Invited-Omission Rule for § 27-403: A Defendant Who Secures Exclusion of Context Cannot Later Claim the Remaining “Consciousness of Guilt” Threat Evidence Misleads the Jury

1. Introduction

State v. Cartwright, 320 Neb. 619 (Jan. 9, 2026), arose from allegations that Rickey R. Cartwright sexually assaulted his 5-year-old biological daughter. After the child disclosed abuse, a confrontation occurred at the mother’s home. During that confrontation, the child’s 10-year-old brother, A.R., spoke up about the accusation, after which Cartwright physically attacked A.R. and threatened to kill him if he repeated the accusation.

The central appellate issue was evidentiary: whether testimony about the assault and threat against A.R. should have been excluded under Neb. Rev. Stat. § 27-403 as unfairly prejudicial—particularly because the jury did not hear that A.R. also accused Cartwright of inappropriately touching another child (L.B.). The district court admitted the assault/threat evidence but, at the defense’s request, excluded any reference to allegations involving L.B.

The Nebraska Court of Appeals reversed, reasoning that excluding the L.B. accusation left a distorted picture and made the admitted assault/threat evidence unfairly prejudicial. On further review, the Nebraska Supreme Court reversed the Court of Appeals and directed affirmance of the conviction and sentence.

2. Summary of the Opinion

The Nebraska Supreme Court held that the district court did not abuse its discretion in admitting evidence of Cartwright’s assault of and threat toward A.R. over a § 27-403 objection. The Court emphasized:

The evidence had substantial nonpropensity probative value as “consciousness of guilt” evidence (threats to silence potential reporters/cooperators).
The risk of unfair prejudice was limited, including because the uncharged assault/threat was comparatively less reprehensible than the charged child-sex-assault offenses.
The Court of Appeals’ “misleading omission” theory was not preserved; the defense had invited the omission by securing the limine order excluding the L.B. accusation, and any resulting incompleteness did not amount to plain error.

The case was remanded with directions to affirm the conviction and sentence.

3. Analysis

3.1 Precedents Cited

Standards of review and preservation

State v. Rush, 317 Neb. 622, 11 N.W.3d 394 (2024), modified on denial of rehearing 317 Neb. 917, 12 N.W.3d 787, disapproved on other grounds, State v. Rupp, ante p. 502, 28 N.W.3d 74 (2025): cited for the rule that § 27-403 balancing is committed to the trial court’s discretion and is reviewed for abuse of discretion.
State v. Childs, 309 Neb. 427, 960 N.W.2d 585 (2021): cited for Nebraska’s plain-error doctrine.
State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023): cited for the requirement that an alleged error must be both specifically assigned and specifically argued in the initial brief to be considered on appeal.
State v. Price, ante p. 1, 26 N.W.3d 70 (2025): used for defining “unfair prejudice” under § 27-403 and for the preservation principle that, absent plain error, Nebraska appellate courts consider only issues raised/passed upon below and properly assigned/argued on appeal.
State v. Dat, 318 Neb. 311, 15 N.W.3d 410 (2025): cited for the heightened nature of plain-error review.
State v. Dixon, 286 Neb. 157, 835 N.W.2d 643 (2013): cited for the invited-error rule (a defendant cannot complain of error the defendant invited).

Relevance, probative value, and unfair prejudice

State v. Dixon, 240 Neb. 454, 482 N.W.2d 573 (1992): cited for the proposition that evidence is probative if it tends “in any degree” to alter the probability of a material fact.
State v. Boswell, 316 Neb. 542, 5 N.W.3d 747 (2024): cited for describing the “weight” of probative value (how much the evidence persuades and how close it is to the ultimate issue).
State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016): central to the Court’s other-acts analysis—explaining the “special danger” of other-acts evidence, the bar on propensity reasoning, and the “rational chain of inferences” test for noncharacter relevance.
State v. Moore, 317 Neb. 493, 10 N.W.3d 531 (2024): cited for the proposition that uncharged-acts evidence often has permissible probative value when related in time, place, and/or circumstances to the charged offenses.

Consciousness of guilt and delayed reporting

State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010): treated as analogous authority approving admission of threats/assaults against a victim’s mother because they helped present a coherent picture and explained delayed reporting.
People v. McAlpin, 53 Cal. 3d 1289, 812 P.2d 563, 283 Cal. Rptr. 382 (1991): cited (with Baker) as an example of permitting evidence to explain delayed complaint/reporting in sexual offense prosecutions.
State v. Oldson, supra: also used (via a concurrence reference) to support the reasoning that “guilty knowledge” can serve as an intermediate inference supporting perpetrator identity.

3.2 Legal Reasoning

(a) The § 27-403 framework applied: relevance is not enough; “unfair” prejudice is the key

The Court began with black-letter § 27-403 principles: relevant evidence may still be excluded if its probative value is substantially outweighed by dangers such as unfair prejudice or misleading the jury. Relying on State v. Price, the Court reiterated that most evidence is prejudicial in the ordinary sense; the question is whether it is unfairly prejudicial—i.e., whether it lures the fact finder into deciding on an improper basis (often emotion) rather than proof of the charged crime.

