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06/21/2019 09:08 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                                                 STATE v. McGINN
                                                 Cite as 303 Neb. 224




                                        State of Nebraska,         appellee, v.
                                         Danny J. McGinn,          appellant.
                                                   ___ N.W.2d ___

                                          Filed May 24, 2019.     No. S-18-744.

                 1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
                    case from the county court, the district court acts as an intermediate
                    court of appeals, and its review is limited to an examination of the
                    record for error or abuse of discretion.
                 2. Courts: Appeal and Error. Both the district court and a higher appel-
                    late court generally review appeals from the county court for error
                    appearing on the record.
                 3. Judgments: Appeal and Error. When reviewing a judgment for errors
                    appearing on the record, an appellate court’s inquiry is whether the deci-
                    sion conforms to the law, is supported by competent evidence, and is
                    neither arbitrary, capricious, nor unreasonable.
                 4. Appeal and Error. An appellate court independently reviews questions
                    of law in appeals from the county court.
                 5. Criminal Law: Courts: Appeal and Error. When deciding appeals
                    from criminal convictions in county court, an appellate court applies the
                    same standards of review that it applies to decide appeals from criminal
                    convictions in district court.
                 6. Convictions: Evidence: Appeal and Error. In reviewing a criminal
                    conviction for a sufficiency of the evidence claim, whether the evidence
                    is direct, circumstantial, or a combination thereof, the standard is the
                    same: An appellate court does not resolve conflicts in the evidence, pass
                    on the credibility of witnesses, or reweigh the evidence; such matters are
                    for the finder of fact.
                 7. Courts: Appeal and Error. The State has the right to appeal a decision
                    of the district court sitting as an intermediate court of appeals.
                 8. Appeal and Error. An appellate court does not consider errors which
                    are argued but not assigned.
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             Nebraska Supreme Court A dvance Sheets
                     303 Nebraska R eports
                              STATE v. McGINN
                              Cite as 303 Neb. 224

 9. ____. An appellee’s argument that a lower court’s decision should be
    upheld on grounds specifically rejected below constitutes a request for
    affirmative relief, and the appellee must cross-appeal in order for that
    argument to be considered.
10. Drunk Driving: Blood, Breath, and Urine Tests: Evidence: Proof. A
    driving under the influence offense can generally be shown either by
    evidence of physical impairment and well-known indicia of intoxica-
    tion or simply by excessive alcohol content shown through a chemi-
    cal test.
11. Criminal Law: Evidence: Double Jeopardy: New Trial: Appeal and
    Error. Upon finding reversible error in a criminal trial, an appellate
    court must determine whether the total evidence admitted by the district
    court, erroneously or not, was sufficient to sustain a guilty verdict. If it
    was not, then double jeopardy forbids a remand for a new trial.
12. Criminal Law: Convictions: Evidence: Appeal and Error. When
    reviewing a criminal conviction for sufficiency of the evidence to
    sustain the conviction, 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.

  Appeal from the District Court for Holt County, M ark D.
Kozisek, Judge, on appeal thereto from the County Court for
Holt County, K ale B. Burdick, Judge. Judgment of District
Court reversed, and cause remanded with directions.
   Forrest F. Peetz, of Peetz Law, P.C., L.L.O., for appellant.
   Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Funke, J.
   Danny J. McGinn appeals the district court’s decision
affirming his conviction for driving under the influence,
second offense, in violation of Neb. Rev. Stat. § 60-6,196
(Reissue 2010). The district court determined the county court
erred in admitting breath test evidence but affirmed the con-
viction by finding there was sufficient evidence to support
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        STATE v. McGINN
                        Cite as 303 Neb. 224

McGinn’s conviction. The State has not appealed the district
court’s decision on the inadmissibility of the breath test evi-
dence. Therefore, the sole issue on appeal is whether the dis-
trict court erred in affirming the conviction after finding the
breath test evidence inadmissible. For the reasons set forth
herein, we reverse the district court’s decision and remand the
cause with directions.
                        BACKGROUND
   This case originated in August 2017 when McGinn was
charged with driving under the influence of alcohol, second
offense, in violation of § 60-6,196, stemming from a traf-
fic stop of his vehicle in July. According to the complaint,
McGinn
      operate[d] or ha[d] actual physical control of a motor
      vehicle while under the influence of alcoholic liquor
      when he/she had a concentration of .08 grams or more by
      weight of alcohol per 210 ml of his/her breath, but less
      than .150 grams by weight of alcohol per 210 ml of his/
      her breath.
During the traffic stop and subsequent investigation, the arrest-
ing officer conducted field sobriety tests and a breath test using
a DataMaster machine.
                      Motion to Suppress
   In October 2017, McGinn filed a motion to suppress any
chemical test of his blood, breath, or urine conducted during
the traffic stop and subsequent investigation. In his motion,
McGinn claimed the State failed to permit him to have an
additional test conducted following the officer-directed test, in
violation of Neb. Rev. Stat. § 60-6,199 (Reissue 2010).
   The county court denied McGinn’s motion, determining
that § 60-6,199 did not give McGinn the right to a separate
test and instead only required the State to allow McGinn the
right to contact a physician of his choice. The trial court rea-
soned that the physician would evaluate McGinn’s condition
and order whatever laboratory tests the physician deemed
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          Nebraska Supreme Court A dvance Sheets
                  303 Nebraska R eports
                       STATE v. McGINN
                       Cite as 303 Neb. 224

