State v. Martinez , 306 Neb. 516 ( 2020 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. MARTINEZ
Cite as 306 Neb. 516
State of Nebraska, appellee, v. Juan
Gonzalez Martinez, appellant.
___ N.W.2d ___
Filed July 17, 2020. No. S-19-758.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit
evidence over a hearsay objection.
5. Rules of Evidence: Hearsay: Witnesses: Interpreters: Proof. Where
the translator of a defendant’s out-of-court verbal or written statements
from a foreign language to English is initially shown by the State to be
qualified by knowledge, skill, experience, training, or education to per-
form such translation, and where the translator testifies at trial and is
subject to cross-examination, the translation is admissible as nonhearsay
under Neb. Evid. R. 801(4), and any challenges to the accuracy of the
translation go to the weight of the evidence and not to its admissibility.
6. Appeal and Error. An objection, based on a specific ground and prop-
erly overruled, does not preserve a question for appellate review on any
other ground.
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STATE v. MARTINEZ
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7. Rules of Evidence: Hearsay. In determining whether a statement is
admissible under the residual hearsay exception to the hearsay rule, a
court considers five factors: a statement’s trustworthiness, the materi-
ality of the statement, the probative importance of the statement, the
interests of justice, and whether notice was given to an opponent.
8. Rules of Evidence: Notice. An adverse party’s knowledge of a state-
ment is not enough to satisfy the notice requirement of Neb. Evid.
R. 803(23).
9. Rules of Evidence: Hearsay: Pretrial Procedure: Notice. The pro-
ponent of the evidence must provide notice before trial to the adverse
party of his or her intentions to use the statement to take advantage of
the residual hearsay exception.
10. Trial: Evidence: Appeal and Error. Because overruling a motion in
limine is not a final ruling on admissibility of evidence and, therefore,
does not present a question for appellate review, a question concerning
admissibility of evidence which is the subject of a motion in limine is
raised and preserved for appellate review by an appropriate objection to
the evidence during trial.
11. ____: ____: ____. The procedure of renewing an objection at trial fol-
lowing a motion in limine provides an important procedural safeguard
against reversible error, because it provides the court with a final oppor-
tunity to (1) determine the potential for prejudice within the context
of other evidence at trial and (2) exclude unduly prejudicial evidence
before it is revealed to the jury if the court determines that it is indeed
prejudicial.
12. Motions to Suppress: Confessions: Constitutional Law: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a state-
ment based on its claimed involuntariness, including claims that law
enforcement procured it by violating the safeguards established by the
U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error. Whether those facts meet con-
stitutional standards, however, is a question of law, which an appellate
court reviews independently of the trial court’s determination.
13. Motions to Suppress: Appeal and Error. In reviewing a motion to
suppress, an appellate court does not reweigh the evidence or resolve
conflicts in the evidence, but, rather, recognizes the trial court as the
finder of fact and considers that the trial court observed the witnesses
testifying in regard to such motions.
14. Miranda Rights: Waiver. Miranda warnings are an absolute prereq-
uisite to custodial interrogation; statements made during a custodial
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STATE v. MARTINEZ
Cite as 306 Neb. 516
interrogation in the absence of these warnings and a valid Miranda
waiver are inadmissible, even if otherwise voluntarily made.
15. Miranda Rights: Waiver: Proof. If a defendant seeks suppression of
a statement because of an alleged violation of Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the State must prove
that the defendant validly waived his or her Miranda rights by a prepon-
derance of the evidence.
16. Miranda Rights: Waiver: Words and Phrases. To be a valid waiver
of Miranda rights, the waiver must be knowing and voluntary. A waiver
is knowing if it is made with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to abandon
it. A waiver is voluntary if it is the product of a free and deliberate
choice rather than through intimidation, coercion, or deception.
17. Miranda Rights: Waiver: Appeal and Error. An appellate court looks
to the totality of the circumstances to determine whether a defendant
validly waived his or her Miranda rights.
18. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for 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 ele-
ments of the crime beyond a reasonable doubt.
19. Sexual Assault: Testimony: Proof. The State is not required to cor-
roborate a victim’s testimony in cases of first degree sexual assault; if
believed by the finder of fact, the victim’s testimony alone is sufficient.
20. Sentences: Appeal and Error. Absent an abuse of discretion by the trial
court, an appellate court will not disturb a sentence imposed within the
statutory limits.
21. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) moti-
vation 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.
22. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
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STATE v. MARTINEZ
Cite as 306 Neb. 516
Appeal from the District Court for Lancaster County: Jodi
L. Nelson, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, Jennifer
M. Houlden, and Ella Newell, Senior Certified Law Student,
for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Cassel, J.
I. INTRODUCTION
Juan Gonzalez Martinez appeals from his conviction, pur-
suant to a jury verdict, and sentence for first degree sexual
assault. Martinez primarily argues that the English transla-
tion of his Spanish out-of-court statements was inadmissible
hearsay. Because the State made a threshold showing of the
translator’s qualifications, the translator testified at trial, and
the translator was subject to cross-examination, the translation
was admissible as nonhearsay and the challenges to it went to
its weight. We find no merit in his remaining claims regarding
the exclusion of residual hearsay evidence, admission of prior
sexual conduct, waiver of his Miranda rights, sufficiency of the
evidence to sustain his conviction for sexual assault, and exces-
sive sentence. We affirm.
