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State v. Thomas

Supreme Court of Nebraska

August 30, 2019

State of Nebraska, appellee,
v.
Nathan M. Thomas, appellant.

         1. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), and the trial court's decision will not be reversed absent an abuse of discretion.

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

         3. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner. But evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under rule 404(2).

         4. Rules of Evidence: Other Acts: Proof. Under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), evidence may be admissible for such purposes as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

         5. Rules of Evidence: Other Acts: Appeal and Error. An appellate court's analysis under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), considers whether the (1) evidence was relevant for some purpose other than to prove the character of a person to show that [303 Neb. 965] he or she acted in conformity therewith, (2) probative value is substantially outweighed by its potential for unfair prejudice, and (3) trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted.

         6. Rules of Evidence: Words and Phrases. Evidence under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), that is offered for a proper purpose is often referred to as having "special" or "independent" relevance, which means that its relevance does not depend upon its tendency to show propensity.

         7. Rules of Evidence: Other Acts. The admissibility of other crimes evidence under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), must be determined upon the facts of each case and is within the discretion of the trial court.

         8. Criminal Law: Words and Phrases. Motive is defined as that which leads or tempts the mind to indulge in a criminal act.

         9. Criminal Law: Intent: Proof. Motive, even when not an element of a charged crime, is relevant to the State's proof of the intent element of the crime.

         10. Criminal Law. Motive qualifies as a legitimate noncharacter theory because although character carries a connotation of an enduring general propensity, a motive is a situationally specific emotion.

         11. Rules of Evidence. Evidence that is admissible under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), may be excluded under Neb. R. Evid. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016), if its probative value is substantially outweighed by the danger of unfair prejudice.

         12. Evidence. The probative value of evidence involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the fact from the ultimate issue of the case.

         13. ___ . Most, if not all, evidence offered by a party is calculated to be prejudicial to the opposing party. 14. Trial: Evidence. Balancing the probative value of evidence against the danger of unfair prejudice is within the discretion of the trial court.

         15. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

         16. Trial: Evidence. Even if there are inadmissible parts within an exhibit, an objection to an exhibit as a whole is properly overruled where a part of the exhibit is admissible.

         17. Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.

          [303 Neb. 966] Appeal from the District Court for Lancaster County: Andrew R. Jacobsen, Judge. Affirmed.

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

          Douglas J. Peterson, Attorney General, Erin E. Tangeman, and, on brief, Joe Meyer for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Cassel, J.

         I. INTRODUCTION

         Nathan M. Thomas appeals, challenging one of his two convictions by a jury-for electronically offering to perform oral sex upon a police decoy portraying a 14-year-old girl.[1] He first claims that "[rule] 404 evidence"[2] of a sexually explicit online "chat" with another underage woman was admitted for improper purposes and was unfairly prejudicial. We conclude that both bases, motive and absence of mistake or accident, were proper. We also conclude that the district court did not abuse its discretion in balancing probity and prejudice. Second, Thomas asserts that his solicitation of "eating you out" was not sufficient to support the conviction. He is wrong. We affirm.

         II. BACKGROUND

         Effectively, only one of Thomas' two convictions is before us, regarding count 1. The district court admitted the rule 404 evidence only for purposes of that count. And Thomas challenges the sufficiency of the evidence only as to that count. Although we note the other charge below in passing, it otherwise has no bearing on this appeal.

         [303 Neb. 967] In the balance of this section, we first summarize the communications with the decoy and the events leading to the arrest and charges. We then recount the proceedings and evidence regarding Thomas' earlier chat with a real 14-year-old girl employing the username "Wolfgirl 458222" (Wolfgirl)-the State's rule 404 evidence. We then briefly summarize the evidence at trial.

         1. Decoy

         In February 2017, Nicholas Frederick, a Nebraska State Patrol investigator, conducted an online undercover investigation for child enticement. Frederick's online undercover persona was a 14-year-old girl (the decoy). He found an online advertisement stating that a 20-year-old male was seeking to perform oral sex on a non-age-specific female. Thomas later admitted to posting the advertisement, sending messages to the decoy, and arranging to meet her. We disregard spelling and grammatical errors in the communications we summarize next.

