Decisions of the Nebraska Court of Appeals

STATE v. COBOS 887

Cite as 22 Neb. App. 887

otherwise proved. Thus, while the district court erred in concluding that inverse condemnation required an actual physical 

taking, it did not err in finding that there were no genuine 

issues of material fact, dismissing 6224 Fontenelle’s motion 

for summary judgment, and granting MUD’s motion for summary judgment.

CONCLUSION

In conclusion, we find that summary judgment in this case 

is proper, although for reasons different from those of the district court. We find that contrary to the district court’s findings, 

an actual physical taking or physical damage is not required 

in order to receive just compensation in an inverse condemnation action. However, we find that a diminution in property 

value alone is not a taking or damaging of the property, but, 

instead, is a measure of just compensation when such taking 

or damaging is otherwise proved. 6224 Fontenelle has failed 

to show that MUD engaged in a taking or damaging as a matter of law, and there exist no genuine issues of material fact. 

As such, we affirm the order of the district court dismissing 

6224 Fontenelle’s motion for summary judgment and granting 

MUD’s motion for summary judgment.

Affirmed.

State of Nebraska, appellee, v. 

Richard R. Cobos, Jr., appellant.

___ N.W.2d ___

Filed May 5, 2015. No. A-14-505.

1. Jury Instructions: Proof: Appeal and Error. To establish reversible error from 

a court’s refusal to give a requested instruction, an appellant has the burden to 

show that (1) the tendered instruction is a correct statement of the law, (2) the 

tendered instruction is warranted by the evidence, and (3) the appellant was 

prejudiced by the court’s refusal to give the tendered instruction.

2. Criminal Law: Evidence: Proof. In order to justify an alibi instruction, there 

must be evidence that the defendant was at some other place during the commission of the crime for a length of time that it was impossible for him to have been 
Decisions of the Nebraska Court of Appeals

888 22 NEBRASKA APPELLATE REPORTS

at the place where the crime was committed, either before or after the time he 

was at such other place.

3. Jury Instructions: Convictions: Appeal and Error. Before an error in the giving of instructions can be considered as a ground for reversal of a conviction, the 

error must be considered prejudicial to the rights of the defendant.

4. Jury Instructions: Appeal and Error. In reviewing a claim of prejudice from 

jury instructions given or refused, an appellate court must read the instructions 

together, and if, taken as a whole, they correctly state the law, are not misleading, 

and adequately cover the issues supported by the pleadings and evidence, there is 

no prejudicial error.

5. Jury Instructions. In construing an individual jury instruction, the instruction 

may not be judged in artificial isolation but must be viewed in the context of the 

overall charge to the jury considered as a whole.

6. Sentences: Evidence. A sentencing court has broad discretion as to the source 

and type of evidence or information that it may use in determining the kind and 

extent of the punishment imposed within the limits fixed by statute.

7. Sentences: Probation and Parole. When attempting to determine whether the 

defendant is a proper candidate for probation and rehabilitation, the court, of 

necessity, must consider whether the defendant acknowledges his or her guilt.

8. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal 

case, a motion for new trial 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.

9. Records: Appeal and Error. Where allegedly prejudicial remarks of counsel do 

not appear in the bill of exceptions, an appellate court is precluded from considering an assigned error concerning such remarks.

10. Criminal Law: Evidence: Appeal and Error. In reviewing a sufficiency of the 

evidence claim, whether the evidence is direct, circumstantial, or a combination 

thereof, the standard is the same: An appellate court does not resolve conflicts in 

the evidence, pass on the credibility of witnesses, or reweigh the evidence; such 

matters are for the finder of fact. The relevant question for an appellate court is 

whether, after viewing the evidence in the light most favorable to the prosecution, 

any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.

Appeal from the District Court for Scotts Bluff County: Leo

Dobrovolny, Judge. Affirmed.

Bell Island, of Island & Huff, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and George R. Love for 

appellee.

Irwin, Riedmann, and Bishop, Judges.
Decisions of the Nebraska Court of Appeals

STATE v. COBOS 889

Cite as 22 Neb. App. 887

Riedmann, Judge.

