State v. McCurdy, 918 N.W.2d 292

Michael W. McCurdy was convicted by a jury of five offenses: three counts of first‑degree sexual assault of a child, one count of first‑degree sexual assault (victim over 16), and one count of intentional child abuse, based on long‑running sexual abuse of two sisters, J.U. and K.O.
J.U. testified that McCurdy began assaulting her in middle school, resisted early on but later stopped resisting because previous resistance had been futile; she became pregnant by McCurdy after turning 16. K.O. testified to repeated abuse beginning around age 10–11.
The State introduced victims’ testimony, DNA evidence, photographs from McCurdy’s devices, an expert on child sexual‑assault victim behavior, and a recorded interview of McCurdy; McCurdy did not testify.
The district court sentenced McCurdy to an aggregate 95–115 years. The Nebraska Court of Appeals affirmed; McCurdy petitioned for further review to the Nebraska Supreme Court.
On further review the Supreme Court limited its analysis to whether the evidence was sufficient to support the first‑degree sexual‑assault conviction of J.U. (charge involving a victim over 16), and whether the Court of Appeals erred on other trial rulings (expert testimony, prosecutorial misconduct, DNA evidence).

Issue	Plaintiff's Argument (State)	Defendant's Argument (McCurdy)	Held
Sufficiency — whether J.U. consented / mental incapacity to consent	Evidence (victim testimony, history of abuse, authority relation) shows sexual penetration occurred without consent (alternatively victim was mentally incapable)	Insufficient evidence that J.U. lacked capacity; Court of Appeals relied improperly on futility of resistance rather than proving lack of mental capacity	Conviction affirmed. Court finds sufficient evidence that penetration was "without consent" because McCurdy compelled submission by nonphysical coercion under §28‑318(8)(a)(i)
Meaning of "coercion" under §28‑318(8)(a)(i)	N/A — State argued coercion could be shown by history/authority in household	Coercion must be proven; defendant contested sufficiency	Court holds "coercion" includes nonphysical force; history of repeated abuse and McCurdy’s authority supported finding of coercion
Expert testimony on child sexual‑assault victim behavior — admissibility	Testimony explained common victim behaviors (delay, recantation) and was admissible	McCurdy argued it was improper/ prejudicial	Court of Appeals correctly admitted the testimony; Supreme Court found no error and declined further comment
Prosecutorial misconduct and DNA evidence admission	N/A — State relied on these items at trial	McCurdy claimed misconduct and challenged DNA admission	Court of Appeals rejected these claims; Supreme Court found no error and affirmed

State v. Wells, 300 Neb. 296, 912 N.W.2d 896 (sets standard for reviewing sufficiency of evidence in criminal cases)
State v. Clemens, 300 Neb. 601, 915 N.W.2d 550 (statutory interpretation principles; avoid rendering words superfluous)
State v. Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (when charged under alternative theories, conviction may be affirmed if evidence suffices for any alternative)
State v. Meyers, 799 N.W.2d 132 (Iowa Sup. Ct.; psychological coercion and totality of circumstances can establish nonconsensual conduct)
U.S. v. Davis, 875 F.3d 592 (11th Cir.; authority/domination may support inference of implied threat/coercion)
State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (parental/household authority can supply constructive force/coercion)