State v. Swanson

1

State of Nebraska, appellee, v. Roger R. Swanson, Sr., appellant

No. A-23-230

Court of Appeals of Nebraska

April 23, 2024

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: J RUSSELL DERR Judge. Affirmed.

Katie Jadlowski, of Bartling Law Offices, P.C., L.L.O., for appellant.

Michael T. Hilgers, Attorney General, and Nathan A. Liss for appellee.

PIRTLE, Chief Judge, and RIEDMANN and WELCH, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

PIRTLE, CHIEF JUDGE.

INTRODUCTION

Roger R. Swanson appeals the decision of the district court for Douglas County that dismissed his amended petition for postconviction relief without an evidentiary hearing. For the reasons that follow, we affirm.

BACKGROUND

In 2014, N.D., who was then 9 years old, reported to her therapist that Swanson had sexually abused her when she was approximately 3 or 4 years old. According to N.D., the sexual abuse occurred between 2008 and 2012 at her mother's home when Swanson, born in 1953, was approximately 55 to 60 years old. N.D. expressed her belief that her mother had made her available to Swanson during this period in exchange for drugs. N.D. accused Swanson of touching the inside and outside of her vagina with his fingers, touching the outside of her vagina with his penis, touching her vagina with his lips, and forcing her to touch his penis with her fingers and lips.

On April 25, 2017, following the investigation of these allegations, Swanson was charged in the district court with first degree sexual assault on a child, a Class IB felony and third degree sexual assault on a child, a Class IIIA felony. The charging document alleged that Swanson had subjected N.D. to sexual penetration and sexual contact on or about January 1, 2008, through December 31, 2012.

DISTRICT COURT PROCEEDINGS

On November 21, 2017, the district court scheduled Swanson's trial to begin on January 8, 2018. On December 28, 2017, 11 days before the trial, the State motioned for leave to endorse Sarah Cleaver and Debra Wesselman as witnesses. Then on January 3, 2018, 5 days before trial, the State amended its motion to include April Anderson. Swanson's trial was then held from January 8 to January 12.

At the trial, relevant to this appeal, the State called N.D. to testify along with the following witnesses: Sarah Spizzirri, an Omaha police officer; Anderson, a forensic interviewer; and Wesselman, N.D.'s therapist.

N.D. testified she first had contact with Swanson when she was 3 or 4 years old while she was living with her mother. During this time, she alleged that she was subjected to sexual abuse and identified Swanson as the perpetrator. At some point when N.D. was approximately 4 years old, she was removed from her mother's home and moved into foster care where she has remained with the same family ever since.

In May 2014, N.D. informed her therapist, Wesselman, about the sexual contact she experienced many years earlier. Wesselman reported the disclosure to the State and N.D. participated in a forensic interview at Project Harmony on May 22, 2014. N.D. proceeded to participate in two more interviews with Project Harmony on August 28, 2014, and April 28, 2016. The recordings from these interviews were entered into evidence and published at trial.

The information N.D. shared in these interviews was not entirely consistent between interviews or with her trial testimony. The inconsistencies included initially confusing Swanson with another man, Ronnie Graham, the timing of the events relative to N.D.'s age, the extent of her biological mother's involvement, whether Swanson ejaculated, and the extent of the sexual contact with Swanson. At trial, N.D. acknowledged these inconsistencies and stated that she did not feel comfortable disclosing everything initially but did a better job of relating the facts of what happened by the third interview.

Spizzirri's testimony mainly concerned the procedure utilized during the Project Harmony interviews and how N.D.'s interviews were completed. During her testimony, the three interviews were entered into evidence and published to the jury. Additionally, Spizzirri provided specific testimony concerning juvenile victims' tendency to provide "piecemeal disclosure" or "delayed disclosures." Specifically, she indicated it was common for children to disclose only "bits and pieces" of information at a time. She noted that while this tendency may make it appear that children are changing their stories, they are just remembering "different things or more details." She continued to explain that in her experience working with child victims of sexual assault, 50 percent of the cases involved delayed disclosures. She then provided her opinion as to whether specific questions from N.D.'s interviews were overly suggestive or leading. In opining that they were not, she concluded that she did not have any concerns about N.D.'s interviews, or the questions asked during them.

