Travis Eugene Wolfe v. State of Alabama (Appeal from DeKalb Circuit Court: CC-22-1154 and CC-23-242)

Rel: June 28, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
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CR-2023-0871
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Travis Eugene Wolfe

v.

State of Alabama

Appeal from DeKalb Circuit Court
(CC-22-1154 and CC-23-242)

KELLUM, Judge.

Travis Eugene Wolfe appeals his convictions and sentences for

multiple sex offenses committed against his stepdaughter, E.E.

In case no. CC-22-1154, a jury convicted Wolfe of two counts of rape

in the second degree, see § 13A-6-62(a), Ala. Code 1975 (Counts I and II
CR-2023-0871

of the indictment); four counts of sodomy in the second degree, see § 13A-

6-64(a), Ala. Code 1975 (Counts III through VI of the indictment); five

counts of sexual abuse in the second degree, see § 13A-6-67(a)(2), Ala.

Code 1975 (Counts VII through XI of the indictment); one count of

enticing a child for immoral purposes, see § 13A-6-69(a), Ala. Code 1975

(Count XII of the indictment); and one count of sexual extortion, see §

13A-6-241(a), Ala. Code 1975 (Count XIII of the indictment). In case no.

CC-23-242, a jury convicted Wolfe of one count of sexual abuse in the first

degree by forcible compulsion, see § 13A-6-66(a)(1), Ala. Code 1975

(Count II of the indictment), and one count of sexual abuse in the second

degree, see § 13A-6-67(a)(2), Ala. Code 1975 (Count III of the

indictment).1

The trial court sentenced Wolfe to 20 years' imprisonment for each

of the rape and sodomy convictions and for the sexual-extortion

conviction, and to 10 years' imprisonment for each of the sexual-abuse

convictions and for the enticing conviction. The trial court ordered the

1The jury acquitted Wolfe of the offense charged in Count I of the

indictment in case no. CC-23-242, attempted rape in the first degree by
forcible compulsion, see §§ 13A-6-61(a)(1) and 13A-4-2, Ala. Code 1975.
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sentences to run consecutively. Wolfe timely filed a motion for a new

trial, which the trial court denied without a hearing.

The specific details of the crimes are unnecessary for a resolution

of this appeal, but a summary of the evidence adduced at trial is required.

Wolfe married E.E.'s mother in 2016, when E.E. was 9 or 10 years old.

Because E.E. did not know her biological father, it was the first time E.E.

had had a father figure in her life. E.E. and Wolfe developed a close bond,

a bond Wolfe did not share with E.E.'s younger sister, A.G., and E.E. and

Wolfe spent a substantial amount of time together. E.E. described Wolfe

as the only person in her life she could talk to. Over time, Wolfe got "more

touchy," touching E.E.'s legs, thighs, and waist, and getting in bed with

her and "spooning" her. (R. 239, 241.) When E.E. was 14 years old and

starting the ninth grade, Wolfe's touching turned sexual. It began when

Wolfe searched E.E.'s cellular telephone and found an inappropriate

photograph she had sent to a boy she knew. Wolfe became angry with

E.E., and he told her that he was jealous. Wolfe then gave E.E. two

options: "get whipped" or "let [him] do something." (R. 244.) Afraid of

getting whipped, E.E. chose the second option. Wolfe then sexually

abused E.E. E.E. described several additional incidents of Wolfe sexually

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abusing her; two incidents of sexual intercourse with Wolfe; two incidents

of oral sex with Wolfe; and one incident of Wolfe attempting

unsuccessfully to have sexual intercourse with her.

Whenever E.E. would protest the abuse, Wolfe would get upset and

refuse to speak to her for some time. When E.E. did not protest, Wolfe

would buy her gifts and give her money. The abuse took place over a

period of eight months before E.E. finally disclosed to her sister what

Wolfe had been doing to her, and then, at her sister's urging, disclosed

the abuse to her mother. Not quite believing E.E.'s claims, E.E.'s mother

instructed E.E. to download an application to her cellular telephone that

could record telephone conversations and to then record any conversation

she had with Wolfe. E.E. did so, and the State introduced into evidence

a recording, and a transcript of that recording, of a telephone

conversation she had had with Wolfe in which Wolfe described having a

sexual dream about her. After that conversation, the police were notified.

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I.

Wolfe contends that the trial court erred in admitting into evidence

the recording of his telephone conversation with E.E.2 He argues that,

although Alabama is a one-party consent state, he did not consent to the

recording and E.E. was incapable of consenting because she was a minor.

Therefore, Wolfe maintains, E.E.'s recording of the conversation

constituted criminal eavesdropping under § 13A-11-31, Ala. Code 1975,

and rendered the recording and transcript inadmissible under the

Electronic Communications Privacy Act. See 18 U.S.C. §§ 2510-2523.

Before trial, Wolfe filed a motion in limine to prohibit the State from

introducing into evidence the recording of the telephone conversation on

the same grounds he now argues on appeal. After hearing arguments

from the parties, the trial court denied the motion. When the State

sought to introduce the recording at trial during E.E.'s testimony, Wolfe

objected, arguing that the recording was hearsay and that it was

cumulative to E.E.'s testimony because she had testified about what was

said during the conversation. The trial court overruled the objection.

2Wolfe's arguments encompass both the audio recording and the

transcript of the recording.
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Subsequently, in his motion for a new trial, Wolfe reasserted the claim,

raising the same grounds he had raised in his motion in limine and now

raises on appeal.

Wolfe's argument was not properly preserved for review.

