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State of Nebraska, appellee, v.

Michael W. McCurdy, appel

___ N.W.2d ___

Filed October 19, 2018. No. S-17-061.

1. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such matters 

are for the finder of fact. The relevant question for an appellate court 

is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

2. ____: ____: ____. When a defendant is charged in alternative ways with 

committing an offense, the jury can convict if it finds there is sufficient 

evidence of either alternative, and thus the judgment of conviction must 

be affirmed if the evidence is sufficient to support either of the State’s 

alternative theories of guilt.

3. Statutes. Statutory language is to be given its plain and ordinary 

meaning.

4. ____. When interpreting a statute, no sentence, clause, or word should 

be rejected as meaningless or superfluous if it can be avoided.

5. Sexual Assault: Words and Phrases. “Coercion” in Neb. Rev. Stat. 

§ 28-318(8)(a)(i) (Reissue 2016) includes nonphysical force.

Petition for further review from the Court of Appeals, Pirtle,

Riedmann, and Arterburn, Judges, on appeal thereto from

District Court for Lancaster County, Darla S. Ideus, Judg

Judgment of Court of Appeals affirmed.

Robert W. Kortus, of Nebraska Commission on Public 

Advocacy, for appellant.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/19/2018 09:11 AM CDT
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Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, 

Papik, JJ

Miller-Lerman,

NATURE OF CASE

Michael W. McCurdy was convicted of three counts of 

first degree sexual assault of a child, one count of first degree 

sexual assault, and one count of intentional child abuse 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).

We granted McCurdy’s petition for further review. On 

further review, he primarily claims that the Court of Appeals 

erred when it determined that there was sufficient evidence to 

support his conviction for first degree sexual assault. Although 

we employ a different analysis than that employed by the 

Court of Appeals, we agree with its conclusion that there was 

sufficient evidence. Further, we find no error in the Court 

of Appeals’ disposition regarding McCurdy’s other claims 

involving rulings and events at trial. We therefore affirm 

the Court of Appeals’ affirmance of McCurdy’s convictions 

and sentences.

STATEMENT OF FACTS

The five counts charged against McCurdy arose from 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 
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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.

The charges against McCurdy were tried to a jury in October 

2016. Both J.U. and K.O. testified at the trial. The Court of 

Appeals summarized the evidence for which there is support in 

the record as follows:

J.U. was 18 years old at the time of the trial. She 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 
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“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, 
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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 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 
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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, 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 
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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 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 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 crossexamination of the State’s witnesses and during closing 

arguments, McCurdy’s counsel indicated that McCurdy 

did not dispute that he and J.U. engaged in sexual 
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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 crossexaminations. McCurdy pointed out numerous inconsistencies between J.U.’s and K.O.’s trial testimony and their 

prior statements about the sexual abuse.

State v. McCurdy, 25 Neb. App. 486, 489-93, 908 N.W.2d 407, 

412-14 (2018). The jury found McCurdy guilty of all five counts, 

and the district court thereafter sentenced McCurdy to imprisonment for a total of 95 to 115 years for the five convictions.

McCurdy appealed to the Court of Appeals and made five 

assignments of error. The Court of Appeals rejected all of 

McCurdy’s assignments of error and affirmed his convictions and sentences. We granted McCurdy’s petition for further review.

ASSIGNMENTS OF ERROR

McCurdy claims on further review that the Court of Appeals 

erred when it determined that there was sufficient evidence to 

support his conviction for first degree sexual assault of J.U. 

without addressing whether there was sufficient evidence that 

J.U. lacked the mental capacity to consent.

McCurdy also claims that the Court of Appeals erred when 

it rejected his assignments of error (1) challenging the admission of expert testimony concerning the behaviors and testimonial patterns of child sexual assault victims, (2) claiming 

prosecutorial misconduct, and (3) admitting DNA evidence. 

We find no error in the Court of Appeals’ disposition of these 

three issues, and we see no need for further comment on them. 

