IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. GONZALEZ
NOTICE: 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).
STATE OF NEBRASKA, APPELLEE,
V.
JOSE E. GONZALEZ, APPELLANT.
Filed November 16, 2021. No. A-21-001.
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.
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
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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
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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 the presence of saliva. Ellingson did additional DNA testing on two of the samples
(1.KR1 and 1.KR3). The first one, 1.KR1, had an insufficient quantity of DNA detected and testing
was stopped on that sample. From the second sample, 1.KR3, a female DNA profile was detected,
as well as a male DNA profile. Ellingson was able to test the female DNA profile against the
reference sample from the victim. The female DNA profile was consistent with the victim’s DNA.
Subsequent testing, referred to as “YSRT” testing, was also completed on 1.KR1 and
1.KR3. On sample 1.KR1 no YSTR DNA profile was detected. On sample 1.KR3, a partial YSTR
DNA profile was detected, but the profile was deemed uninterpretable due to a lack of genetic
information. In other words, she was not able to compare the sample to Gonzalez’ DNA to
determine if he was included or excluded in that profile sample.
The State also offered Ellingson’s laboratory reports containing the results of the testing
into evidence. Both exhibits were received without objection.
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The court took judicial notice of the court file, including the filings, motions, transcript,
and bill of exceptions from the hearings in this matter, as requested by Gonzalez.
Following the hearing, the court granted the State’s motion to dismiss and denied
Gonzalez’ motion for relief under § 29-4123. It determined that the testing results did not
exonerate or exculpate Gonzalez. Further, the court found that the testing results were not
otherwise sufficiently exculpatory to necessitate a new trial.
ASSIGNMENT OF ERROR
Gonzalez assigns, restated, that the district court erred in granting the State’s motion to
dismiss and in denying his request to vacate his conviction or in the alternative, his request for new
trial.
STANDARD OF REVIEW
A motion to dismiss a proceeding under the DNA Testing Act after testing has been
completed is addressed to the discretion of the trial court, and unless an abuse of discretion is
shown, the trial court’s determination will not be disturbed. State v. Amaya, 305 Neb. 36, 938
N.W.2d 346 (2020).
An appellate court will uphold a trial court’s findings of fact related to a motion for DNA
testing unless such findings are clearly erroneous. Id.
ANALYSIS
Gonzalez assigns that the district court erred in granting the State’s motion to dismiss and
in denying his request to vacate his conviction or in the alternative, his request for new trial. Before
addressing Gonzalez’ arguments, we set forth the relevant parts of the DNA Testing Act.
DNA Testing Act.
Pursuant to § 29-4123(2), after receiving DNA test results, either party may request a
hearing on whether the results “exonerate or exculpate the person.” Following such a hearing, the
court may, on its own or on the motion of either party, “vacate and set aside the judgment and
release the person from custody based upon final testing results exonerating or exculpating the
person.” Id. If the court does not vacate and set aside the conviction, then § 29-4123(3) provides
that “any party may file a motion for a new trial under sections 29-2101 to 29-2103.”
As for when a court may vacate a conviction and release the person under § 29-4123(2),
and when it may order a new trial under § 29-4123(3), the Nebraska Supreme Court has explained:
“[T]he court may vacate and set aside the judgment in circumstances where the DNA
testing results are either completely exonerative or highly exculpatory--when the results,
when considered with the evidence of the case which resulted in the underlying judgment,
show a complete lack of evidence to establish an essential element of the crime charged. . . .
This requires a finding that guilt cannot be sustained because the evidence is doubtful in
character and completely lacking in probative value. . . . [I]n other circumstances where
the evidence is merely exculpatory, the court may order a new trial if the newly discovered
exculpatory DNA evidence is of such a nature that if it had been offered and admitted at
the former trial, it probably would have produced a substantially different result.”
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State v. Amaya, 305 Neb. at 43-44, 938 N.W.2d at 352-53. Exculpatory evidence is “evidence
which is favorable to the person in custody and material to the issue of the guilt of the person in
custody.” § 29-4119.
In this case, the State sought to dismiss the DNA testing proceeding after the DNA test
results were obtained, arguing the results of the DNA testing did not exonerate or exculpate
Gonzalez and he was not entitled to any relief. Gonzalez filed an objection to the State’s motion
to dismiss and requested a hearing and relief under § 29-4123, alleging that the DNA evidence
provided evidence to exonerate him or at least provided exculpatory evidence to warrant a new
trial.
