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State v. McSwine

Court of Appleals of Nebraska

March 10, 2015

STATE OF NEBRASKA, APPELLEE,
v.
FREDERICK E. MCSWINE, ALSO KNOWN AS FREDERICK E. JOHNSON, APPELLANT

Page 777

[Copyrighted Material Omitted]

Page 778

Appeal from the District Court for Lancaster County: PAUL D. MERRITT, JR., Judge.

Mark E. Rappl for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

IRWIN, INBODY, and PIRTLE, Judges.

OPINION

Page 779

[22 Neb.App. 792] Irwin, Judge.

I. INTRODUCTION

Frederick E. McSwine, also known as Frederick E. Johnson, was convicted by a jury of terroristic threats, kidnapping, first degree sexual assault, and use of a deadly weapon to commit a felony. The district court subsequently sentenced McSwine to a total of approximately 57 to 85 years' imprisonment. McSwine here appeals from his convictions. On appeal, McSwine assigns several errors, including that the district court erred in overruling his motion for new trial, which motion was based on allegations of prosecutorial misconduct during closing arguments. McSwine also alleges that he received ineffective assistance of trial counsel in a variety of respects. Most notably, McSwine alleges that his trial counsel was ineffective in failing to object to improper statements made by the prosecutor during closing arguments.

Upon our review, we conclude that the prosecutor committed misconduct in knowingly providing false information to the

Page 780

jury during closing arguments. Such misconduct amounts to plain error which requires a reversal of McSwine's [22 Neb.App. 793] convictions. In addition, we conclude that McSwine received ineffective assistance of counsel when defense counsel failed to timely object to the prosecutor's false statements. Such ineffective assistance would also require reversal of McSwine's convictions. Because the evidence presented by the State was sufficient to sustain McSwine's convictions, we reverse the convictions and remand for a new trial.

II. BACKGROUND

The State filed a criminal complaint charging McSwine with terroristic threats, kidnapping, first degree sexual assault, and use of a weapon to commit a felony. The charges against McSwine stem from an incident which occurred between McSwine and C.S. in October 2012. McSwine and C.S. knew each other prior to October 2012 because McSwine had been employed at a gas station that C.S. had frequented. However, the extent of the relationship was disputed at trial.

Evidence adduced by the State established that on the morning of October 13, 2012, McSwine knocked on the door to C.S.' apartment and asked if he could come in the apartment and use the bathroom. This was not the first occasion that McSwine had come to C.S.' apartment and asked to use the bathroom. A few weeks prior to the day in question, McSwine had appeared on C.S.' doorstep with a similar request. On that day, C.S., who was entertaining friends, let him in the apartment. McSwine then left C.S.' apartment immediately after going into the bathroom.

On October 13, 2012, when McSwine again appeared on C.S.' doorstep requesting to use her bathroom, the only other person in her apartment was her boyfriend, who was asleep in her bedroom. She let McSwine into the apartment, and after he went into the bathroom, he returned to the doorway, threatened C.S. with a " sharp instrument," and forced her from the apartment and into his car. McSwine then drove to three separate, isolated areas where he forced C.S. to engage in various sexual acts. After keeping C.S. with him for approximately 5 hours, McSwine permitted C.S. to flee his car. She then ran to a nearby home where the residents called law enforcement.

[22 Neb.App. 794] McSwine disputed the evidence presented by the State. During his trial testimony, he testified that on the morning of October 13, 2012, C.S. accompanied him to his car willingly and consented to engaging in various sexual acts with him. He also testified that at some point during their encounter, C.S. became upset with him after she discovered that he had lied to her about having a charger for his cellular telephone in the car. After she became upset, she began to accuse McSwine of " using [her] for sex." She then asked to get out of his car, and McSwine stopped the car on the side of a road in order to permit her to leave. During closing arguments, McSwine's counsel argued that C.S. concocted the story about being kidnapped and sexually assaulted because she was angry with McSwine and because she did not want to get in trouble with her boyfriend or with her parents.

After hearing all of the evidence, the jury convicted McSwine of all four charges: terroristic threats, kidnapping, first degree sexual assault, and use of a weapon to commit a felony. The district court subsequently sentenced McSwine to a total of 56 years 8 months to 85 years in prison.

McSwine appeals his convictions here.

Page 781

III. ASSIGNMENTS OF ERROR


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