State v. Gomez ( 2014 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
STATE V. GOMEZ
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.
JEFFREY A. GOMEZ, APPELLANT.
Filed September 9, 2014. No. A-13-655.
Appeal from the District Court for Polk County: MICHAEL J. OWENS, Judge. Affirmed.
Bruce E. Stephens, of Stephens Law Offices, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
INBODY, Chief Judge, and IRWIN and BISHOP, Judges.
IRWIN, Judge.
I. INTRODUCTION
Jeffrey A. Gomez appeals his convictions and sentences on charges of first degree sexual
assault of a child, child abuse, and third degree sexual assault of a child. On appeal, Gomez
challenges rulings of the district court for Polk County on Gomez’ motion for bill of particulars,
on Gomez’ various objections during trial, in allowing a particular expert to testify, in allowing
the State’s rebuttal witness to listen to Gomez’ expert testimony, and in sentencing Gomez. In
addition, Gomez asserts that there was not sufficient evidence to support his convictions. We
find no merit to Gomez’ assertions on appeal, and we affirm.
II. BACKGROUND
Gomez was initially charged by information with one count of first degree sexual assault
of a child who was at least 12 years of age but less than 16 years of age while Gomez was 25
years of age or older and one count of child abuse. Over time, the information was amended on
multiple occasions and, at various times, included a variety of allegations of first degree sexual
assault of a child, incest, child abuse, second or third degree sexual assault of a child, and
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displaying of obscene materials to a minor. At times, the operative information included as many
as 18 charges. The charges generally concerned allegations that Gomez had sexually abused his
daughter, N.G., and that he had subjected her to cruel punishment.
Ultimately, Gomez was brought to trial on a fifth amended information, which alleged
five counts: one count of first degree sexual assault of a child who was at least 12 years of age
but less than 16 years of age while Gomez was 25 years of age or older, two counts of child
abuse, and two counts of third degree sexual assault of a child. The events alleged in the
operative information all allegedly occurred between May and September 2011. N.G. was born
in June 1997, and Gomez was born in March 1976.
In September 2011, the Polk County sheriff’s office received a Department of Health and
Human Services (DHHS) intake report indicating that DHHS had received a report about
potential abuse or neglect. The intake report indicated that N.G., the victim in this case, had
“made a statement to somebody that her dad wanted to have sex with her, and if she couldn’t
have sex then she was to go between his legs.” The Osceola Public Schools also contacted the
Polk County sheriff’s office and indicated that N.G. had made statements that “her dad had said
some things to her” that the school staff had found disturbing.
Chief Deputy Robert Carey accompanied N.G. to the Child Advocacy Center in Lincoln,
Nebraska. At the Child Advocacy Center, N.G. was assigned a legal advocate and was
interviewed by a forensic interviewer, while Deputy Carey watched the interview in a closed
circuit viewing room.
Deputy Carey testified that during that interview, N.G. indicated that she “had never had
sex with her father” and that when Gomez “had said some things to her of a sexual nature, that
she walked out of the room and nothing had ever happened.” He testified that when N.G. was
specifically asked if Gomez had tried to have sex with her, her answer was “no.” He testified,
however, that N.G. said during the interview that Gomez “wanted to have sex with her,” that he
“[t]old her he was going to as a punishment,” and that when Gomez hugged her, he “would reach
down between her legs” and would rub her vagina.
Deputy Carey also testified that N.G. had indicated during the interview that Gomez had
never struck her with a stick. He testified, however, that he believed that N.G. had indicated that
she had been threatened with a stick.
Deputy Carey and an investigator from DHHS then made contact with Gomez, informed
him that there had been an allegation made against him, and asked him to go to the sheriff’s
office to discuss the allegation with Deputy Carey. Gomez went to the sheriff’s office and was
interviewed by Deputy Carey and the DHHS investigator. Deputy Carey testified that Gomez
denied ever having sexual contact with N.G. and denied saying that he wanted to have sex with
N.G. and that Gomez indicated that “there was some conversations or statements he may have
made to [N.G.] that might have been misconstrued.”
Deputy Carey testified that Gomez’ responses during the interview were concerning, that
Gomez did not “seem to be too upset about [having] his kids [taken] into protective custody, and
that his daughter just got done having a talk with a forensic interviewer about him wanting to
have sex with her.” Deputy Carey testified that he “thought [Gomez] would have been a little
upset about this.” Deputy Carey testified that, instead, Gomez “wasn’t really anything. He wasn’t
excited, wasn’t mad, wasn’t happy. Just pretty much monotone throughout the whole interview.”
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A couple of months thereafter, N.G.’s therapist contacted Deputy Carey. The therapist
indicated that N.G. had “conveyed some stuff during a session,” and Deputy Carey obtained a
subpoena to review the information. Based on the information, Deputy Carey obtained an arrest
warrant and a search warrant.
Upon execution of the search warrant, law enforcement seized “a laptop computer, a cell
phone, a camera, and a Kendo stick.”
Subsequently, N.G.’s “Facebook” account user name and password were obtained.
Deputy Carey used that information to review and print a conversation on N.G.’s Facebook
account between N.G. and Gomez. N.G. later testified about the contents of the message, as set
forth below. On cross-examination, Deputy Carey acknowledged that anyone who was able to
log into the Facebook accounts of either N.G. or Gomez could send messages that would appear
to be from N.G. or Gomez. He testified that he had not asked Gomez about whether he was the
author of any of the messages and that he could not say that Gomez had authored the messages
that were indicated as coming from him.
N.G. was interviewed a second time at the Child Advocacy Center. The interviewer
testified that N.G. was “more familiar with [the interviewer] and the Child Advocacy Center, so
she was more open the second time around.” The interviewer agreed that N.G.’s statements and
allegations made during the second interview differed substantially from her statements and
allegations made during the first interview. She testified that there were also similarities,
however, including similarities “in the things that [N.G.] was saying that [Gomez] did,” but that
“[s]he provided additional information [in the second interview] as opposed to the first one.”
N.G. testified at the trial. She testified about her childhood, including time that she lived
in Washington state prior to moving to Nebraska. She testified that she sometimes got into
trouble and that Gomez would punish her by hitting her with a belt, with her clothes on. She
testified that Gomez sometimes used “a stick” to punish her. She testified that the family moved
to Nebraska during the summer of 2009. She testified that after they moved to Nebraska, Gomez
would sometimes punish her by hitting her with his belt, usually with her clothes on, but at least
once with her clothes off.
N.G. testified that around Halloween 2010, she had a good relationship with Gomez. She
testified, “We loved each other. Nothing bad really happened between us.” She testified,
however, that after Thanksgiving, Gomez began “touching [her] in [her] vagina” as part of her
bedtime routine. She testified that it happened “almost every night.” She testified that she told
the interviewer in both her first and second interview at the Child Advocacy Center about
Gomez’ rubbing her vagina and that it was “very uncomfortable.”
