State v. Baker

the order of the district court which affirmed the sentence,
and remand the cause with directions to the district court to
vacate the sentence and remand the case to the county court for
resentencing.
A ffirmed in pArt, And in pArt reversed
And remAnded with directions.
Wright, J., not participating.
stAte of nebrAskA, Appellee , v.
rodney l. bAker , AppellAnt.
789 N.W.2d 702
Filed October 29, 2010. 	No. S-09-1312.
1. Rules of Evidence. 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 deter-
mining 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: 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.
4. 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.
5. Trial: Witnesses: Testimony: Appeal and Error. When the object of cross-
examination is to collaterally ascertain the accuracy or credibility of the witness,
some latitude should be permitted, and the scope of such latitude is ordinarily
subject to the discretion of the trial judge, and, unless abused, its exercise is not
reversible error.
6. Trial: Testimony: Appeal and Error. Determinations regarding cross-examination
of a witness on specific instances of conduct are specifically entrusted to the dis-
cretion of the trial court.
7. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Reissue 2008), prohibits the admission of other bad acts evidence for the pur-
pose of demonstrating a person’s propensity to act in a certain manner.
752 	280 NEbRASkA REpORtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

8. ____: ____. 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 2008).
9. Evidence: Words and Phrases. Evidence that is offered for a proper purpose is
often referred to as having a “special” or “independent” relevance, which means
that its relevance does not depend upon its tendency to show propensity.
10. Rules of Evidence: Other Acts: Appeal and Error. An appellate court’s analy-
sis under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008),
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 there-
with; (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.
11. Rules of Evidence: Other Acts. bad acts that form the factual setting of
the crime in issue or that form an integral part of the crime charged are not
part of the coverage under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Reissue 2008).
12. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
13. Hearsay. If an out-of-court statement is not offered for the purpose of proving the
truth of the facts asserted, it is not hearsay.
14. Trial: Hearsay: Proof. When overruling a hearsay objection on the ground
that testimony about an out-of-court statement is received not for its truth but
only to prove that the statement was made, a trial court should identify the
specific nonhearsay purpose for which the making of the statement is relevant
and probative.
15. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis
on which the jury actually 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 questioned trial was surely
unattributable to the error.
Appeal from the District Court for Lancaster County: kAren
b. flowers, Judge. Affirmed.
James R. Mowbray and todd W. Lancaster, of Nebraska
Commission on public Advocacy, for appellant.
Jon bruning, Attorney General, and George R. Love for
appellee.
heAvicAn, 	c.J., 	wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller-lermAn, JJ.
StAtE v. bAkER 	753
Cite as 280 Neb. 752

stephAn, J.
Following a jury trial in the district court for Lancaster
County, Rodney L. baker was convicted and sentenced on one
count of first degree sexual assault, a Class II felony, and one
count of third degree sexual assault of a child, a Class IIIA
felony.1 In this direct appeal, baker contends that certain testi-
mony from the victim and her mother was erroneously admit-
ted. We conclude that the district court did not err in receiving
the testimony, and we therefore affirm.
I. bACkGROUND
From the summer of 2003 until December 21, 2005, k.b.
and her younger sister lived with their mother in a single-family
residence in Lincoln, Nebraska. baker, the mother’s boyfriend
at the time, also lived at the residence. k.b. was between 11
and 13 years old during this time period.
k.b. wanted to be a massage therapist, and from an early
age, she gave back and foot massages to her mother. During the
time she lived with baker, k.b. would usually give these mas-
sages to her mother in the evenings, while the family was gath-
ered in the living room. On one of these occasions, baker was
sitting in a chair approximately 5 feet away, outside of k.b.’s
line of vision. k.b.’s mother could see baker and noticed that
he was masturbating. the mother testified that this was the first
time that she noticed baker becoming aroused while k.b. was
massaging her.
k.b.’s mother testified that sometime after this incident,
baker began instructing her to call k.b. into their bedroom late
at night in order to give the mother a massage. this occurred
on various occasions for approximately 2 years. Usually, baker
would masturbate while k.b. massaged her mother on the bed.
baker sometimes fondled k.b. and instructed her on how to
touch herself in order to receive sexual pleasure. k.b. testified
that baker digitally penetrated her on one occasion and that
on more than one occasion, he made her touch his penis, once
ejaculating on her hand.
1 See Neb. Rev. Stat. §§ 28-319 (Reissue 1995) and 28-320.01 (Cum. Supp.
2004).
754 	280 NEbRASkA REpORtS

