STATE OF NEBRASKA V. DAVID GONZALEZ-GARCIA

Omaha, NE - Criminal defense lawyer represented defendant David Gonzalez-Garcia with arguing that the district court erred in admitting several exhibits into evidence, that the evidence was insufficient to support his conviction, and that the sentence imposed was excessive.

On November 14, 2018, Elizabeth Casey, a school social worker, filed a report with child

protective services (CPS) outlining that a student (the victim) had disclosed that she was raped by

her stepfather, Gonzalez-Garcia, the previous night and every night for the past month. Due to the

- 2 -

nature of the allegations, Casey also spoke with law enforcement and the victim was transported

to Project Harmony and then to Methodist Hospital where she underwent a sexual assault exam.

During the exam, the victim stated to Kelly Groux, a sexual assault nurse, that

Gonzalez-Garcia came into her room “last night” and “‘raped’” her and that he had been doing

that since approximately mid-October 2018. The victim also explained that Gonzalez-Garcia

kissed her “down there on her vagina.” As part of the exam, the victim’s genital area and breast

area were swabbed for DNA testing, and her underwear, which she had worn on the night of the

sexual assault, was collected as evidence.

The State charged Gonzalez-Garcia with one count of first degree sexual assault of a child,

a Class 1B felony. See Neb. Rev. Stat. § 28-319.01(1)(b) (Reissue 2016). The State alleged that

Gonzalez-Garcia, who was 25 years old or older, subjected the victim, who was at least 12 years

old but less than 16 years old, to sexual penetration on or about October 1 through November 13,

2018.

1. TRIAL

Trial was held over multiple days in November 2019. During trial, testimony was adduced

from witnesses including Casey; Maria C., a friend of the victim; Officer David Spizzirri, a school

resource officer; the victim; Kelly Groux, a sexual assault nurse; and Joseph Choquette, a DNA

analyst. The evidence established that Gonzalez-Garcia was born in June 1984.

(a) Note Written by Victim

Casey testified that on November 14, 2018, she observed the victim and her friends crying

in the girls’ restroom and inquired why they were upset. In connection with her discussion, Casey

obtained a note, written by the victim as later established in Maria C.’s testimony, in which the

victim stated, “every night like at 1:00 a.m. my step-father goes to me -- goes to my room and

rapes me.” As a result of these events, Casey reported her findings to the CPS hotline. The State

offered the note as an exhibit to which Gonzalez-Garcia objected based on hearsay and foundation,

arguing the author of the note was not disclosed at that time. The district court sustained the

objection based on foundation. After additional questioning, the State again offered the note as an

exhibit, but Gonzalez-Garcia objected on hearsay and foundation grounds arguing the author had

not been presented. The district court sustained Gonzalez-Garcia’s objections.

Later, the State offered the note into evidence during Maria C.’s testimony. Maria C.

testified that the victim had written the note and that Maria C. only read part of the victim’s note

stating the victim was raped. This time, Gonzalez-Garcia objected solely only on the basis of

foundation. Specifically, following the State’s offer of exhibit 4, Gonzalez-Garcia’s counsel stated:

“Your Honor, at this time I would just make an objection on foundation that in terms of

completeness, there was only one part that had been read not the entire -- the entirety of the

evidence that’s being entered.” The district court overruled this objection and received the note

into evidence.

(b) Officer Spizzirri

Officer Spizzirri, a school resource officer, testified that once Casey informed him of the

victim’s allegations, he interviewed the victim regarding the events surrounding the allegations.

- 3 -

Officer Spizzirri testified that he asked the victim if Gonzalez-Garcia engaged in intercourse or

penetrated her, but she did not understand. Officer Spizzirri then rephrased his question and asked

if Gonzalez-Garcia “put his penis inside her,” to which she responded yes. The victim also

indicated that these events occurred multiple times over the course of a month and that she

pretended to be asleep during the sexual assaults.

(c) Victim’s Testimony

The State commenced its inquiry by asking some biographical questions of the victim who

testified she was 13 years old and in the eighth grade when the sexual assaults began. However, as

the State probed into the specifics of the sexual assaults, the victim did not respond. The district

court asked the victim if she would like a break and she nodded affirmatively. After the break, the

State began by asking the victim if discussing this experience was hard, and she replied it was.

