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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. KIPPLE

Cite as 310 Neb. 654

State of Nebraska, appellee, v. 

Kenneth M. Kipple, 

appellant.

___ N.W.2d ___

Filed January 7, 2022. No. S-20-810.

1. Appeal and Error. Consideration of plain error occurs at the discretion 

of an appellate court.

2. Effectiveness of Counsel: Constitutional Law: Statutes: Records: 

Appeal and Error. Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, 

which turns upon the sufficiency of the record to address the claim 

without an evidentiary hearing or whether the claim rests solely on the 

interpretation of a statute or constitutional requirement.

3. Appeal and Error. Plain error may be found on appeal when an error 

unasserted or uncomplained of at trial, but plainly evident from the 

record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness 

of the judicial process.

4. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial 

counsel is different from his or her counsel on direct appeal, the defend

ant must raise on direct appeal any issue of trial counsel’s ineffective 

performance which is known to the defendant or is apparent from the 

record. Otherwise the issue will be procedurally barred.

5. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel, the defendant must show that counsel’s perform

ance was deficient and that this deficient performance actually prejudiced his or her defense.

6. Effectiveness of Counsel: Records: Appeal and Error. The fact that 

an ineffective assistance of trial counsel claim is raised on direct appeal, 

however, does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review 

the question.

Nebraska Supreme Court Online Library

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

04/01/2022 09:08 AM CDT
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7. ____: ____: ____. To make the determination as to whether the record is 

sufficient in an ineffective assistance of counsel case to decide the issue 

on direct appeal, an appellate court must have knowledge of the specific 

conduct alleged to constitute deficient performance.

8. Effectiveness of Counsel: Postconviction: Records: Appeal and 

Error. An ineffective assistance of counsel claim is raised on direct 

appeal when allegations of deficient performance are made with enough 

particularity for (1) an appellate court to make a determination of 

whether the claim can be decided upon the trial record and (2) a district 

court later reviewing a petition for postconviction relief to be able to 

recognize whether the claim was brought before the appellate court.

9. Claims: Effectiveness of Counsel. A claim of ineffective assistance of 

counsel insufficiently stated is no different than a claim not stated at all.

10. Trial: Effectiveness of Counsel: Appeal and Error. Appellate courts 

have generally reached ineffective assistance of counsel claims on direct 

appeal only in those instances where it was clear from the record that 

such claims were without merit or in the rare case where trial counsel’s 

error was so egregious and resulted in such a high level of prejudice that 

no tactic or strategy could overcome the effect of the error, which effect 

was a fundamentally unfair trial.

11. Effectiveness of Counsel: Records: Appeal and Error. An ineffective 

assistance of counsel claim made on direct appeal can be found to be 

without merit if the record establishes that trial counsel’s performance 

was not deficient or that the appellant could not establish prejudice.

12. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant 

has not preserved a claim of prosecutorial misconduct for direct appeal, 

an appellate court will review the record only for plain error.

13. Appeal and Error. An appellate court applies the plain error exception 

to the contemporaneous-objection rule sparingly.

14. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial misconduct encompasses conduct that violates legal or ethical standards for 

various contexts because the conduct will or may undermine a defend

ant’s right to a fair trial.

15. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial 

misconduct, a court first determines whether the prosecutor’s remarks 

were improper. It is then necessary to determine the extent to which the 

improper remarks had a prejudicial effect on the defendant’s right to a 

fair trial.

16. Juries. Juries are generally able to ignore hyperbole and decide cases 

submitted to them based upon the evidence.

17. Statutes: Legislature: Presumptions: Appeal and Error. An appellate 

court presumes that the Legislature was aware of the meaning of a term 

when it chose to employ that term in statutory language.
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STATE v. KIPPLE

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18. Criminal Law: Trial: Evidence: Proof. In the absence of a statute 

placing the burden of proving an affirmative defense on the defendant 

in a criminal case, the nature of an affirmative defense is such that the 

defendant has the initial burden of going forward with evidence of the 

defense, and once the defendant has produced sufficient evidence to 

raise the defense, the issue becomes one which the State must disprove.

