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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

STATE V. ALI

Cite as 312 Neb. 975

State of Nebraska, appellee, v. 

Lencho Ahmed Ali, appellant.

___ N.W.2d ___

Filed December 2, 2022. No. S-21-960.

1. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion exists 

only when the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying a just 

result in matters submitted for disposition.

3. Rules of Evidence: Sexual Assault: Proof. Under Neb. Rev. Stat. 

§ 27-412 (Cum. Supp. 2020), evidence offered to prove a victim’s 

past sexual behavior or sexual predisposition is inadmissible unless an 

exception applies.

4. Rules of Evidence: Sexual Assault. A false accusation of rape where 

no sexual activity is involved falls outside of Nebraska’s rape shield 

statute.

5. Constitutional Law: Criminal Law: Witnesses. The Confrontation 

Clause of the Sixth Amendment to the U.S. Constitution guarantees the 

right of an accused in a criminal prosecution to be confronted with the 

witnesses against him or her.

6. Constitutional Law: Witnesses. A primary interest secured by the 

Confrontation Clause is the right of cross-examination.

7. Witnesses: Testimony. Cross-examination is the principal means by 

which the believability of a witness and the truth of his or her testimony 

are tested.

8. Witnesses: Impeachment. Subject to the trial court’s broad discretion, 

a cross-examiner has traditionally been allowed to impeach or discredit 

the witness.

Nebraska Supreme Court Online Library

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

12/02/2022 09:05 AM CST
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9. Trial: Evidence. Well-established rules of evidence permit trial judges 

to exclude evidence if its probative value is outweighed by certain 

other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.

10. Constitutional Law: Trial: Evidence. In weighing whether evidence 

must be admitted under the Confrontation Clause, the trial court should 

balance the probative value of the evidence sought to be introduced 

against the risk its admission may entail.

11. Sexual Assault: Witnesses: Evidence. In the context of prosecutions 

of sexual offenses, evidentiary constraints must sometimes yield to a 

defendant’s right of cross-examination.

12. Sexual Assault: Witnesses: Evidence: Proof. 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.

13. Sentences: Final Orders: Appeal and Error. A sentence is not a final 

judgment until the entry of a final mandate of an appellate court if an 

appeal is taken.

14. Judgments: Statutes: Due Process: Time. A judicial decision interpreting a statute may be applied retroactively unless the decision denies due 

process by being both unexpected and indefensible by reference to the 

law which had been expressed prior to the conduct in issue.

Appeal from the District Court for Hall County: Ryan C. 

Carson, Judge. Affirmed.

Mark Porto, of Wolf, McDermott, Depue, Sabott, Butz & 

Porto, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

This is Lencho Ahmed Ali’s direct appeal from his conviction, following a jury trial, for sexual assault in the first degree. 
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Ali challenges the district court’s ruling prohibiting him from 

asking the complaining witness about an allegation that she 

made against a doctor regarding inappropriate touching during a prenatal examination. Because the evidence’s minimal 

probative value is outweighed by the dangers of unfair prejudice and confusion of issues, we find no abuse of discretion. 

Accordingly, we affirm the district court’s judgment.

II. BACKGROUND

1. Factual Background

One afternoon in May 2012, Ali approached J.K. and asked 

if she wanted to sit and talk for a while. Although Ali was a 

stranger, J.K. explained that she agreed to do so, “just being 

polite and stuff.” They went to a motel to “get out of the heat.”

J.K. described the events at the motel. After entering the 

motel room, J.K. sat on a chair and Ali sat on the bed. Ali 

gently pulled J.K. from the chair, and she sat with him on 

the bed. Ali then laid J.K. down and began kissing her. J.K. 

testified that she “popped back up and told him it was not a 

good idea, [she] was going to leave.” But she did not attempt 

to leave the room. Ali turned on the television, then laid J.K. 

back down and resumed kissing her. J.K. testified that she 

“was kind of pushing on his shoulder a little bit” because she 

did not want to kiss. Ali pushed up her shirt and bra and began 

sucking on her breasts. J.K. testified that she kept repeating 

“no.” Ali removed J.K.’s pants, shorts, and underwear. As he 

was doing so, J.K. tried to kick him away from her. He penetrated her anus. J.K. screamed, and Ali stopped. She then got 

off the bed, dressed, and left.

