- 734 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

State of Nebraska, appellee, v. 

Anthony L. Swindle, appellant.

___ N.W.2d ___

Filed August 10, 2018. No. S-17-761.

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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/28/2018 01:10 AM CDT
- 735 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

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 crossexamination 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.
- 736 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

19. Trial: Prosecuting Attorneys. When considering a claim of prosecutorial 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. Affirmed.

James J. Regan for appellant.

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

for appellee.
- 737 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

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. VillanovaWhite 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 
- 738 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

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 VillanovaWhite’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.
- 739 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

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.
- 740 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

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.
- 741 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

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

[1] Whether jury instructions are correct is a question of 

law, which an appellate court resolves independently of the 

lower court’s decision.1

1 State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).
- 742 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

[2] 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

[3-5] 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

[6] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court.6

IV. ANALYSIS

1. Court Did Not Err

in Instructing Jury

Swindle argues that the district court erred when it refused 

his proposed jury instruction. He contends that a defendant’s 

knowledge of the victim’s age is an essential element of the 

offense of sex trafficking of a minor. At the jury instruction 

conference, Swindle offered the following proposed instruction, which he fashioned from NJI2d Civ. 7.62, Negligent 

Entrustment:

2 State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 14 (2014); State v. 

Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014).

3 State v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018). See State v. Lessley, 

257 Neb. 903, 601 N.W.2d 521 (1999).

4 State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012); State v. Ford, 279 

Neb. 453, 778 N.W.2d 473 (2010).

5 See State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

6 See State v. Brown, ante p. 57, 912 N.W.2d 241 (2018).
- 743 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

In your deliberations with regard to Count III of the 

Information/Amended Information, in order for you to 

determine that [Swindle] is guilty of Trafficking of a 

person who has not attained the age of 16 years, you 

must find that [Swindle] knew or should have known

that the victim i[n] question had not attained the age of 

16 years.

(Emphasis supplied.)

The court refused the proposed instruction and gave an 

instruction which recited the elements of the offense as (1) 

that on the relevant dates the defendant engaged in sex trafficking of a minor and (2) that at that time, M.M. was less than 

16 years of age. The court provided a definitional instruction 

which stated:

“Sex trafficking of a minor” means knowingly recruiting, enticing, harboring, transporting, providing, or obtaining by any means or knowingly attempting to recruit, 

entice, harbor, transport, provide, or obtain by any means 

a minor for the purpose of having such minor engage in 

commercial sexual activity, sexually explicit performance, 

or the production of pornography or to cause or attempt 

to cause a minor to engage in commercial sexual activity, sexually explicit performance, or the production of 

pornography.7

Swindle argues the statutory definition of sex trafficking of 

a minor supports his proposed instruction, because the definition contains the word “knowingly.” Swindle contends that 

“knowingly” commonly requires a defendant’s perception of 

facts which make up the crime. Swindle claims the prosecution 

failed to prove that he knew M.M. was 15 years old, because 

M.M. admitted that she lied about her age and told Swindle 

that she was 20 years old.

Swindle claims that he received a greater sentence as a 

result of the court’s denial of his proposed instruction. Putting 

7 See Neb. Rev. Stat. § 28-830(14) (Reissue 2016) (now found at 

§ 28-830(12) (Supp. 2017)).
- 744 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

aside Swindle’s habitual criminal status, sex trafficking of a 

minor is a Class IB felony,8 with a minimum penalty of 20 

years’ imprisonment and a maximum of life imprisonment; 

whereas sex trafficking of an adult is a Class II felony,9 with a 

minimum penalty of 1 year’s imprisonment and a maximum of 

50 years’ imprisonment.10

[7,8] 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.11 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.12

[9] 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.13 We conclude that the 

court did not err in refusing Swindle’s proposed instruction.

