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People v. Fowler

Court of Appeal of California
Jul 30, 2008
No. A115550 (Cal. Ct. App. Jul. 30, 2008)

Opinion

A115550

7-30-2008

THE PEOPLE, Plaintiff and Respondent, v. BRIAN LEE FOWLER, Defendant and Appellant.

Not to be Published


I. INTRODUCTION

Defendant and appellant Brian Lee Fowler was convicted by a jury of three counts of committing a lewd act upon a child under 14 (Pen. Code, § 288, subd. (a)), one count of indecent exposure (§ 314, subd. (1)), and one count of aggravated sexual assault (rape) of a child under 14 (§ 269, subd. (a)(1)).

All further statutory references are to the Penal Code unless otherwise indicated.

On appeal, defendant contends (1) the court erred in admitting the recorded interview of one of the victims; (2) the court erred in denying his motion for a new trial because the court applied the wrong legal standard; (3) substantial evidence does not support his conviction under section 288, subdivision (a); and (4) the court erred, under section 654, in sentencing him consecutively on the indecent exposure and rape counts.

Finding no error, we affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendant has two children, D. and J. At the time the charged offenses occurred (over a four-month period between September 2003 and January 2004), D. was eight years old and J. was six years old and they lived with their father in a house in Fairfield with two other adults, Don and Lori Turner.

In April 2004, D. and J. went to live with their maternal aunt Angelica and her husband Paul. In July 2004, D. told Angelica that he "was forced by his father to go into the bathroom and play with his private." He also told Angelica that "he and his sister had to do this not only in the bathroom, but the bedroom . . . ." J. also disclosed abuse by her father to Angelica. She told Angelica that "her father would force her to play with her brother and herself . . . ." J. was very frightened when she disclosed this information.

Angelica called a social worker and, ultimately, a detective contacted her.

In September 2004, D. and J. were interviewed by law enforcement. Both J. and D. were nervous and scared about having to go to the interview.

In October 2004, J. also disclosed to Angelica "[t]hat she had been sexually abused by her father. That she had been raped." She specifically told Angelica "that her dad would make her sit on his lap, and put his private in her private . . . ." Angelica passed this information on to Child Protective Services and ultimately to the detective working on the case.

The children were interviewed on videotape at the Rainbow Center. J. was interviewed twice, and D. once. These videotapes were played for the jury, over defendants objection.

The jury was not provided with a transcript of the videotapes.

In J.s interview, J. referred to both the female and male genitals as "privates," and stated that defendant made her and D. go into the bathroom, where D. took his clothes off and J. was forced to touch D.s "private." When this took place, defendant was in the bathroom, sitting on the toilet. Defendant had them take a bath together, and look at each others "privates." After the bath, they got dressed and went into defendants bedroom. Defendant made them look at his penis. J. stated that she did not remember anything else happening. She denied that defendant touched her or that she was told to touch herself or defendant. J. also was afraid of defendant. She said she was told if she didnt talk about what had happened, defendant would get out of jail and she would have to go back to him and he would beat her and D.

When he was interviewed at the Rainbow Center, D. stated that his father made him and J. "look at each other." He said that defendant called them into his room, told them to take off their clothes and to look at each other. Defendant also had D. and J. go into the bathroom (which D. described as having "ten locks"). Defendant locked the door, sat on the toilet and directed J. to touch D.s penis and then to touch her vagina with both her hands. Later, defendant made them look at his penis while he touched it and they watched. Defendant had D. leave the room. J. stayed behind. J. did not tell D. what happened in the bedroom.

In this interview, D. stated that the events hed described occurred the day after he turned eight and continued every day until they moved from that house. D. stated that the events occurred in the bathroom and the bedroom every day, in the same way: defendant made the children take a bath, D. was forced to watch J. "play" with herself in the bath and J. put her fingers inside her vagina.

D. said he never heard defendant tell J. to touch D. or herself. Defendant also told him and J. not to tell anybody or he would beat them when he got out of jail.

J. was interviewed a second time several months later. She described how defendant made her and D. take a bath together and brought them back into his bedroom, where defendant touched J.s private and his private. D. did not see what was happening because he was facing the door. Defendant was "sitting on his knees." J. described his penis as "hard" and "standing up." J. was standing at the end of the bed, facing defendant. Her feet were together. She also stated that later she was on her knees. Defendant put his private inside her private. It hurt and she cried. D. heard her cry. This event occurred only one time.

D. testified at trial. D. described living in a house in Fairfield with his father, J. and two other adults. It was October 2003. His mother was not around. D. did not like his father, who hit him with belts, metal hangers, and shoes. D. often had bruises on his face and legs. Defendant also hit D.s sister, J. He yelled at D. in a "mean voice" and told him not to tell anyone that he hit them.

