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309 Nebraska Reports

STATE v. ESTRADA COMACHO

Cite as 309 Neb. 494

State of Nebraska, appellee, v. Christian 

Estrada Comacho, appellant.

___ N.W.2d ___

Filed June 18, 2021. No. S-20-619.

1. Constitutional Law: Witnesses: Appeal and Error. An appellate 

court reviews de novo a trial court’s determination of the protections 

afforded by the Confrontation Clause of the Sixth Amendment to the 

U.S. Constitution and article I, § 11, of the Nebraska Constitution and 

reviews the underlying factual determinations for clear error.

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

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules and judicial discretion is involved only when the rules 

make discretion a factor in determining admissibility.

3. 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.

4. 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.

5. 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.

6. Convictions: Evidence: Appeal and Error. Regardless of whether 

the evidence is direct, circumstantial, or a combination thereof, and 

regardless of whether the issue is labeled as a failure to direct a verdict, 

insufficiency of the evidence, or failure to prove a prima facie case, the 

standard is the same: In reviewing a criminal conviction, 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 

Nebraska Supreme Court Online Library

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

09/03/2021 01:09 AM CDT
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STATE v. ESTRADA COMACHO

Cite as 309 Neb. 494

of fact, and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

7. 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.

8. Rules of Evidence: Hearsay: Witnesses: Interpreters. 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. Rev. Stat. § 27-801(4) (Reissue 2016), and any challenges to the 

accuracy of the translation go to the weight of the evidence and not to 

its admissibility.

9. Constitutional Law: Criminal Law: Trial: Witnesses. While the 

Confrontation Clause guarantees a criminal defendant a face-to-face 

meeting with witnesses appearing before the trier of fact, that guarantee 

is not an absolute right. But while the face-to-face requirement is not 

absolute, it cannot be disposed of easily.

10. Constitutional Law: Trial: Witnesses: Public Policy. A defendant’s 

right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only 

where the reliability of the testimony is otherwise assured.

11. Conspiracy: Hearsay: Rules of Evidence. Neb. Rev. Stat. 

§ 27-801(4)(b)(v) (Reissue 2016) is applicable regardless of whether 

the defendant is charged with the conspiracy that supports admission of 

the statement.

12. Conspiracy: Rules of Evidence. Under Neb. Rev. Stat. § 27-801(4)(b)(v) 

(Reissue 2016), a statement is excluded as nonhearsay if it is more likely 

than not that (1) a conspiracy existed, (2) the declarant was a member 

of the conspiracy, (3) the party against whom the assertion is offered 

was a member of the conspiracy, (4) the assertion was made during the 

course of the conspiracy, and (5) the assertion was made in furtherance 

of the conspiracy.

13. Conspiracy. A conspiracy is ongoing—such that statements are considered made during the course of the conspiracy—until the central 

purposes of the conspiracy have either failed or been achieved.

14. Conspiracy: Hearsay: Rules of Evidence. Before a trier of fact may 

consider testimony under the coconspirator exception to the hearsay 

rule, a prima facie case establishing the existence of a conspiracy must 

be shown by independent evidence.
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STATE v. ESTRADA COMACHO

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15. Criminal Law: Evidence: Appeal and Error. When a criminal defendant challenges the sufficiency of the evidence upon which a conviction 

is based, 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.

16. Aiding and Abetting: Proof. Aiding and abetting requires some participation in a criminal act which must be evidenced by word, act, or deed, 

and mere encouragement or assistance is sufficient to make one an aider 

or abettor.

17. Robbery: Words and Phrases. A robbery is not completed at the time 

the robber takes the money or property, and the necessary force, violence, or putting in fear may occur when, immediately after taking the 

money or property, the robber is carrying the property away or attempting to escape.

18. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal 

principles in determining the sentence to be imposed.

19. 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.

20. ____. 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.

Appeal from the District Court for Hall County: Andrew C. 

Butler, Judge. Affirmed.

Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.
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STATE v. ESTRADA COMACHO

Cite as 309 Neb. 494

Miller-Lerman, J.

NATURE OF CASE

Christian Estrada Comacho (Comacho) appeals his convictions and sentences in the district court for Hall County for 

conspiracy to distribute a controlled substance and for aiding 

and abetting a robbery. Comacho claims on appeal that the district court violated his right to confrontation when it allowed a 

witness, who had tested positive for COVID-19 and was experiencing symptoms, to testify via two-way interactive video. 

He also claims that the court erred when it overruled other 

evidentiary objections and when it denied his motion for a new 

trial. He further claims that there was not sufficient evidence 

to support his convictions and that the court imposed excessive 

sentences. We affirm Comacho’s convictions and sentences.

STATEMENT OF FACTS

Charges Against Comacho.

In the operative information filed June 10, 2020, the State 

charged Comacho with conspiracy to distribute a controlled 

substance and robbery. The charges against Comacho arose 

from an incident that was alleged to have occurred on January 

22, 2019. The State’s theory of the case was generally that 

Comacho agreed with others to distribute methamphetamine but 

that when the “transaction” was actually completed, Comacho 

took cash from the prospective purchaser but did not provide 

the methamphetamine.

In its opening statement at trial, the State set forth the narrative that it anticipated the evidence would show to support 

the charges against Comacho. The general narrative was that 

police officers investigated a shooting that had occurred in the 

early hours of January 22, 2019, outside an apartment building in Grand Island, Nebraska. Kent Albrecht had sustained a 

gunshot wound to the face and was being treated in a hospital. 

From interviews with Albrecht and two other men—Derek 

Weaver and Monty Goin—police surmised that the three men 

had discussed Albrecht’s desire to purchase a large quantity of 

methamphetamine.
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Weaver knew Comacho and contacted him regarding 

Albrecht’s intention to purchase methamphetamine. Comacho 

agreed to assist. Based on his communications with Comacho, 

Weaver traveled with Albrecht and Goin to Grand Island, where 

Comacho lived. The three went to Grand Island with the plan 

that Comacho would connect them with other individuals who 

would provide the methamphetamine. Albrecht and Weaver 

picked up Comacho and, at Comacho’s direction, drove to the 

parking lot of an apartment building. When another vehicle 

entered the parking lot, Comacho left the vehicle driven by 

Albrecht. After that point, Comacho returned a short while later 

and told Albrecht that he would need to pay cash up front in 

order to purchase the methamphetamine. Albrecht had brought 

$5,000 in cash with him, but told Comacho he would not give 

him the cash until he saw the methamphetamine. After some 

back and forth in which the other vehicle left the parking lot 

and Comacho told Albrecht that the deal was off if he did not 

pay the cash up front, Albrecht eventually gave the $5,000 cash 

to Comacho. Comacho walked away from the Albrecht vehicle 

with the cash toward the other vehicle. Albrecht and Weaver 

waited with the expectation that Comacho would return with 

the methamphetamine. However, Comacho did not return, and 

instead, shots were fired at Albrecht’s vehicle and Albrecht 

sustained a gunshot to his face. The State claimed that after the 

shooting, Comacho may have left the scene in the other vehicle or, in any event, did not leave with the Albrecht vehicle. 

