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06/05/2018 09:08 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     26 Nebraska A ppellate R eports
                                                STATE v. STEPHENS
                                                Cite as 26 Neb. App. 1




                                        State of Nebraska, appellee, v.
                                         Chad N. Stephens, appellant.
                                                    ___ N.W.2d ___

                                          Filed June 5, 2018.   No. A-17-560.

                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 determining admissibility.
                2.	 Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
                    Rules commit the evidentiary question at issue to the discretion of the
                    trial court, an appellate court reviews the admissibility of evidence for
                    an abuse of discretion.
                3.	 Convictions: Evidence: Appeal and Error. In reviewing a criminal
                    conviction for a sufficiency of the evidence claim, whether the evidence
                    is direct, circumstantial, or a combination thereof, the standard is the
                    same: An appellate court does not resolve conflicts in the evidence, pass
                    on the credibility of witnesses, or reweigh the evidence; such matters
                    are for the finder of fact. The relevant question for an appellate court
                    is whether, after viewing the evidence in the light most favorable to the
                    prosecution, any rational trier of fact could have found the essential ele-
                    ments of the crime beyond a reasonable doubt.
                4.	 Rules of Evidence: Other Acts: Intent. No exact limitation of time
                    can be fixed as to when other conduct tending to prove intent to com-
                    mit the offense charged is remote under Neb. Rev. Stat. § 27-414(1)
                    (Reissue 2016).
                5.	 Rules of Evidence: Other Acts: Time. 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, necessarily justify
                    exclusion of the evidence.
                6.	 Criminal Attempt: Intent. A defendant’s conduct rises to criminal
                    attempt if he or she intentionally engages in conduct which, under the
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                            STATE v. STEPHENS
                            Cite as 26 Neb. App. 1

     circumstances as he or she believes them to be, constitutes a substantial
     step in a course of conduct intended to culminate in his or her commis-
     sion of the crime.
 7.	 Criminal Attempt. Whether a defendant’s conduct constitutes a sub-
     stantial step toward the commission of a particular crime and is an
     attempt is generally a question of fact.
 8.	 Lesser-Included Offenses: Sexual Assault. Attempted first degree sex-
     ual assault on a child is a lesser-included offense of first degree sexual
     assault on a child.
 9.	 Lesser-Included Offenses: Sexual Assault: Intent. A finder of fact
     may convict of the lesser-included offense if it finds that the act of
     penetration was not proved beyond a reasonable doubt but also finds
     that a defendant intentionally engaged in conduct which, under the
     circumstances as the defendant believed them to be, constituted a sub-
     stantial step in a course of conduct intended to culminate in first degree
     sexual assault.

  Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed.
  Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellant.
   Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
for appellee.
   Pirtle, Bishop, and A rterburn, Judges.
   A rterburn, Judge.
                       INTRODUCTION
   Following a bench trial, the district court for Douglas County
found Chad N. Stephens guilty of attempted sexual assault of
a child in the first degree. On appeal, Stephens argues that
the district court improperly allowed Neb. Rev. Stat. § 27-414
(Reissue 2016) evidence and that there was insufficient evi-
dence to support his conviction. For the reasons set forth
below, we affirm.
                    BACKGROUND
  Stephens was married to Desiree Stephens. Desiree had a
daughter from a previous relationship, C.H., born in 2000.
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                       STATE v. STEPHENS
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C.H. and Desiree began living with Stephens in 2003. C.H.,
who was 16 years old at the time of trial, testified to a series
of contacts involving Stephens which were of concern. These
contacts all occurred in the spring and summer of 2011 when
C.H. was 10 years old. By that time, C.H. had two younger
sisters living with the family.
   The first alleged encounter C.H. testified about occurred one
evening when Desiree was not in the same room as Stephens.
Stephens was watching a movie in the living room at the time.
Stephens asked C.H. to rub his feet, which was the first time
he had asked her to do so. Stephens was sitting on the couch,
and C.H. agreed. C.H. testified that she was in her pajamas at
the time, but that no other contact occurred between Stephens
and herself. C.H. testified that after this incident, Stephens
would request foot rubs frequently. C.H. stated that this would
occur both when the two were alone and when others were
present in the room.
