1. 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 whether the court admitted
evidence over a hearsay objection or excluded evidence on
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.
Sentences: Words and Phrases: Appeal and
Error. An appellate court reviews criminal sentences
for abuse of discretion, which 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.
Effectiveness of Counsel: Appeal and Error. Whether
a claim of ineffective assistance of trial counsel may be
determined on direct appeal is a question of law.
__:__. In reviewing claims of ineffective assistance of
counsel on direct appeal, an appellate court decides only
whether the undisputed facts contained within the record are
sufficient to conclusively determine whether counsel did or
did not provide effective assistance and whether the
defendant was or was not prejudiced by counsel's alleged
Neb. 186] 6. Rules of Evidence:
Hearsay: Physician and Patient. Statements made for
purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the
cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment are not excluded by the
Rules of Evidence: Hearsay: Proof. In order for
statements to be admissible under Neb. Evid. R. 803(3), Neb.
Rev. Stat. § 27-803(3) (Reissue 2016), the party seeking
to introduce the evidence must demonstrate (1) that the
circumstances under which the statements were made were such
that the declarant's purpose in making the statements was
to assist in the provision of medical diagnosis or treatment
and (2) that the statements were of a nature reasonably
pertinent to medical diagnosis or treatment by a medical
Rules of Evidence: Hearsay. A statement is generally
considered admissible under the medical purpose hearsay
exception if gathered for dual medical and investigatory
__: __ . Excited utterances are an exception to the hearsay
rule, because the spontaneity of excited utterances reduces
the risk of inaccuracies inasmuch as the statements are not
the result of a declarant's conscious effort to make
__:__. For a statement to be an excited utterance, the
following criteria must be met: (1) There must be a startling
event; (2) the statement must relate to the event; and (3)
the declarant must make the statement while under the stress
of the event. The true test is not when the exclamation was
made, but whether, under all the circumstances, the declarant
was still speaking under the stress of nervous excitement and
shock caused by the event.
Trial: Evidence: Appeal and Error. The improper
admission of evidence is a trial error and subject to
harmless error review.
Criminal Law: Juries: Evidence. In a jury trial of a
criminal case, an erroneous evidentiary ruling results in
prejudice to a defendant unless the State demonstrates that
the error was harmless beyond a reasonable doubt.
Trial: Convictions: Evidence. Where the evidence is
cumulative and there is other competent evidence to support
the conviction, the improper admission or exclusion of
evidence is harmless beyond a reasonable doubt.
Sentences. When imposing a sentence, the
sentencing court should customarily consider the
defendant's (1) age, (2) mentality, (3) education and
experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6)
motivation for the offense, as well as (7) the nature of the
offense and (8) the violence [298 Neb. 187] involved in the
commission of the offense. However, the sentencing court is
not limited to any mathematically applied set of factors.
__ . 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
__ . It is within the discretion of the trial court to impose
consecutive rather than concurrent sentences for separate
Appeal and Error. Plain error may be found on appeal
when an error unasserted or uncomplained of at trial, but
plainly evident from the record, prejudicially affects a
litigant's substantial right and, if uncorrected, would
result in damage to the integrity, reputation, and fairness
of the judicial process.
Effectiveness of Counsel: Appeal and Error. When a
defendant's trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct
appeal any issue of trial counsel's ineffective
performance which is known to the defendant or is apparent
from the record. Otherwise, the issue will be procedurally
Effectiveness of Counsel: Records: Appeal and
Error. On direct appeal, the resolution of
ineffective assistance of counsel claims turns upon the
sufficiency of the record.
__: __: __ . The fact that an ineffective assistance
of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved. The determining
factor is whether the record is sufficient to adequately
review the question.
__:__:__. An appellate court can determine whether the record
proves or rebuts the merits of a claim of ineffective
assistance of trial counsel only if it has knowledge of the
specific conduct alleged to constitute deficient performance.
Effectiveness of Counsel: Postconviction: Records:
Appeal and Error. An ineffective assistance of
counsel claim is raised on direct appeal when allegations of
deficient performance are made with enough particularity for
(1) an appellate court to make a determination of whether the
claim can be decided upon the trial record and (2) a district
court later reviewing a petition for postconviction relief to
be able to recognize whether the claim was brought before the
Claims: Effectiveness of Counsel. A claim of
ineffective assistance of counsel insufficiently stated is no
different than a claim not stated at all.
from the District Court for Lancaster County: Jeffre
Cheuvront, Judge, Retired. Affirmed.
Neb. 188] Joe Nigro, Lancaster County Public Defender, and
Shawn Elliott for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
direct appeal from criminal convictions and sentences, Felipe
German Mora (Mora) challenges the overruling of his hearsay
objections, the sufficiency of the evidence, the
excessiveness of his sentences, and whether his trial counsel
provided effective assistance. Because we find no error and
the record is insufficient to review the allegations of
ineffective assistance of counsel that were sufficiently
stated, we affirm the district court's judgment.
