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STATE V. MOORE

Cite as 317 Neb. 493

State of Nebraska, appellee, v.

Gregory Moore, appellant.

___ N.W.3d ___

Filed August 30, 2024. No. S-23-630.

1. Rules of Evidence: Other Acts. Whether evidence is admissible for any 

proper purpose under the rule governing admissibility of evidence of 

other crimes, wrongs, or acts rests within the discretion of the trial court.

2. ____: ____. An appellate court will review for abuse of discretion a 

trial court’s evidentiary rulings on the admissibility of evidence of other 

crimes, wrongs, or acts under Neb. Evid. R. 404(2), Neb. Rev. Stat. 

§ 27-404(2) (Cum. Supp. 2022).

3. Trial: Rules of Evidence. A trial court exercises its discretion in determining whether evidence is relevant and whether its probative value is 

outweighed by its prejudicial effect.

4. Judges: Words and Phrases. A judicial abuse of discretion exists 

only when the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying a just 

result in matters submitted for disposition.

5. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat. 

§ 27-404(2) (Cum. Supp. 2022), is a rule of inclusion, rather than exclusion; it permits evidence of other crimes, wrongs, or acts to be admissible for all purposes except to prove the character of a person in order 

to show that such person acted in conformity with that character.

6. Rules of Evidence: Other Acts: Words and Phrases. Evidence that is 

offered for a proper purpose under Neb. Evid. R. 404(2), Neb. Rev. Stat. 

§ 27-404(2) (Cum. Supp. 2022), is often referred to as having “special” 

or “independent” relevance, which means its relevance does not depend 

upon its tendency to show propensity.

7. Criminal Law: Rules of Evidence: Other Acts: Proof. Under Neb. 

Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2022), proof 

of another distinct substantive act is admissible in a criminal prosecution when there is some legal connection between the two upon which 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/30/2024 09:11 AM CDT
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it can be said that one tends to establish the other or some essential fact 

in issue.

8. Evidence: Other Acts. Evidence of other crimes, wrongs, or acts may 

be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in 

determining the accused’s guilt of the offense in question.

9. 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) 

(Cum. Supp. 2022), generally considers (1) whether the 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) whether the 

probative value of the evidence is substantially outweighed by its potential for unfair prejudice; and (3) whether the trial court, if requested, 

instructed the jury to consider the evidence only for the limited purpose 

for which it was admitted.

10. Rules of Evidence: Other Acts. The admissibility of prior bad act evidence under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. 

Supp. 2022), must be determined upon the facts of each case and is 

within the discretion of the trial court.

11. Criminal Law: Words and Phrases. “Motive” is generally defined as 

that which leads or tempts the mind to indulge in a criminal act.

12. Criminal Law: Intent: Proof. Even when motive is not an element of 

the charged crime, courts have recognized it is nevertheless relevant 

to the State’s proof of the intent element of the crime. Thus, motive 

qualifies as a legitimate noncharacter theory because although character 

carries a connotation of an enduring general propensity, motive is a situationally specific emotion.

13. Rules of Evidence: Other Acts: Proof. There is sometimes a fine 

line between prior bad act evidence that goes only to the character or 

propensity of an actor and prior bad act evidence that speaks to the 

actor’s motive to commit a later crime. But evidence is not barred by 

Neb. Evid. R. 404(2), Neb. Rev. Stat § 27-404(2) (Cum. Supp. 2022), 

just because its relevance could be characterized in terms of propensity. Where the defendant’s 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.

14. Intent: Words and Phrases. Intent is generally defined as the state of 

mind accompanying an act.

15. Criminal Law: Other Acts: Intent: Proof. Where the intent of the 

defendant is a matter in issue, it is generally allowable in criminal cases 

to introduce evidence of other acts of a kindred character to establish a 

defendant’s intent or motive in the particular case.
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16. Intent: Words and Phrases. “Intentionally” means willfully or purposely, and not accidentally or involuntarily.

17. Criminal Law: Words and Phrases. The meaning of “knowledge” in 

a criminal action can vary with the context in which it is used, but it 

commonly imports a perception of facts requisite to make up a crime. 

Knowledge, like intent, may be inferred from the circumstances surrounding the act.

