State v. Planck

510 	289 NEBRASKA REPORTS
State of NebraSka, appellee, v.
Sarah e. plaNck, appellaNt.
856 N.W.2d 112
Filed November 14, 2014. 	No. S-14-151.
1. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, regarding which an appellate court is obligated to reach a conclu-
sion independent of the determination reached by the trial court.
2. Entrapment: Estoppel: Appeal and Error. An appellate court reviews the
denial of the defense of entrapment by estoppel de novo, because it is a question
of law.
3. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any
time by any party or by the court sua sponte.
4. Jurisdiction: Words and Phrases. Subject matter jurisdiction is a court’s power
to hear and determine a case in the general class or category to which the pro-
ceedings belong and to deal with the general subject involved in the action before
the court and the particular question which it assumes to determine.
5. ____: ____. Strictly speaking, “jurisdiction” refers to a court’s adjudicatory
authority. Accordingly, the term “jurisdictional” properly applies only to prescrip-
tions delineating the classes of cases (subject matter jurisdiction) and the persons
(personal jurisdiction) implicating that authority.
6. Motor Vehicles: Licenses and Permits: Revocation. Impoundment of an opera-
tor’s license is governed by a statute authorizing a court to revoke or impound
a license.
7. Jury Instructions: Proof: Appeal and Error. To establish reversible error from
a court’s refusal to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement of the law, (2) the
tendered instruction is warranted by the evidence, and (3) the appellant was
prejudiced by the court’s refusal to give the tendered instruction.
8. Criminal Law: Entrapment: Estoppel. The elements of the defense of entrap-
ment by estoppel are: (1) The defendant acted in good faith before taking any
action; (2) an authorized government official, acting with actual or apparent
authority and who had been made aware of all relevant historical facts, affirm-
atively told the defendant that his or her conduct was legal; (3) the defendant
actually relied on the statements of the government official; and (4) such reliance
was reasonable.
9. Courts: Jury Instructions. A trial court need not instruct the jury on an issue
where the facts do not justify such an instruction.
10. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for Platte County, robert r.
SteiNke, Judge, on appeal thereto from the County Court for
Platte County, fraNk J. Skorupa, Judge. Judgment of District
Court affirmed.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:33 AM CST

STATE v. PLANCK 	511
Cite as 289 Neb. 510
Nathan J. Sohriakoff, Deputy Platte County Public Defender,
for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
heavicaN, c.J., Wright, coNNolly, StephaN, MccorMack,
M iller-lerMaN, and caSSel, JJ.
caSSel, J.
INTRODUCTION
Sarah E. Planck appeals from a district court judgment
affirming her county court conviction and sentence for driv-
ing while her motor vehicle operator’s license was adminis-
tratively revoked “on points.” She focuses on the trial court’s
refusal to give an instruction on entrapment by estoppel.
To support the defense, she pointed to a different court’s
earlier return of her operator’s license following a period
of impoundment as part of a sentence for reckless driving.
Because this conduct did not amount to an affirmative repre-
sentation that it was legal for her to drive, the trial court cor-
rectly refused the instruction and the district court correctly
affirmed on appeal.
BACKGROUND
NaNce couNty iMpouNdMeNt
for reckleSS driviNg
We first summarize the facts relating to Planck’s earlier
conviction for reckless driving, which conviction occurred on
November 5, 2012, in the county court for Nance County. In
connection with that conviction, the court impounded Planck’s
operator’s license for 60 days, beginning November 8. Planck
applied for a “work permit,” and the court authorized Planck
to drive between her house and her place of employment dur-
ing the period of impoundment.
After the period of impoundment expired, Planck received
her operator’s license in the mail. Although Planck testi-
fied that it was accompanied by a “handwritten letter” from
“Nance County,” the letter was not offered in evidence.
She did not testify regarding the exact date the license was

