State v. Pischel

the Engine for Life program to other auto dealers, and there-
fore, the “program” was not withdrawn from Albert and article
VIII does not apply or afford relief to Heritage. Thus, as noted
above, the evidence does not support the assertions of Heritage
that under article VIII the district court erred in awarding dam-
ages in excess of 30 days after May 2004.
CONCLUSION
We determine that the district court’s findings are not clearly
wrong and the conclusions of law are not in error under article
VIII of the Agreement. We, therefore, conclude that the entry
of judgment in favor of Albert in the amount of $76,230 is cor-
rect under the facts and controlling agreements. We affirm the
judgment of the district court.
A ffirmed.
H eAvicAn, C.J., not participating.
StAte of nebrASkA, Appellee , v.
JAmeS r. piScHel , AppellAnt.
762 N.W.2d 595
Filed March 20, 2009. 	No. S-08-359.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
2. ____: ____: ____: ____. In reviewing a criminal conviction, an appellate court
does not resolve conflicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence. Such matters are for the finder of fact.
3. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Appeal and Error. In reviewing a trial court’s ruling on a motion to sup-
press based on the Fourth Amendment, an appellate court will uphold its findings
of fact unless they are clearly erroneous. But an appellate court reviews de novo
the trial court’s ultimate determinations of reasonable suspicion to conduct an
investigatory stop and probable cause to perform a warrantless search.
4. Jury Instructions: Appeal and Error. To establish reversible error from a
court’s refusal to give a requested instruction, an appellant has the burden to show
that (1) the tendered instruction is a correct statement of the law, (2) the tendered
instruction is warranted by the evidence, and (3) the appellant was prejudiced by
the court’s refusal to give the tendered instruction.
412 	277 NEBrASkA rEpOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

5. Verdicts: Juries: Appeal and Error. In a harmless error review, an appellate
court looks at the evidence upon which the jury rested its verdict; the inquiry is
not whether in a trial that occurred without the error a guilty verdict would surely
have been rendered, but, rather, whether the guilty verdict rendered in the trial
was surely unattributable to the error.
6. Entrapment: Jury Instructions. When a defendant raises the defense of entrap-
ment, the trial court must determine, as a matter of law, whether the defendant
has presented sufficient evidence to warrant a jury instruction on entrapment.
7. Criminal Law: Entrapment: Words and Phrases. In Nebraska, entrapment is
an affirmative defense consisting of two elements: (1) the government induced
the defendant to commit the offense charged and (2) the defendant’s predisposi-
tion to commit the criminal act was such that the defendant was not otherwise
ready and willing to commit the offense.
8. Entrapment: Evidence: Proof. The burden of going forward with evidence of
government inducement is on the defendant. In assessing whether the defendant
has satisfied this burden, the initial duty of the court is to determine whether there
is sufficient evidence that the government has induced the defendant to com-
mit a crime. This determination is made as a matter of law, and the defendant’s
evidence of inducement need be only more than a scintilla to satisfy his or her
initial burden.
9. Entrapment: Evidence. A defendant need not present evidence of entrapment;
he or she can point to such evidence in the government’s case in chief or extract
it from the cross-examination of the government’s witnesses.
10. Entrapment: Evidence: Words and Phrases. Inducement can be any govern-
ment conduct creating a substantial risk that an otherwise law-abiding citi-
zen would commit an offense, including persuasion, fraudulent representation,
threats, coercive tactics, harassment, promise of reward, or pleas based on need,
sympathy, or friendship. Inducement requires something more than that a govern-
ment agent or informant suggested the crime and provided the occasion for it.
11. Entrapment: Words and Phrases. Inducement consists of an opportunity plus
something else, such as excessive pressure by the government upon the defend-
ant or the government’s taking advantage of an alternative, noncriminal type
of motive.
12. Trial: Juries: Evidence. A trial court has broad discretion in deciding whether to
submit nontestimonial exhibits to the jury during its deliberations.
13. ____: ____: ____. Trial courts have broad discretion in allowing the jury to have
unlimited access to properly received exhibits that constitute substantive evidence
of the defendant’s guilt.
Appeal from the District Court for Lancaster County: kAren
b. flowerS, Judge. Affirmed.
Dennis r. keefe, Lancaster County public Defender, and
Matthew G. Graff for appellant.
Jon Bruning, Attorney General, and George r. Love for
appellee.
STATE v. pISCHEL 	413
Cite as 277 Neb. 412

