State v. Garcia-Pelico

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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. GARCIA-PELICO
Cite as 31 Neb. App. 707State of Nebraska, appellee, v.
Ariel Garcia-Pelico, appellant.
___ N.W.2d ___
Filed March 28, 2023. No. A-22-535.
1. Criminal Law: Trial. In criminal prosecutions, the withdrawal of a rest
in a trial on the merits is within the discretion of the trial court.
2. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
3. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
4. Sentences: Appeal and Error. When sentences imposed within statu-
tory limits are alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering well-established factors and any applicable legal principles.
5. Sentences. The relevant factors for a sentencing judge to consider
when imposing a sentence are the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) motivation for
the offense, as well as (7) the nature of the offense and (8) the amount
of violence involved in the commission of the crime.
6. ____. The sentencing court is not limited to any mathematically applied
set of factors, but the appropriateness of the sentence is necessarily a
subjective judgment that includes the sentencing judge’s observations
of the defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.
Appeal from the District Court for Hall County: Patrick M.
Lee, Judge. Affirmed.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. GARCIA-PELICO
Cite as 31 Neb. App. 707Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Pirtle, Chief Judge, and Riedmann and Arterburn,
Judges.
Pirtle, Chief Judge.
INTRODUCTION
Ariel Garcia-Pelico was convicted in Hall County District
Court of first degree sexual assault of a child and sentenced to
45 to 60 years’ imprisonment. He appeals his conviction, argu-
ing that the court erred in allowing the State to reopen its case
after it rested and arguing that his sentence is excessive. Based
on the reasons that follow, we affirm.
BACKGROUND
On August 4, 2021, Garcia-Pelico was charged by infor-
mation with first degree sexual assault of a child, a Class IB
felony. The victim, C.B., was the 13-year-old daughter of a
woman Garcia-Pelico was having an affair with.
At trial, the State presented the testimony of five wit-
nesses and then rested. Garcia-Pelico’s counsel moved for a
directed verdict, stating, “We contend that the State did not
submit sufficient evidence in its case in chief for the Court to
believe that sexual penetration, as defined under the statute,
occurred.” The court asked counsel whether the motion was
“based solely on the element of sexual penetration.” Counsel
replied, “We contend that the State did [not] meet its burden
of proof, but I just wanted to draw specific direction to that
specific element.” In response, the State argued that it had
established every element of the offense, including Garcia-
Pelico’s age. The court then asked the State how it established
Garcia-Pelico’s age. The State asked for a “moment” and then
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. GARCIA-PELICO
Cite as 31 Neb. App. 707responded that it might not have established Garcia-Pelico’s
age. At that point, the State asked for leave to reopen its case
in order to inquire as to Garcia-Pelico’s age. Garcia-Pelico
opposed the motion. The court noted that it could allow the
State to reopen its case under certain circumstances. It took a
recess to review relevant case law, and upon returning to the
bench, the court granted the State’s motion.
The State then recalled a police officer who testified as
to Garcia-Pelico’s date of birth. The State then rested, and
Garcia-Pelico again moved for a directed verdict. The court
overruled the motion, and Garcia-Pelico presented evidence
in his defense, which included his son’s testimony and his
own testimony.
The case was ultimately submitted to the jury, which returned
a verdict of guilty. The district court accepted the jury’s ver-
dict and adjudged Garcia-Pelico guilty of the offense. It also
ordered a presentence investigation report and a sex offender
evaluation. The court subsequently sentenced Garcia-Pelico to
a term of 45 to 60 years’ imprisonment.
ASSIGNMENTS OF ERROR
Garcia-Pelico assigns that the district court erred in (1)
allowing the State to reopen its case in chief after it had rested
and (2) imposing an excessive sentence.
STANDARD OF REVIEW
[1] In criminal prosecutions, the withdrawal of a rest in a
trial on the merits is within the discretion of the trial court.
State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).
[2,3] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. State v. Morton, 310 Neb. 355, 966 N.W.2d
57 (2021). A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying
a just result in matters submitted for disposition. Id.- 710 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. GARCIA-PELICO
Cite as 31 Neb. App. 707ANALYSIS
State’s Motion to Reopen Its Case.