Ali’s account differed in some respects. He told law enforcement officers that J.K. removed her clothing and pulled down 

his pants. He explained that as they were lying naked on the 

bed, J.K. indicated a willingness to engage in sexual intercourse. But right after he penetrated J.K., she jumped off the 

bed and said that she wanted to leave.
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J.K. testified that during the encounter, she told Ali “no” 10 

or more times. She explained, “I remember saying, No, I didn’t 

want it, but I didn’t really say that exactly I didn’t want sex 

or anything, I just told him no.” Her scream was the clearest 

indication to Ali that she did not want to go any further, and 

Ali stopped immediately when she screamed.

J.K. walked to an establishment where her former manager worked. J.K. informed her former manager that she 

was raped. Her former manager then called the police. After 

speaking with an officer, J.K. went with the officer to an 

emergency room. J.K.’s mother testified that when she saw 

J.K. in the emergency room, J.K. was “shaking” and “crying 

pretty hard.”

2. Procedural Background

The State filed an amended information charging Ali with 

sexual assault in the first degree. The information alleged that 

Ali subjected J.K. to sexual penetration without consent.

Prior to trial, the State filed a motion in limine for an order 

prohibiting the mention of evidence of J.K.’s prior reports 

of sexual assault. The State asserted that the evidence was 

not relevant under Neb. Rev. Stat. §§ 27-402 and 27-403 

(Reissue 2016) and that it was inadmissible under Neb. Rev. 

Stat. § 27-412 (Cum. Supp. 2020). (Although the Legislature 

amended § 27-412 in 2019 via L.B. 478, that amendment is 

irrelevant in this criminal proceeding and we therefore refer 

only to the current version of the statute.)

During a hearing on the motion, the court received two 

exhibits.

One was a DVD recording of an interview by law enforcement conducted of J.K. with regard to a 2010 report of inappropriate touching by a doctor. The touching occurred during 

the course of a prenatal examination when J.K. was 11 or 12 

weeks along in her first pregnancy. She had never had a pap 

smear before. J.K. stated that the doctor put his hand on her 

right leg and rubbed up and down and that she was “about 
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to slap him.” J.K. said that she had never had a doctor do 

that before.

The other exhibit was a six-page excerpt of a deposition 

of J.K. that was taken by Ali’s defense counsel, who inquired 

about the 2010 report. In the deposition, J.K. testified that a 

roommate who stayed in the room with J.K. during the examination said that the doctor “was, I guess, checking my leg to 

make sure it was, like, strengthen and everything was fine 

with my leg . . . [b]ut she said it was sexual harassment and 

stuff.” J.K. further testified in the deposition that the roommate said that the doctor “was touching me inappropriate and 

stuff. And I was, like, confused. I didn’t know what she was 

exactly meaning by it or anything like that. I didn’t know what 

was happening.” J.K.’s roommate then told their other roommate that the doctor touched J.K. inappropriately, and that 

roommate told J.K. to call the police. When asked if J.K. told 

the police that the doctor had touched her in an inappropriate 

way, J.K. answered, “I just told them that he touched just right 

here, just on my leg . . . .” When Ali’s counsel asked if J.K. 

felt that the doctor touched her in any inappropriate way, J.K. 

answered: “Not really. I was wondering what he was doing, 

but I didn’t feel like he was — I just figured it was normal 

procedure for a pregnancy.”

The court ordered that Ali not mention the allegation of 

sexual assault during the course of a medical examination. It 

further ordered that Ali not offer evidence or ask questions 

suggesting inconsistent reports without first alerting the court 

to his intent to do so.

In explaining its preliminary ruling, the court stated that 

J.K.’s deposition “[a]rguably, . . . in part, recanted the alleged 

report or, at least, her perception of the event.” The court 

acknowledged J.K.’s testimony that “her 2010 report was a 

result of pressure [she] was receiving from persons with whom 

she was then living.” The court opined that § 27-412 did not 

apply. It reasoned that the evidence in question was “not evidence of the past sexual behavior of the victim,” but, rather, 
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was “evidence associated within consistency in reporting, or 

perhaps evidence that the victim is subject to suggestion by 

others with regard to whether a sexual assault has or has 

not occurred.”