         The decoy, via email, responded to the advertisement, "Hey just saw ur ad, you up for hanging with someone younger?" Thomas replied, "Possibly." The decoy replied "[O]K," and Thomas asked, "How old are you? Can I see a pic?" The decoy answered, "Im 14 almost 15 so don't want 2 send pic 2 someone I know." At trial, Frederick clarified that he meant to say "don't know." Thomas asked if the decoy had a particular photograph-sharing application. The decoy replied that she did not but stated that Thomas could send a text message. The decoy furnished an undercover cell phone number and informed Thomas of her "name."

         Thomas and the decoy continued their conversation via text messages. Thomas continued to ask for pictures, which the decoy declined to send. Thomas asked, "So what do you want from this?" The decoy answered, "Not real sure. Not lots of experience talking to people from [online advertisements]." After each provided a brief self-description, Thomas asked, "If we did meet up what would you like to happen? Me just eating [303 Neb. 968] you out or more?" The decoy replied, "That could start things and see what we want to do after that unless u think something else?" Thomas then asked if he should pick her up and if they could go park somewhere private. The decoy responded that she would need to be picked up. Thomas asked when she would want to do it, and the decoy answered, "So u really want 2? Probably soon cuz need to be home before mom gets home." They then discussed an area for the meeting location, and the decoy stated that she was nervous and wanted to know what he expected. He replied, "The only thing I want to happen for now is maybe some kissing and eating you out that's all." After further discussion of a meeting location, the decoy sent a "pin drop," indicating a particular location for the meeting. Thomas said he drove a "gold Camry" and was on his way. The decoy directed Thomas to a gas station within the pin drop area as the place to meet.

         While Frederick was setting up the location with Thomas, Frederick briefed other investigators regarding the situation. Frederick showed them a picture of Thomas, told them that Thomas would be driving a gold Camry, and requested that they go to the gas station for surveillance and take Thomas into custody if he showed up.

         Five investigators in plain clothes and unmarked police cars went to the gas station. Very soon after the officers were in position, Thomas pulled into a parking spot and the investigators arrested him. Before returning to the investigative services center, one investigator seized Thomas' cell phone from his car. Later, Thomas consented to a search of his cell phone, waived his Miranda rights, and made a statement to the police.

         In an amended information, the State charged Thomas with two counts. The first count-the only one relevant on appeal- was for "Enticement by Electronic Communication Device," in violation of § 28-833. The second count charged the offense of "Child Enticement with Electronic Communication Device," in violation of Neb. Rev. Stat. § 28-320.02 (Reissue 2016). Thomas pled not guilty to both counts.

         [303 Neb. 969] 2. Wolfgirl Chat Evidence

         The State filed a notice of intent to produce evidence of other crimes, wrongs, or acts pursuant to rule 404. The State's rule 404 motion asserted that the evidence was intended to show motive, opportunity, intent, identity, plan or scheme, absence of mistake or accident, or "some other narrower purpose."

         The district court held a hearing on the rule 404 motion where the State presented evidence of sexually explicit conversations with underage women retrieved from Thomas' cell phone. Although only the chat with Wolfgirl is relevant on appeal, the State made a single argument addressing all of the purported rule 404 evidence.

         The State argued that Thomas' explicit photographs and requests for pictures of the underage women's genitals would be relevant evidence against an entrapment defense and would show motive, plan or scheme, or absence of mistake or accident. The State then specified its reasoning. As to motive, the conversations would show sexual gratification, and as to plan or scheme, the conversations would show how he connected and engaged in sexually explicit contact with underage women. As to absence of mistake or accident, the conversations would show that Thomas was predisposed to engage in sexually explicit conversations with people who are under the age of 15 years.

         Thomas argued that the "prejudicial impact of [the Wolfgirl] evidence outweighs whatever probative value it has." He also asserted that the State did not prove by clear and convincing evidence the true age of the underage women and that the evidence was not sufficiently similar to the charged conduct. These other assertions, however, are not argued on appeal.

         The district court found that the conversation between Thomas and Wolfgirl was relevant to the charges. The Wolfgirl conversation would be admissible, the court concluded, to show motive or absence of mistake or accident. However, the court ruled that without clear and convincing evidence that Wolfgirl was under the age of 16, the evidence would not be admitted.

         [303 Neb. 970] After working with police officers in Pittsburg, California. Nebraska law enforcement confirmed that 14-year-old R.H., with whom Thomas had had sexually explicit conversations, was the owner and creator of Wolfgirl. In separate motions, the State requested the court to reconsider the rule 404 motion and to endorse R.H. as an additional witness.

