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Appeal from the District Court for Hall County: JAMES D. LIVINSGTON, Judge.
Gerard A. Piccolo, Hall County Public Defender, for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
[289 Neb. 383] Heavican, C.J.
NATURE OF CASE
Jesus R. Castillo-Zamora appeals his conviction for first degree sexual assault. Castillo-Zamora alleges that the district court for Hall County, Nebraska, erred in two different [289 Neb. 384] evidentiary rulings; that the district court abused its discretion in denying a joint motion for mistrial; and that he received ineffective assistance of counsel. We conclude that the district court did not err in its evidentiary rulings and did not abuse its discretion in denying the motion for mistrial. Because the record is incomplete, we decline to reach the ineffective assistance of counsel claims on direct appeal.
This case centers around two separate incidents involving Castillo-Zamora and his sister-in-law, A.O. At the time of trial, A.O. was a 21-year-old college student at the University of Nebraska-Lincoln. A.O. has five brothers and two sisters, including Jacqueline Castillo, who is married to Castillo-Zamora. The extended family would often celebrate holidays and birthdays together. The first relevant incident occurred during a Christmas party at the Castillo-Zamora residence in Grand Island, Nebraska, on December 24, 2011. The second incident, when the alleged sexual assault took place, occurred during the early morning hours of March 25, 2012, at a party at the Castillo-Zamora residence to celebrate Jacqueline's birthday.
A.O. and Castillo-Zamora were both present at the December 24, 2011, party, along with Jacqueline; two of her brothers, Erick O. and William O.; and William's fiance, Chanda Schroyer. A.O. was on winter break from the university. A.O. testified to drinking two to three mixed drinks containing tequila over the course of the night, but said she did not feel intoxicated. Castillo-Zamora was also drinking alcohol that night. A.O. testified that late in the evening, she got up from the party to use the bathroom. Because a hallway bathroom was in use by Schroyer, A.O. went down the hallway to use the bathroom located in the Castillo-Zamora master bedroom. As A.O. was leaving the bedroom, she testified, she was pulled back into the bedroom by Castillo-Zamora. According to A.O., Castillo-Zamora asked her if she " found him attractive and if [she] was into him." She told him no and explained that " it was wrong for him to even approach [her] because he was with [her] sister."
[289 Neb. 385] A.O. then saw Schroyer exiting the hallway bathroom and pushed her back into the bathroom. Both A.O. and Schroyer testified that A.O. explained to Schroyer what Castillo-Zamora had said to her and how she responded. A.O. was visibly upset and crying. Both A.O. and Schroyer also testified that Castillo-Zamora
knocked on the door of the bathroom, asked what was going on, and stated that he wanted to talk to A.O. again. Castillo-Zamora then grabbed A.O.'s arm and tried to pull her out of the bathroom, while Schroyer held onto A.O.'s other arm. Shortly after, the party ended and A.O. left the Castillo-Zamora home. Besides Schroyer, A.O. did not immediately tell anyone about this incident.
The families had another party at the Castillo-Zamora residence on March 24, 2012, that lasted into the early hours of March 25. This party was to celebrate Jacqueline's birth-day. Several members of the family were present, including Castillo-Zamora; Jacqueline; A.O.; Erick; William; Schroyer; the siblings' mother; the siblings' uncle; and Castillo-Zarmora's cousin, Rodrigo Bolanos. A.O. and Castillo-Zamora were both drinking alcohol that night. Jacqueline was drinking alcohol as well.
Erick testified that around 11 p.m., he helped Jacqueline to her bedroom. Shortly after, A.O. decided that she would spend the night at the Castillo-Zamora home and went to the basement to lie on a couch. Erick also testified that after he left the party with his mother and uncle at 1 or 2 a.m., the only people left at the home were Castillo-Zamora, Jacqueline, their children, and A.O.
A.O. testified that while it was still dark out, she was awakened by Castillo-Zamora as he was carrying her to the laundry room in the basement. Once in the laundry room, Castillo-Zamora put A.O. down and again asked if she was attracted to him. He told her that " girls [her] age would kill to be with someone like me." A.O. told him that would only be the case " if they [the girls] weren't very bright and desperate." He then left to go upstairs. A.O. estimated that the incident occurred at approximately 2 a.m. and lasted for about 2 minutes. A.O. went back to the couch and stayed awake for approximately 30 minutes to see whether Castillo-Zamora returned.
[289 Neb. 386] Later in the night, A.O. testified, she was again awakened by Castillo-Zamora. This time, A.O. estimated it was around 5 or 6 a.m., because it was light outside. A.O. testified that she felt Castillo-Zamora's left hand down the back of her jeans. When she struggled, he used his right arm to pin her down. A.O. grabbed his wrist and told him to stop. Castillo-Zamora then reached around and unbuttoned A.O.'s pants and again put his hand down the backside of A.O.'s jeans, beneath her underwear. He then inserted his finger into A.O.'s vagina three or four times, while A.O. told him to stop. A.O. estimated that this lasted for about a minute, until Castillo-Zamora stopped without saying anything and went back upstairs. A.O. then stayed awake for approximately 2 hours waiting for her sister, Jacqueline, to get up so she could get a ride back to their mother's house.
Initially, A.O. did not tell anyone about the incident. After the spring semester was over in May 2012, A.O. went to visit her other sister in California. A.O. told that sister about what had happened with Castillo-Zamora during the early hours of March 25. A.O.'s sister convinced A.O. to go to the police about the incident. Upon returning to Nebraska in July, A.O. filed a report with the Grand Island Police Department. Castillo-Zamora was arraigned on February 13, 2013, for a single count of first degree sexual assault.
The jury found Castillo-Zamora guilty of first degree sexual assault. On December 11, 2013, Castillo-Zamora was sentenced to 3 to 5 years' imprisonment.
Castillo-Zamora appeals his conviction.
ASSIGNMENTS OF ERROR
Castillo-Zamora assigns as error that the district court erred in (1) failing to
allow Castillo-Zamora to inquire on redirect examination into the nature of his own witness' felony conviction after he was impeached by the State, (2) not granting a mistrial when both parties joined in the motion for mistrial, and (3) admitting hearsay statements. In addition, Castillo-Zamora assigns that he received ineffective assistance of counsel when his trial counsel failed to (1) object at trial to the introduction of evidence under Neb. Rev. Stat. § 27-404 [289 Neb. 387] (Cum. Supp. 2012), (2) properly object to testimony that constituted impermissible bolstering of a witness' credibility, (3) introduce two pieces of evidence during trial, and (4) object to prosecutorial misconduct during the State's closing argument.
STANDARD OF REVIEW
In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the rules, not judicial discretion, except in those instances when judicial discretion is a factor involved in the admissibility of evidence. When judicial discretion is not a factor, whether the underlying facts satisfy the legal rules governing the admissibility of such evidence is a question of law, subject to de novo review. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.
Whether to grant a mistrial is within the trial court's discretion, and we will not disturb its ruling unless the ...