State v. Kibbee

72 	284 NEBRASKA REPORTS
jurisdiction, and the district court did not err when it denied
the motion to continue. However, we conclude that the district
court did err when it gave a written instruction stating that
the jury must consider Abram’s refusal to testify as an admis-
sion of guilt. Although such error is not structural error, we
conclude that the error was not harmless and that it requires
reversal of Abram’s convictions. Because there was sufficient
evidence to support the convictions, we remand the cause for
a new trial on the charges of attempted first degree murder,
use of a weapon to commit a felony, criminal conspiracy, and
tampering with a witness.
R eveRsed and Remanded foR a new tRial.
H eavican, C.J., not participating.
state of nebRaska, appellee, v.
eddie R. kibbee, appellant.
815 N.W.2d 872
Filed July 13, 2012. 	No. S-11-361.
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 discretion a factor in determin-
ing 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, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
3. Motions for Mistrial: Appeal and Error. The decision whether to grant a
motion for mistrial is within the discretion of the trial court and will not be dis-
turbed on appeal in the absence of an abuse of discretion.
4. 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.
5. Constitutional Law. Under both the federal Constitution, U.S. Const. art. I, § 10,
and the state Constitution, Neb. Const. art. I, § 16, no ex post facto law may
be passed.
6. Constitutional Law: Statutes: Sentences. A law which purports to apply to
events that occurred before the law’s enactment, and which disadvantages a
defendant by creating or enhancing penalties that did not exist when the offense
was committed, is an ex post facto law and will not be endorsed by the courts.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

STATE v. KIBBEE 	73
Cite as 284 Neb. 72
7. Constitutional Law: Appeal and Error. Ordinarily, Nebraska’s ex post facto
clause is construed to provide no greater protections than those guaranteed by the
federal Constitution.
8. Constitutional Law: Criminal Law: Statutes. Any statute which punishes as a
crime an act previously committed which was innocent when done, which makes
more burdensome the punishment for a crime after its commission, or which
deprives one charged with a crime of any defense available according to law at
the time when the act was committed is prohibited as ex post facto.
9. Criminal Law: Statutes: Time. Statutes governing substantive matters in effect
at the time of a crime govern, and not later enacted statutes. In contrast, the pro-
cedural statutes in effect on the date of a hearing or proceeding govern, and not
those in effect when the violation took place.
10. ____: ____: ____. A change in law will be deemed to affect matters of substance
where it increases the punishment or changes the ingredients of the offense or the
ultimate facts necessary to establish guilt.
11. 	Constitutional Law: Criminal Law. There are four types of ex post facto
laws: those which (1) punish as a crime an act previously committed which was
innocent when done; (2) aggravate a crime, or make it greater than it was, when
committed; (3) change the punishment and inflict a greater punishment than was
imposed when the crime was committed; and (4) alter the legal rules of evidence
such that less or different evidence is needed in order to convict the offender.
12. Constitutional Law: Rules of Evidence. Ordinary rules of evidence do not
violate the Ex Post Facto Clause. Rules of that nature are ordinarily evenhanded,
in the sense that they may benefit either the State or the defendant in any
given case.
13. Constitutional Law: Criminal Law: Statutes: Witnesses: Time. Statutes which
simply enlarge the class of persons who may be competent to testify in criminal
cases are not ex post facto in their application to prosecutions for crimes commit-
ted prior to their passage.
14. Rules of Evidence: Witnesses: Juries: Words and Phrases. A witness compe-
tency rule regulates the manner in which facts may be placed before a jury, while
a sufficiency of the evidence rule governs the sufficiency of the facts presented
to the jury for meeting the burden of proof.
15. Constitutional Law: Rules of Evidence: Statutes: Sexual Misconduct: Other
Acts. Neb. Evid. R. 414, Neb. Rev. Stat. § 27-414 (Cum. Supp. 2010), does not
violate the Ex Post Facto Clauses of the federal and state Constitutions. It is an
ordinary rule of evidence which relates to admissibility and simply provides that
evidence of prior sexual misconduct may be admitted to prove propensity.
16. Rules of Evidence: Sexual Misconduct: Other Acts. Neb. Evid. R. 414, Neb.
Rev. Stat. § 27-414 (Cum. Supp. 2010), expands upon Neb. Evid. R. 404(2), Neb.
Rev. Stat. § 27-404(2) (Cum. Supp. 2010), and governs the admission of evidence
of an accused person’s other sexual misconduct or sex offenses.
17. Rules of Evidence. When a Nebraska Evidence Rule is substantially similar to a
corresponding federal rule of evidence, Nebraska courts will look to federal deci-
sions interpreting the corresponding federal rule for guidance in construing the
Nebraska rule.

74 	284 NEBRASKA REPORTS
18. Rules of Evidence: Other Acts. Neb. Evid. R. 414, Neb. Rev. Stat. § 27-414
(Cum. Supp. 2010), provides three factors that a court may consider in balancing
the probative value of relevant evidence of prior acts with the danger of prejudice
from the admission of that evidence: (1) The probability that the other offense
occurred, (2) the proximity in time and intervening circumstances of the other
offenses, and (3) the similarity of the other acts to the crime charged.
19. Other Acts: Evidence: Words and Phrases. Evidence of prior acts may be
admitted where there are an overwhelming number of significant similarities, but
the term “overwhelming” does not require a mechanical count of the similarities,
but, rather, a qualitative evaluation.
20. Rules of Evidence: Other Acts: Time. Remoteness, or the temporal span
between a prior crime, wrong, or other act offered as evidence under Neb. Evid.
R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2010), and a fact to be deter-
mined in a present proceeding, goes to the weight to be given to such evidence
and does not render the evidence of the other crime, wrong, or act irrelevant
and inadmissible.
21. ____: ____: ____. Whether evidence of other conduct is too remote in time is
largely within the discretion of the trial court. While remoteness in time may
weaken the value of the evidence, such remoteness does not, in and of itself,
necessarily justify exclusion of the evidence.
22. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the
right to assert prejudicial error on appeal.
23. Appeal and Error. When an issue is raised for the first time in an appellate
court, it will be disregarded inasmuch as a lower court cannot commit error in
resolving an issue never presented and submitted to it for disposition.
24. Trial: Waiver: Appeal and Error. One may not waive an error, gamble on a
favorable result, and, upon obtaining an unfavorable result, assert the previously
waived error.
25. ____: ____: ____. An issue not presented to or decided on by the trial court is not
an appropriate issue for consideration on appeal.
26. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly
granted in a criminal case where an event occurs during the course of a trial
which is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
27. Lesser-Included Offenses. For an offense to be a lesser-included offense, it
must be impossible to commit the greater offense without also committing the
lesser offense.
28. ____. Whether a crime is a lesser-included offense is determined by a statutory
elements approach and is a question of law.
29. Lesser-Included Offenses: Sexual Assault. Under the strict statutory elements
approach, third degree sexual assault is not a lesser-included offense of first
degree sexual assault.
30. Jury Instructions. Whether jury instructions given by a trial court are correct is
a question of law.
31. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusions.

