State v. Prado, A-20-815.

CourtCourt of Appeals of Nebraska
Writing for the CourtRiedmann, Judge.
Citation30 Neb.App. 223,967 N.W.2d 696
Parties STATE of Nebraska, Appellee, v. Alejandro Garcia PRADO, Appellant.
Docket NumberNo. A-20-815.,A-20-815.
Decision Date12 October 2021

30 Neb.App. 223
967 N.W.2d 696

STATE of Nebraska, Appellee,
Alejandro Garcia PRADO, Appellant.

No. A-20-815.

Court of Appeals of Nebraska.

Filed October 12, 2021.

Joseph D. Nigro, Lancaster County Public Defender, and Nathan J. Sohriakoff for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein, for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Riedmann, Judge.

967 N.W.2d 705


Alejandro Garcia Prado appeals his conviction and sentence in the district court for Lancaster County for first degree

30 Neb.App. 226

sexual assault. He argues multiple ineffective assistance of counsel claims, along with claims that the district court erred in both procedural and evidentiary matters. Prado also assigns that there was insufficient evidence for his conviction and that the sentence imposed was excessive. We affirm.


On March 9, 2018, the victim, D.A., and her friend, Gwen P., each consumed three to four shots of vodka at D.A.’s apartment around 11 p.m. before going to a local club at approximately midnight. D.A.’s friend, Brenden J., met her at the club with two other male friends about 30 minutes later. While at the club, D.A., Gwen, and Brenden each consumed more alcohol. At approximately 2:30 a.m., the group returned

967 N.W.2d 706

to D.A.’s apartment. D.A., Brenden, Gwen, and one of Brenden's friends each had one to two beers at the apartment, and the group decided to order pizza. At 2:44 a.m., the group ordered a pizza delivery, for which Brenden paid.

Prado arrived at the apartment to deliver the pizza, at which point Brenden informed Prado he did not have cash for a tip but offered Prado a beer in lieu of the tip. Prado accepted, drank the beer at the door to the apartment, and then offered to come back when his shift ended with "a bottle and a pizza." Although Prado testified the group invited him to return, Brenden testified that he remembered hinting to Prado that he did not need to return, because they were just going to eat the pizza and go to bed. Regardless, Brenden and Prado exchanged phone numbers, and Prado said he would return in 20 minutes. Brenden told Prado that the group was tired and that they "probably weren't gonna be up much longer." Brenden did not receive a phone call from Prado later that night.

The witnesses’ testimonies conflict at this point, but generally, D.A. and her friends testified that Gwen and D.A. went to sleep and the three male friends left soon thereafter, some-where between 4 and 7 a.m. Brenden was the last one out of the apartment, and although he believed he would have turned

30 Neb.App. 227

off the apartment lights, he could not confirm that he did. He did not believe the music was still playing but was certain that he closed the apartment door. He testified that he did not have a key to lock the front door from the outside.

Prado testified that he returned to D.A.’s apartment when he clocked out of work around 4:30 a.m. According to him, the lights and music were still on, so he knocked and "a brunette answer[ed] the door" and let him into the apartment. He then followed her into the bedroom, where a woman with blond hair was lying on the bed. Prado explained that he climbed into bed between the two women because he thought, "well, hey, if I'm in the middle maybe I might get lucky and have a threesome." Prado claimed that D.A., the woman with blond hair, then kissed him and began stroking his genitals over his pants. Prado admitted to kissing D.A.’s neck. He claimed that D.A. then pulled her pants down, which he believed to be an indication that she wanted to have vaginal intercourse with him. Prado testified that he began to position himself to have intercourse with D.A., but he prematurely ejaculated. D.A. left to use the bathroom, and Prado turned his attention to Gwen, who told him to leave. He denied he ever put his fingers or penis in D.A.’s vagina.

D.A., however, testified that she did not recall hearing a knock at the front door or letting anybody into her apartment; rather, she awoke to feeling someone "touching" and "caress[ing]" her buttocks. She knew the person touching her was lying between her and Gwen on the bed, although she could not see who it was because the lights were off. She "could feel fingers" moving "in and out of [her] vagina." She explained that she thought the person touching her was Brenden, but was confused because they did not have that type of a relationship. While this was happening, she was "half asleep, half awake."

Gwen testified that she woke up and heard D.A. making "sexual noises" and that the latter was "moaning and stuff." Gwen explained that a bathroom light was on, casting light

30 Neb.App. 228

into the bedroom. She turned and saw D.A. was rocking from her back to her side while making the sounds. Gwen remained lying down on the bed and staring at D.A., when she saw black hair and noticed a male's hand was under the bed cover. Gwen perceived the male's hand

967 N.W.2d 707

to be around the area of D.A.’s genitals, and she then "heard him get on top of [D.A.]."

