State v. Cruz ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/07/2016 12:09 PM CDT
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Decisions of the Nebraska Court of A ppeals
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STATE v. CRUZ
Cite as 23 Neb. Ct. App. 814
State of Nebraska, appellee, v.
Israhel Cruz, appellant.
___ N.W.2d ___
Filed March 22, 2016. No. A-15-097.
1. Evidence: Appeal and Error. In reviewing a sufficiency of the evi-
dence 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 evi-
dence; such matters are for the finder of fact.
2. Criminal Law: Evidence: Appeal and Error. The relevant question for
an appellate court reviewing the sufficiency of the evidence 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.
3. Criminal Attempt: Intent. 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 commis-
sion of the crime.
4. ____: ____. Conduct shall not be considered a substantial step unless it
is strongly corroborative of the defendant’s criminal intent.
5. Criminal Attempt: Intent: Sexual Assault. To support a conviction
of either attempted first degree sexual assault of a child or attempted
incest, the actor’s conduct must be strongly corroborative of an intent to
penetrate the victim.
6. Double Jeopardy: Evidence: Appeal and Error. The Double Jeopardy
Clause precludes a second trial once the reviewing court has found the
evidence legally insufficient.
7. Trial: Rules of Evidence: Appeal and Error. Error may not be predi-
cated upon a ruling which admits or excludes evidence unless a sub-
stantial right of the party is affected and the substance of the evidence
was made known to the judge by offer or was apparent from the context
within which questions were asked.
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8. Trial: Evidence: Witnesses. An offer of proof must demonstrate to the
court that questions put to a witness call for competent evidence.
9. Sexual Assault: Evidence: Proof. Evidence of a victim’s allegedly false
prior claims of sexual assault is properly excluded where the defendant
made no showing that the prior claims were, in fact, false.
10. Effectiveness of Counsel: Proof. In order to prevail on a claim for
ineffective assistance of counsel, a defendant must show that his or her
counsel’s performance was deficient and that he or she was prejudiced
by such deficiency.
11. ____: ____. The two prongs of the ineffective assistance test, deficient
performance and prejudice, may be addressed in either order.
12. Effectiveness of Counsel: Records: Appeal and Error. A claim of
ineffective assistance of counsel need not be dismissed merely because
it is made on direct appeal. Rather, the determining factor is whether the
record is sufficient to adequately review the question.
13. Trial: Joinder. The standard for joinder of offenses is set forth in Neb.
Rev. Stat. § 29-2002 (Reissue 2008).
14. ____: ____. Offenses are properly joinable under Neb. Rev. Stat.
§ 29-2002(1) (Reissue 2008) if they are of the same or similar charac-
ter or are based on the same act or transaction or on two or more acts
or transactions connected together or constituting parts of a common
scheme or plan.
15. ____: ____. Whether offenses are properly joined involves a two-stage
analysis in which it is determined first whether the offenses are related
and properly joinable and second whether an otherwise proper joinder
was prejudicial to the defendant.
16. Trial: Joinder: Proof. A defendant opposing joinder has the burden of
proving prejudice.
17. Trial: Joinder: Evidence: Juries. Prejudice usually does not occur
from joined charges if the evidence is sufficiently simple and dis-
tinct for the jury to easily separate evidence of the charges during
deliberations.
18. Sentences: Evidence. A sentencing court has broad discretion as to
the source and type of evidence and information which may be used in
determining the kind and extent of the punishment to be imposed.
19. Sentences: Probation and Parole. When attempting to determine at
sentencing whether the defendant is a proper candidate for probation
and rehabilitation, the court, of necessity, must consider whether the
defendant acknowledges his or her guilt.
20. Sentences. A defendant’s lack of remorse is a proper factor for the court
to consider at sentencing.
21. ____. A defendant’s failure to take responsibility for his or her actions is
a proper factor for the court to consider at sentencing.
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STATE v. CRUZ
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22. ____. When imposing a sentence, a sentencing judge should consider the
defendant’s age, mentality, education and experience, social and cultural
background, past criminal record, and motivation for the offense, as well
as the nature of the offense and the violence involved in the commission
of the crime.
23. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable
legal principles in determining the sentence to be imposed.
Appeal from the District Court for Dakota County: Paul J.
Vaughan, Judge. Affirmed in part, and in part reversed and
vacated.
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 R iedmann, Judges.
