                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                CODY WILLIAMS GEDDINGS,                                No. 61849
                Appellant,
                vs.                                                              FILED
                THE STATE OF NEVADA,
                Respondent.
                                                                                 FEU 2 5 2016

                                 ORDER OF REVERSAL AND REMAND               RV




                            This is an appeal from a judgment of conviction of one count of
                second-degree felony murder by child neglect and one count of child
                neglect with substantial bodily harm Eighth Judicial District Court,
                Clark County; Douglas W. Herndon, Judge.
                            Appellant Cody Geddings challenges his judgment of
                conviction, arguing that there was insufficient evidence to support his
                convictions, that the two counts violate the Double Jeopardy Clause, and
                that statements he made during interrogation should have been
                suppressed pursuant to Miranda v. Arizona, 384 U.S. 436, 479(1966).'



                      1 Geddings  also argues that the district court erred in denying his
                motion for a new trial because the second amended information failed to
                provide sufficient notice of the prosecution's theory and because the
                statutes under which he was convicted are unconstitutionally vague. We
                conclude that this argument lacks merit. See Noonan v. State, 115 Nev.
                184, 188-89, 980 P.2d 637, 639-40 (1999) (concluding that an indictment
                alleging murder by child abuse provided sufficient notice to support a
                conviction of second-degree felony murder by willful endangerment or
                neglect of a child). In addition, Geddings argues that the district court
                abused its discretion in denying his motion to dismiss, or, in the
                alternative, request for an adverse inference instruction, because the State
                failed to preserve certain evidence. We conclude that this argument is
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                We find that his first two arguments are without merit. As to his motion
                to suppress the statements he made during his interrogation, he argues
                the district court should have ruled that he was in custody for the
                purposes of Miranda because he did not reasonably believe that he was
                free to leave when being interviewed at the police station. We agree and,
                thus, reverse the district court's judgment of conviction and remand this
                matter for a new trial.
                Sufficiency of the evidence
                             Geddings argues that the State failed to prove that he
                committed second-degree felony murder or substantial bodily harm beyond
                a reasonable doubt. The standard of review for a challenge to the
                sufficiency of the evidence 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."   Rose v. State, 123 Nev. 194, 202, 163 P.3d 408, 414 (2007)
                (internal quotations omitted). In rendering its decision, the jury is tasked
                with "assess[ing] the weight of the evidence and determin[ing] the


                ...continued
                also without merit because the evidence was not material and the failure
                to gather the evidence was not negligent, grossly negligent, or based on
                bad faith. Daniels v. State, 114 Nev. 261, 267, 956 P.2d 111, 115 (1998).
                Finally, Geddings further challenges his conviction on the following
                grounds: (1) prosecutorial misconduct; (2) the district court improperly
                admitted evidence of his prior judgment of conviction for child
                endangerment; (3) the district court abused its discretion in denying his
                motion to strike expert testimony; (4) the district court abused its
                discretion in denying his Batson challenge; (5) the district court abused its
                discretion in denying his challenges for cause; and (6) cumulative error.
                Because we are reversing and remanding for a new trial based upon the
                suppression issue, we need not address Geddings' remaining claims.


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                 credibility of witnesses."    Id. at 202-03, 163 P.3d at 414 (internal
                 quotations omitted). A jury is free to rely on both direct and
                 circumstantial evidence in returning its verdict.   Wilkins v. State, 96 Nev.
                 367, 374, 609 P.2d 309, 313 (1980).
                             The jury in this case heard evidence regarding Geddings'
                 statement to police wherein he stated that while he was working on a car,
                 he placed a large and heavy tank on a "wobbly" chair and then allowed a
                 sixteen-month-old child to play in the area. He further admitted that he
                 saw the child by the tank, pushing on the chair. As such, a rational jury
                 could have determined that it was "inherently dangerous" for Geddings to
                 place the heavy tank on the unstable chair and to allow the child near it
                 without properly supervising her, and that Geddings' actions were a direct
                 cause of the child's death. Sheriff, Clark Cty. v. Morris, 99 Nev. 109, 118-
                 19, 659 P.2d 852, 859-60 (1983); see also NRS 200.070(1).
                             Geddings further stated that after the accident he noticed the
                 child was pale, stiff, and unresponsive, but he still failed to get her
                 medical attention. The State presented expert witness testimony from a
                 physician who testified that timing is critical with brain injuries and that
                 any additional time without medical assistance under these circumstances
                 can be the difference between life and death. Accordingly, a rational trier
                 of fact could have determined that Geddings' failure to get the child
                 medical attention after she suffered a head injury caused either "[b]odily
                 injury which creates a substantial risk of death," or "protracted loss or
                 impairment of [brain] function." NRS 0.060(1).
                             Thus, "after viewing the evidence in the light most favorable
                 to the prosecution, any rational trier of fact could have found the essential



