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Nebraska Court of Appeals Advance Sheets

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STATE V. MONTERROSO

Cite as 33 Neb. App. 147

State of Nebraska, appellee, v.

Alvaro F. Monterroso, appellant.

___ N.W.3d ___

Filed September 10, 2024. No. A-23-735.

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 

Nebraska Supreme Court Online Library

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

09/17/2024 12:06 AM CDT
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Cite as 33 Neb. App. 147

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.
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Cite as 33 Neb. App. 147

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.
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Cite as 33 Neb. App. 147

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); 
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Cite as 33 Neb. App. 147

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 testimony 

was inadmissible due to being improper evidence under Neb. 

Rev. Stat. §§ 27-701 and 27-702 (Reissue 2016), the testimony 

was bolstering, the testimony was an indirect challenge to a 

witness’ credibility, and the probative value of the testimony 

was substantially outweighed by the danger of unfair prejudice 

under Neb. Rev. Stat. § 27-403 (Reissue 2016). Following a 

hearing, the district court overruled Monterroso’s motion with 

the exception that it sustained the motion as to the testimony 

related to percentages.

On August 8, 2023, the State made an oral motion related to 

its intent to offer into evidence, publish to the jury, and have 

read into the record translated statements from Monterroso’s law 

enforcement interview, the controlled call between Monterroso 

and N.M., and a jail call between Monterroso and two other 

individuals. Counsel for Monterroso indicated that with proper 

foundation, he would not be objecting to the admission of the 

translated statements but did object to portions being read 

into the record if not read in its entirety. Monterroso’s counsel stated, “If it’s the entire thing, that’s fine.” After the State 

agreed that it would be offering the entire transcript, the court 

indicated it was a “none issue [sic].”
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Cite as 33 Neb. App. 147

2. Trial

Trial was held over 2 days in August 2023. The State 

adduced testimony from witnesses, including N.M.; N.M.’s 

mother; Giselle Hogan, an investigator with the Lincoln Police 

Department; Vanessa Medina, a records technician with the 

Lincoln Police Department; Dr. Sturgis, a psychologist; and 

Monterroso’s friend Edwin Sandoval and his wife, Brenda 

Villalta-Bolanos. The State offered, and the court received, 

multiple exhibits, including translated transcriptions from a 

recorded controlled call between N.M. and Monterroso, a 

recorded jail call between Monterroso and two witnesses, and 

Monterroso’s recorded postarrest interview.

(a) Evidence Relating to Monterroso’s Arrest, 

Extradition, and Postarrest Interview

In June 2022, N.M. disclosed to her mother that Monterroso 

had sexually abused N.M. when she was a child. Shortly after 

N.M.’s disclosure, N.M. and her mother went to a victim’s 

assistance unit to obtain a protection order against Monterroso. 

Monterroso, who was a truckdriver, was in Pennsylvania and 

was expected to return in a few days. While at the victim’s 

assistance unit, N.M. was interviewed by Investigator Hogan 

and again disclosed that Monterroso had sexually abused her. 

After the interview, N.M. participated in a controlled call to 

Monterroso that was recorded and received into evidence. 

During the call, which was later translated and transcribed 

from Spanish to English, the following conversation occurred 

between N.M. and Monterroso:

[N.M.:] . . . [R]emember what we used to do?

[Monterroso:] (inaudible) yeah, I know, sweetheart. 

You know, things happen so —

. . . .

[N.M.:] Do you still love me in that way?

[Monterroso:] I love you whatever you want ’cause, 

uh, I really miss you.

[N.M.:] What do you think about when you think 

of me?
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[Monterroso:] Everything. I know your body.

[N.M.:] I want that way back.

[Monterroso:] You wanna — you wanna keep going 

like that?

[N.M.:] Yeah.

[Monterroso:] Okay.

[N.M.:] Tell me more.

[Monterroso:] Uh, I wanna see — I wanna see how 

your tits look now — now. I wanna taste them again.

[N.M.:] Tell me.

[Monterroso:] And I wanna eat the thing on your bottom, too. I love that thing.

. . . .

[N.M.:] — what if my mom finds out?

[Monterroso:] Uh, I don’t know. We just — we’re 

gonna to keep going, uh, was doing it — we used to do it, 

so keep on doing that way because at the beginning I was 

trying to talk to your mom and (inaudible) everything so 

that way we can all be together — we can be all together. 

But I don’t think your mom is gonna be able to look at 

that that way.

. . . .

[Monterroso:] I’m not gonna move out. I wanna be 

with you. I wanna keep making love to you. I miss you.

[N.M.:] What was your favorite thing of foreplay?

[Monterroso:] (Translating from Spanish) Eat you — 

eat you entirely.

. . . .

[N.M.:] Tell me what you’re gonna do to me.

[Monterroso:] Everything. I’m gonna eat you again.

[N.M.:] Um —

[Monterroso:] I’m gonna see how your — your thing 

on the bottom is now. I love that.

[N.M.:] What thing? Give me —

[Monterroso:] Uh —

[N.M.:] — um, give me more.
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[Monterroso:] We make a lot of love, so I really miss 

your thing on the bottom. That’s so good. And I really 

love you, so that’s why I was trying to stay away and 

everything, but that’s impossible because I can see you 

every day and, uh, you’re so good so —

[N.M.:] What do you prefer vaginal, anal?

[Monterroso:] Vaginal, (translating from Spanish) and 

for you to eat it all. I like when you eat me. I miss 

that thing.

[N.M.:] You like me to perform oral on you?

[Monterroso:] Oh, yeah.

. . . .

[N.M.:] But what do you think? What if other people 

find out, and they know that I’m your daughter?

[Monterroso:] No, because, uh, we’ve been doing this 

for a long time, and nobody finds out so —

[N.M.:] I don’t know, do you think it’s wrong?