[10] In giving instructions to the jury, it is proper for the 

court to describe the offense in the language of the statute.14

Although the law does not require that a jury instruction track 

the exact language of the statute,15 using the specific language 

of a statute is an effective means of implementing the intent of 

8 See § 28-831(1).

9 See § 28-831(2).

10 See Neb. Rev. Stat. § 28-105(1) (Supp. 2017).

11 State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017).

12 Id.

13 Id.

14 State v. Duncan, 293 Neb. 359, 878 N.W.2d 363 (2016); State v. Armagost, 

291 Neb. 117, 864 N.W.2d 417 (2015).

15 State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015).
- 745 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

the Legislature.16 This practice provides the added benefits of 

easing the process of preparing jury instructions and creating 

certainty for trial courts that the jury has been provided the 

essential elements of an offense.17

[11] Swindle’s proposed instruction, borrowed from the civil 

context of negligent entrustment of a motor vehicle, assumes 

conduct, liability, and consequences distinct from the charged 

offense of sex trafficking of a minor, and therefore cannot be a 

correct statement of the law in this case. To provide one example, the instruction introduces the mens rea element of “should 

have known,” which is absent from the statutory definition of 

sex trafficking of a minor. For that reason alone, Swindle’s 

instruction goes beyond the plain reading of the statute. 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.18

We agree with the State that the better analogy is the crime 

of sex trafficking of an adult. The Legislature used identical 

language to define the crimes of sex trafficking of a minor and 

sex trafficking of an adult, except sex trafficking of a minor 

applies to victims under the age of 18.19 If Swindle’s argument 

is accepted, then by parity of reasoning, the State would be 

unable to sustain a conviction of sex trafficking of an adult 

unless it proved that a defendant knew that the victim was 18 

years of age or older. We agree with the State that this is an 

absurd result. Instead, the natural reading of these offenses is 

that the victim’s age is intended to classify sex trafficking of 

a minor as a more serious offense and that the victim’s age 

does not relate to the defendant’s mens rea. This reasoning is 

further strengthened by the Legislature’s decision to increase 

the penalty for sex trafficking of a minor who is under 16 years 

16 Armagost, supra note 14.

17 See id.

18 Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018).

19 See § 28-830(10), (13), and (14).
- 746 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

of age.20 The plain language of the criminal statutes supports 

this conclusion.

[12] 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.21 The language of § 28-830(14), as it 

existed at the time of the offense, does not define the word 

knowingly. However, it is clear that “‘knowingly’ . . . is an 

adverb, and common usage makes clear that an adverb modifies the verbs that come after it,” and not the noun “a minor” 

that follows.22 Under this interpretation, the prosecution was 

required to prove that Swindle knew that he recruited, enticed, 

harbored, transported, or provided a minor for the purpose of 

sex trafficking, or knew that he attempted to do so. Thus, even 

if we accept Swindle’s argument that there was no evidence 

that he knew M.M.’s age, an ordinary reading of § 28-830(14) 

shows that the term “knowingly” requires only that a defendant had knowledge that he or she engaged in conduct for the 

purpose of sex trafficking and does not require a defendant to 

have knowledge that the victim was a minor. Dispensing with 

the knowledge requirement is appropriate where the underlying 

conduct is illegal, irrespective of a defendant’s knowledge of 

the victim’s age.23

Yet, another analogy is to the crime of first degree sexual 

assault of a child.24 Under § 28-319.01(1), a person commits 

sexual assault of a child (a) when he or she subjects another 

person under 12 years of age to sexual penetration and the 

actor is at least 19 years of age or older or (b) when the victim 

20 See § 28-831.

21 Placek v. Edstrom, 148 Neb. 79, 26 N.W.2d 489 (1947); Nebraska State 

Railway Commission v. Alfalfa Butter Co., 104 Neb. 797, 178 N.W. 766 

(1920).

