State v. Yager

Fahrnbruch, J.

Claiming that the Sarpy County District Court erred in admitting evidence of his sexual contact with two young males other than the victim, Michael R. Yager appeals his jury conviction for sexual assault of a male child. We affirm.

The defendant was born on April 30, 1957. He babysat a number of small children at his mother’s residence in LaVista, where he resided. Yager began babysitting 8-year-old C.M. in August 1988. On December 15,1988, C.M. told his mother and stepfather that the defendant touched him on his penis and that it hurt.

At trial, the child testified that Yager touched his penis on five or six occasions. C.M. testified that on the last occasion, his jeans were off and Yager reached in C.M.’s underpants and pulled on his penis to the extent that it hurt him. On the other occasions, C.M. said, the defendant rubbed C.M.’s penis. The boy further testified that on one occasion, Yager unbuttoned his own pants and made the boy rub Yager’s penis. The victim told a police officer that the incidents occurred from Thanksgiving Day of 1988 to andincluding December 15,1988.

A police officer testified that when she interviewed the defendant on December 16, he told her that when the victim experienced a stomach ache, the defendant rubbed the boy’s stomach to soothe him. The defendant said his hand may have slipped while rubbing the boy’s stomach and accidentally touched the boy’s penis. At trial, Yager denied ever touching C.M.’s penis.

Yager was charged by amended information in the district court for Sarpy County with three counts of sexual assault of a child. Upon the defendant’s motion, the trial court dismissed two of the counts.

Sexual assault of a child is prohibited by Neb. Rev. Stat. § 28-320.01 (Reissue 1989), which provides: “(1) A person commits sexual assault of a child if he or she subjects another person fourteen years of age or younger to sexual contact and the actor is at least nineteen years of age or older. (2) Sexual assault of a child is a Class IV felony.” Neb. Rev. Stat. § 28-318 (Reissue 1989) defines “sexual contact” as

the intentional touching of the victim’s sexual or intimate parts or the intentional touching of the victim’s clothing covering the immediate area of the victim’s sexual or intimate parts. Sexual contact shall also mean the touching by the victim of the actor’s sexual or intimate parts or the clothing covering the immediate area of the actor’s sexual or intimate parts when such touching is intentionally caused by the actor. Sexual contact shall include only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party.

Yager was found guilty by a jury of one count of sexual assault of a child. The defendant was sentenced to a 4-month term of imprisonment, with credit for the time spent in jail awaiting disposition of his case.

Before trial, the district court overruled Yager’s motion in limine to prevent evidence of his sexual relations with two other witnesses. At trial, over Yager’s objection, one of the witnesses, A.L., testified that when he was 8 years old and while Yager was babysitting him, Yager took him downstairs, where he touched and fondled him. A.L. further testified that until he was 21 or 22 years old, he had a sexual relationship with the defendant and that during that time, he and the defendant had approximately 100 sexual contacts. The defendant’s last sexual contact with A.L. was 6 to 7 years prior to the defendant’s trial.

The other witness, A.G., who was 23 years old, testified over Yager’s objection that when he was 12 years of age, Yager gave him a ride in his car and molested him. A.G. testified that on that occasion, the sexual contact was limited to touching and that he and Yager both had their pants off. The witness related that Yager and he continued their relationship for 2 to 2V2 years. During that period, Yager and A.G. had 20 to 30 sexual contacts or penetrations, according to A.G. At the time of trial, A.G. was being treated in the Lincoln Regional Center after being sentenced as a mentally disordered sex offender to a term of imprisonment for sexually assaulting minor males. The last sexual contact between Yager and A.G. would have been within 10 years of Yager’s trial.

Yager’s two assignments of error may be consolidated to allege that the trial court erred by allowing A.L.’s and A.G.’s testimony into evidence.

Evidence 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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Neb. Rev. Stat. § 27-404(2) (Reissue 1989). The purposes set forth in § 27-404(2) are illustrative only and are not intended to be exhaustive or mutually exclusive. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989). Section 27-404(2) is an inclusionary rule which permits the use of evidence of other crimes, wrongs, or acts if such is relevant for any purpose other than to show the defendant’s propensity or disposition to commit the crime charged. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).

In reviewing the actions of a trial court in admitting evidence of other crimes under § 27-402(2) to determine if there was unfair prejudice in the admission of the evidence, 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. See, Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988); State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989); State v. Boppre, supra.

Yager first asserts that A.L.’s and A.G.’s testimony concerning sexual contacts with him which he claims occurred 15 to 20 years and 11 years prior to trial, respectively, was totally irrelevant because the testimony concerned events which were too remote in time to have any relevance.

Evidence that Yager had sexually assaulted other young boys and continued those relationships over a number of years was relevant to prove Yager’s motive, intent, and sexual arousal or gratification and the absence of mistake or accident when he had sexual contact with C.M. The evidence had the tendency to make the existence of any of those items relating to the crime with which Yager was charged more probable than it would be without that evidence. See Neb. Rev. Stat. § 27-401 (Reissue 1989). The real question here is whether the events are so remote in time as to be irrelevant.

