Appeal from the District Court for Scotts Bluff County: RANDALL L. LIPPSTREU, Judge.
Bernard J. Straetker, Scotts Bluff County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
[292 Neb. 335] Wright, J.
I. NATURE OF CASE
Maxiliamo Cano Samayoa (Cano) appeals his convictions on one count of third degree sexual assault of a child and three counts of first degree sexual assault of a child at least 12 years of age but less than 16 years of age. He argues tat the evidence
was insufficient to support his convictions. He also assigns that the district court erred in admitting certain testimony and in advising the jury that with respect to count I, " [t]he exact time when a criminal offense is committed is not an essential element of the crime." We affirm as modified.
II. SCOPE OF REVIEW
In reviewing 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. State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 [292 Neb. 336] (2015). The relevant question 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. Id.
An appellate court always reserves the right to note plain error which was not complained of at trial or on appeal. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006). Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. State v. Howell, 284 Neb. 559, 822 N.W.2d 391 (2012).
When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. State v. Dominguez, supra. 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. State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008).
To the extent issues of law are presented, an appellate court has an obligation to reach independent conclusions irrespective of the determinations made by the court below. State v. Merheb, 290 Neb. 83, 858 N.W.2d 226 (2015).
The victim in this case, P.L., is Cano's niece. P.L.'s mother and Cano's wife are sisters. Cano was born in May 1981. P.L. was born in December 1997.
In February 2014, P.L. told her parents that Cano had been sexually assaulting her for some time. Her parents reported the allegations to the police and took P.L. to be interviewed at a child advocacy center in Scottsbluff, Nebraska. The contents of the interview are not contained in our record.
[292 Neb. 337] 2. Charges
After P.L.'s interview, the police arrested Cano. He was charged with one count of third degree sexual assault of a child (count I) for subjecting P.L. " to sexual contact, not causing serious personal injury" during " the year 2008." He was also charged with three counts of first degree sexual assault of a child at least 12 years of age but less than 16 years of age. Count II alleged that " on or about October, 2012 through November, 2012," Cano committed first degree sexual assault of a child by subjecting P.L. " to sexual penetration." Counts III and IV were identical to count II, except that they alleged the sexual penetration occurred " on or about December, 2012," and " during the years 2010 or 2011," respectively. Cano pleaded not
guilty to all four counts, and a jury trial was scheduled.
(a) P.L.'s Testimony
The State's principal witness at trial was P.L. She described in detail four incidents between her and Cano. Each incident corresponded to a count in the information.
P.L. testified that the first incident (count I) occurred in the living room of Cano's house while her mother and aunt were out picking up pizza. P.L. stated that Cano approached her while she was lying on the couch watching television, sat down next to her, and started " [r]ubbing" her " butt" with his hands. He also exposed his penis to her, grabbed her hand, and made her hand touch his penis. Although P.L. could not identify the exact date when this happened, she testified that it occurred sometime after she started seventh grade in August 2010 but before the birth of Cano's youngest daughter in July 2012.
The second incident between P.L. and Cano (count IV) occurred while she was painting the trim in her bedroom. P.L. testified that Cano entered her bedroom and forced her to perform oral sex on him. P.L. could not identify the exact date when this second incident happened. However, she testified [292 Neb. 338] that it occurred after she and her family moved into their house on 12th Avenue in Scottsbluff but before 2012. She further stated that they moved into the 12th Avenue house while she was in eighth grade and that she started eighth grade in August 2011.
P.L. testified that the third incident (count II) happened in the kitchen at Cano's house. She said that he followed her into the kitchen when she went to get a drink, " pushe[d] [her] toward the seat," and " pull[ed] [her] down." P.L. " told him no." But he " told [her] to suck it again" and positioned her head to perform oral sex, which she did. At various times, P.L. testified that this occurred in " the year 2012," before her youngest cousin was born in July 2012 and before the final incident in February 2012.
P.L. testified that the fourth and final incident (count III) occurred in February 2012 while she was " putting lights up in [her] room." She described how Cano " pushe[d] [her] on the bed," " pull[ed] down his pants again," and told her to perform oral sex. On this occasion, Cano also pulled P.L.'s pants down and attempted to insert his penis into her vagina. P.L. testified that his penis " didn't go all the way" but " just touched" her vagina.
In addition to these four incidents, P.L. also briefly testified, over Cano's objection, to a fifth encounter. Because the admissibility of this testimony is raised on appeal, we reproduce the relevant exchange in full:
[Prosecutor:] Can you estimate when this happened, this incident that you're talking about on 12th Avenue in the kitchen?
[P.L.:] Like, close to two years now.
[Prosecutor:] Okay. Was there another time when this happened?
[P.L.:] Before that when [Cano] lived on 12th and I was in [his oldest daughter's] room and I was picking up the ...