State v. Pischel

Decision Date20 March 2009
Docket NumberNo. S-08-359.,S-08-359.
Citation762 N.W.2d 595,277 Neb. 412
PartiesSTATE of Nebraska, appellee, v. James R. PISCHEL, appellant.
CourtNebraska Supreme Court

Dennis R. Keefe, Lancaster County Public Defender, and Matthew G. Graff for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

HEAVICAN, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

James R. Pischel appeals his conviction for use of a computer to entice a child or a peace officer believed to be a child for sexual purposes, a violation of Neb.Rev. Stat. § 28-320.02 (Reissue 2008). Pischel asserts generally that there was insufficient evidence to support his conviction. Pischel specifically asserts that the district court for Lancaster County erred in overruling his motion to suppress evidence seized as a result of a warrantless search of his vehicle, refusing to instruct the jury on entrapment, and allowing the jury access to certain exhibits during deliberations. We affirm.

STATEMENT OF FACTS

Edward Sexton, an officer with the Lincoln Police Department, was assigned as an investigator in the technical investigations unit. As part of his investigative duties, Sexton would go into online chat rooms posing as a person under the age of 16. In February 2007, Sexton created a fictional profile with the screen name "ljb92." The profile for "ljb92" indicated that the user was a female located in Lincoln. The "Age" section of the profile was left blank, but in a miscellaneous section of the profile, it was stated that "92 is the year i was born."

Sexton testified that as "ljb92," on March 7, 2007, he had an online communication in a Nebraska chat room with a person using the screen name "lincolnpietaster." During the March 7 conversation, Sexton stated that "ljb92" was a 15-year-old female and "lincolnpietaster" responded by stating that "ljb92" was too young for him. Sexton testified at trial that after "lincolnpietaster" stated on March 7 that "ljb92" was too young for him. Sexton as "ljb92" responded, "Whatever." The conversation ended.

On June 1, 2007, Sexton was online under the "ljb92" screen name when he was contacted via instant messaging by a person using the screen name "lincolnpietaster." Sexton believed that the screen name contained a sexual innuendo referring to oral sex. Pischel admitted at trial that he had communicated with "ljb92" using the screen name "lincolnpietaster" and that the name had a sexual innuendo that indicated he would like to perform oral sex on a woman.

The June 1, 2007, instant messaging conversation between Sexton as "ljb92" and Pischel as "lincolnpietaster" lasted approximately 3 hours, from shortly after noon until shortly before 3 p.m. While we would have preferred to paraphrase certain portions of such communications, the text of the communications is critical to the crime charged and to our analysis, and we therefore recite herein the actual words used by the parties to the communications, including grammatical errors.

Early in the conversation, "ljb92" sent a message asking, "asl?" which Sexton testified meant a request for the other person's age, sex, and location. Pischel identified himself as being "25 m," meaning a 25-year-old male. Sexton as "ljb92" responded with "15 f," indicating a 15-year-old female. Pischel asked "ljb92" for a picture, to which "ljb92" responded "u first." Pischel sent a picture of himself to "ljb92." Sexton sent Pischel pictures of a female officer from when she was 15 years old or younger.

The first part of the conversation involved general topics, but eventually Pischel asked "ljb92" whether she had any plans for the day and what she would like to do. Pischel told "ljb92" to "let me know if your ever looking for some fun" and "i'm always looking for pussy to eat." Sexton as "ljb92" responded "u really offering?" and Pischel responded "yeah, as long as your not a cop trying to bust me for sex with a minor." Sexton as "ljb92" denied being a police officer, and the conversation continued in this vein, with Pischel later stating, "but yeah if you want your pussy eaten, or more i'm offering" and "oh I'm cool if thats all you want ... but i'll do anything else you want me to." Pischel asked "ljb92" "do you want to have sex, or do you want to give me oral, or do you just want to jack me off"; "ljb92" responded "how bout first 2."

