Summary
The Nebraska Supreme Court held that, in a prosecution for enticement by electronic communication device involving a minor rather than a decoy, the defendant's knowledge that the recipient was under 16 is an element of the offense. Because the jury was not instructed on that element and the error was prejudicial, the court reversed the conviction and remanded for a new trial. The court also concluded that double jeopardy did not bar retrial.
Topics
Practice areas
Questions Presented
- Whether Neb. Rev. Stat. § 28-833 requires the State to prove that a defendant knew the recipient of an electronic communication was under 16 when the recipient is a minor child rather than a decoy.
- Whether the district court's failure to instruct the jury on the defendant's knowledge of the recipient's age was prejudicial rather than harmless error.
- Whether the Double Jeopardy Clause permits a new trial after reversal for instructional error.
Holdings
- When a prosecution under § 28-833 involves a minor child rather than a decoy, the defendant's knowledge that the recipient is under 16 is a material element of enticement by electronic communication device.
- The district court's failure to instruct the jury that it had to find Paez knew A.F. was under 16 was prejudicial error requiring reversal.
- Double jeopardy does not preclude a new trial because the evidence admitted at trial, if believed, was sufficient to sustain a guilty verdict, and Paez stipulated to a remand for a new trial.
Key quotations
“We conclude that where the prosecution under § 28-833 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.” (683)
“We cannot say that the jury’s verdict was “surely unattributable” to the instruction that failed to inform it that in order to find Paez guilty, the State needed to prove that he knew A.F. was under age 16.” (684)
Factual background
Nineteen-year-old Kobe Paez communicated through Instagram with A.F., who was 14 years old, after they met at a swimming pool. The conversation became sexual, and Paez and A.F. later met that night. Paez told police that he believed A.F. was 17 or 18, while the State presented evidence concerning whether Paez knew she was under 16. The jury acquitted Paez of first degree sexual assault but convicted him of enticement by electronic communication device.
Procedural history
The State charged Paez with first degree sexual assault and enticement by electronic communication device. A jury acquitted him of sexual assault but convicted him of enticement, and the district court sentenced him to 36 months of probation. On appeal, the State suggested remand and Paez stipulated to that relief; the Nebraska Supreme Court addressed the legal issue in a detailed opinion, reversed the judgment, and remanded for a new trial.
Remand instructions
Reverse the district court's judgment and conduct a new trial on the charge of enticement by electronic communication device, with an instruction requiring the jury to determine whether Paez knew the recipient was under 16.