Trevor Lynn Cofer v. State of Alabama (Appeal from Lee Circuit Court: CC-20-761)

Rel: May 3, 2024

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,
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may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
_________________________

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_________________________

Trevor Lynn Cofer

v.

State of Alabama

Appeal from Lee Circuit Court
(CC-20-761)

KELLUM, Judge.

Trevor Lynn Cofer was convicted of four counts of voyeurism in the

first degree. See § 13A-11-41, Ala. Code 1975. For Counts I, II, and III

of the indictment, the trial court sentenced Cofer to 10 years'

imprisonment, split the sentences, and ordered Cofer to serve 117 days
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in confinement, followed by 8 years on probation. For Count IV of the

indictment, the trial court sentenced Cofer to 10 years' imprisonment,

split the sentence, and ordered Cofer to serve 1 year in confinement

followed by 8 years on probation.

The evidence adduced at trial indicated the following. On October

13, 2019, around 9:30 or 9:45 p.m., Jonathan Squadrito went to visit E.H.,

then a 19-year-old student at Auburn University, at a house she shared

with three roommates, one of whom was Valerie Tarazi. The evidence

indicated that Cofer lived in the house next door to E.H., that E.H.'s

bedroom window was on the side of the house facing Cofer's house, and

that there was about 15 feet between the two houses. Because the

parking area in front of E.H.'s house was full, Squadrito parked a short

distance away. As he walked toward E.H.'s house, he saw a man at the

side of the house, whom he identified at trial as Cofer, standing outside

E.H.'s bedroom window; Cofer "had what looked to be a phone in his hand

recording her through her window" (R. 132), "where there was a break in

her ... blinds." (R. 133.) Squadrito telephoned E.H., but she did not

answer so he telephoned Tarazi and "told her that there was somebody

outside of [E.H.'s] room, to get her out of the room." (R. 133.)

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Tarazi turned on her bedroom light, which startled Cofer, who then

tried to hide in the bushes. Squadrito approached Cofer to detain him.

Cofer tried to run away but Squadrito gave chase and caught him,

holding him "on the ground to make sure that he couldn't get up and try

and run away again." (R. 139.) While he was on the ground, Cofer asked

Squadrito not to call the police. Squadrito asked Cofer for his cellular

telephone, and Cofer gave him the phone as well as the password to

unlock it. Squadrito searched the phone and found several videos of E.H.

He also checked what he termed the "hidden tab" in the photo section of

the phone and found additional videos of E.H. where she was partially

nude. (R. 141.) Squadrito kept Cofer's phone in his possession until

police arrived.

E.H. testified that, as she was waiting for Squadrito to arrive at her

house the night of October 13, 2019, she checked her phone and noticed

several missed calls from him. At about the same time, Tarazi came into

her room and told her that she should answer her phone. E.H. then called

Squadrito, who made her aware of the situation happening outside the

house. E.H. and her roommates remained inside the house until police

arrived. When E.H. went outside, Squadrito informed her that Cofer had

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on his phone several videos of her in various stages of undress dating

back to September. In addition, the officers at the scene showed her one

or two of the videos on Cofer's phone and she identified herself in those

videos. In one of the videos, E.H. said, she "did not have any clothes over

[her] breasts ... [and] was very clearly naked." (R. 165.) In another video,

she "was not fully dressed," though she could not remember exactly what

she was wearing in the video. (R. 167.)

E.H. testified that she had plastic blinds over her bedroom window,

but "[t]hey had a few holes in them." (R. 168.) She also said that

sometimes she opened the blinds, but that she never thought someone

could see into her bedroom. She also said that, after the incident, she

was more security conscious and she determined that no one could see

into her bedroom from the parking area in front of her house. E.H.

testified that she did not know that she was being recorded and that she

did not consent to anyone watching or recording her in her bedroom. She

also stated that she "expected privacy" in her own bedroom "whether the

window is open or closed or the blinds are open or closed." (R. 191.)

