Lowery v. State

• Decision Date: 05 September 2008
• Docket Number: No. F-2007-471.,F-2007-471.
• Citation: 192 P.3d 1264,2008 OK CR 26
• Parties: Brian Thomas LOWERY, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

192 P.3d 1264

2008 OK CR 26

Brian Thomas LOWERY, Appellant v. STATE of Oklahoma, Appellee.

No. F-2007-471.

Court of Criminal Appeals of Oklahoma.

September 5, 2008.

Marny Hill, Assistant Public Defender, Tulsa, OK, attorney for defendant at trial.

Jack Thorp, Assistant District Attorney, Tulsa, OK, attorney for the State at trial.

Paula J. Alfred, Assistant Public Defender, Tulsa, Oklahoma, attorney for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Diane L. Slayton, Assistant Attorney General, Oklahoma City, Oklahoma, attorneys for appellee on appeal.

OPINION

CHAPEL, Judge.

¶ 1 Brian Thomas Lowery was tried by jury and convicted of Indecent Exposure, under 21 O.S.Supp.2003, § 1021 (Counts I, II, III, VII, and IX); First-Degree Burglary, under 21 O.S.2001, § 1431 (Count IV); Lewd Molestation, under 21 O.S.Supp.2003, § 1123 (Count VI); and Assault and Battery (misdemeanor), under 21 O.S.Supp.2005, § 644 (Count X), in Tulsa County District Court, Case No. CF-2005-4425.¹ In accordance with the jury's recommendation, the Honorable Dana L. Kuehn sentenced Lowery to imprisonment for five (5) years and a $500 fine on Count I; imprisonment for four (4) years and a $500 fine on Count II; imprisonment for four (4) years and a $500 fine on Count III; imprisonment for twenty (20) years and a $500 fine on Count IV; imprisonment for thirty (30) years and a $500 fine on Count VI; imprisonment for ten (10) years and a $500 fine on Count VII; imprisonment for seven (7) years and a $500 fine on Count IX; and ninety (90) days in the county jail and a $100 fine on Count X.² The Honorable Dana L. Kuehn ordered that Counts I, II, III, IV, VI, VII and IX all be served consecutively with each other, but concurrently with Count X. Lowery appeals his convictions and his sentences.

Facts

¶ 2 This case involves a string of lewd incidents on the night of September 29, 2005, in the southern section of Tulsa, Oklahoma. At approximately 6:30 p.m. that evening, M.S. was walking to the laundry room of her apartment complex to do her laundry. A white man with black hair, wearing only a black t-shirt, black shoes, and black socks, followed her into the laundry room. As she was putting laundry in the dryer, the man yelled "Hey, Hey," and when M.S. turned around, he lifted up his shirt. He wasn't wearing anything underneath and started masturbating in front of her. M.S. ran past the man out of the laundry room, telling him that she was going to call the police, and he ran off. M.S. identified Brian Thomas Lowery at trial as the man who had exposed himself to her, testifying that she was "absolutely sure" it was him.

¶ 3 At approximately 7:00 p.m. that same evening, M.L. arrived at the JCPenney's parking lot at the Woodland Hills Mall. As she got out of her car and began walking toward the store, she saw a man walking toward her who was flashing his penis at her.³ The man was wearing only a black t-shirt, with black shoes and black socks, and he exposed himself to her multiple times by raising up his shirt. M.L. rushed into the store and asked for security. When she came back outside with a loss prevention officer, she spotted the same man still in the parking lot, and the officer chased him until he lost sight of him. M.L. identified Lowery at trial as the man who had had exposed himself to her and testified that she had "no doubt whatsoever" that it was him. The JCPenney's loss prevention officer also identified Lowery as the man in the black shirt that he had chased through the parking lot.

¶ 4 At approximately 8:00 p.m. that same evening, D.B. was walking from her apartment to her car when a man, wearing only a long black t-shirt, started walking behind her and seemed to be following her. She turned, confronted him, and asked where he was from, to which he responded, "Over there." D.B. said, "I don't think so," and began praying out loud. The man then ran a short distance away, but then stopped, raised his shirt, and started playing with his penis. D.B. yelled that she was going to call the police, but the man continued playing with himself, in plain view, until she ran inside her apartment. When she came back out, he was gone. D.B. identified Lowery at trial as the man who had exposed himself to her and testified that she had no doubt that it was him.⁴

