State v. Huerta, A-17-562.
| Decision Date | 07 August 2018 |
| Docket Number | No. A-17-562.,A-17-562. |
| Citation | 917 N.W.2d 175,26 Neb.App. 170 |
| Parties | STATE of Nebraska, appellee, v. Jose HUERTA, appellant. |
| Court | Nebraska Court of Appeals |
David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., Kearney, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.
Jose Huerta was convicted by a jury of first degree sexual assault. The district court subsequently sentenced Huerta to 6 to 8 years’ imprisonment. Huerta appeals from his conviction here. On appeal, he assigns numerous errors, including that the district court erred in making certain evidentiary rulings and in failing to properly instruct the jury. In addition, Huerta alleges that he received ineffective assistance of trial counsel in various respects. Upon our review, we affirm Huerta’s conviction.
The State filed an information charging Huerta with first degree sexual assault pursuant to Neb. Rev. Stat. § 28-319(1)(c) (Reissue 2016). Specifically, the information alleged that Huerta, who is 19 years of age or older, subjected a person, who was at least 12 years old, but less than 16 years old, to sexual penetration. The charge against Huerta stems from an incident which occurred on April 3, 2016. Evidence adduced at trial revealed that during the evening of April 3, 14-year-old C.W. was spending time with her 16-year-old friend, C.G., when C.G. contacted Huerta, whom she referred to as her "uncle," to come pick them up. After Huerta picked the girls up, he drove them to a liquor store where he purchased beer, and then he drove all of them to an apartment owned by his friend, William McGregor.
The events that transpired after Huerta, C.W., and C.G. arrived at McGregor’s apartment were disputed at trial. C.W. testified that once they arrived at the apartment, she, C.G., and Huerta all began to drink the beer he had purchased and to smoke cigarettes, which were also provided by Huerta. C.W. testified that she drank four beers, which was more alcohol than she had ever previously consumed. In fact, she drank so much that she threw up in a trash can which was located in the kitchen of the apartment. C.W. testified that after they had been at the apartment for a few hours, C.G. and Huerta went into the bathroom together and shut the door. While they were in the bathroom, C.W. could hear "kissing sounds." When they returned from the bathroom, C.W. observed Huerta touching C.G. "in her vaginal area" over her clothing and kissing C.G.
C.W. testified that at some point, Huerta began touching her vaginal area. C.G. then instructed C.W. to come into the bedroom with her and Huerta. Once inside the bedroom, C.W. sat on the corner of the bed. C.W. testified that C.G. told C.W. that C.W. was "not going to be a virgin anymore." Then C.G. and Huerta undressed and began having sexual intercourse on the bed next to where C.W. was sitting. C.W. testified that Huerta used a condom during his sexual contact with C.G. She indicated that she had observed Huerta obtain this condom from the laundry room in the apartment.
After C.G. and Huerta finished, they dressed and all three of them returned to the living room. However, a few minutes later, Huerta obtained another condom from McGregor, and C.W., C.G., and Huerta returned to the bedroom. This time, Huerta took off C.W.’S clothes and removed his own clothes. He began having penile-vaginal intercourse with C.W. She testified that she had never had sexual intercourse before and that it was "very painful." She also testified that she told Huerta to stop because she was in pain, but he did not stop. C.W. indicated that during this portion of the assault, C.G. remained in the bedroom. After C.G. left the room, C.W. described that Huerta had anal sex and oral sex with her. She explained that Huerta had "stuck his penis through my anus," that he had "placed my mouth on his penis," and that he "was biting" her vaginal area.
After the assault, C.G.’S boyfriend came to McGregor’s apartment to take the girls home. C.W. testified that in the days following the assault, she felt anxiety and depression about what had happened. Ultimately, she was admitted to a mental health hospital where she disclosed the assault.
C.G. also testified at trial and essentially corroborated C.W.’S version of the events which transpired on the evening of April 3, 2016. C.G. testified that she, C.W., and Huerta went to McGregor’s apartment where they all began to drink beer, which was provided by Huerta. She testified that at some point, she, C.W., and Huerta went into the bedroom where she and Huerta had consensual sexual intercourse. C.G. described that C.W. was on the bed while she and Huerta had sex. She also explained that after she and Huerta finished, Huerta began having sexual intercourse with C.W. C.G. indicated that after C.W. and Huerta began having sex, she left the bedroom.
During the trial, the State also offered DNA evidence which was recovered from two condoms located in the bedroom of McGregor’s apartment. This evidence revealed that on one of the condoms, both C.G.’S and Huerta’s DNA was present. On the second condom, C.W.’S DNA was present, but no conclusions could be drawn about the presence of any other DNA because the sample was "too complex." Both condoms tested positive for the presence of semen.
Huerta did not testify at trial, nor did he offer any evidence in his defense. However, during the trial the State did offer the testimony of Investigator Daniel Warrington with the Kearney Police Department, who had previously interviewed Huerta about his version of the events of April 3, 2016. During the interview, Huerta admitted that the girls were with him at McGregor’s apartment, but he denied he had any type of sexual contact with either C.W. or C.G. He described himself as "a mentor" to C.G. During a subsequent interview with Huerta, Huerta continued to "adamantly" deny that he had provided the girls with any alcohol, but admitted that he had drank "a large amount of alcohol." He also admitted that C.G. tried to give him a "lap dance." Huerta told Investigator Warrington that he had observed C.W. and C.G. kissing each other. He then went into the bedroom to sleep.
When Investigator Warrington indicated that law enforcement was testing the condoms found in the bedroom for DNA, Huerta explained that when he awoke after being asleep on the bed, his "pants were loose on him." He told Investigator Warrington that he was concerned that the girls "did something to him while he was passed out."
After hearing all of the evidence, the jury convicted Huerta of first degree sexual assault. The district court subsequently sentenced Huerta to 6 to 8 years’ imprisonment.
Huerta appeals his conviction here.
On appeal, Huerta assigns four errors. First, Huerta argues that the district court erred in overruling his objections to evidence regarding his sexual contact with C.G. Second, he argues that the court erred in allowing the State to offer evidence of DNA testing which provided inconclusive results. Third, he alleges that the court committed plain error in instructing the jury prior to its deliberations. Finally, he asserts that he received ineffective assistance of trial counsel in various respects.
On appeal, Huerta alleges that the district court erred in making two evidentiary rulings. First, he alleges that the court erred in permitting the State to present evidence regarding his sexual contact with C.G. on the night of April 3, 2016. Second, he alleges that the court erred in allowing the State to present evidence regarding DNA testing that was done on the two condoms found in a trash can in McGregor’s bedroom.
When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, we review the admissibility of evidence for an abuse of discretion. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015). A trial court exercises its discretion in determining whether evidence is relevant and whether its prejudicial effect substantially outweighs its probative value. Id. In addition, a trial court exercises its discretion admitting or excluding an expert’s testimony. See State v. Braesch, 292 Neb. 930, 874 N.W.2d 874 (2016).
An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. State v. Johnson, supra.
During the State’s opening statement, Huerta objected to comments regarding Huerta’s sexual contact with C.G. on the night of April 3, 2016. Huerta’s counsel argued:
The district court overruled Huerta’s objection to the evidence. The court stated:
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