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State of Nebraska, appellee, v. Juan 

Gonzalez Martinez, appellant.

___ N.W.2d ___

Filed July 17, 2020. No. S-19-758.

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility.

2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

3. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

4. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings 

under the residual hearsay exception, an appellate court reviews for 

clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to admit 

evidence over a hearsay objection.

5. Rules of Evidence: Hearsay: Witnesses: Interpreters: Proof. Where 

the translator of a defendant’s out-of-court verbal or written statements 

from a foreign language to English is initially shown by the State to be 

qualified by knowledge, skill, experience, training, or education to perform such translation, and where the translator testifies at trial and is 

subject to cross-examination, the translation is admissible as nonhearsay 

under Neb. Evid. R. 801(4), and any challenges to the accuracy of the 

translation go to the weight of the evidence and not to its admissibility.

6. Appeal and Error. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any 

other ground.

Nebraska Supreme Court Online Library

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

08/28/2020 01:07 AM CDT
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7. Rules of Evidence: Hearsay. In determining whether a statement is 

admissible under the residual hearsay exception to the hearsay rule, a 

court considers five factors: a statement’s trustworthiness, the materiality of the statement, the probative importance of the statement, the 

interests of justice, and whether notice was given to an opponent.

8. Rules of Evidence: Notice. An adverse party’s knowledge of a statement is not enough to satisfy the notice requirement of Neb. Evid. 

R. 803(23).

9. Rules of Evidence: Hearsay: Pretrial Procedure: Notice. The proponent of the evidence must provide notice before trial to the adverse 

party of his or her intentions to use the statement to take advantage of 

the residual hearsay exception.

10. Trial: Evidence: Appeal and Error. Because overruling a motion in 

limine is not a final ruling on admissibility of evidence and, therefore, 

does not present a question for appellate review, a question concerning 

admissibility of evidence which is the subject of a motion in limine is 

raised and preserved for appellate review by an appropriate objection to 

the evidence during trial.

11. ____: ____: ____. The procedure of renewing an objection at trial following a motion in limine provides an important procedural safeguard 

against reversible error, because it provides the court with a final opportunity to (1) determine the potential for prejudice within the context 

of other evidence at trial and (2) exclude unduly prejudicial evidence 

before it is revealed to the jury if the court determines that it is indeed 

prejudicial.

12. Motions to Suppress: Confessions: Constitutional Law: Miranda 

Rights: Appeal and Error. In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law 

enforcement procured it by violating the safeguards established by the 

U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 

1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a two-part 

standard of review. Regarding historical facts, an appellate court reviews 

the trial court’s findings for clear error. Whether those facts meet constitutional standards, however, is a question of law, which an appellate 

court reviews independently of the trial court’s determination.

13. Motions to Suppress: Appeal and Error. In reviewing a motion to 

suppress, an appellate court does not reweigh the evidence or resolve 

conflicts in the evidence, but, rather, recognizes the trial court as the 

finder of fact and considers that the trial court observed the witnesses 

testifying in regard to such motions.

14. Miranda Rights: Waiver. Miranda warnings are an absolute prerequisite to custodial interrogation; statements made during a custodial 
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interrogation in the absence of these warnings and a valid Miranda

waiver are inadmissible, even if otherwise voluntarily made.

15. Miranda Rights: Waiver: Proof. If a defendant seeks suppression of 

a statement because of an alleged violation of Miranda v. Arizona, 384 

U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the State must prove 

that the defendant validly waived his or her Miranda rights by a preponderance of the evidence.

16. Miranda Rights: Waiver: Words and Phrases. To be a valid waiver 

of Miranda rights, the waiver must be knowing and voluntary. A waiver 

is knowing if it is made with a full awareness of both the nature of the 

right being abandoned and the consequences of the decision to abandon 

it. A waiver is voluntary if it is the product of a free and deliberate 

choice rather than through intimidation, coercion, or deception.

17. Miranda Rights: Waiver: Appeal and Error. An appellate court looks 

to the totality of the circumstances to determine whether a defendant 

validly waived his or her Miranda rights.

18. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such matters 

are for the finder of fact. The relevant question for an appellate court 

is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

19. Sexual Assault: Testimony: Proof. The State is not required to corroborate a victim’s testimony in cases of first degree sexual assault; if 

believed by the finder of fact, the victim’s testimony alone is sufficient.

20. Sentences: Appeal and Error. Absent an abuse of discretion by the trial 

court, an appellate court will not disturb a sentence imposed within the 

statutory limits.

21. Sentences. In determining a sentence to be imposed, relevant factors 

customarily considered and applied are the defendant’s (1) age, (2) 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.

22. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.
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Appeal from the District Court for Lancaster County: Jodi 

L. Nelson, Judge. Affirmed.

Joseph D. Nigro, Lancaster County Public Defender, Jennifer 

M. Houlden, and Ella Newell, Senior Certified Law Student, 

for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ.

Cassel, J.

