State v. Pullens

State of NebraSka , appellee , v.
StepheN M. pulleNS, appellaNt.
800 N.W.2d 202
Filed July 15, 2011. 	No. S-09-588.
1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court reviews for clear error the factual
findings underpinning a trial court’s hearsay ruling and reviews de novo the
court’s ultimate determination to admit evidence over a hearsay objection.
2. ____: ____: ____. Because of the factors a trial court must weigh in deciding
whether to admit evidence under the residual hearsay exception, an appellate
court applies an abuse of discretion standard to hearsay rulings under the residual
hearsay exception.
3. ____: ____: ____. An appellate court reviews for clear error the trial court’s
factual findings underpinning the excited utterance hearsay exception, resolving
evidentiary conflicts in favor of the successful party, who is entitled to every
reasonable inference deducible from the evidence.
4. Judgments: Appeal and Error. Under a clearly erroneous standard of review,
an appellate court does not reweigh the evidence but considers the judgment in
a light most favorable to the successful party, resolving evidentiary conflicts in
favor of the successful party, who is entitled to every reasonable inference deduc-
ible from the evidence.
5. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
and 27-404(2) (Reissue 2008), and the trial court’s decision will not be reversed
absent an abuse of discretion.
6. Trial: Evidence: Appeal and Error. Because authentication rulings are neces-
sarily fact specific, a trial court has discretion to determine whether evidence has
been properly authenticated, and an appellate court reviews a trial court’s ruling
on authentication for an abuse of discretion.
7. Jury Instructions: Appeal and Error. In reviewing a claim of prejudice from
jury instructions given or refused, an appellate court must read the instructions
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 evidence, there is
no prejudicial error necessitating reversal.
8. Right to Counsel: Waiver: Appeal and Error. In determining whether a defend-
ant’s waiver of counsel was voluntary, knowing, and intelligent, an appellate
court applies a “clearly erroneous” standard of review.
9. Criminal Law: Motions for Continuance: Appeal and Error. A decision
whether to grant a continuance in a criminal case is within the discretion of the
trial court and will not be disturbed on appeal absent an abuse of discretion.
10. Rules of Evidence: Hearsay. For a statement to qualify as an excited utterance,
the following criteria must be established: (1) There must have been a startling
event, (2) the statement must relate to the event, and (3) the statement must have
been made by the declarant while under the stress of the event.
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11. ____: ____. The underlying theory of the excited utterance exception is that cir-
cumstances may produce a condition of excitement which temporarily stills the
capacity of reflection and produces utterances free of conscious fabrication.
12. ____: ____. In making a preliminary determination that a shocking or startling
event has taken place, a trial judge may consider hearsay evidence which itself
fails to satisfy any exception.
13. ____: ____. The true test in spontaneous exclamations is not when the exclama-
tion was made, but whether under all the circumstances of the particular excla-
mation the speaker may be considered as speaking under the stress of nervous
excitement and shock produced by the act in issue.
14. Rules of Evidence: Appeal and Error. Determinations of whether the proba-
tive value of the evidence is substantially outweighed by the danger of unfair
prejudice and other considerations described in Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2008), is a matter within the district court’s discretion and will
not be reversed on appeal absent an abuse of that discretion.
15. Rules of Evidence: Other Acts. The admission of prior bad acts involves three
elements: (1) The evidence was relevant for some purpose other than to prove the
character of a person to show that he or she acted in conformity therewith, (2)
the probative value of the evidence is substantially outweighed by its potential
for unfair prejudice, and (3) the trial court, if requested, instructed the jury to
consider the evidence only for the limited purpose for which it was admitted.
16. ____: ____. other acts evidence may have probative value as to identity where
there are overwhelming similarities between the other crime and the charged
offense or offenses, such that the crimes are so similar, unusual, and distinctive
that the trial judge could reasonably find that they bear the same signature.
17. Criminal Law: Words and Phrases. Modus operandi is a characteristic method
employed by a defendant in the performance of repeated criminal acts, or liter-
ally, a “method of working.”
18. Evidence: Other Acts. A prior bad act cannot be independently relevant for a
proper purpose if that purpose was not at issue in the case.
19. Rules of Evidence: Other Acts. The rule governing the admissibility of evidence
of other crimes, wrongs, or acts is subject to the overriding protection of Neb.
Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), allowing the exclusion of
evidence if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.
20. Trial: Evidence. Most, if not all, evidence offered by a party is calculated to be
prejudicial to the opposing party; only evidence tending to suggest a decision on
an improper basis is unfairly prejudicial.
21. Rules of Evidence: Words and Phrases. For the purposes of Neb. Evid. R. 403,
Neb. Rev. Stat. § 27-403 (Reissue 2008), unfair prejudice means an undue tend-
ency to suggest a decision based on an improper basis.
22. Rules of Evidence: Other Acts: Time. While remoteness in time may weaken
the value of prior bad acts evidence, such remoteness does not, in and of itself,
necessarily justify exclusion of that evidence.
23. Criminal Law. For departure to take on the legal significance of flight, there
must be circumstances present and unexplained which, in conjunction with the
STATE v. pUllENS 	829
Cite as 281 Neb. 828

leaving, reasonably justify an inference that it was done with a consciousness
of guilt and pursuant to an effort to avoid apprehension or prosecution based on
that guilt.
24. Right to Counsel. once the right to counsel attaches, the accused is entitled to
counsel at every critical stage of the proceeding.
25. ____. A defendant may not use his or her right to counsel to manipulate or
obstruct the orderly procedure in the court or to interfere with the fair administra-
tion of justice.
26. ____. Entitlement to the assistance of counsel and entitlement to the provision of
counsel at public expense are different matters.
27. Right to Counsel: Waiver. A formalistic litany is not required to show that a
waiver of the right to counsel was knowingly and intelligently made, and an intel-
ligent waiver of the right to counsel can be inferred from conduct.
28. Presentence Reports: Waiver: Notice. A defendant waives his or her qualified
right to review the presentence investigation report by not notifying the trial court
that he or she has not personally reviewed the report and that he or she wishes to
do so.
29. Effectiveness of Counsel. A defendant who elects to proceed pro se cannot there-
after complain of the quality of his or her own defense.
30. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective
assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing.
Appeal from the District Court for Douglas County: G reGory
M. Schatz, Judge. Affirmed.
Thomas C. Riley, Douglas County public Defender, and
Timothy p. Burns for appellant.
Stephen M. pullens, pro se.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
heavicaN, 	c.J., 	WriGht, 	coNNolly, 	G errard, 	StephaN,
MccorMack, and M iller-lerMaN, JJ.
MccorMack, J.
I. NATURE oF CASE
A jury found Stephen M. pullens guilty of killing his
mother, Matsolonia Myers (Matsolonia), by throwing her over
a balcony. pullens alleges that the trial court erred by allow-
ing hearsay evidence of a prior attempt by pullens to throw
830 	281 NEBRASkA REpoRTS

Matsolonia off a balcony, admitting into evidence 10 e-mails
without proper authentication, and providing a jury instruction
on voluntary flight when the evidence was insufficient to sup-
port that issue. pullens also alleges that he was denied effective
assistance of counsel at trial, that he was denied his right to
counsel at his sentencing hearing after he demanded to proceed
pro se, and that the trial court abused its discretion in sentenc-
ing him. We affirm.
II. BACkGRoUND
Matsolonia died in the early evening hours of December
13, 2004, from injuries sustained after falling four stories
off the balcony of her apartment in omaha, Nebraska. It is
undisputed that pullens was the only witness. He had been
staying with Matsolonia for approximately 1 week prior to the
incident. It had been 4 years since their last visit, which ended
in some acrimony. pullens claimed that Matsolonia commit-
ted suicide.
1. the fall
pullens testified that during his visit, he noticed Matsolonia
was acting withdrawn and depressed. He described in detail
for the jury aspects of Matsolonia’s life that might have con-
tributed to her depression, including an alleged gambling prob-
lem. pullens testified that on the night of December 13, 2004,
Matsolonia was acting especially odd. Suddenly, she accused
pullens of wanting to hurt her. She then said, “‘Well, okay,
fine,’” took off her glasses, set them on the table, and inexpli-
cably walked out to the balcony.
out of concern for Matsolonia’s well-being, pullens fol-
lowed her. Matsolonia was leaning over the railing, which was
about chest high. pullens testified that when he approached
Matsolonia, she unexpectedly stepped on his foot and leaned
into his body so as to hoist herself up to a seated position
on the railing. She then pushed pullens away and let herself
fall backward.
pullens testified that he tried to grab onto the lapels of
Matsolonia’s 	fleece 	pullover 	jacket, 	but 	that 	she 	slipped
STATE v. pUllENS 	831
Cite as 281 Neb. 828

through. He then very briefly tried to hold her by the neck, but
he was unable to keep her from falling. According to pullens,
Matsolonia never yelled or screamed as she fell. He testified
that she “didn’t say a word, like she expected it.”
pullens explained that before going downstairs to where
Matsolonia lay on the ground, he may have disturbed some
items in Matsolonia’s apartment while “running around” look-
ing for his shoes and a key to get back inside. Also, when he
was sitting on the sofa putting on his shoes, he found part of
Matsolonia’s necklace in the sleeve of his shirt and left it on
the sofa. He called the 911 emergency dispatch service and was
near Matsolonia when paramedics arrived.
The State presented a different version of what occurred the
night of December 13, 2004. The pathologist who examined
Matsolonia’s body gave the opinion that Matsolonia had been
strangled and rendered unconscious before being thrown over
the balcony. This was based on observations of hemorrhaging
in Matsolonia’s trachea and larynx. Matsolonia also had an
abrasion injury on her neck and chin that matched the zip-
per of the high-necked jacket lapels of the pullover she was
wearing that night. This abrasion, the pathologist explained,
could only be caused by placing direct pressure to the zip-
per against the skin—such as in the act of strangulation. The
pathologist explained that the abrasion injury and the injuries
to Matsolonia’s trachea and larynx could not have been caused
by the fall and that the injuries could not have been caused by
an attempt to hold onto Matsolonia by her jacket lapels. The
pathologist did not specifically rebut pullens’ assertion that
he had grabbed Matsolonia by the neck in order to keep her
from falling.
The State also presented evidence that a struggle had ensued
in Matsolonia’s apartment before she fell. In the living room
area where the balcony was located, the officers discovered that
the glass coffee table top was askew and partially off its base.
A piece of a necklace was found under a pillow on the couch,
the other pieces of which were found on Matsolonia’s body.
Matsolonia’s glasses were lying on the floor directly in front of
the sliding glass doors that lead to the balcony. The contents of
her purse had been dumped on her bed.
832 	281 NEBRASkA REpoRTS

2. pulleNS’ prior threat
Much of the trial focused on the relationship between pullens
and Matsolonia. Seven letters written by pullens to Matsolonia
were found in Matsolonia’s apartment and were entered into
evidence. In some of the letters, pullens accused Matsolonia
of being abusive and vindictive, and of playing games with
people’s lives. In others, he expressed his forgiveness and love
for her. pullens made references to Matsolonia’s exaggerating
events which occurred during his last visit in 2000.
pullens explained at trial that the last time he had visited
Matsolonia in 2000, he had confronted her about her gambling
issues. pullens stated that he told Matsolonia that if she were
going to throw her life away, she might as well “just jump over
the balcony.” pullens explained that Matsolonia used that state-
ment “as an excuse to make a big deal out of it.” He denied
ever yelling or having any physical altercation with her. pullens
explained that Matsolonia was a “very strong woman” and that
if he “would have even touched her at any point she would
have had the police there . . . immediately.” He noted that they
had grown closer recently and that he did not think much of
the incident.
prior to this testimony, defense counsel had sought to exclude
the State’s witness to Matsolonia’s alleged excited utterance, in
which she reported that pullens had threatened to kill her dur-
ing the visit in 2000. The court overruled defense counsel’s
objections, which were based on hearsay and prior bad acts.
Defense counsel did not take issue with the adequacy of the
State’s notice on these issues. The trial court found that the
hearsay fell under the residual hearsay exception, because it
was an excited utterance, and it found that, although it was a
prior bad act, the 2000 incident was admissible for the proper
purposes of intent, identity, modus operandi, and absence of
mistake or accident.
Matsolonia’s 	ex-husband, 	lawrence 	kenneth 	Myers
(kenneth), testified that one morning during pullens’ 2000
visit, he came home to find Matsolonia extremely upset.
kenneth testified that, while choked with emotion and hardly
coherent, Matsolonia explained that pullens had lifted her up
onto the balcony and had threatened to throw her over. He had
STATE v. pUllENS 	833
Cite as 281 Neb. 828

eventually dropped her to the floor and left. The State adduced
evidence that Matsolonia obtained a protection order against
pullens soon after the incident.
3. fliGht, e-M ailS, aNd coNfeSSioN
The State also sought to show pullens’ voluntary flight from
the police. When the police and rescue personnel arrived on
December 13, 2004, pullens had refused to give a detailed
statement because he said he was drunk and did not “‘want
to say anything wrong.’” He was taken directly to the police
station for blood and DNA sampling, but he was not placed
under arrest at that time. Instead, officer ken kanger agreed
to transport pullens from the police station to a motel. kanger
told pullens that he would be back early the next morning
in order to discuss the facts surrounding Matsolonia’s death.
When kanger returned at approximately 10:45 a.m., pullens
had checked out and was gone.
pullens testified that he knew he was a suspect and had no
intention of speaking to kanger until he found a lawyer. He
purchased a car and slept in it until leaving town 3 days later.
pullens stated that during the 3-day period he was in town,
he tried, unsuccessfully, to obtain a lawyer and locate his
sister. pullens claimed he had also attempted to call and send
e-mails to kanger because he wanted to get his passport and
other belongings from Matsolonia’s apartment. He had been
living in Switzerland on a short-term assignment before visit-
ing Matsolonia, and he was looking for another job. There is
some evidence that he may have still maintained an apartment
in Switzerland.
kanger had no record of pullens’ alleged attempts to contact
him while in omaha. kanger testified that he did not hear from
pullens until receiving an e-mail from California on December
21, 2004. In the 7-page e-mail, pullens apologized for not
getting back to kanger sooner. This was the beginning of an
e-mail correspondence between kanger and pullens that lasted
more than a year. pullens testified that he sent approximately
47 e-mails to kanger during this time. Most of the e-mails
were sent from Switzerland, where pullens returned in January
2005, as soon as he was able to obtain a replacement passport.
834 	281 NEBRASkA REpoRTS

According to evidence submitted by the State, pullens procured
the passport fraudulently after two attempts in which he lied
about how the passport had been lost.
Ten e-mails sent from pullens to kanger, consisting of 56
pages in total, were entered into evidence by the State. Through
the e-mails, the State sought to demonstrate pullens’ con-
scious flight from the omaha police, as well as inconsistencies
between the multitude of stories recounted by pullens describ-
ing the night of December 13, 2004. In one e-mail, pullens
stated that a stranger had killed Matsolonia and threatened
to kill pullens if he told anyone. In another, pullens admitted
it was he who killed Matsolonia. The e-mails also provided
numerous details concerning Matsolonia and pullens’ relation-
ship. The court overruled defense counsel’s objection that the
State had failed to lay sufficient foundation to show that the
e-mails were authored by pullens. The State presented expert
testimony, described in more detail in our analysis section
below, which verified pullens’ usage of the e-mail accounts and
the personal facts described in the e-mails.
In one of his e-mails written from Switzerland, pullens
explained: “I am . . . aware that you don[’]t have a prima
Facia [sic] case or enough to extridite [sic] me to the US from
Switzerland or ANY EU country. I am aware that their [sic]
is a difference between Switzerland and the EU countries in
this matter.” In the e-mail, pullens described Matsolonia as
abusive, controlling, and manipulative. He wrote that she had
once previously lied about his threatening to throw her over a
balcony—simply to deflect criticism of her gambling. pullens
indicated in his e-mails that Matsolonia may have committed
suicide. He wrote: “[I]s it not a little too neat to have someone
bogus-ly [sic] say that I threatened [Matsolonia] and then have
her die in the Exact manner she said she was threatened?”
In 	later 	e-mails, 	pullens 	wrote 	that 	he 	suspected 	the
omaha police had a warrant for his arrest. In an e-mail dated
September 3, 2005, pullens wrote, “I am so tired of running
from you and I just want all of this to end.” It is in this e-mail
that he confessed to throwing Matsolonia off the balcony. At
trial, pullens explained that this e-mail was meant to be read
as “scornfully ironic.”
STATE v. pUllENS 	835
Cite as 281 Neb. 828

