State v. Oldson

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/10/2016 08:06 AM CDT
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. OLDSON
Cite as 293 Neb. 718
State of Nebraska, appellee, v.
John R. Oldson, appellant.
___ N.W.2d ___
Filed June 10, 2016. No. S-13-562.
1. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error.
The failure to object to evidence at trial, even though the evidence was
the subject of a previous motion to suppress, waives the objection, and
a party will not be heard to complain of the alleged error on appeal.
2. Appeal and Error. An objection, based on a specific ground and prop-
erly overruled, does not preserve a question for appellate review on
some other ground not specified at trial.
3. Rules of Evidence: Other Acts. 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.
4. 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 the balancing rule and the other
acts rule, and the trial court’s decision will not be reversed absent an
abuse of discretion.
5. Juries: Evidence: Proof. Propensity evidence may lead a jury to con-
vict, 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.
6. Rules of Evidence: Other Acts: Proof. Under Neb. Evid. R. 404(1),
Neb. Rev. Stat. § 27-404(1) (Cum. Supp. 2014), proof of a person’s
character is barred only when in turn, character is used in order to show
action in conformity therewith.
7. Rules of Evidence: Other Acts. The State cannot present the defend­
ant’s other acts so that the jury makes the intermediate inference of
the defendant’s bad character, leading to the ultimate inference that the
defendant is guilty.
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STATE v. OLDSON
Cite as 293 Neb. 718
8. ____: ____. Evidence of specific instances of conduct that only inciden-
tally impugns a defendant’s character is not prohibited by Neb. Evid. R.
404, Neb. Rev. Stat. § 27-404 (Cum. Supp. 2014).
9. ____: ____. All relevant evidence is subject to the overriding protection
of Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), includ-
ing other acts evidence.
10. Rules of Evidence. Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2008), allows the exclusion of evidence 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.
11. Evidence: Words and Phrases. Relevant evidence is that which has
any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it
would be without the evidence.
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. Evidence: Words and Phrases. Unfair prejudice means an undue tend­
ency to suggest a decision based on an improper basis.
14. ____: ____. Unfair prejudice 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.
15. Evidence: Intent. If character evidence is admitted for a proper pur-
pose, then, ipso facto, it is not admitted for the purpose of showing
propensity.
16. Trial: Appeal and Error. A defendant may not gain an advantage on
appeal by failing to pursue strategies at trial to minimize prejudice.
17. Constitutional Law: Trial: Juries: Witnesses. An accused’s consti-
tutional right of confrontation is violated when either (1) he or she is
absolutely prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on the part of
the witness or (2) a reasonable jury would have received a significantly
different impression of the witnesses’ credibility had counsel been per-
mitted to pursue his or her proposed line of cross-examination.
18. Trial: Evidence: Presumptions: Proof. Under the presumption of
innocence, the State must establish guilt solely through the probative
evidence introduced at trial.
19. Rules of Evidence: Other Acts: Due Process: Presumptions. While
Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Cum. Supp. 2014), may
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STATE v. OLDSON
Cite as 293 Neb. 718
prevent the admission of other acts evidence for propensity purposes as
a protection of the presumption of innocence, it does not follow that the
State violates due process by adducing testimony that could result in the
revelation of other acts if the defense chooses to pursue certain lines of
questioning on cross-examination.
20. Criminal Law: Constitutional Law: Due Process: Rules of Evidence.
Whether rooted directly in the Due Process Clause of the 14th
Amendment or in the Compulsory Process or Confrontation Clause
of the 6th Amendment, the federal Constitution guarantees criminal
defend­ants a meaningful opportunity to present a complete defense.
21. Constitutional Law: Criminal Law: Trial. The right to present a
defense is not unqualified and is subject to countervailing public inter-
ests such as preventing perjury and investigating criminal conduct.
22. Due Process: Evidence: Presumptions. The aim of the requirement of
due process is not to exclude presumptively false or unreliable evidence,
but to prevent fundamental unfairness in the use of evidence, whether
true or false.
23. Confessions: Police Officers and Sheriffs: Evidence. Mere deception
will not render a statement involuntary or unreliable; the test is whether
the officer’s statements overbore the will of the defendant.
24. Police Officers and Sheriffs. Police practices of deception during inter-
rogation are not inherently offensive.
25. Criminal Law: Due Process: Time. A criminal defendant’s claim of
denial of due process resulting from preindictment delay presents a
mixed question of law and fact.
26. Trial: Due Process: Time: Appeal and Error. When reviewing a trial
court’s determination of a claim of denial of due process resulting from
preindictment delay, an appellate court will review determinations of
historical fact for clear error, but will review de novo the trial court’s
ultimate determination as to whether any delay by the prosecutor in
bringing charges caused substantial prejudice to the defendant’s right to
a fair trial.
27. Due Process: Criminal Law: Pretrial Procedure: Time. The Fifth
Amendment’s Due Process Clause has only a limited role to play in
protecting against oppressive delay in the criminal context.
28. Due Process: Criminal Law: Pretrial Procedure: Time: Proof. The
Due Process Clause requires dismissal only if a defendant can prove
that the preindictment delay caused actual prejudice to his or her
defense and was a deliberate action by the State designed to gain a tacti-
cal advantage.
29. Trial: Evidence: Appeal and Error. Because authentication rulings
are necessarily fact specific, a trial court has discretion to determine
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whether evidence has been properly authenticated. An appellate court
reviews the trial court’s ruling on authentication for abuse of discretion.
30. Rules of Evidence. Authentication or identification of evidence is a
condition precedent to its admission and is satisfied by evidence suf-
ficient to prove that the evidence is what the proponent claims.
31. Motions for New Trial: Appeal and Error. The standard of review for
the denial of a motion for new trial is whether the trial court abused its
discretion in denying the motion.
32. Judges: Motions for New Trial: Evidence: Witnesses: Verdicts. A
trial judge is accorded significant discretion in granting or denying a
motion for new trial, because the trial judge sees the witnesses, hears the
testimony, and has a special perspective on the relationship between the
evidence and the verdict.
33. Criminal Law: Motions for New Trial: Evidence: Proof. A criminal
defendant who seeks a new trial because of newly discovered evidence
must show that if the evidence had been admitted at the former trial, it
would probably have produced a substantially different result.
34. Circumstantial Evidence. Circumstantial evidence is not inherently
less probative than direct evidence.
35. Sentences: Appeal and Error. An appellate court will not disturb sen-
tences that are within statutory limits, unless the district court abused its
discretion in establishing the sentences.
36. Judgments: Appeal and Error. When dispositive issues on appeal
present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
37. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
38. Homicide: Sentences. A life-to-life sentence for second degree mur-
der is a permissible sentence under Neb. Rev. Stat. § 29-2204 (Cum.
Supp. 2014).
39. Sentences. When imposing a sentence, the sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education and expe-
rience, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense and (8) the violence involved in the
commission of the offense.
40. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
Appeal from the District Court for Howard County: K arin
L. Noakes, Judge. Affirmed.
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STATE v. OLDSON
Cite as 293 Neb. 718
James R. Mowbray and Sarah P. Newell, of Nebraska
Commission on Public Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith
for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ., and Bishop, Judge.
McCormack, J.
TABLE OF CONTENTS
I. Nature of Case................................................................ 727
II. Background..................................................................... 727
1. Night of May 31, 1989............................................. 728
(a) Oldson and Beard Leave Tavern Together......... 728
(b) Oldson Goes Home............................................. 729
(c) Possible Telephone Call to Oldson..................... 729
(d) Sharlene Whitefoot Calls Oldson....................... 730
(e) Rex White and Glen Hall................................... 730
2. Year Following Beard’s Disappearance.................... 730
(a) Oldson’s Statement Heard by Kittinger.............. 730
(b) Oldson’s Statements to Whitefoot...................... 731
(c) Oldson’s Statements to Law Enforcement......... 731
(i) Statements on June 2, 1989........................ 731
(ii) Statement on June 6, 1989.......................... 731
(d) Pickup Cleaned................................................... 732
(e) Witness to Oldson’s Statements to
Minnie Eggers.................................................... 733
(f) Oldson’s Statements to Barbara Dasher............. 733
3. Oldson’s Diary Excerpts (Exhibits 263
Through 271)............................................................ 733
4. Beard’s Remains Found in 1992.............................. 734
(a) Cause of Death................................................... 734
(b) Oldson Visits Site Where Remains Found......... 735
(c) Oldson’s Statements to Journalist....................... 735
5. Oldson’s Statements While in Prison
Awaiting Trial........................................................... 736
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STATE v. OLDSON
Cite as 293 Neb. 718
6. Defense..................................................................... 737
(a) No Physical Evidence Linking Oldson
to Crime.............................................................. 737
(b) Minnie Denies Strange Behavior or
Being Threatened................................................ 737
(c) Beard Commonly Left Tavern With
Other Men........................................................... 737
(d) Michael Hawley.................................................. 737
(e) Rex White........................................................... 738
(f) Brian Mentzer and Carnival Workers................. 738
(g) Reported Sightings of Beard After Her
Disappearance..................................................... 739
(h) Sex Ranch Diary................................................. 739
(i) Jerome Walkowiak.............................................. 741
7. Verdict and Sentence................................................ 741
III. Assignments of Error...................................................... 741
IV. Analysis.......................................................................... 742
1. Motion to Suppress ................................................. 742
2. Oldson’s Journal Excerpts........................................ 743
(a) Standard of Review............................................ 744
(b) Analysis.............................................................. 744
(i) Rule 404...................................................... 744
a. Forbidden Propensity Reasoning............ 744
b. Other Acts Evidence to Show
Propensity............................................... 746
c. When Propensity Reasoning Is
Permissible.............................................. 747
d. Other Acts Evidence Not for
Propensity Purposes................................ 748
e. Proof of Other Acts................................ 749
f. Articulating Proper Purpose................... 749
g. Limiting Instructions.............................. 750
(ii) Rule 403...................................................... 751
(iii) Application.................................................. 752
a. Exhibit 266............................................. 752
i. Background........................................ 752
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a) Theory of Logical Relevancy....... 752
b) Court Concluded Exhibit Not
Other Acts Evidence..................... 753
c) Court Gave Limiting Instruction.. 753
ii.
Analysis............................................. 753
a) Probative Value: Whether
Statement Referred to Beard
Was Question for Jury.................. 753
b) Excerpts Not Taken Out of
Context, and Defense Could
Have Completed Evidence............ 754
c) Hobson’s Choice Argument.......... 755
d) “Pure” Character Evidence........... 756
i) Oldson’s Argument Abstracts
Single Phrase........................... 757
ii) Statement Not Character
Trait......................................... 757
iii) Even if Statement Reflects
Character, Admissible for
Motive..................................... 757
iv) “Character” Evidence Not
Prohibited by Rule 404 When
Admitted for Proper Purpose.. 758
v) Conclusion............................... 760
e) Unfair Prejudice Did Not
Outweigh Probative Value............ 760
b.
Exhibit 270............................................. 761
i. Background........................................ 761
a) Theory of Logical Relevancy....... 762
b) Limiting Instruction...................... 762
ii.
Analysis............................................. 762
a) Relevant for Consciousness
of Guilt.......................................... 763
b) Sexual Contact With Beard
Contemporaneous With Killing
Is Not Other Acts Evidence.......... 764
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c) List of Other Women.................... 764
i) Whether Oldson Had Sexual
Contact With Other Women
Listed Is Irrelevant to Logical
Relevance of Excerpt.............. 764
ii) Limiting Instruction................. 765
iii) Other Women Not Uncharged
Misconduct to Be Proved by
Clear and Convincing
Evidence.................................. 766
iv) Reference to Other Women
Not Unfairly Prejudicial.......... 766
d) No “Creepy” Fetish Reference..... 766
e) No Abuse of Discretion in
Concluding Exhibit 270 More
Probative Than Unfairly
Prejudicial..................................... 768
f) Not Inadmissible Because
Relevance .Dependent Upon Other
Evidence Entered by State............ 768
c. Exhibits 263, 264, 265, 267, 268, 269,
and 271................................................... 769
i. Background........................................ 769
ii.
Analysis............................................. 770
a) Exhibits Not Unfairly
Prejudicial..................................... 770
b) Future Intention Is Not Other
Acts Evidence............................... 771
c) Probativeness, Though Sometimes
Limited, Not Outweighed by
Unfair Prejudice............................ 771
d. Taking Exhibits Into Jury Room............ 773
3. Witnesses Kittinger and Dasher: Hybrid Hobson’s
Choice With Right to Confrontation and
Presumption of Innocence........................................ 773
(a) Background......................................................... 774
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Cite as 293 Neb. 718
(i) Dasher......................................................... 774
(ii) Kittinger...................................................... 775
(b) Standard of Review............................................ 775
(c) Analysis.............................................................. 775
4. Tampering With Witnesses....................................... 777
(a) Background......................................................... 778
(i) Objections and Rulings............................... 778
(ii) 1989 Statement........................................... 778
(iii) Multiple Interviews and Multiple Stories... 779
(iv) Walkowiak’s Testimony at Hearing on
Motion in Limine........................................ 779
(v) 2011 Interview............................................ 779
(vi) Walkowiak’s Testimony at Trial................. 781
(b) Standard of Review............................................ 781
(c) Analysis.............................................................. 782
5. Speedy Trial Under Due Process Clause.................. 787
(a) Background......................................................... 787
(b) Standard of Review............................................ 787
(c) Analysis.............................................................. 787
6. Alleged Backus Diary.............................................. 789
(a) Background......................................................... 789
(i) Mailed From Unknown Address in
Omaha......................................................... 790
(ii) Backus’ Deposition..................................... 790
(iii) Handwriting................................................ 790
(iv) Douglas Olson............................................. 791
(v) Testimony by Private Investigator.............. 791
(vi) Douglas’ Other Writings............................. 791
(vii) Consistencies of Diary With Real Events... 792
(b) Standard of Review............................................ 793
(c) Analysis.............................................................. 793
7. Motion for New Trial............................................... 796
(a) Standard of Review............................................ 796
(b) Ground One: Douglas Found After Trial........... 796
(i) Background................................................. 796
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Cite as 293 Neb. 718
a. Telephone Conversation With
Girlfriend................................................ 796
b. Interview With Private Investigator
and Police............................................... 797
c. Douglas’ Testimony at Hearing.............. 797
d. Defense Arguments at Hearing............... 799
(ii) Analysis....................................................... 799
(c) Ground Two: Late Disclosure of DNA
Report of Hairs on Sweater................................ 802
8. Cumulative Error...................................................... 803
9. Sufficiency of Evidence........................................... 803
10. Life Sentence............................................................ 804
(a) Standard of Review............................................ 805
(b) Analysis.............................................................. 805
V. Conclusion...................................................................... 807
I. NATURE OF CASE
John R. Oldson appeals from his conviction of second
degree murder and sentence to life imprisonment. The victim,
Catherine Beard, disappeared in 1989. Her remains were found
in 1992. Oldson makes numerous arguments on appeal, includ-
ing that journal entries written by Oldson while incarcerated
for another crime and entered into evidence against him at
trial were inadmissible and that the testimony of certain wit-
nesses should have been excluded because he was presented
with a “Hobson’s choice” of either conducting effective cross-
examination that would bring to light other bad acts or not
conducting an effective cross-examination. We affirm both the
conviction and the sentence.
II. BACKGROUND
On December 5, 2012, Oldson was charged with first degree
murder in relation to the death of Beard on or about May 31,
1989. The information alleged that the murder was premedi-
tated or committed during the perpetration or attempt to kidnap
or sexually assault Beard. The following evidence was pre-
sented at trial.
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STATE v. OLDSON
Cite as 293 Neb. 718
1. Night of M ay 31, 1989
(a) Oldson and Beard Leave
Tavern Together
On May 31, 1989, Oldson, Oldson’s father, Oldson’s uncle,
and two other members of a work crew, Lawrence Kittinger
and Dale Hoppes, were laying brick. They were working
on a project at the home of Bonnie McCartney and Roger
McCartney. The testimony varied as to how long the project
took. Hoppes testified that the project lasted approximately 31⁄2
days. Roger McCartney testified that based on his review of
the bills, the brickwork started after May 29 and took a couple
of weeks to complete.
After work around 4:30 to 5 p.m., the crew went to the
Someplace Else Tavern in Ord, Nebraska. Oldson, Kittinger,
and Hoppes rode in Oldson’s father’s two-tone, cream-and-
brown Ford pickup. Oldson’s father drove. Oldson’s father
parked the pickup in the alley behind the bar. The back of the
pickup was full of masonry tools.
Numerous witnesses testified that they saw Oldson speak-
ing with Beard, who was sitting at the end of the bar in
the Someplace Else Tavern. Though Oldson and Beard were
acquainted with one another, there was testimony that they
had never been romantically involved. Kittinger and Hoppes
testified that Oldson went over to talk with Beard almost
immediately after their arrival. Witnesses reported that Oldson
and Beard went to stand close together near the jukebox and
the pool table. At some point, Oldson had his hand or arm on
Beard’s shoulder.
Hoppes testified that Oldson asked his father for the keys
to the pickup. Several witnesses saw Oldson and Beard walk
out of the bar through the back door and into the back alley. It
was approximately 6:30 p.m. when Oldson and Beard left the
tavern together. No one ever saw either Oldson or Beard return
to the tavern that night. Beard never returned home.
Beard left her half-finished drink, cigarettes, jacket, house
key, and umbrella at the bar. When Beard’s sister later checked
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Beard’s room in the house where Beard resided with her
mother, she found Beard’s belongings undisturbed.
(b) Oldson Goes Home
Oldson’s father, Kittinger, and Hoppes waited for a while
for Oldson to return with the pickup to give them a ride, but
Oldson “never showed up.” Oldson’s father and Kittinger
walked together back to Oldson’s father’s house. Kittinger tes-
tified that he and Oldson’s father arrived at Oldson’s father’s
house about an hour after Kittinger saw Oldson and Beard
leave together. In a statement read to the jury by the defense,
Oldson’s father, deceased at that time of trial, reported to law
enforcement that he and Kittinger left the tavern about 30 min-
utes after Oldson. It takes about 15 minutes to walk from the
Someplace Else Tavern to Oldson’s father’s house.
When Oldson’s father and Kittinger arrived at the house,
Oldson was on his way out. Oldson appeared freshly showered.
Kittinger asked Oldson if he had gotten “lucky,” and Oldson
responded that he had not. Instead, according to Kittinger,
Oldson told him that “two guys had hustled her away from him
in a pickup.”
(c) Possible Telephone Call to Oldson
Roger McCartney (hereinafter Roger) testified that one eve-
ning after he got home from work, anywhere between 6:30 and
7 p.m., he tried to call Oldson’s father at his home, but reached
Oldson. Roger testified that he had concerns about the brick-
work. This was the only time he called Oldson’s home. Roger
did not recall the specific date of the telephone call. He testi-
fied that if the call was on May 31, 1989, the crew would have
had only 11⁄2 days to have completed a substantial amount of
brickwork. Roger recalled speaking to an investigator approxi-
mately 1 week after Beard’s disappearance. In the report of
that conversation, the officer reported that Roger said he made
the telephone call around 7:30 to 8:30 p.m. on May 31. Roger
testified that further reflection caused him to question the date
given to the investigator.
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(d) Sharlene Whitefoot Calls Oldson
Sharlene Whitefoot, an employee of the Someplace Else
Tavern in 1989, discovered that Beard’s personal items had
been left at the bar, and she called Oldson at his father’s home.
Whitefoot testified that it was approximately 10:30 p.m. on
May 31, 1989, when she spoke with Oldson. When Whitefoot
asked Oldson if he had seen Beard, Oldson said he was just
getting out of the bathtub and indicated that he did not know
where Beard was. Whitefoot and the owner of the Someplace
Else Tavern reported Beard as missing.
(e) Rex White and Glen Hall
Around 3 a.m. on the day after Beard’s disappearance,
there was a robbery at an Ord motel, located 1 mile from the
Someplace Else Tavern. Law enforcement never found any
connection between the robbery and Beard’s disappearance.
The robbery was committed by Rex White and Glen Hall. The
victim was a man from out of town.
White and Hall, accompanied by five acquaintances, includ-
ing the robbery victim, had been at another bar in town from
3 to 7:30 p.m. on May 31, 1989. The victim was “flashing”
around a lot of cash, wanted to have a party in his motel room,
and offered White and Hall $100 each if they could “find him
a girl.” White and Hall went to the Someplace Else Tavern
around 7:30 p.m. to try to find Beard. According to White,
Beard was not there.
2. Year Following Beard’s
Disappearance
(a) Oldson’s Statement
Heard by Kittinger
Kittinger testified that the day following Beard’s disappear-
ance, the crew was at the McCartney jobsite when they saw
a marked police car nearby. Oldson’s father wondered aloud
what the police officer might want, to which Oldson replied,
“It’s probably something I did.”
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(b) Oldson’s Statements to Whitefoot
The day after Beard’s disappearance, Oldson went back
to the Someplace Else Tavern to confront Whitefoot. Oldson
asked Whitefoot why she and the bar owner had reported Beard
missing. Oldson reportedly said, “[W]hat’s going to happen
if her body comes floating down the river, who do you think
they’re going to blame? . . . [M]e.”
Oldson explained to Whitefoot that he had grabbed Beard
and had “ahold of her by her arms out in the alley but she got
away.” Whitefoot told Oldson that she did not believe him,
because Oldson was a tall, muscular man and Beard was a very
petite woman. At that point, Oldson left.
(c) Oldson’s Statements to
Law Enforcement
(i) Statements on June 2, 1989
On or around June 2, 1989, Oldson was interviewed by
Gerald Woodgate, who was the Valley County Sheriff at that
time, and John Young, the Ord police chief. Oldson told him
that when Oldson and Beard were in the alley, Oldson propo-
sitioned Beard for sex. Beard refused Oldson. Oldson said he
went to his father’s pickup with the intention of leaving. There
was no indication by Oldson during this interview that he had
grabbed or struggled with Beard.
As Oldson started to leave, he saw Beard go to another truck
that had just pulled into the alley. Oldson described the truck as
a “custom 150” Ford pickup about 7 years old, but shiny, with
fog lights, and “88 county” license plates. Oldson described
the driver as having long hair; he could not tell if the driver
was male or female. Oldson gave a similar interview to another
police officer around that time.
(ii) Statement on June 6, 1989
On June 6, 1989, Oldson was interviewed by an investiga-
tor for the Nebraska State Patrol. Oldson described that he saw
Beard at the bar and asked her if she wanted to “play a little
touch and feel outside.” She said, no, that she did not think of
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him “in that way.” However, when Oldson continued to ask
Beard, she eventually agreed to go outside to “at least talk
about it.” Oldson reported that it was 7:30 p.m. when he and
Beard stepped into the alley.
Oldson reported that he and Beard stood by the passenger
side of his father’s pickup. He again asked Beard if “she would
like to do something.” Beard again said that she did not think
of him in that way. Oldson became upset and tried to grab
Beard by her wrists to pull her into the pickup, but Beard
pulled away from him. According to Oldson, Beard never
entered the pickup.
Oldson reported that he slid over to the driver’s side and
began to drive away. As he was leaving, he noticed a dark blue
or black Ford pickup pull into the alley. He saw Beard walk
over to the pickup and begin talking with the driver. Beard
then walked over to the passenger side of the truck and got in.
Oldson described the driver of the truck as male, possibly with
a mustache, possibly long, blond hair. He did not describe any
other occupants. Oldson said it was a commercial pickup with
“88 county” plates.
Oldson reported that he went home and took a bath. He got
out of the tub to answer a telephone call from Roger at about
7:45 p.m. After the brief call with Roger about work being done
on the McCartney house, Oldson finished his bath. Oldson then
gathered up clothes and detergent to go to the Laundromat.
When he was on his way to the Laundromat, Oldson ran into
his father and Kittinger. Oldson reported that Whitefoot called
him later that night.
The state trooper testified that local law enforcement investi-
gated the owners of all vehicles similar to Oldson’s description
located in county No. 88, or Loup County. All such individuals
were ruled out as having any information or involvement in
Beard’s disappearance.
(d) Pickup Cleaned
Three to ten days after Beard’s disappearance, a local
resident saw Oldson’s father’s pickup in the driveway with
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both doors open and the seat completely removed and lying
on the ground. A water hose ran to the truck, and a bucket
was nearby.
(e) Witness to Oldson’s Statements
to Minnie Eggers
In 1990, an Ord resident observed Oldson with his girlfriend
and future wife, Minnie Eggers (Minnie), at the Someplace Else
Tavern. She testified that she overheard Oldson tell Minnie that
“if she didn’t do whatever it was he wanted that he would do
the same thing to her that he had done to Cathy.” She testified
that Minnie seemed scared. Oldson looked around to see if
anyone had heard him. Minnie told Oldson that she loved him
and would do whatever he wanted.
(f) Oldson’s Statements to Barbara Dasher
Ord resident, Barbara Dasher, testified that she and Oldson
would often converse at the Someplace Else Tavern. One
day while conversing at the bar after Beard’s disappearance,
Oldson suddenly “look[ed] mean” and said “right in my ear”
that “[t]hey’d never be able to find [Beard].” On another
occasion, Oldson told Dasher that “Beard was dead and that
we’ll never see her again” and that “Beard deserved what
she got.”
Dasher testified that later, after Beard’s remains were found,
Oldson threatened her. Oldson told her that if she ever “said
anything,” she “could get the same thing as . . . Beard.”
3. Oldson’s Diary Excerpts (Exhibits
263 Through 271)
Woodgate testified that between December 1989 and
September 1990, he had “occasion to come into contact with
. . . writings of . . . Oldson.” His agency made copies of
those writings, and he verified that nine exhibits, exhibits
263 through 271, were accurate copies, with certain portions
redacted. The exhibits will be fully set forth in the analysis
section below. They include Oldson’s musing: “Maybe the
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problem has been my making girls too high a priority - and
having real problems with accepting rejection. Which may be
how all this got started. ‘Get it any way you can’ (?) Doesn’t
sound like a good attitude. It got me in trouble.” They also
include Oldson’s statement: “I really have no idea about what
to do or where to go. My first priority is to get rid of some-
thing A.S.A.P.! That is, if I can still find them. The only . . .
link left between me and . . . .” Another exhibit states that
he “must rate C.B. as most gratifying, . . . YUH! Go on and
­gitcha some!”
During cross-examination, the defense elicited testimony
from Woodgate that the journal excerpts were but small
portions of a document that consisted of over 200 pages.
Woodgate also affirmed that the document concerned vari-
ous different topics, such as politics, religion, world events,
personal letters, lists of actresses, and letters to public figures.
Woodgate testified that, based on the writings, law enforcement
obtained search warrants. However, investigators were unable
to find anything incriminating in either the Oldson house or
the pickup. Furthermore, Woodgate affirmed that during the
9-month period overlapping the search warrants, Oldson had
no access to the house, grounds, or pickup to be able to dispose
of any evidence located therein.
4. Beard’s R emains Found in 1992
Beard’s remains were found in April 1992. Most of the
remains were found in the alluvial fan of a pasture beyond a
fence alongside a minimum maintenance road about 6 miles
outside of Ord. Traveling the speed limit from the Someplace
Else Tavern to the place where the remains were found takes 9
minutes. Traveling the speed limit from the place the remains
were found to Oldson’s residence also takes approximately
9 minutes.
(a) Cause of Death
A forensic anthropologist specializing in bone trauma testi-
fied that Beard’s remains indicated perimortem blunt trauma
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to the chest, face, and skull. In addition, the remains indi-
cated stab wounds in the ribs, the lumbar vertebrae, sacrum,
and wrist. These together indicated “foul play and a violent
death.” While the blunt trauma could be consistent with
being struck by either a vehicle or some sort of tool, the
stab wounds could not have been caused by a pedestrian-
vehicle collision.
A forensic pathologist similarly testified that Beard’s death
was a homicide and was caused by blunt force trauma to the
head and trunk in association with sharp force injuries in the
ribs and lumbar. The pathologist testified that when a pedes-
trian is hit by a moving vehicle, the pedestrian suffers a char-
acteristic basilar fracture of the skull caused when the body
lands while in rotation off of the vehicle. Beard did not suffer
such a fracture.
(b) Oldson Visits Site Where Remains Found
A friend of Minnie’s testified that when Beard’s remains
were discovered, Oldson and Minnie suggested they go to the
site where the remains were found. Oldson was “driving like
he was really anxious and nervous” and was “talking very
excitedly” on the way there. The friend did not recall what
Oldson said, though. Part of the time, Oldson was speak-
ing with Minnie through sign language, which the friend did
not understand.
(c) Oldson’s Statements to Journalist
A journalist interviewed Oldson after Beard’s remains were
found. Oldson generally denied being responsible for Beard’s
death. He said he was merely an acquaintance of Beard’s.
Oldson also claimed to be a virgin until he married Minnie.
Oldson told the journalist that he had tried to get Beard
into his father’s truck with him the night she disappeared.
