STATE OF NEBRASKA, APPELLEE, V. PAUL A. VALVERDE, APPELLANT.
No. S-12-444
Nebraska Supreme Court
July 19, 2013
286 Neb. 280
Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. - 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.
- Motions for Mistrial: Appeal and Error. The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion.
- Jury Instructions: Judgments: Appeal and Error. Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.
- Rules of Evidence: Sexual Assault: Other Acts.
Neb. Rev. Stat. § 27-414 (Cum. Supp. 2012) allows evidence of prior offenses of sexual assault to prove propensity. - _____: _____: _____.
Neb. Rev. Stat. § 27-414 (Cum. Supp. 2012) requires a hearing outside the presence of the jury before the court admits evidence of the accused‘s commission of another offense of sexual assault. - Rules of Evidence: Sexual Assault: Other Acts: Time.
Neb. Rev. Stat. § 27-414 (Cum. Supp. 2012) does not impose any timing requirement as to when the required hearing outside of the presence of the jury must be held. - Rules of Evidence: Other Acts: Time: Intent. The admissibility of evidence concerning other conduct must be determined upon the facts of each case, and no exact limitation of time can be fixed as to when other conduct tending to prove intent to commit the offense charged is too remote.
- Rules of Evidence: Other Acts: Time. The question whether evidence of other conduct is too remote in time is largely within the discretion of the trial court. While remoteness in time may weaken the value of the evidence, such remoteness does not, in and of itself, necessarily justify exclusion of the evidence.
- Rules of Evidence: Other Acts. Under the plain language of
Neb. Rev. Stat. § 27-414(3)(c) (Cum. Supp. 2012), the court is to compare the similarity of the other acts to the crime charged. - Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly granted in a criminal case where an event occurs during the course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.
- Motions for Mistrial: Proof. A defendant faces a higher threshold than merely showing a possibility of prejudice when attempting to prove error predicated on the failure to grant a mistrial.
Jury Instructions. In the absence of a request for a limiting instruction, there is no reversible error in a court‘s failure to give a limiting instruction. - Rules of Evidence: Sexual Assault: Other Acts. Evidence of another offense or offenses of sexual assault, if admissible in a prosecution for an offense of sexual assault, is not received for a limited purpose but may be considered on any matter to which it is relevant.
- Appeal and Error. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground.
- Jury Instructions. Whenever an applicable instruction may be taken from the Nebraska Jury Instructions, that instruction is the one which should usually be given to the jury in a criminal case.
- Jury Instructions: Appeal and Error. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.
- Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court‘s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court‘s refusal to give the tendered instruction.
Appeal from the District Court for Sarpy County: MAX KELCH, Judge. Affirmed.
Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, for appellant.
Jon Bruning, Attorney General, and James D. Smith for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER-LERMAN, and CASSEL, JJ.
CASSEL, J.
I. INTRODUCTION
In this appeal from convictions and sentences for child abuse and sexual assault, we primarily address the district court‘s procedures regarding evidence of prior sexual offenses under
II. BACKGROUND
Paul A. Valverde, born in February 1969, is the father of H.L. and the uncle of B.V., both of whom were born in March 1997. The State charged Valverde with two counts of third degree sexual assault of a child, second offense; four counts of child abuse; and four counts of first degree sexual assault of a child, second offense, relating to acts committed against H.L. and B.V. at several locations in Sarpy County, Nebraska, during periods of time between June 1, 2008, and December 10, 2010. The State later moved to dismiss one count of first degree sexual assault of a child, second offense. Because the issues in this appeal are largely limited to the district court‘s proceedings under
1. FIRST HEARING
In April 2011, the State moved to admit evidence of Valverde‘s commission of another act of sexual assault under
During a hearing on the State‘s motion, evidence established that E.M., born in June 1979, met Valverde in 1993, when she was 14 years old and he was 24 years old. While E.M. was at Valverde‘s apartment during the summer of 1993, Valverde
On June 28, 2011, the district court entered an order, finding by clear and convincing evidence that Valverde committed multiple sexual assaults upon E.M. under
2. SECOND HEARING
In October 2011, the State filed another motion seeking to admit evidence under
During a hearing on the motion, H.A., born in November 1981, testified that she agreed to babysit a child of Valverde‘s
On November 23, 2011, the district court entered an order granting the State‘s motion. The court found that Valverde committed a sexual assault upon H.A. pursuant to
although the details of the acts that underlie the present charges were not offered, the present charges themselves are of a similar nature to the prior sexual assaults. Therefore, the prior sexual assault committed by [Valverde] upon [H.A.] is found at this point in this opinion to be both probative and relevant to the present crimes charged.
