State v. Kitt

STATE v. KITT 	611
Cite as 284 Neb. 611
conviction and sentence, and we remand the cause to the dis-
trict court with directions to dismiss.
Judgment reversed and vacated, and cause
remanded with directions to dismiss.
cassel, J., not participating.
state of nebraska, appellee, v.
wesley e. kitt, appellant.
823 N.W.2d 175
Filed November 9, 2012. 	No. S-11-629.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make such discretion a factor in deter-
mining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discretion.
3. Judges: Words and Phrases. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in matters submitted
for disposition.
4. 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 determi-
nations for clear error.
5. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a suf-
ficiency of the evidence claim, whether the evidence is direct, circumstantial,
or a combination thereof, the standard is the same: An appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact. The relevant question for an
appellate court is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
6. Rules of Evidence. When a Nebraska Evidence Rule is substantially similar to a
corresponding federal rule of evidence, Nebraska courts will look to federal deci-
sions interpreting the corresponding federal rule for guidance in construing the
Nebraska rule.
7. Rules of Evidence: Hearsay: Witnesses: Proof. For purposes of hearsay analy-
sis, it is within the discretion of the trial court to determine whether the unavail-
ability of a witness under Neb. Evid. R. 804, Neb. Rev. Stat. § 27-804 (Reissue
2008), has been shown.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

612 	284 NEBRASKA REPORTS
8. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and the evidence.
9. Trial: Verdicts: Appeal and Error. Harmless error review looks to the basis
on which the trier of fact actually rested its verdict; the inquiry is not whether
in a trial that occurred without the error a guilty verdict would surely have been
rendered, but, rather, whether the actual guilty verdict rendered in the questioned
trial was surely unattributable to the error.
10. Aiding and Abetting: Jury Instructions. An aiding and abetting instruction
is usually proper where two or more parties are charged with commission of
the offense, and an aiding and abetting instruction is proper when warranted by
the evidence.
11. 	Aiding and Abetting. Neb. Rev. Stat. § 28-206 (Reissue 2008) does not define
aiding and abetting as a separate crime. Instead, aiding and abetting is simply
another basis for holding one liable for the underlying crime.
12. Aiding and Abetting: Proof. Aiding and abetting requires some participation in
a criminal act and must be evidenced by some word, act, or deed. No particular
acts are necessary, nor is it necessary that the defendant take physical part in the
commission of the crime or that there was an express agreement to commit the
crime. Mere encouragement or assistance is sufficient.
13. Aiding and Abetting: Indictments and Informations: Notice. An information
charging a defendant with a specific crime gives the defendant adequate notice
that he or she may be prosecuted for the crime specified or as having aided and
abetted the commission of the crime specified.
Petition for further review from the Court of Appeals,
inbody, Chief Judge, and moore and pirtle, Judges, on appeal
thereto from the District Court for Douglas County, James t.
gleason, Judge. Judgment of Court of Appeals affirmed.
Gregory A. Pivovar for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein
for appellee.
heavican, c.J., wright, connolly, stephan, mccormack,
and miller-lerman, JJ.
miller-lerman, J.
i. NATURE OF THE CASE
After a jury trial, at which the jury was instructed on aid-
ing and abetting, Wesley E. Kitt was convicted of robbery,
attempted robbery, two counts of use of a weapon to com-
mit a felony, and second degree assault. The district court for

STATE v. KITT 	613
Cite as 284 Neb. 611
Douglas County sentenced him to imprisonment for a total of
10 to 14 years. As postconviction relief, Kitt was granted a new
direct appeal. The matter before us involves the direct appeal.
In a memorandum opinion, the Nebraska Court of Appeals
affirmed Kitt’s convictions and sentences. See State v. Kitt,
No. A-11-629, 2012 WL 1349905 (Neb. App. Apr. 17, 2012)
(selected for posting to court Web site).
We granted Kitt’s petition for further review. On further
review, Kitt claims that the Court of Appeals erred when
it affirmed the district court’s determination that a witness,
Joshua Harrington, was an unavailable witness and also deter-
mined that the record showed there was sufficient evidence
to find Kitt guilty of all five charges. Unlike the Court of
Appeals, we determine that the district court erred when it
declared Harrington was unavailable and when it allowed his
deposition testimony to be read into the record. However,
because we conclude that this error was harmless, it does not
require reversal of Kitt’s convictions or the Court of Appeals’
decision. Finally, we determine that the Court of Appeals did
not err when it determined that the evidence supports the con-
victions. Although our reasoning differs from that of the Court
of Appeals, we affirm.
II. FACTS
The Court of Appeals stated the facts, for which there is sup-
port in the record, as follows:
After a jury trial, Kitt was convicted of robbery,
attempted robbery, two counts of use of a deadly weapon
to commit a felony, and second degree assault. The dis-
trict court sentenced him to imprisonment for a total
period of 10 to 14 years. After postconviction relief was
granted to Kitt, he was given a new direct appeal.
The evidence developed at trial showed that Jamie
Hann, formerly known as Jamie Hansen, and her boy-
friend, now husband, Jacob Hann, had returned to Jamie’s
apartment in Omaha, Nebraska, shortly after 1:30 a.m. on
June 9, 2007, after going out to a bar. Jamie was driv-
ing. The parking lot for the apartment complex in which
Jamie lived was full, and Jamie had to park the car in an

