LINCOLN — A prosecutor who argued that a judge was too lenient on an Iraq War veteran who raped a teenage girl failed Monday to win a new sentencing hearing from the Nebraska Court of Appeals.
Washington County District Judge John Samson had noted the military service record and lack of a prior criminal history when he gave Jacob A. Martinez six months in jail and five years of intensive supervised probation for the 2010 sexual assault of a 16-year-old girl.
Martinez, who was 20 at the time of the assault, faced from one to 50 years in prison.
Washington County Attorney Shurie Graeve had recommended five to seven years in prison. She appealed the lower court sentence, arguing it gave perpetrators the expectation they can obtain a “get out of jail free card” for their first rape.
The Appeals Court found that the sentencing judge “added some teeth” that went beyond standard probation in recognition of the seriousness of the crime.
“We cannot find the sentence in this case to be an abuse of discretion, and the state’s assertions to the contrary are meritless,” Judge John Irwin said in the opinion.
The prosecutor was out of the office Monday and unavailable for comment.
In addition to jail and probation, Martinez will have to register as a sex offender for the rest of his life.
The U.S. Army discharged him after he was accused of rape, said Deborah Cunningham, an Omaha lawyer who represented Martinez.
“He was planning to make the military his career,” she said.
The events that led to Martinez’s downfall took place shortly after he learned he was being called to active duty in 2010. On March 17, he joined his girlfriend and cousin for a night of drinking. They later picked up the 16-year-old girl, who was a friend of his cousin’s.
The girl told authorities the four went to a house in Arlington, Neb., where they played drinking games. She said she drank about six beers before getting sick and falling asleep in a basement bedroom.
She said sometime later, Martinez and his cousin gave her chewing gum, adding that she suspected they may have given her some sort of drug at the same time. Her memories from that point were cloudy, but she recalled feeling pain and hearing the men tell her to stop crying.
Hours later, she woke naked with the cousin nearby and assumed he had raped her. After she returned home, her mother took her to an emergency room, where semen was collected and a criminal investigation launched.
With the focus still on his cousin, Martinez was deployed as an Army military police officer in Iraq, where he received commendations for his service, Cunningham said.
DNA tests, meanwhile, had failed to match the cousin. So when Martinez returned from overseas, he was questioned and gave biological samples for testing. The tests identified the DNA as his, and he was charged in October 2011 with felony sexual assault and child abuse along with three related misdemeanor counts.
Nearly a year ago, Martinez pleaded no contest to the sexual assault charge and was found guilty. Under the terms of a plea bargain, the remaining counts were dropped.
A presentence investigation determined Martinez was a moderate to low risk to reoffend, and it showed that he had completed alcohol rehabilitation, accepted responsibility for the crime and was remorseful. Despite his discharge, the Army submitted a letter of support, as did friends and family. The victim offered no letters or statements.
The Appeals Court noted that rarely has the Nebraska Supreme Court overturned sentences for being too lenient. When it has, the offender had an extensive criminal history or “there was something particularly egregious about the offense.”
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