State v. Gonzalez

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 Dakota County: Bryan C. Meismer, Judge. Affirmed.

Kenneth Jacobs, of Jacobs Alexander Law, for appellant.

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

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Pirtle, Chief Judge.

INTRODUCTION

Jose E. Gonzalez appeals from an order of the district court for Dakota County granting the State's motion to dismiss his motion for DNA testing and denying his motion for relief under the DNA Testing Act, Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2016). Based on the reasons that follow, we affirm.

BACKGROUND

Procedural History.

In 2009, Gonzalez was convicted of first degree sexual assault of his stepdaughter. Thereafter, the district court sentenced Gonzalez to 30 to 32 years' imprisonment.

On direct appeal, this court affirmed Gonzalez's conviction and sentence. See State v. Gonzalez, No. A-10-179, 2010 WL 4241022 (Neb.App. Oct. 26, 2010) (selected for posting to

court Web site). The following facts are taken from our 2010 opinion addressing Gonzalez's direct appeal:

The State filed an information charging Gonzalez with first degree sexual assault pursuant to Neb. Rev. Stat. § 28-319 (Reissue 2008). In the information, the State alleged that Gonzalez subjected the victim, his 14-year-old stepdaughter, to sexual penetration during the time period between October 31, 2007, and October 31, 2008

At trial, the State presented evidence that Gonzalez began sexually assaulting his stepdaughter during the summer of 2007. Although Gonzalez was not charged as a result of any incident that occurred prior to October 2007, the State introduced evidence of such incidents to demonstrate a continuous course of conduct by Gonzalez

The victim testified that during the summer of 2007, Gonzalez would come to her room after she would go to bed and would attempt to kiss her on the face and on various parts of her body, including on the area "between her legs." The victim's testimony demonstrated that this behavior continued through October 2007.

The victim's testimony revealed that at various times between October 31, 2007, and October 31, 2008, Gonzalez would come into her room, usually at night, and take off her pants and underwear. She testified that Gonzalez would sometimes rub his penis on her vagina and that other times Gonzalez would "put his tongue in [her] vagina" or put his finger in her vagina. She testified that Gonzalez told her that he wished he could "make love" to her. She indicated that by October 2008, Gonzalez was coming into her room almost every night to touch her. At one point during this time period, Gonzalez told the victim that he knew what he was doing was wrong, but he was unable to control himself. The victim testified that Gonzalez never took off his clothes during these incidents.

The State also presented evidence that the victim underwent a sexual assault examination. The results of that examination revealed an irregularity in the victim's hymen. Such irregularity was described as a "notch," and testimony from medical personnel indicated that such a notch was consistent with the victim's account of what had happened between the victim and Gonzalez.

Gonzalez testified at trial. During his testimony, he denied ever inappropriately touching the victim. He testified that he was never alone with the victim and that he never had the opportunity to do the things she alleged had occurred. In addition, Gonzalez testified that the victim wanted to go live with her biological father. Through his testimony, he suggested that the victim had falsely accused him of hurting her so that she would be allowed to move.

After hearing all of the evidence, the jury convicted Gonzalez of first degree sexual assault. The district court subsequently sentenced Gonzalez to 30 to 32 years' imprisonment.

After the sentencing order was entered, Gonzalez timely filed a notice of appeal and an accompanying poverty affidavit. However, his counsel did not properly complete the poverty affidavit. As a result, this court dismissed the appeal for lack of jurisdiction. Subsequent to the dismissal of the appeal, Gonzalez filed a motion for postconviction relief arguing that his counsel was ineffective in failing to properly file an appeal. After a

hearing, the district court sustained the motion for postconviction relief. This direct appeal followed.

State v. Gonzalez, 2010 WL 4241022 at *1-2.

Following our affirmance on direct appeal, Gonzalez filed a second motion for postconviction relief, which the district court denied without an evidentiary hearing. Gonzalez appealed the denial of postconviction relief and we affirmed. See State v. Gonzalez, No. A-12-073, 2012 WL 3740570 (Neb.App. Aug. 28, 2012) (selected for posting to court Web site).

Motion for DNA Testing.

In 2015, Gonzalez filed a motion for DNA testing under the DNA Testing Act. He requested that certain items of evidence be tested or retested. A hearing was held in May 2017 on the matter and an order was entered in May 2019 denying the motion. Gonzalez filed an appeal and the case was remanded for reconsideration. In May 2020 the district court granted Gonzalez' motion for DNA testing, and DNA testing was subsequently completed by the Nebraska State Patrol Crime Lab on three items of evidence.

After receiving the lab results from the DNA testing, the State filed a motion to dismiss the proceeding, alleging that the results of the DNA testing offered no exculpatory evidence and, therefore, Gonzalez was not entitled to any further relief under the DNA Testing Act.

Gonzalez filed an objection to the State's motion to dismiss, as well as a motion for relief under § 29-4123, requesting a hearing and an order finding that the results of the DNA testing exonerate or exculpate him. Alternatively, he sought a new trial under Neb. Rev. Stat. § 29-2101 (Reissue 2016).

At a hearing on the motions, Heidi Ellingson, with the Nebraska State Patrol Crime Laboratory, testified about the testing she had done on the samples in this case and the results of the testing. She testified that she received three items for testing, referred to as 1.KR1, 1.KR3, and 1.KR4. Each of these items was a section cut from a different area of the victim's bedspread. These items were not tested during the original investigation. Ellingson also received two items that were reference samples from the victim and Gonzalez. She testified that she was asked to test the bedspread samples for saliva and DNA. The results of the testing showed all three samples were negative for...