State v. Cartwright

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. CARTWRIGHT
Cite as 320 Neb. 619
State of Nebraska, appellee, v. Rickey R.
Cartwright, appellant.
___ N.W.3d ___
Filed January 9, 2026. 	No. S-24-295.
1. Trial: Evidence: Appeal and Error. Balancing the probative value of
evidence against the danger of unfair prejudice is within the discretion
of the trial court, whose decision an appellate court will not reverse
unless there is an abuse of discretion.
2. Appeal and Error. An appellate court may find plain error on appeal
when an error unasserted or uncomplained of at trial, but plainly evident
from the record, prejudicially affects a litigant’s substantial right and,
if uncorrected, would result in damage to the integrity, reputation, and
fairness of the judicial process.
3. ____. To be considered by an appellate court, the party asserting the
alleged error must both specifically assign and specifically argue the
error in the party’s initial brief.
4. Evidence: Words and Phrases. Evidence is probative if it tends in any
degree to alter the probability of a material fact.
5. ____: ____. The weight of probative value involves a measurement of
the degree to which the evidence persuades the trier of fact that the par-
ticular fact exists and the distance of the fact from the ultimate issue of
the case.
6. Rules of Evidence. The fact that evidence is prejudicial is not enough
to require exclusion under Neb. Rev. Stat. § 27-403 (Reissue 2016),
because most, if not all, of the evidence a party offers is calculated to
be prejudicial to the opposing party; it is only the evidence that has a
tendency to suggest a decision on an improper basis that is considered
unfairly prejudicial under § 27-403.
7. Evidence: Words and Phrases. Unfair prejudice speaks to the capac-
ity 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:54 AM CDT

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. CARTWRIGHT
Cite as 320 Neb. 619
8. Evidence: Other Acts: Convictions. When considering whether evi-
dence of the defendant’s other acts is unfairly prejudicial, courts con-
sider whether the evidence tends to make conviction of the defendant
more probable for an incorrect reason.
9. Other Acts. It is considered “unfair” to introduce other acts that are
relevant only through the inference that the defendant is by propensity a
probable perpetrator of the crime.
10. ____. Bad acts have fair probative value to the extent there is a rational
chain of inferences that does not require an evaluation of character.
11. ____. The comparative enormity or reprehensible nature of the uncharged
to the charged acts is one consideration in determining unfair prejudice
of the uncharged act.
12. Criminal Law: Evidence. A suspect’s threats against someone who has
or might cooperate with the authorities investigating a crime is generally
admissible as evidence of consciousness of guilt.
13. Criminal Law: Evidence: Proof. Consciousness of guilt evidence is
logically relevant to establish a defendant’s guilty knowledge of the
charged crime.
14. Appeal and Error. A defendant cannot complain of error the defendant
invited the court to commit.
15. ____. Except for instances of plain error, only those issues both raised
or passed upon below and specifically assigned and specifically argued
on appeal in the party’s initial brief will be considered by the appellate
court.
16. Appeal and Error: Words and Phrases. Plain error is a higher bar than
an abuse of discretion and is an 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.
Petition for further review from the Court of Appeals,
Moore, Bishop, and Welch, Judges, on appeal thereto from
the District Court for Douglas County, Molly B. Keane,
Judge. Judgment of Court of Appeals reversed and remanded
with directions.
Theodore C. Turnblacer, Jr., of Dornan, Troia, Howard,
Breitkreutz, Dahlquist & Klein, P.C., L.L.O., for appellee.
Michael T. Hilgers, Attorney General, and P. Christian
Adamski for appellant.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. CARTWRIGHT
Cite as 320 Neb. 619
Funke, C.J., Cassel, Stacy, Papik, Freudenberg, and
Bergevin, JJ.
Freudenberg, J.
INTRODUCTION
We granted further review of the Nebraska Court of Appeals’
decision 1 reversing the defendant’s conviction of third degree
sexual assault of a child. The question presented is whether it
was unduly prejudicial for the jury to hear testimony that, after
the victim’s brother verbalized the victim had told him that the
defendant sexually assaulted her, the defendant physically
attacked the brother and threatened to kill him if he repeated
the accusation. Pursuant to a partial grant of the defendant’s
motion in limine, the jury did not know the brother also said
that he saw the defendant inappropriately touching another
sibling. The Court of Appeals held that the omission left
the jury with a distorted and misleading representation that the
defendant reacted solely to an accusation involving the vic-
tim, which was not harmless beyond a reasonable doubt. We
reverse the Court of Appeals’ decision and remand the cause
with directions.
BACKGROUND
In August 2022, Rickey R. Cartwright’s 5-year-old biologi-
cal daughter (the victim) disclosed to her older brother, A.R.,
who was 10 years old, that Cartwright sexually abused her
when they had recently spent the night at Cartwright’s house.
The victim also reported the abuse to her mother, Kia R.
Cartwright and Kia’s relationship had ended before the vic-
tim was born, and, at the time of the incident, Cartwright was
living with his girlfriend, their three young children, and L.B.,
who is the girlfriend’s daughter from another relationship.
Cartwright did not have a formal custody arrangement for the
1 See State v. Cartwright, No. A-24-295, 2025 WL 1088204 (Neb. App. Apr.
8, 2025) (selected for posting to court website).

