State v. Molina

Respondent did not respond to the charges filed against
him and has failed to present any evidence of mitigating
circumstances.
Upon due consideration of the facts of this case, based on
respondent’s cumulative acts of misconduct, including conduct
that involved deceit for personal gain, the court finds that the
proper sanction is disbarment.
CONCLUSION
The judgment on the pleadings is granted in its entirety. It
is the judgment of this court that respondent should be and
is hereby disbarred from the practice of law, effective imme-
diately. Respondent is directed to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2007) and § 3-310(P) and Neb. Ct. R. § 3-323(B) within 60
days after an order imposing costs and expenses, if any, is
entered by the court.
Judgment of disbarment.
state of nebraska , appellee , v.
germai r. molina , appellant.
778 N.W.2d 713
Filed February 5, 2010. 	No. S-09-619.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
3. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court reviews the factual findings of
the lower court for clear error. With regard to the questions of counsel’s perform-
ance or prejudice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
an appellate court reviews such legal determinations independently of the lower
court’s decision.
4. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a
postconviction proceeding is procedurally barred is a question of law. When
reviewing a question of law, an appellate court resolves the question indepen-
dently of the lower court’s conclusion.
STATE v. mOLINA 	405
Cite as 279 Neb. 405
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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5. Postconviction: Appeal and Error. A motion for postconviction relief cannot
be used to secure review of issues which were known to the defendant and could
have been litigated on direct appeal.
6. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial counsel
is different from his or her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel’s ineffective performance which is known
to the defendant or is apparent from the record. Otherwise, the issue will be pro-
cedurally barred.
7. ____: ____. When claims of a trial counsel’s performance are procedurally
barred, an appellate court examines claims regarding trial counsel’s performance
only if the defendant assigns as error that appellate counsel was ineffective for
failing to raise trial counsel’s performance.
8. Postconviction. The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et
seq. (Reissue 2008), provides that postconviction relief is available to a prisoner
in custody under sentence who seeks to be released on the ground that there was
a denial or infringement of his constitutional rights such that the judgment was
void or voidable.
Appeal from the District Court for Hall County: James d.
livingston, Judge. Affirmed.
John H. marsh, of Knapp, Fangmeyer, Aschwege, Besse &
marsh, P.C., for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
H eavican, 	c.J., 	WrigHt, 	connolly, 	gerrard, 	stepHan,
mccormack, and miller-lerman, JJ.
WrigHt, J.
NATURE OF CASE
Germai R. molina was convicted of second degree murder
and child abuse resulting in the death of his daughter. His
convictions were affirmed by this court in State v. Molina, 271
Neb. 488, 713 N.W.2d 412 (2006) (Molina I). molina’s motion
for postconviction relief was denied without an evidentiary
hearing by the Hall County District Court, and he appeals.
SCOPE OF REVIEW
[1] A defendant requesting postconviction relief must estab-
lish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
State v. Glover, 278 Neb. 795, 774 N.W.2d 248 (2009).
406 	279 NEBRASKA REPORTS

[2,3] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact. Id.
When reviewing a claim of ineffective assistance of counsel,
an appellate court reviews the factual findings of the lower
court for clear error. With regard to the questions of counsel’s
performance or prejudice to the defendant as part of the two-
pronged test articulated in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate
court reviews such legal determinations independently of the
lower court’s decision. State v. Glover, supra.
[4] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. When reviewing a
question of law, an appellate court resolves the question inde-
pendently of the lower court’s conclusion. State v. Dunster, 278
Neb. 268, 769 N.W.2d 401 (2009).
FACTS
At approximately 3:30 a.m. on July 23, 2003, molina and
his wife, Diana (mrs. molina), took their daughter, also named
Diana, to a hospital in Grand Island, Nebraska. Diana, who
was 2 years 10 months old, was not breathing and had no
pulse. molina reportedly told the emergency room physician
that Diana had fallen down some stairs. Diana was pronounced
dead after about 30 minutes of attempted resuscitation.
molina was arrested at the hospital. He told police that the
day before Diana died, he discovered that she had urinated on
the floor. He spanked her with a belt and made her clean up the
urine. He said that when he told his wife what had happened,
she scolded Diana.
About 2:30 a.m. the next day, Diana woke up and said she
needed to use the bathroom. molina, his wife, and their two
daughters slept in the basement of a two-story house. The bath-
room was on the second floor. molina said that he took Diana
upstairs and that on the way back, she tripped and fell down
the stairs. Diana was unconscious when he reached her. He said
he splashed cold water on her face and rubbed alcohol on his
hands and then on her nose, but Diana was unresponsive. He
and mrs. molina attempted mouth-to-mouth resuscitation and
then took Diana to the hospital.
STATE v. mOLINA 	407
Cite as 279 Neb. 405

