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


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    03/04/2022 08:07 AM CST
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. KIPPLE
    Cite as 
    310 Neb. 654
    State 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.
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. KIPPLE
    Cite as 
    310 Neb. 654
    7. ____: ____: ____. 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.
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    310 Nebraska Reports
    STATE v. KIPPLE
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    18. 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.
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. KIPPLE
    Cite as 
    310 Neb. 654
    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 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).
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    310 Nebraska Reports
    STATE v. KIPPLE
    Cite as 
    310 Neb. 654
    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 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).
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. KIPPLE
    Cite as 
    310 Neb. 654
    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.
    [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.
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    310 Nebraska Reports
    STATE v. KIPPLE
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    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.
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    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.
    [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).
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    STATE v. KIPPLE
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    310 Neb. 654
    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 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).
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    aware 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
    .
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    to 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).
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    photographed 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.
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    The 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
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    charges 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. 654
    in 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).