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 con-
duct 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. 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 evi-
dence of V.C.’s allegation of a prior sexual assault, that Cruz’
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trial counsel was ineffective, and that Cruz received exces-
sive sentences.
Upon our review, we find that there was insufficient evi-
dence 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 depart-
ment, a child and family services specialist went to the Cruz
home on the evening of February 27. The specialist inter-
viewed 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 posi-
tive for chlamydia.
Cruz was arrested and eventually charged with three counts
relating to G.C.: first degree sexual assault of a child, incest,
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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 “bot-
tom” as an area encompassing her lower abdomen, thighs, and
vagina. V.C. testified that her father, Cruz, would put his bot-
tom in her mouth. V.C. also testified that he would touch her
bottom with his bottom, move up and down, and then her bot-
tom 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.
V.C. also testified that Cruz had taken inappropriate pic-
tures 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 encompass-
ing her right hip, crotch, and thighs. The State asked G.C.
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whether “[w]hat you just described with his bottom part touch-
ing 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
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depiction of sexually explicit conduct with a child as a partici-
pant, (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 partici-
pant, 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.
Cruz appeals from his convictions on all the counts except
child abuse as to G.C. and from his sentences on all 10 convic-
tions. 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 insuf-
ficient 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, includ-
ing 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 I ncest With G.C.
Cruz argues that there was insufficient evidence to sup-
port his convictions for attempted first degree sexual assault
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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 cor-
roborate 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.
[1,2] 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 view-
ing the evidence in the light most favorable to the prosecu-
tion, 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).
[3] A defendant’s conduct rises to criminal attempt if he
or she intentionally engages in conduct which, under the cir-
cumstances 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).
[4] 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:
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“Any person who shall knowingly . . . engage in sexual pen-
etration with any person who falls within the [applicable]
degree[] of consanguinity . . . commits incest.” Neb. Rev. Stat.
§ 28-703(1) (Reissue 2008). The relationship between parents
and children is a prohibited degree of consanguinity for incest.
Neb. Rev. Stat. § 28-702 (Reissue 2008).
The statute prohibiting first degree sexual assault of a child
provides as follows: “A person commits sexual assault of a
child in the first degree . . . [w]hen he . . . subjects another
person under twelve years of age to sexual penetration and
the actor is at least nineteen years of age or older.” Neb. Rev.
Stat. § 28-319.01(1)(a) (Cum. Supp. 2014). In contrast to first
degree sexual assault of a child, second and third degree sexual
assault of a child require only that the actor subject the child to
“sexual contact,” not penetration. See Neb. Rev. Stat. § 28-320
(Reissue 2008).
[5] Because both first degree sexual assault of a child
and incest require penetration, attempted first degree sex-
ual assault of a child and attempted incest require proof of
attempted penetration. That is, in order to support Cruz’ con-
victions for attempted first degree sexual assault of a child and
attempted incest, Cruz’ conduct must be strongly corrobora-
tive of his intent to penetrate G.C. See Babbitt, supra. See,
also, § 28-201.
G.C. testified that Cruz touched his “bottom parts” to her
“bottom parts.” G.C. identified Cruz’ bottom parts as an area
including his penis and her bottom parts as an area encompass-
ing her hip, thighs, and vagina. When called as a witness for
the State, G.C. testified that “the last time” had been 1 to 2
weeks before her interview. When called as a witness for Cruz,
G.C. testified that the most recent incident had occurred 2 to
3 weeks before she was removed from the home when Cruz
had removed G.C.’s pants and touched her on some part of her
body. Viewed in the light most favorable to the State, G.C.’s
statements could be interpreted as meaning that during the
most recent incident, Cruz touched his penis to her vagina.
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In other cases of attempted first degree sexual assault, the
defendant’s intention to penetrate the victim can be inferred
from the circumstances which prevented the defendant from
completing the crime. For example, in State v. Swoopes,
223 Neb. 914, 395 N.W.2d 500 (1986), overruled on other
grounds, State v. Jackson, 225 Neb. 843, 408 N.W.2d 720
(1987), the defendant entered the victim’s house, put a knife
to her throat, and attempted to drag her upstairs. The victim
struggled while the defendant reached down the victim’s
shirt and fondled her breast. Id. The victim eventually suc-
ceeded in pulling loose from the defendant and ran away,
at which point the defendant fled. Id. In Swoopes, the fact
finder could infer that the defendant had the intent to subject
the victim to sexual penetration but had been unable to do
so because the victim interrupted the sexual assault by strug-
gling and fleeing. The fact that the victim’s struggle—not
the defendant’s voluntary choice—ended the encounter sup-
ports an inference that the defendant intended his actions to
culminate in a different act: penetration. See id. See, also,
State v. Jameson, 239 Neb. 109, 474 N.W.2d 475 (1991)
(finding sufficient evidence to support defendant’s convic-
tion of attempted first degree sexual assault where defend­
ant entered victim’s house, crawled into victim’s bed, and
placed his hand and penis in her vaginal area before victim
freed herself and called police); State v. Luff, 18 Neb. Ct. App.