19. ____: ____: ____: ____. In a criminal case, the evidence necessary to 

raise an affirmative defense may be adduced either by the defendant’s 

witnesses or in the State’s case in chief without the necessity of the 

defendant’s presenting evidence. A defendant need only adduce a slight 

amount of evidence to satisfy this initial burden of raising an affirmative defense.

20. Effectiveness of Counsel. Counsel’s failure to raise novel legal theories 

or arguments or to make novel constitutional challenges in order to bring 

a change in existing law does not constitute deficient performance.

21. Constitutional Law: Criminal Law: Effectiveness of Counsel. The 

Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not ensure that defense counsel will recognize 

and raise every conceivable constitutional claim.

Appeal from the District Court for Holt County: Mark D. 

Kozisek, Judge. Affirmed in part, and in part vacated and 

remanded for further proceedings.

Gerald L. Soucie for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

Kenneth M. Kipple was convicted of two counts of child 

enticement and one count of tampering with a witness. No 

direct appeal was filed. Kipple retained new counsel and filed 

a postconviction motion that alleged ineffective assistance of 

counsel in various particulars, including trial counsel’s failure 

to file a direct appeal. The district court granted Kipple a new 

direct appeal. This is that appeal.
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STATE v. KIPPLE

Cite as 310 Neb. 654

We affirm Kipple’s convictions for child enticement and for 

witness tampering, and we also affirm Kipple’s sentences for 

child enticement. We vacate Kipple’s sentence for witness tampering and remand the cause for further proceedings.

BACKGROUND

Kipple’s convictions were based on allegations that he 

invited two girls under the age of 14 into his home, specifically 

his bedroom, and took photographs of them wearing swimsuits 

provided by him. The girls testified that they did odd jobs 

around Kipple’s home and were paid in cash and gifts and that 

eventually, the performance of these odd jobs also included 

posing for photographs. These accounts were corroborated by 

the testimony of a third girl that said the same thing had happened to her.

Kipple was originally charged with four counts of possession of a visual depiction of sexually explicit conduct, 1

one count of child abuse, 2 and one count of tampering with 

a witness. 3 Kipple’s motion to suppress the photographs and 

videos that provided the basis for the charges against him 

was granted.

Thereafter, Kipple was charged with two counts of criminal child enticement 4 and one count of witness tampering. 

Following a jury trial, Kipple was convicted. He was sentenced 

to 12 to 12 months’ imprisonment for each child enticement 

conviction and 12 to 60 months’ imprisonment for the witness tampering conviction, with the sentences to be served 

consecutively.

No direct appeal was filed. Kipple then retained counsel 

that filed a motion for postconviction relief, alleging the ineffectiveness of counsel in failing to file an appeal, as well as 

1 Neb. Rev. Stat. § 28-813.01 (Supp. 2015).

2 Neb. Rev. Stat. § 28-707 (Reissue 2016).

3 Neb. Rev. Stat. § 28-919 (Reissue 2016).

4 Neb. Rev. Stat. § 28-311(1)(b) (Reissue 2016).
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STATE v. KIPPLE

Cite as 310 Neb. 654

additional allegations. The district court dismissed the other 

allegations without prejudice pending the pursuit of a direct 

appeal. As noted, this is that appeal.

ASSIGNMENTS OF ERROR

Kipple assigns, restated and renumbered, that (1) the State 

engaged in prosecutorial misconduct in opening, closing, and 

rebuttal arguments; (2) the district court committed plain error 

when it failed to instruct the jury of the State’s duty under 

§ 28-311(2)(a) to prove the lack of “express or implied permission of a parent or guardian,” and trial counsel was ineffective 

for failing to object to the jury instructions for not including 

that element; (3) his sentence for witness tampering was plain 

error because the district court’s finding that the jury could 

have found tampering before August 30, 2015, was incorrect 

and thus he was sentenced under the incorrect version of the 

sentencing statute, and relatedly, his trial counsel was ineffective for failing to seek a jury finding as to the date of the 

alleged witness tampering; and (4) trial counsel was ineffective 

in failing to move to quash the amended information on the 

basis of the facial unconstitutionality of § 28-311 and failing to 

move to dismiss charges on the basis that § 28-311 was unconstitutionally applied to Kipple’s conduct.