         The State argued that Wolfgirl's testimony would establish ownership of the Wolfgirl account and that the conversation would be relevant evidence. Thomas renewed his relevancy and unfair prejudice arguments to both motions. The court sustained the motion to endorse and overruled the motion to reconsider.

         Before opening statements commenced at the jury trial, the State moved to reopen evidence on the rule 404 motion. The State presented as an exhibit a trial stipulation intended to eliminate the necessity of calling R.H. to testify regarding foundation for the Wolfgirl conversation. Again, Thomas asserted that the Wolfgirl conversation was not relevant to either count and that "to the extent it is relevant, it's unduly prejudicial." The court received the trial stipulation into evidence and found the State had proved by clear and convincing evidence that Wolfgirl was a child under 16 years of age and that the evidence was admissible.

         The State offered as another exhibit a transcript of the Wolfgirl conversation, with images. The court asked if counsel would raise the same rule 404 objections to that exhibit, and Thomas' counsel answered, "Yes." Further, in front of the jury, the court overruled the objection to the transcript and admitted it for specified limited purposes. Prior to that admission, the court gave a limiting instruction, "This evidence is admitted for the limited purpose of helping you consider matters of motive, or absence of mistake or accident as they relate to the elements of the charges contained in Count 1 in this case."

         3. Relevant Evidence at Trial

         In addition to the transcript of the Wolfgirl chat, the State's trial evidence included the testimony of five witnesses, [303 Neb. 971] Thomas' recorded statement to the police, his jail cell calls to his brother, his online advertisement, and the conversations between Thomas and the decoy. We have already summarized his conversations with the decoy.

         Thomas testified in his defense, emphasizing his disbelief of the decoy's age and existence. He testified that when the decoy told him her age, he did not believe her. He related that he had been in online situations before where women who were older pretended to be younger and where he had acted older. Alternatively, he testified that online, one never knows if the responder is a real person or a "bot" trying "a scam." He explained that he asked for pictures to ascertain whether the person responding was real. He stated that if he had known the decoy was under age 16, he would not have engaged in any sex act with her.

         The jury found Thomas guilty on both counts. The court imposed sentences, and Thomas perfected an appeal. We moved the appeal to our docket.[3]

         III. ASSIGNMENTS OF ERROR

         Thomas assigns that the district court erred in admitting the evidence of the Wolfgirl conversation under rule 404(2) and that the evidence presented at trial was insufficient to support a conviction on count 1.

         IV. STANDARD OF REVIEW

         It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under rule 404(2), and the trial court's decision will not be reversed absent an abuse of discretion.[4]

         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, [303 Neb. 972] pass on the credibility of the witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.[5]

         V. ANALYSIS

         1. Rule 404 Evidence

         Thomas argues that the admission of the Wolfgirl conversation did not inform any element of count 1 and was not within the relevant limited uses under rule 404(2). Further, he contends that the irrelevant sexually explicit language and images in the conversation prejudiced the jury.

         Rule 404(2) prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner. But evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under rule 404(2).[6] Thus, it may be admissible for such purposes as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.[7]

         We must consider whether the evidence of prior bad acts was admissible for a proper purpose other than propensity to commit the crimes charged. An appellate court's analysis under rule 404(2) considers whether the (1) 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) probative value is substantially outweighed by its potential for unfair prejudice, and (3) trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was [303 Neb. 973] admitted.[8] Evidence that is offered for a proper purpose is often referred to as having "special" or "independent" relevance, which means that its relevance does not depend upon its tendency to show propensity.[9] The admissibility of other crimes evidence under rule 404(2) must be determined upon the facts of each case and is within the discretion of the trial court.[10]

         (a) Motive

         We must consider whether the evidence of prior bad acts was relevant to show motive other than Thomas' propensity to commit the crimes charged. Motive is defined as that which leads or tempts the mind to indulge in a criminal act.[11]Motive, even when not an element of the charged crime, is nevertheless relevant to the State's proof of the intent element of the crime.[12] Motive qualifies as a legitimate noncharacter theory because although character carries a connotation of an enduring general propensity, a motive is a situationally specific emotion.[13] Several Nebraska cases inform our analysis of rule 404(2) evidence admitted to show motive.