II. BACKGROUND
In this section, we summarize only the central facts and
procedures. Additional background will be set forth in the
analysis section.
The State filed an information against Martinez for three
counts of first degree sexual assault upon his daughter, M.F.
She was born in 1995. Because a verdict of acquittal was
directed on counts 2 and 3 and Martinez was convicted only
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STATE v. MARTINEZ
Cite as 306 Neb. 516
on count 1, we summarize only the evidence regarding that
conviction. It addressed the time period from January 2001 to
July 2006.
In September 2017, M.F. reported the incidents to law
enforcement authorities. At trial, she testified to the following
events, which occurred while she was between the ages of 5
and 11. In accordance with our standard of review, we summa-
rize them in the light most favorable to the State.
1. Mexico
Prior to trial, Martinez filed a motion for the State to dis-
close what evidence it intended to offer at trial of “other
crimes, wrongs and/or acts of the defendant” and for an evi-
dentiary hearing.
At the evidentiary hearing, the State offered M.F.’s testi-
mony regarding sexual contact that had occurred in Mexico.
M.F. stated that, when she was 5 years old, she woke up to
Martinez “rubbing on [her] vagina over [her] underwear.” She
stated that in Mexico, it happened only once. In September
2001, M.F. moved from Mexico to Lincoln, Nebraska, where
the sexual conduct escalated.
The court found that evidence of the sexual contact which
occurred in Mexico was admissible under Neb. Evid. R. 414,
Neb. Rev. Stat. § 27-414 (Reissue 2016). It was relevant to
show the progression of the sexual assault, and its probative
value was not outweighed by the danger of unfair prejudice.
At trial, M.F. testified to the same events. She stated
that Martinez rubbed his fingers on her vagina in a circular
motion and told her to stay quiet. Martinez did not renew
his objection.
2. Lincoln, Nebraska
At trial, M.F. stated that when she moved to Lincoln, her
family lived in a mobile home. At that residence, when M.F.
was 6 years old, she woke up to Martinez “rub[bing] on my
vagina over my underwear.” She stated that it lasted several
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STATE v. MARTINEZ
Cite as 306 Neb. 516
minutes where “[Martinez] would use his fingers . . . in a cir-
cular motion, to rub on my vagina.” This was the only sexual
contact which occurred at that residence.
M.F. and her family moved to an apartment. At this resi-
dence, two incidents occurred. When M.F. was 7 years old,
Martinez asked M.F. to perform oral sex on him. Martinez took
off both his and M.F.’s pants and underwear. He put his penis
into her mouth. Simultaneously, he began to lick M.F.’s vagina.
She felt uncomfortable and got off of Martinez. She stated that
this was the only occurrence of oral sex.
When M.F. was 7 or 8 years old, the second sexual contact
at this residence occurred. Martinez took off M.F.’s pants and
underwear and laid her face down on a bed. He grabbed onto
her hips, pulled her toward him, and inserted his penis into her
anus. She stated that his penis was inserted for only a few sec-
onds, because she “launched forward” from the pain. She got
off the bed and ran to the bathroom.
M.F. and her family then moved to a house. At this resi-
dence, when M.F. was 9 or 10 years old, Martinez had sexual
intercourse with her. Martinez pulled off her pants and under-
wear, retrieved “a square package” from under the mattress,
and placed it on his penis. M.F. believed the square package to
be a condom. He inserted his penis into her vagina, moved up
and down for a few minutes, removed his penis and condom,
and ejaculated onto her stomach.
In July 2017, M.F. told her mother about the sexual contact.
In September, M.F. reported it to law enforcement.
3. Verdict and Sentencing
After the State rested, counts 2 and 3 of the information
were dismissed. Martinez presented no evidence. Count 1 was
submitted to the jury, which found Martinez guilty of first
degree sexual assault. The district court sentenced Martinez
to imprisonment for not less than 30 years and not more than
40 years.
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306 Nebraska Reports
STATE v. MARTINEZ
Cite as 306 Neb. 516
III. ASSIGNMENTS OF ERROR
Martinez assigns, reordered and restated, that the district
court erred when (1) it admitted Luz Aguirre’s translations of
Martinez’ out-of-court statements as a language conduit, (2)
it failed to admit the statements of Cindy West and M.F. as
residual hearsay, (3) it admitted evidence of sexual contact
that occurred outside of the time period and geographical
jurisdiction of the charges, and (4) it admitted the videotaped
law enforcement interview in violation of Martinez’ Miranda
rights. He further assigns that (5) the evidence was insuf-
ficient to sustain a conviction for first degree sexual assault
and (6) the court abused its discretion by imposing an exces-
sive sentence.