   The next specific encounter described by C.H. occurred
when Desiree was not home. It followed the prior foot rub-
bing incidents during the summer of 2011. C.H. testified that
during one evening, Stephens was lying on the bed in his
bedroom watching television. Stephens asked C.H. to rub his
feet. C.H. stated that eventually she became positioned on her
stomach, on top of Stephens, with her face toward his feet and
her buttocks near Stephens’ face. Stephens asked C.H. if she
thought “it was hot” in the room, to which she replied, “‘no.’”
Stephens proceeded to remove C.H.’s pajama bottoms. C.H.
stated that she did not ask Stephens to remove her pajama bot-
toms, nor was there any reason for him to do so. Stephens did
not touch her any further on this occasion. C.H. did not tell
Desiree about the alleged incident.
   The next alleged incident occurred later during the summer
of 2011. C.H. was walking from her bedroom to the bathroom
while Stephens was in the bathroom. Stephens asked C.H. if
she wanted to shower with him. C.H. stated that she went to
her bedroom and kept on her bra and underwear, but covered
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herself with a towel. C.H. then went into the bathroom where
Stephens was located. Stephens asked if she showered with a
towel on, and C.H. said, “‘no.’” C.H. removed her towel, and
Stephens asked if she showered with her bra and underwear
on, and C.H. said, “‘no.’” C.H. removed her undergarments.
C.H. testified that Stephens “stared at me for, like, a long
time.” Stephens remained fully clothed at the time. According
to C.H., Stephens did not speak to her or touch her while he
stared. Eventually he said “‘bye,’” at which time she left.
This was the first time that Stephens had asked C.H. if she
wanted to shower with him. C.H. did not tell Desiree about
this alleged incident.
   The final alleged incident C.H. testified to at trial occurred
shortly after the previous incident. C.H. testified that she was
sleeping in her bedroom when she was awoken. She noticed
that her alarm clock said it was 3:14 a.m. C.H. had been sleep-
ing on her back when she woke up and saw Stephens enter her
room. She smelled a strong odor of alcohol on him. According
to C.H., Stephens got into her bed with her. She stated that
she turned her head away. Stephens did not say anything. She
then “felt something . . . inside of [her vagina],” describing it
as a painful, burning sensation. Stephens asked her if she was
“okay,” and C.H. did not respond.
   C.H. was 16 years old at the time of trial. She testified that
upon reflection, she has been able to determine that Stephens
digitally penetrated her during the incident. She testified that
she believed this based on the positions their bodies were in
at the time. C.H. believed the incident lasted approximately
5 minutes. C.H. did not inform Desiree of this incident until
her initial disclosure 2 to 3 months after the alleged penetra-
tion incident.
   C.H. continued to live in the same home as Stephens for
nearly 1 year following the last incident. C.H. then moved to
Kansas to be with her biological father’s family. During the
time C.H. spent in Kansas, law enforcement interviewed her
regarding allegations of sexual abuse by Stephens. Desiree
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messaged C.H. and instructed her not to divulge any informa-
tion to law enforcement. C.H. then moved to Oklahoma to live
with her biological father’s sister. She lived there for approxi-
mately 3 years. When she returned to the Omaha, Nebraska,
area in September 2016, she began living with Stephens’ par-
ents, where she resided up to the time of trial. C.H. stated that
she previously had a good relationship with Stephens.
   Desiree testified at trial. When C.H. disclosed the incident to
Desiree, Desiree immediately telephoned Stephens to confront
him with the allegation. Desiree stated that Stephens initially
denied any inappropriate contact with C.H. She testified that
she followed up the conversation with Stephens “hundreds”
of times. In a subsequent conversation the evening of C.H.’s
initial disclosure, Desiree testified that Stephens told her he
had been with friends the night of the alleged penetration inci-
dent. Stephens told Desiree that the children were asleep on
his and Desiree’s bed when he returned home. He carried each
of the children to their own bed. When he carried C.H. to her
bed, Stephens stated that his hand was placed near her vagina,
over her underwear. Stephens stated that he laid down next
to C.H. and that he did not want to move his hand from her
vaginal area because he thought she would wake and it would
frighten her. He asked C.H. if she was “okay.” When she did
not respond, he left the room.
