State v. Betancur

1

State of Nebraska, Appellee, v. Monty Betancur, Appellant.

No. A-21-954

Court of Appeals of Nebraska

December 20, 2022

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Scotts Bluff County: Leo P Dobrovolny, Judge. Affirmed.

Michael J. Wilson, of Berry Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

Moore Bishop, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

BISHOP, JUDGE.

I. INTRODUCTION

Following a jury trial, Monty Betancur was convicted of two counts of third degree sexual assault, one count of first degree false imprisonment, and one count of tampering with a witness. The Scotts Bluff County District Court sentenced him to concurrent terms of 2 years' probation on the two counts of third degree sexual assault and the count of first degree false imprisonment. On the count of tampering with a witness, the court sentenced him to 90 days in jail and ordered him to pay a $1,000 fine. Betancur appeals his convictions, claiming errors related to the sufficiency of the evidence, the jury instructions, and the denial of a mistrial after a statement made by a prospective juror. He also claims that his trial counsel was ineffective for numerous reasons. We affirm.

II. BACKGROUND

This case arises from allegations that on October 11, 2020, Betancur, while working as a paramedic, kissed a paramedic student three times, grabbed her upper thigh, and threatened to make her "life hell" if she told anyone.

On December 3, 2020, the State filed an information charging Betancur with four counts: counts I and II, third degree sexual assault, noninjury, each a Class I misdemeanor, pursuant to Neb. Rev. Stat. § 28-320(1)(a) and (3) (Reissue 2016); count III, first degree false imprisonment, a Class IIIA felony, pursuant to Neb. Rev. Stat. § 28-314 (Reissue 2016); and tampering with a witness, a Class IV felony, pursuant to Neb. Rev. Stat. § 28-919 (Cum. Supp. 2022). Ashley M. was the named victim in counts I through III.

A jury trial was held on August 25 and 26, 2021. Several witnesses testified and exhibits were received into evidence. We summarize the evidence as follows.

Ashley M., 22 years old, testified that in October 2020, she had her national EMT license and had been on the Gering Volunteer Fire Department for 3 years. She was also "working at Regional West Medical Center, but as a student at WNCC [Western Nebraska Community College] in the EMS program." She explained that the EMS program was an accelerated, 1-year program to obtain paramedic certification. Ashley's program ran from August 2020 to July 2021; there were in-person class hours 2 days per week, and then they were required to complete 675 hours of field clinical time riding along in ambulances and working in the hospital in different departments. Ride-along hours began at the end of September 2020, and at that time, Valley Ambulance Service in Scottsbluff, Nebraska, was the only option available for ride-along hours.

Ashley stated that on October 11, 2020, she was doing ride-along hours with Valley Ambulance from 7 a.m. to 7 p.m. There were two crews working that day, the Scottsbluff crew and the Gering crew. Both crews met up at the Scottsbluff station at the beginning of the shift, but then the Gering crew went to their station in Gering, Nebraska. The Gering crew "ran the Gering calls and the outline [sic] areas." The Scottsbluff crew "ran the calls in the Scottsbluff area."

Ashley, the only student riding along that day, rode with the Scottsbluff crew, Betancur and Taylor Severyn. Ashley "knew who [Betancur] was through the Gering Fire." She said, "We would end up on the same calls and then he was a preceptor for our paramedic program." She explained that preceptors "were our field instructors that would kind of take us under their wing, and they could assess our skills, they teach us new skills that we might not have used before, and they would be able to sign off on our competency packets." Ashley knew Severyn "through responding to calls over the last several years"; he was also a student in her paramedic class.

