State v. Swindle , 300 Neb. 734 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/07/2018 08:10 AM CDT
- 734 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
State of Nebraska, appellee, v.
A nthony L. Swindle, appellant.
___ N.W.2d ___
Filed August 10, 2018. No. S-17-761.
1. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
2. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is
within the trial court’s discretion, and an appellate court will not disturb
its ruling unless the court abused its discretion.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
4. Judges: Evidence: Appeal and Error. The exercise of judicial discre-
tion is implicit in determining the relevance of evidence, and a trial
court’s decision regarding relevance will not be reversed absent an abuse
of discretion.
5. ____: ____: ____. An appellate court reviews for abuse of discretion a
trial court’s evidentiary rulings on the sufficiency of a party’s foundation
for admitting evidence.
6. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
7. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
8. Jury Instructions: Appeal and Error. In an appeal based on a claim
of an erroneous jury instruction, all the jury instructions must be read
together, and if, taken as a whole, they correctly state the law, are not
misleading, and adequately cover the issues supported by the pleadings
and the evidence, there is no prejudicial error necessitating reversal.
- 735 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
9. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant 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.
10. Jury Instructions. In giving instructions to the jury, it is proper for the
court to describe the offense in the language of the statute.
11. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
12. Statutes: Legislature: Intent. In determining the meaning of statutory
language, its ordinary and grammatical construction is to be followed,
unless an intent appears to the contrary or unless, by following such
construction, the intended effect of the provisions would apparently
be impaired.
13. Sexual Misconduct: Evidence: Proof. Subject to several exceptions,
Neb. Rev. Stat. § 27-412(1) (Reissue 2016) bars evidence offered to
prove that any victim engaged in other sexual behavior and evidence
offered to prove any victim’s sexual predisposition in civil or criminal
proceedings involving alleged sexual misconduct.
14. Sexual Assault: Evidence. The rape shield statute is not meant to pre-
vent defendants from presenting relevant evidence, but to deprive them
of the opportunity to harass and humiliate the complaining witness and
divert the jury’s attention to irrelevant matters.
15. Sexual Assault: Trial: Witnesses. In limited circumstances, a defend­
ant’s right to confrontation can require the admission of evidence that
would be inadmissible under the rape shield statute.
16. Constitutional Law: Trial: Juries: Witnesses. An accused’s consti-
tutional right of confrontation is violated when either (1) he or she is
absolutely prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on the part of
the witness, or (2) a reasonable jury would have received a significantly
different impression of the witness’ credibility had counsel been permit-
ted to pursue his or her proposed line of cross-examination.
17. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial
is properly granted in a criminal case where an event occurs during the
course of a trial which is of such a nature that its damaging effect can-
not be removed by proper admonition or instruction to the jury and thus
prevents a fair trial.
18. Courts: Motions for Mistrial. A trial court is vested with considerable
discretion in passing on a motion for mistrial in order to more nearly
effectuate the ends of justice.
- 736 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
19. Trial: Prosecuting Attorneys. When considering a claim of prosecuto-
rial misconduct, an appellate court first considers whether the prosecu-
tor’s acts constitute misconduct.
20. ____: ____. A prosecutor’s conduct that does not mislead and unduly
influence the jury is not misconduct.
21. Trial: Prosecuting Attorneys: Jury Instructions: Appeal and Error.
Not every variance between a prosecutor’s advance description and the
actual presentation constitutes reversible error, when a proper limit-
ing instruction has been given and the remarks are not crucial to the
State’s case.
22. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence
to the contrary, it is presumed that a jury followed the instructions given
in arriving at its verdict.
23. Trial: Appeal and Error. On appeal, a defendant may not assert a dif-
ferent ground for his or her objection than was offered at trial.
24. Trial: Evidence: Appeal and Error. Unless an objection to offered evi-
dence is sufficiently specific to enlighten the trial court and enable it to
pass upon the sufficiency of such objections and to observe the alleged
harmful bearing of the evidence from the standpoint of the objector, no
question can be presented therefrom on appeal.
25. Rules of Evidence: Hearsay. It is a fundamental rule of evidence that a
statement is not hearsay if it is offered against a party and is the party’s
own statement.
26. Trial: Hearsay. Where the reason for a trial court’s overruling of a
hearsay objection is left at large, arguably, it is the opponent’s burden to
demand an explanatory ruling.
27. Trial: Waiver: Appeal and Error. Failure to make a timely objection
waives the right to assert prejudicial error on appeal.
28. Trial: Witnesses: Hearsay. A witness who hears an oral admission by a
party may testify as to that admission.
29. Sentences: Appeal and Error. An abuse of discretion in imposing a
sentence occurs when a sentencing court’s reasons or rulings are clearly
untenable and unfairly deprive the litigant of a substantial right and a
just result.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
James J. Regan for appellant.
Douglas J. Peterson, Attorney General, and Glen Th. Parks
for appellee.
- 737 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
Funke, J.
Anthony L. Swindle was convicted by a jury of two counts
of sexual assault of a child in the first degree, one count of
sex trafficking of a victim under 16 years of age, and one
count of sex trafficking by inflicting or threatening serious
personal injury. The district court for Douglas County sen-
tenced Swindle to consecutive terms totaling between 180
years’ to life imprisonment, and Swindle filed this appeal.
We affirm.
I. BACKGROUND
Swindle was the “pimp” of Lisa Villanova-White. Swindle
and Villanova-White used the website “backpage.com” to
receive calls and texts to perform sex acts for money. Villanova-
White testified she had the telephone numbers of 406 men
saved in her cell phone. The soliciting included both “incalls,”
where the client or “john” arrived at Villanova-White’s house
in Omaha, Nebraska, and “outcalls” at hotel rooms or casi-
nos. Villanova-White estimated that Swindle drove her to 50
outcalls to anywhere from Omaha to Norfolk, Nebraska, to
Woodbine, Iowa. She testified about an outcall at a motel in
Fremont, Nebraska. The client refused to pay for the full hour,
so Swindle went up to the room, “knocked him out,” and took
his money.
