State v. Payne-McCoy

302 	284 NEBRASKA REPORTS
State of NebraSka, appellee, v. euelauNda l.
payNe -Mccoy, appellaNt.
818 N.W.2d 608
Filed August 17, 2012. 	No. S-11-530.
1. Criminal Law: Judgments: Appeal and Error. An appellate court will affirm
a trial court’s ruling that the defendant committed an uncharged extrinsic crime
or bad act if, viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found with a firm conviction the essential
elements of the uncharged crime.
2. 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
(Reissue 2008) and 27-404(2) (Cum. Supp. 2010), and the trial court’s decision
will not be reversed absent an abuse of discretion.
3. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
given by a trial court are correct is a question of law. When dispositive issues on
appeal present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
4. Rules of Evidence: Proof. Under Neb. Evid. R. 404(3), Neb. Rev. Stat.
§ 27-404(3) (Cum. Supp. 2010), before a court can admit evidence of an extrin-
sic act in a criminal case, the State must prove by clear and convincing evidence,
outside the presence of the jury, that the defendant committed the extrinsic act.
5. Evidence: Words and Phrases. Clear and convincing evidence is that amount of
evidence which produces in the trier of fact a firm belief or conviction about the
existence of a fact to be proved.
6. Rules of Evidence: Other Acts. 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) (Cum. Supp. 2010).
7. 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.
8. 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) (Cum. Supp. 2010),
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.
9. Evidence: Other Acts. 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.
10. Criminal Law: Words and Phrases. Motive is defined as that which leads or
tempts the mind to indulge in a criminal act.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

STATE v. PAYNE-McCOY 	303
Cite as 284 Neb. 302
11. 	Rules of Evidence. Evidence that is admissible under Neb. Evid. R. 404(2), Neb.
Rev. Stat. § 27-404(2) (Cum. Supp. 2010), may be excluded under Neb. Evid. R.
403, Neb. Rev. Stat. § 27-403 (Reissue 2008), if its probative value is substan-
tially outweighed by the danger of unfair prejudice.
12. Evidence. The probative value of evidence involves a measurement of the degree
to which the evidence persuades the trier of fact that the particular fact exists and
the distance of the fact from the ultimate issue of the case.
13. Evidence: Words and Phrases. Unfair prejudice means an undue tendency to
suggest a decision based on an improper basis.
14. Trial: Evidence. Balancing the probative value of evidence against the danger of
unfair prejudice is within the discretion of the trial court.
15. Trial: Evidence: Jury Instructions. In any situation in which a limiting instruc-
tion was given at the time evidence was introduced, NJI2d Crim. 5.3 must be
given at closing if requested.
16. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double
Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court would have been sufficient to sustain a guilty verdict.
Appeal from the District Court for Douglas County: JaMeS t.
G leaSoN, Judge. Reversed and remanded for a new trial.
Thomas C. Riley, Douglas County Public Defender, Scott
C. Sladek, John L. Jedlicka, and Jessica P. Clark for appellant.
Jon Bruning, Attorney General, and Carrie A. Thober for
appellee.
H eavicaN, c.J., WriGHt, coNNolly, StepHaN, MccorMack,
and M iller-lerMaN, JJ.
WriGHt, J.
NATURE OF CASE
Euelaunda L. Payne-McCoy was charged with one count
of possession of crack cocaine with intent to deliver and
one count of criminal conspiracy. The conspiracy charge, as
instructed, was that Payne-McCoy allegedly conspired with
Lawrence Carbon to distribute crack cocaine. At trial, evidence
of previous drug deals between a confidential informant and
Payne-McCoy was admitted with a limiting instruction inform-
ing the jury that it could consider the evidence only for the
purpose of identifying Payne-McCoy or to establish motive or
intent. At the close of the case, the trial court denied defense
counsel’s oral motion to give the jury a written instruction on

304 	284 NEBRASKA REPORTS
the limited use of evidence of Payne-McCoy’s prior bad acts.
The jury convicted Payne-McCoy on both counts, and the court
sentenced her to consecutive terms of 4 to 8 years’ imprison-
ment. Payne-McCoy appeals. For the reasons set forth herein,
we reverse the judgments of conviction and remand the cause
for a new trial.
SCOPE OF REVIEW
[1] We will affirm a trial court’s ruling that the defendant
committed an uncharged extrinsic crime or bad act if, viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found with a firm conviction
the essential elements of the uncharged crime. State v. Kofoed,
283 Neb. 767, 817 N.W.2d 225 (2012).
[2] 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 (Reissue 2008) and 27-404(2) (Cum. Supp. 2010),
and the trial court’s decision will not be reversed absent an
abuse of discretion. State v. Torres, 283 Neb. 142, 812 N.W.2d
213 (2012).
[3] Whether jury instructions given by a trial court are cor-
rect is a question of law. State v. Nolan, 283 Neb. 50, 807
N.W.2d 520 (2012). When dispositive issues on appeal present
questions of law, an appellate court has an obligation to reach
an independent conclusion irrespective of the decision of the
court below. Id.
FACTS
In October 2008, Douglas Cook worked for the Omaha
Police Department doing controlled buys of narcotics. Through
an acquaintance, Cook had met a woman called Green Eyes,
who was later identified as Payne-McCoy. At trial, Cook tes-
tified that he had known Payne-McCoy for over a year and
had purchased crack cocaine from her over 20 times before
October 2008.
Cook did not deal with Payne-McCoy except to purchase
crack cocaine. Cook would call her cellular telephone and
ask whether he could “meet up.” She would usually ask what
“street” Cook was going to, which meant what dollar value

