State v. Lamberson

921 N.W.2d 879, 26 Neb. Ct. App. 642
CourtNebraska Court of Appeals
DecidedDecember 4, 2018
DocketNo. A-17-857
StatusPublished
Cited by4 cases

This text of 921 N.W.2d 879 (State v. Lamberson) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lamberson, 921 N.W.2d 879, 26 Neb. Ct. App. 642 (Neb. Ct. App. 2018).

Opinion

Welch, Judge.

*884INTRODUCTION

Cody Lamberson appeals his conviction for child enticement. He contends that the evidence was insufficient to support his conviction and that his trial counsel was ineffective by withdrawing his motion to suppress, failing to renew the motion during trial, and failing to adduce evidence in Lamberson's defense. Finding no merit to the arguments raised by Lamberson on direct appeal, we affirm his conviction and sentence.

STATEMENT OF FACTS

On March 25, 2016, the 15-year-old victim and her foster sister were at an outlet mall in Gretna, Nebraska. Using her cell phone and the outlet mall's Wi-Fi, the victim was having a conversation with her 24-year-old adopted brother Lamberson via "Snapchat," a social media messaging application. The 20-minute conversation consisted of the victim and Lamberson asking each other how they were doing, because they had not seen each other or otherwise communicated in about a year. The victim testified at trial that she and Lamberson did not talk about sex during their Snapchat conversation. Snapchat messages disappear after a short period of time if they are not saved. When the victim was leaving the outlet mall and *645would no longer have Wi-Fi available to continue the Snapchat conversation with Lamberson, she asked him to send her text messages instead of using Snapchat.

The following unedited conversation took place, via text message, between the victim and Lamberson:

[Lamberson:] Would you really hook up with me? 8:49 PM
[The victim:] Idk your drink and I'm got little sister 8:49 PM
[Lamberson:] Its OK I know you wouldn't 8:51 PM
[The victim:] I'm sorry. And you got a wife for that 8:51 PM
[Lamberson:] I know but I want u 8:53 PM
[The victim:] Why 8:53 PM
[The victim:] Text me bc I don't have WiFi 8:55 PM
*885[Lamberson:] Your super hot and show you how good it feels 8:56 PM
[The victim:] Ohhhhhhhhhhh 8:57 PM
[Lamberson:] Ya and I have been with another woman in five years and really like you 9:08 PM
[Lamberson:] Haven't been with 9:15 PM
[The victim:] Cody I'm your little sister 9:18 PM
[Lamberson:] I know it makes me want it a little more but I'll stop and not bring it up again I'm sorry 9:20 PM
[The victim:] You shouldn't even been asking 9:21 PM
[Lamberson:] It was a joke 9:22 PM
[The victim:] Oh okaii sorry 9:22 PM
[The victim:] Goodnight love you 10:25 PM
[Lamberson:] KNIGHT love Ya too hun 10:26 PM
[The victim:] Talk to you tomorrow?? 10:26 PM
[Lamberson:] Of course boo 10:27 PM

The victim showed the texts to her foster mother, who called police. Lamberson was arrested and charged with child enticement, a Class ID felony. See Neb. Rev. Stat. § 28-320.02 (Reissue 2016).

The trial in this matter was held on June 13, 2017. Although several witnesses testified at trial, the majority of the State's *646evidence was adduced through testimony from a Sarpy County sheriff's deputy, Darin Morrissey; through testimony from the victim; through exhibit 1, an audio recording of Lamberson's interview with law enforcement; and through another exhibit that contained screenshots of the text messages exchanged between Lamberson and the victim.

Morrissey is a computer and cell phone forensic examiner who investigates fraud and any cases involving computers and cell phones, which includes child pornography, child enticement, and some child abuse cases. On March 31, 2016, he was assigned a child enticement case involving Lamberson and a cell phone. On cross-examination, Morrissey testified that, during the interview with Lamberson, he asked Lamberson about the text that said, "Your super hot and show you how good it feels." That text concerned Morrissey because it alluded to sexual contact; however, he admitted that there was nothing in the text directly referencing sexual contact.

On redirect examination, Morrissey was asked:

Q. In dealing with child enticement cases, are you familiar with the term "hook up"?
A. Yes.
[Defense counsel]: Objection. Foundation, hearsay.
THE COURT: Sustained.
[The State]: Judge, can I ask on which portion?
THE COURT: Foundation.
[The State]: Thank you.
Q. ... Sir, in child enticement cases, are you-do you have to be familiar with quote, unquote, lingo of people?
A. Yes.
Q. And what's that mean?

At this point, defense counsel made another foundational objection which was overruled by the district court. Morrissey continued: "There are phrases for all different age groups that I have to be familiar with. Many of the types of cases-child enticement-are started over e-mails, text messages, applications which all deal with-...." Defense counsel again *647objected that the witness was reciting a narrative and that the answer was beyond the scope of the question. These objections were overruled, and the witness resumed:

*886All over messaging conversations. So I've seen lots of lingo, lots of phrases that-and know what they mean. That's just part of my job.
Q. ... Is it part of your job, in dealing with child enticement, sexual abuse, things of that nature, to know slang?
A. Yes.
Q. Why is that important?
A. Because that's how they communicate. Shortened words, certain phrases mean certain things. They don't spell it all out.
Q. So in that regard, what does "hook up" mean?

Defense counsel posed a foundational objection based on hearsay which was sustained by the court. The State argued that the defense opened the door for Morrissey's opinion "because that's what he was asking on cross-examination, his opinion as to what these mean. So I think he's allowed to give his opinion to what that means if [defense counsel] already went through that with him." The court repeated that it was sustaining the objection based upon foundation.

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Related

State v. Miranda-Henriquez
Nebraska Court of Appeals, 2020
State v. Diaz
Nebraska Court of Appeals, 2019
State v. Grutell
Nebraska Court of Appeals, 2019
State v. Lamberson
26 Neb. Ct. App. 642 (Nebraska Court of Appeals, 2018)

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Bluebook (online)
921 N.W.2d 879, 26 Neb. Ct. App. 642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lamberson-nebctapp-2018.