(Emphasis in original.) The court stated that H.A. would be allowed to testify at trial, subject to certain restrictions. Due to concerns about cumulative evidence, the court limited the State, in its case in chief, to either calling H.A. to testify or offering Valverde‘s prior conviction.
The district court compared a pretrial motion to allow evidence under
After the evidence has been presented as to the alleged sexual acts that are contained within the present Information, then, the State shall notify the Court and [Valverde], outside of the presence of the jury, that it intends to call as a witness either [H.A.], [E.M.,] and/or [T.K.] This procedure allows the Court to make a further determination, outside of the presence of the jury, if called upon to render such a ruling, the admissibility of any evidence pursuant to . . . §27-414.
The court further stated, “Although, only advisory to the parties, in the event [H.A.], [E.M.,] and/or [T.K.] do testify at trial, this Court shall issue a cautionary instruction as to their testimony.”
3. TRIAL
A jury trial commenced, and consistent with the district court‘s order, the State did not allude to assaults on the prior victims in its opening statement. The State called B.V. as its first witness. B.V. testified that on July 4, 2009, he went with his family to his grandmother‘s house; Valverde and H.L. were also present. That evening, Valverde told B.V. to “check and see if [B.V.] had sperm.” B.V. “checked” by masturbating, and then Valverde stroked B.V.‘s penis. While B.V. had an erection, Valverde pulled down H.L.‘s pants and underwear and inserted B.V.‘s penis into H.L.‘s vagina. According to B.V., Valverde then pushed on B.V.‘s back in an up-and-down motion. B.V. felt uncomfortable, so he removed his penis so that it was touching H.L.‘s leg when Valverde was not looking. B.V. testified that Valverde said B.V. was “not doing it right” and that Valverde would “show [B.V.] how it‘s done.” Valverde then told B.V. to suck on H.L.‘s breasts while Valverde had vaginal intercourse with H.L.
The State next called H.L. to testify. H.L. began living with Valverde when she was 12 years old. In approximately June 2009, they moved to H.L.‘s grandmother‘s home, and Valverde began having sexual intercourse with her a few
H.L. testified that in the late evening of July 4, 2009, Valverde motioned her to go downstairs. She went downstairs and lay on the floor. According to H.L., B.V. came downstairs and began removing his clothes at Valverde‘s direction. H.L. testified that Valverde directed B.V. to get on top of H.L. and put his penis into her vagina and that Valverde guided B.V.‘s penis into her vagina. H.L. testified that at some point, Valverde told B.V. to get off of H.L. and said that B.V. was “not doing it right.” B.V. then began sucking on H.L.‘s breasts, and Valverde had vaginal intercourse with her. They lived at H.L.‘s grandmother‘s house until October 2009, during which time Valverde had intercourse with H.L. two or three times a week. H.L. testified that the sexual intercourse continued when H.L. and Valverde moved to an apartment. The acts took place in Valverde‘s bedroom and regularly occurred four or five times a week. Valverde also made H.L. perform oral sex on him on occasion.