Gonzalez’ Arguments.
The three samples of the bedspread tested negative for saliva and after further DNA testing,
the results only detected the presence of the victim’s DNA. Although there was some indication
of male DNA on one sample, it was not enough to compare against Gonzalez’s DNA.
Gonzalez argues that the lack of saliva or other DNA evidence tying him to the victim’s
bedspread completely exonerates him or at least is exculpatory enough for the court to order a new
trial. In support of his argument, Gonzalez relies on the testimony of a DNA analyst from the
Nebraska State Crime Lab who testified at a 2017 hearing, as well as the victim’s trial testimony.
The DNA analyst testified that it was possible that enough saliva could be deposited on bedding
during an occasion of oral sex to leave a testable residue amount. The victim testified that Gonzalez
was subjecting her to oral sex and that by October 2008, Gonzalez was coming into her room
almost every night. Gonzalez suggests that when the new DNA testing results are considered
together with the testimony of the DNA analyst and the testimony of the victim, the evidence
supports a conclusion that the acts he was accused of never occurred. Stated differently, he
contends that if the victim’s testimony is believed, there would be DNA evidence linking him to
the crime scene. Therefore, he argues that the DNA testing results completely exonerate him and
his conviction should be vacated. In the alternative, he suggests that had the newly discovered
DNA evidence been admitted at trial, it would have produced a substantially different result,
entitling him to a new trial.
The district court found that the new DNA results do not appear to be any more or less
favorable to Gonzalez than the original testing. It noted that at the time of the original trial in 2009,
there was no DNA evidence linking Gonzalez to the crime scene, and that remains the same after
the testing of the three bedspread samples. The court concluded that the lack of DNA evidence
was not material to the issue of Gonzalez’ guilt. We agree.
The lack of DNA evidence linking Gonzalez to the bedspread in the new DNA results does
not raise reasonable doubt as to whether Gonzalez sexually assaulted the victim as described at
trial. As the district court found, there was no DNA evidence linking him to the crime scene at the
time of the trial, so the DNA test results revealed nothing new.
The DNA analyst testified in 2017 that it was “possible” that enough saliva “could” be left
on bedding during oral sex to leave enough residue for testing. Gonzalez does not allege that she
testified differently. Thus, Gonzalez could have sexually assaulted the victim without leaving
saliva on the bedspread. The fact that there was no saliva on the samples is not unexpected.
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Further, the fact that there was no saliva or other DNA linked to Gonzalez on the three
samples does not mean that there was no DNA on the entire bedspread; the testing only confirmed
that there was no DNA on those particular samples. The Supreme Court has stated that DNA
evidence is not a videotape of a crime, and the nonpresence of an individual’s DNA profile in a
biological sample does not preclude that individual from having been present or in possession of
the item tested. Instead, such results would merely show the individual’s DNA was not present in
the specific biological sample tested. See State v. Myers, 304 Neb. 789, 937 N.W.2d 181 (2020),
cert. denied ___ U.S. ___, 141 S. Ct. 287, 208 L. Ed. 2d 46.
The Supreme Court has also held that if DNA testing does not detect the presence of a
prisoner’s DNA on an item of evidence, such a result is at best inconclusive, especially when there
is other credible evidence tying the defendant to the crime. State v. Amaya, 305 Neb. 36, 938
N.W.2d 346 (2020). When DNA test results are either inculpatory, inconclusive, or immaterial to
the issue of a person’s guilt, the results will not entitle the person to relief under the DNA Testing
Act. State v. Amaya, supra. The results of the DNA testing in the present case did not detect the
presence of Gonzalez’ DNA and, therefore, the results were inconclusive and did not entitle
Gonzalez to relief. Accordingly, the district court did not abuse its discretion in concluding
Gonzalez was not entitled to have his convictions vacated nor was he entitled to a new trial because
the DNA test results were neither exonerative nor exculpatory.
CONCLUSION
The district court did not abuse its discretion in granting the State’s motion to dismiss and
denying Gonzalez’ motion for relief under the DNA Testing Act. The order of the district court is
affirmed.
AFFIRMED.
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