STATE v. KIBBEE 	75
Cite as 284 Neb. 72
32. Jury Instructions: Appeal and Error. All the jury instructions must be read
together, and if, taken as a whole, they correctly state the law, are not mislead-
ing, and adequately cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.
Appeal from the District Court for Thayer County: vicky l.
JoHnson, Judge. Affirmed.
James 	R. 	Mowbray 	and 	Jerry 	L. 	Soucie, 	of 	Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
H eavican, c.J., wRigHt, connolly, stepHan, mccoRmack,
and milleR-leRman, JJ.
H eavican, c.J.
NATURE OF CASE
Eddie R. Kibbee was convicted by a jury of first degree sex-
ual assault and felony child abuse. At issue in this appeal is the
admission of evidence of Kibbee’s prior sexual contacts with
minors, which he claims violates Nebraska rules of evidence
and the Ex Post Facto Clauses of U.S. Const. art. I, § 10, and
Neb. Const. art. I, § 16. We affirm his convictions.
FACTS
incident
According to Kelsey D., she was 16 years old when Kibbee
had sexual contact with her on August 9, 2009. Kelsey testified
that on August 8, she went to a teen dance from about 9:30 p.m.
to midnight. She had planned to spend the night at the home
of Crystal J., for whom Kelsey sometimes babysat. Kelsey
had met Kibbee through Crystal, and before going to Crystal’s
home, Kelsey went to Kibbee’s house. When she arrived, only
Kibbee’s roommate, Bobby W., was present. Around 12:45 or 1
a.m., Kibbee arrived along with several other people, including
Kelsey’s brother. Kelsey began drinking and had one beer and
then a vodka and orange juice drink that Kibbee made for her.
Kibbee brought her a second drink, but Kelsey did not finish it
because it was “too strong.”

76 	284 NEBRASKA REPORTS
Because Kelsey was tired and did not want to walk to
Crystal’s house, she lay down on the couch in the living room
of Kibbee’s house. She awoke later to find Kibbee sitting next
to her. Kelsey’s pants and underwear were around her ankles,
and Kibbee was touching her vaginal area with his hands.
Kibbee placed his fingers into her vagina. Kelsey tried to turn
away from him and told him to stop several times. She asked
Kibbee to take her to Bobby. Before Kibbee stopped, he put
his mouth on her vagina. Kibbee finally stopped, pulled up
Kelsey’s pants, kissed her on the cheek, and walked away. He
returned to his room without saying anything to Kelsey.
Kelsey testified that she sat and thought about what hap-
pened for a couple of minutes and then went into Bobby’s
room, woke him up, and told him what had happened. She
lay down next to Bobby in his bed and fell asleep. She awoke
the next day at about 11 a.m. when Kibbee came into the bed-
room, touched her foot, and told her the time. Kelsey reported
the incident the next evening to her brother, her mother, and
law enforcement.
cHaRges
Kibbee was charged with first degree sexual assault, a
Class II felony, for subjecting another person to sexual pene-
tration without consent or when Kibbee knew or should have
known that the victim was mentally or physically incapable of
resisting or appraising the nature of his conduct, and with child
abuse, a Class IIIA felony, for knowingly and intentionally
causing or permitting Kelsey, a minor, to be placed in a situa-
tion that endangered her life or physical or mental health or to
be sexually abused.
pRioR bad acts evidence
Before trial, the State filed a notice of intent to offer
evidence pursuant to Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Cum. Supp. 2010), to show that (1) Kibbee had
provided alcohol to minor females in his residence on several
occasions; (2) in August 2009, Crystal attended a party at
Kibbee’s home, fell asleep, awoke to find her pants around
her ankles, and saw Kibbee walking out of the room; and

STATE v. KIBBEE 	77
Cite as 284 Neb. 72
(3) Kibbee had previously had sexual contact with several
females in various towns in Iowa between 1985 and 1995.
The State also filed a notice of intent to offer evidence pur-
suant to Neb. Evid. R. 414, Neb. Rev. Stat. § 27-414 (Cum.
Supp. 2010), of similar offenses committed by Kibbee against
four females. Kibbee objected to the § 27-414 notice, arguing
that its application violated the ex post facto prohibitions of
the federal and state Constitutions because § 27-414 was not in
effect on August 8 and 9, 2009, the dates of the offense alleged
in the information.
H eaRing UndeR § 27-404(2)
At a hearing to consider the §§ 27-404(2) and 27-414 issues,
evidence was received from three women who had previous
contacts with Kibbee in Iowa. In a deposition, Melissa C. testi-
fied that in 1983, when she was 10 years old, she went to the
home of her aunt, Karen P., to babysit her cousins, Jennifer P.
and Jackie P. Karen was living with Kibbee in Grinnell, Iowa.
Melissa had been asleep on the couch, but she woke up when
Kibbee and Karen returned home. Melissa was wearing a
nightgown and underwear. She dozed off again and then awoke
to find Kibbee sitting on the floor next to her. He was touch-
ing the inside of her right leg, and he told Melissa to be quiet
because her aunt was in a nearby bedroom with the door open.
Melissa said Kibbee moved his hand upward and touched and
rubbed her vaginal area and eventually put his finger in her
vagina. Melissa believed the incident lasted about 5 minutes.
She told Kibbee to stop. He returned to his bedroom, and
Melissa stayed on the couch and cried. Melissa did not tell
her aunt, but several months later, she told her mother and her
mother’s boyfriend. Melissa said there was an investigation,
but Kibbee was not charged.
Jennifer, Karen’s daughter, testified at the pretrial hear-
ing. She was born in 1982, and her mother dated Kibbee
from the time Jennifer was about 3 months old. Jennifer said
Kibbee abused her mother and physically and sexually abused
Jennifer and her sister, Jackie, who is 2 years older. Jennifer’s
first memories of sexual abuse were when she was approxi-
mately 5 years old and they lived in a farmhouse outside of

78 	284 NEBRASKA REPORTS
Brooklyn, Iowa. Jennifer remembered waking up with a pil-
low over her face and Kibbee’s fingers inside her vagina. He
also tried to penetrate her with his penis. Jennifer did not tell
anyone because Kibbee threatened to kill her mother and sis-
ter. Jennifer said that the abuse continued as long as Kibbee
lived in the home and that in every instance, she was asleep
and woke up to find Kibbee touching her. When Jennifer was
5 or 6 years old, she told her mother about the abuse, but
her mother did not believe her or her sister and told them
not to tell anyone else. On one occasion, Jennifer observed
Jackie tied to a bed while naked and Kibbee at the end of the
bed, also naked. When Jennifer was about 11 years old, she
and her sister were placed in foster care and they reported
Kibbee’s actions.
Heather P. also testified by deposition. Heather, who was
born in 1982, met Kibbee when she was about 9 or 10 years
old and was friends with Jennifer and Jackie. Heather said that
she and her sister were helping the family move and that all
the beds had been moved to the new residence. The other girls
slept on the floor in the bedroom, but Heather was concerned
about bugs and did not want to sleep on the floor. Karen told
Heather she could sleep on a sofa sleeper with Karen and
Kibbee. Karen slept in the middle of the bed. Heather, who
wore shorts and a T-shirt to bed, was awakened to feel a man’s
hand on her stomach. Kibbee moved his hand under her shirt,
but Heather put up her arm to block him from being able to
touch her breasts. He then moved his hand into the waist-
band of her shorts, and she moved his hand away and got up.
Heather woke up her sister, and they ran home.
Crystal testified that about 1 week before the incident with
Kelsey, she had been drinking alcohol at Kibbee’s house and
awoke on the floor in Bobby’s room to find her underwear
pulled down to her thighs and her shorts pulled down to her
knees. She saw Kibbee in the doorway, and then he closed
the door.
The State also offered several exhibits of Kibbee’s prior
convictions. In 1994, Kibbee was found guilty of assault with
intent to commit sexual assault and was sentenced to 2 years’

