State v. McGuire , 28 Neb. Ct. App. 516 ( 2020 )

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. McGUIRE
Cite as 28 Neb. Ct. App. 516
State of Nebraska, appellee, v.
Jason H. McGuire, appellant.
___ N.W.2d ___
Filed June 16, 2020. No. A-19-693.
1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination whether the
court admitted evidence over a hearsay objection or excluded evidence
on hearsay grounds.
2. Judges: Appeal and Error. The exercise of judicial discretion is
implicit in determining the relevance of evidence, and a trial court’s
decision regarding relevance will not be reversed absent an abuse of
discretion.
3. Constitutional Law: Witnesses: Appeal and Error. An appellate
court reviews de novo a trial court’s determination of the protections
afforded by the Confrontation Clause of the Sixth Amendment to the
U.S. Constitution and reviews the underlying factual determinations
for clear error.
4. Convictions: Evidence: Appeal and Error. Regardless of whether
the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict,
insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favor-
ably to the State, is sufficient to support the conviction.
5. Blood, Breath, and Urine Tests: Drunk Driving: Evidence: Proof.
The four foundational elements which the State must establish as a
foundation for the admissibility of a breath test in a driving under
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the influence prosecution are as follows: (1) that the testing device
was working properly at the time of the testing, (2) that the person
administering the test was qualified and held a valid permit, (3) that
the test was properly conducted under the methods stated by the
Department of Health and Human Services, and (4) that all other stat-
utes were satisfied.
6. Criminal Law: Directed Verdict. In a criminal case, the court can
direct a verdict only when (1) there is a complete failure of evidence
to establish an essential element of the crime charged or (2) evidence is
so doubtful in character and lacking in probative value that a finding of
guilt based on such evidence cannot be sustained.
7. Criminal Law: Directed Verdict: Appeal and Error. In an appellate
court’s consideration of a criminal defendant’s motion for a directed
verdict, the State is entitled to have all its relevant evidence accepted as
true, every controverted fact resolved in its favor, and every beneficial
inference reasonably deducible from the evidence.
Appeal from the District Court for Lancaster County: Kevin
R. McManaman, Judge. Affirmed.
Brad Roth, of McHenry, Haszard, Roth, Hupp, Burkholder
& Blomenberg, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Moore, Chief Judge, and Riedmann and Welch, Judges.
Welch, Judge.
I. INTRODUCTION
Jason H. McGuire appeals his jury conviction for aggra-
vated driving under the influence (DUI), third offense.
McGuire argues that the Lancaster County District Court
erred in overruling his objections to the admission of cer-
tain documents and test results offered in connection with
the DataMaster breath testing device used to test McGuire’s
breath for alcohol at the time of his arrest and in denying his
motion for a directed verdict. For the reasons set forth herein,
we affirm.
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STATE v. McGUIRE
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II. STATEMENT OF FACTS
In August 2018, McGuire was charged with DUI with a
breath alcohol content greater than .15, third offense. A jury
trial was held on May 9 and 10, 2019, with testimony adduced
from Lancaster County sheriff’s deputy Casey Dahlke and
Lincoln police investigator Grant Powell.
1. Dahlke
At trial, Dahlke testified that on April 6, 2018, he observed
McGuire’s swerving his vehicle while driving. After stop-
ping McGuire, Dahlke administered field sobriety tests, the
results of which indicated McGuire was impaired. Dahlke
then arrested McGuire “for the purpose of having him sub-
mit to a chemical test.” Approximately 40 minutes after the
traffic stop, Dahlke, who has a Class B permit to administer
such tests, administered a chemical breath test on DataMaster
serial No. 300402 in accordance with title 177 of the Nebraska
Administrative Code. Dahlke verified the maintenance of the
DataMaster, and then performed the chemical breath test on
McGuire, which indicated a result of .199 of 1 gram of alcohol
per 210 liters of breath.
2. Powell
Powell testified he has been the Lincoln Police Department’s
DataMaster maintenance officer since 2016 and is respon-
sible, along with two other individuals, for maintaining and
testing Lancaster County’s four DataMaster breath testing
instruments, including DataMaster serial No. 300402. To be
a maintenance officer, Powell must hold a Class B permit
from the Department of Health and Human Services (DHHS)
which allows operation of the DataMaster to collect subject
samples. Powell’s Class B permit was originally issued in
March 2004 and has remained valid since that date. Powell is
also charged with providing notice to DHHS identifying those
persons who will be responsible for maintaining the breath
testing instruments.