H eAvicAn, 	c.J., 	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 com-
puter 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 insuf-
ficient 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 miscel-
laneous 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 “lin-
colnpietaster” stated on March 7 that “ljb92” was too young for
him, Sexton as “ljb92” responded, “Whatever.” The conversa-
tion 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
414 	277 NEBrASkA rEpOrTS

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 com-
munications is critical to the crime charged and to our analysis,
and we therefore recite herein the actual words used by the par-
ties 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
STATE v. pISCHEL 	415
Cite as 277 Neb. 412

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, “lincoln-
pietaster” 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 conver-
sations, Sexton and fellow investigators had discovered infor-
mation about pischel. Using the telephone number and other
information pischel gave in the June 1 conversation, investiga-
tors determined where pischel lived. Investigators identified
pischel by comparing the picture he sent to “ljb92” to his
416 	277 NEBrASkA rEpOrTS

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 pas-
senger 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 techni-
cal 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.
STATE v. pISCHEL 	417
Cite as 277 Neb. 412

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 noth-
ing 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 pas-
senger seat. In the console, they found two wrapped condoms.
The officers seized the condoms but did not seize any other
evidence from the vehicle. Weinmaster testified that he did
not have a search warrant for the vehicle. Following the sup-
pression hearing, the court overruled pischel’s motion. At trial,
over pischel’s objection, the court admitted into evidence the
condoms found in the search.
At trial, the court admitted into evidence printed tran-
scripts of the two online conversations between “ljb92” and
“lincolnpietaster” that occurred on June 1 and 4, 2007. Over
pischel’s objection, the court allowed the jury access to the
transcripts during deliberations. The court reasoned that the
transcripts were not testimony but instead were evidence of
the crime itself.
pischel testified in his own defense. He admitted that he took
part in the online chats with “ljb92” and that “ljb92” claimed
to be a 15-year-old female; however, he testified that he did
not believe that “ljb92” was under 16 years of age, because of
various things the two had discussed and because the June 1,
2007, chat took place at a time when a 15-year-old would have
been in school. pischel testified that he thought “ljb92” was
a woman in her late teens or early twenties who was merely
interested in role-playing as a 15-year-old and that he did not
question her age because he did not want “to break that role-
play and risk not talking to her again.”
pischel testified that during the chats, he had lied about his
own age, saying he was 25 when he was actually 30. pischel
418 	277 NEBrASkA rEpOrTS

testified that he was not interested in having sexual relations
with a girl under 18 and that he had no interest in child por-
nography. He stated that he went to the park on June 4, 2007,
hoping to meet a woman over the age of 18.
On cross-examination, pischel admitted that he initiated
the online conversations with “ljb92” on June 1 and 4, 2007;
that he initiated the discussions of sexual behavior; that when
he wrote to “ljb92” stating, “‘I’m always looking for pussy
to eat,’” it was not in response to any solicitation for sex on
the part of “ljb92”; and that his intent in arranging times and
places with “ljb92” was to meet “ljb92” and to engage in the
sexual acts he had offered.
pischel requested an instruction on the affirmative defense
of entrapment. The court concluded that there was “not more
than a scintilla of evidence” to support the instruction and
refused the instruction.
The jury found pischel guilty of violating § 28-320.02. The
district court thereafter sentenced pischel to imprisonment for
1 to 2 years.
pischel appeals his conviction.
ASSIGNMENTS OF ErrOr
pischel asserts that there was not sufficient evidence to
support his conviction. pischel also asserts that the district
court erred in (1) overruling his motion to suppress evi-
dence obtained in the search of his vehicle, (2) refusing his
requested instruction on entrapment, and (3) allowing the jury
access to the written transcripts of online conversations dur-
ing deliberations.
STANDArDS OF rEVIEW
[1,2] When reviewing a criminal conviction for sufficiency
of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Davis, 276 Neb. 755,
757 N.W.2d 367 (2008). An appellate court does not resolve
conflicts in the evidence, pass on the credibility of witnesses,
STATE v. pISCHEL 	419
Cite as 277 Neb. 412