Swindle’s involvement in Villanova-White’s online prostitu-
tion business expanded over time. At first, Villanova-White
thought that Swindle was her business partner and that she
was just loaning him money, but he soon began to take and
keep half or more of her money from clients. He had a key
to her house and would take money from her purse or money
that she kept hidden in books or clothes. Villanova-White said
Swindle threatened her indirectly by constantly mentioning
that he had physically harmed people, sometimes with the use
of guns. Swindle once joked while Villanova-White was in his
- 738 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
car about killing someone, and he showed her a handgun he
kept hidden underneath his seat.
Within the first few months, Swindle asked Villanova-White
to be a “madam” and started bringing other women to her
house, including a homeless woman, A.R., age 21.
1. A.R.
A.R. had a long history of physical and sexual abuse. She
was abused by her stepfather from ages 6 to 12, until she left
her home and went under the care of Lutheran Family Services.
At age 18, A.R.’s mother, in exchange for payment, took her to
a party and left her there to be gang raped by 10 men. During
that same time period, A.R. had a boyfriend who was convicted
for abusing her after she testified against him.
Swindle met A.R. in March 2015 when he drove up to her
while she was walking down a North Omaha street. A.R. testi-
fied that she and Swindle began dating. A.R. had been living
with her mother and grandmother, but when her mother moved,
A.R. was not welcome to go with them and found herself
homeless. Swindle told her that she could stay at his friend’s
house, but that she would need to have sex with clients to pay
for rent. Swindle first brought A.R. to his “brother’s” house
so that she would have sex in exchange for money that he had
already been paid. He then brought A.R. to Villanova-White’s
house and had Villanova-White set up an online account for her.
Villanova-White took photographs of A.R. wearing Villanova-
White’s lingerie and posted them online.
Swindle told A.R. about the house “rules.” He provided
her with condoms and marijuana, and instructed her to leave
money from clients on the edge of the dresser so that when she
walked them out, Swindle would take the money.
Swindle instructed Villanova-White that A.R. was never
allowed to leave without his knowledge and to report to him if
A.R. left, because “she’s not gonna give [sex] away for free.”
Villanova-White used an alarm system in the house and did not
give A.R. the code. The alarm signaled when there was activity
downstairs and at the front door.
- 739 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
A.R. stayed at the house for the next 2 to 3 months and had
sex with clients from the online website, but was never given
any of the money. During her stay, Swindle impregnated A.R.
and she had a miscarriage while with a client. On one occasion,
Swindle drove A.R. to an “outcall” in Omaha, where the client
refused to pay and stabbed A.R. in the wrist. She contacted
the 911 emergency dispatch service and went to the hospital.
Law enforcement officials suspected that A.R. was involved in
prostitution, but did not intervene because she was unwilling to
provide information.
A.R. testified that on the first day at the house, she told
Swindle that she did not want to be a prostitute. Swindle told
her to “just get it over and done with.” A.R. testified that she
repeated to Swindle that she did not want to be a prostitute
many times thereafter. She testified she had never engaged in
prostitution before, but that she stayed with Swindle because
she had feelings for him, felt intimidated by him, and felt she
had no choice but to stay. A.R. knew that Swindle kept a hand-
gun underneath his driver’s seat, and he told her that he had
used the handgun to kill someone. On one occasion, A.R. tried
to keep $42 she received from a client to pay her cell phone
bill. Swindle demanded the money, and when she refused, he
choked her using both his hands.
A.R. later saved $200 to “try to get away.” She messaged
a friend on social media to come and pick her up. When she
got into her friend’s car, she realized she had forgotten her
cell phone and went to retrieve it from the house. By then,
Villanova-White had informed Swindle that A.R. was leaving
with money. Swindle was waiting for A.R. at the front door.
He said, “bitch, I told you not to leave,” and “[p]unched her in
the face”; she fell to the ground on the front lawn, and he then
took the money.
In July 2015, Villanova-White was evicted from her home.
She moved to a hotel in Omaha, and Swindle ensured that she
took A.R. with her. The day of the move, A.R. convinced her
mother to pick her up at the hotel and she escaped.
- 740 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
2. M.M.
Swindle met the minor victim, M.M., between 4 and 5 a.m.
on September 15, 2015, when she was walking alone down
the street after she had run away from home. M.M. had been
diagnosed with schizoaffective disorder and disruptive mood
dysregulation disorder. She was assessed to be low functioning
and needed assistance with all aspects of daily living.
Swindle pulled up next to her and asked her if she wanted
to earn some money. She said “sure” and got into his car, and
he drove to an empty street and pulled over. He asked her to
take off her shirt, and she said no. Swindle yelled at her, “I
told you[,] you have to do what I say.” He then took off her
shirt, had her remove her pants, and had sexual intercourse
with her.
Swindle then called Villanova-White while in the car and
said, “I have another girl to help you pay for the hotel.” He
took M.M. to the hotel and had Villanova-White advertise
M.M. online. M.M. performed sex acts with men for money
over the course of a few days. In the early morning hours
between September 15 and 16, 2015, while Villanova-White
was out, Swindle confronted M.M. in the hotel room and
forced her to have sexual intercourse with him a second time.
M.M. testified that she tried to get away but that Swindle held
her down with “one hand on my chest and the other on my
arm, so I couldn’t, like, flail.”
On September 18, 2015, a police officer determined that
M.M.’s photograph from an online escort advertisement
matched a missing person’s report of a 15-year-old. Law
enforcement acted immediately; M.M. was removed from the
hotel, and Swindle and Villanova-White were subsequently
arrested. Villanova-White entered into a proffer agreement to
testify, without any promises of leniency. At the time of trial,
she faced charges of pandering, with a possible penalty of
between 1 and 50 years’ imprisonment.
