State v. McCurdy

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/26/2018 12:12 AM CDT
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Nebraska Supreme Court A dvance Sheets
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STATE v. McCURDY
Cite as 301 Neb. 343State of Nebraska, appellee, v.
Michael W. McCurdy, appellant.
___ N.W.2d ___
Filed October 19, 2018. No. S-17-061.
1. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
2. ____: ____: ____. When a defendant is charged in alternative ways with
committing an offense, the jury can convict if it finds there is sufficient
evidence of either alternative, and thus the judgment of conviction must
be affirmed if the evidence is sufficient to support either of the State’s
alternative theories of guilt.
3. Statutes. Statutory language is to be given its plain and ordinary
meaning.
4. ____. When interpreting a statute, no sentence, clause, or word should
be rejected as meaningless or superfluous if it can be avoided.
5. Sexual Assault: Words and Phrases. “Coercion” in Neb. Rev. Stat.
§ 28-318(8)(a)(i) (Reissue 2016) includes nonphysical force.
Petition for further review from the Court of Appeals, Pirtle,
R iedmann, and A rterburn, Judges, on appeal thereto from the
District Court for Lancaster County, Darla S. Ideus, Judge.
Judgment of Court of Appeals affirmed.
Robert W. Kortus, of Nebraska Commission on Public
Advocacy, for appellant.
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STATE v. McCURDY
Cite as 301 Neb. 343Douglas J. Peterson, Attorney General, and Austin N. Relph
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 fol-
lowing 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 sen-
tences. 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 alle-
gations 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
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STATE v. McCURDY
Cite as 301 Neb. 343sexual 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 testi-
fied 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 inter-
course with her. She testified that she would tell McCurdy
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STATE v. McCURDY
Cite as 301 Neb. 343“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 inter-
course 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, includ-
ing 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,
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Cite as 301 Neb. 343oftentimes 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 direc-
tions 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 testi-
fied 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
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Cite as 301 Neb. 343so 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 fur-
ther 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 push-
ing 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 some-
times. 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 sex-
ual contact continued. K.O. indicated that the sexual
contact included McCurdy rubbing lotion all over her
body. At the Sandstone house, McCurdy had sexual inter-
course with K.O. approximately twice every other week.
K.O. believed that the abuse happened less often at the
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STATE v. McCURDY
Cite as 301 Neb. 343Sandstone house because she continued to resist McCurdy
and actively tried to stay away from him.
K.O. described three specific instances of sexual con-
tact 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 success-
fully resisted him. Then, she described an occasion where
McCurdy put his fingers in her vagina while they were
in the living room watching a movie with her younger
siblings. K.O. indicated that she and McCurdy were under
a blanket. Finally, she described an incident where she
resisted McCurdy and he got mad and put his hands
around her neck.
K.O. testified that she did not tell her mother about
what was happening because she did not think her mother
would believe her. K.O. admitted that she had lied to her
mother about other things. K.O. did not tell her mother
about the abuse until after J.U. had reported her experi-
ences to police.
The State offered evidence in addition to J.U.’s and
K.O.’s testimony. Such additional evidence included DNA
evidence from the Sandstone house, the testimony of
an expert witness concerning behaviors of child sexual
assault victims, and a recording of an interview between
law enforcement and McCurdy which was conducted just
prior to McCurdy’s arrest. . . . The State also offered into
evidence numerous photographs of J.U. and K.O. which
were located on McCurdy’s cellular telephone and on the
family’s computer under a user account titled “Mike.”
Some of these photographs had comments of a sexual
nature electronically superimposed on them.
McCurdy did not testify at trial, nor did he offer any
evidence in his defense. However, throughout the cross-
examination of the State’s witnesses and during closing
arguments, McCurdy’s counsel indicated that McCurdy
did not dispute that he and J.U. engaged in sexual
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STATE v. McCURDY
Cite as 301 Neb. 343intercourse after she turned 16 years old. McCurdy con-
tended that his sexual relationship with J.U. at that time
was consensual. McCurdy did dispute that he had ever
had sexual intercourse with K.O. He also disputed that he
had sexual intercourse with J.U. prior to her turning 16
years old. Much of McCurdy’s defense involved attack-
ing the credibility of J.U. and K.O. during their cross-­
examinations. McCurdy pointed out numerous inconsist­
encies between J.U.’s and K.O.’s trial testimony and their
prior statements about the sexual abuse.
