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                                                        - 469 -
                             Nebraska Court of Appeals Advance Sheets
                                  28 Nebraska Appellate Reports
                                                 STATE v. CRAMER
                                               Cite as 28 Neb. App. 469




                                        State of Nebraska, appellee,
                                          v. St. Thomas F. Cramer,
                                                  appellant.
                                                    ___ N.W.2d ___

                                          Filed June 2, 2020.     No. A-19-572.

                 1. 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.
                 2. Trial: Rules of Evidence. A trial court exercises its discretion in deter-
                    mining whether evidence is relevant and whether its prejudicial effect
                    substantially outweighs its probative value.
                 3. Judgments: Words and Phrases. An abuse of discretion occurs when a
                    trial court’s decision is based upon reasons that are untenable or unrea-
                    sonable or if its action is clearly against justice or conscience, reason,
                    and evidence.
                 4. Rules of Evidence. Evidence that is admissible may be excluded under
                    Neb. Rev. Stat. § 27-403 (Reissue 2016) if its probative value is substan-
                    tially outweighed by the danger of unfair prejudice.
                 5. Evidence. The probative value of evidence involves a measurement of
                    the degree to which the evidence persuades the trier of fact that the par-
                    ticular fact exists and the distance of the fact from the ultimate issue of
                    the case.
                 6. ____. Most, if not all, evidence offered by a party is calculated to be
                    prejudicial to the opposing party.
                 7. Trial: Evidence. Balancing the probative value of evidence against the
                    danger of unfair prejudice is within the discretion of the trial court.
                 8. Statutes. Basic principles of statutory interpretation require a court to
                    give statutory language its plain and ordinary meaning.
                 9. ____. Basic principles of statutory interpretation prohibit a court from
                    reading a meaning into a statute that is not there or reading anything
                    direct and plain out of a statute.
                               - 470 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                         STATE v. CRAMER
                       Cite as 28 Neb. App. 469

  Appeal from the District Court for Hall County: Mark J.
Young, Judge. Affirmed.
  Mark Porto, of Porto Law Office, for appellant.
  Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
  Moore, Chief Judge, and Riedmann and Welch, Judges.
  Riedmann, Judge.
                     INTRODUCTION
   St. Thomas F. Cramer appeals his convictions in the district
court for Hall County of two counts of first degree sexual
assault. Finding no merit to the arguments raised on appeal,
we affirm.
                       BACKGROUND
   Cramer was charged with three counts of first degree sexual
assault under Neb. Rev. Stat. § 28-319(1) (Reissue 2016). The
operative information alleged that on or between April 1 and
August 31, 2017, Cramer subjected M.D. to sexual penetration
without the consent of the victim in violation of § 28-319(1)(a)
or being a person of 19 years of age or older, subjected a per-
son of less than 16 years of age, but at least 12 years of age, to
sexual penetration in violation of § 28-319(1)(c).
   Prior to trial, Cramer filed a motion in limine seeking,
in part, to exclude from evidence at trial an email exchange
between Cramer and M.D. from June 2017. He argued that any
relevance the emails may have was substantially outweighed
by the danger of unfair prejudice and that therefore, they
should be excluded from evidence pursuant to Neb. Rev. Stat.
§ 27-403 (Reissue 2016). After holding a hearing, the district
court reserved ruling on the motion until it could hear the evi-
dence presented at trial.
   At trial, the State elicited evidence that M.D. was born
in November 2003 and that Cramer was born in September
1996. The evidence established that Cramer was distantly
                              - 471 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                        STATE v. CRAMER
                      Cite as 28 Neb. App. 469