614 	284 NEBRASKA REPORTS
area that was less well lit than the rest of the parking lot.
After Jamie exited the car, a man ran out from a garage
area across from where Jamie had parked, stuck a gun in
Jamie’s face, and told her he wanted money. Jamie was
unable to describe her assailant, but she saw a handgun
that looked silver to her. She gave him her wallet and
identified an exhibit at trial as the wallet that had been
taken from her.
After Jamie handed over her wallet, she saw another
person run from the middle part of the garages and
demand money from Jacob. She could tell this per-
son was male and that he had a black handgun. Jacob
appeared confused, and the man who demanded money
from Jacob struck him in the head. Jacob fell to the
ground, and a few moments later, Jamie observed another
vehicle approach and stop very quickly. The driver got
out of the vehicle and said, “[P]olice.” Jamie observed
that he was in uniform, had a “bag,” and was carrying a
firearm. This individual yelled, “[F]reeze,” and the per-
son who had held Jamie at gunpoint swung around and
pointed his gun at the officer. The officer started firing,
and the two assailants took off running with the officer in
pursuit. Jamie ran after them as well and saw the assail-
ants jump into a midsized white car. The officer ran back
to his vehicle and pursued the assailants, but he returned
a short time later. Other police officers arrived on the
scene as well.
Jacob testified that as he was getting out of the car, he
saw that someone had Jamie at gunpoint. A moment later,
he found himself in the same situation. Jacob was able to
see that the man assailing Jamie was black and had most
of his face covered by a dark-colored bandanna. Jacob’s
assailant was slightly shorter than Jamie’s assailant and
perhaps shorter than Jacob himself. Jacob’s assailant was
wearing a mask and demanded money from Jacob, who
refused. The assailant then hit Jacob in the mouth. Jacob
pulled out his money clip to show the man that he had
no money, which prompted the man to hit him with the
pistol. Jacob described the gun carried by his assailant as

STATE v. KITT 	615
Cite as 284 Neb. 611
a black handgun. As a result of the blow, Jacob needed to
have eight stitches in his head.
After Jacob fell to the ground, he heard a vehicle stop
and then the sound of gunshots. Jacob observed the two
assailants run away, so he checked on Jamie to see if she
was all right. Jacob said he was intoxicated that night
but was not so drunk that he could not get himself out
of the car. He did state that parts of the night were hazy
because of the time of the assault, the fact that he had
been drinking, and the fact that the situation itself felt like
a bad dream.
Officer 	Robert 	Singley 	with 	the 	Omaha 	Police
Department testified that he was on special assignment
detail in the early morning hours of June 9, 2007, because
of a rash of strong-armed robberies at some of the larger
apartment complexes in northwest Omaha. Singley con-
ducted a traffic stop at a particular intersection at about
1 a.m., where he observed a white Pontiac Grand Am
sitting in the left turn lane with its blinker on, but not
moving, despite the fact that there was no traffic. Upon
contacting the occupants of the car, Singley learned that
the driver was . . . Harrington and the passenger was Kitt.
The men told Singley they were looking for a particular
apartment complex to visit a friend and were not sure
how to get there. Singley ran a background check on the
men, and after finding no warrants, he gave them a verbal
warning for impeding traffic, gave them directions, and
let them go. We note that the apartment complex the men
were seeking directions to was the same complex where
Jamie lived and the robbery occurred. Singley identified
an exhibit as a photograph of the car he had contacted
that night.
Omaha police officer Kevin Vodicka was working off
duty as security for the apartment complex in June 2007.
Pursuant to police department policy, he was in full uni-
form, but was driving his own car. His usual schedule was
from 10 or 11 p.m. to 12 or 2 a.m. The complex is laid
out roughly in a circular pattern, and there is only one
entry to the complex. Vodicka would patrol the apartment

616 	284 NEBRASKA REPORTS
complex in his car in a counterclockwise direction, watch-
ing for signs of criminal activity.
Around 1:30 a.m. on June 9, 2007, Vodicka was patrol-
ling the apartment complex when he observed an older
white Grand Am being driven around the parking lot.
Initially, he thought that the car might have been trying
to get through the parking lot to another apartment com-
plex. According to Vodicka, a lot of people try to do this,
not realizing that the road does not go through. Vodicka
watched the car for 20 to 25 minutes while continuing
to patrol. He observed the car go to all of the dead ends,
back up, drive around, park, and back up. Vodicka found
the car’s activity to be very suspicious.
Vodicka was able to see two individuals in the car and
saw the passenger clearly. As Vodicka passed the car, the
passenger had the car window rolled down about three-
fourths of the way, and he stuck his head out, trying
to get a look through Vodicka’s car windows. Vodicka
testified that he got a pretty good view of the passen-
ger’s face from a distance of about 5 to 7 feet and that
the passenger gave Vodicka a look “kind of like the evil
eye” as he passed the car. Vodicka identified the pas-
senger as Kitt. Vodicka testified that he paid particular
attention to Kitt’s face when he stuck his head out of
the car because of his observations of the car’s suspi-
cious activity.
Not long after Vodicka observed the passenger stick his
head out of the car window, Vodicka saw the car parked
and no one inside the car. On his next lap of the parking
lot, Vodicka saw a black man dressed in black clothing
hit a white man. Vodicka also observed a woman and
third man. Vodicka accelerated to their location to try and
stop the assault. He got out of his vehicle, yelled “Omaha
Police,” and observed one of the assailants holding a sil-
ver revolver and wearing a bandanna. The other assailant,
the one who had struck the white man, was wearing a
bandanna as well but held a black [semiautomatic] hand-
gun. Vodicka drew his weapon as soon as he got out of
his car and told the assailants to drop their weapons. Both

STATE v. KITT 	617
Cite as 284 Neb. 611
assailants ran, and Vodicka pursued the suspect closest to
him. Vodicka testified that this individual, the man with
the silver revolver, pointed his gun at Vodicka and that
Vodicka fired four or five times. Vodicka stopped pursuit,
because the individual went around a corner, and returned
to check on the male victim who was bleeding profusely
from the head. Vodicka heard a car start its engine and
ran back around the corner in time to observe the white
Grand Am back out and drive off at a high rate of speed.
According to Vodicka, he knew that this was the same
vehicle he had observed earlier because he saw it leave
the same parking spot where he had last observed it. He
also recognized the hubcaps on the car, which he had pre-
viously observed.
Harrington was called to testify [by the State] and
stated that he resided at “OCC” for a crime he com-
mitted involving the robbery and assault of Jamie and
Jacob, which he believed occurred on June 9, 2007.
When asked if there was an individual with him on that
occasion, Harrington stated he was advised not to testify
by his attorney. Harrington stated that he was refusing
to answer any questions regarding allegations against
Kitt. The district court then asked Harrington whether he
would refuse to testify if the State asked him any ques-
tions relating to what happened on June 9 or any events
that related to Kitt. Harrington responded affirmatively.
The court dismissed Harrington and told the jury that
when an incarcerated witness refused to testify, that wit-
ness’ prior testimony which had been recorded could
be read[,] and that the court believed the State intended
to proceed by reading into evidence Harrington’s prior
recorded testimony.
At 	this 	point, 	Kitt’s 	counsel 	objected 	[first] 	to
Harrington’s being declared unavailable as a witness and
to the State’s being allowed to read Harrington’s deposi-
tion into the record. [Second, Kitt] based his objections
on Kitt’s constitutional right to confront his accusers
as well as the constitutional right to cross-examine wit-
nesses testifying against him. The district court overruled