22 See State v. Sims, 195 So. 3d 441, 446 (La. 2016).

23 See Sims, supra note 22.

24 See § 28-319.01.
- 747 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

is at least 12 years of age but less than 16 years of age and the 

actor is 25 years of age or older. In regard to the age of the 

victim, our case law provides that reasonable mistake as to the 

age of the victim is not a defense.25

When the Legislature has intended to make age an essential 

element of the offense of sexual assault upon a child, it has 

used plain language.26 Section 28-319.01(4) states that “[i]n 

any prosecution under this section, the age of the actor shall 

be an essential element of the offense that must be proved 

beyond a reasonable doubt.” Indeed, following Swindle’s trial, 

the Legislature used plain language when it codified the rule 

that “[i]t is not a defense in a prosecution [of the offense of 

sex trafficking of a minor] that the defendant believed that the 

minor victim was an adult.”27

Similarly, in construing the Mann Act, 18 U.S.C. § 2421 et 

seq. (2012 & Supp. IV 2016), federal courts have considered 

and rejected the claim that knowledge of the age of the victim is an element of sex trafficking of a minor.28 “It would be 

nonsensical to require proof of knowledge of the victim’s age 

when the statute exists to provide special protection for all 

minors, including, if not especially, those who could too easily 

be mistaken for adults.”29

The trial court correctly instructed the jury that to obtain a 

conviction under § 28-831(1), the prosecution needed to prove 

25 See, State v. Heitman, 262 Neb. 185, 629 N.W.2d 542 (2001); State v. 

Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999); State v. Campbell, 239 

Neb. 14, 473 N.W.2d 420 (1991); State v. Navarrete, 221 Neb. 171, 376 

N.W.2d 8 (1985).

26 See § 28-319.01(4).

27 See 2017 Neb. Laws, L.B. 289, § 9 (codified at § 28-831(4)(c) (Supp. 

2017)).

28 See, U.S. v. Cox, 577 F.3d 833 (7th Cir. 2009); U.S. v. Jones, 471 F.3d 

535 (4th Cir. 2006); U.S. v. Griffith, 284 F.3d 338 (2d Cir. 2002); U.S. v. 

Taylor, 239 F.3d 994 (9th Cir. 2001); United States v. Hamilton, 456 F.2d 

171 (3d Cir. 1972).

29 Jones, supra note 28, 471 F.3d at 540.
- 748 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

only that Swindle engaged in sex trafficking of M.M. and that 

at the time, M.M. was less than 16 years of age. Swindle’s 

proposed instruction was an incorrect statement of the law, and 

the court appropriately gave an instruction which used statutory language to define the offense. Swindle was not prejudiced by the court’s refusal of his instruction. Swindle’s first 

assignment of error is without merit.

2. Court Did Not Err in Determining

Swindle’s Line of Questioning

of M.M. Was Impermissible

Swindle argues the district court erred in refusing to allow 

him to question M.M. about her history of making false 

claims of rape. Swindle argues his questioning went to M.M.’s 

credibility and was not precluded by Nebraska’s rape shield 

statute, Neb. Rev. Stat. § 27-412 (Reissue 2016), and that 

the district court’s ruling violated Swindle’s right to confront 

his accuser.

(a) Additional Background

Prior to trial, Swindle filed a notice of intent to present 

§ 27-412 evidence. He sought to adduce evidence that M.M. 

had on multiple prior occasions run away from home and, 

when caught, falsely claimed that she had been raped. At 

a hearing on the issue, Swindle’s counsel made an offer of 

proof that, if called to testify, M.M.’s mother would testify 

that she told healthcare providers that M.M. “is hypersexual 

and seeks out sexual behaviors with older men.” Swindle’s 

counsel stated M.M.’s mother would testify that on multiple occasions, M.M. has run away, lied about her age, had 

intercourse, and then stated that it was rape and “yell out for 

help.” Swindle said the mother would state this is part of 

M.M.’s mental illness.

The court entered a pretrial order which stated:

[T]his Court may allow [Swindle] to question M.M. about 

prior false assertions of rape. The Court, however, will not 

allow [Swindle] to venture into M.M.’s sexual history. . . .
- 749 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

. . . .

[Swindle’s] own Motion concedes that the evidence he 

hopes to elicit “is relevant to a determination of the credibility of [M.M.].” [Swindle] may not undermine M.M.’s 

credibility by drudging up her sexual behavior or sexual 

predisposition.

At trial, the following exchange took place during direct 

examination of M.M. by the prosecution:

Q And how old did you tell [Swindle] you were?

A Twenty.

Q Okay. Was that true?

A No.

Q Okay. And why did you give him — why did you 

say you were 20 as opposed to 15?

