Summary
In Baker, the victim, a student of a beauty school in downtown Omaha, was waiting for her bus in the early morning at the corner of 45th and Wirt Streets on January 20, 1983.
Summary of this case from State v. NewmanOpinion
No. 83-634.
Filed August 3, 1984.
1. Criminal Law: Evidence: Prior Acts: Proof. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 2. Criminal Law: Evidence: Prior Acts: Appeal and Error. The admissibility of evidence of other crimes lies largely within the discretion of the trial court.
Appeal from the District Court for Douglas County: PAUL J. HICKMAN, Judge. Affirmed.
Thomas M. Kenney, Douglas County Public Defender, and Victor Gutman, for appellant.
Edgar B. Baker, Jr., pro se.
Paul L. Douglas, Attorney General, and Lynne Fritz, for appellee.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, SHANAHAN, and GRANT, JJ., and BRODKEY, J., Retired.
Appellant, Edgar B. Baker, Jr., was convicted after a jury trial in the district court for Douglas County, Nebraska, of both counts of a two-count information: attempted first degree sexual assault and false imprisonment in the first degree. The trial judge sentenced the appellant to a term of from 3 to 5 years on count I and a concurrent term of 2 years on count II, with credit for 202 days served in the county jail.
Appellant assigns as the single error in this court that the district court erred in overruling defendant's objections to the testimony of Jacquie B., Desiree L., and Helen O. because the purpose of such testimony was to present evidence of other crimes, wrongs, or acts by the defendant, in violation of Neb. Rev. Stat. § 27-404(2) (Reissue 1979).
A recitation of the facts is necessary for a resolution of this case. At the time of the incident on January 20, 1983, the complaining witness, a 19-year-old female, was a student at the Capitol Beauty School located in downtown Omaha, Nebraska. Her schoolday generally started at 8:30 a.m. and ended in the late afternoon. As was her custom, the complainant was waiting for Metro Area Transit bus No. 3 at the corner of 45th and Wirt Streets, expecting to catch the 7:48 a.m. bus.
Shortly before the bus was due to arrive, the appellant, hereafter Baker, driving a 1973 blue Ford Thunderbird, stopped in the vicinity of the bus stop, spoke to the complainant, and asked her if she needed a ride. Baker was the sole occupant of the car. Baker stated that he was planning to go to the Woodmen Tower in downtown Omaha and could give the complainant a ride. The complainant accepted. After proceeding a couple of blocks the complainant testified that she asked Baker what his name was, to which he replied, "All the ladies call me Stud." At that point the complainant looked over and noticed that the defendant had pulled his penis out and was masturbating. Baker then suggested that they stop the car for the purpose of having sexual relations. The victim refused, and repeatedly stated that she had to go to school. Baker appeared to be driving in a direct route downtown; however, he then drove past the downtown exit of the Interstate. Baker continued urging the complainant to engage in sexual relations with him, and she continued to refuse. Baker ultimately drove to Hanscom Park, where he stopped the car and attempted to force the victim to engage in fellatio. The victim resisted. Baker then took her hand and masturbated until he climaxed. He then drove the complainant to school.
Complainant testified that she did not try to leave the vehicle because she did not think she could successfully get away from Baker. Rather, she testified that she tried to talk him out of engaging in sexual relations by indicating that she had to get to school, but she would see him at a later time.
In contrast, Baker testified that at 7:40 a.m. on January 20, 1983, he was returning home after driving his wife to work at Mutual of Omaha. He decided to return downtown to run errands. A woman, the complainant, who was walking on the sidewalk gestured at him, so he asked her if she wanted a ride. She accepted, and then began fondling his genitals to stimulate him. Baker testified that he drove to Hanscom Park because the woman had expressed a desire to engage in sexual relations. At the park, according to Baker, she continued fondling him until he climaxed. He denied any attempt to force the victim to have oral sex. He testified that he then drove her to school.
The testimony of the three minor girls was offered and received over Baker's objection; it can be summarized as follows.
Jacquie B., a 14-year-old student at Monroe Junior High School, was walking to school at approximately 7 a.m. on the morning of December 13, 1982, where she intended to meet a friend, Desiree L. As she approached the school, located at 52nd and Bedford Streets, a car, which she described as a blue LTD four-door, drove up to her. There was one black man in the car who told her that his name was "Stud." He then asked her if she wanted to come over to his house for about 20 minutes. She declined and said she was going to school. The car drove off, and Jacquie found her friend, Desiree L., to whom she explained the incident. Jacquie saw the car again that day and pointed it out to Desiree, who wrote down the license plate number. Jacquie identified Baker both in the courtroom and in a previous photo array as the man in the car who had called himself "Stud."