Jonathan Gaither, a patrol sergeant with the Auburn Police

Department, testified that the night of October 13, 2019, he responded to

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a call about a "peeping Tom." (R. 195.) When Sgt. Gaither arrived at

E.H.'s residence, Cofer was sitting on the curb and several people were

standing around him. Squadrito informed Sgt. Gaither about what had

happened and gave Sgt. Gaither Cofer's cell phone. Sgt. Gaither then

detained Cofer, placing him in the back of the patrol car of another

responding officer. After speaking with E.H., Sgt. Gaither advised Cofer

of his Miranda v. Arizona, 384 U.S. 436 (1966), rights, and Cofer admitted

that he had been recording E.H. with his phone through her bedroom

window since "sometime in September." (R. 209.) Cofer later gave

another statement to police, in which he again admitted to recording E.H.

several times. He said, however, that the day he was caught was the only

time he had been right outside E.H.'s window when he recorded her; the

rest of the videos, he said, were recorded from inside his own home

looking through his own window. Cofer gave Sgt. Gaither permission to

look through his phone and told him the password to unlock it. Sgt.

Gaither looked at the videos on the phone and, in "a couple," he could not

tell whether it was E.H., so he showed those videos to E.H. and E.H.

verified that she was the one depicted in the videos. (R. 210.) According

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to Sgt. Gaither, the videos were made through "cracks" in the blinds

covering the window. (R. 211.)

The State introduced into evidence 21 videos that were extracted

from Cofer's cell phone. This Court was unable to open three of the

videos. The quality of the remaining videos is beyond poor, and many of

them depict only a blank, black screen, or are so distorted that nothing is

visible. In the video labeled IMG0002, recorded on September 26, 2019,

and giving rise to the charge in Count I of the indictment, E.H. is seen

from the waist up through partially closed blinds; she appears to be

changing clothes and her bare breasts are visible. This Court was unable

to open the video labeled IMG0007, recorded on October 2, 2019, and

giving rise to the charge in Count II of the indictment, but as the State

correctly points out, Cofer concedes in his brief that E.H. is "partially

nude" in that video. 1 (Cofer's brief, p. 13.) In the video labeled IMG0020,

one of two videos recorded on October 5, 2019, and giving rise to the

charge in Count III of the indictment, the blinds are pulled up and E.H.

is seen standing in her bedroom; she appears to be wearing a sweatshirt

1In addition, during closing argument, Cofer argued that this video

depicted E.H. "standing nude or partially nude" in front of her window.
(R. 365.)
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and her bare buttocks are visible. In the video labeled IMG0037, one of

several videos recorded on October 13, 2019, and giving rise to the charge

in Count IV of the indictment, E.H. is seen through a small gap in the

blinds walking from her bedroom into what appears to be a bathroom; at

one point, she stands in front of a mirror in the bathroom and the

reflection from the mirror shows her breasts covered with a sports bra.

In the video labeled IMG0038, also recorded on October 13, 2019, E.H. is

again seen in the reflection of the mirror wearing a sports bra. In the

video labeled IMG0040, also recorded on October 13, 2019, E.H. is seen

standing in her bedroom in profile. She appears to be topless, and the

video shows her from the top of her head down to about two inches below

the top of her left shoulder.

Chelsea Williams, a sergeant in the investigations division of the

Auburn Police Department, testified that, in addition to the videos of

E.H., Cofer's phone contained numerous Internet searches. According to

Sgt. Williams, on September 23, 2019, three days before he first videoed

E.H., Cofer conducted searches on the Internet using the following

phrases: "Pretty Girl Strips at Home," "Beautiful 19 Year Old Strips on

Cam," and "Young College Girls." (R. 288.)

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After both sides rested and the trial court instructed the jury on the

applicable principles of law, including the lesser-included offense of

voyeurism in the second degree, the jury found Cofer guilty of four counts

of voyeurism in the first degree as charged in the indictment. After

sentencing, Cofer filed a motion for a new trial, which was denied by

operation of law. See Rule 24.4, Ala. R. Crim. P. This appeal followed.

I.