In an e-mail dated September 19, 2005, pullens writes, “I
am coming back and know that you are going to arrest me.” It
appears that by this time, the foreign consulate had confiscated
pullens’ passport. pullens eventually returned to omaha, where
he was arrested.
4. Jury iNStructioNS, verdict, aNd SeNteNciNG
pullens was charged with second degree murder. At trial, the
jury was instructed, over pullens’ objection, that it could con-
sider “voluntary flight of a person immediately or soon after
the occurrence of a crime” as a “circumstance, not sufficient
of itself, to establish guilt.” The jury was also instructed that
it could consider kenneth’s testimony about the prior threat to
Matsolonia only for the limited purpose of establishing pullens’
intent, absence of mistake, identity, and modus operandi, and
that it could not consider this testimony to prove pullens’ char-
acter and that he acted in conformity therewith. pullens did
not object to the form of the prior bad act instruction. The jury
found him guilty.
After the verdict, pullens became dissatisfied with his pri-
vately retained counsel. The facts pertaining to the sentencing
hearings will be discussed in further detail below. In summary,
pullens requested that the court appoint him a public defender
or that he be granted a continuance to find new, privately
retained counsel. The court refused both requests, and pullens
elected to represent himself pro se, with counsel present as
standby. There is no record of the court’s conducting a spe-
cific colloquy with pullens to determine that his decision to
represent himself was made knowingly and intelligently, nor
were there explicit findings to that effect. The court sentenced
pullens to a term of imprisonment from 80 years to life. He
was appointed new counsel for this appeal.
III. ASSIGNMENTS oF ERRoR
pullens alleges that the trial court erred (1) in allowing
kenneth to testify that in November 2000, Matsolonia told him
that she and pullens had a confrontation and that he tried to
throw her off the balcony; (2) in allowing into evidence e-mails
without proper authentication as required under Neb. Evid. R.
836 	281 NEBRASkA REpoRTS

901, Neb. Rev. Stat. § 27-901 (Reissue 2008); (3) in giving jury
instruction No. 14 regarding voluntary flight; (4) in denying
pullens the right to counsel at his sentencing hearing; (5) in
abusing its discretion in sentencing pullens; and (6) in denying
him effective assistance of counsel at trial.
IV. STANDARD oF REVIEW
[1] Apart from rulings under the residual hearsay excep-
tion, we review for clear error the factual findings underpin-
ning a trial court’s hearsay ruling and review de novo the
court’s ultimate determination to admit evidence over a hear-
say objection.1
[2] Because of the factors a trial court must weigh in
deciding whether to admit evidence under the residual hear-
say exception, an appellate court applies an abuse of discre-
tion standard to hearsay rulings under the residual hearsay
exception.2
[3] We review for clear error the trial court’s factual find-
ings underpinning the excited utterance hearsay exception,
resolving evidentiary conflicts in favor of the successful party,
who is entitled to every reasonable inference deducible from
the evidence.3
[4] Under a clearly erroneous standard of review, we do not
reweigh the evidence but consider the judgment in a light most
favorable to the successful party, resolving evidentiary con-
flicts in favor of the successful party, who is entitled to every
reasonable inference deducible from the evidence.4
[5] It is within the discretion of the trial court to determine
relevancy and admissibility of evidence of other wrongs or acts
under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
and 27-404(2) (Reissue 2008), and the trial court’s decision
will not be reversed absent an abuse of discretion.5
1 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
2 State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
3 See, State v. Draganescu, supra note 1; Henriksen v. Gleason, 263 Neb.
840, 643 N.W.2d 652 (2002).
4 See Henriksen v. Gleason, supra note 3.
5 See State v. Epp, supra note 2.
STATE v. pUllENS 	837
Cite as 281 Neb. 828

[6] Because authentication rulings are necessarily fact spe-
cific, a trial court has discretion to determine whether evi-
dence has been properly authenticated, and an appellate court
reviews a trial court’s ruling on authentication for an abuse
of discretion.6
[7] In reviewing a claim of prejudice from jury instructions
given or refused, an appellate court must read the instructions
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 evidence, there is no prejudicial error
necessitating reversal.7
[8] In determining whether a defendant’s waiver of counsel
was voluntary, knowing, and intelligent, an appellate court
applies a “clearly erroneous” standard of review.8
[9] A decision whether to grant a continuance in a criminal
case is within the discretion of the trial court and will not be
disturbed on appeal absent an abuse of discretion.9
V. ANAlYSIS
1. prior threat
We first address pullens’ argument that the trial court
should have excluded testimony that during the 2000 visit,
pullens had threatened to throw Matsolonia off a balcony.
It has been said to be “a universally established rule” that
in prosecutions for murder, prior threats by the defendant
against the life of the deceased are competent evidence to
demonstrate the defendant’s state of mind.10 Common sense,
experience, and logic dictate that evidence of prior quarrels
between the same parties is relevant on the issue whether
the accused committed the charged acts.11 Nevertheless, for
6 See id.
7 See Karel v. Nebraska Health Sys., 274 Neb. 175, 738 N.W.2d 831
(2007).
8 State v. Figeroa, 278 Neb. 98, 767 N.W.2d 775 (2009).
9 State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
10 40A Am. Jur. 2d Homicide § 301 at 161 (2008). See, also, e.g., State v.
Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000).
11 See People v. Zack, 184 Cal. App. 3d 409, 229 Cal. Rptr. 317 (1986).
838 	281 NEBRASkA REpoRTS

such evidence to be admissible, it must satisfy all applicable
evidentiary rules.12 The prior threat in this case crosses paths
with two exclusionary rules: the rule against hearsay13 and
the rule against the admission of prior bad acts.14 We first
address hearsay.
(a) Hearsay
The State offered kenneth’s testimony under the residual
hearsay exception.15 We note at the outset, however, that in
allowing the testimony, the trial court spent considerable analy-
sis concluding that Matsolonia’s hearsay statement satisfied
the criteria for the excited utterance hearsay exception found
in Neb. Evid. R. 803(1), Neb. Rev. Stat. § 27-803(1) (Reissue
2008). In determining admissibility under the residual hearsay
exception, a court may compare the declaration to the “closest”
hearsay exception as well as consider a variety of other factors
affecting trustworthiness.16
Given that the trial court ultimately found that the state-
ment was an excited utterance, we find it unnecessary and
redundant to analyze the additional factors of trustworthiness
which the court concluded bolstered the statement’s admis-
sibility. We agree that the statement was an excited utterance
and that it was, for that reason, properly admitted over pullens’
hearsay objection. In so concluding, we review for clear error
the trial court’s factual findings underpinning the exception,
resolving evidentiary conflicts in favor of the successful party,
who is entitled to every reasonable inference deducible from
the evidence.17
12 See Slakman v. State, 272 Ga. 662, 533 S.E.2d 383 (2000). See, also, State
v. Watts, 85 S.D. 638, 188 N.W.2d 913 (1971).
13 Neb. Evid. R. 802, Neb. Rev. Stat. § 27-802 (Reissue 2008).
14 § 27-404.
15 Neb. Evid. R. 804(2)(e), Neb. Rev. Stat. § 27-804(2)(e) (Reissue 2008).
16 State v. Epp, supra note 2, 278 Neb. at 695, 773 N.W.2d at 370. See,
also, Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 l. Ed. 2d 638
(1990).
17 See, State v. Draganescu, supra note 1; Henriksen v. Gleason, supra
note 3.
STATE v. pUllENS 	839
Cite as 281 Neb. 828

Viewing kenneth’s testimony at trial and in the pretrial hear-
ing as a whole, he made the following account: kenneth testi-
fied that sometime in 2000, pullens spent several days visiting
Matsolonia and kenneth at their home in omaha. one eve-
ning, kenneth decided to spend the night in a motel. kenneth
explained that he left home around 10 p.m. because he “didn’t
want to converse any more with . . . the present people that
were there.” kenneth stated that to the best of his recollection,
it was around 9 a.m. when he arrived back home the next day.
He was not completely certain of the time, but explained that
he was an early riser and had returned home soon after wak-
ing up.
When kenneth opened the door, Matsolonia immediately
came to meet him. She was visibly upset. kenneth observed
that Matsolonia was fully dressed, and he surmised that she
had not yet changed from being out all night at the casinos.
She had a small “nick” on the side of her eye. kenneth testi-
fied that in the 7 years of their marriage, he had never seen her
so emotional.
Unsolicited, Matsolonia began to give kenneth a “teary-eyed
and incoherent, raggedy, choked-up kind of explanation” of
what had occurred. Matsolonia indicated that she and pullens
had argued. The argument escalated into a physical tussle,
and pullens physically took Matsolonia out onto the balcony.
Matsolonia stated that pullens then picked her up and threat-
ened to throw her over. But instead, he dropped her onto the
cement floor of the balcony and left.
[10,11] For a statement to qualify as an excited utterance,
the following criteria must be established: (1) There must
have been a startling event, (2) the statement must relate to
the event, and (3) the statement must have been made by the
declarant while under the stress of the event.18 The underlying
theory of the excited utterance exception is that circumstances
may produce a condition of excitement which temporarily stills
the capacity of reflection and produces utterances free of con-
scious fabrication.19
18 State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996).
19 State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).
840 	281 NEBRASkA REpoRTS

(i) Bootstrapping
pullens first argues that the statement was improperly admit-
ted, because there was only Matsolonia’s hearsay statement
to establish the startling event. pullens asserts that we should
not allow hearsay to thus lift itself into admissibility by its
own bootstraps.20 We have never before directly addressed this
question. Rule 104 of the Nebraska Evidence Rules,21 adopted
in 1975, generally states that preliminary questions of admis-
sibility shall be addressed to the trial judge and that they shall
be addressed outside the presence of the jury in the case of
confessions or where the interests of justice so require. But
the rules are silent on whether the rules of evidence apply
to such determinations or whether so-called bootstrapping
is permitted.
Rule 104 omitted the following statement from the cor-
responding federal rule: “In making its determination [the
judge] is not bound by the rules of evidence except those
with respect to privileges.”22 The Nebraska Supreme Court
Committee on practice and procedure, in its comments to the
proposed rule 104, explained that the omission was merely
intended to avoid “unduly encourag[ing] the trial judge to
depart from the usual rules.”23 Because the resolution of this
question depends in part on a determination of the “usual
rules” as the drafters of rule 104 understood it, we find a his-
torical analysis of preliminary determinations of admissibility
to be instructive.
As is the case in determinations of whether evidence satis-
fies the excited utterance hearsay exception, admissibility of
evidence frequently depends on resolution of difficult pre-
liminary questions of fact.24 Since early common law, those
questions were resolved by the trial judge and were not the
20 See 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence § 803.04[2][a] (Joseph M. Mclaughlin ed., 2d ed. 2009).
21 Neb. Evid. R. 104, Neb. Rev. Stat. § 27-104 (Reissue 2008).
22 Fed. R. Evid. 104(a).
23 proposed Nebraska Rules of Evidence, rule 104, comment at 17 (1973).
24 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence
§ 104.02[1] (Joseph M. Mclaughlin ed., 2d ed. 2010).
STATE v. pUllENS 	841
Cite as 281 Neb. 828

province of the jury.25 While actual practice was unclear,
the earliest published opinions appeared to generally impose
evidentiary rules upon the court’s determination of these pre-
liminary questions.26 However, several exceptions were noted,
especially in allowing consideration of inadmissible hearsay
for the sake of convenience, and by 1923, professor Wigmore
set forth the general proposition that in preliminary rulings by
a judge on the admissibility of evidence, the ordinary rules of
evidence simply do not apply.27
Around the same time, courts and commentators began to
respond to criticism that certain preliminary fact questions
closely related to the merits of the case should be given to
the jury instead of the judge.28 A “modern rule” emerged
which distinguished between preliminary facts conditioning
the logical relevance of other evidence before the trier of fact
and preliminary facts conditioning the application of technical
evidentiary rules, such as the hearsay doctrine.29 By the mid-
20th century, it seemed well established, at least in academic
circles, that preliminary facts conditioning logical relevance
were generally matters for the jury and were, accordingly,
restricted to the rules of evidence.30 But facts conditioning
whether relevant evidence is excludable under one of the
“technical” exclusionary rules were normally to be deter-
mined outside the jury’s presence by the judge. And the judge
was not considered to be constrained to those preliminary
25 See, John MacArthur Maguire & Charles S.S. Epstein, Rules of Evidence
in preliminary Controversies as to Admissibility, 36 Yale l.J. 1101 (1927);
45 Am. Jur. Trials 1, § 6 (1992).
26 See Maguire & Epstein, supra note 25.
27 See id., citing 3 John Henry Wigmore, A Treatise on the Anglo-American
System of Evidence in Trials at Common law § 1385 (2d ed. 1923).
28 See 45 Am. Jur. Trials 1, supra note 25, § 7.
29 See id., § 8. See, also, Edmund M. Morgan, Functions of Judge and Jury
in the Determinations of Preliminary Questions of Fact, 43 Harv. l. Rev.
165 (1929).
30 See, 1 McCormick on Evidence § 53 (John William Strong et al. eds., 4th
ed. 1992); 45 Am. Jur. Trials 1, supra note 25, § 61.
842 	281 NEBRASkA REpoRTS

facts which themselves would be admissible under the rules
of evidence.31
In United States v. Matlock,32 the U.S. Supreme Court sum-
marized: “[I]t should be recalled that the rules of evidence
normally applicable in criminal trials do not operate with full
force at hearings before the judge to determine the admissibil-
ity of evidence.” The Court went on to state:
There is . . . much to be said for the proposition that
in proceedings where the judge himself is considering the
admissibility of evidence, the exclusionary rules, aside
from rules of privilege, should not be applicable; and
the judge should receive the evidence and give it such
weight as his judgment and experience counsel. However
that may be, certainly there should be no automatic rule
against the reception of hearsay evidence in such pro-
ceedings . . . .33
other authorities have explained that traditional exclusion-
ary rules of evidence, such as hearsay, are “‘“the child of the
jury system”’”34; they evolved “because the judges feared that
unsophisticated lay jurors would attach undue weight to such
evidence.”35 There is no logical necessity to apply such rules at
the foundational stage to the judge’s determinations.36 To the
contrary, the trial judge’s experience and legal training can be
relied on to inform crucial distinctions and to reveal the inher-
ent weakness of evidence by affidavit or hearsay.37
31 See id.
32 United States v. Matlock, 415 U.S. 164, 172-73, 94 S. Ct. 988, 39 l. Ed.
2d 242 (1974) (citing Brinegar v. United States, 338 U.S. 160, 69 S. Ct.
1302, 93 l. Ed. 1879 (1949), and Bridges v. Wixon, 326 U.S. 135, 65 S.
Ct. 1443, 89 l. Ed. 2103 (1945)).
33 Id., 415 U.S. at 175.
34 Fed. R. Evid. 104(a), advisory committee’s note.
35 45 Am. Jur. Trials 1, supra note 25, § 61 at 94.
36 Edward J. Imwinkelried, Evaluating the Reliability of Nonscientific Expert
Testimony: A Partial Answer to the Questions Left Unresolved by kumho
Tire Co. v. Carmichael, 52 Me. l. Rev. 19 (2000).
37 1 Weinstein & Berger, supra note 24, § 104.11[1][a].
STATE v. pUllENS 	843
Cite as 281 Neb. 828

