State v. Thomas ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/25/2019 01:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. THOMAS
Cite as 303 Neb. 964
State of Nebraska, appellee, v.
Nathan M. Thomas, appellant.
___ N.W.2d ___
Filed August 30, 2019. No. S-18-220.
1. Rules of Evidence: Other Acts: Appeal and Error. It is within the
discretion of the trial court to determine relevancy and admissibility of
evidence of other wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Reissue 2016), and the trial court’s decision will not
be reversed absent an abuse of discretion.
2. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of the witnesses, or reweigh the evidence; such matters
are for the finder of fact. 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.
3. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Reissue 2016), prohibits the admission of other bad acts
evidence for the purpose of demonstrating a person’s propensity to act in
a certain manner. But evidence of other crimes which is relevant for any
purpose other than to show the actor’s propensity is admissible under
rule 404(2).
4. Rules of Evidence: Other Acts: Proof. Under Neb. Evid. R. 404(2),
Neb. Rev. Stat. § 27-404(2) (Reissue 2016), evidence may be admissible
for such purposes as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
5. Rules of Evidence: Other Acts: Appeal and Error. An appellate
court’s analysis under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Reissue 2016), considers whether the (1) evidence was relevant for
some purpose other than to prove the character of a person to show that
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. THOMAS
Cite as 303 Neb. 964
he or she acted in conformity therewith, (2) probative value is substan-
tially outweighed by its potential for unfair prejudice, and (3) trial court,
if requested, instructed the jury to consider the evidence only for the
limited purpose for which it was admitted.
6. Rules of Evidence: Words and Phrases. Evidence under Neb. Evid. R.
404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), that is offered for a
proper purpose is often referred to as having “special” or “independent”
relevance, which means that its relevance does not depend upon its tend­
ency to show propensity.
7. Rules of Evidence: Other Acts. The admissibility of other crimes evi-
dence under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue
2016), must be determined upon the facts of each case and is within the
discretion of the trial court.
8. Criminal Law: Words and Phrases. Motive is defined as that which
leads or tempts the mind to indulge in a criminal act.
9. Criminal Law: Intent: Proof. Motive, even when not an element of a
charged crime, is relevant to the State’s proof of the intent element of
the crime.
10. Criminal Law. Motive qualifies as a legitimate noncharacter theory
because although character carries a connotation of an enduring general
propensity, a motive is a situationally specific emotion.
11. Rules of Evidence. Evidence that is admissible under Neb. Evid. R.
404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), may be excluded
under Neb. R. Evid. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016),
if its probative value is substantially outweighed by the danger of
unfair prejudice.
12. Evidence. The probative value of evidence involves a measurement of
the degree to which the evidence persuades the trier of fact that the par-
ticular fact exists and the distance of the fact from the ultimate issue of
the case.
13. ____. Most, if not all, evidence offered by a party is calculated to be
prejudicial to the opposing party.
14. Trial: Evidence. Balancing the probative value of evidence against the
danger of unfair prejudice is within the discretion of the trial court.
15. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
16. Trial: Evidence. Even if there are inadmissible parts within an exhibit,
an objection to an exhibit as a whole is properly overruled where a part
of the exhibit is admissible.
17. Appeal and Error. An appellate court will not consider an issue on
appeal that was not presented to or passed upon by the trial court.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. THOMAS
Cite as 303 Neb. 964
Appeal from the District Court for Lancaster County:
A ndrew R. Jacobsen, Judge. Affirmed.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellant.
Douglas J. Peterson, Attorney General, Erin E. Tangeman,
and, on brief, Joe Meyer for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
Nathan M. Thomas appeals, challenging one of his two
convictions by a jury—for electronically offering to perform
oral sex upon a police decoy portraying a 14-year-old girl.1 He
first claims that “[rule] 404 evidence”2 of a sexually explicit
online “chat” with another underage woman was admitted for
improper purposes and was unfairly prejudicial. We conclude
that both bases, motive and absence of mistake or accident,
were proper. We also conclude that the district court did not
abuse its discretion in balancing probity and prejudice. Second,
Thomas asserts that his solicitation of “eating you out” was not
sufficient to support the conviction. He is wrong. We affirm.
II. BACKGROUND
Effectively, only one of Thomas’ two convictions is before
us, regarding count 1. The district court admitted the rule 404
evidence only for purposes of that count. And Thomas chal-
lenges the sufficiency of the evidence only as to that count.
Although we note the other charge below in passing, it other-
wise has no bearing on this appeal.
1
See Neb. Rev. Stat. § 28-833 (Reissue 2016) (enticement by electronic
communication device).
2
Brief for appellant at 18. See Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404
(Reissue 2016).
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303 Nebraska R eports
STATE v. THOMAS
Cite as 303 Neb. 964
In the balance of this section, we first summarize the com-
munications with the decoy and the events leading to the arrest
and charges. We then recount the proceedings and evidence
regarding Thomas’ earlier chat with a real 14-year-old girl
employing the username “Wolfgirl 458222” (Wolfgirl)—the
State’s rule 404 evidence. We then briefly summarize the evi-
dence at trial.
1. Decoy
In February 2017, Nicholas Frederick, a Nebraska State
Patrol investigator, conducted an online undercover investiga-
tion for child enticement. Frederick’s online undercover per-
sona was a 14-year-old girl (the decoy). He found an online
advertisement stating that a 20-year-old male was seeking to
perform oral sex on a non-age-specific female. Thomas later
admitted to posting the advertisement, sending messages to
the decoy, and arranging to meet her. We disregard spelling
and grammatical errors in the communications we summa-
rize next.
The decoy, via email, responded to the advertisement, “Hey
just saw ur ad, you up for hanging with someone younger?”
Thomas replied, “Possibly.” The decoy replied “[O]K,” and
Thomas asked, “How old are you? Can I see a pic?” The
decoy answered, “Im 14 almost 15 so don’t want 2 send pic
2 someone I know.” At trial, Frederick clarified that he meant
to say “don’t know.” Thomas asked if the decoy had a par-
ticular p­ hotograph-sharing application. The decoy replied that
she did not but stated that Thomas could send a text message.
The decoy furnished an undercover cell phone number and
informed Thomas of her “name.”
Thomas and the decoy continued their conversation via text
messages. Thomas continued to ask for pictures, which the
decoy declined to send. Thomas asked, “So what do you want
from this?” The decoy answered, “Not real sure. Not lots of
experience talking to people from [online advertisements].”
After each provided a brief self-description, Thomas asked, “If
we did meet up what would you like to happen? Me just eating
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STATE v. THOMAS
Cite as 303 Neb. 964
you out or more?” The decoy replied, “That could start things
and see what we want to do after that unless u think some-
thing else?” Thomas then asked if he should pick her up and
if they could go park somewhere private. The decoy responded
that she would need to be picked up. Thomas asked when she
would want to do it, and the decoy answered, “So u really
want 2? Probably soon cuz need to be home before mom gets
home.” They then discussed an area for the meeting location,
and the decoy stated that she was nervous and wanted to know
what he expected. He replied, “The only thing I want to happen
for now is maybe some kissing and eating you out that’s all.”
After further discussion of a meeting location, the decoy sent
a “pin drop,” indicating a particular location for the meeting.
Thomas said he drove a “gold Camry” and was on his way. The
decoy directed Thomas to a gas station within the pin drop area
as the place to meet.
While Frederick was setting up the location with Thomas,
Frederick briefed other investigators regarding the situation.
Frederick showed them a picture of Thomas, told them that
Thomas would be driving a gold Camry, and requested that
they go to the gas station for surveillance and take Thomas into
custody if he showed up.
Five investigators in plain clothes and unmarked police cars
went to the gas station. Very soon after the officers were in
position, Thomas pulled into a parking spot and the investiga-
tors arrested him. Before returning to the investigative services
center, one investigator seized Thomas’ cell phone from his car.
