State v. Hoops , 30 Neb. Ct. App. 120 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/24/2021 08:08 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. HOOPS
Cite as 30 Neb. App. 120State 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 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. 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 dis-
cretion of the trial court, and absent an abuse of that discretion, the trial
court’s ruling regarding final argument will not be disturbed.
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STATE v. HOOPS
Cite as 30 Neb. App. 1208. 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 show-
ing probable cause either for an arrest or for administering a chemi-
cal test.
11. Trial: Arrests: Blood, Breath, and Urine Tests: Evidence. The admis-
sibility 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 com-
ment 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
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STATE v. HOOPS
Cite as 30 Neb. App. 120of 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 sen-
tences 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 out-
side 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
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STATE v. HOOPS
Cite as 30 Neb. App. 120horizontal gaze nystagmus test, and Officer Brown observed
Hoops “kind of leaning and then swaying back and forth” dur-
ing 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 declin-
ing 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 per-
form 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 there-
after 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 subse-
quently filed an amended complaint on March 18, 2019, charg-
ing 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?
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STATE v. HOOPS
Cite as 30 Neb. App. 120A. Things we know to look for, slurred speech, confu-
sion, 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 any-
thing 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.
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Cite as 30 Neb. App. 120Q. 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 alco-
hol, 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 driv-
ing 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 influ-
ence 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 dis-
trict court alleging that “[t]he court erred in admitting evi-
dence at trial” and “[t]here was insufficient evidence.” A
hearing before the district court took place on March 20, 2020.
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STATE v. HOOPS
Cite as 30 Neb. App. 120Subsequently, on April 22, Hoops filed an amended assign-
ment 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’ allega-
tions about Officer Brown’s testimony relating to the prelimi-
nary 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 pass-
ing 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] sustain-
ing of the objection. While one could consider a legiti-
mate deduction from the evidence to be that an impaired
driver could have a red face, the evidence does not sup-
port 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 [preju-
dice]” caused by the trial judge’s sustaining of the State’s
objection.
Hoops then appealed to this court.
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STATE v. HOOPS
Cite as 30 Neb. App. 120ASSIGNMENTS OF ERROR
Hoops claims “[t]he court erred” in allowing Officer Brown’s
testimony regarding the preliminary breath test and in improp-
erly 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 appel-
late 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 convic-
tions 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 eviden-
tiary 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).
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STATE v. HOOPS
Cite as 30 Neb. App. 120ANALYSIS
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 specifi-
cally 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
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STATE v. HOOPS
Cite as 30 Neb. App. 120district court sitting as an appellate court, the immediate ques-
tion is whether the district court erred in its appellate review of
the county court’s decision, but review of that question neces-
sarily 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 refer-
ences 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 consid-
erations, the preliminary breath test.
[10,11] Evidence of a preliminary breath test may be admit-
ted 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 admin-
istering a chemical test. See State v. Rask, 294 Neb. 612, 883
N.W.2d 688 (2016). For that limited purpose, the admissibility
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STATE v. HOOPS
Cite as 30 Neb. App. 120of 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 admis-
sion 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 pre-
liminary 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 pre-
liminary breath test.” Officer Brown thereafter explained the
basis for his opinion that Hoops “was impaired by an alco-
holic beverage that night operating a vehicle,” stating that he
based that opinion on “the standardized field sobriety tests,
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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 prelimi-
nary 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 dis-
puted. 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 walk-
and-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 pass-
ing references to the preliminary breath test during his testi-
mony. Any error by the county court in this instance was harm-
less, 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
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Cite as 30 Neb. App. 120set forth previously, Hoops’ counsel made the following state-
ment during closing arguments:
And one thing that’s missing — and this is important
because when you’re impaired, when you consumed alco-
hol, 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 fur-
ther 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 dur-
ing 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 ves-
sels 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 com-
ment 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
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Cite as 30 Neb. App. 120flushed 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 sup-
ported by the evidence adduced at trial.
[13] We further conclude that even if the trial judge errone-
ously 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 sub-
stantial 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 argu-
ments, 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 instruc-
tions,” 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
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Cite as 30 Neb. App. 120otherwise “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 atten-
tion 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 deci-
sion 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.