State v. Swenson, A-12-277.

STATE OF NEBRASKA, APPELLEE, v. JOHN L. SWENSON, APPELLANT.

No. A-12-277.

NEBRASKA COURT OF APPEALS

Filed May 7, 2013

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

NOTICE: 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 Nemaha County: DANIEL E. BRYAN, JR., Judge. Affirmed.

Allen Fankhauser, Nemaha County Public Defender, and Diane L. Merwin for appellant.

Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.

SIEVERS, PIRTLE, and RIEDMANN, Judges.

RIEDMANN, Judge.

I. INTRODUCTION

John L. Swenson was convicted of first degree sexual assault and exhibition of obscene material. He received concurrent prison sentences of 40 to 50 years for the sexual assault conviction and 1 year for the exhibition of obscene material conviction. On appeal, Swenson argues that the evidence does not sufficiently support the verdicts, the State committed prosecutorial misconduct, the sentence is excessive, and he was denied effective assistance of trial counsel. We reject Swenson's claims and therefore affirm the trial court's convictions and sentences.

II. BACKGROUND

On October 1, 2010, M.E. and K.J. were at a park near M.E.'s house when they saw Swenson pull into M.E.'s driveway. Upon Swenson's arrival, the girls returned to M.E.'s house. A short time later, the girls decided that they wanted dinner and Swenson offered to drive them to a grocery store. At some point later in the evening, Swenson returned the girls home. Whatexactly transpired during M.E.'s and K.J.'s time with Swenson that evening is in dispute, but M.E. contends that Swenson digitally penetrated her.

Other than telling K.J. about the sexual assault when the girls returned to M.E.'s house, M.E. did not report this incident to anyone until November 2010. A few days later, M.E. completed a forensics interview at a child advocacy center. During that interview, she stated that Swenson assaulted her and showed her and K.J. pornographic videos using his cellular telephone. One video was described as "a female using a dildo on herself," and another video was described as "Betty Boop masturbating."

Swenson was arrested in January 2011, and the case was tried in February 2012. M.E. testified at trial that she was 15 years old on October 1, 2010. She said that on that evening, she went out with both Swenson and K.J. She explained that she and K.J. know each other from taking special education classes together at high school.

According to M.E., after she, K.J., and Swenson returned home from the grocery store, they noticed they forgot to buy some items. She said that Swenson took them back to the store to buy them, but instead of returning home, Swenson began "cruising around." He left Auburn and began driving through the country. M.E. testified that she was seated in the front seat with Swenson and that K.J. was seated in back.

M.E. testified that they eventually returned to Auburn and stopped at a convenience store before proceeding to a fast-food restaurant. At the fast-food restaurant, M.E. claimed Swenson bought the girls ice cream and attempted to hold her hand, but she pulled away. At some point while they were out, Swenson gave his cellular telephone to K.J. so that she could contact her boyfriend, D.Y. The three proceeded to D.Y.'s home in Auburn after finishing at the fast-food restaurant. M.E. said Swenson was trying to tickle her side at D.Y.'s. In response, she got up and walked over to K.J., who was outside of the vehicle talking with D.Y.

After leaving D.Y.'s house, Swenson drove back toward M.E.'s house. Before reaching her home, however, he stopped under the awning at a used-car lot. While they were parked at the carlot, M.E. said she and K.J. were talking and she was texting. She said Swenson showed her a video of "a girl using a red dildo."

After showing her the video, Swenson leaned over and put his arm around her. She said that she laughed at something he said and that he then put his hand on her leg and moved it up further. She said she initially thought he was tickling her, but something was "going wrong." According to M.E., Swenson digitally penetrated her. M.E. testified that she was wearing loose jean shorts. She testified that she was leaning against the door, pushing his hand away, and telling him to stop. She described the penetration as painful.

At this time, K.J. asked what was going on, but Swenson told her nothing and "scooted back to his seat." Swenson then drove the girls back to M.E.'s house.

