State v. Sutton

in determining the sentence to be imposed. Id. The sentence
imposed was within statutory limits, and we have examined
the record concerning all relevant factors and applicable legal
principles. We find no abuse of discretion by the district court
in its determination of the sentence.
CONCLUSION
We conclude that the jury’s verdict is supported by the
evidence and that the district court’s sentence did not constitute
an abuse of discretion.
A ffirmed .
S tAte of N ebrASkA, Appellee v .
WilliAm p. S uttoN, AppellANt .
741 N.W.2d 713
Filed November 20, 2007. 	No. A-06-1297.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply,
the admissibility of evidence is controlled by the Nebraska Evidence Rules; judi-
cial discretion is involved only when the rules make such discretion a factor in
determining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discretion.
3. Rules of Evidence: Other Acts. The admissibility of evidence under Neb. Evid.
R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), must be determined upon
the facts of each case and is within the discretion of the trial court.
4. ____: ____. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), pro-
hibits the admission of evidence of other bad acts for the purpose of demonstrating
a person’s propensity to act in a certain manner.
5. ____: ____. Evidence of other crimes which is relevant for any purpose other than
to show the actor’s propensity is admissible under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Reissue 1995).
6. Evidence: Words and Phrases. Evidence that is offered for a proper purpose is
often referred to as having “special” or “independent” relevance, which means its
relevance does not depend on its tendency to show propensity.
7. Rules of Evidence: Other Acts. The admissibility of evidence under Neb. Evid.
R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), must be determined upon
the facts of each case and is within the discretion of the trial court.
8. ____: ____. Evidence of other bad acts falls into two categories under Neb. Evid.
R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), according to the basis of
the relevance of the acts: (1) evidence which is relevant only to show propensity,
STATE v. SUTTON 	185
Cite as 16 Neb. App. 185
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

which is not admissible, and (2) otherwise relevant (nonpropensity) evidence,
which is admissible.
9. ____: ____. The reason for the rule refusing to allow evidence of other crimes is
that such evidence, despite its relevance, creates the risk of a decision by the trier
of fact on an improper basis.
10. Evidence: Other Acts. The exclusion of other crimes evidence offered to show a
defendant’s propensity protects the presumption of innocence and is deeply rooted
in our jurisprudence.
11. Rules of Evidence: Other Acts: Appeal and Error. An appellate court’s analysis
under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), consid-
ers (1) whether 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) whether the probative value of the evidence is substantially outweighed by
its potential for unfair prejudice, and (3) whether the trial court, if requested,
instructed the jury to consider the evidence only for the limited purpose for which
it was admitted.
12. Evidence: Other Acts: Intent: Proof. Evidence of other crimes which are similar
to the crime charged is relevant and admissible when it tends to prove a particular
criminal intent which is necessary to constitute the crime charged.
13. Criminal Law: Words and Phrases. Motive is defined as that which leads or
tempts the mind to indulge in a criminal act.
14. Criminal Law: Intent: Proof. Even when proof of motive is not an element
of a crime, motive for the crime charged is relevant to the State’s proof of the
intent element.
15. Sexual Assault: Intent. Intent is not an element of first degree sexual assault as
defined by Neb. Rev. Stat. § 28-319 (Reissue 1995).
16. Criminal Law: Trial: Juries: Evidence: Appeal and Error. In a jury trial
of a criminal case, an erroneous evidentiary ruling results in prejudice to a
defendant unless the State demonstrates that the error was harmless beyond a
reasonable doubt.
17. Verdicts: Juries: Appeal and Error. 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 in reaching a verdict adverse to a substantial right of
the defendant.
18. ____: ____: ____. In a harmless error review, an appellate court looks at the evi-
dence upon which the jury rested its verdict; the inquiry is not whether in a trial
that occurred without the error a guilty verdict would surely have been rendered,
but, rather, whether the guilty verdict rendered in the trial was surely unattributable
to the error.
19. Criminal Law: Evidence: New Trial: Appeal and Error. Upon finding error in a
criminal trial, the reviewing court must determine whether the evidence presented
by the State was sufficient to sustain the conviction before the cause is remanded
for a new trial.
20. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy
Clause does not forbid a retrial so long as the sum of the evidence offered by the
State and admitted by the trial court, whether erroneously or not, would have been
sufficient to sustain a guilty verdict.
186 	16 NEbRASkA AppELLATE REpORTS

