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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE V. GARCIA-PELICO

Cite as 31 Neb. App. 707

State of Nebraska, appellee, v. 

Ariel Garcia-Pelico, appellant.

___ N.W.2d ___

Filed March 28, 2023. No. A-22-535.

1. Criminal Law: Trial. In criminal prosecutions, the withdrawal of a rest 

in a trial on the merits is within the discretion of the trial court.

2. Sentences: Appeal and Error. A sentence imposed within the statutory 

limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.

3. Judges: Words and Phrases. A judicial abuse of discretion exists 

only when the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying a just 

result in matters submitted for disposition.

4. Sentences: Appeal and Error. When sentences imposed within statutory limits are alleged on appeal to be excessive, the appellate court 

must determine whether the sentencing court abused its discretion in 

considering well-established factors and any applicable legal principles.

5. Sentences. The relevant factors for a sentencing judge to consider 

when imposing a sentence are the defendant’s (1) age, (2) mentality, (3) 

education and experience, (4) social and cultural background, (5) past 

criminal record or record of law-abiding conduct, and (6) motivation for 

the offense, as well as (7) the nature of the offense and (8) the amount 

of violence involved in the commission of the crime.

6. ____. The sentencing court is not limited to any mathematically applied 

set of factors, but the appropriateness of the sentence is necessarily a 

subjective judgment that includes the sentencing judge’s observations 

of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.

Appeal from the District Court for Hall County: Patrick M. 

Lee, Judge. Affirmed.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/04/2023 12:04 AM CDT
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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE V. GARCIA-PELICO

Cite as 31 Neb. App. 707

Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Pirtle, Chief Judge, and Riedmann and Arterburn, 

Judges.

Pirtle, Chief Judge.

INTRODUCTION

Ariel Garcia-Pelico was convicted in Hall County District 

Court of first degree sexual assault of a child and sentenced to 

45 to 60 years’ imprisonment. He appeals his conviction, arguing that the court erred in allowing the State to reopen its case 

after it rested and arguing that his sentence is excessive. Based 

on the reasons that follow, we affirm.

BACKGROUND

On August 4, 2021, Garcia-Pelico was charged by information with first degree sexual assault of a child, a Class IB 

felony. The victim, C.B., was the 13-year-old daughter of a 

woman Garcia-Pelico was having an affair with.

At trial, the State presented the testimony of five witnesses and then rested. Garcia-Pelico’s counsel moved for a 

directed verdict, stating, “We contend that the State did not 

submit sufficient evidence in its case in chief for the Court to 

believe that sexual penetration, as defined under the statute, 

occurred.” The court asked counsel whether the motion was 

“based solely on the element of sexual penetration.” Counsel 

replied, “We contend that the State did [not] meet its burden 

of proof, but I just wanted to draw specific direction to that 

specific element.” In response, the State argued that it had 

established every element of the offense, including GarciaPelico’s age. The court then asked the State how it established 

Garcia-Pelico’s age. The State asked for a “moment” and then 
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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE V. GARCIA-PELICO

Cite as 31 Neb. App. 707

responded that it might not have established Garcia-Pelico’s 

age. At that point, the State asked for leave to reopen its case 

in order to inquire as to Garcia-Pelico’s age. Garcia-Pelico 

opposed the motion. The court noted that it could allow the 

State to reopen its case under certain circumstances. It took a 

recess to review relevant case law, and upon returning to the 

bench, the court granted the State’s motion.

The State then recalled a police officer who testified as 

to Garcia-Pelico’s date of birth. The State then rested, and 

Garcia-Pelico again moved for a directed verdict. The court 

overruled the motion, and Garcia-Pelico presented evidence 

in his defense, which included his son’s testimony and his 

own testimony.

The case was ultimately submitted to the jury, which returned 

a verdict of guilty. The district court accepted the jury’s verdict and adjudged Garcia-Pelico guilty of the offense. It also 

ordered a presentence investigation report and a sex offender 

evaluation. The court subsequently sentenced Garcia-Pelico to 

a term of 45 to 60 years’ imprisonment.

ASSIGNMENTS OF ERROR

Garcia-Pelico assigns that the district court erred in (1) 

allowing the State to reopen its case in chief after it had rested 

and (2) imposing an excessive sentence.

STANDARD OF REVIEW

[1] In criminal prosecutions, the withdrawal of a rest in a 

trial on the merits is within the discretion of the trial court. 

State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).

