criminally negli-
gent homicide on the theory that he showed the victim how
to play the game. Although the court made some comments
regarding the victim’s exercise of “free will,” it also stated
that the defendant could not “have perceived the risk that
the victim would play the game by himself.” Id. at 771. In
this case, our law holds that Z.M.’s suicide could constitute
an efficient intervening cause only if it was not foreseeable.
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Cite as 313 Neb. 435See State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016). And
because a reasonable jury could find that Z.M.’s suicide was
a foreseeable consequence of Matteson’s abuse, there was
sufficient evidence that Z.M.’s suicide was not an efficient
intervening cause. Unpersuaded by Matteson’s arguments, we
find there was sufficient evidence of proximate causation
to support Matteson’s conviction for intentional child abuse
resulting in death.
3. Proposed Jury Instruction
(a) Additional Background
After the close of evidence and during a jury instructions
conference, Matteson proposed a jury instruction that speci-
fied that “[p]roximate cause” is conduct that produces a result
“unbroken by an efficient intervening cause.” The district court
declined to give the proposed instruction and instead defined
“proximate cause” without reference to “efficient intervening
cause” in accordance with a Nebraska pattern jury instruction.
The district court instructed the jury using the language of
NJI2d Crim. 4.1B, which reads:
Proximate cause—that is, a cause that produces a result
in a natural and continuous sequence, and without which
the result would not have occurred. Where the indepen-
dent acts of more than one person combine to proximately
cause the same injury, each such act is a proximate cause,
and each such person may be held responsible for causing
the result.
(b) Standard of Review
[6,7] Whether jury instructions given by a trial court are
correct is a question of law. State v. Cerros, 312 Neb. 230, 978
N.W.2d 162 (2022). On a question of law, an appellate court is
obligated to reach a conclusion independent of the determina-
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Cite as 313 Neb. 435(c) Analysis
Matteson argues that the district court erred in refusing to
give his proposed proximate cause instruction. He contends
that the proximate cause instruction the district court gave
prejudiced him, because it failed to refer to the concept of effi-
cient intervening cause.
[8] A jury verdict will be reversed when the district court
declines to give a proposed instruction only if (1) the proposed
instruction correctly stated the law, (2) the proposed instruc-
tion was warranted by the evidence, and (3) the refusal to give
the instruction prejudiced the defendant. See State v. Quintana,
261 Neb. 38, 621 N.W.2d 121 (2001), modified on denial of
rehearing 261 Neb. 623, 633 N.W.2d 890. There is no preju-
dicial error warranting reversal if the jury instructions, read
together and taken as a whole, correctly state the law, are not
misleading, and adequately cover the issues supported by the
evidence. See State v. Pope, 305 Neb. 912, 943 N.W.2d 294(2020). If there is an applicable instruction in the Nebraska
Jury Instructions, the court should usually give this instruction
to the jury in a criminal case. State v. Lavalleur, 289 Neb. 102,
853 N.W.2d 203 (2014), disapproved on other grounds 292
Neb. 424, 873 N.W.2d 155 (2016).
While Matteson’s proposed instruction correctly stated the
law of proximate cause, so too did the instruction the jury
received, such that Matteson was not prejudiced by the dis-
trict court’s refusal to give the proposed instruction. And
the district court had good reason not to give the proposed
instruction. This court has, in the civil context, instructed trial
courts “to discontinue the practice of separately instructing
juries on ‘efficient intervening cause’ in favor of the more
direct and clear instructions based on the concept of proximate
or concurring cause.” Sacco v. Carothers, 253 Neb. 9, 18,
567 N.W.2d 299, 306 (1997). We reasoned that the concept
of efficient intervening cause is “subsumed by” the concept
of proximate cause itself: a cause that produces a result in a
natural and continuous sequence is necessarily one that was
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Cite as 313 Neb. 435not interrupted by a so-called efficient intervening cause. Id. at
17, 567 N.W.2d at 306. We noted also that a “separate instruc-
tion on ‘efficient intervening’ cause is confusing to lay jurors”
and distracts them from the ultimate question of whether the
defendant proximately caused the injury. Id. at 18, 567 N.W.2d
at 306. We see no reason why this same reasoning would not
apply in the criminal context as well. Because we conclude
there is no basis by which we could find that Matteson was
prejudiced by the district court’s instruction on proximate
cause, this assignment of error lacks merit.