IV. ANALYSIS
1. Hearsay
(a) Standard of Review
[1,2] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. 1 Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. 2
[3] An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. 3
[4] Apart from rulings under the residual hearsay excep-
tion, we review for clear error the factual findings underpin-
ning a trial court’s hearsay ruling and review de novo the
1
State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
2
Id.
3
State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
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STATE v. MARTINEZ
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court’s ultimate determination to admit evidence over a hear-
say objection. 4
(b) Spanish-to-English Translations
(i) Additional Facts
Michael Barry, a Lincoln Police Department investigator,
conducted an investigation into the sexual assault allegations.
Barry interviewed M.F. and later conducted two controlled
calls from M.F. to Martinez. Both calls were made in Spanish
and recorded. M.F. consented to a search of her cell phone.
Law enforcement extracted text messages between Martinez
and M.F., which were in Spanish.
Barry and Luis Herrera, another Lincoln Police Department
investigator, conducted and recorded an interview with
Martinez. Herrera, who spoke Spanish fluently, acted as an
interpreter. During the interview, Herrera asked additional fol-
lowup and clarification questions.
Aguirre, who testified at trial and was a bilingual records
technician for the city of Lincoln, translated transcripts of the
cell phone calls, text messages, and law enforcement inter-
view. At trial, the recordings of the law enforcement interview
and controlled cell phone calls were played for the jury. The
original text messages, in Spanish, were admitted along with
Aguirre’s English translation.
At trial, Martinez objected to each transcript based on foun-
dation and hearsay.
Martinez questioned Aguirre concerning each transcript.
Regarding the cell phone call transcripts, Martinez focused on
Aguirre’s qualifications. Aguirre had no certifications issued
by the State of Nebraska or state court system concerning lan-
guage interpretation. Aguirre was born in Mexico, is a native
Spanish speaker, and primarily speaks Spanish in her home.
Regarding the text messages, Martinez’ questions to Aguirre
focused on the addition of punctuation and grammar. The
4
State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).
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STATE v. MARTINEZ
Cite as 306 Neb. 516
text messages from Martinez did not contain any punctua-
tion. Aguirre stated that she added punctuation because “I
just feel that that’s where a different sentence starts.” And
“[a]s I’m reading it, it is a sentence because that’s the way
I’m reading it in Spanish.” Regarding one translated statement,
Martinez’ questions focused on its accuracy. Aguirre testi-
fied that the meaning-for-meaning translation was: “Look, you
don’t remember what your mom did to me, and what I did to
you is unforgivable.” Aguirre further stated that a word-for-
word translation was: “Look, your mom” “you don’t remem-
ber” “[w]hat you did to me” “[w]hat I did with you” “does not
have forgiveness or apology.”
Regarding the law enforcement interview, Martinez’ exami-
nation of Aguirre focused on the translation of the word “uh-
huh.” Throughout the law enforcement interview, Martinez
replied “uh-huh” to several questions and statements, which
appears in the transcript. Aguirre stated that when translating,
there is a shortcut key for the response “uh-huh” that will add
“(Yes).” Aguirre agreed that she makes no distinction “based
on [her] perception of what [she is] listening to, whether the
person is agreeing with what they’ve been told or acknowledg-
ing that they’re hearing and understanding what’s being said
to them.”
The district court overruled each objection and found that
Aguirre was acting as a language conduit for Martinez.
(ii) Discussion
Martinez makes four arguments that the district court
improperly admitted Aguirre’s translated text messages and law
enforcement interview as nonhearsay. First, he contends that
the district court did not apply the factors under the language
conduit theory. Second, he asserts that Aguirre created a new
expression when she translated the text messages and added
punctuation to his statements. Third, he asserts that Aguirre
imposed a new meaning to the expression “uh-huh” when
she translated it to “(Yes).” Lastly, he further contends that
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STATE v. MARTINEZ
Cite as 306 Neb. 516
the application of agency, under Neb. Evid. R. 801(4)(b)(iv),
Neb. Rev. Stat. § 27-801(4)(b)(iv) (Reissue 2016), was an
inaccurate application of the relationship between Aguirre and
Martinez to admit the translations as nonhearsay.
The State argues that Aguirre’s translated statements were
not hearsay and were properly admitted. It explained the tes-
timony showed that Aguirre confirmed the translations were
a true and accurate translation of the conversations and that
Herrera reviewed the law enforcement interview translation
and confirmed it was a true and accurate translation. The State
contends that the evidence “was sufficient . . . to establish that
the English translations in this case were an accurate recitation
of Martinez’s statements.” 5
We first note that, on appeal, Martinez has challenged
only the admission of the English translations based only on
hearsay. Although at oral argument, Martinez claimed to have
asserted his foundation objection in his brief, we observe that
the word “foundation” appears nowhere in the argument sec-
tion of his brief addressing the translations. We conclude that
on appeal, he has abandoned his foundation objection.
Second, at oral argument, Martinez conceded that no
Confrontation Clause objection was asserted at trial. As we note
below, much of the discussion of a language conduit theory in
case law addresses claimed violations of the Confrontation
Clause. 6 Here, Martinez did not raise a Confrontation Clause
objection at trial, and therefore, we address only his objection
based on hearsay.
