IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

STATE V. SCHOEMANN

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,

V.

GENE F. SCHOEMANN, APPELLANT.

Filed February 25, 2014. No. A-13-436.

Appeal from the District Court for Otoe County: RANDALL L. REHMEIER, Judge. 

Affirmed.

Michael Ziskey, Otoe County Public Defender, for appellant.

Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.

INBODY, Chief Judge, and PIRTLE and RIEDMANN, Judges.

PIRTLE, Judge.

INTRODUCTION

Gene F. Schoemann appeals from a conviction for one count of third degree sexual 

assault of a child. Schoemann was tried and convicted by a jury in the district court for Otoe 

County. For the reasons that follow, we affirm.

BACKGROUND

On August 1, 2012, Schoemann, a 71-year-old male, was charged by information in the 

district court for Otoe County with one count of third degree sexual assault of a child, a Class 

IIIA felony. The alleged victim in this case is D.J., a 12-year-old boy, who resided with his 

parents and siblings in Nebraska City. On August 6, Schoemann appeared before the district 

court and entered a plea of not guilty.

On January 25, 2013, the State filed a motion and notice of intent to present evidence 

pursuant to Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Cum. Supp. 2012). The motion sought 

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permission to introduce evidence at trial regarding a prior incident involving Schoemann and the 

victim’s brother, O.J., to prove intent.

A hearing on the motion was held on February 20, 2013. Counsel for both parties agreed 

to continue the hearing until the time of trial and further agreed not to mention the proposed rule 

404 evidence to the jury before the district court rendered its decision.

On March 1, 2013, the State filed an amended motion and notice of intent to present 

evidence pursuant to rule 404. The motion alleged the incident involving O.J. was admissible to 

prove not only intent, but also motive, preparation, and plan.

Schoemann’s jury trial began on March 5, 2013. The victim, D.J., and his father testified. 

On March 6, the district court heard the State’s motion to present evidence pursuant to rule 404.

D.J.’s younger brother, O.J., testified about an incident which occurred at Schoemann’s 

residence. The court noted several similarities between the incidents involving D.J. and O.J., and 

found O.J.’s testimony was admissible for the limited purpose of proving intent, motive, and a 

common plan and allowed O.J. to testify over Schoemann’s objection. The court instructed the 

jury that O.J.’s testimony was being offered for a limited purpose and should be considered only 

on the issues of intent, motive, and a common plan.

D.J. and O.J.’s mother first met Schoemann at Wal-Mart shortly after the family moved 

to Nebraska City. She testified that Schoemann approached her and said her children were 

well-behaved in the store. After that time, she saw Schoemann periodically, because he worked 

as a greeter at Wal-Mart. She was usually accompanied by several of her eight children, 

including D.J. and O.J., and Schoemann sometimes gave them candy. Schoemann asked for the 

children’s’ birthdates so he could purchase gifts for them.

In February 2011, D.J.’s mother told Schoemann that D.J. was having trouble in math. 

Schoemann stated he was a former math teacher, and he offered to tutor D.J.

D.J. testified that he received math tutoring from Schoemann. Initially, they met every 

Thursday at Burger King in Nebraska City, then after a few weeks, they met at Runza in 

Nebraska City, because Burger King was too noisy.

On or about May 15, 2012, Schoemann presented D.J. with a handwritten contract, which 

read:

I [D.J.] want Gene Schoemann to be my adopted grandfather on this day May 15th 2012. 

I promise to obey and do what he says so I will become a better man in the future. I 

promise to love him as a grandfather and listen to what he has to say. Although we may 

not agree, I will respect his opinion. This is a signed agreement between him and me.

Schoemann read the contract to D.J. and asked him to sign it. D.J. testified that he felt 

like he had to sign it and that he did so because he knew it was “not real,” or legally binding. 

After their tutoring session, Schoemann took D.J. to his house in Nehawka to pick up a 

lawnmower and some books.