Oldson said that he had become more desperate as the night
went on and that “‘[f]inally I just reached the bottom of the
barrel, what the hell, we’ll try [Beard], and she wouldn’t
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have anything to do with me.’” According to Oldson, she
refused him, saying, “‘[O]h, John, I like you as a friend but
never in that way. No, no, get away. No, no.’” Then Oldson
drove off. As he was leaving, Oldson saw Beard get into
another truck.
5. Oldson’s Statements While
in P rison Awaiting Trial
While incarcerated awaiting trial for the murder of Beard,
Oldson’s conversations with his wife, Minnie, were recorded.
In one conversation, Oldson speculated that law enforcement
may have been able to find “a few molecules of DNA” evi-
dence linking him to Beard. Minnie questioned how that could
be possible if Oldson had never been there.
Oldson explained that in May 1989, he had approached the
“town floozy” at the “saloon” and said, “Hey baby come on out
back.” He got into the passenger side of the pickup, sat down,
and said, “Come on in here with me and we’ll go do some-
thing.” But Beard told him, “No, I don’t like you in that way.”
Oldson then tried to pull her into the truck. They “scrambled
around a little bit,” and Beard may have “bumped her head.”
Beard “managed to jerk herself away.”
Oldson said he was embarrassed because the “town floozy”
was not interested in him. Upset and angry, and unable to face
his coworkers in the bar, he left with the pickup. He went to
the jobsite and “did some things.” Then he went home, took a
bath, and grabbed some laundry. He ran into his father when
he was on his way to the Laundromat.
In another conversation, Oldson again wondered what kind
of evidence law enforcement might have. Oldson wondered
whether law enforcement had found DNA evidence on his
“brick hammer,” the bumper of the truck, or on a gas can. He
explained that his and Beard’s DNA “would have mingled.”
Beard’s DNA could have been in the truck and on him,
because he had grabbed Beard by the arm and Beard had
“struggled back.”
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6. Defense
(a) No Physical Evidence Linking
Oldson to Crime
The defense emphasized that no physical evidence was
found linking Oldson to Beard, despite several searches.
Without stating that Oldson was incarcerated at the time, the
defense emphasized that when law enforcement executed the
search warrant based on Oldson’s journal entries, Oldson was
“more or less quarantined and had no access to the house or the
grounds or the trucks for a nine-month period.” Furthermore,
during the time the search warrants were sought and executed,
Oldson had limited, supervised communication with the house’s
inhabitants. The defense also pointed out that Oldson indicated
in his diary that he knew law enforcement was reading it.
(b) Minnie Denies Strange Behavior
or Being Threatened
Minnie testified for the defense. She said that there was
nothing out of the ordinary in the way Oldson drove out to
the site where the remains were found. Further, she did not
think that Oldson would have been proficient enough in sign
language to carry on a conversation with her at that time.
Minnie denied that Oldson ever threatened to do to her what
he had done to Beard. She testified that Oldson never made
any incriminating statements to her concerning Beard. Minnie
testified that Dasher had a reputation in the community for
being untruthful.
(c) Beard Commonly Left Tavern
With Other Men
The defense adduced evidence that it was common for Beard
to leave the bar with different men. The defense then presented
other likely suspects.
(d) Michael Hawley
The defense presented the prior statements of former Ord
resident, Michael Hawley, deceased at the time of trial. Hawley
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carried in his wallet a picture from a “dirty magazine” of a
woman who looked like Beard. He said he did not like Beard
and described her as a thief and a hustler, and he stated she
had “narced off” a friend of his. Hawley did not have an alibi
for the night of Beard’s disappearance. One witness, a for-
mer Ord resident who was also deceased at the time of trial,
reported to police that he arrived at the Someplace Else Tavern
at 6:30 p.m. on the night of Beard’s disappearance and saw
Beard talking to Hawley. The witness left at 6:45 p.m. Hawley
drove a “maroon with white top” Pontiac Grand Prix with “56
county” plates.
(e) Rex White
John Hopkins, deceased at the time of trial, had given a
statement to law enforcement that shortly after Beard’s disap-
pearance, he had a conversation with White about where Beard
might be. Hopkins was White’s supervisor on a cement job.
White told Hopkins, “‘I know where she is. I can show you
where she’s at. . . . We skinned her alive and I think she liked
it.’” Hopkins reported that White seemed to be telling the truth.
Furthermore, Hopkins got the impression from the conversa-
tion that Beard was out in the open somewhere.
Hopkins’ live-in girlfriend testified that she recalled coming
home and finding Hopkins “sobbing.” The girlfriend testified
over the State’s objection that Hopkins was upset because
White had told him that White killed Beard. Specifically,
White told Hopkins that he skinned Beard and buried her under
concrete under a restroom project north of Ord where White
was working. She and Hopkins drove to the jobsite and found
a bag of lime missing.
(f) Brian Mentzer and Carnival Workers
In a statement to police, Mel Ellingson, a former boyfriend
of Beard’s and deceased at the time of trial, reported that Beard
once told him that a person by the name of Brian Mentzer was
going to kill her and had threatened her once in a bar. Ellingson
also recalled Beard’s telling him that two “‘guys from the
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carnival’” she was acquainted with had called her because they
were going to be visiting. Ellingson said the men drove a green
pickup while they were in Ord. Ellingson also said that the
owner of the carnival lived in Taylor, Nebraska, and therefore
would have “88 county” license plates.
(g) Reported Sightings of Beard
After Her Disappearance
The defense further presented evidence that Beard may have
been seen in the days following her disappearance. One wit-
ness testified that the night of Beard’s disappearance, he saw
an unfamiliar man and woman at the convenience store on the
highway leading into Burwell, Nebraska, about 17 miles from
Ord. The woman was approximately Beard’s weight and stat-
ure, but had darker hair. She appeared “drunk or doped.”
Two other witnesses had reported to law enforcement that
on the day after Beard’s disappearance, they saw someone who
matched the picture and physical description of Beard walk
into a cafe in Morrill, Nebraska, which is about 360 miles from
Ord. She was carrying a jacket and a military green duffelbag.
The bag was “full clear up to the top with clothing or personal
items,” and she appeared tired.
Ellingson said in a statement to police that he was traveling
back to Ord from Valentine, Nebraska, the day after Beard’s
disappearance. En route, at about 6 p.m., he saw a vehicle
traveling in the opposite direction. He was traveling about 60
miles per hour; the other vehicle was traveling about 90 miles
per hour. He noticed there were three people in the vehicle
and he “‘could swear’” that Beard was seated in the middle
between the driver and the other occupant. He believed he
recognized the vehicle as belonging to a person who had pre-
viously lived across from Beard’s house and had dated Beard
at one time.
(h) Sex Ranch Diary
The defense suggested that Beard had been with Jean Backus
and Wetzel Backus after her disappearance and ultimately was
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murdered by Jean Backus. The Backuses owned 2,300 acres in
Garfield County, Nebraska, near Ord.
The defense called the current sheriff for Valley County,
who indicated that in March 2012, he came into contact with
handwritten pages from a diary. The diary contained informa-
tion regarding the possible death of a woman by the name of
“Kathy” from Ord. The sheriff testified that the diary facially
appeared to belong to Jean Backus, who was married at that
time to Wetzel Backus.
The diary indicated that “Kathy’s” death, as well as the
death of three other women, had occurred on the Backus ranch.
The sheriff testified that the other women listed in the diary
were Sharon Bald Eagle, Karen Weeks, and Jill Dee Cutshall.
All these women were known to have disappeared. Bald Eagle
disappeared in 1984, and Weeks and Cutshall disappeared
in 1987.
The sheriff testified the diary indicated that the Backuses
had found Cutshall during a trip to Fremont, Nebraska, walking
and without any clothes, and that the Backuses had found Bald
Eagle in South Dakota. Bald Eagle had in fact disappeared
from a reservation in South Dakota. Cutshall’s clothes had
been found in a forest.
The diary referred to “Kathy” as missing from Ord in 1989,
and the sheriff affirmed that the diary indicated a “local man”
was being blamed for “Kathy’s” disappearance. Further, the
diary indicated the author of the diary had run “Kathy” over
with a pickup.
The sheriff testified that he had conducted an investigation
into the diary. The sheriff explained that Jean Backus denied
writing the diary and had granted law enforcement permission
to search the ranch. Law enforcement conducted a thorough
search and was unable to find any human remains or other
suspicious evidence on the Backus property. The sheriff did
not believe the diary to be valid.
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(i) Jerome Walkowiak
Over defense counsel’s request to declare him unavailable
and utilize only prior statements made to the police, Jerome
Walkowiak testified that he was at the Someplace Else Tavern
on May 31, 1989, and saw Beard talking with a man with a red
beard and other “common-looking guys” with black beards.
The man with the red beard had a ponytail and a knife “hang-
ing on his side.”
Walkowiak remembered that Oldson and Beard were also
talking, and he saw Oldson and Beard go out to the back alley
after Oldson went to the restroom. The bearded men had left
the Someplace Else Tavern just before that. Walkowiak looked
out the back alley and saw a blue, but not dark blue, truck
with “88 county” license plates. The same men he saw Beard
talking to in the bar were in the pickup. Walkowiak testified
that he saw Oldson get into the truck with Beard and the
other men.
Defense counsel then confronted Walkowiak with his state-
ment from 1989 wherein he told law enforcement that he saw
Oldson walk away and that Oldson did not get into the truck
with Beard and the other men. Walkowiak testified that he did
not know why he had said that. The defense proceeded to read
extensively and repeatedly from Walkowiak’s 1989 interview.
Walkowiak testified that he did not remember the 1989 inter-
view and that his memory of the night of May 31, 1989, was
better now than it was then.
7. Verdict and Sentence
The jury returned a verdict of guilty of second degree mur-
der. The court sentenced Oldson to life-to-life imprisonment.
III. ASSIGNMENTS OF ERROR
Oldson makes 12 assignments of error. He assigns that
the trial court erred (1) by admitting excerpts from Oldson’s
journals which were inadmissible under Neb. Evid. R. 404,
Neb. Rev. Stat. § 27-404 (Cum. Supp. 2014), in violation of
his rights to be presumed innocent, due process, and a fair
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trial; (2) by admitting excerpts from Oldson’s journals which
were inadmissible under Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2008), in violation of his rights to be pre-
sumed innocent, due process, and a fair trial; (3) by allowing
Oldson’s journal excerpts to go back with the jury during
deliberations, in violation of his rights to be presumed inno-
cent, due process, and a fair trial; (4) by not admitting the
alleged Jean Backus diary at trial, in violation of his rights
to present a defense, due process, and a fair trial; (5) by
failing to suppress evidence as requested by the defense, in
violation of the 4th and 14th Amendments and their Nebraska
counterparts; (6) by failing to dismiss the case as a violation
of Oldson’s right to a speedy trial under the Due Process
Clause of the 5th and 14th Amendments and their Nebraska
counterparts; (7) by forcing Oldson to choose between effec-
tively cross-examining witnesses and opening the door to
highly prejudicial evidence of other bad acts, in violation of
Oldson’s right to confrontation under the Sixth Amendment
and its Nebraska counterpart; (8) by overruling his motion for
a new trial, in violation of his rights to present a defense, due
process, and to a fair trial; and (9) by giving Oldson a life
sentence when the jury found him guilty of a lesser offense.
Oldson also asserts that (10) the State’s tampering with wit-
nesses Rhonda Donnelson and Walkowiak violated Oldson’s
rights to a fair trial, to present a defense, and to due process
under the 5th, 6th, and 14th Amendments and their Nebraska
counterparts; (11) there was insufficient evidence to support
the conviction; and (12) his conviction should be reversed on
the ground of cumulative error.
IV. ANALYSIS
1. Motion to Suppress
We begin our analysis by addressing Oldson’s assignment
of error that the trial court erred in denying his motion to sup-
press. Oldson argues that by virtue of omitting exculpatory
information, the affidavit in support of the warrant for Oldson’s
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arrest contained deliberately or recklessly false information, in
violation of the Fourth Amendment under Franks v. Delaware.1
Therefore, his recorded conversations while in jail awaiting
trial should have been excluded as fruit of the poisonous
tree. When Oldson’s recorded conversations were offered at
trial, defense counsel did not object to the evidence under the
Fourth Amendment and did not renew the motions to suppress.
Defense counsel instead objected to the statements on the
grounds of foundation, confrontation, and due process. When
the court specifically asked defense counsel if there were any
other objections to the recorded conversations, defense counsel
said that there were not.
[1,2] Where there has been a pretrial ruling regarding the
admissibility of evidence, a party must make a timely and
specific objection to the evidence when it is offered at trial in
order to preserve any error for appellate review.2 The failure to
object to evidence at trial, even though the evidence was the
subject of a previous motion to suppress, waives the objec-
tion, and a party will not be heard to complain of the alleged
error on appeal.3 Furthermore, an objection, based on a specific
ground and properly overruled, does not preserve a question for
appellate review on some other ground not specified at t­rial.4
Because the defense failed to renew its Fourth Amendment
objection at trial, he waived his assignment of error concerning
his motion to suppress.
2. Oldson’s Journal Excerpts
We turn next to Oldson’s journal excerpts, which are the
subject of two assignments of error and the central focus of
Oldson’s appeal.
1
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667
(1978).
2
State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014).
3
Id.
4
See State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
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(a) Standard of Review
[3] 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.5
[4] It is within the discretion of the trial court to determine
relevancy and admissibility of evidence of other wrongs or
acts under the balancing rule and the other acts rule, and the
trial court’s decision will not be reversed absent an abuse
of discretion.6
(b) Analysis
The defense objected to exhibits 263 through 271 under
either rule 403 or rule 404, often both. Oldson makes several
unique arguments in this appeal as to the meaning and appli-
cability of those statutes, based on his interpretation of their
guiding principles. Before addressing the particular exhibits,
therefore, we find it helpful to set forth in detail the guiding
principles of rules 403 and 404. We begin with rule 404.
(i) Rule 404
a. Forbidden Propensity Reasoning
[5] Rule 404, found at § 27-404, codifies the common-law
tradition prohibiting “‘resort by the prosecution to any kind of
evidence of a defendant’s evil character to establish a prob-
ability of his guilt.’”7 “‘The state may not show defendant’s
prior trouble with the law, specific criminal acts, or ill name
among his neighbors, even though such facts might logically
be persuasive that he is by propensity a probable perpetra-
tor of the crime.’”8 This is because propensity evidence may
5
See Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754
N.W.2d 406 (2008).
6
See State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
7
Old Chief v. United States, 519 U.S. 172, 181, 117 S. Ct. 644, 136 L. Ed.
2d 574 (1997).
8
Id.
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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.9
[6] Rule 404 thus prohibits the admission of “[e]vidence
of a person’s character or a trait of his or her character . . .
for the purpose of proving that he or she acted in conformity
therewith on a particular occasion.”10 The prohibition in rule
404(1) consists of two parts: to prove “a person’s character” in
order to show that “he or she acted in conformity therewith.”11
“Proof of a person’s character is barred only when in turn,
character is used ‘in order to show action in conformity
therewith.’”12
Though difficult to define, character has been described as
the generalized disposition or tendency to act in a particular
way in all the varying situations of life, caused by something
internal to the actor that arises from that person’s moral being.13
For example, a person’s character may be “quarrelsome and
contentious,”14 peaceable,15 chaste,16 honest,17 or the opposite
9
Id.
10
Rule 404(1).
11
See, 1 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 2:19
(rev. ed. 2002); 22B Charles Alan Wright & Kenneth W. Graham, Jr.,
Federal Practice & Procedure § 5233 (2014).
12
1 Imwinkelried, supra note 11 at 105.
13
See, State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012); State v. Crider,
375 Mont. 187, 328 P.3d 612 (2014); State v. Marshall, 312 Or. 367, 823
P.2d 961 (1991); State v. Hedger, 115 Idaho 598, 768 P.2d 1331 (1989);
David P. Leonard, The New Wigmore: Evidence of Other Misconduct and
Similar Events § 8.3 (Richard D. Friedman ed., 2009).
14
Trousil v. Bayer, 85 Neb. 431, 433, 123 N.W. 445, 446 (1909).
15
Gering v. School Dist., 76 Neb. 219, 107 N.W. 250 (1906).
16
Brooks v. Dutcher, 22 Neb. 644, 36 N.W. 128 (1888), overruled on other
grounds, City of Omaha v. Richards, 49 Neb. 244, 68 N.W. 528 (1896).
17
State v. Vogel, 247 Neb. 209, 526 N.W.2d 80 (1995).
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of any of those characteristics. The concept of character is gen-
erally understood to have a moral component.18
The second part of the prohibition, to show that “he or
she acted in conformity therewith,” is to ask the trier of fact
to infer what a person did from who that person is.19 It is an
attempt to prove, by initiating an attack on the defendant’s
character, that the defendant committed the acts constituting
the crime charged.20
b. Other Acts Evidence
to Show Propensity
[7] What the State cannot do through direct testimony of the
defendant’s character it cannot do indirectly through evidence
of the defendant’s acts for the purpose of illustrating bad char-
acter. The State cannot introduce other acts that are relevant
only through the inference that the defendant is “‘by propen-
sity a probable perpetrator of the crime.’”21 Stated another way,
the State cannot present the defendant’s other acts so that the
jury makes the intermediate inference of the defendant’s bad
character, leading to the ultimate inference that the defendant
is guilty.22
This approach of establishing guilt through other acts is
even more egregious than presenting reputation or opinion
evidence of the defendant’s bad character. The admission of
other acts evidence presents a special danger of confusion
of the issues and undue prejudice. Not only might the jury
18
See, e.g., 22B Wright & Graham, Jr., supra note 11.
19
1 Imwinkelried, supra note 11. See, also, 12 Robert Lowell Miller, Jr.,
Indiana Evidence § 404.101 (3d ed. 2007 & Cum. Supp. 2015).
20
See, Barbara E. Bergman et al., Wharton’s Criminal Evidence § 4:18
(15th ed. 1997 & Cum. Supp. 2014-15); 1 Edward J. Imwinkelried et al.,
Courtroom Criminal Evidence § 801 (4th ed. 2005). See, also, e.g., State
v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003), disapproved on other
grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
21
State v. Yager, 236 Neb. 481, 490, 461 N.W.2d 741, 747 (1990).
22
See, e.g., 1 Imwinkelried, supra note 11, § 2:21.
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infer action based on the defendant’s general lawbreaking
character, but the jury might subconsciously penalize the
defendant for the proven misdeeds.23 In other words, such
evidence of other acts might encourage a “preventive con-
viction even if [the defendant] should happen to be inno-
cent momentarily.”24
c. When Propensity Reasoning
Is Permissible
The prohibition against proving the character of a person in
order to show action in conformity therewith—in other words,
the use of propensity reasoning—is subject to limited excep-
tions. Those exceptions are generally favorable to the defend­
ant’s use of propensity evidence in his or her defense, while
maintaining the prohibition against the prosecution’s use of
propensity evidence in its case in chief. Rule 404(1)(a) allows
the defendant to offer a pertinent trait of his or her character,
allowing the prosecution to rebut the same only if the defend­
ant offers such evidence. Rule 404(1)(b) allows the defendant
to present evidence of a pertinent character trait of the vic-
tim and allows the prosecution to rebut the same only if the
defend­ant presents such evidence.
Under Neb. Evid. R. 405, Neb. Rev. Stat. § 27-405 (Reissue
2008), the manner in which either party can prove character in
order to show action in conformity therewith, when allowed, is
generally limited to reputation or opinion evidence. In accord­
ance with the special danger that instances of misconduct
entails, other prior acts can be introduced to show character
in order to show action in conformity therewith only if a trait
of character is an essential element of a charge, claim, or
defense, or during cross-examination of reputation or opin-
ion testimony.25
23
Id., § 1:03.
24
Old Chief v. United States, supra note 7, 519 U.S. at 181.
25
Rule 405.
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d. Other Acts Evidence Not for
Propensity Purposes
[8] Evidence of specific instances of conduct that only inci-
dentally impugns a defendant’s character is not prohibited by
rule 404.26 If the underlying theory of the logical relevance of
the other acts evidence is independent of propensity; i.e., if
there is a “‘rational chain of inferences that does not require
an evaluation of character,’” then the court may admit the
evidence of specific instances of conduct.27 The other acts evi-
dence in such circumstances is referred to as having a “special”
or “independent” relevance, which means that its relevance
does not depend upon its tendency to show propensity.28
Rule 404(2) thus states that evidence of “other crimes,
wrongs, or acts” are admissible for purposes other than “to
prove the character of a person in order to show that he or she
acted in conformity therewith.” Rule 404(2) provides the exam-
ples of proper purposes of other acts evidence as being “proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” This list of proper
purposes is illustrative and not meant to be exclusive.29
Authorities note that uncharged misconduct evidence rou-
tinely supports two inferences—one legitimate and one illicit.30
Rule 404(2) permits introduction of relevant evidence concern-
ing the occurrence of “other crimes, wrongs, or acts,” so long
as the sole purpose for the offer is not to establish a defend­
ant’s propensity to act in a particular manner, and thereby
supply a basis for the inference that the defendant committed
26
See, e.g., 40A Am. Jur. 2d Homicide § 286 (2008).
27
State v. Torres, supra note 13, 283 Neb. at 158, 812 N.W.2d at 232
(quoting Leonard, supra note 13).
28
State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).
29
See, State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996); State v.
Myers, 15 Neb. Ct. App. 308, 726 N.W.2d 198 (2006); State v. Bockman, 11
Neb. Ct. App. 273, 648 N.W.2d 786 (2002); State v. Maggard, 1 Neb. Ct. App.
529, 502 N.W.2d 493 (1993).
30
1 Imwinkelried, supra note 11, § 1:03.
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the crime charged.31 The “litmus test is noncharacter logical
relevance”32 of the other acts.
e. Proof of Other Acts
As a threshold matter, the evidence of the other act will be
admissible only if the trier of fact could reasonably conclude
that the act occurred and that the defendant was the actor.33 It
cannot be the product of mere speculation. Rule 404(3) states
that when, in a criminal case, evidence of other crimes, wrongs,
or acts is admissible for a proper purpose, the prosecution must
prove “to the court by clear and convincing evidence,” “out-
side the presence of any jury,” that the accused committed the
crime, wrong, or act.
f. Articulating Proper Purpose
In State v. Sanchez,34 we also established the procedure, not
explicitly set forth in the statutory scheme, that the proponent
of other acts evidence shall state on the record the specific
purpose or purposes for which the evidence is being offered,
upon objection to its admissibility.35 The trial court is simi-
larly required to state the purpose or purposes for which such
evidence is received.36 We explained that such a procedure
provides further protection for the defendant and simplifies our
appellate review.37
31
See, State v. McGuire, supra note 6; State v. Yager, supra note 21; Michael
H. Graham, Handbook of Federal Evidence § 404:5 (7th ed. 2012).
32
1 Imwinkelried et al., supra note 20, § 904 at 372.
33
Bergman et al., supra note 20, § 4:27.
34
State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).
35
See, State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000); State v.
Sanchez, supra note 34; State v. Wisinski, 12 Neb. Ct. App. 549, 680 N.W.2d
205 (2004); State v. Powers, 10 Neb. Ct. App. 256, 634 N.W.2d 1 (2001),
disapproved on other grounds, State v. Smith, 267 Neb. 917, 678 N.W.2d
733 (2004).
36
See id.
37
See State v. Sanchez, supra note 34.
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g. Limiting Instructions
And since evidence of other acts submitted for a proper
purpose may at the same time lead the jury to infer bad char-
acter and employ propensity reasoning, the trial court must,
if requested by the defendant,38 instruct the jury to focus only
on the proper purpose of the evidence. This requirement does
not derive from rule 404, but from the more general provi-
sions of Neb. Evid. R. 105, Neb. Rev. Stat. § 27-105 (Reissue
2008). Under rule 105, “[w]hen evidence which is admissible
as to one party or for one purpose but not admissible as to
another party or for another purpose is admitted, the judge,
upon request, shall restrict the evidence to its proper scope and
instruct the jury accordingly.” (Emphasis supplied.)
While, normally, the better practice is for a trial court to
instruct the jury regardless of request, so as to ensure the
evidence is not used for an improper purpose, the major-
ity view is that the court does not have a duty to present a
limiting instruction to the jury sua sponte.39 We have thus
said that the failure to provide limiting instructions absent a
38
State v. Torres, supra note 13; State v. Collins, 281 Neb. 927, 799 N.W.2d
693 (2011); State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011); State
v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010); State v. Floyd, 277 Neb.
502, 763 N.W.2d 91 (2009); State v. McManus, 257 Neb. 1, 594 N.W.2d
623 (1999); State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997);
State v. Newman, supra note 29; State v. Bockman, supra note 29; State
v. Gray, 8 Neb. Ct. App. 973, 606 N.W.2d 478 (2000), overruled on other
grounds, State v. Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001).
39
See, U.S. v. Perkins, 94 F.3d 429 (8th Cir. 1996); United States v. Multi-
Management, Inc., 743 F.2d 1359 (9th Cir. 1984); United States v. Price,
617 F.2d 455 (7th Cir. 1979); State v. Hill, 307 Conn. 689, 59 A.3d 196
(2013); State v. Russell, 171 Wash. 2d 118, 249 P.3d 604 (2011); State v.
Miles, 211 Ariz. 475, 123 P.3d 669 (Ariz. App. 2005); Brown v. State, 890
So. 2d 901 (Miss. 2004); People v. Griggs, 110 Cal. App. 4th 1137, 2 Cal.
Rptr. 3d 380 (2003); Stallworth v. State, 868 So. 2d 1128 (Ala. Crim. App.
2001); People v. Rice, 235 Mich. App. 429, 597 N.W.2d 843 (1999); State
v. Williams, 593 N.W.2d 227 (Minn. 1999); State v. Shuman, 622 A.2d
716 (Me. 1993); People v. Pennese, 830 P.2d 1085 (Colo. App. 1991);
Leonard, supra note 13, § 4.5.
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request is not reversible error.40 Indeed, it may at times be a
tactical decision by defense counsel not to highlight, through
a limiting instruction, the evidence itself or the fact that the
jury could infer from the evidence anything other than its
proper purpose.41
(ii) Rule 403
[9,10] We now turn more briefly to the principles underly-
ing rule 403. All relevant evidence is subject to the overriding
protection of rule 403, including other acts evidence. Rule
403 allows the exclusion of evidence if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by consider-
ations of undue delay, waste of time, or needless presentation
of cumulative evidence.42
[11,12] Relevant evidence is that which has any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable
than it would be without the evidence.43 The probative value
of evidence involves a measurement 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.44
[13,14] Most, if not all, evidence offered by a party is cal-
culated to be prejudicial to the opposing party.45 Unfair preju-
dice means an undue tendency to suggest a decision based on
an improper basis.46 Unfair prejudice speaks to the capacity
of some concededly relevant evidence to lure the fact finder
40
State v. Valverde, supra note 4.
41
See, e.g., State v. Washington, 693 N.W.2d 195 (Minn. 2005).
42
See State v. Myers, supra note 29.
43
State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).
44
State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012).
45
Id.
46
Id.; State v. Newman, supra note 29.
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into declaring guilt on a ground different from proof specific
to the offense charged, commonly on an emotional basis.47
When considering whether evidence of other acts is unfairly
prejudicial, we consider whether the evidence tends to make
conviction of the defendant more probable for an incor-
rect reason.48
(iii) Application
Applying these principles to the exhibits in question, we
begin with exhibit 266.
a. Exhibit 266
i. Background
In exhibit 266, Oldson writes: “Maybe the problem has been
my making girls too high a priority - and having real prob-
lems with accepting rejection. Which may be how all this got
started. ‘Get it any way you can’ (?) Doesn’t sound like a good
attitude. It got me in trouble.”
a) Theory of Logical Relevancy
The theory of logical relevancy propounded by the State and
adopted by the trial court was that this entire statement referred
to Oldson’s murder of Beard and his reason for killing her. The
statement tied into other statements by Oldson that Beard had
rejected him on the night of her disappearance.
The court concluded that the exhibit was admissible as evi-
dence of motive and consciousness of guilt. In essence, the
court found that the jury could reasonably infer from exhibit
266 that Oldson was acknowledging he had gotten himself into
“trouble” because he attempted to “‘[g]et it any way you can’”
when Beard rejected him on the night of her disappearance.
The defense objected to this statement under rules 403
and 404.
47
See Old Chief v. United States, supra note 7.
48
State v. Christian, 237 Neb. 294, 465 N.W.2d 756 (1991).
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b) Court Concluded Exhibit Not
Other Acts Evidence
The trial court specifically found that exhibit 266 was not
evidence of another act under rule 404(2). The court also rea-
soned, “[t]he State is not offering this to prove [Oldson] has a
character trait (problem with accepting rejection) that causes
him or has caused him to murder other women” and, further,
that the exhibit “does not indicate or imply that [Oldson] kills
women who reject him.”
c) Court Gave Limiting Instruction
In consideration of the proper purpose for which the court
admitted the statement that Oldson had “problems with accept-
ing rejection,” the trial court sua sponte instructed the jury
to limit its consideration of exhibit 266. The court orally
instructed: “You have seen this evidence for a specific limited
purpose. This evidence is being offered for the limited purpose
to help you decide motive for the crime [Oldson] is currently
charged with. You must consider this evidence only for this
limited purpose.”
ii. Analysis
a) Probative Value: Whether Statement
Referred to Beard Was
Question for Jury
We agree with Oldson that the obtuse style of Oldson’s
journal writing somewhat lessened the probative value of the
journal excerpts.49 But this does not render them inadmissible.
