State v. Thomas, 083019 NESC, S-18-220

Docket Nº:S-18-220
Opinion Judge:Cassel, J.
Party Name:State of Nebraska, appellee, v. Nathan M. Thomas, appellant.
Attorney: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.
Judge Panel:Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Heavican, C.J., dissenting. Miller-Lerman, J., dissenting.
Case Date:August 30, 2019
Court:Supreme Court of Nebraska
 
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303 Neb. 964

State of Nebraska, appellee,

v.

Nathan M. Thomas, appellant.

No. S-18-220

Supreme Court of Nebraska

August 30, 2019

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...

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