Upon arrival, Schoemann gave D.J. a tour of the house. D.J. testified Schoemann stopped 

D.J. by the bathroom and offered him money to walk into the bedroom. D.J. testified Schoemann 

stated the amount of money D.J. would be paid would depend on the amount of clothing D.J. 

was willing to remove. He would receive $5 if he entered the bedroom fully clothed, $10 if he 

wore only his underwear, and $20 if he was naked. D.J. stated he was in Schoemann’s bathroom 

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with the door open when he removed his shirt and pants and left his boxer shorts on. D.J. stated 

Schoemann was outside of the bathroom door and told D.J. to lie down on a towel on the bed. 

When D.J. laid on his back on the towel, Schoemann pulled up the towel, pointed to a white spot, 

and said, “This is sperm, do you know what this is?” D.J. said Schoemann started talking about 

“sex stuff” and said if D.J. ever had sex before he turned 18, Schoemann would personally rip 

D.J.’s penis off. D.J. testified that he told Schoemann that was none of his business, and 

Schoemann said it was his business because D.J. had signed the contract making Schoemann his 

adopted grandfather. D.J. testified this incident made D.J. feel “weird and creepy.”

D.J. got dressed and went into the living room where Schoemann was seated in an 

armchair. Schoemann asked D.J. to sit on his lap and kiss him on the cheek. Schoemann also 

gave D.J. $10 and told him he could spend it on his upcoming vacation. After discussing some 

model cars, a pocketknife, and a watch in the living room, D.J. helped Schoemann load some 

books and a weight set into Schoemann’s car.

Schoemann drove D.J. to his home in Nebraska City, and Schoemann asked D.J. how he 

felt about what had happened. D.J. said “not very good.” Upon arrival at the Nebraska City 

home, they unloaded the weight set in Schoemann’s bedroom. Schoemann, a former coach, had 

advised D.J. that he could help D.J. get stronger by lifting weights. Schoemann instructed D.J. to 

remove his shirt and pants so Schoemann could watch his muscles. Schoemann was sitting on the 

bed, and D.J. stood in front of him. D.J. did five sets of 10 curls, resting for 2 to 3 minutes 

between each set. During each rest period, Schoemann asked D.J. to lie down on the bed to relax 

his muscles. D.J. testified that each time he laid down, Schoemann checked D.J.’s heartbeat, first 

on his chest, then lower, on D.J.’s thigh, near his “private part.” During one set, Schoemann told 

D.J. to face away from him so he could watch the back of D.J.’s legs. After the final set, D.J. 

again laid down. D.J. testified Schoemann said he had a “cute butt” and instructed D.J. to roll 

over onto his stomach. D.J. testified Schoemann placed his hand underneath the loose leg 

opening of D.J.’s boxer shorts, squeezing each buttock, one at a time.

Schoemann then told D.J. to get dressed, and the two went outside to practice golf in the 

backyard. Although D.J. did not immediately report this incident to his parents, he stated it made 

him “uncomfortable.” Shortly after the incident, D.J.’s family went on vacation. D.J.’s mother 

testified that she noticed a change in D.J.’s personality on the trip. She said he was more reserved 

and quiet than normal. She said he asked her a few times, “Mom, do you love me?” and “Will 

you love me no matter what?” She testified D.J. talked to her a few days after their return from 

the vacation about the incident at Schoemann’s home.

D.J.’s father testified that D.J. started having more problems in school after the incident. 

D.J.’s father noted D.J. was “getting kicked out of after-school clubs, being disruptive with 

teachers, stuff of that nature.” He stated that he found out about D.J.’s allegations related to 

Schoemann after D.J. talked to his mother when the family returned from their vacation.

The State offered testimony of D.J.’s younger brother, O.J., involving a similar incident 

which occurred after O.J. received tutoring from Schoemann. O.J. testified that Schoemann 

began tutoring him at Runza in Nebraska City. While at Runza, Schoemann presented O.J. with a 

piece of paper containing an agreement for O.J. and Schoemann to both sign.

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The agreement read:

I [O.J.] do want Gene Schoemann to be my adopted grandfather on this day May 

8, 2012, I promise to obey and do what he says so I will become a better man in the 

future. I promise to love him as a grandfather and listen to what he has to say. Although 

we may not agree I will respect what he says. This is a signed agreement between him 

and me.

