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State v. Rocha

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Date: 
Wednesday, March 6, 2013

S-12-0411 State v. Eric O. Rocha, Sr. (Appellant)

Scotts Bluff County, Judge Leo P. Dobrovolny

Attorneys: James R. Mowbray, Todd W. Lancaster (Nebraska Commission on Public Advocacy) (Appellant) --- Stacy M. Foust (Attorney General’s Office)

Criminal: Count I: First degree sexual assault on a child less than 12 years of age; Counts II through V: Child abuse, knowingly and intentionally.

Proceedings below: A jury found Appellant guilty on all counts. The district courted sentenced Appellant 40 years to life imprisonment on Count I and 3 to 5 years on each of the remaining Counts, II through V. All sentences were ordered to be served consecutively.

Issues: 1. Trial counsel provided ineffective assistance by failing to request the sexual assault of a child charge in count one be severed from the charges of child abuse in counts two through five. 2. Trial counsel provided ineffective assistance by failing to object to the submission of character or other act evidence at trial pursuant to Neb. Rev. Stat. § 27-403 and § 27-404 and by not asking for a limiting instruction on its use. 3. The trial court erred in instructing the jury:

A. The trial court erred in not instructing the jury as to the lesser included offense of negligent misdemeanor child abuse in counts two through five.

B. If Rocha's trial counsel failed to preserve the issue of not instructing the jury as to

the lesser included offense of negligent/misdemeanor child abuse in counts two through five, then Rocha was denied effective assistance of counsel.

C. The trial court erred by not instructing the jury of the justification of the use of force by a person with special responsibility for care, discipline, or safety of others as set forth in Neb. Rev. Stat. § 28-1413.

D. If Rocha's trial counsel failed to preserve the issue of not instructing the jury of the justification of the use of force by a person with special responsibility for care, discipline, or safety of others as set forth in Neb. Rev. Stat. $ 28-1413, then Rocha was denied effective assistance of counsel.

4. Trial counsel provided ineffective assistance of counsel by not objecting to inadmissible evidence and by presenting evidence that was inculpatory:

A. Trial counsel provided ineffective assistance of counsel by not objecting to the

testimony of Jeanna Townsend concerning behaviors of child victims which went beyond the general behaviors of sexual abuse as allowed by State v. Roenfeldt and State v. Fleming.

B. Trial counsel failed to object on grounds of relevancy, no personal knowledge, and speculation to questions asked of witness J.C. when asked how it made him feel when he saw his brothers and sister were being punished by Rocha.

C. Trial counsel provided ineffective assistance of counsel by not objecting to earsay and speculation testimony of witness Carol Markheim or the Court erred by overruling Appellant's objections when made.

D. Trial counsel provided ineffective assistance of counsel by not objecting to hearsay testimony elicited from Monica Bartling.

This page was last modified on Thursday, March 7, 2013