STANDARD OF REVIEW

[1] Consideration of plain error occurs at the discretion of 

an appellate court. 5

[2] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of 

law, which turns upon the sufficiency of the record to address 

the claim without an evidentiary hearing or whether the claim 

rests solely on the interpretation of a statute or constitutional 

requirement. 6

5 State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012).

6 State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).
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STATE v. KIPPLE

Cite as 310 Neb. 654

ANALYSIS

In this direct appeal, Kipple raises several distinct legal 

issues. Recognizing that his trial counsel failed to object to any 

of those issues at trial or, in the case of his first assignment of 

error, seek a mistrial, Kipple argues that the error was plain, 

that trial counsel was ineffective, or both.

[3] Before we turn to the legal issues presented by this 

appeal, some general propositions are helpful. Plain error may 

be found on appeal when an error unasserted or uncomplained 

of at trial, but plainly evident from the record, prejudicially 

affects a litigant’s substantial right and, if uncorrected, would 

result in damage to the integrity, reputation, and fairness of the 

judicial process. 7

[4] When a defendant’s trial counsel is different from his 

or her counsel on direct appeal, the defendant must raise on 

direct appeal any issue of trial counsel’s ineffective perform

ance which is known to the defendant or is apparent from the 

record. 8 Otherwise the issue will be procedurally barred. 9

[5,6] To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,

 10 the defendant must show 

that counsel’s performance was deficient and that this deficient 

performance actually prejudiced his or her defense. 11 The fact 

that an ineffective assistance of trial counsel claim is raised on 

direct appeal, however, does not necessarily mean that it can 

be resolved. 12 The determining factor is whether the record is 

sufficient to adequately review the question. 13

7 State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019).

8 State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017); State v. Casares, 

291 Neb. 150, 864 N.W.2d 667 (2015).

9 Id.

10 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

11 State v. Casares, supra note 8.

12 See State v. Mora, supra note 8.

13 Id.
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[7-9] To make that determination, an appellate court must 

have knowledge of the specific conduct alleged to constitute deficient performance. 14 Thus, an ineffective assistance of 

counsel claim is raised on direct appeal when allegations of 

deficient performance are made with enough particularity for 

(1) an appellate court to make a determination of whether the 

claim can be decided upon the trial record and (2) a district 

court later reviewing a petition for postconviction relief to be 

able to recognize whether the claim was brought before the 

appellate court. 15 A claim insufficiently stated is no different 

than a claim not stated at all. 16

[10,11] Appellate courts have generally reached ineffective 

assistance of counsel claims on direct appeal only in those 

instances where it was clear from the record that such claims 

were without merit or in the rare case where trial counsel’s 

error was so egregious and resulted in such a high level of 

prejudice that no tactic or strategy could overcome the effect 

of the error, which effect was a fundamentally unfair trial. 17 An 

ineffective assistance of counsel claim made on direct appeal 

can be found to be without merit if the record establishes that 

trial counsel’s performance was not deficient or that the appellant could not establish prejudice. 18

Prosecutorial Misconduct

Kipple first assigns misconduct in opening, closing, and 

rebuttal statements by the prosecutor. Acknowledging that his 

trial counsel did not object, Kipple argues that we should find 

plain error.

[12,13] When a defendant has not preserved a claim of 

prosecutorial misconduct for direct appeal, we will review the 

14 See id.

15 Id.

16 Id.

17 State v. Casares, supra note 8.

18 Id.
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record only for plain error. 19 We apply the plain error exception 

to the contemporaneous-objection rule sparingly. 20 Therefore, 

in this case, we will review the record for plain error with 

regard to Kipple’s allegations of prosecutorial misconduct.