Appeal from the District Court for Sheridan County: pAul d.
empSoN, Judge. Reversed and remanded for a new trial.
paul Wess for appellant.
Jon bruning, Attorney General, and George R. Love for
appellee.
S ieverS, CArlSoN, and CASSel, Judges.
CArlSoN, Judge.
INTRODUCTION
William p. Sutton was convicted in the district court for
Sheridan County of first degree sexual assault, second degree
assault, and use of a weapon to commit a felony. Sutton appeals
his convictions, arguing that the trial court erred in allow-
ing the State to present testimony concerning a prior bad act.
based on the reasons that follow, we reverse, and remand for a
new trial.
bACkGROUND
On March 24, 2006, an information was filed in the district
court for Sheridan County, charging Sutton with one count
of first degree sexual assault in violation of Neb. Rev. Stat.
§ 28-319 (Reissue 1995), one count of second degree assault in
violation of Neb. Rev. Stat. § 28-309 (Cum. Supp. 2006), and
one count of use of a weapon to commit a felony in violation
of Neb. Rev. Stat. § 28-1205 (Reissue 1995). The charges arose
out of allegations made by Sutton’s girlfriend, Jennifer C., with
whom he lived at the time. Sutton entered pleas of not guilty.
On July 10, 2006, the State filed a motion for hearing pur-
suant to Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue
1995), based in its intent to offer prior bad act evidence.
Specifically, the State wanted to present evidence pertaining to
Sutton’s prior conviction for third degree assault on Jennifer.
The State asserted that the evidence was admissible to show
proof of motive, opportunity, intent, and knowledge. On August
1, a pretrial evidentiary hearing was held on the State’s motion.
The State presented a certified copy of an information filed
August 19, 2004, in the district court for box butte County,
STATE v. SUTTON 	187
Cite as 16 Neb. App. 185

charging Sutton with third degree assault and first degree false
imprisonment. The State also offered a journal entry in regard
to those charges, which journal entry stated that a plea agree-
ment was reached and that Sutton pled guilty to the third degree
assault charge and the State dismissed the false imprisonment
charge. Jennifer testified at the evidentiary hearing. She testified
that on June 19, 2004, she and Sutton lived together, and that
after having a disagreement, Jennifer went to their apartment
to get some clothes and intended to leave and stay overnight
somewhere else. Jennifer testified that Sutton would not let her
leave the apartment and that he got angry and hit her in the face
with his fist, knocking her to the floor. She testified that when
she tried to get up, Sutton kicked her in the face. Jennifer testi-
fied that during this time, Sutton was telling her that she was not
going to leave. She testified that once she got up off the floor,
Sutton started hitting her with the belt he had been wearing.
Jennifer testified that she eventually was able to dial the 911
emergency dispatch service and that the police arrived shortly
thereafter and arrested Sutton.
On September 5, 2006, the trial court entered an order find-
ing that the State had proved Sutton’s prior bad act by clear
and convincing evidence and that such act had independent
relevance. Therefore, the trial court granted the State’s motion
to present rule 404 evidence.
On September 13, 2006, a jury trial commenced. Jennifer
testified that in January 2006, she and Sutton lived together in
Rushville, Nebraska, along with Jennifer’s child and Sutton’s
two children. Sutton and Jennifer do not have any children
together. Jennifer testified that on January 14, she and Sutton
both agreed to end their relationship. Jennifer told Sutton that
he and his two children would need to find someplace else to
live. Jennifer testified that Sutton wanted to continue living
with Jennifer until the end of the school year, but that she did
not agree to that arrangement. Jennifer testified that around 7
p.m., Sutton left the residence and went to a bar. between 7
and 7:30 p.m., Jennifer and her child went to the bar where
Sutton was located and Jennifer gave Sutton his car keys. She
told him that she was going out of town, that there was no one
at their house and the door was locked, and that she did not
188 	16 NEbRASkA AppELLATE REpORTS

