State v. Guzman
| Decision Date | 27 March 2020 |
| Docket Number | No. S-19-056.,S-19-056. |
| Citation | 305 Neb. 376,940 N.W.2d 552 |
| Parties | STATE of Nebraska, appellee, v. Victor GUZMAN, appellant. |
| Court | Nebraska Supreme Court |
Gregory A. Pivovar, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Victor Guzman appeals from convictions, pursuant to jury verdict, and sentences for first degree sexual assault and tampering with a witness.
Two issues predominate. We again enforce our requirement that assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance. And we resolve the State’s uncertainty whether sentencing error in a criminal case tried in the district court can or must be raised by a cross-appeal—concluding that generally, a cross-appeal is not permitted.
We find no merit to Guzman’s claims regarding a motion to suppress, a motion for a mistrial, insufficiency of the evidence, and an excessive sentence for the sexual assault conviction. But we find plain error in the sentence for witness tampering, which should have been an indeterminate rather than a determinate sentence. We vacate that sentence and remand the cause for resentencing, but we otherwise affirm Guzman’s convictions and the sentence imposed for the sexual assault conviction.
We begin by setting forth the factual background for the crimes charged. Bearing in mind our standard of review, we summarize this evidence in the light most favorable to the State. Additional background relevant to particular errors assigned will be supplied in the analysis.
On September 22, 2017, B.G. held a party at her apartment, where she lived with her daughter. One of the invitees, Alexa Thomas, brought a group of eight or nine people whom B.G. did not know, including Guzman. B.G. consumed alcohol to the point of being "drunk." She also snorted cocaine. B.G. began to feel sick and told everyone to leave. She vomited and then lay down in her bedroom.
B.G. heard her bedroom door open and saw a group of unknown males standing in her doorway. She felt her clothing being removed and her arms and legs being held. B.G. testified: Although B.G. did not give permission for anyone to have sex with her, she could tell that more than one male penetrated her vagina. Someone turned her head and inserted his penis in her mouth. According to an attendee at the party, Guzman said he had sex with B.G.
After B.G. began crying, the males left. B.G. checked on her daughter and then "passed out." When B.G. woke, she called her mother and asked her to come to B.G.’s apartment. At some point, B.G. told her mother that she had a party and "got raped." B.G. went to a hospital and reported to a sexual assault nurse examiner that two assailants penetrated her vagina. A police officer spoke with B.G. at the hospital, and she told the officer that four to five males vaginally penetrated her with their penises.
Police conducted an investigation following B.G.’s report of the incident. Thomas shared with police text messages she exchanged with Guzman the morning after the party. In these text messages, Guzman told Thomas that he had video of a group of males having sex with B.G. Thomas asked if Guzman had sex with B.G., but he replied that he "was just [the] camera man." After meeting with Thomas, an officer prepared an affidavit for a search warrant for Guzman’s cell phones.
The next day, officers went to Guzman’s place of employment to interview him and obtain any of his digital devices capable of storing electronic media. Upon questioning by an officer, Guzman consistently denied having sex with B.G. After interviewing Guzman, police arrested him. A forensic examination of one of Guzman’s cell phones uncovered three short videos taken between 6:41 and 6:49 a.m. on September 23, 2017, which showed penile-vaginal intercourse with B.G.; one video additionally showed a penis being inserted into B.G.’s mouth.
The tampering with a witness charge arose out of Guzman’s October 2017 jail telephone call to Thomas. Thomas testified that Guzman wanted her to "tell [B.G.] to drop the charges." Thomas complied, telling B.G. that Guzman wanted B.G. to drop the charges.
The jury returned verdicts of guilty on first degree sexual assault and on tampering with a witness, and the court accepted the verdicts. The court imposed a sentence of 12 to 20 years’ imprisonment for the sexual assault conviction and a concurrent sentence of 2 years’ imprisonment for the witness tampering conviction.
Guzman appealed. The State filed a petition to bypass review by the Nebraska Court of Appeals—which we granted—and asserted a purported cross-appeal in its brief.