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STATE v. McGUIRE
Cite as 28 Neb. Ct. App. 516
Powell further testified that the State of Nebraska has
adopted rules and regulations found at title 177 for the testing
of a subject’s alcohol concentration and checking those instru-
ments to ensure they are working properly. Powell expounded
that the DataMaster is approved by title 177 as a method
of testing alcohol in a subject’s breath. Powell indicated his
duties as a maintenance officer include conducting calibration
verification checks on the instrument as required by DHHS and
arranging for any repair of the instrument if it becomes neces-
sary. Powell testified the DataMaster undergoes periodic test-
ing required under title 177 and stated maintenance calibration
tests are performed every 40 days.
Powell testified that DataMaster serial No. 300402 was
placed into service in November 2016 and has been routinely
maintained since that date with, as relevant here, 40-day
calibration checks conducted on March 20 and April 24, 2018.
Sometime after completion of the April 24 check, Powell
learned the certificates of analysis initially sent with the cali-
bration solutions were not signed by the person who tested
the solutions; however, Powell obtained amended certificates
of analysis in early May. Powell indicated the only differ-
ence between the original and amended certificates of analysis
was the change in identity of the person who performed the
test, but that difference did not change his opinion that the
DataMaster was working properly when used to test McGuire’s
breath on April 6.
3. Exhibits
During trial, the State offered multiple exhibits, includ-
ing exhibits 4, 5, and 6, to which McGuire objected based
on relevancy, foundation, and hearsay and on right to con-
frontation grounds. Exhibit 4 contained a certification of
accuracy form, referred to as an “Attachment 5,” and test
results that were completed when the DataMaster serial No.
300402 was placed into service, a certificate of analysis, and
an amended certificate of analysis. Exhibit 5 was composed
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STATE v. McGUIRE
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of calibration verification records, and exhibit 6 contained
certificates of analysis and amended certificates of analysis.
The court overruled the objections and received exhibits 4, 5,
and 6. McGuire also objected on foundational grounds to the
receipt of exhibit 10, which contained the printout showing
McGuire’s DataMaster breath analysis results, but the district
court overruled his objection and received exhibit 10.
4. Verdict and Sentencing
Ultimately, the jury found McGuire guilty of DUI with
a breath alcohol content of 0.15 or more of 1 gram per 210
liters of his breath. The court sentenced McGuire to 3 years’
probation to include 60 days in jail, revoked his license for 7
years with the opportunity to seek an ignition interlock permit
after 45 days, and imposed a $1,000 fine. McGuire has timely
appealed and is represented by the same counsel that repre-
sented him during trial and sentencing.
III. ASSIGNMENTS OF ERROR
McGuire contends, renumbered and restated, that the dis-
trict court erred in (1) overruling his objection to the admis-
sion of documents purporting to certify the accuracy of the
DataMaster, (2) overruling his objection to the admission
of the DataMaster breath analysis results, (3) overruling his
objection to the falsified certificates of analysis purporting to
certify the reliability of test solutions used to verify the cali-
bration of the DataMaster, and (4) denying his motion for a
directed verdict.
IV. STANDARD OF REVIEW
[1] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination whether the court admitted
evidence over a hearsay objection or excluded evidence on
hearsay grounds. State v. Dady, 304 Neb. 649, 936 N.W.2d
486 (2019).
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STATE v. McGUIRE
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[2] The exercise of judicial discretion is implicit in deter-
mining the relevance of evidence, and a trial court’s decision
regarding relevance will not be reversed absent an abuse of
discretion. State v. Draganescu, 276 Neb. 448, 755 N.W.2d
57 (2008).
[3] An appellate court reviews de novo a trial court’s deter-
mination of the protections afforded by the Confrontation
Clause of the Sixth Amendment to the U.S. Constitution and
reviews the underlying factual determinations for clear error.
State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
[4] Regardless of whether the evidence is direct, circum-
stantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insuffi-
ciency of the evidence, or failure to prove a prima facie case,
the standard is the same: In reviewing a criminal conviction,
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, and a conviction will
be affirmed, in the absence of prejudicial error, if the evidence
admitted at trial, viewed and construed most favorably to the
State, is sufficient to support the conviction. State v. Case, 304
Neb. 829, 937 N.W.2d 216 (2020); State v. Stubbendieck, 302
Neb. 702, 924 N.W.2d 711 (2019).
