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


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