[14,15] Prosecutorial misconduct encompasses conduct that 

violates legal or ethical standards for various contexts because 

the conduct will or may undermine a defendant’s right to a fair 

trial. 21 In assessing allegations of prosecutorial misconduct, a 

court first determines whether the prosecutor’s remarks were 

improper. It is then necessary to determine the extent to which 

the improper remarks had a prejudicial effect on the defend

ant’s right to a fair trial. 22

Kipple takes issue with various statements made by the 

State, which he argues amount to a personal attack on his 

character designed to inflame the jury. Having reviewed those 

statements, we disagree. While some of the statements were 

perhaps provocative, we cannot conclude that they were so 

improper as to rise to a level necessitating reversal.

[16] First, we have suggested that juries are generally able to 

ignore these types of hyperbole and decide cases submitted to 

them based upon the evidence. 23 In keeping with that, the jury 

was instructed that counsel’s statements were not evidence. In 

addition, most of the statements challenged by Kipple were 

made during opening arguments, and thus, any prejudice was 

lessened by the production of evidence at trial. And finally, the 

evidence against Kipple was ample.

For these reasons, the statements, when considered as a 

whole with the evidence presented at Kipple’s trial, would 

not amount to a miscarriage of justice. Having found no plain 

error, we determine Kipple’s argument is without merit.

19 State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).

20 Id.

21 Id.

22 See id.

23 See State v. Gonzalez, 294 Neb. 627, 884 N.W.2d 102 (2016).
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STATE v. KIPPLE

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Instruction on Absence of Permission

Kipple next assigns that the district court erred by failing to 

instruct the jury on the absence of permission as an element of 

§ 28-311(2)(a). He also assigns that trial counsel was ineffective in not objecting to the district court’s failure to instruct.

The statute in question, § 28-311, states in relevant part:

[(1)](b) No person, by any means and without privilege 

to do so, shall solicit, coax, entice, or lure or attempt to 

solicit, coax, entice, or lure any child under the age of 

fourteen years to enter into any place with the intent to 

seclude the child from his or her parent, guardian, or other 

legal custodian or the general public, whether or not the 

person knows the age of the child. For purposes of this 

subdivision, seclude means to take, remove, hide, secrete, 

conceal, isolate, or otherwise unlawfully separate.

(2) It is an affirmative defense to a charge under this 

section that:

(a) The person had the express or implied permission 

of the parent, guardian, or other legal custodian of the 

child in undertaking the activity.

We turn to the arguments on appeal, namely whether 

§ 28-311(2) is an element of the crime of child enticement or 

an affirmative defense. We have noted:

As a general rule, most jurisdictions hold that when 

a statutory exception appears in the statute defining the 

crime, the prosecution is required to plead and prove the 

defendant does not fall within the exception, but when the 

exception appears in a separate statute, it is considered a 

matter of defense. Cases in Nebraska have followed this 

general rule. 24

[17] The issue in this case, of course, is that parental 

permission is located within the same statute as the underlying crime of child enticement, but is specifically labeled as 

an affirmative defense. We presume that the Legislature was 

24 State v. Grutell, 305 Neb. 843, 854, 943 N.W.2d 258, 266 (2020).
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aware of the meaning of that term when it chose to employ it in 

§ 28-311(2). 25 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.

[18,19] Having concluded as such, we turn to the procedure 

underlying the consideration of affirmative defenses.

[We have] recognized that courts in some jurisdictions 

require criminal defendants to bear the burden of proving 

an affirmative defense. But in Nebraska, we have adopted 

the rule that in the absence of a statute placing the burden 

of proving an affirmative defense on the defendant in a 

criminal case, the nature of an affirmative defense is such 

that the defendant has the initial burden of going forward 

with evidence of the defense, and once the defendant has 

produced sufficient evidence to raise the defense, the 

issue becomes one which the State must disprove. The 

evidence necessary to raise an affirmative defense may 

be adduced either by the defendant’s witnesses or in the 

State’s case in chief without the necessity of the defend

ant’s presenting evidence. A defendant need only adduce 

a slight amount of evidence to satisfy this initial burden 

of raising an affirmative defense. 26

We begin by considering whether Kipple has met his initial 

burden of going forward with evidence of the parental permission affirmative defense. Kipple, of course, did not request an 

instruction on this affirmative defense. But we have held in 

similar contexts that “[w]hether requested to do so or not, a 

trial court has the duty to instruct the jury on issues presented 

by the pleadings and the evidence.” 27 For example, in State v. 

