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State v. Alvarado

Court of Appeals of Nebraska

June 11, 2019

State of Nebraska, appellee,
v.
Wilder A. Interiano Alvarado, appellant.

         1. 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.

         2. 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 court.

         3. 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.

         4. 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.

         5. 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 postconviction proceeding.

          [27 Neb.App. 335] 6. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffective for failing to raise a meritless argument.

         7. ___ . Defense counsel does not perform in a deficient manner simply by failing to make the State's job more difficult.

         8. ___ . The Sixth Amendment guarantees a right not just to counsel, but to effective assistance of counsel.

         9. 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.

         10. 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.

          Appeal from the District Court for Lancaster County: Jodi L. Nelson, Judge. Affirmed.

          Darik J. Von Loh, of Hernandez Frantz, Von Loh, for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

          Riedmann, Bishop, and Welch, Judges.

          RIEDMANN, JUDGE.

         I. INTRODUCTION

         Wilder 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 address below.

         II. BACKGROUND

         B.H., a 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 respective houses.

         The 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.

         B.H. 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.

         According 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 that.

         The 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 do so.

         B.H. 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 of her.

         [27 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.

         Upon 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 ...


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