[Monterroso:] I don’t think so. You know, all the — 

all the love (inaudible) on earth (inaudible) everything, 

people have been (inaudible) that thing, not the — who 

you are because that’s, uh — that’s your — we are part 

of the human animals. So the animals, they behave the 

same way.

So it’s just, uh — is really hard for people to understand things, but —

[N.M.:] But what if you prefer my younger self? I’m 

not — I don’t look the same.

[Monterroso:] You are the same for me. You’re always 

gonna be the same.

[N.M.:] So it - it really doesn’t bother you that I’m 

your daughter?

[Monterroso:] No. No, because, uh, I see you as a 

woman, not as a daughter so —

[N.M.:] Does it make you want me?

[Monterroso:] (Inaudible)

[N.M.:] Does it make you want me more?
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[Monterroso:] Oh, yeah.

. . . .

[Monterroso:] It’s — it’s been hard for me, too. You 

know, just — I love you so much. Is so hard for me not 

to touch you, not to do things to you, anything, so — but, 

um —

. . . .

[N.M.:] Wait, but what if you prefer me better when I 

was little than now?

[Monterroso:] You are the same to me as you are little 

— as you are now. You’re the same.

[N.M.:] Yeah, but —

[Monterroso:] You’re the same woman. The one I love 

so —

[N.M.:] But remember back then I didn’t have stretch 

marks.

[Monterroso:] It doesn’t matter. (Inaudible) listen to 

me, what you feel in your heart and how we feel to be 

together and all these stuff, that’s what it comes. The rest 

— I’m getting old, too, (inaudible) so —

[N.M.:] Yeah.

[Monterroso:] Why is gonna change anyway?

[N.M.:] But I won’t be as small.

[Monterroso:] You’re always gonna be my baby. So let 

me get — let me come home, get home, and then we can 

talk, and then we can enjoy again. And then we can figure 

out, okay?

After the controlled call, Monterroso was arrested 3 days 

later in Pennsylvania. While waiting to be extradited to 

Nebraska, Monterroso made a phone call to Sandoval and 

Villalta-Bolanos. During the recorded jail call, which was 

conducted in Spanish and later translated into English and 

transcribed, Monterroso admitted that

the biggest one there is, that’s true. But I didn’t do anything. . . . I can’t tell you if it was my daughter’s fault, 
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Cite as 33 Neb. App. 147

I can’t tell you if it was my fault because I’m an adult. I 

needed to stop all of that in the moment.

So I am aware of that . . . and that’s why I don’t have 

any problem because my conscience is clean because I 

never did anything outside of — of what we could do as 

father and daughter.

Both Sandoval and Villalta-Bolanos testified that the recording 

of the jail call conducted in Spanish was a fair and accurate 

recording of the jail call.

After being extradited from Pennsylvania, Monterroso was 

interviewed by Investigator Hogan. Investigator Hogan testified that after Monterroso waived his Miranda rights, he 

admitted having either penile-vaginal or penile-anal sex with 

his daughter, N.M., on three occasions and that they also 

participated in oral sex an undisclosed number of times. The 

interview was recorded and subsequently translated and transcribed from Spanish to English and received into evidence 

during the trial.

(b) N.M.’s Testimony

N.M. testified that she and her family moved from 

California to Nebraska in 2007. At that time, N.M. was 9 

years old. N.M. testified that Monterroso began sexually 

abusing her when she was in middle school and that the abuse 

was “actually a progression from kissing on the mouth, and 

then it was . . . digitals, finger stimulation.” She testified that 

Monterroso would

insert his fingers into my vagina, and then he moved onto 

oral, and that was his mouth on my vagina. And then — 

which moved onto my mouth on his penis, then moved to 

anal, in which he penetrated my butt with his penis. And 

then it was vaginal, in which he penetrated . . . my vagina 

with his penis.

N.M. testified that Monterroso digitally penetrated her 

vagina more than 20 times, that sexual acts occurred more 

than 50 times in her bedroom, more than 50 times in her 
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parent’s bedroom, and about 20 times in the living room. 

She testified that sometimes the abuse occurred when her 

mother was taking a shower during the evenings or when 

her mother went to the grocery store. N.M.’s mother testified 

that during the period of time when the abuse was alleged to 

have occurred, Monterroso “would make me take a shower at 

night” even though she showered every morning.

N.M. testified that the abuse began before she started her 

menstrual cycle, because her menstrual cycle started when 

she was 11 years old, and that she remembered Monterroso 

saying, “[W]e have to be more careful now,” which she 

understood to mean was to avoid pregnancy. At some point, 

N.M. told Monterroso that what they were doing was wrong 

and that she did not want it to continue. N.M. testified that 

Monterroso responded by saying that “he did not want to be 

turned in, that he said that he would rather die than go to 

jail, and then that he didn’t want me to use this as blackmail 

against him.” N.M. testified that, after that conversation, the 

abuse stopped for a few months, but then

he started groping me. . . . [E]very time he hugged me, he 

would put his hand against my breast.

He would slap my butt if my mom’s back was turned. 

He would accidentally kiss me on the lips. He would 

make sexual advances that — all of them I would reject.

N.M. testified that, although she was unsure of the specific 

date when the abuse stopped, the abuse no longer occurred 

after November 2013. N.M. explained that she knew the abuse 

stopped prior to November 2013 because at that time, she was 

16 years old and she had sustained a concussion.

