Per Curiam.
Eric O. Rocha, Sr., was convicted of first degree sexual assault of a child and four counts of child abuse. In this direct appeal, Rocha claims trial counsel was ineffective in failing to move to sever the sexual assault charge from the child abuse charges and in failing to request an instruction limiting the jury's consideration of the evidence of one crime to that particular crime. He also alleges trial error in failing to instruct the jury on the lesser-included offense of negligent child abuse and in failing to instruct the jury on the defense of parental justification of use of force. For the reasons set forth, we reverse the judgments of conviction, vacate the sentences, and remand the cause for further proceedings.
On March 8, 2011, an officer with the Nebraska State Patrol conducted an interview of J.S., a young girl, who was 8 years old at the time of trial. After the interview, the officer obtained a search warrant for Rocha's residence in Scottsbluff Nebraska. At the residence, a slipper and a belt were retrieved and photographs were taken of the residence, including a photograph of a bedroom door which could be locked from the outside of the room.
Rocha was charged with one count of first degree sexual assault of a child and four counts of felony child abuse. J.S. was the alleged victim of the sexual assault and one of the alleged victims of child abuse. Her three brothers, J.C., A.R., and A.S., were the other alleged child abuse victims. A second amended information alleged that Rocha committed sexual assault from October 14, 2009, through February 2011 and that Rocha committed child abuse from June 11, 2008, through February 2011.
At trial, the evidence showed that Rocha and Jessica S. were married and lived together. J.S., J.C., A.R., and A.S. are Jessica's children, but Rocha is not their biological father. He supervised the children while Jessica was at work and the children were at home.
J.S. testified that during the evenings, Rocha came into her bedroom, which she shared with her brothers. He took her into the living room and forced her to perform oral sex. She gave her story as to what occurred during the assaults. The assaults allegedly occurred in the living room, in her mother's bedroom, in the bathrooms, and in the car.
In the car, Rocha allegedly made J.S. sit on his lap with her pants and underwear partially off. Rocha's "private area" went "in [her] bottom," and she said that hurt. Rocha also allegedly touched her vaginal area with his finger.
J.S. claimed Rocha hit her with a slipper on her arm. She claimed Rocha hit her bottom with a belt, which hurt. Rocha also blew marijuana smoke into her mouth. She said she did not get enough to eat at dinner because the children did not get "seconds." She said that on one occasion, Rocha made her drink beer and then made her perform oral sex.
J.S. was afraid of Rocha because he hurt her brothers. She said Rocha choked A.R. by "dragging him up in the wall" with his hands around his throat. She also saw Rocha push his fingernail into A.R.'s ear. Rocha spanked A.R. and A.S. with the belt
J.C. explained that the bedroom he shared with J.S., A.R., and A.S. locked from the outside and that sometimes the boys were locked in the bedroom while J.S. was in the living room with Rocha. J.C. testified he did not always get enough food to eat. He saw Rocha smoke something green in color, and the smoke hurt the boys' eyes.
Rocha did not hit J.C., but J.C. saw Rocha hit the other children. Rocha spanked J.S. with his hand, sometimes with her pants down. Rocha spanked A.R.'s bottom with his hand or with a sandal. Rocha also hit A.R.'s bottom and hands with a wooden stick and hit A.R.'s bottom with the tube of a vacuum cleaner. He made A.R. stand in a corner, and one time, J.C. saw Rocha push A.R.'s head into the wall, giving A.R. a bloody nose. On another occasion, Rocha threw A.R. across the kitchen floor. He "thump[ed]" A.R. on the head with his finger or a wooden spoon. Rocha hit A.R. on his side if he was not behaving. J.C. testified that Rocha spanked A.S. with his hand, but never used anything else to hit A.S.
J.S.' kindergarten teacher testified that until November 2009, J.S. was a "bubbly" 5-year-old, who then became very agitated and nervous, cried a lot, and did not want to go home. J.S. refused to take an art project home. The teacher explained that J.S. wanted to be perfect in doing everything at school and would erase her papers repeatedly. When coloring, J.S. was afraid to go outside the lines. She would cry at school because she was hungry or afraid to go home. The teacher gave J.S. and the other students in the class snacks twice a day to address J.S.' hunger. J.S. was frightened and uneasy when she talked with the teacher about her home. She was afraid to go home if her new shoes were dirty, so she "spit clean[ed]" them. After the teacher observed this behavior, she helped J.S. clean her shoes with a rag, and did so regularly after J.S. sobbed for fear she would get in trouble at home.