512 	289 NEBRASKA REPORTS
returned; rather, she related the time to the expiration of the
60-day impoundment period, which she equated to January
7, 2013.
adMiNiStrative revocatioN
oN poiNtS
We next summarize the evidence regarding the admin-
istrative 	revocation 	of 	Planck’s 	motor 	vehicle 	operator’s
license. The Nebraska Department of Motor Vehicles (DMV)
received notice from the county court for Nance County of
Planck’s conviction and the impoundment of her license.
A court’s impoundment of a license is a separate process
from the DMV’s administrative revocation procedure. Due
to the conviction, the DMV assessed Planck 5 points under
Nebraska’s point system.1 Consequently, the records of the
DMV showed that Planck had accumulated 12 or more points
in a 2-year period, resulting in summary revocation of her
operator’s license.2
On November 7, 2012, the DMV mailed a letter to Planck
stating that her license was revoked for 6 months, from
November 7 until May 7, 2013. The DMV sent the revocation
letter to Planck’s last known address, which was an address in
Monroe, Nebraska. The letter was sent by first-class mail. It
was not returned to the DMV as undelivered.
On November 26, 2012, the DMV issued a “License Pickup
Order,” directing the Platte County sheriff to retrieve Planck’s
operator’s license and listing Planck’s address in Monroe,
which is located in Platte County. The pickup order was can-
celed in April 2013.
platte couNty arreSt aNd
coNvictioN for driviNg
uNder revocatioN
We now turn to the events leading to the conviction and sen-
tence before us in the instant appeal. On March 22, 2013, an
officer with the Columbus Police Department stopped Planck’s
1 See Neb. Rev. Stat. § 60-4,182(9) (Cum. Supp. 2012).
2 See Neb. Rev. Stat. § 60-4,183 (Reissue 2010).

STATE v. PLANCK 	513
Cite as 289 Neb. 510
vehicle for a traffic violation. After Planck produced her opera-
tor’s license, the officer communicated with dispatch and was
advised that Planck’s operator’s license was revoked. The
officer arrested Planck, and the State subsequently charged her
with driving under revocation.
The county court for Platte County conducted a jury trial.
Planck testified that she thought she had a valid operator’s
license at the time of her arrest. She testified that she never
“officially” received the letter from the DMV stating that
her license had been revoked and that the night of her arrest
was the first time she was informed of her license revocation.
Planck testified that when the county court for Nance County
impounded her license for 60 days, a police officer came to her
house to pick up the license. And after Planck’s “work permit”
expired, she received her operator’s license in the mail at her
address in Monroe along with a handwritten letter from “Nance
County.” Planck thought all of her driving privileges had been
reinstated when her license was returned to her.
Planck testified that she would not have been driving if she
knew her license was revoked. She did not recall whether the
letter from Nance County stated that it was legal for her to
drive. Planck testified that neither the DMV nor Nance County
affirmatively communicated to her that it was legal for her to
drive. But she also testified that Nance County never told her
she could not drive and that she was led to believe she was free
to resume driving when she received her license in the mail.
Planck thought that the court had the authority to return her
license and allow her to drive.
Defense counsel offered three alternative proposed jury
instructions concerning entrapment by estoppel. The county
court refused to give such an instruction. The court stated:
[T]here’s no evidence as to who informed [Planck] either
through affirmative conduct or actual statement that she
could drive. There’s no evidence that there was affirma-
tive conduct or actual statement that she could drive.
There’s no evidence that . . . Planck relied on that
affirmative conduct or statement to drive, rather her
testimony was that she did not know that [her license]
was revoked.