Later, Thomas consented to a search of his cell phone, waived
his Miranda rights, and made a statement to the police.
In an amended information, the State charged Thomas with
two counts. The first count—the only one relevant on appeal—
was for “Enticement by Electronic Communication Device,” in
violation of § 28-833. The second count charged the offense of
“Child Enticement with Electronic Communication Device,”
in violation of Neb. Rev. Stat. § 28-320.02 (Reissue 2016).
Thomas pled not guilty to both counts.
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303 Nebraska R eports
STATE v. THOMAS
Cite as 303 Neb. 964
2. Wolfgirl Chat Evidence
The State filed a notice of intent to produce evidence of other
crimes, wrongs, or acts pursuant to rule 404. The State’s rule
404 motion asserted that the evidence was intended to show
motive, opportunity, intent, identity, plan or scheme, absence of
mistake or accident, or “some other narrower purpose.”
The district court held a hearing on the rule 404 motion
where the State presented evidence of sexually explicit con-
versations with underage women retrieved from Thomas’ cell
phone. Although only the chat with Wolfgirl is relevant on
appeal, the State made a single argument addressing all of the
purported rule 404 evidence.
The State argued that Thomas’ explicit photographs and
requests for pictures of the underage women’s genitals would
be relevant evidence against an entrapment defense and would
show motive, plan or scheme, or absence of mistake or acci-
dent. The State then specified its reasoning. As to motive, the
conversations would show sexual gratification, and as to plan
or scheme, the conversations would show how he connected
and engaged in sexually explicit contact with underage women.
As to absence of mistake or accident, the conversations would
show that Thomas was predisposed to engage in sexually
explicit conversations with people who are under the age of
15 years.
Thomas argued that the “prejudicial impact of [the Wolfgirl]
evidence outweighs whatever probative value it has.” He also
asserted that the State did not prove by clear and convincing
evidence the true age of the underage women and that the
evidence was not sufficiently similar to the charged conduct.
These other assertions, however, are not argued on appeal.
The district court found that the conversation between
Thomas and Wolfgirl was relevant to the charges. The Wolfgirl
conversation would be admissible, the court concluded, to
show motive or absence of mistake or accident. However, the
court ruled that without clear and convincing evidence that
Wolfgirl was under the age of 16, the evidence would not
be admitted.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. THOMAS
Cite as 303 Neb. 964
After working with police officers in Pittsburg, California,
Nebraska law enforcement confirmed that 14-year-old R.H.,
with whom Thomas had had sexually explicit conversations,
was the owner and creator of Wolfgirl. In separate motions, the
State requested the court to reconsider the rule 404 motion and
to endorse R.H. as an additional witness.
The State argued that Wolfgirl’s testimony would establish
ownership of the Wolfgirl account and that the conversation
would be relevant evidence. Thomas renewed his relevancy
and unfair prejudice arguments to both motions. The court
sustained the motion to endorse and overruled the motion
to reconsider.
Before opening statements commenced at the jury trial,
the State moved to reopen evidence on the rule 404 motion.
The State presented as an exhibit a trial stipulation intended
to eliminate the necessity of calling R.H. to testify regard-
ing foundation for the Wolfgirl conversation. Again, Thomas
asserted that the Wolfgirl conversation was not relevant to
either count and that “to the extent it is relevant, it’s unduly
prejudicial.” The court received the trial stipulation into evi-
dence and found the State had proved by clear and convincing
evidence that Wolfgirl was a child under 16 years of age and
that the evidence was admissible.
The State offered as another exhibit a transcript of the
Wolfgirl conversation, with images. The court asked if counsel
would raise the same rule 404 objections to that exhibit, and
Thomas’ counsel answered, “Yes.” Further, in front of the jury,
the court overruled the objection to the transcript and admitted
it for specified limited purposes. Prior to that admission, the
court gave a limiting instruction, “This evidence is admitted for
the limited purpose of helping you consider matters of motive,
or absence of mistake or accident as they relate to the elements
of the charges contained in Count 1 in this case.”
3. R elevant Evidence at Trial
In addition to the transcript of the Wolfgirl chat, the State’s
trial evidence included the testimony of five witnesses,
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STATE v. THOMAS
Cite as 303 Neb. 964
Thomas’ recorded statement to the police, his jail cell calls
to his brother, his online advertisement, and the conversations
between Thomas and the decoy. We have already summarized
his conversations with the decoy.
Thomas testified in his defense, emphasizing his disbelief
of the decoy’s age and existence. He testified that when the
decoy told him her age, he did not believe her. He related that
he had been in online situations before where women who
were older pretended to be younger and where he had acted
older. Alternatively, he testified that online, one never knows
if the responder is a real person or a “bot” trying “a scam.” He
explained that he asked for pictures to ascertain whether the
person responding was real. He stated that if he had known the
decoy was under age 16, he would not have engaged in any sex
act with her.
The jury found Thomas guilty on both counts. The court
imposed sentences, and Thomas perfected an appeal. We moved
the appeal to our docket.3
III. ASSIGNMENTS OF ERROR
Thomas assigns that the district court erred in admitting the
evidence of the Wolfgirl conversation under rule 404(2) and
that the evidence presented at trial was insufficient to support
a conviction on count 1.
IV. STANDARD OF REVIEW
[1] It is within the discretion of the trial court to determine
relevancy and admissibility of evidence of other wrongs or
acts under rule 404(2), and the trial court’s decision will not be
reversed absent an abuse of discretion.4
[2] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
3
Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
4
State v. Kidder, 299 Neb. 232, 908 N.W.2d 1 (2018).
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Cite as 303 Neb. 964
pass on the credibility of the witnesses, or reweigh the evi-
dence; such matters are for the finder of fact. 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.5
V. ANALYSIS
1. Rule 404 Evidence
Thomas argues that the admission of the Wolfgirl conver-
sation did not inform any element of count 1 and was not
within the relevant limited uses under rule 404(2). Further,
he contends that the irrelevant sexually explicit language and
images in the conversation prejudiced the jury.
[3,4] Rule 404(2) prohibits the admission of other bad
acts evidence for the purpose of demonstrating a person’s
propensity to act in a certain manner. But evidence of other
crimes which is relevant for any purpose other than to show
the actor’s propensity is admissible under rule 404(2).6 Thus,
it may be admissible for such purposes as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.7
[5-7] We must consider whether the evidence of prior bad
acts was admissible for a proper purpose other than pro-
pensity to commit the crimes charged. An appellate court’s
analysis under rule 404(2) considers whether the (1) evi-
dence 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) probative value is substantially
outweighed by its potential for unfair prejudice, and (3)
trial court, if requested, instructed the jury to consider the
evidence only for the limited purpose for which it was
5
State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018).
6
State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
7
See State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).
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admitted.8 Evidence that is offered for a proper purpose is
often referred to as having “special” or “independent” rel-
evance, which means that its relevance does not depend upon
its tendency to show propensity.9 The admissibility of other
crimes evidence under rule 404(2) must be determined upon
the facts of each case and is within the discretion of the
trial court.10
(a) Motive
[8-10] We must consider whether the evidence of prior bad
acts was relevant to show motive other than Thomas’ propen-
sity to commit the crimes charged. Motive is defined as that
which leads or tempts the mind to indulge in a criminal act.11
Motive, even when not an element of the charged crime, is
nevertheless relevant to the State’s proof of the intent element
of the crime.12 Motive qualifies as a legitimate noncharacter
theory because although character carries a connotation of an
enduring general propensity, a motive is a situationally specific
emotion.13 Several Nebraska cases inform our analysis of rule
404(2) evidence admitted to show motive.