Police officers who investigated the shooting and Albrecht’s, 

Weaver’s, and Goin’s versions of the events that led up to the 

shooting, executed a search warrant of Comacho’s residence 

and found cash inside a boot.

Weaver’s and Albrecht’s Testimony at Trial.

Weaver and Albrecht both testified at Comacho’s trial. 

Weaver generally testified that in the days prior to January 

22, 2019, he had had conversations with two acquaintances, 

Comacho and Goin. Weaver learned that Goin was looking for 

someone from whom methamphetamine could be purchased, 
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and Weaver believed that Comacho could provide methamphetamine. Goin informed Weaver he wanted to purchase a pound 

of methamphetamine and could pay $5,000 for it. Weaver later 

learned that Goin was inquring on behalf of Albrecht, who 

would be purchasing the methamphetamine.

On the afternoon of January 21, 2019, Weaver communicated to Comacho via text messaging that he had a potential 

purchaser willing to pay $5,000 and that he could come to 

Grand Island. Comacho replied, “Come thru then.” They discussed the amount of methamphetamine needed and arranged 

a time Weaver and the purchaser could meet with Comacho. 

Comacho expressed agreement with the plans. Weaver continued communicating with Comacho via text messaging to 

update plans, and Comacho eventually asked Weaver to pick 

him up at work. Weaver accompanied Goin to Albrecht’s residence, and from there, the three went to Grand Island.

Albrecht testified that in January 2019, he was living in 

Elm Creek, Nebraska. Goin was a longtime acquaintance of 

Albrecht’s, and in January 2019, Albrecht discussed with Goin 

the possibility of obtaining some methamphetamine. Albrecht 

told Goin he was interested in purchasing a pound of methamphetamine and would be willing to pay $5,000 for it. On 

January 21, Goin informed Albrecht that he had located someone in Grand Island who could provide that quantity of methamphetamine at that price. Goin and Weaver came to Albrecht’s 

residence; Albrecht and Weaver had not met prior to that time. 

Albrecht offered to drive the three to Grand Island in his 

vehicle. By the time they arrived in Grand Island, Weaver and 

Goin informed Albrecht that they would need to pick Comacho 

up after work at his place of employment. Because there was 

some time to spare, the three went to wait at a friend’s house 

in Grand Island.

Albrecht further testified that when it was time to pick up 

Comacho, Weaver went with Albrecht but Goin stayed at the 

friend’s house. It was then close to midnight, and Weaver 

directed Albrecht to Comacho’s place of employment. Albrecht 
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waited in his vehicle while Weaver went to find Comacho. 

Sometime later, Weaver returned with Comacho and the two 

got into Albrecht’s vehicle. Comacho directed Albrecht where 

he should drive, and eventually, they pulled into the parking lot 

of an apartment building. Comacho directed Albrecht to park at 

the far end of the lot and said that they would need to wait for 

the people who had the methamphetamine.

Eventually, Albrecht saw another vehicle pull into the parking lot and park behind his vehicle. Comacho said, “‘They’re 

here,’” and he told Albrecht to give him the money so he could 

get the methamphetamine. Albrecht replied that he would not 

give Comacho the money until he saw the methamphetamine. 

Comacho got out of Albrecht’s vehicle and went to speak with 

the occupants of the other vehicle. Comacho returned and told 

Albrecht that they would not give him the methamphetamine 

and that they wanted the money first. Albrecht offered to 

give half of the cash up front and the other half after he had 

the methamphetamine. Comacho made a call and then told 

Albrecht they still wanted all the money.

Albrecht and Comacho continued discussing the matter for 

another several minutes. Albrecht testified that Comacho was 

becoming angry and continued to say that Albrecht should 

give him the money. Albrecht became “tired of the whole 

deal” and “wanted to get it over with,” and therefore, he gave 

the cash to Comacho. Albrecht testified that the $5,000 cash 

included five $100 bills, with $20 bills making up the remaining balance.

Albrecht testified that after he gave Comacho the cash, 

Comacho got out of Albrecht’s vehicle and walked back in the 

direction he had walked before. Shortly thereafter, Albrecht 

heard “three or four” gunshots. Albrecht testified that he 

thought the others had shot Comacho. Albrecht then heard a 

few more gunshots. He observed that his driver’s-side window had shattered, and he realized that a shot had hit him in 

the face. Albrecht “felt like [his] face exploded,” and he saw 

blood. Weaver told Albrecht they needed to leave. Albrecht 
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put the vehicle in reverse and left the parking lot. Albrecht 

testified that he made no attempt to retrieve his money or to 

collect the methamphetamine because he did not want to be 

shot again and he needed to get to a hospital. Albrecht testified that he did not see Comacho or anyone else as he drove 

out of the parking lot, that he never heard anything more from 

Comacho, and that he never retrieved his money or received 

the methamphetamine.

Testimony by Timothy Champion Via 

Two-Way Interactive Video.

Other witnesses at trial included various law enforcement 

officers who investigated the shooting and the events preceding and surrounding it. One of those witnesses was Timothy 

Champion, an investigator with the Grand Island Police 

Department. Champion generally investigated crimes in the 

child abuse unit, but he became involved in the investigation 

of the present case because he was fluent in Spanish and was 

asked to translate portions of a phone call made by Comacho 

from prison after he had been arrested.

On July 23, 2020, the date the State wished to call 

Champion to testify in this case, Champion had tested positive for COVID-19 and was experiencing symptoms. The 

State requested that Champion be allowed to testify by twoway interactive video. Comacho objected to Champion’s testifying by video, and he asserted that it would violate his 

Sixth Amendment right to confrontation if Champion was not 

required to testify in court.

After the State and Comacho made arguments on the issue, 

the court determined that Champion would not be allowed to 

testify in court but that he would testify by two-way interactive video. In reaching this decision, the court noted that the 

Nebraska Supreme Court had issued orders and guidelines 

in response to the COVID-19 pandemic and effectively took 

judicial notice of such orders and guidelines, as it could 

do. See Neb. Rev. Stat. § 27-201(2) and (6) (Reissue 2016) 

(“judicially noticed fact must be one not subject to reasonable 
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dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned . . . at any stage of the proceeding”). The 

court further noted that based on those orders and guidelines, 

Champion would not be allowed to be in the courtroom. But 

the court also noted that this court had “made a firm stance 

. . . that the courts are to remain open during this pandemic” 

because “courts are a necessary function of government.” The 

court further noted that neither the State nor Comacho had 

requested a continuance of the trial.

The court recognized that it needed to honor Comacho’s 

constitutional right to confrontation. The court cited precedent which it read to set forth a two-prong test to determine 

whether testimony by video would be allowed consistent with 

Comacho’s right of confrontation. The court stated that the 

test was (1) “whether or not this is necessary for public 

policy” and (2) whether “the reliability of the testimony is 

assured.” Applying these standards, the court found that having 

Champion testify by video rather than in court was “necessary 

for public policy to protect the public” based on, inter alia, 

“the current pandemic” and “the guidelines from the Supreme 

Court.” The court reasoned that if Champion were required 

to appear in court, it would expose numerous people to the 

coronavirus, including court staff, attorneys, jurors, Comacho, 

and others in the courthouse.