Anderson was the forensic interviewer that conducted N.D.'s third interview on April 7, 2016. Anderson only conducted the third interview because the individual who conducted the first two, Suzie Mistry, no longer worked at Project Harmony. In Anderson's testimony, she defined "delayed disclosure" as being the tendency for most child victims of sexual assault to not share details of their abuse for months or even years afterward. She also discussed the ongoing concerns of asking children leading questions during forensic interviews. She noted that younger children are more susceptible to "suggestibility" which is essentially "how influenced they can be." She went on to describe certain factors that indicate a child might be more susceptible to suggestibility and concluded that she did not believe N.D. was very susceptible to suggestion. She also stated that it is not uncommon for a child victim to disclose inconsistent statements over time, especially if they had been abused multiple times. With this information in mind, she concluded that she did not have any concerns regarding her interview with N.D.

Wesselman is a therapist who has worked with N.D. since she was 5 years old. In her testimony, she described how people, particularly children, disclose information about sexual abuse differently. She explained that child victims of sexual assault may initially disclose the abuse very generally and get more specific as time goes on. She indicated this was the case with N.D. as she initially disclosed her sexual abuse and then included more instances of abuse at later points. Wesselman stated this was not uncommon and that N.D.'s disclosure "made sense" and that "[t]here wasn't anything that didn't make sense" about her disclosures.

At the close of the State's evidence, Swanson's counsel motioned for a directed verdict and to dismiss the charges for failure to make a prima facie case. The district court overruled both motions. At the close of evidence, Swanson's counsel renewed the motion to dismiss, which the district court overruled.

The jury found Swanson guilty on both charges and the district court accepted the verdict. On March 8, 2018, at the sentencing hearing, the district court sentenced Swanson to 40 to 41 years' imprisonment on the first degree sexual assault on a child charge, and 2 years' imprisonment on the third degree sexual assault on a child charge. The sentences were ordered to be served consecutively.

DIRECT APPEAL

With the same defense attorney representing him, Swanson pursued a direct appeal. In this appeal, Swanson assigned the following errors: (1) the evidence was insufficient to survive his first motion to dismiss the charge of first degree sexual assault of a child at the close of the State's evidence; (2) the evidence was insufficient to support the guilty verdicts for first degree and third degree sexual assault of a child; (3) the mandatory minimum sentencing scheme under which he was sentenced violated his constitutional right to be free from cruel and unusual punishment; and (4) the district court abused its discretion in imposing excessive sentences. On September 25, 2019, in a memorandum opinion, the Nebraska Supreme Court rejected all of Swanson's assignments of error.

POSTCONVICTION PROCEEDINGS

On August 14, 2020, Swanson initiated this postconviction proceeding by filing a pro se verified motion for postconviction relief. Counsel was then appointed for Swanson, and he filed an amended postconviction motion on September 24, 2020, which contained several overarching claims.

Restated Swanson's amended petition alleged that his trial and appellate counsel were ineffective for:

(1) Failing to challenge the lack of specificity in the State's information as to when exactly the criminal conduct occurred, which violated Swanson's right to prepare and present a complete defense.

(2) Failing to consult or obtain an expert specialized in the field of "delayed disclosure" of juvenile victims of sexual assault and failing to challenge the State's witnesses who testified about "delayed disclosures" without being certified as experts under Neb. R. Evid. 702 (Reissue 2016) and Daubert/Schaefersman. Swanson alleges these failures violated his right to due process, right to effective assistance of counsel, and right to prepare and present a complete defense.

(3) Failing to consult and call N.D.'s biological mother as a witness, which violated Swanson's right to due process and right to prepare and present a complete defense.

(4) Failing to consult and call Mistry and Graham as witnesses, who would have corroborated Swanson's defense by testifying that N.D. initially alleged Graham sexually

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