State v. Allen -- supplemental opinion

- 255 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE v. ALLEN
Cite as 315 Neb. 255
State of Nebraska, appellee, v.
Keith L. Allen, appellant.
___ N.W.2d ___
Filed September 15, 2023. 	No. S-22-169.
supplemental opinion
Appeal from the District Court for Lincoln County: Richard
A. Birch, Judge. Former opinion modified. Motion for rehear-
ing overruled.
Charles D. Brewster, of Anderson, Klein, Brewster & Brandt,
for appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
This case is before us on a motion for rehearing filed by the
appellee, the State, concerning our opinion in State v. Allen,
314 Neb. 663, 992 N.W.2d 712 (2023).
We overrule the motion, but modify the opinion as follows:
In the analysis section, under the subheading “2. Juror
Misconduct,” we withdraw the second paragraph and substi-
tute the following:
Neb. Rev. Stat. § 29-2101(2) (Reissue 2016) provides
that “[a] new trial, after a verdict of conviction, may be
granted, on the application of the defendant” for “mis-
conduct of the jury” “affecting materially his or her
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:53 AM CDT

- 256 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE v. ALLEN
Cite as 315 Neb. 255
substantial rights.” In the civil context, we have said
“misconduct of the jury” does not necessarily mean a
jury’s bad faith or malicious motive, but means a jury’s
violation of, or departure from, an established rule or
procedure for production of a valid verdict. See Loving
v. Baker’s Supermarkets, 238 Neb. 727, 472 N.W.2d
695 (1991).
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motion for rehearing overruled.