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NE JILLIAN CUTSHALL: Missing from Norfolk, NE - 13 August 1987 - Age 9

Discussion in 'Missing 1980 to 1989' started by Akoya, Apr 3, 2018.

  1. Akoya

    Akoya Bronze Member

    [​IMG]


    Jillian Cutshall was last seen at 06:30 am sitting on the stoop at her babysitter's house which was four blocks from her home on August 13, 1987. Her clothes turned up in a wooded area 10 miles away near Stanton three months later. David Phelps was charged and convicted of Jill's abduction. He is serving a life sentence in state prison.


    https://crimewatchers.net/forum/ind...her-home-on-august-13-1987.3366/#comment-3446
     
    Last edited by a moderator: Apr 3, 2018
    Mel70 likes this.
  2. Akoya

    Akoya Bronze Member

    https://www.findthemissing.org/en/cases/2516/0/

    NamUs MP # 2516
    Jillian Cutshall
    [​IMG]
    Madison County, Nebraska
    9 year old white female

    Case Report - NamUs MP # 2516

    Case Information
    Status Missing
    First name Jillian
    Middle name Dee
    Last name Cutshall
    Nickname/Alias
    NCMEC number 600904
    Date last seen August 14, 1987 00:00
    Date entered 07/17/2009
    Age last seen 9 to 9 years old
    Age now 40 years old
    Race White
    Ethnicity
    Sex Female
    Height (inches) 54.0
    Weight (pounds) 60.0

    Circumstances
    City Norfolk
    State Nebraska
    Zip code 68701
    County Madison
    Circumstances
    On August 13, 1987 a nine year old Norfolk, Nebraska girl disappeared and has not been seen alive since. Jillian “Jill” Cutshall was last seen near her babysitter’s home in central Norfolk. An extensive search for her in the Norfolk area found nothing until in November of 1987. It was then that hunters found children’s clothing in the Wood Duck wildlife area southwest of Stanton, Nebraska. The clothing was positively identified as being the clothing Jill was wearing at the time of her disappearance. An exhaustive search of the wildlife area resulted in no further findings or evidence of her disappearance.
    Since that time, Jill has remained on the minds of all area law enforcement that worked to find and bring her home. Jill has since been declared dead by the State of Nebraska and a Norfolk man is serving a life sentence for the Kidnapping of Jill from Norfolk. A second man has been interviewed numerous times and has never been charged with her disappearance. It is the hope that Jill can be located and brought home for the sake of her family and those that have never forgotten Jill. Jill’s disappearance remains an open case with both Norfolk and Stanton County law enforcement always looking for information or a location of Jill.
    Jillian is a white female, 4'6" tall, weighs 65 pounds, has straight blond hair and blue eyes. She has a two inch vertical scar on the crown of her head and a horizontal scar on her right top lip. She was last seen wearing a purple shirt, blue jeans and white Nike Tennis shoes.
    Circumstances - Jill was last seen on the porch of the home where she was babysitting. This was about 4 blocks from her home. Jill has not been seen since that time.

    Physical
    Hair color Blond/Strawberry
    Head hair
    Long

    Left eye color Blue
    Right eye color Blue

    Scars and marks
    Two inch vertical scar on the crown of her head and a horizontal scar on her right top lip

    Piercings
    Pierced ear

    Clothing
    She was last seen wearing a purple shirt, blue jeans
    Footwear
    White Nike Tennis shoes.

    Dental
    Status: Dental information / charting is currently not available

    DNA
    Status: Sample submitted - Tests complete

    Fingerprint Information
    Status: Fingerprint information is currently not available

    Investigating Agency
    Title Detective Sergeant
    First name Dave
    Last name Bos
    Phone (402) 644-8700
    Website
    Case number 87-7766
    Date reported August 13, 1987
    Jurisdiction Local
    Agency Norfok Police Department
    Address 1
    Address 2
    City Norfolk
    State Nebraska
    Zip code 68701
     
  3. Akoya

    Akoya Bronze Member

  4. Akoya

    Akoya Bronze Member

    Jillian's photo is shown age-progressed to 34 years (12/04/2012).

    [​IMG]
     
  5. Akoya

    Akoya Bronze Member

    http://www.doenetwork.org/cases/126dfne.html

    The Doe Network:
    Case File 126DFNE

    [​IMG] [​IMG] [​IMG][​IMG]
    Images From Left: Cutshall, circa 1987; Middle: Age-progressed by NCMEC to age 30 (2008); Right: Age-progressed to 34 years

    Jillian Dee Cutshall
    Missing since August 13, 1987 from Norfolk, Madison County, Nebraska.
    Classification: Non-Family Abduction

    Vital Statistics
      • Date Of Birth: February 19, 1978
      • Age at Time of Disappearance: 9 years old
      • Height and Weight at Time of Disappearance: 4'6; 65 pounds
      • Distinguishing Characteristics: White female. Blonde straight hair; blue eyes.
      • Marks, Scars: A two inch vertical scar on the crown of her head and a horizontal scar on her right top lip. She has pierced ears.
      • Clothing: A purple shirt, blue jeans and white Nike tennis shoes.
    Circumstances of Disappearance
    Cutshall was last seen at 06:30am sitting on the stoop at her babysitter's house which was four blocks from her home on August 13, 1987.
    Her clothes turned up in a wooded area 10 miles away near Stanton three months later.
    David Phelps was charged and convicted of Jill's abduction. He is serving a life sentence in state prison.

    Investigators
    If you have any information concerning Cutshall's case, please contact:
    Norfolk Police Department
    Captain Steve Hecher
    402-370-3456
    E-Mail

    All information may be submitted anonymously.

    Agency Case Number: 87-7766

    NCMEC #: NCMC600904

    NCIC Number: M260214807
    Please refer to this number when contacting any agency with information regarding this case.

    Source Information:
    The National Center For Missing and Exploited Children
    NamUs MP #2516
    Nebraksa State Patrol
    LA Times
    Stanton County Sheriff
     
  6. Akoya

    Akoya Bronze Member

    An extensive search for her in the Norfolk area found nothing until in November of 1987. It was then that hunters found children's clothing in the Wood Duck wildlife area southwest of Stanton, Nebraska. The clothing was positively identified as being the clothing Jill was wearing at the time of her disappearance. An exhaustive search of the wildlife area resulted in no further findings or evidence of her disappearance.

    [​IMG]


    Wood Duck State Wildlife Management Area, Stanton, NE 68779
     
  7. Akoya

    Akoya Bronze Member

    The Wood Duck State Wildlife Management Area is 668 acres along the Elkhorn River. The area is mostly wooded, with several oxbow lakes and a stream. Birdwatchers, report many eastern songbirds nesting here and large numbers of geese,ducks, pelicans, cormorants, the occasional trumpter swans and bald eagles in winter on the marshy lakes.