4. Evidence of Other Acts
of Sexual Abuse
(a) Additional Background
During the course of trial, the State introduced evidence that
Matteson committed other acts of sexual abuse prior to the July
17, 2019, incident. Matteson’s niece testified that Matteson
groped her when she was 17 years old while she accompa-
nied him on a 3- or 4-day trip in his semi-truck. According to
Matteson’s niece, she awoke one night while sleeping in the
sleeper berth of the semi-truck to Matteson’s giving her a “very
deep massage” in between her legs. She testified that Matteson
apologized to her the next morning. A friend of Matteson’s
niece also testified that the niece informed her of the abuse
upon returning home from the trip.
In addition, the State introduced, and the district court
received, a video recording of a forensic interview of Z.M. in
2015 during which she described past abuse by Matteson and
claimed that Matteson did things “intimately” to Z.M.’s mother
“in her sleep . . . when she d[id]n’t want to do it.” The district
court admitted the video recording as “res gestae, part of the
crime. And if not res gestae, it’s at least 404(2).”
After the video recording was played for the jury, the dis-
trict court instructed the jury that the recording of the foren-
sic interview and the allegations of Matteson’s niece were
“received for a limited purpose of helping you decide whether
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Cite as 313 Neb. 435the defendant had motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident to
commit the crime of child abuse.”
(b) Standard of Review
[9] Whether evidence is admissible for any proper purpose
under the rule governing admissibility of evidence of other
crimes, wrongs, or acts rests within the discretion of the trial
court, and the trial court’s decision is reviewed for abuse of
discretion. See State v. Oldson, 293 Neb. 718, 884 N.W.2d
10 (2016).
(c) Analysis
Matteson contends that the district court erred by receiv-
ing the evidence that Matteson had committed other acts of
sexual abuse. He also claims that the district court commit-
ted plain error by not giving a limiting instruction following
the testimony of his niece. We address these arguments here,
beginning with his contention that the district court erred by
receiving the niece’s testimony.
(i) Testimony of
Matteson’s Niece
[10] The district court received the testimony of Matteson’s
niece under Neb. Rev. Stat. § 27-404(2) (Reissue 2016), now
codified at § 27-404(2) (Cum. Supp. 2022). Under that rule,
the State cannot admit evidence of a defendant’s prior bad
acts to prove that he or she has a propensity to act in a certain
manner, but such evidence is admissible for other purposes,
such as to prove intent or absence of mistake. An appellate
court’s analysis under § 27-404(2) considers (1) whether
the evidence was relevant for some purpose other than to
prove the character of a person to show that he or she acted
in conformity therewith; (2) whether the probative value of
the evidence is substantially outweighed by its potential for
unfair prejudice; and (3) whether the trial court, if requested,
instructed the jury to consider the evidence only for the
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Cite as 313 Neb. 435limited purpose for which it was admitted. State v. Chavez,
281 Neb. 99, 793 N.W.2d 347 (2011).
Matteson’s argument that the district court erred by admit-
ting his niece’s testimony under § 27-404(2) is made difficult
by the fact that whether he “knowingly” and “intentionally”
committed child abuse was a fact of consequence at trial. See,
§ 28-707(1) and (8); Chavez, supra. Moreover, one might rea-
sonably conclude that previous subjection of a teenage blood
relative to unwanted sexual touching made it more likely that
Matteson’s actions toward Z.M. on July 17, 2019, were com-
mitted knowingly and intentionally, as opposed to being the
result of an accident or mistake. Matteson attempts to over-
come the foregoing with a claim that, as a result of his plea to
attempted incest and his statement at the plea hearing regarding
that charge, his mental state was not a fact of consequence at
trial. As we will explain, we are not persuaded.
