Cochran v. State
| Decision Date | 29 June 2012 |
| Docket Number | CR-10-0516 |
| Parties | Jeffrey Olen Cochran v. State of Alabama |
| Court | Alabama Court of Criminal Appeals |
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Appeal from Houston Circuit Court
(CC-08-1228; CC-08-1229; CC-08-1587)
Jeffrey Olen Cochran appeals his convictions for second-degree sodomy, a violation of § 13A-6-64, Ala. Code 1975, possession of obscene matter containing a visual depiction of a person under 17 years of age engaged in an obscene act, aviolation of § 13A-12-192(b), Ala. Code 1975, and first-degree unlawful possession of marijuana, a violation of § 13A-12-213, Ala. Code 1975. Cochran was sentenced to 60 months in prison for each conviction. All three sentences were to run consecutively.
Before trial, Cochran moved the trial court to suppress evidence seized from his residence, to dismiss the indictment for possession of obscene matter, to sever the unlawful-possession-of-marijuana charge, and to allow him to present testimony indicating that C.K., the victim, had provided sexually explicit photographs of herself to another person. After a hearing, the trial court denied all those motions.
At trial, the victim, C.K., testified that she was born on July 5, 1990, and that Cochran was born on January 29, 1966. In June 2003, C.K. met Cochran through the Internet, and they began to regularly communicate with each other. C.K. and Cochran communicated through the Internet or by telephone for approximately three months. During that time, C.K. told Cochran that she was 13 years old. Initially, Cochran told C.K. that he was 16 years old, but before they met face-to-face he admitted that he was 37 years old. In August 2003,C.K. and Cochran met face-to-face for the first time. The meeting occurred at C.K.'s house while C.K.'s mother was out with some friends. C.K. testified that a couple of weeks after their initial face-to-face meeting, Cochran returned to her house and they had sex in the back of his vehicle. C.K. testified that she had sex with Cochran again on or about January 1, 2004, at his residence, which he shared with his parents. According to C.K., she and Cochran then had sex approximately once a month until she turned 16 years old. C.K. testified that she and Cochran engaged in sexual intercourse and oral sex. C.K. believed that she was in a romantic relationship with Cochran. According to C.K., her sexual encounters with Cochran increased after she turned 16 years old. (R. 93.)
C.K. also testified that while she was 16 years old, Cochran's son, who is approximately 1 year younger than C.K., took a photograph of her and Cochran engaged in a sexual act. In September 2006, C.K. developed that photograph at the CVS pharmacy where she worked, and she gave the photograph to Cochran. C.K. testified that Cochran kept the photograph in his bedroom. The photograph was introduced into evidence attrial, and it is the basis of the possession-of-obscene-matter charge against Cochran. The photograph was date-stamped by CVS one-hour photo on September 27, 2006.
C.K. testified that her relationship with Cochran ended in June 2008. According to C.K., Cochran came to her house at about 3 a.m. on June 9, 2008, and he was yelling and banging on the windows of the house. Later that day, C.K.'s mother went to the Houston County Sheriff's Department and met with Detective Bill Rafferty. C.K.'s mother gave Detective Rafferty a hand-written letter from Cochran to C.K. C.K. was then interviewed at the Child Advocacy Center. C.K. initially denied having a sexual relationship with Cochran, but she eventually told the interviewer about her sexual relationship with Cochran.
On June 10, 2008, Detective Rafferty obtained and executed a search warrant on Cochran's residence. During the search, Detective Rafferty and the other officers who were with him recovered additional letters between C.K. and Cochran, the photograph of Cochran and C.K. engaged in a sexual act, a plastic bag holding five empty plastic bags and loose marijuana, a plastic bottle holding marijuana seeds, aplastic bottle holding marijuana, a container holding loose marijuana and seven partially burned cigars, four individual plastic bags each holding marijuana, a plastic bag holding loose marijuana and six partially burned cigars and four partially burned hand-rolled cigarettes, scales, and a metal spoon that contained some residue. All of those items were discovered in Cochran's bedroom. The total weight of the marijuana was 7.62 grams. Cochran was then arrested and interviewed.
Cochran testified in his own defense at trial. Cochran testified that he did not have sex with C.K. until after she turned 16 years old. Cochran testified that he did not have any knowledge of the photograph depicting him and C.K. engaged in a sexual act before it was discovered by the officers in a drawer in his bedroom. Cochran admitted that the marijuana discovered in his bedroom belonged to him, but he testified that he only smoked marijuana and that he never sold marijuana to anyone. Cochran's son testified that, contrary to C.K.'s testimony, he did not take the photograph of his father and C.K. engaged in a sexual act.
The jury found Cochran guilty of second-degree sodomy, possession of obscene matter, and first-degree unlawful possession of marijuana. After Cochran was convicted and sentenced, he filed a motion for a new trial, which the trial court denied. Cochran timely filed his notice of appeal to this Court.
On appeal, Cochran states his first issue, as follows: "The Court erred by denying Cochran's motion to sever the trial of the marijuana charge from the trial of the sex charges." Cochran's brief, at 15. However, all of Cochran's legal argument under this issue statement concerns the trial court's alleged failure to properly consolidate the offenses under Rule 13.3, Ala. R. Crim. P.,1 not the trial court'salleged error in failing to sever the offenses under Rule 13.4, Ala. R. Crim. P.,2 once they had been consolidated.
Until Cochran filed his posttrial motion for a new trial, he did not argue before the trial court that the offenses had been improperly consolidated. At the end of a pretrial hearing concerning several different motions, the following exchange occurred:
(Supp. R. 18.)
Immediately before the trial began, a hearing was held concerning several different motions, and the following exchange occurred at the beginning of that hearing:
(R. 6.)
Clearly, before trial, defense counsel moved only to sever the unlawful-possession-of-marijuana offense that hadpreviously been consolidated with the other offenses, and that motion was based solely on his allegation that, if the offenses were tried together, Cochran would be unduly prejudiced. The motion was not based on an alleged failure to properly consolidate the offenses under Rule 13.3, Ala. R. Crim. P. In Cochran's posttrial motion for a new trial, for the first time, he made an argument before the trial court concerning whether the consolidation of the offenses under Rule 13.3, Ala. R. Crim. P., was proper. (C. 200-02.)
Mitchell v. State, 913 So. 2d 501, 505 (Ala. Crim. App. 2005). "Amotion for a new trial will not preserve for appellate review issues that arose during trial that were not objected to at the time they arose." Glass v. State, 14 So. 3d 188, 194 (Ala. Crim. App. 2008).
Cochran did not challenge the consolidation of the offenses until he filed his motion for a new trial.
Therefore, because Cochran did not make a timely and specific objection to consolidation, his argument that the trial court failed to properly consolidate the offenses under Rule 13.3, Ala. R. Crim. P., is not preserved for appeal and is not properly before this Court.
Regarding the trial court's denial of Cochran's motion to sever the unlawful-possession-of-marijuana offense, Cochran has not shown that the trial court exceeded its discretion. In Tariq-Madyun v. State, 59 So. 3d 744 (Ala. Crim. App. 2010), this Court addressed the law applicable to the severance of offenses for trial:
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