- 741 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
3. Trial and Sentences
After a 7-day trial, the jury found Swindle guilty on counts
1 and 2: sexual assault of a child in the first degree, in viola-
tion of Neb. Rev. Stat. §§ 28-319.01(1)(b) and (2) (Reissue
2016), each a Class IB felony; count 3: sex trafficking of a
victim under 16 years of age, in violation of Neb. Rev. Stat.
§ 28-831(1) (Reissue 2016), a Class II felony; and count 4:
sex trafficking by inflicting or threatening serious personal
injury, in violation of § 28-831(2), a Class IIA felony. The
district court determined Swindle was a habitual criminal and
sentenced him to consecutive sentences of imprisonment of
between 60 years to life on count 1, between 60 years to life
on count 2, between 40 to 60 years on count 3, and between 20
to 60 years on count 4.
Swindle appeals.
II. ASSIGNMENTS OF ERROR
Swindle assigns, restated, that the district court erred by
(1) failing to instruct the jury that a defendant’s knowledge
of the victim’s age is an essential element of the offense of
sex trafficking of a minor, (2) refusing to allow Swindle to
question the minor victim about her history of making false
claims of rape when she got in trouble for running away, (3)
admitting statements made by the defendant without ade-
quate foundation, (4) refusing to grant a mistrial based upon
claims of prosecutorial misconduct, and (5) imposing exces-
sive sentences.
III. STANDARD OF REVIEW
[1] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision.1
1
State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).
- 742 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
[2] Whether to grant a mistrial is within the trial court’s
discretion, and we will not disturb its ruling unless the court
abused its discretion.2
[3-5] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility.3 The exercise of judicial discretion is implicit in deter-
mining the relevance of evidence, and a trial court’s decision
regarding relevance will not be reversed absent an abuse of
discretion.4 We review for abuse of discretion a trial court’s
evidentiary rulings on the sufficiency of a party’s foundation
for admitting evidence.5
[6] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.6
IV. ANALYSIS
1. Court Did Not Err
in I nstructing Jury
Swindle argues that the district court erred when it refused
his proposed jury instruction. He contends that a defendant’s
knowledge of the victim’s age is an essential element of the
offense of sex trafficking of a minor. At the jury instruction
conference, Swindle offered the following proposed instruc-
tion, which he fashioned from NJI2d Civ. 7.62, Negligent
Entrustment:
2
State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 14 (2014); State v.
Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014).
3
State v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018). See State v. Lessley,
257 Neb. 903, 601 N.W.2d 521 (1999).
4
State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012); State v. Ford, 279
Neb. 453, 778 N.W.2d 473 (2010).
5
See State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
6
See State v. Brown, ante p. 57, 912 N.W.2d 241 (2018).
- 743 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
In your deliberations with regard to Count III of the
Information/Amended Information, in order for you to
determine that [Swindle] is guilty of Trafficking of a
person who has not attained the age of 16 years, you
must find that [Swindle] knew or should have known
that the victim i[n] question had not attained the age of
16 years.
(Emphasis supplied.)
The court refused the proposed instruction and gave an
instruction which recited the elements of the offense as (1)
that on the relevant dates the defendant engaged in sex traf-
ficking of a minor and (2) that at that time, M.M. was less than
16 years of age. The court provided a definitional instruction
which stated:
“Sex trafficking of a minor” means knowingly recruit-
ing, enticing, harboring, transporting, providing, or obtain-
ing by any means or knowingly attempting to recruit,
entice, harbor, transport, provide, or obtain by any means
a minor for the purpose of having such minor engage in
commercial sexual activity, sexually explicit performance,
or the production of pornography or to cause or attempt
to cause a minor to engage in commercial sexual activ-
ity, sexually explicit performance, or the production of
pornography.7
Swindle argues the statutory definition of sex trafficking of
a minor supports his proposed instruction, because the defini-
tion contains the word “knowingly.” Swindle contends that
“knowingly” commonly requires a defendant’s perception of
facts which make up the crime. Swindle claims the prosecution
failed to prove that he knew M.M. was 15 years old, because
M.M. admitted that she lied about her age and told Swindle
that she was 20 years old.
Swindle claims that he received a greater sentence as a
result of the court’s denial of his proposed instruction. Putting
7
See Neb. Rev. Stat. § 28-830(14) (Reissue 2016) (now found at
§ 28-830(12) (Supp. 2017)).
- 744 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
aside Swindle’s habitual criminal status, sex trafficking of a
minor is a Class IB felony,8 with a minimum penalty of 20
years’ imprisonment and a maximum of life imprisonment;
whereas sex trafficking of an adult is a Class II felony,9 with a
minimum penalty of 1 year’s imprisonment and a maximum of
50 years’ imprisonment.10
[7,8] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.11 All the jury
instructions must be read together, and if, taken as a whole,
they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.12
[9] 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.13 We conclude that the
court did not err in refusing Swindle’s proposed instruction.
[10] In giving instructions to the jury, it is proper for the
court to describe the offense in the language of the statute.14
Although the law does not require that a jury instruction track
the exact language of the statute,15 using the specific language
of a statute is an effective means of implementing the intent of
8
See § 28-831(1).
9
See § 28-831(2).
10
See Neb. Rev. Stat. § 28-105(1) (Supp. 2017).
11
State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017).
12
Id.
13
Id.
14
State v. Duncan, 293 Neb. 359, 878 N.W.2d 363 (2016); State v. Armagost,
291 Neb. 117, 864 N.W.2d 417 (2015).
15
State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015).
