Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/30/2024 09:11 AM CDT
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. MOORE
Cite as 317 Neb. 493
State of Nebraska, appellee, v.
Gregory Moore, appellant.
___ N.W.3d ___
Filed August 30, 2024. No. S-23-630.
1. Rules of Evidence: Other Acts. Whether evidence is admissible for any
proper purpose under the rule governing admissibility of evidence of
other crimes, wrongs, or acts rests within the discretion of the trial court.
2. ____: ____. An appellate court will review for abuse of discretion a
trial court’s evidentiary rulings on the admissibility of evidence of other
crimes, wrongs, or acts under Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Cum. Supp. 2022).
3. Trial: Rules of Evidence. A trial court exercises its discretion in determining whether evidence is relevant and whether its probative value is
outweighed by its prejudicial effect.
4. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
5. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Cum. Supp. 2022), is a rule of inclusion, rather than exclusion; it permits evidence of other crimes, wrongs, or acts to be admissible for all purposes except to prove the character of a person in order
to show that such person acted in conformity with that character.
6. Rules of Evidence: Other Acts: Words and Phrases. Evidence that is
offered for a proper purpose under Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Cum. Supp. 2022), is often referred to as having “special”
or “independent” relevance, which means its relevance does not depend
upon its tendency to show propensity.
7. Criminal Law: Rules of Evidence: Other Acts: Proof. Under Neb.
Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2022), proof
of another distinct substantive act is admissible in a criminal prosecution when there is some legal connection between the two upon which
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. MOORE
Cite as 317 Neb. 493
it can be said that one tends to establish the other or some essential fact
in issue.
8. Evidence: Other Acts. Evidence of other crimes, wrongs, or acts may
be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in
determining the accused’s guilt of the offense in question.
9. Rules of Evidence: Other Acts: Appeal and Error. An appellate
court’s analysis under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Cum. Supp. 2022), generally considers (1) whether the evidence was
relevant for some purpose other than to prove the character of a person
to show that he or she acted in conformity therewith; (2) whether the
probative value of the evidence is substantially outweighed by its potential for unfair prejudice; and (3) whether the trial court, if requested,
instructed the jury to consider the evidence only for the limited purpose
for which it was admitted.
10. Rules of Evidence: Other Acts. The admissibility of prior bad act evidence under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum.
Supp. 2022), must be determined upon the facts of each case and is
within the discretion of the trial court.
11. Criminal Law: Words and Phrases. “Motive” is generally defined as
that which leads or tempts the mind to indulge in a criminal act.
12. Criminal Law: Intent: Proof. Even when motive is not an element of
the charged crime, courts have recognized it is nevertheless relevant
to the State’s proof of the intent element of the crime. Thus, motive
qualifies as a legitimate noncharacter theory because although character
carries a connotation of an enduring general propensity, motive is a situationally specific emotion.
13. Rules of Evidence: Other Acts: Proof. There is sometimes a fine
line between prior bad act evidence that goes only to the character or
propensity of an actor and prior bad act evidence that speaks to the
actor’s motive to commit a later crime. But evidence is not barred by
Neb. Evid. R. 404(2), Neb. Rev. Stat § 27-404(2) (Cum. Supp. 2022),
just because its relevance could be characterized in terms of propensity. Where the defendant’s motive is particular—in other words, is not
based in the defendant’s character—evidence of prior acts is nonetheless
admissible to show the defendant’s motive to commit the charged crime.
14. Intent: Words and Phrases. Intent is generally defined as the state of
mind accompanying an act.
15. Criminal Law: Other Acts: Intent: Proof. Where the intent of the
defendant is a matter in issue, it is generally allowable in criminal cases
to introduce evidence of other acts of a kindred character to establish a
defendant’s intent or motive in the particular case.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. MOORE
Cite as 317 Neb. 493
16. Intent: Words and Phrases. “Intentionally” means willfully or purposely, and not accidentally or involuntarily.
17. Criminal Law: Words and Phrases. The meaning of “knowledge” in
a criminal action can vary with the context in which it is used, but it
commonly imports a perception of facts requisite to make up a crime.
Knowledge, like intent, may be inferred from the circumstances surrounding the act.
18. Rules of Evidence. For purposes of Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Cum. Supp. 2022), analysis, absence of mistake or
accident is normally not at issue unless the defendant claims that his or
her conduct in committing the charged crime was an accident or mistake, or the defendant’s act could be criminal or innocent depending on
the defendant’s state of mind.
