MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Feb 26 2020, 9:06 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana
Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael J. Cochran, February 26, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1771 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause Nos. 79D01-1809-F1-10 79D01-1906-F5-105
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1771 | February 26, 2020 Page 1 of 8 Statement of the Case [1] Michael Cochran appeals his convictions for two counts of child molesting, as
Level 1 felonies; two counts of child molesting, as Level 4 felonies; and false
informing, as a Class B misdemeanor, and his adjudication as a habitual
offender, following a bench trial. Cochran presents two issues for our review:
1. Whether his jury trial waiver was made knowingly, voluntarily, and intelligently.
2. Whether the trial court abused its discretion when it admitted certain evidence.
[2] We affirm.
Facts and Procedural History [3] In August 2018, then thirteen-year-old R.F. was dating J.C., who is Cochran’s
teenaged son. On a few occasions during that month when R.F. was at
Cochran’s house, Cochran “started kissing” R.F. and “started touching [her]
boobs” and her “butt.” Tr. Vol. 1 at 45. Cochran also digitally penetrated
R.F.’s vagina, performed oral sex on her, and attempted to have intercourse
with her. On September 13, R.F. went to Cochran’s house to see J.C., but he
was not home. R.F. stayed and played with one of Cochran’s daughters. At
some point, Cochran told R.F. to come into his bedroom. She tried to resist,
but he insisted, and she complied. Once in the bedroom, Cochran “started
touching [R.F.] and . . . kissing [her] and [she] told him to stop and then he put
on a condom . . . and he then . . . tried to put [his penis] inside [her vagina].”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1771 | February 26, 2020 Page 2 of 8 Id. at 37. Cochran also performed oral sex on R.F. and digitally penetrated her
vagina. R.F. repeatedly asked him to stop, but he refused. At some point, he
told her to play with her phone. So R.F. opened her phone and took a
photograph of Cochran while he was performing oral sex on her.
[4] Eventually Cochran left the bedroom, and R.F. went into a bathroom. Once
there, R.F. called Cochran’s wife, Deborah, and told her what had happened.
Deborah came home, looked at the photo R.F. had taken of Cochran during the
incident, saw a wet spot on the bed, and confronted Cochran. Cochran began
yelling at R.F. and threatened to break her phone. R.F. left the house and
began riding her bike home. Within minutes, Deborah left the house in her
vehicle, found R.F. riding her bike, and drove her home. When Deborah and
R.F. arrived at R.F.’s home, R.F. told her mother what Cochran had done, and
R.F.’s mother called the police.
[5] The State charged Cochran with three counts of child molesting, as Level 1
felonies, two counts of child molesting, as Level 4 felonies, and false
informing, 1 as a Class B misdemeanor. The State also alleged that Cochran is a
habitual offender. Cochran filed a written waiver of his right to a jury trial. At
the conclusion of a bench trial, the trial court found him guilty of two counts of
child molesting, as Level 1 felonies, two counts of child molesting, as Level 4
felonies, and false informing, as a Class B misdemeanor. The trial court also
1 The parties do not explain the factual basis for the false informing charge, and the charging information merely sets out the statutory elements without reference to any facts.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1771 | February 26, 2020 Page 3 of 8 adjudicated Cochran to be a habitual offender. The trial court entered
judgment of conviction accordingly and sentenced Cochran to thirty-six years
for each Level 1 felony conviction; ten years for each Level 4 felony conviction;
180 days for the Class B misdemeanor; and twenty years for the habitual
offender adjudication. Cochran’s aggregate sentence is sixty-six years, and the
trial court ordered that that sentence would run consecutive to Cochran’s five-
year sentence in another cause. This appeal ensued.
