Fowlkes v. State, 011520 AKCA, A-12934

Docket Nº:A-12934
Opinion Judge:Mannheimer, Judge.
Party Name:CLAUDE EDWARD FOWLKES III, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Carolyn Perkins, Attorney at Law, Salt Lake City, Utah, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Allard, Chief Judge, Wollenberg, Judge, and Mannheimer, Senior Judge.
Case Date:January 15, 2020
Court:Court of Appeals of Alaska
 
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CLAUDE EDWARD FOWLKES III, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12934

Court of Appeals of Alaska

January 15, 2020

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Trial Court No. 4FA-14-00882 CR Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge.

Carolyn Perkins, Attorney at Law, Salt Lake City, Utah, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.

Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, Wollenberg, Judge, and Mannheimer, Senior Judge. [*]

MEMORANDUM OPINION

Mannheimer, Judge.

Claude Edward Fowlkes III was convicted, following a jury trial, of seven counts of first-degree sexual abuse of a minor. He received a composite sentence of 100 years to serve. Fowlkes now challenges both his convictions and his sentence.

Fowlkes argues that the superior court committed plain error by failing to instruct the jurors on the need for factual unanimity-i.e., the need to reach unanimous agreement regarding the specific acts of sexual penetration that formed the bases of their seven guilty verdicts.

But in his summation to the jury at the close of Fowlkes's trial, the prosecutor identified the particular acts of sexual penetration that formed the bases for the State's seven counts of first-degree sexual abuse of a minor. Moreover, Fowlkes did not offer separate defenses to the State's individual allegations. Rather, Fowlkes's attorney argued that all of the victim's accusations were false, and that Fowlkes had never engaged in any sexual activity with the victim.

Under these circumstances, the trial judge's failure to instruct the jurors on factual unanimity was not plain error, because Fowlkes was not prejudiced by the lack of a factual unanimity instruction. See Anderson v. State, 337 P.3d 534, 542-43 (Alaska App. 2014).

Fowlkes also argues that the superior court abused its discretion when it allowed the State to introduce evidence that Fowlkes had sexually abused another victim, C.N. The trial judge admitted this evidence under Alaska Evidence Rule 404(b)(2) after finding that Fowlkes's abuse of C.N. satisfied the foundational requirements...

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