I. INTRODUCTION

Juan Gonzalez Martinez appeals from his conviction, pursuant to a jury verdict, and sentence for first degree sexual 

assault. Martinez primarily argues that the English translation of his Spanish out-of-court statements was inadmissible 

hearsay. Because the State made a threshold showing of the 

translator’s qualifications, the translator testified at trial, and 

the translator was subject to cross-examination, the translation 

was admissible as nonhearsay and the challenges to it went to 

its weight. We find no merit in his remaining claims regarding 

the exclusion of residual hearsay evidence, admission of prior 

sexual conduct, waiver of his Miranda rights, sufficiency of the 

evidence to sustain his conviction for sexual assault, and excessive sentence. We affirm.

II. BACKGROUND

In this section, we summarize only the central facts and 

procedures. Additional background will be set forth in the 

analysis section.

The State filed an information against Martinez for three 

counts of first degree sexual assault upon his daughter, M.F. 

She was born in 1995. Because a verdict of acquittal was 

directed on counts 2 and 3 and Martinez was convicted only 
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on count 1, we summarize only the evidence regarding that 

conviction. It addressed the time period from January 2001 to 

July 2006.

In September 2017, M.F. reported the incidents to law 

enforcement authorities. At trial, she testified to the following 

events, which occurred while she was between the ages of 5 

and 11. In accordance with our standard of review, we summarize them in the light most favorable to the State.

1. Mexico

Prior to trial, Martinez filed a motion for the State to disclose what evidence it intended to offer at trial of “other 

crimes, wrongs and/or acts of the defendant” and for an evidentiary hearing.

At the evidentiary hearing, the State offered M.F.’s testimony regarding sexual contact that had occurred in Mexico. 

M.F. stated that, when she was 5 years old, she woke up to 

Martinez “rubbing on [her] vagina over [her] underwear.” She 

stated that in Mexico, it happened only once. In September 

2001, M.F. moved from Mexico to Lincoln, Nebraska, where 

the sexual conduct escalated.

The court found that evidence of the sexual contact which 

occurred in Mexico was admissible under Neb. Evid. R. 414, 

Neb. Rev. Stat. § 27-414 (Reissue 2016). It was relevant to 

show the progression of the sexual assault, and its probative 

value was not outweighed by the danger of unfair prejudice.

At trial, M.F. testified to the same events. She stated 

that Martinez rubbed his fingers on her vagina in a circular 

motion and told her to stay quiet. Martinez did not renew 

his objection.

2. Lincoln, Nebraska

At trial, M.F. stated that when she moved to Lincoln, her 

family lived in a mobile home. At that residence, when M.F. 

was 6 years old, she woke up to Martinez “rub[bing] on my 

vagina over my underwear.” She stated that it lasted several 
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minutes where “[Martinez] would use his fingers . . . in a circular motion, to rub on my vagina.” This was the only sexual 

contact which occurred at that residence.

M.F. and her family moved to an apartment. At this residence, two incidents occurred. When M.F. was 7 years old, 

Martinez asked M.F. to perform oral sex on him. Martinez took 

off both his and M.F.’s pants and underwear. He put his penis 

into her mouth. Simultaneously, he began to lick M.F.’s vagina. 

She felt uncomfortable and got off of Martinez. She stated that 

this was the only occurrence of oral sex.

When M.F. was 7 or 8 years old, the second sexual contact 

at this residence occurred. Martinez took off M.F.’s pants and 

underwear and laid her face down on a bed. He grabbed onto 

her hips, pulled her toward him, and inserted his penis into her 

anus. She stated that his penis was inserted for only a few seconds, because she “launched forward” from the pain. She got 

off the bed and ran to the bathroom.

M.F. and her family then moved to a house. At this residence, when M.F. was 9 or 10 years old, Martinez had sexual 

intercourse with her. Martinez pulled off her pants and underwear, retrieved “a square package” from under the mattress, 

and placed it on his penis. M.F. believed the square package to 

be a condom. He inserted his penis into her vagina, moved up 

and down for a few minutes, removed his penis and condom, 

and ejaculated onto her stomach.

In July 2017, M.F. told her mother about the sexual contact. 

In September, M.F. reported it to law enforcement.

3. Verdict and Sentencing

After the State rested, counts 2 and 3 of the information 

were dismissed. Martinez presented no evidence. Count 1 was 

submitted to the jury, which found Martinez guilty of first 

degree sexual assault. The district court sentenced Martinez 

to imprisonment for not less than 30 years and not more than 

40 years.
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III. ASSIGNMENTS OF ERROR

Martinez assigns, reordered and restated, that the district 

court erred when (1) it admitted Luz Aguirre’s translations of 

Martinez’ out-of-court statements as a language conduit, (2) 

it failed to admit the statements of Cindy West and M.F. as 

residual hearsay, (3) it admitted evidence of sexual contact 

that occurred outside of the time period and geographical 

jurisdiction of the charges, and (4) it admitted the videotaped 

law enforcement interview in violation of Martinez’ Miranda

rights. He further assigns that (5) the evidence was insufficient to sustain a conviction for first degree sexual assault 

and (6) the court abused its discretion by imposing an excessive sentence.

