- 120 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

State of Nebraska, appellee, v. 

Timothy Hoops, appellant.

___ N.W.2d ___

Filed August 24, 2021. No. A-20-547.

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. 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.

5. Criminal Law: Juries: Evidence: Appeal and Error. In a jury trial of 

a criminal case, an erroneous evidentiary ruling results in prejudice to 

a defendant unless the State demonstrates that the error was harmless 

beyond a reasonable doubt.

6. Verdicts: Juries: Appeal and Error. In a harmless error review, an 

appellate court looks at the evidence upon which the jury rested its 

verdict; the inquiry is not whether in a trial that occurred without the 

error a guilty verdict surely would have been rendered, but, rather, 

whether the guilty verdict rendered in the trial was surely unattributable 

to the error.

7. Trial: Appeal and Error. Conduct of final argument is within the discretion of the trial court, and absent an abuse of that discretion, the trial 

court’s ruling regarding final argument will not be disturbed.

Nebraska Supreme Court Online Library

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

08/31/2021 12:07 AM CDT
- 121 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

8. Appeal and Error. The function of assignments of error is to set out 

the issues presented on appeal, to advise the appellee of the question 

submitted for determination so the appellee knows what contentions 

must be met, and to advise the appellate court of the issues submitted 

for decision.

9. Courts: Judgments: Appeal and Error. In appeals from the district 

court sitting as an appellate court, the immediate question is whether the 

district court erred in its appellate review of the county court’s decision, 

but review of that question necessarily involves considering the decision 

of the county court.

10. Blood, Breath, and Urine Tests: Evidence: Proof: Probable Cause.

As a general rule, preliminary breath test evidence is inadmissible as 

proof that a defendant was impaired or intoxicated; the admissibility of 

the results of a preliminary breath test is limited to the purpose of showing probable cause either for an arrest or for administering a chemical test.

11. Trial: Arrests: Blood, Breath, and Urine Tests: Evidence. The admissibility of the preliminary breath test is a question of law and should 

therefore be admitted into evidence out of the presence of the jury.

12. Trial: Attorneys at Law: Evidence. It is improper for counsel to comment during closing argument on matters unsupported by the evidence.

13. Trial: Proof: Appeal and Error. To establish reversible error, a defend

ant must demonstrate that a trial court’s conduct, whether action or 

inaction during the proceeding against the defendant, prejudiced or 

otherwise adversely affected a substantial right of the defendant.

Appeal from the District Court for Scotts Bluff County, Leo 

P. Dobrovolny, Judge, on appeal thereto from the County Court 

for Scotts Bluff County, Kris D. Mickey, Judge. Judgment of 

District Court affirmed.

Bell Island, of Island Law Office, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Pirtle, Chief Judge, and Moore and Bishop, Judges.

Bishop, Judge.

INTRODUCTION

Timothy Hoops was found guilty by a jury in the county 

court for Scotts Bluff County for driving under the influence 
- 122 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

of alcohol. The county court accepted that verdict and also 

found Hoops guilty of making an improper turn. On appeal to 

the Scotts Bluff County District Court, his convictions and sentences were affirmed. On appeal to this court, Hoops assigns 

errors related to testimony regarding a preliminary breath test 

and an objection made by the State during defense counsel’s 

closing argument. We affirm.

BACKGROUND

On February 18, 2017, Officer Matthew Brown of the 

Scottsbluff Police Department was on night patrol when he 

observed a vehicle make an improper right turn into the outside lane and strike the median island during the turn. Officer 

Brown thereafter initiated a traffic stop and followed the 

vehicle into a nearby parking lot where he identified Hoops as 

the driver of the vehicle. The events leading up to the traffic 

stop and the ensuing investigation were recorded by Officer 

Brown’s cruiser camera, and that recording was introduced as 

evidence at trial.

When Officer Brown first made contact with Hoops, he 

“noticed [Hoops] had bloodshot, watery eyes, slurred speech, 

and . . . an odor of an alcoholic beverage coming from his 

person.” Officer Brown testified that Hoops admitted to having 

“had at least three alcoholic beverages at a business meeting” 

prior to the traffic stop, and he recalled that Hoops had said 

those beverages were “beer.” Officer Brown then had Hoops 

step out of the vehicle, and he recalled that as Hoops “first 

stepped out of [the] vehicle[,] he stumbled and then kind of 

caught himself on the door and then stood back up.”