V. ANALYSIS
1. Certificates of Analysis
McGuire’s first three assignments of error on appeal are
based upon an assertion similar to that recently addressed in
State v. Krannawitter, 305 Neb. 66, 939 N.W.2d 335 (2020).
That is, McGuire claims that because original certificates of
analysis associated with testing solutions used to maintain the
DataMaster were incorrect, the test results should have been
omitted from evidence. In Krannawitter, a case involving
original and amended certificates provided by the same per-
sons and laboratory as here, the evidentiary objections were
limited to foundation and violation of confrontation rights.
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McGuire includes those objections and expands his objections
to include hearsay and relevancy. We will analyze those four
objections independently.
(a) Foundation
[5] McGuire raises a foundational objection to the DataMaster
test results. The Nebraska Supreme Court has already squarely
addressed a foundational objection in Krannawitter. There, in
dealing with amended certificates of analysis similar to the
case at bar, the court held:
Krannawitter’s argument on appeal is based on her
assertion that because the original certificates of analysis
were incorrect, there was insufficient foundation to sup-
port the introduction of her chemical breath test results.
The four foundational elements which the State must
establish as a foundation for the admissibility of a breath
test in a [DUI] prosecution are as follows: (1) that the
testing device was working properly at the time of the
testing, (2) that the person administering the test was
qualified and held a valid permit, (3) that the test was
properly conducted under the methods stated by [DHHS],
and (4) that all other statutes were satisfied. The certifi-
cate of analysis at issue in this appeal is required by 177
Neb. Admin. Code, ch. 1, § 008.04A (2016), of [DHHS]
regulations. Krannawitter contends—as set forth above—
that the State did not prove § 008.04A, which requires
that the test be properly conducted under the methods
stated by [DHHS].
But Krannawitter’s assertion that there was improper
foundation overlooks both the framework used to deter-
mine whether a motion for new trial should be granted
and the substantive effect of the amended certificates.
We agree with Krannawitter that together with Palmer’s
affidavit, the amended certificates of analysis showed that
the original certificates were incorrect.
But we do not agree that this fact results in the conclu-
sion that there was no foundation for the admission of
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STATE v. McGUIRE
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the breath test results. In addition to contributing to the
evidence showing that the original certificates were incor-
rect, the amended certificates were independent founda-
tional evidence supporting the admission of those results.
And in addition to even these certificates, there was
other evidence presented at the hearing on the amended
motion for new trial that supported the admissibility of
the results.
State v. Krannawitter, 305 Neb. 66, 76-77, 939 N.W.2d 335,
343-44 (2020).
Although the procedural posture of this case is different,
the foundational question remains the same. Accordingly, we
follow the Nebraska Supreme Court’s analysis. In the present
case, the amended certificates of analysis were offered into
evidence at trial. They provided independent foundational evi-
dence which supported the admission of McGuire’s chemical
breath test results. Additionally, there was other evidence sup-
porting the admissibility of McGuire’s breath test consisting of
Powell’s testimony that the DataMaster was tested on March
20 and April 24, 2018, and was determined to be working
properly and had tested within the acceptable margin of error.
Therefore, the deficiency in the original certificates of analysis
did not render McGuire’s chemical breath test results inadmis-
sible for lack of foundation, and the court did not err in over-
ruling McGuire’s foundational objection on that basis.
McGuire separately argues that the amended certificates
themselves should have been excluded from evidence on
foundational grounds once the integrity of the original cer-
tificates was called into question. As more fully discussed in
the hearsay portion of this opinion, the certificates themselves
were relevant evidence because 177 Neb. Admin. Code, ch. 1,
§ 008.04A (2016), requires that the certificates “accompan[y]”
the wet bath simulator solution used to calibrate the
DataMaster. The certificates were then offered for that pur-
pose, that is, to lay foundation for the admission of McGuire’s
test results. Because the amended certificates, on their face,
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complied with § 008.04A, they were admissible foundational
evidence, and the amended nature of the certificates did noth-
ing to render the certificates inadmissible on foundational
grounds. Stated differently, just as the same amended cer-
tificates and other testimony in State v. Krannawitter, supra,
provided sufficient admissible foundational evidence for the
chemical breath test results in Krannawitter, they provided
sufficient admissible foundational evidence for McGuire’s
chemical breath test results here. As such, McGuire’s first
assignment of error that amended certificates of analysis pro-
vided insufficient foundation for the admission of his chemi-
cal breath test results fails.