In State v. Sanchez,14 the trial court admitted rule 404(2)
evidence of when the defendant had sexually assaulted his
children aged 13 and 5 and of when at 22 years old he sex­ually
assaulted a 14-year-old girl and impregnated her. The State
argued that the other crimes evidence proved motive to obtain
sexual gratification from underage women, because many
adults find it hard to believe that an adult is sexually attracted
to a child. We reasoned that the argument only illustrated that
8
See State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
9
Id.
10
Sanchez, supra note 7.
11
State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012).
12
State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
13
State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).
14
Sanchez, supra note 7.
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under the guise of motive, the State was attempting to prove
propensity. We held that although the State’s conclusion was
logically relevant, it did not articulate a legitimate fact of con-
sequence to the determination of guilt. Therefore, the crimes
did not have independent relevance and were inadmissible as
to motive.
Importantly, intent was not an element of the crime charged
in Sanchez. Because intent was not an element of the crime
charged, we stated intent was not a fact that was of conse-
quence. Then, in discussing motive, we noted our holding in
an earlier case that even if proof of motive is not an element of
a crime, any motive for a crime is relevant to the State’s proof
of the intent element. Because here, intent is an element under
§ 28-833(1), Sanchez leaves open the possibility that motive
could have independent relevance because it would be relevant
to proof of intent.
In State v. Trotter,15 the court admitted evidence of the
defend­ ant’s prior abuse of his ex-wives to show a similar
motive that the defendant used his superior size and strength
to control the behavior of another. We reasoned that the State
improperly attempted to show that because the defendant may
have been motivated to control his ex-wives through his supe-
rior strength, he was likely to use that strength to control some-
one else. In determining that the evidence was inadmissible to
show motive, we reasoned that the focus on the defendant’s
actions rather than his motive was impermissible propensity
evidence. In Trotter, we contrasted the situation with that in
State v. Phelps.16 In Phelps, a defendant was charged with
kidnapping a 9-year-old girl who was never found. We deter-
mined that evidence of six prior acts of sexual contact by the
defendant with young girls showed motive—a sexual motive—
which tended to show that the defendant’s motive for kidnap-
ping was to achieve sexual gratification.
15
State v. Trotter, 262 Neb. 443, 632 N.W.2d 325 (2001).
16
State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
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In State v. Payne-McCoy,17 we stated that intent was not at
issue in the case. We reasoned that prior drug sales to the vic-
tim did not explain the defendant’s motive to sell drugs on the
day of the crime, except to show that the defendant sold drugs
to the victim before and would do it again. We noted that this
type of logic is exactly what is prohibited by rule 404(2). We
determined that the rule 404 evidence of prior drug deals was
inadmissible to prove motive.
In Torres,18 the district court admitted evidence of a prior
kidnapping that showed the defendant’s motive was to restrain,
rob, and kill the victim to obtain money and transportation
to Texas. We stated that intent was not at issue. Turning to
motive, we observed that a person’s prior actions can help to
show motive because of the light they shed on that person’s
state of mind. We explained that there is a fine line between
prior bad acts evidence that goes to propensity and evidence
of the actor’s motive to commit a later crime. We explained
that evidence is not barred just because its relevance could
be characterized as propensity: “[S]o long as the evidence
is also relevant for reasons not based on the defendant’s
character, it is admissible under rule 404(2).”19 We clarified
that “‘propensity’ is meant to refer simply to criminal pro-
pensity, i.e., character,”20 and not to “a specific propensity
to do a particular thing.”21 With regard to motive evidence,
we reasoned:
It can easily be framed as relevant because it shows a
defendant’s “propensity” to commit crimes for a par-
ticular reason, i.e., motive. Someone who has a motive to
commit a crime could also be described as having a “pro-
pensity” to commit the crime. But where the defendant’s
17
Payne-McCoy, supra note 11.
18
Torres, supra note 8.
19
Id. at 158, 812 N.W.2d at 232.
20
Id. at 159, 812 N.W.2d at 233.
21
Id. at 159, 812 N.W.2d at 232.
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motive is particular—in other words, is not based in the
defendant’s character—evidence of prior acts is nonethe-
less admissible to show the defendant’s motive to com-
mit the charged crime because an inference of a crimi-
nal propensity is not required to establish independent
relevance.22
There, we agreed with the district court that the prior kid-
napping was independently relevant to show the defendant’s
motive, to obtain money and transportation to Texas.
We are also persuaded by cases from the Seventh Circuit.
In U.S. v. Zahursky,23 the defendant challenged admission of
prior chats with others, claiming that they “gave unnecessary,
shocking, repulsive and sexually explicit details.” The Seventh
Circuit quoted an earlier case stating that “‘[p]rior instances of
sexual misconduct with a child victim may establish a defend­
ant’s sexual interest in children and thereby serve as evidence
of the defendant’s motive to commit a charged offense involv-
ing the sexual exploitation of children.’”24 It reasoned that in
earlier chats with different individuals, the defendant admitted
to having sex with a 14-year-old or having a sexual interest in
14-year-old girls. The court stated that the defendant’s “admis-
sion to having had sex with a fourteen-year-old and the sex­
ually explicit nature of the [earlier] chats make them probative
as to his intent and motive in chatting with [the victim in the
instant case] and then meeting her . . . .”25
In U.S. v. Chambers,26 the defendant objected to admission
of his chat with a special agent posing as a minor, arguing that
it merely demonstrated his propensity to entice minors. But
the Seventh Circuit determined that the chat was admissible to
show motive and intent.
22
Id. at 159-60, 812 N.W.2d at 233 (emphasis in original).
23
U.S. v. Zahursky, 580 F.3d 515, 524 (7th Cir. 2009).
24
Id., quoting U.S. v. Sebolt, 460 F.3d 910 (7th Cir. 2006).
25
Id.
26
U.S. v. Chambers, 642 F.3d 588 (7th Cir. 2011).
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STATE v. THOMAS
Cite as 303 Neb. 964
Here, the court admitted the Wolfgirl conversation for the
purpose of showing motive to commit the charged offense.
As noted above, motive is relevant to the State’s proof of the
intent element of the crime.27 And intent was at issue—whether
Thomas “knowingly and intentionally utilize[d] an electronic
communication device to contact . . . a peace officer who is
believed by [Thomas] to be a child under sixteen years of
age.”28 Evidence that Thomas carried on a sexually explicit
chat with a 13-year-old girl is probative as to his motive in
texting with the decoy, purportedly a 14-year-old girl, and
arranging to meet her. We conclude the district court did not
abuse its discretion in admitting the Wolfgirl conversation to
show motive.
(b) Absence of Mistake or Accident
Next, we must consider whether the district court properly
admitted the evidence of the prior bad acts to show absence
of mistake or accident. In Trotter,29 we discussed when prior
bad acts are relevant to show absence of mistake or accident in
child abuse cases. Where a defendant does not raise accident
or mistake as to how the victim was injured, the evidence is
inadmissible for that purpose. We reasoned that the evidence
of spousal abuse did not negate the claim of accident in the
child abuse case, because the State proffered the evidence to
show the propensity of someone who abused people in general.
The evidence was inadmissible as to absence of mistake or
accident.
Here, the court also admitted the evidence of the Wolfgirl
conversation to show absence of mistake or accident. Under
§ 28-833, a defendant can be found guilty of the crime when
he or she communicates with a peace officer whom he or she
believed to be a child under the age of 16. Here, the State was
27
Collins, supra note 12.
28
See § 28-833(1).
29
Trotter, supra note 15.
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required to prove that Thomas believed the decoy was a child
under 16 years of age. It could do so by presenting direct evi-
dence of Thomas’ belief or, inversely, by presenting evidence
that there was an absence of mistake as to his belief of the age
of the decoy. Therefore, the belief or absence of mistake of
belief as to the decoy’s age was a relevant issue in the case.30
One of the dissents makes a distinction between the two
types of recipients under § 28-833, but we disagree that the
distinction is of consequence. The evil that the statute is aimed
at is stopping individuals 19 years of age or over from know-
ingly and intentionally using an electronic communication
device to transmit inappropriate material to a child under 16
years of age. Whether the inappropriate material is directed to
an actual child or to a person that the transmitter believes to
be a child is of little importance. To be guilty, the transmitter
must know that the child is under age 16 (for an actual child)
or believe the recipient is a child under age 16 (for a decoy).