In fact, in certain situations, a suspension of the rules of evi-
dence is a practical necessity, such as where the content of the
asserted declaration against interest must be considered in rul-
ing whether it is in fact against interest, or where the testimony
of a witness must be considered in determining competency.38
More generally, elimination of the rules of evidence for pre-
liminary determinations of facts conditioning technical exclu-
sionary rules is desirable because it expedites the preliminary
hearing and, therefore, the trial itself.39
pullens recognizes that under these principles, the major-
ity of other state and federal jurisdictions have explicitly held
that independent corroborative proof of the startling event is
not required in order to admit excited utterance evidence.40
Furthermore, in Bourjaily v. United States,41 the U.S. Supreme
Court held that under the federal rules of evidence, there is
no prohibition against so-called bootstrapping in making pre-
liminary determinations. Nevertheless, pullens argues that in
Nebraska, rule 104 mandates a different approach.
As the U.S. Supreme Court in Matlock explained, federal
rule of evidence 104(a), including the phrase, “[i]n making its
determination [the judge] is not bound by the rules of evidence
except those with respect to privileges,” was transmitted to
Congress based on the Court’s aforementioned view of common
law at that time.42 While there are no cases squarely address-
ing this question in Nebraska, it is clear from the Nebraska
38 Annot., 39 A.l.R. Fed. 720 (1978 & Supp. 2010-11).
39 1 Weinstein & Berger, supra note 24, § 104.11[1][a].
40 See, e.g., U.S. v. Arnold, 486 F.3d 177 (6th Cir. 2007); U.S. v. Brown,
254 F.3d 454 (3d Cir. 2001); United States v. Moore, 791 F.2d 566 (7th
Cir. 1986); Wetherbee v. Safety Casualty Company, 219 F.2d 274 (5th Cir.
1955); Wheeler v. United States, 211 F.2d 19 (D.C. Cir. 1953); People v.
Franklin, 683 p.2d 775 (Colo. 1984); Com. v. Alvarado, 36 Mass. App.
604, 634 N.E.2d 132 (1994); Johnston v. W. S. Nott Co., 183 Minn. 309,
236 N.W. 466 (1931); State v. Smith, 178 W. Va. 104, 358 S.E.2d 188
(1987). See, also, 2 McCormick on Evidence § 272 (John William Strong
et al. eds., 4th ed. 1992); 5 Weinstein & Berger, supra note 20.
41 Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 l. Ed. 2d
144 (1987).
42 United States v. Matlock, supra note 32.
844 	281 NEBRASkA REpoRTS

Supreme Court committee’s comments that it believed our
“usual rules” largely coincided with those articulated by the
U.S. Supreme Court and by the federal rules. The Nebraska
Supreme Court committee quoted at length the federal advisory
committee’s notes to its corresponding rule 104,43 including
the following:
“Should the exclusionary law of evidence, ‘the child of
the jury system’ in Thayer’s phrase,[44] be applied to this
hearing before the judge? Sound sense backs the view that
it should not, and that the judge should be empowered to
hear any relevant evidence, such as affidavits or other reli-
able hearsay.”45
The Nebraska Supreme Court committee’s quotation of the
federal advisory committee then ends with a summation of
a tentative California rule, which was never adopted, and a
New Jersey evidence rule, both of which stated in summary
that the rules of evidence, other than claims of privilege, are
inapplicable to preliminary determinations made by a judge.
Directly after this extensive quote, the Nebraska Supreme
Court committee concluded: “This rule has always been applied
in Nebraska.”46
[12] Thus, we reject pullens’ contention that Nebraska, by
case law or statute, has adopted a position distinct from federal
law and the majority of other states.47 We accordingly find no
support for pullens’ argument that in determining a startling
event occurred, the trial court clearly erred because a sub-
stantial piece of the evidence of such event was Matsolonia’s
hearsay statement describing what had startled her. As early
as 1869, published cases have demonstrated that a trial judge
may consider hearsay evidence which itself fails to satisfy any
43 proposed Nebraska Rules of Evidence, supra note 23.
44 James Bradley Thayer, A preliminary Treatise on Evidence at the Common
law 266 (1898).
45 proposed Nebraska Rules of Evidence, supra note 23, comment at 18. See,
also, United States v. Matlock, supra note 32.
46 proposed Nebraska Rules of Evidence, supra note 23, comment at 19.
47 See 2 Clifford S. Fishman, Jones on Evidence Civil and Criminal § 11:21
(7th ed. 1994 & Cum. Supp. 2001).
STATE v. pUllENS 	845
Cite as 281 Neb. 828

exception, in making a preliminary determination that a shock-
ing or startling event has taken place.48 In State v. Jacob,49 we
upheld the admission of the victim’s declaration, as an excited
utterance, that the defendant had come to her house and threat-
ened her, even though there was no independent physical evi-
dence of the visit and threat.
In fact, some commentators have argued that many excited
utterance cases do not truly present the hearsay bootstrapping
issue that, at first blush, they appear to present.50 Even in the
minority of jurisdictions which prohibit “bootstrapping,” courts
recognize a fundamental distinction between the statement
itself and the outward manifestations of distress observable by
the witness to the statement.51 The witnesses’ observations of
the declarant’s emotional state are independent evidence suf-
ficient to show a startling event.52 And it is logical to infer that
a visibly upset individual was startled by the events he or she
described while upset.53 The question of whether further cor-
roborating evidence is needed in a given case is committed to
the discretion of the trial judge.54
48 See, e.g., Insurance Company v. Mosley, 75 U.S. (8 Wall.) 397, 19 l.
Ed. 437 (1869); Stewart v. Baltimore & O. R. Co., 137 F.2d 527 (2d Cir.
1943); Preferred Accident Ins. Co. of New York v. Combs, 76 F.2d 775 (8th
Cir. 1935); Industrial Com. v. Diveley, 88 Colo. 190, 294 p. 532 (1930);
National Life & Accident Ins. Company v. Hedges, 233 ky. 840, 27 S.W.2d
422 (1930); Johnston v. W. S. Nott Co., supra note 40; Collins v. Ins. Co.,
122 W. Va. 171, 8 S.E.2d 825 (1940).
49 State v. Jacob, supra note 19.
50 See, Maguire & Epstein, supra note 25; Charles T. McCormick, The
Procedure of Admitting and Excluding Evidence, 31 Tex. l. Rev. 128
(1952). See, also, 2 McCormick on Evidence, supra note 40.
51 See, People v. Barrett, 480 Mich. 125, 747 N.W.2d 797 (2008); State v.
Young, 160 Wash. 2d 799, 161 p.3d 967 (2007). See, also, U.S. v. Hadley,
431 F.3d 484 (6th Cir. 2005). But see State v. Post, 901 S.W.2d 231 (Mo.
App. 1995).
52 See id. See, also, Wetherbee v. Safety Casualty Company, supra note 40;
Wheeler v. United States, supra note 40; Stewart v. Baltimore & O. R. Co.,
supra note 48.
53 See, e.g., U.S. v. Brown, supra note 40.
54 See id.
846 	281 NEBRASkA REpoRTS

We noted in Jacob that when the victim made her dec-
laration, she appeared flushed, fidgety, and visibly upset.
Similarly in this case, kenneth described visible manifestations
of Matsolonia’s excitement. Moreover, kenneth observed an
injury, albeit minor, to Matsolonia’s face. The State also intro-
duced evidence that a restraining order was issued around the
time of the alleged threat to keep pullens away from Matsolonia.
In concluding that a startling event had occurred, the trial court
utilized this evidence in conjunction with Matsolonia’s hearsay
description of what had occurred. The trial court also specifi-
cally found that the hearsay description was “reliable” insofar
as kenneth had no cause to fabricate what he heard Matsolonia
say. While pullens asserts reasons why Matsolonia might have
been lying to kenneth when she made her statements, the
trial court did not abuse its discretion in finding those argu-
ments unconvincing. Moreover, Matsolonia’s alleged unreli-
ability and the theory that she had lied about pullens’ prior
threat was fully explored by the defense at trial, and the jury
could consider this in determining what weight to give to the
excited utterance.55
(ii) Time Between Event and Declaration
pullens next argues that the declaration fails to satisfy the
spontaneity criteria for an excited utterance. He argues there
was insufficient evidence that the incident occurred near the
time of the declaration.
[13] We have explained that the time interval between the
startling event and the statement in question is not, of itself,
dispositive of the spontaneity issue.56 The true test in sponta-
neous exclamations is not when the exclamation was made,
but whether under all the circumstances of the particular excla-
mation the speaker may be considered as speaking under the
stress of nervous excitement and shock produced by the act
in issue.57
55 See, e.g., State v. Jeffers, 135 Ariz. 404, 661 p.2d 1105 (1983).
56 State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).
57 State v. Jacob, supra note 19.
STATE v. pUllENS 	847
Cite as 281 Neb. 828

We have never held, as pullens seems to argue, that there
must be definitive and direct evidence of the time of the star-
tling event. Rather, we have upheld the admission of statements
as excited utterances despite the fact that the record did not
precisely reflect the passage of time between the startling event
and the declaration, so long as there was a plausible inference
from the totality of the circumstances that the declarant did not
have time to calmly reflect upon the event.58 We have found it
to be particularly persuasive evidence that a declarant was still
under the stress of the event when he or she was visibly upset
at the time of the statement.59
Despite the fact that kenneth did not witness what occurred
during the time of his departure the night before the startling
event and his arrival the next morning, his testimony supports
the inference that it occurred shortly before kenneth returned
home. The trial court did not clearly err in concluding that at
the time of her declaration to kenneth, Matsolonia was still
under the stress of nervous excitement and shock produced
by her son’s picking her up on the balcony and threatening to
throw her over. pullens makes no other argument pertaining
to his hearsay objection, and we conclude that it was prop-
erly overruled.
(b) prior Bad Act
[14] We next address pullens’ argument that the evidence of
his prior threat to Matsolonia was inadmissible because it did
not satisfy the criteria for admission of prior bad acts under
rule 404(2) or the overarching protections of rule 403. It is
within the discretion of the trial court to determine relevancy
and admissibility of evidence of other wrongs or acts under
rules 403 and 404(2), and the trial court’s decision will not
be reversed absent an abuse of discretion.60 likewise, deter-
minations of whether the probative value of the evidence is
58 Id.; State v. Newman, 5 Neb. App. 291, 559 N.W.2d 764 (1997), over-
ruled on other grounds, State v. Becerra, 253 Neb. 653, 573 N.W.2d 397
(1998).
59 See id. See, also, 2 McCormick on Evidence, supra note 40.
60 See State v. Epp, supra note 2.
848 	281 NEBRASkA REpoRTS

substantially outweighed by the danger of unfair prejudice and
other considerations described in rule 403 is a matter within
the district court’s discretion and will not be reversed on appeal
absent an abuse of that discretion.61
[15] The admission of prior bad acts involves three ele-
ments: (1) The evidence was relevant for some purpose other
than to prove the character of a person to show that he or she
acted in conformity therewith, (2) the probative value of the
evidence is substantially outweighed by its potential for unfair
prejudice, and (3) the trial court, if requested, instructed the
jury to consider the evidence only for the limited purpose for
which it was admitted.62 The trial court gave a limiting instruc-
tion as requested by pullens, and pullens does not contest the
adequacy of that instruction to focus the jury’s attention away
from prohibited inferences if the prior bad act had otherwise
been admissible. We hold that the prior bad act was properly
admitted into evidence.
(i) Was There Clear and Convincing
Evidence of Prior Bad Act?
pullens first argues that the trial court erred in finding
that the State had made an adequate showing that a prior
bad act occurred. Even if admissible under the three factors
listed above, as a preliminary matter, rule 404(2) requires
that the State prove the prior bad act by clear and convinc-
ing evidence.
The trial court based its finding largely on its assessment that
kenneth was credible and truthful in his report of Matsolonia’s
condition and as to what she had declared. pullens questions
Matsolonia’s credibility and states that there is “no evidence
to back up her story.”63 pullens’ argument largely overlaps
the “bootstrapping” issue already discussed in our analysis
of the hearsay question. pullens fails to cite any authority for
the proposition that a victim’s excited utterance is insufficient
to prove a prior bad act and must be independently verified.
61 State v. Clark, 8 Neb. App. 936, 605 N.W.2d 145 (2000).
62 See State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000).
63 Brief for appellant at 26.
STATE v. pUllENS 	849
Cite as 281 Neb. 828

In fact, other courts have expressly held that a prior bad act,
admitted for a proper purpose, may be established through
hearsay testimony, so long as the testimony comes within one
of the exceptions to the hearsay rules.64 We have already deter-
mined that the testimony came within the excited utterance
hearsay exception. Despite pullens’ view of Matsolonia’s char-
acter, it was within the court’s discretion to consider whether
Matsolonia was credible. We conclude that the trial court did
not abuse its discretion in determining that a prior bad act had
been shown.
(ii) Was Prior Bad Act Admitted
for Proper Purpose?
pullens also argues that there was no proper purpose for the
bad act evidence. The general rule concerning prior bad acts is
that if the proffered evidence invites the jury to focus its atten-
tion on the character of the defendant rather than determining
what actually happened, it is impermissible character evidence
and should be excluded.65 However, evidence of other crimes
which is relevant for any purpose other than to show the actor’s
propensity is admissible under rule 404(2).66
It is commonly held that prior threats or attacks by the
defendant upon the victim may be relevant not to show a gen-
eral propensity toward violence, but, rather, to demonstrate the
nature of the relationship between the victim and the defend-
ant and the defendant’s feelings toward the victim.67 This, in
turn, may demonstrate proper purposes of intent, motive, and
absence of mistake or accident.68 Identity or modus operandi
is also shown where the prior threat makes reference to a
64 See State v. Charo, 156 Ariz. 561, 754 p.2d 288 (1988).
65 1 Barbara E. Bergman & Nancy Hollander, Wharton’s Criminal Evidence
§ 4:26 (15th ed. 1997).
66 State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999); State v. McManus,
257 Neb. 1, 594 N.W.2d 623 (1999).
67 See, Ross v. State, 676 N.E.2d 339 (Ind. 1996); State v. Reyes, 744 N.W.2d
95 (Iowa 2008); Com. v. Jackson, 900 A.2d 936 (pa. Super. 2006).
68 See id. See, also, State v. Jeffers, supra note 55; State v. Parton, 694
S.W.2d 299 (Tenn. 1985).
850 	281 NEBRASkA REpoRTS

peculiar method of violence that in the end is carried out.69
Furthermore, prior bad act evidence may rebut evidence by
the defendant that he or she would never wish to cause the
victim harm.70
Accordingly, in several cases, we have upheld the admission
of prior attacks or threats by the defendant against the victim.
For instance, in State v. Harper,71 the defendant was charged
with attempted murder of his ex-girlfriend and the murder and
attempted murder of her family members by poisoning drinks
in the ex-girlfriend’s home. on appeal from his conviction,
the defendant argued that the trial court had erred in admitting
evidence of the prior bad act, committed 3 years before, of
driving by the ex-girlfriend’s residence and firing a shotgun at
the ex-girlfriend and members of her family who were sitting
outside. We disagreed. We held that the prior attack was admis-
sible for proper purposes and that its relevancy did not depend
on prohibited character inferences.72
Nevertheless, pullens believes that this case is distinguish-
able from other cases admitting evidence of prior threats or
attacks. pullens’ central premise seems to be that because the
theory of defense in pullens’ trial was that Matsolonia had
committed suicide, there was no proper purpose for which his
prior bad act could be admitted into evidence which was not
substantially outweighed by the risk of unfair prejudice. We
disagree and find that the prior bad act was properly admitted
for the purposes of identity, modus operandi, and intent.
a. Identity and Modus operandi
[16] We first address the trial court’s admission of the prior
threat to Matsolonia for the purposes of identity and modus
operandi. We have stated that other acts evidence may have
probative value as to identity where there are overwhelming
69 See Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993).
70 See, e.g., State v. Jeffers, supra note 55.
71 State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981). See, also, State
v. Canbaz, supra note 10; State v. Martin, 242 Neb. 116, 493 N.W.2d 191
(1992).
72 Id.
STATE v. pUllENS 	851
Cite as 281 Neb. 828

similarities between the other crime and the charged offense
or offenses, such that the crimes are so similar, unusual, and
distinctive that the trial judge could reasonably find that they
bear the same signature.73 An absolute identity in every detail
cannot, however, be expected.74 Where there are an overwhelm-
ing number of significant similarities, the evidence may be
admitted, and any dissimilarities merely go to the weight of
the evidence.75
[17] Modus operandi is a characteristic method employed
by a defendant in the performance of repeated criminal acts,
or literally, a “‘“method of working.”’”76 Although we have
said that the evidentiary function of modus operandi is not
restricted to establishing identity,77 it appears that was its pur-
pose in pullens’ trial. That is how we will address it here.
[18] pullens does not seem to dispute that the prior act
was sufficiently similar to be at least somewhat probative of
identity. His principal argument is that identity and modus
operandi were not issues at trial, because he never claimed
anyone besides himself and Matsolonia were present when she
fell to her death. In other words, pullens believes that identity
and modus operandi can only be at issue if the theory of the
defense is that some third party, other than the defendant or
the victim, perpetrated the crime. We agree that a prior bad act
cannot be independently relevant for a proper purpose if that
purpose was not at issue in the case.78 But we find no abuse of
discretion in the trial court’s determination that identity was at
issue, because the jury had to determine who was responsible
for Matsolonia’s death.
73 State v. Epp, supra note 2.
74 State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994), overruled on other
grounds, State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997).
75 See id.
76 State v. Craig, 219 Neb. 70, 77, 361 N.W.2d 206, 213 (1985).
77 Id.
78 See, State v. Trotter, 262 Neb. 443, 632 N.W.2d 325 (2001); State v.
Sanchez, supra note 66; State v. Stephens, 237 Neb. 551, 466 N.W.2d 781
(1991).
852 	281 NEBRASkA REpoRTS