(b) Confrontation Clause
McGuire next argues that the district court erred in allow-
ing the certificates of analysis into evidence because such
admission violated his rights under the Confrontation Clause.
Specifically, he argues that the court violated his right to con-
frontation by not allowing him to cross-examine the individuals
who provided the original and amended certificates of analysis
and that, in doing so, the district court erroneously relied upon
State v. Britt, 283 Neb. 600, 813 N.W.2d 434 (2012). Again,
this issue was specifically addressed by the Nebraska Supreme
Court in State v. Krannawitter, 305 Neb. 66, 939 N.W.2d 335
(2020). There, the court held:
Krannawitter also argued that her confrontation rights
were violated when she was not permitted to confront the
witnesses against her, specifically naming Hale. The dis-
trict court rejected this claim in its order, citing to State v.
Fischer[, 272 Neb. 963, 726 N.W.2d 176 (2007),] wherein
this court held that certificates of analysis similar to these
are nontestimonial.
Krannawitter argues that our prior case law is distin-
guishable because there were amended certificates of
analysis, the “primary purpose of [which] was to present
after-the-fact evidence that the calibration verification
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was reliable so that the State could establish that the test-
ing device was working properly at the time the breath
test was administered.” [Brief for appellant at 30-31.]
While we understand the distinction Krannawitter relies
upon, we find that it makes no difference in this case.
In concluding that such certificates of analysis were
nontestimonial, this court in Fischer reasoned that the
statements in a certificate “did not pertain to any particu-
lar pending matter” and that the certificate “was prepared
in a routine manner without regard to whether the cer-
tification related to any particular defendant.” [State v.
Fischer, supra.]
This reasoning is also applicable to the amended cer-
tificates now at issue. There is no indication from the
face of the amended certificates that they were prepared
for a particular criminal proceeding. Rather, the testi-
mony of one of the maintenance officers indicated that
the amended certificates were “additional documentation”
received by the county in connection with the simulator
solutions in the county’s possession and that the only dif-
ference between the original and the amended certificates
was the name of the person who tested the solutions.
State v. Krannawitter, 305 Neb. at 77-78, 939 N.W.2d at 344.
Likewise, the amended certificates offered into evidence
here were not prepared for this or any particular criminal
proceeding. They were provided as additional documenta-
tion received in connection with the simulator solutions and
offered to show compliance with the aforementioned regula-
tion. The only difference in the amended certificate and the
original certificate was the name of the person who tested the
solution. Like in Krannawitter, the amended certificates here
were nontestimonial evidence and their introduction did not
violate McGuire’s rights under the Confrontation Clause.
(c) Hearsay
McGuire next argues that the certificates of analysis were
hearsay evidence and were wrongly admitted over his hearsay
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objection. A similar argument was raised by the defendant in
Krannawitter; however, the Nebraska Supreme Court did not
reach the argument due to the defendant’s failure to raise the
argument in her amended motion for new trial.
In support of his theory, McGuire argues that the certifi-
cates of analysis cannot be considered admissible under the
business records exception to the hearsay rule, because the
source of the information in the record indicates a lack of
trustworthiness and because the State failed to call the proper
custodian of records to lay foundation for admission under
the requirements of Neb. Rev. Stat. § 27-803(5)(b) (Reissue
2016). Both of McGuire’s arguments contemplate that the dis-
trict court admitted the documents under the business records
exception to the hearsay rule. Because we find that, in the
context in which the certificates were offered, they were not
hearsay, we need not consider this argument.
Neb. Rev. Stat. § 27-801(3) (Reissue 2016) provides that
“Hearsay is a statement, other than one made by the declar-
ant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.” A “statement”
is defined by § 27-801(1) as “an oral or written assertion
or . . . nonverbal conduct of a person, if it is intended by him
as an assertion,” and a “declarant” is defined by § 27-801(2)
as a “person who makes a statement.” Finally, Neb. Rev.
Stat. § 27-802 (Reissue 2016) provides that “[h]earsay is not
admissible except as provided by these rules, by other rules
adopted by the statutes of the State of Nebraska, or by the
discovery rules of the Supreme Court.” Accordingly, in this
context, we must first determine whether the offered certifi-
cates of analysis fit the definition of hearsay before exploring
whether the certificates became admissible by exception or
were inadmissible.
This case involves McGuire’s alleged violation of Neb.
