2006 Nebraska Revised Statutes - § 27-404 — Rule 404. Character evidence; not admissible to prove conduct; exceptions; evidence of other crimes, wrongs, or acts; standard of proof.

Section 27-404
Rule 404. Character evidence; not admissible to prove conduct; exceptions; evidence of other crimes, wrongs, or acts; standard of proof.

(1) Evidence of a person's character or a trait of his or her character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion, except:

(a) Evidence of a pertinent trait of his or her character offered by an accused, or by the prosecution to rebut the same;

(b) Evidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor. In the case of sexual assault, reputation or opinion evidence of the past sexual behavior of the victim of the sexual assault will not be admissible; or

(c) Evidence of the character of a witness as provided in sections 27-607 to 27-609.

(2) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(3) When such evidence is admissible pursuant to this section, in criminal cases evidence of other crimes, wrongs, or acts of the accused may be offered in evidence by the prosecution if the prosecution proves to the court by clear and convincing evidence that the accused committed the crime, wrong, or act. Such proof shall first be made outside the presence of any jury.

Source:

Laws 1975, LB 279, § 14

Laws 1984, LB 79, § 2

Laws 1993, LB 598, § 1

Annotations:

Where a defendant claims that the act of killing a victim was the result of a violent and overriding reaction to a homosexual approach by the victim, evidence of the victim's prior similar homosexual activities may be admissible under certain circumstances as corroborative of the defendant's claim that there was a lack of deliberation or premeditated malice on his or her part necessary to convict of first degree murder. State v. Escamilla, 245 Neb. 13, 511 N.W.2d 58 (1994).

Evidence of a murder victim's homosexuality may be admissible as corroborative of a defendant's claim of self-defense from a homosexual assault, provided such evidence as tendered is probative of that defense. State v. Lowe, 244 Neb. 173, 505 N.W.2d 662 (1993).

The trial court did not err in admitting evidence implying a romantic relationship between defendant and the female host of a party at which defendant broke the jaw of another man to rebut defendant's claimed motive of self-defense. State v. Stueben, 240 Neb. 170, 481 N.W.2d 178 (1992).2. Prior bad act evidence

Subsection (2) of this section is an inclusionary rule permitting the use of relevant, specific acts for all purposes except to prove character of a person in order to show that such person acted in conformity with character. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994); State v. Kenny, 224 Neb. 638, 399 N.W.2d 821 (1987); State v. Robb, 224 Neb. 14, 395 N.W.2d 534 (1986); State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985); State v. Craig, 219 Neb. 70, 361 N.W.2d 206 (1985).

Subsection (2) of this section is an inclusionary rule permitting the use of relevant other crimes, wrongs, or acts for all purposes except to prove character of a person in order to show that such a person acted in conformity with that character; it may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question. State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993); State v. Kern, 224 Neb. 177, 397 N.W.2d 23 (1986).

Under subsection (2) of this section, the acts of a third person are irrelevant and inadmissible for proof of motive or intent of an actor. The "other crimes, wrongs, or acts" must be those of the accused. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).

In prosecution for incest, testimony of both the victim and her brother was relevant and material to prove opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake, all legitimate purposes for admitting testimony of prior bad acts. State v. Martin, 242 Neb. 116, 493 N.W.2d 191 (1992).

Subsection (2) of this section is an inclusionary rule permitting the use of uncharged misconduct evidence if the evidence is relevant for any purpose other than to show a defendant's propensity or disposition to commit the crime charged. State v. Hernandez, 242 Neb. 78, 493 N.W.2d 181 (1992).

It is firmly established that subsection (2) of this section is a rule of inclusion which permits the use of relevant other crimes, wrongs, or acts for all purposes except to prove the character of a person in order to show that such person acted in conformity with that character. State v. Styskal, 242 Neb. 26, 495 N.W.2d 313 (1992); State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).

Subsection (2) of this section permits evidence of other crimes, wrongs, or acts if such is relevant for a purpose other than to show a defendant's propensity or disposition to commit the crime charged. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Methe, 228 Neb. 468, 422, N.W.2d 803 (1988).

Evidence of other crimes is not admissible unless there is sufficient evidence that the crimes were actually committed and that defendant committed them to warrant submission to a jury if the other crimes had been charged. State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992).

Under subsection (2) of this section, prior transactions involving defendant's acceptance of stolen property in exchange for drugs are relevant and admissible to establish defendant's knowledge that the property which is the subject of the prosecution is, in fact, stolen. State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991).

