Fowler v. Commonwealth

Decision Date22 March 2018
Docket Number2016-SC-000333-MR
PartiesMICHAEL FOWLER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
CourtUnited States State Supreme Court — District of Kentucky

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM BUTLER CIRCUIT COURT

HONORABLE RONNIE C. DORTCH, JUDGE

NOS. 15-CR-00011 AND 15-CR-00119

MEMORANDUM OPINION OF THE COURT
AFFIRMING

Michael Fowler appeals as a matter of right from a judgment of the Butler Circuit Court convicting him of first-degree rape, first-degree sodomy (three counts), and first-degree sexual abuse (five counts). Ky. Const. § 110(2)(b). Fowler alleges three errors by the trial court: 1) refusing to grant his motion to sever charges; 2) denying his motion for directed verdict; and 3) barring the introduction of information about a victim's sexual abuse allegations against someone else. For the following reasons, we affirm the judgment and sentence of the Butler Circuit Court.

FACTS AND PROCEDURAL HISTORY

In the late spring of 2014, Fowler learned from his biological mother, Judy Bernard, about a drug rehabilitation program—Andrea's Mission—in Morgantown, Kentucky. Fowler, who was addicted to heroin at the time,traveled to Morgantown to enroll in the program. When Fowler arrived in Morgantown he initially stayed with his mother and ten-year-old sister "Susan,"1 before moving to the Mission's facility for men in Morgantown.

Fowler left the rehabilitation program in late August or early September of 2014, and at some point toward the end of his time in treatment he was given permission to spend nights at Bernard's apartment. Due to Bernard working a third-shift job, Fowler agreed to stay the nights at her residence to help watch Susan. This arrangement continued for approximately two weeks, until one of Bernard's friends returned to Morgantown and was able to watch Susan overnight.

Also, during his time at Andrea's Mission, Fowler became acquainted with one of the female residents, Nicole Waldecker. According to Waldecker, the two entered the rehabilitation program at about the same time, became acquainted, began dating, and by the end of the program wanted to move in together. In late August, Waldecker moved back into the Morgantown home of her mother, Reva Potts, and step-father, the caretakers during her treatment of her two children: a daughter, "Betty," who was born in September 2008 and who was thus seven years old at the time of trial in March 2016, and a then two-year-old son. After the completion of Waldecker's drug rehabilitation, she, Betty, and her son moved into an apartment. Fowler lived with Waldecker and her children at both the Pottses' residence and the apartment.

During their cohabitation, Waldecker maintained continuous employment, while Fowler took on a larger portion of the care of the children. With respect to Betty, that meant, on school days, seeing to it that she was up and dressed and ready to go in time for the school bus. Waldecker testified, however, that on weekends and during the busy holiday season in November and December, she sometimes had to work when Betty was off, and on those days, Fowler was essentially alone with the child all morning until Waldecker got home from work at about 1:00 p.m.

Several months into living together, Fowler and Waldecker relapsed and began using drugs together. Later in January 2015, when Betty asked if she could go live with her grandmother, Waldecker believed that Betty was upset because of her drug abuse. After Betty went to stay with her grandmother in mid-January 2015, Waldecker and Fowler had an argument that turned into an altercation. Fowler blackened her eyes and bruised three of her ribs, injury enough to land her briefly in the hospital and Fowler in jail. After Fowler pled guilty to fourth-degree assault and was released from jail, he returned to the home, where he argued with Waldecker and with some of her family members, which resulted in the issuance of a Domestic Violence Order against him barring him from the residence.

Afterwards, Betty returned to live with her mother. When Betty came home, Waldecker asked why she had gone to her grandmother's and why she had returned. During this conversation, Waldecker learned of Fowler's abuse of Betty and she contacted the authorities. Subsequently, Officer JamesEmbry of the Morgantown Police Department conducted a preliminary interview with Betty that day that prompted him to arrange a more extensive interview for her at the Barren River Child Advocacy Center (CAC) in Bowling Green. However, before that interview could be held, Officer Embry was contacted by Bernard. She explained that she had learned of Betty's accusations against Fowler and remembering that Fowler had spent nights alone with Susan, had become concerned. When Susan did not completely allay her concerns, she contacted Officer Embry. Afterwards, Officer Embry interviewed Susan and thereafter had charge of both cases.