Garcia-Pelico first assigns that the district court erred by
allowing the State to reopen its case after it had rested. More
specifically, he claims the court abdicated its role as a neutral
fact finder by alerting the State that it had failed to meet its
burden of proof regarding Garcia-Pelico’s age and then allow-
ing the State to reopen its case to cure its deficiency. He con-
tends that the State would not have moved to reopen its case
without the prompting by the district court and that therefore,
the court abused its discretion in granting the State’s motion to
reopen its case.
In granting the State’s motion, the court relied on State
v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014). In Bol, the
Nebraska Supreme Court affirmed the trial court’s decision
permitting the State to withdraw its rest and present additional
evidence. The State realized after resting its case that it had
forgotten to admit a stipulation that proved one of the charges
and asked the court for leave to reopen its case in chief to
submit the stipulation, which the court allowed. See id. On
appeal, the Supreme Court noted that allowing the withdrawal
of rest to fill in gaps in proof is proper, as long as the court
does not advocate for or advise the State to withdraw its rest.
Id. Because the State, rather than the trial court, had realized
the lack of proof, the Supreme Court determined the trial
court did not improperly abdicate its role as a neutral fact
finder and did not abuse its discretion in permitting the State
to withdraw its rest to put on additional evidence. Id.Garcia-Pelico argues that the present case is similar to State
v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000), overruled
on other grounds, State v. Nelson, 262 Neb. 896, 636 N.W.2d
620 (2001), overruled on other grounds, State v. Vann, 306
Neb. 91, 944 N.W.2d 503 (2020), where this court determined
the trial court abused its discretion in allowing the State to
withdraw its rest. In Gray, the defendant was found guilty
of forgery and an enhancement hearing was held prior to his
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. GARCIA-PELICO
Cite as 31 Neb. App. 707sentencing. At that hearing, the State offered three exhibits
as evidence of his prior convictions and then rested. The
defendant was then granted a continuance. Before the hearing
resumed, the court, on its own motion, notified all parties that
the exhibits offered by the State were not sufficient to prove
the prior convictions, because they contained no showing that
the defendant had knowingly and intelligently waived counsel
at the time he pled to the convictions. After receiving this noti-
fication from the court, the State sought to withdraw its rest to
present additional evidence, and the court allowed it to do so.
On appeal, this court concluded the trial court had abused its
discretion in allowing the State to withdraw its rest because
by informing the State that its evidence was insufficient, the
court had “departed from his role as neutral fact finder.” State
v. Gray, 8 Neb. App. at 992, 606 N.W.2d at 495.
We conclude that the present case is more like State v. Bol,
supra, than State v. Gray, supra, but even more comparable to
State v. McKay, 15 Neb. App. 169, 723 N.W.2d 644 (2006). In
McKay, the defendant was charged with assault by a confined
person. After the State rested its case, the defendant moved for
discharge, arguing that the State failed to present any evidence
that he was “‘legally’” confined at the time of the incident,
an element of the offense. Id. at 171, 723 N.W.2d at 646. The
court commented that the State needed to show “‘how he’s
there, how it is not by mistake or some other process that he is
there.’” Id. The court further commented that “‘[t]o say that a
correctional guard can testify to the legality of his detainment
is a stretch’” and that the State had not carried its burden. Id.Regardless, the court granted the State leave to research the
issue and adjourned for the day. The next day the State argued,
as one alternative, that it should be allowed to reopen its case
and present additional evidence. The court again commented
that the State had “‘wholly failed to show legal confinement,’”
but it granted the State leave to reopen its case. Id. at 172, 723
N.W.2d at 647.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. GARCIA-PELICO
Cite as 31 Neb. App. 707On appeal, this court concluded that the trial court in
McKay did not abuse its discretion in allowing the State to
withdraw its rest. We found that the trial court did not become
an advocate for the State, did not raise on its own motion any
alleged insufficiency of the State’s evidence, and did not raise
on its own motion the issue of the sufficiency of the evidence.
Rather, the court was presented with the issue as raised by
the defendant, and the court decided that issue. We further
noted that the evidence that the State had adduced prior to
resting was not clearly insufficient to demonstrate legal con-
finement. As such, we found that allowing the State to with-
draw its rest did not actually result in the filling of gaps in
the evidence.