molina told police that Diana had stayed with her grand-
mother in El Salvador when he and his wife moved to Grand
Island. molina had brought Diana to Grand Island about 10
days prior to her death. He claimed that the marks on Diana’s
back were there when he picked her up in El Salvador and
were the result of injuries inflicted by mrs. molina’s cousin.
molina admitted to spanking Diana with a belt each of the
four times she had urinated in the bedroom, striking five or six
blows each time. He denied shaking her or striking her with
any object other than a belt. He also admitted to picking Diana
up by her hair several days earlier.
molina was charged with one count of first degree mur-
der and one count of child abuse resulting in death. He pled
not guilty.
mrs. molina testified pursuant to a plea agreement. In the
early morning approximately 24 hours before Diana’s death,
mrs. molina found molina sitting on the edge of the bed with a
belt. Diana was standing on an object that looked like a bucket,
and she had her arms in the air. She was naked and wet and
had marks on her body from the belt. molina told Diana not to
fall asleep and threatened that if she put her arms down, he was
going to hit her with the belt. molina told his wife that he was
punishing Diana because she had urinated in her crib.
molina made Diana stand in that position for about 3 hours,
during which time he hit her with the belt five times. mrs.
molina said she told molina to let Diana go to sleep, but he
refused. When Diana fell asleep and fell off the bucket, molina
put her back on her feet in the same position. Eventually,
molina put Diana in her crib.
When mrs. molina woke around 10 a.m., molina was again
making Diana stand with her arms raised and threatening that
if she dropped her arms, he would hit her with the belt. She
remained in that position for 21⁄2 to 3 hours. mrs. molina tes-
tified that she told molina he should stop punishing Diana.
molina said mrs. molina should stop talking and that if she
did not, he would spank Diana more. Diana spent most of
the day on her feet. molina later became angry and pulled
Diana by her hair, and a “bunch or a clump” of Diana’s hair
came out.
408 	279 NEBRASKA REPORTS

Around 8 p.m., Diana was allowed to drink some juice and
eat an apple. She fell off the bucket, and molina picked her up,
spanked her about five times, and then placed her on top of the
bucket, where she remained standing until mrs. molina went to
bed around midnight. mrs. molina slept intermittently. molina
made Diana run around the room while he hit her. If she fell,
he hit her repeatedly. mrs. molina later heard Diana screaming
and saw molina swinging Diana around and shaking her. mrs.
molina said it sounded like molina then picked Diana up and
dropped her to the floor 10 or 20 times. She saw molina hit
Diana hard in the stomach, and Diana was unresponsive.
Before the molinas took Diana to the hospital, molina
insisted on dressing Diana to try to hide the bruises that were
all over her body. mrs. molina said molina told her to say that
Diana had sustained the bruises in El Salvador.
molina testified that 2 days before Diana’s death, he found
that Diana had been injured and he put ice on her injuries. He
thought mrs. molina had inflicted the injuries, and he told her
that she had committed child abuse. The next day, he arrived
home around midnight. Diana woke him and said she had to
go to the bathroom. When he took Diana upstairs to use the
bathroom, she was limping and had some new bruises. As
they returned to the basement, Diana fell down the stairs. He
and his wife tried to revive her, but were unsuccessful, so they
took her to the hospital. molina claimed that mrs. molina
told him to tell the police that a cousin in El Salvador had
inflicted the bruises. molina denied that he had caused any of
Diana’s injuries.
The physician who treated Diana stated that her body was
covered from head to toe with bruising and swelling and that
her injuries were not consistent with a fall down the stairs. The
injuries appeared to have been caused by blunt force trauma
inflicted by a belt or similar object in the 24 or 36 hours prior
to her death.
The autopsy showed that the cause of Diana’s death was
blunt trauma to the head with acute subdural and subarachnoid
hemorrhage. The pathologist stated that the injuries could not
have been sustained as the result of an accident, that they were
sustained within 24 to 36 hours before Diana’s death, and that
STATE v. mOLINA 	409
Cite as 279 Neb. 405

