State v. Kleckner

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STATE v. KLECKNER
Cite as 291 Neb. 539
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
state of Nebraska , appellaNt, v.
breaNNa N. kleckNer , appellee .
867 N.W.2d 273
Filed August 7, 2015. 	No. S-14-960.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
2. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Criminal Law: Judgments: Jurisdiction: Appeal and Error. Absent
specific statutory authorization, the State generally has no right to
appeal an adverse ruling in a criminal case.
5. Appeal and Error. The purpose of appellate review under Neb. Rev.
Stat. § 29-2315.01 (Reissue 2008) is to provide an authoritative state-
ment of the law to serve as precedent in future cases.
6. Judgments: Appeal and Error. Only those issues on which the dis-
trict court made a ruling are subject to review under Neb. Rev. Stat.
§ 29-2315.01 (Reissue 2008).
7. Double Jeopardy. The Double Jeopardy Clauses of the federal and
the Nebraska Constitutions protect against three distinct abuses: (1) a
second prosecution for the same offense after acquittal, (2) a second
prosecution for the same offense after conviction, and (3) multiple pun-
ishments for the same offense.
8. Constitutional Law: Double Jeopardy. The protection provided by
Nebraska’s double jeopardy clause is coextensive with that provided by
the U.S. Constitution.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:30 AM CST

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STATE v. KLECKNER
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9. Criminal Law: Double Jeopardy. The Blockburger v. United States,
284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), or “same elements”
test, does not apply if the State charges the defendant with multiple
counts of a statutory crime that can be committed in different ways.
10. Criminal Law: Double Jeopardy: Legislature: Intent. Absent a con-
trary legislative intent, multiple counts of assault are the “same offense”
for double jeopardy purposes if a break occurred between the alleged
assaults that allowed the defendant to form anew the required crimi-
nal intent.
11. Criminal Law: Double Jeopardy: Convictions: Sentences. Even if
the government charges the defendant with multiple counts of the same
offense, the multiple punishments prong of the double jeopardy bar is
not violated if the jury convicts the defendant of only one count.
12. Criminal Law: Double Jeopardy: Trial: Convictions. For double
jeopardy purposes, the presence of multiple counts in a single trial does
not amount to a second prosecution for the same offense after an acquit-
tal or conviction.
13. Double Jeopardy. The application of Neb. Rev. Stat. § 29-2316 (Reissue
2008) turns on whether the trial court placed the defendant in jeopardy,
not whether the Double Jeopardy Clause bars further action.
Appeal from the District Court for Sarpy County, William
b. Z astera, Judge, on appeal thereto from the County Court
for Sarpy County, stefaNie a. martiNeZ, Judge. Exception
sustained.
Philip 	K. 	Kleine, 	Deputy 	Sarpy 	County 	Attorney, 	for
appellant.
Karen S. Nelson, of Shirber & Wagner, L.L.P., for appellee.
H eavicaN, c.J., WrigHt, coNNolly, mccormack , miller-
lermaN, and cassel , JJ.
coNNolly, J.
SUMMARY
On the day after Thanksgiving, former intimate partners
Breanna N. Kleckner and Chase McGee had a dispute about
which of them would care for their son over the weekend.
The State charged Kleckner in county court with three counts

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of third degree domestic assault arising from the dispute.
Each count alleged that Kleckner had violated a different
subsection of the same statute. The court dismissed one count
after the State rested. Of the two remaining counts, the jury
convicted Kleckner of one and acquitted her of the other.
Kleckner appealed to the district court, arguing that the State
could not charge her with multiple counts under a single stat-
ute if each count arose from the same incident. The district
court agreed with Kleckner and vacated her sentence. The
State filed an objection to the district court’s judgment under
Neb. Rev. Stat. § 29-2315.01 (Reissue 2008). Because the
State tried and punished Kleckner only once, we sustain the
State’s objection.
BACKGROUND
factual backgrouNd
Kleckner and McGee had an intimate relationship that lasted
more than 2 years. They have a son, T.M., who was about 14
months old at the time of the alleged assault. Kleckner and
McGee do not have a “custody agreement” for T.M. Their
childcare arrangements are informal.
On the evening of November 29, 2013, McGee was at his
mother’s house. He called Kleckner and asked her to give him
a ride to a shoestore. Kleckner agreed, and she, McGee, and
T.M. went to the store together.
On the way back to McGee’s mother’s house, Kleckner and
McGee started to argue about who would have T.M. for the
weekend. McGee testified that once they arrived, he carried
T.M. to the house while Kleckner trailed behind and pushed
McGee. McGee said that once inside, his niece took T.M. away
and that Kleckner walked out of the house after making a tele-
phone call.
According to McGee, he looked out the window and saw
Kleckner throwing rocks at his car. McGee went outside and
called the 911 emergency dispatch service. He testified that
Kleckner hit him in his right eye about three times either