18. Rules of Evidence. For purposes of Neb. Evid. R. 404(2), Neb. Rev. 

Stat. § 27-404(2) (Cum. Supp. 2022), analysis, absence of mistake or 

accident is normally not at issue unless the defendant claims that his or 

her conduct in committing the charged crime was an accident or mistake, or the defendant’s act could be criminal or innocent depending on 

the defendant’s state of mind.

19. ____. Evidence that is admissible under Neb. Evid. R. 404(2), Neb. Rev. 

Stat. § 27-404(2) (Cum. Supp. 2022), may nevertheless be excluded 

under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016), if 

its probative value is substantially outweighed by the danger of unfair 

prejudice.

20. Evidence: Words and Phrases. 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.

21. Evidence: Other Acts. Generally, prior bad act evidence has probative value when it is related in time, place, and/or circumstances to the 

offense or offenses charged.

22. Words and Phrases. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.

23. Rules of Evidence. The fact that evidence is prejudicial is not enough 

to require exclusion under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 

(Reissue 2016), because most, if not all, of the evidence a party offers is 

calculated to be prejudicial to the opposing party; it is only the evidence 

which has a tendency to suggest a decision on an improper basis that is 

considered unfairly prejudicial under rule 403.

24. Evidence: Words and Phrases. Unfair prejudice speaks to the capacity 

of some concededly relevant evidence to lure the fact finder into declaring guilt on a ground different from the proof specific to the offense 

charged, commonly on an emotional basis.

Appeal from the District Court for Scotts Bluff County, 

Andrea D. Miller, Judge. Affirmed.

Timothy S. Noerrlinger and Kelly S. Breen, of Nebraska 

Commission on Public Advocacy, for appellant.
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STATE V. MOORE

Cite as 317 Neb. 493

Michael T. Hilgers, Attorney General, and Teryn Blessin for 

appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

After a jury found Gregory Moore guilty of second degree 

murder and use of a weapon to commit a felony, he was sentenced to consecutive terms of imprisonment. In this direct 

appeal, Moore argues the district court erred by admitting 

evidence of a prior assault under Neb. Evid. R. 404(2), Neb. 

Rev. Stat. § 27-404(2) (Cum. Supp. 2022). We find no abuse 

of discretion in the admission of this evidence and therefore 

affirm the judgment of the district court.

I. FACTS

1. Background

In November 2020, Moore lived on the second floor of an 

apartment building in Scottsbluff, Nebraska. The apartment 

building was operated by a rehabilitation program, and access 

to the second floor required a special access key. Visitors could 

ring a doorbell to let second-floor residents know they were 

there, and the resident would then go to the access door to 

admit them.

On November 25, 2020, a tenant who lived in a first-floor 

apartment of the building was awakened at 4 a.m. by noise 

coming from Moore’s second-floor apartment. The tenant 

heard “scuffling and rumbling around” in Moore’s apartment 

and then heard a man’s voice “crying or just yelling ‘Stop, 

stop, don’t do that.’” He testified the voice was “pretty loud” 

and that it was not Moore speaking. The tenant did not contact 

law enforcement at the time, but he reported the disturbance 

to the apartment building manager later that morning. The 

tenant also reported that Moore had been yelling out his apartment window.
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Cite as 317 Neb. 493

The manager went to the apartment building, stood below 

Moore’s window, and spoke with Moore for several minutes. 

Moore told the manager he was out of his medication and said 

he “[didn’t] want anybody in [his] apartment” and “he didn’t 

like people pointing guns at him.” He also said that “he had the 

inventory there.” When the manager asked Moore whether he 

was alone in the apartment, Moore did not answer and walked 

away from the window. The manager then called Moore’s 

caseworker to report that Moore was out of his medication and 

called the police to request a welfare check.

Shortly thereafter, a Scottsbluff police officer arrived at 

Moore’s apartment. The officer’s interaction with Moore was 

recorded on the officer’s body camera, and that video was 

introduced into evidence at trial. Moore had blood on his 

body and his clothing, injuries to his abdomen and back, and a 

deep laceration on the webbing of his right hand between his 

thumb and forefinger. The inside of Moore’s apartment was 

in disarray, with the furniture overturned. There was a significant amount of blood on the walls and the area near the front 

door, as well as several large pools of blood on the floor. The 

body of 23-year-old Fernando Camacho-McBride was lying 

face down on the living room floor, near a bloody, orange 

kitchen knife.