   Desiree testified that she talked to Stephens’ parents about
him getting treatment. She testified that she should have gone
to the police with C.H.’s disclosure, but that instead, she began
using methamphetamine and left home for 6 to 8 months.
Desiree testified that she told C.H. to delete certain text mes-
sages before she was first interviewed by law enforcement in
Kansas. Desiree stated she was trying to protect Stephens at
that point. Desiree stated that her approach to the allegations
changed several years later after another of her children made
a disclosure.
   C.H. was interviewed by a forensic interviewer at a
child advocacy center in the summer of 2016. The forensic
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                       STATE v. STEPHENS
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interviewer testified that the proper protocol was utilized on
the day of her interview with C.H. She testified that C.H.’s
demeanor and responses were appropriate during the interview.
She testified that she did not have any concerns about C.H.’s
credibility during the interview. During Stephens’ case, he
introduced the video recording of C.H.’s interview. The district
court viewed the entirety of the video.
   Prior to trial, the State submitted notice that it wished to
present prior sexual assault evidence pursuant to § 27-414. The
district court held a hearing on the issue before trial. At the
hearing, the parties stipulated to the receipt of police reports
and other evidence regarding the former and current charges
against Stephens and presented argument.
   The evidence of Stephens’ prior crime shows that in February
2003, when Stephens was 20 years old, he solicited sex from
an undercover officer posing as a 14-year-old girl in an internet
chat room. In particular, Stephens asked the “girl,” “‘Would
you let me touch your body?’” He then attempted to get her
to call him on his cell phone. The “girl” stopped responding to
Stephens, and Stephens logged into the chat room using a dif-
ferent screen name and approached her again, this time repre-
senting that he was only 16 years old. Stephens then attempted
to get the “girl” to agree to a meeting for the purpose of kiss-
ing, oral sex, and vaginal sex. The two agreed to meet at a
grocery store at a certain time. Stephens described the vehicle
he would drive. The “girl” requested that Stephens bring a con-
dom for vaginal sex.
   Officers set up surveillance at the chosen meeting place and
observed Stephens’ arriving in the type of vehicle he had indi-
cated he would drive at the designated time. Officers arrested
Stephens and discovered that he was carrying a single con-
dom in his pocket. After being advised of his rights, Stephens
spoke with the officers and corroborated the above informa-
tion. Stephens also consented to a search of his “Yahoo Instant
Messenger” accounts. Stephens provided the password for both
accounts used to contact the 14-year-old “girl.” The evidence
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                        STATE v. STEPHENS
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admitted at the hearing also includes a signed statement from
Stephens admitting that he planned to meet the “girl” at the
grocery store for the purposes of oral sex and “whatever she
wanted.” Stephens was initially charged with conspiracy to
commit first degree sexual assault. Pursuant to a plea agree-
ment, Stephens pled no contest to an amended information
charging him with debauching a minor.
   Following the hearing, the district court issued an order in
which it found that as to the sexual assault charge concerning
C.H., the evidence of the 2003 events was admissible under
§ 27-414. The district court found that clear and convincing
evidence existed that Stephens conspired with an individual
whom he thought was a 14-year-old girl to engage in sexual
penetration. The district court further found that the evidence
of the prior offense was sufficiently similar to the present
offense to be probative of propensity to commit the offense
against C.H., that it was not too remote in time, and that the
evidence was not substantially more prejudicial than probative.
Therefore, the district court ruled that the prior crimes evidence
would be admissible under § 27-414. At trial, over an objec-
tion, the State offered and the district court received the above
referenced evidence under § 27-414 of a prior sexual offense
committed by Stephens.