Discussion and Decision Issue One: Jury Trial Waiver
[6] Cochran first contends that his jury trial waiver was not made knowingly,
voluntarily, and intelligently. As this Court has observed,
[t]he right to a trial by jury is a fundamental right guaranteed by the Sixth Amendment to the United States Constitution and by Article 1, § 13 of the Indiana Constitution, and may be waived by a knowing, intelligent and voluntary waiver. Poore v. State, 681 N.E.2d 204, 206 (Ind. 1997); Robey v. State, 555 N.E.2d 145, 148 (Ind. 1990). The defendant must express his personal desire to waive a jury trial and such personal desire must be apparent from the record. Poore, 681 N.E.2d at 206.
Coleman v. State, 694 N.E.2d 269, 278 (Ind. 1998). “A knowing, intelligent and voluntary waiver of a jury trial may be accomplished by a written waiver or in open court.” Kimball v. State, 474 N.E.2d 982, 986 (Ind. 1985). “[E]ven though it may be preferable for the trial court, by way of an on-the-record hearing, to advise the defendant of his right to trial by jury and the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1771 | February 26, 2020 Page 4 of 8 consequences of waiving that right, such is not required by either the United States or the Indiana constitutions, or by statute.” Hutchins v. State, 493 N.E.2d 444, 445 (Ind. 1986).
McSchooler v. State, 15 N.E.3d 678, 682-83 (Ind. Ct. App. 2014).
[7] Here, on March 29, 2019, Cochran and his attorney signed a “Waiver of Trial
by Jury and Motion to Set for Bench Trial.” Appellant’s App. Vol. 2 at 98.
The waiver stated as follows:
1. The Defendant can read, write and understand English.
2. The Defendant has been fully advised by the Court and by counsel of his constitutional right to a trial by jury.
3. The Defendant hereby waives his constitutional right to a trial by jury in the above-captioned cause and asks that this cause be submitted to the Court without intervention of a jury.
4. No person has made any promise or suggestion of any kind to the defendant, or within his knowledge to anyone else, that the Defendant would receive any favors, special treatment or any other form of leniency if the Defendant would decide to waive his right to a jury trial in this case.
5.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Feb 26 2020, 9:06 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana
Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael J. Cochran, February 26, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1771 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause Nos. 79D01-1809-F1-10 79D01-1906-F5-105
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1771 | February 26, 2020 Page 1 of 8 Statement of the Case [1] Michael Cochran appeals his convictions for two counts of child molesting, as
Level 1 felonies; two counts of child molesting, as Level 4 felonies; and false
informing, as a Class B misdemeanor, and his adjudication as a habitual
offender, following a bench trial. Cochran presents two issues for our review:
1. Whether his jury trial waiver was made knowingly, voluntarily, and intelligently.
2. Whether the trial court abused its discretion when it admitted certain evidence.
[2] We affirm.
Facts and Procedural History [3] In August 2018, then thirteen-year-old R.F. was dating J.C., who is Cochran’s
teenaged son. On a few occasions during that month when R.F. was at
Cochran’s house, Cochran “started kissing” R.F. and “started touching [her]
boobs” and her “butt.” Tr. Vol. 1 at 45. Cochran also digitally penetrated
R.F.’s vagina, performed oral sex on her, and attempted to have intercourse
with her. On September 13, R.F. went to Cochran’s house to see J.C., but he
was not home. R.F. stayed and played with one of Cochran’s daughters. At
some point, Cochran told R.F. to come into his bedroom. She tried to resist,
but he insisted, and she complied. Once in the bedroom, Cochran “started
touching [R.F.] and . . . kissing [her] and [she] told him to stop and then he put
on a condom . . . and he then . . . tried to put [his penis] inside [her vagina].”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1771 | February 26, 2020 Page 2 of 8 Id. at 37. Cochran also performed oral sex on R.F. and digitally penetrated her
vagina. R.F. repeatedly asked him to stop, but he refused. At some point, he
told her to play with her phone. So R.F. opened her phone and took a
photograph of Cochran while he was performing oral sex on her.
[4] Eventually Cochran left the bedroom, and R.F. went into a bathroom. Once
there, R.F. called Cochran’s wife, Deborah, and told her what had happened.