A Because when I usually ran away, I would have an 

older male take me somewhere or back to their [sic] place.

During cross-examination, Swindle’s counsel asked M.M. 

what she meant by her answer. The prosecution objected 

based on relevance and § 27-412. At a sidebar, Swindle’s 

counsel stated that he intended to establish that M.M. had run 

away on multiple occasions and that he would end the line of 

questioning at that point. The court ruled that it would permit 

Swindle’s counsel to ask M.M. about lying about her age, but 

found that testimony about running away was not relevant. 

Cross-examination of M.M. continued, and Swindle’s counsel 

asked the following questions, and M.M. gave the following answers:

Q So it was getting caught for running away that got 

you into the frame of mind that you had to blow it out 

of proportion?

A Yes.

Q You’d been in that situation before on multiple occasions; right?

A Yes.

Q And on those occasions have you responded by telling people that you’ve been raped?
- 750 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

The prosecution objected based on § 27-412 and relevance, 

and argued that there was no evidence that M.M. had falsified 

claims of rape. The court asked for an offer of proof from 

Swindle’s counsel. Receiving no offer of proof at that time, the 

court sustained the prosecution’s relevance objection.

The following morning of trial, Swindle’s counsel moved for 

a mistrial and argued that he intended to question M.M. about 

prior false allegations of rape that she made following running 

away. Swindle’s counsel stated:

[M]y proffer and offer of proof was that [M.M] will 

admit, if I would have been allowed to question her, that 

she had run away on multiple prior occasions — and I 

would not have inquired with regard to her promiscuity 

or sexual activity during those runaways, but that she 

then, upon being taken back into custody following the 

runaway, saw medical providers or saw — talked to other 

people in a therapeutic setting and basically admitted that 

she falsified her claims of being raped when — after she 

ran away and got caught.

Swindle’s counsel offered a portion of M.M.’s medical 

records. The records provide a background of events leading up to a suicide attempt by M.M following her assault by 

Swindle. The records include statements from M.M.’s mother, 

consistent with Swindle’s pretrial proffer, that M.M. had run 

away multiple times in the past year and that each time, M.M. 

sought out sex with older men. Her mother stated that in each 

instance, M.M. lied about her age, had sex, and later claimed 

that it was rape.

Swindle’s counsel claimed that based on the court’s pretrial 

ruling, he anticipated he would be able to ask M.M. about these 

events. He claimed that had he known he would not be permitted to pursue this line of questioning, he would have called 

M.M.’s mother as a witness. He argues the court’s refusal to 

allow cross-examination of M.M. regarding her credibility 

denied Swindle his right to a fair trial.
- 751 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

(b) Disposition

We consider the application of § 27-412 to the facts of this 

case and whether the questions posed to M.M. were so relevant that Swindle’s right of confrontation required the admission of M.M.’s testimony regarding her prior false claims of 

rape. We note that while Swindle’s brief included separate 

assignments of error regarding these two issues, he consolidated them into a single argument and, thus, we discuss the 

issues together.

[13] Subject to several exceptions, § 27-412(1) bars 

“[e]vidence offered to prove that any victim engaged in other 

sexual behavior” and “[e]vidence offered to prove any victim’s 

sexual predisposition” in civil or criminal proceedings involving alleged sexual misconduct.30

[14] Nebraska’s rape shield statute serves two purposes. 

First, the statute protects rape victims from grueling crossexamination about their past sexual behavior or sexual predisposition that too often yields testimony of questionable 

relevance.31 Second, the rape shield statute prevents the use 

of evidence of the complaining witness’ past sexual conduct 

with third parties or sexual predisposition from which to infer 

consent or undermine the witness’ credibility.32 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.33

Section 27-412 is subject to three enumerated exceptions, generally stated: (1) evidence offered to prove a person 

other than the accused was the source of physical evidence; 

30 § 27-412(a) and (b).

31 State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014), disapproved in 

part 292 Neb. 424, 873 N.W.2d 155 (2016); Lessley, supra note 3.

32 Lavalleur, supra note 31; State v. Sanchez-Lahora, 261 Neb. 192, 622 

N.W.2d 612 (2001).