INTRODUCTION

Richard R. Cobos, Jr., appeals from his conviction and 

sentence in the district court for Scotts Bluff County of third 

degree sexual assault of a child. Finding no merit to Cobos’ 

assigned errors, we affirm.

BACKGROUND

Cobos was charged with third degree sexual assault of a 

child based on reports that he had subjected his sister-in-law, 

M.M., to sexual contact. At trial, M.M. testified that the assault 

occurred while she and her twin sister were staying with their 

older sister, Valerie Cobos (Valerie), and her husband, Cobos, 

in Gering, Nebraska, during August 2012. M.M. was approximately 12 years old at that time, while Cobos was approximately 36 years old.

At the time of the assault, Cobos had recently become 

employed as a teacher and football coach in Mitchell, Nebraska, 

which was approximately 12 miles from his home in Gering. 

Although school had not yet started, Cobos had football practice at 7 a.m. each day, and he had to be there at least an hour 

early to get things ready. In addition, since this was Cobos’ 

first year at a new school, he had been going even earlier to 

prepare his classroom for the beginning of the school year. 

Valerie testified that it was not unusual for Cobos to get up 

in the middle of the night to go to work and that once he 

left the house, he would not come home until the end of the 

school day.

On the morning of the assault, Cobos left the house at 

approximately 2 a.m. M.M. and her twin sister were still up 

talking in the living room when he left. Cobos told them to 

let Valerie know that he was going to school to work in his 

classroom. The girls fell asleep on the couch in the living room 

around 4 a.m.

M.M. testified that she woke up later that morning to 

Cobos’ touching her breasts underneath her bra. She knew 

it was early morning because she looked out the window 

above the couch and saw the sun starting to rise. According 
Decisions of the Nebraska Court of Appeals

890 22 NEBRASKA APPELLATE REPORTS

to M.M., she tried to go back to sleep, but Cobos continued 

to touch her and tried to put his hand underneath her underwear. M.M. turned away and Cobos stopped, but then he put 

his hands back underneath her bra. After touching her breasts 

for a little while longer, Cobos kissed M.M. “directly on the 

lips and said good morning,” then left the house. M.M. testified that she looked at the person touching her and saw that 

it was Cobos.

A jury instruction conference was held in the district court, 

during which defense counsel requested an alibi instruction. 

The court overruled the request, finding that the evidence did 

not support such instruction. After the jury was instructed, the 

case was submitted for deliberation. The jury found Cobos 

guilty beyond a reasonable doubt of third degree sexual assault 

of a child.

Cobos subsequently filed a motion for new trial alleging, in part, that the prosecutor engaged in misconduct by 

referring to Cobos as a “predator” during closing arguments. 

Because the closing arguments were not recorded, defense 

counsel offered an affidavit stating that during closing arguments, the prosecutor referred to Cobos as a predator and 

preying on those weaker than him; that such statement was 

objected to by defense counsel on grounds of relevance and 

facts not in evidence; and that such objection was overruled. 

The State objected to the exhibit on the basis that it was not 

the best evidence, and challenged the accuracy of statements 

contained in the affidavit. The district court received the affidavit into evidence but ultimately overruled the motion for 

new trial.

The case then proceeded to sentencing. During the sentencing hearing, defense counsel objected to the court’s considering 

statements in the presentence investigation report indicating 

that Cobos declined to comment on the allegations. The district court overruled the objection. Before imposing Cobos’ 

sentence, the district court indicated that it had reviewed the 

presentence investigation report and considered the evidence 

presented at trial, as well as Cobos’ age, his lack of a prior 

criminal history, his education, the nature of the offense, the 
Decisions of the Nebraska Court of Appeals

STATE v. COBOS 891

Cite as 22 Neb. App. 887

lack of physical violence involved in the commission of the 

offense, the harm caused to the victim, the lack of justification 

for the offense, Cobos’ attitude, and the unlikelihood of recurrence. Regarding Cobos’ attitude, the court stated:

I don’t have [Cobos’] written . . . version; however, 

there is an interview of [Cobos] that comes through in 

the pre-sentence investigation. I think [his] attitude . . . 

overall is good, but it doesn’t show, that I can see, an 

acceptance of responsibility for what the jury found were 

his acts and some sort of moving forward on what to do 

about that.

