State v. Chavez
| Decision Date | 29 November 2016 |
| Docket Number | No. A-15-1154.,A-15-1154. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. JORGE CHAVEZ, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Clay County: VICKY L. JOHNSON, Judge. Affirmed.
Daniel S. Reeker, of Kendall Law Office, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
Jorge Chavez appeals from his conviction in the district court for Clay County for three counts of third degree sexual assault of a child. On appeal, Chavez challenges the admission of certain testimony from a nonexpert witness, the sufficiency of the evidence to support his conviction, and the sentences imposed. He also asserts that he received ineffective assistance of trial counsel. For the reasons set forth herein, we affirm.
On March 24, 2015, the State filed an information in the district court, charging Chavez with one count of attempted first degree sexual assault of a child in violation of Neb. Rev. Stat. § 28-319.01 (Cum. Supp. 2014) and Neb. Rev. Stat. § 28-201 (Cum. Supp. 2014), a Class II felony. The State also charged Chavez with three counts of third degree sexual assault of a child, all Class IIIA felonies, although the State incorrectly identified these offenses as being in violation of § 28-319.01, rather than Neb. Rev. Stat. § 28-320.01 (Reissue 2008), the statute which sets forth the elements and penalties for second and third degree sexual assault of a child. Specifically, with respect to the first count, the State alleged that Chavez intentionally engaged in conduct, which under the circumstances as he believed them to be, constituted a substantial step in a course of conduct intended to culminate in his commission of the crime of sexual assault of a child by sexual penetration when he was at least 19 years of age and when the victim, N.F., was under 12 years of age or when N.F. was at least 12 but less than 16 and Chavez was 25 years of age or older. With respect to the other three counts, the State alleged that Chavez subjected N.F., a person 14 years of age or younger at the time of the act, to sexual contact while Chavez was 19 years of age or older in the living room, Chavez' bedroom, and in the basement.
A bench trial was held before the district court on September 23, 2015.
During the trial, the parties stipulated that Chavez was born in April 1970. N.F., born in January 2003, was 12 years old at the time of trial and was in the seventh grade. N.F. has one older brother, who was 15 years old at the time of trial, and a younger brother and sister, ages 10 and 8, respectively. N.F.'s parents separated in 2009 and divorced in 2010 or 2011. N.F.'s mother married Chavez in November 2012. N.F.'s mother and Chavez have two children together, boys ages 4 and 3 at the time of trial. After their parents' divorce, N.F. and her siblings lived with their mother and had visitation with their father for two days every 2 weeks, but they had been living with their father for close to 9 months at the time of trial. Chavez worked with N.F.'s father, and he lived with N.F.'s parents for about 3 years prior to the divorce.
N.F. lived in what she described as "the brown house" with Chavez, her mother, and her siblings when she was in fifth and sixth grade. The family moved into the brown house in approximately January 2013. The brown house had two bedrooms. N.F.'s mother and Chavez slept in one bedroom, and N.F.'s full brothers shared the other bedroom. N.F.'s youngest half-brother slept with Chavez and N.F.'s mother. N.F. slept on the floor, her sister slept on a couch, and her other half-brother slept in a crib, all located in the living room. The family's clothes were kept in the basement, except for N.F.'s half-brothers' clothes which were kept in their mother's room.
When the four oldest children lived with their mother, she worked 32 hours a week at a nursing home and left for work around 4:30 or 4:50 a.m. The children would set alarms on their phones to wake them up for school in the morning. Chavez, who is self-employed, working in the summers between June and October, would be home with the children in the morning after their mother had gone to work.
