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State v. McCurdy

Court of Appeals of Nebraska

January 30, 2018

State of Nebraska, appellee,
v.
Michael W. McCurdy, appellant.

         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 determining 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 unreasonable 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 evidence 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.

         [25 Neb.App. 487] 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 preponderance 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 elements of the crime beyond a reasonable doubt.

         [25 Neb.App. 488] 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, Riedmann, and Arterburn, Judges.

          Arterburn, 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 enforcement, 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 abusing 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, [25 Neb.App. 489] 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 resisting 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. 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 [25 Neb.App. 490] sexual intercourse with her. She testified that she would tell McCurdy "no" and push him away, but that she was unable to stop McCurdy from having sexual intercourse with her. J.U. testified that she did not tell anyone what was happening because she was afraid she would get into trouble and no one would believe her.

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

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

         When J.U. was almost 15 years old, she, her mother, and her siblings moved into "the Sandstone house." McCurdy did not reside at this residence; however, he stayed overnight at the home on a regular basis, oftentimes without J.U.'s mother's knowledge. At the Sandstone house, J.U. slept in [25 Neb.App. 491] the basement on a futon. When McCurdy would sleep at the Sandstone house, he would typically sleep with J.U. on the futon. McCurdy had sexual intercourse with J.U. three to four times per week in her basement bedroom. In addition, McCurdy put his hands and mouth on her vagina. J.U. no longer resisted McCurdy's actions.

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

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

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

         When K.O. lived in the blue house, she was between the ages of 11 years old and 13 years old. She testified that while she lived in this house, McCurdy gave her a video game system as a present. He took her out of school so that they could play the game together all day and into the night. McCurdy then told K.O. to sleep in his bed so the younger children did not wake her up. McCurdy laid down with K.O. in the bed. K.O. testified that while they laid together, he attempted to "put[] his penis in [her] shorts." She pulled away from him [25 Neb.App. 492] and nothing further happened on this occasion. Subsequently, however, McCurdy asked K.O. to rub his penis and "scratch[]" his "balls." He would sometimes tell her to use lotion when she was touching his penis. Eventually, McCurdy put his penis in K.O.'s vagina. He then continued to have sexual intercourse with her twice per week. McCurdy also put his fingers in K.O.'s vagina.

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

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

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

         K.O. described three specific instances of sexual contact at the Sandstone house that she remembered. First, she described one occasion where McCurdy attempted to have her put her mouth on his penis, but she successfully resisted him. Then, she described an occasion where McCurdy put his fingers in her vagina while they were in the living room watching a [25 Neb.App. 493] 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 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 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 substance of this evidence will be detailed in our analysis below. 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 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.

         [25 Neb.App. 494] 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 ...


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