State v. Estrada Comacho , 309 Neb. 494 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/27/2021 08:09 AM CDT
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    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
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    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.
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    STATE v. ESTRADA COMACHO
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    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.
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    STATE v. ESTRADA COMACHO
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    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.
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    STATE v. ESTRADA COMACHO
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    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,
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    STATE v. ESTRADA COMACHO
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    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
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    STATE v. ESTRADA COMACHO
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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 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
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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 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
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    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
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    STATE v. ESTRADA COMACHO
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    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
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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 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.
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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 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
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    STATE v. ESTRADA COMACHO
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    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
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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 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
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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 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.
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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 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).
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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 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
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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,
     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
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    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
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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 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
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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 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
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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-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.
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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 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
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    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
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    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.’”
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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 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:
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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 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
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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 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.
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    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.
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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 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
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    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
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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 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).
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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 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.
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    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.