IV. ANALYSIS

1. Hearsay

(a) Standard of Review

[1,2] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules; judicial discretion is involved only 

when the rules make discretion a factor in determining admissibility. 1 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. 2

[3] An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable 

or if its action is clearly against justice or conscience, reason, 

and evidence. 3

[4] Apart from rulings under the residual hearsay exception, we review for clear error the factual findings underpinning a trial court’s hearsay ruling and review de novo the 

1 State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).

2 Id.

3 State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
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court’s ultimate determination to admit evidence over a hearsay objection. 4

(b) Spanish-to-English Translations

(i) Additional Facts

Michael Barry, a Lincoln Police Department investigator, 

conducted an investigation into the sexual assault allegations. 

Barry interviewed M.F. and later conducted two controlled 

calls from M.F. to Martinez. Both calls were made in Spanish 

and recorded. M.F. consented to a search of her cell phone. 

Law enforcement extracted text messages between Martinez 

and M.F., which were in Spanish.

Barry and Luis Herrera, another Lincoln Police Department 

investigator, conducted and recorded an interview with 

Martinez. Herrera, who spoke Spanish fluently, acted as an 

interpreter. During the interview, Herrera asked additional followup and clarification questions.

Aguirre, who testified at trial and was a bilingual records 

technician for the city of Lincoln, translated transcripts of the 

cell phone calls, text messages, and law enforcement interview. At trial, the recordings of the law enforcement interview 

and controlled cell phone calls were played for the jury. The 

original text messages, in Spanish, were admitted along with 

Aguirre’s English translation.

At trial, Martinez objected to each transcript based on foundation and hearsay.

Martinez questioned Aguirre concerning each transcript. 

Regarding the cell phone call transcripts, Martinez focused on 

Aguirre’s qualifications. Aguirre had no certifications issued 

by the State of Nebraska or state court system concerning language interpretation. Aguirre was born in Mexico, is a native 

Spanish speaker, and primarily speaks Spanish in her home.

Regarding the text messages, Martinez’ questions to Aguirre 

focused on the addition of punctuation and grammar. The 

4 State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).
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text messages from Martinez did not contain any punctuation. Aguirre stated that she added punctuation because “I 

just feel that that’s where a different sentence starts.” And 

“[a]s I’m reading it, it is a sentence because that’s the way 

I’m reading it in Spanish.” Regarding one translated statement, 

Martinez’ questions focused on its accuracy. Aguirre testified that the meaning-for-meaning translation was: “Look, you 

don’t remember what your mom did to me, and what I did to 

you is unforgivable.” Aguirre further stated that a word-forword translation was: “Look, your mom” “you don’t remember” “[w]hat you did to me” “[w]hat I did with you” “does not 

have forgiveness or apology.”

Regarding the law enforcement interview, Martinez’ examination of Aguirre focused on the translation of the word “uhhuh.” Throughout the law enforcement interview, Martinez 

replied “uh-huh” to several questions and statements, which 

appears in the transcript. Aguirre stated that when translating, 

there is a shortcut key for the response “uh-huh” that will add 

“(Yes).” Aguirre agreed that she makes no distinction “based 

on [her] perception of what [she is] listening to, whether the 

person is agreeing with what they’ve been told or acknowledging that they’re hearing and understanding what’s being said 

to them.”

The district court overruled each objection and found that 

Aguirre was acting as a language conduit for Martinez.

(ii) Discussion

Martinez makes four arguments that the district court 

improperly admitted Aguirre’s translated text messages and law 

enforcement interview as nonhearsay. First, he contends that 

the district court did not apply the factors under the language 

conduit theory. Second, he asserts that Aguirre created a new 

expression when she translated the text messages and added 

punctuation to his statements. Third, he asserts that Aguirre 

imposed a new meaning to the expression “uh-huh” when 

she translated it to “(Yes).” Lastly, he further contends that 
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the application of agency, under Neb. Evid. R. 801(4)(b)(iv), 

Neb. Rev. Stat. § 27-801(4)(b)(iv) (Reissue 2016), was an 

inaccurate application of the relationship between Aguirre and 

Martinez to admit the translations as nonhearsay.

The State argues that Aguirre’s translated statements were 

not hearsay and were properly admitted. It explained the testimony showed that Aguirre confirmed the translations were 

a true and accurate translation of the conversations and that 

Herrera reviewed the law enforcement interview translation 

and confirmed it was a true and accurate translation. The State 

contends that the evidence “was sufficient . . . to establish that 

the English translations in this case were an accurate recitation 

of Martinez’s statements.” 5

We first note that, on appeal, Martinez has challenged 

only the admission of the English translations based only on 

hearsay. Although at oral argument, Martinez claimed to have 

asserted his foundation objection in his brief, we observe that 

the word “foundation” appears nowhere in the argument section of his brief addressing the translations. We conclude that 

on appeal, he has abandoned his foundation objection.

Second, at oral argument, Martinez conceded that no 

Confrontation Clause objection was asserted at trial. As we note 

below, much of the discussion of a language conduit theory in 

case law addresses claimed violations of the Confrontation 

Clause. 6 Here, Martinez did not raise a Confrontation Clause 

objection at trial, and therefore, we address only his objection 

based on hearsay.