514 	289 NEBRASKA REPORTS
The jury returned a verdict of guilty of driving under revo-
cation. The court entered judgment on the verdict and subse-
quently imposed a sentence.
appeal to diStrict court
Planck appealed to the district court. She included as
assigned errors the county court’s refusal of her three proposed
jury instructions and its refusal to give any instruction on the
defense of entrapment by estoppel.
The district court affirmed Planck’s conviction and sen-
tence. The court determined that Planck failed to offer suf-
ficient evidence to warrant an instruction on entrapment by
estoppel, because the evidence was insufficient to show that
an official from the county court for Nance County either
had been made aware of all relevant historical facts or had
affirmatively told Planck that she could legally drive. The
court reasoned:
[W]hen asked if Nance County told her whether it was
legal or acceptable for her to drive, Planck responded
“[n]ot that I recall.” Further, Planck offered no evidence
as to whether the Nance County Court, when forwarding
back her operator’s license, had been made aware of all
relevant historical facts, namely, the DMV’s administra-
tive revocation of her operator’s license for the accumula-
tion of points.
Planck timely appealed to the Nebraska Court of Appeals.
We moved the case to our docket under our statutory authority
to regulate the caseloads of the appellate courts of this state.3
ASSIGNMENT OF ERROR
Planck assigns, restated and consolidated, that the district
court erred in affirming the county court’s refusal to give an
instruction on the defense of entrapment by estoppel.
STANDARD OF REVIEW
[1] Whether a jury instruction is correct is a question of
law, regarding which an appellate court is obligated to reach
3 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).

STATE v. PLANCK 	515
Cite as 289 Neb. 510
a conclusion independent of the determination reached by the
trial court.4
[2] An appellate court reviews the denial of the defense
of entrapment by estoppel de novo, because it is a question
of law.5
ANALYSIS
“JuriSdictioN”
[3] The State purports to raise a jurisdictional issue. It ques-
tions whether the county court for Nance County had any
subject matter jurisdiction to grant a “work permit.” Lack of
subject matter jurisdiction may be raised at any time by any
party or by the court sua sponte.6
[4,5] Subject matter jurisdiction is a court’s power to hear
and determine a case in the general class or category to which
the proceedings belong and to deal with the general subject
involved in the action before the court and the particular ques-
tion which it assumes to determine.7 Strictly speaking, “juris-
diction” refers to a court’s adjudicatory authority. Accordingly,
the term “jurisdictional” properly applies only to prescrip-
tions delineating the classes of cases (subject matter juris-
diction) and the persons (personal jurisdiction) implicating
that authority.8
The issue raised by the State is not an issue of subject
matter jurisdiction regarding the case before us. There is no
contention that the county court for Platte County lacked sub-
ject matter jurisdiction to hear Planck’s driving under revoca-
tion case.
[6] Rather, the State is arguing that the portion of the Nance
County impoundment order purporting to authorize driving to
and from work was unauthorized by statute and void. In that
sense, it is a collateral attack upon the Nance County order.
4 State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
5 See U.S. v. Benning, 248 F.3d 772 (8th Cir. 2001).
6 Davis v. Choctaw Constr., 280 Neb. 714, 789 N.W.2d 698 (2010).
7 Kotrous v. Zerbe, 287 Neb. 1033, 846 N.W.2d 122 (2014).
8 State v. Ryan, 287 Neb. 938, 845 N.W.2d 287 (2014).

516 	289 NEBRASKA REPORTS
We observe that impoundment of an operator’s license is gov-
erned by a statute authorizing a court to revoke or impound
a license.9 Under the statute, if the court revokes a license, it
must order the revocation of the license “to operate a motor
vehicle for any purpose.”10 But if the court impounds a license,
it must order the person to “not operate a motor vehicle.”11
One might argue that the absence of the limiting words “for
any purpose” impliedly authorizes a court to permit a con-
victed person to drive to and from work during the period
of impoundment.
But we need not decide this issue. It is not a matter of sub-
ject matter jurisdiction in the Platte County case. Rather, it is
merely another basis for arguing that the requested instruction
was not justified by the evidence. Because we rely upon a dif-
ferent reason for our conclusion that the instruction was not
warranted, we need not further address the State’s “jurisdic-
tional” argument.
eNtrapMeNt by eStoppel
[7] The crux of Planck’s argument is that an instruction on
entrapment by estoppel should have been given. To establish
reversible error from a court’s refusal to give a requested
instruction, an appellant has the burden to show that (1) the
tendered instruction is a correct statement of the law, (2) the
tendered instruction is warranted by the evidence, and (3) the
appellant was prejudiced by the court’s refusal to give the
tendered instruction.12 Here, the county court determined that
the evidence did not warrant an instruction on entrapment by
estoppel and the district court agreed.
[8] The law regarding the defense of entrapment by estop-
pel is relatively new in Nebraska. We recently recognized
it as an available affirmative defense in State v. Edwards.13
There, we noted that the defense was rooted in the Due
9 See Neb. Rev. Stat. § 60-496 (Reissue 2010).
10 See id.
11 See id.
12 State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013).
13 State v. Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013).

