State v. Isidoro ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. ISIDORO
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JOSE ISIDORO, APPELLANT.
Filed January 28, 2020. No. A-19-338.
Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge.
Affirmed.
Thomas C. Riley, Douglas County Public Defender, and Allyson A. Mendoza for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
PIRTLE, RIEDMANN, and BISHOP, Judges.
PIRTLE, Judge.
INTRODUCTION
Following a bench trial, the district court for Douglas County found Jose Isidoro guilty of
first degree sexual assault of a child. On appeal, Isidoro argues that there was insufficient evidence
to support his conviction and that his trial counsel was ineffective. For the reasons that follow, we
affirm.
BACKGROUND
Isidoro was charged by information with first degree sexual assault of a child under Neb.
Rev. Stat. § 28-319.01(1)(a) and (2) (Reissue 2016), which make it a Class IB felony for an
individual at least 19 years of age or older to subject another person under 12 years of age to sexual
penetration. The charge was based on a criminal complaint alleging that Isidoro subjected J.B., the
minor child of Isidoro’s ex-girlfriend, to sexual penetration in May 2018.
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On November 15, 2018, Isidoro waived his right to a jury trial and the matter was scheduled
for a bench trial. A bench trial took place on January 25 and 29, 2019. On the first day of trial, the
State filed an amended information expanding the timeframe the events giving rise to the charge
were alleged to occur to February 7, 2015, through May 6, 2018.
At trial, J.B., the alleged victim in this case, testified that she is 10 years old and lives with
her mother, Hollie. She testified that Isidoro is her mother’s ex-boyfriend and that she calls him
“Chino.” J.B. testified that Isidoro has a son younger than her, J.J., who she referred to as her
brother. She testified that previously her mother and Isidoro appeared to get along, and she thought
of Isidoro as a father.
After her mother and Isidoro ended their relationship, J.B. would continue to visit him
nearly every weekend at his apartment in Omaha, Nebraska. She testified that Isidoro lived with
another man and the man’s son. She testified that she would often spend the night at Isidoro’s
apartment, but the sleeping arrangements would vary. Oftentimes, J.B. would sleep in the same
bed as J.J. and Isidoro, and she would sleep in between the two.
J.B. testified that beginning when she was 7 years old, she often became uncomfortable
with events that happened when she visited Isidoro. She testified that on one occasion, after she,
J.J., and Isidoro returned from dinner and were lying in bed, Isidoro “touched [her] where people
aren’t supposed to touch.” She was unable to name the specific body part Isidoro touched, but
indicated that he touched her with his fingers. When asked to circle the area Isidoro touched on a
stick figure diagram, J.B. circled the area unmistakably representative of her vaginal area.
She explained that at the time, she was lying down in bed, on her left side, watching
television. She testified that Isidoro was lying behind her and reached his arm over her to touch
her. She testified that Isidoro touched her underneath her shorts and underwear. J.B. testified that
Isidoro did not say anything when he touched her, and she was unable to state how long the incident
lasted. She indicated that he touched both the outside and inside of her body. J.B. testified that she
did not tell anyone after the incident occurred.
J.B. testified that this type of incident began when she was 7 years old and continued on
more than one occasion at the same apartment. She admitted that she did not tell anyone about it
because she was afraid people would think it was her fault. J.B. testified that she did not tell her
mother because she thought her mother would not believe her because she had a “good connection”
with Isidoro.
J.B. testified regarding another similar incident that occurred over Cinco de Mayo weekend
in 2018. She testified that she thought she remembered spending that Friday with Isidoro and J.J.
and attending a parade. She recalled spending one night of the weekend at Isidoro’s apartment,
and one night with Stephanie, J.J.’s mother. J.B. testified that she, J.J., and Isidoro all slept in the
same bed the night she stayed with Isidoro. She indicated that she slept on her side, with J.J. in
front of her, and Isidoro behind her. She testified that she was facing the television and the back
of J.J.’s head.
