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State v. Huerta

Court of Appeals of Nebraska

August 7, 2018

State of Nebraska, Appellee.
Jose Huerta, Appellant.

         1. Rules of Evidence: Appeal and Error. 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.

         2. Trial: Rules of Evidence: Expert Witnesses. A trial court exercises its discretion in determining whether evidence is relevant and whether its prejudicial effect substantially outweighs its probative value and in admitting or excluding an expert's testimony.

         3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         4. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2) does not apply to evidence of a defendant's other crimes or bad acts if the evidence is inextricably intertwined with the charged crime.

         5. __: __. Inextricably intertwined evidence includes evidence that forms part of the factual setting of the crime, or evidence that is so blended or connected to the charged crime that proof of the charged crime will necessarily require proof of the other crimes or bad acts, or if the other crimes or bad acts are necessary for the prosecution to present a coherent picture of the charged crime.

         6. Evidence: Words and Phrases. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.

         7. Trial: Evidence: Appeal and Error. On appeal, a defendant may not assert a different ground for his objection to the admission of evidence than was offered at trial.

         8. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the right to assert prejudicial error on appeal.

         [26 Neb.App. 171] 9. Jury Instructions. Whether jury instructions given by a trial court are correct is a question of law.

         10. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the conclusion reached by the lower court.

         11. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

         12. Appeal and Error. 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 uncor-rected, would result in damage to the integrity, reputation, and fairness of the judicial process.

         13. Verdicts: Appeal and Error. Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict surely would have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.

         14. Criminal Law: Trial: Proof: Jury Instructions: Due Process. In a criminal trial, the State must prove every element of the offense beyond a reasonable doubt, and a jury instruction violates due process if it fails to give effect to that requirement.

         15. Trial: Jury Instructions: Due Process. Not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is whether the ailing instruction so infected the entire trial that the resulting conviction violates due process.

         16. Jury Instructions: Appeal and Error. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.

         17. Trial: Prosecuting Attorneys: Jury Instructions. A statement made by a prosecutor during closing argument can assist a jury in resolving any ambiguity in the jury instructions and may be considered particularly where the prosecutor's argument resolves the ambiguity in favor of the defendant.

         18. 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 raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record. Otherwise the issue will be procedurally barred.

         [26 Neb.App. 172] 19. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question.

         20. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.

          Appeal from the District Court for Buffalo County: William T. Wright, Judge. Affirmed.

          David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson. PC, for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Moore, Chief Judge, and Arterburn and Welch, Judges.



         Jose Huerta was convicted by a jury of first degree sexual assault. The district court subsequently sentenced Huerta to 6 to 8 years' imprisonment. Huerta appeals from his conviction here. On appeal, he assigns numerous errors, including that the district court erred in making certain evidentiary rulings and in failing to properly instruct the jury. In addition, Huerta alleges that he received ineffective assistance of trial counsel in various respects. Upon our review, we affirm Huerta's conviction.


         The State filed an information charging Huerta with first degree sexual assault pursuant to Neb. Rev. Stat. § 28-319(1)(c) (Reissue 2016). Specifically, the information alleged that Huerta, who is 19 years of age or older, subjected a person, who was at least 12 years old, but less than 16 years [26 Neb.App. 173] old, to sexual penetration. The charge against Huerta stems from an incident which occurred on April 3, 2016. Evidence adduced at trial revealed that during the evening of April 3, 14-year-old C.W. was spending time with her 16-year-old friend, C.G., when C.G. contacted Huerta, whom she referred to as her "uncle," to come pick them up. After Huerta picked the girls up, he drove them to a liquor store where he purchased beer, and then he drove all of them to an apartment owned by his friend, William McGregor.

         The events that transpired after Huerta, C.W., and C.G. arrived at McGregor's apartment were disputed at trial. C.W. testified that once they arrived at the apartment, she, C.G, and Huerta all began to drink the beer he had purchased and to smoke cigarettes, which were also provided by Huerta. C.W. testified that she drank four beers, which was more alcohol than she had ever previously consumed. In fact, she drank so much that she threw up in a trash can which was located in the kitchen of the apartment. C.W. testified that after they had been at the apartment for a few hours, C.G. and Huerta went into the bathroom together and shut the door. While they were in the bathroom, C.W. could hear "kissing sounds.'' When they returned from the bathroom, C.W. observed Huerta touching C.G. "in her vaginal area" over her clothing and kissing C.G.