The probative value of exhibit 266 depended upon the deter-
mination that Oldson was writing about Beard. The determina-
tion of that foundational fact—that Oldson was referring to
Beard—was a fact conditioning the relevancy of exhibit 266.50
49
See, Com. v. Avila, 454 Mass. 744, 912 N.E.2d 1014 (2009); Winfield v.
U.S., 676 A.2d 1 (D.C. 1996).
50
See, Neb. Evid. R. 104(2), Neb. Rev. Stat. § 27-104(2) (Reissue 2008); 45
Am. Jur. Trials 1 (1992).
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It was the province of the jury to determine if the excerpt
referred to Beard.51
The trial court’s gatekeeping function was limited to deter-
mining whether the jury could reasonably find that condition-
ing fact by a preponderance of the evidence.52 The trial court
did not abuse its discretion in performing that function. The
reasonableness of an inference that the statement in exhibit 266
referred to Beard must be viewed in light of the other evidence
presented, especially the other journal excerpts.53 In exhibit
263, Oldson describes his knowledge that the county attorney
wished to bring charges against him regarding “the ‘missing
one.’” And in exhibit 267, Oldson laments: “I really have no
idea about what to do or where to go. My first priority is to get
rid of something A.S.A.P.! That is, if I can still find them. The
only . . . link left between me and . . . .”
As will be explained below, we find these other jour-
nal excerpts admissible in their own right and supportive of
the reasonable inference that Oldson was referring in those
excerpts to Beard. Viewing the exhibits together, the jury could
reasonably infer that when Oldson referred in exhibit 266 to
“trouble” and “how all this got started,” he was referring, in a
purposefully vague way, to the anticipated charges against him
for the disappearance of Beard.
b) Excerpts Not Taken Out of Context,
and Defense Could Have
Completed Evidence
Oldson argues that the excerpts were unfairly prejudicial
because they were taken from the journal out of context. We
disagree. If the defense truly thought these excerpts were
unfairly taken from the entire journal in a way that was
51
See id.
52
See Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 99 L. Ed.
2d 771 (1988).
53
See, e.g., David P. Leonard, Character and Motive in Evidence Law, 34
Loy. L.A. L. Rev. 439 (2001).
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misleading, the defense could have sought admission of other
diary excerpts under the rule of completeness.54 Moreover, the
trial court was presented with the entirety of the journal in per-
forming its gatekeeping function. We have likewise reviewed
the journal in its entirety. We do not find any support for
Oldson’s assertion that by pulling exhibit 266 from its overall
context, it became misleading.
c) Hobson’s Choice Argument
Neither was there a so-called Hobson’s choice that rendered
exhibit 266 inadmissible. The defense was free to present to
the jury the contextual evidence that Oldson was incarcerated
for the attempted assault of another woman at the time he
wrote this journal entry.
Hobson’s choice traditionally means no real choice at all—a
choice of taking what is available or nothing at all.55 It is used
to a lesser extent to denote the choice between one of two or
more equally objectionable things.56 This latter definition is
apparently the one being used by Oldson, as he does not argue
that rule 404 barred him from adducing the evidence. Oldson
considered it equally objectionable to stay silent as to other
possible contextual explanations of exhibit 266 or to present
evidence of the assault for which Oldson was incarcerated at
the time exhibit 266 was written. Oldson’s solution to this
dilemma is that the State should not have been allowed to
create it.
Oldson presents no legal authority for this Hobson’s choice
claim. Oldson tries to incorporate rule 404 into his Hobson’s
choice argument, but rule 404 does not address the admis-
sibility of evidence based on potential avenues of cross-­
examination. Furthermore, the logical relevance of any elicita-
tion during cross-examination of the context of the writings
54
See Neb. Evid. R. 106, Neb. Rev. Stat. § 27-106 (Reissue 2008).
55
Concise Oxford American Dictionary 425 (2006).
56
Webster’s Third New International Dictionary of the English Language,
Unabridged 1076 (1993).
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would be independent of propensity and accordingly not pro-
hibited under rule 404.
Admittedly, it might be a tough choice between standing
silent and presenting evidence that Oldson was referring to an
unrelated attempted assault conviction. But tough choices are
not uncommon in trials. Hobson’s choice arguments such as
presented here are rarely found in case law. To the extent such
arguments have been raised in similar contexts, most courts
have rejected them.
For example, most courts reject “Catch 22” reasoning when
considering whether the State can introduce escape as evi-
dence of consciousness of guilt, when it is factually unclear
whether the defendant was escaping from the crime he was
being tried for or from other charges relating to other bad
acts.57 Courts reason that the defendant should not receive
more favorable treatment on the ground that the defendant
is alleged to have committed several offenses rather than a
single crime.58
We are similarly unpersuaded here that the evidence may
be rendered inadmissible because it presents a difficult strate-
gic decision due to the defendant’s criminal history. We find
no legally supportable reason why Oldson’s Hobson’s choice
meant the State could not admit exhibit 266 into evidence for
the jury’s consideration.
d) “Pure” Character Evidence
Oldson also argues that exhibit 266 was inadmissible
because the statement that he had problems accepting rejection
57
1 Imwinkelried, supra note 11, § 3:05. See, also, United States v. De
Parias, 805 F.2d 1447 (11th Cir. 1986), overruled on other grounds, U.S.
v. Kaplan, 171 F.3d 1351 (11th Cir. 1999); United States v. Kalish, 690
F.2d 1144 (5th Cir. 1982); United States v. Boyle, 675 F.2d 430 (1st Cir.
1982); State v. Hughes, 596 S.W.2d 723 (Mo. 1980); People v. Remiro, 89
Cal. App. 3d 809, 153 Cal. Rptr. 89 (1979); Fentis v. State, 582 S.W.2d
779 (Tex. Crim. App. 1976); Fulford v. State, 221 Ga. 257, 144 S.E.2d 370
(1965).
58
Id.
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was “pure” character evidence, which he asserts is inadmissible
under rule 404(1) under any circumstances.
i) Oldson’s Argument Abstracts Single Phrase
In arguing that there is a “pure” character statement ren-
dering exhibit 266 inadmissible, Oldson focuses solely on
the phrase, “having real problems with accepting rejection,”
abstracted from the references to “how all this got started” and
“[i]t got me in trouble.” Oldson thus extracts this one phrase
from any context that it referred to Oldson’s actions with Beard
on the night of her disappearance and his motive for those
actions. We find this extraction approach to a single phrase in
exhibit 266 unfounded.
ii) Statement Not Character Trait
In any event, we find no merit to Oldson’s “pure” character
arguments as they pertain to this statement. First and most
fundamentally, we do not consider that “having real problems
with accepting rejection” is a character trait as contemplated
by rule 404. It is not a generalized disposition or tendency to
act in a particular way in all the varying situations of life, aris-
ing from that person’s moral being.59 At most, it is a recurring
emotion when encountering a certain situation.
iii) Even if Statement Reflects Character,
Admissible for Motive
Even if “having real problems with accepting rejection”
were reflective of a character trait, it would not thereby be
rendered inadmissible. Exhibit 266 was found by the court
to be admissible for the limited purpose of showing Oldson’s
motive for killing Beard. We have explained that motive
is the specific state of mind that leads or tempts a person
to indulge in a specific criminal act.60 Motive qualifies as
a legitimate noncharacter theory because although character
carries a connotation of an enduring general propensity, a
59
See sources cited supra note 13.
60
See, State v. Torres, supra note 13; State v. Floyd, supra note 38.
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motive is a situationally specific emotion.61 We have already
concluded that the jury could reasonably infer from exhibit
266 that Oldson was reflecting upon the fact that he had
killed Beard because she rejected him. Thus, the jury could
infer that Oldson was stating a situationally specific emotion
intrinsic to the charged act. The exhibit was not robbed of this
noncharacter logical relevance simply because Oldson chose
to write his journal entries in a generalized, obscure, and self-
reflective fashion.
iv) “Character” Evidence Not Prohibited
by Rule 404 When Admitted
for Proper Purpose
Oldson asserts that because his journal entry is worded in a
generalized and obscure fashion, it is “pure” character evidence
and is inadmissible even for a proper purpose. Oldson argues
that character demonstrated by anything besides other acts can
never be admissible for a proper purpose.
[15] We find no merit to this argument. If character evi-
dence is admitted for a proper purpose, then, ipso facto, it is
not admitted for the purpose of showing propensity. As such,
it does not fall under the general, two-part prohibition found in
rule 404(1), that evidence of a person’s character or a trait of
his or her character is inadmissible for the purpose of proving
that he or she acted in conformity therewith.
And Oldson’s underlying premise that there ought to be a
distinction between when evidence is admissible for a proper
purpose based on the form of the proof is inconsistent with the
underlying policies of rule 404, which recognize the special
danger of other acts evidence. As we have already discussed,
indirect evidence of bad character through bad acts is even
more harmful than direct opinion or reputation evidence of
bad character, because the jury might subconsciously punish
the defendant for the prior bad acts, in addition to his or her
bad character.
61
1 Imwinkelried, supra note 11, § 3:15.
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Admittedly, we find it hard to imagine circumstances where
a more traditional notion of a character trait—a generalized
characteristic with moral connotations, such as being a vio-
lent or dishonest person—could legitimately have “special”
or “independent” relevance. But we have already said that
this phrase concerning problems with rejection is not really a
“character trait” as contemplated by rule 404.
To the extent that character under rule 404 could be seen as
encompassing more particular thoughts or feelings, courts gen-
erally reject the argument that character can never be admit-
ted for a proper purpose.62 Under circumstances where the
relevance of the evidence is not outweighed by any unfairly
prejudicial effect, evidence of far more worse traits than “hav-
ing real problems with accepting rejection” have been held
admissible for a demonstrated proper purpose. This is true
regardless of whether the trait was illustrated through other
acts evidence or through opinion, reputation, or self-­reflective
statements by the defendant.63 Traits such as misogyny,64
racism,65 alcoholism,66 Satanism or witchcraft,67 and being
interested in “wealth, power, and death,”68 have been found
62
See, People v. Griffin, 224 P.3d 292 (Colo. App. 2009); Masters v. People,
58 P.3d 979 (Colo. 2002); People v. Hoffman, 225 Mich. App. 103, 570
N.W.2d 146 (1997); State v. Powell, 793 S.W.2d 505 (Mo. App. 1990);
State v. Crumb, 277 N.J. Super. 311, 649 A.2d 879 (1994); State v.
Waterhouse, 513 A.2d 862 (Me. 1986). Compare, Dunkle v. State, 139 P.3d
228 (Okla. Crim. App. 2006); Turpin v. Com., 780 S.W.2d 619 (Ky. 1989),
abrogated on other grounds, Thomas v. Com., 864 S.W.2d 252 (Ky. 1993);
State v. Johnson, 71 Ohio St. 3d 332, 643 N.E.2d 1098 (1994).
63
See id.
64
See, Masters v. People, supra note 62; State v. Johnson, supra note 62.
65
See, People v. Griffin, supra note 62; People v. Hoffman, supra note 62;
State v. Crumb, supra note 62.
66
See State v. Powell, supra note 62.
67
See, Dunkle v. State, supra note 62; State v. Powell, supra note 62, State
v. Waterhouse, supra note 62.
68
Turpin v. Com., supra note 62, 780 S.W.2d at 620.
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admissible for proper purposes, most commonly, to establish
motive for what would otherwise be an unprovoked and ran-
dom act of violence.
Most apposite to the case at hand, courts have found that
a defendant’s self-reflective statements indicating motive or
state of mind for the crime he or she is being charged with
are admissible for a proper purpose, especially if made in the
context of an admission or statement against interest.69 Thus,
for example, in People v. Greenlee,70 the court held that the
defendant’s statement in a letter to a friend after the victim’s
death, commenting on a thriller novel and how he loved when
the murder plan came together, “‘[w]hich is, of course, how
I got in this mess anyway,’” was admissible.71 The court
explained that this statement, combined with statements before
the victim’s death that the defendant had a plan to shoot and
kill a woman and hide her body, was relevant for the proper
purpose of proving the defendant’s mental state when he shot
the victim.72
v) Conclusion
Exhibit 266 was not rendered inadmissible by virtue of
being “pure” character evidence.
e) Unfair Prejudice Did Not Outweigh
Probative Value
It is unclear what prejudicial inferences could be made
from the phrase “having real problems with accepting rejec-
tion” outside of the inference that this statement referred
particularly to Beard. That inference is not “unfair.” In other
words, to the extent Oldson’s concern really is that the State
69
See, e.g., Com. v. Bradshaw, 86 Mass. App. 74, 13 N.E.3d 638 (2014);
People v. Greenlee, 200 P.3d 363 (Colo. 2009); Masters v. People, supra
note 62.
70
People v. Greenlee, supra note 69.
71
Id. at 367.
72
Id.
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is trying to obtain a conviction through a prohibited character
attack, then we cannot fathom what bad character trait lead-
ing to a conviction could be derived from this so-called pure
character statement. Many people dislike rejection. There
is no inherent propensity inference that people who have
problems with accepting rejection are violent to those who
reject them.
Balancing the probative 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.73 As one court said, “‘Only rarely—and in extraordi-
narily compelling circumstances—will we, from the vista of a
cold appellate record, reverse a district court’s on-the-spot judg-
ment concerning the relative weighing of probative value and
unfair effect.’”74 The trial court did not abuse its discretion in
determining that the danger of unfair prejudice did not outweigh
the probative value of exhibit 266.
b. Exhibit 270
We turn next to exhibit 270.
i. Background
Oldson states:
Love that gut, tummy, belly, abdomen, stomach, mid-
riff, middle, torso, etc. Extensive experience comes with
Sandy, Dondie, C.B., and Linda. Other mediocre expe-
riences with Robin, Cathie, Shirley,(o) Shawna, Alyce,
K.P., ([illegible]) Donna H., Irma S., Allison, Ronda (from
G.I. 1980), Mary Jane, Teresa, 2116; resident upstairs;
1980, Salinas 1987, Lincoln 48th/Leighton (1989), Darlene,
Connie, Pam, Tammy S., Cami G, Bonnie M, Carolyn
D, et. al. List remains incomplete. Will add more as
73
See, State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), disapproved
on other grounds, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015);
State v. Payne-McCoy, supra note 44.
74
U.S. v. Bello-Perez, 977 F.2d 664, 670 (1st Cir. 1992).
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more comes available. For now, must rate C.B. as most
gratifying, Sandy as most comfortable, Teresa as prettiest,
maybe Darlene. Just don’t know - they[’]re all so nice.
YUH! Go on and gitcha some!
Defense counsel argued that the exhibit was inadmissible in
its entirety. The defense objected at trial to exhibit 270 under
rules 403 and 404(1) and (2). The defense resisted any compro-
mise that would strike portions of this excerpt.
a) Theory of Logical Relevancy
In allowing exhibit 270 into evidence, the trial court implic-
itly determined that exhibit 270 supported the reasonable infer-
ence that Oldson had sexual contact with Beard on the night
of her disappearance. The court also specifically stated that
exhibit 270 was relevant to “disprove an exculpatory statement
made by [Oldson] that he did not have sex until he was mar-
ried and/or that he did not have sex with . . . Beard.”
b) Limiting Instruction
The court did not specifically instruct the jury as to exhibit
270, but generally instructed, sua sponte, as to all the journal
excerpts as follows:
Jurors, you are now seeing evidence that is being sub-
mitted to you for a specific limited purpose. This evi-
dence is being offered for the limited purpose to help
you decide what if any knowledge [Oldson] had of . . .
Beard, the nature and extent of any relationship he and
. . . Beard may have had, and for the purpose of evaluat-
ing [Oldson’s] credibility with respect to any other state-
ments that he made. You must consider this evidence
only for this limited purpose.
ii. Analysis
Oldson makes several disparate arguments on appeal con-
cerning exhibit 270. First, Oldson argues that the sentence
referring to Oldson’s affinity for the midriff area is, simi-
larly to the “having real problems with accepting rejection,”
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inadmissible “pure” character evidence. Oldson claims that the
sentence indicates a “stomach fetish” and that the State was
attempting to influence the jury to convict Oldson because of
his “creepy” sexual interests.75
Second, Oldson argues that it was improper for the State to
introduce this excerpt for “impeachment” purposes when the
inconsistent statements Oldson made indicating he was a virgin
and that he had no sexual relationship with Beard were intro-
duced by the State, not by Oldson.76
Third, Oldson argues that in order for the diary excerpt to be
relevant for any proper purpose, the State needed to prove by
clear and convincing evidence that sexual “acts” with all the
women listed actually occurred.77
Fourth, and apparently alternative to his third argument,
Oldson asserts that the excerpt is ambiguous—that the list of
names might refer “merely to fantasies” instead of actual acts.78
Further, “C.B.” might not actually refer to Beard. In such case,
Oldson argues that in order to clarify that the list referred
only to fantasies, he was presented again with the Hobson’s
choice of either not making such argument or submitting to
the jury unfairly prejudicial character evidence of his “unusual
sexual proclivities.”79
Finally, Oldson generally argues that any probative value
of exhibit 270 was outweighed by its unfair prejudice and its
tendency to confuse and mislead the jury.
a) Relevant for Consciousness of Guilt
We agree with the trial court that exhibit 270 was relevant
insofar as it supported the reasonable inference that Oldson had
sexual contact with Beard. Evidence that Oldson had sexual
75
Brief for appellant at 55, 61.
76
Id. at 61.
77
Id.
78
Id.
79
Id. at 66.
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contact with Beard was circumstantial evidence of his guilt
because Oldson had stated he was a virgin, Oldson and Beard
had apparently not had a sexual relationship prior to her disap-
pearance, and Oldson said that Beard rejected Oldson’s sexual
advances on the night of her disappearance.
In other words, if Oldson had sexual contact with Beard,
then at least some of his prior exculpatory statements about his
relationship with Beard and the events of the night of her dis-
appearance were false. Prior false exculpatory statements are
probative of the defendant’s consciousness of guilt.80 When the
evidence is sufficient to justify an inference that the defend­
ant acted with consciousness of guilt, the fact finder can con-
sider such evidence even if the conduct could be explained in
another way.81
b) Sexual Contact With Beard
Contemporaneous With Killing
Is Not Other Acts Evidence
Evidence supporting the reasonable inference that Oldson
had sexual contact with Beard on the night of her disappear-
ance does not present a rule 404 issue, because it does not
concern “other” acts. Rather, it concerns an act intrinsic to the
crime. The State’s theory of the case was that Oldson killed
Beard in the course of a sexual assault. That the jury did not
ultimately convict on that concurrent assault charge does not
retrospectively change the nature of the evidence to be of
“other acts.”
c) List of Other Women
i) Whether Oldson Had Sexual Contact With
Other Women Listed Is Irrelevant to
Logical Relevance of Excerpt
The trial court explicitly stated that exhibit 270 was not to
show that Oldson had sexual contact with the other women
80
State v. Draganescu, 276 Neb. 448, 775 N.W.2d 57 (2008).
81
Id.
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listed. The relevancy of this list of names, as the State
pointed out, was to support the inference that “C.B.” referred
to Beard.
In a list of names, “C.B.” is the only person referred to
solely by two initials. In his brief on appeal, even Oldson
recognizes that “the entire list is needed to demonstrate that
Oldson is referring to . . . Beard.”82 Rule 404 has no applica-
tion when the relevancy of the evidence does not depend on the
actual occurrence of the other act indicated by a statement, but
instead upon the statement itself.83
Oldson’s argument that the other women listed could have
been mere fantasies does nothing to further the argument that
the list of women somehow fell under rule 404. Such a possi-
bility likewise does not undermine the logical relevance of the
list of women. In other words, it would not follow that because
Oldson’s sexual “experiences” with the other women listed
were fantasies, the “most gratifying” “experience” with “C.B.”
was also a fantasy.
We have already rejected Oldson’s Hobson’s choice argu-
ments and find them no more persuasive in the context of
exhibit 270.
ii) Limiting Instruction
We find it pertinent that the court specifically instructed the
jury with regard to the diary excerpts that it was to focus on
the limited purposes of the nature and extent of any relation-
ship Oldson had with Beard and the credibility of Oldson’s
prior statements. While it may have been appropriate to give
the jury a more specific limiting instruction for exhibit 270,
defense counsel did not request any such limiting instruction.
Thus, the defense has waived any error in the failure to give
82
Brief for appellant at 66.
83
See State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997). See, also, State
v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).
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one.84 Likewise, to the extent that there was a special risk of
prejudice because one of the listed names may have referred to
Oldson’s sister, defense counsel could have asked that particu-
lar name be stricken. Defense counsel did not.
iii) Other Women Not Uncharged Misconduct to Be
Proved by Clear and Convincing Evidence
Because the relevancy of the references to other women
did not depend on the occurrence of any actual sexual acts
with those women, there was nothing that needed to be proved
under rule 404(3) by clear and convincing evidence.
iv) Reference to Other Women
Not Unfairly Prejudicial
Any unfair prejudice from other acts inferences that the
jury could have derived as to the other women listed would be
minimal. When the evidence merely implies uncharged mis-
conduct, courts tend to find any error in admitting the evidence
to be harmless.85 Furthermore, “[w]hen the act is lawful or a
mere tort rather than a crime, there is less risk of prejudice; and
evidence of the act is all the more admissible.”86 While prom­
iscuity or even sexual fantasies might be considered by some
people to be reflective of a bad character trait, it is hardly the
kind of character trait that would compel a jury by improper
propensity reasoning to convict a defendant of murder.
d) No “Creepy” Fetish Reference
Turning our attention to the first sentence of exhibit 270,
we are generally unconvinced by Oldson’s characterization
84
See, State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013); Olson v.
Sherrerd, 266 Neb. 207, 663 N.W.2d 617 (2003); State v. Scott, 200
Neb. 265, 263 N.W.2d 659 (1978); Stapleman v. State, 150 Neb. 460,
34 N.W.2d 907 (1948); Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533
(1946).
85
1 Imwinkelried, supra note 11, § 2:16.
86
1 Imwinkelried et al., supra note 20, § 904 at 371.
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of exhibit 270 as “character evidence” of a “creepy” “stom-
ach fetish.”87
To begin with, Oldson’s perspective on this sentence seems
clouded by a plethora of evidence and a theory of the prosecu-
tion that was never presented to the jury. Although the State
sought to introduce evidence that Oldson had a fetish that
involved cutting the abdomen area and that Beard’s abdomen
had been cut in the course of her murder, it was not allowed to
do so. Such evidence, had it been presented, would have por-
trayed Oldson’s midriff affinity in a darker light.
But the only evidence presented to the jury even remotely
touching upon Oldson’s sexual preferences was the first sen-
tence of exhibit 270: “Love that gut, tummy, belly, abdomen,
stomach, midriff, middle, torso, etc.” The jury was presented
with absolutely no evidence that such an affinity for the mid-
riff area was connected with violence, or that Beard’s murder
involved her midriff area.
Reference to a female body part simply clarified the sexual
nature of the other sentences. This illustrated that the “experi-
ences” Oldson referred to throughout the excerpt were sexual
experiences, either real or imagined. As even defense counsel
noted, “[Y]ou can’t understand what this means without seeing
the stomach issues and talking about the sexual interests.”
[16] This brings us to another point. If the defense was
particularly concerned about references to the midriff area, it
could have sought a compromise whereby that sentence was
stricken and substituted with a more general explanation of
context. Instead, defense counsel pursued a scorched earth
policy. We will not allow defendants to gain an advantage
on appeal by failing to pursue strategies at trial to mini-
mize prejudice.
We have already rejected Oldson’s arguments pertaining
to so-called pure character statements when used for nonpro-
pensity purposes. The logical relevancy of Oldson’s affinity
87
Brief for appellant at 55, 61.
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toward midriffs did not depend upon propensity reasoning. And
it is hard to imagine how the jury could ever derive, through
propensity reasoning, that because Oldson liked women’s mid-
riffs, he killed Beard.
e) No Abuse of Discretion in Concluding
Exhibit 270 More Probative Than
Unfairly Prejudicial
Whether Oldson was referring to Beard and a sexual expe-
rience with Beard the night of her disappearance was for the
jury to decide, and the inferences that might follow from
such determination would not be unfairly prejudicial. Balanced
against this probative nature of exhibit 270 was the pos-
sible inference of promiscuity, an affinity for midriffs, and the
extremely remote inference of incest that defense counsel argu-
ably waived by failing to ask the court to strike one name from
the list of names in the excerpt. The trial court did not abuse its
discretion in its exercise of its gatekeeping function by deter-
mining that the probative value of exhibit 270 outweighed the
danger of unfair prejudice.
f) Not Inadmissible Because Relevance
Dependent Upon Other Evidence
Entered by State
Finally, we find no merit to Oldson’s argument that the
admission of exhibit 270 was improper because its relevance
depended in part upon Oldson’s previous statements, intro-
duced by the State, which indicated that he did not have sexual
contact with Beard. The case law Oldson relies on does not
stand for the proposition he propounds. We have said that
impeachment may not be utilized as an artifice for the purpose
of putting before the jury substantive evidence that is other-
wise inadmissible.88 But demonstrating that a prior, nontesta-
mentary exculpatory statement is false is not the same thing
88
See State v. Jackson, 217 Neb. 363, 348 N.W.2d 876 (1984). See, also,
e.g., State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
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as impeachment. Besides that, the evidence in exhibit 270
pertaining to Oldson’s relationship with Beard cannot be said
to be otherwise inadmissible. Finally, the evidence of Oldson’s
prior statements concerning his relationship with Beard and the
events of the night of her disappearance cannot be character-
ized as merely an artifice. We find no basis for concluding that
exhibit 270 is inadmissible simply because its relevance is con-
nected to other evidence properly admitted by the State.
c. Exhibits 263, 264, 265, 267,
268, 269, and 271
The remaining excerpts from Oldson’s journal concern
Oldson’s apparent reflections on being a suspect in police
investigations of Beard’s disappearance, and we address
them together.
i. Background
In exhibit 263, Oldson writes: “I guess the whole import
of this thing with the ‘missing one’ has not hit home, yet.
But it should, as they are now looking for charges. If they
do prefer charges, well - ? I don’t see how they can hang me
for anything.”
In exhibit 265, he writes: “Well, it looks as if this foolish-
ness about the missing doo-doo has reached a point where the
end is in sight. That’s good. I like it - perhaps now I can ease
my mind.”
In exhibit 267, Oldson writes:
I really have no idea about what to do or where to go.
My first priority is to get rid of something A.S.A.P.! That
is, if I can still find them. The only . . . link left between
me and . . .
But after that, I imagine I’ll stay in the Midwest and
try something. Maybe stick around here to work for Pop.
He no doubt needs the help. And I could use the $ . . . .
In exhibit 268, Oldson writes: “Well, there it is. What’s next,
I wonder? It’s gettin’ closer - and G.S. and the Fried Eggplant
gang aren’t movin’ - although they still could, conceivably.
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How, I don’t know - in fact, [illegible] wonder if there is any
way he could even manufacture something? I doubt it.”
Finally, in exhibit 269, Oldson writes:
Fried Eggplant gang ain’t makin’ it - they’re gonna slip
and fall and just generally fu— up! That’s nice . . .
I’m gonna get away and I’ll bet it breaks their yellow
hearts - they’re so dead-set that I did this and they’re not
gonna look any farther unless they are forced to. Well;
now, they’d best look elsewhere, ‘cuz I refuse to be a part
of this charade any longer. I’m well fed up with this . . .
tomfoolery - they can stick it in their asses. So there.
ii. Analysis
a) Exhibits Not Unfairly Prejudicial
For the most part, Oldson argues only that these exhibits
were inadmissible under rule 403. Oldson argues that these
excerpts have limited probative value due to their ambiguity.
Oldson claims this ambiguity is due, in part, to the excerpts’
being taken out of context. Oldson asserts that the exhibits’
limited probative value must be balanced against the unfair
prejudice of the Hobson’s choice Oldson was faced with in
deciding whether to give the excerpts more proper context for
the jury.
We have already discussed at length the Hobson’s choice
theory formulated by Oldson in this appeal, and we find no
merit to it. Moreover, we find no basis for concluding that the
excerpts have been manipulated into a disingenuous light by
being taken out of the overall context of the journal.
Specifically, our reading of the exhibits in the context of the
entirety of the journal supports the inference that Oldson was
referring in these exhibits to Beard and not to the crime for
which he was incarcerated at the time the diary was written
or for some other crime for which he was under investigation.
Surrounding these excerpts, Oldson repeatedly expressed his
frustration that he was not allowed a work release. He men-
tions Beard by name, stating that the Valley County Attorney
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was “so obsessed with Beard.” It appears Oldson thought he
was not getting a work release because the county attorney and
other law enforcement, which he called the “Fried Eggplant
gang,” considered him the primary suspect in Beard’s disap-
pearance. As Oldson approached his release date, he expressed
concern that law enforcement did not want to let him out of jail
and that he would have to come back.