When bringing Hoops to the space in front of his cruiser, 

Officer Brown asked “if [Hoops] would be willing to do the 

standardized field sobriety tests,” and Hoops consented. Now 

in proximity, Officer Brown noted he could detect “the smell 

. . . of the alcoholic beverage coming from [Hoops] and his 

breath at that point” and affirmed that he had a “clearer view 

of [Hoops’] bloodshot, watery eyes.” The first test was the 
- 123 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

horizontal gaze nystagmus test, and Officer Brown observed 

Hoops “kind of leaning and then swaying back and forth” during the test. Officer Brown further testified that Hoops “was 

moving his head, turning his head from side to side” during 

the test despite instructions and “several” reminders that Hoops 

was “to follow [Officer Brown’s] pen with [his] eyes only.” 

Moving away from the cruiser to an area with more level 

ground, Officer Brown then had Hoops perform the nine-step 

walk-and-turn test. Hoops made two attempts before declining to continue with the test, and he was not able to complete 

either attempt due to losing his balance and stepping off the 

line within the first few steps of each attempt. Returning to 

the front of the cruiser, Officer Brown then had Hoops perform the one-leg stand test. Hoops was unable to keep his 

balance for more than a few seconds during his attempts 

before becoming unsteady and subsequently catching himself 

on the hood of Officer Brown’s cruiser. Officer Brown thereafter administered a preliminary breath test to Hoops. Officer 

Brown observed Hoops to be “swaying” at multiple points 

throughout the encounter, but recalled that Hoops said during 

the stop that “he had back problems” and “knee problems.” 

Officer Brown then placed Hoops under arrest, believing him to 

be impaired.

The State filed a complaint on March 14, 2017, and subsequently filed an amended complaint on March 18, 2019, charging Hoops with making an improper right turn in violation of 

Neb. Rev. Stat. § 60-6,159(1) (Reissue 2010) and driving under 

the influence of alcohol, first offense, in violation of Neb. Rev. 

Stat. § 60-6,196(1)(a) (Reissue 2010).

A jury trial was held on April 25, 2019. During Officer 

Brown’s testimony, the following colloquy took place on direct 

examination between counsel for the State and Officer Brown 

concerning the signs of impairment he was trained to look for:

Q. All right. And what kind of things do you see from 

somebody who is impaired? What are some things you 

know to look for?
- 124 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

A. Things we know to look for, slurred speech, confusion, unsteady on their feet, stumbling.

Q. Could a flushed face be one of those things?

A. Yes.

Q. Is that the biggest thing you look for?

A. No.

Q. Does every person who’s intoxicated have a flushed 

face?

A. No, they do not.

Q. Okay. It — that’s not the number one thing or anything like that?

A. No.

Q. All right. Does everybody react the same when 

they’re impaired that you have dealt with?

A. No, they do not act — everyone does not act the 

same.

Q. Does everybody present the same? Like, do you 

constantly see one thing in particular?

A. No. It’s — it could be a number of things.

Officer Brown later described that the basis for his opinion 

of Hoops’ impairment “was the standardized field sobriety 

tests, [his] observations, and the clues of impairment [he] 

observed, and the odor of the alcoholic beverage coming 

from [Hoops’] person and then the preliminary breath test and 

DataMaster.” Hoops’ counsel objected and moved to strike that 

testimony, and the county court overruled the objection and 

motion to strike.

During cross-examination, Hoops’ counsel asked additional 

questions regarding the signs of impairment Officer Brown was 

trained to look for. The following exchange took place between 

Hoops’ counsel and Officer Brown regarding a flushed face as 

a sign of a person’s impairment by alcohol:

Q. You’re also trained to look at, like, the impact of 

alcohol on the body that we talked about earlier. Do you 

remember that?

A. Yes.
- 125 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

Q. That it — that it’s — causes the blood vessels to 

dilate or to heat up; right?