- 745 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
the Legislature.16 This practice provides the added benefits of
easing the process of preparing jury instructions and creating
certainty for trial courts that the jury has been provided the
essential elements of an offense.17
[11] Swindle’s proposed instruction, borrowed from the civil
context of negligent entrustment of a motor vehicle, assumes
conduct, liability, and consequences distinct from the charged
offense of sex trafficking of a minor, and therefore cannot be a
correct statement of the law in this case. To provide one exam-
ple, the instruction introduces the mens rea element of “should
have known,” which is absent from the statutory definition of
sex trafficking of a minor. For that reason alone, Swindle’s
instruction goes beyond the plain reading of the statute. It is
not within the province of the courts to read a meaning into a
statute that is not there or to read anything direct and plain out
of a statute.18
We agree with the State that the better analogy is the crime
of sex trafficking of an adult. The Legislature used identical
language to define the crimes of sex trafficking of a minor and
sex trafficking of an adult, except sex trafficking of a minor
applies to victims under the age of 18.19 If Swindle’s argument
is accepted, then by parity of reasoning, the State would be
unable to sustain a conviction of sex trafficking of an adult
unless it proved that a defendant knew that the victim was 18
years of age or older. We agree with the State that this is an
absurd result. Instead, the natural reading of these offenses is
that the victim’s age is intended to classify sex trafficking of
a minor as a more serious offense and that the victim’s age
does not relate to the defendant’s mens rea. This reasoning is
further strengthened by the Legislature’s decision to increase
the penalty for sex trafficking of a minor who is under 16 years
16
Armagost, supra note 14.
17
See id.
18
Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018).
19
See § 28-830(10), (13), and (14).
- 746 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
of age.20 The plain language of the criminal statutes supports
this conclusion.
[12] In determining the meaning of statutory language,
its ordinary and grammatical construction is to be followed,
unless an intent appears to the contrary or unless, by following
such construction, the intended effect of the provisions would
apparently be impaired.21 The language of § 28-830(14), as it
existed at the time of the offense, does not define the word
knowingly. However, it is clear that “‘knowingly’ . . . is an
adverb, and common usage makes clear that an adverb modi-
fies the verbs that come after it,” and not the noun “a minor”
that follows.22 Under this interpretation, the prosecution was
required to prove that Swindle knew that he recruited, enticed,
harbored, transported, or provided a minor for the purpose of
sex trafficking, or knew that he attempted to do so. Thus, even
if we accept Swindle’s argument that there was no evidence
that he knew M.M.’s age, an ordinary reading of § 28-830(14)
shows that the term “knowingly” requires only that a defend­
ant had knowledge that he or she engaged in conduct for the
purpose of sex trafficking and does not require a defendant to
have knowledge that the victim was a minor. Dispensing with
the knowledge requirement is appropriate where the underlying
conduct is illegal, irrespective of a defendant’s knowledge of
the victim’s age.23
Yet, another analogy is to the crime of first degree sexual
assault of a child.24 Under § 28-319.01(1), a person commits
sexual assault of a child (a) when he or she subjects another
person under 12 years of age to sexual penetration and the
actor is at least 19 years of age or older or (b) when the victim
20
See § 28-831.
21
Placek v. Edstrom, 148 Neb. 79, 26 N.W.2d 489 (1947); Nebraska State
Railway Commission v. Alfalfa Butter Co., 104 Neb. 797, 178 N.W. 766
(1920).
22
See State v. Sims, 195 So. 3d 441, 446 (La. 2016).
23
See Sims, supra note 22.
24
See § 28-319.01.
- 747 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
is at least 12 years of age but less than 16 years of age and the
actor is 25 years of age or older. In regard to the age of the
victim, our case law provides that reasonable mistake as to the
age of the victim is not a defense.25
When the Legislature has intended to make age an essential
element of the offense of sexual assault upon a child, it has
used plain language.26 Section 28-319.01(4) states that “[i]n
any prosecution under this section, the age of the actor shall
be an essential element of the offense that must be proved
beyond a reasonable doubt.” Indeed, following Swindle’s trial,
the Legislature used plain language when it codified the rule
that “[i]t is not a defense in a prosecution [of the offense of
sex trafficking of a minor] that the defendant believed that the
minor victim was an adult.”27
Similarly, in construing the Mann Act, 18 U.S.C. § 2421 et
seq. (2012 & Supp. IV 2016), federal courts have considered
and rejected the claim that knowledge of the age of the vic-
tim is an element of sex trafficking of a minor.28 “It would be
nonsensical to require proof of knowledge of the victim’s age
when the statute exists to provide special protection for all
minors, including, if not especially, those who could too easily
be mistaken for adults.”29
The trial court correctly instructed the jury that to obtain a
conviction under § 28-831(1), the prosecution needed to prove
25
See, State v. Heitman, 262 Neb. 185, 629 N.W.2d 542 (2001); State v.
Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999); State v. Campbell, 239
Neb. 14, 473 N.W.2d 420 (1991); State v. Navarrete, 221 Neb. 171, 376
N.W.2d 8 (1985).
26
See § 28-319.01(4).
27
See 2017 Neb. Laws, L.B. 289, § 9 (codified at § 28-831(4)(c) (Supp.
2017)).
28
See, U.S. v. Cox, 577 F.3d 833 (7th Cir. 2009); U.S. v. Jones, 471 F.3d
535 (4th Cir. 2006); U.S. v. Griffith, 284 F.3d 338 (2d Cir. 2002); U.S. v.
Taylor, 239 F.3d 994 (9th Cir. 2001); United States v. Hamilton, 456 F.2d
171 (3d Cir. 1972).
29
Jones, supra note 28, 471 F.3d at 540.
- 748 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
only that Swindle engaged in sex trafficking of M.M. and that
at the time, M.M. was less than 16 years of age. Swindle’s
proposed instruction was an incorrect statement of the law, and
the court appropriately gave an instruction which used statu-
tory language to define the offense. Swindle was not preju-
diced by the court’s refusal of his instruction. Swindle’s first
assignment of error is without merit.
2. Court Did Not Err in Determining
Swindle’s Line of Questioning
of M.M. Was I mpermissible
Swindle argues the district court erred in refusing to allow
him to question M.M. about her history of making false
claims of rape. Swindle argues his questioning went to M.M.’s
credibility and was not precluded by Nebraska’s rape shield
statute, Neb. Rev. Stat. § 27-412 (Reissue 2016), and that
the district court’s ruling violated Swindle’s right to confront
his accuser.