appropriate. Because there was no evidence that the McGinn
contacted a physician of his choice and no evidence that a
physician attempted to evaluate him or ordered any tests,
the court declined to suppress or limit the use of the breath
test evidence.
                             Trial
   A bench trial was held in January 2018. During trial, Sgt.
Mike Parks, with the Holt County sheriff’s office, testified
regarding the maintenance, use, and operating procedure for
the DataMaster utilized to test McGinn.
   Deputy Steven Binkerd testified as the arresting officer.
Binkerd explained that on July 28, 2017, around 11:30 p.m.,
he stopped McGinn for speeding. Binkerd testified that when
he asked McGinn for his driver’s license and vehicle docu-
mentation, he observed McGinn “was nervous, anxious, fast
talking.” Once McGinn provided his driver’s license and insur-
ance, Binkerd asked specifically for the vehicle registration,
and McGinn asked, “‘Is that the little pink one?’” Binkerd
responded that it was, and McGinn began to look for it, but
they “started talking and he got lost again.” McGinn asked
again whether it was the “‘little pink one,’” and Binkerd
told McGinn it was. Finally, McGinn found it and handed it
to Binkerd.
   Binkerd testified that he detected the odor of alcohol emit-
ting from McGinn’s vehicle during the stop. McGinn had
explained he consumed three drinks that evening. Binkerd
then administered field sobriety tests. First, Binkerd con-
ducted a horizontal gaze nystagmus test, to which he observed
six indicators signifying to Binkerd there was “a 77 percent
chance” that McGinn was over a .1 blood alcohol content.
Next, Binkerd conducted a nine-step walk-and-turn test, which
“showed impairment” in that McGinn struggled to complete
the test while wearing flip-flops and then barefoot, took only
eight of the instructed nine steps, and missed the instructed
heel-toe maneuver. Binkerd then administered the one-legged
stand test, and McGinn used his arms for balance and counted
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                             STATE v. McGINN
                             Cite as 303 Neb. 224

to 31 instead of 30 as instructed. Binkerd explained this indi-
cated to him there was a “65 or 66 percent chance that he
was impaired based on those results.” The next test Binkerd
conducted was the “Rhomberg” test, in which McGinn stood
in a wider stance than instructed, estimated 28 seconds as the
passage of 30 seconds, and swayed slightly. Binkerd opined
that this performance “showed signs of impairment.” Finally,
Binkerd conducted an alphabet test, which he testified showed
no signs of impairment.
   After conducting the field sobriety tests, Binkerd conducted
a preliminary breath test and arrested McGinn. At the jail,
Binkerd advised McGinn of a postarrest chemical test advise-
ment form, which McGinn signed, explaining the use of a
DataMaster test by the State. While explaining the DataMaster
test, McGinn asked Binkerd about getting a blood test and
Binkerd informed him that the State was no longer using
blood tests due to a 2016 U.S. Supreme Court opinion1 but
that Nebraska statute allows McGinn a second test at his own
expense.2 Binkerd administered the DataMaster test, which
indicated an alcohol concentration of .128 grams per 210 liters
of breath.
   After the DataMaster test, McGinn brought up his right to a
second test and requested a blood draw. Binkerd was unclear
how Birchfield affected a request for a secondary test and
called his supervisor, Parks, for clarification. After that call,
Binkerd informed McGinn that the sheriff’s office no longer
dealt with blood tests regardless of whether it was for the
State’s test or a secondary test. Instead, Binkerd instructed
McGinn that any requested secondary test would have to be a
breath test taken on the same DataMaster used for the officer-
directed test. Binkerd testified that McGinn made a telephone
call at some point after the DataMaster test and that he was