(c) Dr. Sturgis’ Testimony

Dr. Sturgis testified generally as it related to “what it is 

like for kids to disclose any kind of abuse, including sexual 

abuse,” as well as the rates of disclosure, nondisclosure, and 

delayed disclosure. She testified that younger children generally do not report sexual assault right away because they do 
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not understand that what is occurring is abuse but, as they 

get older, they “feel extraordinarily guilty,” “ashamed,” and 

“dirty.” She stated that “this is probably the most difficult 

therapeutic thing to work on for either children at the time 

or adults who were molested as children.” She also stated 

children are afraid that they will not be believed; that if the 

offender is a family member, it will disrupt the family; that if 

the offender is the breadwinner, it will disrupt the family economics; and that there may be retribution by the perpetrator 

or the nonoffending caretaker. According to Dr. Sturgis, “for 

some kids, the relationship with the perpetrator is the closest one they’ve got. They love the perpetrator. They may not 

like . . . what’s happening to them, but they really don’t want 

to lose that relationship.” Specific to Hispanic families, Dr. 

Sturgis testified, “There seems to be, if it can be even more, 

a greater pressure on children in those families to not disrupt 

the family . . . . Just keep the family together, and put up with 

whatever you have to put up with.”

3. Verdicts and Sentencing

The jury found Monterroso guilty of first degree sexual 

assault of a child and incest. During sentencing, the district 

court indicated that it had reviewed the presentence investigation report (PSR), Monterroso’s statements, and the relevant 

sentencing factors. The district court found that a sentence 

less than a term of imprisonment would “depreciate the inordinately serious nature of these crimes, and would promote 

disrespect for the law” and stated:

I also sat through the trial in this matter, and it is without 

doubt one of the most egregious cases of sexual abuse I 

have seen in my many years.

. . . Monterroso selfishly sexually assaulted his daughter for many years. He violated his position of trust as 

a father, as a leader in his family, began subjecting his 

daughter to sexual activity at a young age, and manipulated the family dynamic so that he had access and 

total control.
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In his statements, both in the [PSR], as well as here 

today, he ignores his role in all of this, minimizing his 

role, blaming just about everybody else he can blame, 

certainly including his daughter, the school system, his 

family, and anybody else he can name.

He fails to acknowledge or even see the damage his 

conduct has had on his daughter as well as collaterally on 

his wife and son.

Really, in so many ways, the controlled call that was 

part of the evidence here in this case says it all. He was 

willing to continue to engage in a sexual relationship with 

his daughter.

He saw no problem with it. It had happened for years, 

he calls it love. It is not love. It is abuse. It is crime. It is 

manipulation. And it is punishable.

The court further stated that factors, including the need for 

punishment, the need for deterrence, the need to protect society from a dangerous perpetrator, and the likelihood that 

Monterroso would engage in additional criminal conduct if 

placed on probation, influenced the court’s determination that 

imprisonment was necessary.

The court sentenced Monterroso to 50 to 70 years’ imprisonment with a 15-year mandatory minimum for first degree 

sexual assault of a child and sentenced him to 10 to 20 years’ 

imprisonment for incest. The sentences were ordered to run 

consecutively, and Monterroso was given credit for 443 days 

already served. Monterroso has now appealed his convictions 

and sentences.

III. ASSIGNMENTS OF ERROR

Monterroso assigns, renumbered and restated, that the district court erred in (1) overruling his motion in limine to 

exclude the expert testimony of Dr. Sturgis; (2) admitting 

translated transcriptions from his controlled call, a jail phone 

call, and his interview with law enforcement; (3) failing to 

strike or excuse one of the jurors due to misconduct; (4) 
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finding that the evidence was sufficient to sustain his conviction for first degree sexual assault of a child; and (5) imposing 

excessive sentences; and that (6) he received ineffective assistance of trial counsel when his counsel (a) failed to request a 

“Daubert-Schaffersman” (Daubert) hearing to challenge the 

admissibility of Dr. Sturgis’ testimony and failed to renew his 

motion in limine to her testimony; (b) failed to move to strike 

one of the jurors due to his inattentiveness or alleged sleeping 

during the trial; (c) failed to object based on confrontation and 

hearsay to the admission of exhibits 8 and 11 when the translator of the statements was not called to testify at trial; and (d) 

failed to object or move to strike from the PSR a letter written 

by his former sister-in-law.

IV. STANDARD OF REVIEW

[1] 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. State v. Bryant, 

311 Neb. 206, 971 N.W.2d 146 (2022).

[2-4] 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. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 

(2020). 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. State v. Lierman, supra. An appellate court reviews the trial court’s conclusions with regard to 

evidentiary foundation and witness qualification for an abuse 

of discretion. State v. Ramirez, 287 Neb. 356, 842 N.W.2d 

694 (2014).

[5] The retention or rejection of a juror is a matter of discretion for the trial court. State v. Huff, 298 Neb. 522, 905 
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N.W.2d 59 (2017). 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. Id. Thus, the standard of review in a case 

involving discharge of a juror is whether the trial court abused 

its discretion. Id.

[6] A sentence imposed within statutory limits will not be 

disturbed on appeal absent an abuse of discretion by the trial 

court. State v. Lara, 315 Neb. 856, 2 N.W.3d 1 (2024).

[7,8] 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. State v. Npimnee, 316 Neb. 1, 2 N.W.3d 620 

(2024). 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. Id.

V. ANALYSIS

1. Motion in Limine

Monterroso first assigns that the district court erred in overruling his motion in limine to exclude Dr. Sturgis’ testimony 

related to how sexual abuse affects children in the present or 

the future. He argues that the evidence was irrelevant, as well 

as that Dr. Sturgis directly or indirectly provided testimony 

expressing an opinion that the child is believable, that the child 

is credible, or that the witness’ account has been validated, and 

was improper as stated in State v. Doan, 1 Neb. App. 484, 498 

N.W.2d 804 (1993).

[9] A motion in limine is a procedural step to prevent 

prejudicial evidence from reaching the jury. State v. Ferrin, 

305 Neb. 762, 942 N.W.2d 404 (2020). It is not the office of 
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a motion in limine to obtain a final ruling upon the ultimate 

admissibility of the evidence. Id. 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. Id.