Deborah came home, looked at the photo R.F. had taken of Cochran during the
incident, saw a wet spot on the bed, and confronted Cochran. Cochran began
yelling at R.F. and threatened to break her phone. R.F. left the house and
began riding her bike home. Within minutes, Deborah left the house in her
vehicle, found R.F. riding her bike, and drove her home. When Deborah and
R.F. arrived at R.F.’s home, R.F. told her mother what Cochran had done, and
R.F.’s mother called the police.
[5] The State charged Cochran with three counts of child molesting, as Level 1
felonies, two counts of child molesting, as Level 4 felonies, and false
informing, 1 as a Class B misdemeanor. The State also alleged that Cochran is a
habitual offender. Cochran filed a written waiver of his right to a jury trial. At
the conclusion of a bench trial, the trial court found him guilty of two counts of
child molesting, as Level 1 felonies, two counts of child molesting, as Level 4
felonies, and false informing, as a Class B misdemeanor. The trial court also
1 The parties do not explain the factual basis for the false informing charge, and the charging information merely sets out the statutory elements without reference to any facts.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1771 | February 26, 2020 Page 3 of 8 adjudicated Cochran to be a habitual offender. The trial court entered
judgment of conviction accordingly and sentenced Cochran to thirty-six years
for each Level 1 felony conviction; ten years for each Level 4 felony conviction;
180 days for the Class B misdemeanor; and twenty years for the habitual
offender adjudication. Cochran’s aggregate sentence is sixty-six years, and the
trial court ordered that that sentence would run consecutive to Cochran’s five-
year sentence in another cause. This appeal ensued.
Discussion and Decision Issue One: Jury Trial Waiver
[6] Cochran first contends that his jury trial waiver was not made knowingly,
voluntarily, and intelligently. As this Court has observed,
[t]he right to a trial by jury is a fundamental right guaranteed by the Sixth Amendment to the United States Constitution and by Article 1, § 13 of the Indiana Constitution, and may be waived by a knowing, intelligent and voluntary waiver. Poore v. State, 681 N.E.2d 204, 206 (Ind. 1997); Robey v. State, 555 N.E.2d 145, 148 (Ind. 1990). The defendant must express his personal desire to waive a jury trial and such personal desire must be apparent from the record. Poore, 681 N.E.2d at 206.
Coleman v. State, 694 N.E.2d 269, 278 (Ind. 1998). “A knowing, intelligent and voluntary waiver of a jury trial may be accomplished by a written waiver or in open court.” Kimball v. State, 474 N.E.2d 982, 986 (Ind. 1985). “[E]ven though it may be preferable for the trial court, by way of an on-the-record hearing, to advise the defendant of his right to trial by jury and the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1771 | February 26, 2020 Page 4 of 8 consequences of waiving that right, such is not required by either the United States or the Indiana constitutions, or by statute.” Hutchins v. State, 493 N.E.2d 444, 445 (Ind. 1986).
McSchooler v. State, 15 N.E.3d 678, 682-83 (Ind. Ct. App. 2014).
[7] Here, on March 29, 2019, Cochran and his attorney signed a “Waiver of Trial
by Jury and Motion to Set for Bench Trial.” Appellant’s App. Vol. 2 at 98.
The waiver stated as follows:
1. The Defendant can read, write and understand English.
2. The Defendant has been fully advised by the Court and by counsel of his constitutional right to a trial by jury.
3. The Defendant hereby waives his constitutional right to a trial by jury in the above-captioned cause and asks that this cause be submitted to the Court without intervention of a jury.
4. No person has made any promise or suggestion of any kind to the defendant, or within his knowledge to anyone else, that the Defendant would receive any favors, special treatment or any other form of leniency if the Defendant would decide to waive his right to a jury trial in this case.
5. No person has made any threat of any kind to him, or within his knowledge to anyone else, to coerce him into waiving his right to a jury trial in this case.
