Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/23/2021 08:09 AM CDT
- 494 -
Nebraska Supreme Court Advance Sheets
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 unrea-
sonable 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 rul-
ing 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
- 495 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
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 favor-
ably 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 quali-
fied 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 physi-
cal, face-to-face confrontation at trial only where denial of such con-
frontation 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 con-
sidered 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.
- 496 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
15. Criminal Law: Evidence: Appeal and Error. When a criminal defend
ant 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 partici-
pation 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, vio-
lence, or putting in fear may occur when, immediately after taking the
money or property, the robber is carrying the property away or attempt-
ing 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 con-
sidering 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) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
20. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
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.
- 497 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
Miller-Lerman, J.
NATURE OF CASE
Christian Estrada Comacho (Comacho) appeals his convic-
tions 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 dis-
trict court violated his right to confrontation when it allowed a
witness, who had tested positive for COVID-19 and was expe-
riencing 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 nar-
rative 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 build-
ing 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.
- 498 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 vehi-
cle 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,
- 499 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
and Weaver believed that Comacho could provide methamphet-
amine. 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 communi-
cated 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 dis-
cussed the amount of methamphetamine needed and arranged
a time Weaver and the purchaser could meet with Comacho.
Comacho expressed agreement with the plans. Weaver con-
tinued 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 resi-
dence, 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 meth-
amphetamine and would be willing to pay $5,000 for it. On
January 21, Goin informed Albrecht that he had located some-
one in Grand Island who could provide that quantity of meth-
amphetamine 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
- 500 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 park-
ing 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 remain-
ing 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 win-
dow 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
- 501 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 testi-
fied 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 preced-
ing 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 pos-
itive for COVID-19 and was experiencing symptoms. The
State requested that Champion be allowed to testify by two-
way interactive video. Comacho objected to Champion’s tes-
tifying 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 interac-
tive 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
- 502 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
dispute in that it is . . . capable of accurate and ready deter-
mination by resort to sources whose accuracy cannot be rea-
sonably 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 prec-
edent 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 reli-
ability 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 giv-
ing 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
- 503 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 require-
ment to be considered [a] bilingual officer[].” Champion had
met such requirement every year since 2010. He further testi-
fied 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 objec-
tions outside the presence of the jury. Comacho stated that
he did not dispute that his statements would be admissible
- 504 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 spe-
cifically provide translations.” The court instructed the State to
“lay a little more foundation” before asking questions regard-
ing 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 experi-
ence 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 inter-
pret 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 conver-
sation 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 over-
ruled the objection. The State thereafter questioned Champion
over Comacho’s continuing objection to Champion’s transla-
tion from Spanish to English.
- 505 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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.
- 506 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 infor-
mation 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 con-
versations 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
- 507 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
heard arguments regarding Comacho’s objection to exhibit
44 outside the presence of the jury. The argument encom-
passed 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 exclu-
sion for statements of coconspirators. The State asserted that
Gallardo and Ortiz were drawn by Comacho into the conspir-
acy 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 testi-
mony 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
- 508 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 distrib-
ute 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) over-
ruled 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 deter-
mination of the protections afforded by the Confrontation
- 509 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. State v. Figures, supra.
[4] An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. 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 ulti-
mate 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, circumstan-
tial, 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 stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such mat-
ters 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 suf-
ficient 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 appel-
late court will not disturb a sentence imposed within the statu-
tory limits. Id.
- 510 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 assign-
ments 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 wit-
ness’ 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 knowl-
edge, 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).
- 511 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 trans-
lation.” 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 testi-
mony of the translator when we held the translation admissible
“where the translator testifies at trial and is subject to cross-
examination.” 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 testi-
mony over both his Confrontation Clause and his foundation
objections. Our review of Comacho’s confrontation and foun-
dation 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
- 512 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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, transla-
tions 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, confronta-
tion 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 trans-
lator 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-to-
face 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-to-
face 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
- 513 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
complications of pregnancy did not satisfy finding of neces-
sity to support allowing testimony at trial by two-way video
conferencing).
The district court and the State contend that in certain cir-
cumstances, 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 neces-
sary to further an important public policy” and (2) “the reliabil-
ity 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 involv-
ing 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 require-
ment was not absolute, it could not be disposed of eas-
ily. . . .
Based on its reasoning that a face-to-face confronta-
tion 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 neces-
sary to further an important public policy and only where
- 514 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
the reliability of the testimony is otherwise assured.” 497
U.S. at 850.
The district court in this case applied these factors and deter-
mined 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 “neces-
sary 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 corona-
virus. 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 numer-
ous people to illness, including court staff, attorneys, jurors,
Comacho, and others in the courthouse. To support its determi-
nation 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 other-
wise 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 determina-
tion 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
- 515 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
traumatized to testify in the presence of the defendant. We also
recognize that Craig sets a high bar and that while not an abso-
lute 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 circum-
stances 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 con-
stitutes 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 deci-
sion must be viewed in the context of the time when the trial
took place, which was July 2020. At that time, the corona
virus 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
- 516 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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-to-
face 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. (deter-
mining that assurance that testimony was reliable was present
with use of two-way video conferencing technology; ele-
ments of confrontation other than physical presence were pre-
served, including “‘oath, cross-examination, and observation
of the witness’[s] demeanor’”). Comacho was able to cross-
examine 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 transla-
tions 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.
- 517 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 trans-
lation.” 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 founda-
tion.” 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 profi-
ciency 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
- 518 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
Comacho’s foundation objection to Champion’s translation-
related 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 certifica-
tion to provide translation as compared to one who is serv-
ing 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 over-
ruled Comacho’s hearsay objections.
The court admitted the Facebook messages as being a com-
bination 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] state-
ment is not hearsay if . . . [t]he statement is offered against a
- 519 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
party and is . . . a statement by a coconspirator of a party dur-
ing 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 con-
spiracy 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.’”
- 520 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 indepen-
dently from the declaration in question, established a
prima facie case of a conspiracy between [the coconspira-
tor] 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 admit-
ted 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 estab-
lished 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 testi-
mony 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), dis-
approved 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:
- 521 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
[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 state-
ments 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 vehi-
cle 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 testi-
mony indicated that Comacho had gone in the direction of the
other occupied vehicle when the shots were fired at Albrecht’s
- 522 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 cred-
ibility 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 pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Id.
- 523 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
Conspiracy to Distribute Controlled Substance.
With regard to Comacho’s conviction for conspiracy to dis-
tribute 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 com-
mits 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, metham-
phetamine, 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 con-
spiracy 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 reason-
ably 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.
- 524 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 what-
ever.” Comacho was convicted of aiding and abetting a rob-
bery. 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
- 525 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
the attendant. We concluded on appeal that although the
defendant had already removed the cash register from the sta-
tion, 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 rob-
ber 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 impor-
tant 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 rob-
ber 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
- 526 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 exces-
sive 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 con-
trolled 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 con-
trolled 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).
- 527 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
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 appropriate-
ness 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 sur-
rounding 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 con-
trolled 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 convic-
tions, he had recently had a 3-year period of sobriety in which
he had not engaged in criminal activity.
- 528 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. ESTRADA COMACHO
Cite as 309 Neb. 494
Comacho made similar arguments at the sentencing hear-
ing. 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 can-
didate 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 esca-
lation 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 mitigat-
ing factor urged by Comacho, and we find no abuse of discre-
tion 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 evi-
dence 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.