State v. Martinez

Decision Date05 December 1995
Docket NumberNo. A-95-019,A-95-019
Citation4 Neb.App. 192,541 N.W.2d 406
PartiesSTATE of Nebraska, Appellee, v. Leonardo MARTINEZ, Appellant.
CourtNebraska Court of Appeals

Syllabus by the Court

1. Appeal and Error. An appellate court is obligated to reach conclusions independent of the trial court on questions of law.

2. Indictments and Informations. An information which alleges the commission of a crime using the language of the statute which defines that crime is generally sufficient.

3. Indictments and Informations. An information must apprise a defendant with reasonable certainty of the charge against him so that he may prepare a defense to the prosecution and be able to plead the judgment of conviction as a bar to a later prosecution for the same offense.

4. Indictments and Informations: Complaints: Appeal and Error. When an information or complaint is questioned for the first time on appeal, it must be held sufficient unless it is so defective that by no construction can it be said to charge the offense of which the accused was convicted.

5. Indictments and Informations: Complaints: Pretrial Procedure: Waiver. A defect in the manner of charging an offense is waived if, upon being arraigned, the defendant pleads not guilty and proceeds to trial, provided the information or complaint contains no jurisdictional defect and is sufficient to charge an offense under the law.

6. Constitutional Law: Indictments and Informations: Pretrial Procedure: Double Jeopardy. The constitutional requirements of the rule in Bartell v. United States, 227 U.S. 427, 33 S.Ct. 383, 57 L.Ed. 583 (1913), are not waived when a defendant proceeds to trial, because the sufficiency of the information for double jeopardy purposes may require reference to the record, which does not exist at the time of arraignment, as well as reference to facts outside the record, and any second prosecution is obviously a future event.

7. Constitutional Law: Sexual Assault: Double Jeopardy. Consistent with constitutional limitations, the extreme youth of a victim who has been victimized more than once should not become the basis of preventing on double jeopardy grounds a conviction for sexual assault of a child.

8. Indictments and Informations: Sexual Assault: Limitations of Actions. Reasonable certainty is required in criminal pleading, but the lack of a precise date is not a fatal defect if it is not a substantive element of the crime, and a precise date generally is not an element of sexual assault. Charging the commission of first degree sexual assault within the statute of limitations is sufficient.

9. Indictments and Informations: Sexual Assault: Time: Double Jeopardy. When only one sexual assault within the charging period is determinable as having occurred during that period by linkage to another event, which then furnishes a reasonably definite time for an offense, the requirement of the Double Jeopardy Clause that the defendant be able to plead the conviction as a bar to further prosecution is satisfied when used in conjunction with a "blanket bar" for the time period in the charging information.

10. Indictments and Informations: Time: Double Jeopardy. Upon a subsequent prosecution, courts may tailor double jeopardy protection to reflect the time period involved in the charge in the earlier prosecution.

11. Trial: Evidence: Waiver: Appeal and Error. It is fundamental that a party who fails to make a timely objection to evidence waives the right on appeal to assert prejudicial error concerning the evidence received without objection.

12. Pretrial Procedure: Appeal and Error. Unless discovery is granted as a matter of statute, court rule, or the Constitution, discovery is within the discretion of the trial court, whose ruling will be upheld on appeal absent an abuse of discretion.

13. Rules of Evidence. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Neb.Evid.R. 609, Neb.Rev.Stat. § 27-609 (Reissue 1989), may not be proved by extrinsic evidence.

Jon Placke of Box Butte County Public Defender's Office, Alliance, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

SIEVERS, C.J., and MUES and INBODY, JJ.

SIEVERS, Chief Judge.

Leonardo Martinez was charged by information with two counts of first degree sexual assault, in violation of Neb.Rev.Stat. § 28-

319 (Cum.Supp.1994), and one count of sexual [4 Neb.App. 194] assault of a child, in violation of Neb.Rev.Stat. § 28-320.01 (Cum.Supp.1994). After a jury trial, Martinez was convicted of one count of first degree sexual assault. The two other counts mentioned above were not submitted to the jury. Martinez was sentenced to a term of imprisonment of not less than 15 nor more than 25 years, with credit given for 167 days already served. Martinez appeals his conviction and sentence to this court. For the reasons cited below, we affirm.

FACTS

The victim's mother, Tracy P., testified that her son Matthew P. was 8 years old and in the second grade at the time of trial. Tracy had known the defendant, Leonardo "Leo" Martinez, for the last 10 years. Martinez, age 58 at the time of trial, lived with Juanita Garcia, Matthew's babysitter. Garcia babysat for Matthew from July 1991 to August 1993 while Tracy worked and when Tracy went bowling. Matthew lived with Garcia from July 14 to August 12, 1991, when Tracy was in Hastings for inpatient treatment. Matthew was 5 years old at that time.

