State v. McCurdy (PFR)

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State v. McCurdy (PFR)

Case Number
S-17-0061
Call Date
August 30, 2018
Case Time
9:00 AM
Court Number
Lancaster
Case Location
Lincoln
Case Summary

S-17-0061 State v. Michael W. McCurdy (Appellant)

Lancaster County District Court, Judge Darla S. Ideus

Attorneys: Austin N. Relph (Attorney General’s Office) --- Robert W. Kortus (Nebraska Commission on Public Advocacy) (Appellant)

Criminal: 1st degree sexual assault of child, three counts; 1st degree sexual assault; intentional child abuse

Proceedings below: Following a jury trial, Appellant was convicted and sentenced to 90 to 115 years imprisonment.  The Court of Appeals affirmed his convictions and sentences.  Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues: The Court of Appeals erroneously held that 1) there was sufficient evidence to convict

Appellant on Count III (sexual assault--victim lacks capacity to consent) without addressing the sole issue raised by appellant, which was that Nebraska decisional authorities require direct evidence usually in the form of expert testimony to prove a mental incapacity to consent to sexual activity on the part of the victim. The Court of Appeals decision also conflicts with decisions of the Nebraska Supreme Court, 2) expert testimony on the relative reliability of inconsistent statements was admissible, 3) no prosecutorial misconduct occurred at trial, and 4) DNA data was properly admitted at trial.

Schedule Code
SC