CASSEL, J.
In this appeal from convictions and sentences for child abuse and sexual assault, we primarily address the district court's procedures regarding evidence of prior sexual offenses under Neb.Rev.Stat. § 27-414 (Cum.Supp.2012). Before trial, the court heard testimony from the accused's prior victims, compared the testimony to the current charges, and made a conditional ruling of admissibility. But the court prohibited the State from mentioning or presenting the § 27-414 evidence at trial until after the evidence of the current alleged victims. At trial, the State first presented the "current" evidence. Then, outside the presence of the jury, the State gave notice of its intent to present the § 27-414 evidence and the court made a final determination of its admissibility. We find no error in the procedures used by the district court, and we reject the other assignments of error challenging the court's rulings on a motion for mistrial and on jury instructions. Accordingly, we affirm.
Paul A. Valverde, born in February 1969, is the father of H.L. and the uncle of B.V., both of whom were born in March 1997. The State charged Valverde with two counts of third degree sexual assault of a child, second offense; four counts of child abuse; and four counts of first degree sexual assault of a child, second offense, relating to acts committed against H.L. and B.V. at several locations in Sarpy County, Nebraska, during periods of time between June 1, 2008, and December 10, 2010. The State later moved to dismiss one count of first degree sexual assault of a child, second offense. Because the issues in this appeal are largely limited to the district court's proceedings under § 27-414, we do not summarize various other aspects of the case.
In April 2011, the State moved to admit evidence of Valverde's commission of another act of sexual assault under § 27-414. The State alleged that Valverde sexually assaulted E.M. when she was 14 years old, fathered a child with her when she was 15 years old, and was convicted of third degree sexual assault of a child in 1995 for the sexual assaults committed on E.M. The State also alleged that in 1988, when Valverde was 20 years old, he molested his 11-year-old niece, T.K. Because T.K. did not testify regarding any sexual assault at trial, we omit further discussion of the evidence adduced at the § 27-414 hearing related to her.
During a hearing on the State's motion, evidence established that E.M., born in June 1979, met Valverde in 1993, when she was 14 years old and he was 24 years old. While E.M. was at Valverde's apartment during the summer of 1993, Valverde put his hands down her pants and inserted his fingers into her vagina. At other times while E.M. was 14 years old, Valverde inserted his penis into her vagina. The sexual intercourse continued when E.M. turned 15 years old, and she gave birth to Valverde's child when she was 15.
On June 28, 2011, the district court entered an order, finding by clear and convincing evidence that Valverde committed multiple sexual assaults upon E.M. under Neb.Rev.Stat. § 28-319 (Reissue 2008).
In October 2011, the State filed another motion seeking to admit evidence under § 27-414. The State alleged that Valverde sexually assaulted H.A., formerly known as H.R., when she was 13 years old and that he was convicted of third degree sexual assault of a child in 1995 for the sexual assault.
During a hearing on the motion, H.A., born in November 1981, testified that she agreed to babysit a child of Valverde's on one occasion when she was 13 years old. After putting the baby to bed, H.A. fell asleep on a couch and awoke to Valverde's touching her breasts. He also touched her legs and "bottom area." The next day, H.A. reported the incident to the police. The court received into evidence a certified copy of Valverde's conviction for the incident and a copy of the operative information in the instant case.
On November 23, 2011, the district court entered an order granting the State's motion. The court found that Valverde committed a sexual assault upon H.A. pursuant to Neb.Rev.Stat. § 28-320.01 (Reissue 2008). The court stated that H.A. was 13 years old when Valverde committed the sexual assault upon her, which was a similar age to H.L. and B.V. as alleged in two of the counts of the operative information and that Valverde was 19 years or older at the time of the prior and present alleged sexual assaults. The court further stated that
(Emphasis in original.) The court stated that H.A. would be allowed to testify at trial, subject to certain restrictions. Due to concerns about cumulative evidence, the court limited the State, in its case in chief, to either calling H.A. to testify or offering Valverde's prior conviction.