A. Yes, sir.

Q. And that’s what causes the flushed face?

A. Correct.

Q. And with . . . Hoops we didn’t see any flushed 

face; right?

A. Not that I remember.

Q. Right?

A. Correct.

Following the close of evidence, Hoops’ counsel made the 

following statement during his closing argument:

And one thing that’s missing — and this is important 

because when you’re impaired, when you consumed alcohol, he’s taught it dilates the — the vessels. It makes 

your face get red. It makes it become flushed. It makes 

it become heated. That is something that’s consistent 

with someone who would be impaired by alcohol, would 

be there.

The State objected on the basis that Hoops’ counsel asserted 

“[f]acts not in evidence.” The court sustained the objection, 

and closing arguments thereafter continued to conclusion.

The jury returned a verdict finding Hoops guilty of driving under the influence of alcohol. The county court accepted 

the jury’s verdict and further found Hoops guilty of making 

an improper right turn. A sentencing order was entered on 

June 3, 2019. For his conviction for driving under the influence of alcohol, first offense, the court sentenced Hoops to 6 

months’ probation, revoked his driver’s license for 60 days, 

and imposed a $500 fine. For Hoops’ conviction for making an 

improper right turn, the court imposed a $25 fine.

Hoops thereafter appealed to the district court. On June 

6, 2019, Hoops filed an assignment of errors with the district court alleging that “[t]he court erred in admitting evidence at trial” and “[t]here was insufficient evidence.” A 

hearing before the district court took place on March 20, 2020. 
- 126 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

Subsequently, on April 22, Hoops filed an amended assignment of errors alleging that “[t]he court erred in admitting 

the evidence of a Preliminary Breath Test at trial” and “[t]he 

court erred in sustaining the Government’s objection during the 

Defense closing.”

On July 8, 2020, the district court entered an order affirming 

Hoops’ convictions and sentences. Regarding Hoops’ allegations about Officer Brown’s testimony relating to the preliminary breath test, the court noted the results of the test were not 

provided to the jury and determined the test result known to 

Officer Brown “was only a component of his reasoning that 

Hoops was impaired.” The court found that “[e]ven if the passing mention of a [preliminary breath test] would be considered 

error, it is harmless,” reasoning that there was “ample evidence 

of impairment with no consideration of a [preliminary breath 

test] being administered” based upon the jury’s requests to 

view the cruiser camera footage during deliberation. The court 

also found no error in the county court’s sustaining of the 

State’s objection during closing arguments, noting:

The Court finds no error in the trial judge[’s] sustaining of the objection. While one could consider a legitimate deduction from the evidence to be that an impaired 

driver could have a red face, the evidence does not support an observation or deduction that an impaired person 

must have a red face.

. . . .

The only action taken by the trial judge was to utter 

the word “sustained”; no comments of defense counsel 

were ordered stricken or to be disregarded, and defense 

counsel went on to basically restate what had already been 

objected to, without further objection, or comment from 

the Court.

The court further found there was “no indication of [prejudice]” caused by the trial judge’s sustaining of the State’s 

objection.

Hoops then appealed to this court.
- 127 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

ASSIGNMENTS OF ERROR

Hoops claims “[t]he court erred” in allowing Officer Brown’s 

testimony regarding the preliminary breath test and in improperly sustaining of the State’s objection to defense counsel’s 

closing argument.

STANDARD OF REVIEW

[1-4] 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. State v. Collins, 307 Neb. 581, 950 

N.W.2d 89 (2020). Both the district court and a higher appellate court generally review appeals from the county court for 

error appearing on the record. Id. 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. Id. 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. Id.

[5] In a jury trial of a criminal case, an erroneous evidentiary ruling results in prejudice to a defendant unless the State 

demonstrates that the error was harmless beyond reasonable 

doubt. State v. Rask, 294 Neb. 612, 883 N.W.2d 688 (2016).

[6] In a harmless error review, an appellate court looks at the 

evidence upon which the jury rested its verdict; the inquiry is 

not whether in a trial that occurred without the error a guilty 

verdict surely would have been rendered, but, rather, whether 

the guilty verdict rendered in the trial was surely unattributable 

to the error. Id.