State charged Mora with four counts of first degree sexual
assault of a child and one count of third degree sexual
assault of a child. The victim in each count was B.C. Counts
I through III alleged that between December 30, 2010, and
September 18, 2015, Mora subjected B.C. to sexual penetration
in Lincoln, Nebraska. Each count differed only as to the
address of the crime: E Street, Theresa Street, and Saunders
Avenue, respectively. Count IV alleged that on September 19,
2015, Mora subjected B.C. to sexual penetration. And count V
alleged that between December 30, 2010, and September 19,
2015, Mora subjected B.C. to sexual contact. Because Mora was
born in February 1983 and B.C. was born in December 2004, at
the times of the crimes, Mora was at least 19 years old and
B.C. was under the age of 12. We recite the evidence in the
light most favorable to the State.
evidence at trial established that B.C. came to the United
States when she was 6 years old. B.C. began living [298 Neb.
189] with her mother, Marcela M., and Marcela's partner,
Mora, on E Street. Over time, B.C. got to know Mora and
thought of him "[l]ike a dad." Because Mora was
acquitted on the count pertaining to sexual penetration at
the E Street address, we recite only the evidence relevant to
the count for sexual contact. While living at the E Street
address, Mora began touching B.C.'s vagina under her
clothes with his hands.
B.C. was 8 years old, she moved to Theresa Street. B.C.
testified that Mora "rubbed his fingers up and
down" her vagina and began inserting his penis in her
vagina. These acts occurred at the Theresa Street address
more than 20 times.
B.C. was 10 years old, she moved to Saunders Avenue. At that
location, Mora put his penis inside of B.C.'s vagina on
more than 10 occasions. B.C. did not tell anybody what Mora
was doing because she was scared.
morning of September 19, 2015, Mora subjected B.C. to
penile-vaginal intercourse. Defense counsel pointed out some
inconsistencies in B.C.'s testimony with regard to this
assault. B.C. testified in a deposition that Mora took her
clothes off, but she testified at trial that Mora told her to
take her clothes off and that she complied. At trial, B.C.
testified that she did not see any ejaculate that day, but
she told an investigator that Mora "put white stuff on
[her] stomach." B.C. admitted that it was difficult to
remember all the details. She explained that the events
happened a number of times, with Mora's taking her
clothes off at times and B.C.'s taking her own clothes
off at other times.
evening of September 19, 2015, Mora took B.C. to the
residence of his brother, Rafael German Mora (Rafael), while
Marcela and Mora went to a casino in Council Bluffs, Iowa.
Rafael's partner, Maricela Saldivar, saw Rafael kissing
B.C. and touching her vaginal area with his hand over her
clothes. After Saldivar sent Rafael to the store, Saldivar
asked B.C., '"What is going on? Why did this
happen?'" B.C. said that nothing happened, but then
began crying and said that Rafael was touching her. After
Saldivar testified she told B.C. that Saldivar needed to tell
Mora what had occurred, [298 Neb. 190] the prosecutor asked
what happened. Defense counsel raised a hearsay objection,
which the court overruled. Saldivar then testified that B.C.
"said no because her dad was doing the same thing to
her." Saldivar testified that when she told Mora what
happened was not right, Mora did not deny touching B.C. and
instead just said that Saldivar did not know what he had
testified that as she and Mora were returning to Lincoln from
the casino, B.C.'s aunt told Marcela over a cell phone
that B.C. said Mora had been sexually abusing B.C. Marcela
asked Mora if it was true, but Mora denied doing anything.
Once they arrived in Lincoln, Marcela went to see B.C.,
because B.C. was crying. The prosecutor asked what B.C. said
to Marcela, and Mora's counsel objected as to hearsay.
The court overruled the objection. Marcela answered: "I
asked [B.C.] if it was true what . . . had been said about
[Mora's] having been abusing her sexually. [B.C.] said
testified that after police were called, Mora said,
"'Yes, I did it, ' but that [Marcela] was at
fault because [she] would always leave [B.C.] with him when
[Marcela] had to go to work." Marcela later discovered a
text on her cell phone from Mora, sent September 20, 2015, at
2:07 a.m. The message was in Spanish, but the English
translation was either: "' Sorry. I'll never
forget you.'" or "'Forgive me. I will never
forget [the] two of you.'"
September 20, 2015, Eileen Bonin, a sexual assault nurse
examiner, examined B.C. In her experience, it was infrequent
to find injuries when conducting sexual assault examinations.
Bonin observed some redness on B.C.'s right labia minora,
which was an unusual finding. Defense counsel raised a
hearsay objection when the prosecutor asked what B.C. told
Bonin about what had occurred, but the court overruled the
objection. Bonin testified that B.C. said her "stepdad,
[who was] not really her stepdad, " had been touching
B.C. since she was 7 years old and that her uncle had been
touching her for approximately 9 months. Bonin testified that
B.C. told her that Mora "put his private parts in her
Neb. 191] On September 20, 2015, an investigator used cotton
swabs to obtain DNA from Mora's hands and penis. The swab
from Mora's penis revealed a mixture of DNA of at least
two individuals. B.C. was included as a major contributor,