    [​IMG]

    [​IMG]
     
  8. Akoya

    Akoya Bronze Member

    http://www.klkntv.com/story/18839978/new-evidence-in-an-old-central-nebraska-murder-case

    [​IMG]


    New evidence in decades-old Nebraska murder case
    Posted: Jun 20, 2012 6:31 PM EDTUpdated: Jun 29, 2012 11:28 AM EDT

    By: Ashley Harding
    aharding@klkntv.com

    A man will soon go on trial for the 1989 killing of an Ord woman, but his mother says some diary entries show her son is innocent.

    In a small district court in Ord, Nebraska, 46-year-old John Oldson pleaded not guilty to murdering 31-year-old Cathy Beard. Officials involved with the case believe he's their man, but his mother says there's no proof he didn't do it, and that tree other people are responsible.

    "He just couldn't kill someone and it's going, you know, the truth is going to come out one way or another," she said. The truth, she says, is in many pages of diary entries received from an anonymous sender earlier this year.

    They appear to be written by a woman, and they depict graphic details of the kidnapping, imprisonment and abuse of four young women.

    Oldson's mother believes the women mentioned in the diaries are 12-year-old Sharon Bald Eagle of South Dakota, a woman named Karen Weeks also of South Dakota, 9-year-old Jill Cutshall who disappeared in Norfolk and Cathy Beard.

    All disappeared within a five year time frame in the 1980s. Beard's remains were the only ones found in a farm pasture near Ord.

    "Two of them were little girls and I think their families would like to know what happened to them, what really happened to them," said Oldson's mother.

    According to a motion for disclosure filed by Oldson's attorney, the crimes described in the diary were committed by two brothers and one of their wives. The wife could possibly be the diary's writer.

    Authorities involved in Oldson's case say they've investigated the entries and have concluded that they're fake. Oldson's mother doesn't buy it, she feels the state is focusing too closely on her son. "I just think the diary needs to be investigated more. I think somebody needs to talk to the woman who wrote it and they never have. You know, it's just like they've covered the whole thing up," she said.
     
  9. Akoya

    Akoya Bronze Member

  10. Akoya

    Akoya Bronze Member

    http://charleyproject.org/case/jillian-dee-cutshall

    Jillian Dee Cutshall
    • Missing Since08/13/1987
    • Missing FromNorfolk, Nebraska
    • ClassificationNon-Family Abduction
    • Date of Birth02/19/1978 (40)
    • Age9 years old
    • Height and Weight4'6, 65 pounds
    • Clothing/Jewelry DescriptionA purple shirt, blue jeans and white Nike sneakers.
    • Distinguishing CharacteristicsCaucasian female. Blonde hair, blue eyes. Jillian's teeth are crooked. She has a two-inch vertical scar on the crown of her head and a horizontal scar on her right upper lip. Her nickname is Jill.

    Details of Disappearance
    Jillian was last seen at approximately 6:30 a.m. on August 13, 1987 in Norfolk, Nebraska. Her parents are divorced and she lived in Grand Bend, Kansas with her mother, Joyce Cutshall, and her brother.

    She was visiting her stepmother and her father, Roger Cutshall, in Norfolk when she disappeared. They lived in McNeely Apartments. She didn't like to stay in their apartment alone, so when they left for work early that morning, she started walking to her babysitter's residence four blocks away.

    Jillian never arrived and has not been seen again. Her babysitter assumed she'd decided to stay home, and she wasn't missed until after 3:00 p.m., when her stepmother went to the babysitter's home to pick her up and found out she wasn't there.

    Three months after her disappearance, her clothes, shoes and keys were found in the Wood Duck Wildlife Refuge in Stanton, Nebraska, ten miles from her father's home.

    In 1988, a tip led Joyce to David C. Phelps, a man who lived in Roger's apartment building and had met Jillian. Police interviewed him twice in the spring of 1988.

    In the second interview, he told a detective he had been molesting children since he was in his teens and preferred blonde girls between the ages of four and six. He described six incidents of sexual contact with girls. Charges were never filed in connection with any of the alleged assaults.

    Phelps stated he liked Jillian's blue eyes, but that she was "too old" for his liking.

    In January 1989, a private investigator hired by Joyce drove Phelps to the wildlife refuge where Jillian's clothes were found. Later that day, Phelps gave a statement to a television crew the investigator had waiting and stated that he and another neighbor, Kermit Baumgartner, who had a record for sexual assault, took Jillian to the refuge.

    Phelps described the child's clothes and undergarments correctly and said he held her down while Baumgartner molested her. He stated he became nervous and left Baumgartner and Jillian alone in the refuge and drove back home, and he never saw the child again.


    Baumgartner denied having had anything to do with Jillian's disappearance and he has never been charged in connection with it. When police interviewed Phelps, he recanted his previous statements, stating they were coerced by the private investigator.

    He was released without charge, as authorities didn't think they had enough evidence. Both men left the state shortly afterwards; Baumgartner went to California and Phelps to Iowa.

    Joyce started a petition drive that forced a grand jury to convene and open an investigation. The grand jury indicted Phelps for abduction with intent to commit sexual assault. He was convicted in the spring of 1991 and sentenced to life in prison without the possibility of parole.

    No one has been charged with causing Jillian's death, although she was declared legally dead after Phelps's conviction. She has never been located.

    Investigating Agency
    • Norfolk Police Department 402-644-8700
    Source Information
     
  11. Akoya

    Akoya Bronze Member

    http://articles.latimes.com/1990-09-02/news/mn-1727_1_mother-s-mission

    A Mother's Mission : Ghost of Death Haunts Search for Daughter
    September 02, 1990|SHARON COHEN | ASSOCIATED PRESS


    NORFOLK, Neb. — Joyce Cutshall is consumed by a battle she can never win. She thinks her daughter is dead, but can't prove it. She suspects she is buried nearby, but can't find her.

    She wants to bring her home, but can't do it.

    She has made that her mission, taking the law into her own hands to find out what happened to her child. Fearful that Jill's case would sink deeper in police files, the determined mother who had never touched a legal book started a petition drive, forced a grand jury probe, and prompted an arrest.

    Three years after Jill's disappearance, Joyce Cutshall believes she is closer than ever to the truth--a truth that will bring even greater agony.

    "I feel that this last chapter is going to be my absolutely most difficult," she says. "It's a very, very strange feeling to work so hard toward something to know that at the end of it, it's going to bring as much grief and pain as a mother can feel."

    [​IMG]
    This fall, when David Phelps, 26, goes on trial on charges of kidnaping Jill, Cutshall will be there, hoping his words will lead to her daughter's body, knowing that even if she wins, she loses. The prospect is frightening, yet comforting.