State v. McCurdy, 25 Neb. App. 486, 489-93, 908 N.W.2d 407,
412-14 (2018). The jury found McCurdy guilty of all five counts,
and the district court thereafter sentenced McCurdy to impris-
onment for a total of 95 to 115 years for the five convictions.
McCurdy appealed to the Court of Appeals and made five
assignments of error. The Court of Appeals rejected all of
McCurdy’s assignments of error and affirmed his convic-
tions and sentences. We granted McCurdy’s petition for fur-
ther review.
ASSIGNMENTS OF ERROR
McCurdy claims on further review that the Court of Appeals
erred when it determined that there was sufficient evidence to
support his conviction for first degree sexual assault of J.U.
without addressing whether there was sufficient evidence that
J.U. lacked the mental capacity to consent.
McCurdy also claims that the Court of Appeals erred when
it rejected his assignments of error (1) challenging the admis-
sion of expert testimony concerning the behaviors and testi-
monial patterns of child sexual assault victims, (2) claiming
prosecutorial misconduct, and (3) admitting DNA evidence.
We find no error in the Court of Appeals’ disposition of these
three issues, and we see no need for further comment on them.
Therefore, our analysis below is limited to the sufficiency of
the evidence to support McCurdy’s conviction for first degree
sexual assault of J.U.
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STATE v. McCURDY
Cite as 301 Neb. 343STANDARD OF REVIEW
[1] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Wells, 300 Neb. 296, 912
N.W.2d 896 (2018).
ANALYSIS
McCurdy claims on further review that the Court of Appeals
erred when it determined that there was sufficient evidence to
support his conviction for first degree sexual assault without
addressing whether there was sufficient evidence that the vic-
tim, J.U., lacked the mental capacity to consent. McCurdy’s
argument presumes that the Court of Appeals affirmed his
conviction for first degree sexual assault on the basis of a
finding that he subjected J.U. to sexual penetration when he
knew or should have known that she was mentally incapable of
consent. Contrary to McCurdy’s contention, we read the Court
of Appeals’ opinion as concluding that there was sufficient evi-
dence to support McCurdy’s conviction for first degree sexual
assault on the basis of a finding that he subjected J.U. to sexual
penetration without her consent. And, although we employ an
analysis that differs in certain respects from that used by the
Court of Appeals, we agree with its conclusion that there was
sufficient evidence to find that McCurdy subjected J.U. to
sexual penetration without her consent.
McCurdy claims on appeal that there was insufficient evi-
dence to support his conviction for first degree sexual assault;
he does not challenge the sufficiency of the evidence related
to his other convictions. The first degree sexual assault statute,
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STATE v. McCURDY
Cite as 301 Neb. 343Neb. Rev. Stat. § 28-319(1)(a), (b), and (c) (Reissue 2016),
sets forth three ways in which one could be found guilty of the
offense. Section 28-319(1) provides that one is guilty of first
degree sexual assault if one
subjects another person to sexual penetration (a) without
the consent of the victim, [or] (b) who knew or should
have known that the victim was mentally or physically
incapable of resisting or appraising the nature of his or
her conduct, or (c) when the actor is nineteen years of
age or older and the victim is at least twelve but less than
sixteen years of age . . . .
To prove guilt under § 28-319, it must be shown that the
offender subjected the victim to sexual penetration along with
one of the three alternatives set forth in § 28-319(1)(a), (b),
and (c).
The State alleged that McCurdy committed first degree
sexual assault against J.U. when she was 16 years of age or
older. Therefore, § 28-319(1)(c), pertaining to victims “at least
twelve but less than sixteen years of age,” did not apply to the
charge of first degree sexual assault in this case. Instead, the
State alleged in the information that McCurdy subjected J.U. to
sexual penetration either without the consent of J.U., in viola-
tion of § 28-319(1)(a), or, alternatively, when McCurdy knew
or should have known that J.U. was mentally or physically
incapable of resisting or appraising the nature of his conduct,
in violation of § 28-319(1)(b). The district court in this case
instructed the jury on both alternatives, using the language of
§ 28-319(1)(a) and (b), as well as the statutory definitions of
certain terms, including the term “without consent.”