¶ 5 L.A. testified that she was alone in her South Tulsa apartment that same evening. At approximately 8:45 p.m., she left the apartment to take out her trash. Although she locked her front door when she returned, her back sliding glass door was open, and her sliding screen door was closed but not locked. When she returned she lay down on her couch and was watching television. At approximately 9:00 p.m., someone came up behind her and put his hand over her mouth. When she turned to see who it was (thinking it might be her boyfriend), she saw a man whom she did not recognize, who was not wearing any clothing. She pulled his hand off her mouth and tried to get up. The man pushed her back down, into her coffee table, and ran out the back sliding door.⁵ L.A. testified that she got a clear view of the man's face, that the man was not clean shaven, and that as he ran away, she noticed that he was carrying something that looked like a black or navy shirt. L.A. later noticed that approximately $150 in cash was missing from her kitchen counter. L.A. identified Lowery at trial as the man who came into her apartment and noted that she did not have any doubt that it was him.

¶ 6 At approximately 9:25 p.m. that night, N.B., who was fourteen years old at the time, was talking on a pay phone within the apartment complex in which she lived. She turned around when she felt something touch her butt.⁶ She initially assumed it was a friend and turned around saying, "What the F?" She then saw that the person who touched her was not a friend, but instead was a naked man crouching down behind her. She then said, "No, seriously, what the F?" And the man covered his face with his hands, stood up, and immediately ran away. N.B. noted that the man was holding something in his hand that looked like a dark-colored shirt. N.B. identified Lowery at trial as the man who came up behind her and touched her that night.

¶ 7 Detective Rod Russo was the lead detective for the series of incidents that occurred on September 29, 2005. He testified that a Woodland Hills Mall security officer provided him with a license tag number of a possible suspect. Russo was able to track the vehicle to Lowery's girlfriend at the time. Russo then prepared a six-person photographic lineup, from which each of the victims of September 29, 2005, picked out Lowery's picture.⁷ When Russo went to the girlfriend's home, Lowery answered the door—wearing a black t-shirt—and was arrested.

Analysis

¶ 8 In Proposition I, Lowery strenuously challenges the trial court's decision to admit evidence into his trial regarding a separate and serious sexual assault on a child, maintaining that this was improper "other crimes" evidence. Lowery asserts that evidence about the rape by instrumentation of fifteen-year-old R.P., which occurred two months earlier, was irrelevant to the charges against him, was not admissible under any of the exceptions to the prohibition of such "other crimes" evidence, was unnecessary, and was far more prejudicial than probative.⁸ The State filed a Burks notice prior to Lowery's trial, noting its intent to present this evidence, and a full hearing was held regarding the admissibility of this evidence during the trial.⁹ At the conclusion of the hearing, the trial court ruled that it would allow this "other crimes" evidence, finding that it was admissible on the issues of "identity" and "motive."¹⁰

¶ 9 This Court has recently reviewed the rules for the admission of other crimes evidence and summarized these rules as follows:

Other crimes evidence is not admissible to show that a person is acting in conformity with a character trait. Evidence of a prior bad act may be admissible if it is offered for a purpose specifically identified in § 2404(B). The following factors are necessary for the use of other crimes evidence. There must be a visible connection between the other crimes evidence and the charged crimes. The evidence must go to a disputed issue and be necessary to support the State's burden of proof, and its probative value must outweigh the danger of unfair prejudice. It must be established by clear and convincing evidence. The jury must be properly instructed on the limited purpose for which the evidence may be considered. If the evidence is offered to show a common scheme or plan, it must embrace the commission of crimes so related to each other that proof of one tends to establish the other.¹¹

We evaluate the R.P. evidence in the current case under these requirements.¹² This Court notes that although defense counsel vigorously challenged this other crimes evidence during the in-trial hearing on its admissibility, counsel failed to renew his objection to this evidence at the time it was actually offered at trial. Hence this Court reviews only for plain error.¹³

¶ 10 The challenged "other crimes" evidence in the current case came in through the testimony of two witnesses: R.P. (the victim in the other case) and Liz Eagan (the investigator in the other case).¹⁴ R.P. was the final witness in Lowery's trial. She testified that on July 29, 2005, when she was fifteen years old, she spent the night in her grandmother's Tulsa apartment. She testified that her grandmother went to sleep around 10:30 p.m. and that she was sure that the one door into the apartment was locked at that time.¹⁵ R.P. testified that she stayed up until approximately 3:00 a.m., on the morning of July 30, 2005, watching television and doing a project for her grandmother's vacation bible school class. She then fell asleep on the living room couch. R.P. woke up around 6:00 a.m., when she felt pressure between her legs and...