J.B. testified that Isidoro again touched her “where people are not supposed to touch.” She
testified that Isidoro reached over her side and touched her underneath her clothing. J.B. again was
asked to circle on a stick figure diagram where Isidoro had touched her that evening, and indicated
the area representative of her vaginal region. She testified that Isidoro would touch her at different
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times, sometimes on the outside of her body, and sometimes inside. She indicated that she knew
Isidoro’s fingers were inside of her body because it hurt her.
J.B. testified that J.J. was asleep during the incident, and that she did not try to wake him.
J.B. noted that she did not tell anyone about what had happened after this particular incident. She
testified that the next day she went to the parade and was supposed to return to Isidoro’s apartment
that night, but did not because he had been drinking at the parade. Instead, she went home with
Stephanie for the evening. J.B. was unable to recall how many times Isidoro had touched her
inappropriately, but indicated that she could not recall a time that she slept over at his apartment,
since she was 7 years old, when he did not touch her.
J.B. testified that the first person she told about Isidoro inappropriately touching her was
her older brother, Albert. J.B. was 10 years old and visiting her father in Red Oak, Iowa, when she
first told Albert about what had happened. J.B. indicated that she had gotten in trouble for a picture
her younger sister had taken with J.B.’s phone, which her father and his girlfriend believed she
had taken. When asked whether something was going on with her, J.B. testified that she originally
responded “no” but felt bad for lying and ultimately told her brother about Isidoro.
J.B. was unable to recall exactly what she told Albert, but remembered that he appeared
upset. After she told Albert what had happened, Albert called their father to come downstairs and
J.B. told him about Isidoro as well. J.B.’s father then called her mother and she and J.B. first talked
on the phone and later in person. J.B. testified that she did not provide specific details at the time,
because she felt uncomfortable discussing it, but generally said that Isidoro had been “touching
the place you’re not supposed to touch.” After returning to her mother’s house, J.B. told her mother
more details about where and how Isidoro had touched her. J.B. denied that her mother had told
her to make up the accusations against Isidoro and testified that she would not lie about such.
After J.B.’s direct examination, the parties stipulated to the admission of videos of J.B. and
Isidoro’s previously-recorded interviews.
On cross-examination, J.B. testified that she was unsure if the apartment Isidoro lived at
with another man and the man’s son was in Iowa or Nebraska. J.B. did not recall telling the Project
Harmony interviewer that during the first incident with Isidoro, he had asked her to take her clothes
off and held her “aggressively” but did not touch her on the inside of her body. J.B. explained that
she may have confused her dates, but that J.J. was not present during the first incident when Isidoro
told her to take her clothes off, but had been present when Isidoro touched her underneath her
clothing.
J.B. was unable to state whether Cinco de Mayo fell on a Friday or Saturday the previous
year. J.B. testified that Isidoro touched her inappropriately over that particular weekend “once or
twice” on different days. She did not recall telling the Project Harmony interviewer that she took
a shower Friday evening because it was hot outside and she had gotten sweaty from the Cinco De
Mayo parade and festivities. J.B. acknowledged that Isidoro could not have touched her
inappropriately on Saturday that weekend because she had gone to stay with Stephanie. She did
not recall previously telling anyone that Isidoro had touched her that weekend after the parade
while J.J. was taking a shower.
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J.B. testified that she did not object to visiting Isidoro, despite the inappropriate touching,
because she did not want her mother to get upset and worried. She did not recall telling the Project
Harmony interviewer that it did not hurt when Isidoro touched her.
J.B. did not recall previously stating that there was a period of a year where she did not
visit Isidoro, but recalled a period of several weekends where she did not see him. J.B. admitted
that family members had previously told her that she should tell someone if someone touched her
inappropriately, but she did not do so after Isidoro began touching her.
On redirect examination, J.B. testified that she could not recall the specific order of events
due to the number of times Isidoro touched her and because it began 3 years before trial. J.B.
testified that she first did not tell anyone because she trusted Isidoro and “thought he was a nice
guy.” She testified that she did not want to make her mother upset or “ruin the relationship”
between her mother and Isidoro.
