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State v. Stephens

Court of Appeals of Nebraska

June 5, 2018

STATE OF NEBRASKA, APPELLEE,
v.
CHAD N. STEPHENS, APPELLANT.

         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. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

         4. Rules of Evidence: Other Acts: Intent. No exact limitation of time can be fixed as to when other conduct tending to prove intent to commit the offense charged is remote under Neb. Rev. Stat. § 27-414(1) (Reissue 2016).

         5. 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.

         6. Criminal Attempt: Intent. A defendant's conduct rises to criminal attempt if he or she intentionally engages in conduct which, under the [26 Neb.App. 2] circumstances as he or she believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his or her commission of the crime.

         7. Criminal Attempt. Whether a defendant's conduct constitutes a substantial step toward the commission of a particular crime and is an attempt is generally a question of fact.

         8. Lesser-Included Offenses: Sexual Assault. Attempted first degree sexual assault on a child is a lesser-included offense of first degree sexual assault on a child.

         9. Lesser-Included Offenses: Sexual Assault: Intent. A finder of fact may convict of the lesser-included offense if it finds that the act of penetration was not proved beyond a reasonable doubt but also finds that a defendant intentionally engaged in conduct which, under the circumstances as the defendant believed them to be, constituted a substantial step in a course of conduct intended to culminate in first degree sexual assault.

          Appeal from the District Court for Douglas County: Gregory M. Schatz, Judge. Affirmed.

          Robert B. Creager, of Anderson, Creager & Wittstruck, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee. Pirtle, Bishop, and Arterburn, Judges.

          Arterburn, Judge.

         INTRODUCTION

         Following a bench trial, the district court for Douglas County found Chad N. Stephens guilty of attempted sexual assault of a child in the first degree. On appeal, Stephens argues that the district court improperly allowed Neb. Rev. Stat. § 27-414 (Reissue 2016) evidence and that there was ...


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