STATE v. PAYNE-McCOY 	305
Cite as 284 Neb. 302
of crack cocaine he wanted to purchase. For example, “30th
Street” meant buying $30 of crack cocaine. Cook’s deals with
Payne-McCoy were always arranged using this code. After
Cook called Payne-McCoy and talked about the amount of
crack cocaine to be purchased, a meeting place would be
arranged, usually selected by her. The meeting location varied
from purchase to purchase, but Payne-McCoy would person-
ally deliver the crack cocaine to Cook.
On October 24, 2008, Cook met police officers in order to
arrange a controlled purchase of crack cocaine from Payne-
McCoy. Cook called her, using the telephone number he had
always used to contact her. Payne-McCoy answered the tele-
phone and asked to what “street” Cook was going. Using the
code, Cook indicated he wanted to purchase $30 of crack
cocaine. She told Cook to go to the University of Nebraska
Medical Center (UNMC). Cook was to call her once he arrived
at UNMC. Officers kept Cook under surveillance as he drove
to UNMC.
When Cook reached the vicinity of UNMC, he again called
Payne-McCoy’s telephone number. This time, a male voice,
unknown to Cook, answered the telephone. The man, later
identified as Carbon, directed Cook to a meeting place near
UNMC. Cook drove where he was directed, and a white
Cadillac pulled up behind his car. Carbon was the only person
in the Cadillac. He exited the Cadillac and walked to the driv-
er’s side of Cook’s car. Carbon handed Cook the crack cocaine,
and Cook handed him $30. Cook did not recognize Carbon,
but he recognized the Cadillac as Payne-McCoy’s because
she had driven the car to previous drug deals. Cook had given
the police her license plate number. Cook did not see Payne-
McCoy on October 24, 2008.
Shortly after the drug deal, the Cadillac, which was reg-
istered to Payne-McCoy, was stopped by Omaha police. The
driver was identified as Carbon. He was driving on a sus-
pended license, and marijuana was found in the Cadillac.
The next day, October 25, 2008, Payne-McCoy reported her
white Cadillac stolen. An officer later spoke to Payne-McCoy.
She and Carbon, who was her boyfriend, had driven to a pan-
cake feed in separate vehicles, and when they left, she gave

306 	284 NEBRASKA REPORTS
Carbon the keys to the Cadillac so he could get new tires.
When Payne-McCoy went home, the side door of her house
was open and Carbon’s clothes were gone. The Cadillac was
later recovered in Louisiana.
Payne-McCoy was charged with one count of possession of
crack cocaine with intent to deliver and one count of crimi-
nal conspiracy. The instruction given to the jury regarding
the conspiracy charge allowed the jury to consider whether
Payne-McCoy conspired with Carbon to sell the crack cocaine
to Cook. The jury was instructed as to the conspiracy that it
had to find beyond a reasonable doubt that Payne-McCoy, or
another person with whom she conspired (Carbon), agreed
to arrange to deliver crack cocaine to Cook in exchange for
money or agreed to deliver crack cocaine to Cook at UNMC
or that Carbon delivered the crack cocaine and received $30
in exchange.
Prior to trial, the State filed a notice of its intent to offer
evidence of Payne-McCoy’s prior drug sales to Cook. The trial
court held a rule 404 evidence hearing. Cook was the only per-
son to testify, and he identified Payne-McCoy as the person he
knew as Green Eyes. He testified that he had purchased drugs
from Payne-McCoy over an 8- to 9-month period and as to the
manner in which the drug deals were arranged. The court found
that the State had proved by clear and convincing evidence that
the prior bad acts were committed by Payne-McCoy. It specifi-
cally found that the evidence offered satisfied the requirements
of rule 404(2) and that Payne-McCoy’s prior bad acts were
offered to show her plan, knowledge, and identity.
At trial, before Cook could testify how he knew Payne-
McCoy, defense counsel raised a rule 404 objection. The objec-
tion was overruled, and the court cautioned the jury that the
information was to be used solely to show identity, motive, or
intent. Later, when the prosecutor asked a police officer if he
knew whether Cook had purchased drugs from Payne-McCoy
before October 24, 2008, defense counsel again objected on
the basis of rule 404. The objection was overruled, and the jury
was again instructed on identity, motive, or intent.
During the jury instruction conference at the end of the
trial, defense counsel made an oral motion requesting a