Third, this is not a challenge to the accuracy of a courtappointed interpreter’s rendition between Spanish and English 

during the course of a trial. Rather, Martinez contests the 

accuracy of Spanish-to-English translations of recordings of 

5 Brief for appellee at 21.

6 See, U.S. v. Charles, 722 F.3d 1319 (11th Cir. 2013); U.S. v. Nazemian, 

948 F.2d 522 (9th Cir. 1991); State v. Lopez-Ramos, 929 N.W.2d 414 

(Minn. 2019).
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Martinez’ spoken words and of text messages containing his 

written words. At trial, he thoroughly examined the translator 

regarding the translations’ correctness. And he had the opportunity—which he did not exercise—to present other evidence 

bearing on the translations’ precision or shortcomings.

a. Language Conduit Theory

A language conduit theory has generally been applied to the 

role of a foreign language interpreter. 7 In our post-Crawford v. 

Washington 8 era, a split among courts has emerged as to the 

treatment of a foreign language interpreter’s out-of-court translation of a defendant’s statements.

The majority of courts 9 still follow the “Ninth Circuit’s 

conclusion in Nazemian v. United States 10 . . . that the 

Confrontation Clause is not violated by the admission of 

translated statements.” 11 In U.S. v. Nazemian,

 12 the Ninth 

Circuit viewed the threshold question as whether the interpreter’s statements were viewed as the defendant’s own and 

constituted admissions properly characterized as nonhearsay under Fed. R. Evid. 801(d)(2)(C) or (D). The Ninth 

Circuit adopted a factored approach, which considered “which 

party supplied the interpreter, whether the interpreter had any 

motive to mislead or distort, the interpreter’s qualifications 

and language skill, and whether actions taken subsequent 

to the conversation were consistent with the statements as 

7 See id.

8 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 

(2004).

9 See, U.S. v. Martinez-Gaytan, 213 F.3d 890 (5th Cir. 2000); United States 

v. Beltran, 761 F.2d 1 (1st Cir. 1985); United States v. Da Silva, 725 F.2d 

828 (2d Cir. 1983); State v. Lopez-Ramos, supra note 6; Hernandez v. 

State, 291 Ga. App. 562, 662 S.E.2d 325 (2008); Correa v. Superior Court, 

27 Cal. 4th 444, 40 P.3d 739, 117 Cal. Rptr. 2d 27 (2002).

10 U.S. v. Nazemian, supra note 6.

11 State v. Lopez-Ramos, supra note 6, 929 N.W.2d at 420.

12 U.S. v. Nazemian, supra note 6.
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translated.” 13 This approach generally treats a translation as 

the defendant’s own statement.

The minority view adopts the position that post-Crawford

out-of-court statements made by a defendant to law enforcement and translated by an interpreter are testimonial. 14 The 

minority view found “Nazemian . . . irreconcilable with 

Crawford because the analysis in Nazemian depends on analogies to the evidentiary rules and premises the admissibility 

of an interpreter’s statements on assumed reliability.” 15 The 

minority view likened the interpreter to a third-party witness 

and has held that Crawford guaranteed the defendant’s right to 

cross-examine the interpreter.

The decision of a divided Minnesota Supreme Court illustrates the divergent approaches. 16 The majority likened a 

foreign language interpreter to a court reporter, who translates oral communications into a written format, conveying 

information but not adding content. 17 The majority noted that 

a defendant bears the burden of proving a translation was 

inadequate. 18 The dissent conceded that the Spanish versions 

of the defendant’s statements were admissible. Because the 

interpreter was not available for cross-examination, the dissent 

asserted that the translations were inadmissible. The dissent 

would have remanded the matter for a new trial where the 

State “could either offer the live testimony of the . . . interpreter, or have a different interpreter in the courtroom translate [the defendant’s] recorded statement.” 19

13 Id. at 527.

14 See, U.S. v. Charles, supra note 6; Taylor v. State, 226 Md. App. 317, 130 

A.3d 509 (2016).

15 State v. Lopez-Ramos, supra note 6, 929 N.W.2d at 421.

16 Id.

17 Id.

18 Id.

19 Id., 929 N.W.2d at 429 (Hudson, J., dissenting; Lillehaug and Thissen, JJ., 

join).
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b. Resolution

In the context of a courtroom interpreter, courts do not 

expect perfection. We have noted that while a word-for-word 

translation best ensures that the quality of the translation does 

not fall below the constitutionally permissible threshold, there 

is no constitutional right to a “‘flawless’” interpretation. 20

“‘[C]ourtroom interpretation is a demanding and inexact art, 

and . . . the languages involved may not have precise equivalents for particular words or concepts.’” 21 It follows that 

minor or isolated inaccuracies, omissions, interruptions, or 

other defects in translation are inevitable and do not warrant 

relief where the translation is on the whole reasonably timely, 

complete, and accurate, and the defects do not render the proceeding fundamentally unfair. 22

We do not believe that in a criminal case, translation of a 

defendant’s written words or a recording of his or her spoken 

words requires a higher standard of accuracy than is required 

for courtroom interpreters. Our Legislature has directed this 

court to prescribe standards for court interpreters requiring 

them to “demonstrate the ability to interpret effectively, accurately, and impartially, both receptively and expressively, using 

any necessary special vocabulary.” 23 But the oath prescribed by 

statute—requiring an interpreter, “to the best of his or her skill 

and judgment, [to] make a true interpretation”—recognizes that 

perfection is not the standard. 24 Thus, our statutes articulate 

concepts similar to those on both sides of the language conduit theory.

