State v. Fowler
| Citation | 470 S.E.2d 393,322 S.C. 157 |
| Decision Date | 07 February 1996 |
| Docket Number | No. 2483,2483 |
| Parties | The STATE, Respondent, v. Jimmy Lee FOWLER, Appellant. . Heard |
| Court | Court of Appeals of South Carolina |
Assistant Appellate Defender Robert M. Pachak, of the South Carolina Office of Appellate Defense, Columbia, for appellant.
Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, Columbia; and Solicitor George M. Ducworth, Anderson, for respondent.
Appellant, Jimmy Lee Fowler, appeals his conviction for unlawful neglect of a child under provisions of S.C.Code Ann. § 20-7-50 (Supp.1995). We reverse his conviction.
The issues on appeal are (1) whether the trial court erred in refusing to grant a directed verdict when the State failed to present any evidence direct or circumstantial that Fowler had legal custody of the infant victim, and (2) whether Fowler is entitled to be resentenced because the trial judge made disparaging comments about him having "bastard babies" and the solicitor recommended Fowler not receive probation because he exercised his right to a jury trial.
The evidence, viewed in the light most favorably to the State, reveals the following. On Wednesday, February 16, 1994, the six month old victim, who is the illegitimate son of Fowler, was brought to the Anderson Area Medical Center and treated for a fracture of his left tibia and a cracked rib. He also had numerous scratches on his body and a bruise on his buttocks. The Department of Social Services (DSS) took the child into custody and Fowler and Zenobia (the victim's mother) were arrested and charged with unlawful neglect due primarily to the extent of the injuries and the fact they did not seek medical care for two days.
A review of the events leading up to the hospitalization, reveals there were no noticeable injuries to the infant prior to Monday, February 14. On the night of February 14, Zenobia left the child and his two year old sister with Fowler for thirty minutes to an hour while she and her sister went to get a pizza. At the time Zenobia resumed care of the child, no one noticed an injury to the child.
Tuesday morning, Zenobia brought the infant to her sister's home. The child could not move his left leg and when it was touched he cried. Zenobia informed her sister the child had fallen off the couch the previous night. The sister did not insist that the child be taken to the hospital once Zenobia claimed to have spoken with the child's doctor and was instructed to give him Tylenol, and watch to see if his leg becomes swollen or he vomits. That night, Zenobia's mother told her to take the child to the hospital, but stated they might investigate what happened. Zenobia expressed reluctance in taking the child to the hospital because she did not know what to tell hospital personnel. Fowler also claimed not to know what happened to the child.
On February 17, 1994, the day after the child was admitted to the hospital, the police and an Anderson County DSS caseworker spoke with Fowler and Zenobia. Fowler stated that while sitting on the couch with the children the infant rolled off, but he caught him before he hit the floor. Fowler later gave the child a bottle and put him to sleep before Zenobia returned. The child did not appear to him to be encountering problems at that time. The next morning, Fowler stated the child appeared cranky and showed signs of pain when his leg was touched or moved. He discussed taking the child to the hospital with Zenobia, but then advised Zenobia to "let's just watch him tonight." Fowler gave several explanations of how the child may have been injured, to include the fact that his two year old sister was mean and could have hurt the infant. The two year old's meanness was confirmed by others at trial.
Dr. Sally Carter, the child's pediatrician, stated that on the afternoon of Tuesday, February 16, Zenobia came into her office without the child and claimed the child had fallen off the sofa and his leg was swollen to the extent he could not use it. Carter told Zenobia to take the child to the hospital for an x- ray. Carter testified she did not instruct Zenobia to give the child Tylenol and wait to see if he vomited before taking him to the hospital. Carter and medical personnel who treated the child at the hospital testified "the pain and discomfort from the injuries from the victim's leg and rib would have been immediate" and accompanied by a "great deal" of crying. Radiologist David Holt testified the child would have experienced "very intense" pain from the injuries and would be "very, very irritable, crying, inconsolable" from the injuries and would "probably go crazy" if any attempt was made to change his diaper or feed him.
All experts agreed the victim's injuries were inconsistent with a fall off the sofa or having been grabbed as he rolled off the sofa. The experts also agreed that waiting almost two days to get medical treatment for the child endangered his comfort and that a reasonably prudent parent would have sought medical attention earlier. Dr. Carter stated, however, the failure to obtain medical assistance for two days "probably has very little influence on his long term health." Carter also described the injury as a "fresh break ... no older than three days of age when we saw him in the emergency room."
At sentencing, counsel for Fowler advised the judge that Fowler was 27 years old, and served in the military in Operation Desert Storm. Fowler obtained an honorable discharge from the military and was managing a Taco Bell in Clemson. Fowler told the judge that he obtained a masters degree from Clemson University. The judge responded, "You didn't learn how to not have bastard babies?" When Fowler responded, "Sir?", the judge stated, Fowler then told the judge he and Zenobia planned to get married. The solicitor then stated:
Your Honor, I'd just like to say we've gone through a day and a half of trial and as you have seen, you've heard the facts in evidence. The jury found him guilty and I ask that you don't go along with the recommendation of probation.
The judge then sentenced Fowler to ten years.
Fowler was indicted pursuant to S.C.Code Ann. § 20-7-50 (Supp.1995), which provides in part:
It is unlawful for a person who has the legal custody of a child or helpless person, without lawful excuse, to refuse or neglect to provide the proper care and attention, as defined in Section 20-7-490, for the child or helpless person, so that the life, health, or comfort of the child or helpless person is endangered or is likely to be endangered. (Emphasis added).
S.C.Code Ann. 20-7-490 (1985 & Supp.1995) provides, in part:
(B) "Abused or neglected child" means a child whose death results from or whose physical or mental health or welfare is harmed or threatened with harm, as defined by items (C) and (D), by the acts or omissions of his parent, guardian, or other person responsible for his welfare.
(C) "Harm" to a child's health or welfare can occur when the parent, guardian or other person responsible for his welfare:
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(3) Fails to supply the child with adequate food, clothing, shelter, education ..., or health care though financially able to do so or offered financial or other reasonable means to do so. For the purpose of this chapter "adequate health care" includes any medical or nonmedical remedial health care permitted or authorized under state law.
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(E) "A person responsible for a child's welfare" includes the child's parent, guardian, foster parent, an operator, employee, or caregiver as defined by Section 20-7-2700 of a public or private residential home, institution, agency, or child day care facility or a person who has assumed the role or responsibility of a parent or guardian for the child, but who does not necessarily have legal custody of the child. A person whose only role is as a caregiver and whose contact is only incidental with a child ... has not assumed the role or...
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