related to M.D. through a prior marriage of his father’s and
that Cramer played a role similar to that of an uncle to M.D.
M.D. testified and described three specific instances where
Cramer subjected her to sexual penetration against her will at
her residence located in Hall County, Nebraska.
   During M.D.’s testimony, she identified the emails between
her and Cramer from June 2017. The email exchange begins in
the afternoon of June 28 and includes numerous messages back
and forth between Cramer and M.D., concluding around 3 a.m.
on June 30. The messages portray that Cramer and M.D. have
a friendly relationship and occur while Cramer was driving
from Iowa to M.D.’s house in Nebraska. According to the mes-
sages, Cramer was planning to go to M.D.’s bedroom when he
arrived at her house, and they were waiting for her stepfather
to go to bed. M.D. testified that Cramer did go to her bedroom
at that time, which was when the third sexual assault occurred.
When the State offered the emails into evidence, Cramer
objected. The court excused the jury so the matter could be
addressed outside its presence.
   Cramer noted that the evidence that had been presented
at trial indicated that he had subjected M.D. to sexual pen-
etration without her consent and that she had not willingly
participated. He argued that the emails were inconsistent
with evidence of forced intercourse (in that they could be
interpreted that any interaction was consensual); thus, there
was a substantial risk that the jury would read into the emails
exactly the opposite of M.D.’s version of events. He therefore
believed that the risk of undue prejudice far outweighed the
relevance. The State argued that the emails were relevant to
the charges and noted that Cramer had been charged under
both § 28-319(1)(a), sexual penetration without M.D.’s con-
sent, and § 28-319(1)(c), penetration when Cramer was 19
years of age or older and M.D. was at least 12 years of age but
less than 16 years of age.
   The court observed that the State had charged both pen-
etration without consent and what is commonly referred to
                              - 472 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                        STATE v. CRAMER
                      Cite as 28 Neb. App. 469

as “statutory rape.” It found that the emails were material
and relevant and that their relevance outweighed any undue
prejudice. The court first reasoned that the State could offer
evidence as to either of the two theories it charged and that
the emails were relevant to the statutory rape charge. In addi-
tion, the court explained that although the emails would tend
to suggest M.D. voluntarily let Cramer into her bedroom, the
State was permitted to offer evidence that would corroborate
that something occurred between the two of them in the bed-
room whether it was voluntary or not; in other words, although
M.D. may have allowed Cramer into her bedroom voluntarily,
that does not mean she voluntarily participated in the sexual
intercourse she claimed occurred there. The court therefore
overruled Cramer’s objection.
   Cramer testified in his own defense and denied engaging in
any sexual acts with M.D. He claimed that he arranged to go
to M.D.’s room late at night so they could privately discuss
concerns she had about her stepfather.
   The jury ultimately found Cramer guilty of two of the
charges. He was sentenced to 10 to 15 years’ imprisonment
for each offense with the terms to run concurrently. Cramer
appeals.
                 ASSIGNMENT OF ERROR
   Cramer assigns that the district court abused its discretion
in admitting the email correspondence into evidence over his
objection pursuant to § 27-403.
                  STANDARD OF REVIEW
   [1-3] Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
we review the admissibility of evidence for an abuse of dis-
cretion. State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d
711 (2019). A trial court exercises its discretion in determin-
ing whether evidence is relevant and whether its prejudi-
cial effect substantially outweighs its probative value. Id. An
abuse of discretion occurs when a trial court’s decision is
                              - 473 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                        STATE v. CRAMER
                      Cite as 28 Neb. App. 469

based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Id.