know where Sutton’s two children were. Jennifer and her child
then drove to Jennifer’s mother’s house in pine Ridge, South
Dakota. Jennifer testified that after talking with her mother, she
left her mother’s house and met a friend in pine Ridge. Jennifer
testified that she returned to her mother’s house between 1:30
and 2 a.m. and lay down for awhile. She testified that she later
decided it was safe to return to her home in Rushville and that
she arrived at her house between 5 and 5:30 a.m. on January
15. Jennifer was asked why it would not be safe to go home,
to which she replied, “because of what was said and that I
didn’t know how [Sutton] was going to react or anything.”
Jennifer testified that when she arrived home, she went inside
the house and walked through all the rooms to make sure that
Sutton was not there. Jennifer testified that she then lay down
on the couch in the living room to sleep and that sometime
later, she opened her eyes and Sutton was standing over her,
asking her where his children were. Jennifer testified that she
believed Sutton had been drinking alcohol, based on his stance
and his speech. She testified that Sutton asked her repeatedly
where his children were and that she responded that she did
not know. Jennifer testified that Sutton then began hitting her
with the handle of a screwdriver while continuing to ask her
where his children were. She testified that Sutton also told
her that he would give her a reason to leave. Jennifer testified
that he then took off the belt he was wearing and started hit-
ting her with it. Jennifer testified that after hitting her multiple
times with the belt, Sutton told her to go into the bedroom. She
testified that she told Sutton “no,” to which he responded that
he was going to continue hitting her if she did not go into the
bedroom. Jennifer testified that she went into the bedroom and
sat at the edge of the bed. She testified that Sutton next told her
to take her clothes off and that when she refused, Sutton told
her he was going to hurt her. Jennifer testified that she took her
clothes off and that Sutton pushed her down on the bed and
had sexual intercourse with her without her consent. Jennifer
testified that when Sutton was done forcing himself on her, he
fell asleep, at which time Jennifer got dressed and went to the
police station. She testified that at the police station, she told
an officer what had happened and made a written statement,
STATE v. SUTTON 	189
Cite as 16 Neb. App. 185

and that the officer then took her to a hospital, where a rape kit
examination was performed.
During cross-examination of Jennifer, Sutton’s counsel asked
her about her and Sutton’s decision to breakup on January 14,
2006. The following exchange occurred:
Q. Okay. Now, you had testified earlier that you and . . .
Sutton had agreed to go your separate ways, correct?
A. Yes.
Q. And at that point it was a mutual agreement to end
your relationship; is that correct?
A. Yes.
Q. And it was an amicable breakup?
A. Yes, we both agreed on it.
Q. In fact, you agreed thereafter you would remain
friends; is that correct?
A. Yes, as far as I was concerned.
In response to defense counsel’s questions on cross-examination,
the State asked Jennifer the following questions on redirect
examination: “Q. If this was an amicable breakup, why were
you scared of him? A. because I know how he can get. Q. What
do you mean? A. He got abusive towards me before. Q. Where
was that? A. Down in Alliance.” At that point, Sutton’s counsel
objected based on relevance and rule 404 evidence. The trial
court overruled the objection and allowed the line of question-
ing to continue. Sutton’s counsel then asked for and was given
a continuing objection. Jennifer further explained that the prior
assault happened 11⁄2 to 2 years earlier, that she and Sutton
were living together at the time, that Sutton had been drinking
on the night the incident occurred, and that Sutton hit her with
his belt. Jennifer testified that Sutton became angry when he
discovered that she had gone to her and Sutton’s apartment to
get some clothes because she intended to stay overnight at a
friend’s house. She further testified that the police were called
and that Sutton was arrested.
In addition to Jennifer’s testimony, the State’s evidence
included testimony from the police officer whom Jennifer spoke
to at the police station on January 15, 2006, the nurse and doctor
who examined Jennifer and performed the rape kit at the hospi-
tal, and Jennifer’s mother. Sutton did not present any evidence.
190 	16 NEbRASkA AppELLATE REpORTS