Guzman assigns that the district court erred in (1) overruling his motion to suppress, (2) failing to grant his motion for mistrial based on prosecutorial misconduct, (3) failing to grant a directed verdict, and (4) imposing excessive sentences.
Guzman also assigns that he received ineffective assistance of trial counsel. However, he failed to comply with our pronouncement regarding the specificity required for assignments of error alleging ineffective assistance of counsel.
We declared last year that assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance.1 And we stated that an appellate court will not scour the remainder of the brief in search of such specificity.2 Since announcing the requirement, we have repeated it in three published decisions.3 The purpose of a concurring opinion released on October 11, 2019, was to "remind the practicing bar"4 of the requirement and caution counsel that "briefs filed after April 19, 2019, which fail to comply may have consequences beyond loss of such claims."5
Guzman’s brief—filed 3 months after our pronouncement—failed to comply. His assignment of error alleged merely that he "received ineffective assistance of trial counsel in numerous instances as more particularly set out hereinafter." In Guzman’s reply brief, he argues that the assignment of error informed us that the particular allegations of ineffective assistance would be set forth with more particularity. And in the heading of his argument on the issue, Guzman identified five of the six particular deficiencies in all boldface and capital letters.
We decline to excuse counsel’s failure to comply with our pronouncement. Recently, the Court of Appeals exercised judicial grace by examining a brief’s argument section for the necessary specificity where the brief was filed 10 days after release of the opinion announcing the requirement.6 No such grace ought to be afforded a brief filed 3 months after the pronouncement. Accordingly, we do not consider Guzman’s assignment of error alleging ineffective assistance of counsel.
Using a belt-and-suspenders approach, the State raised a sentencing matter both as plain error in its responsive brief and in a purported cross-appeal. The State asserts that the court erred by imposing a determinate sentence for Guzman’s witness tampering conviction. Its brief recognizes that the matter could be deemed one of plain error, but explains that "out of an abundance of caution and uncertainty, [the State] raise[d] the matter in a cross[-]appeal."7 The State seeks guidance as to whether it can—and must—file a cross-appeal to raise an alleged error in sentencing where the district court was the trial court. We address this narrow question.
When a sentence imposed appeared to be erroneous and the appellant did not identify the error, the State’s traditional practice has been to broach the issue in its brief as an assertion of plain error. With or without such an assertion, we have considered whether a sentence constituted plain error.8 The State presumably proceeded in this manner because of case law declaring that the State has no right to cross-appeal in a criminal case when the district court is the trial court.9
The State suggests the appellate courts have created uncertainty in this procedure by referencing the lack of a cross-appeal in opinions where the district court was the trial court. The Court of Appeals recently refused to address the State’s suggestion of error in sentencing, because the State did not cross-appeal.10 And in two cases that did not squarely present whether the State could cross-appeal, we stated "although the State did not file a cross-appeal"11 before considering sentencing errors urged as plain error by the State. To the extent this language has created uncertainty, we disavow any suggestion that we were implying the State could have cross-appealed in those cases.
The preclusion of a cross-appeal by the State in a criminal case where the district court is the trial court relates to the State’s limited right to appeal in a criminal case. Absent specific statutory authorization, the State generally has no right to appeal an adverse ruling in a criminal case.12 The Legislature provided two avenues for such an appeal: an exception proceeding under Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2018) and an excessively lenient sentence appeal authorized by Neb. Rev. Stat. § 29-2320 (Reissue 2016).13
The right of appeal is purely statutory.14 A court rule provides in part that "[t]he proper filing of an appeal shall vest in an appellee the right to a cross-appeal against any other party to the appeal."15 But a court rule cannot provide a right to appeal that does not exist in statute. And here, the State did not comply with the statutory prerequisites to appeal,16 the dictates of which are to be strictly construed against the government.17 Thus, it could not assert a cross-appeal. We express no opinion as to whether the State could...
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