Although Oldson points out that when he wrote about get-
ting rid of something “A.S.A.P.,” he was incarcerated and
therefore could not have access to whatever thing he wished to
get rid of, he was approximately 2 months from release. The
surrounding context of that excerpt indicates Oldson was writ-
ing about his plans upon release.
b) Future Intention Is Not
Other Acts Evidence
We reject any suggestion by Oldson that writing one’s future
intention to destroy evidence is evidence of other acts within
the purview of rule 404. The writing, stating an intention to
get rid of evidence, was not itself a legally cognizable act.
Moreover, we have said that destruction of evidence of the
crime charged is inextricably intertwined with the crime.89
c) Probativeness, Though Sometimes
Limited, Not Outweighed
by Unfair Prejudice
We agree with Oldson that many of these exhibits are
“barely inculpatory.”90 But to the extent that some of these
exhibits lack great probative value, neither are they particularly
prejudicial. And those exhibits that are somewhat more preju-
dicial also have more probative value.
As Oldson points out, exhibits 268 and 269 are largely
exculpatory. Oldson opines in exhibits 268 and 269 that the
only way law enforcement could bring charges against him
89
See State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
90
Brief for appellant at 64.
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is if it manufactured evidence. But, for the most part, we dis-
agree with Oldson’s characterization of the exhibits as painting
Oldson to be a “strange and obnoxious” character.91 Instead,
Oldson paints himself as justifiably angry.
In exhibits 269 and 271, Oldson admittedly expresses some
unseemly disdain for law enforcement. But balanced against
the prejudicial nature of the expressions of disrespect for law
enforcement, exhibits 269 and 271 are probative of Oldson’s
guilt. The jury could reasonably infer from exhibit 269 that
Oldson thought he would “get away,” because law enforce-
ment was going to make mistakes. The jury could reasonably
infer from exhibit 271 that law enforcement would not find any
incriminating evidence, because Oldson had particular knowl-
edge about the evidence.
The oblique nature of Oldson’s references to Beard in exhib-
its 263, 264, 265, and 267 or evidence relating to her disap-
pearance—“the ‘missing one,’” “certain things,” “the missing
doo-doo,” and Oldson’s stating he needed to “get rid of some-
thing A.S.A.P.”—are even more probative and less “unfairly”
prejudicial. These excerpts support the inference of a guilty
conscious. “‘No one doubts that the state of mind which we
call “guilty consciousness” is perhaps the strongest evidence
. . . that the person is indeed the guilty doer; nothing but an
hallucination or a most extraordinary mistake will otherwise
explain its presence.’”92
Consciousness of guilt may generally be inferred from the
intent of or an attempt by the accused to conceal, alter, or
remove evidence of the crime. In this case, consciousness
of guilt could be inferred from Oldson’s reference to a need
to “get rid of something A.S.A.P.”93 Consciousness of guilt
91
Id.
92
State v. Clancy, 224 Neb. 492, 499, 398 N.W.2d 710, 716 (1987) (quoting
2 John Henry Wigmore, Evidence in Trials at Common Law § 273(1)
(James H. Chadbourn rev. ed. 1979)), disapproved in part on other
grounds, State v. Culver, 233 Neb. 228, 444 N.W.2d 662 (1989).
93
See 29A Am. Jur. Evidence § 819 (2008).
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may also be inferred from the secretive way in which Oldson
referred to Beard throughout his writings. Balanced against
such probative value is only the disrespectful tone that such
references demonstrate.
The court did not abuse its discretion in finding exhibits 263,
264, 265, 267, 268, 269, and 271 admissible under rule 403.
d. Taking Exhibits Into Jury Room
Oldson’s last argument and assignment of error pertaining to
all the journal excerpts is that the court erred in allowing them
in the jury room during deliberations. On this point, Oldson
asks that we reconsider our opinion in State v. Vandever.94
In Vandever, we held that heightened procedures under Neb.
Rev. Stat. § 25-1116 (Reissue 2008), for refreshing the jury’s
memory with regard to recorded testimony, is limited to testi-
monial evidence. We explained that “testimonial evidence” for
purposes of § 25-1116 encompasses only live testimony at trial
by oral examination or by some substitute for live testimony
that is a recording of an examination conducted prior to the
time of trial and for use at trial.95
Oldson’s journal was neither an examination nor a prepara-
tion for use at trial. It was not introduced as a substitute for
live testimony. We decline Oldson’s invitation to reconsider
our opinion in Vandever. Therefore, we conclude that the trial
court did not abuse its discretion in allowing exhibits 263
through 271 to go back to the jury room like any other exhibit
entered into evidence during trial.
3. Witnesses K ittinger and Dasher: Hybrid Hobson’s
Choice With R ight to Confrontation and
Presumption of Innocence
Oldson next makes several arguments pertaining to wit-
nesses Dasher and Kittinger, asserting that the admission of
their testimony presented a different kind of Hobson’s choice:
94
State v. Vandever, 287 Neb. 807, 844 N.W.2d 783 (2014).
95
Id. at 815, 844 N.W.2d at 790.
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one that violated his right to confrontation and the presumption
of innocence.
(a) Background
(i) Dasher
Dasher testified at trial that both Oldson and Oldson’s father
had threatened her in order to prevent her from reporting the
comments Oldson had made to her concerning Beard. When
Dasher testified that Oldson’s father had threatened her, the
defense moved for a mistrial. The defense argued that the fact
that Dasher was mentioning the threat by Oldson’s father for
the first time at trial indicated her credibility was question-
able. The defense then argued it was not in a position to attack
Dasher’s credibility in the way it fully merited “because of the
404 issues.”
The defense elaborated outside the presence of the jury
that according to past statements, Dasher had heard Oldson
also threaten his sister. The defense claimed that Dasher was
making things up and that the defense was unable to properly
cross-examine Dasher without presenting prior bad acts to
the jury concerning Oldson’s relationship with his sister. The
defense also noted that Dasher had previously made allegations
against Oldson that were never pursued by law enforcement or
corroborated, but it did not want to present those accusations
to the jury.
The court overruled the motion for mistrial. When Dasher
continued to testify that she did not report Oldson’s state-
ment to law enforcement right away because she did not think
Oldson was guilty, the defense again moved for a mistrial,
arguing that the line of questioning was “walking down a
path or expecting her to say . . . I didn’t say it because I was
scared of him which are 404 issues.” The second motion for
mistrial was overruled. Little testimony was elicited from
Dasher afterward.
Subsequently, a hearing was held for purposes of creat-
ing a record for appellate review on the motion for mistrial.
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The defense entered into evidence investigative reports of
interviews which the defense argued demonstrated Dasher’s
inconsistent statements and lack of truthfulness. The reports
generally describe transgressions by Oldson against Dasher,
her daughter, and Oldson’s sister.
(ii) Kittinger
The defense had moved in limine to exclude Kittinger’s
testimony reporting that the day after Beard’s disappearance,
when a law enforcement vehicle approached, Oldson said law
enforcement was probably looking for him. As relevant here,
the defense objected on the ground that Kittinger’s testimony
presented a Hobson’s choice, wherein the defense would be
unable to effectively cross-examine Kittinger without opening
the door to inadmissible prior bad acts, in violation of rule
404(2). In this regard, the defense explained that in a prior
statement to law enforcement, Oldson’s father, deceased, said
that the statement Kittinger referred to had really occurred after
a different incident in November 1989, for which Oldson was
ultimately incarcerated in 1990.
Defense counsel was allowed to question Kittinger, under
oath, outside the presence of the jury. But the defense did not
question Kittinger about whether Oldson’s statement could
have been made at a later date, sometime in November 1989.
The court overruled the motion in limine.
(b) Standard of Review
A trial court has the discretion to determine the relevancy
and admissibility of evidence, and such determinations will
not be disturbed on appeal unless they constitute an abuse of
that discretion.96
(c) Analysis
Oldson argues broadly that the admission of the testimony
of Dasher and Kittinger violated his right to confrontation and
96
Sturzenegger v. Father Flanagan’s Boys’ Home, supra note 5.
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the presumption of innocence by placing him in a Hobson’s
choice. Oldson claims both witnesses were actually recall-
ing unrelated other acts. He argues that, at the very least, this
Hobson’s choice rendered the testimony of these witnesses
more prejudicial than probative under rule 403. He does not
argue specifically that the court erred in denying his motion for
mistrial on these grounds. Thus, we consider these arguments
in the context of the admissibility of Dasher’s and Kittinger’s
testimony, and whether the trial court abused its discretion in
allowing those witnesses to testify.
[17] An accused’s constitutional right of confrontation is
violated when either (1) he or she is absolutely prohibited from
engaging in otherwise appropriate cross-examination designed
to show a prototypical form of bias on the part of the wit-
ness or (2) a reasonable jury would have received a signifi-
cantly different impression of the witnesses’ credibility had
counsel been permitted to pursue his or her proposed line of
cross-examination.97
[18] Under the presumption of innocence, the State must
establish guilt solely through the probative evidence introduced
at trial.98 The right to a fair trial requires courts to be alert to
courtroom practices that undermine the fairness of the factfind-
ing process.99 The jury’s verdict must rest on a dispassionate
consideration of the evidence.100 Guilt shall not be founded on
official suspicion, indictment, continued custody, or other cir-
cumstances not adduced as proof at trial.101
The principles underlying the rights to confrontation or to a
fair trial add nothing to our analysis of the merits of Oldson’s
Hobson’s choice argument. In fact, that argument seems espe-
cially disingenuous as it pertains to Dasher and Kittinger. The
97
State v. Ballew, 291 Neb. 577, 867 N.W.2d 571 (2015).
98
State v. Iromuanya, supra note 88.
99
Id.
100
Id.
101
State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008).
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trial court went out of its way to allow a cross-examination
of those witnesses outside the presence of the jury in order
to determine that their testimony was not a confused recol-
lection of other acts. Furthermore, Oldson argues that much
of the incidents of misconduct Dasher reported were “wild
accusations.”102 We do not understand how making the choice
to reveal wild accusations during cross-examination could vio-
late rule 404.
[19] While rule 404 may prevent the admission of other
acts evidence for propensity purposes as a protection of the
presumption of innocence,103 it does not follow that the State
violates due process by adducing testimony that could result
in the revelation of other acts if the defense chooses to pursue
certain lines of questioning on cross-examination. Whatever
choice was presented to defense counsel through the pre-
sentation of these two witnesses, such choice did not violate
Oldson’s right to confrontation, to a fair trial, or rule 404. And
no unfair prejudice derived from Kittinger’s and Dasher’s tes-
timony insofar as the other acts evidence was not presented to
the jury by the State. Thus, neither did their testimony violate
rule 403.
4. Tampering With Witnesses
We turn next to Oldson’s argument that, in violation of due
process principles concerning the right to present a complete
defense, the police tampered with witnesses Donnelson and
Walkowiak. With regard to Donnelson, the defense moved in
limine to exclude her testimony. And, although the motion
was overruled, she was not called as a witness by the State.
The defense did not articulate at trial a due process, witness
tampering claim outside of the motion to exclude Donnelson’s
testimony. We conclude that the defense has presented no
102
Brief for appellant at 120.
103
See State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).
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cognizable assignment of error concerning any alleged witness
tampering of Donnelson that was preserved below. Therefore,
we address only the allegations regarding Walkowiak.
(a) Background
(i) Objections and Rulings
The defense moved in limine to prevent “any law enforce-
ment officer to testify in any manner to rebut . . . Walkowiak’s
past recollection recorded using any information that was
obtained from an interview that law enforcement conducted
on August 24, 2011.” The court granted the motion. The court
found that a significant number of the 2011 statements were
obtained in an “unfair manner,” as they were based on ques-
tions that misrepresented facts and confused the witness.
Defense counsel asked the court, further, to declare
Walkowiak incompetent to testify and unavailable, so that
rather than allowing Walkowiak to testify at trial, the defense
could simply publish to the jury a statement Walkowiak
made to law enforcement in 1989. The defense argued that
Walkowiak’s recollection was irreparably confused by the
2011 interview and that the only reliable evidence as to what
Walkowiak witnessed on the night of Beard’s disappearance
was what he had said in the 1989 interview. The court over-
ruled the defense’s motion to declare Walkowiak unavailable.
The defense thereafter withdrew any prior motion it had made
to declare Walkowiak incompetent to testify.
(ii) 1989 Statement
In a 1989 statement to law enforcement, Walkowiak said
that he looked out the window of the back door to the alley
after Oldson and Beard walked out. He witnessed Beard get
into a medium-blue Ford pickup truck with “88 county” license
plates. He said there were two men in the truck. The driver
had a red beard and a ponytail, and the other man had a black
beard and black hair. Oldson was still standing in the alley, and
Walkowiak saw Oldson walk away.
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(iii) Multiple Interviews and
Multiple Stories
Law enforcement interviewed Walkowiak multiple times
after the 1989 interview. These other interviews were appar-
ently conducted in 1990, 1992, and 2010 and are not in
the record.
(iv) Walkowiak’s Testimony at Hearing
on Motion in Limine
At a hearing outside the presence of the jury, Walkowiak
testified that when interviewed more recently in 2011, law
enforcement told him there was no window in the back door at
the Someplace Else Tavern. Walkowiak said when he insisted
that he must have opened the door, the officer became upset
and threatened to throw him in jail.
Walkowiak testified that he still vaguely remembered some
parts of what had occurred on May 31, 1989. He was presented
with the 1989 interview to refresh his recollection. Walkowiak
testified that he remembered Beard voluntarily crawled into a
blue truck with “88 county” plates. The driver had a red beard
and carried a “big knife on his side.” Walkowiak testified that
he saw Oldson climb into the truck with Beard and the red-
bearded man.
(v) 2011 Interview
A full transcript of the 2011 interview was entered into
evidence for purposes of the hearing. In the beginning of the
interview, Walkowiak testified that he saw Beard leave with
Oldson out the back door into the alley. He said he did not see
Oldson or Beard after that. The door to the alley, Walkowiak
said, was solid; there was no window in it. When thereaf-
ter confronted with his 1989 interview, Walkowiak recalled
that there was a window in the door to the alley and that he
had watched Beard climb into a pickup with a man with a
red beard.
When, moments later, law enforcement assured Walkowiak
that he had nothing to fear from Oldson anymore, Walkowiak
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said he did not see anything after Beard and Oldson left
through the back door of the Someplace Else Tavern. When law
enforcement officers pressed Walkowiak to tell him who had
him make up the story about the “88 county” truck, Walkowiak
denied that anyone had told him to tell the story. He could not
recall why he had told that story before. Then Walkowiak said
that sometimes he thought the red-bearded man story was the
truth and that sometimes he thought it was not.
The officers tried to focus Walkowiak’s attention on getting
justice for Beard and closure for Beard’s sister. The officers
emphasized that they knew Walkowiak was not involved in
Beard’s disappearance but that they needed him to tell the
truth. At some later point in the interview, as tensions rose, an
officer suggested that there was no window in the back door
of the bar, so the statement in 1989 could not be accurate.
Walkowiak said he simply did not remember giving the state-
ment in 1989.
The interviewing officers continued to press Walkowiak
for information about why he told the red-bearded-man story.
The questioning became more forceful. Eventually, one of the
officers told Walkowiak firmly that there was no window in
the back door of the Someplace Else Tavern. After a break,
Walkowiak stated, “The more I think about it, that story comes
to mind.” And because he had apparently seen it with his “own
two eyes,” if there were no window in the back door, he must
have walked into the alley. Walkowiak could not imagine
himself making up a story about Beard’s leaving with a red-
bearded man, so “that’s what I must have seen.”
Shortly after that, however, upon the law enforcement offi-
cers’ suggestions, Walkowiak confirmed he probably had just
heard the story around town and repeated it. Five minutes later,
Walkowiak said that that was a lie; he did not hear the story
from anybody. When one of the officers eventually pointed
out that they were “just going in a big circle,” Walkowiak
responded, “Yeah, I know it. I wish I could get off the circle.
I don’t want to be in no circle anymore.” When asked by law
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enforcement what they were supposed to think, Walkowiak
responded, “That I’m a confused person on this.”
(vi) Walkowiak’s Testimony at Trial
As set forth in the background section, Walkowiak testified
before the jury that he was at the Someplace Else Tavern on
May 31, 1989, and saw Beard talking with a man with a red
beard and other “[c]ommon-looking guys” with black beards.
The man with the red beard had a ponytail and a knife “hang-
ing on his side.” Walkowiak also saw Oldson and Beard talking
and go out together to the back alley. The bearded men had
left the Someplace Else Tavern just prior to that. Walkowiak
looked out the back alley and saw a blue truck with “88
county” license plates. The same men he saw Beard talking to
in the bar were in the pickup. It seemed like an “awful crowded
pickup.” Walkowiak testified that he saw Oldson get into the
truck with Beard and the other men.
Defense counsel confronted Walkowiak with his statement
from 1989 wherein he said that Oldson had walked away and
did not go into the truck. Walkowiak testified that he did not
know why he had said that. The defense proceeded to read
extensively and repeatedly from Walkowiak’s 1989 interview.
Walkowiak testified that he did not remember the 1989 inter-
view and that his memory of the night of May 31, 1989, was
better now than it was then.
(b) Standard of Review
It is within the discretion of the trial court to determine
whether the unavailability of a witness under Neb. Evid.
R. 804, Neb. Rev. Stat. § 27-804 (Reissue 2008), has been
shown.104 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and the evidence.105
104
State v. Kitt, 284 Neb. 611, 823 N.W.2d 175 (2012).
105
Id.
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(c) Analysis
It is not entirely clear what precise error Oldson asserts
the trial court made. Oldson was denied his request to have
Walkowiak declared unavailable so that Oldson could submit
to the jury only prior police reports in which he said he saw
Beard leave with other men on the night of her disappearance.
Oldson sought to avoid the jury’s learning of Walkowiak’s
more recent recollection that Oldson also left with Beard and
the other men on the night of her disappearance. We find no
error in this ruling.
Oldson’s argument that Walkowiak was unavailable—
despite his presence, willingness to testify, and affirmation that
he recalled the events of the evening in question—was based
loosely on accusations that the police had deliberately confused
Walkowiak during questioning in order to turn what were once
exculpatory accounts into inculpatory ones. Rule 804 sets forth
the examples of witness unavailability. The most pertinent pro-
visions are in rule 804(1)(c) and (d): “(c) Testifies to lack of
memory of the subject matter of his statement; or (d) Is unable
to be present or to testify at the hearing because of death or
then existing physical or mental illness or infirmity.” Rule 804
also generally provides: “A declarant is not unavailable as a
witness if his exemption, refusal, claim of lack of memory,
inability, or absence is due to the procurement or wrongdoing
of the proponent of his statement for the purpose of preventing
the witness from attending or testifying.”
[20] Oldson does not rely on rule 804, however. He relies
on broad due process propositions to argue Walkowiak was
unavailable. He points out that whether rooted directly in
the Due Process Clause of the 14th Amendment or in the
Compulsory Process or Confrontation Clause of the 6th
Amendment, the federal Constitution guarantees criminal
defendants a meaningful opportunity to present a complete
defense.106 We can find no case law discussing whether an
106
State v. Phillips, 286 Neb. 974, 840 N.W.2d 500 (2013).
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alleged due process violation based on improper police ques-
tioning could render a defense witness unavailable, and Oldson
points to none.
[21,22] The right to present a defense is not unqualified and
is subject to countervailing public interests such as prevent-
ing perjury and investigating criminal conduct.107 Furthermore,
the aim of the requirement of due process is not to exclude
presumptively false or unreliable evidence, but to prevent
fundamental unfairness in the use of evidence, whether true or
false.108 “Only when evidence ‘is so extremely unfair that its
admission violates fundamental conceptions of justice’” has
the U.S. Supreme Court imposed a “constraint tied to the Due
Process Clause.”109
Webb v. Texas110 is the principal case that Oldson relies on
in making his due process arguments. In Webb, the trial judge
on his own motion admonished the defense’s only witness dur-
ing a temporary recess before the witness was to be called.
The U.S. Supreme Court described the trial judge as having
“gratuitously” singled out the witness for not only a lengthy
admonition on the dangers of perjury, but also to imply he
expected the witness to lie, and to “assure” the witness that
he would personally see that the witness would be prosecuted
if he lied.111 The trial court had also described in detail to the
defense witness the detrimental consequences of a perjury
107
See, Taylor v. Illinois, 484 U.S. 400, 108 S. Ct. 646, 98 L. Ed. 2d 798
(1988); Buie v. Sullivan, 923 F.2d 10 (2d Cir. 1990); United States v.
Whittington, 783 F.2d 1210 (5th Cir. 1986).
108
See Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473
(1986).
109
Perry v. New Hampshire, ___ U.S. ___, 132 S. Ct. 716, 723, 181 L. Ed. 2d
694 (2012).
110
Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972). See,
also, e.g., U.S. v. Heller, 830 F.2d 150 (11th Cir. 1987).
111
Webb v. Texas, supra note 110, 409 U.S. at 97.
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conviction for the witness’ present sentence and possibility for
parole.112 The witness chose not to testify.113
The U.S. Supreme Court reasoned that in light of the great
disparity between the posture of the presiding judge and that
of the witness, and the unnecessarily strong terms used, the
judge “could well have exerted such duress on the witness’
mind as to preclude him from making a free and voluntary
choice whether or not to testify.”114 The Court held that the
trial judge had driven the witness off the stand and had
thereby deprived the defendant of due process of law under the
14th Amendment.
We similarly held in State v. Ammons,115 that the defendant
was deprived of due process when the prosecutor drove a mate-
rial defense witness off the stand by threatening that the wit-
ness’ prior plea agreement would be null and that the witness
would be prosecuted if he testified at the defendant’s trial. The
witness was going to admit that he, not the defendant, was the
true perpetrator.116 But after the discussion with the prosecutor,
the witness took the Fifth Amendment and refused to testify.
We said that “[t]he constitutional right of a defendant to call
witnesses in his defense mandates that they must be called
without intimidation. A prosecutor may impeach a witness in
court but he may not intimidate him in or out of court.”117 We
explained that if prejudice results from intimidation of a wit-
ness, a defendant is deprived of due process.118
[23,24] Oldson argues that the police, during the 2011 inter-
view, acted on behalf of the State in intimidating Walkowiak
112
Id.
113
Id.
114
Id., 409 U.S. at 98.
115
State v. Ammons, 208 Neb. 797, 305 N.W.2d 808 (1981).
116
Id.
117
Id. at 801, 305 N.W.2d at 811.
118
State v. Ammons, supra note 115.
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into changing his eyewitness report. But even in the context
of confessions by an accused, lying, good cop/bad cop, and
other tactics designed to play on the interrogee’s sense of
responsibility or guilt have been held under the circumstances
not to violate due process. For example, the U.S. Supreme
Court, in Frazier v. Cupp,119 held that a defendant’s confession
was not coerced, despite the fact that during somewhat vigor-
ous questioning, the police lied and told the defendant that
his accomplice had confessed and had incriminated him. We
have explained that mere deception will not render a statement
involuntary or unreliable; the test is whether the officer’s state-
ments overbore the will of the defendant.120 Furthermore, we
have said that police practices of deception during interroga-
tion are not inherently offensive.121
We have rejected in several cases the assertion that police
imposition of psychological pressure rendered a defendant’s
confession involuntary under the circumstances presented.122
In State v. Melton,123 for instance, the police had interviewed
the defendant immediately upon his release from the hospital
after sustaining injuries in a car crash in which his friend had
been killed. Both the defendant and his friend had been drink-
ing heavily. The defendant claimed the friend had been driv-
ing. But the officers obtained a confession that the defendant
was driving after showing him pictures of the accident and
telling him that “as a man,” it “would be the right thing to
do to tell the truth,” and that “to place blame on a dead per-
son merely as a means of escaping responsibility would be a
119
Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969).
120
See, State v. Nissen, supra note 83; State v. Walker, 242 Neb. 99, 493
N.W.2d 329 (1992).
121
See State v. Haywood, 232 Neb. 97, 439 N.W.2d 511 (1989).
122
State v. Melton, 239 Neb. 506, 476 N.W.2d 842 (1991); State v. Norfolk,
221 Neb. 810, 381 N.W.2d 120 (1986); State v. Tucker, 215 Neb. 636, 340
N.W.2d 376 (1983).
123
State v. Melton, supra note 122.
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cowardly thing to do.”124 We affirmed the trial court’s determi-
nation that the defendant’s confession was not coerced.
The Second Circuit describes three basic elements of any
claim under the right to present a defense: (1) deprivation of
material and exculpatory evidence that could not reasonably
be obtained by other means, (2) bad faith or misconduct on
the part of the government, and (3) that the absence of funda-
mental fairness infected the trial and prevented a fair trial.125
If any claim could be made that police questioning confused a
potentially exculpatory eyewitness or intimidated the witness
into changing his or her story, then we agree that, minimally,
these elements would apply.
Assuming without deciding that due process could mandate
witness unavailability because of intimidating or deceptive
police questioning, the defense has failed to demonstrate a due
process violation. The defense did not call the interviewing
officers to testify at the hearings on the motions in limine or
the motion to declare Walkowiak unavailable. And there is little
to suggest from the 2011 interview itself that the officers acted
in bad faith when interviewing Walkowiak. Oldson claims law
enforcement confused Walkowiak into believing there was no
window in the door, but Walkowiak himself began his 2011
interview saying that there was no window in the door and
that he did not see Beard or Oldson after they walked to the
alley. It is not even clear that the officer who later pressed
upon Walkowiak that there was no window in the door in 1989
knew that statement to be false; there was no longer a window
in that door at the time of questioning. And regardless, lying
and emotional manipulation are usually insufficient to violate
due process.
We find no merit to Oldson’s assignment of error concern-
ing the alleged tampering with Walkowiak.
124
Id. at 508, 476 N.W.2d at 844.
125
See, e.g., U.S. v. Pinto, 850 F.2d 927 (2d Cir. 1988).
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5. Speedy Trial Under
Due Process Clause
We turn next to Oldson’s speedy trial arguments.
(a) Background
The allegation that the State violated Oldson’s constitutional
right to a speedy trial formed the basis of both Oldson’s plea in
abatement and motion for new trial, which were both overruled
by the trial court. Oldson asserted that the State deliberately
delayed for purposes of obtaining a tactical advantage and
that this was evidenced by the fact that there was no evidence
submitted at trial that was not available in the early 1990’s.
The State pointed out that there was no intended or actual
advantage from the delay and that the State had attempted to be
exceptionally accommodating with regard to the defense’s use
of residual hearsay. The record is unclear as to why the delay
in prosecution occurred.
(b) Standard of Review
[25,26] A criminal defendant’s claim of denial of due process
resulting from preindictment delay presents a mixed question
of law and fact.126 When reviewing a trial court’s determination
of a claim of denial of due process resulting from preindict-
ment delay, an appellate court will review determinations of
historical fact for clear error, but will review de novo the trial
court’s ultimate determination as to whether any delay by the
prosecutor in bringing charges caused substantial prejudice to
the defendant’s right to a fair trial.127
(c) Analysis
[27] The Fifth Amendment’s Due Process Clause has only a
“‘limited role to play in protecting against oppressive delay’”
in the criminal context.128 It is the measure against which
126
State v. Watson, 285 Neb. 497, 827 N.W.2d 507 (2013).
127
Id.
128
State v. Hettle, 288 Neb. 288, 304, 848 N.W.2d 582, 596 (2014).
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prearrest or indictment delay is scrutinized,129 and statutes of
limitations are the primary safeguard against prejudicial pre-
indictment delay.130 The due process claimant’s burden is a
“‘heavy’” one, requiring a showing of both substantial actual
prejudice resulting from the delay and bad faith on the part of
the government.131
[28] Thus, the Due Process Clause requires dismissal only
if a defendant can prove that the preindictment delay caused
actual prejudice to his or her defense and was a deliberate
action by the State designed to gain a tactical advantage.132 We
have stated that a defendant bears the burden to show actual
prejudice, and not just prejudice due to dimmed memories,
inaccessible witnesses, and lost evidence.133
Oldson argues that the State waited and reinterviewed wit-
nesses until their memories improved to the advantage of the
State. He generally asserts that evolving town gossip turned
against Oldson as the subsequent assault conviction became
known and that this also affected witnesses’ memories.
Oldson illustrates that one witness, a local resident, did
not mention seeing the Oldson family truck’s being cleaned
shortly after Beard’s disappearance until his third statement
to police in October 1992. Oldson also illustrates Donnelson’s
and Walkowiak’s changing reports. Oldson generally asserts
that nearly every favorable witness has died during the State’s
delay, but he does not illustrate which favorable witnesses he
might be referring to.
The reason for the delay in bringing the indictment is less
obvious here than it was in a similar case of State v. Watson,134
where advances in technology allowed the State to finally
129
Id.
130
State v. Trammell, 240 Neb. 724, 484 N.W.2d 263 (1992).
131
State v. Hettle, supra note 128, 288 Neb. at 305, 848 N.W.2d at 596.
132
See State v. Trammell, supra note 130.
133
State v. Watson, supra note 126; State v. Glazebrook, supra note 103.