Rev. Stat. § 60-6,196 (Reissue 2010). In order to prove that
McGuire failed to comply with that statute, the State offered
evidence of McGuire’s breath test which was obtained by the
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arresting officer, as allowed by Neb. Rev. Stat. § 60-6,197
(Cum. Supp. 2018), following McGuire’s arrest. In relation to
such evidence, Neb. Rev. Stat. § 60-6,201 (Reissue 2010) pro-
vides in relevant part:
(1) Any test made under section 60-6,197, if made in
conformity with the requirements of this section, shall
be competent evidence in any prosecution under a state
statute or city or village ordinance involving operating
a motor vehicle while under the influence of alcoholic
liquor or drugs or involving driving or being in actual
physical control of a motor vehicle when the concen-
tration of alcohol in the blood or breath is in excess of
allowable levels.
....
(3) To be considered valid, tests of blood, breath,
or urine made under section 60-6,197 or tests of blood
or breath made under section 60-6,211.02 shall be per-
formed according to methods approved by [DHHS] and
by an individual possessing a valid permit issued by
[DHHS] for such purpose, except that a physician, reg-
istered nurse, or other trained person employed by a
licensed health care facility or health care service which
is defined in the Health Care Facility Licensure Act
or clinical laboratory certified pursuant to the federal
Clinical Laboratories Improvement Act of 1967, as such
act existed on September 1, 2001, or Title XVIII or XIX
of the federal Social Security Act, as such act existed on
September 1, 2001, to withdraw human blood for scien-
tific or medical purposes, acting at the request of a peace
officer, may withdraw blood for the purpose of a test to
determine the alcohol concentration or the presence of
drugs and no permit from [DHHS] shall be required for
such person to withdraw blood pursuant to such an order.
[DHHS] may approve satisfactory techniques or methods
to perform such tests and may ascertain the qualifica-
tions and competence of individuals to perform such
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tests and issue permits which shall be subject to termina-
tion or revocation at the discretion of [DHHS].
After examining the predecessor statute to § 60-6,201, the
Nebraska Supreme Court set forth four foundational steps the
State must provide in order to “offer in evidence the results of
a breath test for the purpose of establishing that a defendant
was at a particular time operating a motor vehicle while hav-
ing ten-hundredths of one percent or more by weight of alco-
hol in his body fluid.” State v. Gerber, 206 Neb. 75, 90, 291
N.W.2d 403, 411 (1980), overruled on other grounds, State v.
Obermier, 241 Neb. 802, 490 N.W.2d 693 (1992). In order to
do so, the court held:
[T]he State must prove the following: (1) That the test-
ing device or equipment was in proper working order
at the time of conducting the test; (2) That the person
giving and interpreting the test was properly qualified
and held a valid permit issued by [DHHS] at the time of
conducting the test; (3) That the test was properly con-
ducted in accordance with a method currently approved
by [DHHS]; and (4) That there was compliance with any
statutory requirements.
Id. at 90-91, 291 N.W.2d at 411-12. The most recent ver-
sion of those foundational elements first described in Gerber
were provided by the Nebraska Supreme Court in State v.
Krannawitter, 305 Neb. 66, 939 N.W.2d 335 (2020), which we
set forth above.
As noted above, the certificates of analysis being offered
by the State here relate to a specific requirement from DHHS.
Specifically, § 008.04A of title 177 provides that in connec-
tion with testing device calibration and calibration verification
using a wet bath simulator solution:
The wet bath simulator solution . . . must be accompanied
by a certificate of analysis. The certificate of analysis
must contain the following information:
a. Name of the company which prepared the solution;
b. Name of the person who tested the solution;
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c. Solution identification;
d. Chemical analysis of the solution;
e. Expected breath instrument calibration check test
result;
f. Name of the accreditation institution (ISO, NIST,
etc.) for the testing laboratory; and
g. A notarized signature of the responsible individual
(company president of testing operator, e.g.).
As such, in accordance with the third foundational element
as listed in State v. Krannawitter, supra, in order to show com-
pliance with the DHHS rule, the State offered the certificate of
analysis because the regulation required the certificate accom-
pany the wet bath solution used to calibrate the DataMaster.
That certificate then contained all of the information required
under § 008.04A.
