State v. Kipple, 968 N.W.2d 613

Background

Kipple was accused of inviting girls under 14 into his home/bedroom, paying them (cash/gifts) to do chores and to be photographed in swimsuits; multiple girls testified similarly.
Initial charges for possession of sexually explicit images and child abuse were reduced after the court suppressed the photos/videos; he was later charged with two counts of criminal child enticement (Neb. Rev. Stat. § 28-311(1)(b)) and one count of witness tampering.
A jury convicted Kipple on the two enticement counts and the tampering count; sentences: 12–12 months (each enticement) and 12–60 months (tampering), to run consecutively.
No direct appeal was filed initially; Kipple obtained postconviction relief to pursue a direct appeal alleging, among other things, ineffective assistance for counsel’s failure to file an appeal.
On appeal the court reviewed: alleged prosecutorial misconduct; whether lack of parental permission is an element or an affirmative defense under § 28-311; whether the tampering sentence relied on pre-/post-L.B. 605 timing; and whether counsel was ineffective for not challenging § 28-311’s constitutionality.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct (opening/closing/rebuttal)	Statements were not improper given instructions and evidence; no prejudice.	Prosecutor’s remarks were personal attacks and inflammatory; plain error review warranted because no contemporaneous objections.	No plain error: remarks were hyperbolic but not so improper as to prejudice given jury instructions and strong evidence.
Instruction on absence of parental permission under § 28-311(2)(a)	Parental-permission language is an affirmative defense in the statute; State must disprove only after defendant raises it.	Kipple argued absence of permission is an element and court should have instructed jury (and counsel ineffective for not objecting).	Held that § 28-311(2)(a) is an affirmative defense; Kipple failed to produce the slight evidence required to raise it, so no instruction or ineffective assistance.
Witness tampering timing and sentence (pre-/post-L.B. 605)	Evidence only supports tampering after Kipple’s arrest (post–Aug 30, 2015); sentencing error should be corrected by resentencing under post-L.B. 605 limits.	Kipple argued the jury could have relied on pre–Aug 30 threats and that counsel erred by not seeking a jury date finding (or retrial is required).	Court vacated the tampering sentence and remanded for resentencing under post–L.B. 605 because trial evidence supported tampering only after Aug 30; counsel’s omission was not prejudicial.
Counsel’s failure to move to quash/dismiss § 28-311 as facially or as-applied unconstitutional	Kipple: counsel should have raised novel constitutional challenges to § 28-311.	State: failure to raise novel claims is not deficient; Nebraska precedent supports counsel’s discretion.	No ineffective assistance: failing to make a novel or novel-as-applied constitutional challenge was not deficient performance.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes ineffective-assistance two-prong standard)
Engle v. Isaac, 456 U.S. 107 (counsel not required to raise every conceivable constitutional claim)
State v. Grutell, 305 Neb. 843 (affirmative defenses and the defendant’s burden to go forward)
State v. Casares, 291 Neb. 150 (standards for deciding ineffective-assistance claims on direct appeal)
State v. Magallanes, 284 Neb. 871 (when ineffective-assistance claims can be resolved on direct appeal)
State v. Custer, 292 Neb. 88 (plain-error review for prosecutorial misconduct claims)
State v. Yeutter, 252 Neb. 857 (trial court’s duty to instruct on issues presented by pleadings and evidence)