Therefore, our analysis below is limited to the sufficiency of 

the evidence to support McCurdy’s conviction for first degree 

sexual assault of J.U.
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STANDARD OF REVIEW

[1] 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. State v. Wells, 300 Neb. 296, 912 

N.W.2d 896 (2018).

ANALYSIS

McCurdy claims on further review that the Court of Appeals 

erred when it determined that there was sufficient evidence to 

support his conviction for first degree sexual assault without 

addressing whether there was sufficient evidence that the victim, J.U., lacked the mental capacity to consent. McCurdy’s 

argument presumes that the Court of Appeals affirmed his 

conviction for first degree sexual assault on the basis of a 

finding that he subjected J.U. to sexual penetration when he 

knew or should have known that she was mentally incapable of 

consent. Contrary to McCurdy’s contention, we read the Court 

of Appeals’ opinion as concluding that there was sufficient evidence to support McCurdy’s conviction for first degree sexual 

assault on the basis of a finding that he subjected J.U. to sexual 

penetration without her consent. And, although we employ an 

analysis that differs in certain respects from that used by the 

Court of Appeals, we agree with its conclusion that there was 

sufficient evidence to find that McCurdy subjected J.U. to 

sexual penetration without her consent.

McCurdy claims on appeal that there was insufficient evidence to support his conviction for first degree sexual assault; 

he does not challenge the sufficiency of the evidence related 

to his other convictions. The first degree sexual assault statute, 
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Neb. Rev. Stat. § 28-319(1)(a), (b), and (c) (Reissue 2016), 

sets forth three ways in which one could be found guilty of the 

offense. Section 28-319(1) provides that one is guilty of first 

degree sexual assault if one

subjects another person to sexual penetration (a) without 

the consent of the victim, [or] (b) who knew or should 

have known that the victim was mentally or physically 

incapable of resisting or appraising the nature of his or 

her conduct, or (c) when the actor is nineteen years of 

age or older and the victim is at least twelve but less than 

sixteen years of age . . . .

To prove guilt under § 28-319, it must be shown that the 

offender subjected the victim to sexual penetration along with 

one of the three alternatives set forth in § 28-319(1)(a), (b), 

and (c).

The State alleged that McCurdy committed first degree 

sexual assault against J.U. when she was 16 years of age or 

older. Therefore, § 28-319(1)(c), pertaining to victims “at least 

twelve but less than sixteen years of age,” did not apply to the 

charge of first degree sexual assault in this case. Instead, the 

State alleged in the information that McCurdy subjected J.U. to 

sexual penetration either without the consent of J.U., in violation of § 28-319(1)(a), or, alternatively, when McCurdy knew 

or should have known that J.U. was mentally or physically 

incapable of resisting or appraising the nature of his conduct, 

in violation of § 28-319(1)(b). The district court in this case 

instructed the jury on both alternatives, using the language of 

§ 28-319(1)(a) and (b), as well as the statutory definitions of 

certain terms, including the term “without consent.”

The Court of Appeals concluded that there was sufficient 

evidence to support the charge of first degree sexual assault. 

The Court of Appeals’ analysis focused on evidence showing that because McCurdy had sexually abused her in the 

past, J.U. found it futile or useless to resist McCurdy’s sexual 

advances after she turned 16. The Court of Appeals concluded 

as follows:
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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.

State v. McCurdy, 25 Neb. App. 486, 514, 908 N.W.2d 407, 

425-26 (2018).

McCurdy claims on further review that the Court of Appeals 

erred because it did not address the argument that there was not 

sufficient evidence to support a finding that J.U. was rendered 

incapable of consent. In this regard, we note that the State had 

argued, at least in part, to the Court of Appeals that the evidence in this case supported a finding that McCurdy’s sexual 

abuse of J.U. prior to her turning 16 years old rendered her 

incapable of resisting or appraising the nature of McCurdy’s 

conduct after she turned 16 years old. We think that McCurdy’s 

argument on further review misreads the basis on which the 

Court of Appeals concluded that there was sufficient evidence 

to support his conviction for first degree sexual assault: to wit, 

the sexual penetration was without J.U.’s consent.