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before or during the telephone call. McGee recalled that
Kleckner drove away while he was on the telephone with the
911 operator.
Kleckner remembered the evening differently. She said that
after returning from the shoestore, she walked into the house
to speak with McGee’s mother, with McGee following her.
Kleckner said that after leaving the house, she got into her
car, which was parked in the street, and backed it into the
driveway. Then she got out, picked up a rock, and cocked
her arm in the direction of McGee’s vehicle because she “just
felt really disrespected.” But Kleckner said that she had a
change of heart and either “threw [the rock] to the side” or
“dropped it.”
Kleckner said that at this point, she got into her car again
and was prepared to leave. But McGee came out of the house
and grabbed the interior of her car through an open window.
Kleckner testified that she sidled out of her car and pushed
McGee’s shoulder to get his arm out of the way. Kleckner
said that after she did so, she locked the doors and listened to
McGee call 911 before driving away.
Kleckner testified that she did not touch McGee other than
to push him from her car. But McGee’s sister-in-law, who was
at the house, testified that McGee’s right eye was swollen
and red after Kleckner left. Similarly, the police officer who
responded to McGee’s 911 call testified that McGee’s right eye
and cheek were swollen and red.
Kleckner testified that she did not “threaten to hurt”
McGee. Neither McGee nor any of the State’s other wit-
nesses testified that Kleckner threatened McGee. But the
State played a recording of the 911 call for the jury, during
which McGee told the operator that Kleckner had “threatened
to kill me.” In a petition for a domestic abuse protection
order, McGee wrote that Kleckner told him while they were
in his mother’s house that “she was going to have people beat
me up and kill me.”

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couNty court
The State filed a criminal complaint in county court
charging Kleckner with three counts of third degree domes-
tic assault under Neb. Rev. Stat. § 28-323(1) (Cum. Supp.
2014). Each count alleged that the conduct occurred in Sarpy
County, Nebraska, on November 29, 2013; that McGee was
the victim; and that McGee was Kleckner’s intimate part-
ner. Count I alleged that Kleckner intentionally and know-
ingly caused McGee bodily injury under § 28-323(1)(a).
Count II alleged that Kleckner threatened McGee with immi-
nent bodily injury under § 28-323(1)(b). Count III alleged
that Kleckner threatened McGee in a menacing manner under
§ 28-323(1)(c).
Kleckner filed an omnibus motion to quash, a demurrer, and
a motion to elect. In the operative filing, Kleckner asserted
that the State “cannot charge [her] with violating all three
subsection[s] simultaneously.” She alleged that the complaint
violated her double jeopardy rights under the federal and
Nebraska Constitutions and her due process rights under the
federal Constitution.
The county court overruled Kleckner’s motion to quash and
demurrer but held her motion to elect in abeyance until the
close of the State’s case.
After the State rested, Kleckner renewed her motion to
elect and moved for a directed verdict. The court overruled
Kleckner’s motion for a directed verdict but sustained her
motion to elect as to count III because the State had not made
a “prima facie showing” for that count.
The jury returned a verdict finding Kleckner guilty of
count I and not guilty of count II. The county court sentenced
Kleckner to 1 year of probation.
district court
Kleckner appealed her conviction to the district court. She
assigned, in relevant part, that the county court erred by over-
ruling her motion to quash because the State violated her