On December 21, 2005, through juvenile court proceedings,
k.b. and her sister were removed from the home they shared
with their mother and baker. the girls were then placed in
various foster care settings. k.b.’s contact with baker after
her removal from the home was limited, especially after
February 2008, when her foster parents became her legal
guardians. k.b. first reported the sexual assaults by baker in
October 2008.
both k.b. and her mother testified at trial about their
delay in reporting the assaults. In general, both testified that
baker had threatened them with harm if they reported his
actions to authorities and that they believed he would carry
out the threats, based upon prior acts of domestic violence.
this testimony was the subject of a pretrial proceeding pur-
suant to the Nebraska Evidence Rules, as set forth in greater
detail below.
When baker was initially questioned by police in this mat-
ter, he admitted that k.b. had been sexually abused. baker con-
tended, however, that k.b.’s mother was the actual perpetrator
of the abuse and that he was just a bystander. He was convicted
after a jury trial and filed this timely direct appeal.
II. ASSIGNMENtS OF ERROR
baker assigns, restated, that the district court erred in (1)
allowing the State to introduce evidence of other crimes,
wrongs, or acts which he contends were inadmissible; (2)
receiving hearsay testimony from k.b. regarding threats and
domestic violence directed at her mother; and (3) permitting
the State to utilize extrinsic evidence of the conduct of a wit-
ness for the purpose of supporting or impeaching credibility.
III. StANDARD OF REVIEW
[1,2] 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
admissibility.2 Where the Nebraska Evidence Rules commit
2 State v. Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009).
StAtE v. bAkER 	755
Cite as 280 Neb. 752

the evidentiary question at issue to the discretion of the trial
court, the admissibility of evidence is reviewed for an abuse of
discretion.3
[3] 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.4
[4] 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.5
[5,6] When the object of cross-examination is to collaterally
ascertain the accuracy or credibility of the witness, some lati-
tude should be permitted, and the scope of such latitude is ordi-
narily subject to the discretion of the trial judge, and, unless
abused, its exercise is not reversible error.6 Determinations
regarding cross-examination of a witness on specific instances
of conduct are specifically entrusted to the discretion of the
trial court.7
IV. ANALYSIS
1. rule 404(2) issues
(a) Additional background
Shortly after baker was arraigned, his counsel filed a motion
seeking access to k.b.’s juvenile court records. In a hearing
on the motion, counsel argued that he needed the confidential
3 Id.; State v. Poe, 276 Neb. 258, 754 N.W.2d 393 (2008).
4 State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009); State v. Floyd, supra
note 2.
5 State v. Epp, supra note 4; State v. Draganescu, 276 Neb. 448, 755 N.W.2d
57 (2008).
6 State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008); State v. Kuehn,
273 Neb. 219, 728 N.W.2d 589 (2007).
7 Neb. Evid. R. 608(2), Neb. Rev. Stat. § 27-608(2) (Reissue 2008); State v.
Schreiner, supra note 6. See, also, State v. Messersmith, 238 Neb. 924, 473
N.W.2d 83 (1991).
756 	280 NEbRASkA REpORtS

records in order to confirm his belief that k.b. had not reported
sexual abuse by baker during counseling which she received
in 2005 and 2006 and that she had assured counselors that she
would report such abuse if it had occurred. baker’s counsel
argued that he needed this information in order to effectively
cross-examine k.b. and her mother at trial. After an in camera
review of the juvenile court records, the court determined that
portions thereof should be disclosed to the defense and pro-
vided copies of those records to baker’s counsel.
After that ruling but prior to trial, the State filed notice
that pursuant to rule 404(2), it intended to offer evidence of
baker’s physical abuse of and threats of harm directed at k.b.
and her mother for the purpose of (1) showing that k.b. and
her mother feared baker, (2) showing that such fear was real
and not imagined, and (3) explaining the failure of k.b. and
her mother to promptly report the conduct which formed the
bases of the charges against baker. baker filed an objection.
the district court conducted a pretrial hearing and ultimately
determined (1) that the mother’s testimony about what she did
and why she did it on the nights of the alleged assaults was not
rule 404 evidence and (2) that the remainder of this evidence
was admissible for the purposes proposed by the State.
During the trial, k.b. testified that baker told her he would
kill her and her mother if she reported the assaults. k.b.
testified over baker’s continuing rule 404 objection that she
believed baker would carry out the threats because she had
observed her mother with body bruises and black eyes at
various times while they lived with baker. k.b. believed these
injuries were inflicted by baker because she had seen her
mother enter a room with baker and come out with a black
eye. k.b. also testified that she was afraid of baker because he
once grabbed her when she wanted to run away and squeezed
her arms so hard he left indentations. Immediately prior to
this testimony, the court instructed the jury that the testimony
regarding baker’s physically assaulting k.b. and her mother
was being received
for the limited purpose of helping you evaluate [k.b.’s]
testimony regarding the delay in reporting the allega-
tions of sexual abuse that are the subject of this case and
StAtE v. bAkER 	757
Cite as 280 Neb. 752