    "Once I can put Jill to rest in my own mind and have a place that I can go and visit her whenever I'm having a difficult day or feel the need to see her," she says, "that will help me deal with the fact that I won't have a chance to hold her again."

    For now, she lives with memories--how Jill loved butter. And mementos: pictures of horses and hearts, a note to "the greatest mom in the world," crayon drawings of the sun, flowers and rainbows--her symbol for the future--and poems.

    "The world is a great round ball thing that is made by God," Jill wrote. "It has good things on it and bad things on it. The world is great to me."

    On Aug. 13, 1987, 9-year-old Jillian Dee Cutshall vanished from that world she so cherished.

    She disappeared in Norfolk, where she was spending the summer with her father, Roger. The Cutshalls divorced in 1985; Jill and her brother, Jeff, lived in Kansas with their mother.

    Jill, her mother says, feared staying in her father's apartment house alone; it was seedy, noisy, filled with transients. So when he and his new wife left for work at 6 a.m., she did her chores, then walked to the baby sitter's six blocks away.

    That day, she was last seen at 6:30 a.m. on her sitter's stoop, where she normally waited until someone inside awoke.

    Jill had been repeatedly warned about strangers. But the blonde, blue-eyed youngster "just loved people," her mother says. "She trusted them. She always found something good in everybody, even if they weren't good."

    After Jill's disappearance, the FBI, state and local police blitzed the area. There were roadblocks, door-to-door searches, hundreds of interviews. Tens of thousands of posters flooded the country.

    At first, Joyce Cutshall thought Jill would return in a week, then months. "After the third month," she says, "I emotionally and mentally was telling myself that if we work hard enough, we'll have her back in a year."

    [​IMG]
    A year passed. No Jill.

    Hope turned to heartache.

    Then in the fall of 1988, when Cutshall, 36, was attending a local college, a journalism student, Gail Pedersen, interviewed her for a story. Pedersen revealed that police had questioned her brother, David Phelps, about Jill.

    Phelps' sister, she says, told her: "'I'm not saying that he is guilty or innocent' . . . (but) she felt that it was a possibility that he in some way was connected to her disappearance."

    Pedersen also claimed her brother sexually abused a little girl when he was a teen.

    Phelps and a man once imprisoned for sexual assault, Kermit Baumgartner, lived together in the same building as Roger Cutshall the summer of 1987. Both reportedly met Jill then. Police had interviewed both men.

    Roy Stephens, a private investigator on the case since the beginning, pursued the lead too, knowing his own secret--a 1976 prison stint for burglary--could be revealed and he could be blackmailed.

    "I've put everything on the line for Jill," says Stephens, who last year made public his past, returning the detective's license he falsely obtained.

    The burly, bearded investigator believed his own history gave him an edge--"I know both sides of the law," he says. In January, 1989, Stephens drove Phelps to the wildlife refuge where a hunter discovered Jill's clothes in late 1987.

    He handed him a shovel. He asked him to help find Jill.

    "All he keeps saying is: 'I don't know anything,' " Stephens recalls. "I keep saying: 'You do.' "

    Stephens, accompanied by a partner, says he then fired a gun in the air. Frustration, he says, not a threat. He claims Phelps led them to a nearby cemetery, dug in one spot, then told him he and Baumgartner had taken Jill to the refuge and even described her clothes and underwear.

    Stephens had Phelps repeat his statement to an Omaha TV crew he had waiting nearby. The investigator says he didn't go to the police, fearing that they would reject the information.
     
  12. Akoya

    Akoya Bronze Member

    Continued:

    In that interview, later broadcast on "60 Minutes," Phelps described how Kermit got a nervous Jill out of the car. "Kermit kept his hand on her mouth and started fondling her and stuff," he said. "I got real nervous and said, 'Hey, let's get the hell out of here.' And Kermit says, 'Well, then, you take the car back into town and I'll get back later.' And I left."

    Baumgartner, who lives in California, has repeatedly denied wrongdoing. He claims Phelps was trying to cover his tracks.

    When police questioned Phelps, he recanted, claiming his statements were made under duress. No body, no confession, no charges.

    David Phelps was a free man. He soon left town.

    So did Baumgartner, who had also been questioned by authorities.

    "I was empty," Joyce Cutshall recalls in hushed tones. "Whatever there is inside of me that says . . . 'I need to fight. I need to go on'--that was gone."

    She'd lost her faith, too, in the police. "There were major screw-ups," she says.

    Norfolk Police Chief Bill Mizner disagrees, noting that thousands of hours were spent interviewing hundreds of people and pursuing leads in several states.

    [​IMG]
    "There was some outstanding police work done in this investigation," he says. "It is by far the longest, most in-depth case that the police division here has ever faced (and) by far the most frustrating case."

    Last summer, when Mizner placed Jill's case on semi-active status, Cutshall was outraged.

    "If you cannot rely on people that you're supposed to be able to rely on to do the job, I guess the old adage is . . . 'Do it yourself.' "

    She began.

    Cutshall discovered that under Nebraska law, authorities had to convene a grand jury if presented with petitions from at least 10% of county voters participating in the last gubernatorial election.

    In December, while others shopped for Christmas gifts, she collected signatures. While the local mall was being decorated, she was setting up a table and banner reading: "Jill Cutshall Needs A Grand Jury."

    A dozen volunteers gathered signatures at the mall and braved blizzards to collect more in door-to-door visits. Petitions were presented to authorities on Feb. 20--the day after Jill's birthday--"my gift to her," her mother says.

    Authorities, she says, certified 1,471 signatures, hundreds more than needed.

    Cutshall downplays her doggedness, saying: "I don't have anything extra. The only thing I have is the love for my daughter."

    In June, a grand jury indicted Phelps on charges of abduction with intent to commit sexual assault. Last month, he returned to Nebraska from Iowa and pleaded not guilty. He's being held on $100,000 bond.

    Baumgartner wasn't charged. Special prosecutor James Smith said one problem was getting him back to Nebraska to testify before a grand jury. He had already made consistent statements to authorities. "It's not as if they didn't know what the guy's story was anyhow," Smith says.

    Stephens, who keeps a picture of Jill on his desk, says he won't rest until he finds her. He heads investigations for the Missing Youth Foundation, a nonprofit group founded after Jill's disappearance that boasts of having brought home 17 children since January, 1989.

    Cutshall, meanwhile, hopes the Nov. 5 trial will help her and Jeff, 14, start over.

    Jeff, who saw himself as Jill's protector, has endured his own hell with schoolmates' taunts of "We know where your sister is." He even talked of suicide.

    [​IMG]
    For a year after Jill's disappearance, Joyce Cutshall wrote her letters. Part of the first one seems prophetic.