The district court compared a pretrial motion to allow evidence under § 27-414 to a motion in limine, because both call for a pretrial ruling to determine the admissibility of evidence. The court emphasized that its ruling allowing the State to present evidence of the prior sexual assaults was not a final ruling due largely to the lack of specificity of facts regarding the
The court further stated, "Although, only advisory to the parties, in the event [H.A.], [E.M.,] and/or [T.K.] do testify at trial, this Court shall issue a cautionary instruction as to their testimony."
A jury trial commenced, and consistent with the district court's order, the State did not allude to assaults on the prior victims in its opening statement. The State called B.V. as its first witness. B.V. testified that on July 4, 2009, he went with his family to his grandmother's house; Valverde and H.L. were also present. That evening, Valverde told B.V. to "check and see if [B.V.] had sperm." B.V. "checked" by masturbating, and then Valverde stroked B.V.'s penis. While B.V. had an erection, Valverde pulled down H.L.'s pants and underwear and inserted B.V.'s penis into H.L.'s vagina. According to B.V., Valverde then pushed on B.V.'s back in an up-and-down motion. B.V. felt uncomfortable, so he removed his penis so that it was touching H.L.'s leg when Valverde was not looking. B.V. testified that Valverde said B.V. was "not doing it right" and that Valverde would "show [B.V.] how it's done." Valverde then told B.V. to suck on H.L.'s breasts while Valverde had vaginal intercourse with H.L.
The State next called H.L. to testify. H.L. began living with Valverde when she was 12 years old. In approximately June 2009, they moved to H.L.'s grandmother's home, and Valverde began having sexual intercourse with her a few weeks later. H.L. testified that Valverde would motion her to go downstairs, she would lie on the floor, and Valverde would remove her clothes and have intercourse with her. According to H.L., Valverde would ejaculate onto H.L.'s stomach and then she would go to the bathroom to clean up. H.L. testified that Valverde would also touch her breasts.
H.L. testified that in the late evening of July 4, 2009, Valverde motioned her to go downstairs. She went downstairs and lay on the floor. According to H.L., B.V. came downstairs and began removing his clothes at Valverde's direction. H.L. testified that Valverde directed B.V. to get on top of H.L. and put his penis into her vagina and that Valverde guided B.V.'s penis into her vagina. H.L. testified that at some point, Valverde told B.V. to get off of H.L. and said that B.V. was "not doing it right." B.V. then began sucking on H.L.'s breasts, and Valverde had vaginal intercourse with her. They lived at H.L.'s grandmother's house until October 2009, during which time Valverde had intercourse with H.L. two or three times a week. H.L. testified that the sexual intercourse continued when H.L. and Valverde moved to an apartment. The acts took place in Valverde's bedroom and regularly occurred four or five times a week. Valverde also made H.L. perform oral sex on him on occasion.
While the jury was absent from the courtroom, the State announced that E.M. was the next witness it would like to call. Valverde's counsel argued that under Neb. Rev.Stat. § 27-403 (Reissue 2008), the probative value of the evidence of the prior sexual assault did not outweigh the danger of prejudice. The district court responded:
Valverde moved for a mistrial based upon the procedures used by the court with respect to the prior victims. The court denied the motion.
E.M. is B.V.'s mother. She provided testimony similar to that at the hearing under § 27-414. Valverde did not request a limiting instruction following E.M.'s testimony.
Outside the presence of the jury, the State offered a certified copy of Valverde's prior conviction for third degree sexual assault of a child regarding H.A. Valverde objected, arguing that the exhibit's prejudicial effect to Valverde was outweighed by its probative value and that it would be better for the State to bring in the witness to testify so the jury could make a credibility determination. The court overruled the objection. Valverde objected when the State offered the exhibit into evidence, and the court overruled the objection. Valverde did not request a limiting instruction concerning the exhibit.
The State called T.K. to testify, but because T.K. had trouble recalling dates and whether Valverde was 19 years of age at the time of the incidents, the court sustained an objection by the defense. As mentioned earlier, T.K. ultimately did not testify regarding any sexual assault by Valverde. After the State rested, Valverde rested without presenting any evidence.
During the jury instruction conference, Valverde objected to instruction No. 13 regarding limited purpose but the district court responded that the instruction would be given. Valverde also took issue with instruction No. 15, the instruction involving
The jury returned a verdict of guilty on all counts. The court subsequently imposed sentences of incarceration.