The Court of Appeals concluded that there was sufficient
evidence to support the charge of first degree sexual assault.
The Court of Appeals’ analysis focused on evidence show-
ing that because McCurdy had sexually abused her in the
past, J.U. found it futile or useless to resist McCurdy’s sexual
advances after she turned 16. The Court of Appeals concluded
as follows:
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Cite as 301 Neb. 343Based on J.U.’s testimony as a whole, the jury could
have found that J.U. had repeatedly resisted McCurdy’s
sexual advances verbally and physically without success
and that by the time she was 16 years old, any further
resistance on her part would have been futile. Therefore,
the jury could find the essential elements of the crime of
first degree sexual assault beyond a reasonable doubt.
State v. McCurdy, 25 Neb. App. 486, 514, 908 N.W.2d 407,
425-26 (2018).
McCurdy claims on further review that the Court of Appeals
erred because it did not address the argument that there was not
sufficient evidence to support a finding that J.U. was rendered
incapable of consent. In this regard, we note that the State had
argued, at least in part, to the Court of Appeals that the evi-
dence in this case supported a finding that McCurdy’s sexual
abuse of J.U. prior to her turning 16 years old rendered her
incapable of resisting or appraising the nature of McCurdy’s
conduct after she turned 16 years old. We think that McCurdy’s
argument on further review misreads the basis on which the
Court of Appeals concluded that there was sufficient evidence
to support his conviction for first degree sexual assault: to wit,
the sexual penetration was without J.U.’s consent.
McCurdy’s argument focuses exclusively on § 28-319(1)(b)
and whether there was sufficient evidence regarding J.U.’s
mental capability in relation to consent. But we read the Court
of Appeals’ opinion as concluding that because there was
sufficient evidence to find that sexual penetration occurred
without the consent of J.U., there was sufficient evidence
to support a conviction for first degree sexual assault under
§ 28-319(1)(a). Having concluded that the evidence was suf-
ficient under § 28-319(1)(a), the Court of Appeals did not
need to address whether there was also sufficient evidence
to find that J.U. lacked the mental capacity to consent under
§ 28-319(1)(b).
[2] We have stated that when a defendant was charged in
alternative ways with committing an offense, “the jury could
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Cite as 301 Neb. 343convict if it found there was sufficient evidence of either [alter-
native], and thus the judgment of conviction must be affirmed
if the evidence is sufficient to support either of the State’s
alternative theories of guilt.” State v. Eagle Bull, 285 Neb 369,
375, 827 N.W.2d 466, 471 (2013). See, also, State v. Knutson,
288 Neb. 823, 843, 852 N.W.2d 307, 324 (2014) (“judgment
must be affirmed if [evidence] was sufficient to support any
of the State’s three theories of guilt”). In these cases, after
we found sufficient evidence to support a conviction under
one theory, we stated that we need not consider whether the
evidence was sufficient to support the alternative theory or
theories of guilt. In Eagle Bull, we noted that the defendant had
not objected to the court’s instructing on alternative theories on
the basis that there was not sufficient evidence to support each
alternative and that the defendant did not raise the instruction
issue on appeal. In the present case, McCurdy did not object
to the instruction and he did not assign error on appeal to the
giving of the instruction.
The Court of Appeals’ analysis focused on evidence that,
because of McCurdy’s prior sexual assault of J.U., it would
have been useless or futile for J.U. to resist McCurdy’s sexual
advances after she turned 16 years old. As we discuss further
below, this analysis was relevant to whether there was suf-
ficient evidence that the sexual penetration was without J.U.’s
consent. However, the Court of Appeals’ analysis focused
exclusively on one aspect of the statutory definition of “with-
out consent” and did not focus on other relevant portions of
the definition. In our discussion below, we supply the miss-
ing analysis.
Within Nebraska’s sexual assault statutes, Neb. Rev. Stat.
§ 28-318 (Reissue 2016) provides definitions for terms used
in § 28-319 and related statutes. Subsection 28-318(8) defines
“without consent” as follows:
Without consent means:
(a)(i) The victim was compelled to submit due to the
use of force or threat of force or coercion, or (ii) the
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Cite as 301 Neb. 343victim expressed a lack of consent through words, or (iii)
the victim expressed a lack of consent through conduct, or
(iv) the consent, if any was actually given, was the result
of the actor’s deception as to the identity of the actor or
the nature or purpose of the act on the part of the actor;
(b) The victim need only resist, either verbally or
physically, so as to make the victim’s refusal to consent
genuine and real and so as to reasonably make known to
the actor the victim’s refusal to consent; and
(c) A victim need not resist verbally or physically
where it would be useless or futile to do so[.]