[2,3] A sentence imposed within the statutory limits will not 

be disturbed on appeal in the absence of an abuse of discretion 

by the trial court. State v. Morton, 310 Neb. 355, 966 N.W.2d 

57 (2021). A judicial abuse of discretion exists only when 

the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying 

a just result in matters submitted for disposition. Id.
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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE V. GARCIA-PELICO

Cite as 31 Neb. App. 707

ANALYSIS

State’s Motion to Reopen Its Case.

Garcia-Pelico first assigns that the district court erred by 

allowing the State to reopen its case after it had rested. More 

specifically, he claims the court abdicated its role as a neutral 

fact finder by alerting the State that it had failed to meet its 

burden of proof regarding Garcia-Pelico’s age and then allowing the State to reopen its case to cure its deficiency. He contends that the State would not have moved to reopen its case 

without the prompting by the district court and that therefore, 

the court abused its discretion in granting the State’s motion to 

reopen its case.

In granting the State’s motion, the court relied on State 

v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014). In Bol, the 

Nebraska Supreme Court affirmed the trial court’s decision 

permitting the State to withdraw its rest and present additional 

evidence. The State realized after resting its case that it had 

forgotten to admit a stipulation that proved one of the charges 

and asked the court for leave to reopen its case in chief to 

submit the stipulation, which the court allowed. See id. On 

appeal, the Supreme Court noted that allowing the withdrawal 

of rest to fill in gaps in proof is proper, as long as the court 

does not advocate for or advise the State to withdraw its rest. 

Id. Because the State, rather than the trial court, had realized 

the lack of proof, the Supreme Court determined the trial 

court did not improperly abdicate its role as a neutral fact 

finder and did not abuse its discretion in permitting the State 

to withdraw its rest to put on additional evidence. Id.

Garcia-Pelico argues that the present case is similar to State 

v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000), overruled 

on other grounds, State v. Nelson, 262 Neb. 896, 636 N.W.2d 

620 (2001), overruled on other grounds, State v. Vann, 306 

Neb. 91, 944 N.W.2d 503 (2020), where this court determined 

the trial court abused its discretion in allowing the State to 

withdraw its rest. In Gray, the defendant was found guilty 

of forgery and an enhancement hearing was held prior to his 
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STATE V. GARCIA-PELICO

Cite as 31 Neb. App. 707

sentencing. At that hearing, the State offered three exhibits 

as evidence of his prior convictions and then rested. The 

defendant was then granted a continuance. Before the hearing 

resumed, the court, on its own motion, notified all parties that 

the exhibits offered by the State were not sufficient to prove 

the prior convictions, because they contained no showing that 

the defendant had knowingly and intelligently waived counsel 

at the time he pled to the convictions. After receiving this notification from the court, the State sought to withdraw its rest to 

present additional evidence, and the court allowed it to do so. 

On appeal, this court concluded the trial court had abused its 

discretion in allowing the State to withdraw its rest because 

by informing the State that its evidence was insufficient, the 

court had “departed from his role as neutral fact finder.” State 

v. Gray, 8 Neb. App. at 992, 606 N.W.2d at 495.

We conclude that the present case is more like State v. Bol, 

supra, than State v. Gray, supra, but even more comparable to 

State v. McKay, 15 Neb. App. 169, 723 N.W.2d 644 (2006). In 

McKay, the defendant was charged with assault by a confined 

person. After the State rested its case, the defendant moved for 

discharge, arguing that the State failed to present any evidence 

that he was “‘legally’” confined at the time of the incident, 

an element of the offense. Id. at 171, 723 N.W.2d at 646. The 

court commented that the State needed to show “‘how he’s 

there, how it is not by mistake or some other process that he is 

there.’” Id. The court further commented that “‘[t]o say that a 

correctional guard can testify to the legality of his detainment 

is a stretch’” and that the State had not carried its burden. Id. 

Regardless, the court granted the State leave to research the 

issue and adjourned for the day. The next day the State argued, 

as one alternative, that it should be allowed to reopen its case 

and present additional evidence. The court again commented 

that the State had “‘wholly failed to show legal confinement,’” 

but it granted the State leave to reopen its case. Id. at 172, 723 

N.W.2d at 647.
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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE V. GARCIA-PELICO

Cite as 31 Neb. App. 707

On appeal, this court concluded that the trial court in 

McKay did not abuse its discretion in allowing the State to 

withdraw its rest. We found that the trial court did not become 

an advocate for the State, did not raise on its own motion any 

alleged insufficiency of the State’s evidence, and did not raise 

on its own motion the issue of the sufficiency of the evidence. 

Rather, the court was presented with the issue as raised by 

the defendant, and the court decided that issue. We further 

noted that the evidence that the State had adduced prior to 

resting was not clearly insufficient to demonstrate legal confinement. As such, we found that allowing the State to withdraw its rest did not actually result in the filling of gaps in 

the evidence.