First, despite Matteson’s insistence to the contrary, we
do not understand his statement at the plea hearing to be an
admission that he knowingly and intentionally committed
child abuse. Matteson asserted in his statement that he made
“ill-advised comments or statements in an attempt to com-
mit incest,” but did not admit to knowingly and intention-
ally committing any of the acts of child abuse enumerated in
§ 28-707(1).
In addition, even if Matteson was willing to stipulate to
knowing and intentional child abuse, that would not have pre-
cluded the State from presenting its case by other means. The
State “may generally choose its evidence” in presenting the
facts underlying a charged crime. State v. Stubbendieck, 302
Neb. 702, 712, 924 N.W.2d 711, 720 (2019). A defendant can-
not negate the probative value of relevant evidence “through a
tactical decision to stipulate.” Id. See, also, Old Chief v. United
States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997).
We find no abuse of discretion in the admission of the testi-
mony of Matteson’s niece under § 27-404(2).
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Cite as 313 Neb. 435(ii) Limiting Instruction Regarding
Testimony of Niece
Matteson’s next assignment of error also concerns his niece’s
testimony. Matteson urges us to find that the district court
plainly erred by failing to instruct the jury as to the proper pur-
poses for which it could consider his niece’s testimony. Little
need be said here.
Matteson asks us to find plain error because he did not
request a limiting instruction regarding his niece’s testimony.
Our precedent, however, forecloses such an argument: We have
said that the failure to provide a limiting instruction absent a
request is not reversible error. See State v. Oldson, 293 Neb.
718, 884 N.W.2d 10 (2016). And, in any case, as we noted
above, the district court, despite the absence of a request from
Matteson, did instruct the jury that the niece’s testimony, along
with other § 27-404(2) evidence, was received for a limited
purpose. Matteson’s assignment of error lacks merit.
(iii) Testimony of Niece’s Friend
Matteson also assigns that the district court erred by permit-
ting the friend of Matteson’s niece to testify that Matteson’s
niece reported to the friend that Matteson had abused her. The
district court admitted this hearsay testimony as admissible
under the excited utterance exception to the hearsay rule. See
Neb. Rev. Stat. § 27-803(1) (Reissue 2016), now codified at
§ 27-803(2) (Cum. Supp. 2022).
[11] We need not explore whether the district court erred
in admitting the testimony of the niece’s friend. Even assum-
ing the testimony should not have been admitted, any such
error was harmless. Where the evidence is cumulative and
there is other competent evidence to support the conviction,
the improper admission or exclusion of evidence is harmless
beyond a reasonable doubt. State v. Grant, 293 Neb. 163, 876
N.W.2d 639 (2016).
Here, the testimony of Matteson’s niece’s friend was entirely
cumulative of that of Matteson’s niece. The friend, who was
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Cite as 313 Neb. 435not present when Matteson inappropriately touched his niece,
did not testify about any fact regarding the incident to which
the niece did not also testify. Moreover, as we have discussed
above, other competent evidence supported Matteson’s convic-
tion. Any error in admitting the testimony of the niece’s friend
was harmless beyond a reasonable doubt.
(iv) Video Recording of
Forensic Interview
We next address Matteson’s contention that the district court
erred in receiving the video recording of Z.M.’s 2015 forensic
interview. Matteson argues that the portions of the interview
in which Z.M. referred to Matteson’s abuse of her should
have been ruled inadmissible for essentially the same reasons
he argues that the district court should not have received the
testimony from his niece. He also contends that Z.M.’s refer-
ence to Matteson’s unwanted advances toward her mother was
impermissible propensity evidence.
We again find no merit to Matteson’s assignment of error.
For the same reasons we discussed above with respect to the
testimony of Matteson’s niece, we find that the district court
could receive evidence regarding Matteson’s prior abuse of
Z.M. as evidence tending to prove his intent and the absence of
mistake or accident.
In addition, this evidence was also admissible as evidence of
acts that were inextricably intertwined with the charged crime.