A similar question was addressed by the Court of Appeals
of ohio in State v. Griffin,79 which upheld the admission of
prior threats by the defendant to kill his wife before she was
ultimately killed by what the defendant claimed was a self-
inflicted gunshot wound. In his defense, the defendant pre-
sented evidence that his wife had become suicidal due to the
deteriorating, turbulent nature of their marriage. The State, in
contrast, presented forensic evidence demonstrating that the
wound could not have been self-inflicted. But the State also
presented prior acts of abuse and threats by the defendant
against his wife.
The court held that the prior bad acts were admissible for the
proper purpose of identity. The court explained: “[The defend-
ant’s] defense was that he was misidentified as the killer—in
essence, that someone else did the shooting, not he. By inter-
posing such a defense (as opposed, for example, to accident
or self-defense), he put in issue his identity as the killer.”80
The court rejected any argument that the issue was whether a
murder was committed, and not who committed the crime. The
fact of “the crime—the shooting death of [the wife]—was open
and evident.”81 There were two suspects, the defendant and the
victim, for this crime. “While it is true that only one of the sus-
pects, the defendant, can be found guilty of murder, evidence
of suicide creates a genuine issue concerning the identity of the
person who pulled the trigger.”82
We agree with the reasoning of the court in Griffin.
pullens’ trial did not present a case where his involvement
was undisputed and where his defense instead rested on the
question of whether he had acted with legal justification or
excuse for his actions. The central issue was the identity
of the person who caused Matsolonia to fall to her death.
pullens spent considerable time in his defense pointing the
finger at Matsolonia. He described the reasons she might
79 State v. Griffin, 142 ohio App. 3d 65, 753 N.E.2d 967 (2001).
80 Id. at 73, 753 N.E.2d at 973.
81 See id.
82 Id. at 74, 753 N.E.2d at 973-74.
STATE v. pUllENS 	853
Cite as 281 Neb. 828

have had for killing herself. There was even evidence of
Matsolonia’s possible motivation for killing herself purpose-
fully in a way to implicate pullens. While the legislature
has elected not to punish those who have made attempts at
their own life,83 we have described suicide as “self-murder.”84
Assisting a suicide is also designated as a crime.85 Whatever
the act is called, under pullens’ theory of defense, someone
intentionally caused Matsolonia’s untimely and unjustified
death. In that sense, the corpus delicti was not in issue at this
trial.86 The jury had to determine only who the agent was of
this unfortunate event. In other words, the jury had to deter-
mine identity. Therefore, identity was a proper purpose for
the prior bad act evidence.
pullens also makes oblique reference to rule 404 evidence
as being in actuality propensity evidence and of its being
more prejudicial than probative. We therefore examine the
probative value of the prior threat to the issue of identity and
whether that value was substantially outweighed by the dan-
ger of unfair prejudice.
[19-21] The rule governing the admissibility of evidence
of other crimes, wrongs, or acts is subject to the overriding
protection of rule 403, allowing the exclusion of evidence if
its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.87 Most, if not all,
evidence offered by a party is calculated to be prejudicial to
the opposing party; only evidence tending to suggest a decision
83 See State v. Fuller, 203 Neb. 233, 278 N.W.2d 756 (1979), modified 204
Neb. 196, 281 N.W.2d 749.
84 Sampson v. Ladies of the Maccabees of the World, 89 Neb. 641, 646, 131
N.W. 1022, 1024 (1911).
85 Neb. Rev. Stat. § 28-307 (Reissue 2008).
86 See Black’s law Dictionary 395 (9th ed. 2009).
87 See, State v. McManus, supra note 66; State v. Myers, 15 Neb. App. 308,
726 N.W.2d 198 (2006).
854 	281 NEBRASkA REpoRTS

on an improper basis is unfairly prejudicial.88 Unfair prejudice
means an undue tendency to suggest a decision based on an
improper basis.89
The question of whether other conduct is sufficiently similar
to the offense charged is a matter left to the sound discretion of
the trial court.90 In both the prior bad act and the crime charged,
pullens lifted Matsolonia up toward the edge of a balcony of
a multi-level condominium building in an attempt to throw her
over. Whether the first time pullens intended to follow through
or merely scare Matsolonia is unknown. But from all outward
appearances, the two incidents are identical in every respect
except (1) they were different balconies and (2) the second
time, pullens completed the task.
[22] We are cognizant that these two incidents were sepa-
rated by a period of 4 years. However, while remoteness in
time may weaken the value of prior bad acts evidence, such
remoteness does not, in and of itself, necessarily justify exclu-
sion of that evidence.91 In this case, the years do little to
weaken the probative value of the prior act. Indeed, pullens
does not argue that it does.
The prior attempt at lifting Matsolonia over a balcony
occurred the very last time pullens saw her before the visit
that ended in her death by the same method. The correspond-
ence from pullens to Matsolonia indicates that their estrange-
ment between the time of these two events was caused by the
prior attempt, or, from pullens’ point of view, Matsolonia’s
false claims as to this attempt. This was not the case of other-
wise random signature crimes separated by a great length of
time, but was the prior abuse by the same perpetrator toward
the same victim, occurring in the background of a continu-
ing tumultuous familial relationship. Instances of past abuse
between the same parties are often given special consideration
insofar as the strictures of modus operandi or signature crimes
88 See State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994).
89 See State v. Canbaz, supra note 10.
90 State v. Kern, 224 Neb. 177, 397 N.W.2d 23 (1986).
91 See State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
STATE v. pUllENS 	855
Cite as 281 Neb. 828

are loosened.92 But, in this case, the method of lifting someone
up over a balcony is also in itself sufficiently unique.
Thus, there was a clear connection between the two alleged
acts. That connection independently demonstrated identity of
the agent of Matsolonia’s death in a way that did not depend
upon the prohibited inference that because pullens was a vio-
lent or bad character, he was more likely to have committed
the crime. The danger of unfair prejudice was no greater here
than in any other admission of a prior bad act. But its probative
value was substantial.
We find that the trial court did not abuse its discretion in
determining that the probative value of the prior threat on
the issues of identity and modus operandi was not substan-
tially outweighed by the danger of unfair prejudice. We find
no error in the trial court’s admission of the prior bad act for
those purposes.
b. Intent
We also conclude that the prior bad act was properly admit-
ted to show intent. Intent is the state of mind operative at
the time of an action.93 As early as 1842, the U.S. Supreme
Court stated:
[W]here the intent of the party is matter in issue, it has
always been deemed allowable, as well in criminal as in
civil cases, to introduce evidence of other acts and doings
of the party of a kindred character, in order to illustrate or
establish his intent or motive in the particular act, directly
in judgment.94
pullens concedes that intent was in issue in this case because
it is an element of second degree murder, the crime for which
pullens was charged and convicted. pullens’ general denial
of guilt put at issue all the necessary elements of the charged
92 See, Rufo v. Simpson, 86 Cal. App. 4th 573, 103 Cal. Rptr. 2d 492 (2001);
State v. McCoy, 682 N.W.2d 153 (Minn. 2004). See, also, Annot., 24
A.l.R.5th 465 (1994).
93 See State v. Craig, supra note 76.
94 Wood v. United States, 41 U.S. (16 pet.) 342, 360, 10 l. Ed. 987 (1842).
856 	281 NEBRASkA REpoRTS

offense.95 In order to obtain a conviction of second degree mur-
der, the State was thus required to show beyond a reasonable
doubt that pullens committed the murder with a specific intent
to kill.96 This is distinguishable, for instance, from voluntary
manslaughter, which requires only a killing without malice
upon a sudden quarrel.97
pullens’ argument is that the probative value of the prior
bad act for the purpose of intent was greatly outweighed by its
prejudicial effect. He states this is so because, “[T]here could
be little argument that if pullens pushed [Matsolonia] off the
balcony, he would not have intended to kill her.”98 We find
this unpersuasive.
It seems well established that previous discord between two
parties in a close and sustained relationship is relevant to the
issue of intent.99 And, as mentioned, the similarities in this case
between the previous bad act and the act for which pullens
was charged were substantial. Also, as already discussed, while
pullens does not specifically raise any issue concerning the
remoteness of time between the prior bad act and the crime
charged, we conclude that the trial court did not abuse its
discretion in determining that the probative value of the prior
threat was not markedly reduced by the time between it and the
crime charged.
95 See, People v VanderVliet, 444 Mich. 52, 508 N.W.2d 114 (1993). See,
also, e.g., U.S. v. Walker, 470 F.3d 1271 (8th Cir. 2006); U.S. v. Chesney,
86 F.3d 564 (6th Cir. 1996); People v. Gillard, 57 Cal. App. 4th 136, 66
Cal. Rptr. 2d 790 (1997).
96 See, Neb. Rev. Stat. § 28-304 (Reissue 2008); State v. Tucker, 278 Neb.
935, 774 N.W.2d 753 (2009); State v. Molina, 271 Neb. 488, 713 N.W.2d
412 (2006); State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992).
97 See Neb. Rev. Stat. § 28-305 (Reissue 2008).
98 Brief for appellant at 28.
99 See, State v. Rincker, 228 Neb. 522, 423 N.W.2d 434 (1988); State v. Kern,
supra note 90; Gattis v. State, 637 A.2d 808 (Del. 1994); Bell v. State, 278
Ga. 69, 597 S.E.2d 350 (2004); Phillips v. State, 719 N.E.2d 809 (Ind.
1999); State v. Buenaventura, 660 N.W.2d 38 (Iowa 2003); State v. Mills,
562 N.W.2d 276 (Minn. 1997); Boykins v. State, 116 Nev. 171, 995 p.2d
474 (2000); State v. Powell, 126 Wash. 2d 244, 893 p.2d 615 (1995).
STATE v. pUllENS 	857
Cite as 281 Neb. 828

pullens cites no case law to support what really appears to
be his argument: that certain means of killing someone are ipso
facto sufficiently indicative of specific intent, thereby render-
ing any additional evidence of intent through prior bad acts
cumulative and unfairly prejudicial. We certainly find no rea-
son to conclude that being strangled and thrown off a balcony
represents such means. In this case, for instance, there was evi-
dence from which a jury could have found there was a sudden
quarrel. Matsolonia’s glasses were lying on the floor and there
were various other disturbed items in her living room. pullens
described Matsolonia as a strong and sometimes antagonistic
woman. It was conceivable that pullens could have committed
all the acts leading to Matsolonia’s death while provoked to
such a degree that he had lost normal self-control. The failure
of the State to convince the jury, beyond a reasonable doubt,
that pullens did not act in such a capacity would have resulted
in an acquittal.
pullens’ specific intent to kill Matsolonia was a central issue
in the case. The probative value of the evidence involves a
measurement of the degree to which the evidence persuades
the trier of fact that a particular fact exists and the distance
of the fact from the ultimate issue of the case.100 Furthermore,
in prosecuting specific intent crimes, prior acts evidence may
often be the only method of proving this critical issue.101 In
addressing similar questions under the federal rules, the U.S.
Supreme Court has stated that it is proper for trial courts to
consider the availability of evidentiary alternatives in balanc-
ing unfair prejudice against probative value.102 We find no
reason why that was not a proper consideration by the trial
court here. The fact that pullens physically threatened to throw
100 State v. Sanchez, supra note 66.
101 See U.S. v. Johnson, 27 F.3d 1186 (6th Cir. 1994).
102 See, Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 l.
Ed. 2d 574 (1997); Huddleston v. United States, 485 U.S. 681, 108 S.
Ct. 1496, 99 l. Ed. 2d 771 (1988). See, also, U.S. v. Jenkins, 593 F.3d
480 (6th Cir. 2010); U.S. v. Davis, 449 F.3d 842 (8th Cir. 2006); U.S. v.
Awadallah, 436 F.3d 125 (2d Cir. 2006); United States v. Layton, 767 F.2d
549 (9th Cir. 1985).
858 	281 NEBRASkA REpoRTS