Undoubtedly, a common defense in such prosecutions is that
the transmitter did not know (for an actual child) or believe (for
a decoy) that the recipient was a child under age 16. In such
a situation, the State would want to show that the transmitter
was not mistaken (absence of mistake) about the recipient’s
age, i.e., that the transmitter intended (absence of accident) to
transmit inappropriate material to a child under age 16.
Because the belief of the age of the decoy was relevant, we
must determine if the Wolfgirl conversation had independent
relevance. In order to show that Thomas did not have a mis-
taken belief as to the age of the decoy, the State presented evi-
dence of other instances of Thomas’ belief or absence of mis-
take. The Wolfgirl chat evidence contained direct statements
by the victim that she was 13 years old and showed Thomas’
nonchalance to her age. The conversation between Thomas and
the decoy was similar, because the decoy expressly stated she
was 14 years old and Thomas continued with the conversation
30
See Sanchez, supra note 7.
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unaffected. In both instances, Thomas never questioned the
recipient’s statement of age or, in any way, was led to believe
that she was of a different age.
The Wolfgirl evidence negated the defense that Thomas did
not believe the decoy was her claimed age. Such evidence tends
to show that Thomas did not mistakenly believe he was chat-
ting with an adult; instead, he targeted minors. Even though
the Wolfgirl chat was between Thomas and a child under 16
years of age rather than a peace officer pretending to be a child
under 16 years of age, the evidence offered the same probative
nature as to Thomas’ belief of the recipient’s explicitly stated
age. The evidence shows not Thomas’ general propensity to
talk to underage women, but, rather, that there was no mistake
regarding Thomas’ knowledge of the recipient’s age. Similarly,
in Zahursky,31 the Seventh Circuit stated that “[t]he revelations
of the girls’ ages in the chats make the chat evidence probative
as to [the defendant’s] knowledge and absence of mistake” as
to the recipients’ ages. The Wolfgirl evidence was indepen-
dently relevant. Therefore, we find no abuse of discretion by
the district court in determining the evidence was relevant to
show absence of mistake or accident.
(c) Probative Value Versus
Unfair Prejudice
[11] Having found no abuse of discretion by the district
court in determining that the Wolfgirl conversation was rel-
evant for the specified limited purposes, we must also review
for abuse of discretion the court’s balancing of unfair prejudice
against probative value. Evidence that is admissible under rule
404(2) may be excluded under Neb. R. Evid. 403, Neb. Rev.
Stat. § 27-403 (Reissue 2016), if its probative value is substan-
tially outweighed by the danger of unfair prejudice.32 As the
rule plainly states, only when the danger of unfair prejudice
31
Zahursky, supra note 23, 580 F.3d at 524.
32
Payne-McCoy, supra note 11.
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substantially outweighs the evidence’s probative value does
rule 403 counsel exclusion. And again, we emphasize that we
review the decision only for an abuse of discretion.
[12-14] The probative value of evidence involves a measure-
ment of the degree to which the evidence persuades the trier of
fact that the particular fact exists and the distance of the fact
from the ultimate issue of the case.33 Most, if not all, evidence
offered by a party is calculated to be prejudicial to the oppos-
ing party.34 Only evidence tending to suggest a decision on an
improper basis is unfairly prejudicial.35 Balancing the proba-
tive value of evidence against the danger of unfair prejudice
is within the discretion of the trial court, whose decision we
will not reverse unless there is an abuse of discretion.36 The
district court found that the probative value of the Wolfgirl
conversation was not substantially outweighed by the danger
of unfair prejudice.
(i) Redaction Not Raised or Preserved
One of the dissenting opinions seems to suggest that the
exhibit should have been redacted, but neither of its sugges-
tions is properly before us.
[15] Although that dissent first argues that the images should
have been redacted, Thomas did not raise the issue on appeal.
Before the district court, Thomas, in a summary fashion,
did request redaction of the images. There, he preserved the
issue.37 But on appeal, he simply does not raise redaction of
the images. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error to be considered by an appellate court.38 His assignment
33
Id.
34
Id.
35
Id.
36
State v. Oldson, supra note 13.
37
See State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).
38
State v. Munoz, ante p. 69, 927 N.W.2d 25 (2019).
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asserted that the district court erred “in admitting evidence of
the Wolfgirl chat under Evidence Rule 404.” The assignment
does not mention either redaction or rule 403. While his argu-
ment does discuss rule 403, it does so only in the context of the
entire exhibit. He does not argue that the images should have
been redacted. Thus, with respect to the images, Thomas has
placed the issue before us on an “all or nothing” basis.
That dissent also suggests that several pages of the exhibit
“would have accomplished the State’s needs.” But Thomas
never sought redaction of part of the text. And he had the bur-
den of doing so.
[16,17] Even if there are inadmissible parts within an exhibit,
an objection to an exhibit as a whole is properly overruled
where a part of the exhibit is admissible.39 A learned treatise
explains:
Suppose that evidence sought to be introduced consists of
several statements or items tendered as a unit in a deposi-
tion, letter, conversation, or trial transcript. Assume that
the opponent objects to the whole of the evidence when
some parts are subject to the objection made but other
parts are not. In this situation, the judge does not err by
overruling the objection. It is not the judge’s responsibil-
ity to sever the bad parts if some are good. That is the
opponent’s burden.40
39
Huston, supra note 37. See, also, State v. Merrill, 252 Neb. 736, 566
N.W.2d 742 (1997) (affirming admission of photograph album when 2 of
32 photographs were admissible).
40
1 McCormick on Evidence § 52 at 362 (Kenneth S. Broun et al. eds., 7th
ed. 2013 & Supp. 2016). See, also, Foster v. S.C.D.H.P.T., 306 S.C. 519,
413 S.E.2d 31 (1992) (defendant’s letter was admissible when defendant
objected to entirety of letter rather than specific portions that were
inadmissible); State v. Graham, 641 S.W.2d 102 (Mo. 1982) (business
records exception does not make all parts admissible; portions can be
excluded if specific objections are made); Speier v. Webster College, 616
S.W.2d 617 (Tex. 1981) (summary evidence of witnesses testimony is
admissible unless specific objection is made to inadmissible portions).
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Thus, to the extent the dissent suggests that redaction of part of
the text of the Wolfgirl chat should have occurred (apparently
on the district court’s own initiative), it would reverse the dis-
trict court on an issue not raised before that court. But that is
not our function. An appellate court will not consider an issue
on appeal that was not presented to or passed upon by the trial
court.41 Because redaction of part of the text was not raised
below, we cannot consider it here.
That dissent also discusses the concept of plain error,
although it is not clear that it does so with respect to redaction.
Neither of the cited cases involved rule 403 balancing or sua
sponte redaction of an exhibit. Thus, we read the dissent’s plain
error discussion as an expression of its level of concern regard-
ing the issue that is properly before us.
In other words, this leaves us where Thomas chose to
place us—considering only the exhibit as a whole. We must
determine whether the district court abused its discretion in
determining that the unfair prejudice of the Wolfgirl chat evi-
dence, in its entirety, did not substantially outweigh its proba-
tive value.
(ii) Balancing
The Wolfgirl conversation was highly probative to show
motive and absence of mistake or accident as to the decoy’s
age. That 50-page conversation, containing sexually explicit
photographs and language, certainly was prejudicial to Thomas.