In prosecution for first degree sexual assault of defendant's infant granddaughter, evidence of similar sexual conduct with stepdaughter 27 years earlier under extremely similar circumstances held admissible to show absence of mistake or accident. State v. Stephens, 237 Neb. 551, 466 N.W.2d 781 (1991).

Subsection (2) of this section allows the admission of evidence of other crimes, wrongs, or acts for the purpose of establishing identity or a particular method of operation. State v. Evans, 235 Neb. 575, 456 N.W.2d 739 (1990).

Under subsection (2) of this section, evidence of other criminal acts which involve or explain the circumstances of the crime charged, or are integral parts of an overall occurrence, may be admissible. It is competent for the prosecution to put in evidence all relevant facts and circumstances which tend to establish any of the constituent elements of the crime with which the accused is charged, even though such facts and circumstances may prove or tend to prove that the defendant committed other crimes. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

It is well established that subsection (2) of this section is an inclusionary rule permitting the use of relevant evidence of other crimes, wrongs, or acts for purposes other than to prove the character of a person in order to show that such person acted in conformity with that character. Thus, this section permits evidence of other crimes, wrongs, or acts if such is relevant for a purpose other than to show defendant's propensity or disposition to commit the crime charged. State v. Donhauser, 231 Neb. 114, 435 N.W.2d 186 (1989); State v. Stewart, 219 Neb. 347, 363 N.W.2d 368 (1985).

Evidence of prior bad acts is an attempt to show character contrary to subsection (1) of this section. State v. Lenz, 227 Neb. 692, 419 N.W.2d 670 (1988).

Subsection (2) of this section is an inclusionary rule of evidence permitting the use of relevant other crimes, wrongs, or acts for the purposes enumerated. Evidence of prior uncharged sexual assault was admissible to show location, scheme, plan, and motive. State v. Nesbitt, 226 Neb. 32, 409 N.W.2d 314 (1987).

This section is an inclusionary rule which permits the use of relevant other crimes, wrongs, or acts if such is relevant for any purpose other than to show defendant's propensity or disposition commit the crime charged. Certain tape-recorded statements were admissible to show why witness failed to promptly report her accusations against the defendant. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

Under this section, a defendant's attempted intimidation or intimidation of a State's informant or witness is relevant evidence concerning the defendant's conscious guilt that a crime has been committed, and is a circumstance from which an inference may be drawn that the defendant is guilty of the crime charged. State v. Clancy, 224 Neb. 492, 398 N.W.2d 710 (1987).

The admissibility of evidence of other crimes lies largely within the discretion of the trial court. State v. Baker, 218 Neb. 207, 352 N.W.2d 894 (1984).

Evidence that the defendant was previously involved in a marijuana harvesting scheme is not admissible to prove a later, unconnected, possession charge. State v. Coca, 216 Neb. 76, 341 N.W.2d 606 (1983).

Past patterns of behavior are admissible in cases involving termination of parental rights, when relevant to motive, opportunity, intent, preparation, plan, knowledge, and absence of mistake or accident. In re Interest of Hollenbeck, 212 Neb. 253, 322 N.W.2d 635 (1982).

In trial on charges of assault where knife was used in assault, evidence that defendant had earlier the same day struck someone with his fists was not admissible under this section since it did not tend to prove intent, motive, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident as to assault with knife. State v. Stewart, 209 Neb. 719, 310 N.W.2d 706 (1981).

Evidence of prior shotgun assault of intended victim's family clearly admissible under this section. State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981).

Evidence of prior criminal acts was admissible to explain the circumstances of the crime charged, to explain the failure of the victim to make a prompt complaint, and to show a continuous pattern of sexual conduct by the defendant toward both his sons. State v. Hitt, 207 Neb. 746, 301 N.W.2d 96 (1981).

Evidence of prior similar offenses properly received in a nonjury child abuse action where an element of the crime involved motive and criminal intent. State v. Morosin, 200 Neb. 62, 262 N.W.2d 194 (1978).

Evidence of bank account shortages admissible to prove intent in forgery conviction. State v. Metzger, 199 Neb. 186, 256 N.W.2d 691 (1977).

Insufficient funds checks evidencing crimes other than one defendant charged with were admissible to show guilty knowledge and course of conduct. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977).

Evidence of defendant's prior conviction held admissible to confirm identity, motive, and method of operation. State v. Moore, 197 Neb. 294, 249 N.W.2d 200 (1976).

Pursuant to subsection (2) of this section, an accused may offer evidence of prior crimes, wrongs, or acts of a third party for a purpose other than proving the propensity of the person to commit the crime charged. State v. Gardner, 1 Neb. App. 450, 498 N.W.2d 605 (1993).