[k.b.’s mother’s] testimony regarding her failure to report
or take other steps to stop the alleged sexual abuse. You
may consider this evidence for that limited purpose only
and for no other purpose.
k.b.’s mother also testified that baker threatened to kill
her or tell police she was responsible for everything if she
reported the assaults. the mother testified that if she refused
to bring k.b. into the bedroom after baker told her to do so,
baker would beat or choke her, and at times threatened her
with a knife. On one occasion when the mother confronted
baker about the sexual abuse of k.b., he choked her until she
lost consciousness. the mother further testified that baker
was physically abusive to her throughout the time they lived
together. the abuse included choking and striking her with
his fist, resulting in black eyes on multiple occasions. prior
to this testimony, the district court gave a limiting instruc-
tion similar to the one given during k.b.’s testimony, as
quoted above.
After both k.b. and her mother testified that k.b. often
gave her mother evening massages in the living room, the State
sought to elicit testimony from the mother regarding the first
time she noticed baker becoming sexually aroused while k.b.
was massaging her. baker asserted a rule 404 objection and
argued that the evidence was inadmissible as a prior bad act.
the court overruled baker’s objection, reasoning that the evi-
dence was not rule 404 evidence and was admissible because
it was “part of the whole story” of the charged crimes. the
court specifically directed the State to connect the evidence
regarding the living room incident with the subsequent events
that occurred in the bedroom. In the prosecutor’s summation,
he argued from this evidence that baker was sexually aroused
by watching k.b. administer massages to her mother, thus
making it more likely that the sexual abuse was committed by
baker and not k.b.’s mother, as baker claimed in his statement
to police.
In addition to the limiting instructions given during the tes-
timony of k.b. and her mother, the court’s final instructions
to the jury included a statement that the evidence of physical
violence perpetrated upon k.b. or her mother was received
758 	280 NEbRASkA REpORtS

“for the limited purpose of helping you evaluate [k.b.’s] testi-
mony regarding her delay in reporting the allegations of sexual
abuse” and the mother’s “testimony regarding her failure to
report or take other steps to stop the alleged sexual abuse.” the
jury was again instructed that it could consider such evidence
“for that limited purpose and for no other.”
(b) Disposition
[7-10] baker contends that the evidence summarized above
was inadmissible under rule 404(2), which governs the admis-
sibility of what has been characterized as “other crimes” or
“similar acts” evidence.8 Rule 404(2) provides:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, 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 other bad acts evidence
for the purpose of demonstrating a person’s propensity to act
in a certain manner.9 but evidence of other crimes which is rele-
vant for any purpose other than to show the actor’s propensity
is admissible under rule 404(2).10 Evidence that is offered for
a proper purpose is often referred to as having a “special” or
“independent” relevance, which means that its relevance does
not depend upon its tendency to show propensity.11 An appel-
late 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 conform-
ity 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
8 See State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).
9 State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003); State v.
Sanchez, supra note 8.
10 State v. McPherson, supra note 9; State v. Aguilar, 264 Neb. 899, 652
N.W.2d 894 (2002).
11 State v. Aguilar, supra note 10; State v. Sanchez, supra note 8.
StAtE v. bAkER 	759
Cite as 280 Neb. 752