McCurdy’s argument focuses exclusively on § 28-319(1)(b) 

and whether there was sufficient evidence regarding J.U.’s 

mental capability in relation to consent. But we read the Court 

of Appeals’ opinion as concluding that because there was 

sufficient evidence to find that sexual penetration occurred 

without the consent of J.U., there was sufficient evidence 

to support a conviction for first degree sexual assault under 

§ 28-319(1)(a). Having concluded that the evidence was sufficient under § 28-319(1)(a), the Court of Appeals did not 

need to address whether there was also sufficient evidence 

to find that J.U. lacked the mental capacity to consent under 

§ 28-319(1)(b).

[2] We have stated that when a defendant was charged in 

alternative ways with committing an offense, “the jury could 
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convict if it found there was 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.” State v. Eagle Bull, 285 Neb 369, 

375, 827 N.W.2d 466, 471 (2013). See, also, State v. Knutson, 

288 Neb. 823, 843, 852 N.W.2d 307, 324 (2014) (“judgment 

must be affirmed if [evidence] was sufficient to support any 

of the State’s three theories of guilt”). In these cases, after 

we found sufficient evidence to support a conviction under 

one theory, we stated that we need not consider whether the 

evidence was sufficient to support the alternative theory or 

theories of guilt. In Eagle Bull, we noted that the defendant had 

not objected to the court’s instructing on alternative theories on 

the basis that there was not sufficient evidence to support each 

alternative and that the defendant did not raise the instruction 

issue on appeal. In the present case, McCurdy did not object 

to the instruction and he did not assign error on appeal to the 

giving of the instruction.

The Court of Appeals’ analysis focused on evidence that, 

because of McCurdy’s prior sexual assault of J.U., it would 

have been useless or futile for J.U. to resist McCurdy’s sexual 

advances after she turned 16 years old. As we discuss further 

below, this analysis was relevant to whether there was sufficient evidence that the sexual penetration was without J.U.’s 

consent. However, the Court of Appeals’ analysis focused 

exclusively on one aspect of the statutory definition of “without consent” and did not focus on other relevant portions of 

the definition. In our discussion below, we supply the missing analysis.

Within Nebraska’s sexual assault statutes, Neb. Rev. Stat. 

§ 28-318 (Reissue 2016) provides definitions for terms used 

in § 28-319 and related statutes. Subsection 28-318(8) defines 

“without consent” as follows:

Without consent means:

(a)(i) The victim was compelled to submit due to the 

use of force or threat of force or coercion, or (ii) the 
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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;

(b) The victim need only resist, either verbally or 

physically, so as to make the victim’s refusal to consent 

genuine and real and so as to reasonably make known to 

the actor the victim’s refusal to consent; and

(c) A victim need not resist verbally or physically 

where it would be useless or futile to do so[.]

The Court of Appeals’ analysis in this case focused on 

§ 28-318(8)(c) and whether there was evidence that it would 

have been useless or futile for J.U. to resist McCurdy. The 

Court of Appeals did not appear to comment on whether there 

was evidence that sexual penetration was “without consent” 

within one of the definitions set forth in § 28-318(8)(a).

As we read § 28-318(8), in order to determine whether 

sexual activity was “without consent” of the alleged victim, 

one of the four alternatives set forth in subsection (a) must be 

shown. That is, it must be shown that either (1) the defendant 

compelled the victim to submit due to the use of force or threat 

of force or coercion, (2) the victim expressed a lack of consent through words, (3) the victim expressed a lack of consent 

through conduct, or (4) the defendant used deception to obtain 

consent. We do not read § 28-318(8)(b) and (c) as setting forth 

additional independent alternative means to show that sexual 

penetration was “without consent.” Instead, we read these 

subsections as informing the nature of the proof necessary to 

show one of the definitions set forth in subsection (a). That is, 

subsection (b) describes the nature of resistance which must 

be shown in circumstances where resistance by the victim is 

relevant to proving that sexual activity was “without consent.” 

