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05/10/2019 09:07 AM CDT




                                                       - 676 -
                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                                  STATE v. PAEZ
                                                Cite as 302 Neb. 676




                                        State of Nebraska, appellee,
                                          v. Kobe Paez , appellant.
                                                  ___ N.W.2d ___

                                        Filed March 29, 2019.    No. S-18-412.

                 1. Jury Instructions: Appeal and Error. Whether jury instructions are
                    correct is a question of law, which an appellate court resolves indepen-
                    dently 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:
               A ndrea D. Miller, Judge. Stipulation allowed. Reversed and
               remanded for a new trial.
                                   - 677 -
              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                               STATE v. PAEZ
                             Cite as 302 Neb. 676

    Sterling T. Huff, P.C., 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 elec-
tronic 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.”

1
    Neb. Rev. Stat. § 28-833 (Reissue 2016).
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                          STATE v. PAEZ
                        Cite as 302 Neb. 676

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 “know-
ingly 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 dis-
posing 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.
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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                               STATE v. PAEZ
                             Cite as 302 Neb. 676

                   STANDARD OF REVIEW
  [1] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision.2
                            ANALYSIS
   The parties agree that the court erred in instructing the jury
on the material elements of enticement by electronic communi-
cation device. The court instructed the jury that the elements of
enticement by electronic communication device were:
         1. That the defendant did knowingly and intentionally
      utilize an electronic device to contact [A.F.]; and
         2. That at the time [A.F.] was less than sixteen years
      of age; and
         3. That at the time the defendant was nineteen years of
      age or o[l]der; and
         4. That the defendant did:
         a. Use or transmit any indecent, lewd, lascivious, or
      obscene language, writing, or sound; or
         b. Offer or solicit any indecent, lewd, or lascivious act.
         5. That he did so on or about the date charged in Scotts
      Bluff County, Nebraska.
The parties contend that the court should have instructed the
jury in a manner that required it to consider whether Paez knew
or believed A.F. was a child under 16 years old.
   We begin with the plain language of the statute in determin-
ing whether knowledge of the recipient’s age is an essential
element of the crime. Section 28-833(1) provides:
      A person commits the offense of enticement by elec-
      tronic communication device if he or she is nineteen
      years of age or over and knowingly and intentionally
      utilizes an electronic communication device to contact a
      child under sixteen years of age or a peace officer who

2
    State v. Lessley, 301 Neb. 734, 919 N.W.2d 884 (2018).
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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                               STATE v. PAEZ
                             Cite as 302 Neb. 676

      is believed by such person to be a child under sixteen
      years of age . . . .
(Emphasis supplied.) We addressed this statutory language in
State v. Kass.3 There, we emphasized that
      to violate § 28-833, a person must “knowingly and inten-
      tionally . . . contact” the minor or decoy. We construe
      this language to mean that the statute only applies when
      a person uses the prohibited speech in a private conversa-
      tion with a minor or a decoy. In other words, the statute
      only applies when the defendant is speaking exclusively
      to a minor or decoy.4
We explained that “the statute proscribes a person age 19 or
older from knowingly and intentionally using an electronic
communication device to contact a child under age 16, or
peace officer whom the person believes to be a child under
age 16, and using language that conjures up repugnant sexual
images.”5 But where the prosecution under § 28-833 involves
a minor child rather than a decoy, our case law is not explicit
whether the defendant must know that the child is under 16
years old.
   In the context of a different criminal statute, we determined
that the specified intent applied to all of the crime’s ele-
ments. In State v. Scott,6 we considered the crime of unlawful
membership recruitment into an organization or association,
which included a requirement that the defendant “knowingly
and intentionally” committed the act.7 We determined that
the mens rea should be applied to all of the elements of the
crime. Applying that same reasoning here would require a

3
    State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).
4
    Id. at 902, 799 N.W.2d at 690.
5
    Id. at 903, 799 N.W.2d at 690.
6
    State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).
7
    See Neb. Rev. Stat. § 28-1351 (Cum. Supp. 2018).
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                                STATE v. PAEZ
                              Cite as 302 Neb. 676

defendant to have actual knowledge that the recipient is under
age 16.
   The U.S. Supreme Court’s decision in United States v.
X-Citement Video, Inc.8 informs our analysis. There, the statute
at issue made it illegal for any person to “knowingly trans-
port[] or ship[] . . . any visual depiction, if—(A) the producing
of such visual depiction involves the use of a minor engaging
in sexually explicit conduct; and (B) such visual depiction is of
such conduct.”9 The Court interpreted the language to require
knowledge of the minor’s age, even though the most logical
grammatical reading of the statute would not include applica-
tion of “knowingly” to the phrase “use of a minor.”
   [2] The X-Citement Video, Inc. Court provided several rea-
sons to require such knowledge. First, because transporting
and shipping magazines and film was not a public welfare
offense, “[p]ersons do not harbor settled expectations that
the contents of magazines and film are generally subject to
stringent public regulation.”10 Thus, those charged under the
statute were unlikely to realize that their conduct might be
prohibited. Second, the harsh penalties provided in the statute
indicated that Congress did not intend to dispense with mens
rea. Third, precedent “instructs that the presumption in favor
of a scienter requirement should apply to each of the statu-
tory elements that criminalize otherwise innocent conduct.”11
Under the statute, innocent conduct would violate the statute
in the absence of a knowledge of age requirement. Fourth,
without a requirement concerning the minor’s age, the statute
would encroach on speech protected by the First Amendment.
The Court also looked to the statute’s legislative history, but

