[Copyrighted Material Omitted]
Petition for further review from the Court of Appeals, IRWIN, INBODY, and PIRTLE, Judges, on appeal thereto from the District Court for Lancaster County, PAUL D. MERRITT, JR., Judge.
Mark E. Rappl for appellant.
Douglas J. Peterson and Jon Bruning, Attorneys General, and Kimberly A. Klein for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. STACY, J., not participating. CONNOLLY, J., dissenting.
[292 Neb. 567] Heavican, C.J.
Frederick E. McSwine, also known as Frederick E. Johnson, was convicted of
terroristic threats, kidnapping, first degree sexual assault, and use of a deadly weapon to commit a felony. He was sentenced to a total of 57 to 85 years' imprisonment. On appeal, the Nebraska Court of Appeals reversed, concluding on plain error review that the State committed prosecutorial misconduct in its closing arguments. We granted the State's petition for further review. We reverse the decision of the Court of Appeals and remand the cause for further proceedings.
McSwine was charged with terroristic threats, kidnapping, first degree sexual assault, and use of a deadly weapon to commit a felony. The charges arise from October 2012 allegations that McSwine abducted C.S. at knifepoint and drove her around rural Lancaster County, in an area near Waverly, Nebraska, periodically stopping to sexually assault her. McSwine and C.S. originally met because McSwine worked at a convenience store in Waverly, which store C.S. had frequented.
C.S. testified that McSwine knocked on her door the morning of October 13, 2012, and asked to use her bathroom. This was not the first time that McSwine had asked to use her bathroom; a week or two earlier, at a time when C.S. had guests, McSwine stopped to use the bathroom and left without incident. But according to C.S.' testimony, on this occasion, after purportedly using the bathroom, McSwine pulled out a pocketknife and forced C.S. out of the apartment. At the [292 Neb. 568] time, C.S.' boyfriend was sleeping in the apartment. C.S. was wearing a pair of pajama shorts under a pair of longer pajama pants, a sports bra, and a flannel shirt. C.S. was not wearing shoes. She also left her identification, money, and cell phone in her apartment.
C.S. testified that McSwine then drove around rural Lancaster County, near Waverly. On three occasions, McSwine allegedly drove into isolated areas and forced C.S. to engage in various sexual acts. After about 5 hours, McSwine allowed C.S. to leave his car. C.S. jumped over a guardrail near where McSwine let her out of the car and ran, still barefoot, to a nearby home, where law enforcement was notified. According to C.S., though McSwine originally let her leave the car, she later saw him head toward her as she knocked on the door of the home.
In addition to C.S.' testimony, the State offered the testimony of a friend of McSwine's. This witness testified that McSwine told him that he had abducted and sexually assaulted C.S. at knifepoint. His testimony largely corroborated the narrative to which C.S. testified. The witness' testimony was given as part of a cooperation agreement with the State.
The State also offered testimony of the nurse who performed C.S.' sexual assault examination. According to the nurse's testimony, there was a laceration to C.S.' vagina. The nurse testified that lacerations such as the one C.S. suffered were caused by blunt force trauma and were consistent with sexual assault and also with sexual penetration " if it's rough sex where there's a lot of force."
McSwine testified in his own behalf. McSwine did not contest that he had sexual contact with C.S. and agreed that those acts occurred in isolated areas surrounding Waverly. But McSwine testified that those acts were consensual. McSwine testified that C.S. became upset with him when she discovered that he had lied to her about having a charger for his cell phone. According to McSwine, C.S. then
accused McSwine of being selfish, of lying to her, and of using her for sex. At this [292 Neb. 569] point, according to McSwine, C.S. insisted that he stop the car and let her out. McSwine testified that he did so.
McSwine's counsel argued in closing arguments that C.S. had concocted the story about McSwine's abducting and sexually assaulting her because she was angry at McSwine and because she did not want her parents or boyfriend to be upset with her because of her actions.
At trial, the State introduced certain text messages from McSwine to his wife and from McSwine to a friend. According to the State, these messages showed McSwine's feelings of guilt and remorse over his actions involving C.S. In summary, the State argued McSwine both knew that C.S. had run from his car directly to a residence and assumed that C.S. would inform law enforcement of McSwine's actions and could identify him because they had previously met.