    "There is a part of me that is gone. I hope you are doing OK, sweet pea," she wrote. "I know you feel inside how special you are to me. I could never ask for a better daughter than the one I'm blessed with. If I can't find you soon, I'm afraid I'll never see you again."

    Three years later, Joyce Cutshall's heart still needs to convince her head.

    "I absolutely have to be able to have her in a place where I can make that contact with her," she says. "Until I can do this, there's a chance she's still alive. . . . She's out there lost waiting to be found. I can't quit doing this until I can find her and bring her back."
     
  13. Akoya

    Akoya Bronze Member

  14. Akoya

    Akoya Bronze Member

    Norfolk Daily News
    Now age 48, David Phelps has been in prison for 21 years on a life sentence for kidnapping with the intent to sexually assault Jill Cutshall.

    upload_2018-4-3_16-2-31.jpeg

    upload_2018-4-3_16-3-0.jpeg
     
  15. Akoya

    Akoya Bronze Member

    http://www.omaha.com/news/despite-m...cle_d851cca4-438f-5453-bec9-58d0944c17f6.html

    Despite mysterious diary, court refuses to revisit kidnapping conviction
    • By Leslie Reed / / World-Herald Bureau
    • Jun 14, 2013

    [​IMG]
    David Phelps


    LINCOLN – Despite a mysterious diary that seems to point to other culprits, the Nebraska Supreme Court has refused to reopen the case of David Phelps, convicted of kidnapping in the 1987 disappearance of 9-year-old Jill Cutshall of Norfolk.

    The diary surfaced in March 2012 as part of a Valley County murder trial involving the 1989 disappearance of Cathy Beard, a 31-year-old Ord woman.

    After John Oldson was arrested for the crime in February 2012, the photocopied pages were mailed anonymously to his family in Missouri.


    The pages tell a horrific story of the sexual torture and deaths of four girls and women in a cave-like structure on a Garfield County ranch. One of the described victims was called “Kathy,” another “Jill Dee” – matching Jill Cutshall's first and middle names.

    Prosecutors in the Oldson trial dismissed the diary as a fake, manufactured by a former hired hand at the Garfield County ranch to get back at his female boss, with whom he has had a long-running feud.

    Jim Mowbray, the state attorney who defended Oldson, said he remains haunted by the diary, because its details seem corroborated by historical – and not readily available – facts about the disappearances of four women and girls in Nebraska and South Dakota during that time frame.

    Oldson, 46, was convicted of second-degree murder in the death of Beard, whose body was found in a field outside Ord three years after her disappearance.

    In August, Phelps filed an appeal based on the diary, which he said exonerates him.

    “Said diary gives disturbingly graphic detail of the abduction, rape and murder of four women . . . one of those victims is Jillian Cutshall . . . the victim for which I stand wrongfully convicted,” he wrote.

    However, the Supreme Court said too much time had passed to reopen the Phelps case based on newly discovered evidence. Nebraska law sets a three-year time limit to request a new trial based on newly discovered evidence.

    The high court said Phelps hadn't submitted enough evidence to show that his continued incarceration violates his constitutional rights.

    “Phelps has not alleged any personal knowledge of the actual content of the diary or explained in any detail how its contents would necessarily exonerate him,” the high court said in a 6-0 ruling written by Judge Kenneth Stephan. “His allegations are speculative and conclusory.”

    When compared with other evidence in the case, the allegations about the diary “fall far short” of the threshold needed to reopen the case, Stephan wrote.

    Mowbray said Nebraska law essentially requires inmates in Phelps’ position to prove that they are innocent before they can be granted a new trial. “It’s impossible,” he said.

    Jill Cutshall's body was never found. A hunter found her clothing in Stanton County several months after her disappearance.

    Phelps confessed to participating in Cutshall's kidnapping and molestation after a private detective took him to the area where her clothing was found, fired a gun in the air and gave Phelps a shovel, telling Phelps to show him where the girl was buried or dig his own grave. Phelps later repeated the confession to a TV news crew waiting in a motel room.

    By the time he got to the police station, he had recanted.
     
  16. Akoya

    Akoya Bronze Member

    https://law.justia.com/cases/nebraska/supreme-court/1992/576-4.html

    490 N.W.2d 676 (1992)

    241 Neb. 707

    STATE of Nebraska, Appellee, v. David C. PHELPS, Appellant.

    No. S-91-577.


    Supreme Court of Nebraska.

    October 16, 1992.

    *681 David A. Domina and Denise E. Frost, of Domina & Copple, P.C., Norfolk, for appellant.

    Don Stenberg, Atty. Gen., and Donald A. Kohtz, Lincoln, for appellee.

    HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

    CAPORALE, Justice.

    I. STATEMENT OF CASE
    Defendant-appellant, David C. Phelps, was, pursuant to verdict, adjudged guilty of kidnapping in violation of Neb.Rev.Stat. § 28-313 (Reissue 1989) and was sentenced to life imprisonment. As treated in his brief, the errors he assigns combine to assert that the district court mistakenly (1) received certain evidence, (2) concluded the evidence was sufficient to support the charge, (3) refused to change the venue, (4) overruled his challenge to the array, and (5) refused certain pretrial discovery. We affirm.

    II. BACKGROUND
    On August 13, 1987, 9-year-old Jill Cutshall disappeared; she has not been seen since.

    She was a happy, mature, and intelligent child who was outgoing and athletic. She was on good terms with her father, mother, and stepmother and had not expressed any desire to run away.

    Although the decree dissolving her biological parents' marriage granted her custody to the mother, at the time of her disappearance the child was living, by the parents' mutual agreement, with her father and stepmother at the McNeely Apartments in Norfolk, Madison County, Nebraska. The mother was at that time living at Great Bend, Kansas.

    On the day of the child's disappearance, the father and stepmother left home at 6 o'clock in the morning. The stepmother noted that the child was then awake but still dressed in a nightshirt. The stepmother also noted that the child had laid out a purple shirt and a pair of blue jeans. Under a relatively new arrangement with the child's babysitter, the child was to leave the McNeely Apartments at approximately 8 a.m. and walk to the sitter's house, some 4½ blocks away. If the sitter was not *682 awake when the child arrived, she was to use a key left in the mailbox to let herself in.

    The stepmother finished work at 3 o'clock in the afternoon and went directly to the sitter's house to pick up the child. It was then that the stepmother first learned that the child had not arrived at the sitter's house that day. The sitter thought that the child had merely stayed home with her father, as she had done once previously. The sitter's live-in boyfriend did not see the child when he left for work between 7:30 and 7:50 that morning.

