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State v. Cobos

Court of Appeals of Nebraska

May 5, 2015

STATE OF NEBRASKA, APPELLEE,
v.
RICHARD R. COBOS, JR., APPELLANT

Page 834

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Page 835

[Copyrighted Material Omitted]

Page 836

Appeal from the District Court for Scotts Bluff County: LEO DOBROVOLNY, Judge.

Bell Island, of Island & Huff, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

IRWIN, RIEDMANN, and BISHOP, Judges.

OPINION

Page 837

[22 Neb.App. 889] Riedmann, Judge.

INTRODUCTION

Richard R. Cobos, Jr., appeals from his conviction and sentence in the district court for Scotts Bluff County of third degree sexual assault of a child. Finding no merit to Cobos' assigned errors, we affirm.

BACKGROUND

Cobos was charged with third degree sexual assault of a child based on reports that he had subjected his sister-in-law, M.M., to sexual contact. At trial, M.M. testified that the assault occurred while she and her twin sister were staying with their older sister, Valerie Cobos (Valerie), and her husband, Cobos, in Gering, Nebraska, during August 2012. M.M. was approximately 12 years old at that time, while Cobos was approximately 36 years old.

At the time of the assault, Cobos had recently become employed as a teacher and football coach in Mitchell, Nebraska, which was approximately 12 miles from his home in Gering. Although school had not yet started, Cobos had football practice at 7 a.m. each day, and he had to be there at least an hour early to get things ready. In addition, since this was Cobos' first year at a new school, he had been going even earlier to prepare his classroom for the beginning of the school year. Valerie testified that it was not unusual for Cobos to get up in the middle of the night to go to work and that once he left the house, he would not come home until the end of the school day.

On the morning of the assault, Cobos left the house at approximately 2 a.m. M.M. and her twin sister were still up talking in the living room when he left. Cobos told them to let Valerie know that he was going to school to work in his classroom. The girls fell asleep on the couch in the living room around 4 a.m.

M.M. testified that she woke up later that morning to Cobos' touching her breasts underneath her bra. She knew it was early morning because she looked out the window above the couch and saw the sun starting to rise. According [22 Neb.App. 890] to M.M., she tried to go back to sleep, but Cobos continued to touch her and tried to put his hand underneath her underwear. M.M. turned away and Cobos stopped, but then he put his hands back underneath her bra. After touching her breasts for a little while longer, Cobos kissed M.M. " directly on the lips and said good morning," then left the house. M.M. testified that she looked at the person touching her and saw that it was Cobos.

A jury instruction conference was held in the district court, during which defense counsel requested an alibi instruction. The court overruled the request, finding that the evidence did not support such instruction. After the jury was instructed, the case was submitted for deliberation. The jury found ...


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