In the messages from McSwine to his wife, McSwine indicated that he had " messed up bad" and that " [c]ops are probably going to be looking for me [and] if they are I'm going to run." McSwine also apologized to his wife and stated that he " [did not] deserve [her and wished he] didn't f*** everything up." In a later text message, McSwine asked his wife if she " would give [him] up even if [he] was dead wrong and did some foul s***." In these messages, McSwine discussed running away to Mexico or to a " reservation."
In the messages from McSwine to his friend, McSwine stated that he had gotten himself into trouble, that he " might be taking a trip," and that he did not know " what [he] was thinking." McSwine then stated that he " f*** this all up."
But McSwine testified that the text messages did not indicate grief or remorse about kidnapping and sexually assaulting C.S., but instead were an indication of his concern about an incident that happened prior to the incident involving C.S. McSwine testified that in the early morning hours of October 13, 2012, he had been selling marijuana to the friend of a friend in Eagle, Nebraska. During the exchange, McSwine got nervous that the buyer was going to rob him, so he hit the [292 Neb. 570] buyer and ran into and through a nearby house. An elderly woman in the house confronted him; he apologized and ran back out.
McSwine testified that at the time of this incident, he had just finished smoking methamphetamine. McSwine explained that he assumed that because he was on parole, he would be facing significant charges for this encounter.
Other than McSwine's testimony, there was no evidence presented at trial that this trespassing incident occurred. On cross-examination, the State inquired whether McSwine knew if any reports had been filed on this incident. McSwine replied that he did not know.
During its closing argument, the State focused in part on McSwine's testimony about the motivation for the text messages. The prosecutor informed the jury that McSwine's testimony that he trespassed by walking into someone's house was " unsupported by any evidence at all. It's just him saying that that happened." In the prosecutor's rebuttal, he stated: " There is nothing that supports [McSwine's] statement or his testimony that he ran through some house . . . nothing. It's just his word." There was no objection to either of these comments.
Following closing arguments, the jury was instructed and then retired to deliberate. During those deliberations, the jurors inquired of the court as follows: " Did [the prosecutor] say that there was no evidence . . . including a police report . . .
of . . . McSwine's presence in a local house . . . ?" The court responded to the jury's question by informing the jury that it had all of the evidence it was going to receive in the case and further directed the jury to one of its instructions. Neither the State nor McSwine's counsel objected to the court's handling of the question.
McSwine was ultimately found guilty. He filed a motion for new trial, alleging that the prosecutor's statements during closing arguments indicating that there was no evidence to support McSwine's testimony that he had trespassed through a house [292 Neb. 571] in the early morning hours of October 13, 2012, were misleading, because there was evidence of a trespass, supported by various police reports. The police reports were originally provided to the defense by the State, but were not offered by either side or otherwise admitted as evidence at trial.
In support of his motion for new trial, McSwine offered into evidence those police reports. According to the reports, at the time of the event, the homeowner identified McSwine as the trespasser based upon a picture obtained from the security camera of a convenience store located in Eagle. Months later, however, the homeowner was not able to identify McSwine from a photographic lineup. Also offered was an affidavit from McSwine's counsel averring that his failure to object was a mistake and not trial strategy and that he failed to object because, at the time, he believed the State was arguing that there was no such evidence " 'presented at trial.'"
McSwine's motion for new trial was overruled because counsel did not object to the comments. McSwine was sentenced to a total of 57 to 85 years' imprisonment. McSwine appealed to the Court of Appeals. Among other assignments of error, McSwine argued that the State committed prosecutorial misconduct in its closing arguments.
The Court of Appeals first noted that McSwine did not object to the prosecutor's statements at the time the statements were made. The Court of Appeals then reviewed the record for plain error and concluded that there was plain error in the State's closing arguments:
Evidence offered by McSwine at the hearing on his motion for new trial revealed that the prosecutor's statements about the lack of evidence supporting McSwine's testimony were misleading. On two separate occasions, the prosecutor told the jury that there was no evidence which supported McSwine's testimony that on October 13, 2012, prior to his interaction with C.S., he had committed various criminal offenses, including trespassing through a residence. The prosecutor's comments were not [292 Neb. 572] qualified in a way so as to suggest that there was simply no evidence presented at the trial. Instead, the prosecutor unambiguously stated that the only evidence of the trespass was McSwine's testimony: " There is nothing that supports [McSwine's] statement or his testimony that he ran through some house . . . nothing. It's just his word." These comments were misleading in that they made it appear to the jury as though McSwine's explanation about why he sent the incriminating text messages lacked any credibility, when, in fact, there was evidence that McSwine had committed other criminal acts on October 13 which in no way involved C.S.