The Court of Appeals’ analysis in this case focused on
§ 28-318(8)(c) and whether there was evidence that it would
have been useless or futile for J.U. to resist McCurdy. The
Court of Appeals did not appear to comment on whether there
was evidence that sexual penetration was “without consent”
within one of the definitions set forth in § 28-318(8)(a).
As we read § 28-318(8), in order to determine whether
sexual activity was “without consent” of the alleged victim,
one of the four alternatives set forth in subsection (a) must be
shown. That is, it must be shown that either (1) the defendant
compelled the victim to submit due to the use of force or threat
of force or coercion, (2) the victim expressed a lack of con-
sent through words, (3) the victim expressed a lack of consent
through conduct, or (4) the defendant used deception to obtain
consent. We do not read § 28-318(8)(b) and (c) as setting forth
additional independent alternative means to show that sexual
penetration was “without consent.” Instead, we read these
subsections as informing the nature of the proof necessary to
show one of the definitions set forth in subsection (a). That is,
subsection (b) describes the nature of resistance which must
be shown in circumstances where resistance by the victim is
relevant to proving that sexual activity was “without consent.”
Subsection (c) describes circumstances in which it is not nec-
essary to show resistance by the victim in order to prove that
sexual activity was “without consent.”
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Cite as 301 Neb. 343Therefore, the Court of Appeals’ analysis of evidence show-
ing that it would have been useless or futile for J.U. to resist
verbally or physically was relevant to show that it was not
necessary to prove that J.U. resisted in order to prove that
sexual penetration was without her consent. The evidence of
uselessness or futility was necessary but not sufficient to show
that sexual penetration was without J.U.’s consent. Instead, to
prove consent was lacking, it was also necessary to show that
sexual penetration occurred in a manner described in one of
the four alternatives set forth in § 28-318(8)(a). We perform
that analysis below.
We first note that we do not find that there was evidence in
this case that at the time relevant to the charge of first degree
sexual assault, J.U. expressed a lack of consent through words
or conduct. There was evidence that J.U. expressed her lack
of consent when McCurdy first began sexually assaulting her,
but J.U. testified that in the relevant time period, after she
turned 16, she had stopped resisting and expressing her lack
of consent, because it had not worked in the past. Therefore,
there was no evidence that sexual penetration was “without
consent” within the meanings set forth in § 28-318(8)(a)(ii)
and (iii). We also find no evidence that McCurdy gained
J.U.’s consent through deception, and therefore there was no
evidence that sexual penetration was “without consent” within
the meaning set forth in § 28-318(8)(a)(iv).
Having eliminated § 28-318(8)(a)(ii), (iii), and (iv), we
consider whether the evidence supports a finding under
§ 28-318(8)(a)(i) that J.U. “was compelled to submit due to
the use of force or threat of force or coercion.” By its terms,
§ 28-318(8)(a)(i) sets forth three ways one might compel
another person to submit: (1) use of force, (2) threat of force,
or (3) coercion. “Use of force” and “threat of force” are
defined in the statute, but “coercion” is not. With regard to
“use of force” and “threat of force,” § 28-318(9) supplies the
following definitions:
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Cite as 301 Neb. 343Force or threat of force means (a) the use of physical
force which overcomes the victim’s resistance or (b) the
threat of physical force, express or implied, against the
victim or a third person that places the victim in fear of
death or in fear of serious personal injury to the victim
or a third person where the victim reasonably believes
that the actor has the present or future ability to execute
the threat.
As noted above, there was no evidence in this case that J.U.
actively resisted McCurdy at the times relevant to the charge of
first degree sexual assault, when J.U. was over 16. Therefore,
there was no evidence that McCurdy used physical force which
overcame J.U.’s resistance and no evidence that McCurdy
compelled J.U. to submit by “use of force” as that term is
defined in § 28-318(9). We also do not think that the evidence
shows that McCurdy compelled J.U. to submit by “threat of
force,” because the definition of that term in § 28-318(9) speci-
fies “physical force” and further limits the threat to one that
“places the victim in fear of death or in fear of serious personal
injury.” We believe the evidence in this case did not show that
McCurdy threatened J.U. in a manner that put her in fear of
death or serious personal injury.
