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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.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. ALI
Cite as 312 Neb. 975
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 poten-
tial 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 coun-
sel 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 accusa-
tions 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 interpret-
ing 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 convic-
tion, following a jury trial, for sexual assault in the first degree.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. ALI
Cite as 312 Neb. 975
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 dur-
ing a prenatal examination. Because the evidence’s minimal
probative value is outweighed by the dangers of unfair preju-
dice 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 pene
trated 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 enforce-
ment 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 inter-
course. But right after he penetrated J.K., she jumped off the
bed and said that she wanted to leave.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. ALI
Cite as 312 Neb. 975
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 man-
ager 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 enforce-
ment conducted of J.K. with regard to a 2010 report of inap-
propriate 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. ALI
Cite as 312 Neb. 975
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 exami-
nation 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 room-
mate 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 room-
mate 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 evi-
dence of the past sexual behavior of the victim,” but, rather,
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. ALI
Cite as 312 Neb. 975
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 gradu-
ated 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 alle-
gations 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 inci-
dent 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. tes-
tify concerning the alleged accusation of sexual assault against
the doctor. The court reasoned that
given the very different circumstances of the two inci-
dents, . . . 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. ALI
Cite as 312 Neb. 975
mini-trial regarding the nature of what happened follow-
ing the accusation against the obstetrical physician.
Ali’s counsel then made an offer of proof. The offer con-
sisted 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 tes-
tify 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. ALI
Cite as 312 Neb. 975
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 substan-
tial right and denying a just result in matters submitted for
disposition. 3
V. ANALYSIS
This appeal focuses on the district court’s evidentiary rul-
ing. 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 nor-
mal procedure.
Ali argues that under criteria set forth in State v. Swindle, 4
the court should have admitted evidence of J.K.’s prior alle-
gation. 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 stat-
utory 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 pre-
disposition 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. ALI
Cite as 312 Neb. 975
In a criminal case, § 27-412(2)(a) sets forth three excep-
tions to the inadmissibility of such evidence, provided the
evidence would otherwise be admissible under the Nebraska
Evidence Rules. One permits admission of evidence of spe-
cific 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 excep-
tion allows the admission of evidence of specific instances of
sexual behavior of the victim with the accused to prove con-
sent of the victim, if it is first established that such behavior is
similar to the behavior involved in the case and tends to estab-
lish 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 under-
mine the witness’ credibility. 11
2. State v. Swindle
We now turn to Swindle. After setting out a brief back-
ground 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. ALI
Cite as 312 Neb. 975
(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 vic-
tim’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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Nebraska Supreme Court Advance Sheets
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STATE V. ALI
Cite as 312 Neb. 975
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 ‘dis-
proportionate 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 cer-
tain 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. ALI
Cite as 312 Neb. 975
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 eviden-
tiary 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 proba-
tive of truthfulness or untruthfulness be inquired into on
cross-examination of the witness (a) concerning his char-
acter for truthfulness or untruthfulness, or (b) concerning
the character for truthfulness or untruthfulness of another
witness as to which character the witness being cross-
examined has testified.
[11] In a sexual assault case, the complaining witness’ cred-
ibility is critical. 22 Thus, prior fabricated accusations of sexual
assault are highly probative of a complaining witness’ credibil-
ity. 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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STATE V. ALI
Cite as 312 Neb. 975
(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 cross-
examination 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 retro-
actively 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 allega-
tion 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 enforce-
ment 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 trans-
form 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 prejudi-
cial. 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 inappropri-
ate. 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 allega-
tion 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.