19. ____. Evidence that is admissible under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Cum. Supp. 2022), may nevertheless be excluded
under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016), if
its probative value is substantially outweighed by the danger of unfair
prejudice.
20. Evidence: Words and Phrases. The probative value of evidence
involves a measurement of the degree to which the evidence persuades
the trier of fact that the particular fact exists and the distance of the fact
from the ultimate issue of the case.
21. Evidence: Other Acts. Generally, prior bad act evidence has probative value when it is related in time, place, and/or circumstances to the
offense or offenses charged.
22. Words and Phrases. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.
23. Rules of Evidence. The fact that evidence is prejudicial is not enough
to require exclusion under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2016), because most, if not all, of the evidence a party offers is
calculated to be prejudicial to the opposing party; it is only the evidence
which has a tendency to suggest a decision on an improper basis that is
considered unfairly prejudicial under rule 403.
24. Evidence: Words and Phrases. Unfair prejudice speaks to the capacity
of some concededly relevant evidence to lure the fact finder into declaring guilt on a ground different from the proof specific to the offense
charged, commonly on an emotional basis.
Appeal from the District Court for Scotts Bluff County,
Andrea D. Miller, Judge. Affirmed.
Timothy S. Noerrlinger and Kelly S. Breen, of Nebraska
Commission on Public Advocacy, for appellant.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. MOORE
Cite as 317 Neb. 493
Michael T. Hilgers, Attorney General, and Teryn Blessin for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
After a jury found Gregory Moore guilty of second degree
murder and use of a weapon to commit a felony, he was sentenced to consecutive terms of imprisonment. In this direct
appeal, Moore argues the district court erred by admitting
evidence of a prior assault under Neb. Evid. R. 404(2),
Neb.
Rev. Stat. § 27-404(2) (Cum. Supp. 2022). We find no abuse
of discretion in the admission of this evidence and therefore
affirm the judgment of the district court.
I. FACTS
1. Background
In November 2020, Moore lived on the second floor of an
apartment building in Scottsbluff, Nebraska. The apartment
building was operated by a rehabilitation program, and access
to the second floor required a special access key. Visitors could
ring a doorbell to let second-floor residents know they were
there, and the resident would then go to the access door to
admit them.
On November 25, 2020, a tenant who lived in a first-floor
apartment of the building was awakened at 4 a.m. by noise
coming from Moore’s second-floor apartment. The tenant
heard “scuffling and rumbling around” in Moore’s apartment
and then heard a man’s voice “crying or just yelling ‘Stop,
stop, don’t do that.’” He testified the voice was “pretty loud”
and that it was not Moore speaking. The tenant did not contact
law enforcement at the time, but he reported the disturbance
to the apartment building manager later that morning. The
tenant also reported that Moore had been yelling out his apartment window.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. MOORE
Cite as 317 Neb. 493
The manager went to the apartment building, stood below
Moore’s window, and spoke with Moore for several minutes.
Moore told the manager he was out of his medication and said
he “[didn’t] want anybody in [his] apartment” and “he didn’t
like people pointing guns at him.” He also said that “he had the
inventory there.” When the manager asked Moore whether he
was alone in the apartment, Moore did not answer and walked
away from the window. The manager then called Moore’s
caseworker to report that Moore was out of his medication and
called the police to request a welfare check.
Shortly thereafter, a Scottsbluff police officer arrived at
Moore’s apartment. The officer’s interaction with Moore was
recorded on the officer’s body camera, and that video was
introduced into evidence at trial. Moore had blood on his
body and his clothing, injuries to his abdomen and back, and a
deep laceration on the webbing of his right hand between his
thumb and forefinger. The inside of Moore’s apartment was
in disarray, with the furniture overturned. There was a significant amount of blood on the walls and the area near the front
door, as well as several large pools of blood on the floor. The
body of 23-year-old Fernando Camacho-McBride was lying
face down on the living room floor, near a bloody, orange
kitchen knife.
When the officer said to Moore, “You’ve got some blood on
you,” Moore responded, “Yeah, illegal entry here . . . somebody illegal entry.” Moore also mentioned something about
“lookin’ my inventory over,” and he told the officer, while
gesturing toward his apartment, “this inventory is all paid for.
All the inventory is paid for.” Moore also told the officer, “I
don’t like illegal entry” and “I need my medicine.” The officer
testified that when he called his sergeant to report, “I have a
murder,” Moore was standing nearby and said, “Yeah,” and
gave a “two thumbs up” gesture.