J.S.' kindergarten teacher said that toward the end of November 2009, J.S. used the bathroom 15 or 20 times each day to wash her hands, arms, legs, hair, and face. The teacher testified that this behavior was different for J.S. and unusual for any kindergarten student. J.S.' first grade teacher during the 2010-11 school year also testified to similar behavior.
A licensed medical health practitioner and certified professional counselor, Jeanna Townsend, provided therapy to J.S. 5 times in February 2010 and approximately 14 times beginning in June 2011. During her five sessions with J.S. in 2010, J.S. did not answer questions and "shut down." Townsend testified that child victims of sexual abuse exhibit certain behaviors. These include taking responsibility for many things and feeling that they are bad or dirty. Townsend stated that constant washing of body parts was consistent with sexual abuse because the child tends to feel dirty. Excessive use of the bathroom was consistent with sexual abuse. Townsend testified to other activities that could be consistent with sexual abuse.
The children's mother, Jessica, testified Rocha disciplined the children by sending them to their room, giving them a "time out," or not letting them go outside to play. She did not see any marks or bruises on the children that caused concern that the children were improperly disciplined, and she did not see Rocha hit A.R. or A.S. on the head with a wooden spoon during mealtime. She did not hear any complaints from the children that Rocha spanked or treated them inappropriately; hit them with a belt, stick, or sandal; or
Jessica did not expose J.S. to anything sexual, and Jessica claimed J.S. did not tell her that she was sexually abused by Rocha. She said J.S. had an imagination and made up stories. Jessica said she did not see Rocha smoke marijuana in the home and did not find or smell marijuana in the home. She denied that the children were deprived of food at dinner.
Rocha denied the allegations of sexual assault and child abuse. He denied taking J.S. to the living room or exposing himself to her. He denied having done anything to J.S. for sexual gratification.
Rocha said he disciplined J.S., A.R., and A.S. by scolding them, yelling at them, giving them "timeouts," and sending them to their room. He said he spanked them with an open hand on the bottom but denied pinching, choking, hitting them in the face, or striking them with anything other than his hands. Rocha disciplined J.C. by "grounding" him. He denied using marijuana in front of the children, offering it to the children, or forcing them to consume it. He said that he and Jessica made them meals and that the children were not denied food.
After the evidentiary portion of the trial, Rocha's counsel requested that a proposed jury instruction on the term "cruel punishment" be given to the jury. The court denied the instruction. It determined the instruction was not necessary to accurately state the law. During its rebuttal argument, the State asserted that J.S. had been "absolutely honest in everything she told [the jury] that happened."
The jury found Rocha guilty on all counts. He was sentenced to prison for 40 years to life on the sexual assault conviction, with credit for 264 days served, and 3 to 5 years on each child abuse conviction. All sentences were to run consecutively. He appealed. This court has a statutory obligation to hear all appeals in cases in which the sentence of life imprisonment is imposed.
Rocha assigns, summarized and restated, that (1) his trial counsel was ineffective in failing to move to sever the sexual assault charge from the child abuse charges, (2) his trial counsel was ineffective in failing to request a limiting instruction preventing the jury from considering the evidence of sexual assault to convict him of the child abuse charges and vice versa, (3) the trial court erred in failing to instruct the jury on the lesser-included offense of negligent child abuse, and (4) the trial court erred in failing to instruct the jury on the parental justification for use of force as set forth in Neb.Rev.Stat. § 28-1413 (Reissue 2008). Rocha raises a hearsay claim and other ineffective assistance of counsel claims which are not necessary for our analysis.
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact.
Rocha first takes issue with his charges being joined in a single trial. Rocha did not object to the alleged misjoinder and did not move to sever one or several of the charges. Absent plain error, we ordinarily will not address an issue that was not raised in the trial court.
However, the alleged misjoinder and failure to sever may also be addressed through the prism of ineffective assistance of counsel, which is what Rocha has done here. He argues that his counsel was ineffective in failing to object to the misjoinder of his charges and in failing to move to sever the charges. He argues that his counsel's inaction resulted in a fundamentally unfair trial and that his convictions must be reversed. We can conceive of no strategic reason for his counsel's failure to act, and that failure undermines our confidence in the outcome of the trial.