Under subsection (2) of this section, evidence regarding defendant's past drug dealings with informant was admissible to show knowledge and intent of defendant to commit the crime charged. State v. Benitez, 1 Neb. App. 310, 493 N.W.2d 353 (1992).3. Probative value determination

If evidence of a prior conviction is relevant to establish elements of another crime, and if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, the State may prove a prior conviction in any permissible manner. Subsection (2) of this section is subject to the overriding protection of section 27-403. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994).

In reviewing the admission of prior acts, the reviewing court should consider the relevance of the evidence, the purpose for its introduction, and the probative value balanced against its potential for unfair prejudice. State v. Farrell, 242 Neb. 877, 497 N.W.2d 17 (1993).

Where a police officer testified to an informant's drug purchase from a third party who went to defendant's home prior to completion of the transaction, the potential for unfair prejudice outweighs its probative value. However, the erroneously admitted evidence was cumulative and harmless beyond a reasonable doubt where there was other properly admitted evidence showing intent to deliver cocaine in accord with the circumstantial evidence of past delivery. State v. Hernandez, 242 Neb. 78, 493 N.W.2d 181 (1992).

Evidence admissible under subsection (2) of this section is limited by section 27-403, which provides for the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of, among other things, unfair prejudice. For purposes of subsection (2) of this section, it is sufficient that the evidence be of similar involvement reasonably related to the charged conduct and be presented in a manner in which prejudice does not outweigh its probative value. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).

Under subsection (2) of this section, evidence of prior acts is admissible if relevant unless it is unfairly prejudicial in the sense that it tends to make the conviction of the defendant more probable for an incorrect reason. State v. Christian, 237 Neb. 294, 465 N.W.2d 756 (1991).

In reviewing the actions of a trial court in admitting evidence of other crimes under subsection (2) of this section to determine if there was unfair prejudice in the admission of the evidence, 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. State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989); State v. Doremus, 2 Neb. App. 784, 514 N.W.2d 649 (1994).

Under subsection (2) of this section, evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question. State v. Ruyle, 234 Neb. 760, 452 N.W.2d 734 (1990).

This section is subject to the overriding protections of section 27-403. Trial court in first degree murder case did not err in receiving testimony about a prior robbery in which the defendant was involved because it established a motive and also because its probative value outweighed the danger of unfair prejudice. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

Subsection (2) of this section is subject to the overriding protection of section 27-403 which states that evidence of other acts must be excluded if, among other things, the probative value of the evidence of other acts is substantially outweighed by the danger of unfair prejudice to the defendant. State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985).4. Effect of remoteness

The question of remoteness in time for the purposes of subsection (2) of this section is a matter within the discretion of the trial court. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992); State v. Keithley, 218 Neb. 707, 358 N.W.2d 761 (1984).

The question of whether evidence of other conduct otherwise admissible under the provisions of subsection (2) of this section is too remote in time is largely within the discretion of the trial court. While remoteness in time may weaken the value of the evidence, such remoteness does not, in and of itself, necessarily justify exclusion of the evidence. Remoteness, or the temporal span between a prior crime, wrong, or other act offered as evidence, goes to the weight to be given to such evidence and does not render the evidence of the other crime, wrong, or act irrelevant and inadmissible. State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990); State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989); State v. Rincker, 228 Neb. 522, 423 N.W.2d 434 (1988).

The admissibility of evidence concerning other conduct under subsection (2) of this section must be determined upon the facts of each case; no exact limitation of time can be fixed as to when other conduct tending to prove intent to commit the offense charged is remote. State v. Rincker, 228 Neb. 522, 423 N.W.2d 434 (1988).5. Miscellaneous

The purposes set forth in subsection (2) of this section are illustrative only and not intended to be exhaustive or mutually exclusive. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994).

In prosecution for possession of cocaine and methamphetamine, evidence as to whether defendant had ever used cocaine is improper. State v. Friend, 230 Neb. 765, 433 N.W.2d 512 (1988).

In order to preserve an objection to the admission of evidence under subsection (2) of this section, an objection must be made at the time the evidence is offered. State v. Blair, 227 Neb. 742, 419 N.W.2d 868 (1988).

Evidence of conviction of a crime is, in some respects, more limited than under former section, but is not restricted to felonies as such. State v. Lang, 197 Neb. 47, 246 N.W.2d 608 (1976).

~Reissue Revised Statutes of Nebraska