or reweigh the evidence. Such matters are for the finder of
fact. Id.
[3] In reviewing a trial court’s ruling on a motion to suppress
based on the Fourth Amendment, we will uphold its findings of
fact unless they are clearly erroneous. State v. Draganescu, 276
Neb. 448, 755 N.W.2d 57 (2008). But we review de novo the
trial court’s ultimate determinations of reasonable suspicion to
conduct an investigatory stop and probable cause to perform a
warrantless search. Id.
[4] To establish reversible error from a court’s refusal to give
a requested instruction, an appellant has the burden to show
that (1) the tendered instruction is a correct statement of the
law, (2) the tendered instruction is warranted by the evidence,
and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction. State v. Moore, 276 Neb. 1, 751
N.W.2d 631 (2008).
ANALYSIS
The Evidence Was Sufficient to Support
Pischel’s Conviction.
pischel was charged under § 28-320.02 which provides:
No person shall knowingly solicit, coax, entice, or lure
(a) a child sixteen years of age or younger or (b) a peace
officer who is believed by such person to be a child six-
teen years of age or younger, by means of a computer . . .
to engage in an act which would be in violation of section
28-319 . . . .
Under Neb. rev. Stat. § 28-319 (reissue 2008), “Any person
who subjects another person to sexual penetration . . . when the
actor is nineteen years of age or older and the victim is . . . less
than sixteen years of age is guilty of sexual assault in the first
degree.” Neb. rev. Stat. § 28-318(6) (reissue 2008) defines
“[s]exual penetration” to include “sexual intercourse in its
ordinary meaning, cunnilingus, fellatio, anal intercourse, or any
intrusion, however slight, of any part of the actor’s or victim’s
body . . . into the genital or anal openings of the victim’s body
which can be reasonably construed as being for nonmedical or
nonhealth purposes.”
420 	277 NEBrASkA rEpOrTS

pischel asserts that there was not sufficient evidence to sup-
port his conviction for use of a computer to entice a child for
sexual purposes or, more specifically in this case, to entice a
peace officer who is believed by the defendant to be a child 16
years of age or younger. We conclude that the evidence was
sufficient to support the conviction.
The main pieces of evidence supporting pischel’s convic-
tion were the transcripts of the online conversations between
pischel and Sexton posing as “ljb92.” Such transcripts pro-
vided evidence that pischel used a computer to communicate
with a person using the screen name “ljb92,” who pischel was
told was a 15-year-old girl. The transcripts further showed
that pischel offered to perform cunnilingus on “ljb92,” asked
whether “ljb92” wanted to have sexual intercourse with him
and perform fellatio on him, suggested that the two meet to
engage in such activities, and made arrangements to meet
with “ljb92.” In order to prove that pischel was the person
using the screen name “lincolnpietaster” to communicate with
“ljb92,” the State presented evidence that pischel arrived at
the time and location arranged for a meeting between “lin-
colnpietaster” and “ljb92.” In addition to the evidence pre-
sented by the State, in his testimony offered in his defense,
pischel admitted that he took part in online conversations with
“ljb92” using the screen name “lincolnpietaster,” that he initi-
ated such conversations, and that he initiated discussions of
sexual behavior.
Such evidence was sufficient to support a conviction under
§ 28-320.02. From such evidence the jury, as a rational trier
of facts, could have found that pischel used a computer to
communicate with a police officer posing as a child 16 years
of age or younger and that during such conversation, pischel
solicited, coaxed, enticed, or lured such person to engage in
acts of cunnilingus, fellatio, and sexual intercourse and that
such acts, when performed with a person less than 16 years
of age, would have been in violation of § 28-319. In addition,
as discussed below, the jury could rationally have found that
pischel believed that the person with whom he communicated
was a child 16 years of age or younger.
STATE v. pISCHEL 	421
Cite as 277 Neb. 412

