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303 Nebraska Report

STATE v. McGIN

Cite as 303 Neb. 224

State of Nebraska, appellee, v.

Danny J. McGinn, ap

___ 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 appellate 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 decision 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.

Nebraska Supreme Court Online Library

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

07/26/2019 09:07 AM CDT
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STATE v. McGIN

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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 intoxication or simply by excessive alcohol content shown through a chemical 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 elements of the crime beyond a reasonable doubt.

Appeal from the District Court for Holt County, Mark D

Kozisek, Judge, on appeal thereto from the County Court for

Holt County, Kale B. Burdick, Judge. Judgment of Distr

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, Stac

Papik, and Freudenberg,

Funke, 

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 conviction by finding there was sufficient evidence to support 
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STATE v. McGIN

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 evidence. Therefore, the sole issue on appeal is whether the district 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 traffic 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 arresting officer conducted field sobriety tests and a breath test using 

a DataMaster machine.

Motion to Suppr

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 reasoned that the physician would evaluate McGinn’s condition 

and order whatever laboratory tests the physician deemed 
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STATE v. McGIN

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.

Tria

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 documentation, he observed McGinn “was nervous, anxious, fast 

talking.” Once McGinn provided his driver’s license and insurance, 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 emitting from McGinn’s vehicle during the stop. McGinn had 

explained he consumed three drinks that evening. Binkerd 

then administered field sobriety tests. First, Binkerd conducted 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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STATE v. McGIN

Cite as 303 Neb. 224

to 31 instead of 30 as instructed. Binkerd explained this indicated 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 advisement 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 officerdirected 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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booked; however, there was no indication that the call was 

made to a physician.

McGinn renewed his objection to the testimony and evidence 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 allowing telephone calls to secure the test [and] under no duty 

to transport the defendant anywhere to secure that independent 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.

Appeal to District Co

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 correct 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 district 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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evidence and determined that the county court erred in admitting such evidence.

Having determined the breath test evidence was inadmissible 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 difficulty providing the vehicle registration, an odor of alcohol was 

emitting from McGinn’s vehicle, McGinn admitted to drinking 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 evidence 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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in appeals from the county court.6 When deciding appeals from 

criminal convictions in county court, we apply the same standards 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, 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.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. Thalken9

articulated the State’s right to appeal a decision of the district court sitting as an intermediate court of appeals. As a 

result, the State has not preserved the purported error committed 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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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 affirmative 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 admitting the breath test evidence.

We now turn to the remaining issue decided by the district court regarding the sufficiency of the evidence to sustain 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 influence 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 completed, 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 admitted to drinking. Binkerd further testified that McGinn “was 

nervous, anxious, fast talking”; struggled to find his vehicle 

registration; repeated questions; and indicated intoxication during 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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of physical impairment and well-known indicia of intoxication 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 remaining evidence.

Without considering the breath test evidence, the record 

is insufficient to support a determination that McGinn operated 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 district court was in error.

12 See State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).
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[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 sufficient 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 favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable 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 affirming 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 inadmissible, 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.

Reversed and remanded with direct

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

14 Id.

15 Id.