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
