In re Personal Restraint Petition of Fowler
| Decision Date | 15 June 2021 |
| Docket Number | 51029-4-II |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the Personal Restraint Petition of VINCENT L. FOWLER, Petitioner. |
UNPUBLISHED OPINION
Fowler was convicted of two counts of first degree child molestation and first degree rape of a child. In this personal restraint petition (PRP), Vincent Fowler argues that he received ineffective assistance of counsel when counsel failed to investigate witnesses, failed to prepare him for trial, and failed to present evidence that the victims had been abused by their brother. We hold that Fowler has not shown that he is entitled to relief, and we deny his petition.
Fowler met A.G. and A.C.G.'s homeless mother, Zeny Cardwell through a friend. A.G. was either 9 or 10 when she met Fowler, and A.C.G. was 8 or 9. Fowler occasionally watched over the girls and gave them food, rides, and a place to stay.
One night in 2011, A.G. stayed at Fowler's apartment. According to A.G., Fowler's roommate, Monica Boyle, was not present for most of the night. A.G. said she played with a dog before falling asleep on the couch in the living room. She fell asleep wearing a shirt and jeans and had shorts and underwear underneath her jeans. Fowler slept on the floor. A.G. woke up when she felt something unzip her pants. A.G felt Fowler touching her vagina on top of her clothes. A.G turned over, got up, and went to the bathroom. There, she noticed her zipper was undone. When she returned to the living room, Fowler was pretending to be asleep on the floor. A.G. sat awake for the rest of the night.
The next day, A.G. told her friend about what happened. She also told Cardwell who did not believe her. A.G. said Fowler apologized to her and said he was drunk. Fowler told her that if he had done it, he would not do it again. A.G. continued to spend time with Fowler after this incident, but she felt safe because they were not alone.
A.C.G experienced two similar incidents with Fowler. The first occurrence happened while A.C.G. and her family were at a friend's house. A.C.G. fell asleep on one couch in the living room while Fowler fell asleep on another couch. She woke up when he touched her. Fowler had pulled her pants and underwear down to her knees and was touching the inside of her vagina with his hands. He stopped touching her when Cardwell, who was sleeping in the bedroom, got up to use the bathroom and the lights turned on. When Cardwell came out of the bathroom, A.C.G. told Cardwell that she wanted to sleep with her.
The second incident occurred in the same house, two days after the couch incident. A.C.G. was asleep on the bed in the bedroom; A.G. and Nestor, her older brother, were also sleeping on the bed. A.C.G. wore a skirt and underwear. Fowler came into the bedroom and touched A.C.G.'s vagina under her skirt but on top of her underwear. He stopped touching her when Nestor moved.
During this time frame, Nestor was also sexually abusing A.G. and A.C.G. When the girls told their mother about Nestor's abuse, Cardwell kicked Nestor out of the home and called law enforcement. Nestor subsequently pleaded guilty to one count of child molestation. When law enforcement was investigating Nestor's crimes, they learned that Fowler had also sexually abused A.G. and A.C.G.
Detective Kenny Davis interviewed Fowler, who denied the allegations of sexual abuse, but admitted he knew the girls, had spent time with them, and was around them during the relevant time frame. He also admitted that A.G. had spent the night with him, and that she slept on the couch while he slept on the floor. During his interview with Detective Davis, Fowler stated that he lived with Boyle. Fowler did not say that Boyle was home when A.G. spent the night or mention that Boyle had a dog.
Fowler was charged with two counts of first degree child molestation and one count of first degree rape of a child for acts occurring between April 1, 2011 and December 1, 2011. Fowler pleaded not guilty, and the matter proceeded to a jury trial in September 2013.
During pretrial motions, defense counsel told the court that he did not have any witnesses other than the potential for Fowler to testify. Fowler then told the court that he disagreed with his counsel's strategy. Specifically, Fowler said that he had alibi witnesses who could also prove where he was living at the time, but that his counsel would not call his witnesses. He told the court that the witnesses were "Kineshia Lewis, Lindsay Warren and [his] brother, Earl Fowler."[1] Verbatim Report of Proceedings (VRP) (Sept. 30, 2013) at 13.