Regarding the second prong, regarding whether the reliability of the testimony was assured, the court noted that 

Champion was a law enforcement officer and not a victim 

of the crimes for which Comacho was being tried. The court 

stated that Champion’s testimony would be “just an officer giving a factual scenario.” The court further noted that Comacho 

would be allowed to cross-examine Champion by video and 

that because it was two-way interactive video, Comacho and 

his counsel would be able to see Champion and vice versa, 

which the court reasoned would support the “face-to-face 

requirement” of the constitutional right to confrontation. The 
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court noted that while such right should not be taken lightly, it 

was not an absolute right.

When the court announced that it would allow Champion’s 

testimony by two-way interactive video, Comacho asked that 

it be noted “for the record” that he had “waived his right to a 

speedy trial previously by written notation in the court file.” 

However, Comacho did not at the time request a continuance.

Champion thereafter testified by two-way interactive video. 

The State began by asking Champion about his work as a law 

enforcement officer and then asking whether Champion was 

fluent in more than one language. Champion testified that he 

was fluent in Spanish. In response to a question whether he 

was “certified or anything in Spanish,” Champion testified that 

every year he was required by the police department “to take 

a proficiency exam” to determine whether he met “the requirement to be considered [a] bilingual officer[].” Champion had 

met such requirement every year since 2010. He further testified that he had been speaking both English and Spanish for 

“the majority of [his] life” and that he spoke both languages in 

his personal and his professional lives.

Champion then testified that on January 24, 2020, he was 

asked to assist in an investigation by listening to some phone 

calls that had been made from jail. Because portions of the 

phone calls were in Spanish, the officer investigating the case 

wanted Champion to listen and advise whether anything was 

said that might be helpful to the investigation. Champion 

testified that he had listened to two calls that were made by 

Comacho on January 23—one to a woman and one to a man. 

The State asked Champion about the call to the man, and 

Champion testified that the call was partially in English and 

partially in Spanish.

When the State asked Champion to testify regarding what 

Comacho said during the call, Comacho objected based on 

“hearsay and foundation.” The court heard Comacho’s objections outside the presence of the jury. Comacho stated that 

he did not dispute that his statements would be admissible 
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as statements of a party opponent. However, he argued that 

sufficient foundation had not been presented to show that 

Champion was “qualified by knowledge, skill, experience, 

training or education to perform the translation” of the Spanish 

portions of the call. Comacho recognized that Champion had 

testified that he had been speaking both Spanish and English 

his whole life, but he argued that Champion had not testified 

that he had “any sort of qualifications or certifications to specifically provide translations.” The court instructed the State to 

“lay a little more foundation” before asking questions regarding the content of the calls. The court stated that Comacho 

could renew his objection at that point and that the court would 

then rule on the objection.

The State then questioned Champion regarding his experience translating Spanish to English. Champion testified that he 

was 39 years old and that he had been speaking both Spanish 

and English his entire life. Champion testified that he had 

assisted others in interpreting from Spanish to English in both 

personal and professional contexts. He testified that in his law 

enforcement career, he was often asked to translate and interpret for Spanish-speaking persons, that he did so “[m]ultiple 

times a week,” and that such occasions involved translating 

both from English to Spanish and from Spanish to English.

Champion addressed the proficiency examinations he had 

undergone annually. He testified that most proficiency tests 

involve “translation in some form,” but that in his case, “the 

tester feels I’m proficient enough that we carry on a conversation in Spanish while we’re in the same room together.” 

Champion testified that he had passed all such proficiency 

examinations and that he had been authorized to assist other 

law enforcement officers by translating Spanish. The State then 

began questioning Champion regarding the content of the calls 

made by Comacho. Comacho objected, and the court overruled the objection. The State thereafter questioned Champion 

over Comacho’s continuing objection to Champion’s translation from Spanish to English.
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Champion testified that during the phone call with the 

other man, Comacho would go back and forth between using 

English and Spanish. After telling the other man he was in 

prison, Comacho told the man “to get rid of a couple of items.” 

Champion testified that the items were “a shirt and a pump.” 

Champion testified that Comacho “was using the Spanish 

term for shirt,” but that Comacho used the English word 

“pump.” Champion testified that he made note of Comacho’s 

instruction to get rid of a “shirt” and a “pump” because it 

“seemed odd that somebody in jail would be so concerned 

about those two items being taken and getting — being 

disposed of.” Champion testified that he did not recognize 

“shirt” and “pump” as being slang terms. However, he reported 

Comacho’s statements regarding getting rid of a shirt and a 

pump as comments that might be relevant to the other officer’s 

investigation. Champion testified with regard to the “shirt” that 

Comacho had told the other man to tell a person named “Alex” 

to “come get his shirt.” Champion also testified that Comacho 

told the other man that “there was money in a pair of black 

boots” and that the man should “give the money to his mom 

to hold on to it.”

Other Testimony and Evidence.

Other testimony presented by the State included that of a 

law enforcement officer who conducted a search of Comacho’s 

residence. Among the items found in the search was a black 

boot that contained a “large roll of money.” The amount of 

cash was $2,000 and included “five $100 bills and the rest was 

$20 bills.”

The State also presented testimony by Ryan Sullivan, a 

criminal investigator with the Grand Island Police Department. 

As part of his investigation of the shooting of Albrecht and 

Comacho’s involvement therein, Sullivan listened to phone 

calls that Comacho made from the prison after he had been 

arrested. During Sullivan’s testimony, the court received 

recordings of the phone calls into evidence without objection 

by Comacho.
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Sullivan testified that because some of what Comacho said 

was in Spanish and Sullivan did not understand Spanish, he 

asked Champion to listen to and translate the phone calls. 

Sullivan testified that Champion had noted Comacho’s use of 

the words “shirt” and “pump.” Sullivan testified that in his 

work investigating crimes involving controlled substances, he 

had become familiar with slang terminology used by drug users 

and dealers. He testified that “shirt” is a common description 

of a certain weight of a controlled substance and that “in Grand 

Island it’s mostly involving methamphetamine.” Sullivan also 

testified that “pump” is a common slang term for a gun.

Sullivan testified regarding information that had been 

obtained in a search of Comacho’s phone. Among the information was a “web history” showing that around 7 p.m. on 

January 21, 2019, a search had been made for information 

regarding “‘One Pound Pure Organic MSM Sulfur Crystals.’” 

During cross-examination by Comacho, Sullivan testified that 

“MSM sulfur crystals” were not an illegal substance and that 

his only familiarity with the substance was that “it was used 

as an imitation substance to replace the controlled substance 

which is trying to be sold.”

Other documents generated from the search of Comacho’s 

phone included depictions of Facebook messaging threads 

between Comacho and other persons. Two exhibits depicting 

such messaging threads were offered by the State. Exhibit 

44 depicted a messaging thread between Comacho and Alex 

Gallardo, and exhibit 45 depicted a messaging thread between 

Comacho and Michael Ortiz. The exhibits included messages 

exchanged between approximately 7 p.m. on January 21, 2019, 

and approximately 4 a.m. on January 22. Statements in the conversations indicated that Comacho was attempting to arrange 

a meeting with Gallardo and Ortiz in the same timeframe 

in which he was making arrangements with Weaver, Goin, 

and Albrecht.