Even more concerning than the effect these false statements had on the jurors is the evidence that the prosecutor knew the statements to be false or misleading when making them. The prosecutor knew that there was, in fact, evidence
about the trespass, because he forwarded to defense counsel police reports about that trespass and about McSwine's being the one who committed the trespass. In addition, defense counsel stated in his affidavit that he and the prosecutor had a discussion about the trespass prior to trial. At that time, the prosecutor specifically indicated that he was not going to offer any evidence about that act at trial.
Because the prosecutor's comments were misleading and were made with knowledge of their inaccuracy and untruthfulness, we conclude that the comments were improper in nature.
The Court of Appeals then turned to the issue of whether the improper nature of the statements prejudiced McSwine's right to a fair trial and concluded that it did.
The Court of Appeals also found merit to McSwine's assertion that his trial counsel was ineffective for failing to timely object to the prosecutor's statements about the lack of evidence to support McSwine's explanation of the text messages. [292 Neb. 573] The Court of Appeals declined to reach McSwine's remaining assignments of error. Ultimately, the Court of Appeals reversed McSwine's convictions and remanded the cause for a new trial. We granted the State's petition for further review.
ASSIGNMENT OF ERROR
The State assigns that the Court of Appeals erred in reversing McSwine's convictions and remanding the cause for a new trial.
STANDARD OF REVIEW
An appellate court reviews a motion for new trial on the basis of prosecutorial misconduct for an abuse of discretion of the trial court.
Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.
The Court of Appeals reversed McSwine's convictions and remanded the cause for a new trial. The basis of the court's opinion was that the State committed prosecutorial misconduct such that despite a lack of objection by McSwine was so plainly error that " [left] uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process." 
We begin our analysis by noting that this case presents an odd procedural position. In the " typical" direct appeal which ultimately raises issues of plain error, the " error" is not raised [292 Neb. 574] until the case reaches the appellate level. A defendant might raise that " error" in its brief on direct appeal, or this court might note it on its own motion. But in this case, the perceived error was initially raised at the trial court level in a motion for new trial. The motion for new trial was denied because
of the lack of an objection at trial. The district court declined McSwine's invitation to find plain error.
We ordinarily review the denial of a motion for new trial for an abuse of discretion, and we cannot conclude that the district court abused its discretion in denying the motion for new trial. Indeed, everyone agrees that no objection was made to the prosecutor's statements at trial.
But this does not end our inquiry, because the Court of Appeals concluded that the prosecutor's statements during closing arguments constituted, as a matter of plain error, prosecutorial misconduct. We therefore turn to an analysis of whether that conclusion was correct.
Relevant Propositions of Law.
When considering a claim of prosecutorial misconduct, we first consider whether the prosecutor's acts constitute misconduct. A prosecutor's conduct that does not mislead and unduly influence the jury is not misconduct. But if we conclude that a prosecutor's acts were misconduct, we next consider whether the misconduct prejudiced the defendant's right to a fair trial.
Prosecutorial misconduct prejudices a defendant's right to a fair trial when the misconduct so infected the trial that the resulting conviction violates due process. Whether prosecutorial misconduct is prejudicial depends largely on [292 Neb. 575] the context of the trial as a whole. In determining whether a prosecutor's improper conduct prejudiced the defendant's right to a fair trial, we consider the following factors: (1) the degree to which the prosecutor's conduct or remarks tended to mislead or unduly influence the jury; (2) whether the conduct or remarks were extensive or isolated; (3) whether defense counsel invited the remarks; (4) whether the court provided a curative instruction; and (5) the strength of the evidence supporting the conviction.
Were Statements Misconduct?
We turn first to the conclusion of the Court of Appeals that the prosecutor's statements were misconduct. We conclude that the statements were not misleading and did not unduly influence the jury. As such, they were not misconduct.
The statements at issue were related to McSwine's defense at trial that his text messages were not referring to C.S.' sexual assault allegations, but instead were related to a trespassing incident that McSwine was involved in earlier that same day. The State, in discussing that defense, noted there was no evidence " at all," beyond McSwine's word, of this earlier incident. As has been noted, McSwine did not object to these statements. Only after the jury returned a verdict against McSwine did he complain, via a motion for new trial, that these statements were misleading.
The Court of Appeals concluded that the prosecutor's closing statements were misleading. The court reasoned that the statements did not limit the term " evidence" to only that evidence presented at trial; rather, the statements suggested to the jury that there was no ...