State v. Gomez
| Decision Date | 09 September 2014 |
| Docket Number | No. A-13-655.,A-13-655. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. JEFFREY A. GOMEZ, APPELLANT |
| Court | Nebraska Court of Appeals |
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.
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.
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, anddisplaying 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
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, 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 She testified that Gomez then "started kissing [her] bottom" and that he used his tongue when he did so. Shetestified 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...
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