State v. Yager

• Decision Date: 02 November 1990
• Docket Number: No. 89-790,89-790
• Citation: 236 Neb. 481,461 N.W.2d 741
• Parties: STATE of Nebraska, Appellee, v. Michael R. YAGER, Appellant.
• Court: Nebraska Supreme Court

Page 741

461 N.W.2d 741

236 Neb. 481

STATE of Nebraska, Appellee, v. Michael R. YAGER, Appellant.

No. 89-790.

Supreme Court of Nebraska.

Nov. 2, 1990.

Syllabus by the Court

1. Rules of Evidence: Other Acts. 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, knowledge, identity, or absence of mistake or accident. Neb.Rev.Stat. § 27-404(2) (Reissue 1989).

2. Rules of Evidence: Other Acts. The purposes set forth in Neb.Rev.Stat. § 27-404(2) (Reissue 1989) are illustrative only and are not intended to be exhaustive or mutually exclusive.

3. Rules of Evidence: Other Acts. Neb.Rev.Stat. § 27-404(2) (Reissue 1989) is an inclusionary rule which permits the use of evidence of other crimes, wrongs, or acts if such is relevant for any purpose other than to show the defendant's propensity or disposition to commit the crime charged.

4. Rules of Evidence: Appeal and Error. In reviewing the actions of a trial court in admitting evidence of other crimes under Neb.Rev.Stat. § 27-402(2) (Reissue 1989) to determine if there was unfair prejudice in the admission of the evidence, an appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted.

5. 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.

6. Rules of Evidence: Other Acts: Time. Remoteness, or the temporal span between a prior crime, wrong, or other act offered as evidence under Neb.Rev.Stat. § 27-404(2) (Reissue 1989) and a fact to be determined in a present proceeding, goes to the weight to be given to such evidence and does not render the evidence of the other crime, wrong, or act irrelevant and inadmissible.

7. Rules of Evidence: Other Acts: Time. The question of whether evidence of other conduct otherwise admissible under the provisions of Neb.Rev.Stat. § 27-404(2) (Reissue 1989) 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.

8. Rules of Evidence. Neb.Rev.Stat. § 27-404(2) (Reissue 1989) is subject to the overriding protection of Neb.Rev.Stat. § 27-403 (Reissue 1989).

9. Rules of Evidence. Although relevant, evidence may be excluded 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. Neb.Rev.Stat. § 27-403 (Reissue 1989).

10. Rules of Evidence: Words and Phrases. Most, if not all, items which one party to an action offers in evidence are calculated to be prejudicial to the opposing party; therefore, it is only unfair prejudice with which Neb.Rev.Stat. § 27-403 (Reissue 1989) is concerned. In the context of § 27-403, such prejudice means a tendency to suggest a decision on an improper basis.

Larry F. Fugit, Papillion, for appellant.

Robert M. Spire, Atty. Gen., Lincoln, and Alfonza Whitaker, Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

Claiming that the Sarpy County District Court erred in admitting evidence of his sexual contact with two young males other than the victim, Michael R. Yager appeals his jury conviction for sexual assault of a male child. We affirm.

The defendant was born on April 30, 1957. He babysat a number of small children at his mother's residence in LaVista, where he resided. Yager began babysitting 8-year-old C.M. in August 1988. On December 15, 1988, C.M. told his mother and stepfather that the defendant touched him on his penis and that it hurt.

At trial, the child testified that Yager touched his penis on five or six occasions. C.M. testified that on the last occasion, his jeans were off and Yager reached in C.M.'s underpants and pulled on his penis to the extent that it hurt him. On the other occasions, C.M. said, the defendant rubbed C.M.'s penis. The boy further testified that on one occasion, Yager unbuttoned his own pants and made the boy rub Yager's penis. The victim told a police officer that the incidents occurred from Thanksgiving Day of 1988 to and including December 15, 1988.

A police officer testified that when she interviewed the defendant on December 16, he told her that when the victim experienced a stomach ache, the defendant rubbed the boy's stomach to soothe him. The defendant said his hand may have slipped while rubbing the boy's stomach and accidentally touched the boy's penis. At trial, Yager denied ever touching C.M.'s penis.

Yager was charged by amended information in the district court for Sarpy County with three counts of sexual assault of a child. Upon the defendant's motion, the trial court dismissed two of the counts.

Sexual assault of a child is prohibited by Neb.Rev.Stat. § 28-320.01 (Reissue 1989), which provides: "(1) A person commits sexual assault of a child if he or she subjects another person fourteen years of age or younger to sexual contact and the actor is at least nineteen years of age or older. (2) Sexual assault of a child is a Class IV felony." Neb.Rev.Stat. § 28-318 (Reissue 1989) defines "sexual contact" as

the intentional touching of the victim's sexual or intimate parts or the intentional touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts. Sexual contact shall also mean the touching by the victim of the actor's sexual or intimate parts or the clothing covering the immediate area of the actor's sexual or intimate parts when such touching is intentionally caused by the actor. Sexual contact shall include only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party.

Yager was found guilty by a jury of one count of sexual assault of a child. The defendant was sentenced to a 4-month term of imprisonment, with credit for the time spent in jail awaiting disposition of his case.

Before trial, the district court overruled Yager's motion in limine to prevent evidence of his sexual relations with two other witnesses. At trial, over Yager's objection, one of the witnesses, A.L., testified that when he was 8 years old and while Yager was babysitting him, Yager took him downstairs, where he touched and fondled him. A.L. further testified that until he was 21 or 22 years old, he had a sexual relationship with the defendant and that during that time, he and the defendant had approximately 100 sexual contacts. The defendant's last sexual contact with A.L. was 6 to 7 years prior to the defendant's trial.

The other witness, A.G., who was 23 years old, testified over Yager's objection that when he was 12 years of age, Yager gave him a ride in his car and molested him. A.G. testified that on that occasion, the sexual contact was limited to touching and that he and Yager both had their pants off. The witness related that Yager and he continued their relationship for 2 to 2 1/2 years. During that period, Yager and A.G. had 20 to 30 sexual contacts or penetrations, according to A.G. At the time of trial, A.G. was being treated in the Lincoln Regional Center after being sentenced as a mentally disordered sex offender to a term of imprisonment for sexually assaulting minor males. The last sexual contact between Yager and A.G. would have been within 10 years of Yager's trial.

Yager's two assignments of error may be consolidated to allege that the trial court erred by allowing A.L.'s and A.G.'s testimony into evidence.

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, knowledge, identity, or absence of mistake or accident.

Neb.Rev.Stat. § 27-404(2) (Reissue 1989). The purposes set forth in § 27-404(2) are illustrative only and are not intended to be exhaustive or mutually exclusive. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989). Section 27-404(2) is an inclusionary rule which permits the use of evidence of other crimes, wrongs, or acts if such is relevant for any purpose other than to show the defendant's propensity or disposition to commit the crime charged. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).

In reviewing the actions of a trial court in admitting evidence of other crimes under § 27-404(2) to determine if there was unfair prejudice in the admission of the evidence, an appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. See, Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988); State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989); State v. Boppre, supra.

Yager first asserts that A.L.'s and A.G.'s testimony concerning sexual contacts with him which he claims occurred 15 to 20 years and 11 years prior to trial, respectively, was totally...