After a tutoring session, Schoemann drove O.J. to his home in Nebraska City for the first 

time, to teach O.J. how to play golf. O.J. testified that Schoemann put his hand on O.J.’s knee 

when they drove to the house. When they reached the house, Schoemann gave O.J. candy in his 

bedroom and gave him clothing, which O.J. was supposed to wear to play golf. O.J. asked 

Schoemann if he could change in the bathroom. O.J. testified that Schoemann was sitting on the 

bed in the bedroom and that he responded, “Nobody is going to bite.” O.J. then changed his 

clothes in the bedroom. Schoemann took O.J. outside to play golf and put his arms around O.J. to 

show him how to swing. After the golf lesson, O.J. changed back into his own clothes in 

Schoemann’s bedroom, while Schoemann sat on the bed, and Schoemann told him stories while 

they sat on the bed together. O.J. testified that while on the bed, Schoemann put his arm around 

O.J. O.J. also testified Schoemann patted him “on the butt.” O.J. testified that Schoemann told 

him he was getting old and needed lots of hugs and kisses.

O.J. testified he went to Schoemann’s house twice. The second time, they practiced 

golfing, and O.J. again changed into the clothing Schoemann provided. He also helped 

Schoemann to move a couch.

O.J. testified that he did not go to Schoemann’s other house, but Schoemann talked to 

him about it. He told O.J. that he had magazines of naked women and that if O.J. ever looked at 

them, Schoemann would give him “boom booms,” or spankings.

Schoemann testified that he was in the teaching profession for 35 years with degrees in 

philosophy, math, psychology, history, social studies, and religion. During his career, he was a 

junior high football coach, a high school track coach, and a middle school basketball coach. He 

retired from teaching in 2003 and went back to teaching for a brief period in 2005. He began 

working for Wal-Mart in December 2006, helping to open the store, and then heading the meat 

department. Approximately a year later, he became a greeter for Wal-Mart. He was suspended 

from his position as a greeter after D.J.’s parents reported the alleged incident with D.J.

Schoemann testified that while at Wal-Mart, he gave gifts of candy and trinkets to D.J. 

and his siblings and they were appreciative of them. Schoemann testified that he tutored D.J. and 

O.J. for free and that he enjoyed it. He said both D.J. and O.J. expressed their desire for 

Schoemann to be their grandfather. He testified that he created the agreements saying he would 

be like a grandfather to the boys so that “there would be something between the two boys and 

myself as to where we stand.” He said he wanted to be a grandfather figure because “they were 

great kids and they both enjoyed being around me and I enjoyed being around them.” 

Schoemann testified he had no ulterior motive.

Schoemann testified that he asked D.J. and O.J.’s mother for permission to take the boys 

to his home each time and that it was granted. He stated that when he touched O.J.’s knee, it was 

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because he was checking to ensure O.J.’s seatbelt was on. He also testified he “tapped him on the 

butt,” because that’s what you do when you play sports.

Schoemann testified that when he took D.J. to his home in Nehawka, they loaded the 

lawnmower, then D.J. asked to use the restroom. Schoemann testified he showed D.J. where the 

restroom was and then started cleaning up around the house. Schoemann testified that when D.J. 

came out of the bathroom, he was lying on Schoemann’s bed and had removed his shirt and 

pants. Schoemann testified he told D.J. that they needed to leave the house, and D.J. started 

talking about the stains on the towels. Schoemann stated he would not have gone into the house 

in Nehawka with D.J. if he had not asked to use the restroom.

Schoemann testified he asked D.J. if he had hair in his private parts, because it is 

dangerous for a boy to lift weights if he had not started puberty. He testified that D.J. lifted in 

Schoemann’s bedroom because there was no room in the living room. Schoemann testified he 

told D.J. to lie on the bed and rest after the last set because D.J. complained about his arms and 

legs bothering him. Schoemann said at that point, he took his hand and checked for possible 

muscle tie-ups. Schoemann testified D.J. asked him if D.J. had a “fat ass” because a girl told him 

that he did. Schoemann stated that he did squeeze D.J.’s buttocks, because he thought he saw a 

black and blue mark across D.J.’s buttocks and he wanted to check for bruising. Schoemann 

stated that he was concerned about a potential abusive relationship between D.J. and his father.