The State offered exhibit 44 into evidence during Sullivan’s 

testimony. Comacho objected based on hearsay. The court 
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heard arguments regarding Comacho’s objection to exhibit 

44 outside the presence of the jury. The argument encompassed both exhibit 44, including messages with Gallardo, and 

exhibit 45, including messages with Ortiz. The State argued 

that the exhibits would be admissible under the hearsay exclusion for statements of coconspirators. The State asserted that 

Gallardo and Ortiz were drawn by Comacho into the conspiracy to distribute a controlled substance and that the exhibits 

being offered would show that the two were involved in the 

conspiracy.

Comacho argued the exhibits could not be admitted because 

at that point in the trial, no evidence had been presented that 

would show that Gallardo and Ortiz were coconspirators with 

Comacho. He further argued that Gallardo and Ortiz were not 

available for cross-examination and that Sullivan’s testimony 

could not establish the two as coconspirators because Sullivan’s 

testimony would not be based on firsthand knowledge. The 

State argued that testimony from Weaver and Albrecht showed 

that Comacho made calls to other people while they were in the 

parking lot of the apartment building and that phone records 

also showed that Comacho had made calls during that time.

Following the argument, the court overruled Comacho’s 

objection based on its determination that the message exchanges 

between Comacho and Gallardo and Ortiz were statements of 

coconspirators and that as such, they were excluded from the 

definition of hearsay. The State continued with its questioning 

of Sullivan, and exhibits 44 and 45 were received into evidence 

over Comacho’s objections.

Conclusion of Trial and Sentencing.

After Sullivan’s testimony was concluded, the State rested 

its case. The court overruled Comacho’s motion for directed 

verdict on both counts. Comacho thereafter presented no testimony or other evidence in his defense. The court’s instructions 

to the jury included instructions regarding the elements of 

conspiracy to distribute a controlled substance, the elements of 

robbery, and the elements of aiding and abetting. With regard 
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to the charge of robbery, the court instructed the jury that it 

could find Comacho guilty of robbery, guilty of aiding and 

abetting a robbery, or not guilty.

The jury found Comacho guilty of conspiracy to distribute a controlled substance and aiding and abetting a robbery. 

Comacho moved for a new trial on the bases that his right of 

confrontation was violated when Champion was allowed to 

testify by video and that there was not sufficient evidence to 

support the convictions. The court overruled the motion for a 

new trial.

The court thereafter held a sentencing hearing at which it 

considered the presentence report and the arguments of the 

parties. When announcing its sentences, the court found that 

Comacho was not a suitable candidate for probation because, 

inter alia, he had failed to comply with terms of probation in 

recent cases. The court sentenced Comacho to imprisonment 

for 14 to 18 years for each of the convictions. The court 

ordered the sentences to be served concurrent with one another 

and with the sentence that had been imposed in a separate case.

Comacho appeals his convictions and sentences.

ASSIGNMENTS OF ERROR

Comacho claims that the district court erred when it (1) 

allowed Champion to testify via two-way interactive video 

in violation of Comacho’s right of confrontation, (2) overruled his objection to Champion’s testimony based on lack of 

foundation for Champion to translate statements from Spanish 

to English, (3) overruled his hearsay objection and admitted 

Facebook messages with Gallardo and Ortiz as statements of 

coconspirators, and (4) overruled his motion for a new trial. 

Comacho also claims that there was not sufficient evidence 

to support his convictions and that the district court imposed 

excessive sentences.

STANDARDS OF REVIEW

[1] An appellate court reviews de novo a trial court’s determination of the protections afforded by the Confrontation 
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Clause of the Sixth Amendment to the U.S. Constitution and 

article I, § 11, of the Nebraska Constitution and reviews 

the underlying factual determinations for clear error. State v. 

Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).

[2,3] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules and judicial discretion is involved 

only when the rules make discretion a factor in determining 

admissibility. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 

(2021). 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. State v. Figures, supra.

[4] 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. Id.

[5] 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 court’s ultimate determination to admit evidence over a hearsay objection. 

State v. Martinez, 306 Neb. 516, 946 N.W.2d 445 (2020).

[6] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the 

issue is labeled as a failure to direct a verdict, insufficiency of 

the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, 

in the absence of prejudicial error, if the evidence admitted at 

trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Wheeler, 308 Neb. 

708, 956 N.W.2d 708 (2021).

[7] Absent an abuse of discretion by the trial court, an appellate court will not disturb a sentence imposed within the statutory limits. Id.
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ANALYSIS

Champion’s Translations of Comacho’s Recorded 

Statements Were Subject to Requirements 

Regarding Confrontation 

and Foundation.

As an initial matter, we note that Comacho’s first two assignments of error each concern Champion’s testimony regarding 

the recordings of phone calls Comacho made from prison. The 

recording itself was received into evidence during Sullivan’s 

testimony, and the apparent purpose of Champion’s testimony 

was to translate portions of the recording in which Comacho 

spoke in Spanish. We therefore review our precedent regarding 

statutory and constitutional rules governing admission of a witness’ testimony regarding English translations of a defendant’s 

statements made in a different language.

[8] In State v. Martinez, supra, we addressed a hearsay 

objection to translations of statements the defendant made in 

Spanish in phone calls, text messages, and law enforcement 

interviews. We noted that the defendant’s statements in the 

original Spanish were clearly nonhearsay under Neb. Rev. 

Stat. § 27-801(4)(b)(i) (Reissue 2016) which provides that 

“[a] statement is not hearsay if . . . [t]he statement is offered 

against a party and is . . . his [or her] own statement.” With 

regard to evidence of an English translation of such statements, 

we held:

[W]here 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 [§ 27-801(4)], and any 

challenges to the accuracy of the translation go to the 

weight of the evidence and not to its admissibility.

State v. Martinez, 306 Neb. 516, 530, 946 N.W.2d 445, 

458 (2020).
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We noted in Martinez that we were addressing only the 

defendant’s hearsay objection to the translations; the defendant 

had made no objection based on the Confrontation Clause at 

trial, and on appeal, he had abandoned the foundation objection 

he had made at trial. Nevertheless, we read the holding from 

Martinez quoted above to implicitly address both foundation 

and confrontation requirements for admission of such evidence. 

We held translations to be admissible “where the translator . . . 

is initially shown by the State to be qualified by knowledge, 

skill, experience, training, or education to perform such translation.” State v. Martinez, 306 Neb. at 516, 946 N.W.2d at 458. 

We read this as a foundation requirement for the admission of 

translations. Furthermore, we recognized that the principles 

controlling Confrontation Clause analysis applied to the testimony of the translator when we held the translation admissible 

“where the translator testifies at trial and is subject to crossexamination.” State v. Martinez, 306 Neb. at 516, 946 N.W.2d 

at 458.

In the present case, Comacho does not assert on appeal a 

hearsay objection to Champion’s testimony. However, he argues 

that the district court erred when it allowed Champion’s testimony over both his Confrontation Clause and his foundation 

objections. Our review of Comacho’s confrontation and foundation arguments are informed by our holding in Martinez.

District Court Did Not Err When It 

Allowed Champion to Testify by 

Two-Way Interactive Video.