However, there were striking similarities between the Wolfgirl
conversation and the charged offense. In both instances,
Thomas asked about the recipient’s age; when he learned she
was underage, he persisted. In the remaining conversation, he
ignored her signals that she was, in fact, underage. He sought
pictures of both recipients, and in pursuit of his sexual gratifi-
cation, he disregarded the respective assertions of age. The pro-
bative value of the conversation to show motive and absence of
mistake or accident went to the heart of Thomas’ defense.
41
Huston, supra note 37.
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Was the content of the Wolfgirl conversation so unfairly
prejudicial that it substantially outweighed the high probative
value? We conclude that it did not. In Chambers, the Seventh
Circuit discussed the federal equivalent of the rule 403 bal-
ancing test as to several conversations with victims and the
defendant and stated, “Sexual abuse of a child or the attempt
thereof is a disgusting crime and any evidence of it is no doubt
unfavorable to the defendant, but here it was not unfairly
prejudicial.”42 Several other circuits have held that admitting
several sexually explicit images introduced as rule 404(2) evi-
dence is not unfairly prejudicial.43 We agree with the federal
courts that although the evidence was highly prejudicial in its
nature, it was not unfairly prejudicial. And to the extent one of
the dissenting opinions seems to suggest that the federal cases
on rule 403 balancing are inconsistent with our own precedent,
we disagree. We see no meaningful difference between the
text of rule 403 and that of the equivalent federal rule. Nor
do we see any difference in the standards articulated by courts
applying these rules.
Thus, in light of the statutory text, our precedent applying it,
and federal cases doing likewise with a nearly identical federal
rule, we cannot say that the district court abused its discretion
in determining that the probative value of the Wolfgirl evi-
dence outweighed its prejudicial value.
Before moving to the next issue, we note that a casual reader
might misinterpret references to the length of the exhibit as 50
“page[s].” We should emphasize that each “page” is a screen-
shot of the conversation and images displayed on the limited
42
Chambers, supra note 26, 642 F.3d at 596.
43
See, also, U.S. v. Wallace, 607 Fed. Appx. 25 (2d Cir. 2015) (admitting
magazine cover of women dressed as young girls to show sexual interest in
young girls and admitting files depicting bestiality and adult pornography
account to show identity); U.S. v. Keith, 440 Fed. Appx. 503 (7th Cir.
2011) (showing jury 32 uncharged images of child pornography); U.S.
v. Sumner, 522 Fed. Appx. 806 (11th Cir. 2013) (admitting 85 sexually
suggestive photographs to show intent).
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space of a cell phone’s screen. And three of those pages dis-
play only a “Failed to Load” message. So, while the number of
words on such a page varies considerably, the other 47 pages
of the exhibit total about 2,529 words—or an average of only
about 53 words per page.
(d) Limiting Instruction
The court instructed the jury to consider the evidence of
the Wolfgirl conversation for the limited purpose of motive
and absence of mistake or accident as to the elements of
count 1. Before the jury heard any of the evidence concerning
the Wolfgirl conversation, the court instructed the jury on the
limiting instruction. Thomas did not raise an issue with the
limiting instruction on appeal.
2. Sufficiency of Evidence
The crime of enticement by electronic communication
device, in relevant part, consists of the following:
A person commits the offense of enticement by electronic
communication device if he or she is nineteen years of
age or over and knowingly and intentionally utilizes an
electronic communication device to contact a child under
sixteen years of age or a peace officer who is believed by
such person to be a child under sixteen years of age and
in so doing:
(a) Uses or transmits any indecent, lewd, lascivious, or
obscene language, writing, or sound [or]
....
(c) Offers or solicits any indecent, lewd, or lascivi-
ous act.44
Thomas argues that “[t]he sole use of the words ‘to kiss or
eat you out’ cannot be . . . lewd, lascivious or obscene . . .” as
a matter of law.45 He contends that these words do not conjure
44
§ 28-833(1).
45
Brief for appellant at 20.
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up repugnant sexual images. Thomas does not contend that the
evidence was insufficient to support a conviction on count 1
for the remaining elements of the crime. Therefore, we address
the sufficiency of the evidence only as to whether his writing
or solicitation was “indecent, lewd, lascivious, or obscene,” in
violation of § 28-833.
Case law instructs us that the term of art “indecent, lewd,
lascivious, or obscene,” when used by the Legislature, is a
context-based question of fact. In State v. Kass,46 we analyzed
a constitutional challenge to the same language. We identified
the rule from State v. Kipf 47 as the clear line to apply to nar-
row the reach of “indecent, lewd, lascivious, or obscene” in
§ 28-833. We held in Kipf that “the phrase in question is the
use of language which conjures up repugnant sexual images.”48
We further explained that the context of the language aids to
determine whether the language is repugnant or not. There,
we reasoned that coitus between two consenting adults as an
expression of love is not repugnant and does not conjure up
repugnant images. However, we further reasoned that coitus
performed as violence is repugnant, as much as it is criminal.
Moreover, because of the known or unknown identity of the
other actual or would-be participant, an otherwise natural and
fulfilling sexual act could be repugnant.49
In this case, the context of the sexual language conjured
repugnant sexual images when exchanged between an adult
and a 14-year-old child. Although Thomas’ language, if aimed
to a consenting adult, would not conjure up repugnant sexual
images, here it was addressed to a person claiming to be 14
years old. As we said in Kipf, the known identity of the other
would-be participant can turn an otherwise natural sexual act
repugnant. Viewing the foregoing in the light most favorable
46
State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).
47
State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990).
48
Id. at 235, 450 N.W.2d at 405.
49
See Kipf, supra note 47.
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to the prosecution, any rational trier of fact could have found
that the solicitation in writing or otherwise by an adult to
perform oral sex on a person whom the adult believed to be a
14-year-old child would conjure up repugnant sexual images.
Therefore, there was sufficient evidence for the jury to find
that Thomas used or transmitted indecent, lewd, lascivious, or
obscene writing or offered or solicited any indecent, lewd, or
lascivious act.
VI. CONCLUSION
We conclude that the district court did not abuse its dis-
cretion in admitting the rule 404 evidence of the Wolfgirl
conversation as to motive and absence of mistake or accident.
The evidence was sufficient for a jury to find the writing
or solicitation “indecent, lewd, lascivious, or obscene” to
support the conviction. We affirm the judgment of the dis-
trict court.
A ffirmed.
Heavican, C.J., dissenting.
I respectfully dissent. In my view, the majority in this case
underestimated the danger of unfair prejudice resulting from
the admission of the entirety of exhibit 11, otherwise referred
to as the “Wolfgirl evidence.” The majority suggests that
Thomas failed to both specifically assign and argue for redac-
tion of the unfairly prejudicial photographs and failed to assign
and argue alternatively that the court should have allowed only
the relevant portions of the Wolfgirl evidence. As a result, the
majority contends that we cannot review such error. I respect-
fully disagree and suggest that our analysis of the Wolfgirl
evidence involves a review of the district court’s decision for
plain error.
Where a party fails to comply with the court rules requir-
ing a separate section setting forth the assignments of error, an
appellate court may proceed as though the party failed to file
a brief entirely or, alternatively, may examine the proceedings
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for plain error.1 The decision to proceed on plain error is at the
discretion of the appellate court.2 Plain error is error plainly
evident from the record and of such a nature that to leave it
uncorrected would result in damage to the integrity, reputation,
or fairness of the judicial process.3
In this case, the fairness of the judicial process is called into
question by the introduction of unfairly prejudicial material,
such as photographs of Thomas’ genitalia, that bears little rel-
evance to the instant case. Therefore, a review for plain error
is not only appropriate, but necessary. With our judicial role as
an appellate court clearly defined, and our standard of review
in mind, we turn to the facts of this case.