STATE v. PLANCK 	517
Cite as 289 Neb. 510
Process Clause of the Fifth Amendment.14 And we discussed
Raley v. Ohio15 and Cox v. Louisiana,16 two cases from the
U.S. Supreme Court that interpreted the defense.17 In State
v. Edwards, the trial court instructed the jury on the defense
using the following elements: (1) The defendant acted in good
faith before taking any action; (2) an authorized government
official, acting with actual or apparent authority and who had
been made aware of all relevant historical facts, affirmatively
told the defendant that his or her conduct was legal; (3) the
defendant actually relied on the statements of the govern-
ment official; and (4) such reliance was reasonable.18 We
accepted this articulation, stating that “[a]lthough jurisdictions
have formulated the elements of the entrapment by estoppel
defense in various ways, we agree that the instruction as given
accurately states the essential elements of the defense.”19 In a
subsequent case,20 we stated that the defense of entrapment by
estoppel consists of the four elements that were articulated by
the trial court in State v. Edwards and reasoned that the evi-
dence did not warrant the giving of such an instruction.
Planck submitted three proposed jury instructions concern-
ing entrapment by estoppel. Planck’s tendered instruction
No. 3 mirrored the elements set forth in State v. Edwards.
Proposed instruction No. 1 listed the elements as follows:
1. An agent or entity of the Nebraska Government
informed, either through affirmative conduct or an actual
statement, . . . Plan[c]k that she could drive; and
2. . . . Planck relied on the affirmative conduct or state-
ment; and
3. . . . Planck’s reliance on the affirmative conduct or
statement was reasonable; and
14 See id.
15 Raley v. Ohio, 360 U.S. 423, 79 S. Ct. 1257, 3 L. Ed. 2d 1344 (1959).
16 Cox v. Louisiana, 379 U.S. 559, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965).
17 See State v. Edwards, supra note 13.
18 Id.
19 Id. at 414, 837 N.W.2d at 89-90.
20 See State v. Green, 287 Neb. 212, 842 N.W.2d 74 (2014).

518 	289 NEBRASKA REPORTS
4. Given . . . Planck’s reliance on the affirmative con-
duct or statement, conviction would be unfair.
Her 	proposed 	instruction 	No. 	2 	formulated 	the 	elements
this way:
1. . . . Planck acted in good faith before driving;
2. A government agent or government entity, acting
with actual or apparent authority and who was aware of
or should have been aware of all relevant historical facts,
informed . . . Planck through statements or affirmative
conduct, that she could drive;
3. . . . Planck actually relied on the information of the
government agent or entity;
4. . . . Planck’s reliance was reasonable; and
5. Given . . . Planck’s reliance[,] conviction would
be unfair[.]
Each of the instructions proposed by Planck required some
affirmative act by the governmental official. Proposed instruc-
tion No. 1 required that the government entity “either through
affirmative conduct or an actual statement” informed Planck
that she could drive. Proposed instruction No. 2 required that
the government entity informed Planck that she could drive
“through statements or affirmative conduct.” And proposed
instruction No. 3 required that Planck be “affirmatively told”
that her conduct was legal.
The decisions of the U.S. Supreme Court guide us regard-
ing the necessity of an affirmative statement or affirmative
conduct. In Raley v. Ohio,21 three of the defendants were
specifically told by the chairman of a state commission that
they had a right to refuse to testify. The fourth defendant
was not affirmatively told that the privilege was available
but was given the impression that it was by the chairman’s
behavior. The Court stated: “Here there were more than com-
mands simply vague or even contradictory. There was active
misleading.”22 In Cox v. Louisiana, the Court noted that the
defendant and his group “were affirmatively told that they
21 Raley v. Ohio, supra note 15.
22 Id., 360 U.S. at 438.