In the present case, after the State rested and Garcia-Pelico
moved for a directed verdict, the State argued that it had
established every element of the offense, specifically men-
tioning Garcia-Pelico’s age. The court then asked the State to
explain how it had established Garcia-Pelico’s age, at which
point the State realized it had neglected to present direct evi-
dence of his birth date and asked to reopen its case to pres-
ent that evidence. As in State v. McKay, supra, the court did
not raise any alleged insufficiency of the State’s evidence on
its own motion and did not raise the issue of the sufficiency
of the evidence on its own motion. Instead, the issue was
raised by Garcia-Pelico. Further, the court did not advocate
for or advise the State to withdraw its rest, but, rather, it
allowed the withdrawal of rest to fill potential gaps in proof.
See State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014). We
note, as we did in McKay, that the record reveals that the
State did adduce circumstantial evidence of Garcia-Pelico’s
age. For example, the State presented evidence that Garcia-
Pelico was married, had a 16-year-old son, and was dating
a woman with three children, one of whom was a teenager.
Moreover, the jury was able to observe Garcia-Pelico during
the course of trial and consider the circumstantial evidence
presented regarding his age in conjunction with his physical
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. GARCIA-PELICO
Cite as 31 Neb. App. 707appearance. See State v. Lauritsen, 199 Neb. 816, 261 N.W.2d
755 (1978). On the facts before us, the court did not improp-
erly abdicate its role as a neutral fact finder and did not abuse
its discretion in allowing the State to withdraw its rest to put
on additional evidence.
Excessive Sentence.
[4] Garcia-Pelico next assigns that the district court erred by
imposing an excessive sentence. It is well established that an
appellate court will not disturb sentences within the statutory
limits unless the district court abused its discretion in establish-
ing the sentences. State v. Morton, 310 Neb. 355, 966 N.W.2d
57 (2021). When sentences imposed within statutory limits
are alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion in
considering well-established factors and any applicable legal
principles. Id.[5,6] The relevant factors for a sentencing judge to consider
when imposing a sentence are the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense and (8) the amount of violence involved
in the commission of the crime. Id. The sentencing court is
not limited to any mathematically applied set of factors, but
the appropriateness of the sentence is necessarily a subjective
judgment that includes the sentencing judge’s observations of
the defendant’s demeanor and attitude and all the facts and cir-
cumstances surrounding the defendant’s life. Id.Garcia-Pelico was convicted of a Class IB felony. See Neb.
Rev. Stat. § 28-319.01(2) (Reissue 2016). Statutory sentenc-
ing guidelines for this particular Class IB felony provide for
a maximum sentence of life imprisonment and a mandatory
minimum of 15 years’ imprisonment. Id.; Neb. Rev. Stat.
§ 28-105 (Cum. Supp. 2022). The court sentenced Garcia-
Pelico to 45 to 60 years’ imprisonment. The sentence imposed
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. GARCIA-PELICO
Cite as 31 Neb. App. 707by the court was within the statutory limits, so we must only
determine whether the court abused its discretion in establish-
ing the sentence.
At the sentencing hearing, the court heard argument from
counsel and a statement from C.B.’s mother. Prior to impos-
ing sentence, the court stated that it reviewed the presentence
investigation report, as well as the addendum and the sex
offender evaluation. It also reviewed the information concern-
ing Garcia-Pelico’s age, mentality, education and experience,
social and cultural background, past criminal record, record of
law-abiding conduct, and motivation for the offense, as well
as the nature of the offense and the nature of any violence
involved in the commission of the offense. The court further
noted that Garcia-Pelico was 40 years old, and the victim was
13 years old, and that he had taken no accountability for his
actions and shown no remorse. The court found Garcia-Pelico
had no credibility.
The sentence imposed by the district court was not an abuse
of discretion. The court reviewed the presentence investigation
report, reviewed the sex offender evaluation, and considered
all the appropriate sentencing factors. There is nothing in
the record to indicate the court considered any inappropriate
factors in determining the sentence to impose. As a result,
Garcia-Pelico’s sentence is not excessive and his assignment
of error fails.
CONCLUSION
We conclude that the district court did not abuse its discre-
tion in allowing the State to reopen its case after it rested and
did not impose an excessive sentence. The judgment of the
district court is affirmed.
Affirmed.