134
State v. Watson, supra note 126.
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obtain additional evidence against the defendant. But, in State
v. Glazebrook,135 we concluded without elaborating on the jus-
tification for the delay that there was simply no evidence dem-
onstrating the State had intentionally caused the approximately
30-year delay in order to gain an unfair tactical advantage.
Such is likewise true here.
It is the defendant’s burden to prove both bad faith on the
part of the government in intentionally delaying prosecution
in order to gain a tactical advantage and substantial actual
prejudice resulting from the delay. This burden in not sustained
through speculation over what witnesses’ memories would oth-
erwise be or through the defense’s inability to “imagine” any
explanation for the delay other than intentional calculation.136
We agree with the trial court that Oldson did not sustain his
burden to demonstrate a constitutional speedy trial violation.
6. A lleged Backus Diary
Next, Oldson assigns as error the trial court’s refusal to
admit into evidence photocopies of a diary that Oldson claims
was written by Jean Backus (hereinafter Backus).
(a) Background
As previously described, the defense was able to adduce at
trial testimony that a diary had been found and that the diary
was purportedly authored by Backus. The defense was also
able to adduce testimony detailing the events described in the
diary, such as the abduction and sexual abuse of the missing
women and the killing of “Kathy” from Ord. And the defense
adduced evidence that the diary’s description of the missing
women was somewhat consistent with real events.
But the defense was unable to enter the diary pages them-
selves into evidence. After a separate hearing, the court had
sustained the State’s objection to the admission of the diary
pages on the ground of lack of authenticity. The court explained
135
State v. Glazebrook, supra note 103.
136
Brief for appellant at 116.
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that there was insufficient evidence to support a finding that
the writing was what Oldson purported it to be.
(i) Mailed From Unknown
Address in Omaha
The parties had stipulated at the hearing that the purported
diary pages were mailed from an unknown address in Omaha,
Nebraska, to Oldson’s home address while he was awaiting
trial. The mailing envelope was handwritten in print and indi-
cated it was from “Lonnie,” with no return address. Inside
were 54 pages of handwritten entries by an unnamed author-
ship, which appeared to have been torn from a bound diary,
and are contained in the record pursuant to Oldson’s offer
of proof.
(ii) Backus’ Deposition
The defense submitted Backus’ deposition testimony at the
hearing. Backus was 88 years old at the time of her deposition.
Backus testified that she never kept a diary or journal. She
did not recognize the leather diary cover or the diary pages
presented to her. She did not recognize the handwriting of the
inscription or the diary pages.
(iii) Handwriting
Although defense counsel obtained several exemplars of
Backus’ handwriting during the deposition, no handwriting
analysis was conducted. Nor did defense counsel argue at
the hearing that a jury might find, pursuant to Neb. Rev.
Stat. § 25-1220 (Reissue 2008), that the diary was written in
Backus’ handwriting.
Facially, the handwriting on the envelope seems to match to
a handwritten inscription on what was purportedly the inside
of the diary’s cover. Although it is not entirely clear from the
record where the diary cover was found, the exhibit is a photo-
graph of a leather-bound diary with numerous pages torn out.
The inside of the cover has a handwritten inscription: “Merry
Xmas, Jean,” as well as Backus’ address at the ranch.
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(iv) Douglas Olson
A person of some acquaintance with Backus, Douglas Olson
(Douglas), was suspected by all parties of having mailed the
diary pages to Oldson. Backus testified in her deposition that
Douglas worked at a sale barn in O’Neill, Nebraska, where she
sold her cattle. Sometimes, Douglas would work for her at the
ranch hauling and vaccinating her cattle.
(v) Testimony by Private Investigator
Defense counsel’s private investigator testified at the hear-
ing that Katie Bowers, Douglas’ former live-in girlfriend, had
found that Douglas possessed three boxes of information that
appeared to pertain to Backus, including Backus’ mail. Bowers
had turned these items over to law enforcement, and a private
investigator had gained access to them. In addition, Bowers
had directly given the private investigator other writings that
Douglas had sent her since she had turned over the boxes
to law enforcement. Bowers worked at the veterinary clinic
where Backus brought her animals. Bowers had a protection
order against Douglas.
The private investigator testified that as of the time of the
hearing, he had been unable to locate Douglas. Douglas’ last
known residences were a halfway house in Omaha and, prior to
that, the Regional Center in Norfolk, Nebraska.
(vi) Douglas’ Other Writings
In support of the authenticity of the diary pages, the defense
presented copies of several letters apparently either sent by
Douglas to Bowers or found in the boxes of Backus-related
items kept by Douglas in Bowers’ house. These included sev-
eral typed letters from an unnamed author to Bowers and sent
in a handwritten envelope to her, in handwriting facially simi-
lar to that of the envelope in which the diary pages had been
mailed to Oldson and similar to the diary cover inscription.
The letters themselves are largely incomprehensible. They
seem to refer to a conspiracy, with the ultimate end of Backus’
keeping the ranch and other parties’ gaining money. The letters
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also refer to a man being held for several weeks, drugged, in
Douglas’ basement and Douglas’ attempts to free him. There is
no reference in these letters to a diary or to kidnapped women
kept at the Backus ranch.
The private investigator also obtained a handwritten letter
that was in the possession of the owners of the O’Neill sale
barn where Douglas had worked. The letter, offered for pur-
poses of the hearing, had been addressed to Douglas and had
been sent to the sale barn. It purported to threaten Douglas and
made reference to having “her diary,” that “Jean will lose her
ranch,” and that Douglas should “[k]eep [his] mouth shut or
[he] could wind up sleeping with the others.”
Another letter sent to Bowers in 2011—in an envelope
with writing similar to the one in which the diary pages were
sent to Oldson—contained a handwritten note: “KATE THEY
DONT KNOW I MADE COPIES.” The note appears to be in
the same distinctive handwriting as the mailing envelopes and
the diary inscription. An attached map, in what appears to be
the same handwriting, is written on the back of a 2010 cor-
respondence to Backus from her optometrist. The map refers
to a gun, Backus, and “BURN THIS WHEN DONE.” A typed
letter from “Marie” to “JORGE,” and contained in the same
envelope, referred to the directions on the map for the pickup
point for a rifle. It also states, “This is between jean and kate
for her dog . . . .”
(vii) Consistencies of Diary
With Real Events
In addition to this supposed chain of custody evidence,
defense counsel’s argument for the authenticity of the diary
pages as being authored by Backus was that the entries could
be corroborated by real events. The defense pointed out the
real kidnappings of Cutshall, Weeks, and Bald Eagle.
Defense counsel also pointed out that neighbors who were
mentioned in the diary were Backus’ actual neighbors. The
diary also described cattle escaping and wandering onto the
neighbors’ property, and Backus confirmed in her deposition
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that sometimes that occurred. The diary indicated that Backus
and Wetzel Backus preferred Hereford cows and that they had
horses. Backus also confirmed those things to be true.
One diary entry states, “[F]riday we get to go to SD to look
for our new guest we can have 3 guest[s] stay in there we have
3 sets of the shackles but can make more.” Defense counsel
pointed out that Backus admitted in her deposition that they
had sometimes gone to South Dakota to buy bulls.
On September 18, 1989, the diary states that Wetzel, born in
January 1910, had died. Defense counsel pointed out that these
dates of Wetzel’s birth and death are correct.
Thereafter, a diary entry states, “what to do with Kathy
now,” then describes that “Kathy” ran away and will not come
back, and “I hit her with pickup will haul her to some place
else as they R lookin for her.” Defense counsel emphasized
that the blunt trauma found on Beard’s remains could be con-
sistent with being struck by a vehicle.
(b) Standard of Review
[29] Because authentication rulings are necessarily fact spe-
cific, a trial court has discretion to determine whether evidence
has been properly authenticated. An appellate court reviews the
trial court’s ruling on authentication for abuse of discretion.137
An abuse of discretion, warranting reversal of a trial court’s
evidentiary decision on appeal, occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence.138
(c) Analysis
[30] We find that the trial court did not abuse its discretion
in determining that the purported Backus diary had not been
properly authenticated. Authentication or identification of evi-
dence is a condition precedent to its admission and is satisfied
137
State v. Elseman, 287 Neb. 134, 841 N.W.2d 225 (2014).
138
State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013).
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by evidence sufficient to prove that the evidence is what the
proponent claims.139 A court must determine whether there is
sufficient foundation evidence for the admission of physical
evidence on a case-by-case basis.140 Because authentication rul-
ings are necessarily fact specific, a trial court has discretion to
determine whether evidence has been properly authenticated;
we review a trial court’s ruling on authentication for abuse
of discretion.141
Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901 (Reissue 2008),
lists by way of illustration 10 means of adequately authenticat-
ing a document, none of which directly corresponds to the cor-
roboration argument made by Oldson in this appeal. The most
similar statutory illustration is rule 901(2)(d): “Appearance,
contents, substance, internal patterns, or other distinctive char-
acteristics, taken in conjunction with circumstances.”
Under such provision, other courts have found a writing to
be adequately authenticated when, for instance, the writing
was attributed to someone who was the only known resident of
an isolated and remote area where the writings were found.142
Writings have also been adequately authenticated by virtue of
the fact that they disclose information that is likely known only
to the purported author.143
But the circumstances of the diary pages’ having been
apparently in Douglas’ possession and mailed by Douglas do
not uniquely authenticate them as being written by Backus.
Furthermore, none of the corroborated facts mentioned in the
diary are the kind of facts that only Backus would know. The
corroborated facts are either public record or facts Douglas
could have discovered in his work at the ranch and at the
sale barn.
139
State v. Draganescu, supra note 80.
140
Id.
141
State v. Elseman, supra note 137.
142
See U.S. v. Harvey, 117 F.3d 1044 (7th Cir. 1997).
143
See State v. Love, 691 So. 2d 620 (Fla. App. 1997).
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These facts did not satisfy Oldson’s burden to present evi-
dence sufficient to support a finding that the diary was written
by Backus. And they must be viewed in light of the fact that
Backus denied writing the diary. In addition, there was no evi-
dence that the diary pages were ever seen in Backus’ posses-
sion or in a place where Backus solely had access.
Finally, it would have been natural for the trial court
to have considered the elephant in the room: Why, despite
being in possession of the alleged author’s writing exem-
plars, obtained during Backus’ deposition, did Oldson make
no attempt to demonstrate or even argue that the diary pages
were written in Backus’ handwriting.144 We are troubled by
the lack of discussion below of the handwriting of the diary,
especially when it seems from our layperson’s perspective that
the handwriting on the envelopes—which the parties seem to
assume was Douglas’ handwriting—is much more similar to
the handwriting of the diary than to any of Backus’ handwrit-
ing exemplars.
While not a high hurdle, as Oldson points out, it is still the
burden of the proponent of the evidence to provide the court
with sufficient evidence that the writing is what it purports
to be. And to establish on appeal that the trial court abused
its discretion in finding that the evidence was not properly
authenticated is a higher hurdle. An abuse of discretion occurs
only when the decision is based upon reasons that are unten-
able or unreasonable or if its action is clearly against justice
or conscience, reason, and evidence.145 The trial court did not
abuse its discretion in concluding that there was insufficient
evidence that the diary was actually written by Backus. It did
not abuse its discretion in concluding that the exhibit had not
been authenticated to be Backus’ diary.
144
See, e.g., Bishop v. State, 252 Ga. App. 211, 555 S.E.2d 504 (2001); Box
v. State, 74 Ark. App. 82, 45 S.W.3d 415 (2001).
145
State v. Merchant, supra note 138.
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7. Motion for New Trial
Shortly after trial, Douglas was finally found and arrested.
The defense moved for a new trial based on this event as well
as on the ground that there had been a late disclosure of the
DNA evidence presented at trial determining that hairs found
on Beard’s sweater belonged to cows and to a DNA technician.
Oldson asserts on appeal that the trial court erred in denying
his motion for new trial on both these grounds.
(a) Standard of Review
[31] The standard of review for the denial of a motion for
new trial is whether the trial court abused its discretion in
denying the motion.146
(b) Ground One: Douglas Found
After Trial
(i) Background
Douglas was interviewed by defense counsel’s private inves-
tigator and by law enforcement, and those interviews were
entered into evidence in support of a motion for new trial. The
defense also offered a recorded conversation between Douglas
and his girlfriend while Douglas was in jail. Finally, the
defense called Douglas to testify at the hearing.
a. Telephone Conversation
With Girlfriend
In the telephone conversation with his girlfriend, Douglas
stated that he cannot tell law enforcement what he knows or
“they” will hurt his mother. Douglas said he knew Backus had
a diary and knew where she buried it and why it did not burn
in a fire on her property. He denied writing the diary. Douglas
later made reference to how “these people have told me every-
thing what to write and what to do,” but it does not seem from
the context that he was referring to the diary.
146
State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996).
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b. Interview With Private
Investigator and Police
In the interviews with law enforcement and with defense
counsel’s private investigator, Douglas denied sending the
diary pages or writing the diary. He was confronted with the
fact that his DNA was found on the envelope the pages were
mailed in. Douglas explained that he had envelopes and stamps
in his backpack. Douglas speculated that when he was staying
at a homeless shelter, the backpack was stolen.
In the interview with defense counsel’s private investigator,
Douglas made oblique references to Backus’ having once told
him she had had young girls living with her on the ranch in
the past to help with washing and cooking. Douglas also talked
about hauling scrap metal out of a wood shanty built into a hill.
Douglas denied any knowledge of kidnappings at the ranch.
In the interview with law enforcement, Douglas referred
to having just passed a mental evaluation in Norfolk. He
explained that he had most recently been living at a homeless
shelter in Omaha and spent most of his days at the library look-
ing on the Internet at the local news.
Douglas explained that he previously worked odd jobs for
Backus. Douglas said that Backus owed him money. Douglas
described that, one day, three men who said they worked for
Backus threatened Douglas and told him to forget he had ever
seen them. Douglas thought that Backus and these men were
“moving drugs.” Douglas explained that sometime after that,
he woke up in the hospital with no recollection of why he
was there.
Law enforcement accused Douglas of writing the diary,
indicating that it appeared to be Douglas’ handwriting on the
diary. Douglas did not specifically deny the handwriting was
his. But Douglas claimed he had never seen the diary pages or
the envelope in which they were mailed.
c. Douglas’ Testimony at Hearing
In his testimony at the hearing on the motion for new trial,
Douglas said he started doing odd jobs for Backus at the ranch
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in 2007. He testified that Backus stopped paying him. Douglas
eventually again stopped working for Backus; Douglas testified
that Backus owed him over $30,000 for work he had done for
her. Douglas claimed some of what was owed him was eventu-
ally paid by a man named “Claire,” last name unknown, who
lived near Chambers, Nebraska. Douglas came into contact
with “Claire” after “a guy that had worked for [Backus] before
called me and told me, he said if you want to get paid to go
see this Claire.”
Douglas testified that he had seen Backus writing cattle
prices and similar things in a journal that she carried with her
when she went to the sale barns. He had never touched the
journal, but had once seen it lying open and saw entries about
her cattle.
Even though defense counsel submitted evidence that
Douglas’ DNA was found on the seal and the stamp of the
envelope in which the diary pages had been mailed to Oldson,
Douglas continued to deny having either written or mailed
the diary. Douglas testified that he did not recognize the
diary pages that defense counsel showed him at the hearing.
Douglas also testified that he did not recognize the handwrit-
ing in the diary pages as Backus’, although he stated that
“[i]t’s similar . . . .”
Douglas stated that there were balloons in a spot on the
ranch where Backus told him one of her cutting horses was
buried. Douglas also reiterated that he had torn apart a struc-
ture built into a hill on the ranch and had found heavy chains
in 50-gallon barrels that were inside the structure. He saw two
bedframes in the structure. Douglas reiterated that Backus had
told him that she once had girls living on the ranch who helped
with the chores.
Douglas mentioned that one day, he opened a “wood shell
box” that Backus carried around with her. In that box were
“napkins and stuff” with writing on them, including several
small books. He saw a reference to “Barbara” and how she had
run away. Also, once when he proposed digging on the ranch
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to place a water line, Backus “blew up right away and told me
you ain’t digging nothing on my land.”
Douglas testified that he was scared of “[t]he guy in Grand
Island that [Backus] had with her,” an “Antonio Rodriguez,”
because Rodriguez had threatened Douglas several times.
Douglas described a dog that became sick after eating “white
powder” that looked like “drug stuff” in a box in the back of
Backus’ truck. Douglas said that Rodriguez made him take care
of the dog and “keep [Douglas’] mouth shut,” so that Backus
would not get in trouble. Later, Douglas purportedly found a
list of names that Backus and Rodriguez were “delivering stuff
to.” He said he was threatened to keep quiet.
d. Defense Arguments at Hearing
At the hearing on the motion for new trial, defense coun-
sel argued that DNA evidence confirming that the diary was
in Douglas’ possession somehow further authenticated the
diary—apparently by providing a better chain of custody.
Defense counsel also pointed out that Douglas did not know
Oldson and had no motive for fabricating a diary and send-
ing it to Oldson in order to exculpate him. Defense counsel’s
theory was that Douglas was trying to blackmail Backus with
the diary. Defense counsel also pointed out that Douglas’ tes-
timony at the hearing provided information that corroborated
other pieces of the diary, thus providing sufficient authentica-
tion of the diary as Backus’ writing. The trial court denied the
motion for new trial.
(ii) Analysis
Oldson makes arguments on appeal similar to those made
below. Oldson also makes new arguments about the authen-
ticity of the diary that have little to do with finding Douglas.
Oldson asserts for the first time on appeal that Backus was
able to alter her handwriting for purposes of the deposition and
asserts that Backus used similar shorthand abbreviations in the
deposition exemplars as those in the diary. Oldson also argues
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that Backus’ request to speak with counsel during the deposi-
tion, as well as Backus’ evasive behavior during her deposition,
such as “well-timed heart palpitations,” “punctuate [Backus’]
culpability.”147 Oldson argues that the fact that Backus denied
writing the diary should be given little weight, because it
would be imprudent for Backus to admit to kidnapping and
killing the women described.
[32] We find no abuse of discretion in the trial court’s
determination to deny the motion for new trial based upon
information gleaned after Douglas’ arrest. A trial judge is
accorded significant discretion in granting or denying a motion
for new trial, because the trial judge sees the witnesses, hears
the testimony, and has a special perspective on the relationship
between the evidence and the verdict.148
Neb. Rev. Stat. § 29-2101 (Reissue 2008) provides that a
new trial may be granted for any of the following grounds
affecting materially the defendant’s substantial rights: (1)
irregularity in the proceedings which prevented the defendant
from having a fair trial; (2) misconduct of the jury, the pros-
ecuting attorney, or the witnesses for the state; (3) accident
or surprise which ordinary prudence could not have guarded
against; (4) the verdict is not sustained by sufficient evidence
or is contrary to law; (5) newly discovered evidence material
for the defendant which he or she could not with reasonable
diligence have discovered and produced at trial; (6) newly dis-
covered exculpatory DNA or similar forensic testing evidence
obtained under the DNA Testing Act; or (7) error at law occur-
ring at trial.
[33] We address whether a new trial was warranted on the
ground that locating Douglas was newly discovered evidence
material to Oldson’s case. A criminal defendant who seeks a
new trial because of newly discovered evidence must show that
if the evidence had been admitted at the former trial, it would
147
Brief for appellant at 75, 143.
148
State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
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probably have produced a substantially different result.149
Evidence tendered in support of a motion for new trial on the
ground of newly discovered evidence must be so potent that,
by strengthening evidence already offered, a new trial would
probably result in a different verdict.150
Oldson apparently believes that Douglas’ testimony would
have, in conjunction with the other corroborating evidence,
sufficiently authenticated the diary as a writing by Backus,
thereby making it admissible. Oldson also apparently believes
that the admission of the diary into evidence at a trial would
have probably produced a substantially different result. We
disagree on both points.
We find no abuse of discretion in the trial court’s conclu-
sion that the additional evidence did not cure the founda-
tional and reliability deficiencies that existed prior to finding
Douglas. Douglas’ arrest provided little more than the circular
foundation of Douglas’ own statements to support his asser-
tion that he did not write the diary and his insinuations that
Backus did. Oldson did not present at the hearing any inde-
pendent evidence corroborating Douglas’ testimony, including
that Backus kept a diary, that Backus had a shanty built into
a hill with beds and chains in it, that Douglas was an unwill-
ing witness to Backus’ apparent illegal drug operations, that
Backus owed him a substantial amount of money, or that
Rodriguez had threatened Douglas and possibly assaulted and
kidnapped him.
Moreover, even if the court should or would have admit-
ted the diary pages into evidence had it been presented with
Douglas’ statements during trial, Oldson failed to establish the
probability that the jury would have reached a different result
if the evidence had been admitted at trial. The jury had already
been presented with the theory that Backus was the real killer.
The jury had been told that there was a diary purportedly
149
State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012).
150
State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).
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written by Backus in which she had described kidnapping and
killing Beard and the other missing women.
The jury clearly rejected this theory, in spite of testimony
that there was “corroborating evidence,” such as the diary list-
ing the correct names, dates, physical descriptions, and other
correct details pertaining to the missing women named in the
diary. It is unclear exactly how Oldson hypothesizes that pre-
senting to the jury the photocopies of the actual diary pages or
Douglas’ testimony would have probably resulted in the jury’s
accepting the theory that Backus and Wetzel kept several kid-
napped women as sex slaves and that Backus killed Beard by
running her down with a truck.
We conclude that, as relates to the alleged Backus diary,
the trial court did not abuse its discretion in denying Oldson’s
motion for new trial.
(c) Ground Two: Late Disclosure
of DNA Report of Hairs
on Sweater
There was testimony at trial, without objection, that a hair
found on Beard’s sweater ultimately was found to belong to a
DNA technician and that other hairs found on the sweater were
cow hairs. According to defense counsel, the defense did not
receive a copy of the DNA report concerning the hairs until
approximately 2 weeks before trial. Beside the fact that this
argument appears waived by the failure to object at trial, it
is unclear from Oldson’s cursory arguments how the alleged
nondisclosure would fall under one of the grounds listed in
§ 29-2101 or how the alleged nondisclosure materially affected
his substantial rights. Oldson does not allege that the State
violated Brady v. Maryland,151 and Oldson does not argue that
ordinary prudence would have guarded against whatever sur-
prise Oldson thinks occurred. Most importantly, Oldson has
failed to demonstrate how earlier disclosure of the DNA report
151
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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would have probably led to a different verdict. We find no
abuse of discretion in denying Oldson’s motion for new trial
on the grounds that the State had allegedly failed to timely
disclose a DNA report demonstrating that a male hair found on
Beard’s remains did not belong to Oldson, but to a DNA tech-
nician, and that other hairs were cow hairs.
8. Cumulative Error
Having found no error, we find no merit to Oldson’s asser-
tion that cumulative error warrants a new trial.
9. Sufficiency of Evidence
Neither do we find merit to Oldson’s claim that the evidence
admitted at trial was insufficient to sustain the verdict.
The law imposes a heavy burden on a defendant who
claims on appeal that the evidence is insufficient to support a
conviction.152 The relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.153
Oldson asserts that the only evidence supporting his convic-
tion are Oldson’s own statements and the fact that he was last
seen leaving the Someplace Else Tavern with Beard on the
night of her disappearance. Oldson argues, “Given the plethora
of other suspects, . . . the lack of physical evidence, and the
implausibility of the State’s scant theory, this conviction can-
not stand.”154
[34] We have reviewed all the evidence submitted at trial
and find it sufficient to support the verdict. While there is no
physical or eyewitness evidence directly linking Oldson to the
crime, circumstantial evidence is not inherently less probative
than direct evidence. In finding a defendant guilty beyond a
152
State v. Escamilla, 291 Neb. 181, 864 N.W.2d 376 (2015).
153
Id.
154
Brief for appellant at 134.
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reasonable doubt, a fact finder may rely upon circumstantial
evidence and the inferences that may be drawn therefrom.155
Beard was last seen leaving the Someplace Else Tavern with
Oldson. Oldson’s own statements indicated that he took Beard
out to the alley behind the bar, where some violence occurred
in his attempt to get her into his truck. Oldson was expected
to come back to the Someplace Else Tavern and give his father
and Kittinger a ride home, but he did not. Instead, Oldson’s
father and Kittinger arrived at home to find Oldson freshly
showered and on his way to the Laundromat.
There was evidence from which the jury could reasonably
infer that from the moment Oldson left the Someplace Else
Tavern until the time he arrived home to shower, Oldson
had enough time to kill Beard and leave her remains outside
of Ord. Viewing the evidence in a light most favorable to
the prosecution, there was also evidence that Oldson indi-
cated to his wife, Minnie, he would kill her just as he had
killed Beard.
It was the province of the jury to reject Oldson’s story that
after an unsuccessful and somewhat violent attempt to get
Beard into his truck, Beard immediately left the Someplace
Else Tavern in the truck of an unidentified person, leaving all
her personal belongings inside the bar. And it was the prov-
ince of the jury to reject the notion that Beard was killed by
Hawley, White, Mentzer, or unidentified carnival workers,
or that she became involved in a sex-slave operation at the
Backus ranch and was eventually run over by Backus’ truck.
In sum, viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found beyond a
reasonable doubt that Oldson killed Beard.
10. Life Sentence
Lastly, Oldson asserts that the trial court erred in sentenc-
ing him to life-to-life imprisonment when the jury found him
guilty of the lesser offense of second degree murder. Oldson
155
State v. Escamilla, supra note 152.
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argues that imposing the maximum sentence for second degree
murder, which corresponds to the mandatory sentence for first
degree murder, constitutes an abuse of discretion and under-
mines the sentencing structure created by the Legislature. He
also argues his sentence is excessive.
(a) Standard of Review
[35] An appellate court will not disturb sentences that are
within statutory limits, unless the district court abused its dis-
cretion in establishing the sentences.156
[36] When dispositive issues on appeal present questions
of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the
court below.157
[37] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.158
(b) Analysis
[38] Murder in the first degree without a notice of aggra-
vating circumstances is a Class IA felony.159 The sentence for
a Class IA felony is life imprisonment.160 Murder in the sec-
ond degree is a Class IB felony. The maximum penalty for a
Class IB felony is life imprisonment; the minimum sentence is
20 years’ imprisonment.161 We have repeatedly said that a life-
to-life sentence for second degree murder is a permissible sen-
tence under Neb. Rev. Stat. § 29-2204 (Cum. Supp. 2014).162
156
State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015).
157
State v. Casterline, 290 Neb. 985, 863 N.W.2d 148 (2015).
158
Id.
159
See Neb. Rev. Stat. § 28-303 (Reissue 2008).
160
Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2011).
161
Id.
162
See, State v. Casterline, supra note 157; State v. Abdulkadir, 286 Neb.
417, 837 N.W.2d 510 (2013); State v. Moore, 277 Neb. 111, 759 N.W.2d
698 (2009); State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006).
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We have explained that the Legislature has had numerous
opportunities to amend the statutory scheme in the event that
this interpretation was not what it had intended.163 It has not
done so. It is not this court’s place to rewrite legislation.164
[39,40] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
imposed.165 When imposing a sentence, the sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense and (8) the violence involved in the commission of the
offense.166 The sentencing court is not limited to any math-
ematically applied set of factors.167 The appropriateness of a
sentence is necessarily a subjective judgment and includes the
sentencing judge’s observation of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding the
defendant’s life.168
This case concerns a brutal murder. The trial court explained
that in reaching its sentence, it considered the amount of vio-
lence involved in the commission of this crime. The court
explained, “Although we are not certain as to the exact circum-
stances surrounding . . . Beard’s death, there is no doubt it was
vicious and violent.” The court also considered Oldson’s prior
convictions for third degree assault in 1989, attempted third
degree sexual assault in 1992, and intentional child abuse in
163
State v. Casterline, supra note 157.
164
Id.
165
State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
166
State v. Dominguez, supra note 156.
167
Id.
168
Id.
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1998. The court noted Oldson’s failure to accept responsibility
for his actions and his failure to express remorse or empathy
for Beard or the victims of his other crimes.
An abuse of discretion occurs when a trial court’s decision
is based upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason,
and evidence.169 The trial court’s reasoning was neither unten-
able nor unreasonable. And the trial court’s sentence of life to
life was not clearly against justice, conscience, reason, or the
evidence. We find no error in the trial court’s imposition of a
life-to-life sentence.
V. CONCLUSION
For the foregoing reasons, we affirm the judgment below.
A ffirmed.
Stephan, J., not participating.
169
See State v. Kozisek, 22 Neb. Ct. App. 805, 861 N.W.2d 465 (2015).
Connolly, J., concurring.
I concur in the judgment. But I disagree with the majority
opinion in three key respects:
• First, I disagree with the majority’s analysis of the court’s
admission of exhibits 263 through 266 and exhibits 268
through 271. I believe the trial court improperly admitted
seven of these redacted pages from Oldson’s journal to show
his consciousness of guilt and one to show his motive for
killing Cathy Beard.
