State v. Kipple , 310 Neb. 654 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/25/2022 09:08 AM CDT
- 654 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 654State 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 uncor-
rected, 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 preju-
diced 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 deter-
mining factor is whether the record is sufficient to adequately review
the question.
- 655 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 6547. ____: ____: ____. 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 mis-
conduct 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.
- 656 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 65418. 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 affirma-
tive 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 com-
petent 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.
- 657 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 654We 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 tam-
pering 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 hap-
pened to her.
Kipple was originally charged with four counts of pos-
session 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 crimi-
nal 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 wit-
ness 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 inef-
fectiveness 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).
- 658 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 654additional 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 permis-
sion 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 inef-
fective 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 uncon-
stitutionally 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 coun-
sel 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).
- 659 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 654ANALYSIS
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 coun-
sel 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.- 660 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 654[7-9] To make that determination, an appellate court must
have knowledge of the specific conduct alleged to consti-
tute 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 appel-
lant 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.
- 661 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 654record 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).
- 662 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 654Instruction 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 ineffec-
tive 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 underly-
ing 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).
- 663 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 654aware 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 permis-
sion 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.
- 664 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 654to 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 per-
mission 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 entic-
ing 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 commit-
ted the offense by convincing the children, through the pay-
ment 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).
- 665 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 654photographed 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 indi-
cation 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 inef-
fective 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 instruc-
tion. 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 with-
hold her testimony.
30
§ 28-311(1)(b).
31
See id.
- 666 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 654The 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 lim-
its, 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 proceed-
ing 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 wit-
ness 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 instruc-
tions included a requirement that the jury find Kipple had
to have known of the possibility of the institution of official
- 667 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 654charges 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 suf-
ficient 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 ineffec-
tive 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 rec-
ognize 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).
- 668 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. KIPPLE
Cite as 310 Neb. 654in Nebraska. Moreover, as the U.S. Supreme Court has previ-
ously 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 chal-
lenge to § 28-311(2) was not deficient conduct, and therefore,
counsel was not ineffective. There is no merit to this assign-
ment 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).