State v. McCurdy , 301 Neb. 343 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    10/19/2018 09:11 AM CDT
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    301 Nebraska R eports
    STATE v. McCURDY
    Cite as 
    301 Neb. 343
    State of Nebraska, appellee, v.
    Michael W. McCurdy, appellant.
    ___ 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 ele-
    ments 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,
    R iedmann, and A rterburn, Judges, on appeal thereto from the
    District Court for Lancaster County, Darla S. Ideus, Judge.
    Judgment of Court of Appeals affirmed.
    Robert W. Kortus, of Nebraska Commission on Public
    Advocacy, for appellant.
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    STATE v. McCURDY
    Cite as 
    301 Neb. 343
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ.
    Miller-Lerman, J.
    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 fol-
    lowing 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 sen-
    tences. 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 alle-
    gations 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 testi-
    fied 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 inter-
    course 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 inter-
    course 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, includ-
    ing 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 direc-
    tions 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 testi-
    fied 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 fur-
    ther 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 push-
    ing 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 some-
    times. 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 sex-
    ual contact continued. K.O. indicated that the sexual
    contact included McCurdy rubbing lotion all over her
    body. At the Sandstone house, McCurdy had sexual inter-
    course 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 con-
    tact 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 success-
    fully 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 experi-
    ences 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 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
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    intercourse after she turned 16 years old. McCurdy con-
    tended 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 attack-
    ing the credibility of J.U. and K.O. during their cross-­
    examinations. McCurdy pointed out numerous inconsist­
    encies 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 impris-
    onment 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 convic-
    tions and sentences. We granted McCurdy’s petition for fur-
    ther 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 admis-
    sion of expert testimony concerning the behaviors and testi-
    monial 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, circum-
    stantial, 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 vic-
    tim, 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 evi-
    dence 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 evi-
    dence 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 viola-
    tion 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 show-
    ing 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 evi-
    dence 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 suf-
    ficient 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 [alter-
    native], 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 suf-
    ficient 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 “with-
    out consent” and did not focus on other relevant portions of
    the definition. In our discussion below, we supply the miss-
    ing 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 con-
    sent 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 nec-
    essary 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 show-
    ing 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) speci-
    fies “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, “coer-
    cion” 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 ordi-
    nary 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 sen-
    tence, 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 submis-
    sion. 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 com-
    pelled J.U. to submit to sexual penetration due to the use of
    “coercion.” We conclude that the evidence in this case regard-
    ing 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 there-
    fore, the sexual acts were without consent.
    In reaching this conclusion, we have looked to cases from
    other jurisdictions in which courts have found that circum-
    stances similar to those in the present case supported a con-
    viction for sexual assault. We note in this regard that stat-
    utes 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 cir-
    cumstances establish that “force” under another state’s statutes
    includes nonphysical means, it tends to support a conclu-
    sion 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 psy-
    chological 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 house-
    hold 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 step-
    daughter 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 per-
    formed 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 stat-
    ute, 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 show-
    ing 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 defend­
    ant] and [the victim], the background and history of their rela-
    tionship,” and “the authority exercised by [the defendant].” 799
    N.W.2d at 147.
    The Iowa Supreme Court in Meyers also specifically con-
    cluded 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, psychologi-
    cal 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 vic-
    tim, 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 pur-
    poses 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 reason-
    ably 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 instruc-
    tion.” 
    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 intrafa-
    milial 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 sex­
    ually abuses his child” and concluded that under such cir-
    cumstances, “[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 con-
    duct, . . . 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 con-
    text 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 turn-
    ing 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”; spe-
    cifically, 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 suffi-
    cient 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 pros-
    ecutorial 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 convic-
    tions and sentences.
    A ffirmed.
    Freudenberg, J., not participating.