Camacho-McBride was related to a previous tenant of the
apartment building who had recently moved out but still had
an access key. Camacho-McBride had visited that relative
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. MOORE
Cite as 317 Neb. 493
on several prior occasions without authorization, and the
manager had banned Camacho-McBride from the apartment
building. There was no sign of forced entry into Moore’s
apartment and no direct evidence of how Camacho-McBride
came to be inside Moore’s apartment. Two witnesses testified
that Moore would sometimes let them stay in his apartment
when they needed a safe place to sleep, and one of those witnesses testified that she left some things in Moore’s apartment
after such a stay, including an orange kitchen knife.
An autopsy revealed that Camacho-McBride bled to death
from a stab wound through his left upper arm that was approximately 5 inches deep and had severed an artery. Camacho-McBride also had injuries to his fingers and hand that were
consistent with defensive wounds and had bruising to his
face that was consistent with blunt force trauma. During the
autopsy, the medical examiner recovered the broken tip of
a knife blade from a stab wound on the victim’s skull. The
recovered knife tip appeared to match the orange kitchen knife
found in Moore’s apartment.
A toxicology report conducted on Camacho-McBride
showed he had amphetamine, THC, and 700 nanograms of
methamphetamine in his system at the time of his death. A witness testified that persons with over 200 nanograms of methamphetamine in their system “ha[ve] been reported” to exhibit
violent and irrational behavior. No guns or drugs were found in
Moore’s apartment.
2. Procedural History
In December 2020, the State charged Moore with second
degree murder and use of a deadly weapon other than a firearm
to commit a felony in violation of Neb. Rev. Stat. §§ 28-304
and 28-1205(1)(b) (Reissue 2016). Moore entered pleas of
not guilty.
(a) Rule 404 Motions
Pretrial, Moore filed a motion in limine seeking to exclude
evidence of a March 2020 assault on his former landlord,
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. MOORE
Cite as 317 Neb. 493
which also involved a knife. Moore argued the only purpose
of such evidence was to show his propensity for violence,
and he argued the admission of such evidence would violate
Neb. Evid. R. 403,
Neb. Rev. Stat. § 27-403 (Reissue 2016),
and rule 404(1). The State filed a pretrial motion seeking to
introduce evidence of the same prior assault pursuant to rule
404(2). The record suggests that Moore intended to claim
there was a sudden quarrel and he was acting in self-defense,
and the State argued that evidence of the March 2020 assault
was independently relevant to show Moore’s intent, motive,
knowledge, and absence of mistake or accident regarding the
charged offenses.
At the evidentiary hearing on these competing rule 404
motions, the State offered evidence relating to the events of
November 25, 2020, as described above. Additionally, the State
offered the following testimony about the March 2020 assault.
(b) March 2020 Assault
The victim of the March 2020 assault was Moore’s former
landlord, who testified that he and Moore had been friends for
about 30 years. At the time of the assault, Moore was renting a house from the landlord and had asked the landlord to
come over to fix a problem with a drain. When the landlord
arrived, Moore was standing outside, pacing. The landlord
asked, “‘What’s wrong with your drain?’” but Moore kept
pacing and “going on about the neighbor.” When the landlord suggested they go inside the house to look at the drain,
Moore “jumped” him without provocation and began beating
him. During the assault, Moore pulled out a knife, which the
landlord kicked away. The landlord eventually got away and
contacted law enforcement.
One of the officers who responded to the March 2020
assault testified that when he arrived on scene and asked
Moore what had happened, Moore kept repeating, “‘You need
to arrest [the landlord]. I was just protecting my inventory.’”
The officer asked Moore what he meant by “inventory,” but
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. MOORE
Cite as 317 Neb. 493
Moore said the officer “didn’t need to know that.” When
Moore was taken into custody, he advised police that he was
carrying a knife and “would use it to defend himself and
his property.”