Here, although Monterroso’s counsel filed a motion in 

limine as it related to Dr. Sturgis’ testimony, counsel did not 

object to Dr. Sturgis’ testimony when it was offered during 

the trial. Monterroso acknowledges that his counsel did not 

object to Dr. Sturgis’ testimony during the trial but nonetheless 

argues that the testimony was irrelevant. However, because 

Monterroso did not properly preserve this claim for appellate review by objecting to the testimony during trial and by 

assigning error to the court’s ruling on that trial objection, we 

need not consider this assignment of error.

2. Translated Transcriptions

Monterroso next assigns that the district court erred in 

admitting, over his foundation and “‘inaudible’ notations” 

objections in three exhibits: the translated transcriptions of the 

controlled call, the jail phone call, and his postarrest interview 

with law enforcement. Brief for appellant at 29. All three 

exhibits, which were translated from Spanish to English, were 

admitted into evidence, published to the jury, and read into 

the record.

Here, as to all of the transcriptions, Investigator Hogan testified that the process for obtaining the transcriptions required 

her to complete a report for the records unit. She testified that 

“[a]fter a transcription is done in the English language, since 

the interview was in Spanish, I’ll review that transcription 

with the audio, and I follow along to make sure that it’s a fair 

and accurate translation.” Investigator Hogan testified that she 

is bilingual; her first language is Spanish; she is proficient in 

reading, writing, speaking, and grammar in both Spanish and 

English; and she speaks in Spanish daily in both her personal 

life and her professional life.
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(a) Jail Call

As it related to the transcription of the recorded jail call, 

defense counsel objected based on “the amount of inaudibles 

that are noted on the transcript.” On appeal, Monterroso argues 

that the inaudible notations in the transcript rendered the transcription fundamentally unfair.

[10-12] In State v. Taylor, 221 Neb. 114, 117, 375 N.W.2d 

610, 613 (1985), the Nebraska Supreme Court stated:

We have held that “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.” 

State v. Loveless, 209 Neb. 583, 589, 308 N.W.2d 842, 

846 (1981).

. . . .

. . . 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. . . .’” State v. Loveless, 

supra at 589, 308 N.W.2d at 846. Even then, exclusion is 

discretionary “‘unless the unintelligible portions of a tape 

recording are so substantial as to render the recording as 

a whole untrustworthy . . . .’” Id.

Medina testified that she provides translation services for 

the Lincoln Police Department, translating from Spanish to 

English; that she translated and transcribed Monterroso’s 

recorded jail call; and that her translation and transcription of 

the jail call was a fair and accurate representation of the call.

Although the transcription shows that some inaudible portions exist, Investigator Hogan testified that “inaudible just 

means that either the person is mumbling, and you can’t make 

out what it is that they’re saying, or there’s static or something 

where you just can’t understand what the person is saying.” 

She also testified that she was able to fill in some of the “inaudibles” after she reviewed the transcription.
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Although Monterroso refers to small portions of the transcriptions that were inaudible, he fails to identify how those 

portions made the transcriptions incomplete, inaccurate, or 

an unfair representation of the audio recording. After reviewing the transcription of the recorded jail call, we find that the 

evidence adduced regarding the accuracy and completeness of 

the transcriptions was sufficient for the district court to find 

that it was reliable and trustworthy. This assignment of error is 

without error.

(b) Controlled Call and Postarrest Interview

As it related to the transcriptions of the controlled call and 

Monterroso’s postarrest interview, defense counsel objected 

based on foundation after a brief voir dire of Investigator 

Hogan wherein she stated that she did not complete the translations but was fluent in both Spanish and English and that 

the translated transcription of the call and postarrest interview 

were fair and accurate representations. Monterroso argues 

on appeal that the court erred in admitting into evidence the 

transcription of the controlled call and the postarrest interview 

because the translator of those two exhibits did not testify 

at trial.

[13] In State v. Estrada Comacho, 309 Neb. 494, 517-18, 

960 N.W.2d 739, 756 (2021), the Nebraska Supreme Court 

stated:

[I]n State v. Martinez, 306 Neb. 516, 530, 946 N.W.2d 

445, 458 (2020), we set forth foundation requirements 

for translation of a defendant’s out-of-court statements 

and stated that foundation is sufficient “where the translator . . . is initially shown by the State to be qualified by 

knowledge, skill, experience, training, or education to 

perform such translation.” . . .

. . . .

The foundation requirement under Martinez is an initial showing that the translator is “qualified by knowledge, skill, experience, training, or education to perform 
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such translation.” 306 Neb. at 530, 946 N.W.2d at 458. 

This standard does not require any particular type of 

training, education, or certification to provide translation as compared to one who is serving as an official 

interpreter of in-court testimony. Instead, it requires a 

showing that the translator’s individual knowledge, skill, 

experience, training, or education is sufficient to indicate 

that the witness is qualified for the purposes for which he 

or she is testifying.

Although the individual who completed the initial translation and transcription of the recorded controlled call and 

Monterroso’s postarrest interview did not testify during the 

trial, Investigator Hogan was present during the controlled call 

and the interview. Investigator Hogan testified that her first 

language is Spanish; that she is proficient in the reading, writing, grammar, and speaking of Spanish; and that she reviewed 

the transcriptions to ensure their accuracy. Monterroso does not 

take issue with Investigator Hogan’s skill, training, or knowledge to translate the call and postarrest interview. Instead, he 

argues that because Investigator Hogan did not perform the 

original translation, she could not corroborate the original 

translation at trial. Stated differently, Monterroso argues that 

only the original translator could provide adequate foundation to enter the translations into evidence under the criteria 

set forth in State v. Martinez, 306 Neb. 516, 946 N.W.2d 445 

(2020), abrogated on other grounds, State v. Matteson, 313 

Neb. 435, 985 N.W.2d 1 (2023). We disagree. Because foundation for the translated statement is satisfied when the translator is shown by the State to be qualified by knowledge, skill, 

experience, training, or education to perform such translation 

and because Investigator Hogan testified to her fluency, as 

well as her review of the translated documents and attested to 

their accuracy, we find that proper foundation was laid for the 

admission of the translated transcription.