Desiree L., also a 14-year-old student at Monroe Junior High School, testified that she went to school at approximately 7 a.m. on December 13, 1982, to meet Jacquie B. Jacquie told her that some guy had tried to pick her up, and then pointed the car out to her when she saw it again. Desiree testified that the driver of the car was a black man with a mustache who was alone in the vehicle. She wrote down the license plate of the vehicle, which she testified was "1-ND870."
Desiree further testified that on January 19, 1983, she saw the same car with the same license number on approximately 48th and Maple Streets at about 3 p.m. as she was walking home from school. The same person as the one she saw on December 13, 1982, was driving the car. The man in the car said to her, "Hey, Baby, get in my car." She kept on walking.
Helen O. was a 16-year-old student at Benson High School. At approximately 3:30 p.m. on January 10, 1983, at 50th Avenue and Maple Street, as she was walking home from school, a car approached her, turned into a side street, and stopped. The driver asked her if she would like a ride home. She declined, and the driver said that his name was "Stud" and he was lonely so he would like to spend some time with her. She again declined and kept on walking. The man was black; he had a mustache and the car was a dark color. Two days later, while she was walking home, she saw the same car driven by a man who appeared to be the same. She wrote down the license number of the car, which was "1-ND870."
Defendant testified that he drives a dark blue, two-door Ford Thunderbird with license number Nebraska 1-ND870.
The incidents established by the testimony of Jacquie B., Desiree L., and Helen O. all took place within a few blocks from where Baker picked up the complainant. The incidents all took place shortly before the acts leading to Baker's conviction, in a time frame of from 5 weeks to 1 day before the crimes charged. All three girls were between 5 feet and 5 feet 4 inches in height, with a medium or slender build. The victim was approximately 5 feet 5 inches tall and weighed 105 pounds. She was wearing a parka and carrying a sack and a tote bag. There are three schools located within two blocks of the location where Baker offered her a ride. Baker told the victim that she looked younger than 20, and he spoke to her as though she were a child.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
27-404(2).
As we observed in State v. Morosin, 200 Neb. 62, 67, 262 N.W.2d 194, 196-97 (1978):
Rule 404(2) is simply a restatement of previous Nebraska law. In State v. Casados, 188 Neb. 91, 195 N.W.2d 210, this court stated the general rule that evidence of other crimes than that with which the accused is charged is not admissible in a criminal prosecution. We said: "One basic reason for the rule is that such evidence is apt to be given too much weight, rather than too little, by the jury, thus resulting in the conviction of a defendant because he is a bad man and not because of his specific guilt of the offense with which he is charged." In that case we also reaffirmed the rule that evidence of other crimes, similar to that charged, is relevant and admissible when it tends to prove a particular criminal intent which is necessary to constitute the crime charged.
In State v. Plymate, 216 Neb. 722, 725, 345 N.W.2d 327, 329 (1984), this court quoted with approval from State v. Hitt, 207 Neb. 746, 301 N.W.2d 96 (1981):
"[S]exual crimes have consistently been classified as those in which evidence of other similar sexual conduct has been recognized as having independent relevancy, and courts generally hold that evidence of other sex offenses by the defendant may be admissible, whether the other offense involves the complaining witness or third parties."
In Plymate we approved the reception of a description of an interview wherein the defendant admitted some 300 or more sexual assaults on children and described in detail the seduction of the children. The details closely corresponded with the evidence in the principal crime.
In Hitt, supra, we held as admissible proof of previous and continuing sexual contacts with a brother of the complainant.
For recent nonsexual crimes where we have held admission of other criminal acts admissible, see State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981) (admission of previous assault of a victim by shotgun in prosecution for murder and assault by poison); State v. Ellis, 208 Neb. 379, 303 N.W.2d 741 (1981) (admission of attempted sexual assault of another at or near the scene where the victim of the crime — manslaughter — was found); and State v. Morosin, supra (admission of photographs and testimony of social worker of injuries to 3 1/2-year-old son in custody of defendant charged with child abuse of 7-month-old child).
Though the trial court limited the evidence received to the jury's consideration for the purpose of determining the motive and intent only, the evidence was clearly admissible to establish preparation, plan, and identity as well as motive and intent.
Generally, the admissibility of evidence of other crimes lies within the sound discretion of the trial court. State v. Ellis, supra. We find that the reception of the relevant evidence was not prejudicial to Baker when compared with its probative effect. We therefore affirm.
AFFIRMED.