(c) Rule 404 Ruling
In a written order, the trial court sustained the State’s motion
to introduce evidence of the March 2020 assault for a limited
purpose and overruled Moore’s motion in limine. The court
noted that the charged offenses and the prior assault occurred
within months of each other, that both involved knife attacks,
and that Moore made similar comments to police after both
incidents in which he blamed the victims and said he was just
protecting his “inventory.” Based on these similarities, the
court concluded that evidence of the March 2020 assault was
independently relevant and admissible for the limited purposes
of proving Moore’s motive, intent, knowledge, and absence of
mistake or accident regarding the charged offenses. The court’s
order also expressly found that the probative value of the evidence did not outweigh the danger of unfair prejudice. The
order stated that an appropriate limiting instruction would be
given at trial, and it emphasized that the ruling was preliminary
in nature and the parties could raise the matter again at trial if
they deemed it appropriate.
3. Jury Trial
The matter proceeded to a jury trial. Sixteen witnesses testified over the course of 4 days, and multiple exhibits were
received. Moore did not testify.
When the State presented evidence about the prior assault
in March 2020, Moore renewed his rule 403 and rule 404
objections. The court overruled those objections but gave a
limiting instruction, advising the jury that the evidence was
being admitted “for a limited purpose to help you decide
whether [Moore] had the intent, motive, knowledge, and
absence of mistake or accident for the crime charged on
November 25, 2020. You should consider that evidence for
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. MOORE
Cite as 317 Neb. 493
these limited purposes only.” No party objected to the limiting
instruction, and no alternative instruction was requested.
In addition to the evidence already described, Camacho-McBride’s girlfriend testified that if he was drinking, she
did not allow him to come to her home because she did not
want him around her children while intoxicated. Similarly,
Camacho-McBride’s father testified that he did not allow
Camacho-McBride to stay at his house while intoxicated. The
father testified that Camacho-McBride had recently been abusing alcohol and methamphetamine, and the father assumed
Camacho-McBride would look for a place to stay for the night
if he was intoxicated. The father also testified that Camacho-McBride was a “big boy” who had been in several fights and
knew how to defend himself, if provoked. Other trial evidence
established that Camacho-McBride was 5 foot 11 inches tall
and weighed 238 pounds, while Moore was approximately 6
foot 2 inches tall and weighed 300 pounds.
(a) Jury Instructions
Regarding the charge of second degree murder, the jury was
instructed that the State had the burden to prove each of the
following elements beyond a reasonable doubt:
1. That [Moore] killed [Camacho-McBride]; and
2. That [Moore] did so intentionally, but without premeditation; and
3. That [Moore] did so without the provocation of a
sudden quarrel; and
4. That [Moore] was not acting in self-defense; and
5. That [Moore] did so on or about November 25,
2020, in Scotts Bluff County, Nebraska.
The jury was also instructed on the lesser-included offense of
manslaughter. The instructions defined “intentionally” to mean
“willfully or purposefully, and not accidentally or involuntarily.” “Sudden quarrel” was defined as follows:
Sudden quarrel is a legally recognized and sufficient
provocation which causes a reasonable person to lose
normal self control. It does not necessarily mean an
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. MOORE
Cite as 317 Neb. 493
exchange of angry words or an altercation contemporaneous with an unlawful killing and does not require
a physical struggle or other combative corporal contact between the defendant and the victim. It is not the
provocation alone that reduces the degree of the crime,
but, rather, the sudden happening or occurrence of the
provocation so as to render the mind incapable of reflection and obscure the reason so that the elements of first
degree or second degree murder are absent. The question is whether there existed reasonable and adequate
provocation to excite one’s passion and obscure and
disturb one’s power of reasoning to the extent that one
acted rashly and from passion, without due deliberation
and reflection, rather than from judgment. The test is an
objective one. Qualities peculiar to the defendant which
render him or her particularly excitable, such as intoxication, are not considered.
And the jury was instructed that Moore acted in self-defense if:
(1) [Camacho-McBride] threatened death or serious
bodily harm to [Moore];
(2) [Moore] did not provoke any such use of force
against him with the intent of using deadly force in
response; and
(3) Under the circumstances as they existed at the time,
[Moore] reasonably believed that his use of deadly force
was immediately necessary to protect himself against
death and/or serious bodily harm.
The fact that [Moore] may have been wrong in estimating the danger does not matter so long as there was
a reasonable basis for what he believed and he acted reasonably in response to that belief.
There were no objections to any of the above instructions, and
no alternative instructions were offered by either party.