Yet, the victim was able to answer questions regarding how Gonzalez-Garcia removed her

clothing.

The State then proceeded to ask the victim to describe the touching that occurred, but she

did not respond, even after being asked again. The State showed the victim the stick figure

drawings and asked the victim to mark on the stick figure drawings where Gonzalez-Garcia

touched her and the part of his body that he used to touch her. The stick figure drawings did not

show any facial features or genitalia and showed a varying number of fingers, including four, five,

and six. She placed a pink dot in the middle of the upper chest area and a pink dot on the genital

area on the stick figure labeled with her name, and placed a pink “x” on each of Gonzalez-Garcia’s

hands on the stick figure labeled “David.” The State offered these exhibits to which

Gonzalez-Garcia objected based on foundation. The district court overruled the objection, and the

exhibits were received into evidence. The State then used the marks on the stick figure drawings

in its questioning, asking the victim if the marks on the stick figure labeled with her name signified

Gonzalez-Garcia touching her chest, which the victim affirmed. The State then asked the victim

what area of the body the lower mark represented, and she answered the part of her body that is

covered by underwear, later testifying that the mark refers to her vagina. The victim also testified

that Gonzalez-Garcia perpetrated the touching with his hands. The victim further testified that

sometimes Gonzalez-Garcia’s penis touched her stomach and that after these events ended and

Gonzalez-Garcia left to go back downstairs, that the victim’s sheets and blankets would be wet.

(d) Kelly Groux

Groux testified that she performed a sexual assault exam on the victim on November 14,

2018. During the exam, the victim told Groux that Gonzalez-Garcia came into her room last night

and “‘raped’” her and that he had been doing that for about a month, since approximately

mid-October. When Groux asked the victim “‘So raping you means he put his penis in your

vagina,’” the victim responded affirmatively. The victim explained that she would pretend she was

asleep when Gonzalez-Garcia came into her room and raped her. Groux also testified that she

asked the victim if Gonzalez-Garcia had ejaculated, but the victim was unfamiliar with what

ejaculated meant, so the victim described what she felt, which was a “warm liquid inside of [her]”

and that it was on her pajamas, bed, and body. The victim also told Groux that Gonzalez-Garcia

- 4 -

kissed her “down there on her vagina.” Groux testified that she swabbed the victim’s genital area

and her breast area.

(e) Joseph Choquette

Choquette, employed by UNMC Human DNA Identification Laboratory as a DNA analyst,

testified the victim’s vaginal swab was consistent with a single-source female, presumably the

victim. He also tested the swab from the left labia, which showed that the victim’s DNA was

consistent with a single female individual and the victim was not excluded as a contributor.

Choquette generated a DNA profile from the swab of the victim’s breast swab which showed the

victim could not be excluded as a contributor of the DNA and Gonzalez-Garcia could not be

excluded as a contributor of the DNA. Choquette testified that the DNA results of the victim’s

breast area were consistent with the victim’s version of events. The DNA results from the

underwear the victim was wearing during the sexual assault on the night of November 13, 2018,

showed the victim and Gonzalez-Garcia were not excluded as contributors to the DNA profile.

Choquette further explained that “[g]iven that [the victim] is a contributor to the mixture . . . the

probability of an unrelated individual matching the DNA profile found within the mixture, given

that . . . Gonzalez-Garcia expresses this profile, is approximately 1 in 1.56 septillion, which is 1

with 21 zeros.”

2. VERDICT AND SENTENCING

After the conclusion of the evidence, the jury found Gonzalez-Garcia guilty of first degree

sexual assault of a child, and the district court received the jury’s verdict.