Finally, the court noted that although Cobos would likely be 

successful in completing probation, it found that he was in 

need of treatment, which could best be provided in a correctional setting, and that a sentence other than imprisonment 

would depreciate the seriousness of the crime and promote 

disrespect for the law. It then imposed a sentence of 24 to 60 

months’ imprisonment. This timely appeal followed.

ASSIGNMENTS OF ERROR

Cobos assigns that the district court erred in (1) failing to 

instruct the jury on Cobos’ alibi defense, (2) enhancing Cobos’ 

sentence based on his assertion of his constitutional right to 

remain silent, (3) overruling Cobos’ motion for new trial based 

on prosecutorial misconduct, and (4) finding sufficient evidence to support the jury’s guilty verdict.

ANALYSIS

Refusal to Give Alibi Instruction.

Cobos first assigns that the district court erred in failing to 

instruct the jury on his alibi defense. Cobos argues that his 

requested alibi instruction should have been given because 

there was evidence showing that he was at work in another 

town 12 miles away at the time of the assault.

[1] To establish reversible error from a court’s refusal to 

give a requested instruction, an appellant has the burden to 

show that (1) the tendered instruction is a correct statement 

of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s 
Decisions of the Nebraska Court of Appeals

892 22 NEBRASKA APPELLATE REPORTS

refusal to give the tendered instruction. State v. Planck, 289 

Neb. 510, 856 N.W.2d 112 (2014). We find that although 

Cobos’ proposed instruction was a correct statement of the law 

and was warranted by the evidence, Cobos was not prejudiced 

by the court’s refusal to give the requested instruction because 

the jury was instructed that the State had the burden of proving 

each and every element of the crime charged, which necessarily required proof of Cobos’ presence at the time and place of 

the crime charged.

[2] In order to justify an alibi instruction, there must be 

evidence that the defendant was at some other place during 

the commission of the crime. See State v. El-Tabech, 225 Neb. 

395, 405 N.W.2d 585 (1987). In addition, the evidence must 

show that the defendant was at such other place a length of 

time that it was impossible for him to have been at the place 

where the crime was committed, either before or after the time 

he was at such other place. See id.

In State v. El-Tabech, supra, the trial court refused to give 

an alibi instruction as requested by the defendant. On appeal, 

the Nebraska Supreme Court affirmed, citing two reasons: (1) 

In Nebraska, alibi is not an affirmative defense, and (2) the 

evidence did not warrant such an instruction.

As to the first reason, the El-Tabech court stated that an 

alibi negates every fact necessary to prove a given crime 

because a defendant could not commit the offense if he was 

elsewhere at the time. The court noted the jury was instructed 

that the State had the burden of proving each and every element of the crime, including the fact that the accused committed the act as charged. The court therefore held that the failure 

to instruct the jury on the alibi did not relieve the State of its 

full burden.

In the present case, the jury was instructed that Cobos was 

charged with unlawfully subjecting M.M. to sexual contact in 

August 2012 in Scotts Bluff County and was provided with the 

respective ages of Cobos and M.M. The court further instructed 

that the State had the burden of proving him guilty beyond a 

reasonable doubt and that each of the following elements had 

to be proved beyond a reasonable doubt:
Decisions of the Nebraska Court of Appeals

STATE v. COBOS 893

Cite as 22 Neb. App. 887

1. That [Cobos] subjected [M.M] to sexual contact; and

2. That [Cobos] was nineteen years of age or older at 

the time; and

3. That [M.M] was fourteen years of age or younger at 

the time; and

4. That [Cobos] did so on or about the date or dates 

charged in Scotts Bluff County, Nebraska.

Cobos’ proposed instruction stated: “An issue in this case is 

whether [Cobos] was present at [a specific address in Gering] 

between the hours of 4:00 a.m. and 6:00 a.m. on August 17, 

2012 and/or August 18, 2012. The state must prove that he 

was.” As such, the proposed instruction told the jury that the 

State had to prove Cobos was present at the specific location at the given time. But the instructions actually given 

advised the jury that these were elements of the crime which 

the State must prove beyond a reasonable doubt; therefore, 

we find no prejudicial error in the court’s refusal to give the 

alibi instruction.

