State v. McCurdy

301 Neb. 343

918 N.W.2d 292

STATE of Nebraska, appellee,

v.Michael W. MCCURDY, appellant.

No. S-17-061.

Supreme Court of Nebraska.

Filed October 19, 2018.

Robert W. Kortus, of Nebraska Commission on Public Advocacy, Lincoln, for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

Miller-Lerman, J.

NATURE OF CASE

Michael W. McCurdy was convicted of three counts of first degree sexual assault of a child, one count of first degree sexual assault, and one count of intentional child abuse following a jury trial in the district court for Lancaster County. On appeal, the Nebraska Court of Appeals rejected McCurdy’s assignments of error and affirmed his convictions and sentences. State v. McCurdy , 25 Neb. App. 486, 908 N.W.2d 407 (2018).

We granted McCurdy’s petition for further review. On further review, he primarily claims that the Court of Appeals erred when it determined that there was sufficient evidence to support his conviction for first degree sexual assault. Although we employ a different analysis than that employed by the Court of Appeals, we agree with its conclusion that there was sufficient evidence. Further, we find no error in the Court of Appeals’ disposition regarding McCurdy’s other claims involving rulings and events at trial. We therefore affirm the Court of Appeals’ affirmance of McCurdy’s convictions and sentences.

STATEMENT OF FACTS

The five counts charged against McCurdy arose from allegations that over a period of years, he sexually abused his former girlfriend’s two eldest daughters, J.U. and K.O. In three charges of first degree sexual assault of a child, the State alleged that McCurdy had (1) subjected J.U. to sexual penetration when she was under 12 years of age, (2) subjected J.U. to sexual penetration when she was at least 12 years of age but less than 16 years of age, and (3) subjected K.O. to sexual penetration when she was at least 12 years of age but less than 16 years of age. In the charge of first degree sexual assault wherein the charge did not involve a "child" and is the subject of our analysis below, the State alleged that McCurdy had subjected J.U. to penetration without her consent or when he knew or should have known that J.U. was mentally or physically incapable of resisting or appraising the nature of his conduct; this charge of first degree sexual assault related to a time period when J.U. was over 16 years of age. The charge of intentional child abuse involved allegations regarding both J.U. and K.O.

The charges against McCurdy were tried to a jury in October 2016. Both J.U. and K.O. testified at the trial. The Court of Appeals summarized the evidence for which there is support in the record as follows:

J.U. was 18 years old at the time of the trial. She testified that McCurdy has been in her life for as long as she can remember. J.U.’s mother and McCurdy used to be in a long-term romantic relationship, and they share three children together. J.U. testified that McCurdy had been sexually abusing her since she was in middle school. J.U. indicated that since the sexual abuse began, she and her family, including McCurdy, had lived in four different houses. She used these houses to organize her testimony about the years of sexual abuse.

J.U. lived in the "yellow house" from the time she was 5 years old until she was almost 10 years old. While she lived there, she and her younger sister, K.O., shared a bedroom in the attic of the house. One day, when J.U. was approximately 9 years old, she was alone in the bedroom when McCurdy entered the room. J.U. testified, "[H]e came in the room and started taking my pants off and then had intercourse." J.U. testified that after this initial incident, McCurdy would come into her bedroom three to four times per week in order to have sexual intercourse with her. She testified that she would tell McCurdy "no" and push him away, but that she was unable to stop McCurdy from having sexual intercourse with her. J.U. testified that she did not tell anyone what was happening because she was afraid she would get into trouble and no one would believe her.

J.U. and her family next moved into the "white house." They resided in this house from the time J.U. was 10 years old until she was 13 years old. While J.U. and her family lived in the white house, McCurdy continued to have sexual intercourse with J.U. three to four times per week in her bedroom. She testified that she continued to tell McCurdy "no," but that she did not push him away anymore. She explained that even if she tried to push him away, he would "still do it anyway." J.U. continued to keep the abuse a secret because she was scared.