they were all part of “the same beating.” Some of the bruises
were classified as “defensive wounds,” indicating that Diana
had tried to protect herself.
mrs. molina agreed to plead guilty to knowingly and inten-
tionally permitting child abuse resulting in serious bodily injury,
a Class III felony. In the plea agreement, she was to serve 4 to
20 years’ imprisonment.
molina was convicted of second degree murder and child
abuse resulting in death. He was sentenced to consecutive
terms of imprisonment of 80 years to life on each conviction.
He filed a timely notice of appeal, and his initial brief was
filed by trial counsel. Because molina wished to assert that he
received ineffective assistance of counsel, trial counsel moved
to withdraw. This court ordered the appointment of replace-
ment counsel, and the trial court appointed the Nebraska
Commission on Public Advocacy. We affirmed molina’s con-
victions in Molina I.
molina now seeks postconviction relief, alleging that he
received ineffective assistance of counsel in that counsel (1)
failed to object, move for a mistrial, and raise issues on appeal
concerning improper closing argument by the prosecutor; (2)
failed to object, request an appropriate instruction, and raise
on appeal issues related to intent; (3) failed to raise at trial
and on appeal that molina was subjected to double jeopardy or
multiple punishments by being prosecuted for both murder and
child abuse resulting in death; (4) failed to allege that the evi-
dence was insufficient and failed to raise that claim on appeal;
(5) failed to object at trial to the introduction of molina’s prior
convictions and to raise the claim on appeal; (6) failed to offer
at trial an edited portion of a videotaped statement given by
mrs. molina; (7) failed to raise on appeal that the sentences
were excessive and/or that molina was subjected to multiple
punishments; and (8) failed to request continuances to locate
witness maria Alvarez.
The court found no ineffective assistance of counsel related
to the failure to object or move for a mistrial concerning the
prosecutor’s closing argument. The court found the issues of
intent in the jury instructions, double jeopardy, multiple pun-
ishments for one crime, and excessiveness of the sentences had
410 	279 NEBRASKA REPORTS

been raised on direct appeal. It found that the evidence was
sufficient to convict and that failure to raise the issue on appeal
did not raise a probability that the result would have been dif-
ferent. It found there was no evidence that molina’s prior con-
victions had been mentioned at trial.
The court also found counsel was not ineffective for failing
to offer an edited portion of the videotaped statement given
by mrs. molina. molina argued the videotape would have
shown inconsistencies with his wife’s trial testimony. The
court determined there was no need for the videotape after wit-
nesses had been cross-examined concerning the alleged incon-
sistent statements.
Finally, the court found that counsel was not ineffective
in failing to request a continuance to secure the testimony of
Alvarez, because there was no evidence that a continuance
would have been granted or that Alvarez’ testimony would have
affected the outcome of the trial.
The court found no merit to any of molina’s claims and
overruled his motion for postconviction relief. He appeals.
ASSIGNmENTS OF ERROR
molina claims, summarized and restated, that the court erred
in overruling his motion for postconviction relief by (1) finding
there was no prosecutorial misconduct in closing arguments;
(2) finding that trial counsel’s failure to object or move for
a mistrial based on the closing arguments was not ineffective
assistance of counsel; (3) finding that issues related to intent
were raised on direct appeal; (4) finding that counsel was not
ineffective in failing to offer an edited portion of a videotaped
statement; (5) finding that there was no likelihood of prevailing
on an excessive sentence claim; and (6) finding no evidence
that a continuance would have been granted or that Alvarez’
testimony would have given rise to a likelihood or probability
of a different outcome.
ANALYSIS
A defendant requesting postconviction relief must establish
the basis for such relief, and the findings of the district court
will not be disturbed unless they are clearly erroneous. State v.
Glover, 278 Neb. 795, 774 N.W.2d 248 (2009).
STATE v. mOLINA 	411
Cite as 279 Neb. 405