Section 	28-320.02, 	of 	which 	pischel 	stands 	convicted,
requires, inter alia, that when the individual with whom he or
she is corresponding is a peace officer, the defendant believe
that the individual with whom he or she is corresponding is
a child 16 years of age or younger. pischel argues that the
evidence was insufficient to establish that he actually believed
that “ljb92” was a 15-year-old girl. In this regard, he refers
us to his testimony at trial that he did not believe “ljb92” was
really a 15-year-old girl and that instead, he believed that
“ljb92” was an adult woman who was role-playing as a 15-
year-old. He also refers us to the online conversations where
he points out that although he was offering to have sexual
relations with “ljb92,” he also indicated he did not want to
meet if “ljb92” was “a cop trying to bust me for sex with
a minor.”
In contrast, the State notes that there was evidence that dur-
ing the conversations, “ljb92” stated that “she” was 15 years
old, that “ljb92” sent pischel a picture of a girl who was 15
years old or younger and told pischel that it was a picture
of “ljb92,” and that pischel’s computer contained the profile
created for “ljb92” which indicated that “ljb92” was born in
1992. It is for the jury to assess the credibility of witnesses,
see State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008), and
the evidence noted by the State was sufficient to give the jury
a basis to find that, contrary to pischel’s testimony, pischel
actually believed that “ljb92” was a child 16 years of age
or younger.
The evidence in this case was sufficient for the jury to find
pischel guilty of violating § 28-320.02. We therefore reject
pischel’s first assignment of error.
Whether or Not the Court Erred in Overruling the Motion
to Suppress, the Admission of the Evidence Found
in the Search Was Harmless Error.
pischel next asserts that the court erred in overruling his
motion to suppress evidence obtained in the search of his
vehicle and in admitting such evidence at trial. We conclude
that the guilty verdict in this case was surely unattributable
to evidence obtained in the search and that, therefore, any
422 	277 NEBrASkA rEpOrTS

error with regard to the admission of such evidence was harm-
less error.
[5] In a harmless error review, an appellate court looks at the
evidence upon which the jury rested its verdict; the inquiry is
not whether in a trial that occurred without the error a guilty
verdict would surely have been rendered, but, rather, whether
the guilty verdict rendered in the trial was surely unattribut-
able to the error. State v. Poe, 276 Neb. 258, 754 N.W.2d
393 (2008).
pischel’s motion to suppress related to the search of his
vehicle. The only pieces of evidence obtained from the search
and admitted into evidence were two condoms found in the
center console. As we concluded above, there was sufficient
evidence to support pischel’s conviction. The crime with which
pischel was charged was soliciting, enticing, coaxing, or lur-
ing “ljb92” to engage in sexual activity. The crime occurred
during the online conversations between pischel and “ljb92”
and was completed before pischel arrived for the meeting
in the park. The evidence showing that pischel brought con-
doms to the meeting was not necessary to support a convic-
tion and was of minor interest to the computer-based crime
charged. The verdict in this case was surely unattributable to
such evidence.
Because the verdict was surely unattributable to evidence
obtained from the search of pischel’s vehicle, any error in the
admission of such evidence was harmless error and would not
support a reversal of pischel’s conviction. We therefore reject
this assignment of error.
There Was No Evidence to Support an
Instruction on Entrapment.
pischel next asserts that the district court erred by refusing
his requested instruction on entrapment. We conclude that there
was no evidence to raise the defense and that therefore, the
court did not err in refusing the instruction.
[6-9] When a defendant raises the defense of entrapment,
the trial court must determine, as a matter of law, whether the
defendant has presented sufficient evidence to warrant a jury
instruction on entrapment. State v. Byrd, 231 Neb. 231, 435
STATE v. pISCHEL 	423
Cite as 277 Neb. 412

N.W.2d 898 (1989). In Nebraska, entrapment is an affirma-
tive defense consisting of two elements: (1) the government
induced the defendant to commit the offense charged and (2)
the defendant’s predisposition to commit the criminal act was
such that the defendant was not otherwise ready and willing
to commit the offense. State v. Canaday, 263 Neb. 566, 641
N.W.2d 13 (2002). The burden of going forward with evidence
of government inducement is on the defendant. Id. In assess-
ing whether the defendant has satisfied this burden, the initial
duty of the court is to determine whether there is sufficient
evidence that the government has induced the defendant to
commit a crime. Id. This determination is made as a matter of
law, and the defendant’s evidence of inducement need be only
more than a scintilla to satisfy his or her initial burden. Id. A
defendant need not present evidence of entrapment; he or she
can point to such evidence in the government’s case in chief
or extract it from the cross-examination of the government’s
witnesses. Id.
[10,11] In determining whether the court in this case erred
in refusing the entrapment instruction, we must review whether
pischel 	satisfied 	his 	initial 	burden 	of 	demonstrating 	that
there was more than a scintilla of evidence of inducement.
Inducement can be any government conduct creating a substan-
tial risk that an otherwise law-abiding citizen would commit
an offense, including persuasion, fraudulent representation,
threats, coercive tactics, harassment, promise of reward, or
pleas based on need, sympathy, or friendship. Id. Inducement
requires something more than that a government agent or
informant suggested the crime and provided the occasion for
it. Id. Inducement consists of an opportunity plus something
else, such as excessive pressure by the government upon the
defendant or the government’s taking advantage of an alterna-
tive, noncriminal type of motive. Id.
In prior cases, we have found sufficient evidence of induce-
ment when the State went beyond simply providing the defend-
ant with an opportunity to violate the law. In both State v.
Canaday, supra, and State v. Heitman, 262 Neb. 185, 629
N.W.2d 542 (2001), the defendant was convicted of conspiracy
424 	277 NEBrASkA rEpOrTS