In approximately May 2010, when H.L. was 13 years old, H.L. told Valverde that her menstrual period was late and Valverde bought her a pregnancy test. The test was negative, but within a week Valverde took H.L. to a doctor to have an intrauterine device inserted. H.L. and Valverde moved to a different apartment in October, and the sexual intercourse continued to occur two or three times a week. On December 10, H.L. was supposed to spend the night with her mother. But first, Valverde had intercourse with her on his bed and some of his semen got on H.L.‘s underwear. The next day, H.L. disclosed to her mother that Valverde had been making her have sex with him. H.L.‘s mother called the police, and an officer escorted them to a hospital. A “rape kit” was administered. Semen was found on H.L.‘s underwear and the vaginal swab from the kit. DNA was extracted from these items. The probability of an unrelated individual other than
While the jury was absent from the courtroom, the State announced that E.M. was the next witness it would like to call. Valverde‘s counsel argued that under
The Court, in an abundance of caution in the second ruling, November 23, 2011, restricted or prohibited the State from mentioning this [§ 27-414] evidence as to those three prospective witnesses until the Court had an opportunity to hear the evidence, the actual specific evidence as to the pending allegations. However, the Court had already made a finding there was [sic] similarities based upon the charges alone. And after hearing the evidence from both the alleged victims in the trial up to now, the Court finds there are sufficient similarities to proceed, and [Valverde‘s] objection is overruled at this time.
Valverde moved for a mistrial based upon the procedures used by the court with respect to the prior victims. The court denied the motion.
E.M. is B.V.‘s mother. She provided testimony similar to that at the hearing under
Outside the presence of the jury, the State offered a certified copy of Valverde‘s prior conviction for third degree sexual assault of a child regarding H.A. Valverde objected, arguing that the exhibit‘s prejudicial effect to Valverde was outweighed by its probative value and that it would be better for the State to bring in the witness to testify so the jury could make a credibility determination. The court overruled the objection. Valverde objected when the State offered the exhibit into evidence, and the court overruled the objection. Valverde did not request a limiting instruction concerning the exhibit.
During the jury instruction conference, Valverde objected to instruction No. 13 regarding limited purpose but the district court responded that the instruction would be given. Valverde also took issue with instruction No. 15, the instruction involving other acts of sexual assault under
The jury returned a verdict of guilty on all counts. The court subsequently imposed sentences of incarceration.
Valverde timely appeals. Pursuant to statutory authority, we granted the State‘s petition to bypass the Nebraska Court of Appeals.1
III. ASSIGNMENTS OF ERROR
Valverde assigns error to the procedures used by the district court in receiving evidence under
IV. STANDARD OF REVIEW
[1,2] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.2 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.3
[4] Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.5
V. ANALYSIS
1. § 27-414 EVIDENCE
This is the first appeal in which we have focused on evidence of “another offense or offenses of sexual assault” relying solely upon
In Kibbee, we addressed evidence offered under both
In the instant appeal, neither the parties nor the court considered the evidence at issue under
(a) Statutory Language of § 27-414
We begin by setting forth the complete language of the statute at issue. Section
(1) In a criminal case in which the accused is accused of an offense of sexual assault, evidence of the accused‘s commission of another offense or offenses of sexual assault is admissible if there is clear and convincing evidence otherwise admissible under the Nebraska Evidence Rules that the accused committed the other offense or offenses. If admissible, such evidence may be considered for its bearing on any matter to which it is relevant.
(2) In a case in which the prosecution intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the accused, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
(3) Before admitting evidence of the accused‘s commission of another offense or offenses of sexual assault under this section, the court shall conduct a hearing outside the presence of any jury. At the hearing, the rules of evidence shall apply and the court shall apply a section 27-403 balancing and admit the evidence unless the risk of prejudice substantially outweighs the probative value of the evidence. In assessing the balancing, the court may consider any relevant factor such as (a) the probability that the other offense occurred, (b) the proximity in time and intervening circumstances of the other offenses, and (c) the similarity of the other acts to the crime charged.
(4) This section shall not be construed to limit the admission or consideration of evidence under any other section of the Nebraska Evidence Rules.
(b) Procedures Used by District Court
We next summarize the procedures implemented by the district court. After the State filed its motions to use
During the pretrial hearings, the court heard testimony from the prior victims. Although the court did not hear testimony
After such evidence was presented at trial and the State alerted Valverde and the court of its intent to call a prior victim as a witness, the court made a further determination, outside the presence of the jury, of the admissibility of the prior sexual assaults.