Cofer first contends that the trial court erred in allowing the State,

over his objection, to present evidence about the Internet searches

extracted from his cell phone. As he did at trial, Cofer argues that the

searches were irrelevant and inadmissible under Rule 404(b), Ala. R.

Evid., that the State did not give him pretrial notice of its intent to

introduce the searches as required by Rule 404(b), and that the searches

were more prejudicial than probative.

The record reflects that, in his discovery motion, Cofer requested

that the State provide notice of its intent to present collateral-act

evidence under Rule 404(b). The State did not provide Cofer with specific

notice of its intent to introduce evidence of the Internet searches, but the

record reflects that, as part of discovery, the State provided Cofer with

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all the data extracted from his cell phone, which included the Internet

searches. When the State sought to introduce the evidence during trial,

Cofer objected on the same grounds he now raises on appeal. With

respect to notice, Cofer's counsel specifically argued that, although the

prosecutors had provided him with the data extracted from Cofer's cell

phone, they did not provide him with the software application necessary

to read that data. The prosecutors responded that Cofer's counsel had

never notified them that he was unable to read the data. The trial court

found that most of the searches were irrelevant and inadmissible, but

concluded that the few searches made only three days before Cofer

recorded E.H. for the first time that contained search terms closely

aligned with the facts of the crimes were admissible. Concerned about

the possible lack of notice, however, the trial court instructed the State

to wait until the next day before introducing the evidence about the

searches so that Cofer would have the overnight recess to review the

evidence. The following day, the State offered to question Sgt. Williams

about the searches rather than introduce a report containing information

about the searches, and Cofer indicated he "would rather" the State

present testimony than documentation. (R. 282.) The State then

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questioned Sgt. Williams about the Internet searches, over Cofer's

"continuing objection." (R. 287.)

At the time of Cofer's trial in May 2022, Rule 404(b) provided: 2

"Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, provided that upon request by
the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial if the
court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at
trial."

With respect to notice, there is no question that the State did not

provide Cofer with specific pretrial notice of its intent to introduce

evidence of the Internet searches, but Cofer did receive, as part of

discovery, all the data extracted from his cell phone, which included the

Internet searches. Although it appears Cofer did not receive the software

application necessary to read that data, he failed to inform the prosecutor

of that fact before trial. In addition, the trial court gave Cofer an

2Rule 404(b) was amended effective May 1, 2023, to, among other

things, require the State to provide pretrial notice of its intent to
introduce collateral-acts evidence regardless of whether notice is
requested by the defendant.
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overnight recess so that he could familiarize himself with the evidence.

Under these circumstances, any error in the State not providing pretrial

notice was harmless. Cf. Ex parte Davis, 875 So. 2d 276, 278 (Ala. 2003)

("Davis agreed that he had knowledge of the evidence contained in the

State's file; therefore, even if we were to hold that the State erred in

failing to respond officially to the Rule 404(b) notice request, the error

was at most harmless.").

As for the admissibility of the evidence, we conclude that it was

relevant and admissible to show Cofer's motive and intent.

" ' "Motive is an inducement, or that which
leads or tempts the mind to do or commit the crime
charged." Spicer v. State, 188 Ala. 9, 26, 65 So.
972, 977 (1914). Motive is "that state of mind
which works to 'supply the reason that nudges the
will and prods the mind to indulge the criminal
intent.' " C. Gamble, Character Evidence[: A
Comprehensive Approach], at 42 [(1987)].
"Furthermore, testimony offered for the purpose of
showing motive is always admissible. It is
permissible in every criminal case to show that
there was an influence, an inducement, operating
on the accused, which may have led or tempted
him to commit the offense." (Emphasis in original,
citations omitted.) Bowden v. State, 538 So. 2d
1226, 1235 (Ala. 1988).' "

Towles v. State, 168 So. 3d 133, 143 (Ala. 2014) (quoting Ex parte

Register, 680 So. 2d 225, 227 (Ala. 1994)). In addition, an element of

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voyeurism in the first degree is that the crime is committed "for the

purpose of arousing or gratifying the sexual desire of any person." § 13A-

11-41(a), Ala. Code 1975.