After the testimony of J.B., the video of her Project Harmony interview, taken on June 22,
2018, was played for the court.
J.B.’s mother, Hollie, was called on behalf of the State and testified that J.B. was born in
February 2008, making her 10 years old at the time of trial. Hollie testified that she and Isidoro
dated “off and on” for a period of 4 years or so, beginning in 2009 or 2010. She testified that
Isidoro was “like the role of a stepfather” to J.B. and the two had the opportunity to see each other
after her relationship with Isidoro ended.
Hollie testified that at one point, Isidoro lived with a man and the man’s son in an apartment
in Omaha near the intersection of 50th and Grover Streets. She testified that Isidoro later lived in
a home in south Omaha near 26th and Spring Streets. Hollie testified that she believed Isidoro was
approximately 46 years old and, when prompted, stated that June 1969 sounded familiar as the
date of Isidoro’s birth.
Hollie testified that she first became aware of the allegations that Isidoro had
inappropriately touched her daughter when J.B.’s father called her and informed her. Hollie
testified that she would not have told J.B. to make up the allegations against Isidoro because she
previously had not had any problems with him. Hollie testified that after she was informed of the
situation by J.B.’s father, she contacted the police.
On cross-examination, Hollie admitted that she had previously committed several crimes
involving dishonesty. She testified that she was hesitant to ask about details regarding what
happened to J.B. because J.B. was 10 years old and Hollie had “no clue how to even question a
child.”
Hollie testified that she had suspicions that Isidoro had sexually abused other children
based on what her sister, Jolene, had told her. Hollie testified that Jolene works as a counselor, but
was unable to testify how Jolene came across the information related to allegations that Isidoro
had sexually abused other children.
Hollie testified that she did not feel compelled to warn J.J.’s mother about the allegations
against Isidoro, despite the fact J.J. often stayed with Isidoro, because “nothing was on [her] mind
except [her] daughter.” Hollie refused to answer questions regarding whether she was facing
pending child abuse charges at the time of trial. She acknowledged that despite the fact he is not
J.B.’s biological father, Isidoro had acted as a father figure in J.B.’s life.
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On redirect examination, Hollie admitted that she had a pending charge against her, but
testified the charge was completely unrelated to J.B. and Isidoro. Hollie clarified that she did not
learn about the other allegations of abuse against Isidoro until after he had already been arrested.
J.J.’s mother, Stephanie, testified that Isidoro is the biological father of J.J. She testified
that despite her relationship with Isidoro ending around 2013, the two remained friends. Stephanie
testified that Isidoro previously lived at a house on Spring Street in south Omaha up until the date
he was arrested. She testified that Isidoro lived there with his two sisters, Reyna and Maria, and
Maria’s two children.
Stephanie testified Isidoro had represented to her that he was the biological father of J.B.
and he had indicated that there had been a paternity test done. She testified that J.B. would often
spend the weekend with Isidoro at the same time their son was visiting him. She testified that
before he lived with his sisters, Isidoro lived near 50th and Grover Streets in Omaha with another
man. Stephanie testified that J.J. informed her that when he spent the night at Isidoro’s, he would
“cuddle[] with dad” on a bed. Stephanie described J.B. as “[v]ery quiet. Shy almost.” She testified
that she never personally observed any disciplinary issues with J.B.
Stephanie testified that over the Cinco de Mayo weekend in 2018, J.J. was to spend the
weekend with Isidoro at his house on Spring Street in Omaha. She was informed by Isidoro that
J.B. would be staying the weekend as well. Stephanie testified that she ran into Isidoro and the
children that Saturday at a Cinco de Mayo celebration and was concerned that Isidoro was “a little
drunk.” In response, Stephanie decided to take the children with her that night instead of having
them return with Isidoro.
On cross-examination, Stephanie testified that after she took the children home on that
Saturday, Isidoro did not see them again until Sunday. She acknowledged that Isidoro often
roamed around, living with different people, and never really had actual possession of his own
residence.