[7] Conduct of final argument is within the discretion of 

the trial court, and absent an abuse of that discretion, the trial 

court’s ruling regarding final argument will not be disturbed. 

State v. Stark, 272 Neb. 89, 718 N.W.2d 509 (2006).
- 128 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

ANALYSIS

Hoops’ Assignments of Error

As a threshold matter, we first address the State’s argument 

that Hoops’ “claims are not properly before this court.” Brief 

for appellee at 6. The State claims that Hoops’ assignments 

of error and corresponding arguments “focus[] solely on the 

alleged error[s] with the county court’s rulings and take[] no 

issue with the district court’s judgment on appeal.” Id. The 

State, citing State v. McGinn, 303 Neb. 224, 928 N.W.2d 391 

(2019), modified on denial of rehearing 303 Neb. 931, 932 

N.W.2d 83, asserts that Hoops’ failure to assign error specifically to the district court’s judgment on appeal precludes this 

court from considering his appeal because “the only judgment 

that is reviewable by this court is the district court’s judgment.” 

Brief for appellee at 7.

[8,9] In State v. Jennings, 308 Neb. 835, 957 N.W.2d 

143 (2021), released after briefing in this case, the Nebraska 

Supreme Court addressed whether an appellant’s assigned 

errors attacking the judgment of the county court, rather than 

the judgment of the district court sitting as an intermediate 

court of appeals, are able to be considered on appeal from the 

judgment of the district court. The Supreme Court described 

the State’s argument as having effectively fashioned State v. 

McGinn, supra, “into a grammatical litmus test that would 

preclude appellate review altogether if an assignment of error 

is imprecisely framed.” State v. Jennings, 308 Neb. at 843, 957 

N.W.2d at 150. The Supreme Court rejected this interpretation 

of State v. McGinn, supra, and emphasized:

[W]e have explained that the function of assignments of 

error is to set out the issues presented on appeal, to advise 

the appellee of the question submitted for determination 

so the appellee knows what contentions must be met, 

and to advise the appellate court of the issues submitted 

for decision.

State v. Jennings, 308 Neb. at 843, 957 N.W.2d at 150. The 

Supreme Court further explained that “in appeals from the 
- 129 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

district court sitting as an appellate court, the immediate question is whether the district court erred in its appellate review of 

the county court’s decision, but review of that question necessarily involves considering the decision of the county court.” 

Id. at 844, 957 N.W.2d at 151.

Here, while Hoops did not specifically name the court he 

claimed erred in his assignments of error, we read his references to “[t]he court” as referring to the county court. Hoops 

has claimed the county court erred in allowing testimony 

regarding a preliminary breath test and in sustaining the State’s 

objection during his counsel’s closing argument. While he 

does not assign as error the district court’s order affirming his 

convictions and sentences, our review of the district court’s 

order necessarily requires that we consider the decisions of 

the county court. See State v. Jennings, supra. In light of the 

Nebraska Supreme Court’s decision in State v. Jennings, supra, 

Hoops’ assignments of error are sufficient to inform this court 

and the State of the issues submitted for appellate review and 

what contentions must be met on appeal. As such, his assigned 

errors are reviewable, and we turn now to address the merits 

of his appeal.

Testimony Regarding 

Preliminary Breath Test

Hoops claims it was error to allow Officer Brown to testify 

that he had Hoops submit to a preliminary breath test and that 

the basis for his arrest of Hoops included, among other considerations, the preliminary breath test.

[10,11] Evidence of a preliminary breath test may be admitted for a limited purpose only. See State v. Klingelhoefer, 

222 Neb. 219, 382 N.W.2d 366 (1986). As a general rule, 

preliminary breath test evidence is inadmissible as proof that 

a defendant was impaired or intoxicated; the admissibility of 

the results of a preliminary breath test is limited to the purpose 

of showing probable cause either for an arrest or for administering a chemical test. See State v. Rask, 294 Neb. 612, 883 

N.W.2d 688 (2016). For that limited purpose, the admissibility 
- 130 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

of the preliminary breath test is a question of law and should 

therefore be admitted into evidence out of the presence of the 

jury. See State v. Klingelhoefer, supra (determining that admission of preliminary breath test results into evidence was error, 

but such error was cured when trial court instructed jury to 

not consider test results in determining whether defendant was 

driving while intoxicated).