STATE v. KIBBEE 	79
Cite as 284 Neb. 72
probation. In February 1995, Kibbee’s probation was revoked
after he violated an order forbidding him from having contact
with children under the age of 18 and failed to obtain an evalu-
ation for sexual abusers. Kibbee was found guilty of aiding
and abetting possession of alcohol by a minor in Iowa in 1998
and was fined $100. Kibbee was incarcerated in Illinois from
January 11 to November 16, 2006, after being charged with
criminal sexual assault.
tRial coURt’s RUling
The trial court found clear and convincing evidence that
the sexual assaults against Melissa, Jennifer, and Heather had
occurred and that there was a high degree of similarity to the
act with which Kibbee was charged. It concluded that evidence
of these assaults could be presented at trial. The court found
insufficient evidence of alleged sexual assaults by Kibbee
against Jackie and Crystal.
The court noted the similarities among the events:
All of the victims were 16 or younger. All were female.
They were all approached while asleep in [Kibbee’s]
home and digitally penetrated or attempted to be pene-
trated. All were known to [Kibbee]. Three were visitors to
his home; the other lived in his home. Admittedly, there is
a significant time lapse between the occurrence of some
of the acts and the current crime; however, these incidents
are highly probative. The number of victims and assaults
on the victims follow serially beginning in approximately
1983, with some gaps, until the present assault. This fact
is also probative.
Having found clear and convincing evidence that the other
sexual assaults were committed by Kibbee, the court then
found that the prior sexual assaults could be admitted to show
motive, opportunity, preparation, or plan and that the admis-
sion would not be unduly prejudicial to Kibbee. However, the
court determined that evidence related to Kibbee’s supply-
ing alcohol to minors had limited probative value and would
be unduly prejudicial. The court overruled Kibbee’s ex post
facto objections.

80 	284 NEBRASKA REPORTS
“JUdicial admissions”
Prior to trial, Kibbee filed “Judicial Admissions,” in which
he admitted that he had sexual contact with Kelsey on August
9, 2009. He stated that Kelsey, her brother, Bobby, Crystal,
and Crystal’s friend were all present and all consumed alco-
holic beverages. Kibbee stated that Kelsey fell asleep on the
couch around 2 or 2:30 a.m. Kelsey’s brother, Crystal, and
Crystal’s friend left the residence, and Kibbee and Bobby
went to their bedrooms. Around 4:30 or 5 a.m., Kibbee left
his bedroom and knelt on the floor next to Kelsey, who was
on the couch. Kelsey’s pants and underwear were around her
ankles. Kibbee admitted that he touched Kelsey in her groin
area with his hand and that Kelsey told him to stop. Kelsey
turned on her side, pushed Kibbee away, and covered her
vaginal area with her legs. Kibbee said he then stopped touch-
ing Kelsey, but he kissed her one last time on the face, pulled
up her underwear and pants, and walked out of the living
room. Kibbee admitted that his actions in kissing and touch-
ing Kelsey were an attempt to sexually stimulate her for the
purpose of Kibbee’s own sexual gratification and not for a
medical or health reason.
Kibbee also filed a motion in limine asking that the State be
precluded from presenting evidence regarding Kibbee’s sexual
activity with the three women from Iowa, since his judicial
admissions resolved all factual issues except whether Kelsey
was subjected to sexual penetration without her consent or
whether Kibbee knew or should have known that Kelsey was
mentally or physically incapable of resisting or appraising
the nature of Kibbee’s conduct. Kibbee argued that motive,
opportunity, preparation, and plan are not essential elements of
first degree sexual assault and that the prior bad acts evidence
should not be admitted.
The court overruled Kibbee’s motion in limine, determining
that § 27-414 allowed the testimony of the witnesses for any
relevant purpose.
JURy tRial
During trial, and prior to the testimony of the women from
Iowa, the court gave a limiting instruction based on § 27-414.
The instruction explained that evidence of the commission of

STATE v. KIBBEE 	81
Cite as 284 Neb. 72
another offense of sexual assault is admissible and may be con-
sidered for any relevant matter, including the similarities of the
offenses, to show Kibbee’s motive, opportunity, preparation, or
plan. However, evidence of a prior offense on its own is not
sufficient to prove Kibbee guilty.
The jury found Kibbee guilty of both charges. He was sen-
tenced to a prison term of 30 to 40 years for the sexual assault
conviction and to a prison term of 4 to 5 years for the child
abuse conviction. The sentences were ordered to be served
concurrently to each other, but consecutively to the sentences
imposed in any other case. Kibbee was given credit for 464
days served.
ASSIGNMENTS OF ERROR
Kibbee assigns the following errors: The trial court erred in
(1) admitting evidence of Kibbee’s prior sexual contacts with
minors in Iowa, in violation of Neb. Evid. R. 403, Neb. Rev.
Stat. § 27-403 (Reissue 2008), and § 27-404; (2) admitting evi-
dence of prior sexual contact with minors under § 27-414, in
violation of the Ex Post Facto Clauses of the U.S. Const. art. I,
§ 10, and Neb. Const. art. I, § 16; (3) admitting evidence of
prior sexual contacts with minors to show character and pro-
pensity contrary to § 27-403, if § 27-414 was applicable; (4)
rejecting Kibbee’s judicial admissions to avoid prejudice asso-
ciated with the Iowa bad acts evidence; (5) overruling Kibbee’s
motion for a mistrial after his judicial admissions were offered
as part of the State’s case in chief during the trial; and (6)
failing to instruct the jury on the lesser-included offense of
third degree sexual assault after the judicial admissions were
received into evidence.
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 discretion a factor in determining admis-
sibility.1 Where the Nebraska Evidence Rules commit the
1 State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).

82 	284 NEBRASKA REPORTS
evidentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion.2
[3] The decision whether to grant a motion for mistrial is
within the discretion of the trial court and will not be disturbed
on appeal in the absence of an abuse of discretion.3
[4] Whether jury instructions given by a trial court are cor-
rect 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
ANALYSIS
alleged violation of
ex post facto claUse
Kibbee argues that the trial court erred in admitting evi-
dence of his prior sexual contacts with minors under § 27-414,
because the statute was not in effect at the time of the sexual
contact with Kelsey. The statute was adopted by the Legislature
in 2009 and became operative on January 1, 2010. Thus,
Kibbee asserts that admission of the evidence violated the Ex
Post Facto Clauses of U.S. Const. art. I, § 10, and Neb. Const.
art. I, § 16.
Section 27-414 provides in part:
(1) In a criminal case in which the accused is accused
of an offense of sexual assault, evidence of the accused’s
commission of another offense or offenses of sexual
assault is admissible if there is clear and convincing evi-
dence otherwise admissible under the Nebraska Evidence
Rules that the accused committed the other offense or
offenses. If admissible, such evidence may be considered
for its bearing on any matter to which it is relevant.
[5-7] Under both the federal Constitution, U.S. Const. art.
I, § 10, and the state Constitution, Neb. Const. art. I, § 16,
2 State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
3 State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
4 State v. Nolan, supra note 2.