Comacho first claims that the district court erred when it 

overruled his objection to Champion’s testimony based on a 

violation of his right of confrontation when Champion was 

allowed to testify by two-way interactive video. We conclude 

that the district court did not err when it overruled Comacho’s 

confrontation objection to Champion’s testimony.

We first address the State’s argument that the Confrontation 

Clause did not apply because the substance of Champion’s 
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testimony was merely to translate Comacho’s statements in 

the phone calls, which were admissible as statements by the 

party opponent. As we held in State v. Martinez, supra, translations of a defendant’s out-of-court statements are admissible as 

nonhearsay under § 27-801(4) regarding statements of a party 

offered against the party. However, as we noted above, we 

held that such translations were admissible if, inter alia, “the 

translator testifies at trial and is subject to cross-examination.”

State v. Martinez, 306 Neb. at 530, 946 N.W.2d at 458. We also 

referred to the importance of the defendant’s ability to make 

“challenges to the accuracy of the translation,” id., and we 

noted in that regard that the defendant “thoroughly examined 

the translator regarding the translations’ correctness [and] had 

the opportunity . . . to present other evidence bearing on the 

translations’ precision or shortcomings,” State v. Martinez, 306 

Neb. at 526, 946 N.W.2d at 456.

We read Martinez as recognizing that the Confrontation 

Clause applies to testimony translating a defendant’s foreign 

language statements made out of court; in particular, confrontation principles are required to allow the defendant to challenge 

the accuracy, precision, and shortcomings of the translation. As 

we stated in Martinez, those concerns are met when the translator testifies at trial and is subject to cross-examination. The 

question presented in this case is whether the constitutional 

requirement of confrontation is met when such testimony and 

cross-examination is carried via two-way interactive video 

rather than in-court testimony.

Comacho contends that the Confrontation Clause guarantees 

the defendant a face-to-face meeting with witnesses appearing 

before the trier of fact and that in the absence of a face-toface meeting, the Confrontation Clause is violated. See Coy 

v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 

(1988). He further contends that the requirement for a face-toface meeting is not met by allowing trial testimony remotely 

by two-way video, citing U.S. v. Carter, 907 F.3d 1199 (9th 

Cir. 2018) (concluding that victim’s inability to travel due to 
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complications of pregnancy did not satisfy finding of necessity to support allowing testimony at trial by two-way video 

conferencing).

The district court and the State contend that in certain circumstances, the Confrontation Clause is satisfied even in the 

absence of an in-person, face-to-face meeting. The district 

court and the State rely in large part on Maryland v. Craig, 497 

U.S. 836, 850, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990), in 

which the U.S. Supreme Court recognized that in a narrow set 

of circumstances, the requirements of the Confrontation Clause 

may be satisfied absent a physical, face-to-face confrontation 

but only where (1) the “denial of such confrontation is necessary to further an important public policy” and (2) “the reliability of the testimony is otherwise assured.” Comacho recognizes 

the precedent of Craig, but argues that the high bar set forth in 

that case was not met here.

[9,10] We have examined Craig in subsequent cases involving the specific circumstances of that case—that is, a child 

witness’ testimony outside the defendant’s physical presence. 

In State v. Smith, 302 Neb. 154, 171, 922 N.W.2d 444, 458 

(2019), we described the holding of Craig as follows:

In Maryland v. Craig, the Court reasoned that while the 

Confrontation Clause guaranteed a criminal defendant a 

face-to-face meeting with witnesses appearing before the 

trier of fact, that guarantee was not an absolute right. The 

Court further stated that while the face-to-face requirement was not absolute, it could not be disposed of easily. . . .

Based on its reasoning that a face-to-face confrontation was not an absolute right but could not be disposed 

of easily, the Court in Maryland v. Craig held that “a 

defendant’s right to confront accusatory witnesses may 

be satisfied absent a physical, face-to-face confrontation 

at trial only where denial of such confrontation is necessary to further an important public policy and only where 
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the reliability of the testimony is otherwise assured.” 497 

U.S. at 850.

The district court in this case applied these factors and determined that Comacho’s right to confront Champion would be 

satisfied absent physical, face-to-face confrontation and instead 

by two-way interactive video.

Regarding the first prong, the court determined that 

Champion’s physical absence from the courtroom was “necessary for public policy to protect the public.” The court identified 

that important public policy as being to respond to the ongoing 

COVID-19 pandemic and to prevent the spread of the coronavirus. Because Champion had testified positive for COVID-19 

and was displaying symptoms, the court noted that Champion’s 

presence in the courtroom could potentially expose numerous people to illness, including court staff, attorneys, jurors, 

Comacho, and others in the courthouse. To support its determination that an important public policy was being furthered, the 

court cited guidance from this court which provided, inter alia, 

that persons displaying symptoms of COVID-19 should not be 

allowed inside courtrooms.

Regarding whether the reliability of the testimony was otherwise assured, the court noted that Comacho would be allowed 

to cross-examine Champion by video and that because it was 

two-way interactive video, Comacho and his counsel would 

be able to see Champion and vice versa. The court found the 

arrangement to support the face-to-face requirement of the 

Confrontation Clause, and the court noted that its determination in this regard relied in large part on the fact that Champion 

was not a victim of the crimes charged against Comacho and 

that instead, he was a law enforcement officer who was merely 

“giving a factual scenario.”

We recognize that the application of Maryland v. Craig, 

497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990), 

has generally been limited to the specific circumstances of 

a child witness, often a victim of the crime, who would be 
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traumatized to testify in the presence of the defendant. We also 

recognize that Craig sets a high bar and that while not an absolute right, the right of confrontation should not be taken lightly. 

However, we think that unique circumstances of this case show 

that Comacho’s right of confrontation was not infringed when 

the court allowed Champion to testify by two-way interactive 

video. We emphasize that the specific context of the circumstances under which this trial took place and the specific nature 

of Champion’s testimony indicate that this was a rare case in 

which the defendant’s confrontation rights were satisfied in the 

absence of physical, face-to-face confrontation.

First, regarding the important public policy required under 

Craig, we agree with the district court’s determination that 

preventing the spread of COVID-19 was an important public 

policy. As another court has noted:

Protecting the public health during this pandemic constitutes an important public policy that may be the basis of 

a finding of necessity. COVID-19 is a highly contagious 

disease that spreads from person to person. An in-person 

hearing, with physical, face-to-face confrontation, must 

take place in a confined space. Such a hearing increases 

the risk of transmitting the virus.

Vazquez Diaz v. Commonwealth, 487 Mass. 336, 350, 167 

N.E.3d 822, 838 (2021). We note that our determination in 

this regard is time-sensitive—that is, the district court’s decision must be viewed in the context of the time when the trial 

took place, which was July 2020. At that time, the coronavirus was very new and knowledge regarding its transmission 

and ways to limit its spread was much more limited than at 

the present day or, presumably, than it will be in the future. 

We emphasize also that it is important to our determination 

of necessity that in this case, the witness had actually tested 

positive for COVID-19 and was experiencing symptoms. 

Champion’s being physically absent from the courtroom was 

clearly shown to be necessary to advance the important public 

policy of protecting the public health. See id. Therefore, we 
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agree with the court’s determination that Champion’s absence 

from the courtroom was necessary to further an important 

public policy.

