                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. FRAUSTO


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                                V.

                                 STEPHEN FRAUSTO, APPELLANT.


                            Filed October 25, 2016. No. A-15-1095.


       Appeal from the District Court for Chase County: DAVID URBOM, Judge. Affirmed.
       Tony Brock, of Brock Law Offices, P.C., L.L.O., and Clay Thomas, P.C., for appellant.
       Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.


       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       MOORE, Chief Judge.
                                        INTRODUCTION
        Stephen Frausto appeals from his conviction following a jury trial in the district court for
Chase County of three counts of first degree sexual assault of a child and one count of child abuse.
On appeal, he asserts that the court abused its discretion by allowing the State to amend by
interlineation the dates alleged in count I of the information. Finding no abuse of discretion, we
affirm.
                                        BACKGROUND
        On March 23, 2015, the State filed an information, charging Frausto in counts I-III with
first degree sexual assault of a child in violation of Neb. Rev. Stat. 28-319.01 (Cum. Supp. 2014),
all Class IB felonies, and in count IV with child abuse in violation of Neb. Rev. Stat.
§ 28-707(1)(a), (d), and (e) (Cum. Supp. 2014), a Class IIIA felony. In count I, the State alleged
that on or between November 26, 2007 and March 31, 2008, Frausto subjected A.G. to sexual



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penetration when A.G., born in May 1997, was under 12 years of age and Frausto was 19 years of
age or older. The allegations in count II and count III only differed from those in count I with
respect to the date ranges alleged, which were: on or between April 1 and July 31, 2008 and on or
between August 1 and September 19, 2008, respectively. In count IV, the State alleged that on or
between November 1, 2007 and September 30, 2008, Frausto knowingly and intentionally caused
or permitted A.G. to be placed in a situation that endangered her life or physical or mental health;
or to be placed in a situation to be sexually exploited by allowing, encouraging, or forcing her to
solicit for or engage in debauchery; or to be placed in a situation to be sexually abused.
         On July 21, 2015, the district court heard several motions filed by the State, including the
State’s motion in limine to exclude alibi evidence on the basis that Frausto had failed to serve a
notice of intention to rely upon an alibi 30 days prior to trial as required by statute. See Neb. Rev.
Stat. § 29-1927 (Reissue 2008). Frausto argued that he ought to be able to raise the fact that he
was imprisoned during several of the periods identified in the information. The court granted the
State’s motion, but it determined that Frausto could testify as to when he was in prison.
         A jury trial was held on July 21-23, 2015. On July 21, just before the start of trial, the State
made an oral motion to amend the information by interlineation with respect to the date range
alleged in count I. Specifically, the State sought to amend count I to state that the sexual penetration
occurred between November 26, 2007 and July 31, 2008, rather than between November 26, 2007
and March 31, 2008. Frausto objected and argued, “This is a surprise; we have no notice of this.”
The district court took the motion under advisement, stating that it would rule on the motion before
the presentation of evidence. However, no ruling was made until after the State presented its case
and sought to amend the information by interlineation to conform to the evidence.
         The State offered testimony from various witnesses, including A.G., her sister and mother,
police officers who investigated this case, a forensic interview specialist who interviewed A.G.
during the investigation, and a psychologist who had not met A.G. but who testified about the
behaviors of sexually abused children with respect to disclosing their abuse. Given the limited
nature of Frausto’s assignment of error on appeal, we do not set forth a detailed recitation of the
evidence, other than to note that the evidence established Frausto sexually penetrated A.G. on at
least three separate occasions in 2008 when he was 33 or 34 years old and she was 10 or 11 years
old. Specifically, the evidence established that he did so in late April 2008 while A.G.’s mother
was away at a church retreat and there was a bomb threat at a local school; in approximately May
2008 around the time when several family birthdays, including A.G.’s, and a graduation were
celebrated; and in approximately summer 2008 when A.G.’s mother attended the garage sales held
in a particular community. There was also evidence that Frausto sexually penetrated A.G. on
numerous other occasions and made her touch him sexually as well. The evidence established that
A.G. was born in May 1997 and Frausto was born in July 1974.
         After presentation of its evidence, the State renewed its motion to amend the information
by interlineation, seeking to amend the date ranges alleged in counts I and II to conform to the
evidence at trial. Specifically, the State sought to amend count I to state that the sexual penetration
alleged therein occurred between April 1 and April 30, 2008 (corresponding to the evidence about
the “bomb report incident”) and to amend count II to state that the sexual penetration alleged with
respect to that count occurred between May 1 and July 31, 2008 (corresponding to the evidence



