## Facts

- A Lincoln police officer conducted an undercover operation by entering online chat rooms while posing as a girl under age 16.
- The officer used a fictional profile, “ljb92,” indicating the user was born in 1992; during chats, the officer represented “ljb92” as a 15-year-old female in Lincoln, Nebraska.
- In March 2007, James R. Pischel (using the screen name “lincolnpietaster”) chatted with “ljb92,” was told she was 15, and stated she was too young; the conversation ended.
- In June 2007, Pischel reinitiated contact and engaged in a lengthy instant-messaging exchange containing explicit sexual propositions and discussions of specific sexual acts, while expressing concern about police detection.
- On June 4, 2007, Pischel again contacted “ljb92,” continued sexual discussions, and agreed to meet her at a park in Lincoln.
- Police arrested Pischel as he drove near the agreed meeting location and conducted a warrantless search of his vehicle, seizing evidence.
- Pischel was charged under Neb. Rev. Stat. § 28-320.02 for using a computer to entice a child or a peace officer believed to be a child for sexual purposes.
- A jury convicted Pischel; the trial court denied his motion to suppress evidence from the vehicle search, refused his requested entrapment instruction, and allowed jurors to review chat transcripts during deliberations.

## Issues

1. Whether the evidence was sufficient to prove that Pischel, using a computer, intentionally enticed or attempted to entice a person he believed to be a child to engage in sexual activity under Neb. Rev. Stat. § 28-320.02.
2. Whether the warrantless search of Pischel’s vehicle and resulting seizure of evidence violated constitutional protections against unreasonable searches and seizures.
3. Whether the evidence supported giving the jury an instruction on entrapment.
4. Whether the trial court abused its discretion by allowing the jury to have transcripts of the online communications during deliberations.

## Decision

- The Nebraska Supreme Court affirmed the conviction.
- The court held the evidence was sufficient for a rational jury to find Pischel guilty beyond a reasonable doubt under § 28-320.02.
- The court upheld the denial of the suppression motion, concluding the warrantless vehicle search was valid under recognized exceptions to the warrant requirement.
- The court held Pischel was not entitled to an entrapment instruction because the evidence did not show governmental inducement overcoming a lack of predisposition.
- The court held the trial court did not abuse its discretion by permitting the jury to review the chat transcripts during deliberations because they were substantive exhibits reflecting the charged conduct.

## Legal Principles

- A conviction under Neb. Rev. Stat. § 28-320.02 may be supported by evidence that a defendant used a computer to intentionally entice, solicit, or attempt to entice a person the defendant believed was a minor to engage in sexual activity; completion of sexual activity is not required.
- For sufficiency review, the question is whether, viewing the evidence most favorably to the prosecution, a rational factfinder could find the elements proved beyond a reasonable doubt.
- Entrapment requires evidence of governmental inducement and the defendant’s lack of predisposition; law enforcement’s provision of an opportunity, without pressure or coercion, is insufficient.
- Warrantless vehicle searches may be permissible under established exceptions to the warrant requirement when the circumstances satisfy the exception relied upon.
- Documentary materials that constitute the alleged criminal communications themselves may be treated as exhibits and, within the trial court’s discretion, provided to the jury during deliberations.

## Conclusion

The Nebraska Supreme Court upheld Pischel’s online enticement conviction, concluding that explicit communications and a planned meeting supported the statutory elements, the vehicle search fell within recognized warrant exceptions, the record did not justify an entrapment instruction, and the jury could review chat transcripts as substantive evidence during deliberations.


State v. Pischel, 277 Neb. 412, 762 N.W.2d 595 (Neb. 2009)