State v. Fowler, No. 2483

CourtCourt of Appeals of South Carolina
Writing for the CourtCURETON
Citation470 S.E.2d 393,322 S.C. 157
Decision Date07 February 1996
Docket NumberNo. 2483
PartiesThe STATE, Respondent, v. Jimmy Lee FOWLER, Appellant. . Heard

Page 393

470 S.E.2d 393
322 S.C. 157
The STATE, Respondent,
v.
Jimmy Lee FOWLER, Appellant.
No. 2483.
Court of Appeals of South Carolina.
Heard Feb. 7, 1996.
Decided March 18, 1996.
Rehearing Denied May 23, 1996.
Certiorari Denied Dec. 6, 1996.
Appeal Dismissed March 24, 1997.

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,

Page 394

Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, Columbia; and Solicitor George M. Ducworth, Anderson, for respondent.

CURETON, Judge:

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.

Facts

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 [322 S.C. 159] 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-[322 S.C. 160] 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

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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...

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4 practice notes
  • State v. Dupree, No. 3657.
    • United States
    • Court of Appeals of South Carolina
    • June 30, 2003
    ...construed against the State and in favor of the defendant. State v. Morgan, 352 S.C. 359, 574 S.E.2d 203 (Ct.App.2002); State v. Fowler, 322 S.C. 157, 470 S.E.2d 393 (Ct.App.1996). The cardinal rule of statutory construction is to ascertain and effectuate the legislative intent whenever pos......
  • Diaz-Rodriguez v. Garland, 13-73719
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 10, 2021
    ...513 N.Y.S.2d 625, 627 (Crim. Ct. 1987)OregonOr. Rev. Stat. § 163.545(1)South CarolinaS.C. Code Ann. § 20-7-50(A)(1); see State v. Fowler , 322 S.C. 157, 470 S.E.2d 393, 396 (S.C. Ct. App. 1996)South DakotaS.D. Codified Laws §§ 26-8A-2(6), 26-9-1TexasTex. Penal Code Ann. § 22.041(c)VirginiaV......
  • Diaz-Rodriguez v. Garland, 13-73719
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 10, 2021
    ...N.Y.S.2d 625, 627 (Crim. Ct. 1987) Oregon Or. Rev. Stat. § 163.545(1) South Carolina S.C. Code Ann. § 20-7-50(A)(1); see State v. Fowler, 470 S.E.2d 393, 396 (S.C. Ct. App. 1996) South Dakota S.D. Codified Laws §§ 26-8A-2(6), 26-9-1 Texas Tex. Penal Code Ann. § 22.041(c) Virginia Va. Code A......
  • State v. Morgan, No. 3577.
    • United States
    • Court of Appeals of South Carolina
    • December 9, 2002
    ...added). B. Statutory Construction Penal statutes are strictly construed against the State and in favor of the defendant. State v. Fowler, 322 S.C. 157, 470 S.E.2d 393 (Ct.App.1996). The cardinal rule of statutory construction is to ascertain and effectuate the legislative intent whenever po......
5 cases
  • State v. Dupree, No. 3657.
    • United States
    • Court of Appeals of South Carolina
    • June 30, 2003
    ...construed against the State and in favor of the defendant. State v. Morgan, 352 S.C. 359, 574 S.E.2d 203 (Ct.App.2002); State v. Fowler, 322 S.C. 157, 470 S.E.2d 393 (Ct.App.1996). The cardinal rule of statutory construction is to ascertain and effectuate the legislative intent whenever pos......
  • Diaz-Rodriguez v. Garland, 13-73719
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 10, 2021
    ...513 N.Y.S.2d 625, 627 (Crim. Ct. 1987)OregonOr. Rev. Stat. § 163.545(1)South CarolinaS.C. Code Ann. § 20-7-50(A)(1); see State v. Fowler , 322 S.C. 157, 470 S.E.2d 393, 396 (S.C. Ct. App. 1996)South DakotaS.D. Codified Laws §§ 26-8A-2(6), 26-9-1TexasTex. Penal Code Ann. § 22.041(c)VirginiaV......
  • Diaz-Rodriguez v. Garland, 13-73719
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 8, 2022
    ...N.Y.S.2d 625, 627 (Crim. Ct. 1987) Oregon Or. Rev. Stat. § 163.545(1) South Carolina S.C. Code Ann. § 20-7-50(A)(1); see State v. Fowler, 470 S.E.2d 393, 396 (S.C. Ct. App. 1996) South Dakota S.D. Codified Laws §§ 26-8A-2(6), 26-9-1 Texas Tex. Penal Code Ann. § 22.041(c) Virginia Va. Code A......
  • Diaz-Rodriguez v. Garland, 13-73719
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 10, 2021
    ...N.Y.S.2d 625, 627 (Crim. Ct. 1987) Oregon Or. Rev. Stat. § 163.545(1) South Carolina S.C. Code Ann. § 20-7-50(A)(1); see State v. Fowler, 470 S.E.2d 393, 396 (S.C. Ct. App. 1996) South Dakota S.D. Codified Laws §§ 26-8A-2(6), 26-9-1 Texas Tex. Penal Code Ann. § 22.041(c) Virginia Va. Code A......
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