The heart of the hearsay rule is the inability to cross-examine 

the declarant to test the testimonial infirmities of (1) sincerity, 

20 See Tapio-Reyes v. Excel Corp., 281 Neb. 15, 27, 793 N.W.2d 319, 328 

(2011).

21 Id. (quoting Annot., 32 A.L.R.5th 149, § 72 (1995)).

22 Id.

23 Neb. Rev. Stat. § 25-2407 (Reissue 2016).

24 Neb. Rev. Stat. § 25-2405 (Reissue 2016).
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(2) ambiguity, (3) perception, and (4) memory. 25 According 

to a respected commentator, our evidence rules adopted an 

assertion-oriented definition of hearsay, while retaining nonhearsay categorization for specific declarant-oriented statements. 26 The commentator also noted that admissions were 

defined as nonhearsay as a matter of adversarial justice. 27

Clearly, Martinez’ writings or verbal statements in Spanish 

are nonhearsay. Under rule 801(4)(b)(i), “[a] statement is not 

hearsay if . . . [t]he statement is offered against a party and 

is . . . his [or her] own statement.”

We think the proper analogy regarding a translation of a 

defendant’s statements is testimony by a witness, who heard 

or read such statements, describing what the witness heard or 

read. In U.S. v. DiDomenico, Judge Posner stated:

Because a statement to be admissible as the statement of 

a party need not have been against interest when made 

(or at any time for that matter), . . . the admissibility of 

such a statement cannot convincingly be grounded in the 

presumed trustworthiness of a statement that is against the 

utterer’s self-interest to give. . . . The standard justification of its admissibility is a kind of estoppel or waiver 

theory, that a party should be entitled to rely on his opponent’s statements. 28

Even if a witness does not recall a party opponent’s statement 

with perfect accuracy, the statement is still admissible.

For example, in State v. Devers,

 29 two jailhouse informants 

testified that the defendant told the defendant’s cousin that he 

had a “‘lick’” for him. 30 One jailhouse informant stated that 

25 R. Collin Mangrum, Mangrum on Nebraska Evidence § 27-801[D](4)(a) 

(2019).

26 See id.

27 See id.

28 U.S. v. DiDomenico, 78 F.3d 294, 303 (7th Cir. 1996).

29 State v. Devers, ante p. 429, ___ N.W.2d ___ (2020).

30 Id. at 437, ___ N.W.2d at ___.
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the word “lick” meant a target for robbery, and the other stated 

that it was a robbery of a drug dealer. Both of their interpretations were admitted without objection. Interpretation takes 

place in testimony regarding modern slang or colloquial terms, 

and we do not preclude such testimony as hearsay. The keys 

are that the statement being translated from a foreign language 

originated as the defendant’s own statement and that the witness making the translation testifies in court and is subject to 

cross-examination.

[5] We hold that where the translator of a defendant’s outof-court verbal or written statements from a foreign language 

to English is initially shown by the State to be qualified by 

knowledge, skill, experience, training, or education to perform 

such translation, and where the translator testifies at trial and 

is subject to cross-examination, the translation is admissible as 

nonhearsay under rule 801(4), and any challenges to the accuracy of the translation go to the weight of the evidence and not 

to its admissibility.

Here, Aguirre testified at trial and was subject to crossexamination. Martinez thoroughly cross-examined Aguirre 

and adduced both a meaning-for-meaning and word-for-word 

translation of the statements at issue. Martinez failed to show 

how Aguirre’s translation was inaccurate or created a new 

meaning. Moreover, the jury was presented with Martinez’ 

original Spanish text messages, and they were available to him 

to present his own translation. Accordingly, the district court 

did not err in admitting the nonhearsay evidence.

(c) Residual Hearsay

(i) Additional Facts

In 2002, M.F. disclosed to her first grade teacher, West, 

that someone was hurting her and identified the person. A 

Lincoln police officer, Kevin Hinton, then interviewed M.F. 

at a child advocacy center. Subsequently, Hinton interviewed 

West. Hinton compiled the interviews into a report.
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During trial, Martinez notified the State of his intent to enter 

Hinton’s report under the residual hearsay exception.

At trial, Hinton testified concerning the investigation he 

conducted and his interview with M.F. Martinez inquired into 

the questions that West asked M.F. The State objected based 

on hearsay. The court excused the jury, and Martinez made 

an offer of proof. Martinez argued that West’s statements to 

Hinton in his police report qualify under the residual hearsay exception of Neb. Evid. R. 803(23), Neb. Rev. Stat. 

§ 27-803(23) (Reissue 2016).

The district court sustained the hearsay objection.