Valverde timely appeals. Pursuant to statutory authority, we granted the State's petition to bypass the Nebraska Court of Appeals.
Valverde assigns error to the procedures used by the district court in receiving evidence under § 27-414, to the court's failure to grant a mistrial, and to the court's giving of certain jury instructions and refusal of others.
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.
The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion.
Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.
This is the first appeal in which we have focused on evidence of "another offense or offenses of sexual assault" relying solely upon § 27-414. Prior to our recent decision in State v. Kibbee,
In Kibbee, we addressed evidence offered under both §§ 27-404 and 27-414. There, the State filed a notice of intent to offer prior bad acts evidence pursuant to § 27-404(2) and a notice of intent to offer evidence pursuant to § 27-414 of similar offenses committed by the defendant. The trial court analyzed the admission of the evidence under § 27-404, but we determined that the evidence was admissible under § 27-414 and that we did not need to conduct a separate analysis under § 27-404(2).
In the instant appeal, neither the parties nor the court considered the evidence at issue under § 27-404; thus, § 27-404 is not implicated in this appeal. Significant consequences follow from the State's reliance solely upon § 27-414.
We begin by setting forth the complete language of the statute at issue. Section 27-414 provides:
We next summarize the procedures implemented by the district court. After the State filed its motions to use § 27-414 evidence, the district court held hearings at which evidence of prior sexual assaults was adduced.
During the pretrial hearings, the court heard testimony from the prior victims. Although the court did not hear testimony from H.L. or B.V., the court compared the evidence of the prior sexual assaults to the current charges contained in the information. Based on similarities between the prior sexual assaults and the current charges, the court stated that the prior victims would be allowed to testify at trial. However, the court emphasized that its ruling allowing the State to present evidence of the prior sexual assaults was not a final ruling on the ultimate admissibility of the evidence. The court prohibited the State from presenting any evidence at trial of the prior sexual assaults until after the State presented evidence as to the alleged sexual assaults against H.L. and B.V.
After such evidence was presented at trial and the State alerted Valverde and the court of its intent to call a prior victim as a witness, the court made a further determination, outside the presence of the jury, of the admissibility of the prior sexual assaults.
In essence, the district court made conditional rulings at the pretrial hearings, reserving final rulings on the admissibility of the evidence under § 27-414 until trial. In doing so, the court followed a framework urged in a legal treatise:
The court's procedures ensured that the evidence of the current acts came in at trial — in the presence of the jury — and in making a final determination on the admissibility of evidence under § 27-414, the court compared the prior acts to the current acts. The procedures also ensured that none of the § 27-414 evidence — which must be presented to the court outside the presence of the jury — was disclosed to the jury until after the court made a final determination on admissibility.
Section 27-414 is patterned after Fed. R.Evid. 413. But § 27-414(1) adds a requirement, not included in the federal rule, of "clear and convincing evidence otherwise admissible under the Nebraska Evidence Rules that the accused committed the other offense or offenses." The Nebraska statute also explicitly requires a hearing outside the presence of a jury and a balancing under § 27-403.
We now consider Valverde's first assignment of error as it relates to pertinent subsections of § 27-414.
Under § 27-414(1), evidence of the accused's prior commission of another offense of sexual assault is admissible if there is clear and convincing evidence that the accused committed the other offense. Valverde's brief does not appear to contest whether the State met the clear and convincing evidence standard. And, as the State observes, "Valverde left behind both a human and paper trail that made his prior sexual assaults matters of unquestioned historical fact. He fathered a child by sexually assaulting [E.M.] Valverde was criminally convicted for sexually assaulting [H.A.], as established by court conviction records."
Section 27-414 allows evidence of prior offenses of sexual assault to prove propensity.
Under § 27-414(2), the prosecuting attorney is to disclose to the accused, at least 15 days before trial, the evidence that is expected to be offered. During oral argument, Valverde's counsel conceded that he was given notice at least 15 days before trial of the evidence the State intended to offer. Valverde does not claim in his brief that the State did not comply with § 27-414(2).
The main thrust of Valverde's first assignment of error relates to the requirements of § 27-414(3). We examine them in turn.