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                elements of the crime beyond a reasonable doubt." Rose, 123 Nev. at 202,
                163 P.3d at 414.
                Double jeopardy
                            Geddings also argues that the district court erred in refusing
                to dismiss count two because it violates the Double Jeopardy Clause. "The
                Double Jeopardy Clause protects against . . . multiple punishments for the
                same offense."     Jackson v. State, 128 Nev., Adv. Op. 55, 291 P.3d 1274,
                1278 (2012). This court utilizes the test set forth in Blockb urger v. United
                States, 284 U.S. 299, 304 (1932), to determine the permissibility of
                multiple convictions• for the same act or transaction.   Jackson, 128 Nev.,
                Adv. Op. 55, 291 P.3d at 1278. In Blockburger, the Supreme Court held
                that "where the same act or transaction constitutes a violation of two
                distinct statutory provisions, the test to be applied to determine whether
                there are two offenses or only one, is whether each provision requires proof
                of a[n additional] fact which the other does not." 284 U.S. at 304. This
                court reviews de novo issues of double jeopardy.    Jackson, 128 Nev., Adv.
                Op. 55, 291 P.3d at 1277.
                            Here, the elements of child neglect are present in both counts.
                However, child neglect with substantial bodily harm also requires that the
                victim suffer either "[b]odily injury which creates a substantial risk of
                death or which causes serious, permanent disfigurement or protracted loss
                or impairment of the function of any bodily member or organ," or
                "[p]rolonged physical pain." NRS 0.060(1)-(2). In contrast, felony murder
                by child neglect does not require any of those elements, but instead
                requires that the underlying felony be "inherently dangerous" and that
                there be "an immediate and causal relationship between the felonious
                conduct ... and the death of the [child]," which are not elements of child
                neglect with substantial bodily harm. Sheriff, Clark Cty., 99 Nev. at 119,
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                  659 P.2d at 860; see also NRS 200,070(1) (providing that murder includes
                  the "involuntary killing. . . in the commission of an unlawful act, which, in
                  its consequences, naturally tends to destroy the life of a human being, or is
                  committed in the prosecution of a felonious intent"). Therefore, because
                  each offense contains an element that the other does not, we conclude in
                  this case that double jeopardy does not preclude a charge of second-degree
                  felony murder by child neglect and a charge of child neglect with
                  substantial bodily harm.
                  Motion to suppress
                              Finally, Geddings argues that he was in custody while being
                  interrogated and, therefore, was entitled to a Miranda warning. Miranda
                  v. Arizona requires that a suspect in custody be given the proper warnings
                  prior to interrogation, and, if adequate warnings are not given, "no
                  evidence obtained as a result of interrogation can be used against him."
                  384 U.S. 436, 479 (1966). "[A]n individual is deemed 'in custody' where
                  there has been a formal arrest, or where there has been a restraint on
                  freedom of movement of the degree associated with a formal arrest so that
                  a reasonable person would not feel free to leave." State v. Taylor, 114 Nev.
                  1071, 1082, 968 P.2d 315, 323 (1998). When reviewing "in custody"
                  determinations "[t]he district court's purely historical factual findings
                  pertaining to the 'scene- and action-setting' circumstances surrounding an
                  interrogation is entitled to deference and will be reviewed for clear error."
                  Rosky v. State, 121 Nev. 184, 190, 111 P.3d 690, 694 (2005). "However, the
                  district court's ultimate determination of whether a person was in
                  custody. . . will be reviewed de novo." Id.
                              "We consider the totality of the circumstances in deciding
                  whether [a defendant] was in custody; no single factor is dispositive."

