1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.
3. Motions for Mistrial: Appeal and Error. The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion.
4. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions given by a trial court are correct is a question of law. 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.
5. Rules of Evidence: Sexual Assault: Other Acts. Neb. Rev. Stat. § 27-414 (Cum. Supp. 2012) allows evidence of prior offenses of sexual assault to prove propensity.
6. ___: ___: ___. Neb. Rev. Stat. § 27-414 (Cum. Supp. 2012) requires a hearing outside the presence of the jury before the court admits evidence of the accused's commission of another offense of sexual assault.
7. Rules of Evidence: Sexual Assault: Other Acts: Time. Neb. Rev. Stat. § 27-414 (Cum. Supp. 2012) does not impose any timing requirement as to when the required hearing outside of the presence of the jury must be held.
8. Rules of Evidence: Other Acts: Time: Intent. The admissibility of evidence concerning other conduct must be determined upon the facts of each case, and no exact limitation of time can be fixed as to when other conduct tending to prove intent to commit the offense charged is too remote.
9. Rules of Evidence: Other Acts: Time. The question whether evidence of other conduct is too remote in time is largely within the discretion of the trial court. While remoteness in time may weaken the value of the evidence, such remoteness does not, in and of itself, necessarily justify exclusion of the evidence.
10. Rules of Evidence: Other Acts. Under the plain language of Neb. Rev. Stat. § 27-414(3)(c) (Cum. Supp. 2012), the court is to compare the similarity of the other acts to the crime charged.
11. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly granted in a criminal case where an event occurs during the course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.
12. Motions for Mistrial: Proof. A defendant faces a higher threshold than merely showing a possibility of prejudice when attempting to prove error predicated on the failure to grant a mistrial. [286 Neb. 281]
13. Jury Instructions. In the absence of a request for a limiting instruction, there is no reversible error in a court's failure to give a limiting instruction.
14. Rules of Evidence: Sexual Assault: Other Acts. Evidence of another offense or offenses of sexual assault, if admissible in a prosecution for an offense of sexual assault, is not received for a limited purpose but may be considered on any matter to which it is relevant.
15. Appeal and Error. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground.
16. Jury Instructions. Whenever an applicable instruction may be taken from the Nebraska Jury Instructions, that instruction is the one which should usually be given to the jury in a criminal case.
17. Jury Instructions: Appeal and Error. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.
18. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.
Appeal from the District Court for Sarpy County: Max Kelch, Judge.
Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, for appellant.
Jon Bruning, Attorney General, and James D. Smith for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.
In this appeal from convictions and sentences for child abuse and sexual assault, we primarily address the district court's procedures regarding evidence of prior sexual offenses under Neb. Rev. Stat. § 27-414 (Cum. Supp. 2012). Before trial, the court heard testimony from the accused's prior victims, compared the testimony to the current charges, and made a conditional ruling of admissibility. But the court prohibited the State from mentioning or presenting the § 27-414 evidence at trial until after the evidence of the current alleged victims. At trial, the State [286 Neb. 282] first presented the "current" evidence. Then, outside the presence of the jury, the State gave notice of its intent to present the § 27-414 evidence and the court made a final determination of its admissibility. We find no error in the procedures used by the district court, and we reject the other assignments of error challenging the court's rulings on a motion for mistrial and on jury instructions. Accordingly, we affirm.
Paul A. Valverde, born in February 1969, is the father of H.L. and the uncle of B.V., both of whom were born in March 1997. The State charged Valverde with two counts of third degree sexual assault of a child, second offense; four counts of child abuse; and four counts of first degree sexual assault of a child, second offense, relating to acts committed against H.L. and B.V. at several locations in Sarpy County, Nebraska, during periods of time between June 1, 2008, and December 10, 2010. The State later moved to dismiss one count of first degree sexual assault of a child, second offense. Because the issues in this appeal are largely limited to the district court's proceedings under § 27-414, we do not summarize various other aspects of the case.
1. First Hearing
In April 2011, the State moved to admit evidence of Valverde's commission of another act of sexual assault under § 27-414. The State alleged that Valverde sexually assaulted E.M. when she was 14 years old, fathered a child with her when she was 15 years old, and was convicted of third degree sexual assault of a child in 1995 for the sexual assaults committed on E.M. The State also alleged that in 1988, when Valverde was 20 years old, he molested his 11-year-old niece, T.K. Because T.K. did not testify regarding any sexual assault at trial, we omit further discussion of the evidence adduced at the § 27-414 hearing related to her.
During a hearing on the State's motion, evidence established that E.M., born in June 1979, met Valverde in 1993, when she was 14 years old and he was 24 years old. While E.M. was at Valverde's apartment during the summer of 1993, Valverde [286 Neb. 283] put his hands down her pants and inserted his fingers into her vagina. At other times while E.M. was 14 years old, Valverde inserted his penis into her vagina. The sexual intercourse continued when E.M. turned 15 years old, and she gave birth to Valverde's child when she was 15.
