908 N.W.2d 407
Neb. Ct. App.2018Background
- Defendant Michael W. McCurdy was tried by jury on 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, arising from long‑running sexual abuse allegations by two daughters of his ex‑girlfriend (J.U. and K.O.).
- Both victims testified in detail about repeated sexual contact over several residences and years; J.U. became pregnant twice and the State stipulated McCurdy fathered the second pregnancy.
- The State presented DNA testing results (items from the Sandstone house), photographs from a phone/computer, an expert on child sexual‑abuse disclosure patterns (Dr. Sturgis), and a recorded police interview of McCurdy. McCurdy did not testify.
- Jury convicted McCurdy on all counts; district court sentenced him to 95–115 years. He appealed, raising four consolidated errors: certain evidentiary rulings (DNA report redaction and expert testimony), denial of motion to suppress his statement, denial of mistrial for alleged prosecutorial misconduct in closing, and insufficiency of evidence as to Count III.
- The Nebraska Court of Appeals affirmed on all issues.
Issues
| Issue | McCurdy's Argument | State's Argument | Held |
|---|---|---|---|
| Admission of DNA appendix (item 5C) | Appendix alleles could be read to suggest McCurdy's DNA on K.O.’s mattress; irrelevant and prejudicial — should be redacted further. | Appendix minimally probative and corroborative (K.O. slept on that mattress); not unfairly prejudicial; technician’s testimony clarified exclusions. | Admission not an abuse of discretion: relevance established; minimal probative value and not unfairly prejudicial. |
| Expert testimony on disclosure/inconsistent statements (Dr. Sturgis) | Testimony impermissibly vouched for victims by assigning accuracy levels to inconsistent statements; bolstering credibility. | Testimony explained child disclosure patterns and why inconsistencies occur; limited and non‑case specific. | Admission within discretion: background/contextual testimony allowed; Sturgis did not opine on victims’ credibility. |
| Motion to suppress (Miranda waiver) | Waiver involuntary because officer withheld why McCurdy was brought in until after he agreed to talk; inducement/coercion. | McCurdy received, acknowledged, and understood Miranda warnings; totality of circumstances show knowing, voluntary waiver; Spring/Berghuis control. | Denial affirmed: warnings given and understood; withholding subject matter did not vitiate waiver; later invocation of right to remain silent honored. |
| Motion for mistrial (closing argument misconduct) | Prosecutor improperly solicited sympathy for victim, commented on defendant’s right to trial, and accused defense counsel of bullying — prejudicial. | Remarks were intended to explain victim’s courtroom demeanor and rehabilitate testimony after aggressive cross‑examination; not a plea for sympathy or comment on right to trial. | Denial affirmed: remarks not improper in context and did not unduly influence jury. |
| Sufficiency of evidence as to Count III (first‑degree assault after J.U. turned 16) | J.U. consented after age 16 (no resistance); evidence insufficient for first‑degree assault (no force, no expressed lack of consent). | Prior years of coercion/failed resistance meant J.U. was incapable of consenting or resistance would have been futile; statute covers incapacity and futility. | Conviction supported: jury could find repeated ineffective resistance rendered further resistance futile or J.U. incapable of consenting; evidence sufficient. |
Key Cases Cited
- State v. Johnson, 290 Neb. 862 (discretionary review of evidentiary rulings; relevance and Rule 403 balancing)
- State v. Braesch, 292 Neb. 930 (abuse‑of‑discretion standard for expert testimony rulings)
- State v. Fleming, 280 Neb. 967 (permitting expert testimony on child sexual‑abuse disclosure dynamics)
- State v. Burries, 297 Neb. 367 (Miranda waiver burden on State; totality of circumstances test)
- Berghuis v. Thompkins, 560 U.S. 370 (Miranda requirements: adequate warnings, understanding, opportunity to invoke)
- Colorado v. Spring, 479 U.S. 564 (police not required to disclose subject matter of interrogation before waiver)