At the sentencing hearing held in January 2020, the district court informed

Gonzalez-Garcia that the “conviction that you stand here for sentencing has caused you to be

subject to the Sex Offender Registration Act [SORA].” The court then stated that it had considered

the information and arguments presented during the hearing, the evidence at trial, and the

presentence investigation report (PSR), including Gonzalez-Garcia’s age, mentality, education,

experience, background, past criminal record, and nature of the offense. The district court then

orally pronounced that Gonzalez-Garcia was sentenced to a period of 60 to 80 years’ imprisonment

with a mandatory minimum of 15 years’ imprisonment. Additionally, Gonzalez-Garcia was

granted 421 days’ credit for time served. Thereafter, in its written sentencing order, the district

court reiterated Gonzalez-Garcia’s sentence of 60 to 80 years’ imprisonment, his credit for 421

days served, and Gonzalez-Garcia’s responsibility to register under SORA, but failed to note the

15-year mandatory minimum sentence. Gonzalez-Garcia has timely appealed and is represented

by different counsel than the counsel who represented him in the sentencing court.

III. ASSIGNMENTS OF ERROR

Gonzalez-Garcia alleges four errors, restated: (1) that the district court erred in admitting

a note (Exhibit 4) from the victim when the note itself was hearsay not subject to any exception;

(2) that the district court erred in admitting anatomically incorrect stick figure drawings (exhibits

27 and 28) that the victim used to identify the parts of her body touched by Gonzalez-Garcia; (3)

that there was insufficient evidence on the element of penetration such that no reasonable jury

- 5 -

could have found him guilty of first degree sexual assault of a child; and (4) that the sentence

imposed was excessive.

IV. STANDARD OF REVIEW

The admission of demonstrative evidence is within the discretion of the trial court, and a

judgment will not be reversed on account of the admission or rejection of such evidence unless

there has been a clear abuse of discretion. State v. Kozisek, 22 Neb. App. 805, 861 N.W.2d 465

(2015).

In reviewing a criminal conviction for 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. Smith, 302 Neb. 154, 922 N.W.2d 444

(2019). 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. Id.

An appellate court will not disturb a sentence imposed within the statutory limits absent an

abuse of discretion by the trial court. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).

V. ANALYSIS

1. ADMISSION OF NOTE WRITTEN BY VICTIM

First, Gonzalez-Garcia argues the district court erred in admitting the note written by the

victim because it constituted hearsay.

The record shows that the State offered the note during two separate witnesses’ testimonies.

The first time the State offered the note, during Casey’s testimony, the district court sustained

Gonzalez-Garcia’s hearsay and foundation objections following Gonzalez-Garcia argument to the

court that the State had failed to identify the author of the note. Later, during Maria’s testimony,

after Maria identified the victim as being the author of this note, the State again offered the note.

This time, however, Gonzalez-Garcia only objected to the note on foundation grounds stating that,

in terms of completeness, only one part of the note had been read, not the entirety of the note. This

time, the district court overruled his foundation objection.

As it relates to Gonzalez-Garcia’s foundation objection here, the Nebraska Supreme Court

has held:

Neb. Evid. R. 103(1), Neb. Rev. Stat. § 27-103(1) (Reissue 1995), provides: “Error

may not be predicated upon a ruling which admits . . . evidence unless a substantial right

of the party is affected, and: (a) . . . a timely objection or motion to strike appears of record,

stating the specific ground of objection, if a specific ground was not apparent from the

context. . . .” This court has stated, “‘[t]he reason for the requirement of specificity is to

permit both court and counsel to better deal with the objection, either by way of counsel’s

correction of the claimed error, or as assistance to the court for a fair and more accurate

ruling.’” State v. Richard, 228 Neb. 872, 885, 424 N.W.2d 859, 867 (1988) (concluding

that defense counsel’s relevancy objections were insufficient to alert trial court to issue of

improper impeachment raised on appeal and thus failed to preserve issue for appeal),

quoting Langenheim v. City of Seward, 200 Neb. 740, 265 N.W.2d 446 (1978). In addition:

- 6 -

“‘Unless the objection to offered evidence be sufficiently specific to enlighten the trial

court and enable it to pass upon the sufficiency of such objection and to observe the alleged

harmful bearing of the evidence from the standpoint of the objector, no question can be

presented therefrom in the court of appeal.’” State v. Farrell, 242 Neb. 877, 883, 497

