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Court of Appeals of Georgia.


No. A13A0837.

Decided: November 19, 2013

Brian Steel, for Appellant. Robert D. James Jr. and Leonora Grant, 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” 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 “put his hand on my private—on the front of my private part․ He was touching the front of my private part.” 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 Scottsdale. 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 Scottsdale 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. “under the cover ․ [r]ight there next to each other․ They was touching.” 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.

1. Cody contends that the trial court erred by failing to exclude his police statement. He concedes that he was properly informed of his rights under Miranda v. Arizona.2 However, Cody claims that he unambiguously asserted his right to counsel, but was not afforded counsel before giving the statement. Therefore, he claims that his police statement was inadmissible.

Because Cody's police interview was audiotaped and there are no relevant controverted facts in the record, the trial court's application of the law to the undisputed facts is subject to de novo appellate review.3

At the beginning of the interview, the detective stated his name, the date and time, and that he and Cody were in a police interview room. In response to the detective's questions, Cody stated his name, that he was not under the influence of any drug or alcohol, that he could read and write English, that he had attended school through the eleventh grade, and that he had thereafter earned his GED. Cody initialed a form acknowledging that information. The detective then provided Cody a “Statement of Miranda Rights” form, which the detective read aloud after asking Cody to follow along,4 then asked Cody to sign a form so as to acknowledge that “I have read the above statement of my rights and I understand each of those rights.” The detective then asked Cody, “You understand, right? Okay, sign right there [on the form].” The following colloquy ensued:

CODY: Can I get a lawyer now? Right now?

DETECTIVE: We won't be able to provide you one right now. We can, uh, we can, you can ask for a public defender and we can do the interview later. That's your choice.

CODY: I would rather go on and get this over with, man, ‘cause I don't understand why she is doing this.

DETECTIVE: Okay. Before we, uh—I'm, tell you what, let's just go ahead with this part of the line then we'll clarify that up what you said. Uh, this is the waiver of rights, saying, having these rights in mind, you waive and give up these rights and willingly make a statement. So, for us to-uh, for you to make a statement, talk about you know what may be going on here, if you feel that she's doing something to you, or, or if you have any information to give me, I would definitely love to get that information, because I'm not going to have it without talking to you. But uh, uh, again you know you're gonna have to, uh, uh, sign the form and be ready to talk.

[Cody signs form.]

CODY: [Unclear]

DETECTIVE: Okay. Last thing I just want to uh, clarify what you said. Uh, uh, I can't provide a lawyer this second, what we could do is you can ask a public defender to come at a later time, and the interview can be conducted at a later time. You've indicated that you'd like to not do that and you want to just go ahead and make a statement now and talk about this now, is that correct?

CODY: Um, yeah.

DETECTIVE: That's correct?

CODY: Yeah. I want to know what's going on. I don't know what's going on. I do not even know what the charges is.

From there, the detective proceeded with substantive questions pertaining to S. H.'s allegations.

On appeal, Cody claims that, although he denied during the interview ever sexually or otherwise inappropriately touching S.H. and also denied having contracted any sexually transmitted disease within the preceding two years, harmful facts were nonetheless revealed during the interview. Cody cites his statements that he had contracted and been cured of a sexually transmitted disease (although not chlamydia) during his teenage years; that he had been in the bed with S.H. while the two of them and his son watched movies, wrestled or played together; and that S.H. may have seen him shirtless, but wearing undershorts.

Cody maintains that the jury should not have been presented with his incriminating police statement, arguing that, upon being advised of his Miranda rights, he unambiguously invoked his right to counsel with the statements: “Can I get a lawyer now? Right now?” “A suspect who asks for a lawyer at any time during a custodial interrogation may not be subjected to further questioning by law enforcement until an attorney has been made available or until the suspect reinitiates the conversation.”5 Thus, even when an arrested suspect has unequivocally invoked his right to counsel, it does not necessarily follow that any subsequent police statement must be excluded.6 “Instead, the law requires analysis of whether, after a request for counsel, the police subjected the defendant to further interrogation, and, if so, whether the additional questioning was initiated by the defendant rather than the police.”7

Even accepting (for the sake of argument) Cody's claim that his statements—“Can I get a lawyer now? Right now?”—constituted an unambiguous request for counsel,8 the circumstances require us to consider whether the detective subjected Cody to further interrogation and whether the additional questioning was initiated by Cody rather than the detective.9

In this context, “interrogation” is defined as “express questioning by law enforcement officers” or its functional equivalent—“any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” 10

“The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.”11

Here, the detective's immediate response to Cody's questions—“Can I get a lawyer now? Right now?”—did not fall within that definition of “interrogation.”12 The detective's response neither expressly questioned Cody nor equated to words or actions that the detective should have known were reasonably likely to elicit incriminating information from Cody.13 Furthermore, the additional questioning that ensued was initiated by Cody; that is, after hearing the detective's response, Cody revealed to the detective, “I would rather go on and get this over with․”14

A divided U.S. Supreme Court addressed the issue of “initiating conversation” in Oregon v. Bradshaw.[ 15] A four-justice plurality held that an accused initiates conversation when he “evince[s] a willingness and a desire for a generalized discussion about the investigation.” [ 16] Four other justices believed that an accused initiates conversation when he “reopens the dialogue about the subject matter of the criminal investigation.” [ 17] Eight of the nine justices agreed that the “initiation” question was the first of a two-step process for determining whether an accused had waived the right to counsel-even if the accused initiated the conversation, there must then be an inquiry whether a valid waiver of the rights to counsel and to remain silent occurred.18

