Rules of Evidence. In all proceedings where
the Nebraska Evidence Rules apply, admissibility of evidence
is controlled by the Nebraska Evidence Rules, not judicial
discretion, except in those instances under the rules when
judicial discretion is a factor involved in determining
Rules of Evidence: Appeal and Error. When
the Nebraska Evidence Rules commit the evidentiary question
at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of
Constitutional Law: Criminal Law: Sexual Misconduct:
Evidence. Under Nebraska's rape shield statute,
Neb. Rev. Stat. § 27-412(2)(a) (Reissue 2016), evidence
of a victim's prior sexual behavior or sexual
predisposition is not admissible in a criminal case except
under limited circumstances, including when the exclusion of
the evidence would violate the constitutional rights of the
Sexual Misconduct: Evidence: Appeal and
Error. A court does not err in excluding evidence
about a victim's sexual history prior to an assault when
the State does not open the door to such evidence, when the
evidence does not directly relate to the issue of consent,
and when the evidence would not give the jury a significantly
different impression of the victim's credibility.
Motions for Mistrial: Juror Misconduct: Appeal and
Error. When a defendant moves for a mistrial based
on juror misconduct, an appellate court will review the trial
court's determinations of witness credibility and
historical fact for clear error and review de novo its
ultimate determination whether the defendant was prejudiced
by juror misconduct.
Criminal Law: Juror Misconduct: Proof. A
criminal defendant claiming jury misconduct bears the burden
of proving, by a preponderance [24 Neb.App. 454] of the
evidence, (1) the existence of jury misconduct and (2) that
such misconduct was prejudicial to the extent that the
defendant was denied a fair trial.
Criminal Law: Juror Misconduct: Presumptions:
Proof. In a criminal case, misconduct involving an
improper communication between a nonjuror and a juror gives
rise to a rebuttable presumption of prejudice which the State
has the burden to overcome.
Juror Misconduct: Proof. Extraneous material
or information considered by a jury can be prejudicial
without proof of actual prejudice if (1) the material or
information relates to an issue submitted to the jury and (2)
there is a reasonable possibility that it affected the
jury's verdict to the challenger's prejudice.
Juror Misconduct. Whether prejudice resulted
from jury misconduct must be resolved by the trial
court's drawing reasonable inferences as to the effect of
the extraneous information on an average juror.
Trial: Appeal and Error. While any one of
several errors may not, in and of itself, constitute
prejudicial error warranting a reversal, if all of the errors
in the aggregate establish that the defendant did not receive
a fair trial, a new trial must be granted.
Effectiveness of Counsel: Proof. To prevail
on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), the defendant must show that
counsel's performance was deficient and that this
deficient performance actually prejudiced his or her defense.
___: ____. To show prejudice under the prejudice component of
the Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), test, the petitioner must
demonstrate a reasonable probability that but for his or her
counsel's deficient performance, the result of the
proceeding would have been different.
Effectiveness of Counsel: Presumptions. When
considering whether trial counsel's performance was
deficient, there is a strong presumption that counsel acted
Trial: Attorneys at Law: Effectiveness of Counsel:
Appeal and Error. Trial counsel is afforded due
deference to formulate trial strategy and tactics. When
reviewing a claim of ineffective assistance of counsel, an
appellate court will not second-guess reasonable strategic
decisions by counsel.
from the District Court for Lancaster County: Paul D.
Merritt, Jr., Judge. Affirmed.
E. Rappl for appellant.
Neb.App. 455] Douglas J. Peterson, Attorney General, and
Kimberly A. Klein for appellee.
and Pirtle, Judges.
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. He was sentenced to a total of 57 to 85 years'
imprisonment. We previously found that, during the trial, the
State committed prosecutorial misconduct in its closing
argument and that such misconduct amounted to plain error.
See State v. McSwine, 22 Neb.App. 791, 860 N.W.2d
776 (2015). We also found that McSwine's trial counsel
was ineffective when he did not raise a timely objection to
the State's closing argument. Id. As a result of
these findings, we reversed McSwine's convictions.
Id. The Nebraska Supreme Court granted further
review and reversed our decision, finding that the State did
not commit prosecutorial misconduct in its closing argument
and that because there was no misconduct, McSwine's trial
counsel was not ineffective when he failed to object to the
State's closing argument. State v. McSwine, 292
Neb. 565, 873 N.W.2d 405 (2016). The Supreme Court remanded
the cause to this court for us to consider and decide the
other assignments of error that we had not addressed because
of the result we reached in our first decision. Thus, the
matter is now before us for consideration of McSwine's
remaining assignments of error.
remaining assignments of error include McSwine's
assertions that the district court erred in excluding certain
evidence about the victim's prior sexual experiences
pursuant to Neb. Rev. Stat. § 27-412 (Reissue 2016) and
in failing to order a mistrial after an issue of juror
misconduct was brought to the court's attention. McSwine
also asserts that he received [24 Neb.App. 456] ineffective
assistance of trial counsel in a variety of respects. For the
reasons set forth herein, we affirm.
following summary of the circumstances surrounding
McSwine's convictions is taken from our original opinion.
See State v. McSwine, 22 Neb.App. 791, 860 N.W.2d
776 (2015). Additional facts regarding the remaining
assignments of error will be discussed as necessary in the
analysis section below.
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 [24 Neb.App. 457]
instrument, " and forced her from the apartment and into
his vehicle. 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.
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
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.
Id. at 793-94, 860 N.W.2d at 780.
ASSIGNMENTS OF ERROR
raises five assignments of error in this appeal. The first
assignment of error alleged that the district court erred in
failing to grant McSwine's motion for a new trial due to
prosecutorial misconduct during closing arguments. This
assignment [24 Neb.App. 458] of error has been conclusively
resolved against McSwine by the Supreme Court. Therefore,
there now remain four assignments of error for us to resolve.
McSwine alleges that the district court erred in failing to
admit evidence of a specific instance of C.S.' sexual
behavior prior to the day of the assault. Second, McSwine
alleges that the district court erred in overruling his
motion for a mistrial which was based on an allegation of
juror misconduct. Third, McSwine alleges that the totality of
all the errors committed during the proceedings below
prohibited him from receiving a fair trial. Finally, McSwine
alleges that he received ineffective assistance of trial
counsel for a variety of reasons. We note that one of
McSwine's assertions of ineffective assistance of trial
counsel alleges that trial counsel failed to timely object to
inappropriate statements made by the prosecutor during
closing arguments. This assertion has also been conclusively
resolved against McSwine by the Supreme Court. As such, we
focus only on McSwine's remaining allegations of
ineffective assistance of trial counsel.
Admissibility of Evidence of Specific Instance of
C.S.:Past Sexual Behavior
argues that the district court abused its discretion when it
refused to allow him to introduce evidence of
C.S.:sexual experiences prior to October 13, 2012.
Specifically, McSwine asserts that the district court should
have permitted him to introduce evidence that prior to
October 13, C.S. had engaged in oral sex, contrary to her
testimony at trial. McSwine asserts that such evidence is
directly related to the question of whether C.S. consented to
the sexual contact with McSwine on October 13 and is directly
related to C.S.' credibility. Upon our review, we