United States Court of Appeals

for the Fifth Circuit

No. 21-40634

United States of America, 

Plaintiff—Appellee,

versus

Cody Ryan Turner, 

Defendant—Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:20-CR-272-1

Before Jones, Ho, and Wilson, Circuit Judges.

Per Curiam: *

After a three-day jury trial, Cody Ryan Turner was convicted of 

attempted coercion and enticement of a minor in violation of 18 U.S.C. 

§ 2422(b). He asks this court for a new trial based on two of the district 

court’s evidentiary rulings. Because the district court’s rulings were not in 

error, the judgment is AFFIRMED.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 2, 2022

Lyle W. Cayce

Clerk

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BACKGROUND

Turner attempted to execute a plan to meet up with a 13-year-old girl 

he had been conversing with online for the purpose of engaging in sexual 

activity with her. Using a messaging app, he sent sexually suggestive 

messages to a profile with the username “Becka Gerl,” which was 

represented by a photo of a young girl with braces sticking out her tongue. 

After initially not responding to his messages, she eventually told him that 

she was only 13 years old and that he likely was confusing her with someone 

else. Undeterred, he offered to be her “sugar daddy” if she was willing to 

meet with him in secret. Becka Gerl expressed hesitancy at first, but after 

Turner persisted, she eventually showed interest in meeting. The two 

continued conversing over the next couple of months. The conversation was 

primarily sexual in nature, with Turner proposing that he “teach” Becka 

Gerl how to engage in various sexual acts at their eventual meeting.

On September 8, 2020, they agreed that Turner would drive from 

Irving, Texas to Becka Gerl’s apartment in Plano, Texas for this sexual 

encounter. He urged her to remain “open minded to all things sex.” But 

before Turner drove to the apartment, he asked Becka Gerl whether she was 

“a cop or part of a sting unit.” She said no. He further noted: “You are very 

young so there is a big risk for me. Just want to verify.” He followed up with: 

“But I do want to cum over now.” And thus he left for her apartment.

Fortunately, Becka Gerl was actually Special Agent Jennifer Mullican, 

a member of the FBI’s child exploitation task force. When Turner arrived at 

the address Becka Gerl provided, he was met with law enforcement officers 

and was promptly arrested. Turner’s defense from the moment he was 

arrested was that he thought the whole chat was “BS” and that he was 

conversing with an adult posing as a minor for purposes of “role-play.” He 

said that he drove to the apartment complex to “call out” whomever was 

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behind the chat, never actually believing a real 13-year-old girl awaited him. 

During questioning, he also volunteered that, in 2009, he had been arrested 

in Fort Worth, Texas for online solicitation of a minor who was also 13 years 

old.

1

 When Turner’s criminal history checks came back clear, Turner 

explained that the former arrest had been expunged “because of the– the 

same thing that I’m trying to explain now.” He elaborated that he felt the 

“same thing I felt in ’09,” namely that the chats were all fake. According to 

him, he previously played this game of “role-play” with the “fake” child on 

the other end, but this was the first time he tried to meet in order to “call BS 

on” the other person.

A grand jury indicted Turner on one count of attempting to persuade 

or entice a minor to engage in sexual activity, and the case went to trial. 

Relevant here, two evidentiary disputes arose during the trial. First, the 

Government sought to admit evidence of Turner’s statements regarding his 

2009 arrest for online solicitation of a minor. It contended that this prior 

arrest was relevant to discern Turner’s intent in driving to Becka Gerl’s 

apartment in light of his defense that this whole ordeal was part of some 

“role-play” game. The defense objected, contending that this was 

propensity evidence under Federal Rule of Evidence 404(b). The district 

court allowed the evidence due to the “clash about what the defendant’s 

intent was,” and it explained that “evidence of an uncharged offense for 

solicitation of a minor is relevant to intent, a proper non-character issue 

under Rule 404(b), because it requires the same intent as the charged offense 

and because evidence of this uncharged offense lessens the likelihood that the 

defendant committed the charged offense with innocent intent.” The court 

1 Unlike here, he had not actually gone to meet the previous girl but was arrested 

in his apartment.

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also gave the jury a limiting instruction both when the evidence was offered 

and when the jury was given final instructions.

Second, the defense challenged as irrelevant the admission of 

evidence showing that, while Turner was arranging to meet up with Becka 

Gerl, he was also texting adults to arrange for commercial sex in Plano that 

same day. The Government countered that commercial sex was Turner’s 

back-up plan in the event things did not go as planned with Becka Gerl, and 

that the evidence was thus relevant to establish that he intended “sex . . . to 

happen in some way, shape, or form on September 8th, 2020.” The district 

court again agreed, concluding that the evidence was admissible under 

Rule 404(b) because it went “to Mr. Turner’s intent in appearing at the 

prearranged meet-up location in Plano, Texas, which Mr. Turner has 

squarely put at issue in this case.” This evidence was “necessary to 

corroborate other evidence the government would put in of Mr. Turner’s 

actual intent on that day.” The court further concluded that, even though 

the communications with sex workers “may be somewhat prejudicial to 

Mr. Turner,” any prejudicial effect did “not substantially outweigh their 

probative value.” The district court again issued limiting instructions both 

when the evidence was presented to the jury and in the final jury instructions.

The jury convicted Turner as charged. The district court sentenced 

Turner to 120 months in prison and 10 years of supervised release. Turner 

timely appealed.

STANDARD OF REVIEW

The district court’s evidentiary rulings are reviewed for abuse of 

discretion, with heightened review in criminal cases. See United States v. 