422, 783 N.W.2d 625 (2010) (upholding defend­ant’s convic-
tion for attempted first degree sexual assault of child where
defendant touched victim’s vagina with his finger and penis
before victim got off bed where assault was occurring); State
v. Schmidt, 5 Neb. Ct. App. 653, 562 N.W.2d 859 (1997) (find-
ing sufficient evidence to support defendant’s attempted first
degree sexual assault conviction where defend­ant had trans-
ported victim to isolated spot, hit her on head, and removed
her shirt and bra before victim halted assault by struggling,
running, and screaming).
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These cases are in contrast to the facts of the case at
hand. Construing the evidence in the light most favorable to
the State as we are required to do, the evidence shows that
Cruz touched G.C.’s vagina with his penis, but it does not
demonstrate that Cruz did so with the intent that his actions
culminate in a different act, such as penetration. After elicit-
ing G.C.’s testimony that her father had touched his “bottom
parts” to her “bottom parts,” the State did not ask G.C. any
additional questions, such as why Cruz stopped touching her,
or any other questions that would allow us to draw the infer-
ence that he intended to penetrate her at that time. Unlike in
the cases discussed above, the State adduced no evidence that
Cruz was interrupted or otherwise prevented from penetrating
G.C. Because of this deficiency in evidence, we must there-
fore conclude that Cruz’ actions are not strongly corroborative
of his intention to penetrate G.C. Cf. State v. Babbitt, 277
Neb. 327, 762 N.W.2d 58 (2009). While the evidence may
have supported a finding that Cruz subjected G.C. to sexual
contact as required for second or third degree sexual assault,
the State failed to adduce evidence of Cruz’ intent to penetrate
G.C. as required to convict him of attempted first degree
sexual assault.
We conclude that there was insufficient evidence to support
Cruz’ convictions for attempted first degree sexual assault of
a child and attempted incest. Because we conclude the evi-
dence was insufficient to support Cruz’ convictions, we need
not address his alternative argument regarding the timing of
the offenses.
[6] The Double Jeopardy Clause precludes a second trial
once the reviewing court has found the evidence legally insuf-
ficient. State v. Welch, 275 Neb. 517, 747 N.W.2d 613 (2008).
Because we find the evidence legally insufficient, Cruz can-
not be retried on the charges of attempted sexual assault of
a child in the first degree and attempted incest. We reverse
Cruz’ convictions for attempted first degree sexual assault
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of a child and attempted incest and vacate his sentences for
those charges.
2. Exclusion of Evidence of V.C.’s
Prior Claim of Sexual A buse
Cruz alleges that the district court erred by excluding evi-
dence at trial that V.C. had “previously made false accusa-
tions relating to a purported sexual assault against V.C. by
another individual.” Brief for appellant at 26. Cruz argues
that the evidence should have been admitted because it was
relevant to V.C.’s credibility. Cruz also asserts that the trial
court improperly analyzed the evidence’s admissibility under
Neb. Rev. Stat. § 27-412 (Cum. Supp. 2014). As we under-
stand Cruz’ argument, he asks us to reverse his convictions for
all the charges involving V.C. because the court erroneously
excluded evidence of her credibility, but he does not argue that
there was insufficient evidence to support his convictions for
the charges involving V.C. We note that Cruz did not make an
offer of proof relating to V.C.’s prior claim of sexual abuse.
Without an offer of proof, we do not know the substance of the
evidence, who the witness would be to provide the evidence,
or what is the falsehood. Because the alleged error was not
properly preserved for appellate review, we cannot determine
the merits of Cruz’ second assignment of error.
[7,8] Error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the
party is affected and the substance of the evidence was made
known to the judge by offer or was apparent from the context
within which questions were asked. State v. Van, 268 Neb.