More than five times, but less than ten times, defendant had J. and D. undress, take baths together and look at each others privates. Defendant also made J. touch D.s "private."

D. testified that, after defendant abused them in the bathroom, he spent time alone with J. J. told D. that during this time, defendant made her touch herself on her "private." J. always looked sad when she came out of defendants bedroom. D. did not remember telling anyone that he had to look at defendants private part. D. did not tell anyone about these events because he was afraid of defendant.

J., who was eight years old at the time of trial, testified that, from the time she was three or four years old, she lived with her father. She didnt get along well with her father because he was "really mean" and would hurt her, spank her hard with his belt and his hands, and yell at her. This happened when they were living with his friends, Lori and Dan.

J. testified that her father made her feel uncomfortable because "he would tell me to put my clothes in his bedroom, and then he would make me and D[.] take a bath together, and I didnt like that at all." Her father "would just push us in the bathroom until we fell." Her father would tell her to take off her clothes and if she didnt he "would spank us really, really hard, and we didnt want that to happen so we listened to him."

When they were in the bathtub her father would watch. J. testified that he did not make her do anything else while she was in the bathroom and he did not make her brother do anything.

J. recalled being interviewed at the Rainbow Center a long time ago, and remembered "talking about the things that happened" while she lived with her father. She did not remember talking about "hold[ing her] brothers private." She stated it was difficult to be in court, and that she did not really want to be there.

J. testified that nothing else happened in the bathroom and that she "would have to go" into her fathers bedroom after bathing and get dressed. She denied that anything happened in the bedroom, and stated that she did not remember being in the room without D. She did not remember her father doing anything to her in his room or talking about it at the Rainbow Center.

She stated that her father was wearing his clothes when she was in his room, and that she didnt see him naked, except once at his girlfriends house when she accidentally saw his "private" under his robe, and she looked away.

J. testified that she was afraid of her father, and that her greatest fear while she was testifying was "[l]ooking at him and being near him."

J. was examined by two sexual assault nurse examiners in December 2004. She told both nurses that "`[d]addy put his pee in my private. "She told them it hurt when his penis penetrated her.

One of the nurses did not notice anything unusual during her examination of J.s hymen and surrounding genitalia. The other noticed thickened edges and notches on the hymen, abnormal findings that are consistent with penetration. The same nurse concluded that J.s hymen was abnormal and that something had penetrated and disrupted the edge of the hymen.

Lori Turner, whose house defendant lived in while the alleged abuse took place, testified for the defense. She stated that the walls of the room were thin, and that defendants room did not have a door. She heard D. and J. cry when they were spanked, and that neither child told her about sexual abuse, used sexually explicit terms or acted out in a sexual way.

Angelica, D. and J.s aunt, also testified that D. and J. were only able to live with her for about a year because J. pinched her baby and also lied. D. also pinched the baby. J. was incontinent, touched her private parts and denied having done so. D. spread feces on the floor and carpet, stole things from school, and lied about what had occurred while they lived with Angelica.

Angelica also described an incident of sexual acting out between D. and J. J. was on top of D. during a game of "dog pile" and Angelica observed J. bouncing up and down on D. as though having intercourse. Angelica also observed J. touching D.s penis and buttocks.

J. and D. were both afraid to go back and live with their father. J. told Angelica that she would live with her father again "`if he doesnt do those things again."

Several experts testified for the defense. Dr. James Crawford, the medical director of the Center for Child Protection at Childrens Hospital in Oakland, testified that the records he had been given of J.s sexual assault examination revealed no evidence of prior physical injury or penetration. Dr. Michael Kania, a clinical and forensic psychologist, testified, after reviewing the videotapes of D. and J.s interviews, that D. and J. were asked leading questions and supplied with details that affected their answers.

Defendant was found guilty of all charges and this timely appeal followed.

III. DISCUSSION

A. Admission of Taped Interviews of J.

Defendant challenges the trial courts admission of the videotapes of interviews that were conducted at the Rainbow Center. He argues that the court erred in admitting the interviews as prior inconsistent statements under Evidence Code section 1235. Defendant contends that J.s recorded statements were not inconsistent with her testimony at trial, because at trial J. simply stated that she did not recall anything that had occurred to her and the failure to remember is not a "prior inconsistent statement." We disagree.