D.A. explained that she "wasn't really resisting, just because [she] was still kind of in that half-asleep/half-awake state." When she felt a "graze" on her leg that felt like a penis, she pushed it away. At that point, she got up to go to the bathroom because she "didn't want that to go on for any longer, obviously," since she did not want to have sex with Brenden. Gwen testified that she heard D.A. twice ask, " ‘What's going on?’ " before getting up and going to the bathroom. D.A. explained she did not want to have sex with either Brenden or Prado that night.

After approximately 5 minutes in the bathroom, D.A. returned to the bedroom and saw Gwen sitting alone on the bed, looking "shocked and scared." Gwen was "100 percent sure" that the man had not been Brenden and asked D.A. who it was. D.A. testified that at that point, she thought the man had been Brenden, but that they walked around the apartment to make sure no one else was there. D.A. did not immediately call the police.

The next afternoon, D.A. called the pizza restaurant to ask who had delivered the pizza to her apartment the previous night and was advised that it was Prado. A security guard with whom D.A. had discussed the incident reported it to the police; they came to talk with her while she was at work that same day.

After her shift ended around 9:30 p.m., D.A. went to the police station to talk with an investigator, Tu Tran. The police retrieved D.A.’s bedsheets, her comforter, and what she had worn at the time of the incident. A "SANE" examination was conducted that revealed a 1.5- by 0.75-centimeter circular bruise and abrasion to the right side of D.A.’s neck,

30 Neb.App. 229

lateral to her trachea. The examination also revealed abrasions to her vagina and hymenal tissue. The nurse who conducted the examination testified that these abrasions could be "fairly normal injuries to see in a digital penetration incident." She also admitted, however, that such injuries could come from consensual sex. No semen was detected on the vaginal swabs retrieved during D.A.’s examination. Swabs taken from a bruise on D.A.’s neck included Prado's DNA. Prado could not be excluded as the major contributor from semen samples found in D.A.’s underwear.

The police located Prado and subsequently interrogated him at the police station on March 19, 2018. A duty commander, Capt. Robert Farber, testified that Prado "was not free to go" and that while Prado was tired and spoke of having a learning disability, Farber did not notice anything to indicate that Prado had difficulty understanding or communicating with him. While in police custody, Farber read Prado his Miranda rights, but did not have a pen to fill out the form. When Tran arrived, Farber gave him the blank form and told Tran that Farber had gone through the form with Prado but did not fill it out due to the lack of a pen. Tran confirmed with Prado that he had answered "yes" to all of the questions on the Miranda rights form. Tran filled out the form, which Prado signed.

Following a jury trial, Prado was convicted of first degree sexual assault, a Class II felony punishable by 1 to 50 years’ imprisonment. See, Neb. Rev. Stat. § 28-319 (Reissue 2016) ; Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020). The district court sentenced Prado to 24 to 26 years’ imprisonment, along with lifetime community supervision, and it required Prado to register under Nebraska's Sex Offender Registration Act. See, Neb. Rev. Stat. § 83-174.03 (Cum. Supp. 2020);

967 N.W.2d 708

Neb. Rev. Stat. § 29-4001 (Reissue 2016). Prado appeals.


Prado assigns that he received ineffective assistance of counsel in numerous respects. He also assigns that the district


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1 practice notes
  • State v. C.-Party, S-21-043.
    • United States
    • Supreme Court of Nebraska
    • December 23, 2021
    ...the issue of modification, whether the in loco parentis relationship has changed is relevant to determining both whether there has been a 967 N.W.2d 696 material change in circumstances and whether modification is in the child's best interests. Id. Although the parties agree that the Soppes......
3 cases
  • State v. Prado, A-20-815
    • United States
    • Court of Appeals of Nebraska
    • October 12, 2021
    ...30 Neb.App. 223 State of Nebraska, appellee, v. Alejandro Garcia Prado, appellant No. A-20-815Court of Appeals of NebraskaOctober 12, 1. Effectiveness of Counsel: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must rai......
  • State v. Lierman, A-22-564
    • United States
    • Court of Appeals of Nebraska
    • May 16, 2023 prove the same point of which other evidence has been offered. State v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014); State v. Prado, 30 Neb.App. 223, 967 N.W.2d 696 (2021). In State v. Drake, 311 Neb. 219, 971 N.W.2d 759 (2022), the Nebraska Supreme Court considered the defendant's clai......
  • State v. C.-Party, S-21-043.
    • United States
    • Supreme Court of Nebraska
    • December 23, 2021
    ...the issue of modification, whether the in loco parentis relationship has changed is relevant to determining both whether there has been a 967 N.W.2d 696 material change in circumstances and whether modification is in the child's best interests. Id. Although the parties agree that the Soppes......

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