Section 27-414 requires a hearing outside the presence of the jury before the court admits evidence of the accused's commission of another offense of sexual assault. Valverde argues that the district court's procedures violated this statutory mandate. We disagree.
The statute does not impose any timing requirement as to when this hearing must be held. The district court held two hearings prior to trial at which it heard evidence of the prior sexual assaults. The court compared the evidence adduced during those hearings to the charges in the current case. The court's order after the second hearing specifically stated that it was not a final ruling on the ultimate admissibility of the prior sexual assaults. It made its final determination after hearing the trial testimony of H.L. and B.V. and comparing that testimony to the testimony of E.M. and H.A. adduced during the hearings pursuant to § 27-414. The final determination followed additional arguments made outside the jury's presence.
The court's procedures prevented the jury from hearing potentially inadmissible evidence of prior sexual assaults until the court made its final ruling on admissibility. We find no abuse of discretion by the court in this regard.
Much of Valverde's argument focuses on the required § 27-403 balancing. Section § 27-414(3) sets forth factors that the court may consider in balancing, to which we now turn.
The first factor, the probability that the other offenses occurred, is not seriously disputed. And as discussed above, a child was born as a result of Valverde's sexual assault of E.M. and a criminal conviction resulted from Valverde's sexual assault of H.A. This factor weighs in favor of admission of the prior sexual assaults.
Valverde relies heavily on the gap in time between the prior and the current offenses. The assaults against E.M. began in 1993, and the assault against H.A. occurred in 1995, whereas the assaults against H.L. occurred beginning in 2008, and the assault against B.V. occurred in 2009.
The Nebraska appellate courts have considered the remoteness of time under § 27-414 on two occasions. In Kibbee,
We have allowed admission of evidence even more remote in time in the context of § 27-404. In Kibbee, we discussed other cases allowing evidence of prior crimes committed 27 years earlier,
Remoteness in time is just one factor in the § 27-403 balancing. Here, Valverde last sexually assaulted H.L. approximately 17 years after he first began sexually assaulting E.M. However, the pattern of generational assaults within the same family at similar ages — as further discussed below — weighs heavily against Valverde's argument.
Valverde complains that the district court could not have compared the current offenses to the prior offenses because "there were no facts of the current case provided for comparison."
Valverde also places great weight on the differences between the prior and current offenses. He points out that the assaults occurred at different locations, that the
But we find much more significance in the similarities. While the assaults occurred at different locations, the prior and current assaults all occurred at the place where Valverde was living. And while the ages of the victims may have varied, they were of similar adolescent ages: E.M. was 14 years old when the assaults began, H.A. was 13 years old, B.V. was 12, and H.L. was sexually assaulted from the time she was 12 until the time she reported the assaults when she was 14. All of the assaults occurred when Valverde was at least 24 years of age. And while the nature of some of the acts differed, other acts were the same. Valverde digitally penetrated and repeatedly had vaginal intercourse with E.M. He touched H.A.'s breast and "bottom area" and told her that he wanted to have sex with her. Valverde touched H.L.'s breasts, repeatedly had vaginal intercourse with her, and made her perform oral sex on him. Valverde touched B.V.'s penis and prompted him to engage in intercourse with H.L. All of the victims knew Valverde, and there was a family-like relationship. Valverde was living with E.M.'s father when Valverde first began sexually assaulting E.M. Valverde and E.M. had a child together, and H.A. was babysitting that child at the time that Valverde assaulted her. H.L. is Valverde's daughter. And B.V., E.M.'s son, is Valverde's nephew.
We noted a number of similarities in Kibbee
Valverde argues that under Kibbee and Carter, overwhelming similarity between the prior and current offenses is required. In Kibbee, we stated: "We held that evidence of prior acts may be admitted where there are `an overwhelming number of significant similarities,' but `"[t]he term `overwhelming' does not require a mechanical count of the similarities but, rather, a qualitative evaluation."'"
Valverde gives the "overwhelming similarity" language too much weight. As we mentioned at the start of our analysis, this case deals only with admission of evidence
After balancing the above factors, the probative value of Valverde's prior sexual assaults was not outweighed by the danger of unfair prejudice. We conclude that the district court did not abuse its discretion in allowing evidence of Valverde's prior sexual assaults against E.M. and H.A.
