State v. Hofmann

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/24/2021 12:07 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. HOFMANN
Cite as 310 Neb. 609State of Nebraska, appellee, v.
Tanya L. Hofmann, appellant.
___ N.W.2d ___
Filed December 17, 2021. No. S-21-104.
1. Convictions: Evidence: Appeal and Error. 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 mat-
ters 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.
2. ____: ____: ____. When a criminal defendant challenges the sufficiency
of the evidence upon which a conviction is based, 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.
3. Statutes: Legislature: Intent. In discerning the meaning of a statute,
a court must determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the statute con-
sidered in its plain, ordinary, and popular sense, it being a court’s duty
to discover, if possible, the Legislature’s intent from the language of the
statute itself.
4. ____: ____: ____. Components of a series or collection of statutes
pertaining to a certain subject matter may be conjunctively considered
and construed to determine the intent of the Legislature so that different
provisions of an act are consistent, harmonious, and sensible.
5. Criminal Law: Statutes. Penal statutes must be strictly construed and
are considered in the context of the object sought to be accomplished,
the evils and mischiefs sought to be remedied, and the purpose sought
to be served.
6. ____: ____. A penal statute will not be applied to situations or parties
not fairly or clearly within its provisions.
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STATE v. HOFMANN
Cite as 310 Neb. 6097. Statutes: Words and Phrases. The word “include,” as used in a statute,
connotes that the provided list of components is not exhaustive and that
there are other items includable that are not specifically enumerated.
8. Criminal Law: Weapons: Records. Nothing in Neb. Rev. Stat.
§ 69-2409 (Reissue 2018), or any other provision of the statutory
scheme pertaining to handguns, limits a background check as the sole
means of obtaining the information of whether an applicant is disquali-
fied from purchasing or possessing a handgun.
Appeal from the District Court for Scotts Bluff County:
Andrea D. Miller, Judge. Affirmed.
Bell Island, of Island Law Office, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
In an appeal from a conviction of attempted false informa-
tion on a gun permit application, the defendant asserts there
was insufficient evidence to support the conviction, because
the alleged false information was not about the defendant’s
name, address, date of birth, or country of citizenship, which is
the information that by statute the application “shall include.” 1
The defendant was under a “complaint” for a felony in county
court at the time of the application and asserts in the alternative
that answering “no” to whether she was under an “indictment”
or “information” in any court, with the application defining
“information” as “a formal accusation of a crime by a pros-
ecutor,” was not false, because, by statute and case law, until
there is a bindover from county court to district court after
a finding of probable cause, felony charges are contained in
a “complaint.”
1
Neb. Rev. Stat. § 69-2404 (Reissue 2018).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. HOFMANN
Cite as 310 Neb. 609BACKGROUND
Following a stipulated bench trial, Tanya L. Hofmann was
convicted of attempted false information on a gun permit
application, in violation of Neb. Rev. Stat. §§ 28-201(4)(e)
(Cum. Supp. 2020) and 69-2408 (Reissue 2018). Hofmann was
fined $400 and assessed costs of $137. Hofmann now appeals
this conviction. We granted the State’s petition to bypass the
Nebraska Court of Appeals.
Hofmann’s conviction stems from when she applied for a
firearm purchase permit. Hofmann went to the Scotts Bluff
County sheriff’s office on January 8, 2020, to apply for a per-
mit to purchase, lease, rent, or receive transfer of a firearm.
After providing her biographical information (name, address,
date of birth, Social Security number, height, weight, country
of citizenship, et cetera) on the application, she answered a
series of additional questions. The first question asked, “Are
you under indictment or information in any court for a felony,
or any other crime for which the judge could imprison you for
more than one year? (An information is a formal accusation of
a crime by a prosecutor. An indictment is from a grand jury.)”
Hofmann circled “NO” on this question. Hofmann then pre-
sented her driver’s license and prior firearm purchase certifi-
cate to the sheriff’s office employee collecting her application
material and paid the $5 fee for the background check.