• Second, I disagree with the majority’s mischaracterization of
our evidentiary admission standard under Neb. Evid. R. 404.1
To uphold the trial court’s evidentiary rulings, the majority
misstates the meaning of our independent relevance standard
under rule 404. And it ignores the propensity inference that
was necessarily in the chain of reasoning for one exhibit and
likely present for another one.
1
Neb. Rev. Stat. § 27-404 (Cum. Supp. 2014).
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• Third, I believe the majority similarly ignores our prec-
edent under Neb. Evid. R. 4032 that prohibits a court from
admitting speculative evidence. Under rule 403, it ignores
that consciousness of guilt evidence must reasonably support
every necessary inference in the chain of reasoning to infer
Oldson’s guilt.
But because I conclude that the court’s errors were harmless
beyond a reasonable doubt, I concur in the judgment.
I. INDEPENDENT RELEVANCE IS
THE ADMISSIBILITY STANDARD
FOR EVIDENCE OFFERED
UNDER RULE 404(2)
Because the majority has drifted from our rule 404 jurispru-
dence, I believe it is necessary to restate the rule’s admission
requirements under our precedents. Apart from exceptions that
are not at issue here, rule 404(1) provides that “[e]vidence of
a person’s character or a trait of his or her character is not
admissible for the purpose of proving that he or she acted in
conformity therewith on a particular occasion . . . .” Section
27-404(2) similarly prohibits proving a defendant’s conform-
ing behavior with a character trait through evidence of a
defend­ant’s acts that are extrinsic to the charged crime:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
In 1987, this court held that evidence showing a defend­
ant’s consciousness of guilt is relevant to support an infer-
ence that the defendant committed the charged crime. We
further held that rule 404(2) governs consciousness of guilt
2
Neb. Rev. Stat. § 27-403 (Reissue 2008).
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evidence.3 So the standard of admissibility for consciousness
of guilt evidence is the same as the standard for evidence
offered for any other purpose under rule 404(2): indepen-
dent relevance.
To be independently relevant for a proponent’s stated pur-
pose, evidence offered under rule 404(2) must not depend
upon a forbidden propensity inference about the defend­
ant’s character:
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). Evidence that is offered for a proper purpose
is often referred to as having a “special” or “indepen-
dent” relevance, which means that its relevance does
not depend upon its tendency to show propensity. An
appellate court’s analysis under rule 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 pro-
bative 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 limited purpose for which it
was admitted.4
3
See, State v. Clancy, 224 Neb. 492, 398 N.W.2d 710 (1987), disapproved
in part on other grounds, State v. Culver, 233 Neb. 228, 444 N.W.2d 662
(1989), abrogated on other grounds, J. E. B. v. Alabama ex rel. T. B.,
511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). But see State v.
Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
4
State v. McGuire, 286 Neb. 494, 511-12, 837 N.W.2d 767, 784-85 (2013).
Accord, e.g., State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011);
State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011); State v. Chavez,
281 Neb. 99, 793 N.W.2d 347 (2011); State v. Baker, 280 Neb. 752, 789
N.W.2d 702 (2010); State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361
(1999); State v. McManus, 257 Neb. 1, 594 N.W.2d 623 (1999).
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We have specifically held that evidence of a defendant’s
extrinsic act lacked independent relevance when a fact finder
could have only found that it was relevant through classic pro-
pensity reasoning about the defendant’s character.5 To facilitate
appellate review of independent relevance under rule 404(2),
we require the proponent to state its purpose when offering the
evidence. We also require the trial court to state the purpose for
which it was admitted:
A proponent of evidence offered pursuant to rule
404(2) shall, upon objection to its admissibility, be
required to state on the record the specific purpose or
purposes for which the evidence is being offered, and the
trial court shall similarly state the purpose or purposes
for which such evidence is received. And any limiting
instruction given upon receipt of such evidence shall
likewise identify only those specific purposes for which
the evidence was received.6
We first set out this procedural requirement and our admis-
sibility standard of independent relevance in 1999.7 Both
rules are well-established components of our rule 404 juris-
prudence.8 Nevertheless, the majority, in a tortuous analysis,
relies on secondary authorities to undermine that jurispru-
dence. Worse, they suggest independent relevance has the
same meaning as the pre-1999, standardless rule that we
have abandoned.
The majority does not state that a fact finder’s chain of
reasoning must not depend on propensity reasoning about the
5
See, State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011); State v. Trotter,
262 Neb. 443, 632 N.W.2d 325 (2001); Sanchez, supra note 4; McManus,
supra note 4. See, also, State v. Sutton, 16 Neb. Ct. App. 185, 741 N.W.2d 713
(2007).
6
Almasaudi, supra note 4, 282 Neb. at 179, 802 N.W.2d at 125. Accord,
e.g., Collins, supra note 4; Sanchez, supra note 4.
7
See, Sanchez, supra note 4; McManus, supra note 4.
8
See cases cited supra notes 4 through 6.
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defendant’s character. Instead, it cites a legal encyclopedia and
states that extrinsic evidence that “only incidentally impugns
a defendant’s character is not prohibited by rule 404.” It cites
a legal commentator who has pointed out that evidence of a
defendant’s extrinsic bad acts always contains legitimate and
illegitimate inferences. From this, the majority makes a giant
leap to draw this erroneous conclusion:
Rule 404(2) permits introduction of relevant evidence
concerning the occurrence of “other crimes, wrongs, or
acts,” so long as the sole purpose for the offer is not to
establish a defendant’s propensity to act in a particular
manner, and thereby supply a basis for the inference that
the defendant committed the crime charged.
(Emphasis supplied.) But we have rejected this reasoning by
adopting our independent relevance standard.
Moreover, the two Nebraska cases that the majority cites
do not support its conclusion. One of the cited cases, State v.
McGuire,9 is the most recent statement of our independent rel-
evance standard that is set out above. I am puzzled how citing
the correct standard supports the majority’s misstatement of
the standard. We decided the other cited case, State v. Yager,10
in 1990, before we adopted the independent relevance standard
in 1999. Under the standardless rule urged by the majority,
anything goes. And the majority’s reliance on a pre-1999 case
ignores our concern about rule 404’s potential “to trample on
a defendant’s right to a fair trial.”11 That recurring concern
resulted in adopting the independent relevance test and its
related procedural requirements in 1999.
Our independent relevance standard guards against the dan-
ger that jurors will overestimate the value of extrinsic acts and
convict a defendant for an improper reason.12 And the m ­ ajority
9
McGuire, supra note 4.
10
See State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990).
11
See id. at 500, 461 N.W.2d at 752 (Shanahan, J., dissenting).
12
See McManus, supra note 4.
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saps that principle by implying that extrinsic acts evidence
should be admissible unless the proponent’s sole purpose is to
establish a defendant’s propensity to act in conformity with a
character trait. To the contrary, it is because jurors usually can-
not ignore a propensity inference, even when a court properly
instructs them, that legal commentators have advocated the
independent relevance test that we adopted in 1999.13
Finally, and most important, the majority’s statements are
contrary to the statute itself. Rule 404(2) does not provide that
extrinsic acts are admissible if the proponent’s sole purpose
is not to prove the defendant’s conforming behavior. Rule
404(2) precludes the use of extrinsic acts to prove a defendant
acted in conformity with a character trait—period. It does
not provide that extrinsic acts are admissible as proof of a
defendant’s “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” It
provides that extrinsic acts evidence may be admissible for
such purposes:
(2) 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, knowl-
edge, identity, or absence of mistake or accident.14
So, contrary to the majority’s statement, the question is not
whether a proponent has offered extrinsic acts evidence solely
to prove a defendant’s propensity to act in conformity with
a character trait. Such evidence would clearly be inadmis-
sible in Nebraska. Under our independent relevance test, the
question is whether the proponent’s evidence is relevant for
13
See, 1 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 2:19
(rev. ed. 2002); 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal
Evidence § 4:28 (4th ed. 2013); 22B Charles Alan Wright & Kenneth W.
Graham, Jr., Federal Practice & Procedure § 5239 (Supp. 2014).
14
§ 27-404(2) (emphasis supplied).
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an ostensibly legitimate purpose only through the forbidden
propensity reasoning. Although the majority’s statement may
reflect the admissibility standard for a defendant’s extrinsic
acts in some other jurisdictions,15 it is an incorrect statement of
our standard under rule 404(2).
The majority, not satisfied with misstating our admissibility
standard for rule 404(2) evidence, goes even further. It states
that “[i]f character evidence is admitted for a proper purpose,
then, ipso facto, it is not admitted for the purpose of showing
propensity.” This is misleading. We do not determine whether
a court’s stated purpose for admitting rule 404(2) evidence
was proper in a vacuum. The purpose is only proper if a fact
finder could conclude the evidence is relevant to establish the
proponent’s intended proof without engaging in propensity
reasoning about the defendant’s character.
II. THE MAJORITY IS BOUND BY
OUR PREVIOUS HOLDINGS
As stated, our independent relevance standard and proce-
dures for admitting evidence under rule 404(2) has been the
law since 1999. Yet, the majority has not overruled any of
these cases, nor could it convincingly do so. When we have
interpreted or established a rule, the doctrine of stare deci-
sis applies. It requires us to adhere to our previous decisions
“unless the reasons therefor have ceased to exist, are clearly
erroneous, or are manifestly wrong and mischievous or unless
more harm than good will result from doing so.”16 The doctrine
“is grounded in the public policy that the law should be stable,
fostering both equality and predictability of treatment.”17
And major legal commentators have advocated our indepen-
dent relevance standard.18 It is consistent with the holdings of
15
See U.S. v. Curley, 639 F.3d 50 (2d Cir. 2011).
16
Potter v. McCulla, 288 Neb. 741, 753, 851 N.W.2d 94, 104 (2014).
17
State v. Hausmann, 277 Neb. 819, 828, 765 N.W.2d 219, 226 (2009).
18
See sources cited supra note 13.
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many other courts.19 So there is nothing manifestly wrong with
our approach to this evidentiary rule—and much to lament
about the standardless rule to which the majority would appar-
ently revert. But the majority’s mere suggestion that it dis-
agrees with our established precedent is ineffective to change
it unless it overrules or disapproves our precedent.
By requiring appellate courts to adhere to their previous
decisions in most circumstances, the doctrine of stare decisis
“promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judi-
cial decisions, and contributes to the actual and per-
ceived integrity of the judicial process.” . . . Although
“not an inexorable command” . . . stare decisis is a
foundation stone of the rule of law, necessary to ensure
that legal rules develop “in a principled and intelli-
gible fashion.”20
And the doctrine should apply with greatest force to our
decisions on evidentiary issues because lower courts and
practitioners must predictably apply these rules daily. But the
important point here is that the majority has not overruled our
established precedent. Under the doctrine of stare decisis then,
the standard of admissibility under rule 404(2) continues to
be independent relevance—as we have defined and applied it.
That means that the trial court properly admitted evidence of
Oldson’s extrinsic acts or statements only if it was relevant
to a fact of consequence independent of an inference that
Oldson acted in conformity with a character trait. But before
addressing that issue, I turn to the meaning of independent
19
See, e.g., U.S. v. Green, 617 F.3d 233 (3d Cir. 2010); U.S. v. Commanche,
577 F.3d 1261 (10th Cir. 2009); U.S. v. Varoudakis, 233 F.3d 113 (1st Cir.
2000); State v. Cassavaugh, 161 N.H. 90, 12 A.3d 1277 (2010); State v.
Johnson, 340 Or. 319, 131 P.3d 173 (2006); State v. Clifford, 328 Mont.
300, 121 P.3d 489 (2005); Masters v. People, 58 P.3d 979 (Colo. 2002).
20
Michigan v. Bay Mills Indian Community, ___ U.S. ___, 134 S. Ct. 2024,
2036, 188 L. Ed. 2d 1071 (2014) (citations omitted).
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relevance as it specifically relates to a defendant’s conscious-
ness of guilt.
III. CONSCIOUSNESS OF GUILT EVIDENCE MUST
REASONABLY SUPPORT ALL NECESSARY
INFERENCES TO CONCLUDE A
DEFENDANT WAS GUILTY OF
THE CHARGED CRIME
As stated, rule 404(2) governs the admissibility of con-
sciousness of guilt evidence.21 And it is relevant as a circum-
stance supporting an inference that the defendant committed
the crime charged.22 In State v. Clancy,23 we considered, under
rule 404(2), whether a defendant’s intimidation of a State’s
witness was admissible to show his consciousness of guilt.
We explained that the chain of reasoning from his threat to
his guilt of the charged crime required two inferences: “‘from
conduct to consciousness of guilt, and then from conscious-
ness of guilt to the guilty deed.’”24 And we quoted Wigmore’s
treatise to emphasize the strength of such evidence: “‘No one
doubts that the state of mind which we call “guilty conscious-
ness” is perhaps the strongest evidence . . . that the person is
indeed the guilty doer; nothing but an hallucination or a most
extraordinary mistake will otherwise explain its presence.’”25
And as the Ninth Circuit put it, evidence showing conscious-
ness of guilt is “second only to a confession in terms of proba-
tive value.”26
21
See Clancy, supra note 3.
22
See State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008); Clancy,
supra note 3.
23
Clancy, supra note 3.
24
Id. at 499, 398 N.W.2d at 716, quoting 1 John Henry Wigmore, Evidence
in Trials at Common Law § 173 (James H. Chadbourn rev. ed. 1979).
25
Id., quoting 2 John Henry Wigmore, Evidence in Trials at Common Law
§ 273(1) (James H. Chadbourn rev. ed. 1979).
26
U.S. v. Meling, 47 F.3d 1546, 1557 (9th Cir. 1995).
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Our reasoning in Clancy is consistent with legal authori-
ties who agree that under rule 404(2), consciousness of guilt
evidence is logically relevant to establish a defendant’s guilty
“knowledge” of the charged crime under rule 404(2). The
guilty knowledge, in turn, serves as an intermediate infer-
ence to prove the defendant’s “identity” under rule 404(2).
That is, guilty knowledge is an intermediate inference that
the defendant is the perpetrator of the charged crime.27 The
logical relevance of such evidence rests on a fact finder’s
assumption that an innocent person would not have commit-
ted the act or made the statement that the prosecution holds
up as “‘an expost facto indication’ of the defendant’s identity
as the criminal.”28
But our statement in Clancy that “‘nothing but an halluci-
nation or a most extraordinary mistake will otherwise explain
its presence’”29 speaks to another important requirement for
admitting evidence to show consciousness of guilt: The evi-
dence should be sufficient to reasonably support the infer-
ence that the defendant had guilty knowledge of the charged
crime. As Wigmore recognized, “in the process of inferring
the existence of that inner consciousness from the outward
conduct, there is ample room for erroneous inference; and it
is in this respect chiefly that caution becomes desirable and
that judicial rulings upon specific kinds of conduct become
necessary.”30 So our opinions upholding consciousness of
guilt evidence have generally involved conduct or statements
that firmly linked the defendant’s extrinsic conduct or state-
ment to the defendant’s guilty knowledge of the charged
crime. For example, in Clancy, a fact finder could confidently
27
See, 1 Barbara E. Bergman & Nancy Hollander, Wharton’s Criminal
Evidence § 4:36 (15th ed. 1997); 1 Imwinkelried, supra note 13, § 3:04.
28
See 1 Imwinkelried, supra note 13, § 3:04 at 10.
29
Clancy, supra note 3, 224 Neb. at 499, 398 N.W.2d at 716.
30
2 Wigmore, supra note 25, § 273(1) at 115-16.
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infer that a person innocent of a charged crime would not
threaten a witness against him or her in the pending trial for
that crime.
Courts have found that many different types of acts are
relevant to show a defendant’s consciousness of guilt. Many
of these acts have involved a defendant’s flight or avoidant
behavior to escape arrest or detection, or a defendant’s attempt
to influence jurors or witnesses.31 But some cases dealing with
a defendant’s alleged flight illustrate that consciousness of
guilt evidence can be unreliable, depending on the surrounding
circumstances. We have recognized this problem.
In a case involving a defendant’s alleged flight from a bur-
glary, we stated the following rule:
Departure from the scene after a crime has been com-
mitted, of itself, does not warrant an inference of guilt. .
. . [T]he proper rule [is] that for departure to take on the
legal significance of flight, there must be circumstances
present and unexplained which, in conjunction with the
leaving, reasonably justify an inference that it was done
with a consciousness of guilt and pursuant to an effort to
avoid apprehension or prosecution based on that guilt.32
Similarly, we affirmed a court’s admission of flight evi-
dence to show the defendant’s consciousness of guilt when the
“testimony indicate[d] that [the defendant] could have only
leapt out of a second-story window to avoid apprehension.”33
Accordingly, we have said that when the evidence is sufficient
to justify an inference that the defendant acted with conscious-
ness of guilt, the fact finder can consider such evidence even if
the conduct could be explained in another way.34
31
See 1 Imwinkelried, supra note 13.
32
State v. Lincoln, 183 Neb. 770, 772, 164 N.W.2d 470, 472 (1969) (citations
omitted).
33
State v. Freemont, 284 Neb. 179, 195, 817 N.W.2d 277, 293 (2012).
34
See Draganescu, supra note 22.
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But not all evidence will justify an inference of a defend­
ant’s guilty knowledge. There are limits to how far a trial court
can allow the State to stretch inferences from circumstantial
evidence that is relevant to prove the elements of a crime
beyond a reasonable doubt. An inference resting on specula-
tion or conjecture cannot support a criminal conviction.35 So if
the State’s circumstantial evidence only supports an inference
through speculation or only supports two equally speculative
inferences, a trial court should exclude it when a party has
properly invoked rule 403.
Under rule 403, a court may exclude relevant evidence
if it presents a danger of unfair prejudice, of confusing the
issues, or of misleading the jury that substantially outweighs
its probative value. Evidence is unfairly prejudicial if it has a
tendency to suggest a decision on an improper basis.36 Courts
should generally exclude speculative evidence as irrelevant
and unfairly prejudicial under rule 403 because it encourages
jurors to reach a determination on an improper basis—that is,
by drawing unreasonable inferences.37
For example, we have held that a court should exclude an
expert’s opinion when it gives rise to conflicting inferences of
equal probability, because the choice between them is a mat-
ter of conjecture.38 Federal courts agree that evidence which
requires speculation to be relevant is inadmissible under their
35
See State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999). Accord, e.g.,
U.S. v. Katakis, 800 F.3d 1017 (9th Cir. 2015); U.S. v. Adams, 722 F.3d
788 (6th Cir. 2013); U.S. v. Friske, 640 F.3d 1288 (11th Cir. 2011); U.S. v.
Pinckney, 85 F.3d 4 (2d Cir. 1996).
36
State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), disapproved
in part on other grounds, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728
(2015).
37
See, State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015); Aon
Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748 N.W.2d 626
(2008).
38
See Johnson, supra note 37; State v. Kuehn, 273 Neb. 219, 728 N.W.2d
589 (2007).
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counterpart to rule 403.39 And because speculative evidence has
little, if any, probative value, its potential for unfair prejudice
under rule 403 will usually substantially outweigh its proba-
tive value.
Regarding flight fact patterns, legal commentators and other
courts have extensively discussed how circumstances unrelated
to a defendant’s guilt of a charged crime can often explain a
defendant’s alleged avoidance or flight from law enforcement
officials.40 Because evidence of flight can be unreliable and
therefore unfairly prejudicial, flight cases illustrate how courts
should consider rules 403 and 404 in tandem when the State
offers evidence of a defendant’s consciousness of guilt. Federal
courts require “careful deliberation” in the admission of flight
evidence.41 Specifically, whether evidence of flight is admis-
sible as circumstantial evidence of a defendant’s guilt depends
on how confidently it supports all four necessary inferences in
the chain of logic to reach a determination of guilt from the
extrinsic conduct: (1) from the defendant’s behavior to flight;
(2) from flight to consciousness of guilt; (3) from conscious-
ness of guilt to consciousness of guilt concerning the crime
charged; and (4) from consciousness of guilt concerning the
crime charged to actual guilt of the crime charged.42
39
See, Yellow Pages Photos, Inc. v. Ziplocal, 795 F.3d 1255 (11th Cir. 2015);
U.S. v. Iron Hawk, 612 F.3d 1031 (8th Cir. 2010); U.S. v. Jordan, 485 F.3d
1214 (10th Cir. 2007); U.S. v. Sellers, 906 F.2d 597 (11th Cir. 1990).
40
See, U.S. v. Williams, 33 F.3d 876 (7th Cir. 1994), citing Wong Sun v.
United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); United
States v. Myers, 550 F.2d 1036 (5th Cir. 1977); 1 Imwinkelried, supra note
13, § 3:05 (citing cases).
41
Williams, supra note 40, 33 F.3d at 879. Accord United States v. Blue
Thunder, 604 F.2d 550 (8th Cir. 1979).
42
See, U.S. v. Carrillo, 660 F.3d 914 (5th Cir. 2011); Myers, supra note
40. Accord, U.S. v. Harrison, 585 F.3d 1155 (9th Cir. 2009); U.S. v.
Al-Sadawi, 432 F.3d 419 (2d Cir. 2005); Williams, supra note 40; U.S. v.
Hankins, 931 F.2d 1256 (8th Cir. 1991); U.S. v. Porter, 821 F.2d 968 (4th
Cir. 1987); Escobar v. State, 699 So. 2d 988 (Fla. 1997), abrogated on
other grounds, Connor v. State, 803 So. 2d 598 (Fla. 2001).
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In a seminal case, the Fifth Circuit held that the court erred
in admitting evidence of the defendant’s flight because it could
not support the third inference: consciousness of guilt for the
charged crime. In United States v. Myers,43 the government
charged the defendant with robbing a bank in Florida. Between
the Florida robbery and his arrest in California—when he
allegedly tried to flee arrest—he was known to have com-
mitted an armed robbery in Pennsylvania. The Fifth Circuit
concluded that even assuming that the defendant had tried to
flee arrest in California, the evidence did not rule out the pos-
sibility that he was fleeing arrest for the Pennsylvania robbery,
his guilt of which would have been a sufficient cause for his
flight in itself. Accordingly, it was error to allow the jury to
infer from his flight that he was guilty of the charged robbery
in Florida.
And the same reasoning applies to the string of necessary
inferences to conclude that the excerpts from Oldson’s journal
showed his guilt. In these excerpts, Oldson did not confess to
physically or sexually assaulting Beard. Nor did he confess
to kidnapping or killing her. And the court did not admit any
of these excerpts to show a confession. So to conclude that
any excerpt was relevant to show Oldson’s guilt for Beard’s
murder, a juror would need to make the following string of
inferences: (1) Oldson’s statement in the excerpt referred to
Beard; (2) he did not explicitly refer to Beard in the excerpt
because he was trying to conceal the information in it from
law enforcement officers who were still investigating her
disappearance; (3) he was trying to conceal the information
in the excerpt because it would show either that he had previ-
ously lied about not having a sexual relationship with Beard,
or about his interactions with her on the night she disappeared,
or that he had guilty knowledge about her murder; (4) if the
excerpt showed that he had previously lied, he did so because
43
Myers, supra note 40.
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he was guilty of committing a crime against Beard; and (5) the
crime he was guilty of was her murder.
Because a chain of inferences is necessary to reach a deter-
mination of guilt, the extrinsic evidence should reasonably
support each inference in the chain of logic. Especially under
these circumstances, it is insufficient to conclude that the evi-
dence supports an inference that Oldson was guilty of a crime
if it does not also reasonably support an inference that he was
conscious of his guilt for the charged crime.
Second, although the State can show a defendant’s con-
sciousness of guilt from the defendant’s inculpatory state-
ments, instead of acts, such statements should also reasonably
support an inference of the defendant’s guilty knowledge of
the charged crime. An example would be a verbal threat to a
State’s witness, as in Clancy. Our decision in State v. Ellis44
also speaks to this issue.
In Ellis, the inculpatory statements made by the defendant,
Roy Ellis, showed his guilty knowledge of facts specific to a
child’s murder before the State charged him with the crime.
We concluded that the trial court erred under rule 404 in
admitting evidence that he had sexually assaulted his step-
daughters 10 years earlier to show his intent for the child’s
murder. We reasoned that this evidence was relevant only
through classic propensity reasoning, but we concluded that
the error was harmless. In doing so, we emphasized witnesses’
testimonies about suspicious statements that the defendant
made while he was in jail for unrelated crimes. We concluded
the witnesses had described details that they could not have
known unless they had learned them from the person who
killed the child:
There was no innocent explanation for how Ellis’ DNA
came to be on [the victim’s] bloody clothing. Nor is there
any innocent explanation for how several witnesses came
forward with information before [the victim’s] body or
44
State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).
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Ellis’ DNA on her clothing had been discovered link-
ing Ellis to the killing—some of whom even accurately
described [the victim’s] cause of death and the possible
location of her body. This evidence can only be explained
by the conclusion that Ellis was the killer.45
The reason for requiring the State’s evidence to reasonably
support each inference necessary to a determination of guilt
should be apparent. Consciousness of guilt evidence usually
casts the defendant in an unfavorable light and always requires
more than one inference to reach a determination of guilt.
So unless the evidence reasonably supports each inference
in the chain, the danger is high that the jurors will engage in
outright conjecture or resort to propensity reasoning to con-
clude that a defendant is guilty. The danger exists because
the court has instructed them that the evidence is relevant for
a specific purpose or has allowed them to consider it for any
purpose. Finding guilt based on conjectural facts or propensity
reasoning is obviously unfairly prejudicial and necessarily
outweighs the probative value of a weak or nonexistent chain
of inferences.
So under our case law, the ultimate test of admissibility
should be whether a juror could reasonably conclude—i.e.,
without relying on speculation or propensity reasoning—that
the circumstantial evidence shows a defendant’s guilt for the
charged crime. Having established the relevant admissibility
standard for rule 404(2) evidence generally and consciousness
of guilt evidence specifically, I turn to the court’s admission of
Oldson’s statements in his journal.
IV. ALL BUT ONE OF OLDSON’S JOURNAL
EXCERPTS WERE INADMISSIBLE TO SHOW
HIS GUILT OF BEARD’S MURDER
1. General Background Evidence
Beard disappeared from Ord, Nebraska, on May 31,
1989. In June, local and state law enforcement investigators
45
Id. at 581-82, 799 N.W.2d at 282-83.
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interviewed Oldson at least three times about his interactions
with Beard on the night she disappeared. Evidence not pre-
sented to the jury showed that in July, officers arrested Oldson
for assaulting a woman in Burwell, Nebraska. While he was
serving the sentence for this assault in the county jail, he kept
a journal. From December 1989 to September 1990, when
Oldson was not in his cell, county jail officers copied the
pages of Oldson’s journal every other week during searches
of his cell. Almost 2 years later, in April 1992, investigators
found Beard’s remains in a pasture outside of Ord. In January
2012, 23 years after Beard’s disappearance, a sheriff’s officer
in Missouri, where Oldson was then living, arrested him for
Beard’s murder.
2. Trial Proceedings
On the sixth day of Oldson’s trial, the court conducted an
in camera hearing on the admissibility of evidence. The State
sought to submit nine redacted pages from Oldson’s journal
while he was in jail for committing the assault in Burwell. It
argued that a rule 404(3) hearing was unnecessary. The pros-
ecutor stated that “every single admission or inculpatory state-
ment that’s made in that diary specifically addresses what took
place and the facts and circumstances between Mr. Oldson and
Cathy Beard on May 31st, 1989, nothing else.”
In response to Oldson’s objections to this argument, the
court went through the redacted pages individually. Oldson’s
attorney explained that in a proceeding to obtain a search
warrant, an officer stated that county jail officers had found
Oldson’s journal in the trash. But when the court later asked
the prosecutor what the State’s foundation would be for one of
these pages, the prosecutor gave a different account. He said
that while Oldson was in jail, county jail officers performed
cell checks every other week. At these times, the officers
would remove Oldson from his cell, take him to the library,
and then copy his journal. The prosecutor said that this went
on from December 1989 to September 1990, when the State
released Oldson.
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The court admitted Oldson’s entire 230-page journal to
rule on the admissibility of the redacted pages. The next day,
the court issued a written order admitting all nine pages of
Oldson’s journal. The court admitted exhibits 263 through 271
during the testimony of Gerald Woodgate, who said only that
he was the sheriff of Valley County, Nebraska, in 1989 when
Beard disappeared. But the evidence and parties’ statements
at the pretrial hearings to exclude the evidence showed that
Oldson was in the Valley County jail for an unrelated assault
when he wrote these journal entries. The State asked Woodgate
only if he had come into contact with any of Oldson’s writ-
ings between December 1989 and September 1990. The State
provided no explanation for when Oldson would have written
this journal or how the State came to possess it. In a sidebar
discussion, Oldson repeated his pretrial objections, which the
court overruled.
After the court instructed the jury not to speculate about the
text that had been redacted, the State published these excerpts
to the jury. Except for exhibits 266 and 270, the court provided
no explanation to the jury for why these exhibits were relevant
to prove a fact of consequence in the prosecution. Out of the
jury’s presence, the court overruled Oldson’s motion for a mis-
trial. Later, the court submitted exhibits 263 through 271 to the
jury for review during its deliberations.
