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F-2017-1240

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Kevin Eugene Fowler v State Of Oklahoma

F-2017-1240

Filed: May 9, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Kevin Eugene Fowler appealed his conviction for Child Neglect. His conviction and sentence totaled 130 years in prison, with 30 years for each of the first four counts and 10 years for the fifth count. Judge N. D. Hadden dissented. Fowler was found guilty by a jury of neglecting his twin daughters and another child. He argued that prejudicial comments made by the police officer during his interview should have been removed before the jury saw the video. The court found that these comments did not unfairly affect the trial. Fowler also argued that he should not have been punished separately for different types of neglect towards the same children, which the court disagreed with. They said that neglecting to provide food and not giving medical care were different actions. He raised concerns about the prosecutor's conduct, but the court determined that nothing affected the fairness of his trial. Fowler claimed his lawyer was ineffective in defending him, but the court found that the defense provided was reasonable. Fowler believed his 130-year sentence was too harsh, but the court upheld it, saying it fit the severity of the neglect. Finally, since the court found no significant errors during the trial, they concluded that he did not receive an unfair trial. In the end, his appeal was denied, and the original sentence was kept in place.

Decision

The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there an error in the admission of Officer Brengi's comments during the trial?
  • Did Appellant's convictions for Child Neglect violate the prohibition against double punishment?
  • Did prosecutorial misconduct occur that prejudiced Appellant's rights during the trial?
  • Was Appellant denied effective assistance of counsel?
  • Were Appellant's sentences excessive and was there an abuse of discretion in running them consecutively?
  • Did the cumulative effect of errors deny Appellant a fair trial?

Findings

  • the court did not err in admitting the officer's statements as relevant evidence
  • the court found no violation of the statutory prohibition against double punishment
  • the court found no prosecutorial misconduct that denied Appellant a fair trial
  • the court found no ineffective assistance of counsel
  • the court found the sentences were not excessive and did not abuse discretion in running them consecutively
  • the court found no cumulative error that warranted relief

F-2017-1240

May 9, 2019

Kevin Eugene Fowler

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Kevin Eugene Fowler was tried by jury and found guilty of five (5) counts of Child Neglect (Counts I-V) (21 O.S.Supp.2014, § 843.5(C)), in the District Court of Tulsa County, Case No. CF-2016-6855. The jury recommended as punishment imprisonment for thirty (30) years in each of Counts I – IV, and ten (10) years imprisonment in Count V. The trial court sentenced accordingly, ordering the sentences to run consecutively.1 It is from this judgment and sentence that Appellant appeals.2

1 Appellant must serve 85% of his sentences before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1. 2 Appellant was charged jointly with his common-in-law wife Aislyn Miller, and his mother, Rita Darlene Fowler. Appellant and Ms. Miller were tried in a joint trial and Ms. Fowler was tried separately. Ms. Miller was found guilty of five (5) counts of Child Neglect and sentenced to thirty (30) years imprisonment in each of Counts I-IV and ten (10) years imprisonment in Count V. She has appealed separately. See Miller v. State, Case No. F-2017-1248.

Appellant raises the following propositions of error in support of her appeal:

I. Derogatory statements made by Officer Brengi on State’s Exhibit 15 were far more prejudicial than probative and should have been redacted from the body camera video of Appellant’s interview with police before Exhibit 15 was shown to the jury.

II. Appellant’s convictions and sentences in Counts I and III for Child Neglect of twin B.J.F. and in Counts II and IV for Child Neglect of L.F. violated Appellant’s right to be free from multiple punishments under 21 O.S.2011, § 11.

III. The State committed prosecutorial misconduct resulting in prejudice to Appellant and a violation of his constitutional rights in this case.

IV. Appellant was prejudiced by ineffective assistance of counsel.

V. Appellant’s sentences totaling 130 years are excessive and should be favorably modified by this Court.

VI. The cumulative effect of all these errors deprived Appellant of a fair trial, resulted in an excessive sentence, and warrant relief for Appellant.

After thorough consideration of these propositions and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted. In Proposition I, Appellant contends that statements made by Officer Brengi during his interview with Appellant and admitted in State’s Exhibit 15 were not relevant and unfairly prejudicial. He argues that the trial court’s failure to redact the officer’s comments before the interview was shown to the jury deprived him of a fair trial and warrants reversal of his convictions.