Isidoro and Stephanie’s minor son, J.J., referred to J.B. as his “big sister.” J.J. testified that
over the Cinco de Mayo weekend in 2018, he spent one night with Isidoro and one night with his
mother, Stephanie, and that J.B. was present both nights. J.J. testified that he slept on the right side
of the bed at Isidoro’s house, in front of the television. J.J. thought he remembered Isidoro sleeping
in the middle between him and J.B., but could not say for certain. He recalled that when J.B. slept
between him and Isidoro, he would often sleep on the left side of the bed, behind J.B.
J.J. recalled answering questions during an interview at Project Harmony. J.J. did not recall
telling the interviewer that J.B. had slept in the middle between him and Isidoro the weekend of
Cinco de Mayo.
On cross-examination, J.J. was unable to recall the specific day of the week he stayed with
Isidoro over Cinco de Mayo weekend, or what they did when he got there, but recalled taking a
shower that evening. He testified that he, J.B., and Isidoro all left the house together that Friday
evening after he and J.B. had taken showers. J.J. testified that the next day, they walked to the
Cinco de Mayo celebration, watched the parade, and he and J.B. ultimately went home with J.J.’s
mother, Stephanie, that night.
J.B.’s older brother, Albert, testified that he and J.B. share the same parents. He testified
that his relationship with J.B. is “amazing.” He testified that after Hollie and Isidoro ended their
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relationship, the two managed to “get along very well.” He testified that both he and Hollie always
trusted Isidoro, even after the relationship ended.
Albert recalled seeing J.B. the weekend after Cinco de Mayo when she came to visit their
father, who Albert had been living with at the time. Albert recalled that on that particular visit, he
found some pictures of J.B. “trying to be cute” on her cellphone, and that he had a conversation
with her regarding safe use of the phone. Soon after that conversation, J.B. came downstairs to
where Albert was and she was crying. It was soon afterward that J.B. made a disclosure to Albert
regarding Isidoro.
In response to what J.B. told him, Albert informed their father, who in turn called Hollie
regarding the situation. Later on, Albert was with Hollie and the two further discussed the situation
with his and J.B.’s father over the phone. Soon after, Hollie contacted the police.
The State also presented as part of its case in chief a previously-recorded video interview
of Isidoro. At that point, the State rested. After the State concluded its presentation of evidence,
the defense moved for a directed verdict based on lack of evidence and lack of jurisdiction. That
motion was overruled by the court.
During Isidoro’s case in chief, the defense introduced exhibit 6, a calendar for the month
of May 2018. After the court sustained the defense’s previous hearsay objection, which the State
proceeded on under an offer of proof, the defense rested.
After closing arguments by both parties, the district court took the matter under advisement
to review the video evidence containing both J.B. and Isidoro’s previous interviews.
On February 7, 2019, after reviewing all of the evidence, the district court found Isidoro
guilty of the charge of sexual assault of a child in the first degree. The court ordered a presentence
investigation and set the matter for sentencing. On March 25, 2019, the district court sentenced
Isidoro to imprisonment of 15 years to 15 years and 2 days. This appeal followed.
ASSIGNMENTS OF ERROR
Isidoro assigns, restated, that (1) the district court erred in finding him guilty because the
evidence presented was such that no rational trier of fact could have found him guilty and (2) trial
counsel was deficient and, but for the deficient performance, the result of the proceeding would
have been different.
STANDARD OF REVIEW
In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the
evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate
court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact. State v. Mora, 298 Neb. 185, 903 N.W.2d 244
(2017). The relevant question for an appellate court is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Id.
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018). In reviewing
claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether
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the undisputed facts contained within the record are sufficient to conclusively determine whether
counsel did or did not provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. Id.