STATE v. PLANCK 	519
Cite as 289 Neb. 510
could hold the demonstration on the sidewalk of the far side
of the street.”23 And in United States v. Pennsylvania Chem.
Corp.,24 the Court determined that the defendant should
have been permitted to present evidence that it was affirm-
atively misled by the longstanding official administrative
construction of a statute into believing that its conduct was
not criminal.
The requirement of a statement by an official or other
affirmative representation is in line with formulations of the
defense in the federal circuit courts. The First Circuit has
rejected a claim of entitlement to the defense where there was
no affirmative representation that the conduct would be legal.25
It appears that the Second26 and Eighth27 Circuits require a
statement by a government official. Under the formulations of
the Third,28 Fourth,29 and Ninth Circuits,30 a government official
must tell the defendant that the conduct was legal. The Fifth
Circuit requires that the government official “actively assures a
defendant that certain conduct is legal.”31 The 6th32 and 10th33
Circuits have listed an element of the defense as being that
an official actively misled the defendant. The Seventh Circuit
requires that the government official affirmatively assures the
defendant that the conduct is legal or that the official actively
misled the defendant.34
23 Cox v. Louisiana, supra note 16, 379 U.S. at 571.
24 United States v. Pennsylvania Chem. Corp., 411 U.S. 655, 93 S. Ct. 1804,
36 L. Ed. 2d 567 (1973).
25 See U.S. v. Pardue, 385 F.3d 101 (1st Cir. 2004).
26 See U.S. v. George, 386 F.3d 383 (2d Cir. 2004).
27 See U.S. v. Benning, supra note 5.
28 See U.S. v. West Indies Transport, Inc., 127 F.3d 299 (3d Cir. 1997).
29 See U.S. v. Clark, 986 F.2d 65 (4th Cir. 1993).
30 See U.S. v. Batterjee, 361 F.3d 1210 (9th Cir. 2004).
31 U.S. v. Spires, 79 F.3d 464, 466 (5th Cir. 1996).
32 See U.S. v. Theunick, 651 F.3d 578 (6th Cir. 2011).
33 See U.S. v. Bader, 678 F.3d 858 (10th Cir. 2012).
34 See U.S. v. Baker, 438 F.3d 749 (7th Cir. 2006).

520 	289 NEBRASKA REPORTS
Planck was not entitled to any of the proposed instruc-
tions, because there was no evidence of an affirmative state-
ment or affirmative conduct that she could drive. Planck
admitted that the county court for Nance County did not
affirmatively communicate to her that it was legal for her
to drive. Rather, she relies on the court’s conduct in issuing
the “work permit” and returning her license at the end of the
impoundment period.
But other courts have found similar conduct to be insuffi-
cient to warrant the giving of an instruction on entrapment by
estoppel. In U.S. v. Lemieux,35 the defendant claimed that his
purchase of a firearm from a federally licensed dealer was the
equivalent to being told by federal authorities that he could
legally purchase a firearm, but the appellate court determined
that entrapment by estoppel was not available as a defense.
The court reasoned in part that “[t]here is no allegation that
a firearms dealer told [the defendant] that the purchase was
legal; the dealer simply completed the sale, a distinction that
makes a difference under an estoppel theory.”36 Similarly,
in the instant case, the court processed Planck’s request for
a “work permit,” but never told her that she could legally
drive after the period of impoundment. That was merely an
assumption on her part. And the Eighth Circuit has stated
that a report generated by a background check system which
permitted a firearms dealer to proceed with a firearms sale
“is not the type of statement giving rise to the entrapment by
estoppel defense. The [background check system] signal to
proceed would at most indicate that [the defendant’s] felony
conviction was not listed in the federal database.”37 Likewise,
the county court’s issuance of the “work permit” and return of
Planck’s license indicates that it was unaware of the DMV’s
administrative license revocation.
The First Circuit has also rejected the defense of entrap-
ment by estoppel where there was no evidence that the
35 U.S. v. Lemieux, 550 F. Supp. 2d 127 (D. Me. 2008).
36 Id. at 133.
37 U.S. v. Hullette, 525 F.3d 610, 612 (8th Cir. 2008).

