State v. Embree, 987 N.W.2d 297

Background:

In March 2020, S.J. (born 2001) alleged she was sexually assaulted while sleeping at her father’s house; she reported waking to vaginal penetration and later went to a hospital for a SANE exam.
The SANE examiner collected swabs and S.J.’s blue shorts; laboratory testing showed male DNA mixtures on the interior waistband/crotch and spermatozoa on the mons pubis and crotch, including inconclusive minor male contributors.
The State charged Colin Embree with first degree sexual assault; at trial the State presented a former girlfriend, C.B., who testified about two prior uncharged sexual assaults by Embree; the court admitted that evidence after a § 27-414 hearing and § 27-403 balancing.
Defense objected to (1) admission of prior-acts evidence, (2) the victim S.J. not being sequestered, (3) admission of inconclusive DNA results, and (4) allegedly improper closing argument implying Embree was a DNA contributor; Embree also raised cumulative error and ineffective assistance claims.
The jury convicted Embree; the district court denied a new trial and sentenced him to 10–20 years; Embree appealed and the Court of Appeals affirmed.

Issues:

Issue	State's Argument	Embree's Argument	Held
Admission of C.B.’s prior sexual-assault testimony under § 27-414	State proved prior acts by clear and convincing evidence at a Rule 414 hearing; evidence probative of propensity and similarity	Testimony was not credible, exhibits lacked foundation, and acts were too dissimilar and remote to be admissible	Embree waived most objections by failing to object at trial; foundational objection to a group text was properly overruled — admission not an abuse of discretion
Sequestration of the victim (S.J.) under § 27-615	Victim is the complaining witness and essential to the State’s presentation; victim’s presence does not prejudice defendant	S.J.’s presence allowed her to tailor testimony and bolster credibility, violating defendant’s right to fair trial	Court permissibly found S.J. essential (Eynon/Miller); no prejudice shown; refusal to sequester was not an abuse of discretion
Admissibility of inconclusive DNA (minor/uninterpretable male contributors) under § 27-403	Presence of male DNA near genital area or on shorts is relevant to whether assault occurred as described; inconclusive profiles can be probative even if they do not identify defendant	Inconclusive minor-contributor DNA identifies no one and is therefore irrelevant and unduly prejudicial	Under Johnson/Wood framework, admission was proper: presence of male DNA was probative and not substantially outweighed by prejudice; court did not abuse discretion
Prosecutor’s closing argument implying Embree was a DNA source	Argument was a reasonable inference from evidence (victim identified only two possible male sources: Embree or Dominick)	Argument improperly implied guilt from inconclusive DNA and contradicted case law	Embree failed to preserve claim (no mistrial motion); reviewed for plain error and no plain error found — remarks were reasonable inferences

Key Cases Cited

State v. Johnson, 290 Neb. 862 (2015) (DNA results are irrelevant unless the State presents statistical evidence showing the defendant cannot be excluded as a potential source, absent circumstances justifying otherwise)
State v. Wood, 310 Neb. 391 (2021) (presence of male DNA near a female victim’s genital area is relevant to whether an alleged sexual assault occurred as described, even if profile is insufficient to identify a specific individual)
State v. Martinez, 306 Neb. 516 (2020) (a § 27-414 hearing ruling is analogous to an in limine ruling; failure to object at trial waives appellate review of admissibility)
State v. Valverde, 286 Neb. 280 (2013) (procedural guidance on bifurcating Rule 414 hearings and conducting § 27-403 balancing)
State v. Eynon, 197 Neb. 734 (1977) (holding the victim/complaining witness may be treated as an essential witness for sequestration purposes)
State ex rel. NSBA v. Miller, 258 Neb. 181 (1999) (further support for treating the complaining witness as essential in certain proceedings)