(b) Closing Arguments
In closing, the prosecutor argued that Moore intentionally killed Camacho-McBride and suggested there was no
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. MOORE
Cite as 317 Neb. 493
competent evidence that Moore was provoked, no competent
evidence that the killing occurred as the result of a sudden
quarrel, and no competent evidence that Moore was acting in
self-defense. The State’s theory was that Moore let Camacho-McBride into his apartment and, at some point, perceived
that Camacho-McBride was “looking at [his] inventory” or
“messing with his inventory” and decided to stab and kill
Camacho-McBride to “protect [that] inventory.” The prosecutor suggested the same motivation—to protect his “inventory”—had prompted Moore to assault his landlord without
provocation a few months earlier. The prosecutor argued that
whatever Moore meant by “inventory,” his motivation to protect it through the use of deadly force was not objectively reasonable and could not support a finding of sudden quarrel or
self-defense. The prosecutor thus argued it was “pretty clear”
that Moore was the aggressor and that Camacho-McBride was
trying to protect himself, pointing to evidence that Camacho-McBride had multiple defensive wounds and that during the
commotion, Camacho-McBride was heard screaming “‘[s]top,
stop.’” And the prosecutor suggested the stab wound to
Camacho-McBride’s skull likely explained the cut to Moore’s
right hand when the “knife came to a rapid stop and his hand
just went down on the blade.” The prosecutor argued there
was no evidence that Camacho-McBride entered Moore’s
apartment illegally, no evidence that Camacho-McBride was
armed, and no evidence to justify Moore’s use of deadly
force. He asked the jury to return verdicts finding Moore
guilty of second degree murder and use of a deadly weapon
to commit a felony.
Defense counsel, in closing argument, generally agreed
that Moore likely let Camacho-McBride into his apartment
because he needed a place to stay for the night. Defense
counsel suggested the two men eventually engaged in an
extended fight that damaged much of Moore’s apartment,
and it was defense counsel’s theory that Camacho-McBride
was the aggressor. To support that theory, counsel pointed
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. MOORE
Cite as 317 Neb. 493
to evidence that Camacho-McBride was “not a stranger to a
fight” and to evidence that the level of methamphetamine in
Camacho-McBride’s blood could have made him aggressive.
Defense counsel suggested the kitchen knife was already in the
room when a sudden quarrel broke out, and the fatal wound
occurred during a prolonged struggle over that knife. Defense
counsel argued the knife wounds to Camacho-McBride’s arm
and skull did not indicate an intent to kill, reasoning “there
were no wounds to the torso, the usual places where people
bury knives in the attempt to kill people.” Defense counsel
argued, based on the nature of the injuries and evidence of a
physical fight that included a “struggle over the knife,” that
the State had failed to prove the killing was intentional and
not accidental. But defense counsel also argued:
I’m not here to argue that this is a manslaughter. I’m here
to argue that [Moore] acted in self-defense, and, yes, it
elevated to deadly force after it began in a situation in
which he was entitled to protect his property; that there
was no reason for a fight to occur in that living room,
and that there is evidence that you can find that it was
[Camacho-McBride] that provoked the fight and was the
first aggressor because that is his history. He’s a scrapper.
He’s a guy that’s not afraid of a fight. He’s the guy who
likes to fight.
Defense counsel asked the jury to return a verdict of not guilty
on each count.
After deliberating for approximately 2 hours, the jury found
Moore guilty of second degree murder and of use of a weapon
to commit a felony. At a later sentencing hearing, the court
imposed a prison sentence of 80 years to life on the murder
conviction and a consecutive prison sentence of 10 to 20 years
on the use conviction. Moore filed this timely appeal, represented by his trial counsel.
II. ASSIGNMENT OF ERROR
Moore assigns that the district court erred in admitting evidence of the prior assault over his objection.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. MOORE
Cite as 317 Neb. 493
III. STANDARD OF REVIEW
[1] Whether evidence is admissible for any proper purpose
under the rule governing admissibility of evidence of other
crimes, wrongs, or acts rests within the discretion of the
trial court. 1
[2] An appellate court will review for abuse of discretion a
trial court’s evidentiary rulings on the admissibility of evidence
of other crimes, wrongs, or acts under rule 404(2). 2
[3] A trial court exercises its discretion in determining
whether evidence is relevant and whether its probative value is
outweighed by its prejudicial effect. 3
[4] A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition. 4
IV. ANALYSIS
On appeal, Moore argues the district court erred in admitting evidence of the prior March 2020 assault over his objections. He contends this evidence served no proper purpose
under rule 404(2) and was “classic” propensity evidence that
allowed the jury to infer he is “the type of person who acts
with violent intent when he is angry.” 5 He also argues that any
probative value of this evidence was substantially outweighed
by the danger of unfair prejudice.
