A Scottsbluff man convicted of child enticement of a minor will get a new jury trial after the Nebraska Supreme Court ruled that a Scotts Bluff County District Court jury did not receive key instructions on an element of the crime.
A Scotts Bluff County District Court jury convicted Kobe Paez, 20, on a charge of enticement by electronic communication device, a Class IV felony, on Feb. 1, 2018, after a two-day trial. Paez had also been charged with first-degree sexual assault on a minor, a Class II felony, but the jury acquitted Paez on that charge.
The prosecutor in the trial, Doug Warner, a deputy with the Nebraska Attorney General’s Office, presented evidence during trial that Paez, 19 at the time, had been involved with a 14-year-old girl and had sent her sexually explicit text messages. The text messages were discovered after the girl had snuck out with Paez in July 2017. In the text messages, Paez indicated a desire to have sex with the girl. Actions of Paez when police began investigating showed he knew the girl was under the age of consent, Warner said.
At trial, Paez’s defense attorney, Sterling Huff, argued that Paez did not know the girl’s age and alleged she had lied about her age, saying she was 17 years old.
A judge sentenced Paez to two years probation, with conditions that he not be allowed to use the Internet except for employment or education, could not use social media or be in possession of a smartphone. He was also required to register as a sex offender.
Paez appealed, arguing the court erred in instructing the jury on the material elements of enticement by electronic communication device. Paez contended that the court should have instructed the jury in a manner that required it to consider whether Paez knew or believed the girl was under 16 years old. The Nebraska Supreme Court cited the statute, which says a person must "knowingly and intentionally” contact a minor.
“Whether Paez knew that (the minor) was under age 16 was a primary dispute at trial. And the jury’s acquittal on the sexual assault charge shows that it had some issue with the credibility of the State’s evidence,” the court said in its ruling.
For that reason, the court said, it could not say that the erroneous jury instruction was harmless — that a guilty verdict would have been reached by the jury despite the omission. The court ruled that the error is prejudicial and required reversal of Paez’s conviction.
The case has been remanded for a new trial.