618 	284 NEBRASKA REPORTS
Kitt’s objection[s], stated that Harrington had been found
unavailable based on his refusal to testify, and stated that
Harrington’s prior recorded testimony would be allowed
because case law specifically permitted such testimony
to be read into the record without running afoul of the
hearsay rule.
The district court explained to the jury that Kitt’s
attorney had taken Harrington’s deposition prior to trial
and that this deposition would now be read to the jury.
Harrington’s deposition testimony was then read into
the record.
At the time of his deposition, Harrington had already
pled guilty to attempted robbery and assault of an offi-
cer. He stated that he had known Kitt for several years
as an acquaintance and that they had played basketball
together on youth teams. On the day before the incident,
Kitt called Harrington sometime after 11 p.m. Kitt wanted
to hang out. Harrington drove his white Pontiac Grand
Am to pick up Kitt, which car he described as having
tinted windows . . . that were “legal.” Harrington and
Kitt stopped at a convenience store to get cigars and/or
alcohol and drove around until Kitt said he needed some
money. Kitt made it clear that he was not interested in
working for money and told Harrington he knew an easy
way to get some money, which was to rob someone.
According to Harrington, after they decided to do this,
Kitt pulled out a ski mask, a bandanna, and a small silver
handgun. Kitt gave either the ski mask or the bandanna
to Harrington to wear and told Harrington he had stolen
the handgun from his grandfather. Later in his deposition,
Harrington denied that Kitt had given him either a mask
or a bandanna to cover his face. Harrington and Kitt were
sitting in the car at an apartment complex in west Omaha
when Harrington saw a couple get out of another car. Kitt
ran over to the couple, and Harrington followed, knowing
that they were there to rob someone. Harrington stated
that he and Kitt had been drinking and were not “in the
right state of mind.”

STATE v. KITT 	619
Cite as 284 Neb. 611
Harrington did not know whether he spoke to the
couple after Kitt approached them and essentially refused
to say that Kitt was in the process of robbing the couple.
Harrington heard Kitt say something to the person he
was robbing but he did not remember what Kitt said.
Harrington insisted that both he and Kitt were yelling at
the couple they were robbing and demanding money from
them. Harrington did not get any money, but Kitt got a
wallet. Harrington stated that Kitt hit the person he was
robbing, but did not know if it was with his hand or his
gun. When asked whether it could have been Harrington
who hit the person, he replied that he was really drunk,
that he probably did not hit the person, and that if he
did so, it was only a chance. When it was suggested to
Harrington that he was the primary person responsible for
the robbery, he adamantly denied that that was the case
as he had a job and did not need the money. Harrington
stated that the police arrived, and he and Kitt ran in dif-
ferent directions. After Harrington ran, a police officer
started shooting, and Harrington was shot in the back of
his leg. Harrington stated he was running with his “fake
gun” in his hand but denied pointing this gun at the offi-
cer. Harrington stated that he returned to his car, drove
off, and did not see Kitt after that.
Harrington called a friend and had her take him to the
hospital. Harrington was questioned by police officers at
the hospital, but he lied, telling them he had been shot at
a different location. Later, after medical personnel fin-
ished attending to him, Harrington told the truth and was
taken to the police station and arrested.
Harrington denied owning a real gun and stated that
if a real gun was found in his car, he did not know how
it got there, although he knows people who carry guns
and that they have left them in his car before. Eventually,
Harrington admitted that there was a real gun in his car
but claimed that it was not his and that he did not use it
during the robbery. Harrington insisted that during the
robbery, he had a black fake gun and Kitt had his silver

620 	284 NEBRASKA REPORTS
one. Harrington claimed that he threw the fake gun away
and that later, when he had a friend remove a gun from
his car, she removed the real gun that had been left in
his car.
Toward the end of his deposition, when Harrington
was clearly getting frustrated with the process, he asked
whether he could “plead the Fifth” and Kitt’s counsel
promptly and firmly told him, “No. There is no Fifth
Amendment, sir. You have already been convicted of
that crime.”
. . . [A] crime laboratory technician with the Omaha
Police Department . . . testified that he collected evidence
from the scene of the robbery, including a revolver, a dark
green bandanna, a blue knit ski mask which was found
on the ground in the parking lot of the apartment com-
plex, and a wallet with $4.12 cash and a driver’s license
belonging to Jamie.
Kitt rested without presenting any evidence. The dis-
trict court denied Kitt’s motion to dismiss at the close of
all the evidence. Kitt was then convicted and sentenced as
set forth above.
State v. Kitt, No. A-11-629, 2012 WL 1349905 at *1-5 (Neb.
App. Apr. 17, 2012) (selected for posting to court Web site).
As noted above, the present appeal to the Court of Appeals
is a new direct appeal granted as relief in a related postconvic-
tion action. Kitt claimed that the district court erred when it
found that Harrington was unavailable as a witness and there-
fore admitted Harrington’s prior deposition testimony. Kitt
also asserted that the evidence was insufficient to support his
convictions, that he received ineffective assistance of counsel,
and that the court imposed excessive sentences. The Court of
Appeals rejected Kitt’s assignments of error and affirmed his
convictions and sentences.
As a general statement, under the hearsay rules in the
Nebraska rules of evidence, if a witness is unavailable, the wit-
ness’ prior deposition may be admitted as testimony. See Neb.
Evid. R. 804(2)(a), Neb. Rev. Stat. § 27-804(2)(a) (Reissue
2008). With respect to its unavailability discussion and the
admission of Harrington’s deposition, the Court of Appeals