3. Jury Trial

J.K., age 24 at the time of the May 2013 trial, had graduated from high school. She attended special education classes 

during her schooling. J.K. testified on behalf of the State about 

the May 2012 encounter. Defense counsel cross-examined her 

about the encounter. Counsel did not ask about any prior allegations of sexual assault.

After the State rested its case, defense counsel advised 

the court of his intent to call J.K. as a witness. He wished to 

inquire about the 2010 accusation of sexual misconduct that 

J.K. reported to law enforcement but later indicated did not 

occur. The State argued that J.K. never recanted that the incident with the doctor occurred, but that J.K. “just changed that 

maybe her perception of the events was wrong.” At that point, 

the court ruled that defense counsel could ask J.K. whether 

she recalled accusing an obstetrical physician of touching 

her inappropriately and whether J.K. later remembered the 

event differently.

However, when trial resumed the next morning, the court 

informed counsel that it had “change[d] its mind” regarding 

the order in limine. The court stated that it would not allow Ali 

to call or cross-examine J.K. for the purpose of having J.K. testify concerning the alleged accusation of sexual assault against 

the doctor. The court reasoned that

given the very different circumstances of the two incidents, . . . the alleged false sexual abuse allegation made 

against the obstetrical physician is not probative or is 

only minimally probative of her general credibility and is 

likely to be outweighed by a substantial prejudice to the 

State, as well as a confusion of issues and an unnecessary 

expansion of testimony that may very well result in a 
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mini-trial regarding the nature of what happened following the accusation against the obstetrical physician.

Ali’s counsel then made an offer of proof. The offer consisted of two parts.

First, as part of the offer, counsel reoffered exhibits 38 

and 39—the DVD video and the deposition of J.K. We have 

already summarized their respective contents above.

Second, counsel represented that if called, J.K. would testify that she made an accusation to law enforcement that a 

doctor touched her inappropriately during the course of an 

examination in a sexual manner and that she was very upset 

by what occurred. J.K. would further testify that what she 

reported to law enforcement was inaccurate and that it is now 

her belief that the doctor did not touch her in an inappropriate 

sexual manner.

The court acknowledged the offer of proof. But it did not 

change its ruling.

4. Verdict and Posttrial 

Proceedings

A jury found Ali guilty, and the court entered “judgment” 

of guilty of sexual assault in the first degree. Ali moved for 

a new trial based on the court’s evidentiary ruling. The court 

overruled the motion.

Ali did not appear for sentencing. A considerable delay 

followed.

Eventually, Ali was extradited to the United States from 

Australia. In 2021, the court imposed a sentence of 7 to 12 

years’ imprisonment.

Ali filed a timely appeal, which we moved to our docket. 1

III. ASSIGNMENT OF ERROR

Ali assigns that the court erred “in prohibiting [him] from 

eliciting evidence regarding J.K.’s prior false allegation of 

sexual assault against her prenatal doctor.”

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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IV. STANDARD OF REVIEW

[1,2] Where the Nebraska Evidence Rules commit the 

evidentiary question at issue to the discretion of the trial 

court, an appellate court reviews the admissibility of evidence 

for an abuse of discretion. 2 A judicial abuse of discretion 

exists only when the reasons or rulings of a trial judge are 

clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for 

disposition. 3

V. ANALYSIS

This appeal focuses on the district court’s evidentiary ruling. The ruling prohibited Ali from adducing evidence that 

2 years prior to the encounter with him, J.K. had reported 

to law enforcement that she was inappropriately touched by 

a physician during a prenatal examination and later changed 

her characterization of the encounter to conclude it was a normal procedure.

Ali argues that under criteria set forth in State v. Swindle,

 4

the court should have admitted evidence of J.K.’s prior allegation. The State disagrees, contending that Nebraska’s rape 

shield statute controlled and that J.K.’s accusation was not 

false. Before discussing the Swindle decision, including its statutory and constitutional underpinnings, we review Nebraska’s 

rape shield statute.