As the State points out, the Texas Court of Appeals recently

addressed a very similar issue in Mays v. State, (No. 05-21-01033-CR,

Nov. 20, 2023) (Tex. Ct. App. 2023) (not reported in the Southwestern

Reporter). There, the defendant was charged with continuous sexual

abuse of a child, specifically, his daughter. Data extracted from the

defendant's cell phone included "internet searches for 'dad' and 'daughter'

pornography, 'teasing daddy' video views, and a 'frequently visited site'

of 'free daughter' pornography." The Court upheld the admission of the

Internet searches under the motive and intent exceptions to Rule 404(b),

explaining:

"Mays was charged with continuous sexual abuse of a
child. See TEX. PENAL CODE § 21.02(b), (c). 'Intent to
arouse and gratify sexual desire' is an element of the predicate
offense of indecency with a child, with which the trial court
charged the jury. Id. § 21.11(a)(1), (c). The State may prove
intent through circumstantial evidence. See Guevara v.
State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Thus, the
internet searches and frequently visited site history directed
at 'dad,' 'daughter,' and 'free daughter porn,' were admissible
under Rule 404(b)[, Texas R. Evid.,] because they tended to
show Mays's intent or motive to arouse or gratify his sexual
desire with his daughter. See Sarabia v. State, 227 S.W.3d

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320, 324 (Tex. App. -- Fort Worth 2007, pet. ref'd) (in
defendant's trial for aggravated sexual assault of a child,
images depicting child pornography compiled from
defendant's computer discs were admissible under Rule
404(b) because they tended to show intent or motive to arouse
or gratify his sexual desire with underage boys); Wooley v.
State, No. 05-09-00455-CR, (Tex. App. -- Dallas Dec. 30, 2010,
no pet.) (not designated for publication) (child pornography
photos found on defendant's computer were relevant
circumstantial evidence of defendant's intent to arouse or
gratify his sexual desire in trial for aggravated sexual assault
of a child and thus admissible under Rule 404(b))."

Cofer's Internet searches on September 23, 2019, using the phrases

"Pretty Girl Strips at Home," "Beautiful 19 Year Old Strips on Cam," and

"Young College Girls" clearly evidence an inducement for Cofer, only

three days later on September 26, 2019, to begin recording, in various

stages of undress, the 19-year-old college student living next door to him,

and create a reasonable inference that Cofer's purpose in making the

recordings was to arouse or satisfy his sexual desire. Moreover, after

thoroughly reviewing the record, we have no trouble concluding that the

probative value of the evidence outweighed its prejudicial effect.

Therefore, the trial court did not err in allowing evidence of the Internet

searches.

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II.

Cofer also contends that the trial court erred in denying his motion

for a judgment of acquittal because, he says, the evidence was insufficient

to sustain his convictions.

" ' "In determining the sufficiency of the evidence to
sustain a conviction, a reviewing court must accept as true all
evidence introduced by the State, accord the State all
legitimate inferences therefrom, and consider all evidence in
a light most favorable to the prosecution." ' Ballenger v. State,
720 So. 2d 1033, 1034 (Ala. Crim. App. 1998), quoting
Faircloth v. State, 471 So. 2d 485, 488 (Ala. Crim. App. 1984),
aff'd, 471 So. 2d 493 (Ala. 1985). ' "The test used in
determining the sufficiency of evidence to sustain a conviction
is whether, viewing the evidence in the light most favorable
to the prosecution, a rational finder of fact could have found
the defendant guilty beyond a reasonable doubt." ' Nunn v.
State, 697 So. 2d 497, 498 (Ala. Crim. App. 1997), quoting
O'Neal v. State, 602 So. 2d 462, 464 (Ala. Crim. App. 1992).
' "When there is legal evidence from which the jury could, by
fair inference, find the defendant guilty, the trial court should
submit [the case] to the jury, and, in such a case, this court
will not disturb the trial court's decision." ' Farrior v. State,
728 So. 2d 691, 696 (Ala. Crim. App. 1998), quoting Ward v.
State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990). 'The role of
appellate courts is not to say what the facts are. Our role ...
is to judge whether the evidence is legally sufficient to allow
submission of an issue for decision [by] the jury.' Ex parte
Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)."