                           ANALYSIS
   Cramer argues that the district court abused its discretion in
overruling his objection to the emails and admitting them into
evidence at trial. He claims that the emails were unfairly preju-
dicial and should have been excluded under § 27-403.
   [4] Although relevant, evidence may be excluded if its pro-
bative value is substantially outweighed by the danger of unfair
prejudice. § 27-403. As the rule plainly states, only when the
danger of unfair prejudice substantially outweighs the evi-
dence’s probative value does § 27-403 counsel exclusion, and
we review the decision only for an abuse of discretion. State v.
Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019).
   [5-7] The probative value of evidence involves a measure-
ment of the degree to which the evidence persuades the trier
of fact that the particular fact exists and the distance of the
fact from the ultimate issue of the case. Id. Most, if not all,
evidence offered by a party is calculated to be prejudicial
to the opposing party. Id. Only evidence tending to suggest
a decision on an improper basis is unfairly prejudicial. Id.
Balancing the probative value of evidence against the danger
of unfair prejudice is within the discretion of the trial court,
whose decision we will not reverse unless there is an abuse of
discretion. Id.
   In this case, Cramer argues that the emails were unfairly
prejudicial because they undermined the notion that he sub-
jected M.D. to sexual penetration without consent under
§ 28-319(1)(a) and invited the jury to infer that he and M.D.
engaged in sexual intercourse that, although consensual, nev-
ertheless was a crime under § 28-319(1)(c). He claims that
penetration without consent in violation of § 28-319(1)(a) was
the sole theory the State presented at trial and that because the
emails were the only evidence presented that would support a
                               - 474 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                         STATE v. CRAMER
                       Cite as 28 Neb. App. 469

conviction under § 28-319(1)(c), they were unfairly prejudi-
cial. We disagree.
   As relevant here, § 28-319(1) provides that any person who
subjects another person to sexual penetration (a) without the
consent of the victim or (c) when the actor is 19 years of age
or older and the victim is at least 12 years of age but less than
16 years of age is guilty of sexual assault in the first degree. In
all three counts in the operative information, the State charged
Cramer with violating § 28-319(1)(a) or § 28-319(1)(c), and
it proceeded to trial based on the theories charged. In its pre-
liminary instructions to the jury, the court advised the jury of
the charges, including that Cramer subjected M.D. to sexual
penetration when he was 19 years of age or older and she was
at least 12 years of age but less than 16 years of age. In its
opening statement, the State informed the jury that it expected
the evidence to show that M.D. was 13 years old at the time of
the assaults and that Cramer was 20 years old. The State elic-
ited testimony from the investigating officer, M.D.’s mother,
and M.D. to support its statements regarding the parties’ ages.
Similarly, in its closing argument, the State argued that the evi-
dence showed M.D. was 13 years old and Cramer was 20 years
old when the sexual assaults occurred and that it is “illegal for
a 20-year-old to have sex with a 13-year-old, whether it was
consensual or not consensual.”
   Furthermore, jury instruction No. 3 instructed on the ele-
ments of the crimes and, for each charge, provided that the
elements of the charges are that Cramer subjected M.D. to
sexual penetration when he was 19 years of age or older
and when M.D. was at least 12 years of age but less than 16
years of age or that Cramer subjected M.D. to sexual penetra-
tion without her consent. Cramer made no objection to the
jury instruction.
   Thus, contrary to Cramer’s argument, the State’s theory
of the case included both § 28-319(1)(a) and § 28-319(1)(c)
and it presented evidence at trial in support of both charges.
As such, any evidence that would tend to show that Cramer
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                        STATE v. CRAMER
                      Cite as 28 Neb. App. 469