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. CARTWRIGHT
Cite as 320 Neb. 619
victim and A.R., but Kia allowed him to exercise parenting
time. Kia testified that sometimes Cartwright would not bring
back the children when he had agreed to and that Cartwright
did not allow Kia to know where he lived or what his phone
number was.
The day after the victim reported the abuse to Kia, Cartwright
went to Kia’s home to discuss the matter and physically
assaulted and threatened A.R. after A.R. “spoke up.” Kia did
not contact law enforcement until approximately a month after
the incident.
Following an investigation, Cartwright was charged with
first degree sexual assault of a child, a Class IB felony, and
third degree sexual assault of a child, a Class IIIA felony. A
jury found Cartwright guilty of third degree sexual assault of
a child but not guilty of first degree sexual assault of a child.
The district court sentenced Cartwright to 3 years’ imprison-
ment and 18 months of post-release supervision with credit for
520 days previously served. Cartwright appealed to the Court
of Appeals, which reversed the conviction and remanded the
cause for a new trial.
Pretrial Motion in Limine
Before trial, the State filed a notice of intent to offer evi-
dence pursuant to Neb. Rev. Stat. § 27-404 (Cum. Supp.
2024) and asked the court to rule in limine that testimony
surrounding the confrontation at Kia’s home was admissible.
Specifically, the State sought to adduce that Kia confronted
Cartwright about the victim’s accusation while in the presence
of the victim and A.R. and that when A.R. voiced accusations,
Cartwright became angry and slapped A.R., picked A.R. up and
threw him against the wall, punched A.R. in the ribs, and made
a verbal threat to kill A.R. if he repeated what he said.
Defense counsel moved in limine to exclude evidence of
any alleged prior bad acts against A.R., Kia, or L.B., arguing
such acts were not relevant or admissible pursuant to Neb.
Rev. Stat. §§ 27-401 and 27-402 (Reissue 2016), and § 27-404,