to consider the evidence only for the limited purpose for which
it was admitted.12
[11] Our first task is to determine what portion of the chal-
lenged evidence is governed by rule 404(2). bad acts that
form the factual setting of the crime in issue or that form an
integral part of the crime charged are not part of the cover-
age under rule 404(2).13 For example, in State v. McPherson,14
the defendant was convicted on two counts of child abuse
and two counts of first degree sexual assault on a child.
the victims were his minor daughters, who testified regard-
ing sexual activity occurring in their home. On appeal, the
defendant argued that evidence about sexual devices and sexu-
ally explicit videos in the home was inadmissible under rule
404(2). We concluded that the evidence was “so closely inter-
twined with both crimes charged that it cannot be considered
extrinsic” and therefore was not governed by rule 404(2) and
was properly received.15
Here, k.b.’s testimony that baker threatened her with harm
if she reported his conduct is inextricably intertwined with the
charged offenses and therefore is not subject to rule 404(2).
the same is true with regard to the mother’s testimony that
baker threatened and physically assaulted her if she did not
bring k.b. to the bedroom when he instructed her to do so.
And, likewise, the mother’s testimony regarding the first time
she observed baker become sexually aroused while watching
k.b. administer a massage is “part of the whole story” of the
charged offenses and not governed by rule 404(2). All of this
evidence was within the “coherent picture of the facts of the
crimes charged”16 which the State was entitled to present. It
was not offered to prove that baker had the propensity or char-
acter to act in a certain way. the district court did not abuse its
discretion in receiving this evidence.
12 State v. Epp, supra note 4; State v. Floyd, supra note 2.
13 State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004).
14 State v. McPherson, supra note 9.
15 Id. at 744, 668 N.W.2d at 513.
16 Id. at 743, 668 N.W.2d at 513.
760 	280 NEbRASkA REpORtS

but all of the remaining testimony of k.b. and her mother
regarding threats and domestic violence does constitute rule
404(2) evidence. As required by State v. Sanchez,17 the State
identified the specific purposes for which this evidence was
being offered: to show that k.b. and her mother feared baker,
to establish that their fear was “real and not imaginary,” and to
explain the failure of k.b. and her mother to make a prompt
complaint. Likewise, the district court ruled that the evidence
would be received solely for explaining the delay in reporting
the crimes, and so instructed the jury.
this court has upheld the admissibility of rule 404(2) evi-
dence on similar grounds. In State v. Hitt,18 an appeal from
a sexual assault conviction where the victim was the defend-
ant’s minor child, we held that evidence that the defendant
had struck the victim with a paddle and had hit a younger
sibling on the knees with a hammer was properly received
to establish that the children were genuinely afraid of the
defendant, thereby explaining their failure to make a prompt
complaint. In State v. Wilson,19 we held that evidence of the
defendant’s conversations with a witness about his connec-
tions with persons involved in criminal activity was properly
received to corroborate the witness’ testimony that she did not
immediately come forward to report the defendant’s involve-
ment in a fatal shooting because she feared retaliation by
the defendant.
Applying evidence rules similar to rule 404(2), other courts
have admitted “other crimes” evidence for the limited pur-
pose of explaining the failure of a victim or other witness to
promptly report a crime. In Brock v. State,20 a Georgia appel-
late court held that a child’s testimony that she had seen her
stepfather strike and point a gun at her mother was properly
received to explain why the child did not immediately report
the fact that she had been sexually molested by her stepfather.
17 State v. Sanchez, supra note 8.
18 State v. Hitt, 207 Neb. 746, 301 N.W.2d 96 (1981).
19 State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).
20 Brock v. State, 183 Ga. App. 277, 358 S.E.2d 613 (1987).
StAtE v. bAkER 	761
Cite as 280 Neb. 752

A federal appeals court held in U.S. v. Davidson21 that the trial
court had not abused its discretion in receiving witnesses’ tes-
timony regarding prior criminal activity by the defendant for
the limited purpose of showing that the witnesses were afraid
of the defendant and therefore did not come forward sooner
to report the charged offense. And in U.S. v. Powers,22 another
federal appeals court held that evidence of the defendant’s vio-
lent conduct directed at the victim and her family was properly
received in the government’s case in chief under the federal
counterpart of rule 404(2) to explain the child victim’s sub-
mission to sexual abuse by her father and her delay in report-
ing it.
In arguing that the rule 404(2) evidence was erroneously
received at his trial, baker relies upon our opinions in State
v. Sanchez23 and State v. Trotter24 and the Nebraska Court of
Appeals’ opinion in State v. Sutton.25 In Sanchez, a prosecution
for sexual assault upon a 13-year-old girl, we held that evidence
of uncharged sexual assaults upon other females under the age
of 16 lacked independent relevance on the issues of intent,
opportunity, motive, and identity, which were the only purposes
for which the evidence was offered. In Trotter, an appeal from
convictions for child abuse, child abuse resulting in death, and
manslaughter, we held that evidence that the defendant had
physically abused two former spouses offered by the pros-
ecutor to prove the defendant’s “‘violent tendencies towards
the people living in his household’” was improperly admit-
ted to prove the defendant’s propensity to commit the crimes
charged.26 Similarly, in Sutton, the Court of Appeals held that
evidence that the defendant had been previously convicted for
assaulting the alleged victim of the offenses for which he was
21 U.S. v. Davidson, 122 F.3d 531 (8th Cir. 1997).
22 U.S. v. Powers, 59 F.3d 1460 (4th Cir. 1995).
23 State v. Sanchez, supra note 8.
24 State v. Trotter, 262 Neb. 443, 632 N.W.2d 325 (2001).
25 State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007), modified on
denial of rehearing 16 Neb. App. 287, 741 N.W.2d 713.
26 State v. Trotter, supra note 24, 262 Neb. at 453, 632 N.W.2d at 335.
762 	280 NEbRASkA REpORtS