(a) Additional Background
Prior to trial, Swindle filed a notice of intent to present
§ 27-412 evidence. He sought to adduce evidence that M.M.
had on multiple prior occasions run away from home and,
when caught, falsely claimed that she had been raped. At
a hearing on the issue, Swindle’s counsel made an offer of
proof that, if called to testify, M.M.’s mother would testify
that she told healthcare providers that M.M. “is hypersexual
and seeks out sexual behaviors with older men.” Swindle’s
counsel stated M.M.’s mother would testify that on mul-
tiple occasions, M.M. has run away, lied about her age, had
intercourse, and then stated that it was rape and “yell out for
help.” Swindle said the mother would state this is part of
M.M.’s mental illness.
The court entered a pretrial order which stated:
[T]his Court may allow [Swindle] to question M.M. about
prior false assertions of rape. The Court, however, will not
allow [Swindle] to venture into M.M.’s sexual history. . . .
- 749 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
....
[Swindle’s] own Motion concedes that the evidence he
hopes to elicit “is relevant to a determination of the cred-
ibility of [M.M.].” [Swindle] may not undermine M.M.’s
credibility by drudging up her sexual behavior or sexual
predisposition.
At trial, the following exchange took place during direct
examination of M.M. by the prosecution:
Q And how old did you tell [Swindle] you were?
A Twenty.
Q Okay. Was that true?
A No.
Q Okay. And why did you give him — why did you
say you were 20 as opposed to 15?
A Because when I usually ran away, I would have an
older male take me somewhere or back to their [sic] place.
During cross-examination, Swindle’s counsel asked M.M.
what she meant by her answer. The prosecution objected
based on relevance and § 27-412. At a sidebar, Swindle’s
counsel stated that he intended to establish that M.M. had run
away on multiple occasions and that he would end the line of
questioning at that point. The court ruled that it would permit
Swindle’s counsel to ask M.M. about lying about her age, but
found that testimony about running away was not relevant.
Cross-examination of M.M. continued, and Swindle’s counsel
asked the following questions, and M.M. gave the follow-
ing answers:
Q So it was getting caught for running away that got
you into the frame of mind that you had to blow it out
of proportion?
A Yes.
Q You’d been in that situation before on multiple occa-
sions; right?
A Yes.
Q And on those occasions have you responded by tell-
ing people that you’ve been raped?
- 750 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
The prosecution objected based on § 27-412 and relevance,
and argued that there was no evidence that M.M. had falsified
claims of rape. The court asked for an offer of proof from
Swindle’s counsel. Receiving no offer of proof at that time, the
court sustained the prosecution’s relevance objection.
The following morning of trial, Swindle’s counsel moved for
a mistrial and argued that he intended to question M.M. about
prior false allegations of rape that she made following running
away. Swindle’s counsel stated:
[M]y proffer and offer of proof was that [M.M] will
admit, if I would have been allowed to question her, that
she had run away on multiple prior occasions — and I
would not have inquired with regard to her promiscuity
or sexual activity during those runaways, but that she
then, upon being taken back into custody following the
runaway, saw medical providers or saw — talked to other
people in a therapeutic setting and basically admitted that
she falsified her claims of being raped when — after she
ran away and got caught.
Swindle’s counsel offered a portion of M.M.’s medical
records. The records provide a background of events lead-
ing up to a suicide attempt by M.M following her assault by
Swindle. The records include statements from M.M.’s mother,
consistent with Swindle’s pretrial proffer, that M.M. had run
away multiple times in the past year and that each time, M.M.
sought out sex with older men. Her mother stated that in each
instance, M.M. lied about her age, had sex, and later claimed
that it was rape.
Swindle’s counsel claimed that based on the court’s pretrial
ruling, he anticipated he would be able to ask M.M. about these
events. He claimed that had he known he would not be permit-
ted to pursue this line of questioning, he would have called
M.M.’s mother as a witness. He argues the court’s refusal to
allow cross-examination of M.M. regarding her credibility
denied Swindle his right to a fair trial.
- 751 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
(b) Disposition
We consider the application of § 27-412 to the facts of this
case and whether the questions posed to M.M. were so rele-
vant that Swindle’s right of confrontation required the admis-
sion of M.M.’s testimony regarding her prior false claims of
rape. We note that while Swindle’s brief included separate
assignments of error regarding these two issues, he consoli-
dated them into a single argument and, thus, we discuss the
issues together.
[13] Subject to several exceptions, § 27-412(1) bars
“[e]vidence offered to prove that any victim engaged in other
sexual behavior” and “[e]vidence offered to prove any victim’s
sexual predisposition” in civil or criminal proceedings involv-
ing alleged sexual misconduct.30
[14] Nebraska’s rape shield statute serves two purposes.
First, the statute protects rape victims from grueling cross-
examination about their past sexual behavior or sexual pre-
disposition that too often yields testimony of questionable
relevance.31 Second, the rape shield statute prevents the use
of evidence of the complaining witness’ past sexual conduct
with third parties or sexual predisposition from which to infer
consent or undermine the witness’ credibility.32 The rape shield
statute is not meant to prevent defendants from presenting
relevant evidence, but to deprive them of the opportunity to
harass and humiliate the complaining witness and divert the
jury’s attention to irrelevant matters.33
Section 27-412 is subject to three enumerated excep-
tions, generally stated: (1) evidence offered to prove a person
other than the accused was the source of physical evidence;
30
§ 27-412(a) and (b).
31
State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014), disapproved in
part 292 Neb. 424, 873 N.W.2d 155 (2016); Lessley, supra note 3.
32
Lavalleur, supra note 31; State v. Sanchez-Lahora, 261 Neb. 192, 622
N.W.2d 612 (2001).