[14] Further, although Monterroso appears to argue on 

appeal that the evidence was inadmissible as hearsay and a 
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violation of his right to confrontation, Monterroso did not 

assert those objections during the trial, and therefore, he 

waived appellate review on those bases. See State v. Lowman, 

308 Neb. 482, 954 N.W.2d 905 (2021) (objection, based on 

specific ground and properly overruled, does not preserve 

question for appellate review on some other ground not specified at trial). This assignment of error fails.

3. Juror Misconduct

Monterroso assigns that the district court erred in failing to 

strike or excuse a juror after he appeared to be sleeping during 

the trial or was, “at a minimum, inattentive.” Brief for appellant at 29.

[15-16] Where the jury misconduct in a criminal case 

involves juror behavior only, the burden to establish prejudice 

rests on the party claiming the misconduct. State v. Huff, 298 

Neb. 522, 905 N.W.2d 59 (2017). 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. See id.

During a sidebar outside the presence of the jury, the court 

informed counsel that “I’m watching [a named juror] sleeping, 

but he is not paying attention the same way a lot of people 

do, that’s clear, but he’s tired. But I have my eyes on him.” 

Thereafter the court took a recess, and when the jury returned 

from the recess, both parties rested. Monterroso acknowledges 

that his counsel did not seek removal of the juror or move for 

a mistrial. Instead, Monterroso argues that the district court 

specifically commented on the juror’s behavior, but failed to 

question the juror to determine if he could proceed and failed 

to excuse or replace the juror on its own motion.

[17] In State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 

(2006), abrogated on other grounds, State v. Thorpe, 280 Neb. 

11, 783 N.W.2d 749 (2010), the court addressed a defendant’s 

claim that the court erred in failing to strike the juror earlier 

in the day when he was sleeping during trial. Instead, the 
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court admonished the jury about being vigilant. After the juror 

was caught sleeping a second time, the court struck the juror. 

The Nebraska Supreme Court stated:

The record here does not suggest that the defendant was 

prejudiced. Nor did the defendant make a timely motion 

for mistrial based upon any perceived distraction. 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.

State v. Robinson, 272 Neb. at 637, 724 N.W.2d at 80.

Here, Monterroso’s counsel did not make a motion for mistrial on the basis of the juror’s conduct and therefore waived 

the alleged error. This assignment of error fails.

4. Sufficiency of Evidence

Monterroso assigns that the evidence was insufficient to 

sustain his conviction for first degree sexual assault of a child 

because the “State’s case rested wholly on the testimony, credibility, and memory of N.M.,” brief for appellant at 30; that 

N.M. was unable to place a specific date on the events; and 

that Monterroso’s admissions indicate that the alleged sexual 

assault did not occur until after N.M. was 16 years old.

[18] The relevant question 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 crimes beyond a reasonable doubt. State v. Bryant, 311 

Neb. 206, 971 N.W.2d 146 (2022).

The offense of first degree sexual assault of a child is codified at § 28-319.01(1)(b) and provides in relevant part that a 

person commits first degree sexual assault of a child “[w]hen 

he or she subjects another person who is at least twelve years 

of age but less than sixteen years of age to sexual penetration 

and the actor is twenty-five years of age or older.”

Neb. Rev. Stat. § 28-318(6) (Cum. Supp. 2022) defines 

sexual penetration as
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sexual intercourse in its ordinary meaning, cunnilingus, 

fellatio, anal intercourse, or any intrusion, however slight, 

of any part of the actor’s or victim’s body or any object 

manipulated by the actor into the genital or anal openings 

of the victim’s body which can be reasonably construed 

as being for nonmedical, nonhealth, or nonlaw enforcement purposes. Sexual penetration shall not require emission of semen.

N.M. testified that the abuse started when she was 10 years 

old and in the sixth grade because, after she started her menstrual cycle around 11 years old, Monterroso told her that 

they needed to be more careful to avoid her getting pregnant. 

N.M. testified that Monterroso performed oral sex on her, 

engaged in digital penetration of her vagina, and engaged in 

both penile-anal and penile-vaginal penetration. Monterroso, 

having been born in December 1972, was over the age of 25 at 

the time of the alleged assaults. Although Monterroso argues 

that N.M.’s testimony was unreliable as to how old she was 

when the abuse occurred, an appellate court does not reweigh 

the evidence or make credibility determinations. After reviewing the record, including, but not limited to, N.M.’s testimony 

and the transcribed statement made by Monterroso, we find 

that the district court did not err in finding that the evidence 

was sufficient to sustain his conviction for first degree sexual 

assault of a child.

5. Sentencing

Monterroso next contends that the sentences imposed 

are excessive. He contends that in light of the “Vermont 

Assessment of Sex Offender Risk-2” and the “Sex Offender 

Treatment Intervention and Progress Scale” assessing him as 

a low risk to reoffend, combined with the court’s sentences 

requiring him to “be subject to lifetime community supervision” following his release, as well as the possibility that he 

“may be the subject of a civil commitment evaluation,” the 

sentences “constitute[d] an abuse of discretion.” Brief for 

appellant at 39.
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Monterroso was convicted of one count of first degree 

sexual assault of a child, a Class IB felony. See § 28-319.01. 