33 Lavalleur, supra note 31.
- 752 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

(2) evidence relevant to the issue of consent; and (3) evidence 

which, if excluded, would violate the accused’s constitutional 

rights.34 Swindle’s stated purpose of the cross-examination 

was not to show another source of physical evidence or that 

M.M. consented to sex with Swindle. Rather, Swindle contends 

that evidence of M.M.’s prior false claims of rape went to 

M.M.’s credibility.

Although there is no Nebraska case directly on point, we 

agree with the majority of jurisdictions which hold that a 

false accusation of rape where no sexual activity is involved, 

is itself not “sexual behavior” involving the victim, and that 

such statements fall outside of the rape shield law.35 However, 

before defense counsel launches into cross-examination about 

false allegations of sexual assault, a defendant must establish, 

outside of the presence of the jury, by a greater weight of the 

evidence, that (1) the accusation or accusations were in fact 

made, (2) the accusation or accusations were in fact false, 

and (3) the evidence is more probative than prejudicial.36 If 

the defendant satisfies these three conditions, the trial court 

will authorize cross-examination of the complaining witness 

concerning the alleged false accusations.37 The defendant may 

thereafter present extrinsic evidence of the false accusations 

only if the complaining witness denies or fails to recall having 

made such accusations.38

In this case, we find Swindle failed to satisfy the necessary 

conditions. While the evidence relied upon by Swindle did 

indicate that M.M. had previously alleged that she had been 

raped, Swindle did not demonstrate those claims were false.39

34 § 27-412(2)(a)(i) through (iii).

35 See, State v. Boggs, 63 Ohio St. 3d 418, 588 N.E.2d 813 (1992); Miller v. 

State, 105 Nev. 497, 779 P.2d 87 (1989); Clinebell v. Commonwealth, 235 

Va. 319, 368 S.E.2d 263 (1988).

36 See State v. Daffin, 387 Mont. 154, 392 P.3d 150 (2017).

37 Id.

38 Id.

39 See State v. Welch, 241 Neb. 699, 490 N.W.2d 216 (1992).
- 753 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

The evidence relied upon by Swindle indicates that M.M. did 

in fact have sexual relations with other men prior to making 

the accusations. The evidence also indicates that M.M. was 

14 years of age at the time of these other encounters. Section 

28-319(1)(c) provides that a person under 16 years of age may 

not legally consent to sexual penetration by an actor over 19 

years of age.40 As the evidence indicates that at least one of 

the men with whom M.M. had sexual relations was 24 years 

of age and that Swindle did not demonstrate the age of any 

of the others or that M.M. recanted any of the allegations, 

Swindle failed to show M.M.’s accusation that she was raped 

was false.

We must continue our analysis, however, to consider whether 

the exclusion of the evidence in question violated Swindle’s 

constitutional right to confront his accuser.

[15,16] The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to 

be confronted with the witnesses against him; [and] to have 

compulsory process for obtaining witnesses in his favor . . 

. .”41 We have recognized that in limited circumstances, a 

defendant’s right to confrontation can require the admission 

of evidence that would be inadmissible under the rape shield 

statute.42 This court has held that 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.43

40 See In Interest of J.M., 223 Neb. 609, 391 N.W.2d 146 (1986).

41 U.S. Const. amend. VI.

42 See, Ford, supra note 4; Lessley, supra note 3; State v. Johnson, 9 Neb. 

App. 140, 609 N.W.2d 48 (2000).

43 State v. Privat, 251 Neb. 233, 556 N.W.2d 29 (1996).
- 754 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

In this case, Swindle was not absolutely prohibited from 

impeaching M.M. on cross-examination. Swindle was permitted to ask M.M. whether she had run away on multiple 

occasions and whether she was trying to “blow it out of proportion” when she was caught. The court’s exclusion of evidence concerning M.M.’s prior false claims of rape would not 

have given the jury a significantly different impression of her 

credibility. M.M. had already admitted on direct examination 

that she lied about her age and that “when [she] usually ran 

away, [she] would have an older male take [her] somewhere 

or back to their [sic] place.” She also admitted that when she 

was first interviewed by a detective, she falsely stated that 

the defendant had a gun, and said that she was scared of the 

defendant and “was trying to blow the story out of proportion.” There was evidence before the jury upon which Swindle 

could have argued that M.M.’s version of the events was not 

to be believed.