To address these arguments, we first recall the legal principles that govern the admissibility of prior bad act evidence
under rule 404(2). Rule 404(2) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show
1
State v. Matteson, 313 Neb. 435,
985 N.W.2d 1 (2023).
2
See State v. Boswell,
316 Neb. 542,
5 N.W.3d 747 (2024).
3
State v. German,
316 Neb. 841,
7 N.W.3d 206 (2024).
4
Id.
5
Brief for appellant at 7 (internal quotation marks omitted).
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STATE V. MOORE
Cite as 317 Neb. 493
that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
[5,6] We have described rule 404(2) as a rule of inclusion,
rather than exclusion, holding that it permits evidence of other
crimes, wrongs, or acts to be admissible for all purposes except
to prove the character of a person in order to show that such
person acted in conformity with that character. 6 Evidence
that is offered for a proper purpose under rule 404(2) is often
referred to as having “special” or “independent” relevance,
which means its relevance does not depend upon its tendency
to show propensity. 7
[7,8] Under rule 404(2), proof of another distinct substantive act is admissible in a criminal prosecution when there is
some legal connection between the two upon which it can be
said that one tends to establish the other or some essential fact
in issue. 8 In other words, evidence of other crimes, wrongs, or
acts may be admitted where the evidence is so related in time,
place, and circumstances to the offense charged as to have
substantial probative value in determining the accused’s guilt
of the offense in question. 9
[9,10] An appellate court’s analysis under rule 404(2) generally considers (1) whether the evidence was relevant for
some purpose other than to prove the character of a person
to show that he or she acted in conformity therewith; (2)
whether the probative value of the evidence is substantially
6
See, State v. Wheeler, 314 Neb. 282,
989 N.W.2d 728 (2023); State v.
Kirksey,
254 Neb. 162,
575 N.W.2d 377 (1998); State v. White,
244
Neb. 577,
508 N.W.2d 554 (1993), overruled on other grounds, State v.
Burlison,
255 Neb. 190,
583 N.W.2d 31 (1998).
7
See, State v. Thomas,
303 Neb. 964,
932 N.W.2d 713 (2019); State v.
Oldson,
293 Neb. 718,
884 N.W.2d 10 (2016); State v. Almasaudi,
282
Neb. 162,
802 N.W.2d 110 (2011).
8
See
Wheeler, supra note 6.
9
See
White, supra note 6.
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Nebraska Supreme Court Advance Sheets
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STATE V. MOORE
Cite as 317 Neb. 493
outweighed by its potential for unfair prejudice; and (3)
whether the trial court, if requested, instructed the jury to
consider the evidence only for the limited purpose for which
it was admitted. 10 The admissibility of prior bad act evidence
under rule 404(2) must be determined upon the facts of each
case and is within the discretion of the trial court. 11
With these principles and analytical framework in mind,
we consider whether evidence of Moore’s prior assault on his
landlord was relevant for a purpose other than to show that
Moore had a propensity for violence.
1. Evidence Was Relevant for Purpose
Other Than Propensity
Moore was charged with second degree murder and use of a
weapon to commit a felony, both of which require intentional
conduct. 12 In defending against these charges, Moore argued
that he had no intent to kill, that the death occurred during a
sudden quarrel, and that he was acting in self-defense. 13 In its
rule 404(2) analysis, the trial court determined that evidence
of the March 2020 assault was relevant and admissible for the
limited purposes of proving Moore’s motive, intent, knowledge, and absence of mistake or accident in connection with
the charged crimes. The jury was instructed to consider the
evidence for those limited purposes only.
[11-13] In our rule 404(2) jurisprudence, we have generally
defined “motive” as that which leads or tempts the mind to
10
E.g., Boswell, supra note 2.
11
See
Thomas, supra note 7.
12
See §§ 28-304 and 28-1205(1)(b). See, also, State v. Tucker,
278 Neb. 935,
774 N.W.2d 753 (2009) (holding that purely unintentional crime cannot
form predicate offense for “use of a weapon” conviction; predicate crime
must be either specific or general intent crime).
13
See
Neb. Rev. Stat. § 28-1409 (Reissue 2016) (use of deadly force
justifiable if actor believes such is necessary to protect self against death
or serious bodily harm unless actor provided use of force against actor or
actor can safely retreat).
