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State v. Swindle

Supreme Court of Nebraska

August 10, 2018

State of Nebraska, appellee,
v.
Anthony L. Swindle, appellant.

         1. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently 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 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.

         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 sentence 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.

         [300 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.

         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 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.

         15. 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.

         16. 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.

         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 cannot 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.

         [300 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.

         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 limiting 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 different ground for his or her objection than was offered at trial.

         24. 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.

         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.

          James J. Regan for appellant.

          Douglas J. Peterson, Attorney General, and Glen Th. Parks for appellee.

         [300 Neb. 737] 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 sentenced 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 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.

         Swindle's 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.

         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. 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.

         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.

         [300 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.

         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 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.

         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.

         [300 Neb. 740] 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.

         [300 Neb. 741] 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 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 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 adequate foundation, (4) refusing to grant a mistrial based upon claims of prosecutorial misconduct, and (5) imposing excessive sentences.

         III. STANDARD OF REVIEW

         Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.[1]

         [300 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.[2]

         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[3] 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.[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]

         An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of ...


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