1
    See Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed.
    2d 560 (2016).
2
    See § 60-6,199.
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        STATE v. McGINN
                        Cite as 303 Neb. 224

booked; however, there was no indication that the call was
made to a physician.
   McGinn renewed his objection to the testimony and evi-
dence concerning the breath test results on the grounds asserted
during him motion to suppress. The court overruled McGinn’s
objection, stating that “law enforcement cannot hamper a
motorist’s efforts to obtain independent testing, but they are
under no duty to assist in obtaining such testing beyond allow-
ing telephone calls to secure the test [and] under no duty
to transport the defendant anywhere to secure that indepen-
dent testing.”
   The county court found McGinn guilty of driving under the
influence, second offense, and sentenced McGinn to 10 days
in jail, a $500 fine, an 18-month suspension of his driver’s
license, and 12 months’ probation.
                   A ppeal to District Court
   McGinn appealed his conviction to the district court. As
the district court noted in its subsequent decision, the main
issue raised by the appeal involved § 60-6,199 and whether
Binkerd refused to permit the additional test as provided.
The court noted that the parties did not dispute the relevant
evidence: that Binkerd directed McGinn to submit to a breath
test, that McGinn submitted to the test, that McGinn requested
a separate blood test, and that the separate blood test was
not obtained.
   The district court first determined the county court was cor-
rect in finding the State need not assist a motorist in obtaining
a second test. However, the district court explained that the
county court failed to answer the question of whether Binkerd
refused to permit the additional test when such a refusal
is prohibited by § 60-6,199. Noting that Binkerd instructed
McGinn that any secondary test would have to be on the
same DataMaster used for the officer-directed test, the dis-
trict court found Binkerd had refused to permit the additional
test requested by McGinn. Therefore, the district court found
the original test and the results thereof were not competent
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                             STATE v. McGINN
                             Cite as 303 Neb. 224

evidence and determined that the county court erred in admit-
ting such evidence.
   Having determined the breath test evidence was inadmis-
sible and could not be the basis for McGinn’s conviction, the
district court considered whether the remaining evidence was
sufficient to support the county court’s guilty verdict. The
district court noted Binkerd’s testimony that McGinn had been
speeding, McGinn appeared distracted and was having diffi-
culty providing the vehicle registration, an odor of alcohol was
emitting from McGinn’s vehicle, McGinn admitted to drink-
ing alcohol, and McGinn’s results from the field sobriety tests
indicated to Binkerd that McGinn was intoxicated. The court
then concluded that the “evidence was sufficient for the court
to find [McGinn] guilty of driving under the influence” and
affirmed the county court’s conviction.

                ASSIGNMENTS OF ERROR
  McGinn assigns the district court erred in sustaining the
county court’s conviction after determining the breath test evi-
dence was inadmissible.

                   STANDARD OF REVIEW
   [1-5] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error
or abuse of discretion.3 Both the district court and a higher
appellate court generally review appeals from the county court
for error appearing on the record.4 When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable.5 But we independently review questions of law

3
    State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).
4
    Id.
5
    Id.
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                             STATE v. McGINN
                             Cite as 303 Neb. 224

in appeals from the county court.6 When deciding appeals from
criminal convictions in county court, we apply the same stan-
dards of review that we apply to decide appeals from criminal
convictions in district court.7
   [6] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, 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.8
                          ANALYSIS
   We first note the State’s brief spends a substantial portion
of its argument discussing the admissibility of the breath test
evidence. However, the district court determined that the breath
test was inadmissible due to a violation of § 60-6,199 and that
the State has not cross-appealed and has not assigned as error
that determination. At oral argument, the State contended that
they did not need to appeal the district court’s admissibility
determination, because the district court ultimately affirmed
McGinn’s conviction on other grounds.
   [7,8] Under Neb. Rev. Stat. § 25-2733(3) (Reissue 2016),
the judgment of the district court vacates the judgment in
the county court and thus only the district court’s judgment
is reviewable by this court. Our holding in State v. Thalken 9
articulated the State’s right to appeal a decision of the dis-
trict court sitting as an intermediate court of appeals. As a
result, the State has not preserved the purported error com-
mitted by the district court. As we have previously stated, an
appellate court does not consider errors which are argued but
not assigned.10

 6
     Id.
 7
     Id.
 8
     State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017).
 9
     Thalken, supra note 3.
10
     State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017).
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               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                             STATE v. McGINN
                             Cite as 303 Neb. 224