1. Rape Shield Statute

[3] To understand Swindle, one must understand § 27-412, 

Nebraska’s rape shield statute. Under § 27-412, evidence 

offered to prove a victim’s past sexual behavior or sexual predisposition is inadmissible unless an exception applies. 5

2 State v. Abligo, ante p. 74, 978 N.W.2d 42 (2022).

3 State v. Greer, ante p. 351, 979 N.W.2d 101 (2022).

4 State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).

5 State v. Abligo, supra note 2.
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In a criminal case, § 27-412(2)(a) sets forth three exceptions to the inadmissibility of such evidence, provided the 

evidence would otherwise be admissible under the Nebraska 

Evidence Rules. One permits admission of evidence of specific instances of sexual behavior by the victim offered to 

prove that a person other than the accused was the source of 

semen, injury, or other physical evidence. 6 Another exception allows the admission of evidence of specific instances of 

sexual behavior of the victim with the accused to prove consent of the victim, if it is first established that such behavior is 

similar to the behavior involved in the case and tends to establish a pattern of behavior of the victim relevant to the issue of 

consent. 7 The last exception allows admission of evidence if 

its exclusion would violate the accused’s constitutional rights. 8

Nebraska’s rape shield statute serves two purposes. 9 First, 

the statute protects rape victims from grueling cross-examination 

about their past sexual behavior or sexual predisposition that 

too often yields testimony of questionable relevance. 10 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. 11

2. State v. Swindle

We now turn to Swindle. After setting out a brief background surrounding the pertinent issue, we discuss the Swindle

court’s reasoning regarding the inapplicability of § 27-412, the 

statutory and constitutional underpinnings of its reasoning, and 

the Swindle court’s prescribed procedure.

6 § 27-412(2)(a)(i).

7 See § 27-412(2)(a)(ii).

8 See § 27-412(2)(a)(iii).

9 State v. Swindle, supra note 4.

10 Id.

11 Id.
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(a) Background

In Swindle, the State charged the defendant with several 

offenses, including sexual assault of a child in the first degree. 

Prior to trial, the defendant filed a notice of intent to present 

§ 27-412 evidence. He wanted to adduce evidence that the 

victim had on multiple prior occasions run away from home 

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

The defendant argued that evidence of the victim’s prior false 

claims of rape went to the victim’s credibility.

(b) Inapplicability of § 27-412

We started by considering the application of § 27-412 

to the facts of the case. To refresh, § 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.” But the defendant in Swindle 

wished to adduce evidence of the victim’s prior false claims 

of rape.

[4] As a matter of first impression, we determined that a 

false accusation of rape where no sexual activity is involved 

falls outside of Nebraska’s rape shield statute. In other words, 

it did not fit within the categories of evidence that were “not 

admissible” under § 27-412(1). In making this determination, 

we agreed with other courts holding that “a false accusation of 

rape where no sexual activity is involved, is itself not ‘sexual 

behavior’ involving the victim.” 12

(c) Statutory and Constitutional 

Underpinnings

As noted, our Swindle decision relied on cases from other 

jurisdictions. While our decision did not explicitly set forth 

underlying statutory and constitutional provisions with respect 

12 Id. at 752, 915 N.W.2d at 809 (citing 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); 

and Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263 (1988)).
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to cross-examination about false allegations of sexual assault, 

the cases we relied upon did. 13

(i) Confrontation Clause

[5-8] The Confrontation Clause of the Sixth Amendment to 

the U.S. Constitution guarantees the right of an accused in a 

criminal prosecution to be confronted with the witnesses against 

him or her. 14 A primary interest secured by the Confrontation 

Clause is the right of cross-examination. 15 Cross-examination 

is the principal means by which the believability of a witness 

and the truth of his or her testimony are tested. 16 Subject to the 

trial court’s broad discretion, a cross-examiner has traditionally 

been allowed to impeach or discredit the witness. 17

[9,10] But the Confrontation Clause is not without limit. 

