State v. Moore

249 N.W.2d 200, 197 Neb. 294, 1976 Neb. LEXIS 727
CourtNebraska Supreme Court
DecidedDecember 29, 1976
Docket40557
StatusPublished
Cited by9 cases

This text of 249 N.W.2d 200 (State v. Moore) 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. Moore, 249 N.W.2d 200, 197 Neb. 294, 1976 Neb. LEXIS 727 (Neb. 1976).

Opinions

Brodkey, J.

Defendant, James R. Moore, was convicted by a jury of robbery, rape, and sodomy of Margaret Anne O’Hara, the prosecutrix, and also of the use of a firearm in the commission of those offenses. He was sentenced by the court to serve a term of 15 to 30 years imprisonment on the robbery charge; and to 3 to 10 years imprisonment on the charge of using a firearm in the commission of a felony, those sentences to be served consecutively. Sentencing was deferred on the rape and sodomy convictions; and the District Court subsequently found the defendant to be a sexual sociopath who could not presently be benefited by treatment, and committed him indefinitely to the Nebraska Penal and Correctional Complex, subject to periodic evaluations. In this appeal, defendant asks this court to reverse his conviction and remand the cause for a new trial, his sole assignment of error being that the District Court committed reversible error by admitting into evidence the testimony of one Lorna Jean Nicholson regarding an independent robbery of her and her husband allegedly committed by the defendant approximately 1 month prior to the robbery and other events involved in this case. We affirm.

The facts of this case are not in dispute, and may be summarized as follows. At approximately 12:30 a.m., on June 27, 1975, the prosecutrix and Gregory O’Brien were in their home in Omaha, reading in bed. An intruder entered the house, confronted the two occupants with a gun, and demanded money and jewelry. After taking the money and jewelry the prosecutrix produced, the assailant forced O’Brien to lie face down on the bed, and bound him with the prosecutrix’ pantyhose. He then removed the prosecutrix’ clothing, forced her to lie face down on the bed, and anally raped her. The [296]*296suspect thereafter forced the prosecutrix to the living-room, where he again anally raped her and attempted normal intercourse. Finally, the intruder returned to the bedroom with the prosecutrix, again anally raped her, and also successfully completed vaginal intercourse. The assailant threatened the prosecutrix with a gun the entire time, sometimes holding it to her head, and advised her that her life depended upon her performance. The intruder then left, threatening to return and kill the victims should they call the police.. The prosecutrix observed an automobile, described as a 1968 Oldsmobile or Pontiac with a bad exhaust system, being driven away from her house by one occupant.

The police were called after the prosecutrix and O’Brien went to the home of some friends, and the prosecutrix was taken to a hospital for an examination. The doctor who performed the examination found evidence of sperm in the vaginal area, and two parianal lacerations in the rectal area.

The victims of the crimes described their assailant as a short black man with enormous shoulders and a muscular build. They described him as wearing a bizarre tan cap which came down over the ears and forehead, checkered pants, and tennis shoes. The assailant’s gun was described as having a cylinder and white handle. The property stolen included earrings, a small amount of money, and a number of pennies, which the intruder placed in one of O’Brien’s white socks.

The description the victims gave fit that of the defendant, who was questioned by the police. A police officer obtained permission to search the defendant’s apartment and the apartment of his girl friend the day after the crime. The officer found a gun with a white handle and cylinder, clothes which fit the description given by the victims, some earrings, and a white sock full of pennies. The victims subsequently identified the clothing as being similar to that worn by the assailant; identified the gun as being like that used against them; [297]*297positively identified the earrings as being those taken by the assailant; and identified the sock the pennies were in as being like that taken on the night of the robbery. The number of pennies in the sock was approximately the same number that was taken. The police officer also testified that the imprint of a tennis shoe found in the defendant’s apartment matched a footprint found outside the prosecutrix’ home.

A line-up was held the night after the crimes, and both the prosecutrix and O’Brien picked out the defendant as being similar in physical build and facial features to their assailant. They did not make a positive identification, however, both exhibiting concern that they did not wish to accuse the wrong man. At trial, both witnesses again stated that the defendant was similar to the men who committed the crimes, and the prosecutrix stated that she was “almost positive” the defendant was the man, although she was not “one hundred percent positive.”

Other evidence at trial showed that the prosecutrix had picked out the defendant’s automobile in a parking lot as being similar to the automobile she observed on the night of the crimes. The defendant’s automobile had a bad exhaust system, as did the car which was driven from the scene of the crime.

Finally, Mrs. Lorna Jean Nicholson testified on behalf of the State, over the objection of the defendant. She stated that on May 6, 1975, a man entered her home in the early morning hours when she and her husband were preparing to retire. The man burst through the front door, entered the bedroom, and demanded money, threatening the Nicholsons with a gun and knife. The intruder, whom Mrs. Nicholson positively identified as the defendant, forced Mr. Nicholson to lie face down, and bound him with nylons taken from the dresser. He then forced Mrs. Nicholson to give him all the money in the house. Mrs. Nicholson identified the gun found in the apartment of the defendant’s girl friend as being [298]*298similar to the gun. used in the robbery committed against her. The State offered this evidence to show common design, motive, and intent on the part of the defendant in relation to the crimes charged in the present case.

The defendant’s sole assignment of error in this case is that the District Court committed reversible error in denying his motion to exclude the testimony of Mrs. Nicholson regarding the independent robbery allegedly committed by the defendant. The defendant, in support of this contention, relies on the general rule that in a criminal prosecution evidence of crimes committed by the accused, other than that with which he is charged, is not admissible. State v. Hoffman, 195 Neb. 200, 237 N. W. 2d 403 (1976); State v. Franklin, 194 Neb. 630, 234 N. W. 2d 610 (1975). The reason for this rule is that such evidence is apt to prejudice the defendant in that the jury may convict a defendant because he has a propensity for crime in general, and not because of his specific guilt of the offense with which he is charged. State v. Casados, 188 Neb. 91, 195 N. W. 2d 210 (1972).

The general rule, stated above, is, however, subject to many well-recognized exceptions which have been established and followed in this state, as well as in most of the other states. We have held that evidence of a separate and distinct crime committed by the accused is admissible in the prosecution of a crime that has an element of a motive, criminal intent, or guilty knowledge. Sail v. State, 157 Neb. 688, 61 N. W. 2d 256 (1953). Where prior offenses of the accused are sufficiently similar to the one charged in the case on trial so that the evidence thereof has probity as to intent, motive, or knowledge, such evidence may be received, and the issue of whether such evidence should be received is generally one left to the discretion of the trial court. Sall v. State, supra.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Wheeler
989 N.W.2d 728 (Nebraska Supreme Court, 2023)
State v. Walls
541 A.2d 591 (Superior Court of Delaware, 1987)
State v. Ellis
303 N.W.2d 741 (Nebraska Supreme Court, 1981)
State v. Classen
275 N.W.2d 91 (Nebraska Supreme Court, 1979)
State v. Walker
263 N.W.2d 454 (Nebraska Supreme Court, 1978)
State v. Costello
256 N.W.2d 97 (Nebraska Supreme Court, 1977)
State v. Martin
255 N.W.2d 844 (Nebraska Supreme Court, 1977)
State v. Moore
249 N.W.2d 200 (Nebraska Supreme Court, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
249 N.W.2d 200, 197 Neb. 294, 1976 Neb. LEXIS 727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moore-neb-1976.