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                   Avery v. State, 122 Nev. 278, 286, 129 P.3d 664, 670 (2006) "Important
                   considerations in deciding whether or not [a defendant] was in custody
                   include the site of the interrogation, whether the investigation has focused
                   on the subject, whether the objective indicia of arrest are present, and the
                   length and form of the questioning." Id. at 287, 129 P.3d at 670; see also
                   Taylor, 114 Nev. at 1082 n.1, 968 P.2d at 323 n.1 (setting forth factors to
                   consider when determining whether objective indicia of arrest are
                   present).
                               Here, according to the record, detectives were attempting to
                   contact Geddings to talk to him about an incident involving his girlfriend's
                   infant daughter who was injured while Geddings was caring for her. The
                   child suffered a severe skull fracture that her treating physicians said
                   could not have occurred as a result of the child falling from her playpen, as
                   Geddings had earlier indicated. A detective eventually spoke with
                   Geddings after staking out his mother's house, initiating a traffic stop
                   after his mother left her home, and asking her to call Geddings. Geddings
                   voluntarily agreed to meet with law enforcement at a casino parking lot;
                   however, shortly after he arrived, approximately five police cars pulled up
                   and multiple uniformed officers drew their guns and ordered Geddings out
                   of his car. Geddings was then handcuffed, searched, and placed in the
                   back of a squad car. Geddings was eventually transferred to the front seat
                   of the detective's unmarked car and reluctantly agreed to be taken to the
                   police station to be interviewed. His personal items, which were removed
                   when he was searched in the casino parking lot, were not returned to him
                   prior to the interview.
                               Once at the police station, Geddings was placed in an
                   interrogation room but was never Mirandized. There is also a dispute as

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                   to when Geddings' handcuffs were removed—Geddings testified that they
                   were not removed until after he was placed in the interrogation room, and
                   a detective testified that he thought he removed the handcuffs prior to
                   transporting Geddings to the police station. Nonetheless, Geddings was
                   clearly the focus of the investigation because the child-victim's mother
                   identified him as the only person with the child when the injury occurred.
                   Although the interrogation was not extremely long, it did last two hours,
                   and it consisted of a number of law enforcement tactics unduly designed to
                   promote confessions, including telling Geddings that only a "monster"
                   would hurt a child and that if he admitted the truth it may help save the
                   child's life. At the conclusion of the interview, Geddings was arrested.
                               A full review of the record, taking into account the totality of
                   the circumstances, indicates that Geddings was in custody for the
                   purposes of Miranda because a reasonable person in his situation would
                   not feel free to leave. Therefore, we conclude that the admission of
                   Geddings' statements into evidence was in error.
                               Reversal is mandated when an error is of a constitutional
                   dimension, unless the error is determined to be harmless beyond a
                   reasonable doubt.   See Diomampo v. State, 124 Nev. 414, 428, 185 P.3d
                   1031, 1040 (2008) ("[R]eversal is unwarranted if we conclude without
                   reservation that the verdict would have been the same in the absence of
                   error." (internal quotations omitted)). Geddings originally maintained
                   that the child was injured when she fell from her playpen. It was only
                   after Geddings' was taken to the police station for interrogation that he
                   changed his story to the child being hit on the head by a large tank that
                   fell off a wobbly chair. Because we are not convinced that the admission of
                   Geddings' statements• was harmless beyond a reasonable doubt, we

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                conclude that the judgment of conviction must be reversed and this matter
                remanded for a new trial.
                           Accordingly, we
                            ORDER the judgment of the district court REVERSED AND
                REMAND this matter to the district court for a new trial.

                                                                                 J.
                                                  Hardesty


                                                                 ty--            J.
                                                  Douglas


                                                            4,2                  J.
                                                   Cherry



                cc: Hon. Douglas W. Herndon, District Judge
                     Clark County Public Defender
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




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