State v. Paez, 925 N.W.2d 75

Defendant Kobe Paez (19) messaged and met A.F., a 14-year-old, via Instagram; messages became sexual and they met the same night.
Paez told police he believed A.F. was 17 or 18; A.F. did not dispute telling him she was 17.
State charged Paez with first-degree sexual assault and enticement by electronic communication device (Neb. Rev. Stat. § 28-833).
At trial, primary disputes were whether Paez knew A.F. was under 16 and whether sexual intercourse occurred; jury acquitted on sexual assault but convicted on enticement.
Paez objected to the enticement jury instruction as omitting a knowledge-of-age mens rea; the court refused his tendered instruction.
On appeal the State conceded the instruction was erroneous and not harmless; parties stipulated to remand and the Nebraska Supreme Court reversed and remanded for a new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 28-833 requires the State to prove the defendant knew the recipient was under 16 when the recipient is a real minor	State: knowledge-of-age is not an element when the recipient is a real minor (instruction adequate as given)	Paez: statute’s “knowingly and intentionally” mens rea must extend to the recipient’s age; jury should be instructed to that effect	Court: Where the recipient is a minor (not a decoy), the State must prove the defendant knew the recipient was under 16; failure to so instruct was prejudicial and requires reversal
Whether the instructional error was harmless	State: (conceded) not harmless	Paez: error was prejudicial given disputed knowledge and acquittal on related charge	Court: Error not harmless because juror’s basis for verdict may have relied on faulty instruction
Whether retrial is barred by double jeopardy	State: retrial appropriate; evidence could support guilt	Paez: (stipulated to remand)	Court: Double Jeopardy does not bar retrial where admitted evidence could sustain a guilty verdict; remand for new trial allowed

State v. Kass, 281 Neb. 892 (construed § 28-833 as targeting private communications to minors or decoys)
State v. Scott, 284 Neb. 703 (applied statutory mens rea to all elements of an offense)
United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) (presumption of scienter applies to elements that criminalize otherwise innocent conduct; knowledge of minor’s age required)
State v. Swindle, 300 Neb. 734 (distinguished: knowledge of victim’s age not element of sex trafficking offense)
State v. Britt, 293 Neb. 381 (double jeopardy principles allowing retrial when evidence admitted could sustain conviction)