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about the “graduation incident”). When asked if he had any arguments against the motion,
Frausto’s attorney stated, “[N]othing further than what I argued to the Court [previously].” The
district court granted the State’s motion, and the information was amended by interlineation.
         Frausto testified on his own behalf. He denied ever sexually penetrating or having any kind
of sexual contact with A.G. He testified to being paroled from prison in Texas in November 2007.
Frausto began a relationship with A.G.’s mother and lived with A.G.’s family in Nebraska between
January and September 2008. He was arrested and jailed in Nebraska at some point in September,
apparently for a traffic violation, before being extradited to Texas for a parole violation. He did
not testify to having any periods of incarceration during the time he lived with A.G.’s family.
Frausto also presented testimony from A.G.’s mother.
         The jury found Frausto guilty on all four counts of the amended information. The district
court accepted the jury’s verdicts and ordered a presentence investigation. Frausto filed a motion
for new trial, which was denied by the district court.
         The court sentenced Frausto to 25 to 30 years’ imprisonment on each count of first degree
sexual assault of a child, to be served consecutively, with the first 15 years of each being a
mandatory minimum sentence. On the child abuse count, the court sentenced Frausto to 20 to 60
months’ imprisonment, to be served concurrently with the sentence imposed on count I. The court
gave Frausto credit for 292 days of time served. Frausto subsequently perfected his appeal to this
court.
                                    ASSIGNMENTS OF ERROR
        Frausto asserts that the district court abused its discretion in permitting the State to amend
by interlineation the dates alleged in count I of the information.
                                     STANDARD OF REVIEW
        A ruling on whether to allow a criminal information to be amended is made by the trial
court in its discretion. State v. Johnson, 290 Neb. 369, 859 N.W.2d 877 (2015). Therefore, absent
an abuse of discretion, we will affirm the trial court’s decision to allow amendment of the
information. See State v. Clark, 8 Neb. App. 936, 605 N .W.2d 145 (2000). A judicial abuse of
discretion exists when a judge, within the effective limits of authorized judicial power, elects to
act or refrain from acting, but the selected option results in a decision which is untenable and
unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition
through a judicial system. State v. Braesch, 292 Neb. 930, 874 N.W.2d 874 (2016).
                                             ANALYSIS
        Frausto asserts that the district court abused its discretion in permitting the State to amend
by interlineation the dates alleged in count I of the information. Frausto does not assign error to
the amendment of the dates alleged in count II. With respect to count I, the district court granted
the State’s motion to amend the information to conform to the evidence at trial about the timing of
the “bomb report incident.” Count I of the information was amended to state that the sexual
penetration alleged therein occurred between April 1 and April 30, 2008, rather than between
November 26, 2007 and March 31, 2008. Frausto observes that the amendment to count I changed




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the time frame for the alleged sexual assault to a range of dates that occurred after those alleged
initially in count I. He argues that he could not have anticipated this change and was thus unable
to determine whether he would have an alibi for the amended period of time to provide notice of
an alibi defense. He acknowledges that due to his failure to provide notice within 30 days of trial
he was precluded from asserting an alibi defense. However, he argues that if he had been aware
that the assault claimed in count I allegedly occurred after March 31, 2008, he may have been able
to provide evidence of an alibi during that time frame and give proper notice of his defense.
         Neb. Ct. R. § 6-1115(b) allows for amendment of pleadings to conform to the evidence at
trial. The amendment to count I of the information in this case conformed the information to the
evidence at trial which showed that one instance of Frausto’s sexual penetration of A.G. occurred
near the date of a bomb threat at a local school and during a time when A.G.’s mother was away
at a church retreat. The evidence established that both the bomb threat and the church retreat
occurred in late April 2008; specifically, on April 25 and from April 25-27, respectively.
         The exact time when a criminal offense is committed is not an essential element of a crime
unless the statute defining the offense makes a date or time an indispensable element of the crime
charged. State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 (2015). Other than defining the
respective ages of the perpetrator and the victim, § 28-320.01 does not make a date or time an
indispensable element of the crime charged. Frausto and A.G.’s ages at the time of the acts of
sexual penetration were alleged in the original information. The original information advised
Frausto in count I that he needed to defend himself against an allegation that he subjected A.G. to
sexual penetration when A.G. was under 12 years of age and when Frausto was 19 years of age or
older. The amendment to the information did not alter these essential elements of the crime alleged
in count I. Furthermore, count II of the original information alleged an act of sexual penetration
occurring between April 1 and July 31, 2008, a period encompassing the amended period alleged
for count I (between April 1 and 30, 2008). Thus, the original information also advised Frausto
that he needed to defend against an allegation that he subjected A.G. to sexual penetration during
April 2008.
         Although Frausto was precluded from relying on an alibi defense by his failure to provide
notice 30 days prior to trial pursuant to § 29-1927, the district court determined that Frausto could
testify as to when he was in prison. Frausto did so, and his testimony does not show that he was
imprisoned during April 2008. With respect to the events surrounding the school bomb threat,
Frausto testified that he was at work on the day in question and that A.G.’s mother returned early
from the church retreat. Other evidence suggested, however, that the assault occurred after Frausto
returned from work and that A.G.’s mother did not return early, a version of events which the jury
evidently found more credible than that presented by Frausto.
         Finally, even if Frausto had some additional evidence or defense he wanted to present, he
was not necessarily precluded from doing so. Section 29-1927 provides that the requirement of
giving notice of an alibi defense 30 days prior to trial “shall be waived by the presiding judge if
necessary in the interests of justice.” During the hearing on the State’s motion to preclude
presentation of an alibi defense, Frausto only argued that he should be permitted to testify about
any relevant periods of imprisonment, and, as noted above, he was allowed to present such
testimony. At the time the State first sought to amend the information at trial, Frausto only argued



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that the proposed amendment was a “surprise,” and he did not present any additional or different
arguments when the State again sought to amend the information after presentation of the State’s
evidence. Nowhere in the record or in his brief on appeal does Frausto suggest that he had any
alibi or defense other than what he actually presented at trial.
         The district court did not abuse its discretion in permitting the State to amend by
interlineation the dates alleged in count I of the information. Frausto’s assignment of error is
without merit.
                                        CONCLUSION
        The district court did not abuse its discretion in permitting the State to amend by
interlineation the dates alleged in count I of the information.
                                                                                   AFFIRMED.




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