When the officer said to Moore, “You’ve got some blood on 

you,” Moore responded, “Yeah, illegal entry here . . . somebody illegal entry.” Moore also mentioned something about 

“lookin’ my inventory over,” and he told the officer, while 

gesturing toward his apartment, “this inventory is all paid for. 

All the inventory is paid for.” Moore also told the officer, “I 

don’t like illegal entry” and “I need my medicine.” The officer 

testified that when he called his sergeant to report, “I have a 

murder,” Moore was standing nearby and said, “Yeah,” and 

gave a “two thumbs up” gesture.

Camacho-McBride was related to a previous tenant of the 

apartment building who had recently moved out but still had 

an access key. Camacho-McBride had visited that relative 
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on several prior occasions without authorization, and the 

manager had banned Camacho-McBride from the apartment 

building. There was no sign of forced entry into Moore’s 

apartment and no direct evidence of how Camacho-McBride 

came to be inside Moore’s apartment. Two witnesses testified 

that Moore would sometimes let them stay in his apartment 

when they needed a safe place to sleep, and one of those witnesses testified that she left some things in Moore’s apartment 

after such a stay, including an orange kitchen knife.

An autopsy revealed that Camacho-McBride bled to death 

from a stab wound through his left upper arm that was approximately 5 inches deep and had severed an artery. CamachoMcBride also had injuries to his fingers and hand that were 

consistent with defensive wounds and had bruising to his 

face that was consistent with blunt force trauma. During the 

autopsy, the medical examiner recovered the broken tip of 

a knife blade from a stab wound on the victim’s skull. The 

recovered knife tip appeared to match the orange kitchen knife 

found in Moore’s apartment.

A toxicology report conducted on Camacho-McBride 

showed he had amphetamine, THC, and 700 nanograms of 

methamphetamine in his system at the time of his death. A witness testified that persons with over 200 nanograms of methamphetamine in their system “ha[ve] been reported” to exhibit 

violent and irrational behavior. No guns or drugs were found in 

Moore’s apartment.

2. Procedural History

In December 2020, the State charged Moore with second 

degree murder and use of a deadly weapon other than a firearm 

to commit a felony in violation of Neb. Rev. Stat. §§ 28-304 

and 28-1205(1)(b) (Reissue 2016). Moore entered pleas of 

not guilty.

(a) Rule 404 Motions

Pretrial, Moore filed a motion in limine seeking to exclude 

evidence of a March 2020 assault on his former landlord, 
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which also involved a knife. Moore argued the only purpose 

of such evidence was to show his propensity for violence, 

and he argued the admission of such evidence would violate 

Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016), 

and rule 404(1). The State filed a pretrial motion seeking to 

introduce evidence of the same prior assault pursuant to rule 

404(2). The record suggests that Moore intended to claim 

there was a sudden quarrel and he was acting in self-defense, 

and the State argued that evidence of the March 2020 assault 

was independently relevant to show Moore’s intent, motive, 

knowledge, and absence of mistake or accident regarding the 

charged offenses.

At the evidentiary hearing on these competing rule 404 

motions, the State offered evidence relating to the events of 

November 25, 2020, as described above. Additionally, the State 

offered the following testimony about the March 2020 assault.

(b) March 2020 Assault

The victim of the March 2020 assault was Moore’s former 

landlord, who testified that he and Moore had been friends for 

about 30 years. At the time of the assault, Moore was renting a house from the landlord and had asked the landlord to 

come over to fix a problem with a drain. When the landlord 

arrived, Moore was standing outside, pacing. The landlord 

asked, “‘What’s wrong with your drain?’” but Moore kept 

pacing and “going on about the neighbor.” When the landlord suggested they go inside the house to look at the drain, 

Moore “jumped” him without provocation and began beating 

him. During the assault, Moore pulled out a knife, which the 

landlord kicked away. The landlord eventually got away and 

contacted law enforcement.

One of the officers who responded to the March 2020 

assault testified that when he arrived on scene and asked 

Moore what had happened, Moore kept repeating, “‘You need 

to arrest [the landlord]. I was just protecting my inventory.’” 

The officer asked Moore what he meant by “inventory,” but 
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Cite as 317 Neb. 493

Moore said the officer “didn’t need to know that.” When 

Moore was taken into custody, he advised police that he was 

carrying a knife and “would use it to defend himself and 

his property.”

