Cody v. State
| Citation | 324 Ga.App. 815,752 S.E.2d 36 |
| Decision Date | 05 May 2014 |
| Docket Number | No. A13A0837.,A13A0837. |
| Court | United States Court of Appeals (Georgia) |
| Parties | CODY v. The STATE. |
OPINION TEXT STARTS HERE
Brian Steel, Atlanta, for Appellant.
Robert D. James, Jr., Dist. Atty., Leonora Grant, Asst. Dist. Atty., for Appellee.
A jury found Mark Waddess Cody guilty of committing against his son's half-sister, S.H., six crimes: aggravated sodomy; two counts of aggravated child molestation; child molestation; and two counts of false imprisonment. Additionally, relating to his conduct during his arrest in connection with S.H.'s allegations, the jury found Cody guilty of obstruction of an officer and giving a false name to an officer. Convicted of these eight offenses, Cody contends that the trial court erred by admitting in evidence his police statement, by commenting on the evidence, by imposing certain sentences under an inapplicable version of a statute, by failing to merge certain offenses for sentencing purposes, and by sentencing him as a recidivist. Because Cody has shown no merit in any contention, we affirm.
The trial evidence showed the following.1 On February 6, 2008, S.H.'s mother took her to the hospital because the 7–year–old complained of a stomach ache and had a foul-smelling, brownish vaginal discharge. Results of lab testing upon vaginal swabs from S.H. showed that she had contracted chlamydia. S.H.'s treating physician, who was qualified at trial as an expert in pediatric medicine, testified that chlamydia was typically contracted by sexual contact, and could cause abdominal pain and vaginal discharge. The discharge, the physician explained, had resulted from the cervix being infected with chlamydia.
Upon learning the diagnosis, S.H.'s mother asked S.H. whether anyone had inappropriately touched her; the child answered no. But S.H.'s mother pressed S.H., specifically asking whether anyone had placed his penis in her private part; she responded that a boy at a playground had done so. When her mother continued to ask questions, S.H. began crying and told her mother that, when she was five years old, Cody made her lie on their sofa at their “University” apartment while he touched her vagina and made her suck and play with his penis. S.H. told her mother that on a later occasion at their “Scottsdale” [sic] home, Cody held her down on her mother's bed and put his penis in her buttocks. And S.H. told her mother that on a third occasion, Cody pulled her nightgown up and her underwear down and put his penis in her buttocks, again while in her mother's bedroom; on that occasion, her brother had answered her calls for help.
S.H.'s mother testified that Cody was the father of her other child, a boy about three years older than S.H., and that Cody often visited their home. Occasionally, Cody spent the night; she had continued a sexual relationship with Cody. Upon hearing S.H.'s allegations, the mother reported the disclosures and the medical diagnosis to the police.
Thereafter, on February 14, 2008, a social worker conducted a forensic interview of S.H. During the interview, S.H. described that, starting when she was five years old, Cody had touched her privates on three different occasions. She also stated that Cody had “humped” her, describing that “humping” meant “when somebody gets on top of you and goes up and down.” S.H. recounted further that Cody had put his penis in her buttocks and that “I screamed my brother's name because it hurt.” A video-audio recording of S.H.'s interview with the social worker was later played for the jury.
A warrant was issued for Cody's arrest. On March 3, 2008, two uniformed officers in a marked patrol vehicle spotted Cody walking through a residential community. They exited the patrol vehicle, approached him, and asked him his name. Cody replied that his name was “Mark Smith.” When one of the officers nevertheless handcuffed one of Cody's wrists, Cody jerked away from the officer's grasp, struck the officer in the chest, then fled on foot. The two officers gave chase and apprehended Cody, who was then fully handcuffed and placed in the back seat of the patrol vehicle. Another officer arrived at the scene, and in response to that officer's questions, Cody gave his correct name.
Cody was transported to a police station, where he was led into an interview room. Cody executed a form, acknowledging that he had been advised of, understood, and waived his Miranda rights. He then gave a statement to a police detective. During his statement, Cody said that he was 30 years old. He denied ever inappropriately touching S.H., denied ever having contracted chlamydia, and denied having had any sexually transmitted disease within the previous two years. Cody's police interview was audio-recorded and later played for the jury. After the police interview, a sample of Cody's urine was collected and tested for chlamydia; the results were negative.
