State v. Swint
302 Kan. 326
Kan.2015Background
- Victim (11) alleged Swint fondled her on multiple occasions in 2010; Swint denied the allegations. Jury convicted on one count of aggravated indecent liberties and one count of attempted aggravated indecent liberties; acquitted on another aggravated indecent liberties count.
- Before trial the State moved in limine to exclude evidence that the victim asked a cousin (A.H.) to fabricate similar allegations; the district court granted the motion and barred questioning about that incident. A continuing objection was entered.
- After conviction defense counsel proffered that A.H. would testify the victim asked her to make up a story and (for the first time in the record) that the victim admitted lying; the court declined to permit testimony but said the record was proffered.
- On appeal Swint raised: (1) exclusion of evidence (impeachment/fabrication and alleged admission of lying), (2) statutory alternative-means argument under K.S.A. 21-3504(a)(3)(A), (3) prosecutorial misconduct in closing, and (4) constitutional challenges to his hard-25 life sentence under Kan. Const. §9 and the Eighth Amendment.
- The Kansas Court of Appeals affirmed in part and vacated lifetime postrelease supervision; the Kansas Supreme Court granted review and affirmed the convictions and the hard-25 sentence on the issues before it.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Swint) | Held |
|---|---|---|---|
| Exclusion of evidence that victim asked cousin to fabricate allegations | Motion in limine appropriate under K.S.A. 60-422(d); evidence collateral and inadmissible for propensity | Evidence showed victim's motive/state of mind and impeached credibility; adequate proffer preserved issue | Proffer regarding A.H. was adequate, but constitutional Confrontation-Clause theory raised on appeal was not preserved; court did not reach the constitutional merits |
| Exclusion of alleged victim admission that she lied | State: not in record; never argued below | Swint: admission impeaches witness and should have been admitted | Not preserved — allegation first appeared posttrial and was never presented to trial court under K.S.A. 60-405 |
| Statutory "either the child or the offender, or both" (K.S.A. 21-3504(a)(3)(A)) creates alternative means | State: language describes objects of intent, not an alternative means | Swint: statute creates alternative means and proof was insufficient as to one means | Rejected Swint's argument; language is descriptive of potential objects of intent, not an alternative-means element (followed State v. Britt) |
| Prosecutorial misconduct in closing (appeal to jury sympathy; bolstering) | State: comments about age-based inference and credibility were reasonable inferences; sympathy remark harmless | Swint: prosecutor told jury they could tell victim "We believe you," improperly appealing to sympathy and bolstering credibility | One remark was improper (appeal to sympathy) but harmless beyond a reasonable doubt given brevity, no ill will, and direct evidence; other challenged remark (age inference) was proper |
| Cruel and unusual punishment — Kan. Const. §9 and Eighth Amendment challenge to hard-25 | State: sentence falls within legislature's range for sexually violent offenses and is not disproportionate | Swint: life with 25-year parole minimum is disproportionate compared to other jurisdictions and offenses | §9: Freeman three-factor test applied; overall sentence not grossly disproportionate. Eighth Amendment: argued and preserved; court found no gross disproportionality under federal standards |
Key Cases Cited
- State v. Freeman, 223 Kan. 362, 574 P.2d 950 (establishing three-part test for proportionality under Kan. Const. §9)
- State v. Britt, 295 Kan. 1018, 287 P.3d 905 (statutory phrase about "either the child or the offender, or both" is not an alternative-means element)
- State v. Hudgins, 301 Kan. 629, 346 P.3d 1062 (proffer sufficiency required to preserve excluded-evidence claims)
- State v. Evans, 275 Kan. 95, 62 P.3d 220 (informal proffer can be sufficient if it conveys substance of excluded evidence)
- State v. Woodard, 294 Kan. 717, 280 P.3d 203 (analysis of sentencing proportionality for aggravated indecent liberties)
- State v. Mossman, 294 Kan. 901, 281 P.3d 153 (Eighth Amendment/§9 proportionality discussion and deferential standard for sex-offense sentences)
- State v. Barber, 13 Kan. App. 2d 224, 766 P.2d 1288 (recognizes constitutional Confrontation-Clause exception for prior false accusations in sex cases)