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State v. Cruz

Court of Appeals of Nebraska

March 22, 2016

STATE OF NEBRASKA, APPELLEE,
v.
ISRAHEL CRUZ, APPELLANT

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Appeal from the District Court for Dakota County: PAUL J. VAUGHAN, Judge.

Zachary S. Hindman, of Bikakis, Mayne, Arneson, Hindman & Hisey, for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

IRWIN, PIRTLE, and RIEDMANN, Judges.

OPINION

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[23 Neb.App. 816] Irwin, Judge.

I. INTRODUCTION

Israhel Cruz appeals his convictions and sentences for attempted first degree sexual assault of a child and attempted incest as to his daughter, G.C., as well as his sentence for child abuse of G.C. Cruz also appeals his convictions and sentences for seven charges relating to his other daughter, V.C.: first degree sexual assault of a child, incest, two counts of manufacturing a visual depiction of sexually explicit conduct with a child as a participant, two counts of possessing a visual depiction of sexually explicit conduct with a child as a

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participant, and child abuse. On appeal, Cruz argues that there was insufficient evidence to support his convictions for attempted first degree sexual assault and attempted incest as to G.C., that the district court erred in not permitting evidence of V.C.'s allegation of a prior sexual assault, that Cruz' [23 Neb.App. 817] trial counsel was ineffective, and that Cruz received excessive sentences.

Upon our review, we find that there was insufficient evidence to support Cruz' convictions for attempted first degree sexual assault of G.C. and attempted incest with G.C. We reverse Cruz' convictions for attempted first degree sexual assault of a child and attempted incest and vacate his sentences for those charges. We find no merit to Cruz' other assertions on appeal. Accordingly, we affirm Cruz' convictions and sentences for child abuse as to G.C. and for all of the charges relating to V.C.

II. BACKGROUND

The events giving rise to this action involve G.C. and V.C., the biological daughters of Cruz. V.C. was born in May 2001 and G.C. was born in May 2003. Cruz was born in July 1984.

On February 27, 2014, G.C. told a friend that her father, Cruz, had been sexually abusing her. The friend informed her mother, who reported the abuse to the Department of Health and Human Services. As a result of the report to the department, a child and family services specialist went to the Cruz home on the evening of February 27. The specialist interviewed G.C. and V.C. separately. After interviewing the girls, the child and family services specialist determined G.C. and V.C. should be removed from the home for their safety.

The day after G.C. and V.C. were removed from their home, both girls met with a sexual assault nurse examiner and a forensic interviewer. An examination revealed that V.C. had missing hymenal tissue consistent with repeated penetration. V.C. also tested positive for chlamydia, a sexually transmitted infection frequently spread through penetration. G.C. was too upset to submit to a physical examination that day, but a later examination revealed no abnormalities. Cruz later tested positive for chlamydia.

Cruz was arrested and eventually charged with three counts relating to G.C.: first degree sexual assault of a child, incest, [23 Neb.App. 818] and child abuse. Cruz was also charged with seven counts relating to V.C.: first degree sexual assault of a child, incest, two counts of manufacturing a visual depiction of sexually explicit conduct with a child as a participant, two counts of possessing a visual depiction of sexually explicit conduct with a child as a participant, and child abuse.

At the trial, both girls testified. According to V.C., Cruz would come into her room at night and have sex with her. When asked what she meant by " sex," V.C. said, " Like a mom and dad will create a baby." With respect to the specific body parts involved, V.C. identified Cruz' " bottom" as an area encompassing his penis on a diagram. V.C. identified her " bottom" as an area encompassing her lower abdomen, thighs, and vagina. V.C. testified that her father, Cruz, would put his bottom in her mouth. V.C. also testified that he would touch her bottom with his bottom, move up and down, and then her bottom would hurt afterward. The State asked V.C. if what " you were describing earlier when your dad would come into your room" had happened more than once. V.C. testified that it had happened more than once and that it had started when she was 9 or 10 years old. V.C. testified that the last time it happened was the Saturday before she was interviewed.

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V.C. also testified that Cruz had taken inappropriate pictures of her. V.C. testified that Cruz had used his cell phone to take two pictures that depicted V.C. in her bra and Cruz in his boxers. According to V.C., Cruz also had naked pictures of V.C. on his cell phone that V.C. had taken herself. G.C. testified that Cruz would come into her room while she was sleeping. According to G.C., Cruz would remove G.C.'s clothes, remove his own clothes, and touch G.C. with what she called Cruz' " bottom parts." On a diagram depicting a naked man, G.C. circled an area that included the penis as being the man's " bottom parts." G.C. testified that Cruz would touch his " bottom parts" to her " bottom parts," which she identified on a diagram as being the area below her navel and encompassing her right hip, crotch, and thighs. The State asked G.C. [23 Neb.App. 819] whether " [w]hat you just described with his bottom part touching your bottom part" had happened more than one time. G.C. testified that it had happened more than once and that " the last time" was 1 or 2 weeks before her interview.

