State of Nebraska, appellee.
Kobe Paez, appellant.
Jury Instructions: Appeal and Error. Whether
jury instructions are correct is a question of law, which an
appellate court resolves independently of the lower
Criminal Law: Presumptions: Statutes. A
presumption in favor of a scienter requirement should apply
to each of the statutory elements that criminalize otherwise
Criminal Law: Minors. Where a prosecution
under Neb. Rev. Stat. § 28-833 (Reissue 2016) involves a
minor child rather than a decoy, a defendant's knowledge
that the recipient is under age 16 is an element of the crime
of enticement by electronic communication device.
Jury Instructions: Proof: Appeal and Error.
In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.
Verdicts: Juries: Appeal and Error. Harmless
error review looks to the basis on which the jury actually
rested its verdict; the inquiry is not whether in a trial
that occurred without the error, a guilty verdict would
surely have been rendered, but whether the actual guilty
verdict rendered was surely unattributable to the error.
Double Jeopardy: Evidence: New Trial: Appeal and
Error. The Double Jeopardy Clause does not forbid a
retrial so long as the sum of all the evidence admitted by a
trial court, whether erroneously or not, would have been
sufficient to sustain a guilty verdict.
from the District Court for Scotts Bluff County: Andrea D.
Miller, Judge. Stipulation allowed. Reversed and remanded for
a new trial.
Neb. 677] Sterling T. Huff, PC, L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
jury convicted Kobe Paez for enticement by electronic
communication device,  he appealed. Paez claimed that the court
erred in failing to instruct the jury that the elements of
the offense required knowledge that the recipient was under
age 16. Although the parties have stipulated to remand, we
address the stipulation in an opinion because we have not
previously considered the precise issue. Because we agree, we
allow the stipulation, reverse the judgment of the district
court, and remand the cause for a new trial.
briefly summarize the evidence at trial. While working at a
swimming pool, 19-year-old Paez first met 14-year-old A.F.
She gave Paez contact information for her Instagram account,
and Paez communicated with her that evening via Instagram.
Paez told A.F. that he wanted to see her, and A.F. responded
that her "aunt and uncle would literally . . . kill
you" and then A.F.'s sister would kill him. Paez
asked whether A.F. could "go Out[si]de or
something." She responded, "You have to remember us
isn't legal" immediately followed by "And no
they would hear you." Paez then sent a message stating,
"I know." The conversation later became sexual in
nature, with Paez stating that he would "do stuff"
"[l]ike eat u out n finger." [302 Neb. 678] Paez
and A.F. eventually met that night. That same night.
A.F.'s aunt saw the Instagram communications between Paez
and A.F. and called the police when she realized that A.F.
was not in the house.
and A.F. both told the police that they merely kissed. Paez
informed the police that he thought A.F. was 17 or 18 years
old. When an officer told A.F.'s family that Paez said
A.F. told him she was 17, A.F. did not dispute saying that.
According to Paez, A.F. told him that she was 17 years old,
that she had a car, and that she had driven to Scottsbluff,
Nebraska, from Gretna, Nebraska.
State ultimately charged Paez with first degree sexual
assault and enticement by electronic communication device.
The court conducted a jury trial, and the primary issues in
dispute were whether Paez knew A.F. was under age 16 and
whether Paez and A.F. engaged in sexual intercourse. Paez
objected to the court's proposed jury instruction on
enticement by electronic communication device. He advised the
court of his belief that the instruction needed to add the
words "knowingly and intentionally." Paez tendered
an instruction, which the court refused.
jury found Paez guilty of enticement but not guilty of sexual
assault. The court accepted the verdict and sentenced Paez to
36 months of probation.
timely appealed. The State filed a suggestion of remand,
conceding that the instruction was erroneous and that the
error was not harmless. Paez stipulated to remand. Rather
than disposing of the appeal summarily, we believe a detailed
opinion would be of value to the bench and the bar.
assigned three errors. Based on the State's suggestion of
remand, we limit our analysis to whether the court erred in
failing to properly instruct the jury.
Neb. 679] STANDARD OF REVIEW
jury instructions are correct is a question of law. which an
appellate court resolves independently of ...