" 'The general rule is that an adverse ruling on a motion in
limine does not preserve the issue for appellate review unless
an objection is made at the time the evidence is introduced.'
Moody v. State, 888 So. 2d 532, 582 (Ala. Crim. App. 2003).
'[U]nless the trial court's ruling on the motion in limine is
absolute or unconditional, the ruling does not preserve the
issue for appeal.' Perry v. Brakefield, 534 So. 2d 602, 606 (Ala.
1988)."

Saunders v. State, 10 So. 3d 53, 87 (Ala. Crim. App. 2007). In this case,

nothing in the record indicates that the trial court's ruling on Wolfe's

motion in limine was absolute or unconditional; therefore, the trial

court's denial of Wolfe's motion in limine did not preserve this issue for

review. In addition, although Wolfe objected to the recording when it was

offered by the State at trial, he did so on different grounds than those he

raised in his motion in limine and now raises on appeal; therefore, Wolfe's

objection at trial likewise did not preserve this issue for review. See, e.g.,

Ex parte Frith, 526 So. 2d 880, 882 (Ala. 1987) ("The statement of specific

grounds of objection waives all grounds not specified, and the trial court

will not be put in error on grounds not assigned at trial."). Finally,

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Wolfe's reasserting the issue in his motion for new trial on the grounds

he raised in his motion in limine and now raises on appeal also did not

properly preserve the issue for review because "[g]rounds urged in a

motion for a new trial must ordinarily have been preserved at trial by

timely and sufficient objections." Williams v. State, 710 So. 2d 1276, 1311

(Ala. Crim. App. 1996), aff'd, 710 So. 2d 1350 (Ala. 1997).

Moreover, even had this issue been properly preserved for review,

any error in the admission of the recording was, at most, harmless. As

Wolfe noted when objecting to the admission of the recording at trial, the

recording was cumulative to E.E.'s testimony about the content of her

conversation with Wolfe. "The erroneous admission of evidence that is

merely cumulative is harmless error." Dawson v. State, 675 So. 2d 897,

900 (Ala. Crim. App. 1995), aff'd, 675 So. 2d 905 (Ala. 1996).

Therefore, Wolfe is not entitled to relief on this claim.

II.

Wolfe also contends that the trial court erred in denying his motions

for a judgment of acquittal, made at the close of the State's case and at

the close of all the evidence, with respect to two of his four sodomy

convictions. Specifically, he argues that E.E. testified about only two

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incidents involving sodomy, and that the other incidents involved sexual

abuse and rape, not sodomy. Therefore, Wolfe concludes, he should have

been convicted of only two counts of sodomy in the second degree instead

of four. The State agrees, as do we.

As noted above, in Counts III through VI of the indictment in case

no. 22-1154, E.E. was charged with four counts of sodomy in the second

degree. However, E.E. testified about only two incidents that satisfied

the elements of sodomy (both involving oral sex). Therefore, although the

evidence was sufficient to sustain Wolfe's convictions for sodomy under

Counts III and IV of the indictment, the trial court erred in denying

Wolfe's motions for a judgment of acquittal as to Counts V and VI of the

indictment, and this Court must reverse those two sodomy convictions

and sentences and render a judgment in Wolfe's favor on those two

counts.

III.

Finally, Wolfe contends that his consecutive sentences -- which,

absent the sentences for the two sodomy convictions we reverse today,

total 180 years' imprisonment -- constitute cruel and unusual

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punishment under the Eighth Amendment to the United States

Constitution.

Wolfe did not raise this claim at the sentencing hearing or in his

motion for a new trial. Instead, 32 days after the sentencing hearing,

Wolfe filed a motion to reconsider his sentences, in which he raised his

Eighth Amendment claim for the first time. A motion to reconsider

sentence is the functional equivalent of a motion for a new trial, see, e.g.,

State v. Monette, 887 So. 2d 314, 315 (Ala. Crim. App. 2004), and must

be filed within 30 days of the pronouncement of sentence to be timely, see

Rule 24.1(b), Ala. R. Crim. P. "Even constitutional claims may be waived

on appeal if not specifically presented to the trial court" in a timely

manner. Brown v. State, 705 So. 2d 871, 875 (Ala. Crim. App. 1997).

Because Wolfe did not raise his Eighth Amendment claim in a timely

manner in the trial court, it was not properly preserved for review.

Moreover, even had this issue been properly preserved for review,

we would conclude that Wolfe's sentences do not constitute cruel and

unusual punishment. See, e.g., State v. Fontenot, 380 So. 3d 729, 744-49

(La. Ct. App. 2024) (holding that aggregate sentence of 140 years'

imprisonment for multiple sex crimes against a minor was not cruel and

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unusual punishment); Alfaro v. State, 534 P.3d 138, 152 (Nev. 2023)

(holding that aggregate sentence of 275 years' to life imprisonment for

multiple sex crimes against a minor was not cruel and unusual

punishment); State v. Craig, 850 N.W.2d 828, 837-38 (S.D. 2014) (holding

that aggregate sentence of 150 years' imprisonment for multiple sex

crimes against a minor was not cruel and unusual punishment).

IV.

Based on the foregoing, we affirm Wolfe's convictions and sentences

in case no. CC-23-242 for one count of sexual abuse in the first degree

and one count of sexual abuse in the second degree, and his convictions

and sentences in case no. CC-22-1154 for two counts of rape in the second

degree, two counts of sodomy in the second degree under Counts III and

IV of the indictment, five counts of sexual abuse in the second degree, one

count of enticing a child for immoral purposes, and one count of sexual

extortion. However, we reverse Wolfe's convictions and sentences in case

no. CC-22-1154 for the two counts of sodomy in the second degree charged

under Counts V and VI of the indictment, and we render a judgment in

Wolfe's favor as to those counts.

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AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT

RENDERED.

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

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