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302 Nebraska Report

STATE v. FUENTES

Cite as 302 Neb. 919

State of Nebraska, appellee, v.

Timothy L. Fuentes, appel

___ N.W.2d ___

Filed April 19, 2019. No. S-18-122.

1. Postconviction: Evidence: Appeal and Error. In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier 

of fact, resolves conflicts in the evidence and questions of fact. An 

appellate court upholds the trial court’s factual findings unless they are 

clearly erroneous.

2. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

3. Effectiveness of Counsel: Appeal and Error. When reviewing a 

claim of ineffective assistance of counsel, an appellate court reviews 

the factual findings of the lower court for clear error. With regard to 

questions of counsel’s performance or prejudice to the defendant as 

part of the two-pronged test articulated in Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court 

reviews such legal determinations independently of the lower court’s 

conclusion.

4. Constitutional Law: Due Process: Trial: Judges. The right to an 

impartial judge is guaranteed under the Due Process Clauses of the U.S. 

and Nebraska Constitutions, the parameters of which are coextensive.

5. Constitutional Law: Trial: Judges: Proof. In order to show a constitutional violation of the right to an impartial judge, a defendant must 

prove actual bias or structural error.

6. Trial: Judges: Words and Phrases. Structural error occurs when the 

defendant shows that a judge has such a strong personal or financial 

interest in the outcome of the trial that he or she was unable to hold the 

proper balance between the State and the accused.

7. Postconviction: Trial: Presumptions: Appeal and Error. Although 

structural error requires automatic dismissal if brought on direct appeal, 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/03/2019 02:06 AM CDT
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not all structural error will result in a presumption of prejudice when 

raised in a motion for postconviction relief.

8. Judges: Recusal. Instances in which the judge’s impartiality might 

reasonably be questioned specifically include where the judge has a 

personal bias or prejudice concerning a party or a party’s lawyer.

9. Judges: Recusal: Presumptions. A defendant seeking to disqualify a 

judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

10. Constitutional Law: Identification Procedures: Due Process. An 

identification procedure is constitutionally invalid only when it is so 

unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law.

11. Identification Procedures. Whether identification procedures were 

unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of 

the totality of the circumstances surrounding the procedures.

12. ____. The factors to be considered in determining whether identification procedures were unduly suggestive and conducive to a substantial 

likelihood of irreparable mistaken identification are the opportunity of 

the witness to view the criminal at the time of the crime, the witness’ 

degree of attention, the accuracy of the witness’ prior description of the 

criminal, the level of certainty demonstrated by the witness, and the 

length of time between the crime and the identification.

Appeal from the District Court for Scotts Bluff County: 

Andrea D. Miller, Judge. Affir

Leonard G. Tabor for appellant.

Douglas J. Peterson, Attorney General, Erin E. Tangeman, 

Derek Bral, Senior Certified Law Student, and, on brief, Sarah 

E. Marfisi for appellant.

Heavican, C.J., Cassel, Stacy, Funke, and Pa

Heavican, C

INTRODUCTION

Timothy L. Fuentes was convicted of third degree sexual 

assault of a child, second offense, and sentenced to 50 to 

50 years’ imprisonment. His conviction and sentence were 
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STATE v. FUENTES

Cite as 302 Neb. 919

affirmed on direct appeal. Fuentes filed a motion seeking 

postconviction relief. Following an evidentiary hearing, 

the district court denied Fuentes’ motion. He appeals. We 

affirm.

FACTUAL BACKGROUND

The facts leading to Fuentes’ conviction show that on 

August 21, 2012, Fuentes visited the upstairs apartment of a 

converted house. The victim, Analicia B., was outside of the 

house at the time of Fuentes’ visit. Analicia’s family lived in 

the basement apartment of the same house. Analicia testified 

that Fuentes arrived at the home while her stepfather, Gabriel 

T., had been outside. Analicia further testified that Fuentes 

went into the upstairs apartment and that Gabriel went into the 

basement apartment, leaving Analicia and her sister outside. 

Fuentes left the upstairs apartment approximately 5 minutes 

later, while Gabriel was still in the basement apartment. 

Analicia testified that as he left, Fuentes “slid his finger” of 

his right hand up and then sideways on Analicia’s genital area 

over her clothing.

Analicia immediately reported the touching to her parents, and law enforcement was contacted. A few days later, 

Analicia identified Fuentes out of a photographic array (photo 

array) that included photographs of Fuentes and five other 

individuals.

Fuentes was charged with third degree sexual assault of a 

child. A first jury trial ended in a mistrial because of a deadlocked jury; Fuentes was convicted following the second trial. 