Obviously, this is Rocha's direct appeal, and ineffective assistance of counsel claims are generally addressed through a postconviction action. This is frequently because the record is insufficient to review the issue on direct appeal.
The dissent, however, takes issue with our addressing Rocha's ineffective assistance claim on direct appeal and suggests that we should never resolve such claims on direct appeal. In support of its
Clearly, the U.S. Supreme Court disagreed with the dissent's categorical approach. We do too.
The dissent also poses a litany of questions that, in its view, might (on postconviction review) uncover a reasonable strategy behind trial counsel's failure to sever the charges. Putting aside whether the dissent's possible answers are actually probable or convincing, this "what if" routine could be done for any case on direct appeal. It is just another way for the dissent to argue that ineffective assistance claims should always be reserved for postconviction review. As noted above, we (and the U.S. Supreme Court) reject that position. Here, ineffective assistance is plain from the record and may be addressed on direct appeal. In fact, if appellate counsel is different from trial counsel, claims of ineffective assistance of counsel must be raised on direct appeal, or they are waived. The question is whether the record is sufficient to address the claim. In this case, the majority has determined the record is sufficient to address the claim.
As the analysis will show, the charges were improperly joined together, and considering the obvious risks to Rocha of proceeding with a joint trial on the charges, we can conceive of no justifiable reason for counsel's failure to object to the misjoinder and failure to move to sever. "[W]here no plausible explanation for an attorney's actions exists, to require the defendant to file a postconviction action can be only a waste of judicial time."
The State and the dissent argue that a reasonable explanation could exist and that we should wait to address this claim until it is on postconviction review. As stated above, we disagree. But as an example of such an alleged explanation, the State claimed at oral argument that perhaps Rocha's counsel did not object to the joinder of the charges and move to sever because Rocha himself requested a single trial. We find this hypothetical unpersuasive because, regardless, the decision whether to object to the joinder and move to sever was a tactical decision for trial counsel to make rather than Rocha.
To prevail on a claim of ineffective assistance of counsel under Strickland,
The petitioner must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different.
Here, whether counsel's performance was deficient initially depends on whether the charges were properly joined under Neb.Rev.Stat. § 29-2002(1) (Reissue 2008). Section 29-2002 states in relevant part:
The language of § 29-2002(1) is similar to the language found in Fed.R.Crim.P. 8(a). Offenses are properly joinable under § 29-2002(1) if they are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
At the outset, the exact charges in this case should be made clear. The State charged Rocha with first degree sexual assault of a child (as to J.S. only) under Neb.Rev.Stat. § 28-319.01 (Cum.Supp. 2012). The State also charged Rocha with four counts of child abuse (as to all four children, including J.S.) under Neb.Rev. Stat. § 28-707 (Reissue 2008). Rocha argues now on appeal that his trial counsel was ineffective for failing to object to the misjoinder of these charges and for failing to move to sever these charges. Specifically, Rocha argues that the sexual assault charge should not have been tried with the four child abuse charges. We agree.
First, we conclude that the sexual assault charge and the child abuse charges were not of the same or similar character. For one thing, they are different crimes. Most notably, however, sexual assault, on its face, is sexual in nature, whereas child abuse is not. The sexual assault charge pertained only to J.S. and took place over a different period of time than the child abuse charges. As such, the sexual assault charge and the child abuse charges were not of the same or similar character.
Second, the sexual assault charge was not based on the same act or
Here, the alleged sexual assaults occurred separately and apart from the alleged child abuse. As noted above, J.S. was allegedly assaulted when the other children were not present. The alleged incidents occurred in the living room, Jessica's bedroom, the bathrooms, or the car. J.S. was the only child who was sexually assaulted and the only child who testified to being sexually assaulted. There was no evidence that the other children were sexually assaulted.
In contrast, many of the alleged incidents of child abuse occurred in the presence of more than one child and related to the striking of the children with a slipper, belt, or Rocha's hand. Rocha allegedly choked two of the children with his hands. Evidence of the child abuse did not require evidence of the sexual assaults, and vice versa. The charges were not part of the same act or transaction.
Finally, the sexual assault charge and the child abuse charges were not connected together or parts of a common scheme or plan. The State argues otherwise, on the basis that each of the alleged crimes was part of a common scheme or plan to exercise control over the children. We find this unpersuasive — Rocha already controlled the children by virtue of being a stepparent. And the record does not demonstrate any other inferable common scheme or plan.