N.G. testified that in the spring of 2011, Gomez spanked her with his hand, with her
clothes off. She testified that in May 2011, she told Gomez she did not want him to hit her on her
bare bottom and that he indicated that, as another form of punishment, “[h]e said he would kiss
[her] on [her] bottom.” She testified that Gomez told her this in his bedroom, which is “where he
wanted to do the punishment,” and that he talked to her about not doing her chores correctly.
According to N.G., Gomez told her “to take [her] pants and underwear off. Um, he had
[her] get in a position on his bed; [she] had to have [her] knees spread apart, [she] had to bend
forward with [her] hands out to the side and [her] face had to be in the bed.” She testified that
Gomez then “started kissing [her] bottom” and that he used his tongue when he did so. She
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testified that he kissed her bottom “everywhere” using his tongue, including all over and all
around her anus. When asked if that was “the usual way then that [Gomez] punished [her] during
the months of May and June of 2011,” N.G. testified, “Yes.” She testified that it continued to
happen in July and August and that it happened more than once. She testified that it generally
occurred on Friday or Saturday nights. She testified that she told the interviewer about the
punishments during both interviews at the Child Advocacy Center and described the
punishments during the second interview.
N.G. testified that she would attempt to get out of that punishment by telling Gomez she
was “on [her] period” or by trying to get invitations to spend the night with friends. She testified
that on one occasion between May and the end of August 2011, she attempted to get out of the
punishment by telling Gomez that “something was leaking out of [her] privates.” She testified
that on that occasion, Gomez instructed her to let him look at it, and that “he basically stuck his
thumb in [her] vagina. And he told [her] that there was nothing in there.” According to N.G.,
Gomez then “went on with the punishment . . . where he kissed [her] bottom.”
N.G. testified that during the summer of 2011, Gomez said to her, “I want to fuck you
until I want to stop.” She testified that Gomez had previously made her watch a pornographic
movie of a man and woman having sex. N.G. testified that she told Gomez that she did not want
to lose her virginity and that she did not want him “to be [her] child’s dad.” N.G. testified that
she told the interviewer about Gomez’ comment during both her first and her second interview at
the Child Advocacy Center.
N.G. testified that after the conversation where Gomez indicated that he wanted to have
sex with her, she went to a dance at the fairgrounds with two of her friends. She testified that she
was upset at the dance and cried and that her friends saw her crying.
One of the two friends who had accompanied N.G. to the fair testified that while they
were at the fair, N.G. had told her something that was disturbing to her. When the friend was
asked what N.G. had said, Gomez’ counsel objected that the requested testimony would be
hearsay. The State responded that the testimony was being elicited “for the effect on the [hearer],
and also to rebut any recent allegations of recent fabrication.” The court overruled the objection,
and the friend testified that N.G. had been “afraid of what [Gomez] might do if she was late or
didn’t do, like a chore or something. And she was afraid that he might hurt her.”
Gomez’ counsel again objected and requested a sidebar. During the sidebar, N.G.’s
counsel objected that the testimony could not be offered to rebut an allegation of recent
fabrication because there had not yet been offered any statement from N.G. that Gomez had
asserted was fabricated. The State argued that the statement was admissible because of its effect
on the hearer, but also argued that Gomez’ counsel had “brought [fabrication] up in his opening
statement.” The court agreed that “it matters that [counsel] brought it up in opening” and
expressed its belief that Gomez’ “whole argument” was that N.G. was not telling the truth, and
the court affirmed its overruling of Gomez’ objection.
N.G. testified that it had not been easy for her to talk about the incidents during the first
interview at the Child Advocacy Center, but that she finished telling them everything that had
happened during the second interview.
N.G. was asked about her Facebook messages exchanged with Gomez. She was asked
about one message, from August 2011, in which Gomez had said to her, “If you’re not red, we’ll
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get the punishment out of the way.” N.G. was asked to tell the jury what Gomez’ statement
meant, and Gomez’ counsel objected on the basis of a lack of foundation. The court sustained the
objection.
N.G. was then asked several questions about when she received the message, whether she
recognized it, whether the exhibit depicting the message was an accurate representation of the
message, and how she could identify who had sent the message. She was then asked if she knew
what was meant by the statement, “If you’re not red.” She indicated that she did know what was
meant, and was asked to tell the jury what it meant. Gomez’ counsel again objected that the
question called “for speculation and interpretation as to what the statement meant.” The court
again sustained the objection.
The State then asked N.G., “Did you have an understanding yourself of what it means to
say, ‘If you’re not red?’” She indicated that she did, and the State asked her to tell the jury what
it meant to her. Gomez’ counsel again objected, but the court overruled the objection. N.G.
testified, “So when he says ‘if you’re not red,’ it means if I’m off my period.”
N.G. testified that she felt safe that she would not be “punished” when she was on her
period and that she sometimes told Gomez she was on her period when she was not, to try to
avoid being punished.
On cross-examination, N.G. testified that she had only ever told one friend about Gomez’
doing inappropriate things with her sexually. She testified that she never told any adult about it.
She testified that when she went to the fair with her friends during the summer of 2011, she did
not tell them that Gomez had done anything inappropriate in a sexual way, but that she did tell
them that Gomez wanted to have sex with her.
N.G. acknowledged that in her first interview at the Child Advocacy Center, she had not
said anything about Gomez’ touching her vagina with his thumb. She acknowledged that in her
second interview at the Child Advocacy Center, she had said something about Gomez’ touching
her vagina with his thumb but that his thumb had not gone inside her vagina. In her testimony at
trial, she had indicated that he put his thumb in her vagina.
She also acknowledged that during her first interview at the Child Advocacy Center, she
had indicated that Gomez had never licked her in her private parts and had never spanked her.
She acknowledged that during the interview, she had indicated that Gomez never took her
clothes off and had not talked to her about her period. She acknowledged that during the
interview, she had indicated that Gomez “wanted to” do the things she had talked about as
punishments but that “[h]e never got the chance to . . . [b]ecause [she] just walked away from it.”
The jury returned verdicts finding Gomez guilty on all charges. He was sentenced, and he
now appeals to this court.
III. ASSIGNMENTS OF ERROR
Gomez has assigned eight errors. First, Gomez assigns as error that the district court erred
in overruling his pretrial motion for bill of particulars. Second, Gomez assigns that “[t]he court
erred in several of its rulings on [Gomez’] objections, the totality of which denied [him] a fair
trial.” Third, Gomez assigns that the “court erred in allowing an expert to testify who had never
seen the victim or any reports.” Fourth, Gomez assigns that “[t]he court erred in lifting the
sequestration order in the middle of trial” and in allowing the State’s rebuttal witness to listen to
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the testimony of Gomez’ expert witness. Fifth, Gomez assigns that the “court erred in allowing
an undisclosed expert to testify.” Sixth, Gomez assigns that the court erred in its application of
Neb. Rev. Stat. § 28-319.01 (Cum. Supp. 2012) with regard to sentencing. Seventh, Gomez
assigns that “[t]here was insufficient evidence with which to convict” him. Finally, Gomez
assigns that the “court erred in overruling [his] motion for new trial.”