STATE v. KIBBEE 	83
Cite as 284 Neb. 72
no ex post facto law may be passed.5 “A law which purports
to apply to events that occurred before the law’s enactment,
and which disadvantages a defendant by creating or enhancing
penalties that did not exist when the offense was committed, is
an ex post facto law and will not be endorsed by the courts.”6
Ordinarily, Nebraska’s ex post facto clause is construed to
provide no greater protections than those guaranteed by the
federal Constitution.7
[8-10] We have held:
Any statute which punishes as a crime an act previ-
ously committed which was innocent when done, which
makes more burdensome the punishment for a crime after
its commission, or which deprives one charged with a
crime of any defense available according to law at the
time when the act was committed is prohibited as ex
post facto. The Ex Post Facto Clause does not, however,
extend to limit legislative control of remedies and modes
of procedure which do not affect matters of substance.
Thus, statutes governing substantive matters in effect at
the time of a crime govern, and not later enacted statutes.
In contrast, the procedural statutes in effect on the date
of a hearing or proceeding govern, and not those in effect
when the violation took place.
A change in law will be deemed to affect matters of
substance where it increases the punishment or changes
the ingredients of the offense or the ultimate facts neces-
sary to establish guilt. In other words, a rule is substantive
if it alters the range of conduct or the class of persons
that the law punishes. In contrast, rules that regulate
only the manner of determining a defendant’s culpability
are procedural.8
[11] The U.S. Supreme Court has identified four types of
laws which may violate the proscription against ex post facto
5 See State v. Simnick, 279 Neb. 499, 779 N.W.2d 335 (2010).
6 Id. at 503, 779 N.W.2d at 338-39.
7 See id.
8 State v. Galindo, 278 Neb. 599, 614-15, 774 N.W.2d 190, 210 (2009)
(emphasis omitted).

84 	284 NEBRASKA REPORTS
laws. In Carmell v. Texas,9 the Court cited Justice Chase, who,
in Calder v. Bull,10 cataloged the types of ex post facto laws as
those which (1) punish as a crime an act previously committed
which was innocent when done; (2) aggravate a crime, or make
it greater than it was, when committed; (3) change the punish-
ment and inflict a greater punishment than was imposed when
the crime was committed; and (4) alter the legal rules of evi-
dence such that less or different evidence is needed in order to
convict the offender.11
The Carmell Court determined that an amended Texas stat-
ute was an ex post facto law under the fourth category. The
law in effect at the time the crime was committed required
both the victim’s testimony and corroborating evidence, and
the amended law provided that the defendant could be con-
victed based only on the victim’s testimony. “A law reducing
the quantum of evidence required to convict an offender is as
grossly unfair as, say, retrospectively eliminating an element of
the offense, increasing the punishment for an existing offense,
or lowering the burden of proof.”12 In each of those instances,
“the government refuses, after the fact, to play by its own
rules, altering them in a way that is advantageous only to the
State, to facilitate an easier conviction.”13
[12] However, in a footnote, the Court stated:
We do not mean to say that every rule that has an
effect on whether a defendant can be convicted implicates
the Ex Post Facto Clause. Ordinary rules of evidence,
for example, do not violate the Clause. . . . Rules of that
nature are ordinarily evenhanded, in the sense that they
may benefit either the State or the defendant in any given
case. More crucially, such rules, by simply permitting
evidence to be admitted at trial, do not at all subvert the
9 Carmell v. Texas, 529 U.S. 513, 120 S. Ct. 1620, 146 L. Ed. 2d 577
(2000).
10 Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648 (1798).
11 Carmell v. Texas, supra note 9; Calder v. Bull, supra note 10.
12 Carmell v. Texas, supra note 9, 529 U.S. at 532.
13 Id., 529 U.S. at 533.

STATE v. KIBBEE 	85
Cite as 284 Neb. 72
presumption of innocence, because they do not concern
whether the admissible evidence is sufficient to overcome
the presumption. Therefore, to the extent one may con-
sider changes to such laws as “unfair” or “unjust,” they
do not implicate the same kind of unfairness implicated
by changes in rules setting forth a sufficiency of the evi-
dence standard. Moreover, while the principle of unfair-
ness helps explain and shape the Clause’s scope, it is not
a doctrine unto itself, invalidating laws under the Ex Post
Facto Clause by its own force.14
[13] In Carmell, the State of Texas argued that the case
was controlled by Hopt v. Utah15 and Thompson v. Missouri.16
In Hopt, the Court held that there was no violation of the
Ex Post Facto Clause by an amended law that allowed a
convicted felon to testify as a witness against the defendant
at trial.
Statutes which simply enlarge the class of persons who
may be competent to testify in criminal cases are not ex
post facto in their application to prosecutions for crimes
committed prior to their passage; for they do not . . . alter
the degree, or lessen the amount or measure, of the proof
which was made necessary to conviction when the crime
was committed.17
In Thompson, the Court also found no ex post facto violation
by an amended statute that allowed the introduction of expert
handwriting testimony when such evidence had not previously
been permitted.18
[14] The Carmell Court distinguished Hopt and Thompson
by noting that the statute at issue was not a witness compe-
tency rule, which regulates the manner in which facts may be
placed before a jury, but, rather, a sufficiency of the evidence
rule, which governs the sufficiency of the facts presented to
14 Id., 529 U.S. at 533 n.23.
15 Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262 (1884).
16 Thompson v. Missouri, 171 U.S. 380, 18 S. Ct. 922, 43 L. Ed. 204 (1898).
17 Hopt v. Utah, supra note 15, 110 U.S. at 589-90.
18 Thompson v. Missouri, supra note 16.

86 	284 NEBRASKA REPORTS
the jury for meeting the burden of proof.19 A rule govern-
ing the sufficiency of the evidence would always run in the
prosecution’s favor because it will always make it easier to
convict. However, a witness competency rule could assist
either the State or the defendant. For example, a felon witness
might help a defendant if the felon is able to relate credible
exculpatory evidence.20 “The issue of the admissibility of evi-
dence is simply different from the question whether the prop-
erly admitted evidence is sufficient to convict the defendant.
Evidence admissibility rules do not go to the general issue of
guilt, nor to whether a conviction, as a matter of law, may be
sustained.”21 The Court noted that while prosecutors may meet
all the requirements of witness competency rules, they may
not have introduced sufficient evidence to convict the offender.
Sufficiency of the evidence rules inform as to whether the
evidence is sufficient to convict as a matter of law, which
does not mean that the jury must convict.22 The law at issue in
Carmell was deemed to violate the proscription against ex post
facto laws.
Like Carmell, the fourth category of ex post facto laws is at
issue in the case at bar. We must determine whether § 27-414
altered the legal rules of evidence such that less or different
evidence was needed in order to convict Kibbee. We conclude
that it did not.
Section 27-414 provides that evidence of a prior sexual
assault is admissible “if there is clear and convincing evi-
dence 	otherwise 	admissible 	under 	the 	Nebraska 	Evidence
Rules.” As such, it governs the admissibility of evidence, not
its sufficiency.
In Schroeder v. Tilton,23 the Court of Appeals for the Ninth
Circuit affirmed the determination by the state trial court that
admission of evidence of the defendant’s prior sex crimes
19 Carmell v. Texas, supra note 9.
20 See id.
21 Id., 529 U.S. at 546.
22 Carmell v. Texas, supra note 9.
23 Schroeder v. Tilton, 493 F.3d 1083 (9th Cir. 2007).