6. The Defendant freely, knowingly, and voluntarily made an[d] executed the waiver of this right to a jury trial.
WHEREFORE, the Defendant by counsel, hereby waives his right to a jury trial guaranteed by the Indiana and U.S. Constitutions and requests this Court to set this matter for a Court of Appeals of Indiana | Memorandum Decision 19A-CR-1771 | February 26, 2020 Page 5 of 8 bench trial at the Court’s earliest convenience, and for all other relief just and proper in the premises.
Id. at 98-99.
[8] Cochran’s contention on appeal is two-fold. First, he asserts that “the record is
devoid of any personal colloquy between Cochran and the trial court regarding
a waiver of his right to a jury trial.” Appellant’s Br. at 8. But it is well settled
that a defendant’s written waiver, without a colloquy between the trial court
and the defendant, is sufficient. McSchooler, 15 N.E.3d at 682-83. Second,
Cochran suggests that his written waiver is inadequate because it does not
include certain provisions set out under federal court guidelines. For instance,
Cochran asserts that his waiver was inadequate because it did not inform him
about: the number of jurors that would comprise a jury; his participation in
jury selection; the requirement that a jury verdict be unanimous; and that the
court would decide his guilt or innocence in a bench trial. We rejected a similar
argument by the defendant in McSchooler. 15 N.E.3d at 683. We observed that
the federal guidelines are not binding on state courts and, in any event, that the
suggested provisions for a written jury trial waiver are merely guidelines and are
not mandatory. Id. at 683-84. We agree with the State that Cochran’s written
waiver adequately informed him of his right to a jury trial. And we hold that
Cochran’s jury trial waiver was made knowingly, voluntarily, and intelligently.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1771 | February 26, 2020 Page 6 of 8 Issue Two: Admission of Evidence
[9] Cochran next contends that the trial court abused its discretion when it
admitted into evidence his video-recorded statement to police. The decision to
admit or exclude evidence lies within the sound discretion of the trial court, and
we will not disturb the trial court’s decision absent a showing of an abuse of
that discretion. Oaks v. Chamberlain, 76 N.E.3d 941, 946 (Ind. Ct. App. 2017).
An abuse of discretion occurs when the trial court’s decision is against the logic
and effect of the facts and circumstances before the court or if the court has
misinterpreted the law. Id.
[10] Cochran maintains that his statement was not voluntary under the totality of
the circumstances. He asserts that he made two comments during the
approximately thirty-minute-long statement that indicate that his “mental state”
was such that his statement was not voluntary. Appellant’s Br. at 11. In
particular, in an apparent attempt to lessen his culpability in the molestations,
Cochran told Detective Brad McDole that Cochran “should be put in a mental
hospital for his mental problems” and that he had “a desire to mutilate his
reproductive organs.” Id.
[11] Cochran does not support his contention on this issue with cogent argument.
Cochran sets out the case law stating that a statement must be voluntary and
that the voluntariness of a statement is determined by considering “the totality
of the circumstances, including any element of police coercion; the length,
location and continuity of the interrogation; and the maturity, education,
physical condition and mental health of the defendant.” Id. (citing Sage v. State, Court of Appeals of Indiana | Memorandum Decision 19A-CR-1771 | February 26, 2020 Page 7 of 8 114 N.E.3d 923, 928 (Ind. Ct. App. 2018)). But, other than his reference to the
two comments regarding his “mental state,” Cochran does not address any of
the other circumstances relevant to the totality of the circumstances. Further,
Cochran does not explain why his two comments indicate that his statement
was not voluntary. 2
[12] We cannot say that Cochran’s comments demonstrate that his statement was
not made voluntarily. Indeed, despite the brief, generic reference to his “mental
problems,” nothing in Cochran’s statement indicates that he was in any way
incompetent to give the statement. Cochran has not satisfied his burden on
appeal to show that the trial court abused its discretion when it admitted into
evidence his video-recorded statement to police.
[13] Affirmed.
Vaidik, J., and Tavitas, J., concur.
2 For instance, Cochran does not allege or demonstrate that his comments prove an impaired mental state.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1771 | February 26, 2020 Page 8 of 8