For the purposes of the bench trial, the parties stipulated (1)
that all events occurred in Scotts Bluff County, Nebraska; (2)
that “Tanya Hofmann” in the present case is the same “Tanya
Hofmann” who applied for a firearm permit on January 8, 2020,
at the Scotts Bluff County sheriff’s office and the same “Tanya
Hofmann” who was charged in Clay County, Nebraska, in case
No. CR 19-184; and (3) that “any intent necessary for an ele-
ment pursuant to Neb. Rev. Stat. §28-201 is present.”
In a deposition received as part of the stipulated trial, the
sheriff’s office employee who collected the application testi-
fied that Hofmann never asked her for assistance in read-
ing the application or answering the questions. When people
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STATE v. HOFMANN
Cite as 310 Neb. 609ask questions regarding convictions of felonies, she gener-
ally would find out what their charge was and then ask the
chief deputy or sheriff whether the charge was a felony or
misdemeanor.
The deposition of a records clerk at the sheriff’s office was
also received as part of the stipulated trial. She testified that
she received a call from Hofmann on the morning of January 9,
2020. Hofmann informed her she had filled out a firearm appli-
cation the day before, but had been “up all night” concerned
about her answer to the first question. The records clerk testi-
fied that Hofmann stated she did not have her glasses and could
not see the question very well, but was concerned that she had
answered the question incorrectly. Hofmann asked whether she
could change her answer or otherwise withdraw her applica-
tion. The records clerk told Hofmann that the application had
already “gone downstairs,” meaning a background check had
already been done, but that she would let the chief deputy
know and he could decide. The chief deputy, having received
all of the application materials and aware of the records clerk’s
conversation with Hofmann, determined that Hofmann could
not change or withdraw her application.
In accordance with its standard procedures, the sheriff’s
office used Hofmann’s name and date of birth to run a back-
ground check. The background check revealed that in October
2019, Hofmann was charged by complaint in the county court
for Clay County for possession of a controlled substance, a
Class IV felony, among other misdemeanor and infraction
offenses. The felony charge in the complaint in Clay County
for possession of a controlled substance was bound over to
district court on February 4, 2020, and the other charges
were dismissed. An information was filed in district court on
February 7, approximately 1 month after Hofmann filed her
application.
Based on the initial background check, which showed
a felony charge against Hofmann, the chief deputy denied
Hofmann’s application. He testified by deposition, entered
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STATE v. HOFMANN
Cite as 310 Neb. 609into evidence as part of the stipulated trial, that the denial
of the application was not based on Hofmann’s response to
the question in the application about whether she was under
indictment or information in any court for a felony. Rather, he
explained that a formal charge by a prosecutor of a crime that
could cause someone to be in jail for a year or more is one of
the prohibitions under 18 U.S.C. § 922 (2018) that prohibits
someone from obtaining a firearm.
The chief deputy drafted a denial letter that was sent to
Hofmann citing the reason for the denial. He notified Hofmann
in this letter that she had circled “NO” on the first question,
which indicated she was not “under indictment or formal accu-
sation of a crime by a prosecutor,” but that his research revealed
she was charged on October 14, 2019, with the felony offense
of possession of a controlled substance in Clay County. His let-
ter stated that “according to 18 USC 44 922(g)(1) this disquali-
fies you from being issued the Firearms Purchase Permit.”
Exhibits entered into evidence for purposes of the bench
trial show that the charges against Hofmann were, at the time
she filled out the application, brought in county court through
a “complaint.” Approximately a month after her application,
Hofmann’s charges were moved to district court under an
“information.”
In rendering its verdict, the district court observed that the
parties stipulated to the requisite intent of Hofmann for each
element necessary under § 28-201 for this crime. Thus, the
court continued, “[t]he sole question in this case is whether
. . . Hofmann willfully provided false information on the
application,” and resolving that question involved a discus-
sion of whether Hofmann was “‘under an information.’” The
court found, “There is no doubt that . . . Hofmann knew she
was charged with a Class IV felony in Clay County” when
she filled out her application and that these charges were
included in the application’s definition of an “information” as
“‘a formal accusation of a crime by a prosecutor.’” The court
therefore found Hofmann willfully provided false information
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STATE v. HOFMANN
Cite as 310 Neb. 609on the application. Further, the district court concluded that
“Hofmann’s conduct constituted a substantial step in a course
of conduct intended to culminate in her commission of the
crime by filling out the application, signing her name to the
application, paying the fee and leaving the application with [a
sheriff’s office employee].”
