State v. Monterroso

1

33 Neb.App. 147

State of Nebraska, appellee, v. Alvaro F. Monterroso, appellant.

No. A-23-735

Court of Appeals of Nebraska

September 10, 2024

1. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for the sufficiency of the evidence, an appellate court determines whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

2. 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.

3. 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.

4. Trial: Evidence: Appeal and Error. An appellate court reviews the trial court's conclusions with regard to evidentiary foundation and witness qualification for an abuse of discretion.

5. Trial: Juries: Appeal and Error. The retention or rejection of a juror is a matter of discretion for the trial court. This rule applies both to the issue of whether a venireperson should be removed for cause and to the situation involving the retention of a juror after the commencement of trial. Thus, the standard of review in a case involving discharge of a juror is whether the trial court abused its discretion.

6. Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.

7. Effectiveness of Counsel: Constitutional Law Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement.

8. Effectiveness of Counsel: Appeal and Error. In reviewing a claim of ineffective assistance of counsel on direct appeal, an appellate court determines as a matter of law whether the record conclusively shows that (1) a defense counsel's performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel's alleged deficient performance.

9. Trial: Pretrial Procedure: Pleadings: Evidence Juries: Appeal and Error. A motion in limine is a procedural step to prevent prejudicial evidence from reaching the jury. It is not the office of a motion in limine to obtain a final ruling upon the ultimate admissibility of the evidence. Therefore, when a court overrules a motion in limine to exclude evidence, the movant must object when the particular evidence is offered at trial in order to predicate error before an appellate court.

10. Trial: Tape Recordings: Evidence Corroboration. Tape recordings of relevant and material conversations are admissible as evidence of such conversations and in corroboration of oral testimony of the conversations, provided proper foundation is laid.

11. Trial: Tape Recordings: Juries. Partial inaudibility or indistinctness does not require exclusion of a sound recording unless those portions are so inaudible and indistinct that the jury must speculate as to what was said.

12. Trial: Tape Recordings: Evidence. A recording is admissible unless the unintelligible portions of the tape recording are so substantial as to render the recording as a whole untrustworthy.

13. Witnesses: Interpreters. Foundation is sufficient 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.

14. Appeal and Error. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on some other ground not specified at trial.

15. Criminal Law: Juror Misconduct: Proof. Where the jury misconduct in a criminal case involves juror behavior only, the burden to establish prejudice rests on the party claiming misconduct.

16. ___: ___: ___. The party seeking to discharge a juror has the burden to show that the juror was biased, engaged in misconduct, or was otherwise unable to continue to serve.

17. Trial: Motions for Mistrial: Waiver: Appeal and Error. When a party has knowledge during trial of irregularity or misconduct, the party must timely assert his or her right to a mistrial. One may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error.

18. Convictions: Evidence: Appeal and Error. 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.

19. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors, as well as any applicable legal principles in determining the sentence to be imposed.

20. ___: ___. When imposing a sentence, the sentencing court is to consider the defendant's (1) age, (2) mentality, (3) education and experience, (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.

21. Sentences. The appropriateness of a sentence is necessarily a subjective judgment that includes the sentencing judge's observations of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

22. Effectiveness of Counsel: Appeal and Error. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance.

23. ___: ___. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record.

24. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. In order to know whether the record is insufficient to address assertions on direct appeal that trial counsel was ineffective, appellate counsel must assign and argue deficiency with enough particularity (1) for an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) for a district court later reviewing a petition for postconviction relief to be able to recognize whether the claim was brought before the appellate court.

25. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of ineffective assistance of trial counsel is raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel.

26. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffective for failing to raise a meritless argument.

Appeal from the District Court for Lancaster County: Jodi L. Nelson, Judge. Affirmed.

Kristi J. Egger, Lancaster County Public Defender, and Matthew F. Meyerle for appellant.

Michael T. Hilgers, Attorney General, and P. Christian Adamski for appellee.

Pirtle, Chief Judge, and Arterburn and Welch, Judges.

WELCH, JUDGE

I. INTRODUCTION

Alvaro F. Monterroso appeals from his jury convictions for first degree sexual assault of a child and incest. He contends that the district court committed evidentiary errors, erred in failing to strike a juror for misconduct, erred in finding the evidence was sufficient to sustain his conviction of first degree sexual assault of a child, and imposed excessive sentences. He also contends that his trial counsel was ineffective. For the reasons stated herein, we affirm.

II. STATEMENT OF FACTS

In June 2022, 24-year-old N.M. disclosed to her mother that Monterroso had sexually abused her when she was a child. Monterroso is N.M.'s biological father. After Monterroso admitted, during a recorded controlled call, that he had sexually abused N.M., the State charged him with first degree sexual assault of a child, a Class IB felony, and incest, a Class III felony. See, Neb. Rev. Stat. § 28-319.01(2) (Reissue 2016); Neb. Rev. Stat. § 28-703 (Reissue 2016). An amended information was filed that amended the dates of the offenses, alleging them to have occurred on, about, or between July 1, 2007, and October 14, 2013.

1. Pretrial Motions

Prior to trial, Monterroso filed a motion in limine to exclude the expert testimony of Dr. Barbara Sturgis relating to percentages or rates of children that make false allegations of sexual abuse; explaining her definition of trauma; and speculating on whether the alleged victims have or will suffer trauma, how sexual abuse could affect children later what symptoms sexual abuse could cause later in life, or what the lasting consequences could be. Monterroso alleged that the...