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double jeopardy and due process rights by charging her with
three counts under the same statute.
The district court concluded that § 28-323(1) was “a single
offense committable alternative ways” and, without clearly
explaining why, assumed that the presence of multiple counts
in the information required it to reverse Kleckner’s convic-
tion. Because the Double Jeopardy Clause bars a second trial
after an acquittal, the court determined that the State could not
retry Kleckner.
ASSIGNMENTS OF ERROR
The State assigns that the district court erred by (1) incor-
rectly interpreting Blockburger v. United States1; (2) deter-
mining that “two charges under the same statute were, for
purposes of prosecution, the same as two charges for the same
act” under the Double Jeopardy Clause; (3) determining that
the state should have elected between multiple counts; and (4)
“arbitrarily acquit[ting Kleckner] of all charges.”
STANDARD OF REVIEW
[1-3] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error
or abuse of discretion.2 Both the district court and a higher
appellate court generally review appeals from the county
court for error appearing on the record.3 When reviewing a
judgment for errors appearing on the record, an appellate
court’s inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is neither arbitrary,
1 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306
(1932).
2 State v. Avery, 288 Neb. 233, 846 N.W.2d 662 (2014).
3 Id.

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capricious, nor unreasonable.4 But we independently review
questions of law.5
ANALYSIS
[4-6] Before addressing the merits, we note that the State is
the appellant. Absent specific statutory authorization, the State
generally has no right to appeal an adverse ruling in a crimi-
nal case.6 In this case, the State appeals under § 29-2315.01,
which allows a county attorney to request appellate review of
an adverse ruling by a district court.7 The purpose of appellate
review under § 29-2315.01 is to provide an authoritative state-
ment of the law to serve as precedent in future cases.8 But we
cannot expound the law on whatever question the State might
ask. Only those issues on which the district court made a rul-
ing are subject to review.9
The State argues that the district court “erred in determin-
ing that because the three charges arose from violations of the
same statute, that the violations constituted the same act and
multiple prosecutions were therefore barred by the Double
Jeopardy Clause.”10 The State contends that the three subsec-
tions of § 28-323(1) are “multiple offenses because each sub-
section includes a distinct and separate element that the others
do not.”11 So, prosecuting Kleckner on multiple counts did not
violate the double jeopardy bar.
Of course, Kleckner disagrees. She argues that third degree
domestic assault is “one offense committable in multiple
4 Id.
5 Id.
6 See State v. Figeroa, 278 Neb. 98, 767 N.W.2d 775 (2009).
7 See id.
8 State v. Warner, 290 Neb. 954, 863 N.W.2d 196 (2015).
9 State v. Figeroa, supra note 6.
10 Brief for appellant at 19.
11 Id. at 14.

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ways.”12 Kleckner asserts that each subsection of § 28-323(1)
is but a part of “a single offense,” but she is less clear about
how this conclusion supports the district court’s judgment.13 As
noted, Kleckner argued in her appeal to the district court that
the State violated her double jeopardy and due process rights
by charging her with multiple counts of the same crime.
[7,8] The Double Jeopardy Clauses of the federal and the
Nebraska Constitutions protect against three distinct abuses:
(1) a second prosecution for the same offense after acquittal,
(2) a second prosecution for the same offense after convic-
tion, and (3) multiple punishments for the same offense.14 The
protection provided by Nebraska’s double jeopardy clause is
coextensive with that provided by the U.S. Constitution.15
Kleckner argues that the information was multiplicitous.
That is, the information charged the same offense in mul-
tiple counts.16 Under § 28-323(1), a “person commits the
offense of domestic assault in the third degree if he or she:
(a) Intentionally and knowingly causes bodily injury to his or
her intimate partner; (b) Threatens an intimate partner with
imminent bodily injury; or (c) Threatens an intimate partner in
a menacing manner.”
To decide whether each subsection under § 28-323(1) is
a different offense for double jeopardy purposes, the State
urges us to apply the test derived from Blockburger v. United
States.17 Under the Blockburger or “same elements” test, we
ask whether each offense has an element that the other does
not or, restated, whether each offense requires proof of a fact
that the other does not.18
12 Brief for appellee at 18.
13 Id. at 12.
14 State v. Dragoo, 277 Neb. 858, 765 N.W.2d 666 (2009).
15 Id.
16 See, e.g., U.S. v. Chipps, 410 F.3d 438 (8th Cir. 2005).
17 Blockburger v. United States, supra note 1.
18 State v. Huff, 279 Neb. 68, 776 N.W.2d 498 (2009).