Taken together, in order for McGuire’s test results to be
considered valid as set forth in § 60-6,201(3) and to be con-
sidered “competent evidence” of a test made under § 60-6,197,
the State needed to show that the test was properly conducted
under the methods stated by DHHS. One of those methods
required by DHHS involves the calibration of the machine
using a wet bath simulator solution and, in that regard, that
solution must “be accompanied by a certificate of analysis.”
As such, the State was offering the certificate of analysis to
show compliance with the regulation—that is, that the wet
bath solution used to calibrate the DataMaster was “accompa-
nied” by the certificate which contained the required elements
of the regulation, regardless of their truth. Stated differently,
although the certificates contemplated by § 008.04A clearly
amount to a statement by the certificate author reciting the
required contents of the statute, the certificate was not offered
for the truth of the matter asserted. Instead, it was being
offered to show specific compliance with the statutory direc-
tive that the wet solution used to calibrate the DataMaster
was “accompanied” by the required certificate of analysis.
That is not to say that, at trial, McGuire could not challenge
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the contents of the certification or solution used to calibrate
the DataMaster as part of his defense. McGuire was free to
challenge the contents of that certificate at trial if there were
reason to believe the amended certificate somehow had some
bearing on the proper calibration of the DataMaster or whether
it was working properly on the day of his test. But the evi-
dence was properly admissible as nonhearsay evidence to lay
foundation for the admission of McGuire’s test results. For
that reason, McGuire’s argument that the amended certificates
were inadmissible hearsay fails.
(d) Relevancy
McGuire last argues that the amended certificates were not
relevant. In support of that contention, McGuire argues that in
“the present case, the original Certificates of Analysis and the
Amended Certificates of Analysis each gave rise to conflicting
inferences that the other is inaccurate and untrustworthy,” and
that because “this evidence gives rise to conflicting inferences
of equal probability [the aforementioned certificates] cannot be
relevant evidence.” Brief for appellant at 24.
According to the rules of evidence, “[r]elevant evidence
means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be with-
out the evidence.” Neb. Rev. Stat. § 27-401 (Reissue 2016).
“Although relevant, evidence may be excluded if its proba-
tive value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Neb. Rev. Stat. § 27-403
(Reissue 2016).
Regarding the relevance of the certificates of analysis, we
note the only discrepancy between the original certificates
of analysis and the amended certificates of analysis was the
person who tested the solutions. The numerical values on the
original certificates and amended certificates were unchanged.
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These certificates of analysis were used to show compliance
with regulations promulgated by DHHS as discussed above
in order to lay foundation to admit the test results. Clearly,
the certificates fall within the definition of relevant evidence,
and although the amended certificates could open the door
to some conflict with regard to their contents, the probative
value of the certificates of analysis was not substantially out-
weighed by any danger warranting their exclusion. Therefore,
we conclude there is no merit to this argument.
2. Motion For Directed Verdict
Lastly, McGuire argues the district court erred in denying
his motion for directed verdict. More specifically, McGuire
asserts the district court should have excluded his breath test
results, leaving insufficient evidence for a jury to find him
guilty of an aggravated DUI. McGuire contends that in the
alternative, the case should be remanded for a new trial.
[6,7] Regarding directed verdicts, the Nebraska Supreme
Court has explained:
In a criminal case, the court can direct a verdict only
when (1) there is a complete failure of evidence to
establish an essential element of the crime charged or
(2) evidence is so doubtful in character and lacking in
probative value that a finding of guilt based on such
evidence cannot be sustained. In our consideration of a
criminal defendant’s motion for a directed verdict, the
State is entitled to have all its relevant evidence accepted
as true, every controverted fact resolved in its favor,
and every beneficial inference reasonably deducible from
the evidence.
State v. Stanko, 304 Neb. 675, 684, 936 N.W.2d 353, 361
(2019).
As explained previously, the district court did not err in
receiving McGuire’s breath test results or the certificates of
analysis that certified the accuracy of the DataMaster and the
reliability of test solutions used to verify the DataMaster’s
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. McGUIRE
Cite as 28 Neb. Ct. App. 516
calibration. Thus, the evidence was sufficient for a jury to con-
clude McGuire was guilty of an aggravated DUI and for the
trial court to overrule McGuire’s motion for directed verdict.
Therefore, we conclude there is no merit to this assigned error,
and we decline remanding the cause for a new trial.
VI. CONCLUSION
For the reasons previously discussed, we affirm the district
court’s receipt of McGuire’s breath test results and support-
ing documentation and affirm the district court’s denial of
McGuire’s motion for directed verdict.
Affirmed.