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. CARTWRIGHT
Cite as 320 Neb. 619
unless Cartwright first put them at issue. Defense counsel fur-
ther argued that any acts against A.R., Kia, or L.B. would be
more unfairly prejudicial to Cartwright than probative, pursu-
ant to Neb. Rev. Stat. § 27-403 (Reissue 2016).
For purposes of the motions, the court received Kia’s depo-
sition testimony that described the confrontation leading to the
assault of A.R. In her deposition, Kia said that after the victim
reported Cartwright had sexually assaulted her, Kia was not
sure if she believed the victim. Kia called Cartwright to her
house so the victim could repeat to Cartwright what she had
reported to Kia. Kia asked A.R. to be part of the conversation
because, after the victim made the report to Kia, A.R. “started
saying things.”
Kia testified in her deposition that, at the meeting, the victim
refused to speak, so A.R. eventually told Cartwright what the
victim had reported to him. According to Kia, Cartwright was
not in a good mood from the start, but Cartwright began “flip-
ping out” after A.R. voiced the accusation that Cartwright had
sexually assaulted the victim. In response, A.R. told Cartwright
he had seen Cartwright inappropriately touching L.B., at which
point, Cartwright “snapped.” Kia testified Cartwright “flipped
out screaming and yelling,” grabbed A.R. by his arms and was
yelling in his face, “smacked” A.R. in the face, and threw A.R.
up against the couch. Cartwright stopped when Kia threatened
to call law enforcement and when the family dog intervened.
As Cartwright left, he threatened, “[I]f you ever tell anybody
else that, I’m going to kill you.”
Defense counsel asserted the prejudice from the jury’s hear-
ing evidence of these acts would outweigh any probative value,
because they occurred only after A.R. accused Cartwright of
having inappropriate contact with L.B. According to defense
counsel, because the assault and threat followed most closely
in time to the accusation that he sexually assaulted L.B.,
Cartwright’s bad acts were “divested from any response that
could be attributed to the allegation” relating to the victim.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. CARTWRIGHT
Cite as 320 Neb. 619
Defense counsel also said the defense “strongly object[ed]
to any evidence about [L.B.] coming in because it’s not
charged . . . and it’s not part of this case.” Defense counsel
described any alleged acts of misconduct by Cartwright against
L.B. as “Part 3” of its motion in limine. At the same time,
defense counsel noted the issue may not be ripe because the
State had not filed a motion to adduce at trial evidence of bad
acts against L.B.
The State agreed with the defense that any statements con-
cerning abuse by Cartwright against L.B. would be inadmis-
sible and clarified it was not intending to offer such evidence.
Discussion between the court and counsel indicated that no
charges had been brought in relation to an alleged sexual
assault of L.B. The State disagreed with the defense’s argument
that Cartwright’s actions toward A.R. during the confrontation
at Kia’s house were unattributable to the accusation that he had
sexually abused the victim—as opposed to the accusation that
he had sexually abused L.B. The State noted both accusations
were made within the same short timespan.
The 	State 	argued 	Cartwright’s 	reaction 	at 	Kia’s 	house
after being accused of abusing the victim was probative of
Cartwright’s knowledge and consciousness of guilt. The State
set forth in its motion that Cartwright’s acts were inextricably
intertwined with the evidence and with expected testimony
concerning the assaults on the victim and were relevant and
material to help establish Cartwright’s identity as the person
responsible for the alleged offenses, to show Cartwright’s
knowledge regarding the alleged offenses, and to present as
full of a picture as possible of the events surrounding the inci-
dents themselves.
The court pronounced it was sustaining “Part 3” of defense
counsel’s motion in limine regarding any bad acts against L.B.
and it was denying the defense’s motion to exclude evidence
of Cartwright’s behavior toward A.R. during the confrontation
at Kia’s house. It granted the State’s motion to adduce the
same. The court found the evidence of Cartwright’s reaction

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. CARTWRIGHT
Cite as 320 Neb. 619
to the accusation of sexually abusing the victim was relevant
and its probative value outweighed the risk of unfair preju-
dice. The court further found Cartwright’s reaction was “inex-
tricably intertwined with the circumstances making up the
underlying allegations and is admissible under [§] 27-404(2).”
The court then said, “The evidence that the Court has deemed
admissible may be used for the limited purposes of showing
identity, [Cartwright’s] knowledge of the allegations, and the
state of mind of [Cartwright].”
In its written order, the court reiterated that the State could
adduce evidence and testimony that, after the victim disclosed
to Kia that Cartwright was sexually assaulting her, Kia con-
fronted Cartwright about the accusation while in the presence
of A.R. and that, after Cartwright was confronted, A.R. made
statements and Cartwright physically assaulted and threatened
A.R. However, “No evidence of the particular statements
made by A.R. prior to the physical altercation shall be elicited
and no reference to any other allegations of sexual abuse by
[Cartwright] on any other child shall be admitted.” Further,
“Any other bad acts, outside the circumstances of the alterca-
tion at the time of the confrontation regarding the alleged vic-
tim’s disclosure, are inadmissible.”
Trial
The victim was 6 years old at the time of trial. She testi-
fied she has “two dads,” Cartwright and a man referred to as
“Vail.” Vail was listed as the victim’s father on the victim’s
birth certificate. The victim did not learn Cartwright was her
biological father until she was 3 years old.
The 	victim 	testified 	that 	when 	visiting 	Cartwright 	at
his new house, referred to as the “blue house,” Cartwright
told her to go downstairs to the basement. In the basement
was Cartwright’s bedroom, a living area, and a bathroom.
Cartwright told her she was allowed there but the other chil-
dren were not; she testified the rules were different for her.
While she was standing in the living area of the basement,

