State v. Mora, S-16-1120.
| Decision Date | 09 November 2017 |
| Docket Number | No. S-16-1120.,S-16-1120. |
| Citation | 903 N.W.2d 244,298 Neb. 185 |
| Parties | STATE of Nebraska, appellee, v. Felipe German MORA, appellant. |
| Court | Nebraska Supreme Court |
Joe Nigro, Lancaster County Public Defender, and Shawn Elliott for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
In this direct appeal from criminal convictions and sentences, Felipe German Mora (Mora) challenges the overruling of his hearsay objections, the sufficiency of the evidence, the excessiveness of his sentences, and whether his trial counsel provided effective assistance. Because we find no error and the record is insufficient to review the allegations of ineffective assistance of counsel that were sufficiently stated, we affirm the district court's judgment.
The State charged Mora with four counts of first degree sexual assault of a child and one count of third degree sexual assault of a child. The victim in each count was B.C. Counts I through III alleged that between December 30, 2010, and September 18, 2015, Mora subjected B.C. to sexual penetration in Lincoln, Nebraska. Each count differed only as to the address of the crime: E Street, Theresa Street, and Saunders Avenue, respectively. Count IV alleged that on September 19, 2015, Mora subjected B.C. to sexual penetration. And count V alleged that between December 30, 2010, and September 19, 2015, Mora subjected B.C. to sexual contact. Because Mora was born in February 1983 and B.C. was born in December 2004, at the times of the crimes, Mora was at least 19 years old and B.C. was under the age of 12. We recite the evidence in the light most favorable to the State.
The evidence at trial established that B.C. came to the United States when she was 6 years old. B.C. began living with her mother, Marcela M., and Marcela's partner, Mora, on E Street. Over time, B.C. got to know Mora and thought of him "[l]ike a dad." Because Mora was acquitted on the count pertaining to sexual penetration at the E Street address, we recite only the evidence relevant to the count for sexual contact. While living at the E Street address, Mora began touching B.C.'S vagina under her clothes with his hands.
When B.C. was 8 years old, she moved to Theresa Street. B.C. testified that Mora "rubbed his fingers up and down" her vagina and began inserting his penis in her vagina. These acts occurred at the Theresa Street address more than 20 times.
When B.C. was 10 years old, she moved to Saunders Avenue. At that location, Mora put his penis inside of B.C.'S vagina on more than 10 occasions. B.C. did not tell anybody what Mora was doing because she was scared.
On the morning of September 19, 2015, Mora subjected B.C. to penile-vaginal intercourse. Defense counsel pointed out some inconsistencies in B.C.'S testimony with regard to this assault. B.C. testified in a deposition that Mora took her clothes off, but she testified at trial that Mora told her to take her clothes off and that she complied. At trial, B.C. testified that she did not see any ejaculate that day, but she told an investigator that Mora "put white stuff on [her] stomach." B.C. admitted that it was difficult to remember all the details. She explained that the events happened a number of times, with Mora's taking her clothes off at times and B.C.'S taking her own clothes off at other times.
On the evening of September 19, 2015, Mora took B.C. to the residence of his brother, Rafael German Mora (Rafael), while Marcela and Mora went to a casino in Council Bluffs, Iowa. Rafael's partner, Maricela Saldivar, saw Rafael kissing B.C. and touching her vaginal area with his hand over her clothes. After Saldivar sent Rafael to the store, Saldivar asked B.C., " " B.C. said that nothing happened, but then began crying and said that Rafael was touching her. After Saldivar testified she told B.C. that Saldivar needed to tell Mora what had occurred, the prosecutor asked what happened. Defense counsel raised a hearsay objection, which the court overruled. Saldivar then testified that B.C. "said no because her dad was doing the same thing to her." Saldivar testified that when she told Mora what happened was not right, Mora did not deny touching B.C. and instead just said that Saldivar did not know what he had "gone through."
Marcela testified that as she and Mora were returning to Lincoln from the casino, B.C.'S aunt told Marcela over a cell phone that B.C. said Mora had been sexually abusing B.C. Marcela asked Mora if it was true, but Mora denied doing anything. Once they arrived in Lincoln, Marcela went to see B.C., because B.C. was crying. The prosecutor asked what B.C. said to Marcela, and Mora's counsel objected as to hearsay. The court overruled the objection. Marcela answered:
Marcela testified that after police were called, Mora said, " ‘Yes, I did it,’ but that [Marcela] was at fault because [she] would always leave [B.C.] with him when [Marcela] had to go to work." Marcela later discovered a text on her cell phone from Mora, sent September 20, 2015, at 2:07 a.m. The message was in Spanish, but the English translation was either: " " or " "
On September 20, 2015, Eileen Bonin, a sexual assault nurse examiner, examined B.C. In her experience, it was infrequent to find injuries when conducting sexual assault examinations. Bonin observed some redness on B.C.'S right labia minora, which was an unusual finding. Defense counsel raised a hearsay objection when the prosecutor asked what B.C. told Bonin about what had occurred, but the court overruled the objection. Bonin testified that B.C. said her "stepdad, [who was] not really her stepdad," had been touching B.C. since she was 7 years old and that her uncle had been touching her for approximately 9 months. Bonin testified that B.C. told her that Mora "put his private parts in her private parts."
On September 20, 2015, an investigator used cotton swabs to obtain DNA from Mora's hands and penis. The swab from Mora's penis revealed a mixture of DNA of at least two individuals. B.C. was included as a major contributor, but Mora was excluded. In other words, B.C.'S DNA was on Mora's penis.
On September 22, 2015, Dr. Stacie Bleicher, the medical director at a child advocacy center, performed a followup examination on B.C. During Bleicher's testimony, when the prosecutor asked if B.C. said anything that was significant to Bleicher, defense counsel objected on the ground of hearsay. After the court overruled the objection, Bleicher answered that B.C. said she "had sexual contact by both her stepfather and ... her uncle."
An inmate incarcerated at prison testified about what Mora told him while they were both being held at the Lancaster County jail. The inmate asked Mora about his case, and Mora said that he did not do the crime. But the next day, Mora told the inmate that he had sexual intercourse with a young female, his stepdaughter. The inmate had hoped to get some leniency in court for this information, but at the time of his testimony, he had not received any accommodation nor been offered a deal. The inmate admitted that he had previously cooperated with authorities on a number of occasions.
After the State rested its case, the defense did not call any witnesses or offer evidence.
The jury found Mora not guilty of count I, but guilty of the other counts. The district court sentenced Mora to imprisonment as follows: on count II, 30 years, 15 of which were a mandatory minimum, to life; on count III, 30 years, 15 of which were a mandatory minimum, to life; on count IV, 30 years, 15 of which were a mandatory minimum, to life; and on count V, "a period of 3 years." The court ordered that counts II and III run concurrently with one another but consecutively to counts IV and V. It ordered that counts IV and V were to be served consecutively to each other and consecutively to counts II and III.
Through counsel different from trial counsel, Mora timely filed an appeal.
Mora assigns that the district court erred in (1) permitting the State to introduce hearsay statements of B.C. based on the medical purpose and excited utterance exceptions to the hearsay rule, (2) adjudging him guilty when the evidence was insufficient, and (3) imposing excessive sentences.
Mora also assigns that he was denied the right to the effective assistance of counsel due to counsel's failure to (1) adequately communicate in order to prepare a defense and explore options, (2) properly advise him about the right to testify, (3) have the penile swab retested and retain an expert to refute the State's DNA evidence, and (4) explore calling character witnesses at trial.
Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination whether the court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds.1
In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.2
An appellate court reviews criminal sentences for abuse of discretion, which...
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