Yeutter,

 28 we considered whether the defendant was entitled 

25 Cf. State v. Goynes, 293 Neb. 288, 876 N.W.2d 912 (2016).

26 Grutell, supra note 24, 305 Neb. at 856, 943 N.W.2d at 267-68. See, also, 

State v. Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013).

27 State v. Yeutter, 252 Neb. 857, 862, 566 N.W.2d 387, 391 (1997).

28 Yeutter, supra note 27.
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to a self-defense instruction in the absence of having sought 

one at trial.

The language of the affirmative defense in § 28-311(2)(a) 

holds that “[i]t is an affirmative defense to a charge under this 

section that . . . [t]he person had the express or implied permission of the parent, guardian, or other legal custodian of the 

child in undertaking the activity.”

In order to analyze whether Kipple met his initial burden, 

we must interpret the phrase “undertaking the activity.” We 

note that the statute refers to the same concept in creating 

other affirmative defenses to criminal child enticement. 29 We 

also note that § 28-311 provides two different ways that one 

can commit the offense of criminal child enticement, one 

focusing on enticing the child to enter a vehicle and one enticing a child to enter into “any place.” We find it most natural 

to interpret “the activity” for purposes of these affirmative 

defenses to refer to the act or acts that formed the liability 

under § 28-311(1). The phrase is not defined elsewhere, and 

that is the only “activity” discussed in the statute.

In this case, the affirmative defense of § 28-311(2)(a) would 

apply if Kipple had the express or implied permission of the 

parents or guardians to do what the State contended he did to 

violate § 28-311(2)(a). Kipple argues there was evidence of 

necessary permission. He relies heavily on evidence that the 

children were given permission to enter Kipple’s home to help 

with housekeeping chores. But the fact that permission was 

given for the children to be present in Kipple’s home does 

not establish what is necessary for the affirmative defense 

to apply.

Here, the State’s theory at trial was that Kipple committed the offense by convincing the children, through the payment of money and cigarettes and with threats that he would 

have their families evicted from the trailer court where they 

lived if they did not comply, to enter his bedroom and be 

29 See § 28-311(2)(b) and (c).
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photographed wearing swimsuits and other revealing clothes 

with the intent to seclude them there. The relevant question 

is whether Kipple had the express or implied permission to 

“undertak[e] [that] activity.”

On that question, we find no suggestion in the evidence that 

the parents or guardians gave the requisite permission. Here, 

we find relevant the statutory definition of “seclude” which is 

“to take, remove, hide, secrete, conceal, isolate, or otherwise 

unlawfully separate.” 30 These terms suggest that in order for 

the defendant to take some action with “the intent to seclude,” 

he or she must intend to create a situation where the child is 

purposely hidden from the sight of others. 31 There is no indication here that the parents or guardians approved of Kipple’s 

attempting to get the children to enter his bedroom with such 

intent. As such, Kipple failed to meet his initial burden.

Nor is there merit to Kipple’s argument regarding the ineffective assistance of counsel. Kipple did not meet his burden to 

show that he was entitled to an instruction on the affirmative 

defense of parental permission, and therefore, he cannot show 

that counsel was ineffective for failing to request the instruction. There is no merit to this assignment of error.

Witness Tampering

Kipple also assigns that there was plain error in the district 

court’s conclusion that witness tampering could have taken 

place between September 24, 2014, and September 28, 2015, 

and that counsel was ineffective for failing to seek a finding by 

the jury as to the date of the alleged tampering.

Some factual background is helpful. Kipple was accused of 

tampering only with respect to K.G. The jury was instructed 

that the State had to prove that Kipple, at a time when he 

believed an official proceeding or investigation was pending or 

was about to be instituted, attempted to induce K.G. to withhold her testimony.

30 § 28-311(1)(b).

31 See id.
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The jury was instructed that any tampering had to occur 

between September 24, 2014, and September 28, 2015, which 

was the same date and time period alleged as to the child 

enticement charges. The jury found Kipple guilty, but was not 

asked to—and therefore did not—identify the date on which it 

found witness tampering to have occurred.