Pischel then asked "so would you like me to come over?" and "ljb92" responded "not here," but asked whether he had a place to meet. Pischel proposed meeting at a restaurant; "ljb92" instead proposed meeting at Tierra Park near 27th Street and Highway 2. Pischel told "ljb92" that he would be driving "a green ford contour." The two made tentative plans to meet that day, but Pischel later decided it would not work and said that another day might work better. The two exchanged telephone numbers; Sexton as "ljb92" gave Pischel a number that belonged to the Lincoln Police Department. After Pischel determined that a meeting would not work on June 1, 2007, Sexton as "ljb92" told Pischel "i'm kinna let down," "feel like i been stood up," and "i close to being pissed" and sent Pischel an emoticon expressing anger. We note that in U.S. v. Cochran, 534 F.3d 631, 632 n. 1 (7th Cir. 2008), the court quoted a dictionary definition of "`emoticon'" as being "`a group of keyboard characters ... that typically represents a facial expression or suggests an attitude or emotion and that is used especially in computerized communications (as e-mail).'" The conversation, continued for some time with graphic sexual talk, and during the conversation, Pischel told "ljb92" that his name was "James" and that he lived near 14th Street and Old Cheney Road. The two eventually ended the conversation by making plans for another online chat the next Monday, June 4.

At approximately 9:40 a.m. on June 4, 2007, "lincolnpietaster" initiated an instant messaging conversation with "ljb92." The conversation began with general topics but after 20 minutes, Pischel as "lincolnpietaster" said "maybe you should invite me over to eat you." Sexton as "ljb92" agreed that they could meet at the park they had discussed in the earlier conversation. Pischel stated he could meet "ljb92" at the park in 10 minutes and would be in a green car. Pischel ended the conversation at approximately 10:40 a.m., stating "see you soon."

During the June 4, 2007, conversation, Sexton realized a meeting was being set up and began making arrangements to have officers at Tierra Park. Between the June 1 and 4 conversations, Sexton and fellow investigators had discovered information about Pischel. Using the telephone number and other information Pischel gave in the June 1 conversation, investigators determined where Pischel lived. Investigators identified Pischel by comparing the picture he sent to "ljb92" to his driver's license photograph obtained from the Department of Motor Vehicles. Investigators also matched the description Pischel gave of his car to motor vehicle records for a car owned by Pischel.

An officer was observing Pischel's residence on the morning of June 4, 2007, and at approximately 10:45 a.m., the officer informed investigators stationed near Tierra Park that Pischel had left his residence and was headed toward the park. Officers observed Pischel's vehicle arrive and briefly park on a street adjacent to Tierra Park. Pischel began to drive away from the park but then turned back toward the park. Investigators asked an officer in a marked police cruiser to make a traffic stop of Pischel's vehicle. After stopping the vehicle, officers removed Pischel from the vehicle, arrested him, placed him in handcuffs, and placed him in the back of the police cruiser. Officers conducted a search of Pischel's vehicle and found two condoms in the console between the driver's seat and the passenger seat.

Sexton arrived at the scene after the officers had begun searching Pischel's vehicle. Pischel consented to a search of his home, and Sexton conducted the search. Sexton found a computer in the home and brought it to the police department for a search, which uncovered copies of the photographs that "ljb92" had sent to "lincolnpietaster" and information which indicated that the photograph files had been created on June 1, 2007, and accessed on June 4. The search also revealed a copy of the profile Sexton had created for "ljb92" and a copy of the photograph that Pischel had sent to "ljb92."

On July 9, 2007, the State charged Pischel with a violation of § 28-320.02. Prior to trial, Pischel moved to suppress the evidence obtained in the June 4 search of his vehicle. At the suppression hearing, Sandra Myers, an officer with the technical investigations unit, testified regarding the investigation that led up to the stakeout of Tierra Park and Pischel's arrest. Myers testified regarding Sexton's online conversations with Pischel and the investigation which identified Pischel as the person using the screen name "lincolnpietaster." Myers testified that investigators discovered that Pischel had an outstanding arrest warrant on a misdemeanor theft charge.

Michael J. Schmidt, the uniformed officer who stopped Pischel's vehicle, testified at the suppression hearing that he did so at the direction of Myers and that when he stopped the vehicle, he told Pischel he was under arrest pursuant to an outstanding warrant. Schmidt searched Pischel and found nothing of concern. Corey L. Weinmaster, one of the officers who searched Pischel's vehicle, testified that after Schmidt arrested Pischel and took Pischel to his cruiser, Weinmaster and another officer approached Pischel's vehicle to ensure no one else was inside. They then searched the passenger compartment of the vehicle and containers inside the passenger compartment, including a center console between the driver's seat and passenger seat. In the console, they found two wrapped condoms. The officers seized the...

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