Based on the foregoing, the issue before us is whether the
evidence supported a finding that McCurdy compelled J.U. to
submit to sexual penetration by “coercion.” As noted, “coer-
cion” as used in § 28-318(8)(a)(i) is not statutorily defined
in § 28-318 or elsewhere, so we must look to the statute as a
whole, as well as other sources, to understand “coercion” as it
is used in § 28-318(8)(a)(i).
[3] Statutory language is to be given its plain and ordi-
nary meaning. State v. Clemens, 300 Neb. 601, 915 N.W.2d
550 (2018). Black’s Law Dictionary defines “coercion” as
“[c]ompulsion of a free agent by physical, moral, or economic
force or threat of physical force.” Black’s Law Dictionary 315
(10th ed. 2014). Under this definition, although “coercion”
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includes other, nonphysical forms of force.
[4,5] We have said that when interpreting a statute, no sen-
tence, clause, or word should be rejected as meaningless or
superfluous if it can be avoided. See State v. Clemens, supra.Section 28-318(8)(a)(i) includes “force,” “threat of force,”
and “coercion” as separate manners of compelling submis-
sion. Because “force” and “threat of force” are both defined
in § 28-318(9) in terms of physical force, we determine that
“coercion” would be redundant and even superfluous in the
context of § 28-318(8)(a)(i) if it were limited to physical force.
Accordingly, we hold that “coercion” in § 28-318(8)(a)(i)
includes nonphysical force.
Having determined that “coercion” under § 28-318(8)(a)(i)
includes nonphysical forms of force, we consider whether the
evidence in this case supports a finding that McCurdy com-
pelled J.U. to submit to sexual penetration due to the use of
“coercion.” We conclude that the evidence in this case regard-
ing the history of McCurdy’s sexual abuse of J.U. in the years
prior to the time related to the charge of first degree sexual
assault, as well as evidence regarding McCurdy’s position of
authority and dominion within J.U.’s life and household, was
sufficient for the jury to find that at the times relevant to the
charge of first degree sexual assault, McCurdy compelled J.U.
to submit to sexual penetration by use of coercion, and there-
fore, the sexual acts were without consent.
In reaching this conclusion, we have looked to cases from
other jurisdictions in which courts have found that circum-
stances similar to those in the present case supported a con-
viction for sexual assault. We note in this regard that stat-
utes criminalizing rape or sexual assault in other states are
not generally uniform and that the wording of such statutes
varies among states. The cases discussed below generally
involve statutes that do not use the word “coercion.” However,
whether or not the relevant statutes in these cases use the same
wording and definitions as Nebraska’s sexual assault statutes,
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of this case support a finding of “coercion” under Nebraska’s
sexual assault statutes. The statutes commonly use the word
“force,” and the opinions often attempt to find whether the
circumstances establish “force.” As indicated below, the cases
do not limit “force” to physicality. We think that if the cir-
cumstances establish that “force” under another state’s statutes
includes nonphysical means, it tends to support a conclu-
sion that similar circumstances can establish “coercion” under
our statutes, because “coercion” includes nonphysical forms
of force.
As we have indicated, courts have recognized that a psy-
chological rather than physical force can support a conviction
for sexual assault. See State v. Watkins, 92 A.3d 172, 186 (R.I.
2014) (“psychological coercion is sufficient to prove the force
or coercion element of sexual assault, even in the absence
of physical force”). Such psychological force or coercion
has particularly been found in circumstances where abuse
is carried out by adult authority figures in family or house-
hold settings.
For example, in State v. Meyers, 799 N.W.2d 132 (Iowa
2011), the defendant was charged with, inter alia, sexual abuse
in the third degree; the alleged victim was the defendant’s step-
daughter who was 17 years old at the time of the alleged abuse.
The State in Meyers offered two alternative theories of sexual
abuse under the relevant Iowa statute—that the defendant per-
formed sex acts by force or “‘against the will’” of the victim
or, alternatively, that he performed sex acts at a time when the
victim was suffering from a mental defect or incapacity. 799
N.W.2d at 140.