IV. ANALYSIS
1. BILL OF PARTICULARS
Gomez first asserts that “[t]he court erred in overruling [his] Motion for Bill of
Particulars.” He argues that he was not provided sufficient notice of the charges brought against
him to allow him to meaningfully prepare a defense, that he was not provided sufficient notice to
allow him to plead any conviction as a bar in later prosecutions, and that he was not provided
sufficient notice to allow him to prepare an alibi defense. We find no merit to Gomez’ assertions
regarding this assignment of error.
The function of an information is twofold: With reasonable certainty, an information
must inform the accused of the crime charged so that the accused may prepare a defense to the
prosecution and, if convicted, be able to plead the judgment of conviction on such charge as a
bar to a later prosecution for the same offense. State v. Van, 268 Neb. 814, 688 N.W.2d 600
(2004). An information must apprise a defendant with reasonable certainty of the charges against
him so that he may prepare a defense to the prosecution and be able to plead a judgment of
conviction as a bar to a later prosecution for the same offense. State v. Case, 4 Neb. Ct. App. 885,
553 N.W.2d 173 (1996). An information which alleges the commission of a crime using the
language of the statute which defines the crime is generally sufficient. Id.
After the State filed the fourth amended information in this case, which charged Gomez
with a total of 18 counts, including 6 counts of child abuse and 10 counts of third degree sexual
assault of a child, Gomez filed a motion for bill of particulars. In the motion, Gomez asserted
that the fourth amended information was insufficient with respect to the locations, dates, and
times of the offenses and that with respect to the child abuse and third degree sexual assault of a
child counts, it was insufficient with respect to indicating the specific acts which the State was
alleging constituted the various offenses.
At a hearing on the motion, Gomez’ counsel argued that the fourth amended information
provided insufficient information to Gomez to allow him to know what to prepare to defend
himself against, argued that it hampered his ability to prepare an alibi defense, and argued that
there would be no way for him to plead a conviction as a bar to later prosecution because there
was not sufficient specificity about the various offenses. The State argued that it had sufficiently
alleged offenses within a specific time period and that it had charged Gomez in the language of
the relevant statutes.
The district court issued an order in which it, in part, granted Gomez’ motion for bill of
particulars. With respect to the charge of first degree sexual assault of a child, the court held that
the fourth amended information was sufficient. With respect to the remaining counts, which
included the various child abuse and third degree sexual assault of a child charges, the court
ordered the State either to provide Gomez with a bill of particulars or to further amend the
operative information.
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In response, the State filed a fifth amended information. In the fifth amended information,
the State reduced the total number of charges from 18 to 5. With respect to the first degree sexual
assault of a child charge, the State alleged that Gomez, while 25 years of age or older, had
subjected N.G., while at least 12 years of age but less than 16 years of age, to sexual penetration
between May 1 and September 9, 2011, in Polk County, Nebraska. The State then alleged that
between May 1 and June 30, 2011, Gomez had knowingly or intentionally caused or permitted
N.G. to be cruelly punished and had subjected her to sexual contact while Gomez was 19 years
of age or older. The State then alleged that between July 1 and September 9, 2011, Gomez had
knowingly or intentionally caused or permitted N.G. to be cruelly punished and had subjected
her to sexual contact while Gomez was 19 years of age or older.
At a subsequent hearing, Gomez reasserted his arguments concerning the need for a bill
of particulars, this time with respect to the fifth amended information. The court ruled that it had
“already dealt with those issues” and denied his further request for a bill of particulars.
Our review of the record suggests that the district court actually granted Gomez’ motion
for bill of particulars. The motion that appears in the transcript presented on appeal was directed
to the fourth amended information, and the court ordered the State either to provide a bill of
particulars or to file an amended information. The State filed an amended information. To the
extent Gomez’ arguments on appeal are based on his reassertion of the grounds for the motion
for bill of particulars directed at the fifth amended information, we find no merit to his
arguments.
On appeal, Gomez argues that N.G. “made allegations of many occasions of abuse . . .
and claimed that this happened almost every night” after the first instance of sexual contact.
Brief for appellant at 23. He argues that he could not properly “prepare for cross examination [or
prepare a defense] because [he] had no way of knowing when these allegations were supposedly
taking place.” Brief for appellant at 23.
Generally, to charge a defendant with the commission of a criminal offense, the
information must allege each statutorily essential element of the crime charged, expressed in the
words of the statute which prohibits the conduct charged as a crime, or in language equivalent to
the statutory terms defining the crime charged. State v. Van, 268 Neb. 814, 688 N.W.2d 600
(2004). Where the information alleges the commission of a crime using language of the statute
defining that crime or terms equivalent to such statutory definition, the charge is sufficient. Id.
However, when the charging of a crime in the language of the statute leaves the information
insufficient to reasonably inform the defendant as to the nature of the crime charged, additional
averments must be included to meet the requirements of due process. Id. Nonetheless, an
information is deemed sufficient unless it is so defective that by no construction can it be said to
charge the offense of which the accused was convicted. Id.
We have previously noted that to the extent a defendant’s motion for bill of particulars is
an effort to correct alleged inadequacies in the information for purposes of preparing an adequate
defense, a motion to quash is the proper method of attack. State v. Case, 4 Neb. Ct. App. 885, 553
N.W.2d 173 (1996). In this case, the record presented to us on appeal does not contain any
motion to quash. In Nebraska, the rule is that all defects which may be excepted to by a motion
to quash are considered waived by a defendant who enters a plea to the general issue. Neb. Rev.
Stat. § 29-1812 (Reissue 2008).
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Even assuming that a motion for bill of particulars is sufficient to raise the issue and not
consider it waived, the Nebraska Supreme Court has clearly held that an information is sufficient
where it alleges the commission of a crime using language of the statute defining that crime or
terms equivalent to such statutory definition. State v. Davlin, 272 Neb. 139, 719 N.W.2d 243
(2006); State v. Van, supra. We cannot say that the fifth amended information was “so defective
that by no construction can it be said to charge the offense[s] of which [Gomez] was convicted.”
See State v. Van, supra. We find this assertion to be without merit.
On appeal, Gomez also argues that “[b]ased upon the evidence at trial the State could
come back and charge [him] with 30 or 40 more counts of the exact same charge because we
have no way of determining whether those charges would be barred by the former adjudication
or not.” Brief for appellant at 23.
In State v. Martinez, 250 Neb. 597, 550 N.W.2d 655 (1996), the Nebraska Supreme Court
specifically addressed the issue of the required specificity of pleading in sexual assault cases for
purposes of double jeopardy protection. In that case, the court recognized that because sexual
assaults on minors are typically unwitnessed and can leave little or no physical evidence,
prosecutors are often left to base the State’s case largely on the testimony of the minor victim,
who is often unsure of the particular date on which an assault or assaults occurred. The court
recognized that the problem is particularly true when a child has been assaulted on a regular
basis and in a consistent manner and noted that the more frequent and repetitive the assaults and
the younger the victim, the more this problem is exacerbated. Id.