N.W.2d 17, 21 (1993) (determining that defendant’s general objections to evidence at trial,

which referred to relevancy and arguments made earlier, did not sufficiently alert trial court

to grounds for error alleged on appeal), disapproved on other grounds, State v. Johnson,

256 Neb. 133, 589 N.W.2d 108 (1999). See, also, State v. King, 269 Neb. 326, 693 N.W.2d

250 (2005) (holding that defendant’s foundation objection failed to preserve challenge on

appeal to admissibility of expert testimony)[, overruled on other grounds, State v. Vann,

306 Neb. 91, 944 N.W.2d 503 (2020)]. But see State v. Mowell, 267 Neb. 83, 672 N.W.2d

389 (2003) (holding that defense counsel’s objections at trial explicitly referring to same

objections he had made at previous hearing sufficiently alerted State and trial court to

specific ground of objection and preserved issues for appeal).

State v. Hall, 270 Neb. 669, 675-76, 708 N.W.2d 209, 214-15 (2005).

In State v. Smith, 292 Neb. 434, 449-50, 873 N.W.2d 169, 187 (2016), the court held:

A foundation objection is a general objection, which requires the court to engage in

interpretation on appeal, rather than be apprised of the real basis for the objection. Thus, a

party may not normally complain on appeal for an overruled foundation objection unless

the grounds for the exclusion are obvious without stating it. Smith acknowledges this, but

argues that the grounds for the exclusion are obvious from the record.

Here, the record indicates that in connection with his foundation objection,

Gonzalez-Garcia argued “that in terms of completeness, there was only one part [of the note] that

had been read not the . . . entirety of the evidence that’s being entered.”

As the Nebraska Supreme Court held in State v. Henry, 292 Neb. 834, 878, 875 N.W.2d

374, 405-06 (2016), “The ‘“rule of completeness”’ states that an opponent may require one

introducing part of a writing or statement to introduce any part which ought in fairness to be

considered with the part introduced.” Notwithstanding Gonzalez-Garcia’s objection to foundation

citing the rule of completeness, he now assigns and argues the court erred by not sustaining his

objection on the basis of hearsay.

In State v. Swindle, 300 Neb. 734, 758, 915 N.W.2d 795, 813 (2018), the Nebraska

Supreme Court explained:

On appeal, a defendant may not assert a different ground for his or her objection than was

offered at trial. Unless an objection to offered evidence is sufficiently specific to enlighten

the trial court and enable it to pass upon the sufficiency of such objections and to observe

the alleged harmful bearing of the evidence from the standpoint of the objector, no question

can be presented therefrom on appeal.

Because the record indicates that Gonzalez-Garcia’s objection to the note during the line

of questioning that led to the note’s admission was based on foundation relating to the rule of

- 7 -

completeness, not hearsay, he is prevented from raising on appeal the claim that the note was

erroneously admitted over his hearsay objection. Because his sole argument on appeal regarding

the admission of the victim’s note is that it is inadmissible hearsay, this assignment of error fails.

2. ADMISSION OF STICK FIGURE DRAWINGS

Next, Gonzalez-Garcia argues the district court erred in admitting anatomically incorrect

stick figure drawings (exhibits 27 and 28) into evidence thereby prejudicing him.

We first address Gonzalez-Garcia’s argument regarding anatomically incorrect drawings.

Regarding the term “anatomically correct,” the Nebraska Supreme Court has previously opined:

Somewhere, somehow, the phrase “anatomically correct” has crept into the legal lexicon

in sexual assault cases, referring to a doll as a trial aid used in conjunction with a victim’s

testimony. We believe the more accurate characterization of such doll may be

“anatomically illustrative,” inasmuch as the doll used may not be a readily acceptable

standard of correctness in the portrayal of human anatomy or an actually accurate

representation of the genders.

State v. Brown, 225 Neb. 418, 420, 405 N.W.2d 600, 602 (1987). Rather than a doll, the State

utilized drawings to be anatomically illustrative as a trial aid used in conjunction with the victim’s

testimony. Gonzalez-Garcia argues that these drawings were inadmissible demonstrative exhibits

which misled the jury and resulted in prejudice to him resulting in an unfair trial.