The admissibility of evidence concerning other conduct must be determined upon the facts of each case, and no exact limitation of time can be fixed as to when other conduct tending to prove intent to commit the offense charged is too remote. State v. Ruyle, 234 Neb. 760, 452 N.W.2d 734 (1990). Indeed, this court has held that a trial court did not abuse its discretion in admitting evidence of conduct similar to the crime charged even though the conduct occurred over 10 years before the crime charged was committed. See State v. Kern, 224 Neb. 177, 397 N.W.2d 23 (1986).

[RJemoteness, or the temporal span between a prior crime, wrong, or other act offered as evidence under Rule 404(2) and a fact to be determined in a present proceeding, goes to the weight to be given to such evidence and does not render the evidence of the other crime, wrong, or act irrelevant and inadmissible.

Schaaf, supra at 160, 449 N.W.2d at 772.

Yager’s assertion that A.L.’s and A.G.’s testimony concerned events which were too remote in time is without merit. It is initially noted that the defendant is mistaken regarding the timing of those events. A.L. testified that his sexual relationship with Yager lasted until he was 21 or 22 years of age. Since he was 28 years of age at the time of trial, the last incident was 6 or 7 years prior to the events at issue, not 15 to 20 years as Yager asserts. Likewise, A.G. stated that his last sexual contact occurred with the defendant when A.G. was 14 to 14V2 years of age. This would be approximately 8V2 to 9 years before C.M. was sexually assaulted by Yager.

The question of whether evidence of other conduct otherwise admissible under the provisions of § 27-402(2) is too remote in time is largely within the discretion of the trial court. While remoteness in time may weaken the value of the evidence, such remoteness does not, in and of itself, necessarily justify exclusion of the evidence. State v. Rincker, 228 Neb. 522, 423 N.W.2d 434 (1988).

The crux of Yager’s argument is that the evidence was offered to prove his propensity or disposition to commit sexual assault of a child. In State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989), the defendant was convicted of two charges of first degree sexual assault and three charges of sexual assault of a child. On appeal, the defendant alleged that the State was improperly permitted to present evidence of his homosexuality, the sexual content of movies he showed to the victims, and the fact that he had previously entertained teenage boys in his home. In response, this court asserted: “The evidence tended to show the defendant’s motive, preparation, plan, and intent to commit the crimes at issue and was admissible.” Id. at 202, 440 N.W.2d at 215. This court further asserted that the defendant’s “sexual preference for males enhances the credibility of the victims’ testimony that the defendant’s acts were committed for sexual gratification.” Id.

Applying Andersen, supra, to this case, the evidence at issue tended to show Yager’s motive and intent to commit sexual assault on C.M. As was the case in Andersen, the evidence is probative on the issue of the defendant’s sexual arousal or gratification, an element of the offense of sexual assault of a child.See§§ 28-318(5)and28-320.01.

Furthermore, the defendant’s intentional sexual contacts with A.L. and A.G. were also relevant to prove that the defendant’s sexual contact with the victim was not accidental, as he related to a police officer. See State v. Ruyle, supra (the defendant’s threats to burn or torch an apartment were relevant to show that the fire was not an accident). Thus, the trial court did not abuse its discretion in determining that the evidence was offered for a proper purpose. See Ruyle, supra (due to proper purposes for admission of other conduct, court did not abuse its discretion).

Section 27-404(2) is subject to the overriding protection of Neb. Rev. Stat. § 27-403 (Reissue 1989). State v. Craig, 219 Neb. 70, 361 N.W.2d 206 (1985). “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.” § 27-403. The defendant lastly asserts that any probative value A.L.’s and A.G.’s testimony may have had was outweighed by its prejudicial effect and should have been excluded under § 27-403.

In view of the sexual nature of the crime charged, evidence of Yager’s other sexual contacts with young males was highly probative on the issue of Yager’s sexual arousal or gratification, as well as his intent and motive, and to establish that it was no accident that he touched the victim’s penis. While the evidence was prejudicial, as this court has stated:

Most, if not all, items which one party to an action offers in evidence are calculated to be prejudicial to the opposing party; therefore, it is only “unfair prejudice” with which [§ 27-403 is] concerned. In the context of § 27-403 such prejudice means a tendency to suggest a decision on an improper basis.

Lincoln Grain v. Coopers & Lybrand, 216 Neb. 433, 439, 345 N.W.2d 300, 306 (1984). After reviewing the record, we cannot say that the prejudice was such as to suggest a decision on an improper basis. The trial court did not abuse its discretion in determining that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. See State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 (1987) (balancing the need for evidence of other crimes, wrongs, or acts against the possible resulting prejudice is within the discretion of the trial court).

Finally, we conclude that the trial court correctly instructed the jury to consider the evidence only for the purpose for which it was admitted. The trial court instructed the jury that the testimony of A.L. and A.G. should be considered only for the limited purpose of establishing the defendant’s state of mind. The court further instructed the jury that if it found from other evidence, beyond a reasonable doubt, that the defendant engaged in the particular conduct alleged to have occurred on December 15,1988, it could consider the testimony of A.L. and A.G. as to whether such conduct constituted sexual contact as defined in a previous instruction.

The trial court did not err in ruling that the evidence of the defendant’s sexual relations with A.L. and A.G. was relevant. The evidence was admitted for a proper purpose and did not unfairly prejudice the defendant. The jury was properly instructed on the use of that evidence. Therefore, the defendant’s assignments of error are meritless.

The defendant’s conviction for sexual assault of a child is affirmed.

Affirmed.