State v. Nielsen
| Decision Date | 29 April 2014 |
| Docket Number | No. 20080709.,20080709. |
| Citation | 759 Utah Adv. Rep. 48,326 P.3d 645 |
| Court | Utah Supreme Court |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Cody Lynn NIELSEN, Defendant and Appellant. |
OPINION TEXT STARTS HERE
Sean D. Reyes, Att'y Gen., Karen A. Klucznik, Asst. Att'y Gen., Salt Lake City, Tony C. Baird, Logan, for appellee.
Craig T. Peterson, Bountiful, for appellant.
¶ 1 Cody Nielsen was convicted of the aggravated murder of Trisha Autry and sentenced to life without parole. On this appeal, Nielsen raises a series of challenges to the venue for his trial—a Cache County trial with a jury comprised of Box Elder County residents. He also questions the sufficiency of the evidence to sustain lesser offenses of kidnapping and aggravated kidnapping and the sufficiency of the evidence to sustain his bindover for trial on aggravated murder. Finally, he asserts that his convictions for kidnapping and desecration of a body should have merged with his conviction of aggravated murder, necessitating vacatur of these lesser offenses.
¶ 2 We affirm Nielsen's conviction of and sentence for aggravated murder and desecration of a body, but reverse and vacate his kidnapping and aggravated kidnapping convictions on merger grounds.
¶ 3 On the morning of June 24, 2000, fifteen-year-old Trisha Autry disappeared from her home in Hyrum, Utah. Her disappearance remained a mystery for nearly a year, until the remains of her body and clothing were discovered buried in a hole at the U.S.D.A. Predator Research Facility in the nearby town of Millville. Nielsen, an employee at the Predator Facility, was eventually arrested and charged with her murder.
¶ 4 According to the evidence gathered by law enforcement, Nielsen first met Trisha in April of 2000. She was walking home from school with a friend when he passed them in his truck several times. He eventually pulled up and began talking to them. Nielsen gave them his pager number, and told them to call him if they “ever want[ed] to go do something, party, drink, whatever.”
¶ 5 A few days later, Trisha was walking home with a different friend when Nielsen's truck passed them again. Trisha's friend testified that Trisha became agitated, and told her that the man in the truck—whom she called “Sam”—had been following her and calling her at home. The two girls ran away from the truck when it passed again, and were eventually picked up by their neighbor. The neighbor testified that the girls were “pretty nervous.” After this second incident, Trisha began calling home after school “pretty much every day” and asking her family members to come and pick her up so that she wouldn't have to walk home.
¶ 6 Trisha's mother awoke early on the morning of June 24 and discovered that Trisha was not in her bedroom. After the family failed to find her, Trisha's mother called the police to report Trisha missing at about 6:30 a.m.
¶ 7 In Trisha's room, her mother noticed that many of Trisha's belongings were missing: the clothing she had worn the previous day, a pair of old tennis shoes that Trisha didn't like, and a bra that she only wore when sleeping. The missing clothes led her mother to deduce that she hadn't left to meet anyone, because Trisha would have changed into clean clothes, and only wore dirty clothes “if she wasn't going anywhere.” Based on this and other evidence, Trisha's mother concluded that she had gone for a solitary walk. The immediate investigation into Trisha's disappearance failed to produce any information on her whereabouts.
¶ 8 A few weeks earlier, in late May or early June of 2000, one of Nielsen's coworkers, William Pitt, noticed Nielsen digging a large hole on the grounds of the Predator Facility, using a backhoe and grader that he used in his job at the facility. When Pitt asked him about the hole, Nielsen told him he wanted to “see how deep of a hole he could dig” with the backhoe. Pitt told Nielsen to fill the hole because it was a safety hazard. In the following months, Pitt and another employee, Doris Zemlicka, observed Nielsen digging around the area with a backhoe, creating a large pile of trash and debris in and on the now-filled-in hole. Eventually they noticed that Nielsen burned the pile of trash and debris over the course of an entire day.
¶ 9 Almost one year later, the efforts of a private investigator led police to identify Nielsen as a suspect in Trisha's disappearance and to home in on the Predator Facility. Cadaver dogs were brought in as an element of a search of the facility. The dogs alerted on the area of the hole dug by Nielsen. In the ensuing excavation, law enforcement discovered a part of Trisha's jawbone, several hundred other bone fragments, her shoes, bra, and part of the waistband of her underwear. The police interviewed Nielsen, who admitted that he had met Trisha and sometimes went by the nickname “Sam.” Under further questioning, Nielsen neither admitted nor denied that he killed Trisha.
¶ 10 Nielsen was charged with aggravated murder, obstruction of justice, and desecration of a dead body. After a preliminary hearing, the trial court bound him over as charged. Nielsen subsequently filed a motion for a change of venue—from Cache County to Davis County—asserting a potential for jury bias against him due to extensive pretrial publicity in Cache County. The State did not oppose the motion, which was granted by the trial court.
¶ 11 For reasons unclear from the record, the trial court did not immediately transfer the case to Davis County. Instead, ongoing pretrial proceedings continued in Cache County. About a year later, in September 2002, defense counsel raised the venue issue again, this time seeking a trial in Box Elder County instead of Davis. Again, the State did not object, and the trial court agreed.