(ii) Discussion

Martinez argues that Hinton’s report should have been 

admitted under the residual hearsay exception, because 

West’s statements to Hinton were trustworthy and material 

to the identification of who sexually assaulted M.F. He further argues that M.F.’s statements should have been admitted 

under the excited utterance exception and that Hinton’s statements were not hearsay but offered as context for M.F.’s and 

West’s statements.

[6] Martinez’ arguments concerning excited utterance and 

context were not preserved for appellate review. An objection, 

based on a specific ground and properly overruled, does not 

preserve a question for appellate review on any other ground. 31

Because at trial Martinez raised only the residual hearsay 

objection, his other grounds for admission are not properly 

preserved. And we do not address them.

The State argues that Martinez “failed to comply with the 

notice requirement [of rule 803(23)], which is . . . ‘mandatory’ as a matter of law, so his proposed evidence was properly 

excluded.” 32 We agree.

31 See State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

32 Brief for appellee at 25.
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[7] We have stated that in determining whether a statement is admissible under the residual hearsay exception to 

the hearsay rule, a court considers five factors: a statement’s 

trustworthiness, the materiality of the statement, the probative importance of the statement, the interests of justice, and 

whether notice was given to an opponent. 33 Rule 803(23) provides in part:

A statement may not be admitted under this exception 

unless the proponent of it makes known to the adverse 

party, sufficiently in advance of the trial or hearing to 

provide the adverse party with a fair opportunity to prepare to meet it, his or her intention to offer the statement 

and the particulars of it, including the name and address 

of the declarant.

We have held that, under Neb. Evid. R. 804(2)(e), Neb. 

Rev. Stat. § 27-804(2)(e) (Reissue 2016), “‘the notice requirement is mandatory.’” 34 And we have further held that “[w]e 

find no principled ground for deciding differently under [rule] 

803(23).” 35

[8,9] Pretrial notice of an intent to admit evidence under 

the residual hearsay exception is mandatory. An adverse party’s knowledge of a statement is not enough to satisfy the 

notice requirement of rule 803(23). 36 The proponent of the 

evidence must provide notice before trial to the adverse party 

of his or her intentions to use the statement to take advantage 

of the residual hearsay exception. 37 On several occasions, we 

33 State v. Epp, supra note 3. See, also, State v. Stricklin, 290 Neb. 542, 

861 N.W.2d 367 (2015) (applying Neb. Evid. R. 804(2)(e), Neb. Rev. 

Stat. § 27-804(2)(e) (Reissue 2016): identical rule where declarant is 

unavailable to testify).

34 State v. Robinson, 271 Neb. 698, 734, 715 N.W.2d 531, 562 (2006) (citing 

State v. Liesy, 207 Neb. 118, 295 N.W.2d 715 (1980)).

35 State v. Castor, 262 Neb. 423, 431, 632 N.W.2d 298, 305 (2001).

36 See State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

37 Id.
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have affirmed the trial court’s exclusion of evidence based 

upon a failure to give proper pretrial notice of a party’s intention to use an out-of-court statement under the residual hearsay exception. 38

Here, the record reflects that no proper pretrial notice 

was given. At trial, Martinez informed the State and district 

court that he sought to admit West’s and M.F.’s statements in 

Hinton’s report under the residual hearsay exception. Martinez 

concedes that he “informed the State during the trial, which 

was as soon as reasonably possible under the circumstances.” 39

The record clearly shows that Martinez failed to comply with 

the language of rule 803(23) and give proper pretrial notice of 

his intent to admit evidence as residual hearsay. We conclude 

that the district court did not abuse its discretion in determining that the evidence was not admissible under the residual 

hearsay exception.

2. Prior Sexual Conduct

Martinez argues that M.F. should not have been allowed to 

testify regarding sexual contact that occurred in Mexico. He 

contends that the evidence “violate[d] the bar on propensity 

evidence” in Neb. Evid. R. 404(2) and (3), Neb. Rev. Stat. 

§ 27-404(2) and (3) (Reissue 2016), and lacked “sufficient 

indicia of reliability to meet the clear and convincing standard” 

of rule 414. 40 The record shows that regarding the evidence of 

sexual contact in Mexico, Martinez only filed a pretrial motion 

and made an objection at the evidentiary hearing on that 

motion. No objection was made at trial.

[10,11] An objection at trial was necessary. We have held 

that because overruling a motion in limine is not a final ruling 

on admissibility of evidence and, therefore, does not present 

38 See, id; State v. Robinson, supra note 34; State v. Liesy, supra note 34; 

State v. Reed, 201 Neb. 800, 272 N.W.2d 759 (1978).

39 Brief for appellant at 41.

40 Brief for appellant at 30.
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a question for appellate review, a question concerning admissibility of evidence which is the subject of a motion in limine 

is raised and preserved for appellate review by an appropriate 

objection to the evidence during trial. 41 We have explained 

that the procedure of renewing an objection at trial following 

a motion in limine provides an important procedural safeguard 

against reversible error, because it provides the court with a 

final opportunity to (1) determine the potential for prejudice 

within the context of other evidence at trial and (2) exclude 

unduly prejudicial evidence before it is revealed to the jury if 

the court determines that it is indeed prejudicial. 42

The same reasoning applies here. Because Martinez failed to 

renew his objection at trial, he has not preserved the claimed 

error for appellate review. 43 Accordingly, we will not address 

it. We recognize that here, the pretrial proceeding occurred 

outside of the jury’s presence after the trial had begun. But that 

makes no difference. When the matter came before the jury, 

our procedure required an objection (which could have been 

done by a request to preserve the ruling made shortly before) 

in order to provide the trial court with the final opportunity for 

reconsideration before the evidence reached the jury.