Matsolonia off a balcony during their last visit and the effect
that had on their relationship were the best evidence the State
adduced of a specific intent to kill. otherwise, the only means
of ascertaining pullens’ mental state was by drawing inferences
from the conduct itself.103 That conduct was subject to more
than one inference. The trial court did not abuse its discretion
in determining that the probative value of the prior bad act to
show intent was not substantially outweighed by the danger of
unfair prejudice.
In sum, the trial court did not abuse its discretion in find-
ing that the prior threat against Matsolonia was relevant to
the proper purposes of identity, modus operandi, and intent.
Further, it did not abuse its discretion in finding that such pro-
bative value was not substantially outweighed by the risk of
unfair prejudice. The court further mitigated the risk of unfair
prejudice by instructing the jurors that they were prohibited
from considering this prior act as evidence of pullens’ charac-
ter or as evidence that he acted in conformity with such char-
acter. We find no merit to pullens’ argument that the evidence
that he had threatened Matsolonia was inadmissible. We turn
now to pullens’ assignment of error challenging the authentica-
tion of the e-mails.
2. autheNticatioN of e-M ailS
pullens next challenges the admission of the e-mail corre-
spondence with kanger. According to pullens, under rule 901,104
there was insufficient evidence to authenticate the e-mails as
being written by him.
Rule 901 does not impose a high hurdle for authentication
or identification.105 The proponent is not required to conclu-
sively prove the genuineness of the evidence or to rule out
all possibilities inconsistent with authenticity.106 Instead, if
the proponent’s showing is sufficient to support a finding that
the evidence is what it purports to be, then the proponent has
103 See Huddleston v. United States, supra note 102.
104 § 27-901.
105 State v. Draganescu, supra note 1.
106 See id.
STATE v. pUllENS 	859
Cite as 281 Neb. 828

satisfied the requirement of rule 901(1).107 Because authen-
tication rulings are necessarily fact specific, a trial court has
discretion to determine whether evidence has been properly
authenticated, and an appellate court reviews a trial court’s rul-
ing on authentication for an abuse of discretion.108
There are several ways that the authorship of an e-mail
may be shown. E-mails may be authenticated by use of the
e-mail address, which many times contains the name of the
sender.109 The signature or name of the sender or recipient
in the body of the e-mail is also relevant to authentication.110
Evidence that an e-mail is a timely response to an earlier mes-
sage addressed to the purported sender is proper foundation
analogous to the reply letter doctrine.111 Finally, the contents
of the e-mail and other circumstances may be utilized to show
its authorship.112 The possibility of an alteration or misuse by
another of the e-mail address generally goes to weight, not
admissibility.113
The 	first 	e-mail 	sent 	by 	pullens 	is 	from 	the 	account
“stephenpullens@yahoo.com” and is signed “Stephen pullens.”
The next e-mail is from the account “pullens_stephen@yahoo.
com” and is signed “Stephen pullens.” This e-mail also con-
tains pullens’ Social Security and telephone numbers under
the signature line. Four additional e-mails are sent from this
account, most of which contain variations on the signature,
“Stephen pullens or friends thereof.”
Three e-mails are from the account “grid_works@ureach.
com,” and two of these e-mails contain no signature. However,
one e-mail from this account begins “This is Stephen” and
is later signed by “Stepen [sic] pullens.” one e-mail is sent
from “mr_san_man2u@yahoo.com.” This e-mail contains two
107 See id.
108 See id.
109 R. Collin Mangrum, Mangrum on Nebraska Evidence 852 (2011).
110 2 McCormick on Evidence, supra note 40, § 227.
111 Id. See, also, Helwig v. Aulabaugh, 83 Neb. 542, 120 N.W. 162 (1909).
112 2 McCormick on Evidence, supra note 40, § 227.
113 Mangrum, supra note 109.
860 	281 NEBRASkA REpoRTS

letters, the first of which is signed “[t]he above letter is not
from Stephen” but the second of which is signed, “Stephen.”
A Nebraska State patrol investigator and computer foren-
sics expert testified that he was able to determine what e-mail
addresses were being used from the computer in Matsolonia’s
apartment during the time that pullens was staying there
immediately before her death. The investigator prepared a
report for the police detailing the e-mail addresses found.
He 	specifically 	recalled 	“stephenpullens@yahoo.com” 	and
“grid_works@ureach.com” as e-mail addresses used at that
computer at that time.
An omaha police detective testified that he was assigned the
tasks of compiling all the information concerning the e-mails
and of verifying that each of the e-mails kanger received was
actually sent by pullens. He testified that there were numerous
references to personal facts in the e-mails and that he verified
that each of these facts was accurate. He detailed these verifi-
cations at trial. They included descriptions of the layout and
contents of Matsolonia’s apartment, pullens’ previous travel,
prior residences, prior employment, schooling, sports activities,
and girlfriends. Based on our review of the record, we con-
clude that the trial court did not abuse its discretion in finding
that the State had made a showing that the e-mails were what
the State purported them to be—e-mails written by pullens
to kanger.
3. Jury iNStructioN oN fliGht
pullens next asserts that the trial court erred in giving the
jury an instruction on flight. In reviewing a claim of prejudice
from jury instructions given or refused, an appellate court
must read the instructions 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 evidence, there
is no prejudicial error necessitating reversal.114 Jury instruction
No. 14 stated:
You are instructed that the voluntary flight of a person
immediately or soon after the occurrence of a crime, with
114 State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010).
STATE v. pUllENS 	861
Cite as 281 Neb. 828

which the person so fleeing has been charged, is a cir-
cumstance, not sufficient of itself, to establish guilt, but
a circumstance never the less which you may consider in
connection with all other evidence in the case to aid you
in determining the question of the guilt or innocence of
such person.
pullens does not dispute that instruction No. 14 is a correct
statement of the law, but he argues that it was inapplicable to
the facts of this case because he did not commit flight. A jury
instruction which misstates the issues and has a tendency to
confuse the jury is erroneous.115
[23] We have said that for departure to take on the legal
significance of flight, there must be circumstances present and
unexplained which, in conjunction with the leaving, reasonably
justify an inference that it was done with a consciousness of
guilt and pursuant to an effort to avoid apprehension or pros-
ecution based on that guilt.116 pullens testified that he departed
merely in order to discuss the matter with a lawyer before
speaking further with the police, and he argues that there was
no evidence to the contrary.
A similar argument was presented by the defendant in State
v. Jacob,117 who asserted that there was no evidence that he
made any deliberate attempt to conceal his whereabouts or
identity and that he was unaware there was a warrant for his
arrest. We explained that it was for the jury to decide whether
a defendant’s departure constituted flight.118 We held that the
State need not prove by clear and convincing evidence that the
defendant had consciousness of guilt during his or her depar-
ture.119 Instead, if the evidence is sufficient to support a jury’s
determination that the departure constituted flight, it is proper
to submit such evidence.120
115 State v. Welch, 275 Neb. 517, 747 N.W.2d 613 (2008).
116 State v. Lincoln, 183 Neb. 770, 164 N.W.2d 470 (1969).
117 State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998).
118 Id. See, also, State v. Samuels, 205 Neb. 585, 289 N.W.2d 183 (1980).
119 Id.
120 Id.
862 	281 NEBRASkA REpoRTS

pullens admitted that he deliberately left the motel before
kanger arrived and that he understood kanger considered him
a suspect. He then slept in a car, in locations unknown to the
police, until leaving town. As soon as pullens could obtain a
passport, he went to Switzerland. In e-mails from Switzerland,
pullens describes how kanger is unable to extradite him, and
pullens later admits to “running” from the police. It is not
necessary for there to be a warrant for the defendant’s arrest
at the time of the departure in order to constitute flight.121 We
conclude that there was sufficient evidence from which the jury
could infer flight and that the trial court did not err in instruct-
ing the jury on that issue.
4. riGht to couNSel at SeNteNciNG heariNG
(a) Denial of Right to Counsel
We turn now to pullens’ assignments of error pertaining to
the sentencing hearing. His first argument is that he was denied
the right to counsel at sentencing. The record shows that before
trial, pullens had requested that he be appointed counsel from
the public defender’s office. pullens was subsequently able to
procure private counsel, however, and he withdrew the request.
There is no evidence in the record that pullens was dissatis-
fied with his private counsel until after the verdict. Between
the time of the verdict and the sentencing hearing, pullens
sent several letters to the trial judge asking that he be allowed
to dismiss his privately retained attorneys and that a public
defender be appointed in their stead.
The trial court held hearings on April 9 and 10, 2009, to
address pullens’ requests. At the hearings, pullens stated that
he believed there were irregularities at trial and that he thought
his attorneys should have gone to see him sooner to discuss
pertinent issues. When the attorneys finally visited pullens in
prison, pullens explained that he had determined that it was too
late and had refused to see them.
The court denied pullens’ request to be appointed new coun-
sel and explained that if, after sentencing, pullens was able to
121 See State v. Price, 252 Neb. 365, 562 N.W.2d 340 (1997).
STATE v. pUllENS 	863
Cite as 281 Neb. 828

show indigency, he would appoint an attorney for purposes of
his appeal. As for the sentencing hearing, the court advised
pullens that he had a right to represent himself or proceed with
his current attorneys.
pullens stated that he wished to represent himself, and he
discussed with the court whether he would be able to file
a motion based on what he considered newly discovered
evidence and prosecutorial misconduct. The court responded
that he was free to do so and that the court would require
the attorneys to remain and provide assistance to pullens as
technical advisers. pullens seemed agreeable to this as his best
alternative, given the court’s refusal to appoint him counsel
before sentencing.
on May 26, 2009, the date of the sentencing hearing, pullens
indicated to the court that he had some sort of an arrangement
with another private attorney and that he had the funds to hire
this person. The trial court noted that the aforementioned attor-
ney was not present. pullens asked for a continuance in order
to procure the attorney for the sentencing hearing. The court
denied his request, explaining that sentencing had been sched-
uled since March 23. pullens affirmed that, given the court’s
ruling, he still preferred to represent himself rather than be
represented by his standby counsel.
[24,25] once the right to counsel attaches, the accused is
entitled to counsel at every critical stage of the proceeding.122
But a defendant may not use his or her right to counsel to
manipulate or obstruct the orderly procedure in the court or
to interfere with the fair administration of justice.123 And the
decision whether to grant a continuance in a criminal case is
within the discretion of the trial court and will not be disturbed
on appeal absent an abuse of discretion.124 Certainly, we find no
abuse of discretion in the trial court’s refusal to grant pullens’
last-minute request for a continuance on the day of the sentenc-
ing hearing.
122 See State v. Scheffert, 279 Neb. 479, 778 N.W.2d 733 (2010).
123 State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
124 See State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
864 	281 NEBRASkA REpoRTS

[26] We also find no error in the trial court’s refusal
to appoint a public defender for the sentencing hearing.
Entitlement to the assistance of counsel and entitlement to the
provision of counsel at public expense are different matters.125
Fundamentally, because pullens had shown himself capable of
hiring counsel—who was still available to him—and because
pullens failed to give timely notice of any alleged indigency,126
there was no entitlement to the provision of counsel at pub-
lic expense.
Even if pullens had demonstrated indigency and his trial
counsel had been appointed, a defendant is not entitled to
appointed counsel of his or her choice.127 Mere distrust of, or
dissatisfaction with, appointed counsel is not enough to secure
the appointment of substitute counsel, and unless the defendant
can show good cause to the court for the removal of counsel,
his or her only alternative is to proceed pro se if competent to
do so.128
pullens also asserts that he was deprived of his right to
counsel because “[n]owhere did the trial court establish on the
record that pullens[’] decision to go forward by himself was a
knowing and intelligent waiver of his right to counsel at sen-
tencing.”129 pullens does not elaborate on this argument further,
but it appears that he is challenging the trial court’s failure
to conduct a specified colloquy or make specific findings on
the record.
[27] An effective waiver of an accused’s Fifth Amendment
right to counsel has two distinct dimensions. First, the relin-
quishment of the right must have been voluntary in the sense
that it was the product of a free and deliberate choice rather
than intimidation, coercion, or deception; second, the waiver
must have been made with full awareness of both the nature of
125 State v. Golden, 8 Neb. App. 601, 599 N.W.2d 224 (1999).
126 See State v. Trackwell, 250 Neb. 46, 547 N.W.2d 471 (1996).
127 See State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated
on other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
128 State v. Wabashaw, 274 Neb. 394, 740 N.W.2d 583 (2007); State v.
Dunster, supra note 123.
129 Brief for appellant at 35.
STATE v. pUllENS 	865
Cite as 281 Neb. 828

the right being abandoned and the consequences of the decision
to abandon it.130 But a formalistic litany is not required to show
that such a waiver was knowingly and intelligently made.131
Instead, a knowing and intelligent waiver of the right to coun-
sel can be inferred from conduct.132 The fact that a defendant
has had the advice of counsel throughout his or her prosecu-
tion is an indication that the defendant’s waiver of counsel and
election to represent himself or herself was knowing and vol-
untary.133 We find no merit to pullens’ assignment of error that
he was deprived of his right to counsel at sentencing.
(b) presentence Investigation Report
pullens asserts that the trial court abused its discretion by
not affording pullens an opportunity to review his presentence
investigation report (pSI) and by considering a letter writ-
ten by someone not involved in the case. The pSI consisted
of six volumes. At the hearing, the court stated that it “had
occasion to review the [pSI] in this matter, and I will include
all the letters that the defendant has written to me personally
as well as a recent statement from a lady in Santa Monica,
California.” The woman’s statement alleged that pullens had
once attempted to throw her out a window and that she urged
the court to sentence pullens to the maximum. pullens made
no objections during the sentencing hearing regarding the pSI
or consideration of the letter. Nor is there any indication in the
record that pullens requested to review the pSI or whether he
actually reviewed it.
The sentencing phase is separate and apart from the trial
phase, and the traditional rules of evidence may be relaxed fol-
lowing conviction so that the sentencing authority can receive
all information pertinent to the imposition of the sentence.134
130 State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994), overruled on other
grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
131 State v. Figeroa, supra note 8.
132 State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006); State v. Wilson,
252 Neb. 637, 564 N.W.2d 241 (1997).
133 State v. Gunther, supra note 132.
134 State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007).
866 	281 NEBRASkA REpoRTS

The sentencing court has broad discretion as to the source
and type of evidence and information which may be used
in determining the kind and extent of the punishment to be
imposed, and evidence may be presented as to any matter that
the court deems relevant to the sentence.135 We find no error
in the trial court’s inclusion of the letter, which, in any event,
did not appear to play a particularly important role in the trial
court’s decision.
[28,29] As for the review of the pSI, we have previously
held that a defendant waives his or her qualified right to review
the pSI by not notifying the trial court that he or she has not
personally reviewed the pSI and that he or she wishes to do
so.136 While pullens argues that he did not know he had such
a right, a defendant who elects to proceed pro se cannot there-
after complain of the quality of his or her own defense.137 Thus,
we conclude that pullens’ arguments that the trial court abused
its discretion at sentencing are without merit.
5. iNeffective aSSiStaNce of couNSel
[30] Finally, pullens raises several issues with regard to his
claims of ineffectiveness of trial counsel. A claim of ineffective
assistance of counsel need not be dismissed merely because it
is made on direct appeal.138 The determining factor is whether
the record is sufficient to adequately review the question.139 An
ineffective assistance of counsel claim will not be addressed on
direct appeal if it requires an evidentiary hearing.140
pullens argues that counsel was ineffective for failing to
object to parts of the e-mail correspondence admitted into
evidence on the ground that portions of the e-mails demon-
strated prior bad acts. The record reflects that defense counsel
did initially object to the e-mails on this basis. However, the
State and defense counsel quickly reached an agreement not to
135 Id.
136 See State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003).
137 See State v. Dunster, 278 Neb. 268, 769 N.W.2d 401 (2009).
138 State v. Young, supra note 114.
139 Id.
140 See State v. Wabashaw, supra note 128.
STATE v. pUllENS 	867
Cite as 281 Neb. 828

publish to the jury any portion of the objectionable prior bad
acts. Witnesses at trial either summarized or read out loud spe-
cific portions of the e-mails to the jury, and, in that testimony,
inadmissible prior bad acts were not mentioned.
pullens is correct, however, that the exhibits themselves,
as found in the record, show only one word blacked out. The
e-mails contain several vague references to prior arrests and
some other questionable behavior that may or may not be
considered prior bad acts or otherwise be objectionable. The
State believes that these exhibits were never given to the jury,
and the record before us is unclear on this point. The resolu-
tion of this question would require an evidentiary hearing,
and we thus determine that it is not appropriate for review on
direct appeal.
pullens’ remaining arguments concerning ineffective assist-
ance are likewise not appropriate for review without an evi-
dentiary hearing. pullens argues that his trial counsel failed to
adequately cross-examine the pathologist. He claims that the
pathologist had never before opined that Matsolonia’s injuries
were consistent only with manual strangulation, and he claims
there would be expert testimony to rebut the pathologist’s
conclusion. But there is no evidence in the record to show
this. pullens asserts that trial counsel was ineffective for fail-
ing to make a motion for new trial based on the State’s failure
to disclose a report allegedly inconsistent with the theory that
Matsolonia was thrown off the balcony. likewise, this report
is not in the record. pullens is free to raise these issues of
ineffective assistance of counsel in a motion for postconvic-
tion relief.
VI. CoNClUSIoN
We find the issues raised regarding ineffective assistance
of counsel are premature, and we find no merit to pullens’
other assignments of error. We affirm the judgment of the
trial court.
affirMed.
CoNNolly, J., dissenting.
I dissent. I disagree with the majority opinion’s stan-
dard for admitting evidence of a defendant’s extrinsic acts.
868 	281 NEBRASkA REpoRTS