STATE v. KITT 	621
Cite as 284 Neb. 611
noted that rule 804(1)(b) defines “[u]navailability as a wit-
ness” to include situations in which the declarant “[p]ersists
in refusing to testify concerning the subject matter of his [or
her] statement despite an order of the judge to do so.” The
Court of Appeals relied on State v. McHenry, 250 Neb. 614,
550 N.W.2d 364 (1996), in which this court determined on
the specific facts of that case that the district court’s failure
to specifically order the witness to testify was not relevant
when the witness’ persistent refusal to testify was evident from
the record. The Court of Appeals concluded that Harrington
was unavailable under rule 804(1)(b). The Court of Appeals
reasoned that under rule 804(2)(a), his testimony could be
presented by the deposition, at which Kitt had had the oppor-
tunity to develop Harrington’s testimony by direct, cross, or
redirect examination.
As general matter, under Confrontation Clause analysis
where a witness is unavailable, the deposition of the witness
is testimonial evidence which can be received in evidence
where the nonproponent has had an opportunity to cross-
examine the witness. Crawford v. Washington, 541 U.S. 36,
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The Court of
Appeals cited State v. Fischer, 272 Neb. 963, 726 N.W.2d
176 (2007), for this proposition. The Court of Appeals con-
cluded that the admission of Harrington’s deposition was not a
Confrontation Clause violation, because the Court of Appeals
had determined that Harrington was unavailable under hear-
say rule 804(1)(b) and Kitt had had a prior opportunity for
cross-examination.
The Court of Appeals also rejected Kitt’s assignments of
error that he received ineffective assistance of counsel, that
there was insufficient evidence to support his convictions, and
that the district court abused its discretion by imposing exces-
sive sentences. The Court of Appeals affirmed Kitt’s convic-
tions and sentences.
We granted Kitt’s petition for further review.
III. ASSIGNMENTS OF ERROR
On further review, Kitt claims that the Court of Appeals
erred when it affirmed the district court’s rulings in which it

622 	284 NEBRASKA REPORTS
had (1) determined that Harrington was an unavailable witness
and admitted Harrington’s deposition into evidence and (2)
determined that there was sufficient evidence for Kitt’s con-
victions. For completeness, we note that Kitt does not assign
as error the Court of Appeals’ decisions on ineffective assist-
ance of counsel and excessive sentences.
IV. STANDARDS OF REVIEW
[1-3] In proceedings where the Nebraska Evidence Rules
apply, 	the 	admissibility 	of 	evidence 	is 	controlled 	by 	the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make such discretion a factor in determining
admissibility. State v. Vigil, 283 Neb. 129, 810 N.W.2d 687
(2012). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
the admissibility of evidence is reviewed for an abuse of
discretion. Id. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a
just result in matters submitted for disposition. State v. Burton,
282 Neb. 135, 802 N.W.2d 127 (2011).
[4] An appellate court reviews de novo a trial court’s deter-
mination 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. See State v.
Sorensen, 283 Neb. 932, 814 N.W.2d 371 (2012).
[5] 	In 	reviewing 	a 	sufficiency 	of 	the 	evidence 	claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for
the finder of fact. State v. Freemont, ante p. 179, 817 N.W.2d
277 (2012). The relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. Id.

STATE v. KITT 	623
Cite as 284 Neb. 611
V. ANALYSIS
1. admission of harrington’s deposition:
unavailability of the witness
Kitt claims generally that the Court of Appeals erred when it
affirmed the district court’s determination that Harrington was
unavailable for trial and admitted Harrington’s prior deposition
testimony. Kitt specifically claims that the determination that
Harrington was unavailable and the admission of Harrington’s
deposition were an abuse of discretion under the exception
to the hearsay rule found at rule 804(2)(a). Kitt also specifi-
cally claims that the admission of Harrington’s deposition is
of constitutional magnitude as a violation of the Confrontation
Clause. The Confrontation Clause, U.S. Const. amend. VI,
provides in relevant part: “In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . .” Article I, § 11, of the Nebraska
Constitution provides in relevant part: “In all criminal prosecu-
tions the accused shall have the right . . . to meet the witnesses
against him face to face . . . .”
We find merit to Kitt’s argument to the effect that the district
court erred when it determined Harrington was unavailable
under rule 804(1)(b) and admitted Harrington’s deposition and
that thus, the Court of Appeals erred when it endorsed this rul-
ing. However, as explained below, we find that the error was
harmless. Further, given the necessity of our harmless error
review, we determine that although the Confrontation Clause
analysis differs from the hearsay analysis, it is not necessary
to engage in the Confrontation Clause analysis in this case
because an error for Confrontation Clause purposes would like-
wise be subject to a harmless error review.
(a) Hearsay
Generally, a hearsay statement is not admissible at trial. See
Neb. Evid. R. 802, Neb. Rev. Stat. § 27-802 (Reissue 2008).
However, rule 804(2)(a) provides an exception to the hear-
say rule if the declarant is unavailable as a witness at trial.
In such a case, the declarant’s prior statement can be used at
trial. Rule 804(2)(a) provides in part that if the declarant is