3. Motion to Suppress

(a) Additional Facts

In December 2017, Barry and another plain clothes officer 

went to Martinez’ home to discuss the sexual assault allegations. When Barry arrived at Martinez’ home, Barry spoke 

to Martinez in English and Martinez responded in English. 

Martinez agreed to talk with the officers and was given a ride 

to the police station. During the drive, the officers did not ask 

Martinez any questions.

41 State v. Wood, 296 Neb. 738, 895 N.W.2d 701 (2017).

42 See State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).

43 See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018) (failure to 

make timely objection waives right to assert prejudicial error on appeal).
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At the police station, Barry was joined by Herrera. Before 

the interview began, Herrera read a copy of the Miranda

waiver form, in Spanish, to Martinez. Martinez signed the 

Miranda waiver form.

Prior to trial, Martinez moved to suppress any statements 

made to law enforcement, asserting they were made in violation of his Miranda rights. A hearing was held at which the 

parties presented evidence. In the district court’s order, it 

found that based on Barry’s and Herrera’s testimony and the 

law enforcement interview, Martinez was fully informed of his 

Miranda rights. The court found that Martinez freely, voluntarily, and intelligently waived his rights and that such waiver 

“was not the product of any promises, threats, force, fear, 

oppression, coercion, trickery, or a will overborne.” It overruled the motion to suppress.

At trial, Martinez renewed his motion to suppress. The court 

overruled the motion for the same reasons.

(b) Standard of Review

[12] In reviewing a motion to suppress a statement based 

on its claimed involuntariness, including claims that law 

enforcement procured it by violating the safeguards established by the U.S. Supreme Court in Miranda v. Arizona,

 44

an appellate court applies a two-part standard of review. 

Regarding historical facts, an appellate court reviews the 

trial court’s findings for clear error. Whether those facts meet 

constitutional standards, however, is a question of law, which 

an appellate court reviews independently of the trial court’s 

determination. 45

[13] In reviewing a motion to suppress, we do not reweigh 

the evidence or resolve conflicts in the evidence, but, rather, 

recognize the trial court as the finder of fact and consider that 

44 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966).

45 State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
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the trial court observed the witnesses testifying in regard to 

such motions. 46

(c) Discussion

Martinez argues that the evidence shows that law enforcement misled Martinez in his appreciation of the detention and 

that those efforts were coercive. Martinez further argues that 

the district court “unreasonabl[y] reject[ed] [his] sworn testimony” that “he did not sign any Miranda waiver form.” 47 This 

argument invites us to pass on credibility or reweigh evidence. 

We decline to do so.

[14,15] Miranda warnings are an “‘absolute prerequisite’” 

to custodial interrogation; statements made during a custodial 

interrogation in the absence of these warnings and a valid 

Miranda waiver are inadmissible, even if otherwise voluntarily made. 48 If a defendant seeks suppression of a statement 

because of an alleged violation of Miranda,

 49 the State must 

prove that the defendant validly waived his or her Miranda

rights by a preponderance of the evidence. 50

[16,17] To be a valid waiver of Miranda rights, the waiver 

must be knowing and voluntary. A waiver is knowing if it is 

made with a full awareness of both the nature of the right 

being abandoned and the consequences of the decision to abandon it. A waiver is voluntary if it is the product of a free and 

deliberate choice rather than through intimidation, coercion, 

or deception. 51 An appellate court looks to the totality of the 

circumstances to determine whether a defendant validly waived 

his or her Miranda rights. 52

46 See State v. Wenke, 276 Neb. 901, 758 N.W.2d 405 (2008).

47 Brief for appellant at 37.

48 State v. Hernandez, 299 Neb. 896, 917, 911 N.W.2d 524, 543 (2018).

49 Miranda v. Arizona, supra note 44.

50 State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

51 State v. Hernandez, supra note 48.

52 See State v. Burries, supra note 50.
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The undisputed evidence shows that Martinez knowingly, 

voluntarily, and intelligently waived his Miranda rights. 

Both Barry and Herrera stated that Herrera read Martinez the 

Miranda waiver in Spanish. When Herrera spoke Spanish, 

Martinez acknowledged that he understood Herrera. Martinez 

then signed the Miranda waiver form. The recorded interview 

captured the same events. In the video, Martinez responded 

coherently to each of the questions Herrera asked from the 

Miranda waiver form and signed the form. The express written statement of a waiver is “strong proof of the validity of 

that waiver.” 53 Under a totality of the circumstances, Martinez 

understood his Miranda rights and knowingly, voluntarily, and 

intelligently waived them. Accordingly, the district court did 

not err in overruling Martinez’ motion to suppress.