“Whether there was a wavier of the previously-invoked right to counsel is based upon the totality of the circumstances.”19

Here, after Cody revealed that he “would rather go on and get this over with,” the detective's statements and actions were permissibly aimed at clarifying Cody's apparent decision to waive the right to counsel and the right to remain silent, and thus proceed with the interrogation without counsel.20 Indeed, Cody thereupon affirmed his decision—orally and by executing a written waiver—to give up those rights and proceed with un-counseled interrogation.21 Under the totality of these circumstances, the trial court did not err in admitting Cody's police statement.22

2. Cody contends that the trial court violated OCGA § 17–8–5723 during the final charge when it instructed the jury regarding Count 3 of the indictment. That count alleged that Cody committed aggravated child molestation, by “touching his penis to [S. H.'s] vagina, with the intent to arouse and satisfy the sexual desires of the accused; said act causing physical injury to the child, to wit: giving the child a sexually transmitted disease.”

Cody specifically contests these instructions:

For the purpose of aggravated child molestation in determining whether the child was injured, you may consider whether said child contracted a sexually transmitted disease from the defendant. The question of whether or not the child contracted a sexually transmitted disease from the defendant is a determination solely for you, the jury, to decide.

According to Cody, these instructions violated OCGA § 17–8–57 because the trial court effectively told the “jury that if Appellant had given the alleged victim a sexually transmitted disease, then this fact could satisfy the essential element of physical injury as alleged.”

Cody cites no authority that OCGA § 17–8–57 was thereby violated, and we find none.24 Having read as a whole the trial court's final charge, we conclude that the flagged language did not violate the cited statute.25

3. Cody contends that the “life” sentences imposed on the two counts of aggravated child molestation were not authorized by law.

Cody points out that, effective July 1, 2006, the General Assembly amended OCGA § 16–6–4 so as to allow a sentence of life in prison.26 Prior thereto, the statute provided for punishment of “imprisonment for not less than ten nor more than 30 years.”27 Citing Ewell v. State,28 Cody claims that the “life” sentences must be vacated and the case remanded for resentencing, asserting that, given the evidence, a possibility exists that the jury found him guilty of crimes that occurred before the amendment's July 1, 2006 effective date, such that the “life” sentences were not authorized.29 This claim is without merit.

The two counts of aggravated child molestation each alleged that the offenses occurred after the July 1, 2006 effective date: “between the 1st day of November, 2006, and the 30th day of September, 2007, the exact date of the offense being unknown.”30 Regarding those counts, S.H. testified that the underlying episodes occurred at their Scottsdale home. S. H.'s mother's testified that the family (the mother, S. H., and S. H.'s brother) moved (out of the University apartments and) to their Scottsdale home in September 2006.

Given the foregoing, the trial court did not err in sentencing Cody pursuant to that version of OCGA 16–6–4 effective July 1, 2006; Cody's reliance upon Ewell is misplaced, as that case is inapposite.31

4. Citing Drinkard v. Walker,32 Cody contends that the trial court erred by failing to merge various counts.

(a) Cody argues that the trial court should have merged Count 1, which alleged that he committed aggravated sodomy (by performing a sexual act involving his sex organs and S. H.'s anus), into Count 2, which alleged that he committed aggravated child molestation (by inserting his penis into S. H.'s anus, an act that caused injury and pain to the child). Cody posits that both counts were “based on the same act of sodomy,” and that Count Two merely “alleged the additional elements of Appellant's intent to arouse and satisfy his sexual desires and the causing of physical injury to the victim, to wit: pain to the victim's anus.”

There is no merit in this argument. Supporting two separate convictions, the state adduced S. H.'s testimony and out-of-court statements concerning Cody's sexual conduct during the second and third episodes.33

(b) Cody contends that the trial court erred by failing to merge Count 5, which alleged child molestation (by rubbing his penis on S. H.'s vaginal area), into Count 3, which alleged aggravated child molestation (by touching his penis to S. H.'s vagina, thereby causing injury of sexually transmitted disease). Cody posits, “The only additional element in Count Three was that [he] caused physical injury to the child, to wit: a sexually transmitted disease.”

There is no merit in this argument. Supporting two separate convictions, the state adduced S. H.'s testimony and out-of-court statements concerning Cody's sexual conduct during the second and third episodes.34

5. Cody contends that the trial court erred by sentencing him as a recidivist under OCGA § 17–10–7(a).

Seeking recidivist punishment, the state introduced at the sentencing hearing certified copies of two previous felony convictions for Cody: a 1995 burglary conviction and a 2004 second-degree criminal damage to property conviction.

(a) Although conceding that he had been convicted of prior felony offenses, Cody argues that he had not been “sentenced to confinement in a penal institution” as contemplated by OCGA § 17–10–7(a), citing that his prior sentences were either wholly or in part suspended or probated. This argument has already been rejected .35 “Since [Cody] was sentenced to ․ confinement in a penal institution with the privilege of serving it on probation, his sentence was in compliance with OCGA § 17–10–7(a).”36

(b) Cody asserts that the trial court failed to exercise its discretion to consider whether to probate or suspend the maximum sentences of life imprisonment, as authorized by OCGA § 17–10–7(a). “[U]nless affirmative evidence shows otherwise, the trial court is presumed to have exercised its discretion in imposing sentence.”37 Cody cites no such evidence; moreover, the transcript of the sentencing hearing reveals that the trial court expressly noted the language affording judicial discretion. Cody has demonstrated no basis for disturbing the sentences imposed.38

Judgment affirmed.

PHIPPS, Chief Judge.

ELLINGTON, P. J., and BRANCH, J., concur.

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