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

Michael 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 (victim J.U., over 16), and one count of intentional child abuse; sentenced to 95–115 years.
The charges arose from prolonged sexual abuse of two daughters of McCurdy’s former girlfriend (J.U. and K.O.) beginning when the victims were minors and continuing into J.U.’s late teens.
J.U. testified to repeated sexual penetration starting around age 9, continuing through multiple residences; she stopped resisting after repeated prior failures to stop McCurdy and later became pregnant by him.
K.O. testified to sexual contact and intercourse beginning around age 10–11 and to instances of physical violence and punishment when she resisted.
McCurdy did not testify; defense conceded intercourse with J.U. after she turned 16 was not disputed but argued it was consensual, denied intercourse with K.O., and attacked witness credibility.
The Court of Appeals affirmed; Nebraska Supreme Court granted review limited primarily to sufficiency of evidence for the non‑child first‑degree sexual assault conviction (whether J.U. consented or was incapable of consenting).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for first‑degree sexual assault of J.U. (over 16)	State: evidence showed penetration occurred without consent or that J.U. was unable to resist/appraise due to prior abuse and coercion	McCurdy: insufficient evidence that J.U. lacked mental capacity or that acts were nonconsensual when she was over 16	Affirmed: evidence sufficient under §28‑319(1)(a); jury could find McCurdy compelled submission by coercion (nonphysical), so acts were without consent
Proper instruction on alternative theories of guilt	State: alternative theories valid; jury may convict on any sufficient theory	McCurdy: challenge that appellate opinion failed to address mental incapacity theory	Court: when alternatives instructed, conviction stands if any theory supported; no error in affirming on consent/coercion theory
Admissibility of expert testimony on child sexual abuse behaviors	State: expert testimony explaining victim behavior was admissible and helpful	McCurdy: challenged admission as prejudicial	Court: no error in admitting expert testimony
Prosecutorial conduct and DNA evidence admission	Defense: prosecutorial misconduct claims and challenge to DNA evidence admission	State: evidence admissible and conduct not reversible error	Court: no reversible error in prosecutorial conduct rulings or DNA evidence admission

State v. Wells, 300 Neb. 296 (establishes appellate sufficiency standard)
State v. Eagle Bull, 285 Neb. 369 (when charged on alternatives, conviction stands if any theory supported)
State v. Knutson, 288 Neb. 823 (same principle for alternative statutory theories)
State v. Meyers, 799 N.W.2d 132 (Iowa 2011) (psychological coercion and authority relationship can establish nonconsensual sexual acts)
Com. v. Rhodes, 510 A.2d 1217 (Pa. 1986) (forcible compulsion may include moral/psychological force; totality of circumstances test)
U.S. v. Davis, 875 F.3d 592 (11th Cir. 2017) (authority/domination can support implied threat and coercion)
State v. Etheridge, 352 S.E.2d 673 (N.C. 1987) (parental/household authority can constitute constructive force)
State v. Eskridge, 526 N.E.2d 304 (Ohio 1988) (coercion in parental authority is subtle/psychological)