In Martinez, the court noted that requiring the State to allege a specific date, rather than a
timeframe, would effectively insulate the most vicious offenders and would be a policy that, by
its very definition, would be unconscionable. Thus, the court specifically concluded that a trial
court involved in a subsequent prosecution may tailor double jeopardy protection to reflect the
time period involved in the charge in the first prosecution. Id.
The State may allege a timeframe for its allegations of sexual assault of a child in its first
prosecution; as a quid pro quo to ensure that this liberty is not abused, the State must survive
double jeopardy scrutiny if it attempts a second prosecution based upon the same transaction
during the same timeframe. State v. Martinez, supra. Unless the offense charged in the second
prosecution is clearly separate and apart from the offense charged in the first prosecution, the
timeframe alleged in the first prosecution acts as a “blanket bar” for subsequent prosecutions. Id.
This balances the profound tension between the constitutional rights of one accused of child
molestation against the State’s interest in protecting those victims who need the most protection.
Id.
In State v. Martinez, 250 Neb. at 599, 550 N.W.2d at 657, the court concluded that an
information alleging that the defendant had committed “a first degree sexual assault against [the
victim] ‘between July 1, 1991 and June 18, 1994’” was constitutionally sufficient. The Supreme
Court rejected the defendant’s argument that this timeframe was insufficient to allow him to
plead a conviction as a bar to a later prosecution and concluded that the information “passed
constitutional muster.” Id. at 602, 550 N.W.2d at 659.
In the present case, after Gomez filed his motion for bill of particulars and complained
that the fourth amended information provided insufficient detail, the State filed a fifth amended
information. The operative pleading in this case alleged one count of first degree sexual assault
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had occurred between May 1 and September 9, 2011; alleged one count of child abuse and one
count of third degree sexual assault had occurred between May 1 and June 30, 2011; and alleged
one count of child abuse and one count of third degree sexual assault had occurred between July
1 and September 9, 2011. Gomez’ argument that such pleading prevents him from being able to
plead his convictions as a bar to later prosecutions for other offenses occurring during these time
periods is meritless.
Finally, Gomez argues on appeal that the operative pleading provided him insufficient
notice to allow him to present an alibi defense.
Neb. Rev. Stat. § 29-1927 (Reissue 2008) requires a defendant wishing to present
evidence of an alibi defense to file notice of such intention at least 30 days before trial. The
record presented to us on appeal does not contain any such notice. We note that Gomez’ counsel
did argue the inability to prepare an alibi defense at the hearing on his motion for bill of
particulars.
In this case, as we have already concluded above, the information was sufficiently
specific to satisfy constitutional requirements. Gomez’ assertion that an information charging
instances of sexual assault during a timeframe, rather than on a specific date, makes attempting
to assert an alibi more difficult, we note that the same difficulty was certainly present in State v.
Martinez, supra, where the defendant was charged with committing an offense at some point
during a nearly 3-year timeframe. Gomez has not demonstrated how his difficulty was any more
substantial than in any case where the State has charged a defendant based on a timeframe,
which charging has specifically been held sufficient to satisfy constitutional requirements. We
find no merit to this assertion.
2. GOMEZ’ OBJECTIONS
Gomez next asserts that “[t]he court erred in several of its rulings on [Gomez’]
objections, the totality of which denied [Gomez] a fair trial.” Gomez argues that the court erred
in its rulings regarding admission of his interview, questions about the victim’s Facebook
account, alleged hearsay testimony of a witness, the victim’s interpretation of a statement made
by Gomez in a Facebook message to her, and testimony about why a report was made to DHHS.
We find no merit to Gomez’ assertion that there was error or that it, cumulatively, deprived him
of a fair trial.
We first note that although Gomez’ assigned error is not that any of these alleged
erroneous rulings on its own would merit reversal, but, rather, that “[t]he sum of these errors was
to deny [him] due process.” Brief for appellant at 28. Gomez never argues why the sum of these
alleged errors deprived him of a fair trial, instead only arguing each individual assertion
constituted error and then concluding that all of them together amounted to a due process
violation.
(a) Admission of Gomez’ Interview
On appeal, Gomez first argues that the district court erred in accepting the State’s offer of
Exhibit 6, an audio recording of the interview of Gomez. Specifically, he argues on appeal that at
trial he “objected in regards to the portion [of the interview] that referred to [Gomez’] drug use”
and that “[t]he court accepted the exhibit over [his] objection.” Brief for appellant at 24. He
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argues that it was “error on the part of the court to accept the exhibit or to do so without a
limiting instruction.” Id. at 25.
Our review of the trial record indicates that when the State offered the exhibit, Gomez’
counsel objected that “[the] exhibit contains questioning of improper nature regarding drug use
by . . . Gomez” and requested that “[t]hat portion should be redacted and not published to the
jury.” The State responded that it already had “redacted all the portions about marijuana” and
asked if there was some section of the interview where redacting had not been done. Gomez’
counsel represented that he “thought it was still there . . . but [he] only had it once to play it.”
The State then offered to “go back and review it to make sure” and represented that it had
“intended to redact that.” The court then took a break to allow the State to review the exhibit and
make sure that references to drug usage had been redacted. After the break, the State reoffered
the exhibit and the court received it. Gomez’ counsel did not raise any additional objection
before the exhibit was published to the jury, did not raise any objection during the exhibit’s
publication, and did not raise any objection after the exhibit had been published to the jury.
Gomez’ brief on appeal leaves the distinct impression that the interview contained
references to drug usage, that he objected to the jury hearing those references, and that the trial
court disregarded his objection and received the interview without regard to his objection that
there were references to drug usage. Such is not an accurate representation of what transpired at
trial. Rather, the record is clear that the court and the State agreed that references to drug usage
should not be published to the jury and the State represented that those references were redacted
from the exhibit so that the jury would not hear them. The court even took a break during which
the State reviewed the exhibit again to make sure this was done. Gomez did not further object.
On appeal, he has not provided any indication that any references to drug usage remained in the
exhibit that was published to the jury. Gomez’ argument that the court erred in admitting this
exhibit over his objection is meritless.
(b) Testimony About Facebook Messages
On appeal, Gomez next argues that the court erred in its rulings concerning testimony of
Deputy Carey concerning N.G.’s Facebook account. Specifically, he complains that after the
court sustained one objection to a question asked by the State, it overruled an objection to a
second question. This argument has no merit.
During his testimony, Deputy Carey was asked about a series of Facebook messages that
appeared on N.G.’s Facebook account and appeared to be a private conversation between Gomez
and N.G. During that testimony, the State asked Deputy Carey if he had read the messages, and
he indicated that he had. The State then asked, “Did you come away with any impressions or
anything unusual, anything extracted as unusual?” Gomez’ counsel objected “to the form of the
question,” and the court sustained the objection. The State then asked, “What was your
impression of the Facebook messages?” Gomez’ counsel made the “[s]ame objection,” which
was overruled. Deputy Carey answered that “[t]here was one part in there that [he] felt was
rather disturbing.” He was not then asked what part or what he found disturbing. Gomez’ counsel
asked questions about the topic during his cross-examination of Deputy Carey.