At the end of trial, the jury found Sutton guilty on all three
charges. The trial court sentenced Sutton to 10 to 20 years’
imprisonment on the first degree sexual assault conviction, 2
to 5 years’ imprisonment on the second degree assault convic-
tion, and 2 to 5 years’ imprisonment on the use of a weapon
to commit a felony conviction. The sentences were ordered to
run consecutively.
ASSIGNMENT OF ERROR
Sutton assigns that the trial court erred in failing to sustain his
objections to the State’s introduction of prior bad act evidence.
STANDARD OF REVIEW
[1-3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the
rules make such discretion a factor in determining admissibil-
ity. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007); State
v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006). Where the
Nebraska Evidence Rules commit the evidentiary question at
issue to the discretion of the trial court, the admissibility of evi-
dence is reviewed for an abuse of discretion. State v. Wisinski,
268 Neb. 778, 688 N.W.2d 586 (2004); State v. Harris, 263
Neb. 331, 640 N.W.2d 24 (2002). The admissibility of evi-
dence under rule 404(2) must be determined upon the facts of
each case and is within the discretion of the trial court. State v.
Wisinski, supra; State v. Harris, supra.
ANALYSIS
[4-7] Sutton assigns that the trial court erred in failing to
sustain his objections to the State’s introduction of prior bad act
evidence. Rule 404(2) provides:
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that
he or she acted in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.
Rule 404(2) prohibits the admission of evidence of other bad
acts for the purpose of demonstrating a person’s propensity
STATE v. SUTTON 	191
Cite as 16 Neb. App. 185

to act in a certain manner. State v. Kuehn, supra; State v.
McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003). Evidence
of other crimes which is relevant for any purpose other than
to show the actor’s propensity is admissible under rule 404(2).
State v. Kuehn, supra; State v. McPherson, supra. Evidence
that is offered for a proper purpose is often referred to as hav-
ing “special” or “independent” relevance, which means its
relevance does not depend on its tendency to show propensity.
State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999); State v.
McManus, 257 Neb. 1, 594 N.W.2d 623 (1999). The admissibil-
ity of evidence under rule 404(2) must be determined upon the
facts of each case and is within the discretion of the trial court.
State v. Kuehn, supra; State v. Wisinski, supra.
[8] Evidence of other bad acts falls into two categories under
rule 404(2), according to the basis of the relevance of the acts:
(1) evidence which is relevant only to show propensity, which
is not admissible, and (2) otherwise relevant (nonpropensity)
evidence, which is admissible. State v. Kuehn, supra; State v.
McManus, supra.
[9,10] The reason for the rule refusing to allow evidence of
other crimes is that such evidence, despite its relevance, creates
the risk of a decision by the trier of fact on an improper basis.
State v. Sanchez, supra; State v. Myers, 15 Neb. App. 308, 726
N.W.2d 198 (2006). The exclusion of other crimes evidence
offered to show a defendant’s propensity protects the presump-
tion of innocence and is deeply rooted in our jurisprudence. Id.
[11] An appellate court’s analysis under rule 404(2) considers
(1) whether 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) whether the probative value
of the evidence is substantially outweighed by its potential for
unfair prejudice, and (3) whether the trial court, if requested,
instructed the jury to consider the evidence only for the limited
purpose for which it was admitted. State v. Trotter, 262 Neb.
443, 632 N.W.2d 325 (2001); State v. Sanchez, supra.
Therefore, to determine whether the prior bad act evidence
was admissible in the instant case, we first consider whether
such evidence was relevant for some purpose other than to
show Sutton’s propensity to commit the crimes charged in the
192 	16 NEbRASkA AppELLATE REpORTS