Subsection (c) describes circumstances in which it is not necessary to show resistance by the victim in order to prove that 

sexual activity was “without consent.”
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Therefore, the Court of Appeals’ analysis of evidence showing that it would have been useless or futile for J.U. to resist 

verbally or physically was relevant to show that it was not 

necessary to prove that J.U. resisted in order to prove that 

sexual penetration was without her consent. The evidence of 

uselessness or futility was necessary but not sufficient to show 

that sexual penetration was without J.U.’s consent. Instead, to 

prove consent was lacking, it was also necessary to show that 

sexual penetration occurred in a manner described in one of 

the four alternatives set forth in § 28-318(8)(a). We perform 

that analysis below.

We first note that we do not find that there was evidence in 

this case that at the time relevant to the charge of first degree 

sexual assault, J.U. expressed a lack of consent through words 

or conduct. There was evidence that J.U. expressed her lack 

of consent when McCurdy first began sexually assaulting her, 

but J.U. testified that in the relevant time period, after she 

turned 16, she had stopped resisting and expressing her lack 

of consent, because it had not worked in the past. Therefore, 

there was no evidence that sexual penetration was “without 

consent” within the meanings set forth in § 28-318(8)(a)(ii) 

and (iii). We also find no evidence that McCurdy gained 

J.U.’s consent through deception, and therefore there was no 

evidence that sexual penetration was “without consent” within 

the meaning set forth in § 28-318(8)(a)(iv).

Having eliminated § 28-318(8)(a)(ii), (iii), and (iv), we 

consider whether the evidence supports a finding under 

§ 28-318(8)(a)(i) that J.U. “was compelled to submit due to 

the use of force or threat of force or coercion.” By its terms, 

§ 28-318(8)(a)(i) sets forth three ways one might compel 

another person to submit: (1) use of force, (2) threat of force, 

or (3) coercion. “Use of force” and “threat of force” are 

defined in the statute, but “coercion” is not. With regard to 

“use of force” and “threat of force,” § 28-318(9) supplies the 

following definitions:
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Force or threat of force means (a) the use of physical 

force which overcomes the victim’s resistance or (b) the 

threat of physical force, express or implied, against the 

victim or a third person that places the victim in fear of 

death or in fear of serious personal injury to the victim 

or a third person where the victim reasonably believes 

that the actor has the present or future ability to execute 

the threat.

As noted above, there was no evidence in this case that J.U. 

actively resisted McCurdy at the times relevant to the charge of 

first degree sexual assault, when J.U. was over 16. Therefore, 

there was no evidence that McCurdy used physical force which 

overcame J.U.’s resistance and no evidence that McCurdy 

compelled J.U. to submit by “use of force” as that term is 

defined in § 28-318(9). We also do not think that the evidence 

shows that McCurdy compelled J.U. to submit by “threat of 

force,” because the definition of that term in § 28-318(9) specifies “physical force” and further limits the threat to one that 

“places the victim in fear of death or in fear of serious personal 

injury.” We believe the evidence in this case did not show that 

McCurdy threatened J.U. in a manner that put her in fear of 

death or serious personal injury.

Based on the foregoing, the issue before us is whether the 

evidence supported a finding that McCurdy compelled J.U. to 

submit to sexual penetration by “coercion.” As noted, “coercion” as used in § 28-318(8)(a)(i) is not statutorily defined 

in § 28-318 or elsewhere, so we must look to the statute as a 

whole, as well as other sources, to understand “coercion” as it 

is used in § 28-318(8)(a)(i).

[3] Statutory language is to be given its plain and ordinary meaning. State v. Clemens, 300 Neb. 601, 915 N.W.2d 

550 (2018). Black’s Law Dictionary defines “coercion” as 

“[c]ompulsion of a free agent by physical, moral, or economic 

force or threat of physical force.” Black’s Law Dictionary 315 

(10th ed. 2014). Under this definition, although “coercion” 
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includes physical force and the threat of physical force, it also 

includes other, nonphysical forms of force.

