State of Nebraska, Appellee.
Jose Huerta, Appellant.
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
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.
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
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.
__. 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.
Evidence: Words and Phrases. Unfair
prejudice means an undue tendency to suggest a decision based
on an improper basis.
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: Waiver: Appeal and Error. Failure to
make a timely objection waives the right to assert
prejudicial error on appeal.
Neb.App. 171] 9. Jury Instructions. Whether
jury instructions given by a trial court are correct is a
question of law.
Judgments: Appeal and Error. When reviewing
questions of law, an appellate court resolves the questions
independently of the conclusion reached by the lower court.
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.
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.
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.
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.
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
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
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.
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
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.
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.
from the District Court for Buffalo County: William T.
Wright, Judge. Affirmed.
W. Jorgensen, of Nye, Hervert, Jorgensen & Watson. PC,
Douglas J. Peterson, Attorney General, and Austin N. Relph
Chief Judge, and Arterburn and Welch, Judges.
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.
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.
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.
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
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.
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.
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.
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
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.
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."
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.
appeals his ...