33
Lavalleur, supra note 31.
- 752 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
(2) evidence relevant to the issue of consent; and (3) evidence
which, if excluded, would violate the accused’s constitutional
rights.34 Swindle’s stated purpose of the cross-examination
was not to show another source of physical evidence or that
M.M. consented to sex with Swindle. Rather, Swindle contends
that evidence of M.M.’s prior false claims of rape went to
M.M.’s credibility.
Although there is no Nebraska case directly on point, we
agree with the majority of jurisdictions which hold that a
false accusation of rape where no sexual activity is involved,
is itself not “sexual behavior” involving the victim, and that
such statements fall outside of the rape shield law.35 However,
before defense counsel launches into cross-examination about
false allegations of sexual assault, a defendant must establish,
outside of the presence of the jury, by a greater weight of the
evidence, that (1) the accusation or accusations were in fact
made, (2) the accusation or accusations were in fact false,
and (3) the evidence is more probative than prejudicial.36 If
the defendant satisfies these three conditions, the trial court
will authorize cross-examination of the complaining witness
concerning the alleged false accusations.37 The defendant may
thereafter present extrinsic evidence of the false accusations
only if the complaining witness denies or fails to recall having
made such accusations.38
In this case, we find Swindle failed to satisfy the necessary
conditions. While the evidence relied upon by Swindle did
indicate that M.M. had previously alleged that she had been
raped, Swindle did not demonstrate those claims were false.39
34
§ 27-412(2)(a)(i) through (iii).
35
See, State v. Boggs, 63 Ohio St. 3d 418, 588 N.E.2d 813 (1992); Miller v.
State, 105 Nev. 497, 779 P.2d 87 (1989); Clinebell v. Commonwealth, 235
Va. 319, 368 S.E.2d 263 (1988).
36
See State v. Daffin, 387 Mont. 154, 392 P.3d 150 (2017).
37
Id.
38
Id.
39
See State v. Welch, 241 Neb. 699, 490 N.W.2d 216 (1992).
- 753 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
The evidence relied upon by Swindle indicates that M.M. did
in fact have sexual relations with other men prior to making
the accusations. The evidence also indicates that M.M. was
14 years of age at the time of these other encounters. Section
28-319(1)(c) provides that a person under 16 years of age may
not legally consent to sexual penetration by an actor over 19
years of age.40 As the evidence indicates that at least one of
the men with whom M.M. had sexual relations was 24 years
of age and that Swindle did not demonstrate the age of any
of the others or that M.M. recanted any of the allegations,
Swindle failed to show M.M.’s accusation that she was raped
was false.
We must continue our analysis, however, to consider whether
the exclusion of the evidence in question violated Swindle’s
constitutional right to confront his accuser.
[15,16] The Sixth Amendment provides that “[i]n all crimi-
nal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him; [and] to have
compulsory process for obtaining witnesses in his favor . .
. .”41 We have recognized that in limited circumstances, a
defendant’s right to confrontation can require the admission
of evidence that would be inadmissible under the rape shield
statute.42 This court has held that an accused’s constitutional
right of confrontation is violated when either (1) he or she is
absolutely prohibited from engaging in otherwise appropriate
cross-­examination designed to show a prototypical form of
bias on the part of the witness, or (2) a reasonable jury would
have received a significantly different impression of the wit-
ness’ credibility had counsel been permitted to pursue his or
her proposed line of cross-examination.43
40
See In Interest of J.M., 223 Neb. 609, 391 N.W.2d 146 (1986).
41
U.S. Const. amend. VI.
42
See, Ford, supra note 4; Lessley, supra note 3; State v. Johnson, 9 Neb.
App. 140, 609 N.W.2d 48 (2000).
43
State v. Privat, 251 Neb. 233, 556 N.W.2d 29 (1996).
- 754 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
In this case, Swindle was not absolutely prohibited from
impeaching M.M. on cross-examination. Swindle was per-
mitted to ask M.M. whether she had run away on multiple
occasions and whether she was trying to “blow it out of pro-
portion” when she was caught. The court’s exclusion of evi-
dence concerning M.M.’s prior false claims of rape would not
have given the jury a significantly different impression of her
credibility. M.M. had already admitted on direct examination
that she lied about her age and that “when [she] usually ran
away, [she] would have an older male take [her] somewhere
or back to their [sic] place.” She also admitted that when she
was first interviewed by a detective, she falsely stated that
the defendant had a gun, and said that she was scared of the
defendant and “was trying to blow the story out of propor-
tion.” There was evidence before the jury upon which Swindle
could have argued that M.M.’s version of the events was not
to be believed.
We also find the excluded evidence was not so relevant
and probative that it triggered Swindle’s constitutional right
to confrontation.44 The excluded evidence was limited to prior
sexual contact with people other than Swindle. This evidence
concerned a collateral issue that did not have any relevance as
to whether Swindle had assaulted M.M. As discussed above,
consent is not a defense to sexual assault of a child. And even
if M.M. were not a child, Nebraska’s rape shield statute rec-
ognizes that consent to sex with one person is not consent to
sex with all people. There is simply no relevant connection
between M.M.’s alleged prior false claims of rape and the
crimes at issue. Swindle sought to discuss M.M.’s past sexual
conduct in order to undermine her credibility for the improper
purpose of arguing that Swindle’s assault of M.M. did not
take place. There is no indication that Swindle was prevented
from asking M.M. directly whether she falsified her claims of
44
See State v. Earl, 252 Neb. 127, 560 N.W.2d 491 (1997).
- 755 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
assault in this case. Swindle had a full and fair opportunity to
confront his accuser.
We determine that the district court did not abuse its discre-
tion when it determined that Swindle’s questions about M.M.’s
prior sexual conduct were irrelevant.