624 	284 NEBRASKA REPORTS
unavailable as a witness, the hearsay rule does not exclude
testimony given
in a deposition taken in compliance with law in the course
of the same or a different proceeding, at the instance of
or against a party with an opportunity to develop the
testimony by direct, cross, or redirect examination, with
motive and interest similar to those of the party against
whom now offered.
[6] Nebraska’s rule 804(2)(a) is similar to rule 804(b)(1)(A)
of the Federal Rules of Evidence. At the time of Kitt’s trial,
Fed. R. Evid. 804(b)(1) provided that if the declarant was
unavailable as a witness, the rule against hearsay did not
exclude former testimony that was “given as a witness at
another hearing of the same or a different proceeding, or in
a deposition taken in compliance with law in the course of
the same or another proceeding.” When a Nebraska Evidence
Rule is substantially similar to a corresponding federal rule of
evidence, Nebraska courts will look to federal decisions inter-
preting the corresponding federal rule for guidance in constru-
ing the Nebraska rule. State v. Kibbee, ante p. 72, 815 N.W.2d
872 (2012).
Nebraska’s rule 804(1)(b) sets forth the applicable defini-
tion of unavailability, stating that a witness is unavailable if he
or she “[p]ersists in refusing to testify concerning the subject
matter of his [or her] statement despite an order of the judge
to do so.” Similarly, at the time of Kitt’s trial, federal rule 804
provided in relevant part: “(a) Definition of Unavailability.
‘Unavailability as a witness’ includes situations in which the
declarant . . . (2) persists in refusing to testify concerning the
subject matter of the declarant’s statement despite an order
of the court to do so . . . .” The advisory committee note to
federal rule 804, as proposed in 1972, provides some guidance
on the issue of unavailability, and specifically a declarant’s
refusal to testify: “Note to Subdivision (a). . . . (2) A witness
is rendered unavailable if he simply refuses to testify concern-
ing the subject matter of his statement despite judicial pres-
sures to do so, a position supported by similar considerations
of practicality.”

STATE v. KITT 	625
Cite as 284 Neb. 611
[7,8] For purposes of hearsay analysis, it is within the
discretion of the trial court to determine whether the unavail-
ability of a witness under Nebraska’s rule 804 has been shown.
See State v. Carter, 255 Neb. 591, 586 N.W.2d 818 (1998).
An abuse of discretion occurs when a trial court’s decision is
based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
the evidence. State v. Payne-McCoy, ante p. 302, 818 N.W.2d
608 (2012).
As set forth in rule 804(1)(b), unavailability is a term of art.
See People v. Bueno, 358 Ill. App. 3d 143, 829 N.E.2d 402,
293 Ill. Dec. 819 (2005) (commenting on comparable Illinois
rule language). Applying the language of rule 804(1)(b), the
record shows that Harrington was not unavailable in this case
because the judge did not order Harrington to testify before
declaring him an unavailable witness. See Gregory v. Shelby
County, Tenn., 220 F.3d 433 (6th Cir. 2000). One court has
stated: “It is clear . . . that the Rule’s requirement of a court
order is a necessary prerequisite to a finding of unavailability
of a recalcitrant witness under Rule 804. See United States v.
Zappola, 646 F.2d 48, 54 (2d Cir.1981) (court order essential
component in declaration of unavailability) . . . .” Fowler v.
State, 829 N.E.2d 459, 468 (Ind. 2005), abrogated in part on
other grounds, Giles v. California, 554 U.S. 353, 128 S. Ct.
2678, 171 L. Ed. 2d 488 (2008). It has been observed that
where a witness “appears at trial but refuses to respond, [the
witness] does not become unavailable until the court orders the
witness to answer and the refusal persists.” Id. at 469.
The unavailability of a witness under rule 804 cannot be
fully assessed until the judge orders the witness to testify,
because in the absence of an order, it is not known what the
witness will do. One court identified the obvious possibili-
ties as follows: “1) [T]he witness decides to avoid contempt
and repeats the earlier version; 2) the witness claims loss of
memory; 3) the witness comes up with a new version; and 4)
the witness persists in refusing to answer.” Fowler v. State, 829
N.E.2d at 470. In this case, there is no way of knowing how
Harrington may have responded to an order to testify. Because

626 	284 NEBRASKA REPORTS
the district court did not order Harrington to testify, Harrington
was not unavailable under rule 804(1)(b).
The Court of Appeals relied largely upon State v. McHenry,
250 Neb. 614, 550 N.W.2d 364 (1996), when it determined that
the district court did not err when it found Harrington unavail-
able. However, the finding of unavailability in McHenry was
specific to the facts of that case. In McHenry, the district court
determined that Frank Ladig, a witness in a murder trial who
refused to testify, was unavailable. We affirmed.
The district court in McHenry requested Ladig to testify
on three separate occasions, but Ladig persistently refused.
The district court also asked Ladig if there was any physi-
cal safeguard or anything that the court could provide that
would change Ladig’s mind, and Ladig replied there was not.
Furthermore, Ladig refused to take an oath, so he was not com-
petent and could not testify. See Neb. Evid. R. 603, Neb. Rev.
Stat. § 27-603 (Reissue 2008). Had the district court threatened
to hold Ladig in contempt for refusing to testify, it would have
been unavailing because Ladig was already serving a life sen-
tence. See State v. Ladig, 248 Neb. 737, 539 N.W.2d 38 (1995).
See, also, Gregory v. Shelby County, Tenn., 220 F.3d at 449
(stating that “any pressure of threat applied to the witness by
the trial court would undoubtedly have been unavailing as the
witness [was] already serving a life sentence”). The specific
facts in McHenry were tantamount to the district court’s order-
ing Ladig to testify before finding him unavailable, and we
affirmed the rule 804 unavailability ruling.
In the present case, however, the district court did not order
Harrington to testify before determining he was unavailable;
nor are the facts of this case tantamount to an order. Harrington
was present in the courtroom, and unlike Ladig, he took the
oath and answered a few questions before he stopped answer-
ing questions. After Harrington stated upon examination by
the State that he would not answer further questions, the judge
asked Harrington once if he was going to refuse to testify
before allowing Harrington to step down and excusing him as
a witness. We agree with the observation that “the unavailabil-
ity requirement in Rule 804 contemplates more than a brief or
minimal examination by the trial court.” State v. Finney, 358