At the conclusion of all the evidence, the case was submitted to the jury. The jury 

returned a guilty verdict. The district court accepted the jury’s verdict and ordered a presentence 

investigation.

Schoemann’s sentencing hearing was held on May 13, 2013. The district court sentenced 

Schoemann to 20 months’ to 4 years’ imprisonment. Schoemann timely appeals.

ASSIGNMENTS OF ERROR

Schoemann asserts on appeal that the district court erred in admitting evidence of certain 

prior acts under rule 404(2). Schoemann also asserts the evidence was insufficient to support a 

guilty verdict.

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

2008), and rule 404, and the trial court’s decision will not be reversed absent an abuse of 

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

When reviewing a criminal conviction for sufficiency of evidence to sustain a conviction, 

the relevant question for the appellate court is whether, after viewing all the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of a crime beyond a reasonable doubt. State v. Watt, 285 Neb. 647, 832 N.W.2d 459 

(2013).

An appellate court’s standard of review for criminal cases requires substantial deference 

to the factual findings made by the jury. State v. Kelly, 20 Neb. App. 871, 835 N.W.2d 79 

(2013).

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ANALYSIS

Admission of Rule 404 Evidence.

Rule 404(2) states:

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.

It is within the discretion of the trial court to determine relevancy and admissibility of 

evidence of other wrongs or acts under rules 403 and 404(2), and the trial court’s decision will 

not be reversed absent an abuse of discretion. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 

(2011).

An appellate court’s analysis under rule 404(2) considers 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. State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012).

Relevance of Rule 404 Prior Acts.

Prior to trial, the State sought to introduce testimony of O.J., D.J.’s brother, concerning a 

similar series of events that occurred involving Schoemann. The State filed an amended motion 

of intent to present rule 404 evidence. After a hearing on the State’s motion, the motion to 

present O.J.’s testimony was granted, allowing the evidence to be adduced for the purpose of 

proving intent, motive, and a common plan.

The testimonies of D.J. and O.J. reveal similarities between the experiences of both boys, 

occurring within a very similar timeframe, i.e., a common plan. Schoemann gave both boys gifts 

of trinkets, clothing, and candy. He tutored both boys in a public place, asked them to sign an 

agreement to do whatever Schoemann asked of them, and then asked them to go with him to his 

home. Both boys testified Schoemann gave them a tour of his home, sat with them in his 

bedroom, and made unsolicited comments of a sexual nature. Both boys were asked to change 

their clothes and were in physical contact with Schoemann. These incidents occurred within a 

week of each other. The State had the burden to prove that the evidence was independently 

relevant for a proper purpose. State v. Payne-McCoy, supra. The State met the burden of 

showing the evidence was entered to show motive, intent, or a common plan.

Probative Value Versus Unfair Prejudice.

Evidence that is admissible under rule 404(2) may be excluded under rule 403 if its 

probative value is substantially outweighed by the danger of unfair prejudice. State v. 

Payne-McCoy, supra. Most, if not all, evidence offered by a party is calculated to be prejudicial 

to the opposing party. Id., citing State v. Pullens, supra. Only evidence tending to suggest a 

decision on an improper basis is unfairly prejudicial. Unfair prejudice means undue tendency to 

suggest a decision based on an improper basis, and balancing the probative value of evidence 

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against the danger of unfair prejudice is also within the discretion of the trial court. Id., citing 

State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994).

At trial, Schoemann objected to the testimony of O.J. based on rules 403 and 404(2). The 

objection was overruled, and the trial court found the evidence was not unfairly prejudicial to 

Schoemann.

Having determined there was sufficient evidence to prove Schoemann’s behavior with 

O.J. was relevant to prove intent, motive, or a common plan, we now consider whether the 

evidence was unfairly prejudicial.

