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Swan v. State

Court of Appeals of Arkansas, Division III

October 3, 2018



          Peter E. Giardino, for appellant.

          Leslie Rutledge, Att'y Gen., by: Amanda Jegley, Ass't Att'y Gen., for appellee.


         Appellant Raddai Swan was convicted by a jury of three counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child, in violation of Ark. Code Ann. § 5-27-602 (Repl. 2013). He was sentenced to six years of imprisonment on each count, to run consecutively. Swan contends that the prosecutor made an improper rebuttal closing argument by misstating the State's burden of proof, to which the defense counsel objected and requested a curative instruction. Swan argues on appeal that the trial court abused its discretion in refusing to issue a curative jury instruction. We affirm.

         We will not reverse the action of a trial court in matters pertaining to its control, supervision, and determination of the propriety of arguments of counsel in the absence of manifest abuse of discretion. Cook v. State, 316 Ark. 384, 872 S.W.2d 72 (1994). Generally, such an error may be cured by a remedial instruction from the court. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). The State is, however, allowed to "fight fire with fire" once the defendant has opened the door to a line of argument, and what might have been impermissible becomes permissible. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996); Raquel-Dieguez v. State, 2015 Ark.App. 626, 475 S.W.3d 585. The State is permitted in rebuttal to comment on matters that were discussed or invited by the appellant's preceding closing argument. Raquel-Dieguez, supra.

         The State's amended felony information accused Swan of knowingly possessing three photographs that depicted a child engaging in sexually explicit conduct. Ark. Code Ann. § 5-27-602(a)(2). The evidence was undisputed that Swan had entered search terms on his computer that resulted in his receipt of pornographic images, specifically photographs of naked females. Swan had entered computer search terms such as "pre-teen hard core" and had a computer file labeled "jailbait." Swan admitted in an interview that he had a variety of sexual interests that included pubescent females "in the spring of her adolescence. . . starting to blossom." Swan maintained that despite his interest, he intentionally avoided crossing the line into having illegal pornography. Of the seventy-eight pictures in the "jailbait" file, the State sought to prove to the jury that three were clearly what is commonly referred to as "child porn."

         The State presented the testimony of a pediatrician, who opined that the three females in the photographs were between the ages of nine and eleven, but the oldest reasonable estimated age of the girls would be thirteen or fourteen. The investigator affirmed in his testimony that he thought these three photographs clearly showed young girls below the age of seventeen. The color photographs were stamped at the top with a cartoon teddy bear and the words "My Little Sisters." These photographs were submitted into evidence and presented to the jury.

         The trial focused on whether Swan knowingly possessed these illegal images; whether his receipt of the photographs was accidental; whether the girls in the images were, in fact, under the age of seventeen; and whether Swan knew that the girls were under age seventeen.

         The trial court instructed the jury before closing arguments, and the following instructions are relevant to this appeal:

While you don't have a copy of the instructions to follow along with while I read them, a copy of the instructions will go back to the jury room with you for your deliberations.
Opening statements, remarks during trial, and closing arguments of the attorneys are not evidence but are made only to help you in understanding the evidence and applicable law.
There is a presumption of the defendant's innocence in a criminal prosecution. In this case Raddai Swan is presumed to be innocent. That presumption of innocence attends and protects him throughout the trial and should continue and prevail in your minds until you are convinced of his guilt beyond a reasonable doubt.
Reasonable doubt is not a mere possible or imaginary doubt. It is a doubt that arises from your consideration of the evidence and one that would cause a careful person to pause and hesitate in the graver transactions of life. A juror is satisfied beyond a reasonable doubt if after an impartial consideration of ...

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