3. Court Did Not Err in Overruling
Swindle’s Motion for Mistrial Based
on P rosecutorial M isconduct
(a) Additional Background
Swindle’s counsel also moved for a mistrial based on the
argument that the prosecution engaged in an improper presen-
tation of the evidence. In its opening statement, the prosecu-
tion stated that “[M.M.] will tell you that [Swindle] didn’t
ejaculate inside of her vagina. Instead, he pulled out and
ejaculated into 15-year-old [M.M.’s] mouth.” The prosecution
also stated that “[s]he’ll be able to tell you that [Swindle] had
a gun. She can describe that gun to you. It was a handgun. She
was terrified of what would happen if she tried to leave that
hotel room.” These two predictions of M.M.’s testimony were
not borne out at trial and were not repeated by the State in its
closing argument.
Swindle argues the State knew or should have known that
these aspects of its opening statement were inaccurate and
that its actions constituted prosecutorial misconduct. As dis-
cussed above, contrary to the State’s opening statement, M.M.
admitted on direct examination that she lied to police when
she first reported that Swindle had threatened her with a gun.
With respect to the State’s comment about ejaculation, Swindle
argues that a nurse’s forensic examination report indicated
there had been no ejaculation. He claims the State intended
to inflame the jury with its opening statement, and later acted
unfairly by calling the nurse to testify before M.M., hear the
nurse tell the jury there was no evidence of ejaculation, and
then decline to ask M.M. about ejaculation during her testi-
mony. Swindle argues the references to ejaculation and the gun
- 756 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
during the State’s opening statement were the “most dramatic”
and “fundamental” and the “most offensive” aspects of the
State’s case.
(b) Disposition
[17,18] A mistrial is properly granted in a criminal case
where an event occurs during the course of a trial which is of
such a nature that its damaging effect cannot be removed by
proper admonition or instruction to the jury and thus prevents
a fair trial.45 A trial court is vested with considerable discretion
in passing on a motion for mistrial in order to more nearly
effectuate the ends of justice.46
[19,20] When considering a claim of prosecutorial miscon-
duct, we first consider whether the prosecutor’s acts constitute
misconduct.47 A prosecutor’s conduct that does not mislead
and unduly influence the jury is not misconduct.48 Though
Swindle identified two contradictions between the State’s
preview of the evidence and M.M.’s testimony, there was
no misconduct.
During its opening statement, the State previewed evidence
that Swindle sexually assaulted M.M. and had her perform
sexual acts with other men for financial gain. These claims
were supported through testimony at trial. Neither ejaculation
nor use of force are elements of the crime of sexual assault of
a minor or sex trafficking of a minor.49 Swindle’s argument
regarding the State’s incorrect predictions of the evidence
ignores the nature of the crimes at issue in this case.
The pretrial investigation of M.M.’s assaults yielded con-
flicting evidence concerning whether Swindle had ejaculated.
45
State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018); State v. Cotton,
299 Neb. 650, 910 N.W.2d 102 (2018).
46
See Castillo-Zamora, supra note 2.
47
See Cotton, supra note 45.
48
See id.
49
§§ 28-319.01 and 28-831(1).
- 757 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
A police report described that “it took [Swindle] a while to
ejaculate and when he finally did, he ejaculated in her mouth.”
Yet, the nurse’s report concerning multiple sexual assaults of
M.M. marked that there had been no ejaculation associated
with penetration of the mouth. These facts and M.M.’s diag-
nosed mental state created some uncertainty about what her
testimony would be. Swindle’s own counsel recognized this in
his opening statement when he said, “I don’t think I’ve ever
been in a situation in a courtroom where I’m less certain of
what someone’s gonna say. I don’t know what these people are
gonna say.”
In the context of the trial, the State’s comment that M.M.
would testify that Swindle threatened her with a gun was not
imperative given that both A.R. and Villanova-White testi-
fied Swindle had indirectly threatened them with his handgun.
Because M.M. admitted that her statements about the gun were
not true and that the State’s incorrect claims during its opening
statement were not later repeated, we cannot conclude there
was any effort to mislead the jury. Swindle’s claim of prosecu-
torial conduct is without merit.
[21,22] Even if there were misconduct, there is no evidence
that Swindle was prejudiced. Not every variance between a
prosecutor’s advance description and the actual presentation
constitutes reversible error, when a proper limiting instruction
has been given and the remarks are not crucial to the State’s
case.50 Absent evidence to the contrary, it is presumed that a
jury followed the instructions given in arriving at its verdict.51
The court instructed the jury that “[s]tatements and argu-
ments by the lawyers for the State and for [Swindle] are
not evidence,” and there is no indication the jury did not
follow this instruction. We determine that the district court
did not abuse its discretion in overruling Swindle’s motion
for mistrial.
50
State v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018).
51
Id.
- 758 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
4. Court Did Not Err in
A dmitting Statements
by Swindle
In his next assignment of error, Swindle argues the court
erred by admitting statements that he made. Swindle argues
that Villanova-White was permitted to paraphrase his words
and that his out-of-court statements cannot be admitted unless
a witness is able to recite the specific words that he used rather
than relay the “general tenor” of his comments.52
[23,24] Based on our discussion of the record below, we
agree with the State that Swindle did not articulate this objec-
tion to the trial court. On appeal, a defendant may not assert
a different ground for his or her objection than was offered at
trial.53 Unless an objection to offered evidence is sufficiently
specific to enlighten the trial court and enable it to pass upon
the sufficiency of such objections and to observe the alleged
harmful bearing of the evidence from the standpoint of the
objector, no question can be presented therefrom on appeal.54
In explaining his assignment of error, Swindle points to four
portions of Villanova-White’s testimony that where admitted
over his objection. Swindle’s objections included hearsay, form
of the question, and foundation.
[25] “Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.”55 It is a
fundamental rule of evidence that a statement is not hearsay if
it is offered against a party and is the party’s own statement.56
[26] The first objection came as a hearsay objection to
Villanova-White’s testimony that Swindle “had his way of
52
Brief for appellant at 23.
53
Schwaderer, supra note 1.
