State v. Fowers
| Decision Date | 10 November 2011 |
| Docket Number | No. 20090787–CA.,20090787–CA. |
| Citation | 2011 UT App 383,265 P.3d 832 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. William Eli FOWERS, Defendant and Appellant. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Samuel P. Newton, Ogden, for Appellant.
Teral L. Tree, Ogden, for Appellee.
Before Judges McHUGH, ORME, and THORNE.
¶ 1 William Eli Fowers appeals from his conviction of one count of criminal solicitation. See Utah Code Ann. § 76–4–203 (2008). Fowers argues that defense counsel was ineffective in introducing evidence of Fowers's twenty-five-year-old conviction for sodomy on a child and for failing to move for a mistrial in response to the prosecutor's comment during closing argument suggesting a relationship between Fowers's bisexuality and pedophilia. Fowers also argues that the trial court committed plain error and that defense counsel was ineffective in allowing two counts of criminal solicitation involving different complainants to be joined. See id. § 77–8a–1 (2008). We reverse and remand for a new trial.
¶ 2 Fowers was charged with two counts of criminal solicitation for events arising out of his interactions with two fifteen-year-old boys: K.C. and T.R. The charges were tried together before the same jury. K.C. testified that in early March 2009, he was approached by Fowers at approximately 7:00 a.m., while K.C. was waiting for a bus to take him to his alternative high school. According to K.C., Fowers approached him on foot after parking his red truck approximately twenty feet away. Fowers asked if K.C. would like a ride to school, and K.C. accepted “[b]ecause [he] was cold, and [he] had just missed the bus.” During the drive, K.C. revealed that he liked mechanics. Fowers gave K.C. his name and telephone number and dropped K.C. at school.1
¶ 3 Approximately one week later, K.C. saw Fowers early in the morning while K.C. was walking to his bus stop. Fowers asked K.C. if he wanted a ride to school, and K.C. again accepted. Fowers then asked K.C. if he would like to “check out [Fowers's] apartment,” and K.C. agreed “[b]ecause [he] had spare time, and ... nothing else to do.” K.C. stated that Fowers offered him breakfast, which he declined, and then gave him some “papers” that had “[s]omething about triple X” on them and some mechanics papers. K.C. testified that Fowers then questioned him about his sexuality, asking if K.C. “was straight or gay” and what K.C. “thought about giving head.” According to K.C., he told Fowers that he “was straight” but did not respond to Fowers's queries about fellatio. K.C. testified that Fowers then inquired “what it would take for [K.C.] to perform oral sex” on Fowers and “went off on drugs and alcohol.” K.C. asked Fowers for money, and Fowers gave him twenty dollars, stating that it was “on a trust basis” with the understanding that K.C. would perform oral sex on Fowers after school. Fowers then took K.C. to school. After school, K.C. did not meet Fowers, and although Fowers offered K.C. rides on a couple of subsequent occasions, K.C. declined the invitations.
¶ 4 T.R. also testified about his interactions with Fowers. He stated that in mid-March 2009, he was approached by Fowers near his high school, the same alternative high school that K.C. attended. According to T.R., he was waiting for the bus after school at approximately 2:30 or 2:45 p.m. when Fowers pulled up in a red truck. T.R. testified that Fowers asked him if he wanted a ride and that he said “no.” Fowers then asked T.R. if he would like to help Fowers “move [his] storage,” an offer that T.R. likewise rejected. According to T.R., Fowers then asked if T.R. “wanted to get [his] dick sucked.” When T.R. declined, Fowers offered him twenty dollars and some chewing tobacco. After T.R. again refused, Fowers drove away. Suspecting that Fowers might return the following day, T.R. waited at the same spot with a friend. T.R. testified that Fowers approached him again, this time driving a green truck,2 and that Fowers offered T.R. fifty dollars to allow Fowers to perform oral sex on T.R. T.R. testified that he continued talking to Fowers while his friend wrote down the truck's license plate number. The friend did not hear the conversation between Fowers and T.R., but she was successful in recording Fowers's plate number. T.R. then called the police and reported the incident. The police identified Fowers as the owner of the vehicle assigned to the plate number provided by T.R.'s friend.