“[D]emonstrative exhibits are defined by the purpose for which they are offered at trial--to

aid or assist the jury in understanding the evidence or issues in a case.” State v. Pangborn, 286

Neb. 363, 370, 836 N.W.2d 790, 798 (2013). Demonstrative exhibits are admissible if they clarify

some issue in the case, supplement the witness’ spoken description of the transpired event, and are

more probative than prejudicial. Id. at 369-70, 836 N.W.2d at 798. Conversely, the Supreme Court

stated that “[d]emonstrative exhibits are inadmissible when they do not illustrate or make clearer

some issue in the case; that is, where they are irrelevant, or where the exhibit’s character is such

that its probative value is substantially outweighed by the danger of unfair prejudice.” Id. at 370,

836 N.W.2d at 797. Demonstrative exhibits are relevant because they assist the trier of fact in

understanding other real, documentary, and testimonial evidence. Id. at 370, 836 N.W.2d at 798.

Here, the stick figure drawings at issue were admitted during the victim’s testimony. The

State’s line of inquiry began with questions about the victim’s age, the school she attended, and

the house she lived in when the sexual assaults occurred. However, as the State’s line of

questioning began to probe into the specifics of the sexual assaults, the victim did not respond,

prompting the district court to ask the victim if she would like a break, which she accepted. After

the break, the State inquired if discussing this experience was hard for the victim, and the victim

replied it was, but despite this, the victim was able to describe how Gonzalez-Garcia removed her

clothing.

Next, the State asked the victim to describe the touching that occurred, but she did not

respond, even after being asked again. The State then showed the victim the stick figures and asked

the victim to mark on the stick figures where Gonzalez-Garcia touched her and the part of his body

that he used to touch her. On the stick figure labeled with the victim’s name, she placed a pink dot

in the middle of the upper chest area and a pink dot on the genital area. And on the stick figure

- 8 -

labeled “David,” the victim placed a pink “x” on each of Gonzalez-Garcia’s hands. The State

offered these exhibits to which Gonzalez-Garcia objected based on foundation. The district court

overruled the objection, and the exhibits were received into evidence. The State then referenced

the marks on the stick figures in its questioning, asking the victim if the marks on the stick figure

labeled with her name signified Gonzalez-Garcia touching her chest, which the victim affirmed.

The State then asked the victim what area of the body the lower mark represented, and she

answered the part of her body that is covered by underwear, later testifying that the mark refers to

her vagina. The victim also testified that Gonzalez-Garcia perpetrated the touching with his hands.

It is clear that these drawings assisted with the victim’s explanation of the body parts used to

perpetrate the touching, where she was touched, and also visually depicted her testimony. Because

the anatomically illustrative drawings clarified issues in the case as to where the victim was

touched, supplemented the victim’s spoken description of the transpired events, and were more

probative then prejudicial, the court did not err in their admission. This assignment of error fails.

3. INSUFFICIENCY OF EVIDENCE

Gonzalez-Garcia argues there was insufficient evidence for a jury to convict him of

first-degree sexual assault of a child because the victim did not testify that Gonzalez-Garcia

penetrated her and there was no DNA evidence from the vaginal and labia swabs of the victim.

In order to prove Gonzalez-Garcia guilty of first-degree sexual assault of a child, the State

had to prove that he subjected the victim, who was at least twelve years of age but less than sixteen

years of age, to sexual penetration when Gonzalez-Garcia was twenty-five years of age or older.

See Neb. Rev. Stat. § 28-319.01(1)(b). Sexual penetration has been defined as

sexual intercourse in its ordinary meaning, cunnilingus, fellatio, anal intercourse, or any

intrusion, however slight, of any part of the actor’s or victim’s body or any object

manipulated by the actor into the genital or anal openings of the victim’s body which can

be reasonably construed as being for nonmedical, nonhealth, or nonlaw enforcement

purposes. Sexual penetration shall not require emission of semen.

Neb. Rev. Stat. § 28-318(6) (Supp. 2019).