Gavin v. State, 891 So. 2d 907, 974 (Ala. Crim. App. 2003).

Section 13A-11-41(a), Ala. Code 1975, provides:

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"A person commits the crime of voyeurism in the first
degree if, for the purpose of arousing or gratifying the sexual
desire of any person, he or she knowingly photographs or films
the intimate areas of another person, whether through,
under, or around clothing, without that person's knowledge
and consent and under circumstances where the person has a
reasonable expectation of privacy, whether in a public or
private place."

"Intimate areas" are defined as "[a]ny portion of a person's body, whether

or not covered by undergarments, that are traditionally covered by

undergarments to protect that portion from public view, including

genitals, pubic areas, buttocks, and female breasts." § 13A-11-40(a)(1),

Ala. Code 1975. "Undergarments" are defined as "[a]rticles of clothing

worn under clothing that conceal intimate areas from view." § 13A-11-

40(a)(3), Ala. Code 1975.

With respect to Counts I, II, and III of the indictment, Cofer argues

that the State failed to prove that E.H. had a reasonable expectation of

privacy in her bedroom. Specifically, he argues that the videos giving

rise to these three charges were recorded from inside his own home, and

the blinds in E.H.'s bedroom window were fully open, leaving her

bedroom in plain view. According to Cofer, there was a clear line of sight

into E.H.'s bedroom from the public parking area in front of the houses,

and no reasonable person would "believe that a person had a reasonable

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expectation of privacy standing in front of an open window that was

completely visible by a busy public parking lot." (Cofer's brief, p. 12.)

This argument is meritless.

"The expectation of privacy reaches its zenith in the home." United

States v. McKenzie, 13 F.4th 223, 235 (2nd Cir. 2021). "The very fact

that a person is in his own home raises a reasonable inference that he

intends to have privacy," United States v. Taborda, 635 F.2d 131, 138 (2d

Cir. 1980), and the "ability to observe through open windows what

happens inside a home does not altogether extinguish the homeowner's

otherwise reasonable expectation of privacy in the home itself." United

States v. Wells, 648 F.3d 671, 678 (8th Cir. 2011). In State v. Moser, 179

Wash. App. 1040 (2014) (not reported in the Pacific Reporter), the

Washington Court of Appeals found sufficient evidence to support a

conviction for voyeurism under a statute similar to Alabama's where the

victim had the lights on, the blinds open, and Christmas decorations

around one window. The Court held that "leaving blinds open, leaving

lights on, and decorating a window do not negate [one's] privacy interests

in any material way." We are not required "to live in windowless

mausoleums to preserve our privacy interests, and the mere existence of

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a window does not give license to anyone ... to peep through ... blinds or

curtains." Holt v. Commonwealth, (No. 2015-CA-000985-MR, January 6,

2017) (Ky. Ct. App. 2017) (not reported in the Southwestern Reporter).

We agree.

Here, E.H.'s bedroom window was not at the front of the house,

where anyone walking or driving by could see into her bedroom. Rather,

it was on the side of the house, facing an area where people were not

likely to congregate. Although her window faced the side of Cofer's house,

which was about 15 feet away, a person does not forfeit the expectation

of privacy simply by living next door to someone. In addition, we point

out that, in the video giving rise to the charge in Count I of the

indictment, E.H.'s blinds were partially closed, not fully open as Cofer

contends. Viewing the evidence in a light most favorable to the State, as

we must, we conclude that there was sufficient evidence from which the

jury could have reasonably concluded that E.H. had a reasonable

expectation of privacy in her bedroom, regardless of whether the blinds

were open or closed. Therefore, the trial court properly denied Cofer's

motion for a judgment of acquittal as to Counts I, II, and III of the

indictment.

