State v. Baker

352 N.W.2d 894, 218 Neb. 207, 1984 Neb. LEXIS 1195
CourtNebraska Supreme Court
DecidedAugust 3, 1984
Docket83-634
StatusPublished
Cited by12 cases

This text of 352 N.W.2d 894 (State v. Baker) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Baker, 352 N.W.2d 894, 218 Neb. 207, 1984 Neb. LEXIS 1195 (Neb. 1984).

Opinions

White, J.

Appellant, Edgar B. Baker, Jr., was convicted after a jury trial in the district court for Douglas County, Nebraska, of both counts of a two-count information: attempted first degree sexual assault and false imprisonment in the first degree. The trial judge sentenced the appellant to a term of from 3 to 5 years on count I and a concurrent term of 2 years on count II, with credit for 202 days served in the county jail.

Appellant assigns as the single error in this court that the district court erred in overruling defendant’s objections to the testimony of Jacquie B., Desiree L., and Helen O. because the purpose of such testimony was to present evidence of other crimes, wrongs, or acts by the defendant, in violation of Neb. Rev. Stat. § 27-404(2) (Reissue 1979).

A recitation of the facts is necessary for a resolution of this case. At the time of the incident on January 20, 1983, the complaining witness, a 19-year-old female, was a student at the Capitol Beauty School located in downtown Omaha, Nebraska. Her schoolday generally started at 8:30 a.m. and ended in the late afternoon. As was her custom, the complainant was waiting for Metro Area Transit bus No. 3 at the corner of 45th and Wirt Streets, expecting to catch the 7:48 a.m. bus.

Shortly before the bus was due to arrive, the appellant, hereafter Baker, driving a 1973 blue Ford Thunderbird, stopped in the vicinity of the bus stop, spoke to the complainant, and asked her if she needed a ride. Baker was the sole occupant of [209]*209the car. Baker stated that he was planning to go to the Woodmen Tower in downtown Omaha and could give the complainant a ride. The complainant accepted. After proceeding a couple of blocks the complainant testified that she asked Baker what his name was, to which he replied, “All the ladies call me Stud.” At that point the complainant looked over and noticed that the defendant had pulled his penis out and was masturbating. Baker then suggested that they stop the car for the purpose of having sexual relations. The victim refused, and repeatedly stated that she had to go to school. Baker appeared to be driving in a direct route downtown; however, he then drove past the downtown exit of the Interstate. Baker continued urging the complainant to engage in sexual relations with him, and she continued to refuse. Baker ultimately drove to Hanscom Park, where he stopped the car and attempted to force the victim to engage in fellatio. The victim resisted. Baker then took her hand and masturbated until he climaxed. He then drove the complainant to school.

Complainant testified that she did not try to leave the vehicle because she did not think she could successfully get away from Baker. Rather, she testified that she tried to talk him out of engaging in sexual relations by indicating that she had to get to school, but she would see him at a later time.

In contrast, Baker testified that at 7:40 a.m. on January 20, 1983, he was returning home after driving his wife to work at Mutual of Omaha. He decided to return downtown to run errands. A woman, the complainant, who was walking on the sidewalk gestured at him, so he asked her if she wanted a ride. She accepted, and then began fondling his genitals to stimulate him. Baker testified that he drove to Hanscom Park because the woman had expressed a desire to engage in sexual relations. At the park, according to Baker, she continued fondling him until he climaxed. He denied any attempt to force the victim to have oral sex. He testified that he then drove her to school.

The testimony of the three minor girls was offered and received over Baker’s objection; it can be summarized as follows.

Jacquie B., a 14-year-old student at Monroe Junior High School, was walking to school at approximately 7 a.m. on the [210]*210morning of December 13, 1982, where she intended to meet a friend, Desiree L. As she approached the school, located at 52nd and Bedford Streets, a car, which she described as a blue LTD four-door, drove up to her. There was one black man in the car who told her that his name was “Stud.” He then asked her if she wanted to come over to his house for about 20 minutes. She declined and said she was going to school. The car drove off, and Jacquie found her friend, Desiree L., to whom she explained the incident. Jacquie saw the car again that day and pointed it out to Desiree, who wrote down the license plate number. Jacquie identified Baker both in the courtroom and in a previous photo array as the man in the car who had called himself “Stud.”

Desiree L., also a 14-year-old student at Monroe Junior High School, testified that she went to school at approximately 7 a.m. on December 13,1982, to meet Jacquie B. Jacquie told her that some guy had tried to pick her up, and then pointed the car out to her when she saw it again. Desiree testified that the driver of the car was a black man with a mustache who was alone in the vehicle. She wrote down the license plate of the vehicle, which she testified was “1-ND870.”

Desiree further testified that on January 19, 1983, she saw the same car with the same license number on approximately 48th and Maple Streets at about 3 p.m. as she was walking home from school. The same person as the one she saw on December 13, 1982, was driving the car. The man in the car said to her, “Hey, Baby, get in my car.” She kept on walking.

Helen O. was a 16-year-old student at Benson High School. At approximately 3:30 p.m.' on January 10, 1983, at 50th Avenue and Maple Street, as she was walking home from school, a car approached her, turned into a side street, and stopped. The driver asked her if she would like a ride home. She declined, and the driver said that his name was “Stud” and he was lonely so he would like to spend some time with her. She again declined and kept on walking. The man was black; he had a mustache and the car was a dark color. Two days later, while she was walking home, she saw the same car driven by a man who appeared to be the same. She wrote down the license number of the car, which was “1-ND870.”

[211]*211Defendant testified that he drives a dark blue, two-door Ford Thunderbird with license number Nebraska 1-ND870.

The incidents established by the testimony of Jacquie B., Desiree L., and Helen O. all took place within a few blocks from where Baker picked up the complainant. The incidents all took place shortly before the acts leading to Baker’s conviction, in a time frame of from 5 weeks to 1 day before the crimes charged. All three girls were between 5 feet and 5 feet 4 inches in height, with a medium or slender build. The victim was approximately 5 feet 5 inches tall and weighed 105 pounds. She was wearing a parka and carrying a sack and a tote bag. There are three schools located within two blocks of the location where Baker offered her a ride. Baker told the victim that she looked younger than 20, and he spoke to her as though she were a child.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he 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.

§ 27-404(2).

As we observed in State v. Morosin, 200 Neb. 62, 67,

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State v. Craig
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358 N.W.2d 761 (Nebraska Supreme Court, 1984)
State v. Baker
352 N.W.2d 894 (Nebraska Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
352 N.W.2d 894, 218 Neb. 207, 1984 Neb. LEXIS 1195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-baker-neb-1984.