His conviction and sentence were affirmed on direct appeal in 

a memorandum opinion filed by the Nebraska Court of Appeals 

on February 26, 2014, in case No. A-13-340.

Fuentes subsequently filed a pro se motion seeking postconviction relief. Fuentes was represented by an attorney from 

the Scotts Bluff County public defender’s office at trial and on 

direct appeal, and he is represented by appointed counsel in 

this appeal. Fuentes asserts that trial counsel was ineffective 
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at trial and on appeal by failing to (1) argue ineffective assistance of counsel on direct appeal; (2) file a motion to suppress 

statements; (3) file a motion to recuse the trial judge; (4) file 

a motion in limine; (5) file a motion to suppress the photo 

array; (6) investigate and depose Analicia, an unknown adult, 

and Gabriel; (7) object to jury instructions Nos. 1 and 5; (8) 

object to exhibit 5; (9) object to the testimony of DelMaria 

B., Analicia’s mother; and (10) file a motion to dismiss at the 

conclusion of the State’s evidence.

Because the trial judge had retired, a new district court 

judge was appointed. Following an evidentiary hearing, the 

district court denied Fuentes’ motion for postconviction relief. 

Fuentes appeals.

ASSIGNMENT OF ERROR

Fuentes assigns that the district court erred in denying his 

motion for postconviction relief.

STANDARD OF REVIEW

[1] In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves 

conflicts in the evidence and questions of fact. An appellate 

court upholds the trial court’s factual findings unless they are 

clearly erroneous.1

[2,3] A claim that defense counsel provided ineffective 

assistance presents a mixed question of law and fact.2 When 

reviewing a claim of ineffective assistance of counsel, an 

appellate court reviews the factual findings of the lower court 

for clear error. With regard to questions of counsel’s performance or prejudice to the defendant as part of the two-pronged 

test articulated in Strickland v. Washington,

3

 an appellate court 

1 State v. Huston, 302 Neb. 202, 922 N.W.2d 723 (2019).

2 Id.

3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).
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reviews such legal determinations independently of the lower 

court’s conclusion.4

ANALYSIS

Fuentes contends on appeal that the district court erred 

in denying his motion for postconviction relief and asserts 

various grounds in support of his assignment of error. Fuentes 

argues that counsel was ineffective in failing to (1) file a 

motion to suppress the photo array and out-of-court identification of Fuentes, (2) investigate and depose a clerk at the 

liquor store next door to the victim’s residence at the time 

of the alleged sexual assault, (3) investigate and depose an 

acquaintance of Fuentes who was at the liquor store the day of 

the incident, (4) investigate and depose a coworker of Fuentes, 

(5) investigate and depose the unknown male witness at the 

time of the sexual assault, (6) raise an intoxication defense, (7) 

seek the recusal of the district court judge, (8) have Fuentes 

take a polygraph examination, (9) engage in plea negotiations 

or communicate plea offers from the State to Fuentes, and 

(10) adequately explore inaccuracies in the testimony of several witnesses.

Several of these assignments of error can be rejected because 

they were not raised in Fuentes’ motion. The motion does not 

raise an ineffectiveness claim with respect to three witnesses—

the liquor store clerk, Fuentes’ acquaintance, or his coworker. 

Nor does that motion assert ineffectiveness with regard to 

the failure to raise the intoxication defense, seek a polygraph 

examination, engage in plea negotiations, or communicate 

plea deals. As such, we turn to the arguments both raised in 

Fuentes’ motion and preserved on appeal.

Failure to Seek Recusal of 

District Court Judge.

Fuentes contends that the trial judge should have recused 

himself, because the judge assigned to his case had previously 

4 Huston, supra note 1.
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represented him on a criminal matter in 1995. Fuentes further 

contends that trial counsel was ineffective for not seeking 

such recusal.

[4-7] The right to an impartial judge is guaranteed under the 

Due Process Clauses of the U.S. and Nebraska Constitutions, 

the parameters of which are coextensive.5 In order to show a 

constitutional violation of the right to an impartial judge, a 

defendant must prove actual bias or structural error.6 Structural 

error occurs when the defendant shows that a judge has such 

a strong personal or financial interest in the outcome of the 

trial that he or she was unable to hold the proper balance 

between the State and the accused.7 Although structural error 

requires automatic dismissal if brought on direct appeal, not all 

structural error will result in a presumption of prejudice when 

raised in a motion for postconviction relief.8

[8,9] In addition to the constitutional right to an impartial 

judge, the Nebraska Revised Code of Judicial Conduct states 

that a judge must recuse himself or herself from a case if the 

judge’s impartiality might reasonably be questioned.9 Under 

the code, such instances in which the judge’s impartiality 

might reasonably be questioned specifically include where 

“‘“[t]he judge has a personal bias or prejudice concerning 

a party or a party’s lawyer . . . .”’”10 However, a defendant 

seeking to disqualify a judge on the basis of bias or prejudice 

bears the heavy burden of overcoming the presumption of judicial impartiality.11

5 State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).

6 Id.

7 Id.

8 See Weaver v. Massachusetts, ___ U.S. ___, 137 S. Ct. 1899, 198 L. Ed. 

2d 420 (2017).