    After checking with numerous relatives throughout and around Norfolk, the stepmother, at approximately 3:30 or 4 p.m., went to get the child's father at his place of work. After contacting friends and the relatives again as to the child's whereabouts, the father and stepmother went to the Norfolk Police Department. As a result, an intensive search by various law enforcement agencies and private interests ensued.

    As the hunting season approached, hunters were asked to watch for evidence related to the child's disappearance. On November 7, 1987, a hunter sporting in the Wood Duck State Special Use Area in Stanton County, Nebraska, discovered what were later identified as the child's blouse, jeans, underwear, shoes, and keys. The underwear was white with numerous clown face or ice cream cone designs. After the scene was secured, a Federal Bureau of Investigation evidence team was immediately dispatched to the area. The bureau's analysis revealed nothing with respect to fingerprints, semen, blood, hairs, or fibers.

    Det. Steve Hecker of the Norfolk Police Department began investigating current and former tenants of the McNeely Apartments. Tenant Kermit Baumgartner was interviewed on March 24, 1988, after which he moved out of the apartments. While searching for Baumgartner, Hecker found Phelps, then a 24-year-old man standing 5 feet 10 inches tall and weighing approximately 195 pounds, at Baumgartner's new place of residence. Hecker asked if he would answer some questions at the police department. During the interview which followed, Hecker asked if Phelps knew why Hecker wanted to talk with him. Phelps replied that he thought there were three reasons: he knew the child and used to babysit her, he used to live in the McNeely Apartments, and he knew Baumgartner. Other evidence suggests, however, that Phelps was not living at the McNeely Apartments during the times he said he babysat the child at that location.

    Phelps also told Hecker that in June and July 1987, he lived in a tent at the Ray Schoen residence in Norfolk and that he had lived with Larry Pennybacker in nearby Plainview, Nebraska, from late July until late August or early September. In a subsequent interview with Hecker on April 18, 1988, Phelps stated that he was mistaken about where he lived during 1987, now recalling that he lived with Pennybacker and moved back to Norfolk and lived in a tent at Schoen's residence just prior to the child's disappearance.

    Brian Pinkelman, a former homosexual partner of Phelps', testified that he lived with Phelps in a tent at Schoen's for 2 weeks and that Phelps had worked with him at Schoen's lawn service on August 13, 1987. It was also shown that Pinkelman had, prior to the child's disappearance, suffered a memory loss due to a head injury inflicted when he was hit by a frying pan and that he had written a suicide note on August 18, 1987.

    Schoen testified that he first met Phelps on August 12, 1987, and that Phelps had slept at Schoen's home the night of August 12. Schoen, Phelps, and Pinkelman spent the day of August 13 mowing lawns. After the child disappeared, Schoen also threatened to kill himself.

    In a conversation with Hecker on April 29, 1988, Phelps stated that he now recalled that on August 11, 1987, he was staying with Guy LaChance in the McNeely Apartments and that on the evening of August 12, he was living at the McNeely Apartments in a room rented by Kathy Pendergast. Between 2 and 3 a.m. on August 13, Phelps was removed from the building by *683 his then girl friend and now wife and by Donna Hansen and was taken to Hansen's apartment at the Madison Hotel.

    An acquaintance of Phelps' wife testified that in approximately June 1988, she was at a bar with her niece. The acquaintance described her niece as being about 8 or 9 years of age with blond hair and blue eyes and resembling the missing child. Although Phelps had met the niece on previous occasions, he called her by the name Jill at least three or four times during a 1 to 2-hour period. The acquaintance corrected Phelps, telling him that her niece's name was not Jill. The niece also corrected Phelps. The acquaintance asked Phelps why he was calling her niece Jill, and Phelps replied that Jill looked a lot like the niece. When the acquaintance dropped Phelps and his now wife off after they left the bar, Phelps again called the niece Jill, for which he apologized. Phelps did not explain who Jill was.

    III. ANALYSIS
    With that brief background, we turn our attention to the summarized assignments of error and the facts and law which relate to them.

    1. EVIDENTIAL RULINGS
    The first summarized assignment of error questions the district court's (a) failure to suppress a videotaped statement Phelps gave and (b) receipt into evidence of Phelps' descriptions of his sexual interest in and contacts with young girls.

    (a) Videotaped Statement
    In the course of her efforts to find her child, the mother met Roy Stephens, who operated as a finder of missing children and also functioned as a member of a firm of private investigators operating under the name Interstate Bureau of Investigation. Stephens, a bearded felon standing 6 feet 2 inches tall and weighing 300 pounds, obtained his private investigator's license from the State of Nebraska by lying as to his criminal record. Not only was Stephens not connected with any state or federal law enforcement agencies, he did not have a friendly relationship with law enforcement personnel.

    Stephens made his initial contact with Phelps in October 1988, at which time Phelps denied knowing the child. Stephens again met with Phelps on December 3, 1988, at the request of the latter's half sister. During this audiotaped interview, Phelps, to the extent relevant, spoke about his homosexual relationship with Baumgartner and his previous instances of sexual involvement with children. However, he denied knowing Baumgartner at the time of the child's disappearance.

    At Stephens' request, two representatives of an Omaha television station traveled to Norfolk on January 4, 1989. Stephens had informed one of these representatives that he was traveling to Norfolk to talk with Phelps because Phelps might know something about the child's disappearance.

    The two representatives met with Stephens and Diane Robinette, another Interstate operative, at approximately 11 a.m. at a Norfolk restaurant. During the approximately ½-hour conversation, Stephens told the two representatives that he was going to talk to Phelps and that they could go to Stephens' nearby motel room to wait for Stephens' telephone call. At approximately noon, Stephens and Robinette left the motel, and the two representatives remained.

    Meanwhile, in an attempt to locate Phelps, Stephens and Robinette went to his home. Phelps' wife told Stephens that Phelps was on foot and would return shortly. Stephens and Robinette thereupon drove to the parking lot of a nearby store and waited. They soon saw Phelps, and Stephens asked him to come with them, as they needed his help and had something to show him.
     
  17. Akoya

    Akoya Bronze Member

    Continued:

    Robinette then drove Stephens and Phelps to the Wood Duck area, where the child's clothing had been found. When the threesome got out of the vehicle, Stephens handed Phelps a shovel and told him that the shovel was going to help find the child. At this point Stephens gave his gun to Robinette to hold. Stephens then told Phelps to show him where the child was buried.

    *684 As Phelps led Stephens and Robinette through the area, Stephens incessantly asked, "Is this where Jill is?" Stephens also told Phelps that they were not leaving until they found the child's body. Stephens, in an attempt to encourage Phelps to talk, told Phelps that "I could kill you right here and nobody would ever find you" and that "your wife and daughter would be in some serious trouble."

