State v. McCurdy

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STATE v. McCURDY
Cite as 25 Neb. Ct. App. 486
State of Nebraska, appellee, v.
Michael W. McCurdy, appellant.
___ N.W.2d ___
Filed January 30, 2018. No. A-17-061.
1. Rules of Evidence: Appeal and Error. When the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
2. Trial: Rules of Evidence. A trial court exercises its discretion in deter-
mining whether evidence is relevant and whether its prejudicial effect
substantially outweighs its probative value.
3. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
a trial court’s ruling to admit or exclude an expert’s testimony for abuse
of discretion.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
5. Rules of Evidence. Under Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402
(Reissue 2016), irrelevant evidence is inadmissible.
6. Rules of Evidence: Words and Phrases. Under Neb. Evid. R. 401,
Neb. Rev. Stat. § 27-401 (Reissue 2016), relevant evidence means evi-
dence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence.
7. Evidence. Relevancy requires only that the degree of probativeness be
something more than nothing.
8. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2016), even relevant evidence is properly excluded if its
probative value is substantially outweighed by its potential for unfair
prejudice.
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9. Motions to Suppress: Constitutional Law: Appeal and Error. In
reviewing a motion to suppress a statement made to law enforcement
based on the claimed involuntariness of the statement, an appellate court
applies a two-part standard of review. With regard to historical facts, an
appellate court reviews the trial court’s findings for clear error. Whether
those facts suffice to meet the constitutional standards, however, is a
question of law, which an appellate court reviews independently of the
trial court’s determination.
10. Miranda Rights: Waiver: Proof. If a defendant seeks suppression of
a statement because of an alleged violation of Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the State must prove
that the defendant validly waived his or her Miranda rights by a prepon-
derance of the evidence.
11. Miranda Rights. The rule established in Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and its requirements are
met if a suspect receives adequate Miranda warnings, understands them,
and has an opportunity to invoke the rights before giving any answers
or admissions.
12. Constitutional Law: Police Officers and Sheriffs. The U.S.
Constitution does not require that the police supply a suspect with a
flow of information to help him calibrate his self-interest in deciding
whether to speak or stand by his rights.
13. Motions for Mistrial: Appeal and Error. The decision whether to
grant a motion for mistrial is within the discretion of the trial court, and
an appellate court will not disturb the ruling on appeal in the absence of
an abuse of discretion.
14. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial
misconduct in closing arguments, a court first determines whether the
prosecutor’s remarks were improper.
15. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does
not mislead and unduly influence the jury is not misconduct.
16. 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.
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STATE v. McCURDY
Cite as 25 Neb. Ct. App. 486
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
Robert W. Kortus, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Pirtle, R iedmann, and A rterburn, Judges.
A rterburn, Judge.
I. INTRODUCTION
Michael W. McCurdy was convicted by a jury 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. He appeals from his convictions here. On appeal,
McCurdy assigns numerous errors, including that the district
court erred in making certain evidentiary rulings, in overruling
his motion to suppress the statement he made to law enforce-
ment, and in denying his motion for a mistrial after the State
committed misconduct during its closing argument. McCurdy
also alleges that there was insufficient evidence to support his
conviction for first degree sexual assault. Upon our review, we
affirm McCurdy’s convictions.
II. BACKGROUND
The State filed a second amended information charging
McCurdy with five separate counts: three counts of first degree
sexual assault of a child, one count of first degree sexual
assault, and one count of intentional child abuse. Each of the
charges stemmed from the reports of the eldest daughters of
McCurdy’s ex-girlfriend that McCurdy had been sexually abus-
ing them for years.
Count I of the second amended information alleged that
McCurdy, being 19 years of age or older, did subject J.U.,
a person of less than 12 years of age, to sexual penetration.
Count II alleged that McCurdy, being 25 years of age or older,
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did subject J.U., a person who was at least 12 years of age
but less than 16 years of age, to sexual penetration. Count III
alleged that McCurdy subjected J.U. to penetration without
her consent or at a time when McCurdy knew or should have
known that J.U. was mentally or physically incapable of resist-
ing or appraising the nature of his conduct. Count IV alleged
that McCurdy, being 25 years of age or older, did subject K.O.,
a person who was at least 12 years of age but less than 16 years
of age, to sexual penetration. Count V alleged that McCurdy
knowingly and intentionally caused or permitted J.U. and/or
K.O. to be placed in a situation that endangered their lives or
physical or mental health, or placed them in a situation to be
sexually abused.
A jury trial was held in October 2016. At the trial, the
State’s key evidence was the testimony of both J.U. and K.O.
Because of the importance of this testimony, both to the State’s
case in chief and to the issues raised in this appeal, we outline
this evidence in some detail.