STATE v. KIBBEE 	87
Cite as 284 Neb. 72
did not violate the Ex Post Facto Clause. The defendant was
charged in 1999 with five counts of sexual misconduct for
events that took place in January 1994. The State introduced
evidence of prior uncharged conduct, which the court admitted
under § 1108 of the California Evidence Code. Section 1108
had become effective in 1996—after the commission of the
charged offenses but prior to trial.
Section 1108 provides in part: “‘In a criminal action in
which the defendant is accused of a sexual offense, evidence
of the defendant’s commission of another sexual offense or
offenses is not made inadmissible by Section 1101, if the evi-
dence is not inadmissible pursuant to Section 352.’”24
On appeal, the defendant argued that applying § 1108 to him
violated the Ex Post Facto Clause of the federal Constitution.
The appellate court held that § 1108 was not the type of rule
contemplated by Carmell because it “‘deems more evidence
relevant and makes more evidence admissible, but it does not
thereby eliminate or lower the quantum of proof required or in
any way reduce the prosecutor’s burden of proof. The prosecu-
tor still had to prove the same elements beyond a reasonable
doubt to convict defendant.’”25
The defendant sought habeas corpus relief and again argued
that the state court violated the Ex Post Facto Clause when
it admitted evidence of his prior sexual misconduct under
§ 1108.
The court noted that evidence of the commission of another
sexual offense was admissible if it did not violate California’s
general ban on the use of propensity evidence.26 A balancing
was still required to determine whether the probative value of
the evidence substantially outweighed the probability that the
admission of the evidence would necessitate undue consump-
tion of time or create danger of prejudice, of confusing the
issues, or of misleading the jury.27
24 Id. at 1086, quoting Cal. Evid. Code § 1108(a) (West 2009).
25 Id. at 1086.
26 Schroeder v. Tilton, supra note 23, citing Cal. Evid. Code § 1101(b) (West
2009).
27 Id., citing Cal. Evid. Code § 352 (West 2011).

88 	284 NEBRASKA REPORTS
The court stated: “In sum, § 1108 creates an exception to the
general ban on propensity evidence, so that evidence of prior
sexual misconduct may be presented to the jury to demonstrate
propensity to commit the crime charged, provided that the prej-
udicial value of that evidence does not substantially outweigh
its probative value.”28
The Schroeder court noted that in Carmell, the Court held
that the amended law violated the Ex Post Facto Clause
because it “‘changed the quantum of evidence necessary to
sustain a conviction.’”29 Thus, “Carmell distinguished ordinary
rules of evidence, which govern admissibility or competency,
for example, from those rules that affect the sufficiency of
the evidence.”30
However, in Schroeder, it was not error to conclude that
§ 1108 is an ordinary rule of evidence and that it does not
violate the Ex Post Facto Clause. The statute “simply states
that evidence of prior uncharged sexual misconduct may be
admitted to prove propensity.”31 It does not address the suf-
ficiency of the evidence made admissible by the law. Section
1108 relates to admissibility, not sufficiency, as nothing in the
statute “suggests that the admissible propensity evidence would
be sufficient, by itself, to convict a person of any crime.”32
The court concluded that § 1108 did not affect the quantum of
evidence sufficient to convict the defendant. It held that there
was no violation of the defendant’s right to be free from retro-
active punishment.33
Other jurisdictions have also found that a statute similar
to § 27-414 does not violate the Ex Post Facto Clause. In
Louisiana, a statute provided that evidence of the commis-
sion of another sexual offense may be admissible and may be
28 Id. at 1087.
29 Id.
30 Id.
31 Id. at 1088.
32 Id.
33 Id.

STATE v. KIBBEE 	89
Cite as 284 Neb. 72
considered for any matter to which it is relevant subject to a
balancing test.34 The appellate court found that evidence of
prior sex crimes was admissible to prove propensity and was
not unfairly prejudicial since a limiting instruction was given
to the jury.35
A Texas statute was amended to provide that evidence of
other crimes committed by the defendant against the child
victim shall be admitted for relevant matters.36 The defendant
argued that the statute, which was amended between the dates
of the offenses and the date of his trial, was an ex post facto
law. The court disagreed, finding that the “statute enlarges the
scope of the child’s admissible testimony, but leaves untouched
the amount or degree of proof required for conviction.”37 The
statute “eliminates the necessity of showing the evidence falls
within one of the Rule 404(b) exceptions. [B]ut, in no way
does it alter the quantum of proof required by law to support
the conviction.”38
In Oklahoma, the appellate court stated that “[t]he mere fact
that a retroactively-applied change in evidentiary rules works
to a defendant’s disadvantage does not mean the law is ex post
facto. The issue is whether the change affected the quantum of
evidence necessary to support a conviction.”39 It found no ex
post facto violation by the admission of testimony about other
acts of sexual abuse.
A Washington statute that permitted, but did not require,
admission of evidence of prior sexual offenses did not violate
ex post facto laws.40 The court disagreed with the defendant’s
argument that sex offense evidence is propensity evidence that
reduces the quantum of evidence the State must produce in
34 State v. Willis, 915 So. 2d 365 (La. App. 2005).
35 Id.
36 McCulloch v. State, 39 S.W.3d 678 (Tex. App. 2001).
37 Id. at 684.
38 Id.
39 James v. State, 204 P.3d 793, 795 (Okla. Crim. App. 2009).
40 State v. Scherner, 153 Wash. App. 621, 225 P.3d 248 (2009).

90 	284 NEBRASKA REPORTS
order to convict. It found that the statute did not “subvert the
presumption of innocence because it does not concern whether
the admitted evidence is sufficient to overcome the presump-
tion of innocence.”41 In addition, the statute expressly retained
the trial court’s ability to balance probative value against preju-
dicial effect.42
In the case at bar, § 27-414 is similar to the California
statute discussed in Schroeder. Section 27-414 states, in per-
tinent part:
(1) In a criminal case in which the accused is accused
of an offense of sexual assault, evidence of the accused’s
commission of another offense or offenses of sexual
assault is admissible if there is clear and convincing evi-
dence otherwise admissible under the Nebraska Evidence
Rules that the accused committed the other offense or
offenses. If admissible, such evidence may be considered
for its bearing on any matter to which it is relevant.
The California statute allows evidence of the defendant’s
commission of another sexual offense if the offense is not inad-
missible for relevancy. The Schroeder court determined that
the statute did not affect the quantum of evidence sufficient to
convict the defendant.43 The same is true in this case.
[15] Section 27-414 does not violate the Ex Post Facto
Clauses of the federal and state Constitutions. The statute
does not affect the sufficiency of the evidence and does not
change the quantum of evidence needed for conviction. It is
an ordinary rule of evidence which relates to admissibility
and simply provides that evidence of prior sexual miscon-
duct may be admitted to prove propensity. The statute does
not suggest that the admissible propensity evidence would
be sufficient, by itself, to convict a person of any crime.
The trial court did not err in finding that § 27-414 does not
violate the Ex Post Facto Clauses of the federal and state
Constitutions.
41 Id. at 642, 225 P.3d at 257.
42 Id.
43 Schroeder v. Tilton, supra note 23.

STATE v. KIBBEE 	91
Cite as 284 Neb. 72
admission of evidence of pRioR acts
Kibbee argues that the trial court erred in admitting evi-
dence of prior sexual contacts with minors in Iowa in violation
of §§ 27-403 and 27-404. In addition, he claims that even if
this court determines that § 27-414 does not violate ex post
facto laws and is therefore applicable here, the Iowa bad
acts evidence was not admissible “propensity” evidence under
§ 27-414 because it was prejudicial and its admission substan-
tially outweighed its relevance as set out in § 27-403.
Although the trial court analyzed the admission of the evi-
dence under § 27-404, we find that the first step in determining
whether evidence of prior sexual contacts should be admit-
ted is to review the evidence pursuant to § 27-414. Having
conducted such a review, we find no error in the admission
of prior acts evidence under § 27-414, and therefore, we do
not find it necessary to conduct a separate analysis under
§ 27-404(2).
In relevant part, § 27-414 provides:
(3) Before admitting evidence of the accused’s com-
mission of another offense or offenses of sexual assault
under this section, the court shall conduct a hearing
outside the presence of any jury. At the hearing, the
rules of evidence shall apply and the court shall apply a
section 27-403 balancing and admit the evidence unless
the risk of prejudice substantially outweighs the proba-
tive value of the evidence. In assessing the balancing,
the court may consider any relevant factor such as (a)
the probability that the other offense occurred, (b) the
proximity in time and intervening circumstances of the
other offenses, and (c) the similarity of the other acts to
the crime charged.
The trial court followed the procedure of the statute, con-
ducting a hearing outside the presence of the jury. After receiv-
ing evidence of Kibbee’s previous sexual contacts with minors,
the court found by clear and convincing evidence that the
State had proved that three of the sexual assaults had occurred.
The court then conducted a balancing test under § 27-403 and
found similarities among the previous events sufficient to con-
clude that the evidence was probative.