ASSIGNMENTS OF ERROR
Hofmann assigns that the evidence was insufficient to find
her guilty, because the district court erred in (1) finding that
the statute allowed the State to pursue a charge for any state-
ment provided other than the express statutory language of
name, address, date of birth, and country of citizenship and (2)
determining that a county court complaint was an indictment or
information and that she provided false information.
STANDARD OF REVIEW
[1] In reviewing a criminal conviction, an appellate court
does not resolve conflicts in the evidence, pass on the cred-
ibility 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. 2
[2] When a criminal defendant challenges the sufficiency
of the evidence upon which a conviction is based, 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. 3
ANALYSIS
Hofmann stipulated that “any intent necessary for an ele-
ment pursuant to Neb. Rev. Stat. §28-201 is present.”
2
State v. Comacho, 309 Neb. 494, 960 N.W.2d 739 (2021).
3
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STATE v. HOFMANN
Cite as 310 Neb. 609Nevertheless, Hofmann presents two arguments that, as a mat-
ter of law under the stipulated facts, the evidence is insufficient
to support her conviction of attempting to “willfully provide[]
false information on an application form for a certificate under
section 69-2404,” in violation of § 69-2408. First, Hofmann
argues that an applicant cannot attempt to violate § 69-2408
when the information that was false was not information
listed in § 69-2404 as to what the application “shall include.”
Second, Hofmann argues that an applicant who was charged
under a “complaint” in county court pending a preliminary
finding of probable cause cannot attempt to violate § 69-2408
when the information in the application that was false was
that the applicant was not “under indictment or information in
any court for a felony, or any other crime for which the judge
could imprison you for more than one year”—even when the
application specifically defined an “information” as “a formal
accusation of a crime by a prosecutor.”
Neb. Rev. Stat. §§ 69-2401 to 69-2426 (Reissue 2018)
concern the purchase of handguns. Section 69-2424 provides,
“The Nebraska State Patrol shall adopt and promulgate rules
and regulations to carry out sections 69-2401 to 69-2425.”
With certain exceptions not applicable here, no person shall
purchase, lease, rent, or receive transfer of a handgun until a
certificate in accordance with § 69-2404 has been obtained. 4
Section 69-2404 describes the application for such
certificate:
Any person desiring to purchase, lease, rent, or receive
transfer of a handgun shall apply with the chief of police
or sheriff of the applicant’s place of residence for a
certificate. The application may be made in person or
by mail. The application form and certificate shall be
made on forms approved by the Superintendent of Law
Enforcement and Public Safety. The application shall
include the applicant’s full name, address, date of birth,
4
See § 69-2403.
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STATE v. HOFMANN
Cite as 310 Neb. 609and country of citizenship. If the applicant is not a United
States citizen, the application shall include the applicant’s
place of birth and his or her alien or admission number.
If the application is made in person, the applicant shall
also present a current Nebraska motor vehicle operator’s
license, state identification card, or military identification
card, or if the application is made by mail, the application
form shall describe the license or card used for identifica-
tion and be notarized by a notary public who has verified
the identification of the applicant through such a license
or card. An applicant shall receive a certificate if he or
she is twenty-one years of age or older and is not pro-
hibited from purchasing or possessing a handgun by 18
U.S.C. 922. A fee of five dollars shall be charged for each
application for a certificate to cover the cost of a criminal
history record check.