We also find the excluded evidence was not so relevant 

and probative that it triggered Swindle’s constitutional right 

to confrontation.44 The excluded evidence was limited to prior 

sexual contact with people other than Swindle. This evidence 

concerned a collateral issue that did not have any relevance as 

to whether Swindle had assaulted M.M. As discussed above, 

consent is not a defense to sexual assault of a child. And even 

if M.M. were not a child, Nebraska’s rape shield statute recognizes that consent to sex with one person is not consent to 

sex with all people. There is simply no relevant connection 

between M.M.’s alleged prior false claims of rape and the 

crimes at issue. Swindle sought to discuss M.M.’s past sexual 

conduct in order to undermine her credibility for the improper 

purpose of arguing that Swindle’s assault of M.M. did not 

take place. There is no indication that Swindle was prevented 

from asking M.M. directly whether she falsified her claims of 

44 See State v. Earl, 252 Neb. 127, 560 N.W.2d 491 (1997).
- 755 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

assault in this case. Swindle had a full and fair opportunity to 

confront his accuser.

We determine that the district court did not abuse its discretion when it determined that Swindle’s questions about M.M.’s 

prior sexual conduct were irrelevant.

3. Court Did Not Err in Overruling

Swindle’s Motion for Mistrial Based

on Prosecutorial Misconduct

(a) Additional Background

Swindle’s counsel also moved for a mistrial based on the 

argument that the prosecution engaged in an improper presentation of the evidence. In its opening statement, the prosecution stated that “[M.M.] will tell you that [Swindle] didn’t 

ejaculate inside of her vagina. Instead, he pulled out and 

ejaculated into 15-year-old [M.M.’s] mouth.” The prosecution 

also stated that “[s]he’ll be able to tell you that [Swindle] had 

a gun. She can describe that gun to you. It was a handgun. She 

was terrified of what would happen if she tried to leave that 

hotel room.” These two predictions of M.M.’s testimony were 

not borne out at trial and were not repeated by the State in its 

closing argument.

Swindle argues the State knew or should have known that 

these aspects of its opening statement were inaccurate and 

that its actions constituted prosecutorial misconduct. As discussed above, contrary to the State’s opening statement, M.M. 

admitted on direct examination that she lied to police when 

she first reported that Swindle had threatened her with a gun. 

With respect to the State’s comment about ejaculation, Swindle 

argues that a nurse’s forensic examination report indicated 

there had been no ejaculation. He claims the State intended 

to inflame the jury with its opening statement, and later acted 

unfairly by calling the nurse to testify before M.M., hear the 

nurse tell the jury there was no evidence of ejaculation, and 

then decline to ask M.M. about ejaculation during her testimony. Swindle argues the references to ejaculation and the gun 
- 756 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

during the State’s opening statement were the “most dramatic” 

and “fundamental” and the “most offensive” aspects of the 

State’s case.

(b) Disposition

[17,18] 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.45 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.46

[19,20] When considering a claim of prosecutorial misconduct, we first consider whether the prosecutor’s acts constitute 

misconduct.47 A prosecutor’s conduct that does not mislead 

and unduly influence the jury is not misconduct.48 Though 

Swindle identified two contradictions between the State’s 

preview of the evidence and M.M.’s testimony, there was 

no misconduct.

During its opening statement, the State previewed evidence 

that Swindle sexually assaulted M.M. and had her perform 

sexual acts with other men for financial gain. These claims 

were supported through testimony at trial. Neither ejaculation 

nor use of force are elements of the crime of sexual assault of 

a minor or sex trafficking of a minor.49 Swindle’s argument 

regarding the State’s incorrect predictions of the evidence 

ignores the nature of the crimes at issue in this case.

The pretrial investigation of M.M.’s assaults yielded conflicting evidence concerning whether Swindle had ejaculated. 