Third, this is not a challenge to the accuracy of a court-
appointed interpreter’s rendition between Spanish and English
during the course of a trial. Rather, Martinez contests the
accuracy of Spanish-to-English translations of recordings of
5
Brief for appellee at 21.
6
See, U.S. v. Charles, 722 F.3d 1319 (11th Cir. 2013); U.S. v. Nazemian,
948 F.2d 522 (9th Cir. 1991); State v. Lopez-Ramos, 929 N.W.2d 414
(Minn. 2019).
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STATE v. MARTINEZ
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Martinez’ spoken words and of text messages containing his
written words. At trial, he thoroughly examined the translator
regarding the translations’ correctness. And he had the oppor-
tunity—which he did not exercise—to present other evidence
bearing on the translations’ precision or shortcomings.
a. Language Conduit Theory
A language conduit theory has generally been applied to the
role of a foreign language interpreter. 7 In our post-Crawford v.
Washington 8 era, a split among courts has emerged as to the
treatment of a foreign language interpreter’s out-of-court trans-
lation of a defendant’s statements.
The majority of courts 9 still follow the “Ninth Circuit’s
conclusion in Nazemian v. United States 10 . . . that the
Confrontation Clause is not violated by the admission of
translated statements.” 11 In U.S. v. Nazemian, 12 the Ninth
Circuit viewed the threshold question as whether the inter-
preter’s statements were viewed as the defendant’s own and
constituted admissions properly characterized as nonhear-
say under Fed. R. Evid. 801(d)(2)(C) or (D). The Ninth
Circuit adopted a factored approach, which considered “which
party supplied the interpreter, whether the interpreter had any
motive to mislead or distort, the interpreter’s qualifications
and language skill, and whether actions taken subsequent
to the conversation were consistent with the statements as
7
See id.
8
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004).
9
See, U.S. v. Martinez-Gaytan, 213 F.3d 890 (5th Cir. 2000); United States
v. Beltran, 761 F.2d 1 (1st Cir. 1985); United States v. Da Silva, 725 F.2d
828 (2d Cir. 1983); State v. Lopez-Ramos, supra note 6; Hernandez v.
State, 291 Ga. App. 562, 662 S.E.2d 325 (2008); Correa v. Superior Court,
27 Cal. 4th 444, 40 P.3d 739, 117 Cal. Rptr. 2d 27 (2002).
10
U.S. v. Nazemian, supra note 6.
11
State v. Lopez-Ramos, supra note 6, 929 N.W.2d at 420.
12
U.S. v. Nazemian, supra note 6.
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translated.” 13 This approach generally treats a translation as
the defendant’s own statement.
The minority view adopts the position that post-Crawford
out-of-court statements made by a defendant to law enforce-
ment and translated by an interpreter are testimonial. 14 The
minority view found “Nazemian . . . irreconcilable with
Crawford because the analysis in Nazemian depends on analo-
gies to the evidentiary rules and premises the admissibility
of an interpreter’s statements on assumed reliability.” 15 The
minority view likened the interpreter to a third-party witness
and has held that Crawford guaranteed the defendant’s right to
cross-examine the interpreter.
The decision of a divided Minnesota Supreme Court illus-
trates the divergent approaches. 16 The majority likened a
foreign language interpreter to a court reporter, who trans-
lates oral communications into a written format, conveying
information but not adding content. 17 The majority noted that
a defendant bears the burden of proving a translation was
inadequate. 18 The dissent conceded that the Spanish versions
of the defend­ant’s statements were admissible. Because the
interpreter was not available for cross-examination, the dissent
asserted that the translations were inadmissible. The dissent
would have remanded the matter for a new trial where the
State “could either offer the live testimony of the . . . inter-
preter, or have a different interpreter in the courtroom trans-
late [the defend­ant’s] recorded statement.” 19
13
Id. at 527.
14
See, U.S. v. Charles, supra note 6; Taylor v. State, 226 Md. App. 317, 130
A.3d 509 (2016).
15
State v. Lopez-Ramos, supra note 6, 929 N.W.2d at 421.
16
Id.
17
Id.
18
Id.
19
Id., 929 N.W.2d at 429 (Hudson, J., dissenting; Lillehaug and Thissen, JJ.,
join).