STATE v. KITT 	627
Cite as 284 Neb. 611
N.C. 79, 87, 591 S.E.2d 863, 868 (2004). Furthermore, we can-
not say that a threat of contempt would have been unavailing,
because unlike Ladig, who was serving a life sentence in the
McHenry case, Harrington, according to his deposition, was
serving an 8- to 12-year sentence.
Because there was no district court order for Harrington to
testify followed by persistent refusals, we determine the district
court erred under rule 804 when it determined that Harrington
was unavailable and when it admitted Harrington’s deposition.
An incorrect unavailability determination and the consequent
admission of improper evidence under rule 804 are subject to a
harmless error analysis. See, Gregory v. Shelby County, Tenn.,
220 F.3d 433 (6th Cir. 2000) (stating that error in finding wit-
ness unavailable under rule 804 was harmless); State v. Perry,
144 Idaho 266, 159 P.3d 903 (Idaho App. 2007) (stating that
incorrect finding of unavailability under rule 804 is subject to
harmless error analysis). Accordingly, later in this opinion, we
will conduct a harmless error analysis.
(b) Confrontation Clause
In addition to his claim that the Court of Appeals erred
under the statutory rules of evidence relating to hearsay when
it approved the district court’s order permitting Harrington’s
deposition to be read to the jury, Kitt also claims that the
Court of Appeals erred as a constitutional matter when it con-
cluded that the reading of the deposition was not a violation of
the Confrontation Clause. Having found that Harrington was
unavailable under the hearsay-related rules of evidence, rule
804(1)(b), the Court of Appeals then considered Kitt’s chal-
lenge under the Confrontation Clause. The entirety of the Court
of Appeals’ constitutional analysis was as follows:
Likewise, we do not find a violation of Kitt’s rights
under the Confrontation Clause. Where “testimonial”
statements are at issue, the Confrontation Clause demands
that such out-of-court hearsay statements be admitted at
trial only if the declarant is unavailable and there had
been a prior opportunity for cross-examination. State v.
Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007) [sum-
marizing Crawford v. Washington, 541 U.S. 36, 124

628 	284 NEBRASKA REPORTS
S. Ct. 1354, 158 L. Ed. 2d 177 (2004)]. Kitt had and took
advantage of his opportunity to examine Harrington dur-
ing the course of Harrington’s deposition. Kitt’s assign-
ment of error is without merit.
The foregoing analysis appears to assume that “unavailability”
under the hearsay evidence rules equates with “unavailability”
under Confrontation Clause constitutional principles. To the
extent such equation was made, we caution against it.
It is well settled that “cases involving the admission of [an
unavailable declarant’s prior] out-of-court statements [give]
rise to Confrontation Clause issues ‘because hearsay evidence
was admitted as substantive evidence against the defendant[].’”
Delaware v. Fensterer, 474 U.S. 15, 18, 106 S. Ct. 292, 88
L. Ed. 2d 15 (1985) (quoting Tennessee v. Street, 471 U.S.
409, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985)). The U.S.
Supreme Court has observed that the “hearsay rules and the
Confrontation Clause are generally designed to protect simi-
lar values” but has cautioned that the prohibitions of the
Confrontation Clause do not “equate . . . with the general rule
prohibiting the admission of hearsay statements.” Idaho v.
Wright, 497 U.S. 805, 814, 110 S. Ct. 3139, 111 L. Ed. 2d 638
(1990). The Court in California v. Green, 399 U.S. 149, 155-
56, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), stated:
[W]e have more than once found a violation of confron-
tation values even though the statements in issue were
admitted under an arguably recognized hearsay exception.
See Barber v. Page, 390 U. S. 719[, 88 S. Ct. 1318, 20
L. Ed. 2d 255] (1968); Pointer v. Texas, 380 U. S. 400[,
85 S. Ct. 1065, 13 L. Ed. 2d 923] (1965). The converse
is equally true: merely because evidence is admitted in
violation of a long-established hearsay rule does not lead
to the automatic conclusion that confrontation rights have
been denied.
Finally, we note that one court has observed that an unavail-
ability determination may not yield the same result under
hearsay analysis as distinguished from Confrontation Clause
analysis, stating, in reference to Crawford v. Washington, 541
U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004): “We there-
fore cannot import the availability doctrine of [federal] Rule

STATE v. KITT 	629
Cite as 284 Neb. 611
804(a) wholesale into Crawford.” Fowler v. State, 829 N.E.2d
459, 469 (Ind. 2005), abrogated in part on other grounds,
Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed.
2d 488 (2008).
We are aware that the contours of the post-Crawford juris-
prudence regarding unavailability for Confrontation Clause
purposes—especially as unavailability relates to refusal to
testify—are emerging. In one post-Crawford case involv-
ing a witness who refused to testify, the court observed that
“interpretation of the confrontation clause has been anything
but consistent since the 2004 Crawford decision.” State v.
Duncan, 796 N.W.2d 672, 676 (N.D. 2011). However, we
need not resolve the Confrontation Clause unavailability issue
herein because resolution will not affect the outcome of
this case.
If we determined that the Court of Appeals and district
court erred when they determined that Harrington was unavail-
able for Confrontation Clause purposes, we would need to
determine if the admission of the deposition constituted harm-
less error because of the constitutional error. See Delaware
v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d
674 (1986) (stating that Confrontation Clause violations are
subject to harmless error analysis). See, also, Crawford v.
Washington, 541 U.S. at 76 (Rehnquist, C.J., concurring in the
judgment) (reading the opinion to “implicit[ly] recogni[ze]”
that Confrontation Clause violations continue to be subject to
harmless error analysis); Hernandez v. State, 124 Nev. 639, 188
P.3d 1126 (2008) (performing harmless error analysis on incor-
rect finding of unavailability under Confrontation Clause and
incorrect admission of prior testimony).
If we determined that the Court of Appeals and the dis-
trict court were correct that Harrington was unavailable for
Confrontation Clause purposes, thus approving of the admis-
sion of Harrington’s deposition testimony, no action would
be required of us based on such determination. However, we
are nevertheless required to perform a harmless error analysis
because, as explained above, we have determined that it was
error to find Harrington unavailable for rule 804 hearsay analy-
sis purposes and to admit his deposition on that basis.