4. Sufficiency of Evidence

(a) Standard of Review

[18] In reviewing a criminal conviction for a sufficiency 

of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 

An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact. The relevant question 

for an appellate court is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt. 54

(b) Discussion

Martinez makes two arguments regarding the sufficiency 

of the evidence to support a conviction. First, he argues 

that M.F.’s testimony lacked corroboration and, therefore, was 

53 North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 

286 (1979). See State v. Burries, supra note 50.

54 State v. Devers, supra note 29.
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insufficient to find Martinez guilty. Second, he argues that 

M.F.’s credibility was called into question when “she admitted to lying to police officers about the alleged interactions 

between her and [Martinez] at the charging stage.” 55

[19] Both of Martinez’ arguments fail. First, the State is not 

required to corroborate a victim’s testimony in cases of first 

degree sexual assault; if believed by the finder of fact, the 

victim’s testimony alone is sufficient. 56 Therefore, if the jury 

believed M.F., her testimony alone was sufficient to sustain 

the conviction. Second, Martinez’ argument concerning M.F.’s 

credibility invites us to pass on credibility or reweigh the evidence. We decline to do so.

Viewing the evidence in the light most favorable to the 

prosecution and without passing on the credibility of witnesses, we conclude there was sufficient evidence for any 

rational trier of fact to find Martinez guilty beyond a reasonable doubt.

5. Excessive Sentence

(a) Standard of Review

[20] Absent an abuse of discretion by the trial court, an 

appellate court will not disturb a sentence imposed within the 

statutory limits. 57 An abuse of discretion occurs when a trial 

court’s decision is based upon reasons that are untenable or 

unreasonable or if its action is clearly against justice or conscience, reason, and evidence. 58

(b) Discussion

Martinez does not dispute that his sentence is within the 

statutory limits, but he contends that the district court abused 

its discretion by imposing an excessive sentence. Before 

55 Brief for appellant at 45.

56 State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).

57 State v. Montoya, supra note 4.

58 Id.
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addressing his two arguments, we recall the governing principles of law.

[21,22] The law governing review of sentences in criminal 

cases is well settled. In determining a sentence to be imposed, 

relevant factors customarily considered and applied are the 

defendant’s (1) age, (2) mentality, (3) education and 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. 59 The appropriateness of a sentence is necessarily 

a subjective judgment and includes the sentencing judge’s 

observation of the defendant’s demeanor and attitude and 

all the facts and circumstances surrounding the defendant’s 

life. 60 With these principles in mind, we turn to Martinez’ 

specific arguments.

First, Martinez argues that the district court “failed to adequately weigh” 61 his limited criminal history and positive 

behavior while incarcerated. He relies on his “minimal” 62

criminal history of traffic violations and a first offense driving 

under the influence conviction. Second, he argues that the presentence investigation report “inflated the criminality of [his] 

companions.” 63 He contends that the high-risk rating of the 

companions section of his “LS/CMI” report was disproportionate to the criminal history section, because both Martinez and 

his friend have a driving under the influence conviction. He 

asserts that this categorization “demonstrate[d] the arbitrary 

nature of these categorizations.” 64

59 Id.

60 Id.

61 Brief for appellant at 47.

62 Id.

63 Id.

64 Id.
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At the sentencing hearing, the court emphasized that 

Martinez’ continued denial and “victim blaming” was significant, that “[he was] not an appropriate candidate for probation, that [he was] a risk to the community, [he was] a risk to 

re-offend and that a substantial sentence must be imposed.” It 

explained that his crime was serious, because as a father he 

subjected his daughter to harm both for many previous years 

and into the future.

The record shows that the district court reviewed the entire 

presentence report, which contained the information necessary to weigh the sentencing factors. In the “LS/CMI” report, 

Martinez scored high risk in education/employment, companions, procriminal attitude/orientation, and antisocial patterns. 

The report explained that he scored high risk in the companions section, because “[Martinez] was not able to provide 

information about positive persons that he might associate with 

[or] if he identified only pro-social companions, but admitted 

to engaging in criminal activities using behaviors, or other 

anti-social behaviors with others.”

Martinez quarrels with the weight afforded to the factors 

by the sentencing court. As we have previously stated, “We 

do not review sentences de novo, but only for an abuse of 

discretion.” 65 We conclude that the district court did not abuse 

its discretion when imposing the sentence.

V. CONCLUSION

We conclude that the district court did not err in admitting 

the translated English statements by Aguirre and excluding 

evidence under the residual hearsay exception. Based upon 

the totality of the circumstances, we conclude that the district court did not err in determining that Martinez waived 

his Miranda rights. Viewing the evidence in the light most 

favorable to the State, we further conclude that the evidence 

65 State v. Blaha, 303 Neb. 415, 421, 929 N.W.2d 494, 501 (2019).
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at trial supported Martinez’ conviction. Finally, we conclude 

that the district court did not abuse its discretion when imposing Martinez’ sentence. Accordingly, we affirm Martinez’ conviction and sentence.

Affirmed.

Freudenberg, J., not participating.