S-12-0444, State v. Paul A. Valverde (Appellant)
Sarpy County, Judge Max Kelch
Attorneys: Patrick Boylan (Public Defender) (Appellant) --- James D. Smith (Attorney General’s Office)
Criminal: Count I: Third degree sexual assault of a child, 2nd offense; Count II: Third degree sexual assault of a child, 2nd offense; Count III: Child abuse; Count IV: Child abuse; Count V: First degree sexual assault of a child, 2nd offense; Count VI: Child abuse; Count VII, First degree sexual assault of a child, 2nd offense; Count VIII: Child abuse; Count IX: First degree sexual assault of a child, 2nd offense; Count X: First degree sexual assault of a child, 2nd offense.
Proceedings below: A jury found Appellant guilty on all counts. He was sentenced a total of 160 to 230 years in prison. Appellee, the State of Nebraska, filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: l. The trial court erred at the Neb. Rev. Stat. § 27-414 hearings when it granted the State's Motions as the court did not follow the letter of the law in that it did not apply § 27-403 as mandated by § 27-413(3). At the hearings the state failed to produce clear and convincing evidence that the prior sexual assaults occurred; failed to establish similarity between the prior and the current sexual assault charges; failed to overcome the proximity in time and intervening circumstances of the other offense requirements. The trial court erred by accepting the state's position that current charges, rather than specific facts, were all that had to be demonstrated to meet the statutory requirements. The trial court failed to distinguish between Federal Rules of Evidence 414 and Neb. Rev. Stat. § 27-414. 2. The trial court erred in not granting a mistrial after putting Appellant in the untenable position of hearing for the first time at trial what the linkage was between the prior uncharged conduct and his current charges. 3. The trial court erred by not giving the jury cautionary instructions on the § 27-414 evidence during the trial and by refusing Appellant's proffered instruction No. 1, and by overruling Appellant's objections to the court's instructions No. 13 and l5 at the instruction conference.
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