being tried was erroneously received for purposes of showing
motive and intent, in that its only probative value was to show
the defendant’s propensity to use violence as a means of con-
trolling others. All of these cases are distinguishable from the
instant case in that none dealt with evidence of the defendant’s
prior acts offered and received for the limited purpose of
explaining a victim’s delay in reporting a crime.
In this case, it was clear from the outset that the credibility
of k.b. and her mother would be contested and likely determi-
native issues at trial. In addressing these issues during its case
in chief, the State had a legitimate interest in explaining why
the charged offenses were not reported until more than 3 years
after they were allegedly committed. the district court did not
abuse its discretion in determining that baker’s prior acts of
domestic violence had independent relevance to show that k.b.
and her mother had a genuine and legitimate basis for believ-
ing that baker would carry out his threats to harm them if they
reported the crimes and that the probative value of such evi-
dence was not substantially outweighed by the danger of unfair
prejudice or other factors enumerated in rule 403. by its limit-
ing instructions, the district court correctly informed the jury
of the narrow purpose for which it could consider the evidence.
baker’s first assignment of error is without merit.
2. heArsAy issue
During her direct examination, k.b. testified that she had not
observed baker touch her mother in an aggressive manner. the
prosecutor then asked if her mother ever told her that he had
done so. Upon baker’s hearsay objection, the court inquired if
the prosecutor was offering the mother’s statement to prove its
truth, and he responded in the negative. the court ruled that
it would receive evidence of the mother’s statement “only for
the fact that it was said, not whether what was said was true.”
k.b. then testified that her mother told her that baker had
given her a black eye and that she was afraid of him. the pros-
ecutor also asked k.b. if her mother ever told her that baker
had threatened her. Over baker’s hearsay objection, the court
again received k.b.’s testimony about her mother’s statement
for the fact that a statement was made, but not for the truth of
StAtE v. bAkER 	763
Cite as 280 Neb. 752

that statement. k.b. then testified that her mother told her that
baker had threatened to hurt both of them if k.b. “said any-
thing.” baker assigns and argues that the mother’s statements
were inadmissible hearsay erroneously received.
[12] Hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evi-
dence to prove the truth of the matter asserted.”27 k.b.’s testi-
mony about the threat made by baker to her mother and related
by her mother to her involves two out-of-court statements, that
of baker to the mother and that of the mother to k.b. A state-
ment is not hearsay if it is “offered against a party and is . . .
his own statement.”28 baker’s threatening statement to k.b.’s
mother constituted his own statement offered against him and,
accordingly, was not hearsay.
[13,14] We therefore focus on the mother’s statement relat-
ing baker’s threat to k.b. and the mother’s statement to k.b.
that baker had given her a black eye. If an out-of-court state-
ment is not offered for the purpose of proving the truth of the
facts asserted, it is not hearsay.29 but it does not necessarily
follow that such a statement is admissible in a particular case.
the admissibility of the statement depends upon whether the
statement is offered for one or more recognized nonhearsay
purposes relevant to an issue in the case.30 Unless the propo-
nent of the statement identifies the nonhearsay purpose for
which it is offered, the opposing party may have an insuf-
ficient basis upon which to determine whether to make a
relevance objection. And by overruling a hearsay objection
and receiving such a statement not for its truth but “only for
the fact that it was said,” a trial court risks confusing a jury
27 Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2008).
28 Rule 801(4)(b)(i). See State v. Robinson, 271 Neb. 698, 715 N.W.2d 531
(2006).
29 State v. Morrow, 273 Neb. 592, 731 N.W.2d 558 (2007), disapproved on
other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007);
State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997).
30 See, 4 Clifford S. Fishman, Jones on Evidence Civil and Criminal § 24.21
(7th ed. 2000); R. Collin Mangrum, Mangrum on Nebraska Evidence
688-94 (2010).
764 	280 NEbRASkA REpORtS