to commit first degree sexual assault on a child. In both
Canaday and Heitman, the defendant demonstrated more than
a scintilla of evidence of inducement. In Canaday, we noted
evidence that the defendant initially responded to advertise-
ments that State agents, posing as a fictitious mother, had
placed in an adult magazine seeking a “‘man who likes kids
and understands needs.’” 263 Neb. at 568, 641 N.W.2d at 17.
We noted further evidence that State agents made the initial
references to children and to “‘special education’” of such
children regarding sexual matters, that State agents repeatedly
reinforced the fictitious mother’s eagerness for the defendant
to become involved with her children, and that the State agents
played on the defendant’s emotions and desires. Id. at 569, 641
N.W.2d at 18. In Heitman, the defendant initiated contact with
a 14-year-old girl by giving her, inter alia, a sexually sugges-
tive letter and his e-mail address. Thereafter, police, posing as
the girl, initiated a correspondence with the defendant and sent
the defendant “numerous e-mail messages aimed at affecting
his emotions and desires.” 262 Neb. at 200, 629 N.W.2d at
555. In the messages, police indicated that the girl wanted the
defendant “to be her sexual teacher,” id., and encouraged him
to write descriptions of how he would engage in sexual activity
with her. We noted that “[o]f most importance” was evidence
it was the police posing as the girl “who first suggested meet-
ing at the motel” and who “created a sense of urgency for the
meeting to occur.” 262 Neb. at 201, 629 N.W.2d at 555. We
determined in Heitman that “the State went beyond merely pro-
viding an opportunity to commit the crime, but instead encour-
aged [the defendant] to respond to [the] e-mail messages in a
sexual manner and urged him to continue to think of [the girl]
sexually.” Id.
The sort of evidence of inducement that was present in State
v. Canaday, 263 Neb. 566, 641 N.W.2d 13 (2002), and State
v. Heitman, supra, was not present in this case. Instead, the
evidence presented by the State and pischel’s own admissions
during his testimony indicate that the online conversations
between pischel and “ljb92” were initiated by pischel and that
discussions of sexual activity were initiated by pischel. The
STATE v. pISCHEL 	425
Cite as 277 Neb. 412

evidence indicates that it was pischel who first proposed the
possibility of the two engaging in sexual activity and that he
initiated discussions to arrange a time and place for the two
to meet. The evidence of activity by agents of the State in this
case was that Sexton merely created a profile, was present in
a chat room, and responded to communications—including
sexual communications initiated by pischel. The communica-
tions by Sexton as “ljb92,” including the associated emoticons,
did not legally amount to inducement. The State merely cre-
ated the opportunity for pischel to communicate with a person
described as a 15-year-old girl and to take such communication
in a sexual direction.
pischel argues that agents of the State played on his emo-
tions and refers us to the end of the March 7 and June 1, 2007,
conversations. On March 7, pischel ended the brief online
conversation with “ljb92” after being told that “ljb92” was less
than 16 years of age. There was evidence that at the end of the
March conversation, “ljb92” merely indicated “Whatever” and
did not thereafter attempt to revive the conversation. The two
did not converse again until June, and such conversation was
initiated by pischel.
With respect to the June 1, 2007, exchange, the evidence
shows that after pischel indicated to “ljb92” that it would not
work for the two to meet that day, “ljb92” replied that “she”
was “kinna let down” and was “close to being pissed” and
sent an emoticon expressing anger. We note that although
“ljb92” expressed some disappointment, such expressions were
not persistent and that it was pischel, not “ljb92,” who initi-
ated plans for the two to meet on June 4. We determine that
such evidence does not indicate that the State was playing on
pischel’s emotions to induce him into criminal activity and
that the district court did not err as a matter of law when it
concluded there was “not more than a scintilla of evidence”
of inducement.
We conclude that because there was not evidence of induce-
ment, the district court did not err in refusing pischel’s requested
instruction on the affirmative defense of entrapment. We reject
this assignment of error.
426 	277 NEBrASkA rEpOrTS