The evidence established that Gonzalez-Garcia was 35 years old and the victim was 13

years old when the alleged sexual assault occurred. Gonzalez-Garcia’s argument centers on the

victim’s testimony and DNA evidence from vaginal and labia swabs as they relate to the issue of

penetration. Gonzalez-Garcia’s specific argument here is:

First, there was no DNA evidence found from the vaginal and labia swabs of [the victim].

Second, [the victim] herself did not testify to penetration by Mr. Gonzalez-Garcia. When

questioned about what the word ‘rape’ meant, [the victim] only mentioned touching with

hands, and did not testify as to any penetration.

Brief for appellant at 20.

We address Gonzalez-Garcia’s second contention first. Although the victim clearly

struggled to recount her experiences with Gonzalez-Garcia at trial, the evidence contains

substantial evidence of sexual penetration. First, Casey testified to the note she discovered,

authored by the victim, in which the victim disclosed to her friend that she was being raped by

- 9 -

Gonzalez-Garcia. Second, upon Casey reporting the incident to the CPS hotline, in connection

with the sexual assault exam performed by Groux, the victim disclosed to Groux that

Gonzalez-Garcia came into her room the previous night and raped her and had been doing so for

approximately one month. The victim then confirmed that raping meant putting his penis in the

victim’s vagina. She then further described that although she was unfamiliar with the term

“ejaculation,” she described she felt “warm liquid” inside her, on her pajamas, her bed, and her

body when Gonzalez-Garcia was done. The victim also explained that Gonzalez-Garcia kissed her

“down there on her vagina.” Third, Officer Spizzirri testified that, in connection with his

investigation, the victim disclosed that Gonzalez-Garcia had placed his penis in her vagina.

Next, although there was no evidence of Gonzalez-Garcia’s DNA obtained from swabs

taken from the victim on the day she visited Groux at Methodist Hospital, there was evidence of

Gonzalez-Garcia’s DNA in her underwear which she was wearing on the night of the alleged

sexual assault.

In reviewing a criminal conviction for 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. Smith, 302 Neb. 154, 922 N.W.2d 444

(2019). We hold the record, when viewed in a light most favorable to the prosecution, indicates a

rational finder of fact could find the essential elements of the charged crime beyond a reasonable

doubt.

4. EXCESSIVE SENTENCE

Gonzalez-Garcia’s final assignment of error is that the sentence imposed is excessive. He

argues that the district court’s explanation during the sentencing hearing focused on the nature of

the offense even though Gonzalez-Garcia did not have a prior criminal history or history of

violence.

Gonzalez-Garcia was convicted of first-degree sexual assault of a child, which is classified

as a Class IB felony with a mandatory minimum of 15 years’ imprisonment for a first offense. See

§ 28-319.01(2). Ordinarily, a Class IB felony is punishable by a minimum of 20 years’

imprisonment and a maximum of life imprisonment. See Neb. Rev. Stat. § 28-105 (Supp. 2019).

However, Gonzalez-Garcia’s conviction for first offense first degree sexual assault of a child

pursuant to § 28-319.01 carries a 15-year mandatory minimum sentence.

The district court’s oral pronouncement set forth that Gonzalez-Garcia was sentenced to

60 to 80 years’ imprisonment with a 15-year mandatory minimum; however, the court’s written

sentencing order failed to set forth that Gonzalez-Garcia’s conviction carried the 15-year

mandatory minimum. We deem it necessary to clarify that inconsistency between the court’s oral

pronouncement and the court’s written order. A sentence validly imposed takes effect from the

time it is pronounced. State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006); State v. Tucker, 17

Neb. App. 487, 764 N.W.2d 137 (2009), affirmed 278 Neb. 935, 774 N.W.2d 753. When a valid

sentence has been put into execution, the trial court cannot modify, amend, or revise it in any way,

either during or after the term or session of court at which the sentence was imposed. State v.