Section 69-2405 states that the chief of police or sheriff
shall deny the certificate if it is determined that the purchase
or possession of a handgun by the applicant would be in viola-
tion of applicable federal, state, or local law. Further, the chief
of police or sheriff has 3 days to conduct an investigation to
determine whether the applicant is prohibited by law from
purchasing or possessing a handgun, after which time the cer-
tificate shall be either issued or denied with specific reasons, in
writing, for the denial.
Section 69-2408 describes the felony of providing false
information on an application for a certificate authorizing the
holder to acquire handguns:
Any person who willfully provides false information on
an application form for a certificate under section 69-2404
shall, upon conviction, be guilty of a Class IV felony, and
any person who intentionally violates any other provision
of sections 69-2401, 69-2403 to 69-2407, and 69-2409.01
shall, upon conviction, be guilty of a Class I misde-
meanor. As a part of the judgment of conviction, the court
may order the confiscation of the handgun.
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STATE v. HOFMANN
Cite as 310 Neb. 609Other provisions of §§ 69-2401 to 69-2425 pertain to
Nebraska’s automated criminal history files, 5 a database for
firearms-related disabilities, 6 and restrictions on the sale or
delivery of handguns. 7
Under § 69-2409.01(1),
[f]or purposes of sections 69-2401 to 69-2425, the
Nebraska State Patrol shall be furnished with only such
information as may be necessary for the sole purpose of
determining whether an individual is disqualified from
purchasing or possessing a handgun pursuant to state
law or is subject to the disability provisions of 18 U.S.C.
922(d)(4) and (g)(4).
Section 69-2420 makes it a Class IV felony for any person
to knowingly and intentionally make any materially false oral
or written statement or knowingly and intentionally furnish any
false identification intended or likely to deceive the licensee in
connection with the purchase, transfer, or attempted purchase
of a handgun pursuant to sections 69-2410 to 69-2423.
Section 28-201 defines criminal attempt:
(1) A person shall be guilty of an attempt to commit a
crime if he or she:
(a) Intentionally engages in conduct which would con-
stitute the crime if the attendant circumstances were as he
or she believes them to be; or
(b) Intentionally engages in conduct which, under the
circumstances as he or she believes them to be, consti-
tutes a substantial step in a course of conduct intended to
culminate in his or her commission of the crime.
(2) When causing a particular result is an element of
the crime, a person shall be guilty of an attempt to com-
mit the crime if, acting with the state of mind required
5
See § 69-2409. See, also, §§ 69-2411, 69-2412, 69-2414 to 69-2416, and
69-2419.
6
See § 69-2409.01.
7
§ 69-2410. See, also, §§ 69-2417, 69-2418, 69-2421, and 69-2422.
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STATE v. HOFMANN
Cite as 310 Neb. 609to establish liability with respect to the attendant circum-
stances specified in the definition of the crime, he or she
intentionally engages in conduct which is a substantial
step in a course of conduct intended or known to cause
such a result.
(3) Conduct shall not be considered a substantial step
under this section unless it is strongly corroborative of the
defendant’s criminal intent.
[3-6] Hofmann’s first argument is that § 69-2408 must be
read together with § 69-2404 such that only false information
pertaining to the applicant’s full name, address, date of birth,
and country of citizenship can constitute the crime of provid-
ing “false information on an application form for a certificate
under section 69-2404.” Several familiar principles of statu-
tory construction are relevant to our analysis. In discerning
the meaning of a statute, we must determine and give effect to
the purpose and intent of the Legislature as ascertained from
the entire language of the statute considered in its plain, ordi-
nary, and popular sense, it being our duty to discover, if pos-
sible, the Legislature’s intent from the language of the statute
itself. 8 Components of a series or collection of statutes pertain-
ing to a certain subject matter may be conjunctively consid-
ered and construed to determine the intent of the Legislature
so that different provisions of an act are consistent, harmoni-
ous, and sensible. 9 Penal statutes must be strictly construed
and are considered in the context of the object sought to be
accomplished, the evils and mischiefs sought to be remedied,
and the purpose sought to be served. 10 A penal statute will not
be applied to situations or parties not fairly or clearly within
its provisions. 11
8
Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988, 759 N.W.2d
75 (2009).