Meanwhile 2015 Neb. Laws, L.B. 605, § 6, which changed 

the maximum sentence for a Class IV felony from 5 years’ 

imprisonment to 2 years’ imprisonment, became effective on 

August 30, 2015. Trial counsel objected to sentencing Kipple 

to 5 years’ imprisonment under the pre-L.B. 605 statutory limits, but the district court concluded that there was evidence that 

Kipple had engaged in tampering prior to August 30.

The State agrees that the sentence was error. It notes that 

there was evidence that between September 24 and 28, 2015, 

Kipple had contact with K.G. and that K.G. testified Kipple 

threatened her. Kipple had been arrested on September 24, and 

therefore, he was aware that he was facing an official proceeding for purposes of the elements of witness tampering. While 

there was also testimony that Kipple had threatened K.G. 

between September 24, 2014, and September 23, 2015, the 

State argues that there is no evidence that Kipple was aware of 

the possibility of the institution of official proceedings against 

him. As such, the State asserts that Kipple’s sentence for witness tampering should be vacated and the cause be remanded 

for resentencing under the post-L.B. 605 law.

Kipple, though, contends that we cannot know if the jury 

relied on the pre-August 30, 2015, threats that K.G. testified 

about or the post-August 30 threats, which she also testified 

about, and therefore, the cause should be remanded for retrial 

with respect to K.G.’s allegations about threats made between 

September 24 and 28, 2015. We agree with the State.

There is no dispute that the jury was properly instructed as 

to the elements of witness tampering and that those instructions included a requirement that the jury find Kipple had 

to have known of the possibility of the institution of official 
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charges in order to be convicted. As the State argues, there was 

only evidence as to this after Kipple was arrested on September 

24, 2015, and therefore after August 30.

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. 

Contrary to Kipple’s contention, the evidence offered at trial 

supported a conviction for tampering only after August 30. As 

such, the retrial sought by Kipple is unnecessary; the remand 

for resentencing as sought by the State is sufficient.

Kipple also contends that his counsel was ineffective for 

failing to seek a specific jury finding as to the date of witness 

tampering. But even if this was deficient conduct, it was not 

prejudicial, as is demonstrated above: The evidence was sufficient only to find witness tampering occurred after August 

30, 2015.

There is no merit to Kipple’s assignments of error.

Constitutionality of § 28-311

Finally, Kipple assigns that trial counsel was ineffective for 

failing to file a motion to quash the information for the reason 

that § 28-311 was facially unconstitutional and was ineffective for failing to file a motion to dismiss on the grounds that 

§ 28-311(1)(b) was unconstitutional as applied to Kipple.

[20,21] We find no merit to Kipple’s argument that his 

counsel was ineffective. We have held that counsel’s failure 

to raise novel legal theories or arguments or to make novel 

constitutional challenges in order to bring a change in existing 

law does not constitute deficient performance. 32 While we recognize that Ohio has found a similar statute unconstitutional, 33

the statute in that case is distinct from Nebraska’s statute in 

several ways, and as an Ohio case, not controlling precedent 

32 State v. Sanders, 289 Neb. 335, 855 N.W.2d 350 (2014).

33 State v. Romage, 2014 Ohio 783, 138 Ohio St. 3d 390, 7 N.E.3d 1156 

(2014).
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in Nebraska. Moreover, as the U.S. Supreme Court has previously observed, “the Constitution guarantees criminal defend

ants only a fair trial and a competent attorney. It does not 

[e]nsure that defense counsel will recognize and raise every 

conceivable constitutional claim.” 34

Trial counsel’s failure to raise a facial or as-applied challenge to § 28-311(2) was not deficient conduct, and therefore, 

counsel was not ineffective. There is no merit to this assignment of error.

CONCLUSION

We affirm Kipple’s convictions for child enticement and for 

witness tampering. We also affirm Kipple’s sentences for child 

enticement. We vacate Kipple’s sentence for witness tampering 

and remand the cause for further proceedings.

Affirmed in part, and in part vacated and 

remanded for further proceedings.

34 Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 71 L. Ed. 2d 783 

(1982).