Evidence Code section 1235 provides that when a witnesss out of court statement is inconsistent with the witnesss trial testimony, the out of court statement is admissible to establish the truth of the matter asserted in the statement under the conditions prescribed by Evidence Code section 770. "The `fundamental requirement of section 1235 is that the statement in fact be inconsistent with the witnesss trial testimony." (People v. Johnson (1992) 3 Cal.4th 1183, 1219.) "Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness prior statement . . . ." (People v. Green (1971) 3 Cal.3d 981, 988.) When a witness testifies exclusively that she does not remember an event, a prior statement in which she testified about the event is not admissible under section 1235 (People v. Ervin (2000) 22 Cal.4th 48, 84-85). However, a witnesss testimony that he or she does not remember an event constitutes an implied denial of fact, when a witnesss trial testimony contains a mixture of statements in which a witness claims not to remember an event, expressly denies that an event took place and refuses to answer questions. (People v. Fierro (1991) 1 Cal.4th 173, 222 (Fierro); see also People v. Burciago (1978) 81 Cal.App.3d 151, 165-166.) In determining whether a prior statement is inconsistent with a witnesss trial testimony, the court must have before it "`express testimony . . . from which to infer or deduce implied inconsistency. [Citations.]" (People v. Rios (1985) 163 Cal.App.3d 852, 864.)

Here, the trial court admitted the taped interviews because J.s statements at trial constituted an implied denial of her earlier statements in the Rainbow Center interviews. In reaching this result, the trial court described J. as a witness who was not evasive, but "clearly did not want to be here. . . . She appeared to be frightened as she took the witness stand." The court acknowledged that "generally its true that testimony of a witness indicating that he or she does not remember an event, is not inconsistent with a prior statement describing the event." The court also pointed out that in a situation in which a witnesss statements were not "exclusive[ly] of the `I dont remember variety," a prior inconsistent statement would be admissible. Relying on Fierro, supra, 1 Cal.4th 173, the court found that J. was able to describe at trial being in the bathroom with her brother, and specifically denied that her father made her do anything other than that, a statement that was inconsistent with the interview tapes. When asked if anything happened in defendants room after the bath, she again specifically denied anything taking place.

After going over several other instances in which J. specifically denied events occurred that she had, in her earlier interview, described as taking place, the court ruled that "she does have some recollection of these events, both in the bathroom, and the bedroom. The recollection is materially different and inconsistent with the events that she described from 12 to 16 months ago in these interviews. Maybe its even longer than that, 14 to 16 or 17 months ago. And what the Court finds at this point is that there are inconsistencies here. They may not be in express terms, but certainly the effect of what she said happened in the bathroom and bedroom are absolutely inconsistent with what she said in these interviews."

In so ruling, the trial court did not err. J.s testimony at trial was a classic mixture of statements in which she claimed not to remember events she described in the interview, and denied that these events took place. She directly denied that her father had forced her to do anything with her brother in the bathroom, that her father had touched her in his bedroom or removed his clothes in his bedroom. She testified that "He wouldnt do anything. He would just leave us in the room and just get our clothes on."

She also claimed that she could not remember telling anyone about anything defendant had done to her, and that she could not remember holding her brothers penis while they bathed together, and whether she had been in defendants bedroom alone. In light of this mix of statements denying that certain events had taken place, and claiming not to remember others, the court properly admitted the two videotaped interviews of J.

Our conclusion is supported by Fierro, supra, 1 Cal.4th 173. In that case, the trial court admitted the prior statement of a witness to a shooting as a prior inconsistent statement. At trial, the witness testified that she heard two shots fired, but she was not sure when the shots occurred. In a prior statement, the witness was quite clear about when she had heard the shots. The court rejected defendants argument that because the witness "could not remember when she heard the second shot . . . her prior statements were not `inconsistent with her testimony, and therefore should not have been admitted into evidence." (Id. at p. 221.)

The Fierro court ruled that the trial court properly admitted the prior statement, explaining that "`justice will not be promoted by a ritualistic invocation of this rule of evidence. Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness prior statement [citation], and the same principle governs the case of the forgetful witness. [Citations.]" (Fierro, supra, 1 Cal.4th at p. 221.) The court stated that some of the witnesss testimony "directly contradicted her earlier statements to the police. . . ." (Ibid.) It also went on to point out that, "although she could not remember at trial when the second shot occurred, it was not error to admit the prior statements indicating that she heard two shots in rapid succession." The court concluded that "[v]iewed as a whole, [the witnesss] trial testimony was inconsistent `in effect. [Citation.]" (Id. at p. 222.)

We also reject defendants argument that admitting the prior statements violated his rights to due process and confrontation under the Constitution. In Crawford v. Washington (2004) 541 U.S. 36, 59, footnote 9, the United States Supreme Court held that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it."

