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
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.
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
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
Rules of Evidence. Under Neb. Evid. R. 402,
Neb. Rev. Stat. § 27-402 (Reissue 2016), irrelevant
evidence is inadmissible.
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.
Evidence. Relevancy requires only that the
degree of probativeness be something more than nothing.
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
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.
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.
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.
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.
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
Trial: Prosecuting Attorneys. In assessing
allegations of prosecutorial misconduct in closing arguments,
a court first determines whether the prosecutor's remarks
Trial: Prosecuting Attorneys: Juries. A
prosecutor's conduct that does not mislead and unduly
influence the jury is not misconduct.
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.
Neb.App. 488] Appeal from the District Court for Lancaster
County: Darla S. Ideus, Judge. Affirmed.
W. Kortus, of Nebraska Commission on Public Advocacy, for
Douglas J. Peterson, Attorney General, and Austin N. Relph
Pirtle, Riedmann, and Arterburn, Judges.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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