Summary
The Nebraska Supreme Court considered Kenneth M. Kipple’s direct appeal following the restoration of his appellate rights after postconviction proceedings. The court rejected claims involving prosecutorial misconduct, jury instructions concerning parental permission as an affirmative defense to child enticement, ineffective assistance of counsel, and the constitutionality of the child enticement statute. It affirmed the child enticement and witness-tampering convictions and the child enticement sentences, but vacated the witness-tampering sentence and remanded for resentencing under the applicable post-2015 sentencing law.
Topics
Practice areas
Questions Presented
- Whether the prosecutor's opening, closing, and rebuttal arguments constituted prosecutorial misconduct amounting to plain error.
- Whether parental permission under Neb. Rev. Stat. § 28-311(2)(a) is an element of child enticement requiring jury instruction and proof by the State, or an affirmative defense.
- Whether the witness-tampering sentence was erroneous because the district court relied on the possibility that the offense occurred before August 30, 2015, and whether trial counsel was ineffective for failing to seek a specific jury finding on the offense date.
- Whether trial counsel was ineffective for failing to challenge Neb. Rev. Stat. § 28-311 as facially unconstitutional or unconstitutional as applied.
- Whether the ineffective-assistance claims were sufficiently stated and could be resolved on the direct-appeal record.
Holdings
- When a defendant does not preserve a prosecutorial-misconduct claim at trial, the appellate court reviews the record only for plain error and applies that exception sparingly.
- Parental permission under Neb. Rev. Stat. § 28-311(2)(a) is an affirmative defense, not an element of the offense, even though the defense appears in the same statute defining criminal child enticement.
- For an affirmative defense in a criminal case, absent a statute placing the burden of proof on the defendant, the defendant has the initial burden of producing a slight amount of evidence sufficient to raise the defense; the burden then shifts to the State to disprove it. The parental permission must relate to the activity constituting the charged child enticement, not merely permission for the child to be present in the defendant's home.
- An ineffective-assistance claim is raised sufficiently on direct appeal only when the allegations identify the specific deficient conduct with enough particularity for the appellate court to determine whether the claim can be decided on the trial record and for a later postconviction court to recognize that the claim was previously raised. A claim insufficiently stated is treated as no claim at all.
- The witness-tampering sentence was erroneous because the evidence supported a finding that the offense occurred only after August 30, 2015, when the amendment reducing the maximum sentence for a Class IV felony became effective. The sentence had to be vacated and the cause remanded for resentencing under the amended law.
- Trial counsel's failure to raise novel legal theories or facial or as-applied constitutional challenges to Neb. Rev. Stat. § 28-311 did not constitute deficient performance.
Key quotations
“As such, we conclude that parental permission is an affirmative defense despite its presence in the same statute as that setting forth the crime of child enticement.” (663)
“A defendant need only adduce a slight amount of evidence to satisfy this initial burden of raising an affirmative defense.” (664)
“The court erred insofar as it speculated that the jury could have found tampering prior to August 30, 2015, because there was insufficient evidence to support such a factual finding.” (667)
“The Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not [e]nsure that defense counsel will recognize and raise every conceivable constitutional claim.” (668)
Factual background
Kipple invited girls under age 14 into his home and bedroom, paid them money and gifts for household chores, and had them pose for photographs while wearing swimsuits and other revealing clothing. He was also accused of threatening one girl, K.G., to induce her to withhold testimony after he became aware of an official proceeding or investigation. The jury convicted him of two counts of child enticement and one count of witness tampering. The evidence established that Kipple could have known of an official proceeding only after his September 24, 2015, arrest, which was after the August 30, 2015, effective date of the statutory amendment reducing the maximum sentence for a Class IV felony.
Procedural history
Kipple was convicted by a jury of two counts of criminal child enticement and one count of witness tampering and received consecutive sentences. No direct appeal was filed. In postconviction proceedings, the district court granted relief permitting a new direct appeal and dismissed the remaining postconviction allegations without prejudice pending that appeal. The Nebraska Supreme Court affirmed the convictions and the child-enticement sentences, but vacated the witness-tampering sentence and remanded for resentencing under the post-2015 statutory sentencing limits.
Remand instructions
Vacate the sentence for witness tampering and remand for resentencing under the post-August 30, 2015, sentencing law. The convictions and sentences for child enticement and the witness-tampering conviction remain affirmed; retrial is unnecessary.