subjected M.D. to sexual penetration without her consent or
that he subjected her to sexual penetration when he was 20
years old and she was 13 years old would be relevant and not
unfairly prejudicial.
   Cramer also argues that the emails were unfairly prejudicial
because they were the only evidence that would support a con-
viction under § 28-319(1)(c), which he claims contemplates
penetration with the victim’s consent but for the fact that the
victim is not old enough to provide legally recognized con-
sent. He argues that “the Legislature has clearly distinguished
between those circumstances in which a minor who is unable
to provide legally-recognized consent nevertheless engages in
intercourse willingly” (§ 28-319(1)(c)) versus those situations
in which the victim is subjected to penetration without his or
her consent (§ 28-319(1)(a)). Brief for appellant at 11. For sup-
port, he directs our attention to State v. Valdez, No. A-15-818,
2016 WL 1358899 (Neb. App. Apr. 5, 2016) (selected for
posting to court website). Cramer’s citation to Valdez violates
Neb. Ct. R. App. P. § 2-102(E)(4) (rev. 2015), which states
that opinions not designated for permanent publication “may
be cited only when such case is related, by identity between
the parties or the causes of action, to the case then before the
court.” Therefore, we address his argument without reference
to State v. Valdez, supra.
   [8,9] To the extent Cramer argues that a conviction under
§ 28-319(1)(a) is inconsistent with a conviction under
§ 28-319(1)(c), we disagree. Consent is not relevant to a charge
under § 28-319(1)(c) based on the plain language of the statute.
Our basic principles of statutory interpretation require us to
give statutory language its plain and ordinary meaning. State
v. Schmaltz, 304 Neb. 74, 933 N.W.2d 435 (2019). Those same
principles prohibit us from reading a meaning into a statute
that is not there or reading anything direct and plain out of a
statute. Id.
   As noted above, § 28-319(1)(c) provides that any person
who subjects another person to sexual penetration when the
                              - 476 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                        STATE v. CRAMER
                      Cite as 28 Neb. App. 469

actor is 19 years of age or older and the victim is at least 12
years of age but less than 16 years of age is guilty of sexual
assault in the first degree. The plain language of this statute
requires simply that the State prove that the defendant sub-
jected the victim to sexual penetration and that the ages of
the defendant and the victim fit within the statutory ranges.
This subsection of § 28-319(1) says nothing about the con-
sent or lack thereof of the victim, and the basic principles of
statutory interpretation prohibit us from reading a meaning into
the statute.
   Moreover, in a previous case where the defendant was
convicted of violating § 28-319(1)(c), the Nebraska Supreme
Court stated that neither consent nor force was an element
of the crime charged. See State v. Vicars, 207 Neb. 325, 299
N.W.2d 421 (1980). As such, any willingness on the part of the
victim is irrelevant to a determination of whether a defendant
violated § 28-319(1)(c). Accordingly, a jury could find that
conduct satisfies both § 28-319(1)(a) and § 28-319(1)(c) upon
sufficient proof that sexual penetration occurred without the
consent of the victim and that the requisite age requirements
were satisfied.
   It logically follows, therefore, that M.D.’s testimony that
all penetration Cramer subjected her to was forced upon
her does not negate a finding that Cramer also violated
§ 28-319(1)(c). The State adduced evidence from M.D. that
Cramer subjected her to sexual penetration and also elicited
evidence of the ages of Cramer and M.D. at the relevant
times. Consequently, the emails between Cramer and M.D.,
even if they tended to show a friendly relationship between
the two, were not the only evidence presented in support of
§ 28-319(1)(c), were relevant to the theories presented at
trial, and were not unfairly prejudicial. Furthermore, to the
extent that Cramer argues that the receipt of the emails was
contrary to a charge of penetration without consent because
they were of a “somewhat flirtatious nature,” brief for appel-
lant at 15, we reiterate that Cramer was charged under both
                               - 477 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                         STATE v. CRAMER
                       Cite as 28 Neb. App. 469

§ 28-319(1)(a) and § 28-319(1)(c); therefore, regardless of
whether M.D. was a willing participant (which she denied),
the emails were relevant and not unfairly prejudicial. We also
point out that M.D. was questioned regarding the content of
the emails and explained that she felt compelled to be “nice”
or he “would make it more than one time a day, make it more
rough,” which would further support a determination that pen-
etration was without consent.
   As a result, the district court did not abuse its discretion in
overruling Cramer’s objection and admitting the emails into
evidence at trial.
                       CONCLUSION
   We find no abuse of discretion in the district court’s deci-
sion to allow the emails between Cramer and M.D. into evi-
dence at trial over Cramer’s objection. Cramer’s convictions
and sentences are therefore affirmed.
                                                   Affirmed.