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. testi-
fied 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
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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 bed-
room. 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 contin-
ued 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
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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 inter-
course with anyone other than McCurdy. When McCurdy dis-
covered that J.U. was pregnant, he told her to tell her mother
that someone else was the father. J.U. testified that she fol-
lowed 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 testi-
fied 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 sys-
tem 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
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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 “pun-
ish” 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 “vio-
lent” 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 hap-
pening 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 rub-
bing 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 McCurdy put his fingers
in her vagina while they were in the living room watching a
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movie with her younger siblings. K.O. indicated that she and
McCurdy were under a blanket. Finally, she described an inci-
dent 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 experiences 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 wit-
ness 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 substance of this evidence will be detailed in our
analysis below. The State also offered into evidence numer-
ous 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 photo-
graphs had comments of a sexual nature electronically super-
imposed 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 intercourse after she turned 16 years
old. McCurdy contended 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 attacking the
credibility of J.U. and K.O. during their cross-examinations.
McCurdy pointed out numerous inconsistencies between J.U.’s
and K.O.’s trial testimony and their prior statements about the
sexual abuse.
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After hearing all of the evidence, the jury convicted McCurdy
of all five counts alleged in the second amended information.
The district court subsequently sentenced McCurdy to a total
of 95 to 115 years’ imprisonment.
McCurdy appeals his convictions here.
III. ASSIGNMENTS OF ERROR
On appeal, McCurdy assigns five errors, which we con-
solidate to four errors for our review. He first argues that
the district court erred in making certain evidentiary rulings.
Specifically, he asserts that the court erred in failing to further
redact the laboratory report concerning DNA testing that was
submitted into evidence. He also asserts that the court erred in
permitting the State’s expert witness to testify concerning the
credibility of the victims. Second, McCurdy argues that the
district court erred in finding that his statement to law enforce-
ment was knowingly and voluntarily given and in consequently
overruling his motion to suppress that statement. Third, he
argues that the district court erred in overruling his motion for
a mistrial after the State committed prosecutorial misconduct
during its closing argument. Finally, McCurdy argues that
there was insufficient evidence to convict him of count III, first
degree sexual assault.
IV. ANALYSIS
1. Evidentiary Rulings
On appeal, McCurdy alleges that the district court erred
in allowing “[i]nconclusive, [n]o-[c]onclusion DNA [t]esting
[r]esults” into evidence, brief for appellant at 21, and in allow-
ing the State’s “[e]xpert [w]itness to [t]estify as to the [c]red-
ibility and [a]ccuracy” of the victim’s in-court testimony, id.
at 25. Upon our review, we do not find that the court erred in
allowing into evidence either the DNA results or the testimony
of the expert witness.
(a) Standard of Review
[1-3] When the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
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we review the admissibility of evidence for an abuse of discre-
tion. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).
A trial court exercises its discretion in determining whether
evidence is relevant and whether its prejudicial effect substan-
tially outweighs its probative value. Id. In addition, an appel-
late court reviews a trial court’s ruling to admit or exclude an
expert’s testimony for abuse of discretion. State v. Braesch,
292 Neb. 930, 874 N.W.2d 874 (2016).
[4] An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. State v. Johnson, supra.
(b) DNA Evidence
Prior to the trial, McCurdy filed a motion in limine request-
ing that a laboratory report which provided the results of
DNA testing completed on items taken from the Sandstone
house be redacted prior to being submitted into evidence
and shown to the jury. Specifically, McCurdy asked that the
portions of the report which discussed “uninterpretable” or
“inconclusive” results be redacted because such information
was not relevant. At a hearing on McCurdy’s motion in limine,
the State agreed to redact much of the information McCurdy
objected to. However, the parties disagreed about whether
certain information contained in the report had to be redacted.
Included within the disputed information were portions of the
report’s appendix, which detailed the known DNA profiles
for McCurdy, J.U., and K.O., and which listed the specific
alleles that were taken from samples of objects located in
the Sandstone house. In particular, McCurdy asked that the
State redact the list of alleles found within item 5C, which
was K.O.’s mattress. Ultimately, the district court allowed this
information to remain in the report when it was submitted to
the jury.
During the trial, the State offered the testimony of the tech-
nician who performed the DNA testing in this case, Heidi Jo
Young Ellingson. During her testimony, Ellingson provided a
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brief explanation of how DNA testing is performed. In addition,
she explained the results delineated in her report. Ellingson
indicated that K.O.’s DNA was only found on one item tested,
item 5C, which was K.O.’s mattress. In comparison, Ellingson
testified that J.U.’s and McCurdy’s DNA was found together
on multiple items. The DNA report indicates that on item 5C,
“A mixture of at least three individuals was detected in which
a major female contributor could be determined.” The major
female contributor was identified as K.O. The report also indi-
cates that McCurdy was excluded as a major contributor to the
DNA on K.O.’s mattress.
Ellingson went on to explain the appendix on the report.
The appendix details the specific alleles that were found
on each item tested. The alleles found on the tested items
can then be compared to the reference samples provided by
McCurdy, J.U., and K.O. Ellingson reiterated that the appen-
dix demonstrates that the DNA testing revealed multiple items
with J.U.’s and McCurdy’s DNA together and only one item
with K.O.’s DNA. A careful review of the appendix, as it
relates to K.O.’s mattress, reveals that the alleles found on
the sample from K.O.’s mattress match K.O.’s DNA profile at
each locus. Some of the alleles also match McCurdy’s DNA
profile. However, McCurdy’s full DNA profile was not found
on K.O.’s mattress. His known alleles are not found at some
loci, and alleles not matching either K.O. or McCurdy are
found at other loci.