instant case. A jury instruction is the only indication on the
record before us of the purpose for which the trial court allowed
the evidence of Sutton’s prior assault on Jennifer. The instruc-
tions given to the jury before it began deliberating included an
instruction which stated that the prior bad act evidence was
admitted for the limited purpose of helping the jury decide
whether Sutton had the motive and intent to commit the crimes
with which he was charged. Thus, we will consider motive and
intent as possible purposes for admitting the evidence.
[12-14] Evidence of other crimes which are similar to the
crime charged is relevant and admissible when it tends to prove
a particular criminal intent which is necessary to constitute the
crime charged. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589
(2007). Motive is defined as that which leads or tempts the
mind to indulge in a criminal act. State v. Burdette, 259 Neb.
679, 611 N.W.2d 615 (2000); State v. Sanchez, supra. Even
when proof of motive is not an element of a crime, motive for
the crime charged is relevant to the State’s proof of the intent
element. State v. Burdette, supra. See State v. McBride, 250
Neb. 636, 550 N.W.2d 659 (1996).
[15] Intent is not an element of first degree sexual assault
as defined by § 28-319, one of the offenses with which Sutton
was charged. See State v. Sanchez, 257 Neb. 291, 597 N.W.2d
361 (1999). Intent, however, must be proved with respect to the
second degree assault charge. Section 28-309(1)(a) provides
that “[a] person commits the offense of assault in the second
degree if he or she: (a) Intentionally or knowingly causes
bodily injury to another person with a dangerous instrument.”
The State therefore was required to prove that Sutton intended
to cause bodily injury to Jennifer with a dangerous instrument.
The State seems to argue that the prior bad act evidence is
admissible to show motive and intent because the prior bad act
is similar to the events in the instant case. In both instances,
Sutton and Jennifer were living together, Jennifer was leaving
Sutton or they were breaking up, Sutton had been drinking, and
Sutton became angry and assaulted Jennifer, using his belt in
both instances.
In State v. McManus, 257 Neb. 1, 594 N.W.2d 623 (1999),
the Nebraska Supreme Court was faced with a situation in which
STATE v. SUTTON 	193
Cite as 16 Neb. App. 185

the defendant, on a prior occasion and in the crime charged, had
been drinking at a bar, became intoxicated and angry, and used a
gun to intimidate another individual. The State argued that evi-
dence of the prior act was admissible to show his intent, because
the two occurrences were factually similar. The court found:
The most obvious reason why the similarity between
the two acts may show the intent of [the defendant] in
the instant case is the inference that [the defendant] is the
type of person who acts with violent intent when he is
angry. However, this is classic propensity reasoning, and
thus, although the evidence may be relevant for that pur-
pose, it must be excluded under rule 404(2).
State v. McManus, 257 Neb. at 10, 594 N.W.2d at 630.
In the instant case, the prior bad act evidence implies that
Sutton is the type of person who acts with violent intent when he
wants to control someone, particularly Jennifer. Like McManus,
this is classic propensity reasoning and may not be used to
show Sutton’s motive and intent in the crimes charged. Thus,
we conclude that the prior bad act evidence was not offered for
a proper purpose under rule 404(2) and, therefore, that the trial
court abused its discretion in admitting such evidence at trial.
because the evidence was not offered for a proper purpose under
rule 404(2), we need not address the second and third analyti-
cal steps set forth in State v. Trotter, 262 Neb. 443, 632 N.W.2d
325 (2001), in order to reach our conclusion that the trial court
abused its discretion in receiving such evidence.
The State puts forth an argument in which it contends that
the prior bad act evidence was admissible regardless of whether
it was or was not admissible under rule 404(2), because Sutton
“‘opened the door’” for evidence of the prior assault. brief
for appellee at 8. The State points out that no prior bad act
evidence was introduced during direct examination of Jennifer.
It contends that Sutton “opened the door” to such evidence by
introducing evidence during cross-examination of Jennifer that
Jennifer and Sutton’s relationship ended amicably, thereby leav-
ing the jury with the impression that Sutton had no motive to
assault Jennifer. The State further contends that the testimony
about the prior assault during redirect of Jennifer simply rebut-
ted the evidence brought out by Sutton on cross-examination
194 	16 NEbRASkA AppELLATE REpORTS