(c) Rule 404 Ruling

In a written order, the trial court sustained the State’s motion 

to introduce evidence of the March 2020 assault for a limited 

purpose and overruled Moore’s motion in limine. The court 

noted that the charged offenses and the prior assault occurred 

within months of each other, that both involved knife attacks, 

and that Moore made similar comments to police after both 

incidents in which he blamed the victims and said he was just 

protecting his “inventory.” Based on these similarities, the 

court concluded that evidence of the March 2020 assault was 

independently relevant and admissible for the limited purposes 

of proving Moore’s motive, intent, knowledge, and absence of 

mistake or accident regarding the charged offenses. The court’s 

order also expressly found that the probative value of the evidence did not outweigh the danger of unfair prejudice. The 

order stated that an appropriate limiting instruction would be 

given at trial, and it emphasized that the ruling was preliminary 

in nature and the parties could raise the matter again at trial if 

they deemed it appropriate.

3. Jury Trial

The matter proceeded to a jury trial. Sixteen witnesses testified over the course of 4 days, and multiple exhibits were 

received. Moore did not testify.

When the State presented evidence about the prior assault 

in March 2020, Moore renewed his rule 403 and rule 404 

objections. The court overruled those objections but gave a 

limiting instruction, advising the jury that the evidence was 

being admitted “for a limited purpose to help you decide 

whether [Moore] had the intent, motive, knowledge, and 

absence of mistake or accident for the crime charged on 

November 25, 2020. You should consider that evidence for 
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these limited purposes only.” No party objected to the limiting 

instruction, and no alternative instruction was requested.

In addition to the evidence already described, CamachoMcBride’s girlfriend testified that if he was drinking, she 

did not allow him to come to her home because she did not 

want him around her children while intoxicated. Similarly, 

Camacho-McBride’s father testified that he did not allow 

Camacho-McBride to stay at his house while intoxicated. The 

father testified that Camacho-McBride had recently been abusing alcohol and methamphetamine, and the father assumed 

Camacho-McBride would look for a place to stay for the night 

if he was intoxicated. The father also testified that CamachoMcBride was a “big boy” who had been in several fights and 

knew how to defend himself, if provoked. Other trial evidence 

established that Camacho-McBride was 5 foot 11 inches tall 

and weighed 238 pounds, while Moore was approximately 6 

foot 2 inches tall and weighed 300 pounds.

(a) Jury Instructions

Regarding the charge of second degree murder, the jury was 

instructed that the State had the burden to prove each of the 

following elements beyond a reasonable doubt:

1. That [Moore] killed [Camacho-McBride]; and

2. That [Moore] did so intentionally, but without premeditation; and

3. That [Moore] did so without the provocation of a 

sudden quarrel; and

4. That [Moore] was not acting in self-defense; and

5. That [Moore] did so on or about November 25, 

2020, in Scotts Bluff County, Nebraska.

The jury was also instructed on the lesser-included offense of 

manslaughter. The instructions defined “intentionally” to mean 

“willfully or purposefully, and not accidentally or involuntarily.” “Sudden quarrel” was defined as follows:

Sudden quarrel is a legally recognized and sufficient 

provocation which causes a reasonable person to lose 

normal self control. It does not necessarily mean an 
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exchange of angry words or an altercation contemporaneous with an unlawful killing and does not require 

a physical struggle or other combative corporal contact between the defendant and the victim. It is not the 

provocation alone that reduces the degree of the crime, 

but, rather, the sudden happening or occurrence of the 

provocation so as to render the mind incapable of reflection and obscure the reason so that the elements of first 

degree or second degree murder are absent. The question is whether there existed reasonable and adequate 

provocation to excite one’s passion and obscure and 

disturb one’s power of reasoning to the extent that one 

acted rashly and from passion, without due deliberation 

and reflection, rather than from judgment. The test is an 

objective one. Qualities peculiar to the defendant which 

render him or her particularly excitable, such as intoxication, are not considered.

And the jury was instructed that Moore acted in self-defense if:

(1) [Camacho-McBride] threatened death or serious 

bodily harm to [Moore];

(2) [Moore] did not provoke any such use of force 

against him with the intent of using deadly force in 

response; and

(3) Under the circumstances as they existed at the time, 

[Moore] reasonably believed that his use of deadly force 

was immediately necessary to protect himself against 

death and/or serious bodily harm.