Initially, there is no record of any objection to the officer’s comments. Therefore, our review is for plain error. Under the plain error test set forth in Simpson v. State, 1994 OK CR 40, 876 P.2d 690, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. See also Jackson v. State, 2016 OK CR 5, I 4, 371 P.3d 1120, 1121; Levering v. State, 2013 OK CR 19, IT 6, 315 P.3d 392, 395; Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.

Videotaped confessions are regularly admitted and admissible to show not only the content of the confession, but also to ‘show the jury the demeanor of a person and the circumstances under which confessions are made. Jackson v. State, 2007 OK CR 24, 15, 163 P.3d 596, 601. The officer’s comments in this case were part of his interrogation technique and not testimony. Bernay v. State, 1999 OK CR 46, I 30, 989 P.2d 998, 1009. The officer’s comments and Appellant’s responses show Appellant’s demeanor at the time of his arrest and his evolving acceptance of the situation, going from saying he and co-defendant Miller took adequate care of the babies to admitting it was very possible the twins were not fed enough. We find the officer’s statements properly admitted as relevant evidence and that relevance was not substantially outweighed by any unfair prejudice. 12 O.S.2011, § 2401 & 2403. In light of the great weight of the evidence against Appellant, any comments by the officer did not prejudice the jury against Appellant. Accordingly, we find no error and thus no plain error in the admission of the officer’s statements.

In Proposition II, Appellant contends that his convictions in Counts I and III for the neglect of twin B.J.F. and in Counts II and IV for the neglect of L.F. violated the statutory prohibition against double punishment. Appellant argues that the evidence showed only one continuous act of neglect regarding each baby and therefore Counts III and IV should have been dismissed. We review this claim for plain error under the standard set forth above as no statutory claim of double punishment was raised before the trial court. Irwin v. State, 2018 OK CR 21, 4, 424 P.3d 675, 676. In Counts I and III, Appellant was charged and convicted of the crime of Child Neglect under 21 O.S.Supp.2014, § 843.5(C) for failing to provide adequate nurturance and food to nine (9) month old B.J.F. and her twin sister L.F., respectively. In Counts III and IV, Appellant was charged and convicted of the crime of Child Neglect under 21 O.S.Supp.2014, § 843.5(C) for the failure to provide medical care for B.J.F. and L.F., respectively.

The proper analysis of a claim under 21 O.S.2011, § 11(A) focuses on the relationship between the crimes. Sanders v. State, 2015 OK CR 11, III 5-6, 358 P.3d 280, 283. If the crimes truly arise out of one act, Section 11 prohibits prosecution for more than one crime, absent express legislative intent. Id. If the offenses at issue are separate and distinct, requiring dissimilar proof, Oklahoma’s statutory ban on double punishment is not violated. Id. Here, the evidence shows Appellant’s failure to provide nurturance and food to his twin nine (9) month old babies was a separate and distinct act from his failure to provide them with medical care. While the failure to properly feed the babies was in part a reason why they needed medical attention, other medical issues were present necessitating immediate medical care. That these separate crimes of failing to feed the babies and failing to provide them medical care were part of a continuing course of conduct as they seemed to have occurred during the same time period provides no basis for relief under § 11. See Ball v. State, 2007 OK CR 42, I 44, 173 P.3d 81, 93. The failure to provide adequate nutrition and the failure to provide medical care were separate and distinct criminal actions for which Appellant could be prosecuted, convicted, and punished. His convictions in Counts I and III and II and IV do not violate the statutory ban on double punishment.

In Proposition III, we review the majority of Appellant’s claims of prosecutorial misconduct for plain error under the standard set forth above as the comments were not met with contemporaneous objections at trial. See Malone v. State, 2013 OK CR 1, I 40, 293 P.3d 198, 211. We evaluate alleged prosecutorial misconduct within the context of the entire trial, considering not only the propriety of the prosecutor’s actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel. Sanders, 2015 OK CR 11, IT 21, 358 P.3d at 286. We will reverse the judgment or modify the sentence only where grossly improper and unwarranted argument affects a defendant’s rights. Id. Relief will be granted on claims of prosecutorial misconduct only where the prosecutor committed misconduct that so infected the defendant’s trial that it was rendered fundamentally unfair, such that the jury’s verdicts should not be relied upon. Id.

