State v. Gutierrez

620 N.W.2d 738, 260 Neb. 1008, 2001 Neb. LEXIS 6
CourtNebraska Supreme Court
DecidedJanuary 5, 2001
DocketS-00-092
StatusPublished
Cited by48 cases

This text of 620 N.W.2d 738 (State v. Gutierrez) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gutierrez, 620 N.W.2d 738, 260 Neb. 1008, 2001 Neb. LEXIS 6 (Neb. 2001).

Opinions

[1009]*1009Wright, J.

NATURE OF CASE

John Gutierrez was charged in the district court for Garden County with two counts of sexual assault in the first degree. A jury convicted him on one count but was unable to reach a verdict as to the other. The district court sentenced Gutierrez to 35 to 50 years’ imprisonment, and Gutierrez appeals.

SCOPE OF REVIEW

A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified 255 Neb. 889, 587 N.W.2d 673 (1999).

Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of discretion. State v. Rieger, ante p. 519, 618 N.W.2d 619 (2000).

FACTS

Between April 1997 and January 1998, the alleged victims in this case, S.C. and J.P., lived with Ken R, their stepfather and father, respectively, along with three other siblings. In January 1998, Ken reported alleged sexual abuse of the children by two of their uncles and their grandparents. Gutierrez is married to S.C. and J.P.’s maternal grandmother.

After being interviewed by a state patrol investigator, the children were driven to Denver, Colorado, where they were physically examined by a physician. The examination of S.C. revealed that she had been recently abused both vaginally and anally. There were no physical signs of abuse on any of the other children, although the physician was concerned by some redness near J.P.’s anus.

At trial, S.C. testified that Gutierrez had forced her to perform oral sex acts on him at his house. However, she admitted that she had twice changed her story, and she later stated that she had lied about the allegations because she was mad at Gutierrez. She also testified that her stepfather had sexually abused her. At trial, J.P. testified that Gutierrez would “[s]tick his privates up me .. . [i]n my butt.” He stated that this had happened 10 or 12 times.

[1010]*1010A number of witnesses, including a former employer, friends, and family members, testified on behalf of Gutierrez that they had witnessed normal interaction between Gutierrez and various children who were related to him, including S.C. and J.P. There was also testimony about S.C.’s fear of her stepfather. In addition, there was testimony by a neighbor about his suspicion that he had witnessed the stepfather sexually abusing S.C. in November 1997. Gutierrez testified at length and denied having ever sexually abused either S.C. or J.P. or otherwise inappropriately touching them.

The case was submitted to the jury on October 22, 1999. On October 25, the jury found Gutierrez guilty of sexual assault in the first degree on J.P. but was unable to reach a verdict on the charge regarding S.C. Gutierrez was sentenced to 35 to 50 years’ imprisonment.

ASSIGNMENTS OF ERROR

Gutierrez assigns as error the district court’s (1) denying a continuance after the State filed a second amended information and endorsed a new witness on the day of trial, (2) allowing the court reporter to go into the jury room without the presence of counsel to read back testimony during deliberations, (3) not granting a new trial after possible juror contact by the prosecutor during the trial and deliberations, (4) sustaining a motion in limine prohibiting Gutierrez from introducing evidence of his character at trial, (5) sustaining a motion in limine prohibiting Gutierrez from introducing evidence that another person may have committed these acts, (6) denying Gutierrez’ motion for a directed verdict of not guilty, and (7) sentencing Gutierrez to 35 to 50 years’ imprisonment.

ANALYSIS

Gutierrez argues that the district court erred in denying his motion for a continuance. A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified 255 Neb. 889, 587 N.W.2d 673 (1999). A judicial abuse of discretion means that the reasons or rulings of the trial [1011]*1011court are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. State v. Kula, ante p. 183, 616 N.W.2d 313 (2000).

In the original information, Gutierrez was charged with four counts of sexual assault in the first degree (one count each for four different grandchildren), kidnapping, and false imprisonment in the first degree. The kidnapping and false imprisonment charges were later dismissed. On the day of trial, the State moved to further amend the information by eliminating two counts of sexual assault in the first degree. Gutierrez requested that the district court dismiss these counts with prejudice, and the court so ordered. Gutierrez then moved for a continuance because of the amendment and the State’s endorsement of a new witness. The district court denied the motion, finding that there would be no prejudice to Gutierrez by proceeding with the trial.

Gutierrez asserts that he was prejudiced by being forced to proceed to trial on the amended information. He claims that “[b]y removing two of the possible victims in this case, the [Sjtate eliminated two Counts wherein victims had changed their stories a number of times and had most recently told the State that [Gutierrez] was not the perpetrator.” Brief for appellant at 10.

The State argues that proceeding to trial on the second amended information was not prejudicial to Gutierrez in light of the fact that the State merely dismissed two of the four counts previously charged after the alleged victims recanted their reports of molestation. The State is essentially arguing that Gutierrez had notice of the remaining two counts and that further notice was therefore unnecessary.

A district court in its discretion may before trial permit the county attorney to amend a criminal information, provided the amendment does not change the nature or identity of the offense charged. State v. Thielen, 216 Neb. 119, 342 N.W.2d 186 (1983). Here, the nature or identity of the two remaining counts was not changed. Gutierrez received the benefit of having two felony counts dismissed with prejudice.

Just prior to the start of trial, the State also moved to endorse as an additional witness the booking officer on duty when Gutierrez was arrested, who was to testify as to Gutierrez’ age. [1012]*1012The district court sustained the State’s motion to endorse over Gutierrez’ objection.

A trial court may allow witnesses to be endorsed after an information is filed when doing so does not prejudice the defendant in the preparation of his or her defense. State v. Cebuhar, 252 Neb.

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Cite This Page — Counsel Stack

Bluebook (online)
620 N.W.2d 738, 260 Neb. 1008, 2001 Neb. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gutierrez-neb-2001.