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STATE v. MARTINEZ
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b. Resolution
In the context of a courtroom interpreter, courts do not
expect perfection. We have noted that while a word-for-word
translation best ensures that the quality of the translation does
not fall below the constitutionally permissible threshold, there
is no constitutional right to a “‘flawless’” interpretation. 20
“‘[C]ourtroom interpretation is a demanding and inexact art,
and . . . the languages involved may not have precise equiv-
alents for particular words or concepts.’” 21 It follows that
minor or isolated inaccuracies, omissions, interruptions, or
other defects in translation are inevitable and do not warrant
relief where the translation is on the whole reasonably timely,
complete, and accurate, and the defects do not render the pro-
ceeding fundamentally unfair. 22
We do not believe that in a criminal case, translation of a
defendant’s written words or a recording of his or her spoken
words requires a higher standard of accuracy than is required
for courtroom interpreters. Our Legislature has directed this
court to prescribe standards for court interpreters requiring
them to “demonstrate the ability to interpret effectively, accu-
rately, and impartially, both receptively and expressively, using
any necessary special vocabulary.” 23 But the oath prescribed by
statute—requiring an interpreter, “to the best of his or her skill
and judgment, [to] make a true interpretation”—recognizes that
perfection is not the standard. 24 Thus, our statutes articulate
concepts similar to those on both sides of the language con-
duit theory.
The heart of the hearsay rule is the inability to cross-examine
the declarant to test the testimonial infirmities of (1) sincerity,
20
See Tapio-Reyes v. Excel Corp., 281 Neb. 15, 27, 793 N.W.2d 319, 328
(2011).
21
Id. (quoting Annot., 32 A.L.R.5th 149, § 72 (1995)).
22
Id.
23
Neb. Rev. Stat. § 25-2407 (Reissue 2016).
24
Neb. Rev. Stat. § 25-2405 (Reissue 2016).
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(2) ambiguity, (3) perception, and (4) memory. 25 According
to a respected commentator, our evidence rules adopted an
assertion-oriented definition of hearsay, while retaining non-
hearsay categorization for specific declarant-oriented state-
ments. 26 The commentator also noted that admissions were
defined as nonhearsay as a matter of adversarial justice. 27
Clearly, Martinez’ writings or verbal statements in Spanish
are nonhearsay. Under rule 801(4)(b)(i), “[a] statement is not
hearsay if . . . [t]he statement is offered against a party and
is . . . his [or her] own statement.”
We think the proper analogy regarding a translation of a
defendant’s statements is testimony by a witness, who heard
or read such statements, describing what the witness heard or
read. In U.S. v. DiDomenico, Judge Posner stated:
Because a statement to be admissible as the statement of
a party need not have been against interest when made
(or at any time for that matter), . . . the admissibility of
such a statement cannot convincingly be grounded in the
presumed trustworthiness of a statement that is against the
utterer’s self-interest to give. . . . The standard justifica-
tion of its admissibility is a kind of estoppel or waiver
theory, that a party should be entitled to rely on his oppo-
nent’s statements. 28
Even if a witness does not recall a party opponent’s statement
with perfect accuracy, the statement is still admissible.
For example, in State v. Devers, 29 two jailhouse informants
testified that the defendant told the defendant’s cousin that he
had a “‘lick’” for him. 30 One jailhouse informant stated that
25
R. Collin Mangrum, Mangrum on Nebraska Evidence § 27-801[D](4)(a)
(2019).
26
See id.
27
See id.
28
U.S. v. DiDomenico, 78 F.3d 294, 303 (7th Cir. 1996).
29
State v. Devers, ante p. 429, ___ N.W.2d ___ (2020).
30
Id. at 437, ___ N.W.2d at ___.
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the word “lick” meant a target for robbery, and the other stated
that it was a robbery of a drug dealer. Both of their interpre-
tations were admitted without objection. Interpretation takes
place in testimony regarding modern slang or colloquial terms,
and we do not preclude such testimony as hearsay. The keys
are that the statement being translated from a foreign language
originated as the defendant’s own statement and that the wit-
ness making the translation testifies in court and is subject to
cross-examination.
[5] We hold that where the translator of a defendant’s out-
of-court verbal or written statements from a foreign language
to English is initially shown by the State to be qualified by
knowledge, skill, experience, training, or education to perform
such translation, and where the translator testifies at trial and
is subject to cross-examination, the translation is admissible as
nonhearsay under rule 801(4), and any challenges to the accu-
racy of the translation go to the weight of the evidence and not
to its admissibility.
Here, Aguirre testified at trial and was subject to cross-
examination. Martinez thoroughly cross-examined Aguirre
and adduced both a meaning-for-meaning and word-for-word
­translation of the statements at issue. Martinez failed to show
how Aguirre’s translation was inaccurate or created a new
meaning. Moreover, the jury was presented with Martinez’
original Spanish text messages, and they were available to him
to present his own translation. Accordingly, the district court
did not err in admitting the nonhearsay evidence.
(c) Residual Hearsay
(i) Additional Facts
In 2002, M.F. disclosed to her first grade teacher, West,
that someone was hurting her and identified the person. A
Lincoln police officer, Kevin Hinton, then interviewed M.F.
at a child advocacy center. Subsequently, Hinton interviewed
West. Hinton compiled the interviews into a report.
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During trial, Martinez notified the State of his intent to enter
Hinton’s report under the residual hearsay exception.
At trial, Hinton testified concerning the investigation he
conducted and his interview with M.F. Martinez inquired into
the questions that West asked M.F. The State objected based
on hearsay. The court excused the jury, and Martinez made
an offer of proof. Martinez argued that West’s statements to
Hinton in his police report qualify under the residual hear-
say exception of Neb. Evid. R. 803(23), Neb. Rev. Stat.