Class IB felonies are generally punishable by a minimum of 

20 years’ imprisonment to a maximum of life imprisonment; 

however, the offense of first degree sexual assault of a child 

carries a mandatory minimum of 15 years’ imprisonment. See, 

Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022); § 28-319.01(2). 

See, also, State v. Russell, 291 Neb. 33, 863 N.W.2d 813 

(2015) (range of penalties for first degree sexual assault of a 

child, first offense, under § 28-319.01(2), is 15 years to life 

imprisonment).

[19-21] Having determined that the sentences imposed 

by the court were within the applicable statutory sentencing 

ranges, we proceed to consider Monterroso’s argument challenging the district court’s consideration of factors supporting 

his sentences. 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. State v. Lara, 315 Neb. 856, 2 N.W.3d 

1 (2024). 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. Id. 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. Id.

During the sentencing hearing, the district court stated that 

it had considered the PSR and the appropriate sentencing factors as defined in Neb. Rev. Stat. § 29-2260 (Reissue 2016). 

At the time the PSR was completed, Monterroso was 50 years 
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old and divorced and his two children had reached the age of 

majority. His highest level of education was seventh grade, and 

prior to his arrest, Monterroso was self-employed as a truckdriver. He had no prior criminal history with the exception 

of a speeding violation. During his interview with probation, 

Monterroso admitted that he “‘had problems’” with N.M., that 

“the problem” was “‘[w]hen she was around 15 or 16 we had 

sex,’” and that “‘[t]he problem I have is I never looked at my 

daughter, it wasn’t my fault. But because of my age that’s why 

they put everything against me.’”

Although the assessment tools assessed Monterroso as a low 

risk to reoffend, the level of service/case management inventory assessed him as a medium-high risk to reoffend. The PSR 

specifically stated that Monterroso

was noted to greatly minimize his involvement in the 

pending case. He appeared to distance himself [from] 

responsibility by suggesting [that the] school system is 

responsible for promiscuous behavior reportedly initiated by the victim in this case. His description of the 

interaction between him and the victim appears to be 

an attempt at framing himself as a victim of unfortunate circumstances. He described [some of] the reports 

of the victim to be [a] misunderstanding and others to 

have been perpetrated by her. [Monterroso] does not 

appear to take responsibility for his actions in the pending case. [Monterroso] does not appear to recognize the 

potential damage he has caused to the victim in the past 

the present in the future. [Monterroso’s] minimization 

of the pending case as well as the intrusive acts of the 

offense itself, represents aspects of an antisocial thinking pattern.

. . . Although [Monterroso] denied having any concerns with his sexual habits or sexual desires, [his] minimization of the pending case and [its] circumstances, 

suggests many of [his] answers during the interview 

do not reflect his actual risk. [Monterroso’s] continued 
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involvement in deviant sexual behaviors perpetrated 

upon the victim throughout her youth, should be noted 

to represent a significant deficit in [Monterroso’s] ability 

to appropriately regulate and express his sexual desire.

Based on our review of the record, the district court took 

the appropriate sentencing factors into consideration, noting 

the “inordinately serious nature of these crimes”; that the 

risk was “absolutely substantial” Monterroso could engage 

in additional conduct if in the community; that the need for 

deterrence was important; the level of Monterroso’s minimization of his role and blaming “just about everybody else 

he can blame, certainly including his daughter, the school 

system, his family, and anybody else he can name”; and that 

Monterroso failed to “acknowledge or even see the damage 

his conduct has had on his daughter as well as collaterally on 

his wife and son.” The district court specifically stated that 

the case was “without doubt one of the most egregious cases 

of sexual abuse I have seen in my many years.” We therefore 

find that the district court did not err in considering or weighing the appropriate sentencing factors and that the sentence 

imposed was not excessive. This assignment of error fails.

6. Ineffective Assistance of Counsel

Monterroso finally assigns that he received ineffective assistance of counsel when his trial counsel failed (a) to request a 

Daubert hearing to challenge the admissibility of Dr. Sturgis’ 

testimony and to renew his motion in limine to her testimony, 

(b) to move to strike one of the jurors due to his inattentiveness or alleged sleeping during the trial, (c) to object based on 

confrontation and hearsay to the admission of exhibits 8 and 

11 when the translator of the statements was not called to testify at trial, and (d) to object or move to strike from the PSR 

the letter submitted by his former sister-in-law.

[22-25] In State v. Lierman, 305 Neb. 289, 312-13, 940 

N.W.2d 529, 548 (2020), the Nebraska Supreme Court stated:

In reviewing claims of ineffective assistance of counsel 

on direct appeal, an appellate court decides only whether 
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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.

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. Once raised, the appellate court will 

determine whether the record on appeal is sufficient to 

review the merits of the ineffective performance claims.

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. 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.

(a) Failure to Request Daubert Hearing 

or Object to Testimony

Monterroso assigns that his trial counsel was ineffective for 

failing to request a Daubert hearing or renew counsel’s objection to Dr. Sturgis’ expert testimony during trial.

Prior to trial, Monterroso’s counsel filed a motion in limine 

to exclude specific testimony of Dr. Sturgis. In the motion, 

counsel sought to prohibit the State from adducing
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any evidence or testimony at trial from [Dr.] Sturgis or 

any other witness regarding supposed percentages or 

rates of children that make false allegations of sexual 

abuse, due to this being improper evidence under 27-701, 

27-702, is bolstering, is indirectly commenting on their 

credibility, and the probative value is substantially outweighed by the danger of unfair prejudice under 27-403. 

The defense also asks the court to prohibit [Dr.] Sturgis 

or any other witness from explaining their definition of 

trauma and speculating whether the alleged victims have 

or will suffer trauma, discussing how sexual abuse could 

affect children later, what symptoms sexual abuse could 

cause later in life, or what the lasting consequences 

could be.