STATE v. PAYNE-McCOY 	307
Cite as 284 Neb. 302
written instruction regarding the limited purpose of the rule
404 evidence. The trial court refused to give the instruction.
It concluded that it had already instructed the jury on the rule
404 issue when the evidence was received and that further
instruction would highlight Payne-McCoy’s prior bad acts
and make it more difficult for the jury to correctly consider
that evidence.
The jury found Payne-McCoy guilty of both counts. The
trial court sentenced her to 4 to 8 years’ imprisonment on each
count, with the sentences to run consecutively. She received
credit for 1 day served. Payne-McCoy appealed. We moved
the case to our docket pursuant to our authority to regulate the
dockets of this court and the Nebraska Court of Appeals. See
Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
ASSIGNMENTS OF ERROR
On appeal, Payne-McCoy assigns, restated, that (1) the State
did not meet its burden of proof at the rule 404 hearing, (2)
the prior bad acts evidence was not relevant for any permis-
sible purpose under rule 404, (3) the prior bad acts evidence
was more prejudicial than probative even if it was admissible
under rule 404, (4) the trial court erred in refusing to give jury
instructions orally requested by Payne-McCoy, and (5) her
sentences should have been ordered to run concurrently rather
than consecutively.
ANALYSIS
SufficieNcy of evideNce to
prove prior bad actS
We first consider whether the evidence offered by the State
was sufficient to prove by clear and convincing evidence that
Payne-McCoy committed the prior bad acts. Payne-McCoy
claims that the trial court erred by admitting evidence of her
past drug deals with Cook because the State failed to prove by
clear and convincing evidence that Payne-McCoy committed
the prior criminal acts. We will affirm a trial court’s ruling that
the defendant committed an uncharged extrinsic crime or bad
act if, viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found with a

308 	284 NEBRASKA REPORTS
firm conviction the essential elements of the uncharged crime.
State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012).
At the rule 404 hearing, Cook testified that he had met
Payne-McCoy about 8 or 9 months before October 24, 2008,
through a mutual acquaintance. When they met, Cook did
not know Payne-McCoy’s real name, but knew her as Green
Eyes. He had made multiple contacts with Payne-McCoy, all
of which were to purchase crack cocaine. Payne-McCoy was
present at the hearing, and Cook identified her as the person he
knew as Green Eyes.
Cook’s testimony established the similarities between the
crime charged of possession of crack cocaine with intent
to deliver and the prior bad acts. On every prior occasion,
Cook called Payne-McCoy at the same telephone number.
On each occasion, a code was used to establish the amount
of crack cocaine Cook wanted to purchase. Payne-McCoy
would direct him to a specific location, and the purchase was
then completed.
[4] Under rule 404(3), before a court can admit evidence
of an extrinsic act in a criminal case, the State must prove
by clear and convincing evidence, outside the presence of the
jury, that the defendant committed the extrinsic act. See State
v. Kofoed, supra.
[5] Clear and convincing evidence is that amount of evi-
dence which produces in the trier of fact a firm belief or con-
viction about the existence of a fact to be proved. Id.; State v.
Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009).
Cook’s testimony could produce a firm belief or conviction
in the trier of fact that the prior bad acts were committed by
Payne-McCoy. See State v. Kofoed, supra. Viewing the evi-
dence presented by the State in a light most favorable to the
prosecution, the court could have found the evidence was suf-
ficient to prove by clear and convincing evidence that Payne-
McCoy committed the prior uncharged crimes or bad acts.
relevaNce of rule 404
prior bad actS
Payne-McCoy next argues that the prior bad acts were not
relevant for any permissible reason under rule 404. The trial

STATE v. PAYNE-McCOY 	309
Cite as 284 Neb. 302
court found that the evidence satisfied the requirements of rule
404(2) and that the evidence was offered for the purpose of
proving Payne-McCoy’s plan, knowledge, and identity.
[6,7] 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. Torres, 283 Neb. 142, 812 N.W.2d
213 (2012). Evidence that is offered for a proper purpose is
often referred to as having a “special” or “independent” rel-
evance, which means that its relevance does not depend upon
its tendency to show propensity. Id.
[8] An appellate court’s analysis under rule 404(2) 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 proba-
tive 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.
Torres, supra.
[9] The State had the burden to prove that the evidence was
independently relevant for a proper purpose. Payne-McCoy did
not deliver the crack cocaine to Cook, as she had done previ-
ously. Carbon delivered it, and therefore, the prior bad acts
were relevant to prove the identity of the person who commit-
ted the crime charged. 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. State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767
(2011). For example, previous sexual assaults were admis-
sible to show identity in State v. Burdette, 259 Neb. 679, 611
N.W.2d 615 (2000), when the prior sexual assaults were similar
to the charged crime and, with one exception, the victims had
been featured in press articles indicating they were likely to be
living alone.
Payne-McCoy’s prior bad acts were overwhelmingly simi-
lar to the crime charged of possession with intent to deliver.
They bore the same signature and were independently relevant.