814, 688 N.W.2d 600 (2004). An offer of proof must dem-
onstrate to the court that questions put to a witness call for
competent evidence. State v. Earl, 252 Neb. 127, 560 N.W.2d
491 (1997).
At various hearings before and during the trial, the State and
Cruz’ attorney discussed an incident from 2010 in which V.C.
reported that she had been sexually abused by a person other
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than Cruz. The first discussion of the prior incident occurred at
a hearing on Cruz’ motion in limine to exclude evidence that
Cruz and V.C. had both tested positive for chlamydia. The court
inquired whether Cruz was the only person V.C. was alleged to
have had sexual contact with. The State reported that V.C. had
not had sexual intercourse with anyone other than Cruz. Cruz’
attorney disagreed, stating that “there was another report that
was taken [and t]hey alleged a sexual assault on her.” The
attorneys and the trial court judge then had the following dia-
log regarding the details of the prior incident:
[Court]: And the child said she had sexual intercourse?
[Cruz’ counsel]: No, Your Honor. I don’t believe she
— She made some statements that — that something hap-
pened. There was some statements that didn’t seem to be
possibly true, so not exactly certain what happened, Your
Honor, fully.
[Court]: Well, but what did she say happened?
[Cruz’ counsel]: She said that she was tied up and that
a — a person had touched her . . . . If I could have a
moment, maybe I can find the report and I can just — or
if [the prosecutor] has it handy, I can —
....
[The State]: The child states that the — Let’s see. Put
me on the bed, tied some strings around her legs, said
don’t go away. She states that strings were tied to the bed
and she couldn’t move.
She says that this person tried to kiss her, but she kept
going like this, and demonstrated moving her hands back
and forth. She said she was going to call her sister and
she woke up. . . .
[The State]: The incident narrative that was given to
us, Your Honor, states that during the interview [V.C.]
stated that [the man] attempts to kiss her but was unsuc-
cessful in doing so, denied that [the man] touched her in
any place that made her feel uncomfortable.
[Court]: Okay.
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[The State]: And then said placed her in a bed and
tied her — tied string around her ankles and wrists and
secured her to the bed. And then when asked how she got
away, she stated the police came into the locked room and
cut the strings off of her.
....
[Cruz’ counsel]: Your Honor, and what we know from
this report is that part of that couldn’t possibly have
been true, that no officer did come and cut her free. And
so if — if she may have been mistaken or — Well, not
may have, that she was just wrong in some of what she
was saying, I think there could be [a] possibility that
maybe more things happened, maybe there was some
other ­contact. . . .
....
. . . [I]f there are other ways or possibilities that — that
[V.C.] could have caught these diseases, then I think that
has to be explored . . . .
The court eventually denied Cruz’ motion to exclude
evidence that V.C. and Cruz had both tested positive for
chlamydia.
The second discussion regarding V.C.’s prior allegation of
sexual abuse occurred at a hearing on the State’s motion in
limine asking the court to exclude all evidence of V.C.’s prior
sexual behavior pursuant to § 27-412. Section 27-412 provides
that evidence of a victim’s other sexual behavior or sexual
predisposition is not admissible in cases involving sexual mis-
conduct. The statute goes on to provide exceptions to the
prohibition against using a victim’s sexual behavior, including
when the evidence is used to prove that a person other than
the accused was the source of semen, injury, or other physical
evidence. See § 27-412(2)(a)(i).
Cruz opposed the State’s motion in limine to exclude evi-
dence of V.C.’s prior sexual behavior pursuant to § 27-412.
Cruz’ attorney argued that he should be permitted to ask
V.C. to elaborate about her prior claim of sexual abuse. In
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addition to wanting to ask V.C. for more details about the
alleged sexual abuse, Cruz’ attorney stated he also wanted to
ask her questions about the incident because it was relevant to
her credibility:
Now, there may be other questions related to her con-
tact with this individual, but those would be toward her
veracity involving statements that — that might or might
not have been true. And so I may want to ask questions of
her about that incident.
And not necessarily involving any sexual aspect to it,
but just as to the facts and circumstances surrounding the
incident and — what she may have told people versus
what other people were able to observe.
And so it would be more toward her credibility, Your
Honor, and not necessarily as to any sexual behavior
beyond what I’ve just spoke to the Court about.
The court then asked Cruz’ attorney to clarify which sub-
section of § 27-412 permitted it to admit the evidence in
question. Cruz’ attorney responded that the evidence would
be offered to prove that a person other than the defendant
was the source of semen, injury, or other physical evidence.