The fact that [Moore] may have been wrong in estimating the danger does not matter so long as there was 

a reasonable basis for what he believed and he acted reasonably in response to that belief.

There were no objections to any of the above instructions, and 

no alternative instructions were offered by either party.

(b) Closing Arguments

In closing, the prosecutor argued that Moore intentionally killed Camacho-McBride and suggested there was no 
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competent evidence that Moore was provoked, no competent 

evidence that the killing occurred as the result of a sudden 

quarrel, and no competent evidence that Moore was acting in 

self-defense. The State’s theory was that Moore let CamachoMcBride into his apartment and, at some point, perceived 

that Camacho-McBride was “looking at [his] inventory” or 

“messing with his inventory” and decided to stab and kill 

Camacho-McBride to “protect [that] inventory.” The prosecutor suggested the same motivation—to protect his “inventory”—had prompted Moore to assault his landlord without 

provocation a few months earlier. The prosecutor argued that 

whatever Moore meant by “inventory,” his motivation to protect it through the use of deadly force was not objectively reasonable and could not support a finding of sudden quarrel or 

self-defense. The prosecutor thus argued it was “pretty clear” 

that Moore was the aggressor and that Camacho-McBride was 

trying to protect himself, pointing to evidence that CamachoMcBride had multiple defensive wounds and that during the 

commotion, Camacho-McBride was heard screaming “‘[s]top, 

stop.’” And the prosecutor suggested the stab wound to 

Camacho-McBride’s skull likely explained the cut to Moore’s 

right hand when the “knife came to a rapid stop and his hand 

just went down on the blade.” The prosecutor argued there 

was no evidence that Camacho-McBride entered Moore’s 

apartment illegally, no evidence that Camacho-McBride was 

armed, and no evidence to justify Moore’s use of deadly 

force. He asked the jury to return verdicts finding Moore 

guilty of second degree murder and use of a deadly weapon 

to commit a felony.

Defense counsel, in closing argument, generally agreed 

that Moore likely let Camacho-McBride into his apartment 

because he needed a place to stay for the night. Defense 

counsel suggested the two men eventually engaged in an 

extended fight that damaged much of Moore’s apartment, 

and it was defense counsel’s theory that Camacho-McBride 

was the aggressor. To support that theory, counsel pointed 
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to evidence that Camacho-McBride was “not a stranger to a 

fight” and to evidence that the level of methamphetamine in 

Camacho-McBride’s blood could have made him aggressive. 

Defense counsel suggested the kitchen knife was already in the 

room when a sudden quarrel broke out, and the fatal wound 

occurred during a prolonged struggle over that knife. Defense 

counsel argued the knife wounds to Camacho-McBride’s arm 

and skull did not indicate an intent to kill, reasoning “there 

were no wounds to the torso, the usual places where people 

bury knives in the attempt to kill people.” Defense counsel 

argued, based on the nature of the injuries and evidence of a 

physical fight that included a “struggle over the knife,” that 

the State had failed to prove the killing was intentional and 

not accidental. But defense counsel also argued:

I’m not here to argue that this is a manslaughter. I’m here 

to argue that [Moore] acted in self-defense, and, yes, it 

elevated to deadly force after it began in a situation in 

which he was entitled to protect his property; that there 

was no reason for a fight to occur in that living room, 

and that there is evidence that you can find that it was 

[Camacho-McBride] that provoked the fight and was the 

first aggressor because that is his history. He’s a scrapper. 

He’s a guy that’s not afraid of a fight. He’s the guy who 

likes to fight.

Defense counsel asked the jury to return a verdict of not guilty 

on each count.

After deliberating for approximately 2 hours, the jury found 

Moore guilty of second degree murder and of use of a weapon 

to commit a felony. At a later sentencing hearing, the court 

imposed a prison sentence of 80 years to life on the murder 

conviction and a consecutive prison sentence of 10 to 20 years 

on the use conviction. Moore filed this timely appeal, represented by his trial counsel.