[4,5] We have said that when interpreting a statute, no sentence, clause, or word should be rejected as meaningless or 

superfluous if it can be avoided. See State v. Clemens, supra. 

Section 28-318(8)(a)(i) includes “force,” “threat of force,” 

and “coercion” as separate manners of compelling submission. Because “force” and “threat of force” are both defined 

in § 28-318(9) in terms of physical force, we determine that 

“coercion” would be redundant and even superfluous in the 

context of § 28-318(8)(a)(i) if it were limited to physical force. 

Accordingly, we hold that “coercion” in § 28-318(8)(a)(i) 

includes nonphysical force.

Having determined that “coercion” under § 28-318(8)(a)(i) 

includes nonphysical forms of force, we consider whether the 

evidence in this case supports a finding that McCurdy compelled J.U. to submit to sexual penetration due to the use of 

“coercion.” We conclude that the evidence in this case regarding the history of McCurdy’s sexual abuse of J.U. in the years 

prior to the time related to the charge of first degree sexual 

assault, as well as evidence regarding McCurdy’s position of 

authority and dominion within J.U.’s life and household, was 

sufficient for the jury to find that at the times relevant to the 

charge of first degree sexual assault, McCurdy compelled J.U. 

to submit to sexual penetration by use of coercion, and therefore, the sexual acts were without consent.

In reaching this conclusion, we have looked to cases from 

other jurisdictions in which courts have found that circumstances similar to those in the present case supported a conviction for sexual assault. We note in this regard that statutes criminalizing rape or sexual assault in other states are 

not generally uniform and that the wording of such statutes 

varies among states. The cases discussed below generally 

involve statutes that do not use the word “coercion.” However, 

whether or not the relevant statutes in these cases use the same 

wording and definitions as Nebraska’s sexual assault statutes, 
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we find the cases informative as to whether the circumstances 

of this case support a finding of “coercion” under Nebraska’s 

sexual assault statutes. The statutes commonly use the word 

“force,” and the opinions often attempt to find whether the 

circumstances establish “force.” As indicated below, the cases 

do not limit “force” to physicality. We think that if the circumstances establish that “force” under another state’s statutes 

includes nonphysical means, it tends to support a conclusion that similar circumstances can establish “coercion” under 

our statutes, because “coercion” includes nonphysical forms 

of force.

As we have indicated, courts have recognized that a psychological rather than physical force can support a conviction 

for sexual assault. See State v. Watkins, 92 A.3d 172, 186 (R.I. 

2014) (“psychological coercion is sufficient to prove the force 

or coercion element of sexual assault, even in the absence 

of physical force”). Such psychological force or coercion 

has particularly been found in circumstances where abuse 

is carried out by adult authority figures in family or household settings.

For example, in State v. Meyers, 799 N.W.2d 132 (Iowa 

2011), the defendant was charged with, inter alia, sexual abuse 

in the third degree; the alleged victim was the defendant’s stepdaughter who was 17 years old at the time of the alleged abuse. 

The State in Meyers offered two alternative theories of sexual 

abuse under the relevant Iowa statute—that the defendant performed sex acts by force or “‘against the will’” of the victim 

or, alternatively, that he performed sex acts at a time when the 

victim was suffering from a mental defect or incapacity. 799 

N.W.2d at 140.

In interpreting the “against the will” language of the statute, the Iowa Supreme Court stated, “Clearly, the ‘against 

the will of another’ standard seeks to broadly protect persons 

from nonconsensual sex acts, even under circumstances showing the victim had no opportunity or ability to consent due to 

the inherently coercive nature of the circumstances.” Meyers, 
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799 N.W.2d at 143 (emphasis supplied). The Iowa Supreme 

Court noted that under the statute, “physical resistance is not 

required ‘to establish that an act of abuse is committed by 

force or against the will of a person’” and that instead, “‘the 

circumstances surrounding the commission of the act’ [must] 

be considered in determining whether the act was ‘by force or 

against the will of the other.’” Id. at 142-43. In concluding that 

the evidence in Meyers supported a finding that the sex acts 

engaged in between the defendant and the victim were “‘by 

force or against the will’” of the victim, the Iowa Supreme 

Court noted evidence of the totality of the circumstances, 

including, inter alia, “the disparity in age between [the defendant] and [the victim], the background and history of their relationship,” and “the authority exercised by [the defendant].” 799 

N.W.2d at 147.