At the close of the State's case, Cruz moved to dismiss all 10 counts. The court denied the motion as to eight of the counts, but reserved ruling on the counts of first degree sexual assault of G.C. and incest with G.C. The court stated it was not satisfied that the State had presented evidence of a required element of both first degree sexual assault of a child and incest, namely penetration.

Cruz then proceeded to put on his case in chief, including calling G.C. to the stand. Cruz' attorney asked G.C., " [When was] the last time . . . anything happened between you and your father . . . ?" G.C. testified that " the last time my dad did it" was 2 to 3 weeks before she was removed from the home. G.C. testified that during the last incident, Cruz had removed G.C.'s pants. Cruz' attorney asked G.C., " [D]id he then touch you on any part -- any part of your body?" to which G.C. replied, " Yes."

On the final day of trial, the court ruled on Cruz' motion to dismiss the counts of first degree sexual assault of a child and incest pertaining to G.C. The court overruled the motion to dismiss the counts outright, but decided to instruct the jury as to the lesser-included offenses of attempted first degree sexual assault of a child and attempted incest.

The jury found Cruz guilty of all 10 counts.

For the charges involving G.C., the trial court imposed the following sentences: (1) 15 to 20 years' imprisonment for attempted sexual assault of a child in the first degree, (2) 1 to 3 years' imprisonment for attempted incest, and (3) 2 to 5 years' imprisonment for child abuse. For the charges involving V.C., the court imposed the following sentences: (1) 30 to 40 years' imprisonment for first degree sexual assault of a child, (2) 3 to 5 years' imprisonment for incest, (3) 3 to 5 years' imprisonment for the first count of manufacturing a visual [23 Neb.App. 820] depiction of sexually explicit conduct with a child as a participant, (4) 3 to 5 years' imprisonment for the second count of manufacturing a visual depiction of sexually explicit conduct with a child as a participant, (5) 1 to 3 years' imprisonment for the first count of possession of a visual depiction of sexually explicit conduct with a child as a participant, (6) 1 to 3 years' imprisonment for the second count of possession of a visual depiction of sexually explicit conduct with a child as a participant, and (7) 2 to 5 years' imprisonment for child abuse. The court ordered that the sentences be served consecutively and gave Cruz credit for 314 days previously served.

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Cruz appeals from his convictions on all the counts except child abuse as to G.C. and from his sentences on all 10 convictions. Additional facts will be discussed, as necessary, in the analysis section of this opinion.

III. ASSIGNMENTS OF ERROR

On appeal, Cruz assigns numerous errors. Those assigned errors, restated and renumbered, are that (1) there was insufficient evidence to support Cruz' convictions for attempted first degree sexual assault of G.C. and attempted incest with G.C.; (2) the trial court erred in excluding evidence of V.C.'s lack of credibility with respect to a prior allegation of sexual abuse; (3) Cruz' trial counsel was ineffective in several ways, including failing to request a limiting instruction, failing to move to sever the charges, failing to investigate V.C.'s sexual history, and failing to object to a violation of Cruz' Fifth Amendment rights at sentencing; and (4) the sentences imposed upon Cruz were excessive.

IV. ANALYSIS

1. Sufficiency of Evidence for Attempted First Degree Sexual Assault of G.C. and Attempted Incest With G.C.

Cruz argues that there was insufficient evidence to support his convictions for attempted first degree sexual assault [23 Neb.App. 821] of G.C. and attempted incest with G.C. We note that Cruz does not argue the sufficiency of the evidence for child abuse of G.C. With respect to attempted first degree sexual assault and attempted incest of G.C., Cruz argues that there was inadequate evidence to prove an essential element of both crimes--attempted penetration. Cruz also asserts that there was insufficient evidence that the attempted sexual assault and attempted incest occurred within the timeframe set forth in the jury instructions. The evidence presented does not strongly corroborate Cruz' intent to penetrate G.C. as required by law. We therefore agree that there was insufficient evidence to support Cruz' convictions for attempted first degree sexual assault of a child and attempted incest.

In reviewing a sufficiency of the evidence claim, regardless of whether the evidence is direct, circumstantial, or a combination thereof, 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. See State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015). 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. State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015).

A defendant's conduct rises to criminal attempt if he or she intentionally engages in conduct which, under the circumstances as he or she believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his or her commission of the crime. State v. Babbitt, 277 Neb. 327, 762 N.W.2d 58 (2009); Neb. Rev. Stat. § 28-201 (Cum. Supp. 2014).

Conduct shall not be considered a substantial step unless it is strongly corroborative of the defendant's criminal intent. Babbitt, supra.

In the case at hand, both first degree sexual assault of a child and incest require penetration. The incest statute provides: [23 Neb.App. 822] " Any person who shall knowingly . . . engage in sexual penetration with any person who falls within the [applicable] degree[] of consanguinity . . . ...


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