¶ 12 Again, however, the case was not immediately transferred. Instead, the parties' attention turned to concerns regarding the size and security of the courtroom facilities in Box Elder County. In light of these concerns, the State suggested that the trial be held in Cache County; the defense objected. Ultimately, the trial court ordered that the trial be held in Cache County, but with jurors chosen in and transported from Box Elder County.
¶ 13 Before trial, the prosecution amended the information, charging Nielsen with one count of aggravated murder, two counts of desecration of a human body, one count of aggravated kidnapping, and one count of kidnapping. At trial, after the State had concluded its case-in-chief, the defense moved for a directed verdict on all five charges. The trial court denied the motion.
¶ 14 The jury ultimately convicted Nielsen as charged, finding that the kidnapping and aggravated kidnapping charges served as the statutory aggravators required to sustain the aggravated murder charge. The trial court noted that kidnapping was a lesser-included offense of aggravated kidnapping, however, and ruled that the kidnapping conviction should merge into aggravated kidnapping. For reasons unclear on the record, however, the court's final judgment failed to reflect the ruling on merger—indicating instead that Nielsen was convicted on both the kidnapping and aggravated kidnapping charges.
¶ 15 After returning its verdict, the jury also heard evidence that Nielsen had been previously convicted of assault. At the time the crime was committed, a prior felony conviction involving “the use or threat of violence to a person” was a statutory aggravator for aggravated murder. Utah Code § 76–5–202(1)(h) (2000). But although Nielsen had been charged and convicted on a felony assault charge, the conviction had been statutorily reduced to a class A misdemeanor under Utah Code section 76–3–402. The jury received a copy of the criminal record and concluded that Nielsen's crime was a felony involving the use of violence, and considered it as a statutory aggravator for sentencing purposes.
¶ 16 Nielsen's aggravated murder conviction triggered the capital sentencing statute. Utah Code § 76–3–207. Under that statute, the jury exercises wide discretion when determining what sentence to impose, and can consider “any ... facts in aggravation or mitigation of the penalty that the court considers relevant to the sentence.” Id. § 76–3–207(2)(1)(iv). Of the three possible sentences that the jury could have imposed (life, life without the possibility of parole, and death), the jury sentenced Nielsen to life without the possibility of parole. He was also sentenced to fifteen years to life in prison for the aggravated kidnapping charge and up to five years in prison for each count of desecration of a human body. His sentences were to run consecutively.
¶ 17 Nielsen filed a timely motion for new trial in April 2004. For reasons not entirely clear from the record, that motion was left pending—without Nielsen ever submitting a memorandum in support and without any ruling disposing of the motion—for over four years. Eventually, in July 2008, the district court issued two separate orders finally disposing of Nielsen's pending motion. Nielsen filed two separate notices of appeal, each within thirty days of the district court's orders.
¶ 18 The parties appear to concede the timeliness of Nielsen's appeal, and we see no reason to disagree. Under rule 4(b)(1) of the Utah Rules of Appellate Procedure, the thirty-day period for Nielsen's notice of appeal was to “run [ ] from the entry of the [district court's] order disposing of the motion” for new trial. It appears from the record that the trial court did not “dispos[e] of” the motion until July 2008, so we conclude that Nielsen filed a timely notice of appeal preserving our appellate jurisdiction.
¶ 19 On appeal, Nielsen challenges his convictions and sentences on several grounds. First, he asserts a range of errors related to venue issues—asserting plain error by the district court and/or ineffective assistance of counsel in connection with the failure to transfer the case to Davis County, the...
To continue reading
Request your trial
-
State v. Bond
...P.2d 70, 88–91 (Utah 1993)(merging a predicate offense of aggravated sexual assault with a first-degree murder conviction); State v. Nielsen,2014 UT 10, ¶¶ 57–58, 326 P.3d 645(merging a conviction for aggravated kidnapping with an aggravated murder conviction because aggravated kidnapping i......
-
Adoption B.B. v. R.K.B.
...Chen v. Stewart , 2004 UT 82, ¶ 35, 100 P.3d 1177 ("Jurisdiction is ‘a many-hued term.’ "), abrogated on other grounds by State v. Nielsen , 2014 UT 10, 326 P.3d 645.8 See, e.g. , Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 21 N.E.3d 1040, 1046 (2014) ("A court's jurisdiction over a pa......
-
State v. Harris
...State v. Sisk, 343 S.W.3d 60 (Tenn. 2011).Texas: King v. State, 895 S.W.2d 701 (Tex. Crim. App. 1995).Utah: State v. Nielsen, 326 P.3d 645 (Utah 2014).Vermont: State v. Couture, 169 Vt. 222, 734 A.2d 524 (1999).Washington: State v. Delmarter, 94 Wash.2d 634, 618 P.2d 99 (1980).West Virginia......
-
State v. Reigelsperger
...evidence in support of a challenged finding, the party "will almost certainly fail to carry its burden of persuasion on appeal," State v. Nielsen , 2014 UT 10, ¶ 42, 326 P.3d 645, and Reigelsperger has not shown the trial court's findings to be clearly erroneous.¶52 Reigelsperger neverthele......