The State argued that the man from the prior incident could
not be the source of semen, injury, or physical evidence
because there was no evidence that the prior incident had
involved penetration:
What we have, Your Honor, is [V.C.] going to a
CAC[ (Child Advocacy Center)]. When she’s interviewed
at the CAC she talks about, well, he was trying to
kiss me.
Even at the CAC interview initially there was no
indication of any type of vaginal penetration, vaginal
whatever. Nothing was dealing with the vaginal area,
which he’s trying to say this is relevant to show injuries
contained within the vaginal vault.
Later on, I believe, at the CAC interview that occurred
[in this case] in February of 2014, just as an aside, toward
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the end of the interview [V.C.] indicated that there was
some touching and licking down there. And that was the
extent of it.
It wasn’t explored as to what kind of touching, if it was
penetration, if it was anything else. It [was] just that there
was touching and there was licking.
....
And then we have a situation where last week she’s
talking to the officer, she says she remembers telling
something about some sexual conduct — or contact with
this man.
. . . [S]exual contact certainly is — you know, what is
that? That could be touching, that could be licking. For a
child of that age it could be — You just don’t know what
it is.
In response to the parties’ arguments on the motion in
limine, the court noted that § 27-412 requires the accused
to provide 15 days’ notice that he or she intends to present
evidence of a victim’s sexual history and that Cruz had not
provided such notice. The court further stated that because
Cruz had not provided the required notice, the court had
been unable to hold a hearing to evaluate the evidence. The
court granted the State’s motion to exclude evidence of V.C.’s
sexual history.
The third discussion of V.C.’s allegation of prior sexual
abuse occurred at a hearing on Cruz’ motion to admit evi-
dence under § 27-412. On the second day of trial, Cruz filed a
motion requesting that the court allow him to admit evidence
of V.C.’s prior claim of sexual assault. Cruz’ motion stated in
part, “Th[e] evidence will show that the alleged victim, V.C.,
has made false and/or misleading statements [to] officials
regarding her sexual behavior.” At the hearing, the trial court
asked Cruz whether showing a victim made false or mislead-
ing statements was a basis for admissibility under § 27-412.
Cruz’ attorney stated, “[I]t kind of goes to the — to the whole
package of her interaction with the officers.” When the court
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inquired what Cruz would ask V.C. about the prior incident,
Cruz’ attorney stated, “I want to ask her what happened.”
The trial court overruled Cruz’ motion, stating that Cruz had
not provided timely notice pursuant to § 27-412 and that the
evidence did not fall under any of the exceptions listed in the
statute. Cruz’ attorney did not ask V.C. any questions about
the prior incident during the trial, nor did he make an offer
of proof.
The details regarding V.C.’s prior allegation of sexual abuse
are unclear. Cruz’ attorney asserted at the hearing on the
motion in limine regarding V.C.’s and Cruz’ chlamydia diag-
noses that V.C.’s prior allegation “couldn’t possibly have been
true [because] no officer did come and cut her free” from the
bed where she was tied up. However, Cruz’ attorney did not
elaborate on this alleged lie or offer the testimony of an offi-
cer or anyone else to support Cruz’ attorney’s assertion that
V.C. was not freed by the police. Additionally, Cruz’ attorney
did not expand upon the claim that V.C.’s prior allegation was
false when Cruz later opposed the State’s motion in limine
to exclude evidence of V.C.’s sexual history. Cruz’ motion
to admit evidence under § 27-412 stated that the “evidence
will show that the alleged victim, V.C., has made false and/
or misleading statements [to] officials regarding her sexual
behavior.” Cruz did not adduce any evidence proving that
V.C.’s prior claim was false or misleading. Cruz’ attorney’s
unsupported allegations that V.C. made false statements are
not an adequate offer of proof by which we can judge the
competence of the evidence that Cruz claims was improp-
erly excluded.
[9] In a similar case, the Nebraska Supreme Court excluded
evidence of a victim’s allegedly false prior claims of sex-
ual assault. See State v. Welch, 241 Neb. 699, 490 N.W.2d
216 (1992). The court concluded the evidence was properly
excluded because “the defendant made no showing at any time
that any claim the victim had made concerning prior sexual
assaults and familial sexual abuse was false.” Id. at 707, 490
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N.W.2d at 221. As in Welch, Cruz wanted to introduce evi-
dence of an allegedly untrue prior claim of sexual abuse, but
made no showing that the prior claim was, in fact, false.