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. CARTWRIGHT
Cite as 320 Neb. 619
Cartwright pulled down her pants and underwear and touched
her vaginal area with his hand. Her testimony was unclear as
to whether this happened more than once. The victim testified
Cartwright told her not to tell anyone that he had “touched
my private.” Despite that, the victim reported Cartwright’s
actions to her mother, “[b]ecause he did something important
to me.”
On cross-examination, the victim testified she had only
been at Cartwright’s house twice. The victim conceded she
used to get her two fathers “mixed up.” She also “[k]ind of”
sometimes confused Cartwright with a man referred to as
“Book,” a friend of Kia’s who is the victim’s godfather. The
victim was impeached with prior deposition testimony that
Cartwright had never touched her private part but that Book
had. She said, “Yes,” when defense counsel asked her if “any-
body’s going to be upset with you if you came in here today in
front of all your friends and family and said that [Cartwright]
did not touch you?”
A nurse practitioner at a child advocacy center who is cer-
tified as a sexual assault nurse examiner conducted an inter-
view and medical examination of the victim after Kia called
law enforcement to report the abuse. She testified at trial that
the victim said her “‘dad,’” whom the victim later identified
as Cartwright, pulled her pants down and “‘be squeezing my
booty . . . rubbing it and squeezing it’” with his hand. The
victim reported this happened more than one time and she was
scared. A physical examination of the victim did not reveal
any injuries.
A forensic interviewer at the same child advocacy center
laid foundation for a video recording of the victim’s forensic
interview, which occurred in conjunction with the medical
examination. The video was entered into evidence and pub-
lished to the jury, with any references to Cartwright’s assault of
and threat toward A.R. redacted.
In the interview, the victim described how her “dad” had
asked her to go to the basement while everyone else was

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. CARTWRIGHT
Cite as 320 Neb. 619
upstairs. When asked the name of her “dad,” the victim said,
“Vail,” but immediately corrected herself and said, “Rickey.”
The victim said that while she was standing, her father went
down to his knees, pulled down her pants, and pulled down
his own pants. The victim said her father pulled his “private
part” up. She then demonstrated how her father made thrust-
ing motions. The victim said her father repeatedly asked her
to suck his private part like she sucks her thumb. The victim
said she held his private part in her hand, but she kept scoot-
ing back when he tried to get his private part closer to her
mouth. Her father eventually pulled his pants back up. When
questioned if the incident occurred with Vail or Cartwright, the
victim said it was Cartwright, noting that Vail was in jail.
A.R. testified at trial that Cartwright and his girlfriend
moved into the blue house shortly after their youngest child
was born and that he and the victim went there only once
or twice. At the blue house, he was not allowed to go to the
basement. In contrast, Cartwright allowed both the victim
and L.B. to go downstairs. A.R. said the victim would be
downstairs for 15 to 30 minutes. Cartwright let the victim go
downstairs “[a] lot.”
A.R. testified that when they were back at Kia’s house, the
victim told him what had happened when she went downstairs
with Cartwright at his house. The victim woke A.R. up to
tell him about it, and he testified she sounded scared or con-
fused. A.R. told Kia, “[a]nd then that was when my sister run
in there and tell her too that what happened.” Kia testified
the victim told her something about Cartwright that caused
her concern, and Kia was “in disbelief.” She did not want to
believe the victim because Kia had known Cartwright “for so
long. He’s been around my other children.”
Kia testified she called Cartwright’s mother the next morn-
ing and asked her to come to her house to see if the vic-
tim would tell her grandmother the same thing she told
Kia. Instead, Cartwright called Kia. Kia let the call go to