         In State v. Sanchez, [14] the trial court admitted rule 404(2) evidence of when the defendant had sexually assaulted his children aged 13 and 5 and of when at 22 years old he sexually assaulted a 14-year-old girl and impregnated her. The State argued that the other crimes evidence proved motive to obtain sexual gratification from underage women, because many adults find it hard to believe that an adult is sexually attracted to a child. We reasoned that the argument only illustrated that [303 Neb. 974] under the guise of motive, the State was attempting to prove propensity. We held that although the State's conclusion was logically relevant, it did not articulate a legitimate fact of consequence to the determination of guilt. Therefore, the crimes did not have independent relevance and were inadmissible as to motive.

         Importantly, intent was not an element of the crime charged in Sanchez. Because intent was not an element of the crime charged, we stated intent was not a fact that was of consequence. Then, in discussing motive, we noted our holding in an earlier case that even if proof of motive is not an element of a crime, any motive for a crime is relevant to the State's proof of the intent element. Because here, intent is an element under § 28-833(1), Sanchez leaves open the possibility that motive could have independent relevance because it would be relevant to proof of intent.

         In State v. Trotter, [15] the court admitted evidence of the defendant's prior abuse of his ex-wives to show a similar motive that the defendant used his superior size and strength to control the behavior of another. We reasoned that the State improperly attempted to show that because the defendant may have been motivated to control his ex-wives through his superior strength, he was likely to use that strength to control someone else. In determining that the evidence was inadmissible to show motive, we reasoned that the focus on the defendant's actions rather than his motive was impermissible propensity evidence. In Trotter, we contrasted the situation with that in State v. Phelps.[16] In Phelps, a defendant was charged with kidnapping a 9-year-old girl who was never found. We determined that evidence of six prior acts of sexual contact by the defendant with young girls showed motive-a sexual motive- which tended to show that the defendant's motive for kidnapping was to achieve sexual gratification.

         [303 Neb. 975] In State v. Payne-McCoy, [17] we stated that intent was not at issue in the case. We reasoned that prior drug sales to the victim did not explain the defendant's motive to sell drugs on the day of the crime, except to show that the defendant sold drugs to the victim before and would do it again. We noted that this type of logic is exactly what is prohibited by rule 404(2). We determined that the rule 404 evidence of prior drug deals was inadmissible to prove motive.

         In Torres, [18] the district court admitted evidence of a prior kidnapping that showed the defendant's motive was to restrain, rob, and kill the victim to obtain money and transportation to Texas. We stated that intent was not at issue. Turning to motive, we observed that a person's prior actions can help to show motive because of the light they shed on that person's state of mind. We explained that there is a fine line between prior bad acts evidence that goes to propensity and evidence of the actor's motive to commit a later crime. We explained that evidence is not barred just because its relevance could be characterized as propensity: "[S]o long as the evidence is also relevant for reasons not based on the defendant's character, it is admissible under rule 404(2)."[19] We clarified that "'propensity' is meant to refer simply to criminal propensity, i.e., character, "[20] and not to "a specific propensity to do a particular thing."[21] With regard to motive evidence, we reasoned:

It can easily be framed as relevant because it shows a defendant's "propensity" to commit crimes for a particular reason, i.e., motive. Someone who has a motive to commit a crime could also be described as having a "propensity" to commit the crime. But where the defendant's [303 Neb. 976] motive is particular-in other words, is not based in the defendant's character-evidence of prior acts is nonetheless admissible to show the defendant's motive to commit the charged crime because an inference of a criminal propensity is not required to establish independent relevance.[22]

         There, we agreed with the district court that the prior kidnapping was independently relevant to show the defendant's motive, to obtain money and transportation to Texas.

         We are also persuaded by cases from the Seventh Circuit. In U.S. v. Zahursky, [23] the defendant challenged admission of prior chats with others, claiming that they "gave unnecessary, shocking, repulsive and sexually explicit details." The Seventh Circuit quoted an earlier case stating that '"[p]rior instances of sexual misconduct with a child victim may establish a defendant's sexual interest in children and thereby serve as evidence of the defendant's motive to commit a charged offense involving the sexual exploitation of children.'"[24] It reasoned that in earlier chats with different individuals, the defendant admitted to having sex with a 14-year-old or having a sexual interest in 14-year-old girls. The court stated that the defendant's "admission to having had sex with a fourteen-year-old and the sexually explicit nature of the [earlier] chats make them probative as to his intent and motive in chatting with [the victim in the instant case] and then meeting her . . ., "[25]

         In U.S. v. Chambers, [26] the defendant objected to admission of his chat with a special agent posing as a minor, arguing that it merely demonstrated his propensity to entice minors. But the Seventh Circuit determined that the chat was admissible to show motive and intent.