“[S]tate and federal rulemakers have broad latitude under 

the Constitution to establish rules excluding evidence from 

criminal trials. Such rules do not abridge an accused’s right 

to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” 18

“[W]ell-established rules of evidence permit trial judges to 

exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the 

issues, or potential to mislead the jury.” 19 Thus, “[i]n weighing 

whether evidence must be admitted under the Confrontation 

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

supra note 12; Miller v. State, supra note 12; Clinebell v. Commonwealth, 

supra note 12.

14 See Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 

(1974).

15 See id.

16 See id.

17 See id.

18 United States v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 

2d 413 (1998).

19 Holmes v. South Carolina, 547 U.S. 319, 326, 126 S. Ct. 1727, 164 L. Ed. 

2d 503 (2006).
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Clause, the trial court should balance the probative value of the 

evidence sought to be introduced against the risk its admission 

may entail.” 20

(ii) Evidentiary Rule and Equivalent Statutes

Some of the cases cited in Swindle relied upon the evidentiary rule, or the state’s equivalent statute, addressing evidence 

relating to a witness’ credibility. 21 Our rule, codified at Neb. 

Rev. Stat. § 27-608 (Reissue 2016), provides in part:

(2) Specific instances of the conduct of a witness, for 

the purpose of attacking or supporting his credibility, 

other than conviction of crime as provided in section 

27-609, may not be proved by extrinsic evidence. They 

may, however, in the discretion of the court, if probative of truthfulness or untruthfulness be inquired into on 

cross-examination of the witness (a) concerning his character for truthfulness or untruthfulness, or (b) concerning 

the character for truthfulness or untruthfulness of another 

witness as to which character the witness being crossexamined has testified.

[11] In a sexual assault case, the complaining witness’ credibility is critical. 22 Thus, prior fabricated accusations of sexual 

assault are highly probative of a complaining witness’ credibility. 23 As a different court stated, “in the context of prosecutions 

of sexual offenses, evidentiary constraints must sometimes 

yield to a defendant’s right of cross-examination.” 24

20 Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000).

21 See, State v. Boggs, supra note 12 (Ohio Evid. R. 608(B) (LexisNexis 

2001)); Miller v. State, supra note 12 (Nev. Rev. Stat. § 50.085 (2021)); 

Clinebell v. Commonwealth, supra note 12 (recognizing that witness’ 

character may be attacked by presenting testimony that witness’ general 

reputation for truth and veracity is bad).

22 Miller v. State, supra note 12.

23 See id.

24 Clinebell v. Commonwealth, supra note 12, 235 Va. at 325, 368 S.E.2d at 

266.
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(d) Procedure

[12] In Swindle, we set forth a procedure to be followed 

before defense counsel may engage in cross-examination of the 

complaining witness concerning alleged false accusations of 

sexual assault. We stated:

[B]efore 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. If the defendant satisfies 

these three conditions, the trial court will authorize crossexamination of the complaining witness concerning the 

alleged false accusations. 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. 25

Before discussing the potential application of Swindle to this 

case, we address a concern raised by the State.

3. Retroactivity of Swindle

The State questions whether Swindle—decided 5 years after 

the trial but 3 years prior to sentencing in the instant case—is 

applicable. The State contends that “to permit a defendant 

who has deliberately fled the jurisdiction to avoid sentencing 

the advantage of case law decided in the intervening years 

between conviction and sentencing is to create a ‘run for the 

border’ doctrine.” 26

[13] The State’s concern is unfounded. Although the amount 

of time between trial and sentencing was certainly unusual, 

the applicability of Swindle to this case is really no different 

than if the Swindle decision had been released immediately 

after sentencing. In both situations, the conviction has not 

25 State v. Swindle, supra note 4, 300 Neb. at 752, 915 N.W.2d at 809-10.

26 Brief for appellee at 18.
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become final. A sentence is not a final judgment until the 

entry of a final mandate of an appellate court if an appeal 

is taken. 27

[14] Generally, it is appropriate to apply an appellate court’s 

interpretation of a statute to any case still on direct appeal. A 

judicial decision interpreting a statute may be applied retroactively unless the decision denies due process by being both 

unexpected and indefensible by reference to the law which had 

been expressed prior to the conduct in issue. 28 Thus, where a 

court interprets a statute in a surprising manner that has little 

in the way of legal support, the interpretation could not be 

applied retroactively. 29

Our decision in Swindle distinguished evidence of prior 

“sexual behavior” as used in § 27-412 from false allegations 

of sexual assault. Our decision then provided guidance as to 

when a purportedly false prior allegation may be admissible. 