§ 27-803(23) (Reissue 2016).
The district court sustained the hearsay objection.
(ii) Discussion
Martinez argues that Hinton’s report should have been
admitted under the residual hearsay exception, because
West’s statements to Hinton were trustworthy and material
to the identification of who sexually assaulted M.F. He fur-
ther argues that M.F.’s statements should have been admitted
under the excited utterance exception and that Hinton’s state-
ments were not hearsay but offered as context for M.F.’s and
West’s statements.
[6] Martinez’ arguments concerning excited utterance and
context were not preserved for appellate review. An objection,
based on a specific ground and properly overruled, does not
preserve a question for appellate review on any other ground. 31
Because at trial Martinez raised only the residual hearsay
objection, his other grounds for admission are not properly
preserved. And we do not address them.
The State argues that Martinez “failed to comply with the
notice requirement [of rule 803(23)], which is . . . ‘manda-
tory’ as a matter of law, so his proposed evidence was properly
excluded.” 32 We agree.
31
See State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).
32
Brief for appellee at 25.
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[7] We have stated that in determining whether a state-
ment is admissible under the residual hearsay exception to
the hearsay rule, a court considers five factors: a statement’s
trustworthiness, the materiality of the statement, the proba-
tive importance of the statement, the interests of justice, and
whether notice was given to an opponent. 33 Rule 803(23) pro-
vides in part:
A statement may not be admitted under this exception
unless the proponent of it makes known to the adverse
party, sufficiently in advance of the trial or hearing to
provide the adverse party with a fair opportunity to pre-
pare to meet it, his or her intention to offer the statement
and the particulars of it, including the name and address
of the declarant.
We have held that, under Neb. Evid. R. 804(2)(e), Neb.
Rev. Stat. § 27-804(2)(e) (Reissue 2016), “‘the notice require-
ment is mandatory.’” 34 And we have further held that “[w]e
find no principled ground for deciding differently under [rule]
803(23).” 35
[8,9] Pretrial notice of an intent to admit evidence under
the residual hearsay exception is mandatory. An adverse par-
ty’s knowledge of a statement is not enough to satisfy the
notice requirement of rule 803(23). 36 The proponent of the
evidence must provide notice before trial to the adverse party
of his or her intentions to use the statement to take advantage
of the residual hearsay exception. 37 On several occasions, we
33
State v. Epp, supra note 3. See, also, State v. Stricklin, 290 Neb. 542,
861 N.W.2d 367 (2015) (applying Neb. Evid. R. 804(2)(e), Neb. Rev.
Stat. § 27-804(2)(e) (Reissue 2016): identical rule where declarant is
unavailable to testify).
34
State v. Robinson, 271 Neb. 698, 734, 715 N.W.2d 531, 562 (2006) (citing
State v. Liesy, 207 Neb. 118, 295 N.W.2d 715 (1980)).
35
State v. Castor, 262 Neb. 423, 431, 632 N.W.2d 298, 305 (2001).
36
See State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
37
Id.
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have affirmed the trial court’s exclusion of evidence based
upon a failure to give proper pretrial notice of a party’s inten-
tion to use an out-of-court statement under the residual hear-
say exception. 38
Here, the record reflects that no proper pretrial notice
was given. At trial, Martinez informed the State and district
court that he sought to admit West’s and M.F.’s statements in
Hinton’s report under the residual hearsay exception. Martinez
concedes that he “informed the State during the trial, which
was as soon as reasonably possible under the circumstances.” 39
The record clearly shows that Martinez failed to comply with
the language of rule 803(23) and give proper pretrial notice of
his intent to admit evidence as residual hearsay. We conclude
that the district court did not abuse its discretion in determin-
ing that the evidence was not admissible under the residual
hearsay exception.
2. Prior Sexual Conduct
Martinez argues that M.F. should not have been allowed to
testify regarding sexual contact that occurred in Mexico. He
contends that the evidence “violate[d] the bar on propensity
evidence” in Neb. Evid. R. 404(2) and (3), Neb. Rev. Stat.
§ 27-404(2) and (3) (Reissue 2016), and lacked “sufficient
indicia of reliability to meet the clear and convincing standard”
of rule 414. 40 The record shows that regarding the evidence of
sexual contact in Mexico, Martinez only filed a pretrial motion
and made an objection at the evidentiary hearing on that
motion. No objection was made at trial.
[10,11] An objection at trial was necessary. We have held
that because overruling a motion in limine is not a final ruling
on admissibility of evidence and, therefore, does not present
38
See, id; State v. Robinson, supra note 34; State v. Liesy, supra note 34;
State v. Reed, 201 Neb. 800, 272 N.W.2d 759 (1978).
39
Brief for appellant at 41.
40
Brief for appellant at 30.