45 State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018); State v. Cotton, 

299 Neb. 650, 910 N.W.2d 102 (2018).

46 See Castillo-Zamora, supra note 2.

47 See Cotton, supra note 45.

48 See id.

49 §§ 28-319.01 and 28-831(1).
- 757 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

A police report described that “it took [Swindle] a while to 

ejaculate and when he finally did, he ejaculated in her mouth.” 

Yet, the nurse’s report concerning multiple sexual assaults of 

M.M. marked that there had been no ejaculation associated 

with penetration of the mouth. These facts and M.M.’s diagnosed mental state created some uncertainty about what her 

testimony would be. Swindle’s own counsel recognized this in 

his opening statement when he said, “I don’t think I’ve ever 

been in a situation in a courtroom where I’m less certain of 

what someone’s gonna say. I don’t know what these people are 

gonna say.”

In the context of the trial, the State’s comment that M.M. 

would testify that Swindle threatened her with a gun was not 

imperative given that both A.R. and Villanova-White testified Swindle had indirectly threatened them with his handgun. 

Because M.M. admitted that her statements about the gun were 

not true and that the State’s incorrect claims during its opening 

statement were not later repeated, we cannot conclude there 

was any effort to mislead the jury. Swindle’s claim of prosecutorial conduct is without merit.

[21,22] Even if there were misconduct, there is no evidence 

that Swindle was prejudiced. 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.50 Absent evidence to the contrary, it is presumed that a 

jury followed the instructions given in arriving at its verdict.51

The court instructed the jury that “[s]tatements and arguments by the lawyers for the State and for [Swindle] are 

not evidence,” and there is no indication the jury did not 

follow this instruction. We determine that the district court 

did not abuse its discretion in overruling Swindle’s motion 

for mistrial.

50 State v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018).

51 Id.
- 758 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

4. Court Did Not Err in

Admitting Statements

by Swindle

In his next assignment of error, Swindle argues the court 

erred by admitting statements that he made. Swindle argues 

that Villanova-White was permitted to paraphrase his words 

and that his out-of-court statements cannot be admitted unless 

a witness is able to recite the specific words that he used rather 

than relay the “general tenor” of his comments.52

[23,24] Based on our discussion of the record below, we 

agree with the State that Swindle did not articulate this objection to the trial court. On appeal, a defendant may not assert 

a different ground for his or her objection than was offered at 

trial.53 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.54

In explaining his assignment of error, Swindle points to four 

portions of Villanova-White’s testimony that where admitted 

over his objection. Swindle’s objections included hearsay, form 

of the question, and foundation.

[25] “Hearsay is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted.”55 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.56

[26] The first objection came as a hearsay objection to 

Villanova-White’s testimony that Swindle “had his way of 

52 Brief for appellant at 23.

53 Schwaderer, supra note 1.

54 State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).

55 Neb. Rev. Stat. § 27-801(3) (Reissue 2016).

56 See § 27-801(4)(b)(i).
- 759 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

threatening without really threatening, but he would mention all the time about how many people he would beat up 

and gun activity and things like that.” The court presumably 

overruled the objection, because Villanova-White’s testimony 

concerned nonhearsay statements made by a party opponent. 

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.57 Swindle did not then 

argue that § 27-801(4)(b)(i) did not apply absent the recital 

of his precise statement. Therefore, Swindle failed to meet his 

burden to show that Villanova-White’s testimony was inadmissible. The court did not abuse its discretion in overruling 

Swindle’s hearsay objection.

[27] The second objection was a form and foundation objection when the prosecution asked Villanova-White, “Based on 

conversations that you had with [Swindle], do you know if 

[A.R.] was ever able to keep any of the money that she made 

from the business?” Swindle objected as to the form of the 

question and that it called for a narrative. The court overruled 

the objection and allowed Villanova-White to answer. The 

question permitted Villanova-White to answer yes or no as to 

whether she had knowledge regarding A.R.’s being allowed to 

keep any money. In response to the question, Villanova-White 

stated, “No, she was never able to keep the money.” After the 

answer was given, Swindle did not object to the answer on the 

ground that the answer was a voluntary statement or for some 

specific reason such as hearsay or a conclusion of the witness.58 Failure to make a timely objection waives the right to 

assert prejudicial error on appeal.59 As a result, Swindle waived 

any error which may have occurred.