9
Id.10
See id.11
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STATE v. HOFMANN
Cite as 310 Neb. 609In § 69-2408, though it could have easily done so, the
Legislature did not describe that it was only a crime to will-
fully provide false information as to the applicant’s full name,
address, date of birth, and country of citizenship and, if the
applicant is not a U.S. citizen, as to the applicant’s place of
birth and his or her alien or admission number. Section 69-2408
instead states it is a crime to willfully provide false informa-
tion “on an application form for a certificate under section
69-2404.” Section 69-2404, in turn, does not limit the informa-
tion requested in the application to the applicant’s full name,
address, date of birth, and country of citizenship and, if the
applicant is not a U.S. citizen, as to the applicant’s place of birth
and his or her alien or admission number. Rather, § 69-2404
states the application “shall include” that information.
[7] The word “include,” as used in a statute, connotes that
the provided list of components is not exhaustive and that there
are other items includable that are not specifically enumer­
ated. 12 Nevertheless, Hofmann relies on § 69-2409.01, which
states that the Nebraska State Patrol shall be furnished with
only such information as may be necessary for the sole pur-
pose of determining whether an individual is disqualified from
purchasing or possessing a handgun pursuant to state law or is
subject to the disability provisions of 18 U.S.C. § 922(d)(4) and
(g)(4). Hofmann does not directly contend the application form
violates § 69-2409.01, but she points out that an applicant’s
full name, address, date of birth, and country of citizenship is
sufficient information for the chief of police or sheriff to run a
background check and determine whether an individual is dis-
qualified from purchasing or possessing a handgun pursuant to
state law or is subject to the disability provisions of 18 U.S.C.
§ 922(d)(4) and (g)(4).
[8] Assuming without deciding that § 69-2409 controls
application forms, it does not follow that direct information
12
In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020); State v.
Jedlicka, 305 Neb. 52, 938 N.W.2d 854 (2020).
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STATE v. HOFMANN
Cite as 310 Neb. 609from the applicant as to whether the applicant is under felony
charges is unnecessary information for the purpose of deter-
mining whether an individual is disqualified from purchasing
or possessing a handgun. Such charges would, under 18 U.S.C.
§ 922, disqualify the applicant from purchasing a handgun.
The information thus relates to the sole purpose of determin-
ing whether the individual is disqualified from purchasing or
possessing a handgun and not to any impermissible purpose.
Nothing in § 69-2409, or any other provision of the statutory
scheme pertaining to handguns, limits a background check
as the sole means of obtaining the information of whether
an applicant is disqualified from purchasing or possessing
a handgun.
Section 69-2408 makes it a crime to provide false infor-
mation “on an application form” that was approved by the
Superintendent of Law Enforcement and Public Safety and is
in compliance with any rules and regulations adopted by the
Nebraska State Patrol and the governing statutes. Hofmann
does not contest that the application form was duly approved
and was in compliance with all governing rules, regula-
tions, and statutes. We decline Hofmann’s invitation to read
§ 69-2408 as making it a felony to provide false information
only with respect to the minimum information of the appli-
cant’s full name, address, date of birth, and country of citizen-
ship (and place of birth and alien or admission number if not a
U.S. citizen), while shielding the applicant who provides false
information in response to other lawful inquiries under the
application. Even in light of principles of strict construction
and reading § 69-2408 together with § 69-2404, we find no
merit to Hofmann’s argument that an applicant cannot attempt
to provide false information in violation of § 69-2408 simply
because the false information in question was something other
than the applicant’s full name, address, date of birth, and coun-
try of citizenship (and place of birth and alien or admission
number if not a U.S. citizen).
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STATE v. HOFMANN
Cite as 310 Neb. 609Hofmann’s remaining argument is that the application form
should be read together with statutes and case law describing
that until there is a bindover to district court after a finding
of probable cause, a felony charge in county court is under a
“complaint.” According to Hofmann, this understanding of an
“information” versus a “complaint” supersedes the definition
of “information” in the application as “a formal accusation of
a crime by a prosecutor.” Therefore, because the application
did not ask Hofmann whether she was under a “complaint,”
she could not have attempted to make a false statement in the
application by answering “no” to the question of whether she
was under indictment or information in any court for a felony,
or any other crime for which the judge could imprison the
applicant for more than 1 year.