Valverde argues that the district court should have granted his motion for mistrial when the court decided to admit the § 27-414 evidence in the middle of the jury trial. After the court heard the trial testimony of H.L. and B.V., the court determined that the evidence of prior sexual assaults was admissible. Valverde objected and moved for a mistrial. He argued that the procedure placed the court in a position of judging the credibility and veracity of H.L. and B.V. Valverde further argued:
A mistrial is properly granted in a criminal case where an event occurs during the course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.
But, here, the timing of Valverde's motion is important. At the time that Valverde moved for a mistrial, the jury had not heard any evidence of other sexual assaults. There was no reason to grant a mistrial at the time of Valverde's motion, and he did not make a similar motion after the evidence of the prior sexual assaults was admitted. Although we do not believe that the motion would have had merit if made later, it clearly and definitively lacked merit at the time when it was made. We conclude that the district court did not abuse its discretion in denying Valverde's motion for mistrial.
Valverde attacks the absence of a limiting instruction at the time the evidence of the prior sexual assaults was received. This contention lacks merit for two reasons. First, a limiting instruction was not requested. Second,
Valverde did not request or propose any such instruction before, during, or after introduction of the evidence of the prior sexual assaults. In the absence of a request for a limiting instruction, there is no reversible error in a court's failure to give a limiting instruction.
Even if there had been a request, a limiting instruction was unnecessary. As one treatise explains, "No such limiting instruction would be necessary under [§ 27-414] because the evidence is admissible to prove sexual propensity, even though it may also be relevant for ... secondary purposes such as proving intent."
Valverde assigns error to the district court's overruling of his objection during the jury instruction conference to instruction No. 13, the instruction on limited purpose. Instruction No. 13 stated: "During this trial I called your attention to some evidence that was received for specified limited purposes; you must consider that evidence only for those limited purposes and for no other." Valverde argues that instruction No. 13 was "prejudicially insufficient given the nature of the [§] 27-414 evidence."
Valverde's argument is problematic for two reasons. First, instruction No. 13 did not address the evidence under § 27-414. Instead, it was directed at the times during trial when the court specifically informed the jury that it was receiving certain evidence for a limited purpose. But no such advisement was given after evidence of the assaults on E.M. or H.A. Second, Valverde seems to be asserting a different ground for his objection than that made during the jury instruction conference. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground.
But Valverde did not request this instruction at closing. And we find no error in the court's use of a pattern jury instruction. Whenever an applicable instruction may be taken from the Nebraska Jury Instructions, that instruction is the one which should usually be given to the jury in a criminal case.
Valverde argues that instruction No. 15, which dealt with the evidence of prior sexual assaults, was prejudicially insufficient to address the § 27-414 evidence. Instruction No. 15 provided:
During the jury instruction conference, Valverde quarreled that the instruction "inferred [his] disposition or propensity to commit the offense" and that there "should be some reference to the prior other acts, or may have committed other acts in the past, or previously so that we are certain that the jury doesn't assume that the acts that you're referring to are the ones involved in the information in this case."
All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.
Valverde contends that the district court should have given the limiting instruction that was given in Kibbee.
The instruction given was a product of the prosecution's having adduced evidence under both §§ 27-404 and 27-414. Much of the language contained in the Kibbee instruction would not be appropriate here. The district court did not err by failing to give a written limiting instruction similar to that given in Kibbee.
Valverde contends that the district court erred in refusing to give his proposed instruction addressing evidence of the prior sexual assaults. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.
Valverde's proposed instruction No. 1 provided:
Valverde's proposed instruction No. 1 would have excluded his propensity to commit the offenses charged in the information — which is precisely the purpose for which § 27-414 was enacted. Because his proposed instruction No. 1 stated that the prior sexual assault evidence could not be considered for his propensity to commit the current offenses, it contained an incorrect statement of law, and the district court did not err in refusing to give it. This is sufficient to resolve the argument on appeal, and we do not address any other aspect of the proposed instruction.
We find no abuse of discretion by the district court in its procedures for determining the admissibility of evidence of Valverde's prior sexual assaults. Because
AFFIRMED.