closing arguments
The court found no merit to molina’s claim that the pros-
ecution made improper and inflammatory remarks in closing
argument and that molina’s counsel should have objected or
moved for a mistrial. The court found that the remarks did not
prejudice molina’s right to a fair trial and that counsel’s deci-
sion not to object or move for a mistrial did not rise to the level
of inadequate representation. The issue before the jury was the
death of a child, and the prosecutor’s comments were intended
to question the credibility of molina’s claim that his wife was
the perpetrator. The court noted that the jury was instructed
more than once during the trial that the attorneys’ statements
were not evidence.
In arguing that the court erred, molina cites as improper
four comments made by the prosecutor during closing argu-
ments. First, the prosecutor stated: “You know, I’m appalled,
I’m appalled, ladies and gentlemen, by the cynicism of the
defense in this case. They want you to buy into this story so
that [molina] can get away with murder and I hope you don’t
let that happen.”
Second, concerning molina’s expert witness’ testimony, the
prosecutor stated:
[T]his is kind of ingenuous, and I think one of the cynical
things about what’s been done here, this whole well-if-
it’s-not-working-out-very-good, we’ll just say these other
injuries that we today decide to tell you [mrs. molina]
did, that it happened [that Diana’s] at the top of the
stairs when her body shuts down. What are the odds of
that happening? They are astronomical. I submit to you
it’s beyond the likelihood of any other event known to
man that it would just happen she’s at the top of the
stairs close enough to the edge of the stairs, apparently,
without taking a step, she just tilts over and falls all the
way down.
Next, the prosecutor said:
I think what the stair fall is is the classic example of
the big lie, and yeah, [molina has] been consistent in it
because he’s trapped into that because he’s on tape, but
the big lie, if you’ll remember, is a concept that’s been
412 	279 NEBRASKA REPORTS

used in different political situations around the world
where you say something outrageous and you keep say-
ing it over and over and over again, and the bigger the
lie, the more outrageous what you are saying is and the
more you repeat it, the more you hope people will believe
it. Hope it doesn’t work, but that’s what this is. It’s the
big lie.
Finally, the prosecutor said, “[T]he poison in this case is the
poison in that man’s heart; it’s not in some aspirin bottle.”
[5] molina did not assign prosecutorial misconduct as error
in his direct appeal. A motion for postconviction relief can-
not be used to secure review of issues which were known
to the defendant and could have been litigated on direct
appeal. See State v. Lotter, 278 Neb. 466, 771 N.W.2d 551
(2009). Thus, this claim is procedurally barred to the extent it
argues the prosecutor made improper comments during clos-
ing argument.
[6,7] molina also argues that trial counsel was ineffec-
tive in failing to object to the prosecutor’s comments or to
ask for a mistrial based on the closing argument. molina
had two attorneys on direct appeal. His trial counsel filed
an initial brief and then withdrew. Different counsel filed a
supplemental brief. We have held that “[w]hen a defendant’s
trial counsel is different from his or her counsel on direct
appeal, the defendant must raise on direct appeal any issue
of trial counsel’s ineffective performance which is known
to the defendant or is apparent from the record.” State v.
Duncan, 278 Neb. 1006, 1014, 775 N.W.2d 922, 928 (2009).
Otherwise, the issue will be procedurally barred. Id. When
claims of a trial counsel’s performance are procedurally
barred, this court examines claims regarding trial counsel’s
performance only if the defendant assigns as error that appel-
late counsel was ineffective for failing to raise trial counsel’s
performance. Id.
On direct appeal, molina did not allege that trial counsel
was ineffective in failing to object to the prosecutor’s remarks
or ask for a mistrial based on closing arguments. This claim
was known to molina at the time of the direct appeal, and it is
procedurally barred.
STATE v. mOLINA 	413
Cite as 279 Neb. 405