We are unable to determine from the record and the con-
text of the various hearings the substance of the evidence,
who the witness would be to provide the evidence, and what
was the falsehood. We cannot determine whether the exclu-
sion of the evidence affected Cruz’ substantial rights. See
State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004). There
was no offer of proof to overcome these deficiencies and
allow us to determine whether the evidence was competent.
See State v. Earl, 252 Neb. 127, 560 N.W.2d 491 (1997).
Because Cruz failed to preserve this alleged error for our
review, we express no opinion on whether the trial court cor-
rectly employed § 27-412 to exclude the alleged evidence of
V.C.’s credibility.
3. Ineffective Assistance of Counsel
[10,11] In order to prevail on a claim for ineffective assist­
ance of counsel, a defendant must show that his or her coun-
sel’s performance was deficient and that he or she was preju-
diced by such deficiency. State v. Howard, 282 Neb. 352,
803 N.W.2d 450 (2011). The two prongs of the ineffective
assistance test, deficient performance and prejudice, may be
addressed in either order. State v. Poe, 284 Neb. 750, 822
N.W.2d 831 (2012).
[12] A claim of ineffective assistance of counsel need not
be dismissed merely because it is made on direct appeal. State
v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013). Rather,
the determining factor is whether the record is sufficient to
adequately review the question. Id.
Cruz asserts that his trial counsel was ineffective in four
respects: (1) for failing to request a limiting instruction to pre-
vent the jury from using evidence relating to V.C. in resolving
the charges involving G.C. and vice versa, (2) for failing to
move to sever the charges relating to G.C. from those relating
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to V.C., (3) for failing to inquire into V.C.’s sexual history, and
(4) for failing to object at the sentencing hearing based on a
violation of Cruz’ Fifth Amendment rights. We will address
each of Cruz’ allegations of ineffectiveness in turn.
(a) Limiting Instruction
Cruz alleges his trial counsel was ineffective for failing “to
request a limiting instruction that the jury could not consider
the evidence of Cruz’s alleged crimes against V.C. to prove
the charges involving G.C., and vice versa.” Brief for appel-
lant at 34. Cruz argues that evidence of the crimes as to one
victim would constitute inadmissible prior bad acts evidence
as to the crimes against the other victim in violation of Neb.
Rev. Stat. § 27-404(2) (Cum. Supp. 2014). The record does not
reveal trial counsel’s reasoning for failing to request a limit-
ing instruction. Accordingly, the record is inadequate to allow
us to address this assignment of error on direct appeal. See
McGuire, supra.
(b) Motion to Sever
Cruz argues that his trial counsel was ineffective for failing
to move to sever the charges relating to V.C. from the charges
relating to G.C. Cruz argues that “[t]he alleged crimes toward
G.C. occurred separately and apart from the alleged crimes
toward V.C.” and joinder of the two was therefore improper.
Brief for appellant at 42. This assignment of error is with-
out merit.
[13-15] The standard for joinder of offenses is set forth
in Neb. Rev. Stat. § 29-2002 (Reissue 2008). Offenses are
properly joinable under § 29-2002(1) if they are of the same
or similar character or are based on the same act or transac-
tion or on two or more acts or transactions connected together
or constituting parts of a common scheme or plan. State
v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013). Whether
offenses are properly joined involves a two-stage analysis in
which it is determined first whether the offenses are related
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and properly joinable and second whether an otherwise proper
joinder was prejudicial to the defendant. State v. Schroeder,
279 Neb. 199, 777 N.W.2d 793 (2010).
The first question is whether the charges were properly
joined. See id. A recent case from the Nebraska Supreme Court
is illustrative. In State v. Knutson, 288 Neb. 823, 852 N.W.2d
307 (2014), the defendant was charged with five counts of
sexual assault and child abuse for separate incidents involv-
ing four minor girls. Id. The defendant had taught, tutored, or
coached each of the victims. Id. The defendant was convicted
of the charges involving one of the children, but acquitted of
the charges relating to the other three girls. Id. He alleged on
appeal that the charges should have been severed. Id. The court
disagreed, concluding that the offenses were properly joined
under § 29-2002(1) because they were of the same or similar
character. Knutson, supra. The court noted that the facts of
the underlying crimes were similar in that each of the children
attended the school where the defendant taught, each of the
girls was around the same age when the misconduct occurred,
and the defendant occupied a position of trust with respect to
each of the alleged victims. Id.
