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Nebraska Supreme Court Advance S

302 Nebraska Report

STATE v. PAEZ

Cite as 302 Neb. 676

State of Nebraska, appellee,

v. Kobe Paez, appella

___ 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 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 

remanded for a new trial.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/19/2019 12:08 AM CDT
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Nebraska Supreme Court Advance S

302 Nebraska Report

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, Stac

Papik, and Freudenberg, 

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.” 

1 Neb. Rev. Stat. § 28-833 (Reissue 2016).
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Nebraska Supreme Court Advance S

302 Nebraska Report

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 “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.
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Nebraska Supreme Court Advance S

302 Nebraska Report

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 communication 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 determining 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 electronic 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 Advance S

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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 intentionally . . . 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 conversation 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 elements. 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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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 transport[] 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 application of “knowingly” to the phrase “use of a minor.”

[2] The X-Citement Video, Inc. Court provided several reasons 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 statutory 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 Advance S

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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 enticement by electronic communication device rather than merely 

enhancing the penalty for the crime of intimidation by telephone.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 recipient’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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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 supervision, 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 element 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 purposes, 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 defendant’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).
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STATE v. PAEZ

Cite as 302 Neb. 676

prosecution.23 In contrast, utilizing an electronic communication device to transmit lewd or sexually explicit material or 

to offer or solicit indecent acts is not a crime when the recipient 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 erroneous 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 unattributable 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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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 element 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 communication device.

 Stipulation allowed. Reverse

remanded for a new tria

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