J.U. and her family moved into the "blue house" when she was 13 years old. They lived at that house until J.U. was almost 15 years old. At the blue house, the abuse continued. J.U. testified that by this time, McCurdy was no longer in a romantic relationship with her mother; however, he continued to reside with the family. J.U. testified that McCurdy continued to have sexual intercourse with her three to four times per week, both in her bedroom and occasionally in her mother’s bedroom. In addition, while they were living in the blue house, McCurdy began to rub J.U.’s vagina with his hands and put his mouth on her vagina. J.U. described that McCurdy would put lotion all over her body, including on her breasts, her buttocks, and her vagina. J.U. indicated that she had stopped saying "no" to McCurdy, "[b]ecause he still did it anyway." She continued to keep the abuse a secret.

When J.U. was almost 15 years old, she, her mother, and her siblings moved into "the Sandstone house." McCurdy did not reside at this residence; however, he stayed overnight at the home on a regular basis, oftentimes without J.U.’s mother’s knowledge. At the Sandstone house, J.U. slept in the basement on a futon. When McCurdy would sleep at the Sandstone house, he would typically sleep with J.U. on the futon. McCurdy had sexual intercourse with J.U. three to four times per week in her basement bedroom. In addition, McCurdy put his hands and mouth on her vagina. J.U. no longer resisted McCurdy’s actions.

In 2014, just prior to J.U.’s turning 16 years old, she became pregnant. J.U. testified that McCurdy was the father of the baby. In fact, she testified that she had never had sexual intercourse with anyone other than McCurdy. When McCurdy discovered that J.U. was pregnant, he told her to tell her mother that someone else was the father. J.U. testified that she followed McCurdy’s directions and "ma[d]e up a name" to tell her mother. J.U.’s pregnancy did not result in a live birth.

During the summer of 2015, when J.U. was 17 years old, she became pregnant for a second time. The parties stipulated at trial that McCurdy was the father of J.U.’s baby. J.U. testified that when McCurdy found out she was pregnant, he instructed her "[t]o make up a name again" to tell her mother. However, on August 7, 2015, J.U. told her mother that she was pregnant with McCurdy’s baby. J.U.’s mother then called police.

K.O. was 16 years old at the time of the trial. She testified that she has known McCurdy for her entire life. She also testified that McCurdy had been sexually assaulting her since she was approximately 10 years old. Like J.U., K.O. organized her testimony about the years of sexual abuse using the houses where she and her family had lived in the last few years.

When K.O. lived in the blue house, she was between the ages of 11 years old and 13 years old. She testified that while she lived in this house, McCurdy gave her a video game system as a present. He took her out of school so that they could play the game together all day and into the night. McCurdy then told K.O. to sleep in his bed so the younger children did not wake her up. McCurdy laid down with K.O. in the bed. K.O. testified that while they laid together, he attempted to "put[ ] his penis in [her] shorts." She pulled away from him and nothing further happened on this occasion. Subsequently, however, McCurdy asked K.O. to rub his penis and "scratch[ ]" his "balls." He would sometimes tell her to use lotion when she was touching his penis. Eventually, McCurdy put his penis in K.O.’s vagina. He then continued to have sexual intercourse with her twice per week. McCurdy also put his fingers in K.O.’s vagina.

K.O. testified that she tried to resist McCurdy by pushing him away or trying to get away from him. She also told him "no." She indicated that sometimes she was able to successfully resist his actions. However, other times, McCurdy would "punish" her for her resistance. Such punishment included using his fingers to "[g]o higher up ... in [her] vagina" to cause her pain. Additionally, K.O. testified that McCurdy would be "violent" with her sometimes. He would slap her, punch her, choke her, and hold her arms down.

K.O. testified that she did not tell her mother what was happening because she did not think her mother would believe her. She also testified that before McCurdy began abusing her, she observed J.U. and McCurdy having sexual intercourse in her mother’s bedroom.

When K.O. and her family moved to the Sandstone house, K.O. was 13 years old. K.O. testified that at the Sandstone house, the sexual intercourse and sexual contact continued. K.O. indicated that the sexual contact included McCurdy rubbing lotion all over her body. At the Sandstone house, McCurdy had sexual intercourse with K.O. approximately twice every other week. K.O. believed that the abuse happened less often at the Sandstone house because she continued to resist McCurdy and actively tried to stay away from him.

K.O. described three specific instances of sexual contact at the Sandstone house that she remembered. First, she described one occasion where McCurdy attempted to have her put her mouth on his penis, but she successfully resisted him. Then, she described an occasion where

...