State v. Cody

• Decision Date: 12 January 2021
• Docket Number: No. A-19-852.,A-19-852.
• Parties: STATE OF NEBRASKA, APPELLEE, v. GREGORY S. CODY, APPELLANT.
• Court: Nebraska Court of Appeals

STATE OF NEBRASKA, APPELLEE, v. GREGORY S. CODY, APPELLANT.

No. A-19-852.

NEBRASKA COURT OF APPEALS

January 12, 2021

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: KEVIN R. MCMANAMAN, Judge. Affirmed.

Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

BISHOP, ARTERBURN, and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

Gregory S. Cody appeals his conviction for first degree sexual assault and his sentence of 12 to 16 years' imprisonment. On appeal, he assigns numerous errors governing the admissibility of evidence, jury instruction errors, insufficiency of the evidence to support his conviction, that the sentence imposed was excessive, and that his trial counsel was ineffective in various ways. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

1. BACKGROUND FACTS

In July 2016 around 2 a.m., Lincoln Police Officer Cody along with other Lincoln Police Officers responded to a call that A.H., who was missing and potentially suicidal, was at Holmes Lake sitting on the top of a 16-foot-tall baseball field backstop. Although officers encouraged A.H. to come down from the backstop, she refused to do so until she was told that she would not be placed in emergency protective custody (EPC). As A.H. attempted to climb down the backstop, her pants became caught prompting Cody to climb up a ladder to free her. Once on the ground, A.H. was handcuffed and advised that she needed to receive an evaluation. A.H. became upset, claiming she had been lied to, then attempted to escape but was apprehended. A.H. resisted an officer's attempt to seat her in a cruiser, so the officer placed her in a wristlock to gain her compliance. After A.H. complained about pain in her wrist, Cody transported her to the hospital for an examination but did not place her in EPC.

Within a month after these events, Cody sent A.H. a Facebook friend request, which she accepted. Cody and A.H. initially communicated via Facebook Messenger but later began meeting in person. During those meetings, A.H. would share her problems with Cody and he would tell her things like she was too pretty to cut up her arms. Eventually A.H. and Cody exchanged phone numbers. Sometimes they called or sent text messages to each other, but Cody, who was married, preferred using Facebook Messenger because it was easier to hide from his wife. Although the evidence was undisputed that Cody communicated with A.H. on Facebook, none of those communications were recovered; however, Cody's cell phone records established that A.H. and Cody continued to have contact with each other over the next year from November 2016 to October 2017.

On October 16, 2017, after A.H. had been drinking, she went to Holmes Lake Park and climbed onto the same backstop where she first met Cody. However, when A.H. attempted to get down, she put one leg over the backstop and apparently fell. When officers arrived at 1:27 a.m., they discovered an unconscious A.H. lying on the sidewalk. Although A.H. eventually regained consciousness, she was lethargic, slow to respond, and had slurred speech. A.H. was transported by ambulance to the hospital where she was admitted to the intensive care unit (ICU). Cody arrived at the hospital that evening and spoke with A.H. As Cody was leaving the hospital, he advised the nurses that A.H. was a "wild one" and stated that they may need to give her a horse tranquilizer.

Shortly after Cody left the hospital, A.H. began experiencing a panic attack. A nurse asked A.H. if Cody had hurt her and A.H. replied "yes." The nurse further inquired if Cody had hurt her sexually, and A.H. again said "yes." Another nurse then performed an initial assessment of A.H. during which A.H. disclosed that Cody had sexually assaulted her for more than a year with the most recent assault occurring at the zoo on October 15, 2017. A.H. also explained that she had not reported the assaults because she did not think anyone would believe her.

After A.H.'s disclosures, the Nebraska State Patrol (NSP) was contacted to investigate her allegations. Investigator Neal Trantham arrived at the hospital to speak with A.H. who he described as sad, withdrawn, and, at times, avoided eye contact. Although initially reluctant, A.H. eventually disclosed the details of her encounters with Cody. As part of his investigation, Trantham took A.H.'s cell phone and photographed her injuries, which included bruising around her left eye and on her right wrist and hand. A.H. claimed she received those injuries during her last encounter with Cody. After Trantham finished talking with A.H. and left the hospital, A.H. became anxious, tearful, and started looking at the clock, expressing concern for her safety, and twice attempted to leave the hospital. A state trooper eventually transported her home.

