State v. Thomas, 932 N.W.2d 713

Background

Nathan M. Thomas, age 20, posted an online ad seeking oral sex; an undercover Nebraska State Patrol investigator posed as a 14‑year‑old “decoy” and exchanged texts arranging a meet; Thomas texted that he wanted to “eat you out.”
Thomas was arrested at the meeting location and his cell phone was seized and searched with his consent; the State charged two counts, including enticement by electronic communication device (§ 28‑833) (count 1).
The State sought admission under Neb. Evid. R. 404(2) of an unrelated, sexually explicit chat on Thomas’ phone with an actual 13‑year‑old using the handle “Wolfgirl”; the trial court admitted the Wolfgirl transcript (with images) for limited purposes (motive and absence of mistake) after finding foundation and giving a limiting instruction.
Thomas objected at trial on relevancy and undue prejudice grounds but did not press specific redaction arguments on appeal; he also testified that he disbelieved the decoy’s claimed age and would not have acted had he known she was under 16.
The jury convicted Thomas on both counts; on appeal he challenged (1) admission of the Wolfgirl rule 404 evidence (and its prejudicial effect) and (2) sufficiency of the evidence that his solicitation was “indecent, lewd, lascivious, or obscene.”

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Thomas)	Held
Admissibility under Neb. Evid. R. 404(2) of Wolfgirl chat	Evidence of prior sexually explicit chats with a minor is independently relevant to show motive (sexual gratification) and absence of mistake as to recipient’s age	Admission was improper propensity evidence and unfairly prejudicial; not relevant to elements of count 1	Court: Admissible for motive and absence of mistake; no abuse of discretion in admitting it for those limited purposes
Rule 403 balancing / redaction of images and volume of material	Probative value outweighed prejudice because of strong similarities (age admissions, persistence, requests for pictures) and limiting instruction given	Wolfgirl exhibit was cumulative, inflammatory (explicit images/text), and its prejudicial effect substantially outweighed probative value; redaction or truncation should have been required	Court: Trial court did not abuse discretion under Rule 403; evidence not unfairly prejudicial; redaction issue not preserved on appeal
Sufficiency: whether phrase “eat you out” is indecent/lewd/lascivious/obscene under § 28‑833	Context matters; solicitation of oral sex directed to a person believed to be 14 conjures repugnant sexual images and thus fits statutory phrase	Phrase standing alone insufficient as a matter of law to be indecent/lewd/lascivious/obscene	Court: Viewing evidence in light most favorable to prosecution, a rational juror could find the solicitation indecent/lewd/lascivious/obscene; conviction affirmed
Limiting instruction adequacy and jury confusion	Limiting instruction properly given before evidence and jury presumed to follow instructions	Jury likely confused by admission of unrelated 50‑page exhibit and may have convicted for improper reasons	Court: Instruction was given; Thomas did not challenge it on appeal; no reversible error found

Key Cases Cited

State v. Mueller, 301 Neb. 778 (Neb. 2018) (appellate standard for reviewing admission of other‑acts evidence)
State v. McGuire, 286 Neb. 494 (Neb. 2013) (other‑acts evidence admissible for non‑propensity purposes)
State v. Sanchez, 257 Neb. 291 (Neb. 1999) (limits on using other‑acts evidence to prove motive when it functions as propensity evidence)
State v. Trotter, 262 Neb. 443 (Neb. 2001) (prior abuse evidence and propensity concerns)
State v. Phelps, 241 Neb. 707 (Neb. 1992) (prior sexual acts probative of sexual motive in kidnapping prosecution)
State v. Payne‑McCoy, 284 Neb. 302 (Neb. 2012) (prior acts inadmissible where relevance is only to propensity)
State v. Torres, 283 Neb. 142 (Neb. 2012) (distinguishing propensity from independently relevant motive evidence)
U.S. v. Zahursky, 580 F.3d 515 (7th Cir. 2009) (prior chats probative of knowledge and absence of mistake regarding age)
U.S. v. Chambers, 642 F.3d 588 (7th Cir. 2011) (prior explicit chats admissible to show motive/intent in similar prosecutions)
State v. Kass, 281 Neb. 892 (Neb. 2011) (statutory phrase “indecent, lewd, lascivious, or obscene” is context‑based and interpreted via Kipf)
State v. Kipf, 234 Neb. 227 (Neb. 1990) (phrase means language that "conjures up repugnant sexual images")
State v. Oldson, 293 Neb. 718 (Neb. 2016) (danger of unfair prejudice from propensity evidence)
State v. Kirksey, 254 Neb. 162 (Neb. 1998) (framework for reviewing admission of other‑acts evidence under Rule 403/404)