Cogman v. State, 3 Div. 512
Decision Date | 12 October 1982 |
Docket Number | 3 Div. 512 |
Parties | Marshall Harris COGMAN v. STATE. |
Court | Alabama 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.
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:
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:
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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