630 	284 NEBRASKA REPORTS
By virtue of our earlier determination, we are already
required to perform a harmless error analysis. Therefore,
although we have noted that as it relates to a refusal to testify,
an unavailability analysis under the hearsay rule of evidence
differs from an unavailability analysis under the Confrontation
Clause, under the circumstances of this case, it is not neces-
sary for us to perform a Confrontation Clause analysis of
availability and consider whether the Court of Appeals erred in
relation thereto.
2. harmless error: analysis
[9] We have determined above that it was error to admit
Harrington’s deposition based on an erroneous determination
that Harrington was unavailable under rule 804(1)(b), and we
are therefore required to perform a harmless error analysis.
Harmless error review looks to the basis on which the trier of
fact actually rested its verdict; the inquiry is not whether in
a trial that occurred without the error a guilty verdict would
surely have been rendered, but, rather, whether the actual guilty
verdict rendered in the questioned trial was surely unattribut-
able to the error. State v. Freemont, ante p. 179, 817 N.W.2d
277 (2012). We determine that the jury’s verdicts were surely
unattributable to the erroneous admission of Harrington’s depo-
sition testimony.
At trial, Jamie Hann testified that when she and Jacob Hann
returned to Jamie’s apartment complex the night of the incident
at issue, she exited the car and a man approached her, pointed a
silver handgun at her head, and told her to give him her money.
Jamie testified that she gave the man her wallet, which she
identified as an exhibit at trial. Jamie testified that she then saw
a second man, with a black handgun, approach Jacob, demand
money from him, and then hit Jacob in the head with the gun.
Jamie testified that a black vehicle then quickly approached
the scene and that a man in uniform exited the vehicle and
said, “‘[P]olice.’” The uniformed man had his gun pulled out
and next yelled, “‘[F]reeze.’” Then the assailant who had the
silver gun pointed at Jamie turned and pointed his gun at the
uniformed man, and the uniformed man started firing. Jamie
testified that the two assailants then ran in the same direction.

STATE v. KITT 	631
Cite as 284 Neb. 611
The uniformed man chased the two assailants, and Jamie fol-
lowed. She testified she saw the two men get into a midsized
white vehicle and leave the scene.
Jacob testified at trial that on the night in question, he and
Jamie returned to Jamie’s apartment complex. When Jacob
exited the car, he saw that an African-American man wearing
a bandanna was pointing a gun at Jamie. Then a second man
pointed a black handgun at Jacob’s face. Jacob described his
assailant as an African-American man wearing a bandanna who
was a little shorter than Jamie’s assailant and perhaps shorter
than Jacob himself. Jacob testified the man demanded money
from Jacob, who refused. The man then hit Jacob in the mouth.
Jacob pulled out his money clip to show the man that he did
not have any money, and the man then hit Jacob with the pistol.
Jacob later received eight stitches as a result of the blow. Jacob
testified that after he fell to the ground as a result of being hit,
he heard a vehicle stop and then heard the sound of gunshots.
Jacob observed the two assailants run away and then checked
on Jamie to see if she was all right.
Officer Kevin Vodicka testified that on the night of the
incident at issue, he was working as an off-duty security per-
son for the apartment complex. He was in full uniform, but
driving his own vehicle. Vodicka testified that the apartment
complex was laid out in a circle and that he would drive in a
counterclockwise direction watching for signs of suspicious
activity. Vodicka testified that at approximately 1:30 a.m., he
observed an older white Pontiac Grand Am driving around the
parking lot. He watched the car for 20 or 25 minutes while he
continued to patrol. Vodicka testified that the Grand Am would
go to all the dead ends, back up, drive around, park, and back
up again. Vodicka testified he thought the activity of the Grand
Am was suspicious.
Vodicka testified that he saw two individuals in the Grand
Am. As Vodicka passed the Grand Am, the passenger had the
window rolled down approximately three-fourths of the way,
and the passenger stuck his head out a couple of inches, try-
ing to look through Vodicka’s windows. Vodicka testified that
he got a pretty good view of the passenger’s face and that the
passenger gave him a look “kind of like the evil eye.” Vodicka

632 	284 NEBRASKA REPORTS
identified the passenger as Kitt. Vodicka testified that he paid
attention to the passenger because of the vehicle’s suspi-
cious activity.
Vodicka testified that soon after seeing the passenger in
the Grand Am, whom at trial he identified as Kitt, he saw
the Grand Am parked with no one inside. On his next lap
around the parking lot, Vodicka saw a black man dressed in
black clothing hit a white man. He also saw a woman and a
third man. Vodicka testified that he sped up, trying to stop the
assault. He exited his car and announced, “‘Omaha Police.’”
Vodicka testified that he observed one of the assailants holding
a silver revolver and wearing a bandanna. Vodicka described
the other assailant, who struck the white man, as wearing a
bandanna and holding a black semiautomatic handgun.
Vodicka testified that he drew his weapon as he exited his
car and told the two men to drop their weapons. The assailants
ran, and Vodicka pursued one of them. Vodicka stated that the
assailant he pursued pointed the silver revolver at Vodicka, at
which point Vodicka fired his weapon four or five times. After
the assailant went around a corner, Vodicka stopped his pursuit
and went to check on the male victim. Vodicka testified that he
then heard a car start its engine, so he ran around a corner in
time to observe the white Grand Am back out and drive off at
a high rate of speed. Vodicka testified that he knew it was the
same white Grand Am he had seen earlier because he recog-
nized the vehicle’s hubcaps and because the vehicle was parked
in the same spot where he had last observed it.
Furthermore, Officer Robert Singley testified that he con-
ducted a traffic stop at approximately 1 a.m. because he had
observed a white Grand Am sitting in the left-turn lane of an
intersection with its turn signal on, but not moving despite the
fact that there was no traffic. After contacting the occupants
of the vehicle, Singley learned that the driver was Harrington
and the passenger was Kitt. Singley testified Harrington and
Kitt told him that they were looking for a particular apartment
complex to visit a friend and that they were not sure how to
get there. The apartment complex Harrington and Kitt stated
they were looking for is the same complex where Jamie lived
and the crimes occurred. Singley ran a background check on

