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303 Nebraska Report

STATE v. THOMAS

Cite as 303 Neb. 964

State of Nebraska, appellee, v.

Nathan M. Thomas, appell

___ N.W.2d ___

Filed August 30, 2019. No. S-18-220.

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 

Nebraska Supreme Court Online Library

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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.
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Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Affi

Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., 

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, Stac

Papik, and Freudenberg, 

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.

1 See Neb. Rev. Stat. § 28-833 (Reissue 2016) (enticement by electronic 

communication device).

2 Brief for appellant at 18. See Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 

(Reissue 2016).
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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. Dec

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 
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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.
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2. Wolfgirl Chat Evid

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.
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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

In addition to the transcript of the Wolfgirl chat, the State’s 

trial evidence included the testimony of five witnesses, 
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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

[1] 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

[2] 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, 

3 Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

4 State v. Kidder, 299 Neb. 232, 908 N.W.2d 1 (2018).
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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 Evid

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.

[3,4] 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

[5-7] 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 

5 State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018).

6 State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).

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

[8-10] 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 

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

9 Id.

10 Sanchez, supra note 7.

11 State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012).

12 State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).

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

14 Sanchez, supra note 7.
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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.

15 State v. Trotter, 262 Neb. 443, 632 N.W.2d 325 (2001).

16 State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
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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 

17 Payne-McCoy, supra note 11.

18 Torres, supra note 8.

19 Id. at 158, 812 N.W.2d at 232.

20 Id. at 159, 812 N.W.2d at 233.

21 Id. at 159, 812 N.W.2d at 232.
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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.

22 Id. at 159-60, 812 N.W.2d at 233 (emphasis in original).

23 U.S. v. Zahursky, 580 F.3d 515, 524 (7th Cir. 2009).

24 Id., quoting U.S. v. Sebolt, 460 F.3d 910 (7th Cir. 2006).

25 Id.

26 U.S. v. Chambers, 642 F.3d 588 (7th Cir. 2011).
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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 

27 Collins, supra note 12.

28 See § 28-833(1).

29 Trotter, supra note 15.
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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 

30 See Sanchez, supra note 7.
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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 

to the recipients’ ages. The Wolfgirl evidence was independently relevant. Therefore, we find no abuse of discretion by 

the district court in determining the evidence was relevant to 

show absence of mistake or accident.

 (c) Probative Value Versus 

Unfair Prejudice

[11] Having found no abuse of discretion by the district 

court in determining that the Wolfgirl conversation was relevant for the specified limited purposes, we must also review 

for abuse of discretion the court’s balancing of unfair prejudice 

against probative value. Evidence that is admissible under rule 

404(2) 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.32 As the 

rule plainly states, only when the danger of unfair prejudice 

31 Zahursky, supra note 23, 580 F.3d at 524.

32 Payne-McCoy, supra note 11.
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substantially outweighs the evidence’s probative value does 

rule 403 counsel exclusion. And again, we emphasize that we 

review the decision only for an abuse of discretion.

[12-14] 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.33 Most, if not all, evidence 

offered by a party is calculated to be prejudicial to the opposing party.34 Only evidence tending to suggest a decision on an 

improper basis is unfairly prejudicial.35 Balancing the probative value of evidence against the danger of unfair prejudice 

is within the discretion of the trial court, whose decision we 

will not reverse unless there is an abuse of discretion.36 The 

district court found that the probative value of the Wolfgirl 

conversation was not substantially outweighed by the danger 

of unfair prejudice.

(i) Redaction Not Raised or Preserved

One of the dissenting opinions seems to suggest that the 

exhibit should have been redacted, but neither of its suggestions is properly before us.

[15] Although that dissent first argues that the images should 

have been redacted, Thomas did not raise the issue on appeal. 

Before the district court, Thomas, in a summary fashion, 

did request redaction of the images. There, he preserved the 

issue.37 But on appeal, he simply does not raise redaction of 

the images. 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.38 His assignment 

33 Id.

34 Id.

35 Id.

36 State v. Oldson, supra note 13.

37 See State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).

38 State v. Munoz, ante p. 69, 927 N.W.2d 25 (2019).
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asserted that the district court erred “in admitting evidence of 

the Wolfgirl chat under Evidence Rule 404.” The assignment 

does not mention either redaction or rule 403. While his argument does discuss rule 403, it does so only in the context of the 

entire exhibit. He does not argue that the images should have 

been redacted. Thus, with respect to the images, Thomas has 

placed the issue before us on an “all or nothing” basis.

That dissent also suggests that several pages of the exhibit 

“would have accomplished the State’s needs.” But Thomas 

never sought redaction of part of the text. And he had the burden of doing so.