We observe that no statute expressly defines the terms “com-
plaint,” “information,” or even “indictment.” Neb. Rev. Stat.
§ 29-1602 (Cum. Supp. 2020), relied on by Hofmann, states,
“All informations shall be filed in the court having jurisdiction
of the offense specified therein, by the prosecuting attorney
of the proper county as informant.” Neb. Rev. Stat. § 29-404(Reissue 2016) describes that “[n]o complaint shall be filed
with the magistrate unless such complaint is in writing and
signed by the prosecuting attorney or by any other complain-
ant.” Neb. Rev. Stat. § 29-1501 (Reissue 2016) states various
potential omissions from indictments that shall not render
them invalid.
However, Hofmann points out that under Neb. Rev. Stat.
§ 29-1607 (Reissue 2016), “[n]o information shall be filed
against any person for any offense until such person shall have
had a preliminary examination . . . .” And we have treated
“informations” filed before a preliminary hearing as “com-
plaints,” such that the speedy trial period does not run on the
“information” 13 until after the preliminary hearing. 14
13
See Neb. Rev. Stat. § 29-1207(2) (Reissue 2016).
14
See State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999).
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STATE v. HOFMANN
Cite as 310 Neb. 609This authority is not an overly clear mandate that charges
brought in county court before a preliminary hearing must be
considered brought under “complaints” for all purposes. More
to the point, Hofmann cites to no authority for her assumption
that statutory or case law definitions of these terms should
control over the explicit definition of “information” set forth in
the application here at issue. The application defined “informa-
tion” as “a formal accusation of a crime by a prosecutor.” In
determining whether the applicant has attempted to give “false
information on an application form for a certificate under sec-
tion 69-2404,” as set forth in § 69-2408, we must look princi-
pally to the language of the application form.
There is no dispute that under the definition of “information”
set forth in the application form, Hofmann was under informa-
tion in any court for a felony, or any other crime for which the
judge could imprison her for more than 1 year. This is because,
effectively, the definition set forth in the approved application
form defines “informations” as encompassing “complaints.”
Under the definition set forth in the application, Hofmann’s
response in the negative was false.
Viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the essen-
tial elements of the crime of attempted false information on
a gun permit application, in violation of §§ 28-201(4)(e) and
69-2408. The application form defined the term “information”
to encompass the charges against Hofmann in the “complaint”
brought in county court, and a rational trier of fact could
accordingly have found Hofmann believed that the “informa-
tion” the application asked her about encompassed the “com-
plaint” she had been charged with. The statutory scheme does
not limit the “false information” under § 69-2408 to the basic
data which is listed in § 69-2404 and which is sufficient to
run a background search. It can encompass the charges against
Hofmann, which disqualified her from purchasing a gun. We
can find no merit to Hofmann’s assertion that her conviction
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Cite as 310 Neb. 609should be set aside, especially when Hofmann stipulated to the
necessary mens rea for the crime.
That said, we are concerned by the fact that the application
form defines “information” differently than how courts nor-
mally understand that term. Differing definitions for different
purposes before different authorities can lead to confusion on
the part of the applicant. It is self-evident that the application
form should be as clear as possible. When it is not, mistakes
can be made. And when terms in the application are defined
inconsistently with their use elsewhere, there are more likely to
be factual questions about whether an applicant has provided
false information on the application “willfully,” as is required
to commit the crime set forth in § 69-2408.
But, again, due to the stipulated facts, Hofmann does not
argue that the evidence was insufficient because she was
confused about “informations” versus “complaints.” Hofmann
chose to narrow the issues in this case to two questions of law.
As already explained, we find neither of those questions to
have merit.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
Papik, J., concurring.