The evidence provided at trial was highly probative to demonstrate how Schoemann’s 

actions with D.J. and O.J. progressed in a similar manner. The question is whether such evidence 

was unfairly prejudicial. There are overwhelming similarities between how Schoemann acted 

with both boys, and we conclude that the probative value of Schoemann’s actions with O.J. to 

show a common plan, motive, or intent, was not substantially outweighed by the prejudicial 

value and that Schoemann was not unfairly prejudiced by the admission of such evidence.

Limiting Instructions.

The jury was given a limiting instruction regarding O.J.’s testimony. O.J.’s testimony 

was admitted with an instruction to the jury that it could only be considered for purposes 

concerning intent, motive, and a common plan.

Schoemann asserts on appeal that O.J.’s testimony lacks evidence of intent, motive, and a 

common plan, and was just introduced to show he acted in conformity with character, which is 

not a permissible purpose under rule 404(2). The State asserts there was sufficient similarity 

between the testimony of D.J. and O.J. to properly enter O.J.’s testimony as evidence.

Upon our review, we find O.J.’s testimony was not offered to prove an element of 

Schoemann’s character or his conformity therewith; rather, it was used to show intent, motive, 

and/or a common plan. We find that the trial court did not abuse its discretion in admitting O.J.’s 

testimony for the limited purposes stated at trial and that the trial court’s ruling on such evidence 

should be affirmed.

Sufficiency of Evidence.

Schoemann was charged with third degree sexual assault of D.J.

Under the Nebraska Statutes, “[s]exual contact” is defined 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. Sexual contact shall also include the touching of a child with the actor’s 

sexual or intimate parts on any part of the child’s body for purposes of sexual assault of a 

child under sections 28-319.01 and 28-320.01.”

Neb. Rev. Stat. § 28-318(5) (Cum. Supp. 2012). “[I]ntimate parts” is defined by § 28-318(2) as 

the “genital area, groin, inner thighs, buttocks, or breasts.”

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Schoemann asserts there is insufficient evidence to find he touched D.J.’s buttocks for 

sexual gratification or a sexual purpose; therefore, he asserts the court could not have found there 

was sufficient evidence that the State proved the essential elements of the charged crime beyond 

a reasonable doubt. Schoemann admits that he touched D.J., but asserts he had a legitimate 

reason--he thought he saw bruising on D.J.’s buttocks and feared physical abuse.

However, there is significant evidence that Schoemann’s actions were sexually 

motivated. On the day of the alleged assault, Schoemann presented D.J. with a handwritten 

contract and asked D.J. to sign. The contract stated, among other things, “I promise to obey and 

do what [Schoemann] says so I will become a better man in the future. I promise to love him as a 

grandfather and listen to what he has to say.” D.J. testified that Schoemann asked him to talk 

about “sex stuff” and asked D.J. to sit on his lap and kiss him on the cheek. D.J. testified that on 

the same day, Schoemann offered him $5 to remove his shirt, $10 to remove his pants, and $20 

to remove all of his clothing.

While D.J. was lifting weights at Schoemann’s house that day, Schoemann asked him to 

lie down on the bed between sets. D.J. testified Schoemann checked his pulse by placing his 

hand on D.J.’s chest, and then on his inner thigh. Schoemann told D.J. he had a “cute butt” and 

instructed him to roll over on his stomach. D.J. testified Schoemann placed his hand underneath 

D.J.’s boxer shorts and squeezed each buttock, then told D.J. to get dressed. D.J. testified that the 

incident made him uncomfortable.

Our standard of review does not permit us to resolve conflicts in the evidence, pass on the 

credibility of the witnesses, or reweigh the evidence. Any conflicts in the evidence or questions 

concerning the credibility of witnesses were for the jury as finder of fact to resolve. State v. Watt, 

285 Neb. 647, 832 N.W.2d 459 (2013).

Upon our review of the evidence, we find there was sufficient evidence for a rational trier 

of fact to find the essential elements of a crime beyond a reasonable doubt.

CONCLUSION

We find the trial court did not abuse its discretion in allowing rule 404 evidence, with the

appropriate limiting instruction. We also find there was sufficient evidence to find a rational trier 

of fact could have found the essential elements of a crime beyond a reasonable doubt.

AFFIRMED.

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