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a question for appellate review, a question concerning admis-
sibility of evidence which is the subject of a motion in limine
is raised and preserved for appellate review by an appropriate
objection to the evidence during trial. 41 We have explained
that the procedure of renewing an objection at trial following
a motion in limine provides an important procedural safeguard
against reversible error, because it provides the court with a
final opportunity to (1) determine the potential for prejudice
within the context of other evidence at trial and (2) exclude
unduly prejudicial evidence before it is revealed to the jury if
the court determines that it is indeed prejudicial. 42
The same reasoning applies here. Because Martinez failed to
renew his objection at trial, he has not preserved the claimed
error for appellate review. 43 Accordingly, we will not address
it. We recognize that here, the pretrial proceeding occurred
outside of the jury’s presence after the trial had begun. But that
makes no difference. When the matter came before the jury,
our procedure required an objection (which could have been
done by a request to preserve the ruling made shortly before)
in order to provide the trial court with the final opportunity for
reconsideration before the evidence reached the jury.
3. Motion to Suppress
(a) Additional Facts
In December 2017, Barry and another plain clothes officer
went to Martinez’ home to discuss the sexual assault allega-
tions. When Barry arrived at Martinez’ home, Barry spoke
to Martinez in English and Martinez responded in English.
Martinez agreed to talk with the officers and was given a ride
to the police station. During the drive, the officers did not ask
Martinez any questions.
41
State v. Wood, 296 Neb. 738, 895 N.W.2d 701 (2017).
42
See State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).
43
See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018) (failure to
make timely objection waives right to assert prejudicial error on appeal).
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At the police station, Barry was joined by Herrera. Before
the interview began, Herrera read a copy of the Miranda
waiver form, in Spanish, to Martinez. Martinez signed the
Miranda waiver form.
Prior to trial, Martinez moved to suppress any statements
made to law enforcement, asserting they were made in viola-
tion of his Miranda rights. A hearing was held at which the
parties presented evidence. In the district court’s order, it
found that based on Barry’s and Herrera’s testimony and the
law enforcement interview, Martinez was fully informed of his
Miranda rights. The court found that Martinez freely, volun-
tarily, and intelligently waived his rights and that such waiver
“was not the product of any promises, threats, force, fear,
oppression, coercion, trickery, or a will overborne.” It over-
ruled the motion to suppress.
At trial, Martinez renewed his motion to suppress. The court
overruled the motion for the same reasons.
(b) Standard of Review
[12] In reviewing a motion to suppress a statement based
on its claimed involuntariness, including claims that law
enforcement procured it by violating the safeguards estab-
lished by the U.S. Supreme Court in Miranda v. Arizona, 44
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the
trial court’s findings for clear error. Whether those facts meet
constitutional standards, however, is a question of law, which
an appellate court reviews independently of the trial court’s
determination. 45
[13] In reviewing a motion to suppress, we do not reweigh
the evidence or resolve conflicts in the evidence, but, rather,
recognize the trial court as the finder of fact and consider that
44
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
45
State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
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the trial court observed the witnesses testifying in regard to
such motions. 46
(c) Discussion
Martinez argues that the evidence shows that law enforce-
ment misled Martinez in his appreciation of the detention and
that those efforts were coercive. Martinez further argues that
the district court “unreasonabl[y] reject[ed] [his] sworn testi-
mony” that “he did not sign any Miranda waiver form.” 47 This
argument invites us to pass on credibility or reweigh evidence.
We decline to do so.
[14,15] Miranda warnings are an “‘absolute prerequisite’”
to custodial interrogation; statements made during a custodial
interrogation in the absence of these warnings and a valid
Miranda waiver are inadmissible, even if otherwise volun-
tarily made. 48 If a defendant seeks suppression of a statement
because of an alleged violation of Miranda, 49 the State must
prove that the defendant validly waived his or her Miranda
rights by a preponderance of the evidence. 50
[16,17] To be a valid waiver of Miranda rights, the waiver
must be knowing and voluntary. A waiver is knowing if it is
made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to aban-
don it. A waiver is voluntary if it is the product of a free and
deliberate choice rather than through intimidation, coercion,
or deception. 51 An appellate court looks to the totality of the
circumstances to determine whether a defendant validly waived
his or her Miranda rights. 52
46
See State v. Wenke, 276 Neb. 901, 758 N.W.2d 405 (2008).
47
Brief for appellant at 37.
48
State v. Hernandez, 299 Neb. 896, 917, 911 N.W.2d 524, 543 (2018).
49
Miranda v. Arizona, supra note 44.
50
State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
51
State v. Hernandez, supra note 48.
52
See State v. Burries, supra note 50.
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The undisputed evidence shows that Martinez knowingly,
voluntarily, and intelligently waived his Miranda rights.
Both Barry and Herrera stated that Herrera read Martinez the
Miranda waiver in Spanish. When Herrera spoke Spanish,
Martinez acknowledged that he understood Herrera. Martinez
then signed the Miranda waiver form. The recorded interview
captured the same events. In the video, Martinez responded
coherently to each of the questions Herrera asked from the
Miranda waiver form and signed the form. The express writ-
ten statement of a waiver is “strong proof of the validity of
that waiver.” 53 Under a totality of the circumstances, Martinez
understood his Miranda rights and knowingly, voluntarily, and
intelligently waived them. Accordingly, the district court did
not err in overruling Martinez’ motion to suppress.