I also disagree with its conclusion that pullens’ assault on
Matsolonia 4 years before her murder was admissible for
proving pullens’ identity as the murderer, his modus operandi,
or his intent to kill. The evidence was also inadmissible to
show pullens’ absence of mistake in killing her. Moreover,
the trial court erred in finding that the evidence was relevant
to prove pullens’ identity, modus operandi, and intent because
its relevancy depended upon an inference that he had acted in
conformity with his previous bad conduct. So the admission of
this evidence was not harmless error because the court improp-
erly instructed the jury that it could consider the evidence for
these purposes.
Before examining these issues, I pause to express my dis-
agreement with the majority opinion’s retreat from the speci-
ficity of purpose requirements that we set out in State v.
Sanchez.1 There, we held that upon objection, a proponent who
offers evidence under rule 404(2)2 must “state on the record
the specific purpose or purposes for which the evidence is
being offered”; the trial court must “similarly state the pur-
pose or purposes for which such evidence is received.”3 We
reasoned that “‘the line between what is permitted and what
is prohibited under Rule 404[(2)] is sometimes quite subtle. [It
also] sometimes carries a substantial danger of unfair preju-
dice and thus raises serious questions under [rule] 403.’”4 The
Sanchez requirements are intended to ensure that rule 404(2)
rulings “‘are made with care’” and to “‘assist the process of
appellate review.’”5
So I disagree with the majority opinion’s sweeping statement
that a defendant’s previous attacks against a victim are gener-
ally admissible to show intent, motive, and absence of mistake.
1 State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).
2 See Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008).
3 Sanchez, supra note 1, 257 Neb. at 308, 597 N.W.2d at 374.
4 Id. at 307, 597 N.W.2d at 374, quoting U.S. v. Murray, 103 F.3d 310 (3d
Cir. 1997). See, also, Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue
2008).
5 Id.
STATE v. pUllENS 	869
Cite as 281 Neb. 828

In Sanchez, we rejected this smorgasbord approach6 to admit-
ting extrinsic bad acts evidence or analyzing its admission on
appeal. Under Sanchez, it is irrelevant that evidence may serve
a permissible purpose under some circumstances. The question
is whether the stated purpose for offering the evidence is a per-
missible purpose given the facts at hand.
Further, we have recognized that a proper limiting instruc-
tion in a jury trial is a crucial safeguard against the admission
of unduly prejudicial extrinsic acts.7 Thus, when a defendant
claims on appeal that the trial court improperly admitted
extrinsic acts evidence, it is necessary to consider whether
the court both admitted the evidence for proper purposes
and limited the jury’s consideration of the evidence to those
proper purposes.8
Evidence admitted under rule 404(2) is “one of the most
frequently litigated issues on appeal, ‘and the erroneous admis-
sion of such evidence is the largest cause of reversal.’”9 And
because Sanchez provides the analytical framework for analyz-
ing rule 404(2) issues, I decline to join the majority’s reliance
on a pre-Sanchez decision10 to again muddy the waters. A
return to catchall statements regarding admissibility will only
foster less clarity and more appeals.
StaNdard of adMiSSibility
for extriNSic actS
Initially, I point out that a distinction exists between a defend-
ant’s previous verbal threats and physical assaults. I agree with
the majority that a defendant’s statements to the effect that he
desires or intends to kill the victim can be admissible to prove
6 See, also, State v. Stephens, 237 Neb. 551, 466 N.W.2d 781 (1991)
(Shanahan, J., dissenting), quoting 22 Charles Alan Wright & kenneth W.
Graham, Jr., Federal practice and procedure § 5240 (1978).
7 See Sanchez, supra note 1.
8 See, e.g., U.S. v. Bell, 516 F.3d 432 (6th Cir. 2008).
9 State v. McManus, 257 Neb. 1, 5, 594 N.W.2d 623, 627 (1999), quoting 1
Edward J. Imwinkelried, Uncharged Misconduct Evidence § 1:04 (rev. ed.
1999).
10 See State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981).
870 	281 NEBRASkA REpoRTS

intent. In State v. Canbaz,11 we held that evidence of such
statements “is not evidence of prior unrelated bad acts under
[rule] 404(2).” But this type of evidence is distinguishable
from the evidence admitted here. Here, the issue is whether the
court properly admitted evidence that 4 years earlier, pullens
physically assaulted Matsolonia in a manner that threatened her
life—an uncharged extrinsic act.
The majority opinion states that extrinsic acts evidence
should be excluded if it invites the jury to focus its attention
on the defendant’s character instead of whether the defendant
committed the crime. This standard conflicts with our previous
policy statements explaining why such evidence is excluded
and when it may be admitted. It is true that extrinsic acts evi-
dence can invite the jury to focus its attention on the defend-
ant’s character instead of whether the defendant committed
the charged crime. But that statement explains why admitting
evidence on a theory of relevancy that depends on a propensity
inference is prejudicial.12 It is not the standard for admitting
extrinsic acts evidence to avoid that prejudice. Except for a
passing mention, the majority opinion fails to discuss or apply
the admissibility standard that we have articulated several
times: independent relevance that does not depend on a tend-
ency to show propensity.13
As we have previously explained, evidence of the defend-
ant’s extrinsic bad acts is not excluded because it is irrelevant.
It is excluded because its admission creates a risk that the trier
of fact will decide guilt on an improper basis.14 Its admission
can tempt the fact finder to condemn the defendant for his or
her extrinsic (and often unpunished) bad acts and create “a
11 See State v. Canbaz, 259 Neb. 583, 594, 611 N.W.2d 395, 404 (2000).
12 See 1 Imwinkelried, supra note 9, § 2:19.
13 See, State v. Chavez, ante p. 99, 793 N.W.2d 347 (2011); State v. Baker,
280 Neb. 752, 789 N.W.2d 702 (2010); Sturzenegger v. Father Flanagan’s
Boys’ Home, 276 Neb. 327, 754 N.W.2d 406 (2008); State v. Aguilar, 264
Neb. 899, 652 N.W.2d 894 (2002); Sanchez, supra note 1; McManus,
supra note 9.
14 See Sanchez, supra note 1.
STATE v. pUllENS 	871
Cite as 281 Neb. 828

danger that the trier of fact will overestimate [its] probative
value.”15 “The overriding policy of excluding such evidence,
despite its admitted probative value, is the practical experi-
ence that its disallowance tends to prevent confusion of issues,
unfair surprise and undue prejudice.”16 The exclusion of extrin-
sic acts when offered to show a defendant’s propensity to act
in conformity with them protects the presumption of innocence
and is deeply rooted in our jurisprudence.17
I agree with the majority that under rule 404(2), the defend-
ant’s extrinsic acts must be relevant for a purpose other than to
show his or her propensity.18 But to be admitted for a proper
purpose, a defendant’s extrinsic acts must be relevant to the
stated purpose independent of its tendency to show propen-
sity.19 We have refused to uphold the admission of extrinsic
acts when its relevance involved classic propensity reasoning
about the defendant’s character.20 So the test under rule 404(2)
for admitting evidence of the defendant’s extrinsic acts is this:
Does the chain of reasoning necessary to find the evidence
relevant to the fact sought to be proved depend on an infer-
ence that the defendant acted in conformity with a propensity
reflected by the extrinsic acts?21 And as the majority acknowl-
edges, evidence of a defendant’s extrinsic acts is not admissible
15 McManus, supra note 9, 257 Neb. at 7, 594 N.W.2d at 628.
16 Michelson v. United States, 335 U.S. 469, 476, 69 S. Ct. 213, 93 l. Ed.
168 (1948).
17 See State v. Trotter, 262 Neb. 443, 632 N.W.2d 325 (2001).
18 See Sanchez, supra note 1.
19 See id.
20 See, Trotter, supra note 17; McManus, supra note 9.
21 See, e.g., U.S. v. Green, 617 F.3d 233 (3d Cir. 2010); U.S. v. Commanche,
577 F.3d 1261 (10th Cir. 2009); U.S. v. Varoudakis, 233 F.3d 113 (1st Cir.
2000); Masters v. People, 58 p.3d 979 (Colo. 2002); State v. Clifford, 328
Mont. 300, 121 p.3d 489 (2005); State v. Cassavaugh, 161 N.H. 90, 12
A.3d 1277 (2010); State v. Johnson, 340 or. 319, 131 p.3d 173 (2006); 1
Imwinkelried, supra note 9, § 2:19; 1 Christopher B. Mueller & laird C.
kirkpatrick, Federal Evidence § 4:28 (3d ed. 2007); 22 Wright & Graham,
supra note 6, § 5239.
872 	281 NEBRASkA REpoRTS

for the proponent’s stated purpose unless that purpose was
genuinely at issue.22
As applied here, rule 404(2) required the trial court to exclude
evidence that pullens had previously assaulted Matsolonia if its
relevance to the stated purpose depended upon an inference
that he had acted in conformity with a propensity to behave
violently toward her. I do not believe that the admission of
pullens’ 2000 assault on Matsolonia met that standard when
offered to prove his identity, modus operandi, or intent. Nor do
I believe that pullens’ identity as the perpetrator or his absence
or mistake in committing the crime was at issue.
proviNG ideNtity WaS Not a proper purpoSe
for adMittiNG the evideNce
The main issue was conduct, not identity.23 That is, the
issue was whether a murder was committed, not who com-
mitted the murder if proved. pullens did not deny being the
only person with Matsolonia at her death and did not claim
that someone else must have killed her. If the jury believed his
suicide defense, then pullens was innocent because no murder
occurred.24 But a suicide defense should not be confused with a
claim that another possible perpetrator committed the crime.25
If the State proved that a murder was committed, then pullens
was the only possible perpetrator. We have previously held that
if the jury believes the State’s evidence that a crime was com-
mitted and the defendant is the only possible perpetrator, then
evidence of the defendant’s extrinsic bad acts is not admissible
to prove the defendant’s identity as the perpetrator.
We applied that principle in Sanchez.26 There, the victim
identified the defendant as the person who sexually assaulted
her, and he denied the charge. The State introduced extrin-
sic acts evidence that he had previously sexually assaulted
22 See, Trotter, supra note 17; Sanchez, supra note 1.
23 See 3 Clifford S. Fishman, Jones on Evidence Civil and Criminal § 17:39
(7th ed. 1998).
24 See Sutter v. State, 102 Neb. 321, 167 N.W. 66 (1918).
25 Compare State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
26 Sanchez, supra note 1.
STATE v. pUllENS 	873
Cite as 281 Neb. 828

his two daughters. We distinguished earlier cases in which a
defendant’s extrinsic acts were admissible to prove identity
because there were no eyewitnesses to the crime. We held
in Sanchez that because identity was not at issue, the evi-
dence was not admissible to prove the defendant’s identity as
the perpetrator:
There is no evidence upon which the jury could have con-
cluded that the assault occurred but that someone other
than [the defendant] committed it. . . . If the jury believed
the testimony of [the victim] that the acts which consti-
tute first degree sexual assault occurred, it would have no
basis for identifying anyone other than [the defendant] as
the assailant and his prior conduct would prove nothing
necessary for conviction. on the other hand, if the jury
did not believe the testimony of [the victim] regarding
the occurrence of the assault, it would be left with no
evidence that a crime had been committed and thus no
assailant to identify. [The defendant’s] prior acts could
not fill this evidentiary void.27
The ohio Court of Appeals applied the same reasoning to a
homicide case in which the defendant called the police to say
that his girlfriend had just committed suicide. She had been
shot in the chest. The trial court admitted extrinsic acts evi-
dence that the defendant had injured her in the past to prove
his identity as her murderer. The appellate court reversed, con-
cluding that the defendant’s identity was not genuinely at issue
under the same reasoning we used in Sanchez:
According to the theory of the state’s case and the evi-
dence it presented, if the alleged crime took place at all,
no person other than [the defendant] could have commit-
ted it. Further, [the defendant] did not claim that another
person had murdered [the victim]. Instead, he denied that
she was murdered at all. The only genuine issue, there-
fore, was whether [the victim] was murdered or whether
she committed suicide. Because the identity of the perpe-
trator of the state’s murder alternative was not in issue,
27 Id. at 311, 597 N.W.2d at 376.
874 	281 NEBRASkA REpoRTS

evidence of [the defendant’s] prior acts extrinsic to the
operative facts of the crime alleged was not admissible
. . . to prove identity.28
Sanchez and the ohio case are connected by two common
factors: (1) The defendant denied that a crime was committed;
and (2) if the State proved that a crime was committed, the
defendant’s identity as the perpetrator was certain. “Where a
defendant admits that he is the person the complainant or wit-
ness means to accuse, but asserts, in essence, that the alleged
crime never occurred . . . the key issue is not identity, but con-
duct—what some commentators have refer to as the ‘corpus
delicti issue.’”29
“The corpus delicti is the body or substance of the crime—
the fact that a crime has been committed, without regard to the
identity of the person committing it.”30 “In the attempt to prove
the corpus delicti by the use of other crimes it is very difficult
to disguise the forbidden inference [of propensity] by casting it
in some alternative form.”31
The majority opinion’s statement that the corpus delicti
was not at issue is misguided. The State has the burden to
prove beyond a reasonable doubt the corpus delicti of homi-
cide in a murder prosecution, and that is certainly true when
the defendant claims that no murder occurred.32 The corpus
delicti is composed of two elements: the fact or result forming
the basis of a charge and the existence of a criminal agency
as the cause thereof.33 “In a homicide case, corpus delicti is
not established until it is proved that a human being is dead
and that the death occurred as a result of the criminal agency
of another.”34
28 State v. Hawn, 138 ohio App. 3d 449, 463, 741 N.E.2d 594, 604 (2000)
(emphasis in original).
29 3 Fishman, supra note 23, § 17:47 at 443-44 (emphasis in original).
30 State v. Edwards, 278 Neb. 55, 65, 767 N.W.2d 784, 795 (2009).
31 See 22 Wright & Graham, supra note 6, § 5239 at 461.
32 See Edwards, supra note 30.
33 Id.
34 Id. at 65-66, 278 N.W.2d at 796 (emphasis supplied).
STATE v. pUllENS 	875
Cite as 281 Neb. 828

The majority, relying on a different Court of Appeals’ case
from ohio, State v. Griffin,35 attempts to paint Matsolonia as
the possible criminal agency. In that case, the ohio court rea-
soned that in a murder-or-suicide case, both the defendant and
the victim are suspects: “While it is true that only one of the
suspects, the defendant, can be found guilty of murder, evi-
dence of suicide creates a genuine issue concerning the identity
of the person who pulled the trigger.”36 I do not believe that the
Griffin court’s veiled-in-mist reasoning is persuasive.
The concurrence in Griffin got it right. It concluded that this
reasoning “confuses identity with culpability,” and “a plea of
not guilty with a genuine issue of identity.”37 In a murder pros-
ecution, the victim cannot be “another” suspected of the crimi-
nal act. And a defendant’s claim that the victim committed
suicide is refuted if the State meets it burden to prove that the
victim died “as a result of the criminal agency of another.”38 So
to determine whether the defendant’s identity as the perpetrator
is genuinely at issue in a homicide case, the trial court need
only ask this question: If the State meets its burden to prove
that the victim died at the hands of another, is there any claim,
or does the evidence leave open the possibility that the victim
died at the hands “of another” who is not the defendant? Here,
the answer is obviously no.
pullens did not claim, and the evidence did not suggest,
that anyone else could have killed Matsolonia. Here, pullens’
identity as the perpetrator was not genuinely at issue and the
State was more interested in putting pullens’ propensity to
attack Matsolonia before the jury. In some circumstances, I
might agree with the majority’s statement that “where the prior
threat makes reference to a peculiar method of violence that in
the end is carried out,” it may be evidence of identity. But this
reasoning does not apply here, which is obvious from examin-
ing the facts of the case that the majority relies on. In Brenk v.
35 State v. Griffin, 142 ohio App. 3d 65, 753 N.E.2d 967 (2001).
36 Id. at 74, 753 N.E.2d at 973-74.
37 See id. at 87, 753 N.E.2d at 984 (painter, J., concurring).
38 Edwards, supra note 30, 278 Neb. at 65-66, 767 N.W.2d at 796.
876 	281 NEBRASkA REpoRTS