The Iowa Supreme Court in Meyers also specifically concluded that “psychological force or inability to consent based 

on the relationship and circumstance of the participants may 

give rise to a conviction under the ‘against the will’ element” 

of sexual abuse. 799 N.W.2d at 146. The court looked to other 

jurisdictions in considering whether “psychological force” can 

establish sexual abuse. The court cited Com. v. Rhodes, 510 

Pa. 537, 555, 510 A.2d 1217, 1226 (1986), in which the 

Pennsylvania Supreme Court determined that the Pennsylvania 

rape statute’s reference to “‘forcible compulsion’” included not 

only physical force or violence, “but also moral, psychological or intellectual force used to compel a person to engage in 

sexual intercourse against that person’s will.” To determine if 

force had been used, the Pennsylvania Supreme Court focused 

on a totality of the circumstances analysis and cited various 

factors, including:

the respective ages of the victim and the accused, the 

respective mental and physical conditions of the victim 

and the accused, the atmosphere and physical setting in 

which the incident was alleged to have taken place, the 

extent to which the accused may have been in a position 
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of authority, domination or custodial control over the victim, and whether the victim was under duress.

Id.

In U.S. v. Davis, 875 F.3d 592, 596 (11th Cir. 2017), the 

Court of Appeals for the 11th Circuit considered whether 

a conviction under an Alabama statute criminalizing sexual 

abuse by forcible compulsion was a “violent felony” for purposes of sentence enhancement. After reviewing Alabama case 

law, the 11th Circuit determined that the Alabama statute did 

not necessarily require the use, attempted use, or threatened 

use of physical force. The 11th Circuit relied on, inter alia, 

Powe v. State, 597 So. 2d 721, 728 (Ala. 1991), in which the 

Alabama Supreme Court concluded that “a jury could reasonably infer that [the defendant] held a position of authority and 

domination with regard to his daughter sufficient to allow the 

inference of an implied threat to her if she refused to comply 

with his demands.” The Alabama court limited its holding in 

Powe “to cases concerning the sexual assault of children by 

adults with whom the children are in a relationship of trust” 

and reasoned that such cases are distinct because of “the great 

influence and control that an adult who plays a dominant role 

in a child’s life may exert over the child” and that “[w]hen a 

defendant who plays an authoritative role in a child’s world 

instructs the child to submit to certain acts, an implied threat 

of some sort of disciplinary action accompanies the instruction.” 597 So. 2d at 728-29.

In State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987), 

the North Carolina Supreme Court emphasized the intrafamilial context when it determined that there was sufficient 

evidence to establish the statutory requirement of “force.” The 

court determined that “constructive force could be reasonably 

inferred from the circumstances surrounding the parent-child 

relationship,” and it noted that the victim “was conditioned 

to succumb to defendant’s illicit advances at an age when he 

could not yet fully comprehend the implications of defendant’s 

conduct.” Id. at 47, 352 S.E.2d at 681. The court further noted 
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that the “incidents of abuse all occurred while the boy lived 

as an unemancipated minor in defendant’s household, subject 

to defendant’s parental authority and threats of disciplinary 

action.” Id. at 47-48, 352 S.E.2d at 681. The court concluded 

in Etheridge that in cases of this sort,

the parent wields authority as another assailant might 

wield a weapon. The authority itself intimidates; the 

implicit threat to exercise it coerces. Coercion, as state 

above, is a form of constructive force. For this reason, 

we hold that the state presented sufficient evidence from 

which the jury could reasonably infer that defendant used 

his position of power to force his son’s participation in 

sexual acts.