Marrs, supra; State v. Tucker, supra. When there is a conflict between the record of a judgment

and the verbatim record of the proceedings in open court, the latter prevails. State v. Tucker, supra;

- 10 -

State v. Herngren, 8 Neb. App. 207, 590 N.W.2d 871 (1999). Because the court orally pronounced

valid sentences, the oral pronouncement controls; Gonzalez-Garcia’s conviction for first offense

first degree sexual assault of a child pursuant to § 28-319.01 carries a 15-year mandatory minimum

sentence, and we remand this cause to the district court with directions to enter a modified written

sentencing order to so reflect. Having made this clarification, Gonzalez-Garcia’s sentence of 60 to

80 years’ imprisonment with a mandatory minimum of 15 years’ imprisonment is within the

statutory sentencing range.

Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,

the appellate court must determine whether a 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. Lauhead, 306 Neb. 701, 947 N.W.2d 296 (2020). 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. Id. In

determining a sentence to be imposed, relevant factors customarily considered and applied are the

defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural

background, (5) past criminal record or record of lawabiding conduct, and (6) motivation for the

offense, as well as (7) the nature of the offense and (8) the amount of violence in the commission

of the crime. Id. The appropriateness of a sentence is necessarily a subjective judgment and

includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the

facts and circumstances surrounding the defendant’s life. State v. Smith, 302 Neb. 154, 922 N.W.2d

444 (2019).

At the sentencing, the district court noted it had considered the PSR, in which

Gonzalez-Garcia had scored high in the Level of Service/Case Management Inventory (LS/CMI)

categories measuring procriminal attitude/orientation and family/marital with an overall score of

medium high risk. During the PSR interview, Gonzalez-Garcia claimed that after being burned in

a restaurant explosion, he suffers from post-traumatic stress disorder (PTSD), memory loss, and

that death follows him. Gonzalez-Garcia also stated that this criminal action was just

a pure accusation. . . . Nothing happened, but sometimes I forget things. . . . They have

DNA, but I don’t know how the DNA ended up there. When I get out, I will see if someone

else did this, and I will go after them. The DNA may have been there from clothes that

went into the laundry after my wife and I had sex.

Gonzalez-Garcia’s prior criminal history consists of an assault, but the disposition is unavailable;

and operating a vehicle without an operator’s license for which he was fined $100. The PSR also

contained a report from Project Harmony that explained the emotional toll the sexual assaults have

had on the victim. The Project Harmony report included the victim’s statement that “‘I’ve been

cutting myself to forget about this happening.’”

The PSR also contained statements the victim’s mother gave to law enforcement about an

incident that occurred approximately 1½ months before November 20, 2018, where she woke up

with her underwear pulled down to her knees and later that day, when she asked Gonzalez-Garcia

about the incident, he suggested that she had let another man in the house “to be with her.” The

victim’s mother stated that 2 weeks after she confronted Gonzalez-Garcia about the incident, their

youngest daughter informed her of a similar incident where the daughter woke up with her pants

- 11 -

pulled down. The victim’s mother asked Gonzalez-Garcia if he knew what happened, and he

replied that she must have left the door unlocked, which allowed someone to enter the home and

pull down her daughter’s pants but later he blamed their son. The victim’s mother asked the

daughter if she thought the son was responsible for the incident, but the daughter said, “‘No, the

hands were big like mommy or daddy.’” The victim’s mother then informed Gonzalez-Garcia of

the daughter’s statement, to which he said, “‘maybe it was a ghost and we should bless the house.’”

The victim’s mother continued pressing Gonzalez-Garcia for answers and he became angry stating,

“‘First it was you, and then it was [the youngest daughter], what’s next? Is [the victim] going to

say something like that?’”

Based upon the factors including that the sentence imposed was within the statutory

sentencing range for a Class 1B felony; his medium high risk to reoffend; the extreme emotional

harm suffered by the victim; and Gonzalez-Garcia’s failure to take responsibility for his actions

and victim blaming, the district court did not abuse its discretion in the sentences imposed.

After reviewing the record, we affirm Gonzalez-Garcia’s conviction and sentence.

However, the cause is remanded with directions for the district court to modify the written sentencing order to reflect the district court’s oral pronouncement that Gonzalez-Garcia’s sentence for first degree sexual assault of a child was 60 to 80 years’ imprisonment with a 15-yearmandatory minimum sentence as required by § 28-319.01.