N.F. testified that Chavez began touching her "privates," by which she meant her "butt and vagina," when she was in fifth grade and they were living in the brown house. The touching occurred on more than one occasion and also happened when N.F. was in the sixth grade. Shortly after the family moved into the brown house, Chavez made some repairs to the home. N.F. testified that Chavez first touched her in his bedroom after these repairs had been completed, although her mother testified that the repair work was on-going with the "bulk of the upstairs stuff" having been completed only a month or two prior to trial. N.F. recalled that prior to the first touching incident,she was in Chavez' room changing her half-brothers' diapers. Chavez was in the room, and when N.F. had finished and was leaving the room, Chavez came up to her and started touching her. Chavez picked N.F. up and sat her on the bed. He touched N.F.'s buttocks and vaginal area on top of her clothes and also "got on top of" her. She told him to get off of her and stop, and he did so. Chavez did not say anything during or after the incident. N.F. did not tell her mother about it because she was scared. N.F. testified that there were other touching incidents in the bedroom.
N.F. described another touching incident that occurred in the fifth grade when she was in the basement. According to N.F., Chavez followed her down the stairs, picked her up "[l]ike a baby," sat her on his lap, and touched her "butt and vagina." N.F. could feel that Chavez' penis was hard when she was sitting on his lap. Chavez did not say anything to N.F. during the incident, and she did not say anything to him. Chavez never carried her like a baby in front of her mother but carried her like that in the basement on more than one occasion.
N.F. also described inappropriate touching that occurred in the living room. When N.F. was sitting on the couch watching television with her full siblings, Chavez covered the two of them with a blanket and touched her vaginal area on top of her clothes. N.F. testified that her full brothers saw Chavez touching her. Neither Chavez nor N.F. said anything during this incident. According to N.F., Chavez would occasionally come into the living room when she was sleeping on the floor and lay down by her. Her oldest half-brother would sometimes sleep on the floor next to her, and Chavez would lay beside N.F. until her half-brother was asleep. Then Chavez would hug her and touch her vaginal area on top of her clothes. Neither of them spoke on these occasions.
At some point while the family lived in the brown house, Chavez started touching N.F. under her clothes. The first incident occurred in the morning after N.F.'s mother had gone to work and before N.F. left for school at 7:50 a.m. Chavez was beside N.F. when she was changing one of her half-brother's diapers. When she had finished, Chavez laid her down on the bed, unzipped her pants, and put his hand under her underwear. N.F. testified that Chavez laid on top of her, touched and rubbed her vaginal area, and inserted his finger a "little bit" into her vagina. Chavez had his clothes on. N.F. testified that Chavez' penis was on her "bad spot" and that it "felt hard." Chavez did not say anything during the incident. N.F. told him to get off her, and he did. N.F. went to school that day. She did not tell anyone what Chavez had done that morning because she "didn't want to."
N.F. testified that there were occasions when Chavez would "just lay on top of" her and move "up and down." Chavez also touched N.F. under her clothes on more than one occasion. He only touched her under her clothes with his hands. The last time he did so was in January 2015 just prior to N.F.'s 12th birthday. On that occasion, Chavez was laying on his bed when N.F. went into his room to get money for breakfast at school. Chavez told her to "come over," and he hugged her and pulled her on top of him on the bed when she approached. N.F. was still wearing her pajamas at the time. Chavez rubbed her vaginal area with his hand under her clothes. N.F. could feel that Chavez' penis was hard. Chavez did not say anything to her during this incident.
Shortly after this incident, N.F. told her father about the touching because she was tired of it. N.F. told her father that she did not want to go back to her mother's house because Chavez had touched her. She returned to her mother's house, and that Wednesday she called her father to ask what he was going to do, if anything. N.F. began living full time with her father that Friday. N.F.never told her mother about the touching because she was scared. N.F. testified that her full brothers were aware the touching was occurring, but she did not know if they ever told their mother about it.
After reporting the touching, N.F. was interviewed by "Misty" on two occasions. N.F. testified that she did not tell Misty everything the first time because she was scared and did not know what to say. N.F. stated that she told Misty "everything that happened" during the second interview.
On cross-examination, N.F. testified that things were "fine" when Chavez first began living with her mother but got worse as time went on. She had wanted to move back with her father for quite a while, but she denied ever having discussions with him about moving back "before this happened." One of the reasons she wanted to live with her father was because the rules were less strict at his...
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