[16,17] 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.39 A learned treatise 

explains:

Suppose that evidence sought to be introduced consists of 

several statements or items tendered as a unit in a deposition, letter, conversation, or trial transcript. Assume that 

the opponent objects to the whole of the evidence when 

some parts are subject to the objection made but other 

parts are not. In this situation, the judge does not err by 

overruling the objection. It is not the judge’s responsibility to sever the bad parts if some are good. That is the 

opponent’s burden.40

39 Huston, supra note 37. See, also, State v. Merrill, 252 Neb. 736, 566 

N.W.2d 742 (1997) (affirming admission of photograph album when 2 of 

32 photographs were admissible).

40 1 McCormick on Evidence § 52 at 362 (Kenneth S. Broun et al. eds., 7th 

ed. 2013 & Supp. 2016). See, also, Foster v. S.C.D.H.P.T., 306 S.C. 519, 

413 S.E.2d 31 (1992) (defendant’s letter was admissible when defendant 

objected to entirety of letter rather than specific portions that were 

inadmissible); State v. Graham, 641 S.W.2d 102 (Mo. 1982) (business 

records exception does not make all parts admissible; portions can be 

excluded if specific objections are made); Speier v. Webster College, 616 

S.W.2d 617 (Tex. 1981) (summary evidence of witnesses testimony is 

admissible unless specific objection is made to inadmissible portions).
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Thus, to the extent the dissent suggests that redaction of part of 

the text of the Wolfgirl chat should have occurred (apparently 

on the district court’s own initiative), it would reverse the district court on an issue not raised before that court. But that is 

not our function. An appellate court will not consider an issue 

on appeal that was not presented to or passed upon by the trial 

court.41 Because redaction of part of the text was not raised 

below, we cannot consider it here.

That dissent also discusses the concept of plain error, 

although it is not clear that it does so with respect to redaction. 

Neither of the cited cases involved rule 403 balancing or sua 

sponte redaction of an exhibit. Thus, we read the dissent’s plain 

error discussion as an expression of its level of concern regarding the issue that is properly before us.

In other words, this leaves us where Thomas chose to 

place us—considering only the exhibit as a whole. We must 

determine whether the district court abused its discretion in 

determining that the unfair prejudice of the Wolfgirl chat evidence, in its entirety, did not substantially outweigh its probative value.

(ii) Balancing

The Wolfgirl conversation was highly probative to show 

motive and absence of mistake or accident as to the decoy’s 

age. That 50-page conversation, containing sexually explicit 

photographs and language, certainly was prejudicial to Thomas. 

However, there were striking similarities between the Wolfgirl 

conversation and the charged offense. In both instances, 

Thomas asked about the recipient’s age; when he learned she 

was underage, he persisted. In the remaining conversation, he 

ignored her signals that she was, in fact, underage. He sought 

pictures of both recipients, and in pursuit of his sexual gratification, he disregarded the respective assertions of age. The probative value of the conversation to show motive and absence of 

mistake or accident went to the heart of Thomas’ defense.

41 Huston, supra note 37.
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Was the content of the Wolfgirl conversation so unfairly 

prejudicial that it substantially outweighed the high probative 

value? We conclude that it did not. In Chambers, the Seventh 

Circuit discussed the federal equivalent of the rule 403 balancing test as to several conversations with victims and the 

defendant and stated, “Sexual abuse of a child or the attempt 

thereof is a disgusting crime and any evidence of it is no doubt 

unfavorable to the defendant, but here it was not unfairly 

prejudicial.”42 Several other circuits have held that admitting 

several sexually explicit images introduced as rule 404(2) evidence is not unfairly prejudicial.43 We agree with the federal 

courts that although the evidence was highly prejudicial in its 

nature, it was not unfairly prejudicial. And to the extent one of 

the dissenting opinions seems to suggest that the federal cases 

on rule 403 balancing are inconsistent with our own precedent, 

we disagree. We see no meaningful difference between the 

text of rule 403 and that of the equivalent federal rule. Nor 

do we see any difference in the standards articulated by courts 

applying these rules.

Thus, in light of the statutory text, our precedent applying it, 

and federal cases doing likewise with a nearly identical federal 

rule, we cannot say that the district court abused its discretion 

in determining that the probative value of the Wolfgirl evidence outweighed its prejudicial value.

Before moving to the next issue, we note that a casual reader 

might misinterpret references to the length of the exhibit as 50 

“page[s].” We should emphasize that each “page” is a screenshot of the conversation and images displayed on the limited 

42 Chambers, supra note 26, 642 F.3d at 596.

43 See, also, U.S. v. Wallace, 607 Fed. Appx. 25 (2d Cir. 2015) (admitting 

magazine cover of women dressed as young girls to show sexual interest in 

young girls and admitting files depicting bestiality and adult pornography 

account to show identity); U.S. v. Keith, 440 Fed. Appx. 503 (7th Cir. 