In the case at hand, we similarly conclude that the charges
involving G.C. and V.C. were of the same or similar character.
As in Knutson, supra, the victims both had the same rela-
tionship with Cruz (father-daughter), both were of a similar
age when the misconduct occurred, and with respect to both
alleged victims, Cruz abused his position of trust as their
father. See id. We conclude the charges were properly joined
under § 29-2002(1).
[16,17] The next question is whether the otherwise proper
joinder prejudiced Cruz. See, Schroeder, supra. See, also,
§ 29-2002(3). A defendant opposing joinder has the bur-
den of proving prejudice. See Knutson, supra. The Nebraska
Supreme Court has previously noted that “prejudice usually
does not occur from joined charges if the evidence is suf-
ficiently simple and distinct for the jury to easily separate
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evidence of the charges during deliberations.” Id. at 833, 852
N.W.2d at 318.
In the case at hand, the evidence for each charge was simple
and distinct from the evidence of the other offenses. Moreover,
the trial court specifically instructed the jury that it was to
reach a separate decision with respect to each charge. Cruz
has not shown that he was prejudiced by the joinder, and we
therefore need not address his claim that his trial counsel’s
performance was deficient. See State v. Poe, 284 Neb. 750,
822 N.W.2d 831 (2012). His assertion that his trial counsel
was ineffective for failing to move to sever the charges is
without merit.
(c) Investigation into V.C.’s
Sexual History
Cruz next asserts that his trial counsel was ineffective for
failing to investigate V.C.’s sexual history. Cruz concedes that
the record is not adequate to resolve this assignment of error
on direct appeal. See State v. McGuire, 286 Neb. 494, 837
N.W.2d 767 (2013). We agree.
(d) Fifth Amendment Objection
at Sentencing
Cruz alleges that his trial counsel was ineffective for fail-
ing to object to a violation of Cruz’ Fifth Amendment rights at
the sentencing hearing. Cruz argues the trial court improperly
based its sentences on Cruz’ silence at sentencing. We find no
merit to this assignment of error.
[18,19] A sentencing court has broad discretion as to the
source and type of evidence and information which may be
used in determining the kind and extent of the punishment to
be imposed. State v. Thomas, 268 Neb. 570, 685 N.W.2d 69
(2004). When attempting to determine at sentencing whether
the defendant is a proper candidate for probation and reha-
bilitation, the court, of necessity, must consider whether the
defendant acknowledges his or her guilt. See State v. Winsley,
223 Neb. 788, 393 N.W.2d 723 (1986).
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[20,21] Nebraska courts have previously held that a
d­ efendant’s lack of remorse is a proper consideration in sen-
tencing. See State v. Moore, 235 Neb. 955, 458 N.W.2d 232
(1990) (holding that trial court properly considered defend­
ant’s lack of remorse in determining appropriate sentence
where defend­ant’s only comment at sentencing was to deny
that she had committed crime). Recently, in State v. Cobos, 22
Neb. Ct. App. 887, 895, 863 N.W.2d 833, 840 (2015), this court
determined that “[a] defendant’s failure to take responsibil-
ity for his actions is a proper factor to consider in imposing
a sentence.” The defendant in Cobos had refused to provide
a statement to the probation office in conjunction with the
presentence investigation. Id. At the sentencing, the court
noted it had considered the defendant’s attitude and failure
to accept responsibility, among other factors, in determining
the appropriate sentence. Id. We found no abuse of discre-
tion. Id.
In this case, Cruz and his attorney both declined to speak at
the sentencing hearing:
[Court:] [D]o you have any comments you’d like
to make?
[Cruz’ counsel]: Your Honor, . . . Cruz has asked that
I not make any comment and so I would submit it to the
Court, Your Honor.
[Court]: . . . Cruz, is that correct, that you’ve asked
your attorney not to make any comments?
[Cruz]: That’s correct.
....
[Court]: Okay. All right then.
. . . Cruz, do you have any comments that you would
like to make before the Court imposes a sentence?
[Cruz]: No.
Although Cruz declined to speak at the sentencing hearing,
he did write a lengthy statement included in the presentence
report. In the statement, Cruz denied any wrongdoing and
implied that V.C. had lied about the sexual abuse:
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I told [the police] it [was] not the first time [V.C.] lies,
that we caught her stealing from stores, church, and has
also been in trouble with the cops, that she would also
come home late at night. . . .