Furthermore, these charges are unlike charges in cases that we have found sufficiently related under the "connected together" or "parts of a common scheme or plan" provision of § 29-2002(1). For example, in State v. Hilding,
In sum, the sexual assault charge was misjoined with the child abuse charges. Under § 29-2002(1), the charges were not of the same or similar character, part of the same act or transaction, or connected together or parts of a common scheme or plan. As such, the charges were misjoined, and had a proper objection been raised by trial counsel, the court would have been required to order separate trials.
The question remains whether counsel's deficient performance actually prejudiced Rocha. In answering that question, and as stated previously, we focus on whether a trial counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. To show prejudice, the defendant must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different.
Because the charges were misjoined under § 29-2002(1), evidence of both the alleged sexual assaults and the child abuse of the other children was admitted in the joint trial. But had the charges been tried separately, evidence of the child abuse regarding the other children would have been inadmissible in a trial on the sexual assault charge, and vice versa, under Neb. Rev.Stat. § 27-404(2) (Cum.Supp. 2012), which provides:
The reason for the rule is that such evidence, despite its relevance, creates the risk of a decision by the trier of fact on an improper basis.
We do not agree with the State's claim that § 27-404(2) would be inapplicable in separate trials, because the evidence of the child abuse charges and of the sexual assault charge was inextricably intertwined.
Trying the sexual assault and child abuse charges together also essentially prohibited Rocha from moving to exclude prejudicial evidence based on Neb.Rev. Stat. § 27-403 (Reissue 2008), which states: "Although relevant, evidence may be excluded if its probative value is substantially out-weighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." In a separate trial for child abuse, any probative value of the sexual assault evidence would be outweighed by unfair prejudice; the jury might convict Rocha of child
The risk of undue prejudice, considering the type of evidence at issue, was high; evidence of sexual assault, by its nature, was highly volatile and had the potential to fan the jury's emotions. That risk was exacerbated by the fact that the court did not specifically instruct the jury on the importance of keeping the charges, and evidence related to those charges, separate during its deliberations. For these reasons, our confidence in the outcome of this case is undermined and we conclude that Rocha was prejudiced by his trial counsel's deficient performance.
Rocha claims trial counsel was ineffective because he failed to request a limiting instruction that the jury could not consider the evidence of sexual assault to prove the charges of child abuse and vice versa.
At oral argument, the State asserted hypothetically that an evidentiary hearing was required to examine counsel's strategy, because Rocha may have insisted on testifying, but in only one trial. Assuming for purposes of the State's assertion that an evidentiary hearing was required, the question remains whether the record is sufficient to address counsel's failure to request limiting instructions. We conclude that it is.
In reviewing the admissibility of other crimes evidence under § 27-404(2), an appellate court considers (1) whether the evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith, (2) whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (3) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted.
The charges were not of the same or similar character, were not based on the same act, and were not part of a common scheme or plan. The evidence of Rocha's sexual assaults was not relevant to the charges of child abuse and vice versa.
Evidence that Rocha made J.S. perform oral sex and that Rocha put his "private area in [her] bottom" would not be relevant for any proper purpose under § 27-404 as to the child abuse charges. Nor would evidence that Rocha spanked the children or allegedly physically abused the children be relevant to the sexual assault charges. The admission of this evidence without limiting instructions was unfairly prejudicial.
Once the charges were joined, an attorney with ordinary training and skill in criminal law would have requested these limiting instructions. We can conceive of no reasonable explanation why, if Rocha insisted on trying the charges in one trial, counsel would not ask for the limiting instructions.
For the reasons stated above, we conclude that Rocha received ineffective assistance of counsel. We therefore reverse the judgments of conviction.
Because we reverse the judgments of conviction, we examine whether the evidence admitted by the trial court was sufficient to sustain Rocha's convictions. The
For the reasons set forth herein, we reverse the judgments of conviction, vacate the sentences, and remand the cause for further proceedings.
REVERSED, SENTENCES VACATED, AND CAUSE REMANDED FOR FURTHER PROCEEDINGS.
McCormack, J., participating on briefs.
Heavican, C.J., not participating.
Stephan, J., dissenting.
