State v. Dady, 936 N.W.2d 486

Background

Defendant Joshua Dady (18) was convicted of first-degree sexual assault for sexual intercourse with M.J., a 10-year-old; Dady admitted sexual contact and told police the girl had told him she was older but later conceded she looked 10–11.
Charged under Neb. Rev. Stat. § 28-319(1)(b) (knowingly or should have known victim was mentally/physically incapable of resisting or appraising conduct).
Medical and forensic witnesses (and M.J.’s mother) testified about M.J.’s diagnoses (ADHD, ODD, DMDD) and a treating ER physician opined a normally developed 10-year-old lacks capacity to appraise sexual conduct; jury saw M.J. testify.
Trial court gave instruction No. 6 defining “mentally incapable” using the phrase "because of the victim’s age or mental impairment;" it rejected Dady’s proposed instruction emphasizing a required "significant abnormality."
Court excluded much of Dady’s proposed § 27-412 evidence of M.J.’s other sexual encounters as irrelevant/different in kind or temporally unrelated; Dady was convicted and sentenced to 20–25 years.
On appeal Dady challenged the instruction, the denial of his proposed instruction, evidentiary rulings (hearsay and § 27-412 exclusion), sufficiency of evidence, denial of new trial, and sentence.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Dady)	Held
1. Jury instruction ambiguity re: age in §28-319(1)(b)	Instruction No. 6 properly allowed age as part of a victim-specific capacity inquiry and district court clarified matter in context.	Phrase "because of the victim’s age" was ambiguous and permitted a statutory-rape–style finding based solely on age.	Court found the phrasing erroneous but harmless: instructions, evidence, and prosecution’s closing made "age" a case-specific, developmental inquiry.
2. Refusal to give Dady’s proposed instruction (In re K.M.-based)	Proposed instruction improperly limited incapacity to "significant abnormality" and was not a correct statement of law for all §28-319(1)(b) scenarios.	Jury should be told incapacity requires a severe/substantial impairment (not normal developmental immaturity).	Court affirmed denial: proposed instruction misstated law because incapacity can be based on normal developmental age, not only "substantial" impairment.
3. Sufficiency of evidence (victim’s incapacity and Dady’s knowledge)	Evidence (ER physician, observation of M.J., Dady’s admissions and interactions) supported that M.J. lacked capacity and Dady knew or should have known.	Evidence insufficient to prove M.J. had mental impairment or that Dady knew/should have known incapacity.	Evidence sufficient: jury could find incapacity based on developmental stage and that Dady knew or should have known.
4. Admission of testimony about M.J.’s diagnoses (hearsay)	Statements to treating physician during medical history admissible under medical-history exception §27-803(3); testimony properly admitted.	Testimony from M.J.’s mother and references to diagnoses were inadmissible hearsay (and Confrontation concerns).	ER physician’s testimony admissible under §27-803(3); mother’s testimony was hearsay but cumulative and harmless.
5. Exclusion of evidence of M.J.’s other sexual encounters (§27-412)	Other encounters were different in kind and timing, thus irrelevant to M.J.’s ability to appraise intercourse with an 18‑year‑old.	Cross-examination of M.J. about other encounters was constitutionally required to show comprehension and impeach state theory; denial deprived defense.	Court upheld exclusion as not an abuse of discretion; some limited questioning and hospitalization testimony were allowed; no unfair trial shown.
6. Sentence excessive	State argued sentence within statutory range and court considered appropriate factors.	Sentence (20–25 yrs) was excessive and court failed to weigh required factors fully.	Sentence affirmed: within statutory limits and court did consider relevant factors; no abuse of discretion.

Key Cases Cited

In re Interest of K.M., 299 Neb. 636, 910 N.W.2d 82 (Neb. 2018) (discusses when mental impairment is "severe" enough to establish incapacity)
State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (Neb. 2018) (sufficiency review and alternative theories of guilt)
State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (Neb. 2018) (burden for establishing reversible error from refusal to give requested instruction)
Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (Neb. 2018) (harmless error and instruction review principles)
State v. Earl, 252 Neb. 127, 560 N.W.2d 491 (Neb. 1997) (exclusion of prior sexual conduct when differing in kind or timing)
State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (Neb. 2011) (standards for reviewing sentencing for abuse of discretion)