310 	284 NEBRASKA REPORTS
On October 24, 2008, Cook called Payne-McCoy and was
directed to UNMC. Once there, he called for further instruc-
tions. Carbon answered and directed Cook to a meeting place.
In prior purchases, Cook had always received the crack cocaine
from Payne-McCoy. Because Carbon, and not Payne-McCoy,
delivered the crack cocaine to Cook, the identity of the perpe-
trator was an issue in the trial. See State v. Pullens, 281 Neb.
828, 800 N.W.2d 202 (2011).
The State sustained its burden to show by clear and con-
vincing evidence that the rule 404 evidence was independently
relevant for the purpose of identifying Payne-McCoy as the
perpetrator of the charged crime of possession of crack cocaine
with intent to deliver. We conclude that the evidence was rel-
evant to establish Payne-McCoy’s identity and that the trial
court did not abuse its discretion in its admission of the rule
404 evidence to show identity of the perpetrator.
However, it was an abuse of discretion to admit the prior
bad acts as proof of motive or intent. An abuse of discretion
occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and the evidence. State v. Dixon,
282 Neb. 274, 802 N.W.2d 866 (2011).
[10] Payne-McCoy’s prior drug deals with Cook were not
admissible to show motive. Motive is defined as that which
leads or tempts the mind to indulge in a criminal act. State v.
Collins, 281 Neb. 927, 799 N.W.2d 693 (2011). For example,
in Collins, evidence of a relationship between the defendant
and two drug dealers was admissible to show the defendant’s
motive to kill the two drug dealers so he could take a ship-
ment of cocaine, sell it, and avoid splitting the profits. Payne-
McCoy’s prior drug sales to Cook do not explain her motive
to sell crack cocaine to Cook on October 24, 2008, except on
the logic that she sold drugs to him before, so she sold to him
again. Such thinking “is precisely what rule 404(2) is designed
to prevent.” See State v. Collins, 281 Neb. at 945, 799 N.W.2d
at 709. Therefore, it was an abuse of discretion to admit the
prior bad acts evidence to show motive.
Evidence of Payne-McCoy’s prior drug sales to Cook was
not admissible to show intent. Prior bad acts are not admissible

STATE v. PAYNE-McCOY 	311
Cite as 284 Neb. 302
to show intent unless intent is at issue in the case. See State v.
Torres, 283 Neb. 142, 812 N.W.2d 213 (2012). In Torres, there
was no question the crimes were intentional; the question was
who committed them. Similarly, in the case at bar, there is no
question that if Payne-McCoy was the person who commit-
ted the crimes, they were committed intentionally. Therefore,
intent was not at issue, and evidence of Payne-McCoy’s previ-
ous drug sales to Cook was not admissible to show intent. See
id. The court abused its discretion in permitting the State to use
Payne-McCoy’s prior drug sales to Cook to show intent.
probative value verSuS
uNfair preJudice
[11,12] We next consider whether the probative value of
the evidence to show identity was substantially outweighed by
the danger of unfair prejudice to Payne-McCoy. Evidence that
is admissible under rule 404(2) may be excluded under rule
403 if its probative value is substantially outweighed by the
danger of unfair prejudice. See State v. Kirksey, 254 Neb. 162,
575 N.W.2d 377 (1998). “The probative value of the evidence
involves a measurement of the degree to which the evidence
persuades the trier of fact that the particular fact exists and
the distance of the fact from the ultimate issue of the case.”
State v. Pullens, 281 Neb. 828, 858, 800 N.W.2d 202, 227-28
(2011). Accord State v. Sanchez, 257 Neb. 291, 597 N.W.2d
361 (1999).
[13,14] Most, if not all, evidence offered by a party is
calculated to be prejudicial to the opposing party. State v.
Pullens, supra. Only evidence tending to suggest a decision
on an improper basis is unfairly prejudicial. Id. Unfair preju-
dice means an undue tendency to suggest a decision based on
an improper basis. See id. Balancing the probative value of
evidence against the danger of unfair prejudice is also within
the discretion of the trial court. 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).
Having determined that there was sufficient evidence to
prove Payne-McCoy’s prior bad acts and that the evidence was
relevant to prove the identity of Payne-McCoy as the person

