State v. Betancourt-Garcia

295 Neb. 170

887 N.W.2d 296

State of Nebraska, appellee,

v.Rosario Betancourt–Garcia, appellant.

No. S–15–1001.

Supreme Court of Nebraska.

Filed December 2, 2016.

Mark D. Albin, Norfolk, for appellant.

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

Heavican, C.J., Wright, Miller–Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Kelch, J.

I. INTRODUCTION

Following a jury trial, Rosario Betancourt–Garcia (Betancourt) appeals his convictions and sentences for kidnapping, use of a firearm to commit kidnapping, and conspiracy to commit kidnapping. On appeal, Betancourt alleges that the district court for Madison County erred in overruling his motion to quash, in overruling his motion for directed verdict, and in sentencing him for kidnapping. Further, Betancourt contends that he received ineffective assistance of counsel. We reject Betancourt's claims, but we find plain error in the sentencing for the conspiracy conviction. Therefore, we affirm in part and in part vacate and remand for resentencing.

II. FACTS

On November 15, 2003, officers of the Madison Police Department responded to a call and found a young man who had been bound and gagged. After the young man related that Betancourt had kidnapped him, the Madison Police Department conducted an immediate search for Betancourt, but did not find him.

On November 17, 2003, the Madison County Court issued warrants for the arrest of Betancourt and another suspect. That day, the State filed an information in county court, charging Betancourt with kidnapping and use of a deadly weapon to commit a felony.

On May 7, 2004, Texas authorities arrested Betancourt in Plano, Texas, based on the Nebraska warrant. On May 11, Betancourt signed a waiver of extradition proceedings.

On May 17, 2004, the Madison County sherriff's office dispatched transport personnel to Texas to extradite Betancourt back to Nebraska. At that time, the Madison County sherriff's office withdrew the warrant from a national notification system which was termed at trial the “teletype system” and placed a “hold” on Betancourt in Texas, but the warrant itself remained active. That day, Texas authorities mistakenly transferred Betancourt to the custody of the “immigration services,” and subsequently, he was deported to Mexico.

On May 17, 2004, the Madison County sherriff's office directed its transport personnel, then en route to Texas, to return to Nebraska. On May 25, the Madison County sherriff's office reentered Betancourt's still-active warrant on the teletype system.

On July 1, 2013, nearly a decade later, Betancourt was arrested once more in Texas, based on the Nebraska warrant, and extradited to Nebraska.

The case was bound over to district court, and on August 21, 2013, the State filed an information charging Betancourt with kidnapping and use of a deadly weapon to commit a felony. Betancourt pled not guilty, and on November 14, he filed a motion for absolute discharge on speedy trial grounds. After hearing the foregoing evidence surrounding the events leading up to Betancourt's ultimate arrest and extradition to Nebraska, the district court overruled the motion. Betancourt's counsel appealed on his behalf, but then subsequently moved to dismiss that appeal, which motion the Nebraska Court of Appeals granted.

On May 21, 2014, the State filed an amended information. It again charged Betancourt with kidnapping (count I) and use of a deadly weapon to commit a felony (count II) and added a third charge, conspiracy to commit kidnapping (count III).

In response to the amended information, Betancourt filed a motion to quash count III as barred by the statute of limitations. His motion to quash stated:

1. That the State filed an Amended Information charging [Betancourt] in Count III with Conspiracy to Commit Kidnapping on May 21st, 2014;

2. That the State has not previously filed any information charging [Betancourt] with Conspiracy to Commit Kidnapping;

3. That the alleged events are to have occurred on November 15th, 2003, and

4. That the time for filing an Information for Conspiracy to Commit Kidnapping has lapsed.

The district court conducted a hearing, wherein it again heard the evidence recounted above regarding the events preceding Betancourt's ultimate arrest and extradition to Nebraska. The district court overruled Betancourt's motion to quash.

Betancourt later pled not guilty to all three charges.

At trial, the jury heard evidence that on November 15, 2003, officers with the Madison Police Department responded to a report of a man who had been found bound and gagged. When officers arrived, they discovered a young Hispanic man on the front porch of a residence, with duct tape tightly wrapped around his face, ankles, and wrists, along with a “shoestring type cord” around his ankles and wrists, the latter of which were bound behind his back. The man was later identified as Pedro Jesus Rayon–Piza (Pedro). Pedro appeared “terrified” and, once freed, explained through a translator that he had been kidnapped at gunpoint by two people, one of whom he identified as his uncle, Betancourt.