as to the purpose for which it should consider the statement
and depriving an appellate court of a meaningful basis upon
which to review the statement’s admissibility. As one com-
mentator notes, such a ruling “doesn’t really explain why the
mere making of the statement (regardless of its truth) is rele-
vant.”31 Accordingly, when overruling a hearsay objection on
the ground that testimony about an out-of-court statement is
received not for its truth but only to prove that the statement
was made, a trial court should identify the specific nonhear-
say purpose for which the making of the statement is relevant
and probative.
[15] In this case, the district court did not identify the non-
hearsay purpose for which the making of the statements in
question was relevant, but any error in this regard was harm-
less beyond a reasonable doubt. Harmless error review looks
to the basis on which the jury actually 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 questioned trial was
surely unattributable to the error.32 the statements objected
to as hearsay pertained to the same evidence of threats and
domestic violence which was properly received under rule
404(2). Just prior to her testimony regarding the statements,
k.b. testified that baker had threatened her with harm if she
reported his conduct and that she had observed her mother
with a black eye after the mother was alone in a room with
baker. Subsequently, k.b.’s mother testified that baker had
threatened her and that he had punched her, resulting in black
eyes and bruises. As noted, the testimony of both k.b. and
her mother on the subject of physical abuse was preceded by
a limiting instruction informing the jury of the purpose for
which it could consider the testimony, and a third limiting
instruction was given at the close of the case. because the
subject matter of the statements challenged as hearsay was
established by other testimony, properly received and limited
as to purpose, we conclude that the guilty verdict was surely
31 4 Fishman, supra note 30, § 24.21 at 251.
32 State v. Ford, 279 Neb. 453, 778 N.W.2d 473 (2010).
StAtE v. bAkER 	765
Cite as 280 Neb. 752

unattributable to any error in admitting the statements over a
hearsay objection.
3. rule 608 issue
During cross-examination of k.b., baker’s counsel asked,
“Do you have an opinion about the truthfulness of your
mother?” When k.b. responded that she did, counsel asked,
“Is that opinion that she — that opinion that you have, is it that
she is not a truthful person?” k.b. responded, “On occasion,
yes.” On redirect, the prosecutor asked k.b. what led her to
that opinion. baker objected, and after an unrecorded sidebar
conference, the court overruled the objection. the prosecu-
tor then asked k.b., “What was the basis for your opinion?”
She responded, “I was basing it on that she broke her promise
about him not touching me anymore.” k.b. then confirmed
that this was the only basis for her opinion regarding her
mother’s truthfulness.
In his third assignment of error, baker argues that the admis-
sion of this testimony violated rule 608. While the specific
grounds of baker’s objection at trial were not stated, we are
satisfied from the context that it was based upon rule 608(2),
which provides in pertinent part:
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting his credibility . . .
may not be proved by extrinsic evidence. they may,
however, in the discretion of the court, if probative of
truthfulness or untruthfulness be inquired into on cross-
examination of the witness . . . concerning the character
for truthfulness or untruthfulness of another witness as
to which character the witness being cross-examined
has testified.
We find no merit in baker’s argument that k.b.’s explanation
of why she considered her mother to be untruthful violated
this rule. Rule 608(2) does not prohibit inquiry into specific
instances of a witness’ conduct; it only prohibits proof of that
conduct by extrinsic evidence.33 Extrinsic evidence is evidence
33 See, generally, Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb.
327, 754 N.W.2d 406 (2008).
766 	280 NEbRASkA REpORtS

“[f]rom outside sources.”34 k.b.’s testimony regarding the basis
for her opinion about her mother’s truthfulness was not from
an outside source, and the State was not prohibited by rule
608(2) from conducting this inquiry on redirect examination.35
the district court did not abuse its discretion in receiving this
testimony over baker’s objection.
V. CONCLUSION
For the reasons discussed, we find no merit in any of baker’s
assignments of error and therefore affirm the judgment of the
district court.
A ffirmed.
34 black’s Law Dictionary 666 (9th ed. 2009).
35 See, generally, Mangrum, supra note 30, 434-35.
StAtE v. bAkER 	767
Cite as 280 Neb. 752