For purposes of this dissent, only a brief review of the
facts is needed. Thomas placed an online advertisement seek-
ing to perform oral sex on a female (no age specified). A
law enforcement officer, representing himself electronically
as a decoy 14-year-old girl, responded to the advertisement
and asked if Thomas would be interested in “hanging with
someone younger.” After learning the purported age of the
decoy, Thomas asked, “If we did meet up what would you
like to happen? Me just eating you out or more?” Thomas
ultimately pursued a plan to meet the decoy; upon arriving at
the planned meeting place, Thomas was instead met by law
enforcement officers.
Following Thomas’ arrest, he permitted law enforcement to
search his cellular telephone. During the course of the search,
investigators located another sexually explicit conversation
that Thomas had engaged in, with an underage female identi-
fied herein by the name “Wolfgirl.” At trial, the State sought to
produce the Wolfgirl evidence pursuant to Neb. Evid. R. 404,
Neb. Rev. Stat. § 27-404 (Reissue 2016), to show “motive,
1
See In re Interest of Justine J. & Sylissa J., 288 Neb. 607, 849 N.W.2d 509
(2014).
2
Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014).
3
Id.
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opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.”
Thomas was charged with two counts. Count 1 alleged a
violation of Neb. Rev. Stat. § 28-833 (Reissue 2016) (entice-
ment by electronic communication device), and count 2 alleged
a violation of Neb. Rev. Stat. § 28-320.02 (Reissue 2016) (use
of electronic communication device to knowingly entice to
engage in illegal sex act). The district court rejected Thomas’
argument that the text messages with Wolfgirl lacked relevance
and were unfairly prejudicial. The court concluded that the
Wolfgirl conversation, ultimately entered as exhibit 11, would
be admissible to show motive or absence of mistake or acci-
dent, but only as to count 1.
I concur with the majority’s conclusion that the evidence
was admissible under rule 404 to show motive or absence of
mistake. But I take issue with the majority’s determination that
entering the entirety of exhibit 11 could survive scrutiny under
Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016).
Rule 403 states, “Although relevant, evidence may be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.” In
my opinion, most of exhibit 11 was a “needless presentation
of cumulative evidence” and its “probative value [was] sub-
stantially outweighed by the danger of unfair prejudice [and]
confusion of the issues.”
CUMULATIVE EVIDENCE
The State presented evidence that Thomas was 19 years
of age or older, and it entered two exhibits each consist-
ing of two pages of text messages between Thomas and the
decoy. Combined with the testimony of law enforcement offi-
cers, that evidence was all that was needed for a reasonable
juror to reach the conclusion that Thomas had violated either
§ 28-833 or § 28-320.02 or both. However, the State sought
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and was granted permission to introduce the uncharged
Wolfgirl evidence.
In both quantity (compared to the two two-page exhibits)
and substance, the 50 pages of exhibit 11 dwarf the State’s
direct evidence in this case. Exhibit 11 is laced with sexually
explicit content, much of which is set out in detail in Justice
Miller-Lerman’s dissent. It is intermixed with still images of
Thomas’ genitalia. The images are unmistakably stamped with
“play” button icons, indicating the images are merely stills
from videos.
The images were not made available to the trial court judge
until immediately before trial. The State admitted that the
­videos behind the images would rise to the level of a danger of
unfair prejudice, but argued that the still images themselves did
not. But the images with the play button icon affixed thereon
left to the imagination of each juror further graphic, indecent,
and repugnant behavior. The images were needlessly cumula-
tive and can best be described as overkill (and unfairly preju-
dicial as noted below).
Further, the text of exhibit 11 in its entirety contains more
than one example of Thomas’ referencing sexual gratifica-
tion, as well as a lengthy discussion of Wolfgirl’s fantasy life.
Wolfgirl’s fantasy life is arguably lacking in any relevance to
either count and is again needlessly cumulative.
DANGER OF UNFAIR PREJUDICE
In its rule 403 balancing, the majority relies on U.S. v.
Chambers,4 a case from the U.S. Court of Appeals for the
Seventh Circuit. As the majority notes, in Chambers, the
Seventh Circuit said, “Sexual abuse of a child or the attempt
thereof is a disgusting crime and any evidence of it is no doubt
unfavorable to the defendant, but here it was not unfairly
prejudicial.”5 I agree with the Seventh Circuit’s sentiments as a
4
U.S. v. Chambers, 642 F.3d 588 (7th Cir. 2011).
5
Id. at 596.
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general proposition and note that by the court’s very language,
prejudice is determined on a case-by-case analysis. Beyond
that, the majority’s reliance on the persuasive authority of the
federal circuit courts of appeal is misplaced, as we have bind-
ing authority and a clear balancing test.6
In State v. Kirksey,7 we discussed the balancing test required
when a court is faced with unfairly prejudicial evidence of
prior acts. We held that the district court committed prejudi-
cial error during a murder trial when it admitted evidence of a
previous homicide for which the defendant had been acquitted.
Kirksey sets out the following balancing test for a rule 403
review by an appellate court:
In reviewing trial court rulings which have admitted
evidence of other crimes, an appellate court considers
“(1) whether the evidence was relevant, (2) whether the
evidence had a proper purpose, (3) whether the probative
value of the evidence outweighed its potential for unfair
prejudice, and (4) whether the trial court, if requested,
instructed the jury to consider the evidence only for the
purpose for which it was admitted.”8
Relevancy.
The State argued that Thomas’ conversations with Wolfgirl
were “for sexual gratification purposes and that . . . goes to the
relevance of it which is the motive, [or] absence of mistake or
accident.” The State further argued that the Wolfgirl evidence
was “relevant both for Counts 1 and 2 in their entirety.”
The district court apparently agreed with the State’s the-
ory of motive (sexual gratification), but only as to count 1,
§ 28-833. Justice Miller-Lerman argues, in her dissent as to
motive, that the State added an element to § 28-833 that clearly
does not exist. She goes on to note, however, that the Wolfgirl
6
See State v. Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998).
7
Id.
8
Id. at 179, 575 N.W.2d at 390.
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evidence could have been relevant to count 2, § 28-320.02. I
agree that the relevance of motive for the purpose of § 28-833
is more attenuated than the relevance of motive for the purpose
of § 28-320.02.
In any event, motive for either or both § 28-833 and
§ 28-320.02 could have been demonstrated by introducing an
edited version of exhibit 11. Several pages of text (for exam-
ple, the January 15, 2017, texts exchanged from 9:50 to 10:25
p.m.) demonstrating the real age of Wolfgirl, Thomas’ seeking
photographs of Wolfgirl, and his interest in sexual gratification
would have accomplished the State’s needs.
The majority contends that admission of the whole exhibit is
proper where one part of the exhibit is admissible. However, I
do not believe that State v. Huston 9 or State v. Merrill 10 stands,
or should stand, for the proposition that unfairly prejudicial
evidence should be admitted over the protections of rule 403
because some minor interconnected piece of the nonprejudi-
cial evidence is admissible. Such a holding would cut against
the protections of rule 403 and render the protection void
altogether.
Proper Purpose and Unfair Prejudice.
As Justice Miller-Lerman explains in her dissent, while
a demonstration of motive is a proper purpose, the proba-
tive value of the entirety of exhibit 11 was outweighed by
its danger of unfair prejudice. As discussed above, exhibit 11
overwhelmed the direct evidence in this case. The evidence in
exhibit 11 is more indecent, more lewd, more lascivious, and
more obscene than the direct evidence of the charged crimes,
and it is a communication with an actual 13-year-old girl. In
my opinion, exhibit 11 made it highly likely that the jury was
really finding Thomas guilty of the uncharged Wolfgirl crimes,
as well as the two counts at issue.
9
State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).
10
State v. Merrill, 252 Neb. 736, 566 N.W.2d 742 (1997).
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Jury Instructions.