Such evidence “forms part of the factual setting of the crime,”
and its admission may be “necessary for the prosecution to
present a coherent picture of the charged crime.” State v. Lee,
304 Neb. 252, 271, 934 N.W.2d 145, 160 (2019).
Z.M.’s claims that Matteson previously abused her fall
squarely within the inextricably intertwined rule. The State’s
entire theory of proximate cause depended on a showing of
prior abuse. According to the State, it was reasonably fore-
seeable that Matteson’s abusive actions on July 17, 2019,
would result in Z.M.’s death, because Z.M. had attempted
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Cite as 313 Neb. 435suicide following his initial abuse. To make that argument, the
State needed to introduce evidence of Matteson’s prior sexual
abuse of Z.M. The recorded interview was that evidence—it
“form[ed] part of the factual setting of the crime” for which
Matteson stood trial. See id. The video recording was there-
fore highly probative on the question whether Matteson’s child
abuse resulted in Z.M.’s death. And any prejudice it caused
Matteson was not unfair, because it did not invite the jury to
convict Matteson on an improper basis. See State v. Munoz,
303 Neb. 69, 927 N.W.2d 25 (2019).
To the extent that Matteson argues that the video recording
should have been excluded solely because of Z.M.’s statements
regarding Matteson’s unwanted sexual advances on her mother,
that argument also fails. Matteson did not seek to redact that
portion of the interview, a burden he bore. See State v. Thomas,
303 Neb. 964, 932 N.W.2d 713 (2019). “[A]n objection to an
exhibit as a whole is properly overruled where a part of the
exhibit is admissible.” Id. at 981, 932 N.W.2d at 726.
Because the portions of the video recording concerning
Matteson’s abuse of Z.M. was admissible and Matteson did not
specifically object to the admission of other parts of the record-
ing, the district court did not abuse its discretion in admitting
the recording in its entirety.
5. Handwritten Journal
(a) Additional Background
Matteson lastly contends that the district court erred in
excluding from evidence a handwritten journal that was found
inside the locked car where Z.M. died. The journal contains
various entries dated from August 8 to September 4, 2019.
In the journal, Z.M. writes about feeling stressed, emotional,
angry, and confused, as well as about difficulties with her
boyfriend. Several entries also refer to Matteson. One states,
“[W]hen I think about what he put me through, I just get sick
to my stomach.” Another states, “He is my dad[,] but that
doesn’t change what he did. [D]oes he even know what he
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Cite as 313 Neb. 435put me through? Or how this might [affect] me for the rest of
my life?”
Matteson attempted to admit the journal under the residual
hearsay exception. See Neb. Rev. Stat. § 27-803(23) (Reissue
2016), now codified at § 27-803(24) (Cum. Supp. 2022). The
district court explained that it would not admit the journal
under the residual hearsay exception because it lacked suf-
ficient guarantees of trustworthiness. The district court also
stated that even if the entries were relevant, they would tend to
confuse the jury and thus would also be excluded under Neb.
Rev. Stat. § 27-403 (Reissue 2016).
(b) Standard of Review
[12] We review rulings under the residual hearsay exception
for abuse of discretion. See State v. Martinez, 306 Neb. 516,
946 N.W.2d 445 (2020).
(c) Analysis
Matteson argues that the journal should have been admit-
ted under the residual hearsay exception. The residual hearsay
exception states, in full, that the following is not excluded by
the hearsay rule:
A statement not specifically covered by any of the fore-
going exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines
that (a) the statement is offered as evidence of a material
fact, (b) the statement is more probative on the point for
which it is offered than any other evidence which the
proponent can procure through reasonable efforts, and
(c) the general purposes of these rules and the interests
of justice will best be served by admission of the state-
ment into evidence. A statement may not be admitted
under this exception unless the proponent of it makes
known to the adverse party, sufficiently in advance of the
trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, his or her intention to
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Cite as 313 Neb. 435offer the statement and the particulars of it, including the
name and address of the declarant.
§ 27-803(24).