312 	284 NEBRASKA REPORTS
who committed the acts charged, we consider whether the
evidence was unfairly prejudicial. The prior bad acts evidence
was highly probative of the identity of the perpetrator; in
fact, the State’s case against Payne-McCoy may depend upon
its admission.
The question is whether such evidence was unfairly preju-
dicial. There were overwhelming similarities between the prior
bad acts and the crime charged in the case at bar. The trial
court cautioned the jury as to the limited use of such evidence
to prove identification. Therefore, we conclude that the pro-
bative value of the prior bad acts to show identity was not
substantially outweighed by their prejudicial value and that
Payne-McCoy was not unfairly prejudiced by the admission of
such evidence.
refuSal to Give WritteN
iNStructioN to Jury
Payne-McCoy alleges the trial court should have given
a written instruction at the close of the evidence regarding
the proper use of evidence of her prior acts. During the jury
instruction conference, defense counsel made an oral motion to
add a rule 404 instruction. Defense counsel stated:
[D]ue to the fact that . . . jurors are not lawyers and don’t
necessarily have the same legal training, I think that for
the purposes of . . . making it clear for them what 404
is and . . . the purpose[s for which] they can [use] the
evidence . . . that they heard yesterday, I think, Judge, as
a safety precaution it would be appropriate to have some
sort of instruction to the jury reminding them what the
Court . . . said to them yesterday regarding that particu-
lar testimony.
The trial court refused to give the requested instruction,
stating that it had adequately instructed the jurors on rule 404
when the prior bad acts evidence was admitted. The court con-
cluded that additional instruction would emphasize the prior
bad acts and make it harder for the jury to properly use the evi-
dence. It determined that once it had adequately instructed the
jury on rule 404 evidence during the trial, it was not required
to give an additional instruction.

STATE v. PAYNE-McCOY 	313
Cite as 284 Neb. 302
[15] The court’s refusal to give a written instruction on
the limited use of rule 404 evidence was an abuse of discre-
tion. Instructing the jury on rule 404 evidence during trial did
not eliminate the court’s duty to give, if requested, a written
instruction on the limited purpose of the evidence; it created
that duty. This court has made it clear that in criminal cases,
“[i]n any situation in which a limiting instruction was given
at the time evidence was introduced, NJI2d Crim. 5.3 must
be given at closing if requested.” State v. Carter, 246 Neb.
953, 967, 524 N.W.2d 763, 774 (1994), overruled on other
grounds, State v. Freeman, 253 Neb. 385, 571 N.W.2d 276
(1997). Accord State v. Molina, 271 Neb. 488, 713 N.W.2d
412 (2006). In addition, this court has specifically held that in
reviewing the admissibility of other crimes evidence under rule
404(2), we will consider whether the trial court, if requested,
instructed the jury to consider the evidence only for the lim-
ited purpose for which it was admitted. See, State v. Torres,
283 Neb. 142, 812 N.W.2d 213 (2012); State v. Glazebrook,
282 Neb. 412, 803 N.W.2d 767 (2011).
NJI2d Crim. 5.3A sets forth in general terms the required
written instruction: “During this trial I called your attention
to some evidence that was received for specified limited pur-
poses; you must consider that evidence only for those limited
purposes and for no other.” The court should identify the
evidence received and the limited purpose for which the jury
may consider such evidence. A written instruction, if given
properly, acts as a permanent reference to guide the jury dur-
ing its consideration of evidence received. Oral instructions
given during trial that limit the use of certain evidence for a
particular purpose may be misinterpreted by the jury, espe-
cially in a lengthy trial that requires the jury to examine the
evidence and to resolve numerous questions of fact. If given
a proper written instruction, the jury may refer to the instruc-
tion when considering the limited use of the evidence rel-
evant to that instruction. See, generally, Susan R. Schwaiger,
Note, The Submission of Written Instructions and Statutory
Language to New York Criminal Juries, 56 Brook. L. Rev.
1353 (1991).

314 	284 NEBRASKA REPORTS
Rule 404 instructions given during the course of the trial
limiting the use of certain evidence received may also be
confused with instructions that limit the use of other evidence
for a different purpose. For example, some evidence may be
limited to the proof of motive or opportunity, while other evi-
dence may be limited by rule 404(2) to show the identity of
the perpetrator. Preventing such confusion supports the giving
of proper written instructions as a permanent reference for the
jury regarding the limited use of the evidence received for a
particular limited purpose.
The trial court’s refusal to give NJI2d Crim. 5.3 on the lim-
ited use of the prior acts to prove identity was unfairly prejudi-
cial to Payne-McCoy. None of the witnesses for the State saw
her participate in the controlled buy on October 24, 2008. A
man, Carbon, driving Payne-McCoy’s car delivered the crack
cocaine to Cook. The next day, Payne-McCoy reported that her
car had been stolen.
Without the written instruction, the jury may have consid-
ered Payne-McCoy’s previous criminal acts as evidence that
she acted in conformity therewith and sold crack cocaine to
Cook on October 24, 2008. This “is precisely what rule 404(2)
is designed to prevent.” State v. Collins, 281 Neb. 927, 945,
799 N.W.2d 693, 709 (2011). The trial court had a duty to give
a written instruction to the jury on the proper limited use of
evidence of Payne-McCoy’s prior bad acts. Its failure to do so
was an abuse of its discretion.
The failure to properly limit the use of the prior bad acts
evidence involving Payne-McCoy and the refusal to give the
jury a written instruction on the limited use of this evidence
were reversible error. We cannot conclude the convictions were
surely unattributable to such error.
double Jeopardy
[16] Having found reversible error, we are required to deter-
mine whether all of the evidence admitted by the district court
was sufficient to sustain Payne-McCoy’s convictions. The
Double Jeopardy Clause does not forbid a retrial so long as the
sum of all the evidence admitted by a trial court would have
been sufficient to sustain a guilty verdict. State v. Glazebrook,
282 Neb. 412, 803 N.W.2d 767 (2011).