319 N.C. at 48, 352 N.E.2d at 682.

The Ohio Supreme Court in State v. Eskridge, 38 Ohio St. 

3d 56, 58-59, 526 N.E.2d 304, 306 (1988), “recognize[d] the 

coercion inherent in parental authority when a father sexually abuses his child” and concluded that under such circumstances, “[f]orce need not be overt and physically brutal, 

but can be subtle and psychological.” We note that the Ohio 

Supreme Court in State v. Schaim, 65 Ohio St. 3d 51, 55, 600 

N.E.2d 661, 665 (1992), a case involving a victim who was 

20 years old, distinguished Eskridge, which involved a young 

victim. The court concluded that while a “threat of force can 

be inferred from the circumstances surrounding sexual conduct, . . . a pattern of incest will not substitute for the element 

of force where the state introduces no evidence that an adult 

victim believed that the defendant might use physical force 

against her.” However, Schaim was applying a statute that 

required a showing that the defendant “‘compel[led] the other 

person to submit by force or threat of force’” and that defined 

“force” and “threat of force” in terms of physical force. 65 

Ohio St. 3d at 54, 600 N.E.2d at 665.

In the cases discussed above, the courts were generally 

dealing with statutes that required a showing of force and 

the courts found that “force” could be shown by nonphysical 
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coercion under the relevant circumstances. By comparison, 

Nebraska’s statute includes “coercion,” as well as “force,” and 

as discussed above, we read “coercion” as a distinct means of 

compelling a person to submit that does not necessarily require 

a showing of physical force. We therefore think that under a 

totality of the circumstances analysis, coercion within the context of a family or household relationship between a minor and 

an adult authority figure can support a finding that a defendant 

compelled a victim to submit to sexual penetration by the use 

of “coercion.”

The charge of first degree sexual assault in this case involved 

McCurdy’s subjecting J.U. to sexual penetration when she was 

over 16 years of age. McCurdy did not dispute that he had 

sexual intercourse with J.U. when she was 16 and 17 years 

old, and he admitted that at the time he was arrested, J.U. was 

pregnant with his child. There was evidence that McCurdy had 

sexually assaulted J.U. over a period of years prior to her turning 16. J.U. testified that when McCurdy first began sexually 

assaulting her, she would tell him “‘no’” and try to push him 

away but that she eventually stopped resisting, because “‘he 

still did it anyway.’” See State v. McCurdy, 25 Neb. App. 486, 

490, 908 N.W.2d 407, 412 (2018). She also testified that after 

she turned 16 years old, she did not want to have sex with 

McCurdy but she knew that resisting his advances had never 

worked for her. We think that evidence of a history of sexually 

assaulting J.U. combined with the authority McCurdy exerted 

as an adult in J.U.’s household were sufficient to establish 

“coercion” under § 28-318(8)(a)(i).

Given the foregoing, we determine that there was sufficient 

evidence from which the jury could have found that McCurdy 

subjected J.U. to sexual penetration “without consent”; specifically, he compelled J.U. to submit to sexual penetration 

by use of coercion. We therefore conclude that the Court of 

Appeals did not err when it determined that there was sufficient evidence to support McCurdy’s conviction for first degree 

sexual assault.
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CONCLUSION

We find no error in the Court of Appeals’ disposition of 

McCurdy’s assignments of error relating to (1) the admission 

of expert testimony concerning the behaviors and testimonial 

patterns of child sexual assault victims, (2) a claim of prosecutorial misconduct, and (3) the admission of DNA evidence. 

With regard to the sufficiency of the evidence to support 

McCurdy’s conviction for first degree sexual assault of J.U., 

although our analysis differs from that of the Court of Appeals, 

we agree with the Court of Appeals’ conclusion that there was 

sufficient evidence to support the conviction. We therefore 

affirm the Court of Appeals’ affirmance of McCurdy’s convictions and sentences.

Affirmed

Freudenberg, J., not participatin