[3-5] Before an error in the giving of instructions can be 

considered as a ground for reversal of a conviction, the error 

must be considered prejudicial to the rights of the defendant. 

State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). In 

reviewing a claim of prejudice from jury instructions given or 

refused, an appellate court must read the instructions together, 

and if, taken as a whole, they correctly state the law, are not 

misleading, and adequately cover the issues supported by the 

pleadings and evidence, there is no prejudicial error. State v. 

Fox, 286 Neb. 956, 840 N.W.2d 479 (2013). In construing an 

individual jury instruction, the instruction may not be judged 

in artificial isolation but must be viewed in the context of the 

overall charge to the jury considered as a whole. State v. Putz, 

266 Neb. 37, 662 N.W.2d 606 (2003).

The instructions given, as a whole, properly instructed the 

jury as to the elements the State was required to prove beyond 

a reasonable doubt. We therefore find no error in the court’s 

refusal to give the tendered instruction.

The second reason the Nebraska Supreme Court found no 

error in failing to give the requested alibi instruction in State 
Decisions of the Nebraska Court of Appeals

894 22 NEBRASKA APPELLATE REPORTS

v. El-Tabech, 225 Neb. 395, 405 N.W.2d 585 (1987), was 

because the evidence did not warrant the instruction. This 

is the basis upon which the district court refused to give the 

instruction in the present case. We disagree that the evidence 

was insufficient.

In State v. El-Tabech, supra, the defendant’s alibi covered 

only a portion of the time during which the crime could 

have been committed. Cobos, however, claimed that he left 

Gering at 2 a.m. and was in Mitchell until late afternoon and 

that therefore he could not have been in Gering at sunrise to 

commit the crime charged. We find this evidence sufficient 

to support an alibi instruction, but because of our conclusion 

above that the jury was adequately instructed, we find no 

prejudicial error in the trial court’s refusal to give a separate 

alibi instruction.

We recognize that the Nebraska pattern jury instructions 

contain a pattern instruction on alibi, and our opinion should 

not be construed to stand for the proposition that the failure 

to give a requested alibi instruction can never be prejudicial 

error. As stated by the Ninth Circuit Court of Appeals, failure 

to give an alibi instruction in a state action can be a denial of 

federal due process depending upon the evidence in the case 

and the overall instructions given to the jury. See Duckett v. 

Godinez, 67 F.3d 734 (9th Cir. 1995). But where, as here, the 

jury is instructed on every element of the crime, and further 

instructed that the defendant is presumed to be innocent until 

the contrary is proved, which properly places the burden of 

proving beyond a reasonable doubt every material element of 

the crime charged upon the State, we find no error in the failure to give a separate alibi instruction.

Enhancement of Sentence Based 

on Cobos’ Silence.

Cobos next assigns that the district court erred by imposing 

a more severe sentence due to Cobos’ assertion of his constitutional right to remain silent by refusing to provide a statement 

to the probation office in conjunction with the presentence 

investigation. We disagree.
Decisions of the Nebraska Court of Appeals

STATE v. COBOS 895

Cite as 22 Neb. App. 887

There is no evidence that the district court increased the 

severity of Cobos’ sentence based on his assertion of his right 

to remain silent; rather, the court noted the absence of a written statement from Cobos in conjunction with its discussion 

of Cobos’ failure to accept responsibility for his actions. A 

defendant’s failure to take responsibility for his actions is a 

proper factor to consider in imposing a sentence. See State 

v. Carngbe, 288 Neb. 347, 352, 847 N.W.2d 302, 307 (2014) 

(noting that defendant’s actions postconviction were “not signs 

of responsibility”). Before imposing Cobos’ sentence, the district court stated various factors that it had considered, including the information contained in the presentence investigation 

report, Cobos’ age, his lack of a prior criminal history, his 

education, the nature of the offense, the lack of physical violence in the commission of the offense, the harm caused to the 

victim, the lack of justification for the offense, Cobos’ attitude, 

and the unlikelihood of recidivism.

