State v. Cole, A-21-1020

CourtCourt of Appeals of Nebraska
Writing for the CourtBISHOP, JUDGE.
PartiesState of Nebraska, appellee, v. Cedrick D. Cole, appellant.
Docket NumberA-21-1020
Decision Date13 September 2022

State of Nebraska, appellee,
v.

Cedrick D. Cole, appellant.

No. A-21-1020

Court of Appeals of Nebraska

September 13, 2022


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: Andrew R. Jacobsen, Judge.

Joe Nigro, Lancaster County Public Defender, and John C. Jorgensen for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

Pirtle, Chief Judge, and Bishop and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

BISHOP, JUDGE.

I. INTRODUCTION

Following a jury trial in Lancaster County District Court, Cedrick D. Cole was convicted of first degree arson and sentenced to 25 to 40 years' imprisonment. Cole appeals his conviction and sentence, claiming there was insufficient evidence to support his conviction, his sentence was excessive, and he received ineffective assistance of trial counsel. We affirm.

II. BACKGROUND

On Saturday, October 10, 2020, Cole was with his then-girlfriend Jordan Ragland at her apartment in Lincoln, Nebraska, and they argued about Cole's alleged infidelity. Following their argument, Ragland asked her friend, Ashley Rice, to pick her up from the apartment and help her move her belongings to her mother's house. Rice arrived to pick up Ragland in the early afternoon. Following Ragland's departure, Cole made numerous calls to Ragland, most of which she ignored.

1

Approximately 10 minutes after she left the apartment, Ragland received a Snapchat video from Cole showing her couch on fire. In a video recording of Ragland opening and viewing the Snapchat video, Ragland can be heard saying "Oh my god." Rice then asked Ragland, "He actually set it on fire?" Ragland responded "[y]es." After viewing the Snapchat video, Rice and Ragland began heading back to the apartment. Cole testified that he had called Ragland numerous times to alert her that her couch had caught fire, but to no avail. He explained that this was the reason he sent Ragland a Snapchat video of the burning couch.

Cole claimed he attempted to subdue the fire by dousing the flames with flour and water. Ragland's neighbor, Shelby Marshall, assisted by running jugs of water over from her apartment to throw at the fire. Despite these efforts, the flames became uncontrollable and spread beyond the couch to the rest of the apartment unit. According to Marshall, she was "more active in trying to put the fire out" than Cole. She further stated that Cole seemed "lethargic." According to Cole, he had suffered a previous injury to his leg, which limited his mobility. Cole called 911 to request emergency assistance. However, Marshall stated that Cole did not call 911 until she instructed him to do so. Lincoln Fire and Rescue arrived shortly thereafter and successfully suppressed the fire.

Cole left the scene of the fire prior to the arrival of emergency personnel because he was aware of outstanding warrants for his arrest. After leaving Ragland's apartment, Cole asked Rice and Ragland to pick him up. Rice dropped off Ragland and Cole at a friend's house a few blocks away from the apartment. Cole remained at the friend's house while Ragland walked to the scene of the fire and spoke with law enforcement.

On January 28, 2021, the State filed an information charging Cole with first degree arson, a Class II felony. A jury trial was held in October. Evidence related to the events occurring on October 10, 2020, was presented through witness testimony, photographs, voice recordings, and video recordings. In addition to the previously described evidence, we will set forth further evidence as necessary to address the issues on appeal.

Surveillance footage from a neighboring building on October 10, 2020, showed Cole pick up an item off the ground near a charcoal grill outside of Ragland's apartment unit. Rice testified that Ragland and Cole had previously stored lighter fluid next to the grill and that the item Cole picked up from near the grill "would have to [have been] lighter fluid." Ragland and Cole testified that they stored the lighter fluid in the garage. Cole testified that surveillance footage showed him picking up a water bottle which only contained water. Fire Marshal Thomas Schmidt, who was qualified as an expert fire inspector at trial, stated that he did not find any remnants of a lighter fluid bottle in the apartment or near the grill.

Ragland testified that she frequently filled a torch with butane while sitting on the couch in her apartment, sometimes spraying excess butane onto the couch. She further stated that she habitually lit incense, which she described as "almost like . . . a punk for fireworks," and she placed them between couch cushions, among various other locations throughout her apartment. She surmised that a previous fire that had started on the same couch was ignited by her incense; the previous fire took place in September 2020. She noted that at that time firefighters had advised her to dispose of the burned couch cushions because they were "more flammable" due to the release of certain oils in the microfibers of the couch. She stated that she was "sure" she placed incense in the couch on the day of the October 10th fire.

2

After deliberation, the jury found Cole guilty of first degree arson and the district court entered judgement on the verdict. At a sentencing hearing held on November 23, 2021, the court sentenced Cole to 25 to 40 years' imprisonment with 143 days' credit for time served. A written sentencing order was entered that same day.

Cole appeals.

III. ASSIGNMENTS OF ERROR

Cole claims, restated, that (1) the evidence was insufficient to sustain his conviction, (2) his trial counsel was ineffective in that counsel failed to challenge the lack of evidence regarding a material element of the crime, and (3) his sentence was excessive.

IV. STANDARD OF REVIEW

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, and such matters are for the finder of fact. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021). 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. Id.

Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).

An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).

V. ANALYSIS

1. Sufficiency of Evidence

Cole claims that the evidence adduced at trial was insufficient to sustain his conviction for first degree arson.

Neb. Rev. Stat. § 28-502(1) (Reissue 2016) provides that
[a] person commits arson in the first degree if he or she intentionally damages a building or property contained within a building by starting a fire or causing an explosion when another person is present in the building at the time and either (a) the actor knows that fact, or (b) the circumstances are such as to render the presence of a person therein a reasonable probability

It is undisputed that at least one other person was physically...

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