2011) (showing jury 32 uncharged images of child pornography); U.S. 

v. Sumner, 522 Fed. Appx. 806 (11th Cir. 2013) (admitting 85 sexually 

suggestive photographs to show intent).
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space of a cell phone’s screen. And three of those pages display only a “Failed to Load” message. So, while the number of 

words on such a page varies considerably, the other 47 pages 

of the exhibit total about 2,529 words—or an average of only 

about 53 words per page.

(d) Limiting Instruction

The court instructed the jury to consider the evidence of 

the Wolfgirl conversation for the limited purpose of motive 

and absence of mistake or accident as to the elements of 

count 1. Before the jury heard any of the evidence concerning 

the Wolfgirl conversation, the court instructed the jury on the 

limiting instruction. Thomas did not raise an issue with the 

limiting instruction on appeal.

2. Sufficiency of E

The crime of enticement by electronic communication 

device, in relevant part, consists of the following:

A person commits the offense of enticement by electronic 

communication device if he or she is nineteen years of 

age or over and knowingly and intentionally utilizes an 

electronic communication device to contact a child under 

sixteen years of age or a peace officer who is believed by 

such person to be a child under sixteen years of age and 

in so doing:

(a) Uses or transmits any indecent, lewd, lascivious, or 

obscene language, writing, or sound [or]

. . . .

(c) Offers or solicits any indecent, lewd, or lascivious act.44

Thomas argues that “[t]he sole use of the words ‘to kiss or 

eat you out’ cannot be . . . lewd, lascivious or obscene . . .” as 

a matter of law.45 He contends that these words do not conjure 

44 § 28-833(1).

45 Brief for appellant at 20.
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up repugnant sexual images. Thomas does not contend that the 

evidence was insufficient to support a conviction on count 1 

for the remaining elements of the crime. Therefore, we address 

the sufficiency of the evidence only as to whether his writing 

or solicitation was “indecent, lewd, lascivious, or obscene,” in 

violation of § 28-833.

Case law instructs us that the term of art “indecent, lewd, 

lascivious, or obscene,” when used by the Legislature, is a 

context-based question of fact. In State v. Kass,

46 we analyzed 

a constitutional challenge to the same language. We identified 

the rule from State v. Kipf 47 as the clear line to apply to narrow the reach of “indecent, lewd, lascivious, or obscene” in 

§ 28-833. We held in Kipf that “the phrase in question is the 

use of language which conjures up repugnant sexual images.”48

We further explained that the context of the language aids to 

determine whether the language is repugnant or not. There, 

we reasoned that coitus between two consenting adults as an 

expression of love is not repugnant and does not conjure up 

repugnant images. However, we further reasoned that coitus 

performed as violence is repugnant, as much as it is criminal. 

Moreover, because of the known or unknown identity of the 

other actual or would-be participant, an otherwise natural and 

fulfilling sexual act could be repugnant.49

In this case, the context of the sexual language conjured 

repugnant sexual images when exchanged between an adult 

and a 14-year-old child. Although Thomas’ language, if aimed 

to a consenting adult, would not conjure up repugnant sexual 

images, here it was addressed to a person claiming to be 14 

years old. As we said in Kipf, the known identity of the other 

would-be participant can turn an otherwise natural sexual act 

repugnant. Viewing the foregoing in the light most favorable 

46 State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).

47 State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990).

48 Id. at 235, 450 N.W.2d at 405.

49 See Kipf, supra note 47.
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to the prosecution, any rational trier of fact could have found 

that the solicitation in writing or otherwise by an adult to 

perform oral sex on a person whom the adult believed to be a 

14-year-old child would conjure up repugnant sexual images. 

Therefore, there was sufficient evidence for the jury to find 

that Thomas used or transmitted indecent, lewd, lascivious, or 

obscene writing or offered or solicited any indecent, lewd, or 

lascivious act.

VI. CONCLUSION

We conclude that the district court did not abuse its discretion in admitting the rule 404 evidence of the Wolfgirl 

conversation as to motive and absence of mistake or accident. 

The evidence was sufficient for a jury to find the writing 

or solicitation “indecent, lewd, lascivious, or obscene” to 

support the conviction. We affirm the judgment of the district court.

Affirmed

Heavican, C.J., dissenti

I respectfully dissent. In my view, the majority in this case 

underestimated the danger of unfair prejudice resulting from 

the admission of the entirety of exhibit 11, otherwise referred 

to as the “Wolfgirl evidence.” The majority suggests that 

Thomas failed to both specifically assign and argue for redaction of the unfairly prejudicial photographs and failed to assign 

and argue alternatively that the court should have allowed only 

the relevant portions of the Wolfgirl evidence. As a result, the 

majority contends that we cannot review such error. I respectfully disagree and suggest that our analysis of the Wolfgirl 

evidence involves a review of the district court’s decision for 

plain error.

