Cogman v. State, 3 Div. 512

Decision Date12 October 1982
Docket Number3 Div. 512
PartiesMarshall Harris COGMAN v. STATE.
CourtAlabama Court of Criminal Appeals

James R. Cooper, Jr. of Cooper & Cooper, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Leura J. Garrett, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Retired Circuit Judge.

Appellant was sentenced to imprisonment for life pursuant to the Habitual Felony Offender Act. Due notice was given that the State would proceed under the Act after his conviction in the instant case. A hearing was conducted in which it was shown that appellant had been previously convicted of three felonies. The felony in the instant case, attempt to commit rape in the first degree, is a Class B felony, Alabama Criminal Code § 13A-4-2(d)(2). "On conviction of a Class B felony" the defendant "must be punished for life in the penitentiary" if he has been previously convicted of any three felonies and, after such conviction, has committed another felony. Alabama Criminal Code § 13A-5-9(c)(2). No issue raised by appellant pertains to the extent of defendant's punishment, and we find no basis for such an issue.

One method of committing rape in the first degree is thus defined by the Alabama Criminal Code:

" § 13A-6-61. Rape in the first degree.

"(a) A male commits the crime of rape in the first degree if;

"(1) He engages in sexual intercourse with a female by forcible compulsion ...."

In reference to an issue raised by appellant questioning the sufficiency of the evidence to sustain the charge of attempted rape in the first degree, we summarize the evidence directly bearing on that issue. The alleged victim testified that during twilight some time between 4:00 A.M. and 5:00 A.M. April 25, 1981, the defendant entered the home of the victim, soon after he had knocked on a window thereof and was told by her to leave, went to her bedroom while she was on her bed, got on top of her and pulled at her underwear. She said she attempted to pull his hair, "to make him get off of me, but he wouldn't" and that he choked her while on the bed and thereafter left the house without having consummated an act of sexual intercourse. At the time she was a seventeen-year-old female living in a house with her mother, her baby, her brother and a man by the first name of Tom, whose status as one of the same household was not precisely shown by the evidence. An investigator for the Montgomery Police Department testified that on the evening of April 25, 1981, he obtained a signed typed statement from the defendant, which included the following:

"On 4/24 of '81, at about 8:50 P.M., I took a taxi to the Foxy Lady's Social Club which is on Maxwell Air Force Base. I was by myself and I stayed until it closed. That was about one A.M. or two A.M. A fellow named [name omitted at this time], carried me to the corner of Oak and Jeff Davis and dropped me off. The next thing I remember is that me and another fellow got together and drank some wine. The next thing I remember was getting up this morning. I was in the house that is about three houses down from my mother's. I heard the fellows that were at the house ask me--wait a second. The fellows that were at the house I woke up in asked me how I got the scratches on my face and I did not know.

"Question: Do you remember seeing [sic] Do you remember going to [the victim's] house?

"Answer: No.

"Question: How often do you go to [where the victim lived]?

"Answer: Lately I've been going around there every day.

"Question: What would you do while you were over there?

"Answer: Just talk and drink."

The defendant had entered a plea of not guilty and a plea of not guilty by reason of insanity. The court submitted to the jury the issue raised by each of said pleas and included in its oral charge the question whether defendant was so intoxicated at the time of the alleged offense that he didn't have the specific intent to commit the crime of rape.

The evidence as a whole is strong, and clearly and understandably convincing to the jury, that defendant did that which the victim said he did while she was lying in her bed. The extent of any intoxication of defendant and whether or not he intended to rape the alleged victim became issues for the triers of fact, the jury, to determine. The evidence was sufficient to sustain their verdict, even without consideration of a previous threat by defendant that he was going "to rape" the alleged victim, which appellant insists was inadmissible evidence against him, and which insistence we now consider.

Appellant correctly states in his brief that on "two occasions during the course of the trial, the state introduced evidence of a prior statement attributed to ...

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6 cases
  • Faircloth v. State, 8 Div. 8
    • United States
    • Alabama Court of Criminal Appeals
    • July 17, 1984
    ...attempted to rape the victim and would have done so had the victim not been screaming, fighting, and struggling. Cogman v. State, 424 So.2d 1355 (Ala.Cr.App.1982). At the beginning of the trial the prosecutor stated to the trial judge that he expected to prove that both Michael and Jim Carl......
  • State v. Roden
    • United States
    • Missouri Court of Appeals
    • May 15, 1984
    ...intercourse with Watkins. Cases from other jurisdictions involving similar facts bear out such a determination. Accord, Cogman v. State, 424 So.2d 1355 (Ala.Cr.App.1982); State v. Kekaualua, 50 Hawaii 130, 433 P.2d 131 (Hawaii 1967); Commonwealth v. Simpson, 462 A.2d 821 The evidence also e......
  • Heard v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 28, 1991
    ...the existence of the required intent from the appellant's actions at the time of the offense. See, e.g., Williams; Cogman v. State, 424 So.2d 1355 (Ala.Crim.App.1982). Thus, the trial court properly denied the appellant's motions for acquittal and judgment notwithstanding the The appellant ......
  • Wesson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 25, 1994
    ...that defendant removed or attempted to remove his clothes or those of the victim or that he attempted penetration); Cogman v. State, 424 So.2d 1355, 1356-57 (Ala.Cr.App.1982) (evidence sufficient to support conviction for attempted rape where defendant "entered the home of the victim," "wen......
  • Request a trial to view additional results

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