Before turning to Matteson’s arguments, we stop to consider
what must be shown for a statement to be admitted under the
residual hearsay exception. We have said in recent years that to
determine whether a statement is admissible under the residual
hearsay exception, a trial court considers five factors derived
from § 27-803(24): a statement’s trustworthiness, the materi-
ality of the statement, the probative importance of the state-
ment, the interests of justice, and whether notice was given to
an opponent. See, e.g., Martinez, supra. Our older case law
interpreting the residual hearsay exception, however, did not
describe the criteria to be considered as “factors,” but, rather,
as “conditions precedent to admission.” State v. Reed, 201
Neb. 800, 807, 808, 272 N.W.2d 759, 763 (1978). See, also,
In re Estate of Schoch, 209 Neb. 812, 817, 311 N.W.2d 903,
907 (1981) (“the proponent of the evidence had the burden of
establishing each of the conditions of admissibility imposed by
the [residual hearsay exception]”).
Our shift from describing the rule as requiring the satis-
faction of “conditions precedent” to laying out five “factors”
seems to have occurred in State v. Toney, 243 Neb. 237, 498
N.W.2d 544 (1993). Even so, both cases that Toney cited
in explaining that proposition stated that the parallel federal
rule created “five requirements,” not five “factors.” Id., citing
United States v. Cree, 778 F.2d 474 (8th Cir. 1985), and Huff v.
White Motor Corp., 609 F.2d 286 (7th Cir. 1979).
[13] Upon reflection, we are convinced that our older
description of the rule as setting forth “conditions precedent
to admission” is more precise than our reference to “factors”
in Toney, supra, and its progeny. The text of § 27-803(24)
provides that the only statements eligible to be admitted under
the exception are those that have “equivalent circumstantial
guarantees of trustworthiness” as other hearsay statements
that are excepted from exclusion by a specific rule. The text
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Cite as 313 Neb. 435of § 27-803(24) also provides that the statement must (a) be
offered as evidence of a material fact, (b) be more probative
on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts,
and (c) serve the general purposes of the rules of evidence
and the interests of justice by its admission. Finally, the rule
provides that a statement may not be admitted under the excep-
tion unless a notice requirement set forth in the rule is met.
Under the plain text of § 27-803(24), a trial court does not
weigh the criteria set forth in the rule as part of some sort of
balancing test. Rather, the text provides that a hearsay state-
ment must satisfy each of five statutory requirements before it
can be admitted.
We note that our cases after Toney, supra, may have been
imprecise in their terminology, but in practice, they treated the
residual hearsay exception’s notice provision as a mandatory
requirement. In State v. Martinez, 306 Neb. 516, 946 N.W.2d
445 (2020), for example, we recited the proposition that called
notice one of five “factors” to be weighed, but we treated
notice instead like a prerequisite to admission. Stating that the
notice requirement is “mandatory,” we affirmed the exclusion
of otherwise material evidence because the party seeking to
introduce the hearsay statement under the residual exception
failed to provide adequate notice of his intent to offer it. Id. at
532, 946 N.W.2d at 460. See, also, State v. Castor, 262 Neb.
423, 430, 632 N.W.2d 298, 305 (2001) (“[w]e need address
only the notice requirement issue here, as our decision on that
issue is dispositive”); State v. Leisy, 207 Neb. 118, 130, 295
N.W.2d 715, 723 (1980) (“[w]e hold that the notice require-
ment is mandatory”). Just as the text of the residual hearsay
exception makes adequate notice mandatory, so too are each
of the other statutory conditions made mandatory. A trial court
cannot admit a hearsay statement under the residual hear-
say exception unless it determines that all conditions have
been met.
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Cite as 313 Neb. 435We find confirmation in our reading of the residual hearsay
exception in decisions of federal courts of appeals applying
the parallel federal rule. When a Nebraska Evidence Rule is
substantially similar to a corresponding federal rule of evi-
dence, we may look to federal decisions interpreting the corre-
sponding federal rule for guidance in construing the Nebraska
rule. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57(2008). Prior to recent amendments, the federal residual hear-
say exception was almost identical to Nebraska’s, and the
current federal rule is substantially similar to ours. See Fed.
