State v. McCurdy, 25 Neb. Ct. App. 486

Background

Defendant Michael W. McCurdy was convicted by a jury of five counts: three counts of first‑degree sexual assault of a child, one count of first‑degree sexual assault, and one count of intentional child abuse, based primarily on testimony from two victims (J.U. and K.O.).
Victims testified to repeated sexual abuse by McCurdy beginning when they were under 16; J.U. became pregnant twice (the parties stipulated McCurdy was the father of the second pregnancy). McCurdy admitted sex with J.U. after she turned 16 but denied intercourse with K.O. and denied sex with J.U. before 16.
The State presented additional evidence: DNA testing from the residence (including an item from K.O.’s mattress), photos from McCurdy’s devices, an expert on child sexual assault disclosure patterns (Dr. Barbara Sturgis), and a recorded police interview of McCurdy.
Pretrial and trial disputes included: redaction of portions of the DNA lab report (McCurdy sought to redact an appendix showing allele data), limits on expert testimony about victim credibility/disclosure, admissibility of McCurdy’s custodial statement (Miranda waiver), and alleged prosecutorial misconduct in closing argument.
The district court admitted a redacted version of McCurdy’s statement (suppressing post‑invocation remarks), allowed limited expert testimony about disclosure patterns (excluding learned‑helplessness theory), admitted the DNA appendix material for the mattress item, and denied a mistrial motion after closing argument. The jury convicted and the court sentenced McCurdy to 95–115 years. The convictions were affirmed on appeal.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (McCurdy)	Held
Admissibility of DNA appendix showing allele data for K.O.’s mattress	Appendix minimally corroborative of K.O.’s testimony about sleeping location and thus relevant	Appendix irrelevant and prejudicial because jurors could misuse allele data to infer McCurdy’s presence on mattress	Court: admission not an abuse of discretion; probative (corroboration) minimal but not unfairly prejudicial.
Admissibility of expert testimony about disclosure/inconsistent statements	Expert may explain common disclosure patterns and why victims give inconsistent statements	Testimony impermissibly bolsters credibility of victims and opines on truthfulness	Court: expert properly limited; testimony about disclosure patterns and veracity of inconsistent statements admissible; no opinion on victims’ truth.
Suppression of custodial statement (Miranda waiver)	Waiver was knowing and voluntary under totality of circumstances; police warnings adequate	Waiver invalid because officer withheld reason for detention (inducement/coercion), so statement involuntary	Court: waiver valid; officer not required to disclose subject matter; suppression of only post‑invocation remarks proper; admission of redacted interview affirmed.
Motion for mistrial/prosecutorial misconduct in closing	Prosecutor’s comments explaining victim demeanor were permissible rehabilitation of inconsistent testimony	Comments improperly appealed to sympathy, referenced defendant’s right to trial, and criticized defense counsel; justified mistrial	Court: comments explained witness demeanor in context of testimony; not improper or unduly prejudicial; denial of mistrial affirmed.
Sufficiency of evidence for Count III (first‑degree sexual assault of J.U.)	Prior abuse and repeated, ineffective resistance rendered later intercourse non‑consensual; resistance would have been futile	Evidence showed J.U. engaged in sexual activity at 16–17 and sometimes acquiesced; no proof of lack of consent at those ages	Court: viewing evidence in light most favorable to prosecution, a rational juror could find J.U. incapable of consenting or that resistance would have been futile; conviction supported.

Key Cases Cited

Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (Miranda warning and waiver standards)
Colorado v. Spring, 479 U.S. 564 (U.S. 1987) (police need not disclose subject matter of interrogation to validate waiver)
Berghuis v. Thompkins, 560 U.S. 370 (U.S. 2010) (standards for understanding Miranda warnings and invoking rights)
State v. Johnson, 290 Neb. 862 (Neb. 2015) (abuse of discretion standard for evidentiary rulings)
State v. Braesch, 292 Neb. 930 (Neb. 2016) (standard for expert testimony review)
State v. Burries, 297 Neb. 367 (Neb. 2017) (burden and totality‑of‑circumstances for Miranda waivers)
State v. Fleming, 280 Neb. 967 (Neb. 2010) (permitting expert testimony on child sexual abuse disclosure patterns)
State v. Mora, 298 Neb. 185 (Neb. 2017) (sufficiency‑of‑evidence standard in criminal cases)