ANALYSIS
Isidoro claims that his conviction for first degree sexual assault of a child should be
reversed and his sentence vacated, because no rational finder of fact could have found that the
State met its burden beyond a reasonable doubt. Alternatively, Isidoro argues that his conviction
should be reversed and sentence vacated, based on his trial counsel’s ineffective assistance. For
the following reasons, we find that Isidoro’s arguments fail, and we affirm his conviction and
sentence.
SUFFICIENCY OF EVIDENCE
The State charged Isidoro with first degree sexual assault of a child. Under
§ 28-319.01(1)(a), an individual commits the crime of first degree sexual assault of a child when
“he or she subjects another person under twelve years of age to sexual penetration and the actor is
at least nineteen years of age or older[.]” Under Neb. Rev. Stat. § 28-318(6) (Reissue 2016),
“sexual penetration” means:
[S]exual intercourse in its ordinary meaning, cunnilingus, fellatio, anal intercourse, or any
intrusion, however slight, of any part of the actor’s or victim’s body or any object
manipulated by the actor into the genital or anal openings of the victim’s body which can
be reasonably construed as being for nonmedical, nonhealth, or nonlaw enforcement
purposes. Sexual penetration shall not require emission of semen.
As such, the State was required to prove beyond a reasonable doubt that (1) Isidoro subjected J.B.
to sexual penetration; (2) he did so on, about, or between February 7, 2015, and May 6, 2018, in
Douglas County, Nebraska; (3) at the time Isidoro did so, J.B. was under 12 years of age; and (4)
Isidoro was at least 19 years of age or older.
When a challenge to the sufficiency of the evidence supporting a conviction is made, the
relevant question is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” State v. McCurdy, 301 Neb. 343, 351, 918 N.W.2d 292, 298 (2018).
Importantly, an appellate court does not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for the finder of fact. State v. Mora, supra.
In his appellate brief, Isidoro essentially asks us to do just that. Isidoro argues that the State
“presented contradictory evidence at trial that was insufficient to prove [he] committed the alleged
sexual assault.” Brief for appellant at 10-11.
Isidoro first takes issue with trial testimony by J.B. that “contradicted” her previous Project
Harmony interview. Id. at 11. He argues that the State failed to adduce sufficient evidence that he
subjected J.B. to “sexual penetration” during a specific incident J.B. described during her Project
Harmony interview as occurring in Isidoro’s “friend’s basement.” Id. at 10,11. However, the State
contends, and we agree, that this is of little consequence. The elements of first degree sexual assault
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of a child do not require the State prove “sexual penetration” for every single encounter the victim
has with the alleged actor, nor is specific detailed testimony required for every sexual encounter
the victim alleges occurred. Rather, the State must simply prove beyond a reasonable doubt that
sexual penetration took place at some point, on at least one occasion, within the alleged timeframe.
In State v. Martinez, 250 Neb. 597, 550 N.W.2d 655 (1996), the Nebraska Supreme Court
recognized, albeit in the Sixth Amendment context, the concern with requiring a child victim to
present specific details, such as the date, time, and location, of each alleged assault. Doing so
“would impose an impossible burden on a child sexual assault victim where there are allegations
of multiple assaults over a lengthy timeframe.” Id. at 599, 550 N.W.2d at 657. While the State may
not have provided sufficient evidence to show the essential element of sexual penetration occurred
on this particular occasion, it is not fatal to the State’s case.
Isidoro next contends that the State failed to prove beyond a reasonable doubt the
jurisdiction in which the alleged assault took place. Again, Isidoro focusses on the incident J.B.
testified occurred in Isidoro’s “friend’s basement.” However, as the State concedes, this particular
incident is not the assault it relies on in proving that sexual penetration occurred. Instead, the State
provided substantial evidence related to other alleged assaults that occurred while J.B. was visiting
Isidoro overnight across several weekends. While Hollie and Stephanie could not recall the
specific address, both testified that they dropped their children off at Isidoro’s residence, near
Spring Street in south Omaha, to stay with Isidoro over the Cinco de Mayo weekend. Both testified
that the residence was in Douglas County in Omaha. Both Hollie and Stephanie also testified that
Isidoro previously lived in an apartment near 50th and Grover Streets in Omaha, and that J.J. and
J.B. had spent the night with Isidoro there on several occasions. Based on this testimony, taken in
the light most favorable to the prosecution, we find that a rational trier of fact could have concluded
beyond a reasonable doubt that the alleged assault(s) took place within Douglas County in Omaha.