STATE v. PLANCK 	521
Cite as 289 Neb. 510
defendant was affirmatively told that his or her conduct was
legal. In U.S. v. Sousa,38 the defendant was indicted for being
a felon in possession of a firearm. He argued entrapment
by estoppel, because a court had treated his 1977 predi-
cate offense as a misdemeanor during a criminal proceeding
in 1990. Further, in 1988, a police department issued the
defendant a firearm identification permit; thus, he argued
that he reasonably believed his 1977 conviction was a misde-
meanor and that he could legally carry a firearm. He claimed
that the police department “‘told him’ that possessing a fire-
arm was legal by issuing him a firearm identification card.”39
But the appellate court observed that the defendant did not
claim that an official affirmatively told him that he could
legally possess a firearm, and thus, the defense was not avail-
able to him. In U.S. v. Pardue,40 the First Circuit rejected the
defense of entrapment by estoppel, because the defendant
did not adduce evidence that a Marine Corps official affirm-
atively told him it was legal for him to keep ammunition in
his backpack in civilian life. Despite a domestic violence
misdemeanor conviction, the defendant was authorized to
possess weapons while in the Marines, and he assumed it
was legal for him to do so after being discharged. The court
stated: “Defendant has disclosed no affirmative representa-
tion from any government official regarding the legality of
possessing ammunition in civilian life. He merely assumed,
without being told, that he could possess ammunition after
his discharge from the Marines.”41 We are presented with a
comparable situation here: an assumption by Planck that it
was legal for her to drive, without her being specifically told
that she could do so.
We adhere to our requirement of an affirmative statement
by a government official as an element of entrapment by
38 U.S. v. Sousa, 468 F.3d 42 (1st Cir. 2006).
39 Id. at 46.
40 U.S. v. Pardue, supra note 25.
41 Id. at 108-09.

522 	289 NEBRASKA REPORTS
estoppel. In State v. Green,42 we concluded that based upon
the record, the defendant was not entitled to an entrapment
by estoppel instruction. We stated that the defendant had the
burden to show that he was affirmatively told that he could
possess a sword and knife collection, but that there was no
such evidence in the record. We further stated that the defense
was not warranted based on evidence the defendant reported
the collection on paperwork filed with the probation office
and assumed that it was permitted because he was not told
differently. We reasoned that “this was not an affirmative
statement from an authorized government official, nor can
[the defendant] produce the paperwork where he allegedly dis-
closed this collection.”43
[9] A trial court need not instruct the jury on an issue where
the facts do not justify such an instruction.44 Because Planck
did not adduce evidence of an affirmative statement from an
authorized government official that she could legally drive, the
county court did not err in refusing to instruct the jury on the
defense of entrapment by estoppel.
[10] We need not consider Planck’s challenge to the ele-
ment of the defense as set forth in State v. Edwards45 requiring
that the government agent be “aware of all relevant historical
facts.” An appellate court is not obligated to engage in an anal-
ysis that is not necessary to adjudicate the case and controversy
before it.46
CONCLUSION
We conclude that Planck was not entitled to an instruc-
tion on the defense of entrapment by estoppel, because the
evidence did not establish any affirmative statement by the
county court for Nance County that it was legal for Planck to
drive. Planck’s assumption that she could legally drive based
42 State v. Green, supra note 20.
43 Id. at 227, 842 N.W.2d at 89.
44 Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).
45 State v. Edwards, supra note 13.
46 State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014).

STATE v. PLANCK 	523
Cite as 289 Neb. 510
on the processing of paperwork and return of her license, in
the absence of being specifically told, was not sufficient to
warrant the giving of the instruction. We affirm the judgment
of the district court, which affirmed the judgment of the county
court for Platte County.
affirMed.