The fourth element of the Kirksey balancing test is “‘whether
the trial court, if requested, instructed the jury to consider the
evidence only for the purpose for which it was admitted.’”11
In this case, the trial court did give the jury such an instruc-
tion. But, as in Kirksey, “[w]here the probative value of evi-
dence is outweighed by its potential for unfair prejudice, its
admission is error even if an appropriate limiting instruction
is given.”12
DANGER OF CONFUSION
OF ISSUES
Because there were two counts in this case, in its instruc-
tions to the jury, the trial court, by necessity, needed to dis-
tinguish between count 1 and count 2 by pointing out that the
Wolfgirl evidence was to be used only for the limited purpose
of showing motive and absence of mistake, and only as to
count 1. Our case law is clear that jurors are presumed to have
followed instructions: “Absent evidence to the contrary, it is
presumed that a jury followed the instructions given in arriving
at its verdict.”13
But admitting evidence that is not direct evidence of the
charged counts, and is used for the purpose of one count but
not another, requires the court to give complicated and elabo-
rate jury instructions that further risk the probative value’s
being substantially outweighed by the danger of confusion of
the issues by the jury. Because there are two counts in this
case, the danger of jury confusion is considerably increased
when coupled with the danger of unfair prejudice and the
cumulative nature of exhibit 11.
That confusion is demonstrated by the questions asked by the
jury in this case and the court’s responses to those questions:
11
See State v. Kirksey, supra note 6, 254 Neb. at 179, 575 N.W.2d at 390.
12
Id. at 181, 575 N.W.2d at 391.
13
State v. Lester, 295 Neb. 878, 899, 898 N.W.2d 299, 316 (2017).
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Question #1
May we request and get transcripts of the interview of
. . . Thomas by [law enforcement]?
Answer to Question #1
There will be no transcripts provided.
....
Question #2
Does Count 2 hinge on the guilt of Count 1?
Answer to Question #2
Please refer to paragraph B of Instruction Number 4.
Question #3
What happens if we can’t come to a unanimous verdict
on Count 1, Count 2 or both?
Answer to Question #3
You are instructed to continue your deliberations.
(Emphasis omitted.)
Likewise, the State’s closing argument appears to blur the
distinction between the direct evidence of the charged crimes
(dialogue with law enforcement agent pretending to be juvenile
14 years old or younger) and the uncharged exhibit 11 evi-
dence (dialogue with actual 13-year-old), hence adding to the
confusion of issues.
CONCLUSION
Had the Wolfgirl evidence been given to the jury without
the images included, or more ideally had only a page or two
of the Wolfgirl transcripts been admitted, I would join the
majority’s opinion. But that is not what happened in this
case. In my opinion, the district court did not just abuse its
discretion, it committed plain error in admitting exhibit 11 in
its entirety.
As admitted, exhibit 11’s probative value was substantially
outweighed by the danger of unfair prejudice, it was mislead-
ing to the jury, and it was needlessly cumulative. Indeed, if a
more careful parsing of the rule 404 evidence in this case is
not required, rule 403 becomes largely meaningless. I would
reverse, and remand.
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Miller-Lerman, J., dissenting.
I respectfully dissent.
In my view, exhibit 11 was not admitted into evidence for a
proper purpose, and even if it was admissible, it should have
been excluded because “its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury.” Neb. Evid. R. 403, Neb. Rev.
Stat. § 27-403 (Reissue 2016). Exhibit 11 is a textbook exam-
ple of propensity evidence, which should not have been admit-
ted as to count 1 and resulted in unfair prejudice. Its obvious
effect was to poison the jurors against Thomas and distract
them from their real task of weighing solely the evidence of the
crime charged in count 1 in this case. Although Thomas would
remain convicted of count 2, I would reverse, and remand for
a new trial on count 1.
Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404(2) (Reissue
2016), provides in part that “[e]vidence of other crimes, wrongs
or acts is not admissible to prove the character of a person in
order to show that he or she acted in conformity therewith.”
This is commonly referred to as “propensity evidence.” We
have previously noted that “propensity evidence may lead a
jury to convict, not because the jury is certain the defendant
is guilty of the charged crime, but because it has determined
the defendant is ‘“a bad person [who] deserves punishment,”’
whether or not the crime was proved beyond a reasonable
doubt.” State v. Oldson, 293 Neb. 718, 744-45, 884 N.W.2d 10,
37 (2016).
We have observed:
The admission of other acts evidence presents a special
danger of confusion of the issues and undue prejudice.
Not only might the jury infer action based on the defend­
ant’s general lawbreaking character, but the jury might
subconsciously penalize the defendant for the proven
misdeeds. In other words, such evidence of other acts
might encourage a “preventive conviction even if [the
defendant] should happen to be innocent momentarily.”
Id. at 746-47, 884 N.W.2d at 39.
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The hazard of admitting propensity evidence is that it results
in unfair prejudice.
Unfair prejudice means an undue tendency to suggest
a decision based on an improper basis. Unfair preju-
dice speaks to the capacity of some concededly relevant
evidence to lure the fact finder into declaring guilt on
a ground different from proof specific to the offense
charged, commonly on an emotional basis. When con-
sidering whether evidence of other acts is unfairly preju-
dicial, we consider whether the evidence tends to make
conviction of the defendant more probable for an incor-
rect reason.
Id. at 751-52, 884 N.W.2d at 41-42.
Count 1 alleges a violation of Neb. Rev. Stat. § 28-833(1)
(Reissue 2016), which generally prohibits use of an electronic
device to transmit indecent language or visual depictions of
sexually explicit conduct or to solicit a lewd act by an indi-
vidual over 19 years of age addressed to a child under 16
years of age or a police officer believed to be such a child. It
is undisputed that the police officer, posing as an underage girl
named “Logan,” texted Thomas, age 20, “Im 14 almost 15,”
and Thomas sent messages to “Logan.”
The two text messages at issue in count 1 consisted of no
graphics and contained these words in their entirety: (1) “If we
did meet up what would you like to happen? Me just eating
you out or more?” and (2) “The only thing I want to happen
for now is maybe some kissing and eating you out that’s all.”
Perhaps lacking confidence in its case, the State offered
and the court received exhibit 11 as to count 1. Exhibit 11
reflects an entirely different uncharged matter consisting of
50 pages of photographs and text messages exchanged in a
chat room between Thomas and a 13-year-old girl, who went
by the name “Wolfgirl.” The court found the “Wolfgirl” evi-
dence inadmissible as to count 2, presumably because count 2
required a finding that Thomas intended to engage in criminal
sexual activity with “Logan,” and there is no indication in the
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“Wolfgirl” evidence that Thomas was trying to actually meet
with or engage in sexual activity with “Wolfgirl.”
With apologies to the reader, and because the majority
merely describes it as a “50-page conversation, containing sex-
ually explicit photographs and language,” a sample of exhibit
11 must be briefly described to illustrate how its “probative
value” was substantially outweighed by its unfair prejudice and
how it confused the issues and, I believe, mislead the jury to
convict Thomas of count 1 on an improper basis.
The direct relevant evidence of count 1 consisted of the two
“eating you out” statements quoted above, whereas exhibit 11
was voluminous—50 pages of text messages and graphics.
The graphics include no less than half a dozen photographs of
penises, a scrotum, a man and woman engaged in sexual inter-
course, girls in bikini swimsuits, and a cartoon penis telling a
joke. A small sample of the text in merely the first dozen pages
of the 50 pages of exhibit 11 includes the following:
• “[W]hat turns you on[?]”
• “I’d love to pic [sic] you up and pound deep into your pussy
as I kiss you[.]”
• “Would you like to see how excited my cock is for that?”
• “Mmm all seven inches ready to pound into you[.]”
• “Grinds against your ass and smacks it as I lean forward my
cock head rubbing up and down your slit as I kiss and nibble
on your neck my hands tweaking your nipples[.]”
• “I use you[r] hair as a handle and pound into you rubbing
your clit[.]”
• “[A]re you close to cumming for daddy[?]”
