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State v. Paez

Supreme Court of Nebraska

March 29, 2019

State of Nebraska, appellee.
v.
Kobe Paez, appellant.

         1. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.

         2. Criminal Law: Presumptions: Statutes. A presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.

         3. 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.

         4. 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.

         5. 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.

         6. 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.

          Appeal from the District Court for Scotts Bluff County: Andrea D. Miller, Judge. Stipulation allowed. Reversed and remanded for a new trial.

         [302 Neb. 677] Sterling T. Huff, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Cassel, J.

         INTRODUCTION

         After a jury convicted Kobe Paez for enticement by electronic communication device, [1] 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.

         BACKGROUND

         We 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.

         Paez 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.

         The 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.

         The 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.

         Paez 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.

         ASSIGNMENT OF ERROR

         Paez 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.

         [302 Neb. 679] STANDARD OF REVIEW

         Whether jury instructions are correct is a question of law. which an appellate court resolves independently of ...


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