In the present case, after the State rested and Garcia-Pelico 

moved for a directed verdict, the State argued that it had 

established every element of the offense, specifically mentioning Garcia-Pelico’s age. The court then asked the State to 

explain how it had established Garcia-Pelico’s age, at which 

point the State realized it had neglected to present direct evidence of his birth date and asked to reopen its case to present that evidence. As in State v. McKay, supra, the court did 

not raise any alleged insufficiency of the State’s evidence on 

its own motion and did not raise the issue of the sufficiency 

of the evidence on its own motion. Instead, the issue was 

raised by Garcia-Pelico. Further, the court did not advocate 

for or advise the State to withdraw its rest, but, rather, it 

allowed the withdrawal of rest to fill potential gaps in proof. 

See State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014). We 

note, as we did in McKay, that the record reveals that the 

State did adduce circumstantial evidence of Garcia-Pelico’s 

age. For example, the State presented evidence that GarciaPelico was married, had a 16-year-old son, and was dating 

a woman with three children, one of whom was a teenager. 

Moreover, the jury was able to observe Garcia-Pelico during 

the course of trial and consider the circumstantial evidence 

presented regarding his age in conjunction with his physical 
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STATE V. GARCIA-PELICO

Cite as 31 Neb. App. 707

appearance. See State v. Lauritsen, 199 Neb. 816, 261 N.W.2d 

755 (1978). On the facts before us, the court did not improperly abdicate its role as a neutral fact finder and did not abuse 

its discretion in allowing the State to withdraw its rest to put 

on additional evidence.

Excessive Sentence.

[4] Garcia-Pelico next assigns that the district court erred by 

imposing an excessive sentence. It is well established that an 

appellate court will not disturb sentences within the statutory 

limits unless the district court abused its discretion in establishing the sentences. State v. Morton, 310 Neb. 355, 966 N.W.2d 

57 (2021). When sentences imposed within statutory limits 

are alleged on appeal to be excessive, the appellate court must 

determine whether the sentencing court abused its discretion in 

considering well-established factors and any applicable legal 

principles. Id.

[5,6] The relevant factors for a sentencing judge to consider 

when imposing a sentence are the defendant’s (1) age, (2) 

mentality, (3) education and experience, (4) social and cultural 

background, (5) past criminal record or record of law-abiding 

conduct, and (6) motivation for the offense, as well as (7) the 

nature of the offense and (8) the amount of violence involved 

in the commission of the crime. Id. The sentencing court is 

not limited to any mathematically applied set of factors, but 

the appropriateness of the sentence is necessarily a subjective 

judgment that includes the sentencing judge’s observations of 

the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. Id.

Garcia-Pelico was convicted of a Class IB felony. See Neb. 

Rev. Stat. § 28-319.01(2) (Reissue 2016). Statutory sentencing guidelines for this particular Class IB felony provide for 

a maximum sentence of life imprisonment and a mandatory 

minimum of 15 years’ imprisonment. Id.; Neb. Rev. Stat. 

§ 28-105 (Cum. Supp. 2022). The court sentenced GarciaPelico to 45 to 60 years’ imprisonment. The sentence imposed 
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STATE V. GARCIA-PELICO

Cite as 31 Neb. App. 707

by the court was within the statutory limits, so we must only 

determine whether the court abused its discretion in establishing the sentence.

At the sentencing hearing, the court heard argument from 

counsel and a statement from C.B.’s mother. Prior to imposing sentence, the court stated that it reviewed the presentence 

investigation report, as well as the addendum and the sex 

offender evaluation. It also reviewed the information concerning Garcia-Pelico’s age, mentality, education and experience, 

social and cultural background, past criminal record, record of 

law-abiding conduct, and motivation for the offense, as well 

as the nature of the offense and the nature of any violence 

involved in the commission of the offense. The court further 

noted that Garcia-Pelico was 40 years old, and the victim was 

13 years old, and that he had taken no accountability for his 

actions and shown no remorse. The court found Garcia-Pelico 

had no credibility.

The sentence imposed by the district court was not an abuse 

of discretion. The court reviewed the presentence investigation 

report, reviewed the sex offender evaluation, and considered 

all the appropriate sentencing factors. There is nothing in 

the record to indicate the court considered any inappropriate 

factors in determining the sentence to impose. As a result, 

Garcia-Pelico’s sentence is not excessive and his assignment 

of error fails.

CONCLUSION

We conclude that the district court did not abuse its discretion in allowing the State to reopen its case after it rested and 

did not impose an excessive sentence. The judgment of the 

district court is affirmed.

Affirmed.