92 	284 NEBRASKA REPORTS
This court has not yet addressed the application of § 27-414,
except to note that § 27-404 had been amended to permit
the admission of evidence of a prior sexual assault offense.44
Section 27-414 was not in effect at the time of the trials in
those cases and therefore did not affect our analysis.
Evidence of prior bad acts in sexual assault cases was previ-
ously governed solely by § 27-404(2), which 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.
[16] Section 27-414 expands upon the admission of evi-
dence of an accused person’s other sexual misconduct or sex
offenses.45 It was intended to “harmonize[] provisions in Neb.
Rev. Stat. § 27-404 and incorporate[] the applicable federal
ev[i]dentiary threshold.”46 Senator Mike Flood, who introduced
the bill, stated that it
puts Nebraska in line with a growing number of other
jurisdictions, including the federal government, who have
liberalized the admission of other crimes in sex offense
cases. It is important to note that such evidence of other
sex offenses is not automatically admitted. The court must
subject this other crimes evidence to the probative value
versus unfair prejudice balancing test found in Section
27-403 in the Nebraska rules of evidence.47
The federal rule of evidence from which § 27-414 is drawn
provides that when a defendant is accused of an offense of
sexual assault, evidence of another sexual assault offense
is admissible, as long as it is relevant.48 Evidence found
44 See, State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011); State v.
Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).
45 Introducer’s Statement of Intent, L.B. 39, 101st Leg., 1st Sess. (Mar. 19,
2009).
46 Id.
47 Floor Debate, L.B. 39, 101st Leg., 1st Sess. 4 (Apr. 22, 2009).
48 See Fed. R. Evid. 413(a).

STATE v. KIBBEE 	93
Cite as 284 Neb. 72
admissible under federal rule 413 is still subject to exclusion
under federal rule 403 if its probative value is substantially
outweighed by the danger of unfair prejudice.49 The Court of
Appeals for the Eighth Circuit has stated that the federal rules
were intended to allow the jury to consider a defendant’s prior
bad acts in the area of sexual abuse for the purpose of show-
ing propensity.50
In U.S. v. Benais,51 the court held that in a trial for a second
rape, testimony from a first rape victim was admissible because
it carried probative value that was not substantially outweighed
by the danger of unfair prejudice. “The evidence was probative
and the only prejudice was that prejudice made admissible by
Rule 413. There was no unfair prejudice as required for exclu-
sion under Rule 403.”52
Federal rule of evidence 413 “address[es] propensity evi-
dence in the context of sexual assault” and “provide[s] an
exception to the general rule codified in Rule 404(a), which
prohibits the admission of evidence for the purpose of show-
ing a defendant’s propensity to commit bad acts.”53 Rule 413
has three threshold requirements: The court must determine
that the defendant is accused of an offense of sexual assault,
then it must find that the evidence proffered is evidence of the
defendant’s commission of another offense of sexual assault,
and then it must determine, as with all evidence, that it is rel-
evant.54 “A defendant with a propensity to commit acts similar
to the charged crime is more likely to have committed the
charged crime than another. Evidence of such a propensity is
therefore relevant.”55
The federal court has held that “Rule 413 supersedes
Rule 404(b)’s restriction and allows the government to offer
49 U.S. v. Benais, 460 F.3d 1059 (8th Cir. 2006). See Fed. R. Evid. 403.
50 U.S. v. Benais, supra note 49.
51 Id.
52 Id. at 1063 (emphasis omitted).
53 U.S. v. Benally, 500 F.3d 1085, 1089 (10th Cir. 2007).
54 Id., citing U.S. v. Guardia, 135 F.3d 1326 (10th Cir. 1998).
55 U.S. v. Guardia, supra note 54, 135 F.3d at 1328.

94 	284 NEBRASKA REPORTS
evidence of a defendant’s prior conduct for the purpose of
demonstrating a defendant’s propensity to commit the charged
offense.”56
In U.S. v. Holy Bull,57 the Court of Appeals for the Eighth
Circuit stated:
Evidence of prior bad acts is generally not admissible
to prove a defendant’s character or propensity to commit
crime. Fed.R.Evid. 404(b). However, Congress altered this
rule in sex offense cases when it adopted Rules 413 and
414 of the Federal Rules of Evidence. After the adoption
of Rules 413 and 414, in sexual assault and child molesta-
tion cases, evidence that the defendant committed a prior
similar offense “may be considered for its bearing on any
matter to which it is relevant,” including the defendant’s
propensity to commit such offenses. Fed.R.Evid. 413(a),
414(a). If relevant, such evidence is admissible unless
its probative value is “substantially outweighed” by one
or more of the factors enumerated in Rule 403, includ-
ing “the danger of unfair prejudice.” United States v.
LeCompte, 131 F.3d 767, 769 (8th Cir.1997).
[17] When a Nebraska Evidence Rule is substantially similar
to a corresponding federal rule of evidence, Nebraska courts
will look to federal decisions interpreting the corresponding
federal rule for guidance in construing the Nebraska rule.58
In Rule 413 cases, the risk of prejudice will be present
to varying degrees. Propensity evidence, however, has
indisputable probative value. That value in a given case
will depend on innumerable considerations, including the
similarity of the prior acts to the acts charged, . . . the
closeness in time of the prior acts to the charged acts, . . .
the frequency of the prior acts, the presence or lack of
intervening events, . . . and the need for evidence beyond
the testimony of the defendant and alleged victim.59
56 Id. at 1329.
57 U.S. v. Holy Bull, 613 F.3d 871, 873 (8th Cir. 2010).
58 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
59 U.S. v. Guardia, supra note 54, 135 F.3d at 1331.

STATE v. KIBBEE 	95
Cite as 284 Neb. 72
[18] Because this is our first consideration of § 27-414, we
have not specifically discussed the factors which may need to
be taken into consideration in determining whether evidence of
a prior sexual assault may be admitted. The statute itself pro-
vides three factors that the court may consider in the balancing
test: “(a) [T]he probability that the other offense occurred, (b)
the proximity in time and intervening circumstances of the
other offenses, and (c) the similarity of the other acts to the
crime charged.”60
In considering the probability that the other offense occurred,
we have noted:
“[E]vidence of repeated incidents may be especially rel-
evant in proving sexual crimes committed against persons
otherwise defenseless due to age—either the very young
or the elderly. Without proof by other acts of a defendant,
sexual offenses against the defenseless, except in cases
of the fortuitous presence of an eyewitness, would likely
go unpunished.”61
As for similarities between previous contacts and those on
which current charges are based, we found a number of like-
nesses in the facts of prior sexual assaults in State v. Carter.62
The issue was whether evidence could be admitted that the
defendant, who was charged with murder in the first degree
in the commission of a sexual assault, had previously had
recurring sexual contact with his two daughters and his half
sister. We noted a number of similarities between the sexual
assaults of his daughters and half sister and the victim in that
case: All assaults occurred when the victims were between the
ages of 6 and 11; all of the victims were subjected to multiple
assaults; all assaults occurred at the defendant’s residence,
his mother’s residence, or the victim’s residence; all of the
victims had either a familial or a family-like relationship to
the defendant; all assaults occurred while the defendant had
60 § 27-414(3).
61 State v. Stephens, 237 Neb. 551, 556, 466 N.W.2d 781, 785-86 (1991),
quoting State v. Craig, 219 Neb. 70, 361 N.W.2d 206 (1985).
62 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).