In his brief, Gomez “[grants that] the objection was to the form of the question and it
should have been also objected to on grounds of relevance,” but argues that “how that question
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could be objectionable [as first asked] and then alright when the question was [as asked the
second time] is difficult to discern.” Brief for appellant at 25.
On appeal, a defendant may not assert a different ground for his objection to the
admission of evidence than was offered at trial. See State v. Timmens, 263 Neb. 622, 641
N.W.2d 383 (2002). An objection, based on a specific ground and properly overruled, does not
preserve a question for appellate review on any other ground. Id.
The first time that the question was asked, it was properly objectionable as to form and
the court properly sustained Gomez’ objection on that basis. The State rephrased the question,
and the second time it was asked there was no longer a problem with its form. Gomez’ objection
to the question the second time it was asked was only to its form, and Gomez did not object on
the basis of relevance. Gomez cannot, on appeal, assert a different basis for objecting to the
question that was not raised to the trial court. This argument is meritless.
(c) Alleged Hearsay
On appeal, Gomez next argues that the court erred in allowing one of N.G.’s friends to
testify about a statement N.G. had made to the witness. Gomez argues that the statement was
hearsay and that it was not properly received for its effect on the hearer or to rebut allegations of
recent fabrication.
One of N.G.’s friends testified that she had gone to the fair with N.G. and one other
friend. The State asked her, “When you were at the fair . . . did [N.G.] ever tell you anything that
was disturbing to you?” The friend answered, “Yes.” The State then asked her what N.G. had
said, and Gomez’ counsel objected on the basis of hearsay. In response, the State indicated that
the testimony was being elicited “for the effect on the [hearer], and also to rebut any recent
allegations of recent fabrication.” The court overruled the objection. The friend then testified that
N.G. had told her that “she was afraid of what her dad might do if she was late or didn’t do . . . a
chore or something. And she was afraid that he might hurt her.”
Gomez’ counsel again objected and asked the court to strike the answer. In a sidebar,
Gomez’ counsel argued that the testimony could not be elicited to rebut an allegation of
fabrication because N.G. had not yet testified and that it was, therefore, “premature.” The State
argued that Gomez’ counsel had “brought it up in his opening statement” and again argued that
the testimony “goes to the effect on the [hearer] as directly relevant to the facts in this case.” The
court emphasized that Gomez’ counsel had brought the matter of fabrication up in his opening
statement and indicated concern that the parties would be “parading witnesses back and forth”
when “the issue is whether or not [N.G.] is telling the truth.” The court again overruled the
objection.
The State then asked the friend what N.G. had told her that she considered troubling.
Gomez again objected “on hearsay,” and the court again overruled the objection. The friend
testified, again, that N.G. had said that she was afraid of what Gomez might do if she came home
late or did not do her chores and that she was afraid Gomez might hurt her.
In his brief on appeal, Gomez argues only that the testimony was not properly elicited to
rebut an allegation of fabrication because N.G. had not yet testified or had a statement presented
to the jury for which any allegation of fabrication could have been made or needed to be
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rebutted. Gomez has not presented any argument about why this testimony was not properly
elicited for its effect on the hearer.
Hearsay is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted. State v. Reinhart, 283
Neb. 710, 811 N.W.2d 258 (2012). An extrajudicial statement not offered to prove the truth of
the matter asserted is not hearsay. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
In this case, the statement was relevant for a nonhearsay purpose to demonstrate its effect
on the hearer. N.G.’s friend testified that because she was concerned by N.G.’s statement she
“made the decision to tell a responsible adult.” She testified that she told her grandmother. The
friend’s grandmother subsequently testified that when her granddaughter told her, she talked to a
coworker about it and that the coworker made a “report to the state.” Gomez did not object to the
grandmother’s testifying about what she did when she heard the statement or about her coworker
making a report. Deputy Carey testified that the investigation in this case was prompted by two
reports about N.G.’s making statements concerning Gomez, one from the school and one from
the person identified as the coworker of N.G.’s friend’s grandmother.
Because the testimony was relevant to the issues concerning the initiation of the
investigation in this case, it was appropriately offered for its effect on N.G.’s friend and to
demonstrate the chain of events that led to the investigation. The statement was not offered to
prove the truth of the matters asserted by N.G. It was nonhearsay, and Gomez’ argument to the
contrary is without merit. We need not further consider whether the statement was appropriate to
rebut any allegation of fabrication.
(d) N.G.’s Impression of Facebook Message
On appeal, Gomez next argues that the court erred in allowing N.G. to testify about what
a particular statement made in a Facebook message from Gomez to her meant to her, after twice
sustaining objections to questions asking N.G. what the statement meant. This argument is also
without merit.
During her testimony, N.G. was asked questions about a particular statement that
appeared in a Facebook message that appeared to have been sent from Gomez to N.G. The
message stated, “If you’re not red, we’ll get the punishment out of the way.”
The State first asked N.G. to “[t]ell the jury what that means.” Gomez’ counsel objected
that the question “calls for an interpretation by the witness, and the witness is not the one
claiming to be the declarant of the statement. Lacks foundation.” The court sustained the
objection.
The State then asked a handful of additional questions about how one could tell that
Facebook messages were being sent from a particular person or to a particular person. The State
then asked, “Did you receive [the above quoted] message that’s dated August 27?” N.G.
answered, “Yes.” The State then asked, “When you received it, did you know what that meant
where it says: ‘If you’re not red?’” N.G. again answered, “Yes.” The State then asked N.G. to
“tell the jury what that means.” Gomez’ counsel again objected that the statement was “not by
this person as declarant and it calls for speculation and interpretation as to what the statement
meant.” The court again sustained the objection.
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The State then asked N.G., “Did you have an understanding yourself of what it means to
say, ‘If you’re not red?’” N.G. responded, “Yes.” The State then asked N.G. to “[t]ell the jury
what it means to you.” Gomez’ counsel made the “same objection.” This time, the court
overruled the objection and allowed N.G. to testify that the statement meant “if [she was] off
[her] period.”
In his brief on appeal, Gomez argues that “[h]ow this question could be improper twice
but the third time be proper is hard to understand” and argues that “[s]imply couching it in terms
of what it means to [N.G.] as opposed to what it means, is a distinction without a difference.”
Brief for appellant at 27. We disagree.
The first two times the question was asked, the question specifically requested an answer
that had not been shown to appropriately be within N.G.’s knowledge--it asked for information
about what Gomez meant, without any foundation to demonstrate that N.G. knew what was in
Gomez’ mind when he wrote the words. As a result, the court appropriately sustained objections
related to the lack of foundation and the speculation about Gomez’ intent.
The third time, however, the question was no longer phrased to ask what Gomez meant or
what was in his mind. The third time the question was asked, it was rephrased to be specifically
limited to N.G.’s understanding of the message. As such, there was no longer any problem
related to foundation or speculation, which were the only two grounds upon which Gomez’
counsel had raised an objection. The rephrasing of the question is not a distinction without a
difference. The rephrasing resulted in a completely different question being asked and resulted in
the inapplicability of the objections Gomez raised.