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With respect to Count IV of the indictment, Cofer argues that the

State failed to prove that he recorded E.H.'s intimate parts. According to

Cofer, "[i]n the video, the alleged victim is seen twice and the only portion

of her body visibly seen was her head and left shoulder." (Cofer's brief,

pp. 13-14.) This argument fails to recognize that the charge in Count IV

of the indictment was based on multiple videos recorded on October 13,

2019, not just one. Although in one of the videos, only E.H.'s bare

shoulder and neck are visible, two other videos depict E.H.'s breasts

covered by a sports bra. As noted above, voyeurism in the first degree

requires recording "the intimate areas of another person, whether

through, under, or around clothing," § 13A-11-41(a), and "intimate parts"

include "female breasts," "whether or not covered by undergarments."

§ 13A-11-40(a)(1) (emphasis added). Because two of the videos giving rise

to the charge in Count IV of the indictment depicted E.H.'s breasts

covered by a sports bra, the State proved that Cofer recorded E.H.'s

intimate parts. Therefore, the trial court properly denied Cofer's motion

for a judgment of acquittal as to Count IV of the indictment.

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III.

Although not mentioned by either party, we take notice that the

probationary terms of Cofer's split sentences are illegal. It is well settled

that "[m]atters concerning unauthorized sentences are jurisdictional."

Hunt v. State, 659 So. 2d 998, 999 (Ala. Crim. App. 1994). Therefore, this

Court may take notice of an illegal sentence "at any time and may do so

even ex mero motu." Moore v. State, 40 So. 3d 750, 753 (Ala. Crim. App.

2009). See also Ex parte McGowan, 346 So. 3d 10, 13 (Ala. 2021) ("This

Court has routinely held that the imposition of a sentence in a criminal

case that is not authorized by statute creates a jurisdictional defect that

is nonwaivable and that can be raised at any time.").

Voyeurism in the first degree is a Class C felony. See § 13A-11-

41(b), Ala. Code 1975. At the time of the crimes, § 15-18-8(b), Ala. Code

1975, provided, 3 in relevant part:

"(b) Unless a defendant is sentenced to probation, drug
court, or a pretrial diversion program, when a defendant is
convicted of an offense that constitutes a Class C or D felony
offense and receives a sentence of not more than 15 years, the
judge presiding over the case shall order that the convicted
defendant be confined in a prison, jail-type institution,

3Generally, "[a] defendant's sentence is determined by the law in

effect at the time of the commission of the offense." Davis v. State, 571
So. 2d 1287, 1289 (Ala. Crim. App. 1990).
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treatment institution, or community corrections program for
a Class C felony offense or in a consenting community
corrections program for a Class D felony offense, except as
provided in subsection (e), for a period not exceeding two years
in cases where the imposed sentence is not more than 15
years, and that the execution of the remainder of the sentence
be suspended notwithstanding any provision of the law to the
contrary and that the defendant be placed on probation for a
period not exceeding three years and upon such terms as the
court deems best."

(Emphasis added.) Although both the base sentences -- 10 years'

imprisonment -- and the confinement portion of the sentences -- 117 days'

and 1 year's imprisonment -- were legal, the 8-year probationary terms

exceeded the maximum authorized by § 15-18-8(b).

Based on the foregoing, we affirm Cofer's convictions for four counts

of voyeurism in the first degree. However, we remand this cause for the

trial court to conduct another sentencing hearing, at which Cofer is

entitled to be present and represented by counsel, and to impose

probationary terms in accordance with § 15-18-8(b) as it read at the time

of the crimes. Because both the base sentences and the confinement

portions of the sentences were legal, they may not be changed. Due

return shall be filed within 63 days of the date of this opinion and shall

include a transcript of the sentencing hearing conducted on remand and

the trial court's amended sentencing order.

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AFFIRMED AS TO CONVICTIONS; REMANDED WITH

INSTRUCTIONS AS TO SENTENCES.

Windom, P.J., and McCool, Cole, and Minor, JJ., concur.

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