We note at the outset that the results of the preliminary 

breath test were not presented to the jury in this case. With that 

consideration in mind, we find the Nebraska Supreme Court’s 

decision in similar circumstances in State v. Rask, supra, to 

be instructive. In State v. Rask, supra, the prosecution offered 

evidence during a jury trial that a preliminary breath test 

was administered during a traffic stop and the defendant was 

arrested after he was tested. The results of that test were not 

presented to the jury. See id. Without determining whether the 

admission of the evidence of the defendant’s submission to a 

preliminary breath test constituted error, the Nebraska Supreme 

Court concluded that any error caused by that evidence was 

harmless because “[t]here was ample evidence to support” the 

defendant’s impairment, including testimony that the defendant 

“had consumed approximately five to seven beers between 

1 and 3 a.m.” prior to his arrest and “smelled of alcohol,” 

the defendant’s admission to the police officer “that he was 

drunk,” and the defendant’s performance in three field sobriety 

tests. Id. at 618, 883 N.W.2d at 694.

Here, we first note that Officer Brown referenced the preliminary breath test three times during his testimony. Officer 

Brown first testified that after the one-leg stand test, he “was 

going to prepare to do the preliminary breath test.” He then 

testified that after the one-leg stand test, he was going to 

“[a]sk [Hoops] if he . . . would be willing to provide a preliminary breath test.” Officer Brown thereafter explained the 

basis for his opinion that Hoops “was impaired by an alcoholic beverage that night operating a vehicle,” stating that he 

based that opinion on “the standardized field sobriety tests, 
- 131 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

[his] observations, and the clues of impairment [he] observed, 

and the odor of the alcoholic beverage coming from [Hoops] 

and then the preliminary breath test and DataMaster.” Hoops’ 

counsel objected to Officer Brown’s references to the preliminary breath test.

We similarly conclude that any error in the admission of 

Officer Brown’s testimony regarding the preliminary breath 

test was harmless. Officer Brown made only brief and passing 

references to the preliminary breath test during his testimony, 

and the results of the test were not presented to the jury. 

Officer Brown testified that Hoops stated that he had at least 

three beers prior to the stop, and this testimony was not disputed. Although the ultimate issue of Hoops’ impairment was 

disputed, Officer Brown’s observations of Hoops’ “bloodshot, 

watery eyes” and the smell of alcohol coming from Hoops’ 

breath and person were also not disputed. We further note 

the cruiser camera footage showed Hoops’ vehicle strike the 

median while making a wide turn into the outside lane prior 

to the traffic stop. The cruiser camera footage also showed 

when Hoops was not following Officer Brown’s instructions to 

not move his head during the horizontal gaze nystagmus test, 

struggling to maintain his balance during the nine-step walkand-turn and one-leg stand tests, and otherwise swaying and 

occasionally losing his balance while standing throughout the 

encounter. The recording also exhibited Hoops having slurred 

speech after Officer Brown placed him in the backseat of the 

cruiser. In light of this evidence, we conclude the jury’s verdict 

in this case was surely unattributable to Officer Brown’s passing references to the preliminary breath test during his testimony. Any error by the county court in this instance was harmless, and we conclude the district court did not err in affirming 

the judgment of the county court on this basis.

Objection Sustained During 

Counsel’s Closing Argument

Hoops claims it was error for the county court to sustain 

the State’s objection during his counsel’s closing argument. As 
- 132 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

set forth previously, Hoops’ counsel made the following statement during closing arguments:

And one thing that’s missing — and this is important 

because when you’re impaired, when you consumed alcohol, he’s taught it dilates the — the vessels. It makes 

your face get red. It makes it become flushed. It makes 

it become heated. That is something that’s consistent 

with someone who would be impaired by alcohol, would 

be there.