When they returned home, Swenson parked in the driveway and M.E. moved into the back seat with K.J. According to M.E., Swenson used his cellular telephone to show the girls a video of "Betty Boop playing with herself." She testified that Swenson allowed her to keep his cellular telephone and that she returned it to him a couple of days later, after his fiance called asking for it. M.E. also testified that while in the driveway, he asked her if she wanted to have sex with him. She said that she declined. She also testified that all of the events took place in Auburn, except driving out in the country.

On cross-examination, defense counsel impeached M.E. with multiple prior inconsistent statements she had made, both in her interview at the child advocacy center and in her deposition, regarding the exact details of what she did earlier in the day on October 1, 2010; what she did the next morning; and the timing of the various events in the evening.

K.J.'s testimony about the key events of the assault mirrored M.E.'s, although some of the details differed. For example, K.J. testified that Swenson used his laptop at the fast-food restaurant because there was an Internet connection there. M.E. did not recall that. K.J. also added that while they were parked under the awning at the carlot, M.E. started screaming and K.J. was scared.

K.J. admitted that she did not tell her mother what happened because she was "nervous" around her mother. K.J. also admitted that she did not initially tell the police what happened because her mother was with her at the interview and that K.J. was nervous about it. During the police interview, K.J. did not relay that they stopped at the carlot and also did not indicate that they went to D.Y.'s home. Despite omitting those details, K.J. did indicate that the sexual assault occurred.

On cross-examination, defense counsel impeached K.J. on the details of several of her statements, including where D.Y. was before they met up with him at his home that night, the length of time they were at the fast-food restaurant, the length of time they were at the carlot, and whether the Betty Boop video had sound.

While attacking K.J.'s credibility at trial, defense counsel asked her whether she was scared or nervous during her deposition. K.J. stated that she was nervous. Defense counsel asked her if she remembered what her response was during the deposition when he asked her if she was scared or nervous. K.J. testified that she had responded that she was not scared and that he seemed like "a pretty nice guy." On redirect, the State returned to this line of questioning and asked K.J. what defense counsel said to her in response to her comment that he seemed like a "nice guy." Defense counsel objected to the question on grounds of relevance, and the trial court overruled the objection. K.J. responded that defense counsel said he was not nice, that he was "a different kind of not nice."

D.Y. testified that he was dating K.J. in the fall of 2010 and that one evening "some guy" brought M.E. and K.J. to his house. D.Y. did not remember Swenson's name, but identified him in the courtroom as the driver. D.Y. testified that M.E. was seated in the front seat and that K.J. was seated in the back seat. D.Y. testified that he saw Swenson touching M.E. and that she was ignoring it.

M.E.'s father testified that he lived in Auburn in October 2010. He testified that M.E. is his daughter, that she was 15 years old in October 2010, and that she is in special education classes at school. He described her as "borderline mentally retarded." He testified that in October, M.E. had K.J. spend the night and that Swenson took them to the grocery store. He said they came back, threw the groceries in the house, and then left. He did not see them again until the next morning.

A sergeant with the Nebraska State Patrol testified that he interviewed Swenson in November 2010. He testified that Swenson was born in November 1978 and that he was 31 years old in October 2010. The sergeant said that when he interviewed Swenson about M.E., Swenson's response made him believe that he could not immediately remember who she was.The sergeant said that Swenson admitted taking the girls to the grocery store, but claimed his contact with them ended when he took them back home afterward.

An officer with the Auburn Police Department testified that the police found videos on Swenson's cellular telephone consistent with descriptions given by M.E. and K.J.

In his closing argument, defense counsel argued that M.E. and K.J. were not reliable enough witnesses for the jury to return a guilty verdict. In response, the State argued that defense counsel told M.E. and K.J. what to say and that they stood up to him. The prosecutor then informed the jury:

[Defense counsel] did the exact same thing up here to you that he did to these two girls. And he said, I'm going to tell you how you're going to decide. That's what creates difficulty about bringing out the truth is when a trained litigator comes in and says, here, we got two young children. Then to say that these two children are average or above average, they're in sped ed. They've been told they have learning disabilities. . . . That's average or above average. No way. We know that. No way. Why would he tell us that?

Following the trial, a jury convicted Swenson of first degree sexual assault and exhibition of obscene...