State v. Thomas, 303 Neb. 964

Background

In Feb 2017 an undercover Nebraska State Patrol investigator (posing as a 14‑year‑old girl, the decoy) exchanged texts with Nathan M. Thomas and arranged a meeting; Thomas was arrested when he arrived.
Thomas was charged with two counts including enticement by electronic communication device under § 28‑833 (count 1). The conviction on count 1 is the principal issue on appeal.
Police seized Thomas’s cellphone and found a separate sexually explicit chat with a real 13‑year‑old using the username “Wolfgirl.” The State sought to admit that chat as other‑acts evidence under Neb. Evid. R. 404(2).
The district court admitted the Wolfgirl conversation (50 screen‑shot pages with explicit text and images) for limited purposes—motive and absence of mistake or accident—as to count 1 only, and gave a limiting instruction to the jury.
Thomas argued the Wolfgirl evidence was improper propensity evidence and unduly prejudicial under Neb. Evid. R. 403; he also argued the phrase “eating you out” was not, as a matter of law, lewd/indecent for § 28‑833. The jury convicted on both counts and Thomas appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of other‑acts evidence (Rule 404(2))	State: Wolfgirl chat shows motive and absence of mistake (predisposition to target minors)	Thomas: Evidence was propensity evidence and not relevant to elements of count 1	Court: Admissible — independently relevant to motive and absence of mistake; no abuse of discretion in admitting it
Rule 403 balancing / redaction of graphic content	State: Probative value (motive, absence of mistake) outweighs prejudice; limiting instruction given	Thomas: Entire exhibit was unduly prejudicial, cumulative; should have been redacted or limited further	Court: No abuse of discretion — probative value not substantially outweighed by unfair prejudice; redaction argument forfeited on appeal
Sufficiency: whether solicitation (“kissing and eating you out”) is "indecent, lewd, lascivious, or obscene" under § 28‑833	State: Context (adult addressing a purported 14‑year‑old) makes the language repugnant and thus falls within statute	Thomas: Phrase alone is not sufficiently lewd/obscene as a matter of law	Court: Sufficient — context of soliciting oral sex from someone believed to be 14 conjures repugnant sexual images; jury could find statutory language met
Preservation / plain error re: scope of admitted exhibit	State: Thomas did not specifically assign/redact on appeal; limits review	Thomas: Admission of the whole exhibit so prejudicial it warrants review for plain error	Court: Redaction not preserved on appeal; no plain‑error relief warranted; appellate review limited to assigned errors

Key Cases Cited

State v. Sanchez, 257 Neb. 291 (Neb. 1999) (limits on using other‑acts evidence to show motive where it amounts to propensity)
State v. Torres, 283 Neb. 142 (Neb. 2012) (distinguishing propensity from independently relevant motive evidence)
State v. Trotter, 262 Neb. 443 (Neb. 2001) (prior acts inadmissible where offered mainly to show propensity)
State v. Phelps, 241 Neb. 707 (Neb. 1992) (prior sexual acts with children admitted to show sexual motive)
State v. Payne‑McCoy, 284 Neb. 302 (Neb. 2012) (prior misconduct inadmissible where it merely shows likelihood to repeat conduct)
State v. Oldson, 293 Neb. 718 (Neb. 2016) (discussion of unfair prejudice from propensity evidence)
State v. Kass, 281 Neb. 892 (Neb. 2011) (statutory language “indecent, lewd, lascivious, or obscene” is context‑based; adopts Kipf line)
State v. Kipf, 234 Neb. 227 (Neb. 1990) (phrase construed as language that "conjures up repugnant sexual images")
U.S. v. Zahursky, 580 F.3d 515 (7th Cir. 2009) (prior chats probative of knowledge/absence of mistake and motive)
U.S. v. Chambers, 642 F.3d 588 (7th Cir. 2011) (admission of prior sexually explicit chats to show intent and motive not unduly prejudicial)