3. Evidence Fails to Show That Oldson
Used a Pattern of Concealment or
Encryption to R efer to Beard
(a) Exhibit 263 Did Not Show
Consciousness of Guilt
(i) Trial Court’s Ruling
In exhibit 263, Oldson wrote the following entry: “I guess
the whole import of this thing with the ‘missing one’ has
not hit home, yet. But it should, as they are now looking for
charges. If they do prefer charges, well - ? I don’t see how they
can hang me for anything.”
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The court ruled that exhibit 263 was admissible to show that
Oldson knew he was a suspect: “Further, the content directly
relates to this charge. This is not character evidence and is not
unfairly prejudicial.”
(ii) Trial Court Erred in
Admitting Exhibit 263
I assume that in exhibit 263, Oldson’s reference to the
“‘missing one’” was a reference to Beard. But I believe the
court erred in admitting this evidence to show that Oldson
knew he was a suspect in Beard’s disappearance. It is true that
Oldson’s statement that he doubted investigators could “hang
[him] for anything” could be reasonably interpreted to mean
he knew he was a suspect. But that evidence was unnecessary.
Oldson knew that he was a suspect because investigators had
questioned him at least three times in June 1989. And standing
alone, his knowledge that he was a suspect was not probative
of any fact of consequence. So the court’s implicit agreement
with the State that exhibit 263 showed Oldson’s consciousness
of guilt was speculative.
I agree that Oldson’s statement could reasonably support
an inference that he doubted the State would charge him with
a crime. But apart from speculation, that inference could not
support the further inferences of Oldson’s guilty knowledge
about the crime or his guilt of murder. And it could equally
support an inference that he was innocent of Beard’s murder
but concerned that investigators would suspect him of being
involved in her disappearance because he was allegedly the last
man to have been seen with her. Another reasonable inference
could be that Oldson was expressing a doubt that investigators
would manufacture evidence against him. He explicitly ques-
tioned whether investigators might try to manufacture evidence
against him in exhibit 268. And the majority concedes that
Oldson’s statement in exhibit 268 was largely exculpatory. So
if Oldson was expressing the same sentiment in exhibit 263—
i.e., doubting that investigators would try to frame him—his
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statement did not reasonably support an inference that he had
guilty knowledge of Beard’s murder.
It is true that Oldson’s statement could have also been
interpreted to mean that he doubted investigators would find
evidence that he murdered Beard. That interpretation would
have supported the State’s argument that Oldson’s statement
was relevant to show his consciousness of guilt. But the
actual meaning of his statement in exhibit 263 requires guess-
work. To interpret his statement to mean that he doubted
investigators would find evidence that he murdered Beard
required a fact finder to engage in complete speculation about
Oldson’s meaning.
As stated, courts generally exclude speculative evidence as
irrelevant and unfairly prejudicial under rule 403. It encour-
ages jurors to determine an issue by drawing an unreasonable
inference.46 And evidence of a defendant’s conduct or state-
ment does not justify an inference of his or her consciousness
of guilt under rule 404 if it requires a fact finder to make
speculative connections. Here, the evidence supports three
equally speculative interpretations: one inculpatory and two
innocent. So the court erred in failing to recognize that admit-
ting exhibit 263 would allow the jurors to speculate that it was
relevant to show his consciousness of guilt. Its potential for
unfair prejudice outweighed its weak and possibly nonexistent
probative value.
(iii) The Majority’s Alternative
Reasoning Is Incorrect
The majority ignores the court’s error under rule 403 in
admitting exhibit 263 to show (1) Oldson’s knowledge that he
was a suspect and (2) implicitly, his consciousness of guilt.
Instead, it zeros in on the State’s alternative argument at trial.
In a single paragraph, the majority summarily opines that
the “oblique nature of Oldson’s references to Beard . . . or
46
See cases cited supra notes 35 and 37 through 39.
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evidence relating to her disappearance” in exhibit 263, 264,
265, and 267 support an inference of Oldson’s conscious-
ness of guilt. It incorrectly reasons that his consciousness
of guilt can be “inferred from the secretive way in which
Oldson referred to Beard throughout his writings.” If this
analysis of “secretive” references seems weak, it is because
the majority necessarily avoids scrutinizing the State’s reason-
ing. The majority states that evidence showing a defendant’s
consciousness of guilt is strong evidence of guilt because
nothing else will explain the evidence. Yet, the majority con-
cludes that the court did not abuse its discretion under 403 in
admitting these “oblique” references to Beard or the facts of
her disappearance.
There are two problems with this reasoning. First, the
trial court gave the jurors no instructions on how they were
to consider exhibit 263. Oldson would not have requested a
limiting instruction because he argued that the evidence was
inadmissible for any purpose. So even if the majority’s alter-
native reasoning were correct, the court’s failure to limit the
jury to considering exhibit 263 for a proper purpose would
have only compounded its error in admitting it for a specula-
tive purpose. Because the jurors would have assumed that the
evidence was relevant for proving Oldson’s guilt, the danger
was high they would have speculated about the meaning of
his statement.
Equally important, the majority’s alternative theory of rel-
evance—to show Oldson’s consciousness of guilt under rule
404(2)—also invites speculation about the meaning of Oldson’s
statements. The majority points to no other excerpts from his
journal that show the “‘missing one’” was Oldson’s secret
code for Beard. Nor does the majority show that he used any
pattern of encryption to conceal his statements about Beard.
And the evidence does not support that conclusion.
First, a review of Oldson’s entire journal, which the court
received for ruling on these excerpts, shows that there is no
other reference to the “‘missing one.’” Second, the majority
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acknowledges that Oldson directly referred to Beard by her
last name when he wrote that the Valley County Attorney was
‘“so obsessed with Beard.’” Oldson also mused about “Cathie”
in at least three journal entries, which writings may have also
been references to Beard. At least, the record does not show
they are not. So Oldson’s journal, viewed as a whole, suggests
with an equal degree of confidence that he was not attempting
to conceal his writings about Beard. Third, Oldson referred to
other people by derogatory labels throughout his journal. So
his mere use of a label in exhibit 263 is insufficient to show
that he deliberately concealed references to Beard. In sum,
his references to Beard as the “‘missing one’” in exhibit 263
did not reasonably support an inference that he was deliber-
ately concealing his references to Beard. That interpretation
is speculative.
More important, even accepting the majority’s premise that
Oldson was attempting to conceal his references to Beard,
exhibit 263 did not show his consciousness of guilt. Even
a hundred “oblique” references to Beard could not do that
unless the statements themselves were sufficient to support
a reasonable inference that he had guilty knowledge of the
charged crime. The majority fails to set out the chain of nec-
essary inferences to conclude that Oldson had guilty knowl-
edge of Beard’s murder from his statement in exhibit 263. The
reason for its omission is clear. As explained above, exhibit
263 could not support that inference apart from specula-
tion. And even if the trial court considered exhibit 263 with
exhibits 264, 265, and 267, they do not reasonably support
that inference.
(b) Exhibit 264 Did Not Show
Consciousness of Guilt
(i) Trial Court’s Ruling
The State redacted all but one sentence of exhibit 264:
“Well, one doesn’t write certain things in his journal, does he?”
The court concluded that this page was admissible because it
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“contains an inference that [Oldson] is hiding something and is
inculpatory. It is not character evidence.”
(ii) Trial Court Erred in Admitting Exhibit 264
and the Majority’s Alternative
Reasoning Is Incorrect
The court’s admission of exhibit 264 to show that Oldson
was hiding something was even more improper under rule 403
than its admission of exhibit 263—because inferring Oldson’s
meaning in exhibit 264 was even more speculative. This state-
ment could only be probative of a fact of consequence if it
showed that Oldson was hiding his guilty knowledge about
murdering Beard. But it was equally plausible that Oldson was
musing about a fantasy that he did not want to reveal. Or that
he was musing about his desire to kill a cellmate, his regret of
a previous bad act, or the facts of murdering Beard. But short
of using a Ouija board, no fact finder could divine what Oldson
was writing about.
The majority’s conclusion that exhibit 264 was admissible
to show Oldson’s consciousness of guilt through his cryptic
references to Beard is similarly wrong. Under its reasoning—
regardless of content—Oldson’s obvious references to Beard,
and his silence, show a pattern of trying to conceal his guilty
knowledge. This is circular reasoning. The majority finds a
reference to Beard in exhibit 264 only by proceeding from
an assumption that a pattern of concealment exists. But the
absence of actual evidence showing a pattern can never lead
to a reliable conclusion that he was attempting to conceal his
statements. I conclude that exhibit 264 fails to show a pattern
of oblique references or encryption. And it does not support an
inference of guilty knowledge.
(c) Exhibit 265 Did Not Show
Consciousness of Guilt
(i) Trial Court’s Ruling
In exhibit 265, the court admitted the following redacted
statement: “Well, it looks as if this foolishness about the
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missing doo-doo has reached a point where the end is in sight.
That’s good. I like it - perhaps now I can ease my mind.” In its
order, the court stated, “This is not character evidence. These
are statements made by [Oldson] that are directly related to this
charge. The jury is allowed to make whatever inferences they
choose about this statement.”
(ii) Trial Court Erred in Admitting Exhibit 265
and the Majority’sAlternative
Reasoning Is Incorrect
The trial court incorrectly reasoned that exhibit 265 was
admissible because Oldson’s statement directly related to the
charged crime. I assume that the reference to the “missing doo-
doo” was another reference to Beard. As stated, however, other
evidence established that Oldson knew he was a suspect. So
it was not incriminating for Oldson to express relief that the
investigation was almost over. An innocent person could have
expressed that sentiment, and Oldson’s characterization of the
investigation as “foolishness” strengthens an innocent interpre-
tation of the statement. But that interpretation was irrelevant to
a fact of consequence.
The trial court may have alternatively reasoned that Oldson’s
statement was directly related to the charged crime by inter-
preting it to mean that he was relieved to be getting away with
murdering Beard. But again, Oldson’s actual meaning required
guesswork. The exculpatory and inculpatory interpretations of
his statement are both speculative. And because a fact finder
could only find that the evidence was relevant to a fact of con-
sequence through speculation, the court’s admission of exhibit
265 for any purpose at all virtually ensured that the jurors
would speculate about Oldson’s meaning. So under rule 403,
the court erred in allowing the jurors to speculate that Oldson
had guilty knowledge of Beard’s murder.
Furthermore, the alternative reasoning in the majority opin-
ion does not cure the problem under rule 404(2). As a reminder,
the majority concludes that exhibit 265 was also admissible to
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show Oldson’s consciousness of guilt through his cryptic refer-
ences to Beard or evidence related to her disappearance. But
Oldson’s reference to Beard here as the “‘missing doo-doo’”
fails to show that this was a term he used to conceal his writings
about Beard. Knowing that he was a suspect in Beard’s disap-
pearance, this label was no more secretive than his reference to
the “‘missing one’” in exhibit 263. Additionally, he specifically
referred to other people in his journal as “doo-doos.” And he
used worse derogatory labels for others throughout his journal.
So in context, his use of labels illustrates only his insensitivity
to others, not an encryption. Finally, as noted, Oldson directly
referred to “Beard” and mused about an unidentified “Cathie”
in other entries. So when his journal is viewed as a whole,
this entry also fails to show that he was trying to conceal or
use encryption for his references to Beard. And because the
meaning of Oldson’s statement requires guesswork to conclude
that it shows his consciousness of guilt about Beard’s murder,
it obviously did not provide a sufficient factual foundation to
reasonably support that inference.
(d) Exhibit 267 Did Not Show That
Oldson Secretively Referred to
Beard in Other Exhibits
As I explain later, I agree that exhibit 267 was probative
of Oldson’s consciousness of guilt for Beard’s murder. In that
exhibit, Oldson stated that his first priority upon his release
was to get rid of something that linked him to an unnamed per-
son or thing. But that single statement cannot show a pattern
that proves Oldson was secretly writing about Beard in other
excerpts to conceal his guilty knowledge of the crime. It is
the content of exhibit 267 that evidences Oldson’s conscious-
ness of guilt, not proof of a pattern that shows he used secret
references for Beard. Even if the court considered exhibit 267
with the other exhibits offered to show Oldson’s attempt to
conceal his references to Beard, it failed to show a pattern.
There is no nonspeculative pattern in these exhibits. So the
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majority incorrectly fails to consider each excerpt separately to
determine whether it was properly admitted to show Oldson’s
consciousness of guilt.
4. Trial Court Erred in
A dmitting Exhibit 266
(a) Parties’ Arguments and
Trial Court’s Ruling
The journal entry that the court admitted as exhibit 266
originally read as follows:
I have determined that I am not going to be physically
bullied by anyone, any longer. . . . I have acquired a
great deal of confidence. I can see it in the people around
me that they respect that confidence. This is good. I can
now be what I want to be with no fear of any man. Of
course, emotional fear of women may still be there - I
don’t know. I haven[’]t had any interaction w/girls lately
- obviously.
Of course, I see little reason to fear any longer. I know
pain, I know loss, I know hardship - nothing that can hap-
pen can be as bad as what I have already been “stricked”
(or stricken) with. Besides, as much as I like being with
girls, and as much as I want a relationship, I would think
that it’s in my best interest to plunge right in with no fear.
Show off my best side, etc. Maybe the problem has been
my making girls too high a priority - and having real
problems with accepting rejection. Which may be how
all this got started. “Get it any way you can” (?) Doesn’t
sound like a good attitude. It got me in trouble.
The State redacted all but the last three sentences of this
entry “[j]ust to be as cautious as possible.” So exhibit 266,
as presented to the jury, provided the following: “Maybe the
problem has been my making girls too high a priority - and
having real problems with accepting rejection. Which may be
how all this got started. ‘Get it any way you can’ (?) Doesn’t
sound like a good attitude. It got me in trouble.”
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The State argued that exhibit 266 was admissible to show
Oldson’s state of mind when he interacted with Beard outside
the bar on May 31, 1989, because he was writing about that
specific event. It additionally argued that exhibit 266 was
relevant to show Oldson’s motive for the charged crime: his
refusal to accept rejection.
Oldson’s attorney argued that exhibit 266 was too specula-
tive to show that he was writing about Beard. She reminded
the court that Oldson wrote that this “may be how all this got
started” when he was in custody for an “incident involving a
woman, involving rejection at Burwell.” The court had previ-
ously received evidence showing that in July 1989, officers
arrested Oldson for an assault against a woman in Burwell.
The assault involved his forcibly touching her stomach and
then fleeing. But at trial, the court did not seem to know what
the Burwell incident referred to. So Oldson’s attorney briefly
explained that the State had convicted Oldson of an assault
there. She argued that his journal entry was likely about the
unrelated assault because it was similar to “the sexual proclivi-
ties that are described in the diary” and the woman had resisted
in some manner.
The court admitted Oldson’s statements that he had prob-
lems accepting rejection and that his “‘[g]et it any way you
can’” attitude had got him into trouble to show his motive and
consciousness of guilt for Beard’s murder:
This is not evidence of a prior act under 27-404(2). The
State is not offering this to prove [Oldson] has a character
trait (problem with accepting rejection) that causes him
or has caused him to murder other women. The evidence
does not indicate or imply that [Oldson] kills women who
reject him. This is proper to offer as evidence of motive
and consciousness of guilt as to this charge. Further, this
is relevant to statements [Oldson] made to others that
Cathy Beard rejected him.
Despite this ruling, just before the State published exhibit
266 to the jury, the trial court changed course. It instructed the
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jurors that exhibit 266 was being admitted “to help you decide
motive . . . . You must consider this evidence only for this lim-
ited purpose.” So the court admitted exhibit 266 to show only
motive, not consciousness of guilt.
(b) The Majority’s Reasoning
The majority agrees that exhibit 266 was logically relevant
to show Oldson’s reason for killing Beard. But to reach that
conclusion, it first reasons that the evidence shows Oldson’s
consciousness of guilt. It states that the court “[i]n essence
. . . found that the jury could reasonably infer from exhibit
266 that Oldson was acknowledging he had gotten himself into
‘trouble’ because he attempted to ‘[g]et it any way you can’
when Beard rejected him on the night of her disappearance.”
Citing Huddleston v. United States,47 the majority concludes
that court’s only duty in its gatekeeping role was limited to
determining whether the jury could reasonably find by a pre-
ponderance of the evidence the conditioning fact necessary to
make exhibit 266 relevant: i.e., that Oldson was writing about
getting himself in trouble with Beard on the night she disap-
peared because he attempted to “‘[g]et it any way you can’”
and Beard rejected him.
The majority concludes that the court was required to con-
sider other evidence, “especially the other journal excerpts.”
It concludes that the jury could reasonably draw the inference
that Oldson was writing about Beard because his other journal
entries independently supported an inference that he referred to
Beard in a purposefully vague way. It finds nothing in Oldson’s
journal excerpts to undermine this conclusion. So it concludes
that the “jury could reasonably infer from exhibit 266 that
Oldson was reflecting upon the fact that he had killed Beard
because she rejected him.”
On appeal, Oldson argues that the court should have
excluded exhibit 266 because he could not rebut the motive
47
Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 99 L. Ed. 2d
771 (1988).
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inference without opening the door to extrinsic evidence that
he was in custody for an unrelated assault. Although Oldson
ties his argument to rule 403 in his brief,48 the majority mis-
characterizes it. It treats the argument as a rule 404 issue and
concludes that presenting the extrinsic evidence on cross-
examination would have been free of propensity reasoning.
The majority opinion cites cases in which a court upheld the
admission of flight or escape evidence to show a defendant’s
consciousness of guilt even though the defendant was sought
or being held for more than one crime. From this, it concludes
that Oldson’s tough choice whether to present evidence that
would damn him in the jury’s eyes was not a reason to exclude
the evidence.
Finally, the majority concludes that exhibit 266 did not pre­
sent a rule 403 problem. It implicitly reasons that the exhibit
did not create a propensity inference because Oldson was
writing about killing Beard. But it alternatively reasons that
because there is no character trait involved in having a problem
with rejection, he could not have been prejudiced by improper
propensity reasoning. As the final nail in the coffin, the major-
ity states that only rarely, and only under “‘extraordinarily
compelling circumstances,’” will this court reverse a trial
court’s rule 403 determination.
To summarize, the majority’s confusing analysis concludes
that when read in context with his other cryptic statements,
Oldson’s statement in exhibit 266 was direct evidence of his
motive: He was explaining why he killed Beard. Because he
was writing about Beard’s murder, it was not evidence of his
character. Through this reasoning, it dodges Oldson’s argument
that exhibit 266 was character evidence. Worse yet, the major-
ity concludes that because exhibit 266 showed that Oldson’s
motive for killing Beard was rejection, exhibit 266 was prop-
erly admitted under rule 404 even if it was character evidence.
It reasons that the court’s admission of Oldson’s statement
48
See brief for appellant at 62-65.
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is not nearly as bad as statements that courts have admitted
in some other cases. And the danger of unfair prejudice did
not outweigh the exhibit’s probative value under the major-
ity’s new standard of rarely questioning a court’s ruling under
rule 403. Finally, requiring Oldson to produce evidence of an
unrelated assault to rebut a motive inference was not unfairly
prejudicial because he could have cross-examined the State’s
witness about the extrinsic evidence without relying on propen-
sity inferences about his character.
(c) The Majority Opinion Wrongly
Upholds the Admission
of Exhibit 266
The court’s admission of exhibit 266 to show Oldson’s
motive for murdering Beard was wrong for three reasons. It
required speculative reasoning when offered as direct evidence
of Oldson’s motive. It required propensity reasoning when
offered as circumstantial evidence of Oldson’s motive. Finally,
the jurors were highly likely to have engaged in speculative or
propensity reasoning because they did not know that Oldson
was probably writing about the extrinsic Burwell incident. And
Oldson could not have presented the extrinsic evidence without
painting himself as a person who was likely to have committed
the charged crime.
The majority ignores much of our precedent to uphold the
admission of this single exhibit in a single case. I disagree
with its reasoning, and I particularly disagree with its sugges-
tion that we should abdicate our role to uphold our evidentiary
standards and give blanket deference to a trial court’s rulings
under rule 403.
(i) Exhibit 266 Was Too Speculative
to Show Oldson Was Writing
About Killing Beard
The circumstances known to the court showed that Oldson
was likely writing about his incarceration for assaulting a
woman in Burwell. That offense was the closest in time to his
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journal entry and the only crime that had actually “got [him]
in trouble.” So he was more likely to have been writing about
that crime. And because the court knew these circumstances,
it knew that the jurors would be speculating to conclude that
Oldson was writing about why he murdered Beard. For that
reason alone, rule 403 should have precluded its admission.
The unfair prejudice from drawing a speculative—and thus
unreasonable—inference about Oldson’s motive outweighed
any probative value.
Although the majority states that the court was required to
consider other evidence when considering whether to admit
exhibit 266, it apparently does not include in that mandate the
court’s knowledge that when Oldson wrote this, he was serv-
ing a sentence for assaulting another woman. Instead, the only
evidence that the majority thinks the trial court should have
considered are Oldson’s other journal entries.
But Oldson’s other journal entries fail to show that he was
writing about why he murdered Beard in exhibit 266. His labels
and silence in the other exhibits are too inconsistent to show
that he used a pattern of cryptic references for Beard or that he
omitted her name whenever he wrote about her. And most of
them are simply not incriminating. So they do not show that
Oldson was secretly writing about why he murdered Beard in
exhibit 266. It is only because the majority ignores the specu-
lation problem in detecting a pattern in Oldson’s references to
Beard that it can avoid the speculation problem in reasoning
that Oldson was writing about Beard in exhibit 266. Equally
important, Oldson’s full statement in exhibit 266 showed that
he was ruminating about his problems with women generally.
Only by extracting the three selected sentences from their con-
text could the State convincingly argue that Oldson was writ-
ing about why he murdered Beard.
So I disagree with the majority’s reasoning that there is
no support in Oldson’s journal to show that the admission
of exhibit 266 was misleading and unfairly prejudicial. And
if these statements are unambiguously direct evidence of the
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reason that Oldson killed Beard, a reader must wonder why the
State waited so long to prosecute him when they were aware of
his statements soon after he wrote each journal entry.
(ii) If Jurors Did Not Speculate That Oldson
Was Writing About Beard, They Relied on
Propensity Inferences to Find Exhibit 266
Relevant to Prove Motive
As a reminder, exhibit 266 comprised this statement: “Maybe
the problem has been my making girls too high a priority - and
having real problems with accepting rejection. Which may be
how all this got started. ‘Get it any way you can.’”
The majority incorrectly states that the probative value of
this statement depended upon a finding that Oldson was writ-
ing about Beard. Remember, the court instructed the jurors
only that exhibit 266 was admissible to help them decide
Oldson’s motive for killing Beard. It did not condition their
consideration of the evidence on a finding that Oldson was
writing about why he killed Beard, and Oldson never referred
to Beard in the statement. Because it was not direct evidence
of Oldson’s guilt, its admission allowed the jury to find it rel-
evant to prove Oldson’s propensity to commit assaults against
women who rejected him. So even if the jurors did not specu-
latively infer that the statement was direct evidence of why
Oldson killed Beard, they would have considered it for the
State’s original purpose in offering it at a pretrial hearing: to
show that Oldson was upset by a woman’s rejection, which
coincided with its theory that Oldson murdered Beard when
she rejected his sexual advances.
Other than speculating that exhibit 266 was direct evidence
of Oldson’s motive for killing Beard, the jurors could have
only considered it to be proof of his motive by reasoning that
he was probably acting in conformity with a character trait.
That trait was Oldson’s propensity to “‘[g]et it any way you
can’” if he was rejected. But this theory of logical relevance
conflicted with rule 404(1)’s forbidden propensity reasoning.
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Apart from exceptions that do not apply, rule 404(1) provides
that “[e]vidence of a person’s character or a trait of his or
her character is not admissible for the purpose of proving
that he or she acted in conformity therewith on a particular
occasion . . . .”
The majority rebukes Oldson for extracting the meaning of
his statement “from any context that it referred to Oldson’s
actions with Beard on the night of her disappearance and
his motive for those actions.” But it is the majority that
has extracted the statement from its context, both from the
context of his full statement in exhibit 266 and from the cir-
cumstances known to the trial court. The majority, with a sur-
geon’s scalpel, even attempts to extract his statement that he
had problems accepting rejection—which it declares is not a
character trait—from his statement that his attitude of “‘[g]et
it any way you can’” got him into trouble. Nonetheless, the
jury would have got the point that the two traits were con-
nected. The prosecutor specifically argued in closing that
exhibit 266 provided a glimpse of Oldson’s mindset and
showed that he was unable to accept Beard’s rejection of him.
And the State argues on appeal that Oldson’s journal writings
“reflect that Oldson got in trouble because he [could] not
handle being rejected.”49
The majority apparently recognizes the propensity problem
in the State’s argument because it resorts to again undermining
our rule 404 jurisprudence. It states, “If character evidence is
admitted for a proper purpose, then, ipso facto, it is not admit-
ted for the purpose of showing propensity” and rule 404(1)
does not apply. But regardless of whether subsection (1) or
(2) of rule 404 governs Oldson’s statement, it was not inde-
pendently relevant as circumstantial evidence of his motive.
Under that theory of relevance, the primary purpose of pre-
senting the evidence was to establish Oldson’s propensity to
do whatever it takes to get sex if rejected—his character trait.
49
Brief for appellee at 18.
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Only by establishing this inference could the State use the
statement to show his motive for the charged crime. And we
have previously held the State cannot rely on propensity rea-
soning to show motive.50
In sum, the jurors could only conclude that Oldson was writ-
ing about why he killed Beard through an inference resting on
speculation. Alternatively, they could only conclude that his
writing was circumstantial evidence of his motive through a
propensity inference about his character. Either inference was
unreasonable. Because the inferences were unreasonable, the
evidence’s potential for unfair prejudice outweighed its proba-
tive value. So exhibit 266 was inadmissible under both rules
404 and 403. And it was inadmissible for the additional reason
that Oldson could not rebut the inference without presenting
evidence of his extrinsic misconduct with similarities to the
charged crime.
(iii) A Defendant Should Not Have to
Rebut an Unreasonable Inference by
Presenting Damning Evidence
The majority dismisses Oldson’s argument that he could
not rebut the inference created by the admission of exhibit
266 as a tough strategical choice. It cites cases in which a
court upheld the admission of flight or escape evidence to
show a defendant’s consciousness of guilt even though the
defendant was sought or being held for more than one crime.
But these cases primarily show that even when the defendant
has committed multiple crimes, the circumstantial evidence
is admissible if it reasonably supports one of two inferences:
(1) the defendant was primarily attempting to evade capture
or escape custody for the charged crime51 or (2) the defendant
50
See, State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012);
Sanchez, supra note 4.
51
See, e.g., United States v. Kalish, 690 F.2d 1144 (5th Cir. 1982); United
States v. Boyle, 675 F.2d 430 (1st Cir. 1982); State v. Hughes, 596 S.W.2d
723 (Mo. 1980); Fentis v. State, 582 S.W.2d 779 (Tex. Crim. App. 1976).
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was attempting to evade capture or escape custody for all of
his crimes.52
Some of the cases that the majority relies on are older and
arguably inconsistent with the majority of cases that require
courts to be cautious in admitting evidence of a defendant’s
alleged flight or evasive conduct. But to the extent they are
inconsistent, they should be interpreted to mean that a trial
court must be sensitive to the facts of the case.53 To the extent
they broadly authorize the admission of circumstantial evi-
dence even if it allows jurors to speculate that the evidence
shows a defendant’s guilt, the cited cases are contrary to our
own case law. Here, the State has not met the reasonable infer-
ence requirement.
Similarly, in rejecting Oldson’s argument that exhibit 266
was character evidence, the majority relies on hate crime
cases or cases in which a defendant expressed a desire to kill
or harm a random member of a group.54 Those cases are also
distinguishable. It is true that courts have sometimes admit-
ted evidence showing a defendant’s hatred of a distinct group
or desire to harm a random member of a group to show the
defendant’s motive or intent for a seemingly random act of
violence. But these fact patterns are distinguishable and courts
should analyze them on a case-by-case basis.55 Unlike the facts
in People v. Greenlee,56 Oldson’s journal entries did not show a
52
See, e.g., United States v. De Parias, 805 F.2d 1447 (11th Cir. 1986),
overruled on other grounds, U.S. v. Kaplan, 171 F.3d 1351 (11th Cir.
1999); Boyle, supra note 51; People v. Remiro, 89 Cal. App. 3d 809, 153
Cal. Rptr. 89 (1979); Fulford v. State, 221 Ga. 257, 144 S.E.2d 370 (1965).
53
See Escobar, supra note 42.
54
See, People v. Griffin, 224 P.3d 292 (Colo. App. 2009); Masters, supra
note 19; People v. Hoffman, 225 Mich. App. 103, 570 N.W.2d 146 (1997);
State v. Crumb, 277 N.J. Super. 311, 649 A.2d 879 (1994).
55
Compare Masters, supra note 19, with Kaufman v. People, 202 P.3d 542
(Colo. 2009).
56
People v. Greenlee, 200 P.3d 363 (Colo. 2009).
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desire to randomly kill a woman. Nor did they show his hatred
of women as a group. So the majority’s discussion of such
cases amounts to a distraction.
