Jury Instructions: Appeal and Error. Whether
jury instructions are correct is a question of law, which an
appellate court resolves independently of the lower
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.
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.
Judges: Evidence: Appeal and Error. The
exercise of judicial discretion is implicit in determining
the relevance of evidence, and a trial court's decision
regarding relevance will not be reversed absent an abuse of
__:__:__. 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.
Sentences: Appeal and Error. An appellate
court will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial
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.
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
Neb. 735] 9. Jury Instructions: Proof: Appeal and
Error. 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.
Jury Instructions. In giving instructions to
the jury, it is proper for the court to describe the offense
in the language of the statute.
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.
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.
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.
Sexual Assault: Evidence. 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.
Sexual Assault: Trial: Witnesses. In limited
circumstances, a defendant's right to confrontation can
require the admission of evidence that would be inadmissible
under the rape shield statute.
Constitutional Law: Trial: Juries:
Witnesses. 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 witness' credibility had counsel been permitted to
pursue his or her proposed line of cross-examination.
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 cannot be
removed by proper admonition or instruction to the jury and
thus prevents a fair trial.
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
Neb. 736] 19. Trial: Prosecuting
Attorneys. When considering a claim of
prosecuto-rial misconduct, an appellate court first considers
whether the prosecutor's acts constitute misconduct.
__:__.A prosecutor's conduct that does not mislead and
unduly influence the jury is not misconduct.
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
limiting instruction has been given and the remarks are not
crucial to the State's case.
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.
Trial: Appeal and Error. On appeal, a
defendant may not assert a different ground for his or her
objection than was offered at trial.
Trial: Evidence: Appeal and Error. 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.
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
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
Trial: Waiver: Appeal and Error. Failure to
make a timely objection waives the right to assert
prejudicial error on appeal.
Trial: Witnesses: Hearsay. A witness who
hears an oral admission by a party may testify as to that
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
from the District Court for Douglas County: Thomas A. Otepka,
J. Regan for appellant.
Douglas J. Peterson, Attorney General, and Glen Th. Parks for
Neb. 737] Heavican, C.J., Miller-Lerman, Cassel, Stacy,
Funke, and Papik, JJ.
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
sentenced Swindle to consecutive terms totaling between 180
years' to life imprisonment, and Swindle filed this
appeal. We affirm.
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 casinos.
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.
involvement in Villanova-White's online prostitution
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
[300 Neb. 738] car about killing someone, and he showed her a
handgun he kept hidden underneath his seat.
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.
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.
met A.R. in March 2015 when he drove up to her while she was
walking down a North Omaha street. A.R. testified 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.
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.
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.
Neb. 739] 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.
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 handgun 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.
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.
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.
Neb. 740] 2. M.M.
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.
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.
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,
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.
Neb. 741] 3. Trial and Sentences
7-day trial, the jury found Swindle guilty on counts 1 and 2:
sexual assault of a child in the first degree, in violation
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
ASSIGNMENTS OF ERROR
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 adequate foundation, (4) refusing to grant a mistrial
based upon claims of prosecutorial misconduct, and (5)
imposing excessive sentences.
STANDARD OF REVIEW
jury instructions are correct is a question of law, which an
appellate court resolves independently of the lower
Neb. 742] 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.
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 The exercise of judicial discretion 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. We review for
abuse of discretion a trial court's evidentiary rulings
on the sufficiency of a party's foundation for admitting
appellate court will not disturb a sentence imposed within
the statutory limits absent an abuse of ...