State v. Kipple

310 Neb. 654

968 N.W.2d 613

STATE of Nebraska, appellee,

v.Kenneth M. KIPPLE, appellant.

No. S-20-810.

Supreme Court of Nebraska.

Filed January 7, 2022

Gerald L. Soucie for appellant.

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

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 enticement⁴ 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 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

Consideration of plain error occurs at the discretion of an appellate court.⁵

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

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.

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

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 performance which is known to the defendant or is apparent from the record.⁸ Otherwise the issue will be procedurally barred.⁹

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

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

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.

When a defendant has not preserved a claim of prosecutorial misconduct for direct appeal, we will review the 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.

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 defendant'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.

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.

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

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