4. Sufficiency of Evidence
(a) Standard of Review
[18] In reviewing a criminal conviction for a sufficiency
of the evidence claim, whether the evidence is direct, circum-
stantial, 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. 54
(b) Discussion
Martinez makes two arguments regarding the sufficiency
of the evidence to support a conviction. First, he argues
that M.F.’s testimony lacked corroboration and, therefore, was
53
North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d
286 (1979). See State v. Burries, supra note 50.
54
State v. Devers, supra note 29.
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insufficient to find Martinez guilty. Second, he argues that
M.F.’s credibility was called into question when “she admit-
ted to lying to police officers about the alleged interactions
between her and [Martinez] at the charging stage.” 55
[19] Both of Martinez’ arguments fail. First, the State is not
required to corroborate a victim’s testimony in cases of first
degree sexual assault; if believed by the finder of fact, the
victim’s testimony alone is sufficient. 56 Therefore, if the jury
believed M.F., her testimony alone was sufficient to sustain
the conviction. Second, Martinez’ argument concerning M.F.’s
credibility invites us to pass on credibility or reweigh the evi-
dence. We decline to do so.
Viewing the evidence in the light most favorable to the
prosecution and without passing on the credibility of wit-
nesses, we conclude there was sufficient evidence for any
rational trier of fact to find Martinez guilty beyond a reason-
able doubt.
5. Excessive Sentence
(a) Standard of Review
[20] Absent an abuse of discretion by the trial court, an
appellate court will not disturb a sentence imposed within the
statutory limits. 57 An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. 58
(b) Discussion
Martinez does not dispute that his sentence is within the
statutory limits, but he contends that the district court abused
its discretion by imposing an excessive sentence. Before
55
Brief for appellant at 45.
56
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
57
State v. Montoya, supra note 4.
58
Id.
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addressing his two arguments, we recall the governing prin-
ciples of law.
[21,22] The law governing review of sentences in criminal
cases is well settled. In determining a sentence to be imposed,
relevant factors customarily considered and applied are the
defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (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. 59 The appropriateness of a sentence is necessarily
a subjective judgment and includes the sentencing judge’s
observation of the defendant’s demeanor and attitude and
all the facts and circumstances surrounding the defendant’s
life. 60 With these principles in mind, we turn to Martinez’
specific arguments.
First, Martinez argues that the district court “failed to ade-
quately weigh” 61 his limited criminal history and positive
behavior while incarcerated. He relies on his “minimal” 62
criminal history of traffic violations and a first offense driving
under the influence conviction. Second, he argues that the pre-
sentence investigation report “inflated the criminality of [his]
companions.” 63 He contends that the high-risk rating of the
companions section of his “LS/CMI” report was disproportion-
ate to the criminal history section, because both Martinez and
his friend have a driving under the influence conviction. He
asserts that this categorization “demonstrate[d] the arbitrary
nature of these categorizations.” 64
59
Id.
60
Id.
61
Brief for appellant at 47.
62
Id.
63
Id.
64
Id.
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At the sentencing hearing, the court emphasized that
Martinez’ continued denial and “victim blaming” was sig-
nificant, that “[he was] not an appropriate candidate for proba-
tion, that [he was] a risk to the community, [he was] a risk to
re-offend and that a substantial sentence must be imposed.” It
explained that his crime was serious, because as a father he
subjected his daughter to harm both for many previous years
and into the future.
The record shows that the district court reviewed the entire
presentence report, which contained the information neces-
sary to weigh the sentencing factors. In the “LS/CMI” report,
Martinez scored high risk in education/employment, compan-
ions, procriminal attitude/orientation, and antisocial patterns.
The report explained that he scored high risk in the compan-
ions section, because “[Martinez] was not able to provide
information about positive persons that he might associate with
[or] if he identified only pro-social companions, but admitted
to engaging in criminal activities using behaviors, or other
anti-social behaviors with others.”
Martinez quarrels with the weight afforded to the factors
by the sentencing court. As we have previously stated, “We
do not review sentences de novo, but only for an abuse of
discretion.” 65 We conclude that the district court did not abuse
its discretion when imposing the sentence.
V. CONCLUSION
We conclude that the district court did not err in admitting
the translated English statements by Aguirre and excluding
evidence under the residual hearsay exception. Based upon
the totality of the circumstances, we conclude that the dis-
trict court did not err in determining that Martinez waived
his Miranda rights. Viewing the evidence in the light most
favorable to the State, we further conclude that the evidence
65
State v. Blaha, 303 Neb. 415, 421, 929 N.W.2d 494, 501 (2019).
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at trial supported Martinez’ conviction. Finally, we conclude
that the district court did not abuse its discretion when impos-
ing Martinez’ sentence. Accordingly, we affirm Martinez’ con-
viction and sentence.
Affirmed.
Freudenberg, J., not participating.