On appeal, McCurdy alleges that the district court erred
in failing to redact the information about item 5C which was
included in the DNA report’s appendix. McCurdy argues that
this information was not relevant and, furthermore, “could be
interpreted to show the presence of [his] DNA on K.O.’s mat-
tress, [and] that result could be prejudicial to the defense.”
Brief for appellant at 24. Upon our review, we do not find
that the district court abused its discretion in failing to further
redact the DNA report to exclude the results of the testing of
K.O.’s mattress.
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[5-7] Under Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402
(Reissue 2016), irrelevant evidence is inadmissible. State v.
Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015). Under Neb.
Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2016), relevant
evidence means evidence having any tendency to make the
existence of any fact that is of consequence to the determina-
tion of the action more probable or less probable than it would
be without the evidence. State v. Johnson, supra. Relevancy
requires only that the degree of probativeness be something
more than nothing. State v. Johnson, supra. We find that the
evidence demonstrating that K.O.’s DNA is present on the mat-
tress she said she slept on in the basement of the Sandstone
house to be at least minimally relevant to the issues presented
at trial. Such evidence corroborates K.O.’s testimony that she
slept in the basement in her bed while J.U. and McCurdy slept
in J.U.’s bed.
[8] However, under Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2016), even relevant evidence is properly
excluded if its probative value is substantially outweighed
by its potential for unfair prejudice. State v. Johnson, supra.
McCurdy alleges that the evidence contained in the appen-
dix regarding K.O.’s mattress “could be prejudicial” to him
if the jurors utilized the information to try and conclude that
McCurdy’s DNA was present along with K.O.’s DNA on the
mattress. Brief for appellant at 24.
As we explained above, the DNA report specifically indi-
cates that K.O. was identified as a major contributor to the
DNA sample taken from her mattress. It also specifically indi-
cates that McCurdy was excluded as a major contributor to
the DNA sample on the mattress. Ellingson’s testimony about
K.O.’s mattress does not hint or suggest that McCurdy’s DNA
could also be on the mattress. Her testimony was limited to
the conclusion that K.O.’s DNA was found on the mattress.
McCurdy’s assertion that the jury could have concluded that
his DNA was also on the mattress by utilizing the information
contained in the appendix is not supported by the evidence and
is entirely speculative.
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A thorough reading of the information in the appendix
reveals that the alleles found on the sample from K.O.’s
mattress match K.O.’s DNA profile at each locus. Some of
the alleles also match McCurdy’s DNA profile. However,
McCurdy’s DNA profile is not an exact match at each locus.
Specifically, McCurdy’s DNA profile does not match the
sample taken from K.O.’s mattress at six separate loci. If
the jurors had done a careful review of the appendix, their
analysis should not have prejudiced McCurdy. Rather, the
analysis would have revealed that it is not at all clear whether
McCurdy’s DNA was on the mattress. The DNA on the
mattress cannot be definitively linked to anyone but K.O.
Moreover, it is entirely speculative to assume that the jurors
completed this analysis, especially given the other evidence
presented in the report and in Ellingson’s testimony, which
did not provide any indication that McCurdy’s DNA was also
present on the mattress.
Although we conclude that the evidence in the report’s
appendix which demonstrated that K.O.’s DNA was found on
her mattress was only minimally probative, we also conclude
that the evidence was not prejudicial to McCurdy. This evi-
dence does not link McCurdy to the mattress. As such, we do
not find that the district court abused its discretion in failing
to further redact the DNA report by omitting item 5C from
the appendix.
(c) Expert Testimony
Prior to trial, McCurdy filed a motion requesting that
the district court exclude expert testimony at trial regard-
ing “whether [J.U. could] consent to sexual intercourse with
[McCurdy] after she turns 16 if she has been in a sexual
relationship with [him] prior to her 16th birthday.” A hearing
was held on the motion. At the hearing, the State offered the
deposition testimony of Barbara Sturgis, Ph.D., a licensed psy-
chologist. Her deposition testimony included a discussion of
delayed or partial disclosures by child sexual assault victims.
In addition, she discussed the theory of “learned helplessness”
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as it relates to child sexual assault victims. McCurdy’s pri-
mary objection to Sturgis’ testimony concerned her discussion
of learned helplessness. He argued that this theory had not
been adequately studied in human populations, “especially the
sub-set at issue in this case which are victims of child sexual
assault.” Ultimately, the district court determined that Sturgis
would not be permitted to testify regarding the learned help-
lessness theory. However, she was permitted to testify about
disclosure patterns in child sexual assault victims.
At trial, Sturgis testified that, in general, “[K]ids don’t
tell about abuse or sexual abuse right away. When they do
tell they don’t tell everything and many never tell at all.”
She explained that there were various reasons for children’s
delayed or nondisclosure of sexual abuse, including a lack of
understanding about what is happening, feelings of guilt or
shame, and fear of retribution. In addition, she testified that
a child victim of sexual abuse may outwardly appear to be
normal and happy.
