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.
___: ___. 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.
Statutes. Statutory language is to be given
its plain and ordinary meaning.
When interpreting a statute, no sentence, clause, or word
should be rejected as meaningless or superfluous if it can be
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, Riedmann, and Arterburn, Judges, on appeal thereto
from the District Court for Lancaster County, Darla S. Ideus,
Judge. Judgment of Court of Appeals affirmed.
W. Kortus, of Nebraska Commission on Public Advocacy, for
Neb. 344] Douglas J. Peterson, Attorney General, and Austin
N. Relph for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
W. McCurdy was convicted of three counts of first degree
sexual assault of a child, one count of first degree sexual
assault, and one count of intentional child abuse following a
jury trial in the district court for Lancaster County. On
appeal, the Nebraska Court of Appeals rejected McCurdy's
assignments of error and affirmed his convictions and
sentences. State v. McCurdy, 25 Neb.App. 486, 908
N.W.2d 407 (2018).
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.
five counts charged against McCurdy arose from allegations
that over a period of years, he sexually abused his former
girlfriend's two eldest daughters, J.U. and K.O. In three
charges of first degree sexual assault of a child, the State
alleged that McCurdy had (1) subjected J.U. to sexual
penetration when she was under 12 years of age, (2) subjected
J.U. to sexual penetration when she was at least 12 years of
age but less than 16 years of age, and (3) subjected K.O. to
[301 Neb. 345] sexual penetration when she was at least 12
years of age but less than 16 years of age. In the charge of
first degree sexual assault wherein the charge did not
involve a "child" and is the subject of our
analysis below, the State alleged that McCurdy had subjected
J.U. to penetration without her consent or when he knew or
should have known that J.U. was mentally or physically
incapable of resisting or appraising the nature of his
conduct; this charge of first degree sexual assault related
to a time period when J.U. was over 16 years of age. The
charge of intentional child abuse involved allegations
regarding both J.U. and K.O.
charges against McCurdy were tried to a jury in October 2016.
Both J.U. and K.O. testified at the trial. The Court of
Appeals summarized the evidence for which there is support in
the record as follows:
J.U. was 18 years old at the time of the trial. She testified
that McCurdy has been in her life for as long as she can
remember. J.U.'s mother and McCurdy used to be in a
long-term romantic relationship, and they share three
children together. J.U. testified that McCurdy had been
sexually abusing her since she was in middle school. J.U.
indicated that since the sexual abuse began, she and her
family, including McCurdy, had lived in four different
houses. She used these houses to organize her testimony about
the years of sexual abuse.
J.U. lived in the "yellow house" from the time she
was 5 years old until she was almost 10 years old. While she
lived there, she and her younger sister, K.O., shared a
bedroom in the attic of the house. One day, when J.U. was
approximately 9 years old, she was alone in the bedroom when
McCurdy entered the room. J.U. testified, "[H]e came in
the room and started taking my pants off and then had
intercourse." J.U. testified that after this initial
incident, McCurdy would come into her bedroom three to four
times per week in order to have sexual intercourse with her.
She testified that she would tell McCurdy [301 Neb. 346]
"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, [301 Neb. 347]
oftentimes without J.U.'s mother's knowledge. At the
Sandstone house, J.U. slept in the basement on a futon. When
McCurdy would sleep at the Sandstone house, he would
typically sleep with J.U. on the futon. McCurdy had sexual
intercourse with J.U. three to four times per week in her
basement bedroom. In addition, McCurdy put his hands and
mouth on her vagina. J.U. no longer resisted McCurdy's
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
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 [301 Neb. 348] so
that they could play the game together all day and into the
night. McCurdy then told K.O. to sleep in his bed so the
younger children did not wake her up. McCurdy laid down with
K.O. in the bed. K.O. testified that while they laid
together, he attempted to "put[ ] his penis in [her]
shorts." She pulled away from him and nothing further
happened on this occasion. Subsequently, however, McCurdy
asked K.O. to rub his penis and "scratch[ ]" his
"balls." He would sometimes tell her to use lotion
when she was touching his penis. Eventually, ...