Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. McGinn

Supreme Court of Nebraska

May 24, 2019

State of Nebraska, appellee,
v.
Danny J. McGinn, appellant.

         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.

         [303 Neb. 225] 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.

          Forrest F. Peetz, of Peetz Law, PC, 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 conviction by finding there was sufficient evidence to support [303 Neb. 226] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.