The State asked Sturgis about the presence of inconsist­
encies in a victim’s various interviews and trial testimony.
McCurdy objected to this line of questioning, arguing that the
State was attempting to have Sturgis bolster the credibility of
J.U. and K.O. The court overruled the objection, and Sturgis
testified, generally, about the potential veracity of inconsist­
ent statements:
The research into this area [sic] certainly consistent
statements are highly accurate from one time to the next.
Even forgotten statements and reminiscences[,] ones that
are remembered the first time not the second time, or not
remembered the first time and the second time are also
highly accurate in general. And contradictions are at most
accurate only half the time because [sic] has to be one
way or the other.
Sturgis also testified that she had never met or spoken to
J.U. or K.O. She had not read any police reports about this case
and was only “[r]oughly” familiar with the facts of the case.
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Sturgis indicated that everything that she testified to was based
on general theories and knowledge within her field.
On appeal, McCurdy alleges that the district court erred in
permitting Sturgis to testify about the veracity of inconsistent
statements. He argues that such testimony “ascribes levels of
accuracy to a child victim’s testimony when that testimony is
different than statements made before trial to investigators.”
Brief for appellant at 30. He also argues that Sturgis’ testimony
on this topic bolstered the credibility of J.U. and K.O. Upon
our review, we do not find that the court abused its discretion
in permitting Sturgis’ testimony.
The primary purpose of Sturgis’ testimony, as limited after
McCurdy’s pretrial motion in limine, was to provide the jury
with background concerning child victims and how they differ
from adult victims. The Nebraska Supreme Court has previ-
ously approved of the use of the type of testimony given by
Sturgis. See, e.g., State v. Fleming, 280 Neb. 967, 792 N.W.2d
147 (2010). The court has noted that this type of evidence is
helpful because “‘“[f]ew jurors have sufficient familiarity with
child sexual abuse to understand the dynamics of a sexually
abusive relationship,” and “the behavior exhibited by sexually
abused children is often contrary to what most adults would
expect.”’” Id. at 973, 792 N.W.2d at 154, quoting State v.
Roenfeldt, 241 Neb. 30, 486 N.W.2d 197 (1992).
McCurdy alleges that the State drifted from Sturgis’ dis-
cussion about disclosure patterns in child victims of sexual
assault when it asked her about the veracity of inconsistent
statements. However, a reading of the entirety of Sturgis’
testimony reveals that the State’s questions about inconsistent
statements was merely an extension of Sturgis’ previous tes-
timony about how and why child victims report sexual abuse
and why they may not report or remember exact details of
their abuse. Just prior to the State’s specific questions about
inconsistent statements, Sturgis testified about why child vic-
tims may not be able to recall exact details of each instance
of abuse or why they may confuse instances when recalling
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the facts years later. Sturgis had also previously testified about
why child victims may not disclose certain “icky things” about
the abuse when recounting the sexual abuse. When we con-
sider this testimony, along with Sturgis’ testimony that child
victims may provide inconsistent statements if they are asked
different questions in different interviews and that inconsistent
statements are not necessarily inaccurate statements, we do
not find that Sturgis drifted from the primary purpose of her
testimony. All of Sturgis’ testimony related to disclosure pat-
terns in child victims.
Moreover, we note that in Sturgis’ testimony, she specifi-
cally indicated that she had never interviewed J.U. or K.O. and
that she knew very little about the actual facts of this case.
Nothing in Sturgis’ testimony was directed at these particular
witnesses, but, rather, her testimony was a discussion of child
witnesses in general. At no point did Sturgis ever come close to
opining on whether J.U. or K.O. had been sexually assaulted,
nor did she ever come close to opining on whether she believed
the allegations made by J.U. or K.O.
We find that the district court did not err in permitting
Sturgis to testify about the potential veracity of inconsistent
statements. McCurdy’s assertion on appeal has no merit.
2. Motion to Suppress
McCurdy alleges that the district court erred in admitting
into evidence McCurdy’s interview with law enforcement. He
alleges that he did not validly waive his right against self-
incrimination prior to making a statement. Upon our review,
we affirm the decision of the district court to admit McCurdy’s
interview into evidence.
(a) Standard of Review
[9] In reviewing a motion to suppress a statement made
to law enforcement based on the claimed involuntariness of
the statement, an appellate court applies a two-part standard
of review. With regard to historical facts, an appellate court
reviews the trial court’s findings for clear error. Whether those
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facts suffice to meet the constitutional standards, however, is
a question of law, which an appellate court reviews indepen-
dently of the trial court’s determination. See State v. Grimes,
23 Neb. Ct. App. 304, 870 N.W.2d 162 (2015).
(b) Analysis
After J.U. reported to police that McCurdy had been sex­
ually abusing her and that she was pregnant with his child,
police went with J.U. to the Sandstone house. When police
arrived at the house, they did an initial search to determine if
McCurdy was present. They did not find him upon this initial
search. However, later, they found McCurdy hiding in the
downstairs bathroom. He was hiding in the shower “curled
up in a little ball.” After the police located McCurdy, he was
taken to the police station where he was interviewed by Sgt.