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STATE v. CARTWRIGHT
Cite as 320 Neb. 619
voicemail. The voicemail was entered into evidence and pub-
lished to the jury. In the voicemail, Cartwright sounded upset,
describing an accusation of “some weird shit” and insisting
that Kia call him back.
After the victim and A.R. arrived home from school that
day, Cartwright visited Kia’s house. Kia testified she did not
know Cartwright was coming over. Cartwright, Kia, A.R., and
the victim were all present in the living room and sat down to
have a conversation about what the victim had reported.
Kia told the victim to “speak up” and repeat the accusa-
tion, but the victim would not. Instead, she hid herself behind
Kia. At that point, Cartwright “was starting to get upset.” A.R.
testified he eventually “spoke up” about his concerns about
Cartwright and the victim. Over defense counsel’s objection,
A.R. testified that, after Cartwright heard what A.R. said, he
“jumped up . . . and then, like, picked me up and then punched
me and threw me onto the couch and then . . . walked out
[of] the house.” A.R. further testified, over defense counsel’s
objection, that, as Cartwright was walking out, he said he
would kill A.R., and A.R. testified he felt scared.
Kia affirmed that after Cartwright was confronted about
what the victim had said, Cartwright appeared to be “[i]n
angry shock.” Kia testified that, at first, Cartwright was “talk-
ing and yelling. He was, like, basically argumentative about it.
And then he physically grabbed my son; he grabbed [A.R.],
physically grabbed [A.R.] and hit [A.R.] and threw [A.R.] on
the couch.”
Kia testified she told Cartwright to leave. Before he left,
Cartwright yelled in A.R.’s face, “‘If you ever tell anyone else
that, I will kill you.’” Kia testified A.R. was not physically
injured but he was upset and crying.
Kia conceded on direct that she did not call law enforce-
ment to report the victim’s accusation of sexual abuse until
about a month later. She explained she was trying to protect
her children. On cross-examination, defense counsel adduced
testimony about the contentious nature of her relationship

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STATE v. CARTWRIGHT
Cite as 320 Neb. 619
with Cartwright, especially with respect to his exercise of
visitation.
In closing argument, the State reiterated that Cartwright
had directed the victim not to tell anybody about the sexual
assault and that Cartwright had threatened to kill A.R. if “‘you
ever say that again,’” “after [Cartwright] was confronted
about [the victim’s] disclosure.”
The defense suggested in closing argument that the victim
was confused about which “dad” had sexually assaulted her
and argued Cartwright’s “strong denial” when confronted with
accusations of sexual assault indicated he was innocent. The
defense also pointed out Kia’s delay in contacting law enforce-
ment about the victim’s disclosure, pointing out that it “was out
there since August all the way to September 19th, and it—it
was being handled within the family.”
Assignments of Error and Arguments
to Court of Appeals
As relevant to further review, Cartwright assigned on appeal
that the district court abused its discretion by “receiving evi-
dence of other wrongs or bad acts, as the evidence was
received in violation of Neb. Rev. Stat. § 27-403.” Cartwright
did not assign or argue the district court erred by overruling his
§ 27-404 objection or finding the uncharged acts were inex-
tricably intertwined with the charged crimes and relevant and
admissible to show identity, knowledge of the accusations, and
Cartwright’s state of mind.
Cartwright argued the evidence was inadmissible under
§ 27-403 because the fact that he “became upset when he was
accused of a child sexual assault is not evidence that supports
guilt” 2 and “[t]he subject matter of this testimony was not
related to the charges in the case, and it was inflammatory, and
very prejudicial.” 3 Cartwright concluded the evidence “should
2 Brief for appellant at 15.
3 Id.

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STATE v. CARTWRIGHT
Cite as 320 Neb. 619
have failed the § 27-403 balancing test.” 4 Cartwright did not
argue that the exclusion of any reference to the accusation
concerning L.B. made the evidence misleading or that he was
precluded from adducing such evidence. Indeed, Cartwright
did not mention L.B. in his appellate brief at all.
Court of Appeals’ Decision
The Court of Appeals held that the district court abused
its discretion in admitting uncharged acts over Cartwright’s
§ 27-403 objection, because the assault and threat were pre-
sented to the jury as reactions related solely to the accusa-
tion that Cartwright had sexually assaulted the victim. The
Court of Appeals concluded that, by omitting the accusation
as to L.B., the evidence presented a distorted and misleading
representation of what really occurred. The Court of Appeals
also said it was speculation which accusation Cartwright was
reacting to or if he was reacting to both. It concluded that it
was impossible to bifurcate A.R.’s accusation while fairly and
accurately presenting that Carwright’s reaction related solely
to an accusation involving the victim. Therefore, the Court of
Appeals concluded the evidence was unfairly prejudicial and
the unfair prejudice outweighed its limited probative value.
The Court of Appeals found that the error was not harmless
beyond a reasonable doubt and reversed Cartwright’s convic-
tion and remanded the cause for a new trial.
We granted the State’s petition for further review.
ASSIGNMENT OF ERROR
On further review, the State assigns that the Court of Appeals
erred in holding that the district court abused its discretion in
admitting evidence of Cartwright’s assault of A.R.
STANDARD OF REVIEW
[1] Balancing the probative value of evidence against the
danger of unfair prejudice is within the discretion of the trial
4 Id.

