FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CR-16-2653]
HONORABLE JOANNA TAYLOR, JUDGE.
E. Giardino, for appellant.
Rutledge, Att'y Gen., by: Amanda Jegley, Ass't
Att'y Gen., for appellee.
MARK KLAPPENBACH, JUDGE.
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.
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,
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."
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.
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.
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 ...