Ben Miller.
Prior to Sergeant Miller’s asking McCurdy any questions
about the sexual assault investigation, he advised McCurdy
of his Miranda rights. After informing McCurdy of his rights,
Sergeant Miller asked him: “Okay, and then knowing your
rights in this matter, are you willing to answer some questions
or—or make, talk to me about, basically about what’s goin’
on? That okay with you?” The following exchange between
Sergeant Miller and McCurdy then took place:
MICHAEL MCCURDY: I don’t know what’s going on.
I’ve been sittin’ here.
....
[SERGEANT] MILLER: If—if you don’t want to, I
can’t force ya to answer somethin’ or talk to me, but in
order for us to even talk about, why we’re here, I have
to let you know these things and it’s gotta be okay with
you that we, that we talk about it. Okay? And I, I’m just
letting you know that it’s your choice if you don’t wanna
know what’s going on, that’s your prerogative, but I
would imagine that you would want to know what, why
you’re down here. Is it okay if you and I talk?
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MICHAEL MCCURDY: It’s okay.
[SERGEANT] MILLER: Is that yes?
MICHAEL MCCURDY: Yeah, yes.
[SERGEANT] MILLER: Okay. I’m just gonna have
you sign right here. You can read these. These are the
quest—these are the things I read you. These are your
answers and if that’s okay with you, I’ll just have you
sign right there. It’s just saying that I read that to you,
you understand those things, and that it’s okay for us to
have a conversation. And it would just be where, right
here . . . .
MICHAEL MCCURDY: . . . You’re not gonna tell me
why I’m here without signing this?
[SERGEANT] MILLER: Well, you don’t have to sign
it if you don’t want to. I—I’m just . . .
MICHAEL MCCURDY: I don’t understand the . . .
[SERGEANT] MILLER: What don’t you understand?
I’ll explain it to you.
MICHAEL MCCURDY: Why do you need, why do
you need this?
[SERGEANT] MILLER: It’s just a formality that we
go through. That’s all that it is because you were brought
down here in a police car, uhm, I—it’s just somethin’ that
our department has us do. It’s all that it is. I pretty much
give that to everybody that I talk to. Do you have any
questions about that? ’Cause I’d be, I mean I’m, I’m not
tryin’ to hide anything from you here I’m just, I wanna
make sure you understand.
During Sergeant Miller’s last statement, McCurdy signed the
form acknowledging that he had been read his rights and indi-
cating his decision to speak with Sergeant Miller. Their discus-
sion then continued, as follows:
MICHAEL MCCURDY: I don’t know, I just, uhm, I’ve
never been here.
[SERGEANT] MILLER: Okay, and if you have ques-
tions just ask me. Okay? I—I will do my best to answer
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’em, uhm, I’ll, it’s important for me, that you understand
I—I’ll be as honest as I can with you and tell you what
I can. There’s just some things I, I may not be able to
answer for you and I’ll tell you that. Okay? Uhm, but
whenever I talk to people it’s important for me that you
understand I’m not here to try to hide things from you.
I’m not here to try to lie to you about things. My belief is
if, I treat you with respect I hope that you’ll do the same
to me. Okay? Uhm, because I don’t wanna waste your
time any more than you probably wanna be wasting my
time, and, so as long as, you know, we’re good with that
things will go, go fairly well here. Okay?
After this exchange, Sergeant Miller began asking McCurdy
about the events of that night and about his relationship
with J.U. and K.O.’s mother. Then, Sergeant Miller informed
McCurdy that J.U. had told police that McCurdy had been
sexually abusing her. McCurdy denied ever having sexual con-
tact with J.U. When Sergeant Miller informed McCurdy that
J.U. was pregnant again and that DNA testing was going to be
conducted to determine the father, McCurdy stated, “I don’t
have anything else to say.”
Prior to trial, McCurdy filed a motion to suppress his state-
ment to Sergeant Miller. A hearing was held on the motion.
After this hearing, the district court entered an order noting
that the State conceded that any statement McCurdy made after
he told Sergeant Miller that he did not have anything else to
say should be suppressed as an invocation of McCurdy’s right
to remain silent. The court found that the remainder of the
statement was admissible. Specifically, the court found that
McCurdy had knowingly, intelligently, and voluntarily waived
his Miranda rights:
It is clear to the court that [McCurdy’s] statements indi-
cating he did not understand refer to him not knowing
why he had been brought to the police station for ques-
tioning. Neither party pointed the court to any authority
indicating police have to advise a suspect of the nature
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of the investigation prior to giving the suspect Miranda
warnings and/or obtaining a waiver of Miranda rights.
The court can’t say [Sergeant Miller’s] refusal to tell
[McCurdy] why he was there amounted to coercion.
Once [McCurdy] was advised of why he was there, he
continued to speak to [Sergeant Miller] and answer ques-
tions. Again, [McCurdy] ultimately exercised his right to
remain silent making it clear that he understood his rights,
the consequences of waiving those rights, and that he
could invoke his right to remain silent.