II. ASSIGNMENT OF ERROR

Moore assigns that the district court erred in admitting evidence of the prior assault over his objection.
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III. STANDARD OF REVIEW

[1] Whether evidence is admissible for any proper purpose 

under the rule governing admissibility of evidence of other 

crimes, wrongs, or acts rests within the discretion of the 

trial court. 1

[2] An appellate court will review for abuse of discretion a 

trial court’s evidentiary rulings on the admissibility of evidence 

of other crimes, wrongs, or acts under rule 404(2). 2

[3] A trial court exercises its discretion in determining 

whether evidence is relevant and whether its probative value is 

outweighed by its prejudicial effect. 3

[4] A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying a just 

result in matters submitted for disposition. 4

IV. ANALYSIS

On appeal, Moore argues the district court erred in admitting evidence of the prior March 2020 assault over his objections. He contends this evidence served no proper purpose 

under rule 404(2) and was “classic” propensity evidence that 

allowed the jury to infer he is “the type of person who acts 

with violent intent when he is angry.” 5 He also argues that any 

probative value of this evidence was substantially outweighed 

by the danger of unfair prejudice.

To address these arguments, we first recall the legal principles that govern the admissibility of prior bad act evidence 

under rule 404(2). Rule 404(2) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show 

1 State v. Matteson, 313 Neb. 435, 985 N.W.2d 1 (2023).

2 See State v. Boswell, 316 Neb. 542, 5 N.W.3d 747 (2024).

3 State v. German, 316 Neb. 841, 7 N.W.3d 206 (2024).

4 Id.

5 Brief for appellant at 7 (internal quotation marks omitted).
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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.

[5,6] We have described rule 404(2) as a rule of inclusion, 

rather than exclusion, holding that it permits evidence of other 

crimes, wrongs, or acts to be admissible for all purposes except 

to prove the character of a person in order to show that such 

person acted in conformity with that character. 6 Evidence 

that is offered for a proper purpose under rule 404(2) is often 

referred to as having “special” or “independent” relevance, 

which means its relevance does not depend upon its tendency 

to show propensity. 7

[7,8] Under rule 404(2), proof of another distinct substantive act is admissible in a criminal prosecution when there is 

some legal connection between the two upon which it can be 

said that one tends to establish the other or some essential fact 

in issue. 8 In other words, evidence of other crimes, wrongs, or 

acts may be admitted where the evidence is so related in time, 

place, and circumstances to the offense charged as to have 

substantial probative value in determining the accused’s guilt 

of the offense in question. 9

[9,10] An appellate court’s analysis under rule 404(2) generally considers (1) whether the 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) 

whether the probative value of the evidence is substantially 

6 See, State v. Wheeler, 314 Neb. 282, 989 N.W.2d 728 (2023); State v. 

Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998); State v. White, 244 

Neb. 577, 508 N.W.2d 554 (1993), overruled on other grounds, State v. 

Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).

7 See, State v. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019); State v.

Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016); State v. Almasaudi, 282 

Neb. 162, 802 N.W.2d 110 (2011).

8 See Wheeler, supra note 6.

9 See White, supra note 6.
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outweighed by its potential for unfair prejudice; and (3) 

whether the trial court, if requested, instructed the jury to 

consider the evidence only for the limited purpose for which 

it was admitted. 10 The admissibility of prior bad act evidence 

under rule 404(2) must be determined upon the facts of each 

case and is within the discretion of the trial court. 11

With these principles and analytical framework in mind, 

we consider whether evidence of Moore’s prior assault on his 

landlord was relevant for a purpose other than to show that 

Moore had a propensity for violence.

1. Evidence Was Relevant for Purpose 

Other Than Propensity

Moore was charged with second degree murder and use of a 

weapon to commit a felony, both of which require intentional 

conduct. 12 In defending against these charges, Moore argued 

that he had no intent to kill, that the death occurred during a 

sudden quarrel, and that he was acting in self-defense. 13 In its 

rule 404(2) analysis, the trial court determined that evidence 

of the March 2020 assault was relevant and admissible for the 

limited purposes of proving Moore’s motive, intent, knowledge, and absence of mistake or accident in connection with 

the charged crimes. The jury was instructed to consider the 

evidence for those limited purposes only.

[11-13] In our rule 404(2) jurisprudence, we have generally 

defined “motive” as that which leads or tempts the mind to 

10 E.g., Boswell, supra note 2.

11 See Thomas, supra note 7.

12 See §§ 28-304 and 28-1205(1)(b). See, also, State v. Tucker, 278 Neb. 935, 

774 N.W.2d 753 (2009) (holding that purely unintentional crime cannot 

form predicate offense for “use of a weapon” conviction; predicate crime 

must be either specific or general intent crime).

