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: Appeal and Error. An appellate
court will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial
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.
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 involved in the commission of
the offense. However, the sentencing court is not limited to
any mathematically applied set of factors.
Effectiveness of Counsel: Postconviction: 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 barred in a subsequent
Neb.App. 335] 6. Effectiveness of
Counsel. As a matter of law, counsel cannot be
ineffective for failing to raise a meritless argument.
. Defense counsel does not perform in a deficient manner
simply by failing to make the State's job more difficult.
. The Sixth Amendment guarantees a right not just to counsel,
but to effective assistance of counsel.
Effectiveness of Counsel: Presumptions. If
counsel entirely fails to subject the prosecution's case
to meaningful adversarial testing, then there has been a
denial of Sixth Amendment rights that makes the adversary
process itself presumptively unreliable.
Trial: Attorney and Client: Effectiveness of Counsel:
Testimony: Waiver. Defense counsel's advice to
waive the right to testify can present a valid claim of
ineffective assistance in two instances: (1) if the defendant
shows that counsel interfered with his or her freedom to
decide to testify or (2) if counsel's tactical advice to
waive the right was unreasonable.
from the District Court for Lancaster County: Jodi L. Nelson,
J. Von Loh, of Hernandez Frantz, Von Loh, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy
Riedmann, Bishop, and Welch, Judges.
A. Interiano Alvarado appeals his conviction and sentence for
first degree sexual assault, claiming that the evidence was
insufficient to support his conviction and that the sentence
imposed was excessive. Based upon our standard of review, we
affirm his conviction and sentence. Alvarado also asserts
multiple claims of ineffective assistance of counsel which we
22-year-old college student, attended a St. Patrick's Day
party at the law firm at which she was working on March [27
Neb.App. 336] 17, 2017. She consumed approximately 2/4
"Solo cups" of alcoholic beverages between the
hours of 5 and 8:30 p.m. At that point, she felt
"buzzed." She left the law firm with one of the
attorneys and traveled with him in his car to a nearby bar.
They stayed at the bar until about 11:30 p.m., during which
time she consumed another Wi to 2 alcoholic beverages. About
halfway through the first of those drinks, B.H. started to
"get fuzzy," and by the time she stopped drinking
the second drink, she was "losing [her] balance"
and felt "intoxicated." When they exited the bar,
she tried to perform field sobriety tests to determine her
level of intoxication and determined she was unable to keep
her balance. They decided to "split an Uber," a
ride-sharing service, that would take each of them to their
attorney that accompanied B.H. to the bar testified that he
decided it was time for them to leave the bar when B.H.
"started rubbing her back against" the man on the
barstool next to her. When B.H. paid her bar bill, she wrote
her name "four or five times" on the charge slip
and pretended that she was going to take the tip money that
the attorney set on the bar. The attorney testified that
based upon the way B.H. was acting, he would not have been
comfortable letting her drive his car home from the bar and
he did not want to drive because he, too, had been drinking.
has little recollection of the Uber ride home. The Uber
driver testified that when B.H. and the attorney got in her
car, B.H. was "chatty," but then she got
"rather tired-like." She described the decline as
if "she drank a bottle of cold medicine . . . she just
became this really zoned-out kind of person." According
to the driver, B.H. was leaning against her companion
"to brace herself." After they dropped off the
attorney, B.H. leaned against the door and then
"sprawl[ed] out along the back seat" and began
singing along to the radio. The driver described B.H.'s
speech as "sloshy slurry" but not necessarily
intoxicated. By the time they reached B.H.'s house, B.H.
was asleep and it took the driver "a little bit to
actually wake her [27 Neb.App. 337] up." Upon exiting
the car, B.H. "had to catch herself and used a
"zombie walk" to her door. The driver saw B.H.
search her purse and then disappear around the side of the
house before the driver left for her next trip.
to B.H., when she arrived at her house, she realized that she
had left her house key in her car, which was parked at the
law firm. She recalls talking on her cell phone to her
boyfriend and one of her friends, who were already downtown,
to ask for a ride, but they had been drinking and did not
want to drive. She planned to call an Uber, but when she
tried to use her cell phone, it looked like "the setting
had been changed to, like, Japanese or something." At
that point, B.H. started walking toward downtown. She
recalled "taking five steps on the sidewalk" in
front of her house, but does not remember walking beyond
evidence reveals that B.H. planned to stop at her house near
9th and F Streets in Lincoln, Nebraska, get something to eat,
and then head downtown to meet her friends and boyfriend.
According to a friend of B.H., she had texted B.H. several
times throughout the night. At approximately 8:30 p.m., B.H.
indicated that she planned to meet them downtown. At about
10:30 p.m., she sent B.H. a text to let her know that
B.H.'s boyfriend had joined them downtown. And then about
midnight, in a cell phone conversation, B.H. said that she
had taken an Uber home and that she was going to walk
downtown to meet them. At some point in the conversation,
B.H. said she was across the street from her house, which her
friend interpreted to mean she was across 10th Street on her
way downtown. When B.H. did not arrive, the friend continued
to send text messages to B.H. and call her, but she did not
receive any response. When B.H. did not arrive, the friends
set out on foot and bicycle to find her, but were unable to
testified that she had a "snapshot" memory of
sitting in a kitchen with a man, who was later identified as
Alvarado. She did not know him prior to March 17, 2017. She
also had a memory of lying on her back with Alvarado on top
Neb.App. 338] In the early morning hours of March 18, 2017,
B.H. awoke, naked, in a strange bed. Alvarado was lying next
to her with one hand on her breast and the other hand
touching her "[i]nside of the lips" of her vagina.
When she tried to get out of the bed, he held her down and
told her "stay, stay; you're so beautiful."
B.H. was ultimately able to free herself, locate her clothes,
and retrieve her cell phone from him. When she ran out of the
house, she realized she was across the street and
approximately one-half block from her house. She ran home,
where her boyfriend and friend were waiting.
her arrival, her boyfriend and friend told her that they had
reported her missing the night before so they needed to call
the police to let them know she was home. The police
responded, interviewed B.H., and took her to the hospital for
a forensic examination. While at the hospital, investigators
asked B.H. to "go through" her cell phone. She
located a photograph of the inside of a house that she did
not recognize. Based on the photograph and information from
B.H., the police canvassed the area and ...