STATE v. PAYNE-McCOY 	315
Cite as 284 Neb. 302
The evidence admitted showed that Cook telephoned Payne-
McCoy and arranged for the purchase of $30 of crack cocaine.
There was evidence of Payne-McCoy’s prior dealings with
Cook which was overwhelmingly similar to the crime charged
of possession with intent to deliver. There was sufficient evi-
dence that Payne-McCoy conspired with Carbon to complete
the sale of the crack cocaine to Cook and that Carbon used
Payne-McCoy’s car to complete the sale. Thus, all the evi-
dence, whether properly admitted or not, was sufficient to
sustain a guilty verdict of the crimes charged, and the Double
Jeopardy Clause does not bar retrial.
CONCLUSION
The trial court admitted evidence of Payne-McCoy’s prior
sales of crack cocaine to Cook for the purpose of showing
identity, motive, or intent. The evidence was admissible to
show identity, but it was reversible error and an abuse of dis-
cretion for the court to admit the prior bad acts evidence to
show motive or intent. During the jury instruction conference,
the court denied an oral motion to instruct the jury on the lim-
ited use of this evidence. It was reversible error and an abuse
of discretion to not give NJI2d Crim. 5.3 following Payne-
McCoy’s request.
Because the sum of all the evidence, whether erroneously
admitted or not, was sufficient to sustain the convictions, we
reverse the judgments of conviction and remand the cause for
a new trial. We need not address any of Payne-McCoy’s other
alleged errors.
The judgments of conviction are reversed, and the cause is
remanded for a new trial.
reverSed aNd reMaNded for a NeW trial.
coNNolly, J., concurring.
I concur in the majority’s judgment. I write separately
for two reasons. First, I disagree with the majority opinion’s
analytical framework for reviewing the admissibility of the
other crimes evidence to prove Payne-McCoy’s identity as
the seller in the charged drug transaction and its reasoning for
concluding that the evidence was admissible for this purpose.
Second, although I agree that the court improperly admitted

316 	284 NEBRASKA REPORTS
the evidence to show motive or intent, I believe that the error
requires harmless error analysis.
ADMITTING EVIDENCE
TO PROVE IDENTITY
Generally, when rule 404(2)1 evidence is introduced to prove
the defendant’s identity as the perpetrator, we have analyzed
whether the other crimes are so similar that the trial judge could
conclude that they bear the same signature.2 But I disagree with
statements in the majority opinion that the charged crime was
overwhelmingly similar to the uncharged transactions because
in the previous transactions, Cook had always received drugs
from Payne-McCoy. Payne-McCoy did not deliver the drugs
on October 24, 2008. So her past role in making deliveries is
a difference, not a similarity, between the charged transaction
and the uncharged transactions.
But showing that the same signature was present in both
crimes is not the only method of showing the defendant’s iden-
tity in the charged crime through evidence of other crimes.3
Specifically, in some circumstances, courts have admitted a
witness’ testimony of a defendant’s other sales to show how
the witness could identify the defendant as the seller in the
charged transaction.4
It is true that legal commentators have criticized courts for
admitting evidence of a defendant’s previous crimes when the
prosecution only uses the other crimes to bolster the witness’
credibility that he or she knew the defendant because of these
criminal contacts. Commentators have argued that a court can
allow a witness to testify that he or she knew the defendant
without admitting the witness’ highly prejudicial testimony
about the nature of the contacts.5 And evidence of a defendant’s
1 Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2010).
2 See, e.g., State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).
3 See, e.g., 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal
Practice and Procedure § 5246 (1978 & Supp. 2012).
4 See, United States v. Aguirre, 716 F.2d 293 (5th Cir. 1983); 1 Edward J.
Imwinkelried, Uncharged Misconduct Evidence § 3:07 (rev. ed. 2001).
5 See, e.g., 1 Imwinkelried, supra note 4; 22 Wright & Graham, supra
note 3.