The State objected on the basis of “[f]acts not in evidence,” 

and the county court sustained the objection.

Hoops argues on appeal that “[t]he court erred in sustaining 

the objection.” Brief for appellant at 11. He claims that “[t]here 

was sufficient foundation for counsel to make the argument,” 

as “[s]omeone having a flushed face and it being caused by 

alcohol is consistent with the evidence.” Id. at 11-12. He further asserts the county court, in sustaining the State’s objection, 

“place[d] its imprimatur on the argument that the absence of a 

flushed face is not relevant to impairment and should not be 

considered by the jury.” Id. at 12.

As we previously described, Officer Brown affirmed during direct examination that having a flushed face could be a 

sign of a person’s impairment by alcohol consumption. He 

also indicated in his testimony that not every person impaired 

by alcohol would have a flushed face. On cross-examination, 

Officer Brown confirmed that alcohol “causes the blood vessels to dilate or to heat up” and that such an effect on the body 

can result in a flushed face.

[12] We conclude the trial judge’s decision to sustain the 

State’s objection during Hoops’ counsel’s closing argument 

was not reversible error. It is improper for counsel to comment during closing argument on matters unsupported by 

the evidence. State v. Robinson, 272 Neb. 582, 724 N.W.2d 

35 (2006), abrogated on other grounds, State v. Thorpe, 280 

Neb. 11, 783 N.W.2d 749 (2010). Officer Brown’s testimony 

indicated that alcohol could cause a flushed face and that a 
- 133 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

flushed face could be a sign of impairment. His answers on 

cross-examination regarding the dilation of blood vessels and 

the face “heat[ing] up” served to explain the biological proc

esses that result in alcohol consumption causing a flushed 

face. He did not testify that a flushed face is “consistent” with 

impairment caused by alcohol or otherwise “would be there” 

in cases of such impairment, and such assertions were not supported by the evidence adduced at trial.

[13] We further conclude that even if the trial judge erroneously sustained the State’s objection, the trial judge’s decision 

did not cause prejudice to Hoops. To establish reversible error, 

a defendant must demonstrate that a trial court’s conduct, 

whether action or inaction during the proceeding against the 

defendant, prejudiced or otherwise adversely affected a substantial right of the defendant. State v. Galindo, 278 Neb. 599, 

774 N.W.2d 190 (2009). See, also, State v. Stark, 272 Neb. 89, 

718 N.W.2d 509 (2006). We note that prior to closing arguments, the trial judge instructed the jurors that they “must 

follow [their] recollection of the evidence” in considering the 

respective closing arguments of the State and defense. Further, 

in sustaining the State’s objection, the trial judge simply said, 

“Sustained.” When Hoops’ counsel contested the objection, the 

trial judge responded, “The objection is sustained.” No further 

comment was made regarding the objection, nor was the jury 

instructed to disregard counsel’s statement regarding a flushed 

face. Hoops’ counsel then proceeded to state, “Hoops did not 

have a flushed face. He wasn’t impaired.” The State did not 

object to this statement, and the trial judge made no comment. 

Further, the first jury instruction provided in part that, if it 

appeared to the jury that the trial judge “commented on the 

evidence[] during either the trial or the giving of these instructions,” the jury “must disregard such comment entirely.” The 

trial judge’s statements that the State’s objection was sustained 

did not, as Hoops asserts, give “the jury the imprimatur of the 

judge on the government’s incorrect objection that [Hoops’ 

lack of a flushed face] was not worthy of consideration” or 
- 134 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. HOOPS

Cite as 30 Neb. App. 120

otherwise “improperly suggest[] that the evidence, and the 

argument of counsel, was not an issue.” Brief for appellant at 

13. Hoops’ counsel was fully able to bring to the jury’s attention the absence of a flushed face and other countervailing 

evidence and arguments weighing against the State’s claim that 

Hoops was impaired. We therefore find the county court’s decision to sustain the State’s objection was not reversible error, 

and the district court did not err in affirming the judgment of 

the county court.

CONCLUSION

For the reasons set forth above, we affirm the district court’s 

order affirming Hoops’ convictions and sentences.

Affirmed.