In essence, the district court made conditional rulings at the pretrial hearings, reserving final rulings on the admissibility of the evidence under
What is at issue in the [§ 27-414 hearing] is the “other acts” evidence, not the proof of the misconduct that is at issue in the instant case and yet to be tried. Consequently, there should be no requirement that the victim of the action being tried has to testify at the pretrial hearing. The court could take judicial notice of the charges that have been filed in the court and admit the evidence conditionally under [
Neb. Rev. Stat. § 27-104(2) (Reissue 2008)]. If the state does not offer sufficient admissible evidence at trial to raise a jury issue that the charged conduct occurred that would make the “other crimes” evidence admissible, then allegations [o]f the “other crimes” evidence would be inadmissible.8
The court‘s procedures ensured that the evidence of the current acts came in at trial—in the presence of the jury—and in making a final determination on the admissibility of evidence under
Section
We now consider Valverde‘s first assignment of error as it relates to pertinent subsections of
(c) § 27-414(1)
Under
[5] Section
(d) § 27-414(2)
Under
(e) § 27-414(3)
The main thrust of Valverde‘s first assignment of error relates to the requirements of
(i) Hearing Outside Presence of Jury
[6] Section
[7] The statute does not impose any timing requirement as to when this hearing must be held. The district court held two hearings prior to trial at which it heard evidence of the prior sexual assaults. The court compared the evidence adduced during those hearings to the charges in the current case. The court‘s order after the second hearing specifically stated that it was not a final ruling on the ultimate admissibility of the prior sexual assaults. It made its final determination after hearing the trial testimony of H.L. and B.V. and comparing that testimony to the testimony of E.M. and H.A. adduced during the hearings pursuant to
The court‘s procedures prevented the jury from hearing potentially inadmissible evidence of prior sexual assaults until the court made its final ruling on admissibility. We find no abuse of discretion by the court in this regard.
(ii) Balancing Under § 27-403
Much of Valverde‘s argument focuses on the required
a. Probability That Other Offense Occurred
The first factor, the probability that the other offenses occurred, is not seriously disputed. And as discussed above, a child was born as a result of Valverde‘s sexual assault of E.M. and a criminal conviction resulted from Valverde‘s sexual assault of H.A. This factor weighs in favor of admission of the prior sexual assaults.
b. Proximity in Time and Intervening Circumstances of Other Offenses
Valverde relies heavily on the gap in time between the prior and the current offenses. The assaults against E.M. began in
[8,9] The admissibility of evidence concerning other conduct must be determined upon the facts of each case, and no exact limitation of time can be fixed as to when other conduct tending to prove intent to commit the offense charged is too remote.13 “The question whether evidence of other conduct ‘is too remote in time is largely within the discretion of the trial court. While remoteness in time may weaken the value of the evidence, such remoteness does not, in and of itself, necessarily justify exclusion of the evidence.‘”14
The Nebraska appellate courts have considered the remoteness of time under
We have allowed admission of evidence even more remote in time in the context of
Remoteness in time is just one factor in the
c. Similarity of Other Acts to Crime Charged
[10] Valverde complains that the district court could not have compared the current offenses to the prior offenses because “there were no facts of the current case provided for comparison.”20 His complaint is based on the court‘s not requiring H.L. and B.V. to testify at the hearings under
Valverde also places great weight on the differences between the prior and current offenses. He points out that the assaults occurred at different locations, that the victims were different ages, and that the nature of the acts differed.