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We use the Blockburger test if the same act or transaction
violates two distinct statutory provisions, but it is not appro-
priate for every double jeopardy question.19 If the State argues
that a course of conduct involves one or more distinct offenses
under a single statute, we have instead focused on the allow-
able unit of prosecution.20 And we have expressly refused to
apply the Blockburger test if the State punishes the defendant
with multiple counts of violating a single crime that can be
committed in different ways.21
[9] Here, the Blockburger test is not appropriate because
third degree domestic assault under § 28-323(1) is one offense
that can be committed in different ways.22 That the statute
describes three different actions does not mean that it is three
different offenses: “‘Simply because the alternative ways for
committing a single offense require proof of different acts
and even different culpable mental states does not mean that a
single offense has not been defined by the statute . . . .’”23 For
example, in State v. Chavez,24 the South Dakota Supreme Court
examined a statute that defined aggravated assault as causing
serious bodily injury while manifesting extreme indifference
to human life or attempting to put another in fear of serious
bodily harm through physical menace with a deadly weapon,
among other means. The court concluded that despite the dif-
ferent actions and mental states, the statute defined one crime
that could be accomplished different ways.25
19 See id.
20 See, State v. Al-Sayagh, 268 Neb. 913, 689 N.W.2d 587 (2004); State v.
Mather, 264 Neb. 182, 646 N.W.2d 605 (2002).
21 See, State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007); State v. White,
254 Neb. 566, 577 N.W.2d 741 (1998).
22 See id.
23 Woellhaf v. People, 105 P.3d 209, 217 (Colo. 2005). See Brown v. State,
107 Neb. 120, 185 N.W. 344 (1921).
24 State v. Chavez, 649 N.W.2d 586 (S.D. 2002).
25 See, also, State v. Morato, 619 N.W.2d 655 (S.D. 2000); State v. Baker,
440 N.W.2d 284 (S.D. 1989).

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The State notes that the Legislature classified subsequent
violations of § 28-323(1)(a) and (b) as Class IV felonies,
whereas violations of § 28-323(1)(c) are always Class I mis-
demeanors.26 We have said, however, that felony classifica-
tions have no bearing on whether two statutes are the same
offense under Blockburger because a crime’s classification
is not part of its elements.27 Similarly, we do not think that
enhancement is part of third degree domestic assault’s unit
of prosecution.
[10] But a defendant is not immune from multiple punish-
ments or trials simply because there is only one victim of
the defendant’s assaultive conduct. Absent a contrary legisla-
tive intent,28 the test for assault offenses is whether a break
occurred between the alleged assaults that allowed the defend-
ant to form anew the required criminal intent:
In assault cases, separate offenses can arise from a sin-
gle set of facts each time the defendant forms an intent
to attack the victim. . . . Thus, when a defendant has
time to reconsider his actions, “each assault separated
by time” constitutes a separate offense. . . . Factors
such as time, place of commission, and the defendant’s
intent, as evidenced by his conduct and utterances deter-
mine whether separate offenses should result from a
single incident.29
26 See § 28-323(4) and (5).
27 State v. Dragoo, supra note 14.
28 See, e.g., Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999).
29 State v. Garnett, 298 S.W.3d 919, 923 (Mo. App. 2009). See, State v.
Baldwin, 290 S.W.3d 139 (Mo. App. 2009); Ocasio v. State, 994 So. 2d
1258 (Fla. App. 2008); State v. Harris, 243 S.W.3d 508 (Mo. App. 2008);
Welborn v. Com., 157 S.W.3d 608 (Ky. 2005); State v. Nixon, 92 Conn.
App. 586, 886 A.2d 475 (2005); State v. Handa, 120 N.M. 38, 897 P.2d
225 (N.M. App. 1995); Weatherly v. State, 733 P.2d 1331 (Okla. Crim.
App. 1987). See, also, People v. Wilson, 93 Ill. App. 3d 395, 417 N.E.2d
146, 48 Ill. Dec. 744 (1981).