On appeal, McCurdy alleges that the district court erred in
denying his motion to suppress the entirety of his statement
to Sergeant Miller. Specifically, he asserts that he did not val-
idly waive his Miranda rights prior to making a statement. He
argues that Sergeant Miller “induce[d]” and compelled him to
make a statement by withholding information from him until
he agreed to talk. Brief for appellant at 36.
[10,11] Miranda warnings are “‘“an absolute prerequisite
to interrogation” . . . and “fundamental with respect to the
Fifth Amendment privilege.”’” State v. Burries, 297 Neb.
367, 388, 900 N.W.2d 483, 503 (2017), quoting Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966). If a defendant seeks suppression of a statement
because of an alleged Miranda violation, the State must prove
that the defendant validly waived his or her Miranda rights by
a preponderance of the evidence. State v. Burries, supra. We
look to the totality of the circumstances to determine whether
a defendant validly waived his or her Miranda rights during
an interrogation:
Miranda rights can be waived if the suspect does so
knowingly and voluntarily. A valid Miranda waiver must
be voluntary in the sense that it was the product of a free
and deliberate choice and made with a full awareness of
both the nature of the right being abandoned and the con-
sequences of the decision to abandon it. In determining
whether a waiver is knowingly and voluntarily made, a
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court applies a totality of the circumstances test. Factors
to be considered include the suspect’s age, education,
intelligence, prior contact with authorities, and conduct.
State v. Goodwin, 278 Neb. 945, 956, 774 N.W.2d 733, 743
(2009). “‘The Miranda rule and its requirements are met if
a suspect receives adequate Miranda warnings, understands
them, and has an opportunity to invoke the rights before giving
any answers or admissions.’” State v. Burries, 297 Neb. at 389,
900 N.W.2d at 504, quoting Berghuis v. Thompkins, 560 U.S.
370, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010).
Before questioning McCurdy about the sexual assault alle-
gations, Sergeant Miller read him the following Miranda
advisements: “You have the right to remain silent, not make
any statements, or answer any of my questions”; “[a]nything
you may say, can be, and will be used against you in a court
of law”; “[y]ou have the right to talk to a lawyer before
answering questions and have a lawyer with you during ques-
tioning”; and “[i]f you cannot afford a lawyer, you have the
right to have a lawyer appointed for you, prior to question-
ing, at no cost to you.” After each statement, Sergeant Miller
asked McCurdy if he understood and McCurdy indicated
his understanding.
McCurdy acknowledges that he was informed of his
Miranda rights. However, he asserts that he informed Sergeant
Miller that he did not understand what was to happen during
the interrogation, nor did he understand why he was there. He
further asserts that Sergeant Miller’s refusal to inform him of
why he was there before he agreed to answer any questions
amounted to “unconstitutional inducement.” Brief for appel-
lant at 36.
Upon our review of McCurdy’s statement to Sergeant
Miller, there is no indication that McCurdy did not understand
his Miranda rights. He indicated a clear understanding of each
right as it was read to him. Moreover, only a few minutes after
Sergeant Miller began asking McCurdy about his relation-
ship with J.U., McCurdy validly invoked his right to remain
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silent and to terminate any further questioning. This action
indicates that McCurdy had a clear understanding of his
Miranda rights.
We agree with McCurdy that Sergeant Miller specifically
indicated that he would not explain why McCurdy was present
at the police station until McCurdy agreed to talk to Sergeant
Miller. However, we disagree with McCurdy’s assertion that
Sergeant Miller’s withholding of that information negated the
voluntariness of McCurdy’s subsequent statement. Contrary to
McCurdy’s assertion on appeal, Sergeant Miller did not have
to inform McCurdy of the allegations against him in order to
ensure that his waiver of rights was voluntarily given. Rather,
Sergeant Miller only had to inform McCurdy of his Miranda
rights and ensure that McCurdy understood those rights.
[12] The U.S. Supreme Court has previously held, “‘[W]e
have never read the Constitution to require that the police sup-
ply a suspect with a flow of information to help him calibrate
his self-interest in deciding whether to speak or stand by his
rights.’” Colorado v. Spring, 479 U.S. 564, 576-77, 107 S.
Ct. 851, 93 L. Ed. 2d 954 (1987). The Court went on to state,
“Accordingly, the failure of the law enforcement officials to
inform [the defendant] of the subject matter of the interroga-
tion could not affect [the defendant’s] decision to waive his
Fifth Amendment privilege in a constitutionally significant
manner.” Id., 479 U.S. at 577.
Additionally, we note that contrary to McCurdy’s assertions
during the interview with Sergeant Miller and on appeal, there
is evidence to suggest that McCurdy did, in fact, know why
he was being questioned before Sergeant Miller informed him
of the sexual assault allegations. McCurdy was found hid-
ing in the shower in the basement of the Sandstone house.
Before police found him, McCurdy had apparently began
steps to wash all of J.U.’s bedding, and when J.U. had spoken
to McCurdy prior to talking with police, she had indicated
to him that she had done something that would make him
hate her.
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Given the totality of the circumstances surrounding
McCurdy’s waiver of his Miranda rights and his decision
to speak with Sergeant Miller, we find no indication that
McCurdy was coerced or induced into making a statement.