         [303 Neb. 977] Here, the court admitted the Wolfgirl conversation for the purpose of showing motive to commit the charged offense. As noted above, motive is relevant to the State's proof of the intent element of the crime.[27] And intent was at issue-whether Thomas "knowingly and intentionally utilize[d] an electronic communication device to contact ... a peace officer who is believed by [Thomas] to be a child under sixteen years of age."[28] Evidence that Thomas carried on a sexually explicit chat with a 13-year-old girl is probative as to his motive in texting with the decoy, purportedly a 14-year-old girl, and arranging to meet her. We conclude the district court did not abuse its discretion in admitting the Wolfgirl conversation to show motive.

         (b) Absence of Mistake or Accident

         Next, we must consider whether the district court properly admitted the evidence of the prior bad acts to show absence of mistake or accident. In Trotter, [29] we discussed when prior bad acts are relevant to show absence of mistake or accident in child abuse cases. Where a defendant does not raise accident or mistake as to how the victim was injured, the evidence is inadmissible for that purpose. We reasoned that the evidence of spousal abuse did not negate the claim of accident in the child abuse case, because the State proffered the evidence to show the propensity of someone who abused people in general. The evidence was inadmissible as to absence of mistake or accident.

         Here, the court also admitted the evidence of the Wolfgirl conversation to show absence of mistake or accident. Under § 28-833, a defendant can be found guilty of the crime when he or she communicates with a peace officer whom he or she believed to be a child under the age of 16. Here, the State was [303 Neb. 978] required to prove that Thomas believed the decoy was a child under 16 years of age. It could do so by presenting direct evidence of Thomas' belief or, inversely, by presenting evidence that there was an absence of mistake as to his belief of the age of the decoy. Therefore, the belief or absence of mistake of belief as to the decoy's age was a relevant issue in the case.[30]

         One of the dissents makes a distinction between the two types of recipients under § 28-833, but we disagree that the distinction is of consequence. The evil that the statute is aimed at is stopping individuals 19 years of age or over from knowingly and intentionally using an electronic communication device to transmit inappropriate material to a child under 16 years of age. Whether the inappropriate material is directed to an actual child or to a person that the transmitter believes to be a child is of little importance. To be guilty, the transmitter must know that the child is under age 16 (for an actual child) or believe the recipient is a child under age 16 (for a decoy). Undoubtedly, a common defense in such prosecutions is that the transmitter did not know (for an actual child) or believe (for a decoy) that the recipient was a child under age 16. In such a situation, the State would want to show that the transmitter was not mistaken (absence of mistake) about the recipient's age, i.e., that the transmitter intended (absence of accident) to transmit inappropriate material to a child under age 16.

         Because the belief of the age of the decoy was relevant, we must determine if the Wolfgirl conversation had independent relevance. In order to show that Thomas did not have a mistaken belief as to the age of the decoy, the State presented evidence of other instances of Thomas' belief or absence of mistake. The Wolfgirl chat evidence contained direct statements by the victim that she was 13 years old and showed Thomas' nonchalance to her age. The conversation between Thomas and the decoy was similar, because the decoy expressly stated she was 14 years old and Thomas continued with the conversation [303 Neb. 979] unaffected. In both instances, Thomas never questioned the recipient's statement of age or, in any way, was led to believe that she was of a different age.

         The Wolfgirl evidence negated the defense that Thomas did not believe the decoy was her claimed age. Such evidence tends to show that Thomas did not mistakenly believe he was chatting with an adult; instead, he targeted minors. Even though the Wolfgirl chat was between Thomas and a child under 16 years of age rather than a peace officer pretending to be a child under 16 years of age, the evidence offered the same probative nature as to Thomas' belief of the recipient's explicitly stated age. The evidence shows not Thomas' general propensity to talk to underage women, but, rather, that there was no mistake regarding Thomas' knowledge of the recipient's age. Similarly, in Zahursky,[31] the Seventh Circuit stated that "[t]he revelations of the girls' ages in the chats make the chat evidence probative as to [the defendant's] knowledge and absence of mistake" as ...


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