54
State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
55
Neb. Rev. Stat. § 27-801(3) (Reissue 2016).
56
See § 27-801(4)(b)(i).
- 759 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
threatening without really threatening, but he would men-
tion all the time about how many people he would beat up
and gun activity and things like that.” The court presumably
overruled the objection, because Villanova-White’s testimony
concerned nonhearsay statements made by a party opponent.
Where the reason for a trial court’s overruling of a hearsay
objection is left at large, arguably, it is the opponent’s bur-
den to demand an explanatory ruling.57 Swindle did not then
argue that § 27-801(4)(b)(i) did not apply absent the recital
of his precise statement. Therefore, Swindle failed to meet his
burden to show that Villanova-White’s testimony was inad-
missible. The court did not abuse its discretion in overruling
Swindle’s hearsay objection.
[27] The second objection was a form and foundation objec-
tion when the prosecution asked Villanova-White, “Based on
conversations that you had with [Swindle], do you know if
[A.R.] was ever able to keep any of the money that she made
from the business?” Swindle objected as to the form of the
question and that it called for a narrative. The court overruled
the objection and allowed Villanova-White to answer. The
question permitted Villanova-White to answer yes or no as to
whether she had knowledge regarding A.R.’s being allowed to
keep any money. In response to the question, Villanova-White
stated, “No, she was never able to keep the money.” After the
answer was given, Swindle did not object to the answer on the
ground that the answer was a voluntary statement or for some
specific reason such as hearsay or a conclusion of the wit-
ness.58 Failure to make a timely objection waives the right to
assert prejudicial error on appeal.59 As a result, Swindle waived
any error which may have occurred.
The third objection was an “[a]sked and answered objec-
tion” when the prosecution asked Villanova-White why
57
Henry, supra note 54.
58
Ford, supra note 4.
59
Schwaderer, supra note 1.
- 760 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
Swindle called A.R. a “bitch.” The court sustained the objec-
tion as to being a compound question. The prosecution then
asked Villanova-White why Swindle was angry, to which
Swindle objected on the ground that the question had been
asked and answered. The court overruled the objection,
and Villanova-White answered, “I know that it was always
about money. It was always having to do with money.”
Villanova-White’s answer was based on her recollection. It
did not include hearsay evidence and, according to the record,
was not cumulative. The court did not err in overruling
Swindle’s objection.
Finally, Swindle made a foundation objection to a line of
questioning about why Swindle did not want A.R. to leave
the house. Swindle asked that the State lay in its ques-
tions to Villanova-White “the typical foundational require-
ments” of specific times, dates, and places. The court then
required the State to lay foundation. The State asked whether
Villanova-White had conversations with Swindle between
March and July 2015 about why he did not want A.R. to
leave. Villanova-White responded that she did, and the State
asked her what Swindle said in those conversations. Swindle
objected based on foundation, and the court overruled his
objection. Villanova-White answered, “He didn’t want her to
leave because he was making — she was making him money
and that he could keep track of her.”
[28] Swindle did not object that Villanova-White’s answer
did not contain his exact statement. In addition, Swindle has
not cited any authority to suggest that if he had made that
objection, the State would have been required to lay addi-
tional foundation. A witness who hears an oral admission by
a party may testify as to that admission.60 Swindle has not
argued that Villanova-White did not hear his admissions or
that she lacked personal knowledge as to why he wanted A.R.
60
See State v. Neujahr, 248 Neb. 965, 540 N.W.2d 566 (1995).
- 761 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
to stay at the house. The trial court did not abuse its discre-
tion in overruling Swindle’s evidentiary objections. Swindle’s
assignment of error is without merit.
5. Court Did Not Impose
Excessive Sentences
Swindle argues that his sentences, which amounted to 180
years’ to life imprisonment, were disproportionate, because he
had no prior similar criminal history and his sentences exceed
those imposed even in certain cases of homicide. The State
claims the sentences imposed were all within the statutory lim-
its and that Swindle does not argue otherwise.
The jury found Swindle guilty of four felonies, and the court
determined Swindle to be a habitual criminal. Upon conviction
of a felony, a habitual criminal shall be sentenced to a manda-
tory minimum of 10 years’ imprisonment and a maximum of
up to 60 years’ imprisonment.61 The court sentenced Swindle to
consecutive sentences of imprisonment of between 60 years to
life on count 1, between 60 years to life on count 2, between
40 to 60 years on count 3, and between 20 to 60 years on
count 4.
[29] An abuse of discretion in imposing a sentence occurs
when a sentencing court’s reasons or rulings are clearly unten-
able and unfairly deprive the litigant of a substantial right and
a just result.62
The court’s sentencing of Swindle was not inappropri-
ate in this case. Swindle’s guilt was largely uncontested.
Swindle’s theory of defense at trial was that Villanova-White
was primarily responsible for the online business and that
A.R.’s and M.M.’s prostitutions were voluntary on their part.
The evidence left little question, however, that Swindle sex-
ually assaulted M.M. on two separate occasions and that
he engaged in sex trafficking of both A.R. and M.M. The
61
Neb. Rev. Stat. § 29-2221 (Reissue 2016).
62
Brown, supra note 6.
- 762 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SWINDLE
Cite as 300 Neb. 734
court’s sentencing is not clearly untenable, given that the
State proved that Swindle repeatedly sought out vulnerable
victims and used violence and manipulation to force them
into his sex trafficking business. The court was within its dis-
cretion to impose sentences on the high end of the statutory
range. We conclude the court did not abuse its discretion in
sentencing Swindle.
V. CONCLUSION
We conclude that the court’s refusal of Swindle’s proposed
jury instruction was not in error. We further conclude that
the district court did not abuse its discretion in overruling
Swindle’s motions for mistrial and in overruling his eviden-
tiary objections. We conclude the court did not abuse its dis-
cretion in sentencing Swindle. We therefore affirm Swindle’s
convictions and sentences.
A ffirmed.