State v. Garibo, A-16-224

Background

Victim (Y.M.), age 13 at disclosure, alleged long‑term sexual abuse by Armando Garibo, her mother’s partner who raised her since age 2.
Y.M. initially disclosed abuse to a pediatrician and in a forensic interview, describing penetration and prolonged abuse beginning at age 4–5.
Garibo was interviewed by police (with a Spanish translator), initially denied, then confessed on videotape to one incident of digital and penile penetration about five years earlier.
Y.M. later recanted at trial, blaming family disruption and pressure from her mother; treatment providers testified to her earlier consistent disclosures and emotional distress.
Jury convicted Garibo of first‑degree sexual assault of a child; he was sentenced to 40–50 years.
On appeal Garibo challenged the denial of a directed verdict (insufficient evidence) and raised multiple ineffective‑assistance‑of‑counsel claims; the Nebraska Court of Appeals affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Garibo)	Held
Sufficiency / Directed verdict	Evidence (victim's prior disclosures, counselor and pediatrician testimony, and Garibo’s confession) supports submission to jury	Y.M. recanted at trial and there was no physical corroboration; conviction should be directed as a matter of law	Affirmed: evidence viewed favorably to State was sufficient; confession plus prior consistent statements and explanation for recantation overcame lack of physical evidence
Ineffective assistance — failure to object to interrogator testimony	Officer’s testimony about suspect behavior was expert opinion and admissible	Failure to object was deficient and prejudicial	Held for State: counsel not ineffective; officer qualified to give opinion on interrogation behavior
Ineffective assistance — failure to object to counselor’s testimony / cross‑examination	Counselor’s testimony about victim’s consistent disclosures was admissible and cumulative to other evidence	Counsel should have objected more / cross‑examined further	Counsel’s performance not shown deficient on record; counselor’s statements were properly founded and any error harmless; record insufficient to assess trial strategy for cross‑examination
Ineffective assistance — communication / jail calls	Interpreter was provided at trial and counsel used an interpreter for plea discussion	Counsel failed to communicate in language Garibo understood; impaired participation and right to testify	Record insufficient to resolve on direct appeal as to adequacy of communication or content of jail calls; claim preserved for postconviction review if appropriate

Key Cases Cited

State v. Duncan, 293 Neb. 359, 878 N.W.2d 363 (2016) (standard for sufficiency of evidence and directed verdict review)
State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013) (ineffective assistance presents mixed question of law and fact)
State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011) (two‑part Strickland test articulated for Nebraska courts)
State v. Poe, 284 Neb. 750, 822 N.W.2d 831 (2012) (courts may address deficiency or prejudice prong in either order)
State v. York, 273 Neb. 660, 731 N.W.2d 597 (2007) (procedural rules on raising ineffective assistance on direct appeal)
State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016) (record adequacy determines whether ineffective‑assistance claims can be resolved on direct appeal)
State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006) (expert opinion admissibility standards)
State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014) (harmless‑error analysis where evidence is cumulative)