State v. McCurdy
301 Neb. 343
| Neb. | 2018Background
- Michael W. McCurdy was convicted by a jury of five felonies arising from ongoing sexual abuse of his former girlfriend’s daughters, J.U. and K.O., including three counts of first degree sexual assault of a child, one count of first degree sexual assault of J.U. (when she was over 16), and one count of intentional child abuse.
- J.U. testified that McCurdy began sexually assaulting her in middle school, resisted early on but stopped resisting over time because resistance had proved futile, and became pregnant by McCurdy when she was 15–17.
- K.O. testified to similar long‑running abuse beginning around age 10–11, including physical punishment when she resisted.
- The State presented DNA evidence, photographs from McCurdy’s devices, an expert on child sexual assault victim behavior, and a recording of police questioning; McCurdy did not testify and contested the victims’ credibility and whether post‑16 sex was consensual.
- The Nebraska Court of Appeals affirmed; McCurdy sought further review arguing primarily that the evidence was insufficient to prove J.U. lacked mental capacity to consent (alternative statutory theory).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for first‑degree sexual assault of J.U. (post‑16 charge) | State: Evidence showed J.U. did not consent; prior abuse and McCurdy’s authority rendered resistance futile and supported coercion. | McCurdy: Insufficient evidence that J.U. lacked mental capacity or that penetration occurred without consent; post‑16 intercourse was consensual. | Affirmed: Evidence was sufficient to find penetration occurred "without consent" because McCurdy compelled submission by coercion (nonphysical), given history and his authority in the household. |
| Proper use of alternative statutory theories on jury instructions | State: Jury may be instructed on alternatives; conviction may stand if any alternative is supported. | McCurdy: Court of Appeals should have addressed insufficiency as to § 28‑319(1)(b) (mental incapacity). | Held: When charged in the alternative, conviction may be upheld if evidence supports any alternative; Court found sufficient evidence under § 28‑319(1)(a) (without consent). |
| Meaning of "coercion" under § 28‑318(8)(a)(i) | State: Historical abuse and dominion support a finding of coercion (including nonphysical means). | McCurdy: Argued insufficiency to prove coercion or threats/force as defined elsewhere in the statute. | Held: "Coercion" includes nonphysical force; context and totality of circumstances (history, authority, futility of resistance) can establish coercion. |
| Evidentiary rulings (expert testimony, DNA admission, prosecutorial conduct) | State: Rulings were proper and did not prejudice verdict. | McCurdy: Challenged admission of expert testimony, DNA, and alleged prosecutorial misconduct. | Held: Court of Appeals correctly rejected these assignments of error; no reversible error. |
Key Cases Cited
- State v. Wells, 300 Neb. 296 (discusses sufficiency standard for criminal convictions) (cited for appellate standard of review)
- State v. Eagle Bull, 285 Neb. 369 (alternative theories: conviction may be affirmed if any theory supported) (applied principle on alternative statutory theories)
- State v. Knutson, 288 Neb. 823 (same governing principle on alternative theories) (supporting precedent)
- State v. Meyers, 799 N.W.2d 132 (Iowa 2011) (psychological coercion and totality‑of‑circumstances approach in parent/authority contexts) (used as persuasive authority on nonphysical coercion)
- Commonwealth v. Rhodes, 510 Pa. 537 (Penn. 1986) (forcible compulsion includes moral/psychological force) (persuasive on nonphysical coercion factors)
- State v. Etheridge, 319 N.C. 34 (N.C. 1987) (constructive force inferred from parent/household authority) (supports finding coercion from authority)
- Powe v. State, 597 So. 2d 721 (Ala. 1991) (implied threat from position of authority over child) (persuasive on imputed coercion in familial settings)
- U.S. v. Davis, 875 F.3d 592 (11th Cir. 2017) (discusses nonphysical coercion/force under analogous statutes) (cited for interpretive support on nonphysical force)