Where a party fails to comply with the court rules requiring a separate section setting forth the assignments of error, an 

appellate court may proceed as though the party failed to file 

a brief entirely or, alternatively, may examine the proceedings 
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for plain error.1 The decision to proceed on plain error is at the 

discretion of the appellate court.2 Plain error is error plainly 

evident from the record and of such a nature that to leave it 

uncorrected would result in damage to the integrity, reputation, 

or fairness of the judicial process.3

In this case, the fairness of the judicial process is called into 

question by the introduction of unfairly prejudicial material, 

such as photographs of Thomas’ genitalia, that bears little relevance to the instant case. Therefore, a review for plain error 

is not only appropriate, but necessary. With our judicial role as 

an appellate court clearly defined, and our standard of review 

in mind, we turn to the facts of this case.

For purposes of this dissent, only a brief review of the 

facts is needed. Thomas placed an online advertisement seeking to perform oral sex on a female (no age specified). A 

law enforcement officer, representing himself electronically 

as a decoy 14-year-old girl, responded to the advertisement 

and asked if Thomas would be interested in “hanging with 

someone younger.” After learning the purported age of the 

decoy, Thomas asked, “If we did meet up what would you 

like to happen? Me just eating you out or more?” Thomas 

ultimately pursued a plan to meet the decoy; upon arriving at 

the planned meeting place, Thomas was instead met by law 

enforcement officers.

Following Thomas’ arrest, he permitted law enforcement to 

search his cellular telephone. During the course of the search, 

investigators located another sexually explicit conversation 

that Thomas had engaged in, with an underage female identified herein by the name “Wolfgirl.” At trial, the State sought to 

produce the Wolfgirl evidence pursuant to Neb. Evid. R. 404, 

Neb. Rev. Stat. § 27-404 (Reissue 2016), to show “motive, 

1 See In re Interest of Justine J. & Sylissa J., 288 Neb. 607, 849 N.W.2d 509 

(2014).

2 Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014).

3 Id.
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opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident.”

Thomas was charged with two counts. Count 1 alleged a 

violation of Neb. Rev. Stat. § 28-833 (Reissue 2016) (enticement by electronic communication device), and count 2 alleged 

a violation of Neb. Rev. Stat. § 28-320.02 (Reissue 2016) (use 

of electronic communication device to knowingly entice to 

engage in illegal sex act). The district court rejected Thomas’ 

argument that the text messages with Wolfgirl lacked relevance 

and were unfairly prejudicial. The court concluded that the 

Wolfgirl conversation, ultimately entered as exhibit 11, would 

be admissible to show motive or absence of mistake or accident, but only as to count 1.

I concur with the majority’s conclusion that the evidence 

was admissible under rule 404 to show motive or absence of 

mistake. But I take issue with the majority’s determination that 

entering the entirety of exhibit 11 could survive scrutiny under 

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

Rule 403 states, “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.” In 

my opinion, most of exhibit 11 was a “needless presentation 

of cumulative evidence” and its “probative value [was] substantially outweighed by the danger of unfair prejudice [and] 

confusion of the issues.”

CUMULATIVE EVIDENCE

The State presented evidence that Thomas was 19 years 

of age or older, and it entered two exhibits each consisting of two pages of text messages between Thomas and the 

decoy. Combined with the testimony of law enforcement officers, that evidence was all that was needed for a reasonable 

juror to reach the conclusion that Thomas had violated either 

§ 28-833 or § 28-320.02 or both. However, the State sought 
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and was granted permission to introduce the uncharged 

Wolfgirl evidence.

In both quantity (compared to the two two-page exhibits) 

and substance, the 50 pages of exhibit 11 dwarf the State’s 

direct evidence in this case. Exhibit 11 is laced with sexually 

explicit content, much of which is set out in detail in Justice 

Miller-Lerman’s dissent. It is intermixed with still images of 

Thomas’ genitalia. The images are unmistakably stamped with 

“play” button icons, indicating the images are merely stills 

from videos.

The images were not made available to the trial court judge 

until immediately before trial. The State admitted that the 

videos behind the images would rise to the level of a danger of 

unfair prejudice, but argued that the still images themselves did 

not. But the images with the play button icon affixed thereon 

left to the imagination of each juror further graphic, indecent, 

and repugnant behavior. The images were needlessly cumulative and can best be described as overkill (and unfairly prejudicial as noted below).

Further, the text of exhibit 11 in its entirety contains more 

than one example of Thomas’ referencing sexual gratification, as well as a lengthy discussion of Wolfgirl’s fantasy life. 

Wolfgirl’s fantasy life is arguably lacking in any relevance to 

either count and is again needlessly cumulative.

DANGER OF UNFAIR PREJUDICE

In its rule 403 balancing, the majority relies on U.S. v. 