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STATE v. CARTWRIGHT
Cite as 320 Neb. 619
court, whose decision we will not reverse unless there is an
abuse of discretion. 5
[2] An appellate court may find plain error on appeal when
an error unasserted or uncomplained of at trial, but plainly
evident from the record, prejudicially affects a litigant’s sub-
stantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process. 6
[3] To be considered by an appellate court, the party assert-
ing the alleged error must both specifically assign and specifi-
cally argue the error in the party’s initial brief. 7
ANALYSIS
We hold that the district court did not abuse its discretion
in finding the probative value of Cartwright’s assault of and
threat toward A.R. after being accused of sexually assaulting
the victim outweighed the danger of unfair prejudice from
these uncharged acts. Thus, the court did not err in admitting
the testimony of the assault and threat over Cartwright’s objec-
tion under § 27-403.
[4,5] Section 27-403 provides that when evidence is rel-
evant, it “may be excluded if its probative value is substan-
tially 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 cumu-
lative evidence.” Under § 27-401, “Relevant evidence means
evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” Evidence is probative if it tends in any degree
to alter the probability of a material fact. 8 The weight of
5 State v. Rush, 317 Neb. 622, 11 N.W.3d 394 (2024), modified on denial of
rehearing 317 Neb. 917, 12 N.W.3d 787, disapproved on other grounds,
State v. Rupp, ante p. 502, 28 N.W.3d 74 (2025).
6 State v. Childs, 309 Neb. 427, 960 N.W.2d 585 (2021).
7 See State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023).
8 State v. Dixon, 240 Neb. 454, 482 N.W.2d 573 (1992).

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STATE v. CARTWRIGHT
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probative value 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. 9
[6,7] The fact that evidence is prejudicial is not enough to
require exclusion under § 27-403, because most, if not all, of
the evidence a party offers is calculated to be prejudicial to
the opposing party; it is only the evidence that has a tendency
to suggest a decision on an improper basis that is considered
unfairly prejudicial under § 27-403. 10 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 emo-
tional basis. 11
[8,9] When considering whether evidence of the defendant’s
other acts is unfairly prejudicial, courts consider whether the
evidence tends to make conviction of the defendant more
probable for an incorrect reason. 12 We have recognized “[t]he
admission of other acts evidence presents a special danger
of confusion of the issues and undue prejudice,” 13 which is
relevant to whether the evidence is unfairly prejudicial under
§ 27-403. Section 27-404 merely codifies the common-law
tradition that, even if logically persuasive, it is unfairly preju-
dicial for the State to ask a jury to infer the defendant commit-
ted the charged crime because the defendant is a “bad person”
who is likely to act in conformity with such bad character 14
or to encourage the jury to “subconsciously penalize the
defendant for the proven misdeeds . . . even if [the defendant]
9 See State v. Boswell, 316 Neb. 542, 5 N.W.3d 747 (2024).
10 Id.
11 State v. Price, ante p. 1, 26 N.W.3d 70 (2025).
12 See id.
13 State v. Oldson, 293 Neb. 718, 746, 884 N.W.2d 10, 39 (2016).
14 See, e.g., State v. Oldson, supra note 13.