The conviction Tanya L. Hofmann challenges in this appeal
stems from an answer she provided to a question on a fire-
arm permit application. Although I believe an argument can
be made that the question on the application was ambiguous,
under the circumstances, I agree that Hofmann’s conviction
should be affirmed.
The question at issue asked, “Are you under indictment or
information in any court for a felony, or any other crime for
which the judge could imprison you for more than one year?
(An information is a formal accusation of a crime by a pros-
ecutor. An indictment is from a grand jury).”
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STATE v. HOFMANN
Cite as 310 Neb. 609The majority finds the language in parentheses to include
a definition of the term “information” for purposes of the
application form. As the majority understands it, the first sen-
tence in the parentheses defines “information” to include any
formal accusation of a crime by a prosecutor and thus would
encompass complaints filed in county court. I agree that is a
possible understanding of the question, but I am not sure it is
the only one.
Some inferences must be made to understand the language
in the parentheses to provide a definition of “information”
for purposes of the application. The language does not say
it is setting forth a definition. Further, the references to both
“information” and “indictment” read more like explanatory
statements than exhaustive definitions: The language does not
state that any formal accusation of a crime by a prosecutor
should be treated as an information, only that an information is
a formal accusation of a crime by a prosecutor; the reference
to “indictment” is even more cursory. And, most importantly,
as the majority opinion acknowledges, in Nebraska the term
“information” is generally used to refer to a particular type of
formal accusation of a crime by a prosecutor—one that is filed
in district court either after a county court holds a preliminary
hearing and finds probable cause exists to charge the defendant
with a crime in the case of an ordinary information or one that
is filed initially in the district court in the case of a direct infor-
mation. See, e.g., State v. Boslau, 258 Neb. 39, 601 N.W.2d
769 (1999). Based on all this, I believe it is possible that an
applicant could understand the question to be asking whether
he or she was under an information as that term is generally
used under Nebraska law, i.e., under an information filed in
district court.
There are obvious concerns about holding a person crimi-
nally liable for his or her responses to questions that could
be understood in different ways. Federal courts have devel-
oped two legal categories for dealing with claims that a per-
jury or false statement prosecution is based on responses
- 625 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. HOFMANN
Cite as 310 Neb. 609to ambiguous questions: fundamental ambiguity and arguable
ambiguity.
Federal courts will treat a question as fundamentally ambig-
uous in narrow circumstances, when the question lacks “‘a
meaning about which men of ordinary intellect could agree,
nor one which could be used with mutual understanding by a
questioner and answerer unless it were defined at the time it
were sought and offered as testimony.’” U.S. v. Strohm, 671
F.3d 1173, 1179 (10th Cir. 2011). If a question is fundamen-
tally ambiguous, a response to it cannot be the basis for false
statement liability. Id. Whether a question is fundamentally
ambiguous is decided by the court as a matter of law. Id. See,
also, United States v. Lighte, 782 F.2d 367 (2d Cir. 1986).
A question is arguably ambiguous, on the other hand, where
“more than one reasonable interpretation of a question exists.”
Strohm, 671 F.3d at 1181. Even when a question is arguably
ambiguous, a person can still intend to give and, in fact, give a
false answer. Accordingly, the meaning of an arguably ambig­
uous question and what the defendant understood the question
to mean are to be determined by the finder of fact and reviewed
for sufficiency of the evidence. Id.In this case, Hofmann presented no argument that the ques-
tion was so ambiguous that she could not attempt to give a
false answer as a matter of law. And while perhaps Hofmann
could have developed an argument in the district court that
due to ambiguity, she misunderstood the question at issue and
did not intend to give a false answer, I do not believe she can
now show that there was insufficient evidence to support her
conviction. Viewing the evidence in the light most favorable
to the prosecution, I believe a rational trier of fact could have
found that the language in parentheses defined “information”
to encompass any formal accusation of a crime by a prosecutor
and that Hofmann understood the question and intended to give
a false response, especially in light of Hofmann’s stipulation to
the necessary intent for the crime.