by having Jennifer explain why she was afraid of Sutton if the
breakup was amicable.
We conclude that Sutton did not “open the door” in regard
to the prior assault. As previously stated, the State argues that
Jennifer’s amicable breakup testimony on cross-examination left
the jury with the impression that Sutton had no motive to com-
mit the crimes. However, Jennifer testified on direct examination
that she and Sutton mutually agreed to end their relationship.
Thus, reemphasizing this point on cross-examination did not
bring out any new evidence and did not “open the door” in
regard to evidence of the prior assault. Jennifer also testified
that before Sutton started hitting her with the screwdriver, he
asked where his children were and Jennifer told him she did
not know. Thus, the jury could have viewed Jennifer’s failure
to know where Sutton’s children were as Sutton’s motive for
the assault.
[16-18] Having determined that the prior bad act evidence
was erroneously admitted, the next question we must address is
whether the admission of the evidence was harmless beyond a
reasonable doubt. In a jury trial of a criminal case, an errone-
ous evidentiary ruling results in prejudice to a defendant unless
the State demonstrates that the error was harmless beyond a
reasonable doubt. State v. Morrow, 273 Neb. 592, 731 N.W.2d
558 (2007); State v. Robinson, 271 Neb. 698, 715 N.W.2d 531
(2006). Harmless error exists when there is some incorrect con-
duct by the trial court which, on review of the entire record, did
not materially influence the jury in reaching a verdict adverse
to a substantial right of the defendant. Id. In a harmless error
review, we look at the evidence upon which the jury rested its
verdict; the inquiry is not whether in a trial that occurred with-
out the error a guilty verdict would surely have been rendered,
but, rather, whether the guilty verdict rendered in the trial was
surely unattributable to the error. State v. Morrow, supra; State
v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007). Upon hear-
ing the evidence of Sutton’s previous assault on Jennifer, the
jury could have inferred that because Sutton had acted violently
against Jennifer in the past, he must have acted in conformity
with that character in the instant case, thereby reaching a ver-
dict on an improper basis. Therefore, we cannot say that the
STATE v. SUTTON 	195
Cite as 16 Neb. App. 185

guilty verdict was unattributable to the prior bad act evidence,
and we conclude that the erroneous admission of the bad act
evidence in the instant case was not harmless error.
[19,20] In addition, upon finding error in a criminal trial, the
reviewing court must determine whether the evidence presented
by the State was sufficient to sustain the conviction before
the cause is remanded for a new trial. State v. Morrow, supra;
State v. Anderson, 258 Neb. 627, 605 N.W.2d 124 (2000). The
Double Jeopardy Clause does not forbid a retrial so long as the
sum of the evidence offered by the State and admitted by the
trial court, whether erroneously or not, would have been suf-
ficient to sustain a guilty verdict. Id. We conclude that the evi-
dence was sufficient to sustain Sutton’s conviction. As a result,
the cause may be remanded for a new trial.
We also find it necessary to note that when the trial court
allowed the prior bad act testimony into evidence during Sutton’s
trial, it did not comply with the requirements set forth in State
v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999). In Sanchez,
the Nebraska Supreme Court held that
the proponent of evidence offered pursuant to rule 404(2)
shall, upon objection to its admissibility, be required to
state on the record the specific purpose or purposes for
which the evidence is being offered and that the trial court
shall similarly state the purpose or purposes for which
such evidence is received. . . . Any limiting instruction
given upon receipt of such evidence should likewise iden-
tify only those specific purposes for which the evidence
was received.
257 Neb. at 308, 597 N.W.2d at 374 (citation omitted).
In the instant case, Sutton made a rule 404 objection when
the State began questioning Jennifer about the prior assault.
The court simply overruled the objection. The trial court did
not have the State indicate the specific purpose for which the
evidence was being offered, and the trial court did not state
the purpose for which such evidence was received. The trial
court also failed to state such purpose at the time of the hear-
ing required by rule 404(3)—which was an earlier opportunity
for the trial court to “state the purpose or purposes” in order to
comply with the procedures mandated in Sanchez. In its final
196 	16 NEbRASkA AppELLATE REpORTS

instructions to the jury at the close of the case, the court did
give a jury instruction in regard to the prior bad act evidence.
However, the court did not give a limiting instruction at the time
the rule 404 evidence was introduced. We need not consider
whether the trial court’s failure to abide by the Sanchez require-
ments constitutes reversible error in the instant case, given that
we have concluded that the evidence was inadmissible. We
simply point it out to remind trial courts of the requirements set
forth in State v. Sanchez, supra.
CONCLUSION
We conclude that the trial court erroneously admitted evi-
dence of Sutton’s prior bad act for an improper purpose and
that the admission of this evidence was not harmless error.
Accordingly, we reverse, and remand for a new trial in accord-
ance with this opinion.
reverSed ANd remANded for A NeW triAl .
STATE v. SUTTON 	197
Cite as 16 Neb. App. 185