Chambers,

4

 a case from the U.S. Court of Appeals for the 

Seventh Circuit. As the majority notes, in Chambers, the 

Seventh Circuit said, “Sexual abuse of a child or the attempt 

thereof is a disgusting crime and any evidence of it is no doubt 

unfavorable to the defendant, but here it was not unfairly 

prejudicial.”5 I agree with the Seventh Circuit’s sentiments as a 

4 U.S. v. Chambers, 642 F.3d 588 (7th Cir. 2011).

5 Id. at 596.
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general proposition and note that by the court’s very language, 

prejudice is determined on a case-by-case analysis. Beyond 

that, the majority’s reliance on the persuasive authority of the 

federal circuit courts of appeal is misplaced, as we have binding authority and a clear balancing test.6

In State v. Kirksey,

7

 we discussed the balancing test required 

when a court is faced with unfairly prejudicial evidence of 

prior acts. We held that the district court committed prejudicial error during a murder trial when it admitted evidence of a 

previous homicide for which the defendant had been acquitted. 

Kirksey sets out the following balancing test for a rule 403 

review by an appellate court:

In reviewing trial court rulings which have admitted 

evidence of other crimes, 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.”8

Relevancy.

The State argued that Thomas’ conversations with Wolfgirl 

were “for sexual gratification purposes and that . . . goes to the 

relevance of it which is the motive, [or] absence of mistake or 

accident.” The State further argued that the Wolfgirl evidence 

was “relevant both for Counts 1 and 2 in their entirety.”

The district court apparently agreed with the State’s theory of motive (sexual gratification), but only as to count 1, 

§ 28-833. Justice Miller-Lerman argues, in her dissent as to 

motive, that the State added an element to § 28-833 that clearly 

does not exist. She goes on to note, however, that the Wolfgirl 

6 See State v. Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998).

7 Id.

8 Id. at 179, 575 N.W.2d at 390.
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evidence could have been relevant to count 2, § 28-320.02. I 

agree that the relevance of motive for the purpose of § 28-833 

is more attenuated than the relevance of motive for the purpose 

of § 28-320.02.

In any event, motive for either or both § 28-833 and 

§ 28-320.02 could have been demonstrated by introducing an 

edited version of exhibit 11. Several pages of text (for example, the January 15, 2017, texts exchanged from 9:50 to 10:25 

p.m.) demonstrating the real age of Wolfgirl, Thomas’ seeking 

photographs of Wolfgirl, and his interest in sexual gratification 

would have accomplished the State’s needs.

The majority contends that admission of the whole exhibit is 

proper where one part of the exhibit is admissible. However, I 

do not believe that State v. Huston9 or State v. Merrill10 stands, 

or should stand, for the proposition that unfairly prejudicial 

evidence should be admitted over the protections of rule 403 

because some minor interconnected piece of the nonprejudicial evidence is admissible. Such a holding would cut against 

the protections of rule 403 and render the protection void 

altogether.

Proper Purpose and Unfair Prejudice.

As Justice Miller-Lerman explains in her dissent, while 

a demonstration of motive is a proper purpose, the probative value of the entirety of exhibit 11 was outweighed by 

its danger of unfair prejudice. As discussed above, exhibit 11 

overwhelmed the direct evidence in this case. The evidence in 

exhibit 11 is more indecent, more lewd, more lascivious, and 

more obscene than the direct evidence of the charged crimes, 

and it is a communication with an actual 13-year-old girl. In 

my opinion, exhibit 11 made it highly likely that the jury was 

really finding Thomas guilty of the uncharged Wolfgirl crimes, 

as well as the two counts at issue.

9 State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).

10 State v. Merrill, 252 Neb. 736, 566 N.W.2d 742 (1997).
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Jury Instructions.

The fourth element of the Kirksey balancing test is “‘whether 

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

evidence only for the purpose for which it was admitted.’”11

In this case, the trial court did give the jury such an instruction. But, as in Kirksey, “[w]here the probative value of evidence is outweighed by its potential for unfair prejudice, its 

admission is error even if an appropriate limiting instruction 

is given.”12

DANGER OF CONFUSION

 OF ISSUES

Because there were two counts in this case, in its instructions to the jury, the trial court, by necessity, needed to distinguish between count 1 and count 2 by pointing out that the 

Wolfgirl evidence was to be used only for the limited purpose 

of showing motive and absence of mistake, and only as to 

count 1. Our case law is clear that jurors are presumed to have 

followed instructions: “Absent evidence to the contrary, it is 

presumed that a jury followed the instructions given in arriving 

at its verdict.”13

But admitting evidence that is not direct evidence of the 

charged counts, and is used for the purpose of one count but 

not another, requires the court to give complicated and elaborate jury instructions that further risk the probative value’s 

being substantially outweighed by the danger of confusion of 

the issues by the jury. Because there are two counts in this 

case, the danger of jury confusion is considerably increased 

when coupled with the danger of unfair prejudice and the 

cumulative nature of exhibit 11.

That confusion is demonstrated by the questions asked by the 

jury in this case and the court’s responses to those questions:

11 See State v. Kirksey, supra note 6, 254 Neb. at 179, 575 N.W.2d at 390.

12 Id. at 181, 575 N.W.2d at 391.

13 State v. Lester, 295 Neb. 878, 899, 898 N.W.2d 299, 316 (2017).
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Question #1

May we request and get transcripts of the interview of 

. . . Thomas by [law enforcement]?