Pedro testified that on November 15, 2003, Leonel Torres–Garcia (Torres) came to the house Pedro shared with his brother Jose Rayon–Piza (Jose) and asked for help with his car, which Torres said was stranded several miles away. Pedro stated that Torres requested Jose's help, but because Jose was unavailable, Pedro offered to help.

Pedro testified that he left with Torres in Pedro's car and drove several miles to Torres' car. According to Pedro, when he exited his car to help “jump-start” Torres' car, Betancourt appeared with a gun, put the gun to Pedro's head, and threatened to kill him. Pedro testified that Torres also produced a gun and pointed it at his head. Pedro stated that the men bound and gagged him and that Betancourt repeatedly asked him about the whereabouts of Betancourt's wife, from whom Betancourt was separated. Betancourt told Pedro that he believed Jose was “going out” with Betancourt's wife.

Pedro testified that Betancourt and Torres put him in a car and drove him to Betancourt's house. According to Pedro, Betancourt continued to threaten him with a gun and told him that Betancourt and Torres would put Pedro in a bag with stones and throw him in a river. When they arrived, the men put Pedro in a shed behind the house. Pedro testified that Betancourt told him that he was going to leave Pedro there, bring Jose to the same location, and then kill them both. Betancourt and Torres then left.

Pedro testified that Betancourt and Torres had not injured him. He testified that the doorway to the shed was open and that he was not tethered to anything inside the shed. Pedro, still bound, managed to stand and jumped to the nearest house, where officers found him.

Torres testified that he and Betancourt had kidnapped Pedro. He generally minimized his involvement and denied participating in any plan. Torres admitted that he and Betancourt threatened Pedro with guns, took him to the shed, and left him there while they sought out Jose. Torres stated that Betancourt spoke to Jose on the telephone that evening.

Torres testified that when they could not find Jose, they returned to the area of the shed but saw officers everywhere. Torres testified that when Betancourt realized that Pedro had likely escaped, he appeared furious. Eventually, Betancourt and Torres decided to flee and drove all night to Houston, Texas. According to Torres, they threw the guns out of the car along the highway.

Jose testified similarly to his brother Pedro concerning the events preceding the abduction. He stated that sometime after Pedro departed with Torres, Jose went out looking for Pedro, but could not find him. Jose testified that after he returned from his search, Betancourt called him, threatened to “gut [him] like a deer,” and made several more threatening calls throughout the night. Jose testified that Betancourt was angry because he believed Jose was in a relationship with Betancourt's wife and had accused Jose of having such a relationship sometime before Betancourt's wife had left Betancourt.

Betancourt's wife testified that a few months before she left Betancourt, Betancourt had accused Jose of having a relationship with her.

After Betancourt's wife testified, the State rested. Subsequently, Betancourt moved for directed verdict, claiming that “[t]he State's failed to present a prima facie case.” The district court overruled the motion.

Next, Betancourt testified that he was not in Nebraska on or about the day of the offenses. He stated that at that time, he was working 6 days a week or more in Houston.

The jury heard Betancourt's testimony and other evidence concerning the search for Betancourt, his initial arrest in Texas, his deportation, his second arrest, and his ultimate extradition to Nebraska. At trial, the parties essentially established the same facts on these topics as they did at previous hearings.

Betancourt testified that due to his deportation in 2004, he assumed there was no longer a warrant for his arrest in Nebraska at that time. Betancourt admitted that shortly after being deported, he returned to Texas illegally and lived there for almost a decade. He testified that had he been aware of the Nebraska warrant, he did not think he would have returned from Mexico.

After Betancourt rested his case, he made another motion for directed verdict, asserting that no reasonable jury could find him guilty based on the evidence presented. The district court overruled the motion.

The district court held a jury instruction conference. Only the instruction for the conspiracy charge directed the jury to consider whether Betancourt had fled from justice during the period between the offenses and the second arrest, excluding the time Betancourt was incarcerated in Texas prior to being deported. The instructions defined the phrase “fleeing from justice” as “leav [ing] one's usual abode or ... leav[ing] the jurisdiction where an offense has been [co...