But we find much more significance in the similarities. While the assaults occurred at different locations, the prior and current assaults all occurred at the place where Valverde was living. And while the ages of the victims may have varied, they were of similar adolescent ages: E.M. was 14 years old when the assaults began, H.A. was 13 years old, B.V. was 12, and H.L. was sexually assaulted from the time she was 12 until the time she reported the assaults when she was 14. All of the assaults occurred when Valverde was at least 24 years of age. And while the nature of some of the acts differed, other acts were the same. Valverde digitally penetrated and repeatedly
We noted a number of similarities in Kibbee21 in determining that the trial court did not abuse its discretion in allowing evidence of prior assaults. Like in the instant case, all of the victims in Kibbee knew the accused and all of the victims were under the age of majority at the time the sexual assaults occurred. We observed in Kibbee that the defendant digitally penetrated all of the victims, that two victims were awakened to find the defendant touching them inappropriately, and that one victim reported the defendant was sitting on the floor next to her—similar to the current victim‘s report that the defendant was kneeling on the floor next to her. Also in Kibbee, we pointed out the similarities of prior sexual assaults in State v. Carter22 as follows:
All assaults occurred when the victims were between the ages of 6 and 11; all of the victims were subjected to multiple assaults; all assaults occurred at the defendant‘s residence, his mother‘s residence, or the victim‘s residence; all of the victims had either a familial or a family-like relationship to the defendant; all assaults occurred while the defendant had custody or was in complete control of the victims; and each of the victims was incapable of giving consent.23
Valverde gives the “overwhelming similarity” language too much weight. As we mentioned at the start of our analysis, this case deals only with admission of evidence under
After balancing the above factors, the probative value of Valverde‘s prior sexual assaults was not outweighed by the danger of unfair prejudice. We conclude that the district court did not abuse its discretion in allowing evidence of Valverde‘s prior sexual assaults against E.M. and H.A.
2. MOTION FOR MISTRIAL
Valverde argues that the district court should have granted his motion for mistrial when the court decided to admit the
I believe the Court‘s statement based upon the charges alone, that there seems to be similarities, I think that‘s improper with relation to [§ 27-414].
So especially in light of the fact that the State has not rested, defense has had no opportunity to put on its case in chief whether or not to challenge the veracity of the truthfulness of the statements of [B.V.] or the other witnesses. Those witnesses are still under subpoena, Judge, still subject to recall. And at that time, again, it‘s improper for the Court at this point in time to make a determination that the evidence that‘s been heard with respect to [B.V.] and [H.L.] is reliable and truthful under [§ 27-414].
[11,12] A mistrial is properly granted in a criminal case where an event occurs during the course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.25 A defendant faces a higher threshold than merely showing a possibility of prejudice when attempting to prove error predicated on the failure to grant a mistrial.26
But, here, the timing of Valverde‘s motion is important. At the time that Valverde moved for a mistrial, the jury had not heard any evidence of other sexual assaults. There was no reason to grant a mistrial at the time of Valverde‘s motion, and he did not make a similar motion after the evidence of the prior sexual assaults was admitted. Although we do not believe that the motion would have had merit if made later, it clearly and definitively lacked merit at the time when it was made. We conclude that the district court did not abuse its discretion in denying Valverde‘s motion for mistrial.
3. JURY INSTRUCTIONS
(a) Limiting Instruction
Valverde attacks the absence of a limiting instruction at the time the evidence of the prior sexual assaults was received. This contention lacks merit for two reasons. First, a limiting
[13] Valverde did not request or propose any such instruction before, during, or after introduction of the evidence of the prior sexual assaults. In the absence of a request for a limiting instruction, there is no reversible error in a court‘s failure to give a limiting instruction.27
[14] Even if there had been a request, a limiting instruction was unnecessary. As one treatise explains, “No such limiting instruction would be necessary under [§ 27-414] because the evidence is admissible to prove sexual propensity, even though it may also be relevant for . . . secondary purposes such as proving intent.”28 The treatise further expounds that
(b) Instruction on Limited Purpose
Valverde assigns error to the district court‘s overruling of his objection during the jury instruction conference to instruction No. 13, the instruction on limited purpose. Instruction No. 13 stated: “During this trial I called your attention to some evidence that was received for specified limited purposes;
[15,16] Valverde‘s argument is problematic for two reasons. First, instruction No. 13 did not address the evidence under
A. GENERAL LIMITED PURPOSE
Members of the jury, the evidence of (here insert description) was received for the limited purpose of (here insert purpose); you must consider the evidence only for that limited purpose and for no other.32
But Valverde did not request this instruction at closing. And we find no error in the court‘s use of a pattern jury instruction. Whenever an applicable instruction may be taken from the Nebraska Jury Instructions, that instruction is the one which
(c) Instruction Regarding Prior Sexual Assaults
Valverde argues that instruction No. 15, which dealt with the evidence of prior sexual assaults, was prejudicially insufficient to address the
You have heard evidence that [Valverde] may have committed other acts of sexual assault. Remember, you may not convict [Valverde] solely because you believe he committed other sexual assaults. [Valverde] is on trial only for the crimes alleged herein, and you may consider the evidence of other acts on any matter to which they are relevant.