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It is therefore not enough for the State to show that the fight
moved from the living room to the driveway.30 Double jeop-
ardy “is not such a fragile guarantee that prosecutors can
avoid its limitations by the simple expedient of dividing a
single crime into a series of temporal or spatial units.”31 There
must be a break in the action long enough to infer that the
defendant stopped, reconsidered his or her actions, and then
launched another assault.32 As the State concedes, it could not,
for example, punish a defendant for each repetitive punch to
the victim.
But we will not decide whether the State could have pun-
ished or prosecuted Kleckner more than once under § 28-323(1)
because the State did not in fact do so. Although the purpose of
error proceedings is to provide an authoritative statement of the
law, our review is limited to those issues on which the district
court made a ruling on the facts before it.33 Here, the district
court made its ruling after the jury convicted Kleckner of one
count after one trial.
[11,12] So, the district court erred for a basic reason: None
of the three evils prohibited by the Double Jeopardy Clause
befell Kleckner. Even if the government charges the defend-
ant with multiple counts of the same offense, the multiple
punishments prong of the double jeopardy bar is not vio-
lated if the jury convicts the defendant of only one count.34
Nor does the presence of multiple counts in a single trial
30 See U.S. v. Chipps, supra note 16.
31 Brown v. Ohio, 432 U.S. 161, 169, 97 S. Ct. 2221, 53 L. Ed. 2d 187
(1977).
32 See State v. Harris, supra note 29.
33 See State v. Figeroa, supra note 6.
34 See, U.S. v. Chilingirian, 280 F.3d 704 (6th Cir. 2002); Arnold v. Wyrick,
646 F.2d 1225 (8th Cir. 1981); State v. Auch, 39 Kan. App. 2d 512, 185
P.3d 935 (2008). See, also, State v. Molina, 271 Neb. 488, 713 N.W.2d 412
(2006); State v. Halsey, 232 Neb. 658, 441 N.W.2d 877 (1989).

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amount to a second prosecution for the same offense after an
acquittal or conviction.35 One trial on multiple counts is still
one trial.
Put simply, Kleckner’s conviction of one count after one
trial in the county court did not implicate the three distinct
abuses that the double jeopardy bar prohibits. There was only
one prosecution, and Kleckner received only one punishment.
So, the district court should not have reversed Kleckner’s
conviction to the extent it did so on double jeopardy grounds.
And the only reason the court gave for reversing Kleckner’s
conviction was that the State charged her with multiple counts
of the same crime. In her appeal to the district court, Kleckner
argued only that charging her with multiple counts violated
her double jeopardy and due process rights. She has not elabo-
rated how the State violated her right to due process.
Kleckner’s reliance on State v. Parker36 is misplaced. In
Parker, we held that if one offense can be committed different
ways, the jury must be unanimous that the defendant com-
mitted the offense but need not be unanimous about which of
the alternative means the defendant used. The unanimity of
the jury’s verdict—the only issue in Parker—is not an issue
in this case. Parker did not involve multiple charges for the
same offense.
Having decided that the district court should not have
reversed Kleckner’s conviction, we turn to the effect of our
conclusion. The State argues that we should reverse, and
remand with directions to reinstate Kleckner’s conviction and
sentence. But our power to reverse the judgment of the dis-
trict court is limited. Specifically, Neb. Rev. Stat. § 29-2316
(Reissue 2008) provides: “The judgment of the court in any
action taken pursuant to section 29-2315.01 shall not be
reversed nor in any manner affected when the defendant in the
trial court has been placed legally in jeopardy . . . .”
35 See, e.g., U.S. v. Sharpe, 996 F.2d 125 (6th Cir. 1993).
36 State v. Parker, 221 Neb. 570, 379 N.W.2d 259 (1986).