Defense counsel told the court that he had spoken to "the witnesses [Fowler]'s indicated" and had received reports from his investigator on the witnesses. VRP (Sept 30, 2013) at 14. Trial counsel said:
It's safe to say that they know who Mr. Fowler is, and they did have contact with him during some period in that basically nine-month period. But no one is saying that he didn't have-that he did not have contact with the alleged victims, during that time, or that he would not have had the opportunity to have had contact. In my way of thinking, knowing what [sic] alibi witness is, I don't perceive them as being able to testify that Mr. Fowler would have been unable to commit these offenses.
VRP (Sept. 30, 2013) at 14. Trial counsel also said that he "perceive[d] this [case] as a general denial," and that Fowler has made statements that VRP (Sept. 30, 2013) at 14-15. The trial court acknowledged the disagreement over strategy.
During motions in limine, the parties agreed to exclude evidence of the victims' prior sexual history. The parties also agreed to exclude evidence of Nestor's abuse of the victims and those related proceedings. Defense counsel said that he believed the rape shield laws would prevent admission of the evidence, and "frankly, [he was] not sure if it is more helpful or harmful to Mr. Fowler." VRP (Sept. 30, 2013) at 22.
At trial, A.G. and A.C.G. testified consistently with the above. The property manager of Boyle's apartment complex, Natalie McMahon, testified that Fowler had lived at the apartment complex as an "unauthorized occupant" in 2011. VRP (Oct. 3, 2013) at 182.
Fowler testified, and again denied the allegations. Regarding the incident with A.G., Fowler testified that Ms. Boyle and her dog were at the apartment. He fell asleep on the floor while Boyle and A.G. sat on the couch watching a movie. In the middle of the night, the dog woke him up by licking his face. He pushed the dog off him, but the dog jumped onto A.G. and licked her, which caused her to awaken. He took the dog off A.G. and called to Boyle, who came out of the kitchen to get the dog. He briefly talked with Boyle before going back to sleep on the floor. A.G. was already asleep on the couch and was still asleep when he left the next morning.
Because of Fowler's testimony, the State requested a missing witness jury instruction. Defense counsel told the court that Fowler had not "had any contact with [Boyle] in more than two years" and counsel did not "know where she [was] and [was] unable to locate her." VRP (Oct. 7, 2013) at 238. Counsel also told the court that "Mr. Fowler has indicated that he doesn't know where she is, so [counsel was] not sure where we would have sought to seek her." VRP (Oct. 7, 2013) at 242. The court gave the instruction over Fowler's objection. Fowler asked the court to allow him to recall McMahon to testify that Boyle had moved out in June 2011. The court agreed, finding that Fowler could argue a reasonable inference from the fact that Boyle had been gone for two years.
Fowler then recalled McMahon to testify that Boyle had moved out in June 2011. McMahon testified that Boyle lived at the apartment complex in 2011, and that Fowler had lived with Boyle and was an "unauthorized occupant." VRP (Oct. 7, 2013) at 253. McMahon testified that Boyle moved out of the apartments in July 2011. On cross-examination, McMahon testified that she had "confronted" Fowler because she received "complaints that he was hanging around the children at the playground-." VRP (Oct. 7, 2013) at 255. Trial counsel objected, and the trial court sustained the objection, instructing the jury to disregard McMahon's statement about the complaints. McMahon testified that Boyle provided a forwarding address. She testified that she had not been contacted by defense counsel or an investigator and did not believe that she had been asked about Boyle's forwarding address. McMahon testified that she thought Boyle lived in Port Orchard and that she had seen her at a store in the last couple of months.
Fowler was convicted of two counts of first degree child molestation and one count of first degree rape of a child. The court imposed discretionary legal financial obligations. Fowler appealed.
On direct appeal, Fowler argued that the missing witness instruction was a judicial comment on the evidence, and that the trial court erred by issuing the missing witness instruction. On August 18, 2015, Division Three of this court held that the trial court did not err in issuing the instruction, and even if it did, the error was harmless.
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