Answer to Question #1

There will be no transcripts provided.

. . . .

Question #2

Does Count 2 hinge on the guilt of Count 1?

Answer to Question #2

Please refer to paragraph B of Instruction Number 4.

Question #3

What happens if we can’t come to a unanimous verdict 

on Count 1, Count 2 or both?

Answer to Question #3

You are instructed to continue your deliberations.

(Emphasis omitted.)

Likewise, the State’s closing argument appears to blur the 

distinction between the direct evidence of the charged crimes 

(dialogue with law enforcement agent pretending to be juvenile 

14 years old or younger) and the uncharged exhibit 11 evidence (dialogue with actual 13-year-old), hence adding to the 

confusion of issues.

CONCLUSION

Had the Wolfgirl evidence been given to the jury without 

the images included, or more ideally had only a page or two 

of the Wolfgirl transcripts been admitted, I would join the 

majority’s opinion. But that is not what happened in this 

case. In my opinion, the district court did not just abuse its 

discretion, it committed plain error in admitting exhibit 11 in 

its entirety.

As admitted, exhibit 11’s probative value was substantially 

outweighed by the danger of unfair prejudice, it was misleading to the jury, and it was needlessly cumulative. Indeed, if a 

more careful parsing of the rule 404 evidence in this case is 

not required, rule 403 becomes largely meaningless. I would 

reverse, and remand.
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Miller-Lerman, J., dissenti

I respectfully dissent.

In my view, exhibit 11 was not admitted into evidence for a 

proper purpose, and even if it was admissible, it should have 

been excluded because “its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading the jury.” Neb. Evid. R. 403, Neb. Rev. 

Stat. § 27-403 (Reissue 2016). Exhibit 11 is a textbook example of propensity evidence, which should not have been admitted as to count 1 and resulted in unfair prejudice. Its obvious 

effect was to poison the jurors against Thomas and distract 

them from their real task of weighing solely the evidence of the 

crime charged in count 1 in this case. Although Thomas would 

remain convicted of count 2, I would reverse, and remand for 

a new trial on count 1.

Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404(2) (Reissue 

2016), provides in part that “[e]vidence 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.” 

This is commonly referred to as “propensity evidence.” We 

have previously noted that “propensity evidence may lead a 

jury to convict, not because the jury is certain the defendant 

is guilty of the charged crime, but because it has determined 

the defendant is ‘“a bad person [who] deserves punishment,”’ 

whether or not the crime was proved beyond a reasonable 

doubt.” State v. Oldson, 293 Neb. 718, 744-45, 884 N.W.2d 10, 

37 (2016).

We have observed:

The admission of other acts evidence presents a special 

danger of confusion of the issues and undue prejudice. 

Not only might the jury infer action based on the defendant’s general lawbreaking character, but the jury might 

subconsciously penalize the defendant for the proven 

misdeeds. In other words, such evidence of other acts 

might encourage a “preventive conviction even if [the 

defendant] should happen to be innocent momentarily.”

Id. at 746-47, 884 N.W.2d at 39.
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The hazard of admitting propensity evidence is that it results 

in unfair prejudice.

Unfair prejudice means an undue tendency to suggest 

a decision based on an improper basis. Unfair prejudice speaks to the capacity of some concededly relevant 

evidence to lure the fact finder into declaring guilt on 

a ground different from proof specific to the offense 

charged, commonly on an emotional basis. When considering whether evidence of other acts is unfairly prejudicial, we consider whether the evidence tends to make 

conviction of the defendant more probable for an incorrect reason.

Id. at 751-52, 884 N.W.2d at 41-42.

Count 1 alleges a violation of Neb. Rev. Stat. § 28-833(1) 

(Reissue 2016), which generally prohibits use of an electronic 

device to transmit indecent language or visual depictions of 

sexually explicit conduct or to solicit a lewd act by an individual over 19 years of age addressed to a child under 16 

years of age or a police officer believed to be such a child. It 

is undisputed that the police officer, posing as an underage girl 

named “Logan,” texted Thomas, age 20, “Im 14 almost 15,” 

and Thomas sent messages to “Logan.”

The two text messages at issue in count 1 consisted of no 

graphics and contained these words in their entirety: (1) “If we 

did meet up what would you like to happen? Me just eating 

you out or more?” and (2) “The only thing I want to happen 

for now is maybe some kissing and eating you out that’s all.”