There is nothing to indicate that McCurdy’s will was over-
borne or that his waiver of his rights was not knowingly and
voluntarily given. We affirm the decision of the district court
to admit into evidence a redacted version of McCurdy’s state-
ment to police.
3. Motion for Mistrial
McCurdy alleges that the district court erred in overruling
his motion for a mistrial after the State committed prosecuto-
rial misconduct in its closing arguments. Upon our review, we
find that the district court did not abuse its discretion in deny-
ing the motion for a mistrial.
(a) Standard of Review
[13] The decision whether to grant a motion for mistrial is
within the discretion of the trial court, and an appellate court
will not disturb the ruling on appeal in the absence of an abuse
of discretion. State v. Goynes, 278 Neb. 230, 768 N.W.2d
458 (2009).
(b) Analysis
During the State’s closing arguments, McCurdy objected to
the following statements made by the prosecutor:
You know, [the] State is going [to] digress for a second.
People are different and people react to different things.
Now [J.U.], you saw her. She is a broken young woman,
broken young woman. Not a fighter. He broke her. And
when she finally has the courage to say what happened,
her worst nightmares came to fruition. Right?
Why don’t people report? . . . Sturgis told you, you
know, people don’t report because they are afraid they are
not going to be believed. They are afraid to go through
the produces [sic] of getting justice. And you saw that
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play out in this courtroom, what that can do to a person.
You saw her called a liar by . . . McCurdy’s attorney. You
saw her words twisted.
McCurdy argued that the State’s comments were improper
because they insinuated that J.U. should not have had to go
through the legal process and invoked sympathy for J.U. The
prosecutor explained that his comments were merely meant to
explain J.U.’s “demeanor on the stand.” The court overruled
McCurdy’s objection and allowed the prosecutor to proceed
with his closing. The prosecutor continued to try to explain
J.U.’s demeanor on the stand: “Her words tried to be twisted.
She was bullied. But, you saw this girl, this broken girl there.
The State is asking you to understand why she was like that.
Okay. The fear of people going through the process, and you
understand why.”
After the prosecutor finished his argument, McCurdy made
a motion for a mistrial. He argued that the prosecutor commit-
ted misconduct:
Talking about [J.U.] having to go through the legal proc­
ess and having to come to court. We believe it is improper
to allege that she had to come through the legal process
and go to court and it is an infringement on my client’s
right to a fair trial and demand a jury trial to go through
the process.
Also, Your Honor, the jury sympathizes, that it is
unduly prejudicial for the jury to hear that, that they will
sympathize that she had to go through the process. Also
gives an inference that he does not have a right to go
through the trial and make her go through this.
The district court overruled McCurdy’s motion for a mistrial.
On appeal, McCurdy asserts that the district court erred in
overruling his motion for a mistrial. McCurdy alleges that the
prosecutor committed misconduct by commenting on his deci-
sion to exercise his right to a jury trial and the effect that deci-
sion had on J.U. He also alleges that the prosecutor improperly
“generated sympathy” for J.U. and criticized defense counsel
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when the prosecutor stated that defense counsel had “bullied”
J.U. Brief for appellant at 43.
[14,15] Generally, in assessing allegations of prosecuto-
rial misconduct in closing arguments, a court first determines
whether the prosecutor’s remarks were improper. State v.
Balvin, 18 Neb. Ct. App. 690, 791 N.W.2d 352 (2010). A prosecu-
tor’s conduct that does not mislead and unduly influence the
jury is not misconduct. State v. McSwine, 292 Neb. 565, 873
N.W.2d 405 (2016). But if we conclude that a prosecutor’s acts
were misconduct, we next consider whether the misconduct
prejudiced the defendant’s right to a fair trial. Id.
Upon our review of the entirety of the State’s closing argu-
ments, we do not find that the prosecutor’s remarks about
J.U.’s struggles with the legal process constituted prosecutorial
misconduct. While we agree with McCurdy’s general asser-
tion that a prosecutor should not comment about a criminal
defendant’s decision to exercise his right to a jury trial, we do
not find that the prosecutor’s comments about J.U.’s struggles
improperly referenced McCurdy’s right to a trial. Instead, when
we read the prosecutor’s closing arguments in light of the evi-
dence presented at trial, and particularly in light of J.U.’s direct
and cross-examinations, we understand the prosecutor’s com-
ments to be an explanation of J.U.’s demeanor on the stand.
During J.U.’s trial testimony, she provided inconsistent
answers to questions posed by the State and by defense coun-
sel. In addition, defense counsel brought out multiple incon-
sistencies between J.U.’s testimony at trial and her statements
during previous interviews. Defense counsel accused J.U. of
being untruthful and insinuated that she was making up the
allegations of sexual abuse. The record reveals that J.U. was
very emotional throughout her testimony, and particularly dur-
ing cross-examination. The prosecutor’s comments about J.U.
during closing arguments appear to be an attempt to try to
rehabilitate J.U.’s testimony and to explain the inconsist­encies
in her testimony. The prosecutor did not directly comment
about McCurdy’s decision to go to trial, and how that affected
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J.U., but, rather, he commented on J.U.’s struggles with the
legal process as a whole. The prosecutor’s comment that J.U.
was “a broken young woman,” in the context of the entire clos-
ing argument, does not appear to be a plea to the jury’s sym-
pathies. Instead, it appears to be a way of explaining why J.U.
may have acquiesced to defense counsel’s accusations during
the cross-examination.