In his brief on appeal, Gomez adds that “[a]nd what it means to her is irrelevant at any
rate.” Brief for appellant at 27. We need not address whether N.G.’s understanding of the phrase
was relevant because Gomez did not raise any objection to the question or the testimony on the
basis of relevance. On appeal, a defendant may not assert a different ground for his objection to
the admission of evidence than was offered at trial. See State v. Timmens, 263 Neb. 622, 641
N.W.2d 383 (2002). An objection, based on a specific ground and properly overruled, does not
preserve a question for appellate review on any other ground. Id. This argument is meritless.
(e) Report to DHHS
On appeal, Gomez next argues that the court erred in allowing testimony of a counselor
from N.G.’s school about what she had stated in a report to DHHS. Gomez argues that the
testimony lacked foundation and was “double hearsay.” Brief for appellant at 27-28. We find no
merit to this assertion.
The counselor testified that she made a report to DHHS concerning N.G. On
cross-examination, the State asked the counselor, “[O]ther than what [she] reported about what
[N.G.] told [her] what else did [she] report” to DHHS. Gomez’ counsel objected on the basis of
foundation and the question calling for “double hearsay.” The court overruled the objection,
indicating that it did not “think it’s being offered for the truth of the matter asserted, only as to
why she might have made a report.”
The counselor then testified that the school had received notification from a parent that
N.G. had reported that Gomez drank a lot and used drugs and that Gomez “had asked to have sex
with [N.G.], and if . . . she would not have sex with him, that he wanted her to go between his
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legs.” Gomez’ counsel renewed his objection and asked that the answer be stricken. The court
overruled the objection, but instructed the jury that the testimony was not admissible for the truth
of what was asserted and was limited only to consideration of the reason that the counselor had
made a report to DHHS.
On appeal, Gomez argues that the reason for the counselor’s making a report to DHHS
“was irrelevant and even if it did have some minor relevance that relevance was outweighed by
the undue prejudice of having the jury hear accusations that [Gomez] drank and used drugs as
made by some anonymous [person] who could not be cross-examined.” Brief for appellant at 28.
Once again, however, Gomez did not object to this testimony on the basis of relevance or on the
basis of undue prejudice, and we do not consider whether those objections would have been
properly sustained. See State v. Timmens, supra. The testimony was relevant to establishing why
the counselor made a report, and the report was relevant to the start of the investigation in this
case. The testimony was not offered for the truth of the matters asserted therein, and the jury was
specifically instructed not to consider it for that purpose. This argument is also without merit.
(f) Conclusion
We have concluded that none of the specific arguments raised in Gomez’ brief
concerning alleged errors by the district court in ruling on objections has merit. As noted above,
Gomez did not present any argument to demonstrate why there was any cumulative effect from
these alleged errors, and, inasmuch as we do not find merit to any of the assertions on their own,
we likewise find no merit to the assertion of cumulative error. This assigned error is without
merit.
3. STATE’S EXPERT
Gomez next asserts that “[t]he court erred in allowing an expert to testify who had never
seen the victim or any reports.” There is no separate argument section in Gomez’ brief devoted
to this assignment of error, and it is not clear on appeal whether Gomez is asserting error with
regard to the expert witness called during the State’s case in chief or the rebuttal witness called
by the State after Gomez had rested his case.
It is firmly established that to be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party asserting the error.
State v. Fioramonti, 22 Neb. Ct. App. 52, 847 N.W.2d 95 (2014).
In this case, it is arguable that Gomez has waived the right to have this assignment of
error considered. There does not appear to be a specific argument concerning the testimony of
the expert called during the State’s case in chief, which is the witness that the assignment of error
seems to be directed toward. There is an argument presented, in the midst of Gomez’ arguments
about cumulative evidentiary rulings discussed above, concerning specific testimony allowed
from the State’s rebuttal witness. In the interest of completeness, we briefly address both
witnesses’ testimony.
During its case, the State called a clinical psychologist to testify “generally” about
psychology as it relates to child sexual abuse. The State specifically represented at the outset of
the psychologist’s testimony that it was “not going to ask [him] anything about this case.”
Gomez objected to the psychologist’s testimony on the grounds that “the topic is irrelevant and
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it’s speculative unless there’s a foundation provided that [the psychologist] has actually
interviewed the child in this case.” The court overruled the objection, but granted Gomez a
continuing objection to the psychologist’s testimony.
The psychologist presented testimony about “how children tell about being sexually
abused,” how they respond to being interviewed, the frequency of “delayed disclosure,” and
various reasons explaining why children do not always “tell about abuse right away.” He
testified about ways in which children can “sometimes get used to being sexually abused” and
ways in which they “may try to adjust to it or tolerate it.” He also testified about the possibility
of children falsely reporting sexual abuse.
The psychologist was cross-examined by Gomez’ counsel. He acknowledged that he had
never met N.G. and had not reviewed any psychological or mental health examination records or
medical records regarding her. He also acknowledged that he had never met Gomez and had not
evaluated or reviewed any mental health or medical records regarding him. He acknowledged
that he was not providing any specific opinions regarding this case.
The State’s rebuttal witness provided testimony in rebuttal to Gomez’ expert’s testimony.
During her testimony, the State asked her the following question:
How does the home environment of a child affect psychological - let’s see. Discuss a
child’s background as it relates to examination or - sorry, I’m tired. Could you discuss the
importance of a child’s background as relates to child abuse?
Gomez’ counsel objected that “[t]he witness hasn’t expressed she’s formulated an opinion on the
topic, and I think the form of the question is inappropriate, too.” The State reformulated the
question as, “What impact does the child’s home environment have on sexual abuse?” Gomez’
counsel made the “same objection.” The court overruled the objection, and the rebuttal witness
testified that there are generally no specific backgrounds or behaviors that necessarily indicate
whether a child has or has not been sexually abused.
In addition, the rebuttal witness was asked to provide general testimony about
confirmatory bias. Gomez objected on the basis of relevancy. The court overruled the objection,
and the rebuttal witness testified generally that the purpose of interviews at places like the Child
Advocacy Center is to provide the most comfortable environment in which to get the statement
from the child and that the risk of influences on the child is “much less” of a concern as children
get older than when children are younger.
In his brief on appeal, Gomez argues that the rebuttal witness was not asked if she had
been able to formulate opinions about the specific facts of this case, the impact N.G.’s home
environment might have had on her allegations, or about confirmatory bias in the present case.
Gomez argues that “[t]his witness had never seen the child, talked to the child, or seen any
reports regarding this child.” Brief for appellant at 29.
Our review of the record indicates that neither witness was asked by the State about the
specifics of this case. The first witness was called to present general testimony about sexual
abuse cases, specifically testified that he was not rendering any opinions about the details of the
present case, and was thoroughly cross-examined by Gomez’ counsel. Similarly, the rebuttal
witness presented general testimony after Gomez’ expert had called into question the reliability
of interviews of N.G. The rebuttal witness testified generally about child abuse cases, proper
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interview procedures, and the potential risk of confirmatory bias. Her testimony was all
presented as rebuttal to the suggestions of Gomez’ expert witness. To the extent Gomez has not
waived consideration of any alleged error concerning these witnesses’ testimony, we find the
assertion of error to be without merit.