On June 28, 2011, the district court entered an order, finding by clear and convincing evidence that Valverde committed multiple sexual assaults upon E.M. under Neb. Rev. Stat. § 28-319 (Reissue 2008). The court observed that two of the crimes charged in the instant case involved subjecting another person 14 years of age or younger to sexual contact when Valverde was at least 19 years of age, that three charges involved subjecting another person who was at least 12 years of age but less than 16 years of age to sexual penetration when Valverde was 25 years old or older, and that one charge involved subjecting another person who was under 12 years of age to sexual penetration when Valverde was 19 years or older. The court noted that Valverde committed sexual assaults upon E.M. when she was age 14, which was a similar age to H.L. and B.V, and that Valverde was age 19 or older in the prior and current alleged sexual assaults. The court stated that "although the details of the acts that underlie the present charges were not offered, the present charges themselves are of a similar nature to the prior sexual assaults." The court determined that the acts against E.M. were not overly prejudicial from a timing standpoint and that the risk of prejudice did not substantially outweigh the probative value of the evidence of the prior sexual assaults. Therefore, the court determined that E.M. would be allowed to testify at trial regarding the prior sexual assaults committed upon her by Valverde.
2. Second Hearing
In October 2011, the State filed another motion seeking to admit evidence under § 27-414. The State alleged that Valverde sexually assaulted H.A., formerly known as H.R., when she was 13 years old and that he was convicted of third degree sexual assault of a child in 1995 for the sexual assault.
During a hearing on the motion, H.A., born in November 1981, testified that she agreed to babysit a child of Valverde's [286 Neb. 284] on one occasion when she was 13 years old. After putting the baby to bed, H.A. fell asleep on a couch and awoke to Valverde's touching her breasts. He also touched her legs and "bottom area." The next day, H.A. reported the incident to the police. The court received into evidence a certified copy of Valverde's conviction for the incident and a copy of the operative information in the instant case.
On November 23, 2011, the district court entered an order granting the State's motion. The court found that Valverde committed a sexual assault upon H.A. pursuant to Neb. Rev. Stat. § 28-320.01 (Reissue 2008). The court stated that H.A. was 13 years old when Valverde committed the sexual assault upon her, which was a similar age to H.L. and B.V as alleged in two of the counts of the operative information and that Valverde was 19 years or older at the time of the prior and present alleged sexual assaults. The court further stated that
although the details of the acts that underlie the present charges were not offered, the present charges themselves are of a similar nature to the prior sexual assaults. Therefore, the prior sexual assault committed by [Valverde] upon [H.A.] is found at this point in this opinion to be both probative and relevant to the present crimes charged.
(Emphasis in original.) The court stated that H.A. would be allowed to testify at trial, subject to certain restrictions. Due to concerns about cumulative evidence, the court limited the State, in its case in chief, to either calling H.A. to testify or offering Valverde's prior conviction.
The district court compared a pretrial motion to allow evidence under § 27-414 to a motion in limine, because both call for a pretrial ruling to determine the admissibility of evidence. The court emphasized that its ruling allowing the State to present evidence of the prior sexual assaults was not a final ruling due largely to the lack of specificity of facts regarding the current sexual assaults because H.L. and B.V. did not testify in either hearing on the motions to allow evidence under § 27-414. The court prohibited the State from presenting any [286 Neb. 285] evidence under § 27-414 until after evidence had been offered regarding the alleged sexual acts as charged in the operative information. The court continued:
After the evidence has been presented as to the alleged sexual acts that are contained within the present Information, then, the State shall notify the Court and [Valverde], outside of the presence of the jury, that it intends to call as a witness either [H.A.], [E.M., ] and/or [T.K.] This procedure allows the Court to make a further determination, outside of the presence of the jury, if called upon to render such a ruling, the admissibility of any evidence pursuant to . . . §27-414.
The court further stated, "Although, only advisory to the parties, in the event [H.A.], [E.M., ] and/or [T.K.] do testify at trial, this Court shall issue a cautionary instruction as to their testimony."
A jury trial commenced, and consistent with the district court's order, the State did not allude to assaults on the prior victims in its opening statement. The State called B.V. as its first witness. B.V. testified that on July 4, 2009, he went with his family to his grandmother's house; Valverde and H.L. were also present. That evening, Valverde told B.V. to "check and see if [B.V] had sperm." B.V. "checked" by masturbating, and then Valverde stroked B.V.'s penis. While B.V. had an erection, Valverde pulled down H.L.'s pants and underwear and inserted B.V.'s penis into H.L.'s vagina. According to B.V, Valverde then pushed on B.V.'s back in an up-and-down motion. B.V. felt uncomfortable, so he removed his penis so that it was touching H.L.'s leg when Valverde was not looking. B.V. testified that Valverde said B.V. was ...