Second, regarding whether reliability of the testimony was 

otherwise assured, we agree with the district court that in light 

of the specific nature of Champion’s testimony, reliability was 

otherwise assured. The main purpose of Champion’s testimony 

was to translate portions of the phone calls in which Comacho 

spoke in Spanish. Therefore, as the court noted, this was not 

testimony in which an assessment of credibility was as vital or 

as nuanced as it would be for testimony by the victim of the 

crime charged or by an eyewitness. That is, a physical, face-toface confrontation was not as vital for Champion’s testimony 

as it would have been for testimony of a different nature, and 

we think the two-way interactive video used in this case was 

sufficient to provide necessary confrontation. See id. (determining that assurance that testimony was reliable was present 

with use of two-way video conferencing technology; elements of confrontation other than physical presence were preserved, including “‘oath, cross-examination, and observation 

of the witness’[s] demeanor’”). Comacho was able to crossexamine Champion to test the accuracy of his translations, and 

Comacho otherwise was afforded the opportunity to present 

evidence to challenge the accuracy of Champion’s translations. 

Furthermore, Comacho, his counsel, and the jury were able to 

observe Champion as he testified in real time. We also note 

that a recording of the calls was received into evidence during 

Sullivan’s testimony and that therefore, the jury was able to 

listen to the calls and determine whether Champion’s translations appeared reliable in context.

We conclude that based on the specific and unique context in 

which this case was tried and the specific nature of Champion’s 

testimony, the district court did not violate Comacho’s right of 

confrontation when it allowed Champion to testify by two-way 

interactive video. We reject this assignment of error.
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District Court Did Not Err When It Determined 

Foundation Was Sufficient to Admit Champion’s 

Testimony Regarding His Translation of 

Spanish Words Spoken by Comacho.

Comacho also claims that the district court erred when it 

overruled his objection to Champion’s testimony based on 

a lack of foundation to support the accuracy of Champion’s 

translation of Spanish to English. We conclude that the district 

court did not err when it overruled Comacho’s foundation 

objection to Champion’s testimony.

As noted above, in State v. Martinez, 306 Neb. 516, 530, 946 

N.W.2d 445, 458 (2020), we set forth foundation requirements 

for translation of a defendant’s out-of-court statements and 

stated that foundation is sufficient “where the translator . . . 

is initially shown by the State to be qualified by knowledge, 

skill, experience, training, or education to perform such translation.” Comacho argues that the court erred when it allowed 

Champion to testify regarding his translations because there 

was not sufficient evidence to make the preliminary showing 

that he was qualified to perform such translation.

Champion initially testified that he was required to take a 

proficiency examination every year in order to be considered 

by the police department as a “bilingual officer[]” and that 

he had met that requirement every year since 2010. He also 

testified that he had been speaking both Spanish and English 

for most of his life and that he spoke both languages in both 

his personal and professional lives. When Comacho objected 

to Champion’s being asked to translate Comacho’s statements, 

the court instructed the State to “lay a little more foundation.” Champion thereafter provided more detail regarding 

how long he had been speaking both Spanish and English, how 

he had assisted others in translating from Spanish to English 

in both his personal and professional lives, and the proficiency examinations that he had undergone annually in order 

to remain authorized by the police department to assist others 

by providing translation. The district court thereafter overruled 
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Comacho’s foundation objection to Champion’s translationrelated testimony. Given the facts just recited, we conclude that 

the district court did not err when it determined that Champion 

was qualified to testify regarding the English translation of the 

Spanish content spoken by Comacho.

The foundation requirement under Martinez is an initial 

showing that the translator is “qualified by knowledge, skill, 

experience, training, or education to perform such translation.” 

306 Neb. at 530, 946 N.W.2d at 458. This standard does not 

require any particular type of training, education, or certification to provide translation as compared to one who is serving as an official interpreter of in-court testimony. Instead, it 

requires a showing that the translator’s individual knowledge, 

skill, experience, training, or education is sufficient to indicate 

that the witness is qualified for the purposes for which he or 

she is testifying. As noted above, in this case, Champion’s 

experience providing translations between Spanish and English 

in both his personal and professional lives were sufficient to 

show he was qualified to provide the translations needed in this 

case. We reject this assignment of error.

District Court Did Not Abuse Its Discretion 

When It Admitted Facebook Messages.

Comacho next claims that the district court erred when it 

overruled his hearsay objections to transcriptions of Facebook 

messages Comacho exchanged with Gallardo and with Ortiz. 

We conclude that the district court did not err when it overruled Comacho’s hearsay objections.

The court admitted the Facebook messages as being a combination of Comacho’s own statements being offered against 

him and the statements of Gallardo and Ortiz as coconspirators. 

Comacho contends that the State did not establish a conspiracy 

as foundation to admit Gallardo’s and Oritz’ statements in the 

Facebook messages under the hearsay exception for statements 

of coconspirators.

[11-13] Section 27-801(4)(b)(v) provides that “[a] statement is not hearsay if . . . [t]he statement is offered against a 
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party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” We have 

held that § 27-801(4)(b)(v) is applicable regardless of whether 

the defendant is charged with the conspiracy that supports 

admission of the statement. See State v. Torres, 283 Neb. 142, 

812 N.W.2d 213 (2012). We have stated:

Under this rule, a statement is excluded as nonhearsay if 

it is more likely than not that (1) a conspiracy existed, 

(2) the declarant was a member of the conspiracy, (3) the 

party against whom the assertion is offered was a member 

of the conspiracy, (4) the assertion was made during the 

course of the conspiracy, and (5) the assertion was made 

in furtherance of the conspiracy.

State v. Britt, 293 Neb. 381, 398-99, 881 N.W.2d 818, 833 

(2016). We further stated, “It is well established that a conspiracy is ongoing—such that statements are considered made 

during the course of the conspiracy—until the central purposes 

of the conspiracy have either failed or been achieved.” Id. at 

399, 881 N.W.2d at 833.

[14] Before a trier of fact may consider testimony under the 

coconspirator exception to the hearsay rule, a prima facie case 

establishing the existence of a conspiracy must be shown by 

independent evidence. State v. Torres, supra. We have stated 

that the phrase “prima facie” can “‘probably be defined only in 

terms of sufficient evidence to permit the trial court reasonably 

to infer that there existed a conspiracy.’” State v. Copple, 224 

Neb. 672, 693, 401 N.W.2d 141, 156 (1987) (quoting State v. 

Thompson, 273 Minn. 1, 139 N.W.2d 490 (1966)), abrogated 

on other grounds, State v. Reynolds, 235 Neb. 662, 457 N.W.2d 

405 (1990). We have further stated:

“The requirement of prima facie proof is less stringent 

than that of a preponderance of the evidence. The former 

requires only enough evidence to take the question to the 

jury whereas the latter requires ‘proof which leads the 

jury to find that the existence of the contested fact is more 

probable than its nonexistence.’”
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Id. (quoting United States v. Trotter, 529 F.2d 806 (3d Cir. 

1976)).