   Following a bench trial, the district court issued its find-
ings and judgment from the bench. The district court stated
that based upon the lack of detail about actual penetration,
the court could not find that the act of penetration was proved
beyond a reasonable doubt. However, the district court found
that on the night Stephens entered C.H.’s bed, he engaged in
conduct which constituted a substantial step in a course of
conduct intended to culminate in first degree sexual assault.
The district court based this finding upon the testimony of
C.H., the statements made to Desiree by Stephens, and the
§ 27-414 evidence. The district court then found Stephens
guilty of attempted sexual assault of a child in the first
degree. At sentencing, the district court sentenced Stephens
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                       STATE v. STEPHENS
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to a period of incarceration of 15 to 18 years. Stephens
appeals here.
                 ASSIGNMENTS OF ERROR
  Stephens argues that the district court erred by (1) allowing
§ 27-414 evidence and (2) finding him guilty because there
was insufficient evidence to support his conviction.
                    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. State v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018).
Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, an appel-
late court reviews the admissibility of evidence for an abuse of
discretion. Id.
   [3] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Mora, 298 Neb. 185, 903
N.W.2d 244 (2017).
                          ANALYSIS
                       § 27-414 Evidence
   Stephens argues that the district court erred in admitting
and considering evidence under § 27-414. Stephens argues
that his prior conviction did not involve physical contact with
any victim and was therefore too dissimilar to the alleged
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                       STATE v. STEPHENS
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crime in this matter. Additionally, Stephens argues that the
prior conviction was too remote in time to be admitted under
§ 27-414.
   Section 27-414 provides in relevant 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 convinc-
     ing evidence 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.
        ....
        (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.
   In its written order on the State’s motion to introduce
§ 27-414 evidence, the district court determined that there
was clear and convincing evidence Stephens’ 2003 conduct
met the elements of conspiracy to commit sexual assault of
a child in the first degree. The district court determined that
although the conduct had occurred approximately 7 years
prior to the charged conduct in this matter, it was not too
remote in time to be excluded under § 27-414. The district
court found that the 2003 conduct was similar to the current
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                       STATE v. STEPHENS
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matter as it involved the intent to vaginally penetrate a minor
female, therefore demonstrating Stephens’ propensity to com-
mit the alleged crime. Finally, the district court found that
the probative value of the 2003 conduct outweighed the risk
of prejudice against Stephens and was therefore admissible
at trial.
   [4,5] Section 27-414 allows evidence of prior offenses of
sexual assault to prove propensity. State v. Valverde, 286 Neb.
280, 835 N.W.2d 732 (2013). Section 27-414(1) explicitly
provides that evidence of the accused’s commission of another
offense of sexual assault may be considered for its bearing on
any matter to which it is relevant. State v. Valverde, supra. No
exact limitation of time can be fixed as to when other con-
duct tending to prove intent to commit the offense charged is
remote under § 27-414(1). State v. Kibbee, 284 Neb. 72, 815
N.W.2d 872 (2012). 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, necessarily justify exclusion of the evidence. State v.
Valverde, supra.
   Based on our review of the record, we find that the district
court did not abuse its discretion by admitting and consider-
ing the § 27-414 evidence. Although there was no actual vic-
tim who was touched in the 2003 case, the similarity lies in
the intent displayed by Stephens. The 2003 conduct involved
Stephens’ conspiring with what he believed was a 14-year-old
girl to engage in sexual penetration. His intent was demon-
strated through his messages, his being apprehended with a
condom, and his own statements. In the present case, the evi-
dence also demonstrated a desire on Stephens’ part to penetrate
C.H. who was 10 years old at the time. Although the 2003
conduct occurred approximately 7 years before the charged
incident, this timeframe is well within the range acceptable
to prove propensity under § 27-414, particularly given the
similarity of intent. See State v. Kibbee, supra (citing to cases
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allowing admittance of prior bad acts in range of 6 to 27
years). Given the foregoing factors, we agree with the district
court that the probative value of the 2003 conduct outweighed
the risk of prejudice to Stephens. Therefore, we find the district
court did not err in receiving the evidence of the 2003 events
under § 27-414.