This argument fails.
Isidoro also argues broadly that contradictions in the testimony provided by J.B. and J.J.,
and other inconsistencies between J.B.’s Project Harmony interview and trial testimony, amount
to insufficient evidence to sustain his conviction. Isidoro takes issue with apparent inconsistencies
related to the specific date, time, location, and manner of the alleged assault that took place over
the Cinco de Mayo weekend in 2018. Isidoro claims that because there was some question as to
whether the assault occurred on that Friday or Saturday, where exactly it occurred, and the specific
sleeping arrangement of J.J., J.B., and Isidoro that evening, the State failed to meet its burden. We
disagree. As previously mentioned, the State is not required to prove every minute detail about the
alleged assault beyond a reasonable doubt. Rather, these apparent inconsistencies go toward the
weight of the evidence and credibility of the witnesses. This is precisely the type of issue that is
left to the finder of fact and will not be reassessed on appeal. An appellate court does not resolve
conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).
J.B. testified at length about the assault that occurred over the Cinco de Mayo weekend.
She described the manner in which Isidoro touched her on this occasion and had apparently done
so repeatedly throughout the timeframe alleged in the State’s information. She specifically testified
that Isidoro would touch her both inside and outside of her body, and she indicated on a stick figure
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diagram the area unmistakably reflective of her vaginal region. Testimony from other witnesses
corroborated the fact that J.B. stayed with Isidoro over Cinco de Mayo weekend. J.J. testified that
he, J.B., and Isidoro would often sleep in the same bed while visiting Isidoro. Viewing the evidence
in the light most favorable to the prosecution, we find that a rational trier of fact could have found
the essential elements of first degree sexual assault of a child were proven beyond a reasonable
doubt.
INEFFECTIVE ASSISTANCE OF COUNSEL
Isidoro also attempts to argue that he received ineffective assistance of trial counsel.
However, the State argues, and we agree, that Isidoro has not properly presented this claim with
sufficient specificity to be considered on appeal. The Supreme Court recently held in State v. Mrza,
302 Neb. 931, 935, 926 N.W.2d 79, 86 (2019):
[W]hen raising an ineffective assistance claim on direct appeal, an appellant must make
specific allegations of the conduct that he or she claims constitutes deficient performance
by trial counsel. And we have long held that an alleged error must be both specifically
assigned and specifically argued in the brief of the party asserting the error to be considered
by an appellate court. It follows that we should not have to scour the argument section of
an appellant’s brief to extract specific allegations of deficient performance. We now hold
that assignments of error on direct appeal regarding ineffective assistance of trial counsel
must specifically allege deficient performance, and an appellate court will not scour the
remainder of the brief in search of such specificity.
Isidoro, in his brief, generally assigned that “trial counsel provided assistance of counsel so
deficient that, but for counsel’s deficient performance, the result of the proceeding below would
have been different.” Brief for appellant at 2. There is nothing in this assignment of error where
Isidoro alleges with specificity what conduct of trial counsel was deficient. Notably, State v. Mrza,
supra, was released on April 19, 2019. Isidoro filed his brief on August 22, 2019, 4 months after
the Supreme Court released its opinion in Mrza. Therefore, we find that Isidoro has not properly
assigned his ineffective assistance of trial counsel claim, and we do not consider its merits on this
appeal.
CONCLUSION
We find that there was sufficient evidence presented at trial to support a finding that Isidoro
was guilty of first degree sexual assault of a child beyond a reasonable doubt. We also find that
Isidoro has not sufficiently assigned as error his claim of ineffective assistance of trial counsel.
Accordingly, Isidoro’s conviction is affirmed.
AFFIRMED.
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