In light of J.U.’s testimony at trial, we cannot say that the
prosecutor’s comments about her struggles with the legal proc­
ess during closing argument were improper. The comments
were not meant to mislead or unduly influence the jury. Instead,
the comments were an attempt to rehabilitate the testimony of
a witness who provided inconsistent testimony. As a result, we
do not find that the district court abused its discretion in deny-
ing McCurdy’s motion for a mistrial.
4. Sufficiency of Evidence
McCurdy argues the State failed to present sufficient evi-
dence to convict him of count III, first degree sexual assault
on J.U. Upon our review, we conclude that the evidence was
sufficient to support the conviction.
(a) Standard of Review
[16] 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. Mora, 298 Neb. 185, 903
N.W.2d 244 (2017).
(b) Analysis
Count III of the second amended information alleged
that McCurdy committed first degree sexual assault on J.U.
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pursuant to Neb. Rev. Stat. § 28-319 (Reissue 2016). Section
28-319(1) provides, in pertinent part:
Any person who subjects another person to sexual pen-
etration (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 . . . is guilty of sexual assault
in the first degree.
In Neb. Rev. Stat. § 28-318(8)(a) (Reissue 2016), “[w]ithout
consent” is defined to mean:
(i) The victim was compelled to submit due to the use
of force or threat of force or coercion, or (ii) the victim
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.
Notably, § 28-318(8)(c) provides, “A victim need not resist
verbally or physically where it would be useless or futile to
do so[.]”
McCurdy does not dispute that he engaged in sexual inter-
course with J.U. after she turned 16 years old. In fact, at trial,
he stipulated that J.U. was pregnant with his child at the time
he was arrested. As such, McCurdy’s argument on appeal con-
cerns only whether the State sufficiently proved that J.U. did
not consent to having sexual intercourse with him after she
turned 16 years old, as was alleged in count III of the informa-
tion. He asserts:
The evidence is that [J.U.] did not resist sexual activ-
ity during the ages of 16 and 17. There is evidence that
she even initiated sexual activity. There is no evidence
that J.U. was compelled by threat of force to have sex.
There is no evidence that she expressed a lack of consent
through either word or conduct.
Brief for appellant at 48.
In its brief on appeal, the State asserts that there was suf-
ficient evidence presented at trial to demonstrate that McCurdy
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committed first degree sexual assault, as alleged in count III of
the information. Specifically, the State asserts that the evidence
presented at trial supports a finding that McCurdy knew or
should have known that J.U. was incapable of consenting when
she was 16 years old because of the prior years of sexual abuse
and manipulation she suffered at his hands. In addition, the
State asserts that the evidence presented supports a finding that
prior to turning 16 years old, J.U. had repeatedly physically
and verbally resisted McCurdy’s sexual advances without suc-
cess and that, as a result, by the time she turned 16 years old,
any further resistance to McCurdy “would have been useless
and futile.” Brief for appellee at 26.
Upon our review of the record, we conclude that, at a
minimum, there was sufficient evidence presented at trial to
demonstrate that in the years McCurdy subjected J.U. to sexual
contact prior to her 16th birthday, he had never respected J.U.’s
repeated physical or verbal resistance to his sexual advances.
As such, by the time J.U. was 16 years old, it was clear to her
that any further resistance would have been futile.
At trial, J.U. testified that when McCurdy first began sex­
ually assaulting her, she would tell him “no” and try to push
him away. She also testified that her active resistance did not
stop him from having sexual intercourse with her. J.U. testi-
fied that as the sexual assaults continued, she would still try to
push McCurdy away, but that she stopped saying “no,” because
he would “do it anyway.” Eventually, J.U. testified that she
stopped resisting the abuse altogether because “he still did it
anyway.” J.U. also testified that after she turned 16 years old,
McCurdy continued to have sexual intercourse with her. She
testified that she did not want to have sex with McCurdy and
never considered herself to be in a relationship with McCurdy.
She also testified that saying “no” would not have made
McCurdy stop. She testified that resisting McCurdy’s sexual
advances had never worked for her.
J.U. also testified that she told McCurdy that she loved him
and that she sent him “selfies” of herself in her underwear,
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Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. McCURDY
Cite as 25 Neb. Ct. App. 486
because that is what McCurdy asked her to do. She also admit-
ted during cross-examination that when McCurdy had sent her
a text message asking to have sex with her when she came
home from work, she had agreed. However, she explained her
actions by stating that she was only telling McCurdy “what he
wanted to hear.” She also again reiterated that McCurdy would
not take no for an answer.
Based 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.
V. CONCLUSION
Upon our review, McCurdy’s convictions and sentences are
in all respects affirmed.
A ffirmed.