(b) “Other acts” and propensity risk: the Court uses the Oldson “noncharacter logical relevance” test

Although the evidence involved an uncharged assault and threat, the Supreme Court framed its admissibility around whether there was a “rational chain of inferences” that did not require judging Cartwright’s character (the State v. Oldson “litmus test”). On the Court’s account, the inference was not “he is violent, therefore he sexually assaults children,” but rather:

Cartwright assaulted and threatened A.R. immediately after the accusation;
the threat logically functioned to prevent reporting/cooperation with authorities;
efforts to silence accusers and witnesses are classic “consciousness of guilt” behavior;
consciousness of guilt supports guilty knowledge, which supports identity as perpetrator.

(c) Comparative-enormity analysis reduces unfair-prejudice concern

The Court explicitly weighed the “comparative enormity” of the uncharged act versus the charged offenses, treating the assault/threat as “reprehensible” but “comparatively much less reprehensible” than first and third degree sexual assault of a child. This comparison served an important function in the § 27-403 calculus: it reduced the likelihood that the jury would convict because of outrage at the uncharged violence rather than because of evidence of the charged sexual assault.

(d) The evidence also countered defense themes: delayed reporting and family dynamics

The Court gave the evidence an additional nonpropensity role: explaining why the victim’s mother waited about a month to contact law enforcement. The defense highlighted the delay and suggested family/visitation conflict as a motive. The threat evidence supported the alternative inference that fear contributed to the delay—mirroring the rationale approved in State v. Baker.

(e) The “misleading omission” theory fails on preservation, invited error, and plain-error review

The Court of Appeals’ reversal hinged on the claim that the jury received a distorted narrative because it did not hear that A.R. also accused Cartwright regarding L.B. The Supreme Court rejected that as a basis to reverse because:

Not preserved/argued: Cartwright did not assign or argue in his initial brief that the exclusion of the L.B. accusation made the admitted evidence misleading.
Invited error: Cartwright successfully moved to exclude “Part 3” (the L.B. allegation). Under State v. Dixon (2013), a defendant cannot complain about an error he invited.
No plain error: Any incompleteness created by the strategic exclusion did not rise to the State v. Dat level—an obvious error whose correction is necessary to preserve the integrity, reputation, and fairness of the process.

In short, the Court treated the omission as a product of defense strategy rather than a distortion warranting appellate relief.

3.3 Impact

1) Appellate courts’ limits: “misleading the jury” cannot become a backdoor theory absent preservation

The decision reinforces Nebraska’s strict approach to issue preservation and briefing: a § 27-403 objection does not automatically preserve every possible § 27-403 theory (such as “misleading omission”) unless the theory is actually raised and argued. The Court’s use of invited error and plain-error review signals that appellate courts should be cautious about reversing on rationales the defendant neither advanced nor wanted at trial.

2) Strengthening admissibility of threats/violence as consciousness-of-guilt evidence

State v. Cartwright underscores that threats against potential reporters or cooperators are typically admissible to show consciousness of guilt, even when those threats are uncharged acts and even when the charged crimes are different in kind (sexual assault versus violence). Trial courts are given substantial discretion to admit such evidence when the inference is nonpropensity and tied to reporting/cooperation.

3) Practical trial consequences: defendants face a strategic tradeoff

The opinion candidly recognizes a common defense dilemma: introducing omitted context (here, an additional accusation involving L.B.) may be more harmful than helpful. Cartwright clarifies that a defendant cannot convert that strategic choice into categorical exclusion of the remaining consciousness-of-guilt evidence on the theory that the partial story is misleading.

4) Child sexual assault prosecutions: delayed reporting explanations remain a strong admissibility rationale

Consistent with State v. Baker, Cartwright strengthens the prosecution’s ability to contextualize delayed reporting—particularly where fear, intimidation, or control dynamics plausibly explain why a caregiver did not immediately contact authorities.

4. Complex Concepts Simplified

§ 27-403 (“unfair prejudice”): Evidence can be relevant but still excluded if it is likely to push jurors to decide for the wrong reason—e.g., “he seems like a bad person”—instead of because the elements of the charged crime were proved.
§ 27-404 (other acts): The law generally forbids using prior or uncharged misdeeds to show someone has a bad character and therefore probably committed the charged offense. But “other acts” may be admitted for noncharacter reasons (like motive, knowledge, or identity).
“Consciousness of guilt” evidence: Actions like threatening a witness can suggest the person fears the truth will come out—supporting an inference of guilty knowledge. It is not proof by itself, but it can corroborate other evidence.
“Comparative enormity”: Courts consider whether the uncharged act is more shocking than the charged offense. If the uncharged act is far worse, jurors might punish the defendant for that uncharged conduct.
Invited error: If a party asks the trial court to do something (or agrees to it), that party generally cannot later claim it was error.
Plain error: A rare, high threshold for reversal when an issue was not properly raised—reserved for obvious, serious mistakes that threaten the fairness and integrity of the judicial process.

5. Conclusion

State v. Cartwright establishes a clear appellate and evidentiary lesson: when a defendant succeeds in excluding contextual facts (here, an additional accusation) and the remaining evidence is admitted for a nonpropensity purpose (threats/violence as consciousness of guilt and as an explanation for delayed reporting), the defendant generally cannot later obtain reversal by claiming the omission misled the jury—absent preservation and absent plain error.

The opinion thus reinforces (1) trial-court discretion in § 27-403 balancing, (2) the admissibility of witness-silencing threats as consciousness-of-guilt evidence, and (3) the combined force of preservation rules and invited error in constraining appellate reweighing of evidentiary narratives.

State v. Cartwright—Commentary