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indulge in a criminal act. 14 And even when motive is not an
element of the charged crime, we have recognized it is nevertheless relevant to the State’s proof of the intent element of
the crime. 15 Thus, motive qualifies as a legitimate noncharacter
theory because although character carries a connotation of an
enduring general propensity, motive is a situationally specific
emotion. 16 We have recognized there is sometimes a fine line
between prior bad act evidence that goes only to the character or propensity of an actor and prior bad act evidence that
speaks to the actor’s motive to commit a later crime. 17 But
evidence is not barred by rule 404(2) just because its relevance
could be characterized in terms of propensity. 18 Where the
defendant’s motive is “particular—in other words, is not based
in the defendant’s character—evidence of prior acts is nonetheless admissible to show the defendant’s motive to commit
the charged crime.” 19
[14-16] Intent is generally defined as “‘[t]he state of mind
accompanying an act.’” 20 And where the intent of the defend
ant is a matter in issue, it is generally allowable in criminal cases to introduce evidence of other acts of a kindred
character to establish a defendant’s intent or motive in the
particular case. 21 And, as the jury was instructed here, “intentionally” means willfully or purposely, and not accidentally or
involuntarily. 22
14
See,
Boswell, supra note 2;
Thomas, supra note 7.
15
See
id.
16
See
id.
17
See State v. Torres,
283 Neb. 142,
812 N.W.2d 213 (2012).
18
Id.
19
Id. at 159-60, 812 N.W.2d at 233.
20
Id. at 157, 812 N.W.2d at 231.
21
See State v. Pullens,
281 Neb. 828,
800 N.W.2d 202 (2011).
22
State v. Woolridge-Jones,
316 Neb. 500, 516,
5 N.W.3d 426, 437 (2024).
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[17] The meaning of “knowledge” in a criminal action
can vary with the context in which it is used, 23 but it commonly “imports a perception of facts requisite to make up [a]
crime.” 24 Knowledge, like intent, may be inferred from the
circumstances surrounding the act. 25
[18] For purposes of rule 404(2) analysis, absence of mistake
or accident is normally not at issue unless the defendant claims
that his or her conduct in committing the charged crime was an
accident or mistake, or the defendant’s act could be criminal or
innocent depending on the defendant’s state of mind. 26
To determine whether the State met its burden of proving
the material elements of second degree murder in this case,
the jury had to decide, among other things, whether the killing
was intentional or accidental, whether the killing was with or
without provocation, whether there was or was not a sudden
quarrel, and whether Moore was the aggressor or was acting
in self-defense. Given these material issues, we agree with the
district court that evidence of the circumstances surrounding
the March 2020 assault, and, in particular, Moore’s comments
to police about what motivated his conduct, was relevant for a
purpose other than propensity.
The March 2020 assault and the assault that resulted in
Camacho-McBride’s death occurred within approximately 8
months of one another, both assaults involved a knife, and
after both assaults, Moore explained his conduct to police by
blaming the victims and referencing the “inventory” inside
his residence. After the March 2020 assault, Moore said,
“‘You need to arrest [the landlord]. I was just protecting my
23
See R. D. Lowrance, Inc. v. Peterson,
185 Neb. 679,
178 N.W.2d 277
(1970).
24
Id. at 682,
178 N.W.2d at 279.
25
State v. Mills,
199 Neb. 295,
258 N.W.2d 628 (1977). Accord Almasaudi,
supra note 7.
26
See Almasaudi, supra note 7.
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inventory.’” Similarly, after the assault that killed Camacho-McBride, Moore told police there was an “illegal entry” and
someone was “lookin’ my inventory over,” adding, while gesturing toward his apartment, “this inventory is all paid for. All
the inventory is paid for.”
Although there is scant evidence about what Moore means
when he refers to his “inventory” or why he is willing to use
a deadly weapon to protect it when he knows people are coming into his home, evidence of Moore’s similar comments to
police after both assaults tends to suggest that his motivation
in both attacks was to protect his “inventory.” This particular
motivation is not based on Moore’s character, and it is relevant to deciding whether the killing of Camacho-McBride
was intentional or accidental. Moreover, evidence that the
March 2020 assault occurred suddenly and without provocation when the victim suggested they go inside the house is
relevant to whether the stabbing of Camacho-McBride inside
Moore’s apartment occurred with or without provocation,
whether there was or was not a sudden quarrel, and whether
Moore was the aggressor or was acting in self-defense. 27
In State v. Stewart, 28 we held that evidence of the defend
ant’s prior use of a knife during an altercation was admitted for the proper purpose of negating his assertion that the
victim accidentally came into contact with the knife used in
the charged crime. Similarly, evidence that Moore attacked
his landlord with a knife without any provocation 8 months
before the charged offense and evidence that he told officers
at the time he would use a knife to protect his inventory
tended to negate Moore’s assertion that the fatal knife injuries
inflicted on Camacho-McBride occurred accidentally.