STATE v. PAYNE-McCOY 	317
Cite as 284 Neb. 302
previous drug transactions usually presents a danger that jurors
will find guilt by reasoning that “‘once a drug-dealer, always
a drug dealer.’”6
So if Payne-McCoy had delivered the drugs herself, then I
believe that evidence of her previous transactions with Cook
would be inadmissible to show that Cook was a reliable wit-
ness who could identify her. But a court must consider the
admissibility of evidence in the light of the factual context and
trial issues. And the issue was not whether Cook could iden-
tify Payne-McCoy. Here, Payne-McCoy’s identity as the seller
was genuinely at issue because Carbon delivered the drugs in
Payne-McCoy’s vehicle, but she claimed that someone had
stolen her vehicle. In addition, she did not tell Cook that she
would sell drugs to him on the charged occasion, nor did she
deliver drugs to him. So the issue was how Cook knew that he
had arranged a drug buy from Payne-McCoy absent her pres-
ence during the actual exchange.
Of course, a defendant’s past involvement in drug activities
does not necessarily establish his or her identity as the seller
in a charged transaction. “In evaluating other acts evidence in
criminal prosecutions, the other act must be so related in time,
place, and circumstances to the offense or offenses charged so
as to have substantial probative value in determining the guilt
of the accused.”7 To be independently relevant, the State must
show a defendant’s previous drug transactions are sufficiently
linked to the charged transaction in a manner that does not
depend solely upon establishing the defendant’s character as
a drug dealer.8 Here, the State satisfied that requirement by
showing two unique factors common to all the transactions:
(1) Payne-McCoy’s unique pattern of dealing with Cook up
to, and including, the charged transaction; and (2) Cook’s
consistent use of her personal telephone number to initiate
drug buys.
6 David P. Leonard, The New Wigmore: Evidence of Other Misconduct and
Similar Events § 12.3 at 696 (Richard D. Friedman ed., 2009).
7 State v. Trotter, 262 Neb. 443, 459, 632 N.W.2d 325, 339 (2001).
8 See, U.S. v. McBride, 676 F.3d 385 (4th Cir. 2012); U.S. v. Bell, 516 F.3d
432 (6th Cir. 2008).

318 	284 NEBRASKA REPORTS
Cook testified that he had called the same telephone num-
ber each time that he arranged a drug buy from Payne-
McCoy and that he had used the same street code to indicate
the amount of drugs that he wanted to purchase. So under
this evidence, jurors could reason that Payne-McCoy was
the seller in the charged crime without relying on propen-
sity reasoning.
Even apart from Cook’s use of the same telephone number
to initiate each transaction, Payne-McCoy’s method of deter-
mining the amount of the drug purchase was unique enough
that a person could conclude that same person had sold Cook
drugs on every occasion. This conclusion did not require the
jurors to reason that because Payne-McCoy had sold drugs
in the past, she had likely done so in the charged transaction.
Because the jurors could find the evidence relevant without
relying on propensity reasoning, I agree that the independent
relevance requirement under rule 404(2) was satisfied.
But in reviewing the court’s admission of rule 404(2) evi-
dence for abuse of discretion, independent relevance is not
all that we require. As the majority opinion states, in review-
ing a court’s admission of rule 404(2) evidence for abuse of
discretion, we will consider (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 substan-
tially 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.9 I believe that the majority opinion takes an
improper analytical shortcut by effectively ignoring the third
component of the abuse-of-discretion inquiry on the specific
issue of identity.
I believe that this case illustrates a court could abuse its
discretion in admitting rule 404(2) evidence for one purpose
but not in admitting it for another purpose. And whether the
error is harmless will often depend on considerations different
than whether the court abused its discretion in admitting the
9 See Glazebrook, supra note 2.

STATE v. PAYNE-McCOY 	319
Cite as 284 Neb. 302
evidence. Our harmless error analysis is not the same as our
abuse-of-discretion inquiry.
Returning to the balancing component of the abuse-of-
discretion inquiry under rule 404(2), the State had a substantial
need to present this evidence. It had to show that Payne-
McCoy was the seller, despite her stolen vehicle report and
her absence when Cook and Carbon exchanged the money
and drugs. The State had no other evidence to establish that
Payne-McCoy was the actual seller and linked to a conspiracy
to distribute the drugs. In addition, because the rule 404(2)
evidence was independently relevant, I believe that the risk of
unfair prejudice to Payne-McCoy was minimized. Therefore,
I agree that the evidence’s potential for unfair prejudice did
not substantially outweigh its probative value for proving her
identity as the seller.10
Under the jury instruction component, I believe that the
court abused its discretion in admitting this evidence to prove
Payne-McCoy’s identity without giving the requested limit-
ing instruction to the jury at the close of evidence. It is true
that the court informed the jurors during trial that they could
consider the rule 404(2) evidence solely for identifying Payne-
McCoy or as evidence of Payne-McCoy’s motive or intent. But
a proper limiting instruction to guide the jury’s deliberations
is a crucial safeguard against unfair prejudice in the admission
of rule 404(2) evidence.11 “The limiting instruction is required
because even though another proper purpose may exist for
the admission of evidence under rule 404(2), there is always
the danger that the jury will draw the forbidden inference
of propensity.”12
The lack of a limiting instruction is particularly important
here because the court admitted the rule 404(2) evidence to
show Payne-McCoy’s identity as the perpetrator. Proving a
defendant’s identity as the perpetrator necessarily involves
10 See Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008).
11 See State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999), citing
Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 99 L. Ed. 2d
771 (1988).
12 See State v. McManus, 257 Neb. 1, 9, 594 N.W.2d 623, 629 (1999).