At the time of the trial, S.H. was eight years old and in the third grade. She recalled that Cody often visited their home. She testified about three different episodes during which Cody had inappropriately touched her. The first episode occurred when she was living at University apartments. She and her brother were watching television in their mother's bedroom; her mother was also there, but was asleep. Cody called S.H. into the living room, put her on the sofa, then put his private part into her mouth. S.H. testified, “He made me suck it.” Also, S.H. testified, Cody Afterward, Cody told S.H. not to tell her mother, and then he left the residence.
The second episode occurred when she was living in Scottdale. S.H. recalled that she was then six years old. Her mother was at work; her brother had gone to the store with their grandmother; she had been left at home alone with Cody. “That day [Cody] was trying to hump me,” she recalled. S.H. testified that she was wearing her nightgown and lying on her mother's bed. Cody entered the bedroom, wearing only a t-shirt and boxers. He removed his clothing, pulled down her panties, got on top of her body and “was trying to hump me.” Afterward, he told her not to tell her mother or he and her mother would beat her.
The third episode occurred when she and her brother were alone with Cody at their Scottdale home. Cody directed S.H. into her mother's bedroom, and she complied. She was wearing a nightgown and panties; she lay on her mother's bed and began watching television. Her brother was in his bedroom, playing a video game. Cody went to his son's bedroom and told the boy to turn up the volume on the game. Then Cody entered the bedroom with S.H. S.H. testified that Cody got on the bed and “came behind me and pulled me towards his private part.” Cody lifted her nightgown, pulled down her panties, and “put his private part in my back part.” She yelled for her brother, who came to the bedroom, pulled her from under Cody and out of the covers, then returned to his bedroom. S.H. recalled that Cody picked her up and put her back into the bed. Cody attempted to get on top of her again; she called for her brother; her brother returned to the room and pulled her out again. Afterward, Cody told S.H. not to tell her mother what had occurred, and threatened to beat her if she told her mother.
S.H. testified about the day her mother asked her whether anyone had inappropriately touched her. She initially answered that no one had inappropriately touched her, then she said that a boy at a playground had done so. S.H. testified that she had told those lies because “I was scared from what [Cody] had said to me.”
S.H.'s brother was 11 years old and in the sixth grade at the time of the trial. The boy recalled that his father, Cody, would sometimes visit and spend time with him and S.H. at their home. The boy recalled an occasion when Cody and S.H. were in his mother's bed under the covers and he tried to pull S.H. out of the bed, but Cody was holding her. The boy had been in his bedroom, playing a video game; Cody had come to his room and instructed him to turn up the volume on the game, and the boy had complied. Cody then went to the mother's bedroom with S.H., and soon S.H. was calling for him. When he went to that bedroom, he found Cody and S.H. The boy pulled the cover off the two, and saw that Cody's arms and legs were around S.H. Cody was wearing only a t-shirt and underwear. The boy testified that he began “trying to pull her out from under the cover because he was holding her.” Later, after he had returned to his room, S.H. called him again; he returned to his mother's bedroom, where he again tried to pull S.H. away from his father.
The jury returned guilty verdicts on all eight counts of the indictment: Count 1, aggravated sodomy, by performing a sexual act involving the sex organs of Cody and the anus of S.H.; Count 2, aggravated child molestation, by inserting his penis into S.H.'s anus, causing injury and pain to child's anus; Count 3, aggravated child molestation, by touching his penis to S.H.'s vagina; Count 4, false imprisonment, by confining and detaining S.H., said act being separate and distinct from the act alleged in Count 5; Count 5, child molestation, by rubbing his penis on S.H.'s vaginal area, with the intent to arouse and satisfy his sexual desires; Count 6, false imprisonment, by confining and detaining S.H., said act being separate and distinct from the act alleged in Count 3; Count 7, obstruction of an officer, by obstructing and hindering a law enforcement officer in the lawful discharge of the officer's official duties by striking and running from the officer; and Count 8, giving a false name, by providing the false name to an officer in the lawful discharge of his official duties and with the intent to mislead the officer as to his identity.
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