State v. Swindle

Summary

The Nebraska Supreme Court affirmed Anthony L. Swindle’s convictions for two counts of first-degree sexual assault of a child and two counts of sex trafficking, along with consecutive sentences totaling 180 years to life imprisonment. The court rejected challenges concerning jury instructions on knowledge of the victim’s age, rape-shield restrictions and confrontation, evidentiary foundation, prosecutorial misconduct, mistrial, and excessive sentencing.

Holdings

1. Knowledge that the victim was a minor is not an element of sex trafficking under Neb. Rev. Stat. § 28-831(1). The statutory term "knowingly" modifies the prohibited trafficking conduct, not the victim's age. The district court therefore correctly instructed the jury using the statutory language and properly refused Swindle's proposed instruction.
2. A prior false accusation of rape, when no sexual activity is involved, is not itself sexual behavior within the rape-shield statute. However, before such cross-examination may occur, the defendant must establish outside the jury's presence, by a greater weight of the evidence, that the accusations were made, were false, and are more probative than prejudicial. Swindle failed to show that the prior accusations were false, so exclusion was proper.
3. The exclusion of evidence concerning M.M.'s alleged prior false rape accusations did not violate Swindle's confrontation right. Swindle was not absolutely prohibited from impeaching M.M., and the excluded evidence would not have given a reasonable jury a significantly different impression of her credibility.
4. The State's inaccurate predictions that M.M. would testify about ejaculation and a gun did not constitute prosecutorial misconduct and did not require a mistrial. The statements did not mislead or unduly influence the jury, and the defendant failed to show prejudice.
5. Swindle failed to preserve his argument that witnesses could not paraphrase his statements, because he did not present that objection to the trial court. The challenged testimony was otherwise admissible as party-opponent statements or testimony based on the witness's personal knowledge, and any unpreserved objections were waived.
6. The district court did not abuse its discretion by imposing consecutive sentences totaling 180 years to life imprisonment. The sentences were within the statutory limits and were justified by the repeated exploitation, violence, and manipulation proved at trial.

Questions Presented

1. Whether the jury instruction for sex trafficking of a minor was required to include that Swindle knew or should have known the victim was under 16.
2. Whether the rape-shield statute and the Sixth Amendment permitted cross-examination of the minor victim about alleged prior false rape accusations.
3. Whether the State's inaccurate predictions in its opening statement required a mistrial for prosecutorial misconduct.
4. Whether testimony describing Swindle's out-of-court statements was inadmissible because the witnesses paraphrased rather than recited his exact words, and whether the evidentiary objections were preserved.
5. Whether Swindle's consecutive sentences were excessive or constituted an abuse of discretion.

Disposition

affirmed