Kinchen, 729 F.3d 466, 470 (5th Cir. 2013). “A trial court abuses its 

discretion when its ruling is based on an erroneous view of the law or a clearly 

erroneous assessment of the evidence.” Id. at 470–71 (quoting United States 

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v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008)). But erroneous admissions 

under Rule 404(b) are not reversible if the error was harmless. Id. at 471.

DISCUSSION

Based on the admission of his 2009 arrest and his arrangements for 

commercial sex, Turner asks this court to vacate his conviction and remand 

for a new trial. We decline to do so. The district court did not abuse its 

discretion when ruling on these evidentiary issues.

2

Rule 404(b) permits the admission of evidence of other crimes for 

purposes other than to prove the defendant’s character, such as to prove 

“motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident.” FED. R. EVID. 404(b). Even for 

such purposes, however, proof of an uncharged crime or other act must be 

sufficient to support, by a preponderance of the evidence, a conclusion that 

the prior “act actually occurred.” United States v. Ramos-Rodriguez, 

809 F.3d 817, 821 (5th Cir. 2016). Federal Rule of Evidence 403 also requires 

that the probative value of the evidence not be “substantially outweighed by 

a danger of one or more of the following: unfair prejudice, confusing the 

issues, misleading the jury, undue delay, wasting time, or needlessly 

presenting cumulative evidence.” FED. R. EVID. 403. This court gives 

“great deference” to the district court’s “informed” decision under

Rule 403. United States v. Williams, 620 F.3d 483, 491 (5th Cir. 2010) 

(internal quotation marks omitted). Accordingly, this court will not reverse 

a Rule 403 decision absent “a clear showing of prejudicial abuse of 

discretion.” Id. (internal quotation marks and citation omitted).

2 But even if it had, any error would have been harmless in light of the 

overwhelming evidence of guilt presented at trial.

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I. Turner’s 2009 Arrest

Turner argues that the admission of his 2009 arrest was an abuse of 

discretion because (1) the Government failed to prove by a preponderance of 

the evidence that the arrest actually occurred; (2) it constituted propensity 

evidence admitted for an improper purpose; and (3) any probative value of 

the 2009 arrest is substantially outweighed by the danger of unfair prejudice. 

Each point is unavailing.

The Government plainly met its burden of establishing that Turner 

was arrested in 2009. Turner himself volunteered that the arrest occurred 

and provided specific details to law enforcement, including when and where 

the arrest occurred and the child’s age. Turner provides no evidence to 

suggest that he was lying to officers when he recounted these facts. See

United States v. Smith, 804 F.3d 724, 733 (5th Cir. 2015).

And the district court was well within its discretion to admit the 

evidence. Turner put his intent at issue by arguing that he did not believe 

Becka Gerl was a minor and by suggesting that he was at the apartment 

complex to “call BS on” the adult behind the fake account. The defense told 

the jury during closing arguments that Turner did “not intend to have sexual 

relations with Becka Gerl that day” but, rather, he was merely engaged in 

“role play” and he went to the apartment to “prove” that the person he was 

communicating with was “a fake.” Evidence of prior acts that corroborate 

or contradict this claim is both highly relevant and admissible as evidence of 

intent. He thus rendered his 2009 arrest relevant by calling his intent into 

question. See, e.g., United States v. Monsivais, 737 F. App’x 668, 672 (5th Cir. 

2018) (unpublished) (holding that evidence of prior communication with 

another minor was “highly relevant” and “directly responsive to several of 

[the defendant’s] defenses,” including a role-playing defense); United States 

v. Pierson, 544 F.3d 933, 941 (8th Cir. 2008) (defendant’s denial that he 

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intended to actually have sex with a minor “opened the door to the admission 

of his prior conviction for indecent contact with a child”).

That the arrest occurred 11 years ago does not change our conclusion. 

See United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006). The similarity 

between the two arrests is evident. Indeed, Turner thought to compare his

2009 arrest with his present arrest during his conversation with the police. 

Nor did the admission of this evidence offend Rule 403. As discussed, the 

evidence is highly relevant, and Turner fails to identify how any prejudice 

substantially outweighs this value, especially given the district court’s careful 

limiting instructions.

II. Turner’s Commercial Sex Arrangements

Turner next contends that the evidence of his arrangements for 

commercial sex were improperly admitted as irrelevant and highly 

prejudicial. Both points are meritless.

The evidence is relevant because it illustrates Turner’s intent to 

arrange and engage in sexual activity in Plano on the day of his arrest. While 

he was arranging to meet with Becka Gerl, he was simultaneously sending 

messages to arrange for prostitutes. The Government contended that, while

his preference was to have sex with the minor, if that did not work out, he 

wanted to ensure that he would have other options. Turner calls this theory 

“merely speculation,” but we disagree. In fact, during his conversation with 

Becka Gerl, Turner acknowledged that their first encounter might not result 

in intercourse because of how new this activity was to her. While he was 

hopeful that it would, he assured her that they would take things slowly at 

first. These messages tend to corroborate the Government’s theory that he 

wanted to make sure he had a backup plan. Additionally, his arrangements 

contradict his assertions that he traveled that distance simply to expose an 

adult posing as a child. They indicate that he drove to Plano to have sex, one 

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way or the other. Accordingly, we agree with the district court that this 

evidence was highly probative.

Further, this evidence was not too prejudicial. The arrangement for 

commercial sex and the arrangement for sexual activity with a minor are 

sufficiently distinct that juror confusion is unlikely. Turner points to no other 

evidence that could serve the same purposes. While the texts certainly do 

not shed favorable light on Turner, they are not so prejudicial as to 

substantially outweigh their probative value.

For these reasons, the judgment is AFFIRMED.

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