State,39 the victim’s cut-up remains were found floating in an
ice cooler on a lake. The murderer’s identity was obviously at
issue, so the court affirmed the admission of evidence that the
defendant had previously threatened to kill his former wife and
scatter her cut-up body.
In sum, I believe the majority has mistakenly concluded
that pullens’ identity as the murderer was at issue. But even
if identity had been at issue, the majority opinion fails to rec-
ognize that the logic needed to find this evidence relevant to
proving identity depends upon a propensity inference. Courts
must exercise caution in admitting evidence of extrinsic acts
to prove identity. In general, using extrinsic acts evidence to
prove identity has caused confusion because the “use of such
evidence to prove ‘identity’ most directly raises the forbidden
propensity inference.”40 The close relationship between prov-
ing identity and conduct requires courts to scrutinize iden-
tity evidence:
Where other crimes evidence is offered to prove iden-
tity, it necessarily requires an inference to the conduct
of the defendant; therefore, great care must be taken to
[e]nsure that the theory of admissibility does not involve
any inference as to the defendant’s character. It is for this
reason that courts are much stricter when assessing the
admissibility of evidence offered to prove identity than
they are when it is directed at some mental state that is
in issue.41
one protection against the convergence of identity and con-
duct is the requirement that the defendant’s extrinsic acts for
proving identity have overwhelming similarities to the charged
crime—“such that the crimes are so similar, unusual, and dis-
tinctive that the trial judge could reasonably find that they bear
the same signature.”42 The high degree of similarity is neces-
sary to support a permissible inference that the “‘same’ person”
39 Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993).
40 3 Fishman, supra note 23, § 17:40 at 414.
41 22 Wright & Graham, supra note 6, § 5246 at 512-13.
42 See Epp, supra note 25, 278 Neb. at 700, 773 N.W.2d at 373.
STATE v. pUllENS 	877
Cite as 281 Neb. 828

committed the acts, independent of a propensity inference
about the defendant’s character.43
But even when the extrinsic acts involve a unique criminal
behavior, admitting evidence of the defendant’s extrinsic acts
against the same victim undercuts the rationale for requiring
heightened similarity. It is primarily because the evidence
shows the defendant has a propensity for domestic violence
against the victim that it is highly persuasive in showing that
the defendant must have committed the charged crime. Notably,
some states have enacted exceptions to their rule 404 counter-
parts to admit past acts of domestic violence in prosecutions
for domestic violence offenses.44
This case illustrates the problem. Here, the propensity infer-
ence was unavoidable when offered to prove pullens’ identity
as the murderer. As explained, the State could refute pullens’
claim that Matsolonia committed suicide by proving that her
death occurred as a result of the criminal agency of another.
But it could not refute pullens’ suicide claim by showing that
because he had behaved similarly in the past, his suicide claim
was false. That proof is exactly what rule 404(2) prohibits.
Reasoning that pullens’ previous assault on Matsolonia is
relevant to show that he was her killer necessarily includes a
propensity inference in the chain of reasoning. The conclu-
sion cannot be separated from an inference that pullens acted
in conformity with his previous bad conduct or his propensity
to behave violently toward Matsolonia. I would hold that the
court erred in admitting evidence of the previous assault to
prove pullens’ identity.
proviNG ModuS operaNdi WaS
Not a proper purpoSe
Because proving pullens’ identity as the murderer was not
a proper purpose for admitting the evidence, it follows that
43 See, 1 Imwinkelried, supra note 9, § 3:11 at 52. Accord 3 Fishman, supra
note 23, § 17:41.
44 See 1 McCormick on Evidence § 190 at 759 n.35 (kenneth S. Broun et al.
eds., 6th ed. 2006), citing Alaska R. Evid. 404(b)(4) and Cal. Evid. Code
§ 1109 (2005).
878 	281 NEBRASkA REpoRTS

admitting the evidence to prove pullens’ modus operandi was
also an improper purpose. proving a defendant’s modus ope-
randi in committing an extrinsic crime that shares a unique
characteristic with the charged crime supports an inference of
identity: the same person committed each crime.45 So using
extrinsic acts evidence to prove the defendant’s modus operandi
is only relevant when the defendant’s identity as the perpetra-
tor is at issue.46 As explained, identity was not at issue here, so
proving pullens’ modus operandi was not a proper purpose for
admitting the evidence.
proviNG abSeNce of M iStake WaS
Not a proper purpoSe
Although the majority opinion has failed to discuss this
issue, the trial court improperly instructed the jury that it could
consider the evidence for proving pullens’ absence of mistake
in killing Matsolonia. Absence of mistake was not at issue
because pullens did not claim to have unintentionally killed
Matsolonia.47 He claimed that he did not kill her. The absence
of mistake exception is a “special form of the exception that
permits the use of other crimes to prove intent.”48
Normally, absence of mistake is not at issue unless the
defendant claims that his or her conduct in committing the
charged crime was an accident or mistake, or the defend-
ant’s act could be criminal or innocent depending on the
defendant’s state of mind.49 Courts often admit evidence of a
defendant’s prior assaults against a victim to show absence of
45 See 3 Fishman, supra note 23, § 17:42.
46 U.S. v. Fraser, 448 F.3d 833 (6th Cir. 2006); Chavez v. City of Albuquerque,
402 F.3d 1039 (10th Cir. 2005); U.S. v. Williams, 985 F.2d 634 (1st Cir.
1993).
47 See Trotter, supra note 17.
48 See 22 Wright & Graham, supra note 6, § 5247 at 517-18.
49 See, State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007), citing United
States v. Woods, 484 F.2d 127 (4th Cir. 1973); Trotter, supra note 17. See,
also, Bell, supra note 8; Chavez, supra note 46; Hynes v. Coughlin, 79
F.3d 285 (2d Cir. 1996); U.S. v. Johnson, 879 F.2d 331 (8th Cir. 1989);
United States v. Naranjo, 710 F.2d 1465 (10th Cir. 1983).
STATE v. pUllENS 	879
Cite as 281 Neb. 828

mistake, or intent, in child abuse cases.50 These cases often
present a circumstance in which the defendant’s act could be
innocent depending upon his or her state of mind. But pullens
could not have accidentally or mistakenly strangled and then
thrown Matsolonia off the balcony. It is true that he claimed
to have briefly grabbed her neck to prevent her from falling
from the balcony. But this was not an admission that he killed
her but did so unintentionally. Absence of mistake was not
at issue because it was not a plausible defense or inference
under the facts presented.
proviNG iNteNt WaS Not
a proper purpoSe
The State may not use extrinsic acts evidence to prove intent
if the theory of relevance requires the trier of fact to infer
“the defendant’s state of mind on the charged occasion from
the defendant’s subjective, personal character, disposition, or
propensity.”51
It is true that courts have frequently admitted evidence of a
defendant’s extrinsic acts of domestic violence against a victim
to show the relationship between the victim and the defendant
and the defendant’s feelings toward the victim. And it is true
that many courts, including this court,52 have frequently con-
cluded that such evidence is relevant to prove the defendant’s
motive or intent. We have stated that any motive for the crime
charged is relevant to intent.53
But logical relevance does not mean that the chain of rea-
soning to make the evidence relevant for the proponent’s stated
purpose is free of a propensity inference.54 If the theory of
relevance to prove motive depends upon an inference about
50 See, Chavez, supra note 13, quoting Estelle v. McGuire, 502 U.S. 62, 112
S. Ct. 475, 116 l. Ed. 2d 385 (1991); Kuehn, supra note 49.
51 McManus, supra note 9, 257 Neb. at 11, 594 N.W.2d at 630. Accord
Trotter, supra note 17.
52 See Sharp v. State, 115 Neb. 737, 214 N.W. 643 (1927).
53 See, e.g., State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010), citing
State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996).
54 See McManus, supra note 9.
880 	281 NEBRASkA REpoRTS

the defendant’s character, then the same inference will nec-
essarily be present if motive is used to show intent. General
propositions are not a substitute for examining the proponent’s
chain of reasoning. The majority opinion fails to perform
this examination.
Intent is the defendant’s state of mind at the time of the
criminal act.55 In contrast, motive is “‘the moving course, the
impulse, the desire that induces criminal action on the part
of the accused’”56 or that which leads or tempts the mind to
indulge in a criminal act.57 Motive is normally used as an
intermediate inference to prove identity: “The fact that the
defendant had a motive for that particular crime increases
the inference of the defendant’s identity.”58 When “motive is
particular to the defendant and is not shared with the general
public, it is . . . circumstantial proof that the defendant, and not
someone else, is the perpetrator.”59 But despite the commenta-
tors’ argument that motive and intent are not synonymous,60
courts have frequently treated them as though they were and
indiscriminately upheld the use of evidence relevant to motive
to show intent.61
Using an extrinsic act to show motive will not always
depend on a propensity inference. “For example, an uncharged
theft may supply the motive to murder an eyewitness to the
theft.”62 In contrast, using a defendant’s previous attacks on a
victim to show that the defendant’s hostility toward the victim
motivated the defendant to commit the charged crime does
require propensity reasoning. To reach the conclusion that the
55 See State v. Stewart, 219 Neb. 347, 363 N.W.2d 368 (1985).
56 State v. Bronson, 242 Neb. 931, 940, 496 N.W.2d 882, 890 (1993), quoting
Black’s law Dictionary (6th ed. 1990).
57 Id. Accord McBride, supra note 53.
58 1 Imwinkelried, supra note 9, § 3:15 at 79. See, also, 1 Barbara E.
Bergman & Nancy Hollander, Wharton’s Criminal Evidence § 4:45 (15th
ed. 1997).
59 Schroeder, supra note 53, 279 Neb. at 214, 777 N.W.2d at 806.
60 See, e.g., 1 Bergman & Hollander, supra note 58.
61 22 Wright & Graham, supra note 6, § 5240.
62 1 Imwinkelried, supra note 9, § 3:16 at 82.
STATE v. pUllENS 	881
Cite as 281 Neb. 828

defendant had a motivating animus toward the victim based
on prior attacks, the trier of fact must make an intermediate
inference that the defendant had a propensity for attacking the
victim. The fact finder infers the defendant’s animosity toward
the victim from this propensity evidence.63
Here, pullens’ hostile feelings toward Matsolonia were logi-
cally relevant to why he would have killed her, i.e., his motiva-
tion. Showing that the same motivation was present in both the
extrinsic act and the charged act could not be free of propensity
reasoning because the trier of fact must infer his hostile feel-
ings from his assaults on Matsolonia. So when this motivation
evidence was used to show intent, the propensity inference was
also present: pullens must have intended to kill Matsolonia
because he hated her enough to have intentionally assaulted
her previously.
Using a defendant’s unlawful intent in a previous crime to
show the defendant’s unlawful intent in committing the charged
crime will usually depend on propensity reasoning. “Evidence
of unlawful intent in a prior offense is directly relevant to
unlawful intent in the present offense only on the assumption
that once a person has shown an ability to harbor an evil intent,
that person is more likely to entertain the same evil intent on
another occasion.”64 “A state of mind that continues over time
and governs otherwise unconnected acts is generally called a
person’s character trait or propensity.”65
In State v. McManus,66 however, we stated that the “‘only
theory of logic under which evidence of other misconduct
63 See id., § 3:18, citing Richard lempert & Stephen A. Saltzburg, A Modern
Approach to Evidence 226 (2d ed. 1982). See, also, Varoudakis, supra
note 21.
64 Eric D. lansverk, Admission of Evidence of Other Misconduct in
Washington to Prove Intent or Absence of Mistake or Accident: The
Logical Inconsistencies of Evidence Rule 404(b), 61 Wash. l. Rev. 1213,
1232 (1986).
65 lee E. Teitelbaum & Nancy Augustus Hertz, Evidence II: Evidence of
Other Crimes as Proof of Intent, 13 N.M. l. Rev. 423, 430 (1983).
66 See McManus, supra note 9, 257 Neb. at 10, 594 N.W.2d at 630, quoting
lansverk, supra note 64.
882 	281 NEBRASkA REpoRTS

is directly relevant to prove intent . . . without relying on
character inferences, is the doctrine of chances.’” Under this
doctrine, the trier of fact is asked to infer that the defendant
acted intentionally by making an intermediate inference about
the objective improbability of an innocent act instead of an
inference about the defendant’s character.67 This theory of
relevance is used when the State seeks to prove the defend-
ant’s absence of mistake or accident. In State v. Chavez,68
we implicitly adopted the doctrine to hold that evidence of a
child’s repeated, previous injuries is admissible when offered
to show they are the product of child abuse and not accidents.
In that circumstance, the evidence is relevant to someone’s
absence of mistake, and thus intent, without directly linking
the acts to the defendant.
But in McManus, we did not adopt the doctrine of chances
for directly proving intent through extrinsic acts that can only
be attributed to the defendant. We recognized that critics had
argued that the improbability of the defendant’s acting inno-
cently depends on his or her propensity to repeat the same
crime, i.e., depends on an unchanging character.69 We pointed
out, however, that courts that have adopted the doctrine to
directly prove intent will apply it “only when each of the other
bad acts is similar to the charged offense and the defendant has
been involved in such incidents more frequently than the typi-
cal person.”70
We further stated that the number of similar events that
are necessary to satisfy the doctrine of chances depends upon
the complexity, degree of similarity, and relative frequency
67 See McManus, supra note 9.
68 See Chavez, supra note 13. See, also, 1 Imwinkelried, supra note 9,
§ 5:06.
69 See McManus, supra note 9, citing Andrew J. Morris, Federal Rule
of Evidence 404(B): The Fictitious Ban on Character Reasoning From
Other Crime Evidence, 17 Rev. litig. 181 (1998), and paul F. Rothstein,
Intellectual Coherence in an Evidence Code, 28 loy. l.A. l. Rev. 1259
(1995).
70 Id. at 13, 594 N.W.2d at 632, citing People v Crawford, 458 Mich. 376,
582 N.W.2d 785 (1998).
STATE v. pUllENS 	883
Cite as 281 Neb. 828

of the event rather than on the total number of occurrences.71
Generally, the doctrine of chances should not rest upon a
single, previous uncharged act unless it is a complex act,
like forgery requiring separate steps, as distinguished from
“a spontaneous response to external stimuli,”72 like spontane-
ous assaults.73
Here, the extrinsic act involved a spontaneous response
to the victim, not a complex act like forgery. And it did not
clearly show an intent to kill.74 Neither did the evidence show
several instances of domestic violence between the defendant
and the victim continuing up to the occasion of the charged
crime.75 So even if we had adopted the doctrine of chances to
directly prove intent, pullens’ single previous assault against
Matsolonia could not be used to support an intermediate infer-
ence that an innocent act was improbable and that he therefore
intended to kill her.
of course, it was unnecessary to use this evidence to show
the improbability of an innocent act because pullens’ act could
not have been innocent. Even when the extrinsic acts are suffi-
ciently similar and numerous to apply the doctrine of chances,
showing the improbability of the defendant’s innocent conduct
is unnecessary when the defendant’s conduct, if proved, could
not have been done with an innocent intent. In that circum-
stance, no reason exists to ask the trier of fact to infer from
extrinsic acts that the defendant’s conduct in the charged crime
was probably not innocent.
The absence of any need for the prejudicial evidence explains
in part why many courts have held that when a defendant’s
conduct conclusively establishes intent, the defendant must
actively contest the issue before extrinsic acts evidence is
71 Id.
72 lansverk, supra note 64, 61 Wash. l. Rev. at 1228. Accord 1 Imwinkelried,
supra note 9, § 5:07.
73 See 1 Imwinkelried, supra note 9, § 5:10.
74 Compare U.S. v. Hernandez, 896 F.2d 513 (11th Cir. 1990).
75 See, Reizenstein v. State, 165 Neb. 865, 87 N.W.2d 560 (1958); Wever v.
State, 121 Neb. 816, 238 N.W. 736 (1931).
884 	281 NEBRASkA REpoRTS