STATE v. KITT 	633
Cite as 284 Neb. 611
Harrington and Kitt and, after finding no warrants, gave them
a verbal warning and directions and let them go.
This testimony and other evidence adduced at trial indicate
that Jamie was robbed by a man with a silver gun and that a
man with a black gun assaulted and attempted to rob Jacob.
Singley placed Kitt near the scene prior to the crimes and
directed him to the apartment complex. Vodicka’s testimony
placed Kitt at the apartment complex moments before the
time the crimes occurred and placed Kitt in the white Grand
Am which later sped away from the area of the crimes. Jamie
watched one assailant get into a midsized white vehicle. The
foregoing evidence supports the convictions, without reference
to the content of Harrington’s deposition testimony.
In his deposition read to the jury, Harrington testified that
he knew Kitt through basketball and socially. He testified that
the idea to rob people originated with Kitt and that Harrington
had a job and did not need to rob anyone. Harrington stated
that Kitt supplied a ski mask and bandanna, and he placed
himself and Kitt at the scene of the crimes.
Harrington stated that Kitt had a silver gun. Harrington
initially stated that he had only a fake black gun. Harrington
stated that he had told people he had bought a real gun, but
that that was a lie. However, later in his testimony, Harrington
stated that after the incident, he called a friend to remove a real
gun from his car. Harrington stated that Kitt hit a victim but
later testified that he might have hit the victim.
Harrington testified that both he and Kitt had been drinking
the night of the crimes and that he had also smoked marijuana
that day. He indicated that as a result, his memory of June 9,
2007, was not good but his “drunkenness and . . . highness
kind of left when [he] got shot.” Harrington stated that when
he was interviewed by the police at the hospital, he did not tell
the truth. He stated that he later told the truth to the police but
that his recollection of the incident at the time of the deposition
was not good.
[10] In this case, the jury was instructed that it could convict
Kitt of the crimes with which he was charged either as the prin-
cipal offender or as an aider and abettor. Under Neb. Rev. Stat.
§ 28-206 (Reissue 2008), “[a] person who aids, abets, procures,

634 	284 NEBRASKA REPORTS
or causes another to commit any offense may be prosecuted
and punished as if he [or she] were the principal offender.” We
have stated that an aiding and abetting instruction “‘is usually
proper where two or more parties are charged with commission
of the offense’” and that an aiding and abetting instruction is
proper when warranted by the evidence. State v. Contreras, 268
Neb. 797, 802, 688 N.W.2d 580, 584 (2004) (quoting State v.
Marco, 230 Neb. 355, 432 N.W.2d 1 (1988)).
[11,12] Section 28-206 does not define aiding and abetting
as a separate crime. See State v. Dixon, 282 Neb. 274, 802
N.W.2d 866 (2011). We have stated that “aiding and abetting
is simply another basis for holding one liable for the under-
lying crime.” Id. at 295, 802 N.W.2d at 886. By its terms,
§ 28-206 provides that a person who aids or abets may be
prosecuted and punished as if he or she were the principal
offender. We have stated that aiding and abetting requires
some participation in a criminal act and must be evidenced by
some word, act, or deed. State v. McGee, 282 Neb. 387, 803
N.W.2d 497 (2011). No particular acts are necessary, nor is
it necessary that the defendant take physical part in the com-
mission of the crime or that there was an express agreement
to commit the crime. Id. Mere encouragement or assistance is
sufficient. Id.
[13] An information charging a defendant with a specific
crime gives the defendant adequate notice that he or she
may be prosecuted for the crime specified or as having aided
and abetted the commission of the crime specified. State v.
Contreras, supra. In the present case, the amended information
charged Kitt with six crimes: robbery of Jamie and associated
use of a weapon, attempted robbery of Jacob and associated
use of a weapon, assault in the second degree of Jacob, and
attempted assault of Vodicka, of which Kitt was acquitted.
We have stated that one can be convicted of aiding and abet-
ting use of a deadly weapon even if the jury believed that the
defendant was unarmed. State v. Leonor, 263 Neb. 86, 638
N.W.2d 798 (2002). We have also stated that one can be con-
victed of aiding and abetting an attempted crime. See State v.
Contreras, supra. The district court provided the jury with an
aiding and abetting instruction.

STATE v. KITT 	635
Cite as 284 Neb. 611
Based on the foregoing law and the evidence we have sum-
marized above, we determine that the jury’s verdicts in this
case convicting Kitt either as the principal offender or as an
aider and abettor were surely unattributable to the errone-
ous admission of Harrington’s deposition testimony. Although
we recognize that Harrington placed Kitt at the area of the
crime, the testimony of Vodicka did likewise. Harrington’s
deposition testimony summarized above contains numerous
confusing and internally inconsistent statements such that a
rational trier of fact would not be particularly inclined to rely
on it as he or she evaluated all the evidence. Therefore, the
district court’s error in declaring Harrington unavailable as a
witness under rule 804 and admitting his deposition testimony
was harmless. Accordingly, neither the Court of Appeals’
affirmance of the district court’s ruling nor Kitt’s convictions
require reversal.
3. sufficiency of the evidence
Kitt claims that there was not sufficient evidence to support
his convictions. In reviewing a sufficiency of the evidence
claim, whether the evidence is direct, circumstantial, or a com-
bination thereof, the standard is the same: An appellate court
does not resolve conflicts in the evidence, pass on the credibil-
ity of witnesses, or reweigh the evidence; such matters are for
the finder of fact. State v. Freemont, ante p. 179, 817 N.W.2d
277 (2012). The relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
Id. Our review of the evidence for harmless error recited above
shows there is sufficient evidence to support Kitt’s convictions
under the law applicable to this case. The Court of Appeals did
not err when it so determined.
VI. CONCLUSION
Although 	the 	district 	court 	erred 	when 	it 	declared
Harrington unavailable as a witness under rule 804 and admit-
ted Harrington’s deposition testimony, we conclude that this
was harmless error and does not require reversal of Kitt’s

636 	284 NEBRASKA REPORTS
convictions or of the Court of Appeals’ affirmance of the dis-
trict court’s rulings. Given the aiding and abetting instruction
and the facts, the evidence is sufficient to support the convic-
tions. Although for reasons which differ from the Court of
Appeals’ reasoning, we affirm.
affirmed.
cassel, J., not participating.