We did so based upon decisions from other courts. Thus, it 

cannot be said that we interpreted our statute in a surprising 

way that had little legal support. We noted that the issue was 

one of first impression in Nebraska, but that other jurisdictions 

had considered a similar issue. Therefore, our decision was not 

indefensible, nor was it entirely unexpected.

Although our Swindle decision and the guidance it provides 

were not available at the time of Ali’s trial, we apply it here.

4. Application of Swindle

Swindle teaches when there is a prior allegation of sexual 

misconduct, the trial court must first determine whether any 

sexual behavior of the victim is involved. If it is, the rape 

shield statute prohibits such evidence. But if the prior allegation was false because no sexual behavior occurred, the rape 

shield statute would not prohibit cross-examination regarding 

the allegation.

27 State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999).

28 State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).

29 State v. Redmond, 262 Neb. 411, 631 N.W.2d 501 (2001).
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The situation here is complicated by the nature of J.K.’s 

complaint. She complained that a doctor placed his hand on 

her leg and rubbed up and down in connection with her first 

prenatal examination. This does not seem to constitute “sexual 

behavior.” Thus, like the situation in Swindle, the evidence 

sought to be introduced here is not excluded by § 27-412’s 

prohibition against evidence of “other sexual behavior.”

Ali urges that evidence of J.K.’s prior allegation should have 

been admissible under the criteria set forth in Swindle. We turn 

to the three conditions to be satisfied before cross-examination 

of the complaining witness about an alleged false accusation 

may occur.

First, a defendant must establish that the accusation or 

accusations were in fact made. There is no dispute that J.K. 

made an accusation—she reported the doctor’s touching to law 

enforcement.

Second, the defendant must show that the accusation or 

accusations were in fact false. Here, J.K. gave law enforcement her account of what occurred with the doctor during the 

prenatal examination. Later, J.K.’s perception of the touching 

changed. But she did not recant that the touching occurred. 

The change in J.K.’s perception—that the touching may have 

actually been a normal part of the examination—did not transform a truthful account into a false one. Ali failed to show that 

J.K.’s prior allegation was in fact false.

Ali also fails to satisfy the third condition. He needed to 

establish that the evidence was more probative than prejudicial. Ali argues that it went to J.K.’s credibility, which was of 

paramount concern. But J.K.’s account of the doctor’s touching 

and her perception of it is not probative of her character for 

truthfulness or untruthfulness. According to the offer of proof, 

which included her deposition testimony, she was confused by 

what had happened. But she did not change her account to say 

that the touching did not occur.

Moreover, J.K.’s prior allegation is considerably different 

from the allegation against Ali. The prior allegation concerned 
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a doctor’s touching her leg with his hand during a prenatal 

examination, which, at the time, J.K. thought to be inappropriate. In contrast, the incident with Ali involved sexual contact—

which, according to J.K.’s trial testimony, happened despite her 

resistance in telling him “no” numerous times and attempting 

to push him away—and culminated in penile penetration. The 

minimal probative value of evidence regarding J.K.’s allegation against the doctor is outweighed by its prejudicial effect. 

Ali failed to meet the three conditions set forth in Swindle. We 

conclude that exclusion of the evidence did not violate Ali’s 

constitutional right to confront his accuser.

The district court likewise concluded that evidence of J.K.’s 

allegation against the doctor was inadmissible. It stated that 

“the alleged false sexual abuse allegation . . . is not probative 

or is only minimally probative of [J.K.’s] general credibility 

and is likely to be outweighed by a substantial prejudice to 

the State, as well as a confusion of issues and an unnecessary 

expansion of testimony.” We cannot say that the court’s ruling 

was clearly untenable.

VI. CONCLUSION

Because the district court did not abuse its discretion in 

prohibiting Ali from questioning J.K. about her prior allegation 

against a doctor, we affirm its judgment.

Affirmed.