[6,7] A sentencing court has broad discretion as to the 

source and type of evidence or information that it may use in 

determining the kind and extent of the punishment imposed 

within the limits fixed by statute. State v. Alford, 6 Neb. App. 

969, 578 N.W.2d 885 (1998). When attempting to determine 

whether the defendant is a proper candidate for probation and 

rehabilitation, the court, of necessity, must consider whether 

the defendant acknowledges his or her guilt. State v. Winsley, 

223 Neb. 788, 393 N.W.2d 723 (1986). Based on the record, 

it appears that the district court considered Cobos’ failure to 

accept responsibility as merely one of many factors in determining the appropriate sentence to impose. We find no abuse 

of discretion in its having done so.

Motion for New Trial.

[8] Cobos assigns that the district court erred in overruling 

his motion for new trial on the basis of prosecutorial misconduct. In a criminal case, a motion for new trial 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. Tolbert, 288 Neb. 732, 851 N.W.2d 74 (2014).
Decisions of the Nebraska Court of Appeals

896 22 NEBRASKA APPELLATE REPORTS

[9] Cobos’ motion for new trial was based upon alleged 

improper statements by the prosecutor during closing arguments; however, the closing arguments were not transcribed 

and thus are not part of the record before this court. It is the 

law in Nebraska that, where allegedly prejudicial remarks 

of counsel do not appear in the bill of exceptions, an appellate court is precluded from considering an assigned error 

concerning such remarks. State v. Harris, 205 Neb. 844, 290 

N.W.2d 645 (1980). Although Cobos’ assignment of error does 

not directly challenge the remarks of the prosecutor, it challenges the court’s ruling on his motion for new trial, which 

was based upon the remarks of the prosecutor. Absent a record 

of the alleged prosecutorial misconduct, we cannot reach this 

assigned error.

Sufficiency of Evidence.

[10] Finally, Cobos assigns that the evidence was insufficient to convict him. Specifically, he argues that the State 

failed to present evidence identifying Cobos; therefore, it 

failed to prove an essential element of the crime. In reviewing 

a sufficiency of the evidence claim, whether the evidence is 

direct, circumstantial, or a combination thereof, the standard 

is the same: An appellate court does not resolve conflicts in 

the evidence, pass on the credibility of witnesses, or reweigh 

the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt. State v. 

Tolbert, supra.

Because Cobos challenges only the sufficiency of the 

in-court identification, we focus our discussion on that essential element as well.

Despite Cobos’ assertion that M.M. never made an in-court 

identification of the person who touched her, M.M. testified 

that she saw the person that touched her and that it was her 

sister Valerie’s husband, Cobos. Valerie made an in-court 

identification of Cobos by pointing at him. Cobos challenges 

the court reporter’s authority to make a notation in the record 
Decisions of the Nebraska Court of Appeals

STATE v. COBOS 897

Cite as 22 Neb. App. 887

that Valerie pointed at Cobos. We determine that under the 

facts of this case, such identification was proper for two 

reasons. First, it was sufficient identification for the State to 

ask Valerie whether Cobos was in the courtroom and request 

that she point him out. See State v. Kaba, 217 Neb. 81, 349 

N.W.2d 627 (1984). Second, the identification of Cobos was 

not litigated, and was only an implicit issue in this case. 

See id.

In State v. Kaba, supra, the court distinguished between 

cases in which the defendant’s identity is an implicit issue and 

cases in which identification is a hotly contested issue, such 

as where a witness’ opportunity to observe the perpetrator is 

challenged. The Kaba court determined that identification of 

a defendant was an implicit issue because numerous witnesses 

testified regarding their encounters with the defendant and 

none of those witnesses noted that the person in the courtroom 

was not the same person with whom they had had their encounters. As the Kaba court noted, it is inconceivable that the 

State’s witnesses would sit silently by, knowing the wrong man 

had been brought to trial. Likewise, we find it inconceivable 

that neither M.M. nor Valerie would alert the court if someone 

other than Cobos were brought to trial. Therefore, we reject 

this assignment of error.

CONCLUSION

For the foregoing reasons, we affirm Cobos’ conviction 

and sentence.

Affirmed.