320 	284 NEBRASKA REPORTS
an inference about Payne-McCoy’s conduct. So when the
State offers rule 404(2) evidence to prove identity, trial courts
should vigilantly ensure that the theory of relevance does
not require an inference about the defendant’s character.13
But from the court’s admonition during trial, jurors would
not have understood that they should not use the prior bad
acts to determine whether Payne-McCoy acted in conformity
with a bad character. The court specifically instructed the
jurors that they could consider the evidence for determining
Payne-McCoy’s identity, motive, or intent. And the evidence
was relevant to motive or intent only through propensity rea-
soning. So the court’s admonition during trial ran counter to
rule 404(2)’s requirement that other crimes evidence not be
considered to determine that Payne-McCoy “acted in conform-
ity therewith.”14
Finally, I agree with the majority opinion that after a lengthy
trial, jurors are likely to forget even a court’s proper admoni-
tions about rule 404(2) evidence when it was received. To
avoid this, trial courts should ensure that limiting instructions
are repeated in writing for the jury’s deliberations.
ADMISSION OF PREVIOUS TRANSACTIONS
TO PROVE MOTIVE OR INTENT WAS
NOT HARMLESS ERROR
I agree with the majority opinion that the court improperly
admitted evidence of Payne-McCoy’s previous transactions
with Cook to prove her motive or intent. But I believe that
when we conclude that a trial court improperly admitted evi-
dence of a defendant’s uncharged crimes, the next step should
be harmless error analysis.
An erroneous admission of evidence is prejudicial to a
defendant unless the State demonstrates that the error was
harmless beyond a reasonable doubt.15 So once we deter-
mined that the court erred in admitting evidence of Payne-
McCoy’s extrinsic crimes under rule 404(2), we need not
13 See 22 Wright & Graham, supra note 3.
14 See § 27-404(2).
15 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

STATE v. PAYNE-McCOY 	321
Cite as 284 Neb. 302
analyze whether its potential for unfair prejudice outweighed
its probative value.16 Obviously, if we conclude that the court
erred in admitting the evidence, a rule 403 analysis is unnec-
essary, except for determining whether Payne-McCoy was
prejudiced by the error. Regarding the jury instructions, we are
primarily interested in whether the court corrected its errone-
ous admissibility ruling or its earlier admonition to jurors about
the purpose for which they could consider the evidence. But
if the trial court instructed the jury that it could consider the
evidence for the very purposes that we have concluded were
improper under rule 404(2), then the court’s instruction only
compounded the error.17
So instead of considering the rule 403 component and the
jury instruction component, we must conduct a harmless error
analysis.18 The majority opinion concludes that the evidence
was not admissible to prove motive because the evidence was
relevant for this purpose only through propensity reasoning.
I agree.
Similarly, jurors likely used straight propensity reasoning
to find the evidence relevant to proving Payne-McCoy’s intent
to sell drugs, i.e., that she intended to sell drugs because she
had done this in the past. Alternatively, jurors could have rea-
soned that she intended to commit the act that would accom-
plish the goal implied by her motive—to get money from
selling drugs.19 But because using the evidence to infer her
motive depended on propensity reasoning, determining that
she intended to accomplish the goal implied by her motive also
depended on propensity reasoning. In either case, the jurors
could only determine that Payne-McCoy intended to sell drugs
by reasoning that she acted in conformity with the bad char-
acter trait that the State established through evidence of her
previous crimes.
Obviously, then, under rule 403, the potential for unfair
prejudice was unacceptably high when the jury considered
16 See Sanchez, supra note 11.
17 See Bell, supra note 8.
18 See Sanchez, supra note 11.
19 See 22 Wright & Graham, supra note 3, § 5240.

322 	284 NEBRASKA REPORTS
the evidence for motive or intent. And the court specifi-
cally admonished the jury that it should consider the evidence
for these purposes. No final written instruction corrected its
instruction during trial.
Because the jurors could find the evidence of the previous
transactions relevant to motive or intent only by relying on
propensity reasoning, I believe that the court’s error could be
harmless only if other evidence overwhelmingly established
Payne-McCoy’s guilt.20 Instead, however, the rule 404(2) evi-
dence was the State’s strongest evidence of Payne-McCoy’s
guilt. So I do not believe that the error was harmless.
20 See, U.S. v. Davis, 547 F.3d 520 (6th Cir. 2008); State v. Collins, 281 Neb.
927, 799 N.W.2d 693 (2011).
State of NebraSka, appellee, v. leodaN
alarcoN-cHavez, appellaNt.
821 N.W.2d 359
Filed August 17, 2012. 	No. S-11-779.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
2. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, regarding which an appellate court is obligated to reach a conclu-
sion independent of the determination reached by the trial court.
3. Appeal and Error. Plain error may be found on appeal when an error unasserted
or uncomplained of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process.
4. Trial: Prosecuting Attorneys. Generally, in assessing allegations of prosecuto-
rial misconduct in closing arguments, a court first determines whether the pros-
ecutor’s remarks were improper. It is then necessary to determine the extent to
which the improper remarks had a prejudicial effect on the defendant’s right to a
fair trial.
5. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the duty to
conduct criminal trials in such a manner that the accused may have a fair and