State v. Gonzalez-Garcia
| Decision Date | 24 November 2020 |
| Docket Number | No. A-20-099.,A-20-099. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. DAVID GONZALEZ-GARCIA, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Douglas County: KIMBERLY MILLER PANKONIN, Judge. Affirmed as modified, and cause remanded with directions.
Christopher J. Roth, of Roth Weinstein, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.
David Gonzalez-Garcia appeals from his conviction for first degree sexual assault of a child and the sentence imposed thereon. He argues that the district court erred in admitting several exhibits into evidence, that the evidence was insufficient to support his conviction, and that the sentence imposed was excessive. For the reasons set forth herein, we affirm as modified and remand the cause with directions.
On November 14, 2018, Elizabeth Casey, a school social worker, filed a report with child protective services (CPS) outlining that a student (the victim) had disclosed that she was raped by her stepfather, Gonzalez-Garcia, the previous night and every night for the past month. Due to the nature of the allegations, Casey also spoke with law enforcement and the victim was transported to Project Harmony and then to Methodist Hospital where she underwent a sexual assault exam.
During the exam, the victim stated to Kelly Groux, a sexual assault nurse, that Gonzalez-Garcia came into her room "last night" and "'raped'" her and that he had been doing that since approximately mid-October 2018. The victim also explained that Gonzalez-Garcia kissed her "down there on her vagina." As part of the exam, the victim's genital area and breast area were swabbed for DNA testing, and her underwear, which she had worn on the night of the sexual assault, was collected as evidence.
The State charged Gonzalez-Garcia with one count of first degree sexual assault of a child, a Class 1B felony. See Neb. Rev. Stat. § 28-319.01(1)(b) (Reissue 2016). The State alleged that Gonzalez-Garcia, who was 25 years old or older, subjected the victim, who was at least 12 years old but less than 16 years old, to sexual penetration on or about October 1 through November 13, 2018.
Trial was held over multiple days in November 2019. During trial, testimony was adduced from witnesses including Casey; Maria C., a friend of the victim; Officer David Spizzirri, a school resource officer; the victim; Kelly Groux, a sexual assault nurse; and Joseph Choquette, a DNA analyst. The evidence established that Gonzalez-Garcia was born in June 1984.
Casey testified that on November 14, 2018, she observed the victim and her friends crying in the girls' restroom and inquired why they were upset. In connection with her discussion, Casey obtained a note, written by the victim as later established in Maria C.'s testimony, in which the victim stated, "every night like at 1:00 a.m. my step-father goes to me -- goes to my room and rapes me." As a result of these events, Casey reported her findings to the CPS hotline. The State offered the note as an exhibit to which Gonzalez-Garcia objected based on hearsay and foundation, arguing the author of the note was not disclosed at that time. The district court sustained the objection based on foundation. After additional questioning, the State again offered the note as an exhibit, but Gonzalez-Garcia objected on hearsay and foundation grounds arguing the author had not been presented. The district court sustained Gonzalez-Garcia's objections.
Later, the State offered the note into evidence during Maria C.'s testimony. Maria C. testified that the victim had written the note and that Maria C. only read part of the victim's note stating the victim was raped. This time, Gonzalez-Garcia objected solely only on the basis of foundation. Specifically, following the State's offer of exhibit 4, Gonzalez-Garcia's counsel stated: "Your Honor, at this time I would just make an objection on foundation that in terms of completeness, there was only one part that had been read not the entire -- the entirety of the evidence that's being entered." The district court overruled this objection and received the note into evidence.
Officer Spizzirri, a school resource officer, testified that once Casey informed him of the victim's allegations, he interviewed the victim regarding the events surrounding the allegations.Officer Spizzirri testified that he asked the victim if Gonzalez-Garcia engaged in intercourse or penetrated her, but she did not understand. Officer Spizzirri then rephrased his question and asked if Gonzalez-Garcia "put his penis inside her," to which she responded yes. The victim also indicated that these events occurred multiple times over the course of a month and that she pretended to be asleep during the sexual assaults.