The court sustained the motion in part as it related to the percentages and overruled the remainder of the motion. Counsel 

did not make any further motions related to Dr. Sturgis’ testimony or her qualifications. During the trial, Monterroso’s 

counsel did not object to any of Dr. Sturgis’ testimony, nor did 

he renew the objections raised in his motion in limine.

Dr. Sturgis testified that she was a licensed psychologist 

and involved with the “American Psychological Association; 

Nebraska Psychological Association; The American Professional Society on the Abuse of Children, APSAC; and 

Clinical Hypnosis Society; and . . . Professional Health Care 

Providers.” Dr. Sturgis testified that she stayed current with 

the research and literature in the area of child sexual assault, 

including attending conferences and workshops, and that she 

is involved in training and consulting for child sexual assault 

for the Department of Health and Human Services workers. 

Dr. Sturgis’ curriculum vitae and a list of her continuing education for the last 40 years was offered and received into evidence during the trial. Dr. Sturgis provided general testimony 

during the trial related to the rates of disclosure and nondisclosure in children, the definition of delayed disclosure and 

the reasons why it occurs, cultural differences in relation to 
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disclosure of abuse and sexual abuse, the definition of grooming, research related to adults making disclosure of abuse that 

occurred during their childhood, and difficulties in remembering specific instances of abuse.

Monterroso argues his counsel was ineffective in failing 

to challenge certain testimony from Dr. Sturgis on Daubert

grounds. Specifically, he argues that Dr. Sturgis failed to 

establish the “methodology and the research she relied upon 

in testifying about [the following] subjects, and, from a 

Daubert standpoint, whether the research on which she relied 

and testified either has been or can be tested, or the methodology underlying her testimony.” Brief for appellant at 33. As to 

the subjects he challenges, Monterroso argues:

Dr. Sturgis testified at trial regarding a number of 

subjects, including why children don’t tell about sexual 

assaults right away, including that they don’t understand that what is happening is abusive[;] that they feel 

guilt, shame, or responsibility[;] that they fear not being 

believed[;] that it may disrupt the family[;] that they are 

sometimes afraid of retribution[;] and that they do not 

want to lose the relationship with the perpetrator. . . . She 

also testified, without objection, regarding cultural differences relating to delayed disclosure, specifically among 

Hispanic families. . . . She testified regarding why a child 

“would put up with sexual abuse for an extended period 

of time.” . . . She testified regarding “grooming,” and 

“the ways that perpetrators will groom the child.” . . . She 

testified regarding why children “sometimes have difficulty saying exactly what abuse took place[.]”

Brief for appellant at 33.

Taken together, we read Monterroso’s argument as claiming 

his counsel was ineffective for not objecting to Dr. Sturgis’ 

testimony governing the subjects of delayed disclosure and 

grooming, because the methodologies or science governing these principles have not been generally accepted in the 
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medical community and should not have been presented to the 

jury. We disagree.

In State v. McCurdy, 25 Neb. App. 486, 908 N.W.2d 407 

(2018), affirmed on other grounds 301 Neb. 343, 918 N.W.2d 

292, Dr. Sturgis provided similar testimony regarding the subject of delayed disclosure. In reviewing the admissibility of 

this subject area, our court held:

The primary purpose of Sturgis’ testimony, as limited 

after McCurdy’s pretrial motion in limine, was to provide the jury with background concerning child victims 

and how they differ from adult victims. The Nebraska 

Supreme Court has previously approved of the use of 

the type of testimony given by Sturgis. See, e.g., State 

v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010). The 

court has noted that this type of evidence is helpful 

because “‘“[f]ew jurors have sufficient familiarity with 

child sexual abuse to understand the dynamics of a sexually abusive relationship,” and “the behavior exhibited by 

sexually abused children is often contrary to what most 

adults would expect.”’” Id. at 973, 792 N.W.2d at 154, 

quoting State v. Roenfeldt, 241 Neb. 30, 486 N.W.2d 

197 (1992).

State v. McCurdy, 25 Neb. App. at 500, 908 N.W.2d at 418.

Although our court analyzed the expert testimony in 

McCurdy as it related to the defendant’s challenge that the 

testimony improperly bolstered the victim’s credibility, we 

recognize the long line of authority in Nebraska allowing the 

use of this testimony over foundational challenges. See, State 

v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010); State v. 

Roenfeldt, 241 Neb. 30, 486 N.W.2d 197 (1992). Because we 

find that a challenge to the generally accepted scientific basis 

for this testimony would have been rejected, we find that the 

record is sufficient to consider this assignment of error on 

direct appeal and that Monterroso cannot establish prejudice 

thereon. The same can be said for Dr. Sturgis’ generalized 

testimony regarding grooming behavior. See State v. Greer, 
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312 Neb. 351, 979 N.W.2d 101 (2022). Because we find that 

a Daubert challenge to Dr. Sturgis’ generalized testimony 

on delayed disclosures and grooming on the basis of inadequate medical acceptance would have been rejected, we find 

Monterroso cannot establish prejudice and his challenges as 

to ineffective assistance on this basis fail.

(b) Failure to Strike Juror

Monterroso argues that his counsel was ineffective for failing to request that the court strike a sleeping or inattentive 

juror.

Where the jury misconduct in a criminal case involves juror 

behavior only, the burden to establish prejudice rests on the 

party claiming the misconduct. State v. Huff, 298 Neb. 522, 

905 N.W.2d 59 (2017). The party seeking to discharge the 

juror has the burden to show that the juror was biased, engaged 

in misconduct, or was otherwise unable to continue to serve. 

See id.

During Investigator Hogan’s testimony, the court stated to 

an unidentified person, “I’m going to stop you for just a 

minute. We need to — I think we have — if you are feeling 

a little sleepy, you are welcome to stand up so that you can 

stay awake.” Later in the trial, the court directed counsel to 

approach and a sidebar commenced wherein the following colloquy ensued:

THE COURT: I’m watching [a named juror] sleeping, but he is not paying attention the same way a lot of 

people do, that’s clear, but he’s tired. But I have my eyes 

on him.

