State v. Bazaldua, A-16-422

Background

Defendant Eliasib R. Bazaldua (age 54) was charged with first-degree sexual assault of a child (count 1) and third-degree sexual assault of a child (count 2) after the victim U.M., born June 2009, reported multiple sexual incidents.
Bazaldua pled no contest to count 2 (third-degree) with no plea agreement; the jury tried only count 1 (first-degree) and convicted him after trial; he did not testify.
Victim U.M., then age 6 at trial, described three incidents: (1) fellatio in a kitchen/counter incident, (2) anal penetration in a bedroom, and (3) penile contact/penetration at another location; a forensic interview and medical exam (normal) were admitted.
Police recorded a three-hour interview in which Bazaldua admitted showing U.M. how to masturbate (kitchen incident) but denied penetration or other incidents; that recorded statement was admitted over objections after a motion in limine partially limiting opening statement references.
The jury found Bazaldua guilty of first-degree sexual assault of a child; the court sentenced him to 30–60 years (count 1) and 4–5 years (count 2), concurrent; Bazaldua appealed raising sufficiency of evidence, excessiveness of sentence, and ineffective assistance of counsel.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Bazaldua)	Held
Sufficiency of evidence for first-degree sexual assault (sexual penetration of <12-year-old)	Victim testimony and other evidence support conviction; any one incident meets statutory "sexual penetration" definition	U.M. was the only substantive evidence, was not credible, and may have been suggested/coached; timing alleged was not proved	Affirmed: viewing evidence in State's favor, a rational juror could find penetration beyond a reasonable doubt; timing is not an element of the offense (conviction stands)
Excessive sentence (30–60 yrs on count 1)	Sentence within statutory limits; court considered statutory factors and public protection needs	Argues court should have imposed minimum given low assessed recidivism risk and possible deportation makes long imprisonment unnecessary	Affirmed: no abuse of discretion; sentence not excessive or unreasonable
Ineffective assistance — pressured plea to count 2	State notes plea was knowingly and voluntarily entered on record	Bazaldua claims trial counsel pressured him into a no-contest plea (off‑record discussion)	Not resolved on direct appeal: record insufficient; claim may implicate privileged communications and requires evidentiary hearing
Ineffective assistance — failure to renew objections about evidence from count 2	State: counsel properly preserved objections and renewed them before the tape was played; victim testimony about other incidents was admissible and outside motion in limine	Bazaldua contends counsel failed to timely renew objections to testimony about the kitchen incident after he pled no contest to count 2	Rejected on record: counsel renewed objections before the recorded interview; motion in limine did not cover victim testimony, so failure to renew earlier would have lacked merit

Key Cases Cited

State v. Jones, 293 Neb. 452, 878 N.W.2d 379 (appellate standard for sufficiency review)
State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 (time/date is not an element in child sexual assault statutes)
State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (sentencing: factors and abuse-of-discretion standard)
State v. Nevels, 235 Neb. 39, 453 N.W.2d 579 (minimum portion of indeterminate sentence measures severity)
Strickland v. Washington, 466 U.S. 668 (two‑prong test for ineffective assistance of counsel)
State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (on direct appeal, ineffective-assistance claims must be raised if apparent from record; record sufficiency governs review)
State v. Rodriguez, 244 Neb. 707, 509 N.W.2d 1 (coaching relates to witness credibility and is for the jury)