The State commenced its inquiry by asking some biographical questions of the victim who testified she was 13 years old and in the eighth grade when the sexual assaults began. However, as the State probed into the specifics of the sexual assaults, the victim did not respond. The district court asked the victim if she would like a break and she nodded affirmatively. After the break, the State began by asking the victim if discussing this experience was hard, and she replied it was. Yet, the victim was able to answer questions regarding how Gonzalez-Garcia removed her clothing.
The State then proceeded to ask the victim to describe the touching that occurred, but she did not respond, even after being asked again. The State showed the victim the stick figure drawings and asked the victim to mark on the stick figure drawings where Gonzalez-Garcia touched her and the part of his body that he used to touch her. The stick figure drawings did not show any facial features or genitalia and showed a varying number of fingers, including four, five, and six. She placed a pink dot in the middle of the upper chest area and a pink dot on the genital area on the stick figure labeled with her name, and placed a pink "x" on each of Gonzalez-Garcia's hands on the stick figure labeled "David." The State offered these exhibits to which Gonzalez-Garcia objected based on foundation. The district court overruled the objection, and the exhibits were received into evidence. The State then used the marks on the stick figure drawings in its questioning, asking the victim if the marks on the stick figure labeled with her name signified Gonzalez-Garcia touching her chest, which the victim affirmed. The State then asked the victim what area of the body the lower mark represented, and she answered the part of her body that is covered by underwear, later testifying that the mark refers to her vagina. The victim also testified that Gonzalez-Garcia perpetrated the touching with his hands. The victim further testified that sometimes Gonzalez-Garcia's penis touched her stomach and that after these events ended and Gonzalez-Garcia left to go back downstairs, that the victim's sheets and blankets would be wet.
Groux testified that she performed a sexual assault exam on the victim on November 14, 2018. During the exam, the victim told Groux that Gonzalez-Garcia came into her room last night and "'raped'" her and that he had been doing that for about a month, since approximately mid-October. When Groux asked the victim "'So raping you means he put his penis in your vagina,'" the victim responded affirmatively. The victim explained that she would pretend she was asleep when Gonzalez-Garcia came into her room and raped her. Groux also testified that she asked the victim if Gonzalez-Garcia had ejaculated, but the victim was unfamiliar with what ejaculated meant, so the victim described what she felt, which was a "warm liquid inside of [her]" and that it was on her pajamas, bed, and body. The victim also told Groux that Gonzalez-Garciakissed her "down there on her vagina." Groux testified that she swabbed the victim's genital area and her breast area.
Choquette, employed by UNMC Human DNA Identification Laboratory as a DNA analyst, testified the victim's vaginal swab was consistent with a single-source female, presumably the victim. He also tested the swab from the left labia, which showed that the victim's DNA was consistent with a single female individual and the victim was not excluded as a contributor. Choquette generated a DNA profile from the swab of the victim's breast swab which showed the victim could not be excluded as a contributor of the DNA and Gonzalez-Garcia could not be excluded as a contributor of the DNA. Choquette testified that the DNA results of the victim's breast area were consistent with the victim's version of events. The DNA results from the underwear the victim was wearing during the sexual assault on the night of November 13, 2018, showed the victim and Gonzalez-Garcia were not excluded as contributors to the DNA profile. Choquette further explained that "[g]iven that [the victim] is a contributor to the mixture . . . the probability of an unrelated individual matching the DNA profile found within the mixture, given that . . . Gonzalez-Garcia expresses this profile, is approximately 1 in 1.56 septillion, which is 1 with 21 zeros."
After the conclusion of the evidence, the jury found Gonzalez-Garcia guilty of first degree sexual assault of a child, and the district court received the jury's verdict.
At the sentencing hearing held in January 2020, the district court informed Gonzalez-Garcia that the "conviction that you stand here for sentencing has caused you to be subject to the Sex Offender Registration Act [SORA]."...
To continue reading
Request your trial