96 	284 NEBRASKA REPORTS
custody or was in complete control of the victims; and each of
the victims was incapable of giving consent.63 We also noted
some differences, but found they did not compel the exclusion
of the evidence. “An absolute identity in every detail cannot
be expected.”64
[19] We held that evidence of prior acts may be admit-
ted where there are “an overwhelming number of significant
similarities,” but “‘[t]he term “overwhelming” does not require
a mechanical count of the similarities but, rather, a qualita-
tive evaluation.’”65
In the case at bar, we see a number of similarities between
the prior acts and the acts upon which the charges are based.
All of the victims were under the age of majority at the
time the sexual assault occurred. Melissa and Heather were
both awakened to find Kibbee touching them inappropriately.
Melissa reported that Kibbee was sitting on the floor next to
her, similar to the report by Kelsey that Kibbee was kneel-
ing on the floor next to her when he digitally penetrated her.
Kibbee digitally penetrated both Melissa and Heather. Jennifer
reported similar abuse when she was awakened by Kibbee’s
touching her. She also reported Kibbee’s digitally penetrating
her and attempting to penetrate her with his penis. All of the
victims knew Kibbee. He was living with Melissa’s aunt at the
time of the assault on Melissa. Heather was friends with the
daughters of the woman with whom Kibbee was living. And
Jennifer was the daughter of that woman.
We determine that there were sufficient similarities between
Kibbee’s prior acts and the charged acts. Kelsey was a visi-
tor in Kibbee’s house who fell asleep on the couch. She was
awakened to find Kibbee sitting next to her and her pants and
underwear around her ankles. Kibbee touched her vaginal
area and digitally penetrated her. She knew Kibbee prior to
the incident.
63 Id.
64 Id. at 964-65, 524 N.W.2d at 773.
65 Id. at 965, 524 N.W.2d at 773, quoting State v. Bible, 175 Ariz. 549, 858
P.2d 1152 (1993).

STATE v. KIBBEE 	97
Cite as 284 Neb. 72
Another factor which we must take into consideration is the
closeness in time of the prior acts to the charged acts. The Iowa
acts took place between 1983 and 1995, and the assault against
Kelsey took place in 2009.
This court has previously considered the question whether
prior acts were too remote in time to be admitted into evidence,
although the analysis was conducted pursuant to § 27-404(2).
We find that it applies to our analysis under § 27-414.
[20] In State v. Yager,66 the defendant argued that evidence
of sexual contacts which occurred from 11 to 20 years prior
to trial was too remote to be relevant. After stating that the
evidence was relevant to prove motive, intent, and absence of
mistake, we stated that the admissibility of evidence concern-
ing other conduct must be determined upon the facts of each
case. “[N]o exact limitation of time can be fixed as to when
other conduct tending to prove intent to commit the offense
charged is too remote.”67
“[R]emoteness, or the temporal span between a prior
crime, wrong, or other act offered as evidence under Rule
404(2) and a fact to be determined in a present proceed-
ing, goes to the weight to be given to such evidence and
does not render the evidence of the other crime, wrong, or
act irrelevant and inadmissible.”68
[21] We concluded that the prior acts were actually commit-
ted between 6 and 9 years earlier and were properly admitted
into evidence. The question whether evidence of other conduct
“is too remote in time is largely within the discretion of the
trial court. While remoteness in time may weaken the value of
the evidence, such remoteness does not, in and of itself, neces-
sarily justify exclusion of the evidence.”69
Evidence of sexual contacts which began 27 years before
the incident on which the charges were based was found
66 State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990).
67 Id. at 485, 461 N.W.2d at 744.
68 Id. at 486, 461 N.W.2d at 745, quoting State v. Schaaf, 234 Neb. 144, 449
N.W.2d 762 (1989).
69 Id. at 486, 461 N.W.2d at 745.

98 	284 NEBRASKA REPORTS
admissible in State v. Stephens.70 The defendant was charged
with sexually assaulting his infant granddaughter, and at trial,
his 32-year-old stepdaughter testified that the defendant had
sexual contact with her repeatedly over a substantial period of
time, starting when she was a child between the ages of 4 and
5. The defendant argued that the contacts were temporally too
remote and untrustworthy to have been admitted.
The court noted that the admission of all evidence is sub-
ject to the overriding protection of § 27-403, which provides
for the exclusion of relevant evidence if its probative value
is substantially outweighed by the danger of unfair preju-
dice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.71 We stated: “The high
degree of similarity between the prior acts when his step-
daughter was between 4 and 5 years old and the circumstances
surrounding the charged offense here counterbalances the
remoteness of the events, leaving us with a solidly positive
probative value.”72
In a case in which the prior act occurred 10 years earlier,
this court stated:
[N]o exact limitation of time can be fixed as to when
other conduct tending to prove intent to commit the
offense charged is remote. The question of remoteness in
time is largely in the sound discretion of the trial court;
while remoteness in time may weaken the value of the
evidence, such remoteness does not, in and of itself, nec-
essarily justify exclusion of the evidence.73
Section 27-414 requires the trial court to apply a balancing
under § 27-403, and provides that the evidence shall be admit-
ted unless the risk of prejudice substantially outweighs the pro-
bative value of the evidence. In this case, the trial court found
that there was a high probability that the offenses in Iowa
70 State v. Stephens, supra note 61.
71 Id.
72 Id. at 558, 466 N.W.2d at 787.
73 State v. Kern, 224 Neb. 177, 185-86, 397 N.W.2d 23, 29 (1986).

STATE v. KIBBEE 	99
Cite as 284 Neb. 72
occurred and that while they were somewhat remote in time,
there was a high degree of similarity to the acts with which
Kibbee was charged. The court declined to admit evidence of
two other incidents. It conducted a balancing under § 27-403
and determined that the incidents were highly probative, even
though there was a significant time lapse between the occur-
rence of some of the acts and the current crime. The court
stated, “The number of victims and assaults on the victims
follow serially beginning in approximately 1983, with some
gaps, until the present assault. This fact is also probative.” The
court concluded that the prior sexual assaults could be admit-
ted to show motive, opportunity, preparation, or plan under
§ 27-404(2) and that the admission of the prior bad acts was
not unduly prejudicial to Kibbee.
Each of the Iowa offenses was strikingly similar to the acts
charged in the present case. The evidence of the incidents
was relevant under the circumstances. The probative value
of the evidence of the prior bad acts outweighed any prejudi-
cial effect.
In addition, the trial court gave the jury a limiting instruc-
tion concerning the testimony of the victims of the prior acts in
Iowa. The instruction stated:
The testimony of Heather . . . , Melissa . . . , and Jennifer
. . . relates to [Kibbee’s] commission of other instances of
sexual assault or child molestation.
In a criminal case in which [Kibbee] is accused of an
offense of sexual assault, evidence of [Kibbee’s] com-
mission of another offense or offenses of sexual assault
is admissible and may be considered for its bearing on
any matter to which it is relevant including the similari-
ties of the other offenses for the purpose of determining
the credibility of [Kelsey] or for the purpose of showing
[Kibbee’s] motive, opportunity, plan or preparation as it
relates to the sexual assault charge. However, evidence
of a prior offense on its own is not sufficient to prove
[Kibbee] guilty of the crime charged. Bear in mind as you
consider this evidence, at all times the State has the bur-
den of proving that [Kibbee] committed each of the ele-
ments of the offense charged. I remind you that [Kibbee]