. . . [The prosecutors] knew she had a boyfriend before
the inc[i]dent, they knew she got in trouble with the cops,
that she has lied in the past, they knew she[’]s been out
late at night.
After Cruz declined to speak at the sentencing hearing, the
court proceeded to impose the sentences on Cruz. In support
of its sentencing decision, the court noted that it had reviewed
the presentence report. The court stated:
The report also reflects that you have denied all the
allegations against you and you have not accepted any
responsibility for the crimes. You place blame upon the
victims and you show lack of remorse and your inability
to accept any responsibility for these crimes in the Court’s
opinion makes you an extreme danger for continued
exposure in our community.
We conclude Cruz’ trial counsel was not ineffective for fail-
ing to object based on a violation of Cruz’ Fifth Amendment
rights. The record reveals that the court did not base its
sentences on Cruz’ silence at the sentencing hearing, but on
his statements in the presentence report. Furthermore, the
court did not abuse its discretion in considering Cruz’ lack
of remorse and refusal to accept responsibility as relevant
factors in determining the appropriate sentences. See, State
v. Moore, 235 Neb. 955, 458 N.W.2d 232 (1990); State v.
Cobos, 22 Neb. Ct. App. 887, 863 N.W.2d 833 (2015). Because
we conclude that Cruz’ attorney did not perform deficiently,
we need not reach the issue of prejudice. See State v. Poe,
284 Neb. 750, 822 N.W.2d 831 (2012). We find no merit to
Cruz’ assertion that his attorney was ineffective for failing to
object based on a violation of Cruz’ Fifth Amendment rights
at the sentencing.
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4. Excessive Sentences
Cruz contends he received excessive sentences for his con-
victions. Cruz’ brief argues that “[t]he circumstances of Cruz’s
offenses . . . are rife with residual doubt.” Brief for appellant at
49. Cruz further argues that his prior convictions are relatively
minor in comparison to the charges in the present case. We
conclude Cruz’ sentences were not excessive.
[22,23] When imposing a sentence, a sentencing judge
should consider the defendant’s age, mentality, education
and experience, social and cultural background, past criminal
record, and motivation for the offense, as well as the nature
of the offense and the violence involved in the commission
of the crime. State v. Howard, 282 Neb. 352, 803 N.W.2d 450
(2011). Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence
to be imposed. State v. Van, 268 Neb. 814, 688 N.W.2d
600 (2004).
First degree sexual assault of a child is a Class IB felony.
§ 28-319.01(2). The penalty for a Class IB felony is 20 years’
to life imprisonment. Neb. Rev. Stat. § 28-105 (Cum. Supp.
2014). Incest and possession of a visual depiction of sex­ually
explicit conduct with a child as a participant are Class III
felonies. § 28-703; Neb. Rev. Stat. § 28-813.01(2)(b) (Cum.
Supp. 2014). The penalty for a Class III felony is 1 to 20 years’
imprisonment, a $25,000 fine, or both. § 28-105. Manufacturing
a visual depiction of sexually explicit conduct with a child as a
participant is a Class ID felony. Neb. Rev. Stat. § 28-1463.04
(Cum. Supp. 2014). A Class ID felony is punishable by 3 to
50 years’ imprisonment. § 28-105. Child abuse is a Class IIIA
felony. Neb. Rev. Stat. § 28-707(4) (Cum. Supp. 2014). The
penalty for a Class IIIA felony is 0 to 5 years’ imprisonment,
a $10,000 fine, or both. § 28-105. The sentences imposed were
within these statutorily provided penalty ranges.
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The trial court considered the information contained in the
presentence report. The report revealed that Cruz had previous
convictions for numerous traffic offenses and two alcohol-
related offenses. The court noted that Cruz was 30 years old
and that the victims were his own children. Although Cruz’
criminal history may have been less serious than the charges
in the present case, the court determined that a lengthy prison
term was nevertheless appropriate due to the nature of the
crimes, Cruz’ lack of remorse, and the extreme danger Cruz
posed to the community. In light of these factors, we cannot
conclude that the court’s sentences constituted an abuse of dis-
cretion. This assigned error is meritless.
V. CONCLUSION
Upon our review, we find that there was insufficient evi-
dence to support Cruz’ convictions for attempted sexual assault
of a child in the first degree and attempted incest. 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 on
the other eight charges.
A ffirmed in part, and in part
reversed and vacated.