In interpreting the “against the will” language of the stat-
ute, the Iowa Supreme Court stated, “Clearly, the ‘against
the will of another’ standard seeks to broadly protect persons
from nonconsensual sex acts, even under circumstances show-
ing the victim had no opportunity or ability to consent due to
the inherently coercive nature of the circumstances.” Meyers,
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Cite as 301 Neb. 343799 N.W.2d at 143 (emphasis supplied). The Iowa Supreme
Court noted that under the statute, “physical resistance is not
required ‘to establish that an act of abuse is committed by
force or against the will of a person’” and that instead, “‘the
circumstances surrounding the commission of the act’ [must]
be considered in determining whether the act was ‘by force or
against the will of the other.’” Id. at 142-43. In concluding that
the evidence in Meyers supported a finding that the sex acts
engaged in between the defendant and the victim were “‘by
force or against the will’” of the victim, the Iowa Supreme
Court noted evidence of the totality of the circumstances,
including, inter alia, “the disparity in age between [the defend­
ant] and [the victim], the background and history of their rela-
tionship,” and “the authority exercised by [the defendant].” 799
N.W.2d at 147.
The Iowa Supreme Court in Meyers also specifically con-
cluded that “psychological force or inability to consent based
on the relationship and circumstance of the participants may
give rise to a conviction under the ‘against the will’ element”
of sexual abuse. 799 N.W.2d at 146. The court looked to other
jurisdictions in considering whether “psychological force” can
establish sexual abuse. The court cited Com. v. Rhodes, 510
Pa. 537, 555, 510 A.2d 1217, 1226 (1986), in which the
Pennsylvania Supreme Court determined that the Pennsylvania
rape statute’s reference to “‘forcible compulsion’” included not
only physical force or violence, “but also moral, psychologi-
cal or intellectual force used to compel a person to engage in
sexual intercourse against that person’s will.” To determine if
force had been used, the Pennsylvania Supreme Court focused
on a totality of the circumstances analysis and cited various
factors, including:
the respective ages of the victim and the accused, the
respective mental and physical conditions of the victim
and the accused, the atmosphere and physical setting in
which the incident was alleged to have taken place, the
extent to which the accused may have been in a position
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tim, and whether the victim was under duress.
Id.In U.S. v. Davis, 875 F.3d 592, 596 (11th Cir. 2017), the
Court of Appeals for the 11th Circuit considered whether
a conviction under an Alabama statute criminalizing sexual
abuse by forcible compulsion was a “violent felony” for pur-
poses of sentence enhancement. After reviewing Alabama case
law, the 11th Circuit determined that the Alabama statute did
not necessarily require the use, attempted use, or threatened
use of physical force. The 11th Circuit relied on, inter alia,
Powe v. State, 597 So. 2d 721, 728 (Ala. 1991), in which the
Alabama Supreme Court concluded that “a jury could reason-
ably infer that [the defendant] held a position of authority and
domination with regard to his daughter sufficient to allow the
inference of an implied threat to her if she refused to comply
with his demands.” The Alabama court limited its holding in
Powe “to cases concerning the sexual assault of children by
adults with whom the children are in a relationship of trust”
and reasoned that such cases are distinct because of “the great
influence and control that an adult who plays a dominant role
in a child’s life may exert over the child” and that “[w]hen a
defendant who plays an authoritative role in a child’s world
instructs the child to submit to certain acts, an implied threat
of some sort of disciplinary action accompanies the instruc-
tion.” 597 So. 2d at 728-29.
In State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987),
the North Carolina Supreme Court emphasized the intrafa-
milial context when it determined that there was sufficient
evidence to establish the statutory requirement of “force.” The
court determined that “constructive force could be reasonably
inferred from the circumstances surrounding the parent-child
relationship,” and it noted that the victim “was conditioned
to succumb to defendant’s illicit advances at an age when he
could not yet fully comprehend the implications of defendant’s
conduct.” Id. at 47, 352 S.E.2d at 681. The court further noted
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Cite as 301 Neb. 343that the “incidents of abuse all occurred while the boy lived
as an unemancipated minor in defendant’s household, subject
to defendant’s parental authority and threats of disciplinary
action.” Id. at 47-48, 352 S.E.2d at 681. The court concluded
in Etheridge that in cases of this sort,
the parent wields authority as another assailant might
wield a weapon. The authority itself intimidates; the
implicit threat to exercise it coerces. Coercion, as state
above, is a form of constructive force. For this reason,
we hold that the state presented sufficient evidence from
which the jury could reasonably infer that defendant used
his position of power to force his son’s participation in
sexual acts.