In June 1994, Tracy was informed by her babysitter at that time, Leslie War Bonnett, that Matthew had been kissing War Bonnett's son. Leslie and her husband, Jim War Bonnett, told Tracy that Matthew had "told them about other events that had happened, sexual events." Since Tracy suspected that her son had been sexually molested, she contacted the Hemingford Police Department on June 18. After she spoke with Hemingford police officers, it was suggested that Tracy take her son to be interviewed by Sgt. Rae Ann Christensen of the Alliance Police Department. Christensen was suggested because of her experience and specialized training in child abuse cases.

Christensen testified that she interviewed Matthew on June 24, 1994, at the request of the Hemingford Police Department. As an investigative technique, Christensen had Matthew identify different parts of the body on a picture of a male child "because a lot of times children will use different terminology than what adults do so that when I get to asking the questions about what happened I know what he's talking about." Matthew identified a penis as being a "pee-pee." Matthew was then asked to mark the parts of the body where Martinez had touched him. The picture introduced into evidence indicates that Matthew marked the mouth, hand, buttocks, and groin area of the picture. Matthew also told Christensen that Martinez had made Matthew touch and suck Martinez' "pee-pee."

On cross-examination, Christensen was asked whether Matthew had talked about sexual actions he had taken with three other children. Christensen indicated that Matthew described sexual acts he had with these children. However, Christensen also testified that in her experience, it was not uncommon for children who have had sexual experience with adults to act out those experiences with other children. An audiotape of Christensen's interview with Matthew was received as evidence at trial. In that interview, Matthew indicated that the first time that Martinez hurt him was while Matthew was staying with Martinez and Garcia the month his mother was gone to Hastings "to stop drinking."

Matthew was allowed to testify by videotaped deposition pursuant to Neb.Rev.Stat. § 29-1926 (Reissue 1989). Matthew stated that he was 8 years old and in the second grade. After demonstrating that he knew the difference between telling the truth and telling a lie, Matthew testified that Martinez lived with Garcia. Matthew stated that Martinez had "stuck [his] private part up my butt" and that Martinez had hurt him more than once. The assaults took place behind the car in the garage at Garcia's house. Matthew stated that he told Martinez to stop it but he would not and that Martinez had told him not to tell anyone. At the time of the assaults, Martinez told Matthew to pull his pants down, but when he would not, Martinez pulled them down himself. When asked how many times Martinez did this to him, Matthew responded, "I can't remember." However, Matthew later stated that he was in kindergarten the first time that Martinez did this to him.

Dr. John Ruffing, Jr., a physician and surgeon practicing in Hemingford, Nebraska In the late summer of 1991, after she returned from inpatient treatment at Hastings, Tracy noticed for the first time that her son was having problems with fecal incontinence. Tracy did not take Matthew to the doctor at that time because she felt that it was her fault and that she had not taught Matthew proper hygiene.

testified that he examined Matthew on June 23, 1994, and gave him a complete physical examination, including a rectal examination. Ruffing stated that the purpose of the examination was to determine whether there was evidence of possible abuse. After performing the rectal examination, Ruffing found that the muscle tone of Matthew's buttocks was[4 Neb.App. 196] greater than the muscle tone of the rectal sphincter. Ruffing found this to be somewhat unusual. Ruffing also found that Matthew had some incontinence of the rectal sphincter, which is unusual in a child of Matthew's age. Ruffing explained that it was unusual for a child to develop incontinence after the child had been continent for a period of time. No bleeding or abnormalities were noted within the rectum.

Martinez testified through an interpreter in his own defense at trial and denied ever sexually assaulting Matthew. Martinez' motion for a directed verdict was sustained as to the second and...

To continue reading

Request your trial
10 cases
  • State v. Schultz
    • United States
    • Wisconsin Supreme Court
    • March 4, 2020
    ...cases involving broad and vague charging language, and provide guidance for what a "rigid double jeopardy analysis" looks like.¶67 In State v. Martinez, the Nebraska Supreme Court affirmed the need for pleading flexibility in child sexual assault cases: "It is preferable to allow the State ......
  • Metro Renovation, Inc. v. State Dept. of Labor
    • United States
    • Nebraska Supreme Court
    • February 16, 1996
    ...carries the risk that another panel of the Court of Appeals may reach a different conclusion. For example, in State v. Martinez, 4 Neb.App. 192, 200, 541 N.W.2d 406, 412 (1995), one panel wrote of another panel's interpretation of a decision of this court, "We do not believe that State v. P......
  • State v. Case
    • United States
    • Nebraska Court of Appeals
    • August 6, 1996
    ...of that of the trial court on questions of law. State v. Roche, Inc., 246 Neb. 568, 520 N.W.2d 539 (1994); State v. Martinez, 4 Neb.App. 192, 541 N.W.2d 406 (1995). In determining the correctness of a trial court's ruling on a motion to suppress, an appellate court will uphold the decision ......
  • State v. Newman
    • United States
    • Nebraska Court of Appeals
    • January 7, 1997
    ...on the admission of evidence, there must be a timely objection made at trial. Neb.Rev.Stat. § 27-103 (Reissue 1995); State v. Martinez, 4 Neb.App. 192, 541 N.W.2d 406 (1995), aff'd 250 Neb. 597, 550 N.W.2d 655 (1996). It is undisputed that no objection was made to the admission of the video......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT