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Defense pokes holes in prosecution case, repeat offender gets 90 daysTell North Platte what you think
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Juan Garcia

Juan Garcia appeared in county court Thursday to answer a charge of felony domestic assault. 

Police said Garcia assaulted his girlfriend, who was seven-months pregnant, on May 23. 

That charge was ordinarily be a misdemeanor but it was upgraded to a felony because Garcia has prior convictions of domestic violence.

However at the hearing, County Attorney Austin Leighty said he was reducing the charge in exchange for a conviction.

Garcia pled no contest and Lincoln County Judge Kent Turnbull found him guilty of the amended charge.  

Before issuing sentence, Turnbull told Garcia, “I just checked your prior records from Nebraska, I don't think you are from here as there is no crimes on your record other than this."

Turnbull told Garcia that he is entitled to a pre-sentence investigation, “but I want to tell you that all your prior records will come up on that," he said.

Garcia waived his right to the pre-sentence investigation and agreed to be sentenced immediately.

Turnbull said if a victim is pregnant, he usually issues more than the minimum sentence, but Garcia was looking at a minimum of 90 days, thanks to the lack of previous Nebraska charges.

Then Leighty mentioned Garcia's out of state record.

Leighty said Wyoming has records of an extensive number of battery convictions, some involving household members.

"There is record of several jail sentences of 90 days, so I would ask for more," he said. But Lindemeier countered with an affidavit from the victim.  

"The court should note that in the affidavit the victim states that Garcia is a good father and he didn't harm her," he said. 

Lindemeier told the court that the affidavit states there were no visible signs of injury. Lindemeier said the alleged victim “felt like she was being asked to write a statement that he had harmed her or otherwise her child was going to be taken away from her."

He said in the woman’s original statement, she admitted being uncooperative with investigators because they had her child placed in protective custody. 

"(So) there is some consistency in her statements," Lindemeier said.

"Also,” he said, “there is no indication that the assaults (in Wyoming) were on the same statutory elements as Nebraska's.” He asked the court not to consider them as previous assaults on this victim, as there is no evidence on record to substantiate that they were. Lindemeier asked for a 90-day sentence and get credit for 13 days served.

"Well, neither Mr. Leighty or Mr. Lindemeier nor myself operate in a vacuum," Turnbull said. "I am sure you have an extensive record."  

Nevertheless, Turnbull said the affidavit was evidence that prosecutors clearly didn't have the case they initially had. He said he would not deviate from his normal sentence for a first offense assault on a pregnant woman. 

He sentenced Garcia to 90 days in jail, with credit for 13 days. Garcia said he would “sit out” whatever court costs were involved.

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The North Platte Bulletin - Published 6/7/2014
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