13 See Neb. Rev. Stat. § 28-1409 (Reissue 2016) (use of deadly force 

justifiable if actor believes such is necessary to protect self against death 

or serious bodily harm unless actor provided use of force against actor or 

actor can safely retreat).
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indulge in a criminal act. 14 And even when motive is not an 

element of the charged crime, we have recognized it is nevertheless relevant to the State’s proof of the intent element of 

the crime. 15 Thus, motive qualifies as a legitimate noncharacter 

theory because although character carries a connotation of an 

enduring general propensity, motive is a situationally specific 

emotion. 16 We have recognized there is sometimes a fine line 

between prior bad act evidence that goes only to the character or propensity of an actor and prior bad act evidence that 

speaks to the actor’s motive to commit a later crime. 17 But 

evidence is not barred by rule 404(2) just because its relevance 

could be characterized in terms of propensity. 18 Where the 

defendant’s 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.” 19

[14-16] Intent is generally defined as “‘[t]he state of mind 

accompanying an act.’” 20 And where the intent of the defendant is a matter in issue, it is generally allowable in criminal cases to introduce evidence of other acts of a kindred 

character to establish a defendant’s intent or motive in the 

particular case. 21 And, as the jury was instructed here, “intentionally” means willfully or purposely, and not accidentally or 

involuntarily. 22

14 See, Boswell, supra note 2; Thomas, supra note 7.

15 See id.

16 See id.

17 See State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).

18 Id.

19 Id. at 159-60, 812 N.W.2d at 233.

20 Id. at 157, 812 N.W.2d at 231.

21 See State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

22 State v. Woolridge-Jones, 316 Neb. 500, 516, 5 N.W.3d 426, 437 (2024).
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[17] The meaning of “knowledge” in a criminal action 

can vary with the context in which it is used, 23 but it commonly “imports a perception of facts requisite to make up [a] 

crime.” 24 Knowledge, like intent, may be inferred from the 

circumstances surrounding the act. 25

[18] For purposes of rule 404(2) analysis, absence of mistake 

or accident is normally not at issue unless the defendant claims 

that his or her conduct in committing the charged crime was an 

accident or mistake, or the defendant’s act could be criminal or 

innocent depending on the defendant’s state of mind. 26

To determine whether the State met its burden of proving 

the material elements of second degree murder in this case, 

the jury had to decide, among other things, whether the killing 

was intentional or accidental, whether the killing was with or 

without provocation, whether there was or was not a sudden 

quarrel, and whether Moore was the aggressor or was acting 

in self-defense. Given these material issues, we agree with the 

district court that evidence of the circumstances surrounding 

the March 2020 assault, and, in particular, Moore’s comments 

to police about what motivated his conduct, was relevant for a 

purpose other than propensity.

The March 2020 assault and the assault that resulted in 

Camacho-McBride’s death occurred within approximately 8 

months of one another, both assaults involved a knife, and 

after both assaults, Moore explained his conduct to police by 

blaming the victims and referencing the “inventory” inside 

his residence. After the March 2020 assault, Moore said, 

“‘You need to arrest [the landlord]. I was just protecting my 

23 See R. D. Lowrance, Inc. v. Peterson, 185 Neb. 679, 178 N.W.2d 277 

(1970).

24 Id. at 682, 178 N.W.2d at 279.

25 State v. Mills, 199 Neb. 295, 258 N.W.2d 628 (1977). Accord Almasaudi, 

supra note 7.

26 See Almasaudi, supra note 7.
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inventory.’” Similarly, after the assault that killed CamachoMcBride, Moore told police there was an “illegal entry” and 

someone was “lookin’ my inventory over,” adding, while gesturing toward his apartment, “this inventory is all paid for. All 

the inventory is paid for.”

Although there is scant evidence about what Moore means 

when he refers to his “inventory” or why he is willing to use 

a deadly weapon to protect it when he knows people are coming into his home, evidence of Moore’s similar comments to 

police after both assaults tends to suggest that his motivation 

in both attacks was to protect his “inventory.” This particular 

motivation is not based on Moore’s character, and it is relevant to deciding whether the killing of Camacho-McBride 

was intentional or accidental. Moreover, evidence that the 

March 2020 assault occurred suddenly and without provocation when the victim suggested they go inside the house is 

relevant to whether the stabbing of Camacho-McBride inside 

Moore’s apartment occurred with or without provocation, 

whether there was or was not a sudden quarrel, and whether 

Moore was the aggressor or was acting in self-defense. 27

In State v. Stewart,

 28 we held that evidence of the defendant’s prior use of a knife during an altercation was admitted for the proper purpose of negating his assertion that the 

victim accidentally came into contact with the knife used in 

the charged crime. Similarly, evidence that Moore attacked 

his landlord with a knife without any provocation 8 months 

before the charged offense and evidence that he told officers 

at the time he would use a knife to protect his inventory 

tended to negate Moore’s assertion that the fatal knife injuries 

inflicted on Camacho-McBride occurred accidentally.