100 	284 NEBRASKA REPORTS
is not on trial for any act, conduct or offense not charged
in the Information.
The trial court’s instruction clearly directed the jury as to
the limited use of the evidence.74 The trial court did not err in
admitting the evidence of prior acts.
kibbee’s JUdicial admissions
Kibbee next argues that the trial court erred when it refused
to receive into evidence his judicial admissions and allowed
the evidence of the prior bad acts.
Kibbee cites Old Chief v. United States75 for support. In
that case, the defendant, who was charged with assault with a
dangerous weapon and use of a firearm in a crime of violence,
offered to stipulate that he was a convicted felon, rather than
allowing the State to enter into evidence the full record of his
previous conviction. The Court held that a trial court abused
its discretion in refusing to allow the defendant to concede the
fact of a prior conviction and instead admitting the full record
of a prior judgment. The Court stated that the name or nature
of the prior offense raised the risk of a tainted verdict when the
purpose of the evidence was solely to prove the element of the
prior conviction.76 The Court stated:
[T]he accepted rule that the prosecution is entitled to
prove its case free from any defendant’s option to stipu-
late the evidence away rests on good sense. A syllogism is
not a story, and a naked proposition in a courtroom may
be no match for the robust evidence that would be used to
prove it. People who hear a story interrupted by gaps of
abstraction may be puzzled at the missing chapters, and
jurors asked to rest a momentous decision on the story’s
truth can feel put upon at being asked to take responsibil-
ity knowing that more could be said than they have heard.
A convincing tale can be told with economy, but when
economy becomes a break in the natural sequence of
74 State v. Carter, supra note 62.
75 Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d
574 (1997).
76 Id.

STATE v. KIBBEE 	101
Cite as 284 Neb. 72
narrative evidence, an assurance that the missing link is
really there is never more than second best.77
The Nebraska Court of Appeals has held that “[t]he ‘forced
acceptance’ of a stipulation of convicted felon status is a nar-
row exception to the general rule that the State is allowed to
choose how it proves the elements of the charges it has lodged
against the defendant.”78
Kibbee’s case differs from Old Chief, in which the defendant
sought to stipulate to the fact that he was a convicted felon.
Kibbee’s judicial admissions did not admit to any element of
first degree sexual assault. He admitted only to sexual con-
tact without the victim’s consent and without serious personal
injury, which is an element of third degree sexual assault.79
The State had the burden to prove beyond a reasonable doubt
all elements of first degree sexual assault. It was entitled to
use the evidence of the prior bad acts from Iowa, which we
have found to be admissible under §§ 27-403 and 27-414. The
evidence in Old Chief concerned only the status of the defend-
ant, not an element of the crime. We find no error in the trial
court’s refusal to allow Kibbee’s judicial admissions as a sub-
stitute for the §§ 27-403 and 27-414 evidence.
[22-25] We also note that Kibbee argues that his right
to a fair trial under the Due Process Clause was denied by
seemingly contradictory positions taken by the State. Prior to
trial, the State had objected to Kibbee’s judicial admissions.
However, at the end of its case in chief, the State read the
judicial admissions into evidence. We find no error, because
Kibbee did not object when the State offered the admissions
into evidence. Nor did he object when the State asked to read
the admissions to the jury. Failure to make a timely objection
waives the right to assert prejudicial error on appeal.80 When an
issue is raised for the first time in an appellate court, it will be
disregarded inasmuch as a lower court cannot commit error in
77 Id., 519 U.S. at 189.
78 State v. McDaniel, 17 Neb. App. 725, 732, 771 N.W.2d 173, 180 (2009).
79 See Neb. Rev. Stat. § 28-320 (Reissue 2008).
80 State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).

102 	284 NEBRASKA REPORTS
resolving an issue never presented and submitted to it for dis-
position.81 One may not waive an error, gamble on a favorable
result, and, upon obtaining an unfavorable result, assert the
previously waived error.82 An issue not presented to or decided
on by the trial court is not an appropriate issue for consider-
ation on appeal.83 The trial court did not err in allowing the
State to read the judicial admissions to the jury.
[26] Kibbee also claims that the court erred in overruling his
motion for mistrial after the State read the judicial admissions
into evidence. A mistrial is properly granted in a criminal case
where an event occurs during the course of a trial which is of
such a nature that its damaging effect cannot be removed by
proper admonition or instruction to the jury and thus prevents a
fair trial.84 The decision whether to grant a motion for mistrial
is within the discretion of the trial court and will not be dis-
turbed on appeal in the absence of an abuse of discretion.85 We
find no abuse of discretion in the trial court’s denial of Kibbee’s
motion for a mistrial.
lesseR-inclUded offense
Finally, Kibbee argues that the trial court erred in refusing
to instruct the jury on third degree sexual assault as a lesser-
included offense of first degree sexual assault.
[27] The Nebraska Court of Appeals has held, in State v.
Schmidt,86 that under the strict statutory elements approach,
sexual assault in the third degree is not a lesser-included offense
of sexual assault in the first degree. For an offense to be a lesser-
included offense, it must be impossible to commit the greater
offense without also committing the lesser offense.87
In examining the elements of each crime, it is possible
to have sexual penetration as defined without having
81 Id.
82 See id.
83 See id.
84 State v. Burton, 282 Neb. 135, 802 N.W.2d 127 (2011).
85 State v. Huff, supra note 3.
86 State v. Schmidt, 5 Neb. App. 653, 562 N.W.2d 859 (1997).
87 See id.

STATE v. KIBBEE 	103
Cite as 284 Neb. 72
sexual contact as defined. Whereas the latter requires
that the sexual contact be “for the purpose of sexual
arousal or gratification,” the former does not require the
same. Because the crime of first degree sexual assault
can be committed without at the same time committing
third degree sexual assault, the latter is not a lesser-
included offense.88
[28,29] This court denied further review of the Schmidt
decision. And we have not changed our approach to determin-
ing whether an offense is a lesser-included one: Whether a
crime is a lesser-included offense is determined by a statutory
elements approach and is a question of law.89 We therefore
adopt the reasoning of the Court of Appeals in Schmidt and hold
that under the strict statutory elements approach, third degree
sexual assault is not a lesser-included crime of first degree
sexual assault.
[30-32] Whether jury instructions given by a trial court are
correct is a question of law.90 When reviewing questions of
law, an appellate court resolves the questions independently
of the lower court’s conclusions.91 The trial court did not err
in overruling Kibbee’s objection to the jury instruction stating
that third degree assault is not a lesser-included offense of first
degree sexual assault. All the jury instructions must be read
together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported
by the pleadings and the evidence, there is no prejudicial error
necessitating reversal.92
CONCLUSION
There is no merit to any of Kibbee’s assigned errors, and the
convictions and sentences are affirmed.
affiRmed.
88 Id. at 675-76, 562 N.W.2d at 875-76.
89 State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).
90 Id.
91 Id.
92 State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).