    As Stephens, Robinette, and Phelps walked around, Stephens retrieved his gun from Robinette and fired it into the air. Phelps stated that "surprisingly it didn't startle me and I didn't drop to the ground like somebody might." Stephens testified that he saw no reaction from Phelps after the gunshot. Robinette, however, stated that Phelps was indeed surprised or startled. Stephens commented that "300 pound men don't like nature walks." Phelps then told Stephens that he had heard that the child's body was in the Wood Duck cemetery area. The threesome then walked back to the vehicle, and Robinette drove to the cemetery area.

    Upon arrival at the cemetery area, although Stephens left his gun in the vehicle, Phelps walked to a point he selected and began to dig. After Phelps had dug for approximately 20 minutes and was sweating and appeared "fatigued," he told Stephens he was ready to talk. Stephens summoned Robinette to retrieve his tape recorder, and Stephens audiotaped Phelps' statement while in the cemetery area. According to this account, which started at 2:41 p.m. on January 4, Phelps spent the evening of August 12, 1987, with Baumgartner, consuming alcoholic beverages. The next morning, Phelps was awakened by Baumgartner, who told Phelps that he had the child out in his automobile and that they were going for a ride. Baumgartner drove Phelps and the child to the Wood Duck area, where Baumgartner sexually assaulted the child while Phelps held on to her. Phelps described the child's attire as a "light lavender colored ... blouse ... and matching shorts" and white or creamcolored underwear with "[l]ittle swirls and stuff on them." Phelps stated that he became "aroused" and nervous and suggested to Baumgartner that they leave. Baumgartner told Phelps to take the automobile back into Norfolk by himself, and Phelps left in the automobile, leaving the child behind with Baumgartner.

    On their return trip to Norfolk, Stephens told Phelps that the two Omaha television representatives were awaiting their arrival. Phelps expressed relief for getting the story off his chest, but he also expressed concern for the safety of his family from Baumgartner.

    At approximately 3:30 or 4 p.m. on January 4, 1989, Stephens and Robinette returned to the motel room with Phelps. The motel room door was unlocked, and Phelps was not told that he could not leave or that he could not use the telephone. In addition, Stephens, Robinette, and the two representatives all testified that neither they nor anyone else made any threats to Phelps while he was in the motel room.

    Because Phelps again expressed concern for the safety of his wife and child, Stephens left to move Phelps' wife and child to Phelps' half sister's house. The two representatives introduced themselves to Phelps, although it is disputed whether they identified themselves as working for a particular television station. They waited in the motel room, along with Robinette and Phelps, and watched television until Stephens returned. One of the representatives testified that as they watched a show, Phelps laughed and talked about it. This representative testified at trial that she thought they watched the show no later than 4:30 p.m. However, a perhaps incomplete listing of television programs listed the show in question as scheduled for showing by one station at 6:05 p.m.

    Robinette testified that Phelps inquired as to whether the motel room television set had free "porno movies." Phelps and Robinette also spoke about the fact that they both had daughters about the same age.

    Stephens returned in approximately one-half hour and told Phelps that he had successfully moved his wife and child to Phelps' half sister's house. One of the representatives testified that Phelps appeared *685 to be "relieved." Reintroductions were then made.

    One of the representatives asked Phelps if he would talk with them, and Phelps consented. Phelps then gave an approximately 30-minute-long videotaped interview, during the course of which he in essence calmly repeated the information he had given during the audiotaped interview earlier that day. The representative conducting the interview expressed doubt about Phelps' veracity, testifying at the suppression hearing that she did not believe everything Phelps said during the filming process; although she did not know such to be the case, he seemed to her to ramble and to be making the account up as he went along.

    Upon conclusion of the interview, Stephens left to place a telephone call to the child's mother, who then called the Norfolk police. She was then met by Hecker and Det. Herb Angell, after which the three proceeded to the motel room, arriving at approximately 5 p.m., some 5 to 15 minutes after the conclusion of the taping. Phelps agreed to accompany the officers to the police station.

    Upon arrival at the station at approximately 5:25 p.m., and after receiving and waiving his Miranda rights, Phelps largely confirmed the version of events he described during the videotaped interview. However, he then recanted his statements, telling Hecker that he had fabricated the entire story out of fear, for he felt Stephens was going to kill him with the gun. Phelps then requested a specific attorney, at which time, approximately 6 p.m., police questioning stopped.

    After the requested attorney (not the attorney representing Phelps at trial and in this court) met separately with the county attorney and with Phelps, police questioning resumed. Phelps again essentially repeated the story he had given Hecker and Angell when the three first arrived at the station after the videotaping. Hecker then asked Phelps to tell him "what really happened with him and [the child] on the morning of August 13th of 1987." In response, Phelps recited a version of events which largely paralleled the description he gave in his initial interview with Hecker in March 1988. Phelps then began to talk about his problems with alcohol and claimed an inability to remember all the events surrounding August 13, commenting that he may have done something he did not remember. At this point his requested attorney ended the questioning, and Phelps was permitted to depart.

    Whether Stephens had his gun in the motel room during Phelps' interview or, instead, retrieved it from the van to put it away after Phelps had left with the Norfolk police is in dispute; however, it was not until after Phelps had left with Angell and Hecker that the television representatives saw Stephens' gun as he removed it, according to one of the representatives, from underneath his shirt and placed it in a case. Stephens testified that he had not carried the gun under his shirt and told one of the representatives that the gun was for "protection." This representative described the gun as a "big" "silver" "pistol." Both Stephens and Robinette consciously omitted any reference to the gun in any of their reports to the Norfolk police. Stephens did not reveal the use of the gun at the Wood Duck area until some 10 months later while being interviewed for a national television program.

    Phelps argues that as the videotaped statement he gave the television representative was coerced as the result of Stephens' prior conduct, it was erroneously received in evidence in violation of the due process requirement of Neb. Const. art. I, § 3, and the privilege against self-incrimination contained in Neb. Const. art. I, § 12. (The audiotaped statement Phelps gave Stephens at the Wood Duck area was not received in evidence.)
     
  18. Akoya

    Akoya Bronze Member

    Continued:


    As to the first claim, there is no question that voluntariness is imposed as a constitutional prerequisite to the receipt into evidence of confessions and admissions. See, State v. Brewer, 241 Neb. 24, 486 N.W.2d 477 (1992); State v. Hankins, 232 Neb. 608, 441 N.W.2d 854(1989); Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). Moreover, relying *686 upon our pronouncement in State v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985), Phelps urges it matters not that the coerced statement occurred at the hands of a private party. It is true that Bodtke proclaims that the "se of an accused's involuntary statement, whether admission or confession, offends due process and fundamental fairness in a criminal prosecution, because one acting with coercion, duress, or improper inducement transports his volition to another who acts in response to external compulsion, not internal choice." 219 Neb. at 510, 363 N.W.2d at 922. However, at least in the view of one source of commentary, that decision has been called into question by Colorado v. Connelly, supra. 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.2 n. 77.2 (Supp.1991). In Connelly, the U.S. Supreme Court ruled that to deprive one of due process, some degree of state action is essential, writing that "[t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause." 479 U.S. at 166, 107 S. Ct. at 521. However, as the analysis which follows demonstrates, we need not resolve at this time whether the Bodtke rule is nonetheless still viable in this jurisdiction.