• “Mmm slowly working my thumbs into you[r] ass as I pound
into you slowly spreading it and then fingering it as I smack
and massage your ass[.]”
• “Slowly kiss my way down to your pussy and then slowly
start to lick up the juices leaking from your pussy[.]”
The texts after page 12 up to page 50 are similar. However,
the later portions of exhibit 11 contain an exchange of texts
describing a fantasy in which Thomas and Wolfgirl pretend
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to be wolves, mate, and produce offspring and Thomas’ wolf
character has sex with his young wolf daughter.
Exhibit 11, the unrelated chat room exchange with an actual
girl, was obviously intended to inflame the jury and show
that Thomas was a “bad person” with a propensity to commit
crimes, see rule 404, so he must be guilty in this case. Why
else submit 50 pages of graphic sexual material to establish the
undisputed fact that Thomas sent two texts to a decoy saying
“eating you out”? When it comes to influence, a picture from
an unrelated matter is worth a thousand words.
I do not agree with the majority that the exhibit was admis-
sible for a proper purpose. I am puzzled how the majority
could reach the conclusion that exhibit 11 was admissible
consistent with evidentiary jurisprudence regarding “motive”
and “absence of mistake” under rule 404(2), not to mention
minimum due process.
I believe the Wolfgirl material was not admissible as to
count 1 to show motive. I do not think the Seventh Circuit
cases relied on by the majority are persuasive in this case,
because those cases involved charges that were more simi-
lar to count 2 in this case and required a showing that the
defendant communicated with the decoy with the motive of
engaging in criminal sexual activity with an underage person.
Thus, the fact that the defendant had previously engaged in
sex with a 14-year-old girl, U.S. v. Zahursky, 580 F.3d 515
(7th Cir. 2009), or had sex with his ex-girlfriend’s 14-year-
old child, U.S. Chambers, 642 F.3d 588 (7th Cir. 2011), could
show motive to engage in criminal sexual conduct such as was
charged in count 2 herein. But the same type of motive does
not apply to count 1, which is the only charge to which the
court admitted exhibit 11 in this case.
Also with regard to motive as a proper purpose for admis-
sion of the Wolfgirl evidence, I think that relying on motive
as a proper purpose in a prosecution based on § 28-833 inad-
vertently adds an element to the charge that is not required
under the statute. As I read § 28-833, it requires a showing that
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the defendant knowingly and intentionally communicated with
either a person the defendant knew to be an underage person or
a decoy the defendant believed to be an underage person and
that the content of the communication was of one of the types
listed in the statute. As charged in count 1 in the present case,
the communication needed to be one that either “use[d] . . .
indecent, lewd, lascivious, or obscene language” or “offer[ed]
or solicit[ed] any indecent, lewd, or lascivious act.” Nothing in
the statute requires a determination of the defendant’s purpose
or motive in making such a communication. This is in con-
trast to other statutes defining sex offenses, such as offenses
requiring a finding of “[s]exual contact,” which is defined in
Neb. Rev. Stat. § 28-318(5) (Reissue 2016) to “include only
such conduct which can be reasonably construed as being for
the purpose of sexual arousal or gratification of either party.”
There is nothing in § 28-833 requiring that the communica-
tion be for the purpose of sexual arousal or gratification or
any other specific purpose, and I therefore do not think a
defendant’s motive in sending a prohibited communication is
relevant under § 28-833.
As relevant to the charges in this case, I think motive could
be relevant to a prosecution under Neb. Rev. Stat. § 28-320.02
(Reissue 2016) as charged in count 2, which requires a show-
ing that the communication was intended to solicit, coax,
entice, or lure the other person to actually engage in an act
that would constitute one of the specified sex offenses. Motive
therefore could be relevant under § 28-320.02 to show that
the defendant’s purpose was to engage in such activity for the
purpose of sexual arousal or gratification. However, the district
court did not admit the Wolfgirl evidence for the charge under
§ 28-320.02, as charged in count 2, and instead instructed
the jury to consider it only with respect to the charge under
§ 28-833 as charged in count 1.
While the Wolfgirl evidence is more attenuated as to the
charge against Thomas under § 28-320.02 than as to the charge
under § 28-833, it is not because “motive” is more relevant
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under § 28-833 than it is under § 28-320.02; instead, as dis-
cussed above, the opposite is true and motive is not relevant
under § 28-833 but may be relevant under § 28-320.02. The
reason I think the Wolfgirl evidence is more attenuated as
to the charge under § 28-320.02, and the reason I think the
district court determined that the Wolfgirl evidence was not
admissible as to the charge under § 28-320.02, is because in
the Wolfgirl conversations, there is no indication that Thomas
was attempting to arrange a meeting with Wolfgirl or to actu-
ally engage with Wolfgirl in an act that would constitute one
of the specified sex offenses. Therefore, the Wolfgirl evidence
was not relevant to Thomas’ motive in his communications
with “Logan” in connection with the charge under § 28-320.02.
Because the district court admitted the Wolfgirl evidence only
as to the charge under § 28-833, count 1, and because motive
is not relevant to a charge under § 28-833, I do not think that
motive was a proper purpose for admission under rule 404 in
this case.
I believe the Wolfgirl evidence was not admissible to show
absence of mistake. What is the relevance of the Wolfgirl evi-
dence, which involved an actual girl under 16 years of age, to
the issue of whether Thomas believed the officer, pretending
to be the underage “Logan,” was an actual child? It is not
a mistake to disbelieve a falsehood. Under § 28-833, there
is an important distinction between cases where a defendant
knows the recipient to be a child under 16 years of age and
cases where a defendant mistakenly believes that the recipi-
ent, who is actually an adult peace officer, is a child under 16
years of age. That distinction is particularly important when
evidence involving one type of recipient, i.e., Wolfgirl—an
actual girl—is offered to prove mens rea in a case involv-
ing the other type of recipient, i.e., a police decoy. Compare
U.S. v. Zahursky, 580 F.3d 515 (7th Cir. 2009), in which the
“other acts” evidence included the defendant’s statement to a
different girl that the victim of the charged conduct was 14
years old and in which said “other acts” evidence was hence
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relevant to show that the defendant was not mistaken as to the
victim’s age.
Even if the 50-page exhibit 11 were admissible, its probative
value was far outweighed by the prejudice which occurred by
admitting it. See rule 403. Given the nature of exhibit 11, in
my view, exhibit 11 tended to make “conviction of [Thomas]
more probable for an incorrect reason.” See State v. Oldson,
293 Neb. 718, 752, 884 N.W.2d 10, 42 (2016). In his separate
dissent, Chief Justice Heavican articulately sets forth the rea-
sons why admission of the Wolfgirl evidence presents a danger
of unfair prejudice that substantially outweighs the probative
value of the evidence. I think that because of the extreme
nature of the Wolfgirl evidence relative to the facts related to
“Logan” that are the basis for the charges herein, there was an
unacceptable risk that jurors would focus more on the Wolfgirl
evidence than the evidence related to “Logan,” therefore pos-
ing a high danger of conviction on an improper basis, that is,
a conviction based on Thomas’ communications with Wolfgirl
rather than on his communications with “Logan.” I believe that
it was an abuse of discretion to admit exhibit 11 and that such
ruling constituted reversible error.
Although it was unfair to convict Thomas of count 1 based
on propensity evidence and unkind to unnecessarily expose the
jurors to the contents of the graphic sexually explicit 50-page
exhibit 11, following reversal of Thomas’ conviction on count
1, he would remain convicted of count 2, and double jeopardy
does not prevent a retrial of Thomas on count 1 based on
admissible evidence. See Lockhart v. Nelson, 488 U.S. 33, 109
S. Ct. 285, 102 L. Ed. 2d 265 (1988). Our job is to adhere to
the rules of evidence and to guard due process even when it
may temporarily benefit a defendant.