The third objection was an “[a]sked and answered objection” when the prosecution asked Villanova-White why 

57 Henry, supra note 54.

58 Ford, supra note 4.

59 Schwaderer, supra note 1.
- 760 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

Swindle called A.R. a “bitch.” The court sustained the objection as to being a compound question. The prosecution then 

asked Villanova-White why Swindle was angry, to which 

Swindle objected on the ground that the question had been 

asked and answered. The court overruled the objection, 

and Villanova-White answered, “I know that it was always 

about money. It was always having to do with money.” 

Villanova-White’s answer was based on her recollection. It 

did not include hearsay evidence and, according to the record, 

was not cumulative. The court did not err in overruling 

Swindle’s objection.

Finally, Swindle made a foundation objection to a line of 

questioning about why Swindle did not want A.R. to leave 

the house. Swindle asked that the State lay in its questions to Villanova-White “the typical foundational requirements” of specific times, dates, and places. The court then 

required the State to lay foundation. The State asked whether 

Villanova-White had conversations with Swindle between 

March and July 2015 about why he did not want A.R. to 

leave. Villanova-White responded that she did, and the State 

asked her what Swindle said in those conversations. Swindle 

objected based on foundation, and the court overruled his 

objection. Villanova-White answered, “He didn’t want her to 

leave because he was making — she was making him money 

and that he could keep track of her.”

[28] Swindle did not object that Villanova-White’s answer 

did not contain his exact statement. In addition, Swindle has 

not cited any authority to suggest that if he had made that 

objection, the State would have been required to lay additional foundation. A witness who hears an oral admission by 

a party may testify as to that admission.60 Swindle has not 

argued that Villanova-White did not hear his admissions or 

that she lacked personal knowledge as to why he wanted A.R. 

60 See State v. Neujahr, 248 Neb. 965, 540 N.W.2d 566 (1995).
- 761 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

to stay at the house. The trial court did not abuse its discretion in overruling Swindle’s evidentiary objections. Swindle’s 

assignment of error is without merit.

5. Court Did Not Impose

Excessive Sentences

Swindle argues that his sentences, which amounted to 180 

years’ to life imprisonment, were disproportionate, because he 

had no prior similar criminal history and his sentences exceed 

those imposed even in certain cases of homicide. The State 

claims the sentences imposed were all within the statutory limits and that Swindle does not argue otherwise.

The jury found Swindle guilty of four felonies, and the court 

determined Swindle to be a habitual criminal. Upon conviction 

of a felony, a habitual criminal shall be sentenced to a mandatory minimum of 10 years’ imprisonment and a maximum of 

up to 60 years’ imprisonment.61 The court sentenced Swindle 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.

[29] 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.62

The court’s sentencing of Swindle was not inappropriate in this case. Swindle’s guilt was largely uncontested. 

Swindle’s theory of defense at trial was that Villanova-White 

was primarily responsible for the online business and that 

A.R.’s and M.M.’s prostitutions were voluntary on their part. 

The evidence left little question, however, that Swindle sexually assaulted M.M. on two separate occasions and that 

he engaged in sex trafficking of both A.R. and M.M. The 

61 Neb. Rev. Stat. § 29-2221 (Reissue 2016).

62 Brown, supra note 6.
- 762 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. SWINDLE

Cite as 300 Neb. 734

court’s sentencing is not clearly untenable, given that the 

State proved that Swindle repeatedly sought out vulnerable 

victims and used violence and manipulation to force them 

into his sex trafficking business. The court was within its discretion to impose sentences on the high end of the statutory 

range. We conclude the court did not abuse its discretion in 

sentencing Swindle.

V. CONCLUSION

We conclude that the court’s refusal of Swindle’s proposed 

jury instruction was not in error. We further conclude that 

the district court did not abuse its discretion in overruling 

Swindle’s motions for mistrial and in overruling his evidentiary objections. We conclude the court did not abuse its discretion in sentencing Swindle. We therefore affirm Swindle’s 

convictions and sentences.

Affirmed.