We have noted that on appellate review, we look to the 

entire record rather than only what was in evidence at the time 

the statements were admitted. We said in State v. Hansen, 252 

Neb. 489, 498-99, 562 N.W.2d 840, 848 (1997):

Regardless of whether a prima facie case of conspiracy 

had been established at the time [the coconspirator’s] 

statement was first introduced, we conclude that the sum 

of the evidence submitted at trial, considered independently from the declaration in question, established a 

prima facie case of a conspiracy between [the coconspirator] and [the defendant]. As such, the declaration would 

ultimately have been admissible under the coconspirator 

exception to the hearsay rule.

Comacho argues that the district court erred in this case 

because its determination that Gallardo, Ortiz, and Comacho 

were coconspirators relied largely on the Facebook messages 

themselves. He asserts that the statements sought to be admitted cannot be part of the evidence to support the initial finding 

of a conspiracy.

We stated in State v. Bobo, 198 Neb. 551, 557, 253 N.W.2d 

857, 861 (1977):

The purpose of requiring that the conspiracy be established by independent evidence is to prevent the danger 

of hearsay evidence being lifted by its own bootstraps, 

i. e., relying on the hearsay statements to establish the 

conspiracy, and then using the conspiracy to permit the 

introduction of what would otherwise be hearsay testimony in evidence.

See, also, State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009); 

State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), disapproved on other grounds, State v. Britt, supra. We have also 

rejected a finding of conspiracy based solely on the statements 

themselves. In State v. Myers, 258 Neb. 300, 310, 603 N.W.2d 

378, 387 (1999), we stated:
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[O]ur review of the record reveals that the conspiracy . . . 

can only be proved by the hearsay statements themselves. 

Thus, the State has failed to make a prima facie showing 

of the existence of the conspiracy . . . separate and apart 

from the hearsay statements. Consequently, the statements 

. . . cannot be considered “nonhearsay.”

However, although the statements themselves cannot be the 

sole evidence to support the existence of conspiracy, the statements can be part of the determination so long as there is also 

evidence independent of the statements to show a conspiracy. 

See Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 

97 L. Ed. 2d 144 (1987) (applying similar federal rule of 

evidence and stating that in determining whether statement is 

admissible as statement of coconspirator, court may consider 

statement itself). See, also, State v. Pullens, 281 Neb. 828, 

844, 800 N.W.2d 202, 219 (2011) (citing Bourjaily, supra, with 

approval for proposition that “there is no prohibition against 

so-called bootstrapping in making preliminary determinations” 

of admissibility).

In this case, the statements were some of the evidence of 

a conspiracy among Comacho, Gallardo, and Ortiz. There 

was also independent evidence of this conspiracy. We note 

that Albrecht’s and Weaver’s testimony regarding the events 

that occurred in the parking lot, as well as the events that 

led them to the parking lot, show that Comacho was working 

with at least one other individual. Both testified that Comacho 

was communicating with another person or persons and that 

Comacho was directing them to a location where they would 

meet with others to provide the methamphetamine. They also 

testified that when they were in the parking lot, another vehicle pulled up and Comacho went to speak with the person or 

persons in the other vehicle. And they testified that Comacho 

made calls to another person when Albrecht refused to pay the 

cash before getting the methamphetamine. Finally, their testimony indicated that Comacho had gone in the direction of the 

other occupied vehicle when the shots were fired at Albrecht’s 
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vehicle. Furthermore, without considering the statements in the 

messages themselves, the metadata of the messages obtained in 

Sullivan’s search of Comacho’s phone indicated that Comacho 

was communicating with both Gallardo and Ortiz in the hours 

immediately preceding and following Comacho’s meeting with 

Albrecht and Weaver and the incidents in the parking lot. 

Such evidence supported a finding that Comacho was involved 

in a criminal conspiracy involving Gallardo and Ortiz. We 

believe that a conspiracy involving Comacho, Gallardo, and 

Ortiz was shown whether the object of the conspiracy was to 

distribute methamphetamine or to rob Albrecht of the cash or 

if the object of the conspiracy evolved from one to the other 

over time.

Based on this evidence, we determine that the district court 

did not abuse its discretion when it allowed the messages 

over Comacho’s hearsay objection. We reject this assignment 

of error.

There Was Sufficient Evidence to 

Support Comacho’s Convictions.

Comacho next claims that there was not sufficient evidence 

to support either of his convictions. We conclude that there was 

sufficient evidence to support the jury’s verdicts.

[15] In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the 

absence of prejudicial error, if the evidence admitted at trial, 

viewed and construed most favorably to the State, is sufficient 

to support the conviction. State v. Price, 306 Neb. 38, 944 

N.W.2d 279 (2020). When a criminal defendant challenges the 

sufficiency of the evidence upon which a conviction is based, 

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. Id.
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Conspiracy to Distribute Controlled Substance.

With regard to Comacho’s conviction for conspiracy to distribute a controlled substance, under Neb. Rev. Stat. § 28-202(1) 

(Cum. Supp. 2020):

A person shall be guilty of criminal conspiracy if, with 

intent to promote or facilitate the commission of a felony:

(a) He agrees with one or more persons that they or one 

or more of them shall engage in or solicit the conduct or 

shall cause or solicit the result specified by the definition 

of the offense; and

(b) He or another person with whom he conspired commits an overt act in pursuance of the conspiracy.

The felony the State alleged to be the subject of the conspiracy 

in this case was distribution of a controlled substance, methamphetamine, which is a felony under Neb. Rev. Stat. § 28-416(2) 

(Cum. Supp. 2020). In particular, the State contends that 

Comacho participated in a scheme whereby Comacho arranged 

to find sellers to sell methamphetamine to Albrecht.

Comacho contends that there was no evidence that he 

agreed to sell methamphetamine to Albrecht; he argues that 

although there was evidence of a conspiracy among Albrecht, 

Weaver, and Goin, there is no evidence he agreed to be part of 

that conspiracy. Instead, he notes evidence that he may have 

intended to sell Albrecht “MSM sulfur crystals” instead of 

methamphetamine.

However, the testimony of Weaver and Albrecht indicates 

that Comacho expressed his agreement to take part in the conspiracy to carry out a sale of methamphetamine. The evidence 

in this case indicates that Comacho spoke with both Weaver 

and Goins about setting up a purchase for methamphetamine. 

Although there was evidence from which it could be found at 

a certain point that Comacho no longer intended to take part 

in the distribution of methamphetamine, the jury could reasonably infer that prior to that time, Comacho was conspiring to 

distribute methamphetamine to Albrecht, Weaver, and Goin and 

had taken overt steps to do so.
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Viewing the evidence in the light most favorable to the 

State, we conclude that the evidence was sufficient to support 

Comacho’s conviction for conspiracy to distribute a controlled 

substance. We therefore reject this assignment of error.

Aiding and Abetting a Robbery.

[16] Under Neb. Rev. Stat. § 28-324(1) (Reissue 2016), “A 

person commits robbery if, with the intent to steal, he forcibly 

and by violence, or by putting in fear, takes from the person 

of another any money or personal property of any value whatever.” Comacho was convicted of aiding and abetting a robbery. Neb. Rev. Stat. § 28-206 provides that “[a] person who 

aids, abets, procures, or causes another to commit any offense 

may be prosecuted and punished as if he were the principal 

offender.” Aiding and abetting requires some participation in 

a criminal act which must be evidenced by word, act, or deed, 

and mere encouragement or assistance is sufficient to make one 

an aider or abettor. State v. Stubbendieck, 302 Neb. 702, 924 

N.W.2d 711 (2019).