This is the second time that this court has overturned a criminal conviction on the ground of ineffective assistance of counsel without a complete factual record to support its conclusion. As in the first instance,
As the majority acknowledges in its statement of the standard of review, a claim of ineffective assistance of counsel presents a mixed question of law and fact, requiring that we review factual findings of the lower court for clear error, but reach an independent determination of whether ineffective assistance of counsel under the Strickland v. Washington
The reasons why an appellate court usually cannot and should not consider ineffective
And the Court reasoned that "[t]he trial record may contain no evidence of alleged errors of omission, much less the reasons underlying them."
Although this court generally requires ineffective assistance of counsel claims to be raised on direct appeal in order to be preserved for postconviction review,
But in Faust and now in this case, the majority reaches and resolves the ineffective assistance of counsel claim on direct appeal because it "can conceive of no reasonable strategic reason" for the challenged performance of defense counsel. I believe that this "we know it when we see it" approach to the question of whether counsel had no reasonable trial strategy is unsound.
Here, we simply do not have the information necessary to make a principled determination of whether counsel acted, or did not act, pursuant to some reasonable trial strategy. There is a strong presumption that trial counsel acted reasonably.
These sound principles recognize that no one knows more about a case than the lawyer who tries it. Before trial, a criminal defense lawyer conducts confidential communications with his or her client, interviews witnesses, and reviews police reports and other information compiled by the State. It is from this knowledge base that the lawyer formulates trial strategy by application of professional judgment to particular facts and circumstances. The trial record tells us how the lawyer elected to try the case, but it ordinarily does not disclose counsel's reasons for taking, or not taking, a particular action. Any experienced trial lawyer knows that there can be sound strategic reasons for not filing a motion, for not making an objection, or for not requesting a limiting instruction, even if there are grounds to do so. It is impossible to determine whether counsel acted or refrained from acting pursuant to a reasonable trial strategy without knowing what counsel knew at the time of the challenged conduct, and why he or she tried the case in a particular manner. We simply cannot tell from this record why Rocha's counsel did not file a motion to sever the charges or request a limiting
The majority's willingness to conclude that Rocha's counsel could not have been acting pursuant to a reasonable trial strategy is at odds with the reasoning of State v. Poe,
In addition to reaching a result without adequate factual support, the majority's reasoning prevents the relevant facts from ever being determined. Had this court followed our normal procedure and declined to reach the ineffective assistance claim on direct appeal, Rocha could have asserted the same claim in a motion for postconviction relief. Because the files and records of the case now before us on direct appeal do not affirmatively show that his claim is without merit, he would be entitled to an evidentiary hearing
And what if, at a postconviction evidentiary hearing, trial counsel testified that Rocha had always insisted that he was innocent of all charges and that the children fabricated their allegations because he was strict with them and was not their biological father? What if counsel testified that after consultation, Rocha insisted on testifying in his own defense, and counsel concluded that under Neb. Ct. R. of Prof. Cond. § 3-501.2(a), he was ethically required to abide by that decision? What if counsel testified that he determined that the mother of the children would testify in Rocha's defense, specifically that the children had never reported physical or sexual abuse to her and that the alleged sexual assault victim "had an imagination and made up stories"? What if counsel testified that given the absence of any physical evidence of sexual or physical abuse and Rocha's insistence on testifying in his own defense, counsel concluded that the best strategy for obtaining acquittal on all charges was to have a single trial in which he would seek to create reasonable doubt as to the credibility of the complaining witnesses, rather than moving to sever the charges and thus giving the State two opportunities to cross-examine Rocha and obtain felony convictions? What if counsel
But because of the majority's preemptive adjudication of the ineffective assistance claim on the trial record alone, we will never know the reasons defense counsel did not move to sever the charges or request a limiting instruction. I submit that the majority cannot "conceive" of a strategic explanation for counsel's performance at trial because it does not know all the facts and has eliminated the procedural means of acquiring them. The majority's approach violates a fundamental principle of appellate review in criminal cases — a principle codified for over 90 years — that no judgment in a criminal case may be set aside if the court considers that no substantial miscarriage of justice has actually occurred.
Finally, I cannot accept the majority's conclusion that this is a case in which requiring "the defendant to file a postconviction action can be only a waste of judicial time."
Finding no merit in any of Rocha's other assignments of error, I would affirm his convictions and sentences without reaching his ineffective assistance of counsel claim, thereby permitting him to pursue his postconviction remedy on that issue.
Cassel, J., joins in this dissent.