    The voluntariness of a statement is a question of fact to be determined by the trial court in light of all the surrounding circumstances. See State v. Brewer, supra. Moreover, in deciding whether a trial court's ruling on a question of fact is erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that the trial court has observed the witnesses. See, State v. Coleman, 241 Neb. 731, 490 N.W.2d 222 (1992); State v. Brewer, supra. Thus, a preliminary determination by the trial court that a statement was made voluntarily will not be disturbed on appeal unless clearly wrong. State v. Brewer, supra.

    Here, the statement with which we are concerned was given not to Stephens at the Wood Duck area, but to him and others in a motel room several hours after Stephens had fired his gun and after Stephens had been away from the room for one-half hour while he took steps to protect Phelps' family from possible harm at the hands of yet another. Under these circumstances, the occurrences at the Wood Duck area cannot be said as a matter of law to have carried over to the statement Phelps made in the motel room. See State v. Jones, 327 N.C. 439, 396 S.E.2d 309 (1990) (confession given 26 hours after allegedly coerced statements and at a different place to different interviewers held to be admissible).

    Moreover, as to the second claim, Phelps fails to explain how the statement he gave the television representative became the type of official questioning to which article I, § 12, applies. See State v. Sites, 231 Neb. 624, 437 N.W.2d 166 (1989).

    Accordingly, the district court correctly refused to suppress the videotaped interview.

    (b) Sexual Interest Statements
    Not only did Phelps describe in his videotaped statement his interest in young girls, but Hecker testified that when he interviewed Phelps on April 22, 1988, Phelps recalled six such prior incidents of sexual contact, dating back to 1980. It is the April 22 statement that Phelps, in this portion of the first summarized assignment of error, claims was erroneously admitted into evidence.

    The first incident Phelps described occurred when he was approximately 16 years old and living in Arkansas. Phelps stated that he had removed all of his clothing and crawled into bed with a 4-year-old girl and that although nothing occurred, he had a "very strong urge" to have something happen. The second incident, also in 1980, occurred while Phelps was mowing a family's lawn in Valentine, Nebraska, when their 7-year-old daughter asked Phelps to kiss her and he did. The third incident, also believed to be in 1980, occurred in Wayne, Nebraska, when Phelps had taken a 4-year-old neighbor girl up to his room, removed her panties, and felt her buttocks *687 and vagina with his hands. The fourth incident involved the same girl, except that on this occasion Phelps took her behind some bushes in the area to commit similar acts. The fifth incident, the location of which Phelps declined to disclose for fear of being caught, involved a young girl whom Phelps took from a residence to a county road, where he removed her panties and fondled her buttocks and vagina. Phelps was unable to place a date on the sixth incident, but stated that it occurred in Norfolk. On this occasion, he experienced an erection and ejaculated while holding the daughter of some friends of his on his lap. No formal complaints were filed against Phelps for any of these incidents.

    Phelps explained that his sexual desires were for girls between the ages of 4 and 6, with blue eyes and blonde hair. When asked specifically about Jill Cutshall, Phelps stated that although he liked her blue eyes and the way she could control people and how she helped others, she was too old for him. Phelps stated that he could not control these urges but that he now tried to be with adult females.

    Neb.Rev.Stat. § 27-404(2) (Reissue 1989) provides:

    Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she 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.
    We have said that the foregoing is an inclusionary rule permitting the use of relevant evidence of other crimes, wrongs, or acts for purposes other than to prove the character of a person in order to show that such person acted in conformity with that character. Thus, the statute permits evidence of other crimes, wrongs, or acts if such is relevant for a purpose other than to show a defendant's propensity or disposition to commit the crime charged. See, State v. Stephens, 237 Neb. 551, 466 N.W.2d 781 (1991); State v. Donhauser, 231 Neb. 114, 435 N.W.2d 186(1989). The rule thus permits the introduction of evidence of other crimes, wrongs, or acts for the purposes of showing such things as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. State v. Nesbitt, 226 Neb. 32, 409 N.W.2d 314 (1987).

    The evidence admissible under the rule is, of course, limited by Neb.Rev.Stat. § 27-403 (Reissue 1989), which provides for the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of, among other things, unfair prejudice. State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 (1987).
     
  19. Akoya

    Akoya Bronze Member

    Continued:


    That the child's clothing was found at a secluded place suggests a sexual motive for the abduction; thus, the evidence of Phelps' prior acts is clearly relevant as tending to show his motive for kidnapping Jill Cutshall, that is, to achieve sexual gratification through assaulting her.

    Phelps' contention that the events he described were too remote in time to be admissible overlooks that the question of remoteness is a matter within the discretion of the trial court. See State v. Keithley, 218 Neb. 707, 358 N.W.2d 761 (1984). "[T]here is no magic in the amount of time by which the other offenses must have preceded or followed the case being tried...." State v. Ellis, 208 Neb. 379, 393, 303 N.W.2d 741, 750 (1981). Although remoteness in time may weaken the value of the evidence, such remoteness does not, in and of itself, necessarily justify exclusion of the evidence. State v. Yager, 236 Neb. 481, 461 N.W.2d 741(1990); State v. Rincker, 228 Neb. 522, 423 N.W.2d 434 (1988). As this court held in State v. Schaaf, 234 Neb. 144, 160, 449 N.W.2d 762, 772 (1989),

    remoteness, or the temporal span between a prior crime, wrong, or other act offered as evidence under Rule 404(2) and a fact to be determined in a present proceeding, goes to the weight to be given to such evidence and does not render *688 the evidence of the other crime, wrong, or act irrelevant and inadmissible.
    Accord State v. Yager, supra.

    Phelps also erroneously urges that the evidence is irrelevant because the prior acts all involved consenting children and thus bore no relationship to the crime prosecuted. The fact is that aside from the incident in Valentine where the girl asked Phelps to kiss her, the record is devoid of evidence of consent. Granted, the crime charged is not identical in every respect to Phelps' prior acts. In each of the prior incidents, Phelps did not abduct and transport the child in an automobile to sexually assault her. However, the prior acts need not be identical to the act charged in order to be admissible. It is sufficient that the evidence be of similar involvement reasonably related to the charged conduct and be presented in a manner in which prejudice does not outweigh its probative value. State v. Sherrod, 229 Neb. 128, 425 N.W.2d 616 (1988). The thread which ties the prior acts to the crime in question is the use of young girls to achieve sexual gratification.