What matters here is that inferring motive from exhibit 266
required an unreasonable inference. And the majority recog-
nizes that Oldson could not rebut that inference without pre-
senting evidence of his extrinsic misconduct with similarities
to the State’s theory of his conduct in committing the charged
crime. So the unfair rebuttal issue was an additional reason to
conclude that the exhibit’s potential for unfair prejudice out-
weighed any probative value.
The rebuttal dilemma underlies the requirement that the
evidence used to show a defendant’s consciousness of guilt
must reasonably support each necessary inference in the chain
of logic for that proof. The Fourth Circuit discussed this prob-
lem in a flight case where the defendant left the jurisdiction
immediately after an investigator left a note at his residence
for him to contact the investigator. In United States v. Beahm,57
the court held that a trial court may not instruct the jury on
flight as evidence of guilt when the evidence fails to show the
defendant knew the government was investigating him for the
charged crime:
Otherwise, defendant would bear an unconscionable bur-
den of offering not only an innocent explanation for his
departure but guilty ones as well in order to dispel the
inference to which the government would apparently be
entitled that an investigation calling upon defendant could
have but one purpose, namely, his apprehension for the
crime for which he is ultimately charged. If the govern-
ment wishes to offer evidence of flight to demonstrate
guilt, it must ensure that each link in the chain of infer-
ences leading to that conclusion is sturdily supported.58
57
United States v. Beahm, 664 F.2d 414 (4th Cir. 1981).
58
Id. at 420 (emphasis supplied).
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Other courts have similarly reasoned that the introduction
of propensity evidence can unfairly put a defendant in a posi-
tion of explaining extrinsic misconduct or a character trait.59
That concern should surely apply when the trial court knew, or
should have known, that the State’s evidence only supported a
fact of consequence through an unreasonable inference. Here,
requiring Oldson to prove that the inference was unreason-
able would have only strengthened the propensity inference
in the jury’s eyes. This is not a tough strategical choice; it is
an unfair burden. I conclude the trial court erred in admitting
exhibit 266.
5. Court Improperly A dmitted
Exhibits 268, 269, and 271
(a) Oldson’s Meaning in Exhibit 268
Was Speculative
(i) Trial Court’s Ruling
Twenty-seven days before he was released from jail in 1990,
Oldson again ruminated about the Beard investigation: “Well,
there it is. What’s next, I wonder? It’s gettin’ closer - and G.J.
and the Fried Eggplant gang aren’t movin’ - although they still
could, conceivably. How, I don’t know - in fact, [illegible]
wonder if there is any way he could even manufacture some-
thing? I doubt it.”
In this statement, I accept that the initials “G.J.” are reason-
ably interpreted as a reference to the Valley County Attorney at
that time and that the “Fried Eggplant gang” was a derogatory
label for the investigators. The court ruled that exhibit 268 was
admissible to show Oldson’s knowledge that he was a suspect
and to show why he might have wanted to get rid of evidence
“as can be inferred from [exhibit 267].”
59
See, Kaufman, supra note 55; State v. Loebach, 310 N.W.2d 58 (Minn.
1981).
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(ii) Trial Court Erred in Admitting
Exhibit 268 and the Majority
Wrongly Upholds the Ruling
The court erred in admitting exhibit 268 to show Oldson’s
knowledge that he was a suspect and to show why he needed
to get rid of something. Oldson only needed to dispose of
evidence connected to Beard’s murder if he was guilty of
committing that crime. But exhibit 268 did not reasonably
support an inference that Oldson had guilty knowledge of
Beard’s murder. Oldson only wondered if the Valley County
Attorney might still charge him with a crime and if investiga-
tors would manufacture evidence for that purpose. An innocent
man might also wonder if investigators would manufacture
evidence against him when he knew he was a suspect. And the
majority concedes that Oldson’s statement in exhibit 268 was
“largely exculpatory.” Nonetheless, it concludes that the court
did not abuse its discretion in admitting exhibit 268 under rule
403. Not so.
The majority’s statement that exhibit 268 was largely excul-
patory shows that an innocent interpretation was the most
probable interpretation and, minimally, an equally speculative
interpretation. Nor does the majority point to any fact of con-
sequence or intermediate inference for which exhibit 268 was
probative. Oldson’s meaning in exhibit 268 was too speculative
to prove a fact of consequence. So the court erred in admitting
evidence that allowed the jurors to speculate that the exhibit
showed Oldson’s guilt of murdering Beard.
(b) Oldson’s Meaning in Exhibit 269
Was Speculative
(i) Trial Court’s Ruling
In this excerpt, Oldson disparaged the investigators for not
investigating whether anyone else was involved in Beard’s dis-
appearance and stated that he was going to “get away”:
Fried Eggplant gang ain’t makin’ it - they’re gonna slip
and fall and just generally fu-- up! That’s nice . . .
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I’m gonna get away and I’ll bet it breaks their yellow
hearts - they’re so dead-set that I did this and they’re not
gonna look any farther unless they are forced to. Well;
now, they’d best look elsewhere, ‘cuz I refuse to be a part
of this charade any longer. I’m well fed up with this tom-
foolery - they can stick it in their asses. So there.
The court ruled that exhibit 269 was admissible for the same
reason as exhibit 268: to show Oldson’s knowledge that he was
a suspect and to show why he might have wanted to get rid of
evidence “as can be inferred from [exhibit 267].”
(ii) Trial Court Erred in Admitting
Exhibit 269 and the Majority’s
Reasoning Is Incorrect
As with exhibit 268, the majority seems to agree with
Oldson that exhibit 269 was largely exculpatory: “Oldson
opines in exhibits 268 and 269 that the only way law enforce-
ment could bring charges against him is if it manufactured evi-
dence.” Nonetheless, it concludes that exhibit 269 is probative
of Oldson’s guilt. It reasons that a fact finder could infer from
exhibit 269 that Oldson thought he would “‘get away,’ because
law enforcement was going to make mistakes.” So the majority
implicitly reasons that exhibit 269 could show his conscious-
ness of guilt by interpreting the statement to mean that Oldson
believed he would “‘get away’” with murder. It concludes that
the court did not abuse its discretion in admitting the evidence
under rule 403.
The problem with the majority’s reasoning is that the trial
court knew that Oldson was in jail for the unrelated crime
in Burwell when he wrote this. Oldson made this statement
on August 14, 1990, 23 days before the State released him
from jail. The day before making the statement in exhibit 269,
Oldson wrote this entry:
Every sound I hear that I cannot directly identify, and
every time anything questionable happens with Woody or
some other law . . . person, makes me suspect that they
are talking about me, or plotting some way to keep me
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here forever. I have to imagine that G.J. is working fever-
ishly to prevent my slipping out of here. I bet he can’t
stand the idea that I’m going to “get away”. Too bad - and
he better leave me the f--- alone. Death is no stranger to
me, Army and all.
When viewed in the context of Oldson’s journal entry on
the preceding day, his statement that “I’m gonna get away” is
reasonably interpreted to mean that he was going to “get out of
jail,” instead of going to “get away with murder.” Even without
the context of his previous day’s entry, the majority concedes
the statement was largely exculpatory.
But because the jurors did not know that Oldson was in
jail for another crime when he wrote this statement, they were
highly likely to draw the conclusion that he had guilty knowl-
edge of the charged crime. Remember, the jurors only knew
that Woodgate was sheriff of Valley County in 1989 when
Beard disappeared and that he had obtained Oldson’s writings
between December 1989 and September 1990. Because the
context of the writings was unknown to the jurors, the danger
was high they would speculate that Woodgate had obtained
them through a search during the investigation of Beard’s mur-
der. Disconnected from the context of Oldson’s incarceration
for unrelated crime, the excerpt supported a damning infer-
ence that Oldson was writing about getting away with murder.
But the trial court knew the actual context and should have
excluded exhibit 268 because it would allow the jurors to spec-
ulate that Oldson believed he would get away with murdering
Beard. Had they known the context, they could have just as
easily speculated that he thought he would get out of jail before
investigators manufactured evidence against him.
(c) Oldson’s Meaning in Exhibit 271
Was Speculative
(i) Trial Court’s Ruling
Sixteen days before he was released, Oldson wrote the fol-
lowing journal entry:
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Ha, Ha! [The Valley County Attorney] is a stupid slut!
He will never find anything no matter how hard he looks
because their [sic] is nothing to find. And he’s too stu-
pid to manufacture anything. He’s just doo-fah and he’ll
always be scum. I’ve beaten him! Of course, there was
never any doubt in anyone’s . . . mind that I would . . . if
he ever turned it into this kind of thing. So, hah!!
The court ruled that the statement was relevant to show
Oldson’s knowledge that he was a suspect and to show why he
might have wanted to get rid of evidence “as can be inferred
from [exhibit 267].”
(ii) The Majority Incorrectly
Affirms Court’s Ruling
As with Oldson’s other journal excerpts, exhibit 271 could
only show why Oldson would need to dispose of evidence if
it supported a reasonable inference that he had killed Beard.
The majority states that Oldson’s statement is probative of his
guilt because a fact finder could infer that “law enforcement
would not find any incriminating evidence, because Oldson
had particular knowledge about the evidence.” The major-
ity implicitly reasons that he meant investigators would not
find any evidence because he has destroyed it or hid it so
investigators could not find it. That interpretation, however,
conflicts with the trial court’s ruling that it was admissible to
show why he needed to dispose of something when he got out
of jail.
It is true that the statement could have meant that Oldson
was confident investigators would not find the evidence that he
had destroyed or hid. But it could have meant that investigators
would not find incriminating evidence because he was inno-
cent. And in holding that exhibit 271 was admissible to show
Oldson’s consciousness of guilt, the majority again ignores
the absolute speculation required to draw either conclusion.
Because it did not support a reasonable inference of guilt, the
court should have excluded it under rule 403.
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6. Trial Court Erred in
A dmitting Exhibit 270
(a) Trial Court’s Ruling
In exhibit 270, Oldson expressed his attraction to the stom-
ach of listed persons with whom he had had “experience”:
Love that gut, tummy, belly, abdomen, stomach, mid-
riff, middle, torso, etc. Extensive experience comes with
Sandy, Dondie, C.B., and Linda. Other mediocre expe-
riences with Robin, Cathie, Shirley,(o) Shawna, Alyce,
K.P.,([illegible]) Donna H., Irma S., Allison, Ronda (from G.I.
1980), Mary Jane, Teresa, 2116; resident upstairs; 1980,
Salinas 1987, Lincoln 48th/Leighton(1989), Darlene, Connie,
Pam, Tammy S., Cami G, Bonnie M, Carolyn D, et. al.
List remains incomplete. Will add more as more comes
available. For now, must rate C.B. as most gratifying,
Sandy as most comfortable, Teresa as prettiest, maybe
Darlene. Just don’t know - they[’]re all so nice. YUH! Go
on and gitcha some!
In its written order, the court admitted exhibit 270 for the
following reason:
State is offering this excerpt as inculpatory evidence that
contradicts exculpatory statements by [Oldson] regarding
his relationship with Cathy Beard and his prior sexual
experience with women. Further, this is not character
evidence. The State is not offering this to prove he had a
sexual relationship with these women and then murdered
them, or even that [Oldson] actually had sexual con-
tacts with these women. They are statements by [Oldson]
offered to disprove an exculpatory statement made by
[Oldson] that he did not have sex until he was married
and/or that he did not have sex with . . . Beard.
The court overruled Oldson’s objections. It implicitly agreed
with the State that a limiting instruction could cure any preju-
dicial effect from the admission of exhibit 270. But contrary
to the court’s ruling in its order, before the State published
exhibit 270, the court gave this limiting instruction:
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Jurors, you are now seeing evidence that is being submit-
ted to you for a specific limited purpose. This evidence is
being offered for the limited purpose to help you decide
what if any knowledge [Oldson] had of Cathy Beard,
the nature and extent of any relationship he and Cathy
Beard may have had, and for the purpose of evaluating
[Oldson’s] credibility with respect to any other statements
that he made. You must consider this evidence only for
this limited purpose.
Under this limiting instruction, the court admitted exhibit
270 only as proof that Oldson was lying about not having a
sexual relationship with Beard. The instruction precluded the
jurors from considering the statement as proof that he had lied
when he said he was a virgin until he got married.
The majority incorrectly states that the court did not give
this limiting instruction specifically for exhibit 270. The pros-
ecutor had already published exhibits 263 through 269, and
the court gave this instruction immediately after the prosecutor
asked for leave to publish exhibit 270 to the jury. Right after
the court gave the instruction, the prosecutor stated, “And,
Judge, just so the record’s clear, that instruction pertains to this
particular exhibit that’s on the screen now, Exhibit 270.” The
court responded, “It does.”
(b) The Majority’s Reasoning
The majority states that the court implicitly determined that
exhibit 270 was logically relevant to show that Oldson had
sexual contact with Beard on the night that she disappeared.
It rejects Oldson’s argument that exhibit 270 could simply be
a reference to his sexual fantasies. It states that false exculpa-
tory statements of fact which are sufficient to justify an infer-
ence of guilt are admissible even if they could be explained
another way. It concludes that exhibit 270 was sufficient to
support an inference that Oldson made false exculpatory state-
ments of fact when he said that “he was a virgin, Oldson and
Beard had apparently not had a sexual relationship prior to
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her disappearance, and . . . Beard rejected Oldson’s sexual
advances on the night of her disappearance.” It also concludes
that exhibit 270 did not present a rule 404 problem because
Oldson’s statement proved conduct that was intrinsic to the
charged crime:
Rather, it concerns an act intrinsic to the crime. The
State’s theory of the case was that Oldson killed Beard
in the course of a sexual assault. That the jury did not
convict on that concurrent assault charge does not ret-
rospectively change the nature of the evidence to be of
“other acts.”
In short, the majority concludes that the statement shows both
that Oldson had a sexual relationship with Beard before she
disappeared and that he sexually assaulted her on the night that
she disappeared.
Although Oldson referred to other people with whom he
had had “stomach” experiences, the majority states that the
other names in exhibit 270 were relevant only to show that
the sole person Oldson referred to by initials was “C.B.” The
majority concludes that Oldson was not prejudiced by evidence
suggesting that he had similar sexual experiences with other
people: “While promiscuity or even sexual fantasies might be
considered by some people to be reflective of a bad character
trait, it is hardly the kind of character trait that would compel
a jury by improper propensity reasoning to convict a defendant
of murder.”
So for the other listed names, Oldson’s stated experience
with them could be real or imagined. There was no devi-
ant sexual propensity suggested in the excerpt because his
reference to a “female body part simply clarified the sexual
nature of the other sentences. This illustrated that the ‘experi-
ences’ Oldson referred to throughout the excerpt were sexual
experiences, either real or imagined.” (Emphasis supplied.)
But for “C.B.,” Oldson’s implied sexual experience was
with Beard, it was real, and it happened on the night that
Beard disappeared.
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Cite as 293 Neb. 718
(c) The Majority’s Reasoning
Is Wrong
The majority’s reasoning is contrary to the court’s ruling
and internally inconsistent. The court did not allow the jury
to consider the evidence as proof that Oldson had lied when
he said he was a virgin until he married. Nor did it admit this
evidence as a confession, i.e., to show that Oldson sexually
assaulted Beard on the night that she disappeared or on any
other night. And nothing in his excerpt refers to an assault or
to sexual contact with Beard on the night she disappeared.
Under the court’s limiting instruction, the jury’s consideration
of exhibit 270 was limited to determining whether Oldson
lied when he told others that he had never had a sexual
relationship with Beard. The court did not implicitly deter-
mine that exhibit 270 was relevant to show that Oldson had
sexual contact with Beard on the night that she disappeared. It
explicitly instructed the jurors to consider exhibit 270 only for
deciding “what if any knowledge [Oldson] had of . . . Beard,
the nature and extent of any relationship he and . . . Beard
may have had, and for the purpose of evaluating [Oldson’s]
credibility with respect to any other statements that he made.”
So the jury was not asked to decide whether exhibit 270
showed Oldson had sexual contact with Beard on the night
she disappeared.
Even if the court had given such an instruction, exhibit
270 is completely speculative to prove Oldson had sexual
contact with Beard on the night she disappeared. To begin
with, it is too speculative to determine that Oldson was even
writing about Beard. In this regard, the majority incorrectly
states that Oldson only referred to “C.B.” by initials. He also
referred to a “K.P.” by initials. The word in the superscripted
parenthetical beside the initials “K.P.” is illegible and its
meaning unclear. But other names in this excerpt also have
superscripted parentheticals with no comprehensible common
meaning. So to the extent that the majority has interpreted
the superscript beside the initials “K.P.” to be a last name, it
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is speculating. Additionally, as Oldson’s attorney argued at
trial, Oldson also referred to “Cathie” in this excerpt. He also
referred to “Cathie” in two additional excerpts and directly
referred to “Beard” in another excerpt.
So the trial court knew, or should have known, that allow-
ing the jurors to determine that “C.B.” referred to Beard would
be a speculative inference. The other listed names did not cure
that speculation. And because it was speculative to conclude
that “C.B.” was a reference to Beard, the inference that Oldson
was writing about his sexual experiences with her was unrea-
sonable under rule 403.
The majority implausibly doubles down on this specula-
tion. Even if Oldson’s statement in exhibit 270 had been
sufficient to show that he had a sexual relationship with
Beard, it would have been too speculative to show that he
had sexually assaulted her on the night she disappeared.
The trial court at least recognized the speculative inferences
required for that conclusion because it did not instruct the
jury to consider it for that purpose. Even the majority rec-
ognizes that some of Oldson’s listed experiences could have
been fantasies. But it denies that Oldson’s experience with
“C.B.” could have been a fantasy: “[I]t would not follow that
because Oldson’s sexual ‘experiences’ with the other women
listed were fantasies, the ‘most gratifying’ ‘experience’ with
‘C.B.’ was also a fantasy.”
Actually, it does follow. There was no logical reason to con-
clude that Oldson’s gratifying experience with “C.B.” was dif-
ferent in kind from his “comfortable” experience with Sandy.
And by conceding that some of these “experiences” could have
been fantasies, the majority undermines its own reasoning that
Oldson’s experience with “C.B.” was real—even more so its
reasoning that Oldson was writing about sexually assaulting
Beard on the night she disappeared.
And exhibit 270 was inadmissible character evidence under
rule 404. To prove that Oldson was lying, the State needed to
show that Oldson had a sexual relationship with Beard some
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time before her disappearance. Contrary to the majority’s
statement, the court did not explicitly inform the jurors that
they could not consider whether Oldson had sexual contact
with any of the other women listed. It instructed them that
they could consider exhibit 270 only to determine whether
Oldson had a sexual relationship with Beard and to evaluate
his credibility on other statements. Nor did the court instruct
the jurors to consider the other listed names only to deter-
mine whether Oldson’s reference to “C.B.” was a reference
to Beard. So the majority incorrectly reasons that the other
names were only relevant to show that “C.B.” was a reference
to Beard and that this relevance did not depend upon whether
Oldson’s experiences with the other listed people were real
or fantasies.
The only way that the jurors could have concluded from
exhibit 270 that Oldson had a sexual relationship with Beard
before she disappeared was by reasoning that he had actual
sexual experiences with all of the people whom he listed in
exhibit 270. Exhibit 270 is either too speculative to prove
that his “experiences” with any of the listed people were real
sexual experiences or it proves that they all were. So exhibit
270 put before the jurors Oldson’s sexual experiences with
many people, accompanied by the strong suggestion that he
rated those experiences based on his unusual sexual preference
for stomachs.
Finally, both the court’s written order and limiting instruc-
tion show that it considered exhibit 270 relevant to prove
Oldson’s extrinsic sexual acts with Beard to prove his con-
sciousness of guilt: i.e., that he was lying when he said that he
had never had a sexual relationship with Beard. So under rule
404(3), before admitting the statement, the court had to find
by clear and convincing evidence that the State had proved the
extrinsic sexual act(s). It did not. This fatal procedural defect is
apparently why the majority unconvincingly opines that exhibit
270 was sufficient to prove that Oldson sexually assaulted
Beard on the night she disappeared. Only by claiming that the
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Cite as 293 Neb. 718
alleged sexual contact was intrinsic to the murder charge—i.e.,
Oldson was writing about sexually assaulting Beard on the
night he murdered her—can the majority avoid the procedural
requirement under rule 404(3).
But even if that procedural defect did not exist, the majority
opinion is unpersuasive. The question is not whether the State’s
evidence can support any inference supporting the proof for
which the evidence was offered. The question is whether it can
support a reasonable inference that does not rest on speculation
or propensity reasoning.
In sum, I conclude that the court erred in admitting exhibit
270 to show that Oldson had lied when he said he never had
a sexual relationship with Beard. Concluding that Oldson was
writing about Beard in this excerpt required speculation. Even
if exhibit 270 could show that he was writing about Beard, it
could not show that he had sexually assaulted her on the night
she disappeared. And concluding that Oldson was writing
about a sexual experience with Beard rested on the inference
that Oldson was writing about his sexual experiences with all
of the people he listed in exhibit 270. The inference that he
had listed his sexual experiences could not be separated from
his first statement, showing an unusual sexual preference for
the stomach. In context, exhibit 270 listed his sexual experi-
ences that coincided with his stomach fetish. The potential
for jurors to reason that he acted in accordance with a devi-
ant sexual trait outweighed any probative value of specula-
tive evidence.
V. TRIAL COURT’S IMPROPER ADMISSION
OF JOURNAL EXCERPTS WAS
HARMLESS ERROR
In summary, I conclude that the court erred in admitting
eight of the nine redacted excerpts from Oldson’s journal. In
a jury trial of a criminal case, an erroneous evidentiary rul-
ing results in prejudice to a defendant unless the error was
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harmless beyond a reasonable doubt.60 Harmless error review
looks to the basis on which the trier of fact actually rested its
verdict; the inquiry is not whether in a trial that occurred with-
out the error a guilty verdict would surely have been rendered,
but, rather, whether the actual guilty verdict rendered was
surely unattributable to the error.61 If the evidence is cumu-
lative and there is other competent evidence to support the
conviction, the improper admission or exclusion of evidence is
harmless beyond a reasonable doubt.62
I believe that the court improperly admitted exhibit 266 to
show Oldson’s motive for killing Beard: he sexually assaulted
her when she rejected him and then killed her. It improperly
admitted the remaining seven journal excerpts to show his con-
sciousness of guilt.
But one journal excerpt did show that Oldson had guilty
knowledge of Beard’s murder. The court properly admitted
exhibit 267 for that purpose.
In exhibit 267, the court admitted this redacted statement:
I really have no idea about what to do or where to go.
My first priority is to get rid of something A.S.A.P.! That
is, if I can still find them. The only . . . link left between
me and . . .
But after that, I imagine I’ll stay in the Midwest and
try something. Maybe stick around here to work for Pop.
He no doubt needs the help. And I could use the $ . . . .
From the bench, the court stated that Oldson’s statement
about the “only . . . link left” was more likely to be a refer-
ence to the Beard investigation than any other bad act Oldson
had committed. The court ruled that exhibit 267 was admis-
sible to show his consciousness of guilt, i.e., that he needed
60
State v. Grant, ante p. 163, 876 N.W.2d 639 (2016).
61
State v. Lavalleur, 289 Neb. 102, 116, 853 N.W.2d 203, 215 (2014),
disapproved in part on other grounds 292 Neb. 424, 873 N.W.2d 155
(2016).
62
See Grant, supra note 60.
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to destroy evidence, which the jury could infer related to
his charge.
I agree with the court that a fact finder could reason-
ably infer from exhibit 267 that Oldson was concerned about
destroying evidence related to the Beard investigation. He
wrote this when he was serving a sentence for committing an
assault in Burwell, so he would not have been worried about
evidence connected to that crime. Beard’s murder was the only
active investigation against him, and he knew he was a suspect.
Moreover, in Oldson’s other journal entries, he was not reticent
about expounding on his moral failings, sexual fantasies, or
sexual behaviors that he needed to control or abandon. So his
attorney’s argument that in exhibit 267, he could have been
writing about a character flaw or pornography that he needed
to “get rid of” was not persuasive. The court correctly deter-
mined that the statement supported a reasonable inference of
his guilty knowledge.
Additionally, the State presented other, stronger evidence
of his consciousness of guilt. In January 2012, after offi-
cers arrested Oldson, they recorded his conversations with
his wife. These conversations showed that he was concerned
that investigators might have found evidence linking him to
Beard’s murder.
In the 2012 conversations, Oldson was generally trying to
explain why officers had arrested him for murder and specu-
lating that new DNA testing techniques might have shown
his DNA was mixed with Beard’s DNA on some item or on
an area of his father’s pickup. To rationalize how investiga-
tors might find a mixed DNA sample in his father’s pickup,
Oldson admitted that he had struggled with Beard and tried to
pull her into the pickup with him:
[Oldson:] Well, we don’t know that they found nothing,
they probably found plenty and they just probably never
told anybody what they found [be]cause they couldn’t
attach . . . they couldn’t do anything with it at the time.
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But see now with the techniques and they think ooh-ooh,
no, we’ve got something. I don’t know.
[Wife:] But how could they have found anything? If
there was nothing to find Johnny? If you didn’t do it.
[Oldson:] That’s the thing, see, . . . . All they have to
do is find a spot, any one spot, anywhere, where your
DNA and the victim’s DNA are in the same place. That’s
all they’ve got to find. They don’t have to prove anything
else anymore.
[Wife:] Are you saying that’s true?
[Oldson:] [inaudible] I tried, I wrestled around with
Cathy Lee Beard, I tried to pull her into the pickup, say-
ing, “Come on, let’s go do it.” “No, I don’t like you that
way.” And she may have bumped the side of the pickup,
she may have put her hand down on the seat, she may
have, you know, may have whatever—may have fallen
down on the floor. I don’t know.
In another excerpt, Oldson speculated about where inves-
tigators might find a mixed DNA sample from Beard and
himself:
You know, what could it be? . . . I’m a brick layer,
alright? What if they say with tests we found her DNA
on your brick hammer? Or we found DNA on the bumper
of your truck. You hit her with it—you killed her that
way. Or you—we found DNA on a gas can—you torched
her and set her on fire, you know. Or you know—who
knows—I have no idea what, I have no idea what they
are going to find. Because, and here’s the thing, it’s not
gonna worry me—I’ve [sic] never was denying that we
mingled. That our DNA would have mingled somewhere
or another because I grabbed her by the arm and I tried to
pull her into the truck and she struggled back—and so I
had ahold of her and she was pushing against me—I think
she put her hand down on the seat once to balance herself
as she tried to pull away so her DNA was in the truck, her
DNA was on me—sure.
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Cite as 293 Neb. 718
But in 1989, Oldson gave a different version of his physical
interactions with Beard. On June 2, Oldson told local officers
only that he had tried to get Beard to come with him and that
she had refused. He got into the pickup after she refused and,
in the the rearview mirror, saw her leave with someone else. A
retired investigator for the Nebraska State Patrol testified that
on June 5, Oldson said that while he was standing outside of
the open passenger door of his father’s pickup, he asked Beard
again if she wanted to do something and she again declined.
Oldson admitted that he grabbed her by the wrists and was
going to pull her inside the pickup, but he said that she pulled
away. The investigator’s testimony was consistent with his
report. Oldson did not say that he was inside the pickup when
he grabbed Beard’s wrists or that he had struggled with her
inside the pickup.
From these conversations, a juror could have reasonably
inferred that Oldson changed his story because he was con-
cerned that new DNA testing procedures would reveal incrimi-
nating evidence that Beard had been inside the pickup, contrary
to what he had stated in 1989. And Beard’s DNA on his ham-
mer or the pickup’s bumper would have been consistent with
the blunt force injuries that Beard sustained. In sum, Oldson’s
attempt to explain why investigators might find such evidence
strongly supported an inference of his guilty knowledge that
such evidence existed. And his concern in 2012 that a mixed
DNA sample might be found on his hammer or other items suf-
ficient to have caused Beard’s death is strikingly similar to the
concern expressed in exhibit 267 that he had to get rid of the
“only . . . link left between me and . . . .”
This evidence was before the jurors. The State played the
excerpts from the telephone conversations. And the prosecu-
tor specifically argued in closing that Oldson had changed his
story in his telephone conversations with his wife and said for
the first time that he had wrestled with Beard and tried to pull
her into the pickup with him. So there was strong cumula-
tive evidence of Oldson’s consciousness of guilt to offset the
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court’s erroneous admission of speculative evidence for that
proof. Because the evidence reasonably supported a conscious-
ness of guilt inference, the jurors could properly rely on it to
find Oldson guilty of murder. And because he admitted to try-
ing to pull Beard into the pickup with him when she rejected
him, the jurors could have reasonably inferred from the 2012
conversations that he had a motive for murder: forcing sexual
contact upon Beard or covering up that crime.
To sum up, the speculative evidence that the court erro-
neously admitted was cumulative to evidence that the court
properly admitted for the same purpose. Because I agree with
the majority that other sufficient competent evidence supported
Oldson’s conviction, I conclude he was not prejudiced by the
erroneous admissions of his journal excerpts.
Miller-Lerman, J., joins in this concurrence.