319 N.C. at 48, 352 N.E.2d at 682.
The Ohio Supreme Court in State v. Eskridge, 38 Ohio St.
3d 56, 58-59, 526 N.E.2d 304, 306 (1988), “recognize[d] the
coercion inherent in parental authority when a father sex­
ually abuses his child” and concluded that under such cir-
cumstances, “[f]orce need not be overt and physically brutal,
but can be subtle and psychological.” We note that the Ohio
Supreme Court in State v. Schaim, 65 Ohio St. 3d 51, 55, 600
N.E.2d 661, 665 (1992), a case involving a victim who was
20 years old, distinguished Eskridge, which involved a young
victim. The court concluded that while a “threat of force can
be inferred from the circumstances surrounding sexual con-
duct, . . . a pattern of incest will not substitute for the element
of force where the state introduces no evidence that an adult
victim believed that the defendant might use physical force
against her.” However, Schaim was applying a statute that
required a showing that the defendant “‘compel[led] the other
person to submit by force or threat of force’” and that defined
“force” and “threat of force” in terms of physical force. 65
Ohio St. 3d at 54, 600 N.E.2d at 665.
In the cases discussed above, the courts were generally
dealing with statutes that required a showing of force and
the courts found that “force” could be shown by nonphysical
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Cite as 301 Neb. 343coercion under the relevant circumstances. By comparison,
Nebraska’s statute includes “coercion,” as well as “force,” and
as discussed above, we read “coercion” as a distinct means of
compelling a person to submit that does not necessarily require
a showing of physical force. We therefore think that under a
totality of the circumstances analysis, coercion within the con-
text of a family or household relationship between a minor and
an adult authority figure can support a finding that a defendant
compelled a victim to submit to sexual penetration by the use
of “coercion.”
The charge of first degree sexual assault in this case involved
McCurdy’s subjecting J.U. to sexual penetration when she was
over 16 years of age. McCurdy did not dispute that he had
sexual intercourse with J.U. when she was 16 and 17 years
old, and he admitted that at the time he was arrested, J.U. was
pregnant with his child. There was evidence that McCurdy had
sexually assaulted J.U. over a period of years prior to her turn-
ing 16. J.U. testified that when McCurdy first began sexually
assaulting her, she would tell him “‘no’” and try to push him
away but that she eventually stopped resisting, because “‘he
still did it anyway.’” See State v. McCurdy, 25 Neb. App. 486,
490, 908 N.W.2d 407, 412 (2018). She also testified that after
she turned 16 years old, she did not want to have sex with
McCurdy but she knew that resisting his advances had never
worked for her. We think that evidence of a history of sexually
assaulting J.U. combined with the authority McCurdy exerted
as an adult in J.U.’s household were sufficient to establish
“coercion” under § 28-318(8)(a)(i).
Given the foregoing, we determine that there was sufficient
evidence from which the jury could have found that McCurdy
subjected J.U. to sexual penetration “without consent”; spe-
cifically, he compelled J.U. to submit to sexual penetration
by use of coercion. We therefore conclude that the Court of
Appeals did not err when it determined that there was suffi-
cient evidence to support McCurdy’s conviction for first degree
sexual assault.
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Cite as 301 Neb. 343CONCLUSION
We find no error in the Court of Appeals’ disposition of
McCurdy’s assignments of error relating to (1) the admission
of expert testimony concerning the behaviors and testimonial
patterns of child sexual assault victims, (2) a claim of pros-
ecutorial misconduct, and (3) the admission of DNA evidence.
With regard to the sufficiency of the evidence to support
McCurdy’s conviction for first degree sexual assault of J.U.,
although our analysis differs from that of the Court of Appeals,
we agree with the Court of Appeals’ conclusion that there was
sufficient evidence to support the conviction. We therefore
affirm the Court of Appeals’ affirmance of McCurdy’s convic-
tions and sentences.
A ffirmed.
Freudenberg, J., not participating.