¶ 5 The record indicates that both boys appeared at trial dressed in institutional clothing associated with the juvenile facility to which they were assigned. The prosecutor admonished the jury to disregard that fact, noting in his opening statement that K.C. and T.R. would During closing argument, the prosecutor argued that the jury should believe the testimony of the boys due to the inconvenience they had suffered in order to testify, stating,
¶ 6 Fowers testified in his own defense. He admitted to having contact with the two boys but denied that there was anything inappropriate about the interactions and specifically denied soliciting oral sex with either boy. Fowers stated that he had seen K.C. approximately four times and had taken him to school twice. He testified that their first interaction took place at approximately 7:00 a.m., when Fowers was driving home from work. According to Fowers, K.C. waved him over and Fowers initially stopped because it was still dark and he thought K.C. was an old friend. Fowers stated that K.C. asked for a ride to school and that he agreed to take him. During the drive, Fowers asked K.C. general questions about his future, to which K.C. responded that he was in a group home for “drugs, this, that and the other.” He then dropped K.C. at school. Approximately one week later, Fowers saw K.C. again in approximately the same area and stopped his car. Fowers testified that K.C. asked him for twenty dollars. Fowers refused to give it to him, reflecting that “[m]aybe if [K.C.] was willing to work or something[,] ... but [he] wasn't just going to give [K.C. twenty dollars] because [he did not] even know the guy.” Fowers claims that he dropped K.C. at school and never saw him again.
¶ 7 Fowers also testified about his interactions with T.R. He stated that he was driving in the area near the school and “observed [T.R.] in the parking lot [of a business] between two cars ... looking for things through the window.” Out of concern, Fowers entered the parking lot, and T.R. came “over towards [Fowers] kind of nervous like, and [T.R.] asked [Fowers] if [Fowers] had a cigarette.” Fowers did not have any cigarettes, but he offered T.R. chewing tobacco and advised T.R. that he could earn some money by helping Fowers's friend move storage. Fowers claims that he was motivated by concern that T.R. “was scrounging for cigarette butts, and [because of] mono diseases and whatever you can get off other people's cigarettes.” According to Fowers, T.R. declined the offer, stating that he was on his way to his job at a local restaurant. When Fowers asked T.R. about someone Fowers knew who worked at the restaurant, T.R. 3
¶ 8 Fowers admitted to seeing T.R. the following day by a bus stop in the same area. He testified that T.R. waved him down and insisted that Fowers give him a ride, stating that T.R. was “almost trying to get [Fowers's] door open on the driver's side to get in.” He stated that T.R.'s friend went behind his truck, and then the two left. Fowers was arrested approximately three hours later.
¶ 9 During trial, the trial judge and the attorneys participated in an off-the-record discussion held outside the presence of the jury, during which they addressed the admissibility of Fowers's twenty-five-year-old conviction for sodomy on a child.4 The State argued that defense counsel had “opened the door” during opening statements so that it was entitled to introduce evidence of Fowers's prior conviction.5 The trial court disagreed, stating that “while [defense counsel] may have come close, he had not sufficiently opened the door to allow the prior sodomy conviction.” In addition, the trial court concluded that the evidence “would be substantially more prejudicial than probative” under rule 403 of the Utah Rules of Evidence. Ultimately, the trial court denied the State's request to introduce the evidence.
¶ 10 After the State completed its case-in-chief, defense counsel requested a recess to discuss an issue on the record. When the jury was excused, defense counsel explained that he had talked with Fowers about whether he should testify in his own defense. Apparently believing that Fowers could be cross-examined about the twenty-five-year-old conviction if he decided to testify, defense counsel stated, “I've explained the risks of testifying to him, that his past history would come in, despite the fact that it's [twenty-five] years old, that could possibly be used against him.” Defense counsel further revealed that he had advised Fowers not to testify. The trial court was not asked to readdress the admissibility of Fowers's twenty-five-year-old conviction and did not volunteer any opinion concerning defense counsel's assumptions about the introduction of the prior conviction.6 Instead, the trial court clarified Fowers's right to testify, if he chose to do so, stating,
Mr. Fowers, the primary issue is that you have a constitutional right to testify. You also have a constitutional right not to testify. If you decide to testify, you are subject to cross-examination by [the prosecutor].... There may be evidence...
To continue reading
Request your trial
-
State v. Curtis
...Curtis's and Mother's credibility enough to have a material effect on the verdict. Curtis relies on our decision in State v. Fowers, 2011 UT App 383, 265 P.3d 832, to argue that his attorney's mistake fatally undermined Mother's and Curtis's credibility. In that case, we held that the defic......
-
State v. Kelson
...there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.’ ” State v. Fowers, 2011 UT App 383, ¶ 21, 265 P.3d 832 (quoting State v. Munguia, 2011 UT 5, ¶ 30, 253 P.3d 1082). “ ‘A reasonable probability is a probability sufficie......
-
State v. Curtis
...Curtis's and Mother's credibility enough to have a material effect on the verdict. Curtis relies on our decision in State v. Fowers, 2011 UT App 383, 265 P.3d 832, to argue that his attorney's mistake fatally undermined Mother's and Curtis's credibility. In that case, we held that the defic......
-
State v. Johnson
...practices); see also State v. Davis, 2013 UT App 228, ¶¶ 89–95, 311 P.3d 538 (discussing record reconstruction procedures); State v. Fowers, 2011 UT App 383, ¶ 19, 265 P.3d 832 (relying, in part, on the trial court's memory of an off-the-record evidentiary ruling to evaluate an ineffective ......