9 State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017). 

10 Id. at 314, 893 N.W.2d at 438.

11 Buttercase, supra note 9.
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Fuentes essentially acknowledges that this case does not 

include structural error. Nor does Fuentes argue that his trial 

judge was aware of confidential information that was harmful to Fuetnes’ case. Rather, Fuentes now argues that the trial 

judge should have recused himself due to the appearance of 

impropriety. But, as we noted in State v. Buttercase,

12 a defendant has a heavy burden to overcome the presumption of judicial 

impartiality and show that the judge has a personal bias or 

prejudice concerning the defendant.

In Buttercase, the defendant sought to force the removal 

of a judge who had presided over prior criminal charges filed 

against him. We rejected the claim, noting that “the fact that 

the court previously presided over other actions involving the 

parties and made rulings against one or another of the parties” was insufficient to show bias.13 We observed that the fact 

that a judge knows most of the attorneys practicing in his or 

her district is common, and the fact that a judge knows attorneys through professional practices and organizations does 

not, by itself, create the appearance of impropriety. We further observed that judicial rulings alone almost never constitute a valid basis for a bias or partiality motion directed to a 

trial judge.

While Buttercase dealt with a judge who had previously 

overseen charges against a defendant, we are presented here 

with a judge who, 17 years earlier, apparently represented 

the defendant in a criminal proceeding. The two cases are, 

of course, factually distinct, but both touch on whether prior 

knowledge of a defendant creates an appearance of bias.

Fuentes has not offered any evidence whatsoever to show 

that the trial judge had access to confidential information or 

even recalled representing Fuentes; that the trial judge used 

confidential, personal information in presiding over Fuentes’ 

12 Id.

13 Id. at 316, 893 N.W.2d at 439.
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trial or in sentencing him; or, indeed, that the trial judge was 

biased or prejudiced against Fuentes in any way. We also 

observe that while Fuentes suggested in his deposition that an 

oral motion seeking the trial judge’s recusal was made, there is 

no record of such an oral motion, let alone a written motion. 

Fuentes has failed to meet his burden to show that he was prejudiced by the failure of the trial court judge to recuse himself. 

There is no merit to this argument on appeal.

Failure to File Motion to 

Suppress Photo Array 

and Out-of-Court 

Identification.

Fuentes argues that counsel was ineffective in failing to file 

a motion to suppress the photo array and in failing to object to 

all testimony regarding out-of-court identification by Analicia. 

The basis of his argument appears to be his assertion that 

Analicia was not given an advisement in advance of identifying 

him from a photo array and that DelMaria’s presence impacted 

Analicia’s identification.

[10-12] An identification procedure is constitutionally 

invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant 

is denied due process of law.14 Whether identification procedures were unduly suggestive and conducive to a substantial 

likelihood of irreparable mistaken identification is to be determined by a consideration of the totality of the circumstances 

surrounding the procedures.15 The factors to be considered 

are the opportunity of the witness to view the criminal at 

the time of the crime, the witness’ degree of attention, the 

accuracy of the witness’ prior description of the criminal, the 

level of certainty demonstrated by the witness, and the length 

14 State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005).

15 Id.
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of time between the crime and the identification.16 We have 

noted that “an array of five photographs is sufficient to constitute a fair and adequate array when attempting to identify a 

single perpetrator.”17

The record contains very little information about the photo 

array. The photo array itself is not in the record. There is 

no dispute that a motion to suppress any identification arising from the photo array was not filed, and counsel did not 

otherwise object to evidence offered on the photo array and 

Analicia’s identification of Fuentes.

The officer who prepared the photo array and showed it to 

Analicia testified during trial that he was also the officer who 

first reported to the scene of the alleged assault. He further 

testified that at the time he met with Gabriel and DelMaria, 

he did not interview Analicia, because it was policy for child 

sexual assault victims to be interviewed by individuals trained 

in appropriate interview techniques.

The officer further testified that at the time he spoke with 

Gabriel and DelMaria, the couple identified Fuentes as the 

individual who had been outside their apartment at the time 

of the alleged assault, because Gabriel had been outside and 

had seen Fuentes arrive. The officer also testified that Fuentes 

was not at the scene when he arrived, but that the officer 

effected a traffic stop of Fuentes a few days later, on August 

24, 2012.