We have thoroughly reviewed Appellant’s numerous claims of prosecutorial misconduct and find the majority of the comments were properly based on the evidence or were invited by defense counsel’s comments. Regarding comments made in closing argument, we have long allowed counsel for the parties a wide range of discussion and illustration in closing argument and counsel enjoy the right to discuss fully from their standpoint the evidence and the inferences and deductions arising from it. Id. Comments made in closing argument are not evidence, Smith u. State, 1986 OK CR 158, I 25, 727 P.2d 1366, 1372, and the jury in this case was so informed. The jury was also properly instructed not to let sympathy, sentiment or prejudice enter into their deliberations. The facts of this case were horrific, and while certain closing comments by the prosecutor may have exceeded the bounds of proper comment, we cannot find that whether considered individually or cumulatively they were so prejudicial as to deny Appellant a fair trial. See Childress v. State, 2000 OK CR 10, I 31, 1 P.3d 1006, 1014; Slaughter v. State, 1997 OK CR 78, I 161, 950 P.2d 839, 879. Any errors in the prosecutor’s arguments do not rise to the level of plain error and do not warrant relief.

In Proposition IV, Appellant claims he was denied the effective assistance of counsel by counsel’s repeated failure to object to inadmissible, prejudicial, and irrelevant argument evidence; counsel’s failure to be adequately prepared for trial; and counsel’s failure to zealously advocate on Appellant’s behalf. We review these claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show that counsel was ineffective, Appellant must show both deficient performance and prejudice. Goode v. State, 2010 OK CR 10, IT 81, 236 P.3d 671, 686 citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. See also Marshall v. State, 2010 OK CR 8, IT 61, 232 P.3d 467, 481. In Strickland, the Supreme Court said there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional conduct, i.e., an appellant must overcome the presumption that, under the circumstances, counsel’s conduct constituted sound trial strategy. Goode, 2010 OK CR 10, I 81, 236 P.3d at 686. To establish prejudice, Appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id., 2010 OK CR 10, I 82, 236 P.3d at 686.

We have thoroughly reviewed each of the numerous alleged instances of ineffectiveness raised under the three categories set out above. We find Appellant has failed to carry his burden to show either deficient performance by counsel or prejudice resulting from counsel’s alleged omissions. Warner v. State, 2006 OK CR 40, I 206, 144 P.3d 838, 893. Additionally, Appellant argues counsel was ineffective for jointly representing both defendants as it created a conflict of interest. No conflict of interest objection was raised at trial. Where the appellant raises a claim of conflict of interest by joint representation, and no objection was raised at trial, appellant must demonstrate that an actual conflict of interest adversely affected counsel’s performance. Ross v. State, 1992 OK CR 18, I 6, 829 P.2d 58, 61. This extends to any situation in which a defendant’s counsel owes conflicting duties to the defendant and some other person. Livingston v. State, 1995 OK CR 68, I 11, 907 P.2d 1088, 1091-92. Counsel cannot be effective if conflicts of interest, no matter how subtle, dull the zeal of undivided loyalty. However, the mere appearance or possibility of a conflict of interest is not sufficient to cause reversal. Rutan v. State, 2009 OK CR 3, I 67, 202 P.3d 839, 852-3 (quoting Banks v. State, 1991 OK CR 51, I 34, 810 P.2d 1286, 1296). Appellant has failed to meet his burden of demonstrating an actual conflict of interest existed. Nothing in the record before us indicates a divergence of interests between the two (2) defendants nor a compromise of any kind in counsel’s defense of Appellant. The record does reflect a common shared defense that the defendants were taking care of their children the best they could; that they just did not realize their babies were in such poor condition; and once their deficiencies were pointed out to them, they accepted responsibility and sought to change. Neither defendant sought to inculpate the other by exculpating themselves. Further, the jury was instructed to determine each defendant’s culpability separately. Therefore, as the record does not show an actual conflict of interest, Appellant has failed to demonstrate any actual conflict of interest adversely affected his lawyer’s performance. Because we find no showing that defense counsel actively represented conflicting interests, we find counsel was not ineffective in representing both Appellant and co-defendant Miller.