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should happen to be innocent momentarily.” 15 It is considered
“unfair” to introduce other acts that are relevant only through
the inference that the defendant is “by propensity a probable
perpetrator of the crime.” 16
[10] Bad acts have fair probative value to the extent there
is a “rational chain of inferences that does not require an
evaluation of character.” 17 The “litmus test is noncharacter
logical relevance of the other acts” 18; i.e., that the bad acts are
not admitted for propensity purposes. 19 Thus, we have said
uncharged acts evidence will usually have permissible proba-
tive value when related in time, place, and/or circumstances to
the offense or offenses charged. 20
Cartwright argued in his appellate brief that becoming
upset when falsely accused of child sexual assault had little
probative value of his guilt, because that was a normal and
understandable reaction by an innocent person under the cir-
cumstances. At the same time, Cartwright asserted in a conclu-
sory manner that the evidence was “inflammatory” and “very
prejudicial.” 21 Cartwright was not prejudiced to the degree the
jury inferred his assault and threat reflected his innocence.
Inasmuch as the jury could have engaged in propensity reason-
ing, we hold that the evidence had sufficient “fair” probative
value to outweigh that danger.
[11] We evaluate the danger the jury would use unfair pro-
pensity reasoning to convict Cartwright of sexual assault by
15 State v. Oldson, supra note 13, 293 Neb. at 747, 884 N.W.2d at 39
(internal quotation marks omitted).
16 Id. at 746, 884 N.W.2d at 38 (internal quotation marks omitted).
17 Id. at 748, 884 N.W.2d at 39 (internal quotation marks omitted).
18 Id. at 749, 884 N.W.2d at 40 (internal quotation marks omitted).
19 See State v. Oldson, supra note 13.
20 See State v. Moore, 317 Neb. 493, 10 N.W.3d 531 (2024).
21 Brief for appellant at 15.

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considering the “[c]omparative enormity” 22 of the uncharged
acts to the charged crimes of first and third degree sexual
assault of a child. The comparative enormity or reprehen-
sible nature of the uncharged to the charged acts is one con-
sideration in determining unfair prejudice of the uncharged
act. 23 Cartwright’s physical attack of and threat toward A.R.
was reprehensible, but Kia testified A.R. was not injured.
Cartwright’s violent outburst and threat toward A.R. was com-
paratively much less reprehensible than the charged acts of
first and third degree sexual assault of a child.
Weighed against such minimal danger of unfair prejudice is
the substantial nonpropensity probative value of Cartwright’s
assault of and threat toward A.R. It was rational to infer
Cartwright threatened A.R. so that A.R. and the witnesses to
the threat would not go to law enforcement to report the vic-
tim’s accusation of abuse. And Cartwright’s preceding violence
is rationally tied to that threat because it strengthened A.R.’s
fear, as well as that of the victim and Kia, that reporting the
accusation and cooperating with law enforcement could put
them in physical danger.
[12,13] As the court found, the evidence was ultimately
probative of Cartwright’s identity as the perpetrator. A sus-
pect’s threats against someone who has or might cooperate
with the authorities investigating a crime is generally admissi-
ble as evidence of consciousness of guilt. 24 Consciousness of
22 See 22B Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice
and Procedure § 5259 at 428 (2d ed. 2017) (internal quotation marks
omitted). See, also, Herbert v. State, 526 So. 2d 709 (Fla. App. 1988)
(Glickstein, J., concurring in part, and in part dissenting); State v. Larsen,
512 N.W.2d 803 (Iowa App. 1993); State v. Williams, 548 S.W.3d 275
(Mo. 2018); Freer v. State, 533 P.3d 897 (Wyo. 2023).
23 See, 22B Wright & Graham, Jr., supra note 22; Demetria D. Frank, The
Proof Is in the Prejudice: Implicit Racial Bias, Uncharged Act Evidence &
the Colorblind Courtroom, 32 Harv. J. on Racial & Ethnic Just. 1 (2016).
24 3 Clifford S. Fishman & Anne Toomey McKenna, Jones on Evidence Civil
and Criminal § 17:58.50 (Nov. 2025 update).