27 See, e.g., State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997) (finding 

no abuse of discretion in admitting evidence of prior attempted sexual 

assault that was factually similar to charged crime for limited purpose of 

proving plan, knowledge, and identity).

28 State v. Stewart, 219 Neb. 347, 363 N.W.2d 368 (1985).
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At trial, Moore argued not just that he lacked the requisite 

intent to kill, but also that he was acting in self-defense so 

that his actions were justified. The Eighth Circuit has held 

that evidence of a prior bad act is admissible for a proper 

purpose if it rebuts a claim of self-defense by showing the 

absence of a mistake or accident. 29 Similarly, the rule in 

Nebraska is that evidence of other crimes, wrongs, or acts 

may be used to establish that the defendant’s actions were 

accompanied by criminal intent and to refute an accused’s 

claim of self-defense. 30

On this record, we conclude that evidence of the March 

2020 assault was not offered solely to demonstrate Moore’s 

character or propensity for violence, but, rather, was offered 

for the proper purposes of showing Moore’s motive, intent, 

knowledge, and absence of mistake or accident regarding the 

charged crimes. There was no abuse of discretion in the district court’s decision to admit this evidence for those limited 

purposes.

2. Probative Value Versus 

Unfair Prejudice

[19-21] Evidence that is admissible under rule 404(2) may 

nevertheless be excluded under rule 403 if its probative value 

is substantially outweighed by the danger of unfair prejudice. 31 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. 32 Generally, prior 

bad act evidence has probative value when it is related in 

29 See, U.S. v. Steele, 550 F.3d 693 (8th Cir. 2008); U.S. v. Haukaas, 172 F.3d 

542 (8th Cir. 1999).

30 See Stewart, supra note 28.

31 Boswell, supra note 2. See, Matteson, supra note 1; Stewart, supra note 

28.

32 Boswell, supra note 2; Thomas, supra note 7.
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time, place, and/or circumstances to the offense or offenses 

charged. 33

[22-24] Unfair prejudice means an undue tendency to suggest a decision based on an improper basis. 34 The fact that 

evidence is prejudicial is not enough to require exclusion 

under rule 403 because most, if not all, of the evidence a party 

offers is calculated to be prejudicial to the opposing party; it is 

only the evidence which has a tendency to suggest a decision 

on an improper basis that is considered unfairly prejudicial 

under rule 403. 35 In other words, unfair prejudice speaks to 

the capacity of some concededly relevant evidence to lure the 

fact finder into declaring guilt on a ground different from the 

proof specific to the offense charged, commonly on an emotional basis. 36

On this record, we see no abuse of discretion in the trial 

court’s determination that the probative value of the March 

2020 assault was high and was not substantially outweighed 

by the danger of unfair prejudice, particularly in light of 

the limiting instruction that accompanied the admission of 

such evidence. When referencing evidence of the March 2020 

assault at trial, the State limited its argument to those limited 

purposes, and we see nothing in the record suggesting such 

evidence had an undue tendency to suggest a decision on an 

improper basis.

V. CONCLUSION

For the foregoing reasons, we find no abuse of discretion 

in the district court’s decision to admit evidence of the March 

2020 assault for the proper purposes of showing Moore’s 

motive, intent, knowledge, and absence of mistake or accident 

33 See State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).

34 Boswell, supra note 2; Thomas, supra note 7.

35 Boswell, supra note 2. See Thomas, supra note 7.

36 Oldson, supra note 7.
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regarding the charged crimes. The evidence was admissible 

for each of those limited purposes, and its probative value 

was not substantially outweighed by the danger of undue 

prejudice, especially given the proper limiting instruction. We 

therefore reject Moore’s assigned error and affirm his convictions and sentences.

Affirmed.