4. SEQUESTRATION ORDER
Gomez next asserts that “[t]he court erred in lifting the sequestration order in the middle
of the trial so that the State’s undisclosed rebuttal expert could listen to [Gomez’] expert.”
Gomez argues that it was “[p]erhaps the most egregious, damaging error by the court” to allow
the State’s rebuttal expert to be present in the courtroom and to listen to Gomez’ expert witness’
testimony “after the State had called one expert to testify that [Gomez’] expert was not allowed
to sit in on.” Brief for appellant at 29. We find no merit to this assertion.
The trial court has broad discretion over the general conduct of trial. State v. Archie, 273
Neb. 612, 733 N.W.2d 513 (2007). The court must also exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence, so as to make the
interrogation and presentation effective for the ascertainment of the truth. Id.
To establish reversible error due to violation of a sequestration order, a defendant must
make a showing of prejudice. State v. Cottingham, 226 Neb. 270, 410 N.W.2d 498 (1987); State
v. Hess, 225 Neb. 91, 402 N.W.2d 866 (1987).
The record suggests that several months prior to trial, Gomez moved for sequestration of
witnesses during the trial and the district court granted the motion. During Gomez’ case, the
State requested “the sequestration order be lifted for the purposes of one witness, [a] rebuttal
expert, so that she may observe [Gomez’] expert” witness’ testimony. Gomez objected to the
State’s request.
Gomez’ counsel noted that during a pretrial hearing for the appointment of an expert, the
court had specifically cautioned Gomez’ counsel to “employ . . . restraint” and had noted that the
court did not “want this to get out of hand in terms of the economic expenses of it.” The court
had indicated that it did not “expect this [expert retained on Gomez’ behalf] to sit in here for a
one or two week jury trial and listen to everything that’s happened, and charge the county $150
an hour or whatever they charge.” Gomez’ counsel argued that based on the sequestration order
and the court’s indications that Gomez’ retained expert was not to be in the courtroom and
listening to testimony, he had instructed the retained expert “specifically that she would not be
permitted to be in the courtroom during the testimony of other witnesses.”
Gomez’ counsel argued that Gomez’ retained expert would have been available to listen
to the expert called on behalf of the State, but that he “adhered to the . . . sequestration order.”
He argued that the State’s motion to lift the sequestration order for its rebuttal witness was
untimely and would unfairly prejudice Gomez’ defense.
The court noted that it had “allowed this type of situation to occur before” and noted that
expert witnesses are not factual witnesses. The court concluded that it did “not believe that . . .
Gomez would be prejudiced by this” and overruled his objection. Additionally, the court later
granted Gomez’ motion to further modify the sequestration order to allow his expert witness to
be present during the testimony of the State’s rebuttal witness.
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There is no indication in the record presented to us that Gomez made any request to have
his expert witness be allowed to listen to the testimony of the State’s expert witness. Although
his argument on appeal is largely devoted to suggesting that it was prejudicial to grant the State’s
request to allow the rebuttal witness to listen to the testimony of Gomez’ expert but not to allow
his own expert to listen to the testimony of the State’s initial expert, there is no indication that he
requested such or that the court refused to allow him a similar exception to the sequestration
order. The court’s comments during the appointment of Gomez’ expert do not demonstrate that
the court would not have allowed Gomez’ expert to listen to the testimony of one particular
witness; rather, the court’s comments indicated that Gomez’ expert should not sit in during the
entirety of the lengthy trial.
Not only does the record fail to demonstrate that Gomez requested any modification to
the sequestration for his expert witness to listen to the testimony of the State’s initial expert, but
it affirmatively demonstrates that the court did allow a similar modification of the sequestration
order to allow Gomez’ expert to listen to the testimony of the State’s rebuttal expert. Gomez has
not demonstrated any actual prejudice from the court’s discretionary handling of the
sequestration order in this case. See State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006)
(defendant must prove that alleged error actually prejudiced rather than creating only possibility
of prejudice). This assigned error is without merit.
5. UNDISCLOSED EXPERT
Gomez next asserts that “[t]he court erred in allowing an undisclosed expert to testify.”
He argues that it was error to allow the State to call a rebuttal witness who had not been
disclosed prior to the start of trial. This assertion is meritless.
After the district court overruled Gomez’ objection to the State’s motion to lift the
sequestration order for its rebuttal witness to observe the testimony of Gomez’ expert witness,
Gomez objected to the witness’ being allowed to testify because she had not been previously
disclosed as a possible witness in the case. On the basis that she was a rebuttal witness, the court
overruled Gomez’ objection.
Gomez’ expert provided testimony about her opinions about the investigation and
analysis of the reports in this case. She expressed concerns that there was not exploration of
DNA evidence to bolster or corroborate N.G.’s assertions, that there had not been an explanation
for any “alternative hypothesis” as a cause of N.G.’s behavior, and that there was potentially
“confirmatory bias” throughout the work done by “the investigators, the therapists, the police
department.” She expressed concern that therapists who had spoken with and worked with N.G.
had not conducted a sufficient differential diagnosis.
Gomez’ expert also testified about what she believed was necessary to constitute proper
training and protocols for conducting interviews with children who report sexual abuse. She
testified that she had “many issues” with the interviews of N.G. that were conducted in this case,
including that N.G. only reported “real serious issues as time went on” and that “there was
nobody in [N.G.’s] life . . . that ever questioned [her] reliability or history, her memory.” She
also emphasized that N.G. had “in no way appeared to be traumatized” at the time of her first
interview with the Child Advocacy Center and that she “seemed a little bit immature,
tomboyish.”
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The State’s rebuttal witness addressed a number of the topics testified to by Gomez’
expert. She testified that psychologists are not trained in how law enforcement investigations
should be conducted. She testified that a differential diagnosis is not appropriate with respect to
whether someone has been sexually abused, although certain symptoms might be appropriately
subject to a differential diagnosis. With respect to N.G.’s demeanor during her interviews at the
Child Advocacy Center, she testified that one of the primary purposes of an advocacy center is to
make the child feel as comfortable and relaxed as possible.
Gomez’ counsel conducted a cross-examination of the State’s rebuttal witness. During
the cross-examination, he asked the witness questions about appropriate interviewing of children
who report sexual abuse and about the potential effects of caseworkers having contact with a
reporting child outside of the confines of an advocacy center. He also questioned her about her
opinions concerning differential diagnoses in sexual abuse cases.
It has long been the rule in this state that the requirement that the names of the witnesses
for the state must be endorsed upon the information has no application to rebuttal witnesses.
State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000); State v. Pratt, 197 Neb. 382, 249
N.W.2d 495 (1977). It is clear that the witness was properly considered a rebuttal witness,
presented testimony directly in rebuttal to Gomez’ expert witness’ testimony, and was properly
allowed to testify. This assigned error is meritless.