                     Sufficiency of Evidence
   Stephens argues that there is insufficient evidence to convict
him of attempted sexual assault of a child in the first degree.
He argues that the district court properly discounted C.H.’s
testimony, but improperly relied on the § 27-414 evidence and
Desiree’s testimony regarding his alleged statements.
   [6,7] Nebraska law provides that a person commits sexual
assault of a child in the first degree when he or she subjects
another person under 12 years of age to sexual penetration and
the actor is at least 19 years of age or older. Neb. Rev. Stat.
§ 28-319.01 (Reissue 2016). A defendant’s conduct rises to
criminal attempt if he or she intentionally engages in conduct
which, under the circumstances as he or she believes them
to be, constitutes a substantial step in a course of conduct
intended to culminate in his or her commission of the crime.
State v. Babbitt, 277 Neb. 327, 762 N.W.2d 58 (2009). Conduct
shall not be considered a substantial step unless it is strongly
corroborative of the defendant’s criminal intent. See Neb. Rev.
Stat. § 28-201 (Cum. Supp. 2017). Whether a defendant’s con-
duct constitutes a substantial step toward the commission of
a particular crime and is an attempt is generally a question of
fact. State v. Babbitt, supra.
   [8,9] Attempted first degree sexual assault on a child is a
lesser-included offense of first degree sexual assault on a child.
See State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).
A finder of fact may convict of the lesser-included offense if
it finds that the act of penetration was not proved beyond a
reasonable doubt but also finds that a defendant intentionally
engaged in conduct which, under the circumstances as the
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defendant believed them to be, constituted a substantial step in
a course of conduct intended to culminate in first degree sexual
assault. See id.
   Stephens argues that the district court erred in finding suf-
ficient evidence to convict him of attempted sexual assault of
a child in the first degree. Stephens contends that because the
court found that the State failed to prove penetration, it was
necessarily discounting C.H.’s testimony. He then argues that
either there was a sexual assault or there was not. However,
the district court explicitly gave credit to the testimony of
C.H. and cited it in conjunction with the testimony of Desiree
regarding Stephens’ account of the event and Stephens’ pro-
pensity to seek out underage females for sexual gratification
in the past.
   When applying our standard of review, we must view the
evidence in the light most favorable to the prosecution. Having
done so, we find that there was sufficient evidence adduced
to support his conviction. C.H. testified to events preced-
ing the alleged penetration that can be viewed as grooming
behaviors. These events showed a pattern of behavior wherein
Stephens progressively engaged in acts that indicated a sexual
interest in C.H. We note that C.H. testified that she was cer-
tain that Stephens penetrated her. However, although she was
steadfast that she felt pain, burning, and discomfort from
Stephens’ actions, she provided alternative theories over time
as to whether the penetration was accomplished digitally or
with Stephens’ penis. She also stated that at age 10, she did not
understand exactly what was going on. Her testimony demon-
strated that since this incident, she had talked with Desiree and
had subsequent experiences which clarified in her mind what
had happened. On this record, the district court found that the
evidence failed to sufficiently support a finding that Stephens
actually penetrated C.H. However, it still found that Stephens
took a substantial step toward doing so.
   We find that a rational trier of fact could reach this con-
clusion. Much of the district court’s analysis is based on its
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assessment of the credibility of the testimony. The district
court credited most of the testimony of C.H., particularly those
portions that were at least in part corroborated through other
testimony or evidence. The district court stopped short of cred-
iting the testimony of C.H. regarding penetration. However,
credibility determinations are for the trier of fact. We will not
and do not pass on the credibility of the witnesses. State v.
Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017); State v. Luff,
18 Neb. App. 422, 783 N.W.2d 625 (2010). Therefore, we find
that viewing the evidence in the light most favorable to the
State, a rational finder of fact could have found the essential
elements of attempted sexual assault of a child in the first
degree beyond a reasonable doubt.
                         CONCLUSION
   We find that the district court did not abuse its discretion by
receiving evidence under § 27-414. We further find that there
was sufficient evidence to support Stephens’ conviction.
                                                       A ffirmed.