The Scottsbluff crew responded to three calls during Ashley's shift on October 11, 2020. During the first call, at around 9:30 a.m., the crew responded to a local care facility and then transferred a patient to the Regional West Medical Center ER. Betancur drove, while Ashley and Severyn provided care and treatment during transport. After unloading the patient at the hospital, Severyn reported to the ER nurses while Ashley and Betancur walked back to the ambulance bay to clean the ambulance. Ashley stated, "[Betancur] pulled me to the backside of the ambulance and kind of [grabbed my arm and] pulled me into him, and then through our facemasks, kissed me on the lips." Ashley "was kind of in shock at the time because he was the preceptor, so we were supposed to [sic] trust to help us, instead he was taking advantage of me at the time." Ashley said that Betancur did not say anything, but she "said no and then just pulled [her] body back and he walked away." After Ashley loaded the stretcher into the ambulance, both she and Betancur walked back inside to get Severyn. The three of them "walked out of the air lock together," with Severyn in front. Ashley said, "[Betancur] came back towards me and then he put his right arm around my hips and butt area and pulled me back towards him again after we were walking out of the air lock into the ambulance bay." Ashley "wanted to quit, but [she] didn't know how to do that"; "[Betancur] was [her] boss that day and [she] didn't know how to get out of that situation." Ashley knew Betancur and Severyn were "really good friends and had been partners for a long-time."

Exhibit 4 is video footage from the ambulance bay air lock. Our review of the exhibit shows a male and female walking behind another male; the male walking on the left side of the female put his right hand around the female's left elbow or upper arm and then leaned his head briefly towards her head before placing his right hand on her upper right rib cage as he moved to her right side and they walked away in opposite directions to different parts of the ambulance; there was a total of 5 seconds of physical contact between the male and female.

On the drive back to the ambulance station, Severyn and Betancur were in the driver's and passenger's seats respectively, and Ashley rode in the back of the ambulance.

According to Ashley, when the signal for the second call went off later that morning, the crew was working on stretcher lifting techniques in the ambulance bay at the station. Ashley testified that Severyn went inside the living quarters "and at that time [Betancur] came back over to me and [grabbed my arm and] pulled me back in towards him and kissed me for the second time" while both were wearing masks. Neither Betancur nor Ashley said anything, but she pulled her body back. Then they walked back over to the ambulance and Severyn joined them. When asked how she felt at that moment, Ashley stated, "I wanted to again go home, but I didn't know how to tell anyone there because I didn't think it was going to make the situation any better," "I was just scared to say anything to anybody." The crew responded to a nursing home and then transferred a patient to the Regional West Medical Center ER. This time Severyn drove, while Ashley and Betancur provided care and treatment during transport. After unloading the patient at the hospital and transferring care to the ER nurses, the crew cleaned the ambulance and returned to the ambulance station.

Ashley testified that upon returning to the station, they "pretty much immediately got another call and responded to that call" from a private residence. Severyn drove again, while Ashley and Betancur provided care and treatment during transport to the Regional West Medical Center ER; it took a "few minutes" to get from the residence to the hospital. Ashley stated that the patient was having trouble breathing, so the patient was provided a "C-Pap for oxygenation, and we did vitals, and we're getting an IV line established." Describing the ambulance set up, Ashley stated that on the right side of the stretcher there are different supplies and monitors, above the patient's head is a captain's seat, and then on the left side there is a long bench where the provider sits; both Ashley and Betancur were on the bench seat. Ashley said she was inserting an IV into the patient's wrist and had the patient's wrist "on my right leg and was kind of stabilizing it to insert the IV," and "[Betancur] had one of his hands helping me stabilize it and the other hand was squeezing the inside of my left thigh the whole time." He let go of her leg after she completed the IV insertion process. According to Ashley, there was no reason for Betancur's hand to be on her thigh; the road was not bumpy and there were other places to hold onto in the ambulance. The crew got the patient to the hospital, transferred care to a nurse, cleaned the ambulance, and returned to the ambulance station.

Ashley stated that when the crew arrived back to the Valley Ambulance station, they got out of the ambulance. She said "as I got out of the side door, [Betancur] got of [sic] the passenger door and he, again, pulled me to him and kissed me for the third time"; both were still wearing masks. Neither one of them said anything, but Ashley pulled her body back away from him. When asked if she felt trapped when Betancur kissed her, Ashley responded, "I felt trapped, yes." She explained, "[Betancur] was significantly older that I was, he was in charge of our...