The officer additionally testified that he prepared a photo 

array of photographs of six individuals—Fuentes and five others—and showed it to Analicia, in the presence of DelMaria, 

on August 26, 2012, at the Scottsbluff Police Department. 

According to this testimony, DelMaria sat next to Analicia but 

did not say anything during the process.

16 Id.

17 State v. Swoopes, 223 Neb. 914, 918, 395 N.W.2d 500, 504 (1986), 

overruled on other grounds, State v. Jackson, 225 Neb. 843, 408 N.W.2d 

720 (1987).
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Analicia testified that the officer showed her the photo 

array and that she circled the picture of the man who touched 

her. Analicia also testified at trial that the man who touched 

her was in the courtroom at the time she was testifying, identifying Fuentes as that person.

Fuentes does not make any particular argument about the 

makeup of the photo array. Rather, he concentrates his argument on the fact that Analicia did not receive an advisement 

prior to viewing the photo array and on the fact that DelMaria 

was present during the showing of the photo array.

There are several problems with Fuentes’ contentions on 

appeal. First, there is no evidence regarding whether Analicia 

received an advisement prior to looking at the photo array 

presented to her. Fuentes’ trial counsel had passed away 

prior to the filing of the postconviction motion, but an attorney from the public defender’s office testified by deposition 

about Fuentes’ case file. There was no questioning about an 

advisement during that deposition. The office’s file was not 

offered as an exhibit to the deposition, nor is the police file 

part of the record before this court. It is not possible to know 

whether an advisement was actually given, because no one 

asked that question or offered evidence that might answer 

that question. Moreover, Fuentes cites to no authority requiring such an advisement; rather, he cites to a memorandum 

opinion of the Court of Appeals where such an advisement 

was given.18

In addition, a review of the entire record suggests that 

Fuentes was identified largely because Gabriel was aware that 

Fuentes had been on the scene at the relevant time and identified Fuentes by name to the investigating officer. The officer 

had contact with Fuentes for the first time 2 days prior to 

showing Analicia the photo array. In addition, another officer testified that he had contact with Fuentes at the police 

18 State v. Fletcher, No. A-08-723, 2009 WL 2767720 (Neb. App. Sept. 1, 

2009) (selected for posting to court website).
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department on either August 23 or 24, 2012, because Fuentes 

had heard officers were looking for him.

Finally, the issue in this case was not who touched Analicia; 

the issue was whether Analicia was touched. Fuentes does not 

deny being at the scene at the relevant time. He denied only 

that he touched Analicia.

Fuentes has not met his burden to show that he was prejudiced by any failure of counsel to suppress the photo array 

when law enforcement was aware from the time of the alleged 

incident that it was looking for Fuentes. There is no merit to 

his argument.

Failure to Adequately Explore 

Inconsistencies in Witness 

Testimonies.

Somewhat related to Fuentes’ allegations regarding the failure to investigate other witnesses is Fuentes’ contention that 

his counsel was ineffective in failing to adequately crossexamine certain witnesses regarding inconsistencies in their 

statements at trial.

In his motion, Fuentes alleges inconsistencies of several witnesses, but argues on appeal only that Analicia’s testimony was 

inconsistent. Specifically, Fuentes’ brief argues that Fuentes 

testified at his hearing that Analicia’s testimony regarding her 

identification of Fuentes was inconsistent.

Fuentes’ argument is without merit. Fuentes does not explain 

how he believes Analicia’s testimony was inconsistent and does 

not provide any other evidence to suggest actual inconsistencies in her testimony.

Moreover, our review of Analicia’s testimony reveals no 

inconsistencies of note. Analicia testified that Fuentes walked 

past her into the residence to visit the people who lived on the 

main floor of the apartment building and that about 5 minutes 

later, the same man left the building, touching her, as described 

above, on his way out. There is no real dispute that Fuentes 

was the man who entered and exited the home; the only dispute 
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is whether he touched Analicia as he left—she testified that he 

did, while Fuentes testified that he did not.

Fuentes did not meet his burden to show that his counsel was 

ineffective in failing to point out inconsistencies in Analicia’s 

testimony, because it is not at all clear to what inconsistency 

Fuentes was referring and, in any case, a review of Analicia’s 

testimony reveals no inconsistency. This assignment of error is 

without merit.

CONCLUSION

The decision of the district court dismissing Fuentes’ motion 

for postconviction relief is affirmed.

Affirmed

Miller-Lerman and Freudenberg, JJ., not participa