[The State:] Okay. Okay.

THE COURT: You going rest? You want to do that 

right now in this fashion? Do you want to take a break 

because we probably have to talk to him?

[Defense counsel:] I do want to take a short break.

THE COURT: And you probably want to make a 

motion outside the presence —

[Defense counsel:] Can I do that after [the State] rests?
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THE COURT: Okay.

. . . .

THE COURT: Well, I think we’re going to give them 

a 45 minute recess, and come back at three o’clock with 

them, but we’ll do all of our stuff outside of their presence first, and then come back, you rest on the record, 

you can make the motion that you made outside the presence. I’ll overrule it, and in all likelihood move forward.

Defense counsel did not object, move to strike, or make a 

motion for a mistrial.

The record here is not sufficient to determine why counsel decided not to request that the juror be stricken or failed 

to move for a mistrial. See State v. Burries, 297 Neb. 367, 

900 N.W.2d 483 (2017) (record insufficient to address claim 

that trial counsel failed to make record and either move for 

replacement of juror or move for mistrial when juror repeatedly slept through much of trial). Therefore, we conclude that 

this assignment of error cannot be adequately reviewed in this 

direct appeal.

(c) Failure to Object to Translated 

Transcriptions of Controlled Call 

and Postarrest Interview

Monterroso next assigns that his counsel was ineffective 

for failing to pose hearsay and confrontation objections to 

the translated transcriptions of the controlled call between 

Monterroso and N.M. and the interview between Investigator 

Hogan and Monterroso on the basis that the translator of those 

statements was not called to testify.

Prior to trial, the State made an oral motion to determine 

the admissibility of Monterroso’s translated and transcribed 

statements made during a controlled call with N.M., a jail 

call between Monterroso and two witnesses, and Monterroso’s 

postarrest interview with law enforcement. After the parties 

agreed that the entirety of the statements would be read into the 

record, defense counsel indicated he did not have an objection 
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STATE V. MONTERROSO

Cite as 33 Neb. App. 147

assuming there was proper foundation laid for the exhibits. 

During the trial, defense counsel objected to the transcripts of 

the controlled call and his postarrest interview based on foundation and “inaudibles” in the transcripts.

Monterroso argues that his counsel’s objections to the transcriptions offered and received were deficient because they 

failed to include objections on the basis of hearsay and 

the right to confrontation governing the translator of the 

transcriptions who was not called to testify. Instead, as we 

mentioned before, the State relied upon the investigator who 

reviewed the transcriptions and testified that they were accurately transcribed.

Monterroso acknowledges that

[i]n [State v.] Martinez, [306 Neb. 516, 946 N.W.2d 445 

(2020), abrogated on other grounds, State v. Matteson, 

313 Neb. 435, 985 N.W.2d 1 (2023),] the Court stated 

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 

testified at trial and is subject to cross-examination, the 

translation is admissible as non-hearsay[.]” Martinez, 306 

Neb. at 530.

Brief for appellant at 35-36. However, he argues the original 

translator’s absence from trial negates that rule. We disagree.

Here, the State called Investigator Hogan at trial. Investigator 

Hogan testified that she was fluent in Spanish and English and 

that the translation was accurate. Further, because Investigator 

Hogan was subject to cross-examination, we find the State 

complied with the rule articulated in Martinez, thereby rendering the statements nonhearsay and not subject to a confrontation challenge. We further find that the record is sufficient to 

demonstrate that any objection by Monterroso’s counsel on 

that basis would have been denied. This claim of ineffective 

assistance of counsel fails.
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STATE V. MONTERROSO

Cite as 33 Neb. App. 147

(d) Failure to Object to Inclusion 

of Letter in PSR

Monterroso assigns that his trial counsel was ineffective in 

failing to object to the inclusion in the PSR of a letter from 

his former sister-in-law in which she indicated that she had 

also been a victim of Monterroso. He argues that those allegations were not presented as evidence during the trial, that his 

former sister-in-law does not satisfy the statutory definition 

of a victim, and that, although Neb. Rev. Stat. § 29-2261(3) 

(Supp. 2023) permits the inclusion of other information that 

probation deems relevant, the statute does not warrant the 

“unbounded inclusion of letters” which are “beyond the 

bounds of relevancy.” Brief for appellant at 37.

However, in State v. Gleaton, 316 Neb. 114, 137-38, 3 

N.W.3d 334, 351 (2024), the Nebraska Supreme Court rejected 

that same argument, stating, “[W]e have, on numerous occasions, rejected arguments that the Nebraska Crime Victim’s 

Reparations Act prohibits a sentencing court from receiving 

information from individuals other than those specifically identified as victims in that statute.” Additionally, the rights set 

forth in Neb. Rev. Stat. § 81-1848 (Cum. Supp. 2022) are 

baseline rights and do not limit a sentencing court’s discretion 

to consider evidence from a variety of sources. State v. Hurd, 

307 Neb. 393, 949 N.W.2d 339 (2020).

[26] Accordingly, we find that any objection made by trial 

counsel to the court’s receipt of the letter would have been 

meritless. And, as a matter of law, counsel cannot be ineffective 

for failing to raise a meritless argument. State v. Schwaderer, 

296 Neb. 932, 898 N.W.2d 318 (2017). Therefore, we reject 

Monterroso’s assignment that his counsel was ineffective for 

failing to object to the letter’s inclusion in the PSR.

VI. CONCLUSION

Having rejected Monterroso’s assigned errors, with the 

exception of any preserved claims for postconviction, we 

affirm Monterroso’s convictions and sentences.

Affirmed.