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STATE v. HOFMANN

Cite as 310 Neb. 609

State 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 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. ____: ____: ____. 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 considered 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.

Nebraska Supreme Court Online Library

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

02/18/2022 09:07 AM CST
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7. 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 disqualified 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 information 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 prosecutor,” 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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STATE v. HOFMANN

Cite as 310 Neb. 609

BACKGROUND

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 permit 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 presented her driver’s license and prior firearm purchase certificate 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 element 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 testified that Hofmann never asked her for assistance in reading the application or answering the questions. When people 
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ask questions regarding convictions of felonies, she generally 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 application the day before, but had been “up all night” concerned 

about her answer to the first question. The records clerk testified 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 application. 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 background 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. 609

into 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 accusation 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 letter stated that “according to 18 USC 44 922(g)(1) this disqualifies 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 discussion 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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on 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 statement 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 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. 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 element pursuant to Neb. Rev. Stat. §28-201 is present.” 

2 State v. Comacho, 309 Neb. 494, 960 N.W.2d 739 (2021).

3 Id.
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Nevertheless, Hofmann presents two arguments that, as a matter 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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and 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 identification 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 prohibited 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 violation 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 certificate 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 misdemeanor. As a part of the judgment of conviction, the court 

may order the confiscation of the handgun.
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Other 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 constitute 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, constitutes 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 commit 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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to establish liability with respect to the attendant circumstances 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 providing “false information on an application form for a certificate 

under section 69-2404.” Several familiar principles of statutory 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, ordinary, and popular sense, it being our duty to discover, if possible, the Legislature’s intent from the language of the statute 

itself. 8 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. 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 Id.
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In § 69-2408, though it could have easily done so, the 

Legislature did not describe that it was only a crime to willfully 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 information “on an application form for a certificate under section 

69-2404.” Section 69-2404, in turn, does not limit the information 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 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). 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 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).

[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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from the applicant as to whether the applicant is under felony 

charges is unnecessary information for the purpose of determining 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 determining 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 information “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, regulations, 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 applicant’s full name, address, date of birth, and country of citizenship (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 country of citizenship (and place of birth and alien or admission 

number if not a U.S. citizen).
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Hofmann’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 “complaint,” “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 complainant.” 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 “complaints,” 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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This 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 “information” 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 section 69-2404,” as set forth in § 69-2408, we must look principally 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 information 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 essential 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 “information” the application asked her about encompassed the “complaint” 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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should 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 normally 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 firearm 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 prosecutor. An indictment is from a grand jury).”
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The 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 sentence 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 information. 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 criminally liable for his or her responses to questions that could 

be understood in different ways. Federal courts have developed two legal categories for dealing with claims that a perjury or false statement prosecution is based on responses 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. HOFMANN

Cite as 310 Neb. 609

to ambiguous questions: fundamental ambiguity and arguable 

ambiguity.

Federal courts will treat a question as fundamentally ambiguous 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 fundamentally 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 question 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.