Perhaps lacking confidence in its case, the State offered 

and the court received exhibit 11 as to count 1. Exhibit 11 

reflects an entirely different uncharged matter consisting of 

50 pages of photographs and text messages exchanged in a 

chat room between Thomas and a 13-year-old girl, who went 

by the name “Wolfgirl.” The court found the “Wolfgirl” evidence inadmissible as to count 2, presumably because count 2 

required a finding that Thomas intended to engage in criminal 

sexual activity with “Logan,” and there is no indication in the 
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“Wolfgirl” evidence that Thomas was trying to actually meet 

with or engage in sexual activity with “Wolfgirl.”

With apologies to the reader, and because the majority 

merely describes it as a “50-page conversation, containing sexually explicit photographs and language,” a sample of exhibit 

11 must be briefly described to illustrate how its “probative 

value” was substantially outweighed by its unfair prejudice and 

how it confused the issues and, I believe, mislead the jury to 

convict Thomas of count 1 on an improper basis.

The direct relevant evidence of count 1 consisted of the two 

“eating you out” statements quoted above, whereas exhibit 11 

was voluminous—50 pages of text messages and graphics. 

The graphics include no less than half a dozen photographs of 

penises, a scrotum, a man and woman engaged in sexual intercourse, girls in bikini swimsuits, and a cartoon penis telling a 

joke. A small sample of the text in merely the first dozen pages 

of the 50 pages of exhibit 11 includes the following:

• “[W]hat turns you on[?]”

• “I’d love to pic [sic] you up and pound deep into your pussy 

as I kiss you[.]”

• “Would you like to see how excited my cock is for that?”

• “Mmm all seven inches ready to pound into you[.]”

• “Grinds against your ass and smacks it as I lean forward my 

cock head rubbing up and down your slit as I kiss and nibble 

on your neck my hands tweaking your nipples[.]”

• “I use you[r] hair as a handle and pound into you rubbing 

your clit[.]”

• “[A]re you close to cumming for daddy[?]”

• “Mmm slowly working my thumbs into you[r] ass as I pound 

into you slowly spreading it and then fingering it as I smack 

and massage your ass[.]”

• “Slowly kiss my way down to your pussy and then slowly 

start to lick up the juices leaking from your pussy[.]”

The texts after page 12 up to page 50 are similar. However, 

the later portions of exhibit 11 contain an exchange of texts 

describing a fantasy in which Thomas and Wolfgirl pretend 
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to be wolves, mate, and produce offspring and Thomas’ wolf 

character has sex with his young wolf daughter.

Exhibit 11, the unrelated chat room exchange with an actual 

girl, was obviously intended to inflame the jury and show 

that Thomas was a “bad person” with a propensity to commit 

crimes, see rule 404, so he must be guilty in this case. Why 

else submit 50 pages of graphic sexual material to establish the 

undisputed fact that Thomas sent two texts to a decoy saying 

“eating you out”? When it comes to influence, a picture from 

an unrelated matter is worth a thousand words.

I do not agree with the majority that the exhibit was admissible for a proper purpose. I am puzzled how the majority 

could reach the conclusion that exhibit 11 was admissible 

consistent with evidentiary jurisprudence regarding “motive” 

and “absence of mistake” under rule 404(2), not to mention 

minimum due process.

I believe the Wolfgirl material was not admissible as to 

count 1 to show motive. I do not think the Seventh Circuit 

cases relied on by the majority are persuasive in this case, 

because those cases involved charges that were more similar to count 2 in this case and required a showing that the 

defendant communicated with the decoy with the motive of 

engaging in criminal sexual activity with an underage person. 

Thus, the fact that the defendant had previously engaged in 

sex with a 14-year-old girl, U.S. v. Zahursky, 580 F.3d 515 

(7th Cir. 2009), or had sex with his ex-girlfriend’s 14-yearold child, U.S. Chambers, 642 F.3d 588 (7th Cir. 2011), could 

show motive to engage in criminal sexual conduct such as was 

charged in count 2 herein. But the same type of motive does 

not apply to count 1, which is the only charge to which the 

court admitted exhibit 11 in this case.

Also with regard to motive as a proper purpose for admission of the Wolfgirl evidence, I think that relying on motive 

as a proper purpose in a prosecution based on § 28-833 inadvertently adds an element to the charge that is not required 

under the statute. As I read § 28-833, it requires a showing that 
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the defendant knowingly and intentionally communicated with 

either a person the defendant knew to be an underage person or 

a decoy the defendant believed to be an underage person and 

that the content of the communication was of one of the types 

listed in the statute. As charged in count 1 in the present case, 

the communication needed to be one that either “use[d] . . . 

indecent, lewd, lascivious, or obscene language” or “offer[ed] 

or solicit[ed] any indecent, lewd, or lascivious act.” Nothing in 

the statute requires a determination of the defendant’s purpose 

or motive in making such a communication. This is in contrast to other statutes defining sex offenses, such as offenses 

requiring a finding of “[s]exual contact,” which is defined in 

Neb. Rev. Stat. § 28-318(5) (Reissue 2016) to “include only 

such conduct which can be reasonably construed as being for 

the purpose of sexual arousal or gratification of either party.” 