27
See, e.g., State v. Freeman,
253 Neb. 385,
571 N.W.2d 276 (1997) (finding
no abuse of discretion in admitting evidence of prior attempted sexual
assault that was factually similar to charged crime for limited purpose of
proving plan, knowledge, and identity).
28
State v. Stewart,
219 Neb. 347,
363 N.W.2d 368 (1985).
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At trial, Moore argued not just that he lacked the requisite
intent to kill, but also that he was acting in self-defense so
that his actions were justified. The Eighth Circuit has held
that evidence of a prior bad act is admissible for a proper
purpose if it rebuts a claim of self-defense by showing the
absence of a mistake or accident. 29 Similarly, the rule in
Nebraska is that evidence of other crimes, wrongs, or acts
may be used to establish that the defendant’s actions were
accompanied by criminal intent and to refute an accused’s
claim of self-defense. 30
On this record, we conclude that evidence of the March
2020 assault was not offered solely to demonstrate Moore’s
character or propensity for violence, but, rather, was offered
for the proper purposes of showing Moore’s motive, intent,
knowledge, and absence of mistake or accident regarding the
charged crimes. There was no abuse of discretion in the district court’s decision to admit this evidence for those limited
purposes.
2. Probative Value Versus
Unfair Prejudice
[19-21] Evidence that is admissible under rule 404(2) may
nevertheless be excluded under rule 403 if its probative value
is substantially outweighed by the danger of unfair prejudice. 31 The probative value of evidence involves a measurement of the degree to which the evidence persuades the trier
of fact that the particular fact exists and the distance of the
fact from the ultimate issue of the case. 32 Generally, prior
bad act evidence has probative value when it is related in
29
See, U.S. v. Steele, 550 F.3d 693 (8th Cir. 2008); U.S. v. Haukaas,
172 F.3d
542 (8th Cir. 1999).
30
See
Stewart, supra note 28.
31
Boswell, supra note 2. See,
Matteson, supra note 1;
Stewart, supra note
28.
32
Boswell, supra note 2;
Thomas, supra note 7.
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time, place, and/or circumstances to the offense or offenses
charged. 33
[22-24] Unfair prejudice means an undue tendency to suggest a decision based on an improper basis. 34 The fact that
evidence is prejudicial is not enough to require exclusion
under rule 403 because most, if not all, of the evidence a party
offers is calculated to be prejudicial to the opposing party; it is
only the evidence which has a tendency to suggest a decision
on an improper basis that is considered unfairly prejudicial
under rule 403. 35 In other words, unfair prejudice speaks to
the capacity of some concededly relevant evidence to lure the
fact finder into declaring guilt on a ground different from the
proof specific to the offense charged, commonly on an emotional basis. 36
On this record, we see no abuse of discretion in the trial
court’s determination that the probative value of the March
2020 assault was high and was not substantially outweighed
by the danger of unfair prejudice, particularly in light of
the limiting instruction that accompanied the admission of
such evidence. When referencing evidence of the March 2020
assault at trial, the State limited its argument to those limited
purposes, and we see nothing in the record suggesting such
evidence had an undue tendency to suggest a decision on an
improper basis.
V. CONCLUSION
For the foregoing reasons, we find no abuse of discretion
in the district court’s decision to admit evidence of the March
2020 assault for the proper purposes of showing Moore’s
motive, intent, knowledge, and absence of mistake or accident
33
See State v. Sanchez, 257 Neb. 291,
597 N.W.2d 361 (1999).
34
Boswell, supra note 2;
Thomas, supra note 7.
35
Boswell, supra note 2. See
Thomas, supra note 7.
36
Oldson, supra note 7.
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regarding the charged crimes. The evidence was admissible
for each of those limited purposes, and its probative value
was not substantially outweighed by the danger of undue
prejudice, especially given the proper limiting instruction. We
therefore reject Moore’s assigned error and affirm his convictions and sentences.
Affirmed.