During the jury instruction conference, Valverde quarreled that the instruction “inferred [his] disposition or propensity to commit the offense” and that there “should be some reference to the prior other acts, or may have committed other acts in the past, or previously so that we are certain that the jury doesn‘t assume that the acts that you‘re referring to are the ones involved in the information in this case.”
[17] All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.34 Instruction No. 15, when read together with all of the other jury instructions, correctly stated the law, was not misleading, and adequately covered the issues. We find no reversible error in the giving of this instruction.
Valverde contends that the district court should have given the limiting instruction that was given in Kibbee.35 But the Kibbee opinion was not released until after the trial in this case. The trial court in Kibbee concluded that the prior sexual
“The testimony of [the prior victims] relates to [Kibbee‘s] commission of other instances of sexual assault or child molestation.
“In a criminal case in which [Kibbee] is accused of an offense of sexual assault, evidence of [Kibbee‘s] commission of another offense or offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant including the similarities of the other offenses for the purpose of determining the credibility of [the current victim] or for the purpose of showing [Kibbee‘s] motive, opportunity, plan or preparation as it relates to the sexual assault charge. However, evidence of a prior offense on its own is not sufficient to prove [Kibbee] guilty of the crime charged. Bear in mind as you consider this evidence, at all times the State has the burden of proving that [Kibbee] committed each of the elements of the offense charged. I remind you that [Kibbee] is not on trial for any act, conduct or offense not charged in the Information.”36
The instruction given was a product of the prosecution‘s having adduced evidence under both
[18] Valverde contends that the district court erred in refusing to give his proposed instruction addressing evidence of the prior sexual assaults. To establish reversible error from a court‘s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court‘s refusal to give the tendered instruction.37
You have heard evidence that [Valverde] may have committed other conduct in addition to the alleged offenses that [have] been charged in the Information.
You are instructed that evidence of conduct by [Valverde], on a previous occasion with witnesses [E.M.] and [H.A.], has been offered by the State for its bearing on any matter to which it is relevant, except for [Valverde‘s] disposition or propensity to commit the offense that is charged in the Information.
It is entirely up to the jury to determine what weight, if any, such “other conduct” evidence deserves. In reaching your conclusion, you may consider all of the surrounding facts and circumstances of such testimony and give it such weight as you think it is entitled to receive in light of your experience and knowledge of human affairs.
However, you are cautioned that [Valverde] is not on trial here for any conduct or crimes not alleged in the Information. [Valverde] may not be convicted of the offenses charged in the Information if you were to find only that he committed the “other conduct” at some other time. You are reminded that, at all times, the State bears the burden of proving beyond a reasonable doubt that [Valverde] committed the offense charged in the Information.
Valverde‘s proposed instruction No. 1 would have excluded his propensity to commit the offenses charged in the information—which is precisely the purpose for which
We find no abuse of discretion by the district court in its procedures for determining the admissibility of evidence of Valverde‘s prior sexual assaults. Because Valverde moved for a mistrial before any evidence of the prior sexual assaults had been adduced, the district court did not abuse its discretion in overruling the motion. Finally, we find no reversible error by the court in the jury instructions that it gave or in the rejection of Valverde‘s proposed instructions. Accordingly, we affirm the judgment of the district court.
AFFIRMED.