   [9] Additionally, we have held that an appellee’s argument
that a lower court’s decision should be upheld on grounds
specifically rejected below constitutes a request for affirma-
tive relief, and the appellee must cross-appeal in order for that
argument to be considered.11 Thus, the sole issue on appeal is
whether the district court erred in affirming the county court’s
conviction after determining the county court erred in admit-
ting the breath test evidence.
   We now turn to the remaining issue decided by the dis-
trict court regarding the sufficiency of the evidence to sus-
tain McGinn’s conviction. The district court noted that under
§ 60-6,196, there are three ways to prove driving under the
influence: namely, § 60-6,196(1)(a) while under the influ-
ence of alcoholic liquor or any drug; § 60-6,196(1)(b) when
such person has a concentration of .08 of 1 gram or more
by weight of alcohol per 100 milliliters of his or her blood;
or § 60-6,196(1)(c) when such person has a concentration of
.08 of 1 gram or more by weight of alcohol per 210 liters of
his or her breath. The court went on to hold that because the
breath test was inadmissible and there was no blood test com-
pleted, the only remaining basis to prove a violation was under
§ 60-6,196(1)(a).
   The district court noted that Binkerd testified he stopped
McGinn around 11:30 p.m. for speeding, there was an odor of
alcohol coming from McGinn’s vehicle, and McGinn admit-
ted to drinking. Binkerd further testified that McGinn “was
nervous, anxious, fast talking”; struggled to find his vehicle
registration; repeated questions; and indicated intoxication dur-
ing field sobriety testing. As a result, the district court found
the evidence sufficient that a rational trier of fact could have
determined McGinn had driven while under the influence of
alcohol, in violation of § 60-6,196(1)(a).
   [10] The district court is correct that a driving under the
influence offense can generally be shown either by evidence

11
     See, e.g., Pennfield Oil Co. v. Winstrom, 272 Neb. 219, 720 N.W.2d 886
     (2006).
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               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                              STATE v. McGINN
                              Cite as 303 Neb. 224

of physical impairment and well-known indicia of intoxica-
tion or simply by excessive alcohol content shown through a
chemical test.12 However, in this matter, though the complaint
charged McGinn with driving under the influence of alcohol,
second offense, in violation of § 60-6,196, it did not state
which subsection it was alleging. Further, the complaint alleges
that McGinn
      operate[d] or ha[d] actual physical control of a motor
      vehicle while under the influence of alcoholic liquor
      when he/she had a concentration of .08 grams or more by
      weight of alcohol per 210 ml of his/her breath, but less
      than .150 grams by weight of alcohol per 210 ml of his/
      her breath.
This allegation utilizes the language from § 60-6,196(1)(a)
and (c). However, it fails to include the conjunction “or” to
clarify both specific allegations are being alleged. The State
conceded that the lack of such conjunction results in only a
§ 60-6,196(1)(c) allegation being made in the complaint. This
issue was not raised by the State at trial or in McGinn’s appeal
either to the district court or to this court. It was first raised
by the State during oral arguments and is properly before this
court as part of our analysis as to the sufficiency of the remain-
ing evidence.
   Without considering the breath test evidence, the record
is insufficient to support a determination that McGinn oper-
ated or had actual physical control of his vehicle while he
had a concentration of .08 of 1 gram or more by weight of
alcohol per 210 liters of his breath. The only other relevant
evidence received on this issue was observational testimony
which would have gone to a claim under § 60-6,196(1)(a).
As discussed above, the charge against McGinn was under
§ 60-6,196(1)(c), and there was no other evidence on McGinn’s
breath alcohol content. Accordingly, the judgment of the dis-
trict court was in error.

12
     See State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).
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               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                             STATE v. McGINN
                             Cite as 303 Neb. 224

   [11,12] Upon finding reversible error in a criminal trial,
an appellate court must determine whether the total evidence
admitted by the district court, erroneously or not, was suf-
ficient to sustain a guilty verdict.13 If it was not, then double
jeopardy forbids a remand for a new trial.14 When reviewing a
criminal conviction for sufficiency of the evidence to sustain
the conviction, 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 reason-
able doubt.15
   In this matter, because insufficient evidence was offered to
prove a violation of § 60-6,196 as charged, double jeopardy
forbids a remand for a new trial. Therefore, in consideration of
all of the above, we reverse the district court’s decision affirm-
ing the county court’s conviction and remand the cause to the
district court with directions to remand the matter to the county
court with directions to dismiss.
                        CONCLUSION
   The district court erred in affirming the county court’s
conviction of McGinn for driving under the influence, second
offense. Specifically, the county court’s consideration of the
breath test evidence, which the district court found inadmissi-
ble, was not harmless error. Accordingly, we reverse the district
court’s decision affirming the county court’s conviction and
determine double jeopardy requires dismissal of this action.
                    R eversed and remanded with directions.

13
     State v. Merchant, 288 Neb. 440, 848 N.W.2d 630 (2014).
14
     Id.
15
     Id.