After Betty was interviewed at CAC, Officer Embry prepared the case for presentation to the Butler County grand jury. In February 2015, the Butler County grand jury charged Fowler with ten counts each of first-degree rape, first-degree sodomy, and first-degree sexual abuse against Betty. In the same indictment, the grand jury also charged Fowler with having sexually abused Susan.2 The cases involving each girl proceeded together, with a presumption, it appears, that they would be jointly tried. However, on the morning trial was to begin, March 10, 2016, Fowler moved to sever them.3 The trial court denied that motion, and both girls testified during the Commonwealth's conjoined cases-in-chief.

After a few questions addressing her competence, seven-year-old Betty testified that during the period she, her mother, her baby brother, and Fowler lived together in the Morgantown apartment, Fowler performed a number of acts of a sexual nature on her and had her perform similar acts on him. Although Betty did not have an adult vocabulary for what she was describing, with the help of some leading questions by the prosecutor, Betty stated in effect that Fowler subjected her to incidents of vaginal intercourse, vaginal touching (Fowler placing his penis on the outside of Betty's vagina), and vaginal/oral sodomy. She also testified to occasions when Fowler placed his penis in her mouth, occasions when he had her touch his penis with her hands, and occasions when he kissed her on the mouth. Betty's responses to questions concerning sexual contact with her "bottom" were noticeably less definite than many of her other responses, but they could have been understood as alleging acts of anal sodomy as well.

These episodes "usually" occurred, Betty testified, when her mother was at work, but happened also, she said, while her mother was sleeping and once while her mother was in the shower. In an attempt to differentiate some of the episodes, the prosecutor asked Betty to specify what Fowler had done to her or had her do to him in each room of the residence—her bedroom, her mother's bedroom, the living room, and the bathroom. With the exception of her own bedroom, where Betty recalled only Fowler's kissing her, Betty identified every room as the scene of multiple episodes of sexual behavior, intercourse and/or sodomy and/or genital touching.

On the basis of Betty's room-by-room descriptions, the jury instructions asked the jury whether it believed, beyond a reasonable doubt, that Fowler had subjected Betty to vaginal intercourse inside the apartment (the precise room was not identified); that in the living room he had subjected her to penile/oral sodomy, vaginal touching abuse, and penile touching abuse; that in her mother's bedroom he had subjected her to penile/oral sodomy and penile touching abuse; and that in the bathroom he had subjected her to penile/oral sodomy, vaginal touching abuse, and penile touching abuse.

With regard to Betty's allegations against Fowler, the jury was presented with instructions for the following charges: first-degree rape, first-degree sodomy (six counts), and first-degree sexual abuse (five counts). Subsequently, the jury found Fowler guilty of first-degree rape, first-degree sodomy (three counts), and first-degree sexual abuse (five counts). The jury returned not guilty verdicts with respect to three other instructions asking whether it was convinced that Fowler had committed an act of anal sodomy in the bathroom and two such acts in the mother's bedroom.

Susan, Fowler's sister, who was eleven years old at the time of the alleged offense and twelve at the time of trial, also testified. At odds with her mother's testimony, she recalled only a single night during the summer of 2014 when Fowler stayed with her while her mother worked. According to Susan, one night she and Fowler went to sleep in her mother's bedroom. Later that evening, she awoke to Fowler reaching a hand inside her pajamas and inside her underwear and touching the outside of her vagina. Neither she nor Fowlersaid anything, but she immediately pushed his hand away, left the bed, and slept on the living room couch. The sole jury instruction with respect to Susan asked whether the jury believed beyond a reasonable doubt that Fowler had subjected her to first-degree sexual abuse for touching her vagina. The jury's...

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