         C.W. testified that at some point, Huerta began touching her vaginal area. C.G. then instructed C.W. to come into the bedroom with her and Huerta. Once inside the bedroom, C.W. sat on the corner of the bed. C.W. testified that C.G. told C.W. that C.W. was "not going to be a virgin anymore." Then C.G. and Huerta undressed and began having sexual intercourse on the bed next to where C.W. was sitting. C.W. testified that Huerta used a condom during his sexual contact with C.G. She indicated that she had observed Huerta obtain this condom from the laundry room in the apartment.

         After C.G. and Huerta finished, they dressed and all three of them returned to the living room. However, a few minutes [26 Neb.App. 174] later, Huerta obtained another condom from McGregor, and C.W., C.G., and Huerta returned to the bedroom. This time, Huerta took off C.W.'s clothes and removed his own clothes. He began having penile-vaginal intercourse with C.W. She testified that she had never had sexual intercourse before and that it was "very painful." She also testified that she told Huerta to stop because she was in pain, but he did not stop. C.W. indicated that during this portion of the assault, C.G. remained in the bedroom. After C.G. left the room, C.W. described that Huerta had anal sex and oral sex with her. She explained that Huerta had "stuck his penis through my anus," that he had "placed my mouth on his penis," and that he "was biting" her vaginal area.

         After the assault, C.G.'s boyfriend came to McGregor's apartment to take the girls home. C.W. testified that in the days following the assault, she felt anxiety and depression about what had happened. Ultimately, she was admitted to a mental health hospital where she disclosed the assault.

         C.G. also testified at trial and essentially corroborated C.W.'s version of the events which transpired on the evening of April 3, 2016. C.G. testified that she, C.W., and Huerta went to McGregor's apartment where they all began to drink beer, which was provided by Huerta. She testified that at some point, she, C.W., and Huerta went into the bedroom where she and Huerta had consensual sexual intercourse. C.G. described that C.W. was on the bed while she and Huerta had sex. She also explained that after she and Huerta finished, Huerta began having sexual intercourse with C.W. C.G. indicated that after C.W. and Huerta began having sex, she left the bedroom.

         During the trial, the State also offered DNA evidence which was recovered from two condoms located in the bedroom of McGregor's apartment. This evidence revealed that on one of the condoms, both C.G.'s and Huerta's DNA was present. On the second condom, C.W.'s DNA was present, but no conclusions could be drawn about the presence of any other DNA [26 Neb.App. 175] because the sample was "too complex." Both condoms tested positive for the presence of semen.

         Huerta did not testify at trial, nor did he offer any evidence in his defense. However, during the trial the State did offer the testimony of Investigator Daniel Warrington with the Kearney Police Department, who had previously interviewed Huerta about his version of the events of April 3, 2016. During the interview, Huerta admitted that the girls were with him at McGregor's apartment, but he denied he had any type of sexual contact with either C.W. or C.G. He described himself as "a mentor" to C.G. During a subsequent interview with Huerta, Huerta continued to "adamantly" deny that he had provided the girls with any alcohol, but admitted that he had drank "a large amount of alcohol." He also admitted that C.G. tried to give him a "lap dance." Huerta told Investigator Warrington that he had observed C.W. and C.G. kissing each other. He then went into the bedroom to sleep.

         When Investigator Warrington indicated that law enforcement was testing the condoms found in the bedroom for DNA, Huerta explained that when he awoke after being asleep on the bed, his "pants were loose on him." He told Investigator Warrington that he was concerned that the girls "did something to him while he was passed out."

         After hearing all of the evidence, the jury convicted Huerta of first degree sexual assault. The district court subsequently sentenced Huerta to 6 to 8 years' imprisonment.

         Huerta appeals his ...

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