Here, J. was present at trial. She testified and was subject to cross-examination by defendant. Nor is it the case that, as defendant argues, J. was suffering from a total memory loss that rendered her mentally infirm and so unable to give testimony. The record does not support this suggestion in any way. For this reason, People v. Alcala (1992) 4 Cal.4th 742, a case in which a witness had lost all memory of an event, is inapplicable. The requirements of the Confrontation Clause were satisfied.

B. New Trial Motion

Defendant moved for a new trial on all counts on the grounds that the evidence before the jury was (a) not trustworthy and (b) insufficient to support the jurys verdicts. His sole argument in challenging the trial courts denial of this motion is that the trial court did not apply the correct legal standard in ruling on his motion but instead wrongly believed it was bound by the jurys findings. We disagree.

Defendants argument is based on a single statement made by the court in summing up its ruling on the new trial motion. However, when this statement is read in the context of the courts explanation for its ruling, it is quite apparent that the trial court did not misunderstand the legal standard it was required to apply in ruling on the new trial motion.

The court stated as follows: "The bottom line here is, I think this really comes down to a jury determination of what evidence to believe in this matter. And if, as the jury apparently did in this matter, accepts the evidence from the Peoples point of view, I think there is sufficient credible evidence to support the jurys findings in this matter. It is really a matter, as I said, of credibility. There was corroborating evidence of the allegations by the SART nurses. There was— when I view the evidence most favorable to the People, when I view it in that light, and reject the contradicting contrasting evidence offered by the defense, which is apparently what the jury did in this matter, as I stated, I think there is sufficient evidence to— sufficient credible evidence, that would allow the jury to make the findings they did. [¶] So for all of these reasons, the new trial motion is going to be denied."

When it reviews a motion for a new trial, the trial court is required to weigh the evidence independently, guided by a presumption in favor of the correctness of the verdict. Thus, "[t]he trial court `should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. (People v. Robarge (1953) 41 Cal.2d 628, 633 . . . .) [¶] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion." (People v. Davis (1995) 10 Cal.4th 463, 523.)

Here, the trial court pointed out that the case turned on J.s credibility and then went on to find that there was sufficient credible evidence to support the jurys determination that J. was, in fact, credible. In so doing, the court properly exercised its discretion.

C. Sufficiency of Evidence on Count 1

Defendant challenges his conviction for committing a lewd act upon a child (§ 288, subd. (a)) under count 1. He contends that substantial evidence does not support his conviction because the record does not contain any evidence that defendant compelled J. to touch her vagina.

We disagree.

Count 1 charges defendant of committing a lewd act upon J. by forcing her to touch her vagina. In order to establish a violation of section 288, subdivision (a), the jury had to find that defendant (1) willfully caused J. to touch her own body; (2) committed this act with the intent of arousing, appealing to or gratifying the lust, passions, or sexual desires of himself or the child; and (3) J. was under the age of 14 at the time of the crime.

D. testified that he wasnt sure, but thought, his sister was forced to touch her "private." He testified that when he was interviewed at the Rainbow Center, he said that his sister would have to "play with her private." He stated that he did not see her do that, but that his sister told him this. Although brief, D.s testimony is substantial evidence that defendant forced J. to touch herself.

D. Consecutive Sentences on Counts 2 and 3

Defendant claims that counts 2 and 3 involved a single act (J. being forced to hold D.s penis) on a single occasion and, therefore, section 654 barred the imposition of consecutive sentences on these counts. We disagree.

Section 654, subdivision (a) provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . ." The trial courts determination of whether section 654 applies is a question of fact. We affirm the trial courts decision so long as it is supported by substantial evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

Here the trial court found that the offenses involved in counts 2 and 3 "occurred at different times. They occurred in different rooms, and they involved different acts." Counts 2 and 3 alleged that defendant committed lewd acts upon J. and D. on or between September 24, 2003, and January 31, 2004. D. testified that when he was in the bathroom, defendant "made" him take off his clothes. His sister would not take off her clothes. Defendant "would make my sister touch my private." In the bathtub, defendant made them "[l]ook at each others private." This happened in the bathroom more than one time. It happened more than five times and less than ten times.

In sum, substantial evidence supports the trial courts imposition of consecutive sentences.

IV. DISPOSITION

The judgment is affirmed.

We concur:

Lambden, J.

Richman, J.


Summaries of

People v. Fowler

Court of Appeal of California
Jul 30, 2008
No. A115550 (Cal. Ct. App. Jul. 30, 2008)
Case details for

People v. Fowler

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BRIAN LEE FOWLER, Defendant and…

Court:Court of Appeal of California

Date published: Jul 30, 2008

Citations

No. A115550 (Cal. Ct. App. Jul. 30, 2008)