Comacho argues that a robbery was not proved, because 

at the time Albrecht gave Comacho the cash, Albrecht did so 

voluntarily, and that therefore, Comacho did not take the cash 

from him “forcibly and by violence, or by putting in fear.” 

See § 28-324(1). He further argues that there was no direct 

evidence that he fired the shots at Albrecht or that he was even 

present when the shots were fired.

[17] We have recognized that a robbery is not completed 

at the time the robber takes the money or property and that 

the necessary force, violence, or putting in fear may occur 

when, immediately after taking the money or property, the 

robber is carrying the property away or attempting to escape. 

See State v. Bell, 194 Neb. 554, 233 N.W.2d 920 (1975). In 

Bell, the defendant took a cash register from a gas station 

while the attendant was not looking. When the attendant 

saw what the defendant had done, the attendant attempted to 

retrieve the cash register and the defendant struck and pushed 
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the attendant. We concluded on appeal that although the 

defendant had already removed the cash register from the station, the robbery was not yet complete because an escape with 

the stolen property was an integral part of the robbery. In Bell, 

we cited with approval the following from People v. Anderson, 

64 Cal. 2d 633, 414 P.2d 366, 51 Cal. Rptr. 238 (1966):

“[A] robbery is not completed at the moment the robber obtains possession of the stolen property and . . . the 

crime of robbery includes the element of asportation, the 

robber’s escape with the loot being considered as important in the commission of the crime as gaining possession 

of the property. . . .

“Accordingly, if one who has stolen property from 

the person of another uses force or fear in removing, 

or attempting to remove, the property from the owner’s 

immediate presence, as defendant did here, the crime of 

robbery has been committed.”

194 Neb. at 556, 233 N.W.2d at 922.

In this case, although the shots were fired after Comacho 

had obtained the cash from Albrecht, the jury could reasonably 

find that the shots were being fired in order to allow the robber to remove the cash from Albrecht’s presence and to prevent 

Albrecht from attempting to retrieve the cash. Firing shots at 

Albrecht could be found to be use of force against Albrecht 

or putting him in fear in order to complete the taking of the 

cash. Because Comacho was convicted as aiding and abetting 

a robbery, it did not matter whether Comacho was the shooter. 

The robbery involved both taking the cash from Albrecht with 

or without force or fear and taking it out of his presence. The 

necessary element of use of force or putting in fear was part of 

the phase of the robbery in which the money was being taken 

out of Albrecht’s presence. The entire incident constituted a 

robbery, and Comacho aided in its commission.

Viewing the evidence in the light most favorable to the 

State, we conclude that the evidence was sufficient to support 
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Comacho’s conviction for aiding and abetting a robbery. We 

therefore reject this assignment of error.

District Court Did Not Err When It 

Overruled Motion for New Trial.

Comacho claims the district court erred when it overruled 

his motion for a new trial. Comacho argued for a new trial 

based on his claims that Champion’s testimony by two-way 

video violated his right of confrontation and that there was not 

sufficient evidence to support the verdicts. Because we rejected 

those arguments above, we also conclude the court did not err 

when it overruled Comacho’s motion for a new trial based on 

the same arguments.

District Court Did Not Abuse Its Discretion 

When Imposing Sentences.

Comacho finally claims that the district court imposed excessive sentences. He argues that the court did not adequately 

consider relevant mitigating factors, particularly his substance 

abuse issues and background. We find no abuse of discretion 

in the sentencing.

Comacho was convicted of conspiracy to distribute a controlled substance. Section 28-202(4) provides, “Conspiracy is 

a crime of the same class as the most serious offense which is 

an object of the conspiracy, except that conspiracy to commit 

a Class I felony is a Class II felony.” Distribution of a controlled substance, methamphetamine, is a Class II felony under 

§ 28-416(2)(a). Therefore, conspiracy to distribute a controlled 

substance is a Class II felony. Comacho was also convicted of 

aiding and abetting a robbery. Section 28-206 provides that a 

person who aids and abets another to commit any offense may 

be punished as if he were the principal offender, and robbery 

is a Class II felony under § 28-324(2). The sentencing range 

for a Class II felony is imprisonment for a minimum of 1 year 

and a maximum of 50 years. Neb. Rev. Stat. § 28-105 (Cum. 

Supp. 2018).
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The district court sentenced Comacho to imprisonment for 

14 to 18 years for each conviction, and the court ordered the 

sentences to be served concurrent with one another and with 

the sentence imposed in another case. The sentences imposed 

by the court were therefore within statutory limits.

[18] Where a sentence imposed within the statutory limits 

is alleged on appeal to be excessive, the appellate court must 

determine whether a sentencing court abused its discretion 

in considering and applying the relevant factors as well as 

any applicable legal principles in determining the sentence 

to be imposed. State v. Price, 306 Neb. 38, 944 N.W.2d 279 

(2020). We therefore consider whether the court abused its 

discretion.

[19,20] 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. Id. 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. Id.

Comacho argues that the court failed to give adequate 

weight to mitigating factors, most notably his substance abuse 

issues. He acknowledges his significant criminal history but 

argues that the offenses largely involved controlled substances 

or were committed while he was under the influence of controlled substances. He argues that instead of imposing a lengthy 

sentence of imprisonment, the court should have imposed a 

sentence of probation that included treatment to address his 

substance abuse issues. Comacho notes that prior to a relapse 

that resulted in the events that gave rise to his current convictions, he had recently had a 3-year period of sobriety in which 

he had not engaged in criminal activity.
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Comacho made similar arguments at the sentencing hearing. Before imposing the sentences, the court stated that it 

had considered all the relevant factors set forth above, and the 

court specifically addressed Comacho’s substance abuse issues. 

However, the court found that Comacho was not a suitable candidate for probation, and it noted various factors to support that 

finding, especially the fact that Comacho had failed to comply 

with the terms of probation in prior cases. The court noted that 

the relapse that led to the current convictions showed an escalation in criminal conduct in which a person was shot and that 

“[h]ad this situation turned out slightly different, [Comacho] 

could have potentially been on trial for a murder charge.” The 

court further noted that while in custody, Comacho would have 

opportunities for treatment.

We note that the sentences of imprisonment for 14 to 18 

years were in the lower part of the sentencing range of 1 to 50 

years for the offenses of which Comacho was convicted. From 

the entirety of the court’s remarks, it did not ignore the mitigating factor urged by Comacho, and we find no abuse of discretion in the sentences imposed. We reject Comacho’s claim that 

the district court imposed excessive sentences.

CONCLUSION

We conclude that the district court did not err when it 

allowed Champion to testify via two-way interactive video 

over Comacho’s confrontation and foundation objections. We 

also conclude that the court did not err when it overruled 

Comacho’s hearsay objection to the Facebook messages with 

Gallardo and Ortiz or when it overruled Comacho’s moton for 

new trial. We further conclude that there was sufficient evidence to support Comacho’s convictions and that the court did 

not abuse its discretion in sentencing Comacho. We therefore 

affirm Comacho’s convictions and sentences.

Affirmed.

Heavican, C.J., not participating.