In addition, molina has not assigned any error to appellate
counsel’s performance by alleging that appellate counsel was
ineffective for failing to assign error to trial counsel’s perform-
ance. molina’s assigned errors related to closing arguments
have no merit.
intent
molina contends that the court was wrong in finding that
the question of the inclusion of intent in the jury instruc-
tions was raised on direct appeal. Whether a claim raised in
a postconviction proceeding is procedurally barred is a ques-
tion of law. When reviewing a question of law, an appellate
court resolves the question independently of the lower court’s
conclusion. State v. Dunster, 278 Neb. 268, 769 N.W.2d
401 (2009).
molina’s argument seems to be that the jury instructions
were ambiguous as to whether intent is an element of the
crime of child abuse resulting in death or serious bodily injury.
molina claims that child abuse is a general intent crime and
that first and second degree murder are specific intent crimes.
He argues that trial counsel was ineffective in failing to object
to the jury instructions concerning intent.
On direct appeal, molina assigned as error the failure to
instruct the jury on the lesser-included offenses of child abuse
resulting in death. See Molina I. We concluded that the district
court erred in failing to instruct the jury on the lesser-included
offense of negligent child abuse. However, we found that the
failure to give the instruction was not prejudicial. The jury
was given the opportunity to determine whether molina acted
with or without intent, and it determined that he acted with the
intent to kill. The jury could not have concluded that molina
acted without intent with respect to the child abuse charge.
Error in failing to instruct the jury on the lesser-included
offense was harmless, because the jury necessarily decided the
factual question of intent adversely to molina.
molina again attempts to assign as error the jury instruc-
tions. This issue was decided on direct appeal and is now pro-
cedurally barred.
414 	279 NEBRASKA REPORTS

To the extent that molina’s argument can be interpreted
to claim that counsel was ineffective in relation to the jury
instructions, it has no merit. We concluded in Molina I that the
refusal to give the instruction was not prejudicial to molina.
videotaped statement
molina alleged that trial counsel was ineffective in failing
to offer an edited version of a videotaped statement given
by mrs. molina. The court determined that the videotape
raised only one relevant issue: whether any inconsistency
between mrs. molina’s statements in the videotape and her
testimony at trial was sufficient to convince the jury that she
was the perpetrator of the crime. Any issue as to ineffective
assistance of counsel, including counsel’s failure to offer an
edited portion of the statement, could have been raised on
direct appeal.
The videotape issue was raised on direct appeal. See Molina I.
We found no abuse of discretion in the trial court’s refusal to
receive the entire videotape into evidence. This assigned error
is without merit and is procedurally barred.
excessive sentences
molina next argues that the court erred in finding that there
was no likelihood he would have prevailed on an excessive sen-
tence claim. molina was sentenced to 80 years to life in prison
for second degree murder and to 80 years to life in prison for
child abuse resulting in death, to be served consecutively. He
argues that imposing two consecutive life sentences in a case
involving one death is excessive and an abuse of discretion.
molina’s claim concerning excessiveness of the sentences is
procedurally barred because he could have raised it on direct
appeal. See State v. Sepulveda, 278 Neb. 972, 775 N.W.2d 40
(2009). Any alleged ineffective assistance of counsel related to
the sentences is also barred because it could have been raised
by appellate counsel in the supplemental brief. See State v.
Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).
In addition, molina has not assigned any error to appellate
counsel’s performance by alleging that appellate counsel was
STATE v. mOLINA 	415
Cite as 279 Neb. 405

ineffective for failing to assign error to trial counsel’s perform-
ance. molina’s assignment of error has no merit.
continuance
Finally, molina argues that the court erred in finding that
counsel was not ineffective in failing to ask for a continuance
to locate Alvarez. The court found no evidence that a con-
tinuance would have been granted if requested or that Alvarez’
testimony would have assisted the defense or affected the out-
come of the trial. We agree.
This claim is also procedurally barred. The failure to request
a continuance could have been raised on direct appeal by
appellate counsel. See State v. Sepulveda, supra. Also, molina
has not assigned any error to appellate counsel’s performance
by alleging that appellate counsel was ineffective for failing to
assign error to trial counsel’s performance. molina’s assign-
ment of error has no merit.
CONCLUSION
[8] 	The 	Nebraska 	Postconviction Act, 	Neb. 	Rev. 	Stat.
§ 29-3001 et seq. (Reissue 2008), provides that postconviction
relief is available to a prisoner in custody under sentence who
seeks to be released on the ground that there was a denial or
infringement of his constitutional rights such that the judgment
was void or voidable. State v. York, 278 Neb. 306, 770 N.W.2d
614 (2009).
molina has not demonstrated any basis for postconviction
relief. The district court was not clearly wrong in denying post-
conviction relief, and its decision is affirmed.
affirmed.
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