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[13] Nearly a decade ago, we said in State v. Vasquez37 that
the application of § 29-2316 turns on whether the trial court
placed the defendant in jeopardy, not whether the Double
Jeopardy Clause bars further action. That is, § 29-2316 is not
a gratuitous reference to the Double Jeopardy Clause. Vasquez
broke with the approach of some of our earlier cases,38 but
we have since adhered to its reading of the statute’s plain lan-
guage.39 In § 29-2316, the Legislature chose to prohibit rever-
sal if the defendant was “placed legally in jeopardy,” not if the
Double Jeopardy Clause would prohibit reversal. The wisdom
of that decision, of course, rests with the Legislature.
Here, Kleckner tried the case to a jury. Jeopardy therefore
attached when the jury was impaneled and sworn.40 Because
the trial court placed Kleckner legally in jeopardy before the
district court’s erroneous ruling, we cannot reverse the district
court’s judgment.
The State argues that the posture of this case distinguishes
it from Vasquez and its progeny. But, in State v. Figeroa,41 we
applied § 29-2316 in a case where a district court, like the
district court here, erroneously reversed a county court’s judg-
ment. The conviction in Figeroa resulted from a guilty plea,
and Kleckner’s conviction resulted from a jury verdict, but that
does not change matters. The district court entered a “judg-
ment” after Kleckner was “placed legally in jeopardy.” Under
§ 29-2316, we must let the judgment stand.
37 State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006).
38 See, State v. Figeroa, supra note 6 (Gerrard, J., concurring in part, and in
part dissenting; Heavican, C.J., and Stephan, J., join); State v. Head, 276
Neb. 354, 754 N.W.2d 612 (2008) (Gerrard, J., concurring in part, and in
part dissenting; Heavican, C.J., and Stephan, J., join); State v. Hense, 276
Neb. 313, 753 N.W.2d 832 (2008) (Gerrard, J., concurring in part, and in
part dissenting; Heavican, C.J., and Stephan, J., join).
39 See, State v. Figeroa, supra note 6; State v. Head, supra note 38; State v.
Hense, supra note 38.
40 See State v. Jackson, 274 Neb. 724, 742 N.W.2d 751 (2007).
41 See State v. Figeroa, supra note 6.

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CONCLUSION
The State did not punish Kleckner multiple times for the
same offense or subject her to multiple prosecutions. So,
the district court erred by reversing her conviction on the
ground that the State charged her with the same offense in
several counts. But § 29-2316 prevents us from reversing the
district court’s judgment because Kleckner has been placed
in jeopardy.
exceptioN sustaiNed.
stepHaN, J., not participating.
cassel, J., concurring in part, and in part dissenting.
I entirely agree that the district court erred in reversing the
county court conviction. And to that extent, I concur in the
majority opinion.
But I dissent from the majority’s conclusion that the county
court conviction and sentence cannot be reinstated. Justice
Gerrard’s dissents in State v. Hense,1 State v. Head,2 and State
v. Figeroa3 powerfully articulate the error that the major-
ity today perpetuates. As he aptly pointed out, “[u]nder this
court’s construction of the statute,[4] a district court’s rever-
sal of a lower court’s judgment has become ‘“tantamount
to a verdict of acquittal at the hands of the jury, not subject
to review.”’”5
1 State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008) (Gerrard, J.,
concurring in part, and in part dissenting; Heavican, C.J., and Stephan, J.,
join).
2 State v. Head, 276 Neb. 354, 754 N.W.2d 612 (2008) (Gerrard, J.,
concurring in part, and in part dissenting; Heavican, C.J., and Stephan, J.,
join).
3 State v. Figeroa, 278 Neb. 98, 767 N.W.2d 775 (2009) (Gerrard, J.,
concurring in part, and in part dissenting; Heavican, C.J., and Stephan, J.,
join).
4 Neb. Rev. Stat. § 29-2316 (Reissue 2008).
5 State v. Figeroa, supra note 3, 278 Neb. at 108, 767 N.W.2d at 783
(Gerrard, J., dissenting) (quoting United States v. Wilson, 420 U.S. 332, 95
S. Ct. 1013, 43 L. Ed. 2d 232 (1975)).

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STATE v. KLECKNER
Cite as 291 Neb. 539
Legislative acquiescence does not mandate adherence to
the error that began in 2008. As Justice Gerrard noted, for
nearly 20 years before the Hense decision, “we had held—
without amendment from the Legislature—that the Legislature
intended for errors to be correctible through error proceed-
ings consistent with double jeopardy principles.”6 Only 7
years have passed since this court veered off course, and the
Legislature’s later silence commands no greater deference
than its earlier silence.
A jury of Breanna N. Kleckner’s peers convicted her of
third degree domestic assault. The county court imposed a
permissible sentence. She appealed to the district court, as she
was entitled to do. But the district court’s erroneous reversal,
coupled with this court’s incorrect statutory interpretation,
allows her to escape any consequences for her crime. I can
imagine the reaction of Kleckner’s jury to this absurd result.
It can only promote disrespect for the law. We should correct
our own mistake before the public’s patience runs out.
H eavicaN, C.J., joins in this concurrence and dissent.
6 State v. Figeroa, supra note 3, 278 Neb. at 106, 767 N.W.2d at 782
(Gerrard, J., dissenting).