 8
     United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464, 130
     L. Ed. 2d 372 (1994).
 9
     See 18 U.S.C. § 2252(a)(1) (2012).
10
     United States v. X-Citement Video, Inc., supra note 8, 513 U.S. at 71.
11
     Id., 513 U.S. at 72.
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                               STATE v. PAEZ
                             Cite as 302 Neb. 676

such history did not clarify whether the term “knowingly”
extended to the age of the performers.
   Like the history in X-Citement Video, Inc., the legislative
history of § 28-833 offers little insight. As introduced in 2007,
L.B. 142 clearly addressed knowledge of the recipient’s age:
“A violation . . . is a Class IV felony if the violator is over
eighteen years of age and knows or has reason to believe that
the recipient of the communication is less than sixteen years
of age.”12 But a committee amendment changed the bill as
introduced to create a new and separate offense of entice-
ment by electronic communication device rather than merely
enhancing the penalty for the crime of intimidation by tele-
phone.13 The amendment changed the language to require that
the violator “knowingly uses an electronic communication
device to contact a child under sixteen years of age or a peace
officer who is believed by such person to be a child under
sixteen years of age.”14 A floor amendment that was adopted
struck “‘uses’” and added “‘and intentionally utilizes.’”15 The
floor debate does not shed light on whether the Legislature
intended that the violator know that the recipient is under 16
years of age. In creating the new offense, it is unclear whether
the Legislature intended to eliminate the mens rea requirement
that it had previously proposed should attach to the recipi-
ent’s age.
   [3] Much of the rationale outlined in X-Citement Video, Inc.
applies here. Using an electronic communication device to
transmit, offer, or solicit sexual material or acts is not a public

12
     Introduced Copy, L.B. 142, Judiciary Committee, 100th Leg., 1st Sess.
     (Jan. 8, 2007).
13
     See Revised Committee Statement, L.B. 142, Amend. 579, Judiciary
     Committee, 100th Leg., 1st Sess. (Feb. 15, 2007).
14
     See Legislative Journal, 100th Leg., 1st Sess. 866 (Mar. 14, 2007).
15
     Floor Debate, L.B. 142, Judiciary Committee, 100th Leg., 1st Sess. 161
     (May 23, 2007).
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                                 STATE v. PAEZ
                               Cite as 302 Neb. 676

welfare offense,16 and individuals would not expect that the
contents of their communications might be proscribed. And, as
a Class IV felony,17 a violator could be punished by a maximum
of 2 years’ imprisonment and 12 months’ postrelease supervi-
sion, a $10,000 fine, or both.18 While this punishment is a far
cry from the harshest available, it is greater than one might
expect for an offense that required no mens rea outside of the
context of sexual assault of a child. Perhaps most important,
without a knowledge of age requirement, § 28-833 criminalizes
conduct that is otherwise innocent and could impinge on the
right to free speech. The age of the recipient “is the crucial ele-
ment separating legal innocence from wrongful conduct.”19 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.
   The statute and offense here are distinguishable from
those concerning sex trafficking. We recently held that a
defendant’s knowledge of a victim’s age is not an essential
element of the offense of sex trafficking of a minor.20 But
sex trafficking is a crime no matter the age of the victim.21
Whether the victim is a minor is important for gradation pur-
poses, because a victim’s minority subjects the defendant to
greater potential punishment.22 And we observe that the law
was changed in 2017 to specifically provide that a defend­
ant’s belief that the minor was an adult is not a defense to

16
     See Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 128 L. Ed. 2d
     608 (1994) (discussing public welfare offenses).
17
     § 28-833(2).
18
     Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2018).
19
     United States v. X-Citement Video, Inc., supra note 8, 513 U.S. at 73.
20
     See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
21
     See Neb. Rev. Stat. § 28-830 (Cum. Supp. 2018).
22
     See Neb. Rev. Stat. § 28-831 (Cum. Supp. 2018).
                                   - 684 -
               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                               STATE v. PAEZ
                             Cite as 302 Neb. 676

prosecution.23 In contrast, utilizing an electronic communica-
tion device to transmit lewd or sexually explicit material or
to offer or solicit indecent acts is not a crime when the recipi-
ent is age 16 or over (unless the recipient is “a peace officer
who is believed by [the defendant] to be a child under sixteen
years of age”).24
   [4] 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.25 Paez has met this
burden. Here, the court failed to instruct the jury in a manner
that required it to consider whether Paez knew A.F. was a child
under 16 years old. Whether Paez knew that A.F. was under
age 16 was a primary dispute at trial. And the jury’s acquittal
on the sexual assault charge shows that it had some issue with
the credibility of the State’s evidence.
   [5] For those same reasons, we cannot say that the erro-
neous jury instruction was harmless. 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 unat-
tributable to the error.26 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. We therefore
conclude that the error is prejudicial and requires reversal of
Paez’ conviction.
   [6] The next question is whether upon reversal, we may
remand the cause for a new trial. The Double Jeopardy Clause

23
     See 2017 Neb. Laws, L.B. 289, § 9.
24
     § 28-833(1).
25
     State v. Swindle, supra note 20.
26
     State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (2016).
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                                STATE v. PAEZ
                              Cite as 302 Neb. 676

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.27 There was
evidence, if believed, that Paez knew A.F. was under age 16.
Moreover, Paez has expressly stipulated to the precise relief
suggested by the State, which included a remand for a new
trial. Accordingly, we conclude that double jeopardy does not
preclude a remand for a new trial on the charge of enticement
by electronic communication device.

                       CONCLUSION
   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 a material ele-
ment of the crime of enticement by electronic communication
device. Because the district court failed to instruct the jury in
a manner that required it to consider whether Paez knew A.F.
was under 16 years of age, we allow the stipulation, reverse
the judgment of the district court, and remand the cause for a
new trial on the charge of enticement by electronic communi-
cation device.
	Stipulation allowed. R eversed and
                         remanded for a new trial.

27
     State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).