We note that in his brief on appeal, Gomez also presents an argument that the district
court erred in refusing to grant his motion for a mistrial “based on the sequestration order
change.” Brief for appellant at 36. Gomez did not assign as error any allegation related to a
motion for mistrial and has, accordingly, not properly presented such an assertion on appeal. See
State v. Fioramonti, 22 Neb. Ct. App. 52, 847 N.W.2d 95 (2014) (must both specifically assign and
specifically argue alleged error). In addition, to the extent we have concluded that there was no
error related to the court’s discretionary handling of the sequestration order, it is clear that a
mistrial was not warranted on that basis.
6. § 28-319.01
Gomez next asserts that “[t]he court erred in applying . . . § 28-319.01 sentencing
standards when the Information led [Gomez] to believe that it was a 15 year non-mandatory
minimum sentence for [the first degree sexual assault of a child charge].” Gomez was properly
advised about the potential sentencing range in this case, including the mandatory minimum
15-year sentence required upon conviction, and this assertion of error is without merit.
At the conclusion of the case, at a hearing on a motion for new trial that is discussed
more thoroughly below, Gomez asserted that he had been subject to “accident or surprise”
regarding the potential sentencing range on the first degree sexual assault of a child conviction.
He argued that he discovered through the presentence investigation report that a Class IB felony
charge “has a maximum sentence of life imprisonment and minimum sentence of 20 years in
prison.” Gomez “indicated surprise at that and pointed out . . . that the Information filed by the
State had indicated . . . that [the first degree sexual assault of a child charge] carried a minimum
sentence of 15 years imprisonment.” He noted that this recitation was present in the original
information and again in each of the five amended informations. He asserted that “he was
misinformed, feels he was misled in that regard, and that the representation . . . did affect his
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decision-making as far as determining whether . . . to enter plea negotiations, . . . to accept plea
offers . . . and whether . . . to proceed with trial in this case.”
The State noted that § 28-319.01 “itself says there’s a mandatory 15 year minimum
sentence.” The State noted that although the penalty for a Class IB felony is 20 years’ to life
imprisonment, the sexual assault penalty section provides that the particular first degree sexual
assault charged in this case is subject to a mandatory minimum sentence of 15 years that has to
be served “before he’s parole eligible.” The State submitted that the various informations
contained “a correct statement of the law.” The State also argued that the court had appropriately
“explained the punishment portion at arraignment and at the pretrial hearing.”
The record reflects that every information filed, from the original information through
each of the amended informations and including the fifth amended information, which trial was
held on, indicated that the first degree sexual assault of a child charge was being brought
pursuant to § 28-319.01(1)(b) and that the relevant penalty section was § 28-319.01(2). Each
information indicated that the charge was a Class IB felony offense and that there was a “15 year
minimum sentence.” At the time of Gomez’ arraignment, the district court specifically explained
to him that the charge was a Class IB felony offense that had “a minimum imprisonment
sentence of 20 years and a maximum of life” and explained that “[h]owever, if . . . found to have
committed this offense, [Gomez] would be subject to a mandatory minimum of 15 years, and
that would mean that [he] would not be eligible for parole or probation until that 15 year period
has elapsed.”
Gomez’ argument on his motion for new trial and on appeal that he was surprised to
discover, after trial, that the first degree sexual assault of a child conviction carried a minimum
sentence of 20 years’ imprisonment and that the 15-year “minimum” term of imprisonment
referenced in the various informations filed in this case was a mandatory minimum is belied by
the record, which demonstrates that he was specifically advised of both. The court did not
commit error in applying § 28-319.01(2), which section was specifically referenced in the
operative information and specifically and clearly indicates there is a 15-year mandatory
minimum that was explained to Gomez at his arraignment. This assignment of error is meritless.
7. SUFFICIENCY OF EVIDENCE
Gomez next asserts that “[t]here was insufficient evidence with which to convict [him].”
Gomez argues on appeal that “the fact of the matter is here [sic] that the purported victim was, in
essence, the only evidence of [Gomez’] guilt” and then argues at length about why her testimony
should not be found to be credible. We do not reassess credibility of witnesses on appeal, Gomez
does not assert that the State failed to present testimony establishing the elements of the crimes
of which he was convicted, and this assignment of error is without merit.
In reviewing 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. Wiedeman, 286 Neb. 193, 835 N.W.2d 698
(2013). On a challenge to the sufficiency of the evidence, the relevant question for an appellate
court is whether, after viewing the evidence in the light most favorable to the prosecution, any
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rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. See id.
Gomez’ argument on appeal consists primarily of several pages of argument about why
N.G.’s testimony lacked credibility and contained inconsistencies. Gomez had the opportunity to
argue those credibility issues and inconsistencies to the jury and, in fact, did cross-examine
witnesses and spent considerable time at trial demonstrating the very issues he now argues on
appeal. Despite his acknowledgment on appeal that credibility matters are not reconsidered on
appeal and are for the finder of fact, the sum and substance of his argument concerning the
alleged insufficiency of the evidence is that it was insufficient because of credibility matters.
The testimony of N.G. and the other key witnesses has been recounted in some detail
above and need not be restated here. We do not reassess the credibility of witnesses that the jury
chose to believe, and after viewing the testimony in the light most favorable to the State, it is
clear that a rational trier of fact could have found the essential elements of the crimes proven
beyond a reasonable doubt. This assignment of error is without merit.
8. MOTION FOR NEW TRIAL
Finally, Gomez asserts that the “court erred in overruling [his] Motion for New Trial.”
The motion was based on the same assertions of error already discussed thoroughly above, and
like those assertions of error, the assertion that the court erred in denying a new trial lacks merit.
In a criminal case, a motion for new trial is addressed to the discretion of the trial court,
and unless an abuse of discretion is shown, the trial court’s determination will not be disturbed.
State v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014).
Gomez filed a motion for new trial. In the motion, he alleged that a new trial was
warranted on the basis of irregularity in the proceedings; misconduct of the jury, prosecuting
attorney, or witnesses for the State; accident or surprise; insufficiency of the evidence; and error
of law. At the hearing on his motion, Gomez’ counsel offered an affidavit of Gomez.
At the hearing on his motion, Gomez’ counsel “reassert[ed] the objections that were
made during the trial, evidentiary rulings” made by the court, and specifically pointed to the
court’s “lifting the motion to sequester regarding the State’s expert witness” and the
insufficiency of the evidence as supporting the motion for new trial. He also raised the issue
addressed above concerning the potential range of sentences under § 28-319.01 and argued that
“accident or surprise” with respect to the range of sentences justified a new trial.
Inasmuch as we have already found that Gomez’ various assertions of error lack merit,
and inasmuch as his motion for new trial was premised on the same assertions of error already
discussed more thoroughly above, we likewise find no abuse of discretion by the district court in
denying his motion for new trial. This assignment of error is without merit.
V. CONCLUSION
We find no merit to Gomez’ assertions on appeal. We affirm.
AFFIRMED.
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