    Balancing the probative value of evidence against the danger of unfair prejudice is also within the discretion of the trial court. State v. Stephens, supra, citing State v. Jacobs, supra. The primary consideration in this connection is whether the probative value of the evidence is outweighed by the danger of its unfair prejudice. For exclusion, it is not enough that the evidence is merely prejudicial, for most, if not all, of the evidence a party offers is calculated to be prejudicial to the opposing party. Thus, it is only evidence which has a tendency to suggest a decision on an improper basis that is unfairly prejudicial and the concern of § 27-403. State v. Stephens, supra.

    Because the evidence bears on the matter of Phelps' motive to abduct the child, it cannot be said as a matter of law that the evidence had a tendency to suggest a decision on an improper basis. Accordingly, the district court correctly received the evidence.

    2. SUFFICIENCY OF EVIDENCE
    In the second summarized assignment of error, Phelps claims that the evidence was insufficient to support the conviction in that (a) the crime itself was not proved and (b) the location of the crime was not proved.

    (a) The Crime
    Section 28-313 provides, in relevant part, that one "commits kidnapping if he abducts another or, having abducted another, continues to restrain him with intent to ... (d) Commit a felony...."

    Under the provisions of Neb.Rev.Stat. § 28-320.01 (Reissue 1989), one who is at least 19 years of age commits the felony of sexually assaulting a child "if he or she subjects another person fourteen years of age or younger to sexual contact...."

    Neb.Rev.Stat. § 28-206 (Reissue 1989) provides that one who "aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if he were the principal offender."

    As is well known, in determining the sufficiency of the evidence to support a finding of guilt in a criminal case, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Those matters are for the finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992); State v. Kennedy, 239 Neb. 460, 476 N.W.2d 810 (1991).

    Accordingly, Phelps' admissions, combined with the child's disappearance and the discovery of her clothes, adequately support the conviction. Although, except for the admissions, the evidence is largely circumstantial, such evidence is to be treated in criminal cases the same as direct evidence, the State being entitled upon review to have all conflicting evidence, direct and circumstantial, viewed in its favor. State v. Morley, 239 Neb. 141, 474 N.W.2d 660 (1991). Thus, circumstantial *689 evidence is adequate to support a conviction if the evidence, taken as a whole, establishes guilt beyond a reasonable doubt. State v. Kennedy, supra.
     
  20. Akoya

    Akoya Bronze Member

    Continued:


    (b) Location of Crime

    Phelps also urges that in any event, the evidence fails to establish that the crime occurred in Madison County, where it was prosecuted.

    This claim rests on the fact that a variety of people thought they had seen the child at a multiplicity of places. For example, according to two witnesses, a girl resembling the child was seen at approximately 6:30 on the morning of her disappearance walking down a Norfolk street. Another witness saw a girl matching the child's description at approximately 6:30 to 6:45 a.m. of the same day sitting on the steps of the babysitter's residence. When this witness passed the babysitter's residence on her return trip some 5 minutes later, she did not see the girl. A girl resembling the child was also seen near the McNeely Apartments between approximately 6:30 and 6:45 a.m. of that day by another witness. Still another witness thought she saw the child and another young girl in the store at which the witness worked around 10 a.m. on the day of the child's disappearance. A young witness testified that she spoke with a girl resembling the child on the afternoon of that day at the same store. A man from Valley, Nebraska, believed he saw a girl resembling the child leaving a Fremont hotel with an older man on August 14, 1987. A woman from Ames, Nebraska, testified that shortly after the child's disappearance, she saw a girl resembling the child in a van traveling south out of West Point, Nebraska. A woman from Norfolk testified that the child was with another girl at a truckstop 5 miles north of Norfolk at 1 to 1:30 a.m. on August 14, 1987. A woman living approximately a block away from the McNeely Apartments testified that the child and another girl cut across her lawn between 12 and 1 p.m. on August 13, 1987. Yet another woman testified that she saw a girl resembling the child in a shopping mall in Sioux City, Iowa, on Saturday, August 15.

    There is no question that in the absence of a defendant's waiver, the State has the burden to prove proper venue beyond a reasonable doubt. State v. Gorman, 232 Neb. 738, 441 N.W.2d 896 (1989); State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989); State v. Lindsey, 193 Neb. 442, 227 N.W.2d 599 (1975).

    " `The venue of an offense may be proven like any other fact in a criminal case. It need not be established by positive testimony, nor in the words of the information; but if from the facts appearing in evidence the only rational conclusion which can be drawn is that the offense was committed in the county alleged, it is sufficient.' "

    State v. Gorman, 232 Neb. at 740, 441 N.W.2d at 898, quoting State v. Vejvoda, supra. Accord Weinecke v. State, 34 Neb. 14, 51 N.W. 307 (1892).

    Generally, all criminal cases are to be tried in the county where the offense was committed. Neb.Rev.Stat. § 29-1301 (Reissue 1989). However, Neb.Rev.Stat. § 29-1301.01 (Reissue 1989) provides that if an offense is committed against the person of another, the accused may be tried in the county in which the offense is committed, or in any county into or out of which the victim may have been brought in the prosecution of the offense, or in which an act is done by the accused in instigating, procuring, promoting, or aiding in the commission of the offense, or in aiding, abetting, or procuring another to commit such offense. Accord, State v. Tiff, 199 Neb. 519, 260 N.W.2d 296 (1977); State v. Garza, 191 Neb. 118, 214 N.W.2d 30 (1974).

    An example of the proof needed to prove venue is found in State v. Ellis, 208 Neb. 379, 303 N.W.2d 741 (1981). The defendant therein was convicted of manslaughter in Lancaster County. The evidence showed that the victim was last seen on October 3, 1974, in that county; however, her remains were discovered on September 13, 1978, in Cass County. Although there was no direct evidence that the defendant had transported the victim from the first to the second county, the circumstantial evidence *690 of defendant's prior conduct and acquaintance with the victim was held sufficient to establish that the crime took place in Lancaster County.

    Notwithstanding that the child's clothing was found in Stanton County and that Phelps contends his getting out of the vehicle, holding the child's arms, becoming aroused, being frightened, and departing all occurred in Stanton County, the facts remain that the child and her father and stepmother lived in Madison County, as did the child's babysitter, where the child was to be on August 13, 1987, and that the child did not have the ability to transport herself out of Madison County. Accordingly, there is sufficient circumstantial evidence from which a fact finder could reasonably conclude that the child was originally abducted in Madison County, and the district court thus correctly submitted the issue of venue to the jury.
     

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