Transcripts of Online Conversations Were Substantive
Evidence of the Crime, and the Court Did Not
Err in Allowing the Jury Access to the
Transcripts During Deliberations.
pischel finally asserts that the court erred in allowing the
jury access during deliberations to the transcripts of his online
conversations with “ljb92.” We conclude that the transcripts
were not testimony but instead were substantive evidence
of the crime charged and that, therefore, it was not error
for the court to allow the jury access to the transcripts dur-
ing deliberations.
At trial, the court admitted into evidence the transcripts that
Sexton printed of the two conversations between “ljb92” and
“lincolnpietaster” that occurred on June 1 and 4, 2007. Over
pischel’s objection, the court allowed the jury access to the
transcripts during deliberations. The court determined that the
transcripts were not testimonial in nature but instead were evi-
dence of the crime itself.
[12,13] pischel cites State v. Dixon, 259 Neb. 976, 987, 614
N.W.2d 288, 297 (2000), in which we noted the traditional
common-law rule, from which we “do not ordinarily stray,”
that a trial court has no discretion to submit testimonial mate-
rials to the jury for unsupervised review during deliberations.
However, in a partial concurrence and partial dissent in Dixon,
it was noted that a trial court has broad discretion in deciding
whether to submit nontestimonial exhibits to the jury dur-
ing its deliberations. Id. (Stephan, J., concurring in part, and
in part dissenting) (citing Chambers v. State, 726 p.2d 1269
(Wyo. 1986)). In particular, trial courts have broad discretion in
allowing the jury to have unlimited access to properly received
exhibits that constitute substantive evidence of the defendant’s
guilt. Id. (citing U.S. v. Puerta Restrepo, 814 F.2d 1236 (7th
Cir. 1987); State v. Castellanos, 132 Wash. 2d 94, 935 p.2d
1353 (1997); Pino v. State, 849 p.2d 716 (Wyo. 1993); State v.
Halvorson, 346 N.W.2d 704 (N.D. 1984); and State v. Barbo,
339 N.W.2d 905 (Minn. 1983)).
We agree with the district court’s determination that the tran-
scripts of online conservations were not testimonial material
STATE v. pISCHEL 	427
Cite as 277 Neb. 412

but instead were substantive evidence of pischel’s guilt. The
online conversations and pischel’s statements therein were
evidence of the elements of the crime of use of a computer to
entice a child or peace officer believed to be a child for sexual
purposes; therefore, the transcripts of such conversations were
substantive evidence of the crime charged.
Because the transcripts were not testimony but instead sub-
stantive evidence of the crime charged, the court had broad
discretion to allow the jury access to such evidence during
deliberations. We conclude that the court did not abuse its dis-
cretion by allowing such access, and we reject pischel’s final
assignment of error.
CONCLUSION
We conclude that any error in the admission of evidence
obtained in the search of pischel’s vehicle was harmless error.
We further conclude that the district court did not err in refus-
ing pischel’s requested instruction on entrapment, nor did the
court err in allowing the jury access to the written transcripts
of the online conversations. We finally conclude that there was
sufficient evidence to support pischel’s conviction. We there-
fore affirm pischel’s conviction and sentence.
A ffirmed.
StAte of nebrASkA, Appellee , v.
dAmien d. wAtkinS, AppellAnt.
762 N.W.2d 589
Filed March 20, 2009. 	No. S-08-712.
1. Postconviction: Appeal and Error. On appeal from a proceeding for postconvic-
tion relief, the lower court’s findings of fact will be upheld unless such findings
are clearly erroneous.
2. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order to
establish a right to postconviction relief based on a claim of ineffective assistance
of counsel, the defendant has the burden first to show that counsel’s performance
was deficient; that is, counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law in the area. Next, the defendant
must show that counsel’s deficient performance prejudiced the defense in his or
her case.
428 	277 NEBrASkA rEpOrTS