On October 18, 2017, Trantham, Investigator Stacie Lundgren, and Sergeant Bryan Jones took additional photographs of A.H.'s injuries, which included a mark on A.H.'s neck and an abrasion on her stomach. A.H. was again interviewed and participated in two controlled phone calls to Cody, recorded by law enforcement, during which A.H. confronted Cody about the allegations. However, the recording equipment did not function properly during the first phone call and only recorded A.H.'s statements, not Cody's responses.

During the first phone call, A.H. questioned Cody about his aggressive behavior during two incidents at the zoo. Trantham, who was present during the first phone call, heard Cody acknowledge an incident involving some unwanted contact between himself and A.H. and Cody stated that if that conduct was revealed, he would lose his job. During the second call, which occurred later that same evening, A.H. revisited the first incident at the zoo and said that she wanted to understand why Cody "didn't stop when [she] said to stop." Cody stated that he was "not making excuses" but then blamed his medication. After explaining how the medication affected him, Cody told A.H., "You are absolutely 100 percent right. You said 'stop.' Whatever I was doing, I should've stopped. I -- and again, you have a better recollection than I do. I just -- I fucked up, okay?" A.H. then asked about the second incident where Cody grabbed her and would not let go. Cody stated that he "completely misread the situation." A.H. then asked Cody, "Do you consider what you did that one night rape because I don't know why -- I feel like you were out of control." Cody did not answer but instead offered to meet with A.H. to discuss it. He also stated that he was "super happy" to see her on Sunday night but "obviously messed things up again," asked A.H. to forgive him, and stated that he would like an opportunity to redeem himself. When A.H. asked Cody whether he thought the things he had done "crossed a line," Cody asked, "What do you want from me, [A.H.]?" He again apologized and stated that he would like to remain friends. When A.H. asked "Has it just been about sex," Cody said no and explained that "it was about trying to make [her] feel better about [herself]." When A.H. then asked Cody why he always told her that she needed to be a good girl for him when he was trying to do sexual things to her, Cody said, "Okay, well." He then told A.H. that he had to go on a call but could meet with her later. A.H. asked Cody if he was going to call her later, and he said, "Well, are you going to continue to go around on this or are you going to be better with me?" When A.H. asked Cody what he meant, he said, "I mean, in the sense that are you going to continue to be upset with me." He again apologized and stated that he "fucked up" and "wasn't trying to hurt [her]." A.H. then asked Cody, "Do you want to have sex tonight?" When Cody implied that he was unavailable because he was working, A.H. said, "That's never stopped you before." Cody was silent for several seconds and then said, "Well, I gotta go to this call, so." A.H. told Cody to call her later, and he agreed. Cody then called A.H. three times between 5:45 and 6 p.m., but she did not answer because the investigators told her not to. After the second call, the investigators gathered some additional information from A.H. They also arranged for A.H. to stay in a hotel because she was concerned about her safety.

Later that same night, at approximately 8 p.m., Trantham, Jones, and Sergeant Townsend went to the Lincoln Police Department (LPD) to speak to Cody. After advising Cody that they were investigating a complaint, he stated, "Gee, I wonder from who. Do you know [A.H.]?" They asked Cody if he was willing to speak to them, and he replied, "Not without my attorney." When the troopers advised Cody that they knew about the phone calls with A.H. and just wantedto get his side of the story, Cody stated that he "knew something was up" and had spoken to an attorney because he "knew this might be coming." Cody then called his attorney, who advised him not to make a statement. Thereafter, Trantham seized Cody's cell phone. At that point, Cody stated, "This is serious. This is much different than excessive force" and mentioned that he had gone to visit A.H. at the hospital yesterday. Cody then stated "no good deed will ever go unpunished." Cody also stated, "I don't know what you guys assumed happened" but "I know what she told you happened." Cody's police cruiser was processed for evidence but no physical evidence was found to corroborate a sexual assault.

Later that night, when LPD Captains Ryan Dale and Donald Scheinost went to Cody's residence to check on him, Cody stated that "nothing happened" other than that he had been talking to a woman for several months, which would be hard on his wife. He...