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guilt evidence is logically relevant to establish a defendant’s
guilty knowledge of the charged crime. 25 The guilty knowl-
edge, in turn, serves as an intermediate inference to prove the
defendant’s “identity.” That is, guilty knowledge is an inter-
mediate inference that the defendant is the perpetrator of the
charged crime. 26
Cartwright’s violent outburst and threat was probative to
explain why Kia waited approximately 1 month before con-
tacting law enforcement about the victim’s report of sexual
abuse. State v. Baker 27 is analogous. In a trial on charges of
first degree sexual assault and third degree sexual assault
of a child, we held in Baker that the trial court did not err
in admitting evidence that the defendant had threatened and
physically assaulted the mother of the victim in that case,
because the assaults and threats were part of the coherent pic-
ture of the crimes charged and were specifically relevant to
explain the failure of either the victim or her mother to make
a prompt complaint. 28
During Cartwright’s trial, defense counsel adduced in cross-
examination that there was a 1-month delay from the time of
the victim’s report and any contact with law enforcement. This
was reiterated in closing argument. The defense insinuated Kia
contacted law enforcement as a way of avoiding further dif-
ficulties with Cartwright over visitation and not because she
truly believed Cartwright had committed the crime. The evi-
dence of the attack of and threat toward A.R. was relevant to
support the different inference that Kia delayed reporting the
assault because she was scared.
We disagree with defense counsel’s argument, made to the
trial court and vaguely reiterated on appeal, that the assault
25 State v. Oldson, supra note 13 (Connolly, J., concurring).
26 Id.
27 State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).
28 See id. See, also, e.g., People v. McAlpin, 53 Cal. 3d 1289, 812 P.2d 563,
283 Cal. Rptr. 382 (1991).

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of and threat toward A.R. was not probative of the charged
crimes because it related solely to the accusation Cartwright
sexually assaulted L.B. The evidence at the pretrial hearing
and at trial shows Cartwright was upset before any accusation
of an additional victim was made. Furthermore, both the accu-
sation that Cartwright sexually assaulted the victim and that
he sexually assaulted L.B. occurred within the same short con-
frontation. The accusation as to L.B. was not the sole impetus
for the assault of and threat toward A.R. simply because it was
the accusation that was marginally closer in time. In finding
the assault and threat admissible, the trial court necessarily
found that Cartwright was, at a minimum, reacting to both
accusations and that he was not reacting solely to the accusa-
tion regarding L.B. We disagree with the Court of Appeals’
reasoning that such a finding was mere speculation.
As for the lack of a complete picture of the impetus for
Cartwright’s reaction, defense counsel did not argue to the trial
court or in his appellate brief that omitting the accusation that
Cartwright sexually assaulted L.B. was misleading or otherwise
unduly prejudicial. To the contrary, defense counsel sought
to exclude any evidence of the accusation concerning L.B.
through his motion in limine, and the court granted that portion
of the motion. Defense counsel never argued at the hearing on
his motion in limine that Cartwright would be prejudiced if the
full context of the accusations leading to his assault and threat
were not adduced at trial. And, at trial, defense counsel never
attempted to adduce such contextual evidence.
[14-16] A defendant cannot complain of error the defendant
invited the court to commit. 29 Further, except for instances
of plain error, only those issues both raised or passed upon
below and specifically assigned and specifically argued on
appeal in the party’s initial brief will be considered by the
appellate court. 30 Because it was neither argued below nor on
29 See State v. Dixon, 286 Neb. 157, 835 N.W.2d 643 (2013).
30 State v. Price, supra note 11.

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appeal, it is a matter of plain error review whether the evi-
dence of the assault and threat were inadmissible due to the
misleading nature of the omission of the accusation regarding
L.B. Plain error is a higher bar than an abuse of discretion
and is an 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. 31
There are obvious reasons defense counsel chose not to try
to admit evidence that Cartwright had been accused of assault-
ing L.B., but the danger of misrepresentation by omitting such
additional context did not render Cartwright’s assault of and
threat toward A.R. inadmissible. It was a strategic choice for
the defense to make whether it was more prejudicial to include
the accusation from A.R. or to keep it out. Cartwright cannot
gain the categorical inadmissibility of his violent threat to
silence his accuser simply because he was accused of sexually
assaulting two children instead of only one. Any misrepresen-
tation or lack of a coherent picture stemming from the omis-
sion of the accusation regarding L.B. did not rise to the level
of plain error.
CONCLUSION
The Court of Appeals erred by holding that the district court
erred by admitting the testimony of Cartwright’s assault of
and threat toward A.R. We reverse the decision of the Court
of Appeals and remand the cause with directions to affirm
Cartwright’s conviction and sentence.
Reversed and remanded with directions.
31 See State v. Dat, 318 Neb. 311, 15 N.W.3d 410 (2025).