admissible.76 Rule 403 explicitly gives a court discretion to
exclude relevant evidence because it is a needless presentation
of cumulative evidence.
The majority opinion attempts to circumvent the propen-
sity reasoning necessary to find the extrinsic acts relevant
and the cumulative nature of the evidence. The opinion posits
in hindsight that pullens’ conduct was subject to more than
one inference regarding his state of mind and that the State
needed this evidence to rebut any inference that pullens killed
Matsolonia while acting under a provocation. But pullens did
not claim to have acted innocently in causing Matsolonia’s
death or claim to have killed her with a legal excuse, jus-
tification, or mitigation. He claimed that he did not kill
Matsolonia.
Although the majority opinion states that the jury could
have found that pullens acted under a sudden provocation, its
conclusion is inconsistent with pullens’ suicide defense and the
evidence presented. It’s a real stretch to affirm the admission of
prejudicial character evidence based on an improbable defense
that was not even presented.
More important, the State did not offer the evidence to refute
any inference that pullens had acted under a provocation or
to consider whether an innocent act was improbable. Instead,
the State offered the evidence to show that pullens intended
to kill Matsolonia because on one occasion 4 years earlier he
had intentionally assaulted her in a similar manner after an
argument. offering the evidence to prove he intended to kill
her required the jurors to use classic propensity reasoning that
pullens is the type of person “‘who acts with violent intent
when he is angry.’”77
I would conclude that the extrinsic acts evidence was inad-
missible for any purposes for which the court instructed
the jury to consider it. But even if the evidence had been
76 U.S. v. Johnson, 970 F.2d 907 (D.C. Cir. 1992); United States v. Ring,
513 F.2d 1001 (6th Cir. 1975); 3 Fishman, supra note 23, § 17:63 (citing
cases).
77 See State v. Sutton, 16 Neb. App. 185, 194, 741 N.W.2d 713, 721 (2007),
quoting McManus, supra note 9.
STATE v. pUllENS 	885
Cite as 281 Neb. 828

admissible to prove intent, I do not believe that the trial court
properly performed its weighing function under rule 403.
preJudicial effect outWeiGhed probative value
WheN State had other SubStaNtial
evideNce of iNteNt
As the majority states, the second requirement for admit-
ting evidence of the defendant’s extrinsic acts is weighing
the evidence’s probative value against the danger of unfair
prejudice under rule 403.78 Rule 403 provides that relevant
evidence “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.”79
As explained, extrinsic acts evidence creates a risk that
the trier of fact will find guilt based on the defendant’s
character or disposition and overestimate the value of that
evidence.80 Balancing unfair prejudice against the probative
value of extrinsic acts evidence under rule 403 is a critical
safeguard. It ensures that the court does not admit unduly
prejudicial evidence under rule 404.81 Unfair prejudice in a
criminal case refers to evidence that has a tendency to suggest
a decision on an improper basis,82 such as by relying on pro-
pensity reasoning.83
The majority correctly states that the U.S. Supreme Court
has held that federal trial courts may consider the availability
of evidentiary alternatives in balancing unfair prejudice against
probative value under the federal counterpart to our rule 403.84
78 See McManus, supra note 9.
79 § 27-403.
80 See McManus, supra note 9.
81 See Sanchez, supra note 1, citing Huddleston v. United States, 485 U.S.
681, 108 S. Ct. 1496, 99 l. Ed. 2d 771 (1988).
82 See State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
83 See Sanchez, supra note 1.
84 See Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 l. Ed.
2d 574 (1997).
886 	281 NEBRASkA REpoRTS

But it appears that the Court intended to clarify that under rule
403, a trial court has discretion to exclude the prosecution’s
proffered evidence of prior bad acts to avoid the risk of a ver-
dict tainted by improper considerations if evidentiary alterna-
tives are available.
Specifically, the Court held that the trial court abused its
discretion when it rejected the defendant’s offer to admit to a
previous conviction and instead it admitted the full record of
the previous judgment.85 The Court explained that the advisory
committee’s notes showed that considerations under rule 403
should include “‘waste of time and undue prejudice.’”86 It con-
cluded that when the proffered evidence has
the dual nature of legitimate evidence of an element and
illegitimate evidence of character[,] . . . . Rule 403 confers
discretion by providing that evidence “may” be excluded,
[and] the discretionary judgment may be informed not
only by assessing an evidentiary item’s twin tendencies,
but by placing the result of that assessment alongside
similar assessments of evidentiary alternatives.87
So I am puzzled by the majority’s use of the Court’s statement
to support the admission of character evidence despite less
prejudicial and equally persuasive evidentiary alternatives.
Moreover, intent is an element of almost every crime. And
courts have recognized that in criminal cases, admitting extrin-
sic acts evidence to show intent has the potential of eviscerat-
ing rule 404.88 Thus, many courts have held that when a defend-
ant’s conduct conclusively establishes intent, the defendant
must actively contest the issue before extrinsic acts evidence
is admissible for that purpose.89 And a defendant does not
actively contest intent by claiming that he did not commit the
85 See id.
86 Id., 519 U.S. at 184.
87 Id. (citations omitted).
88 U.S. v. Johnson, 27 F.3d 1186 (6th Cir. 1994); United States v. Miller, 508
F.2d 444 (7th Cir. 1974). See, also, 22 Wright & Graham, supra note 6,
§ 5242.
89 See sources cited supra note 76.
STATE v. pUllENS 	887
Cite as 281 Neb. 828

charged crime.90 other courts have held that the availability
of alternative proofs is a factor to be considered in balancing
unfair prejudice against probative value.91
However, by claiming suicide, pullens did not contest intent.
And his conduct, if proved, conclusively established that he
intended to kill her. We have stated that independent evidence
of specific intent is not required. Instead, the intent with which
an act is committed is a mental process and may be inferred
from the words and acts of the defendant and from the circum-
stances surrounding the incident.92
The State introduced evidence that Matsolonia had struggled
against her attacker before she died and that she had injuries
consistent with strangulation. Her purse was dumped. Her
glasses were found on the floor by the balcony door. The coffee
table was partially off its base. Her necklace pieces were found
on the couch and on her person. More important, this court
has held that the length of time that it takes to kill a person by
strangulation is significant evidence of the defendant’s intent to
kill.93 If the jury found from the State’s evidence that pullens
had killed Matsolonia, there was ample evidence for it to also
find that pullens intended to kill her. In closing argument, the
prosecutor specifically argued that if the jury found pullens had
strangled Matsolonia and thrown her over the balcony, then as
90 See, U.S. v. Sumner, 119 F.3d 658 (8th Cir. 1997); U.S. v. Ortiz, 857 F.2d
900 (2d Cir. 1988).
91 See, U.S. v. Jenkins, 593 F.3d 480 (6th Cir. 2010); U.S. v. Awadallah, 436
F.3d 125 (2d Cir 2006); U.S. v. Lynn, 856 F.2d 430 (1st Cir. 1988); United
States v. Layton, 767 F.2d 549 (9th Cir. 1985); Ex parte Vaughn, 869 So.
2d 1090 (Ala. 2002); State v. Gibson, 202 Ariz. 321, 44 p.3d 1001 (2002);
Masters, supra note 21; State v. Bunker, 89 Conn. App. 605, 874 A.2d
301 (2005); People v. Walker, 211 Ill. 2d 317, 812 N.E.2d 339, 285 Ill.
Dec. 519 (2004); State v. Henderson, 696 N.W.2d 5 (Iowa 2005); Norris
v. Com., 89 S.W.3d 411 (ky. 2002); State v. Long, 173 N.J. 138, 801 A.2d
221 (2002); Hayden v. State, 155 S.W.3d 640 (Tex. App. 2005); State v.
Ortega, 134 Wash. App. 617, 142 p.3d 175 (2006).
92 E.g., State v. Sing, 275 Neb. 391, 746 N.W.2d 690 (2008); State v. White,
272 Neb. 421, 722 N.W.2d 343 (2006); State v. Aldaco, 271 Neb. 160, 710
N.W.2d 101 (2006).
93 See, State v. Batiste, 231 Neb. 481, 437 N.W.2d 125 (1989); State v.
El-Tabech, 225 Neb. 395, 405 N.W.2d 585 (1987).
888 	281 NEBRASkA REpoRTS

a matter of common sense, the evidence showed beyond a rea-
sonable doubt that he intended to kill her.
like other courts, we have also recognized that trial courts
should consider the availability of other evidence in balancing
probative value against the potential for prejudice. In State v.
Williams,94 we concluded that the prejudicial effect of admit-
ting the defendant’s extrinsic acts was outweighed by its proba-
tive value. In commenting on balancing probative value versus
prejudice, we stated:
Recent cases recognize that the problem cannot generally
be solved by virtue of a mechanical rule of relevancy but,
instead, is one of balance. McCormick on Evidence (2d
Ed.), § 190, p. 447, at p. 453 states: “(T)he problem is not
merely one of pigeonholing, but one of balancing, on the
one side, the actual need for the other-crimes evidence in
the light of the issues and the other evidence available to
the prosecution, the convincingness of the evidence that
the other crimes were committed and that the accused
was the actor, and the strength or weakness of the other-
crimes evidence in supporting the issue, and on the other,
the degree to which the jury will probably be roused by
the evidence to overmastering hostility.”95
So even if extrinsic acts evidence is admissible under rule
404(2), a trial court has discretion under rule 403 to exclude
it to prevent unfair prejudice, confusion of the issues, or mis-
leading the jury, and to avoid needless presentation of cumula-
tive evidence.
Here, even if the court had properly admitted extrinsic
evidence to show pullens’ intent, its probative value was
weak. Generally, the more isolated and remote the extrinsic
act is without any intervening incidents, the less probative
it is of the defendant’s intent to commit the charged crime
independent of a propensity inference.96 Further, even if it
94 State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979).
95 Id. at 64-65, 287 N.W.2d at 24 (emphasis supplied).
96 See, Bell, supra note 8; Brown v. State, 109 Ga. App. 212, 135 S.E.2d
480 (1964); Barnes v. Com., 794 S.W.2d 165 (ky. 1990). Compare
Commonwealth v. Gil, 393 Mass. 204, 471 N.E.2d 30 (1984).
STATE v. pUllENS 	889
Cite as 281 Neb. 828

had been admissible to show the improbability of an innocent
act, it would have been cumulative for that purpose. Finally,
the exclusion of the extrinsic acts in pullens’ case would not
have hindered the prosecutor’s ability to present a picture of
what happened.
Here, the extrinsic evidence was weak, and stronger eviden-
tiary alternatives were available to the State that conclusively
established pullens’ intent. The State did not need to introduce
evidence of pullens’ previous assault on Matsolonia. So even if
the evidence’s relevancy had not depended upon a propensity
inference, I would conclude that the court erred in admitting
highly prejudicial evidence to show pullens’ intent to kill. I
believe that the probative value of the evidence was substan-
tially outweighed by its prejudicial effect.
adMiSSioN of extriNSic actS evideNce
WaS Not harMleSS
I do not believe that the court’s admission of this evidence
is harmless. In a jury trial of a criminal case, an erroneous
evidential ruling results in prejudice to a defendant unless
the State demonstrates that the error was harmless beyond a
reasonable doubt.97 Harmless error exists when there is some
incorrect conduct by the trial court which, on review of the
entire record, did not materially influence the jury’s verdict
adversely to a defendant’s substantial right.98
We have explained that a proper limiting instruction is
another critical safeguard in protecting the defendant against
the admission of unduly prejudicial extrinsic acts evidence.99
But here, the court instructed the jury that it could consider
evidence of the defendant’s extrinsic acts for four improper
purposes. Three of these purposes—proving identity, modus
operandi, and intent—required the jurors to use propensity rea-
soning to find the evidence relevant.
97 Sanchez, supra note 1.
98 State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).
99 See, Sanchez, supra note 1, citing Huddleston, supra note 81; McManus,
supra note 9.
890 	281 NEBRASkA REpoRTS

In State v. McManus,100 we concluded that the State had
cast grave doubt on the defendant’s credibility by present-
ing evidence that he was the kind of person prone to use his
pistol and make threats. Because the defendant was the only
witness to the crime to testify and the State’s evidence was
circumstantial, his credibility was crucial. So the error was
not harmless: “Faced with such evidence, the jury could be
tempted to infer bad character and action taken in conform-
ity with that character and could thus reach a verdict on an
improper basis.”101
“When a juror learns that a defendant has previously com-
mitted the same crime as that for which he is on trial, the
risk is severe that the juror will use the evidence precisely
for the purpose that it may not be considered, that is, as
suggesting that the defendant is a bad person . . . and that
if he ‘did it before he probably did it again.’”102
other courts have reached similar conclusions.103
We must presume the jury followed the court’s instructions
and considered evidence for the stated purposes as instructed.
Those purposes permitted the jury to confuse proof of pullens’
identity and intent with his propensity to attack Matsolonia.
And as in McManus, pullens’ credibility was a critical factor.
After the jury heard evidence of pullens’ propensity to attack
Matsolonia, he had a dead cat hanging around his neck, and the
lingering odor would have permeated the jury room.
Because pullens’ credibility was crucial to his defense,
permitting the State to attack his character with unnecessary
extrinsic acts should not be considered harmless error. As the
majority states, much of the trial focused on the relationship
between pullens and Matsolonia. We cannot say the jury did not
rely on the extrinsic acts evidence to discredit pullens’ version
100 McManus, supra note 9.
101 Id. at 15, 594 N.W.2d at 633.
102 Id. at 9, 594 N.W.2d at 629, quoting Crawford, supra note 70.
103 See, e.g., Bell, supra note 8; U.S. v. Morley, 199 F.3d 129 (3d Cir. 1999);
U.S. v. Heidebur, 122 F.3d 577 (8th Cir. 1997); U.S. v. Mothershed, 859
F.2d 585 (8th Cir. 1988); Hardin v. State, 611 N.E.2d 123 (Ind. 1993);
State v. Reddish, 181 N.J. 553, 859 A.2d 1173 (2004).
STATE v. pUllENS 	891
Cite as 281 Neb. 828

of events and conclude that he killed Matsolonia because he
hated her enough to have attacked her before. I would reverse
the judgment and remand the cause for a new trial.
In closing, a trial court can avoid a retrial by requiring the
proponent of extrinsic acts evidence to show that its theory of
relevance does not depend on a propensity inference. A trial
court should not be hypnotized by the prosecutor’s sweeping
incantations of identity, intent, modus operandi, motive, and
absence of mistake. A trial court should adhere to rules we set
out in Sanchez and not assume that the evidence is relevant to
a catchall list of purposes. When the relevance is not clear, the
court should insist that the proponent explain why the evidence
will be necessary and set forth its chain of reasoning.
State of NebraSka , appellee , v.
david M. kaSS, appellaNt.
799 N.W.2d 680
Filed July 15, 2011. 	No. S-10-315.
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitu-
tional presents a question of law, which an appellate court resolves without regard
to how the issue was decided below.
2. Jury Instructions. Whether jury instructions are correct presents a question
of law.
3. Constitutional Law: Criminal Law. The First Amendment limits a state’s ability
to prosecute certain criminal offenses.
4. Constitutional Law: Presumptions. Except for a few well-recognized categories
of unprotected speech, a content-based restriction on speech is presumptively
invalid and subject to strict scrutiny.
5. Constitutional Law: Statutes: Proof. When a party does not claim that a chal-
lenged law has no valid application, a facial challenge must establish that a
substantial number of the law’s applications are unconstitutional in relation to its
legitimate sweep.
6. Constitutional Law: Statutes. If a statute is substantially overbroad, it invali-
dates all enforcement of the law.
7. Constitutional Law: Statutes: Standing. A party has standing to challenge
a statute as overbroad, even if unaffected by the part that punishes protected
speech, when the party claims that the statute will significantly compromise the
free speech rights of others not before the court.
8. Constitutional Law: Statutes. A statute is unconstitutionally overbroad and
thus offends the First Amendment if, in addition to forbidding speech or conduct
892 	281 NEBRASkA REpoRTS