R. Evid. 807. The federal courts of appeals have described
the federal rule as, among other things, setting forth “founda-
tional requirements,” U.S. v. W.B., 452 F.3d 1002, 1003 (8th
Cir. 2006), and “five elements,” U.S. v. Moore, 824 F.3d 620,
622 (7th Cir. 2016). See, also, U.S. v. Slatten, 865 F.3d 767,
806 (D.C. Cir. 2017) (“Rule 807 makes admissible a statement
otherwise violative of the hearsay rule if the statement meets
five criteria”); U.S. v. Banks, 514 F.3d 769, 777 (8th Cir. 2008)
(“[i]n total, there are five requirements for admissibility under
Rule 807”).
Turning to Matteson’s arguments that the journal should
have been admitted under the residual hearsay exception, he
argues that testimony of Z.M.’s mother about Z.M.’s writ-
ing in a journal establishes the trustworthiness of the jour­
nal. Z.M.’s mother testified that after Z.M’s first suicide
attempt, Z.M. received counseling, and that during that coun-
seling, Z.M. learned “tools on how to deal with her anxiety
[and] PTSD,” including journaling. Matteson argues that this
testimony demonstrates that the journal was “created by Z.M.
for treatment purposes” and is thus trustworthy. Brief for
appellant at 55.
We have recognized that in determining whether a state-
ment has “equivalent circumstantial guarantees of trustwor-
thiness,” courts may consider a variety of factors affecting
trustworthiness and may compare the declaration to the clos-
est recognized hearsay exception. See State v. Epp, 278 Neb.
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Cite as 313 Neb. 435683, 773 N.W.2d 356 (2009). We understand Matteson’s ref-
erence to the journal’s being created “for treatment purposes”
as an argument that the journal was trustworthy because the
statements therein were similar to statements made for pur-
poses of medical diagnosis or treatment, a specific, recog-
nized hearsay exception. See § 27-803(4).
We do not believe Matteson has shown that the district
court abused its discretion by finding that the journal lacked
sufficient guarantees of trustworthiness. The rationale for the
medical diagnosis or treatment exception to the hearsay rule
is that it is in the self-interest of a patient seeking a diagnosis
or treatment from a medical professional to provide accurate
information such that statements made while seeking such a
diagnosis or treatment are likely true. See Vacanti v. Master
Electronics Corp., 245 Neb. 586, 592, 514 N.W.2d 319, 324
(1994) (“[c]ommentators agree on the rationale for this hear-
say exception: the reliability of statements for purposes of
medical diagnosis or treatment is assured ‘by the likelihood
that the patient believes that the effectiveness of the treatment
will depend on the accuracy of the information provided’”),
quoting 2 McCormick on Evidence § 277 (John W. Strong
4th ed. 1992). See, also, Ring v. Erickson, 983 F.2d 818, 820
(8th Cir. 1992) (medical diagnosis or treatment exception “is
based on the belief that a person seeking medical treatment is
unlikely to lie to a doctor she wants to treat her, since it is in
her best interest to tell the truth”).
Matteson, however, does not direct us to any evidence
in the record suggesting that the journal entries were writ-
ten with the expectation they would be read by anyone else,
much less a medical provider for purposes of diagnosis or
treatment. And if, as Z.M.’s mother’s testimony suggests,
Z.M. made the journal entries, not for anyone else to read,
but because the process of writing the entries helped with her
anxiety, it is not obvious to us what guarantees their trustwor-
thiness. Accordingly, we are not persuaded that Matteson has
shown that the district court abused its discretion by finding
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to be admitted under the residual hearsay exception.
IV. CONCLUSION
As we have explained in this opinion, the child abuse result-
ing in death statute is not void for vagueness, there was suf-
ficient evidence to support Matteson’s conviction under that
statute, and the district court did not commit reversible error in
any of its jury instructions or evidentiary rulings challenged by
Matteson. Accordingly, we affirm Matteson’s convictions.
Affirmed.