There is nothing in § 28-833 requiring that the communication be for the purpose of sexual arousal or gratification or 

any other specific purpose, and I therefore do not think a 

defendant’s motive in sending a prohibited communication is 

relevant under § 28-833.

As relevant to the charges in this case, I think motive could 

be relevant to a prosecution under Neb. Rev. Stat. § 28-320.02 

(Reissue 2016) as charged in count 2, which requires a showing that the communication was intended to solicit, coax, 

entice, or lure the other person to actually engage in an act 

that would constitute one of the specified sex offenses. Motive 

therefore could be relevant under § 28-320.02 to show that 

the defendant’s purpose was to engage in such activity for the 

purpose of sexual arousal or gratification. However, the district 

court did not admit the Wolfgirl evidence for the charge under 

§ 28-320.02, as charged in count 2, and instead instructed 

the jury to consider it only with respect to the charge under 

§ 28-833 as charged in count 1.

While the Wolfgirl evidence is more attenuated as to the 

charge against Thomas under § 28-320.02 than as to the charge 

under § 28-833, it is not because “motive” is more relevant 
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under § 28-833 than it is under § 28-320.02; instead, as discussed above, the opposite is true and motive is not relevant 

under § 28-833 but may be relevant under § 28-320.02. The 

reason I think the Wolfgirl evidence is more attenuated as 

to the charge under § 28-320.02, and the reason I think the 

district court determined that the Wolfgirl evidence was not 

admissible as to the charge under § 28-320.02, is because in 

the Wolfgirl conversations, there is no indication that Thomas 

was attempting to arrange a meeting with Wolfgirl or to actually engage with Wolfgirl in an act that would constitute one 

of the specified sex offenses. Therefore, the Wolfgirl evidence 

was not relevant to Thomas’ motive in his communications 

with “Logan” in connection with the charge under § 28-320.02. 

Because the district court admitted the Wolfgirl evidence only 

as to the charge under § 28-833, count 1, and because motive 

is not relevant to a charge under § 28-833, I do not think that 

motive was a proper purpose for admission under rule 404 in 

this case.

I believe the Wolfgirl evidence was not admissible to show 

absence of mistake. What is the relevance of the Wolfgirl evidence, which involved an actual girl under 16 years of age, to 

the issue of whether Thomas believed the officer, pretending 

to be the underage “Logan,” was an actual child? It is not 

a mistake to disbelieve a falsehood. Under § 28-833, there 

is an important distinction between cases where a defendant 

knows the recipient to be a child under 16 years of age and 

cases where a defendant mistakenly believes that the recipient, who is actually an adult peace officer, is a child under 16 

years of age. That distinction is particularly important when 

evidence involving one type of recipient, i.e., Wolfgirl—an 

actual girl—is offered to prove mens rea in a case involving the other type of recipient, i.e., a police decoy. Compare 

U.S. v. Zahursky, 580 F.3d 515 (7th Cir. 2009), in which the 

“other acts” evidence included the defendant’s statement to a 

different girl that the victim of the charged conduct was 14 

years old and in which said “other acts” evidence was hence 
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relevant to show that the defendant was not mistaken as to the 

victim’s age.

Even if the 50-page exhibit 11 were admissible, its probative 

value was far outweighed by the prejudice which occurred by 

admitting it. See rule 403. Given the nature of exhibit 11, in 

my view, exhibit 11 tended to make “conviction of [Thomas] 

more probable for an incorrect reason.” See State v. Oldson, 

293 Neb. 718, 752, 884 N.W.2d 10, 42 (2016). In his separate 

dissent, Chief Justice Heavican articulately sets forth the reasons why admission of the Wolfgirl evidence presents a danger 

of unfair prejudice that substantially outweighs the probative 

value of the evidence. I think that because of the extreme 

nature of the Wolfgirl evidence relative to the facts related to 

“Logan” that are the basis for the charges herein, there was an 

unacceptable risk that jurors would focus more on the Wolfgirl 

evidence than the evidence related to “Logan,” therefore posing a high danger of conviction on an improper basis, that is, 

a conviction based on Thomas’ communications with Wolfgirl 

rather than on his communications with “Logan.” I believe that 

it was an abuse of discretion to admit exhibit 11 and that such 

ruling constituted reversible error.

Although it was unfair to convict Thomas of count 1 based 

on propensity evidence and unkind to unnecessarily expose the 

jurors to the contents of the graphic sexually explicit 50-page 

exhibit 11, following reversal of Thomas’ conviction on count 

1, he would remain convicted of count 2, and double jeopardy 

does not prevent a retrial of Thomas on count 1 based on 

admissible evidence. See Lockhart v. Nelson, 488 U.S. 33, 109 

S. Ct. 285, 102 L. Ed. 2d 265 (1988). Our job is to adhere to 

the rules of evidence and to guard due process even when it 

may temporarily benefit a defendant.