In Proposition V, Appellant claims his sentence is excessive and that the trial court abused its discretion in running his sentences consecutively. This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks our conscience. Pullen v. State, 2016 OK CR 18, IT 16, 387 P.3d 922, 928; Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149. Appellant’s sentences were within permissible statutory range. See 21 O.S.Supp.2014, § 843.5(D). None of the allegations of error raised in this appeal warrant relief and the evidence overwhelmingly supported the verdicts. Regardless of any recommendation by the jury, sentences are to run consecutively unless the trial judge, in his or her discretion, rules otherwise. 22 O.S.2011, § 976. See also Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue. Id. The record in this case shows the trial judge fully considered all the facts and circumstances of the case, including the evidence of guilt as well as the total number of years if the sentences were run consecutively. The decision to run the sentences consecutively did not result in a sentence so excessive as to shock our conscience. We find the court did not abuse its discretion in running the sentences consecutively and Appellant’s sentence is not excessive.

In Proposition VI, Appellant argues the accumulation of errors denied him a fair trial. This Court has held that a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Engles v. State, 2015 OK CR 17, I 13, 366 P.3d 311, 315; Williams v. State, 2001 OK CR 9, I 127, 22 P.3d 702, 732. None of the errors raised by Appellant warrant relief. Therefore, we find no relief is warranted by the accumulation of errors. Accordingly, this appeal is denied.

DECISION

The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. 21 O.S.2011, § 13.1.
  2. 21 O.S.Supp.2014, § 843.5(C).
  3. 21 O.S.2011, § 11.
  4. 12 O.S.2011, § 2401 & 2403.
  5. Irwin v. State, 2018 OK CR 21, " 4, 424 P.3d 675, 676.
  6. Ball v. State, 2007 OK CR 42, I 44, 173 P.3d 81, 93.
  7. Smith v. State, 1986 OK CR 158, I 25, 727 P.2d 1366, 1372.
  8. Childress v. State, 2000 OK CR 10, I 31, 1 P.3d 1006, 1014.
  9. Slaughter v. State, 1997 OK CR 78, I 161, 950 P.2d 839, 879.
  10. Pullen v. State, 2016 OK CR 18, IT 16, 387 P.3d 922, 928.
  11. 21 O.S.Supp.2014, § 843.5(D).
  12. 22 O.S.2011, § 976.
  13. Engles v. State, 2015 OK CR 17, I 13, 366 P.3d 311, 315.
  14. Williams v. State, 2001 OK CR 9, I 127, 22 P.3d 702, 732.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 843.5 (2014) - Child Neglect
  • Okla. Stat. tit. 21 § 13.1 (2011) - Parole Eligibility
  • Okla. Stat. tit. 21 § 11 (2011) - Multiple Punishments
  • Okla. Stat. tit. 12 § 2401 (2011) - General Admissibility of Relevant Evidence
  • Okla. Stat. tit. 12 § 2403 (2011) - Exclusion of Relevant Evidence on Grounds of Prejudice
  • Okla. Stat. tit. 21 § 843.5(D) (2014) - Penalties for Child Neglect
  • Okla. Stat. tit. 22 § 976 (2011) - Sentencing Consecutively

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • 17 U.S.C. § 106 - Copyrights
  • 17 U.S.C. § 501 - Infringement of Copyright

Other citations:

No other rule citations found.

Case citations:

  • Simpson v. State, 1994 OK CR 40, 876 P.2d 690
  • Jackson v. State, 2016 OK CR 5, 371 P.3d 1120
  • Levering v. State, 2013 OK CR 19, 315 P.3d 392
  • Hogan v. State, 2006 OK CR 19, 139 P.3d 907
  • Jackson v. State, 2007 OK CR 24, 163 P.3d 596
  • Bernay v. State, 1999 OK CR 46, 989 P.2d 998
  • Irwin v. State, 2018 OK CR 21, 424 P.3d 675
  • Ball v. State, 2007 OK CR 42, 173 P.3d 81
  • Sanders v. State, 2015 OK CR 11, 358 P.3d 280
  • Malone v. State, 2013 OK CR 1, 293 P.3d 198
  • Smith v. State, 1986 OK CR 158, 727 P.2d 1366
  • Childress v. State, 2000 OK CR 10, 1 P.3d 1006
  • Slaughter v. State, 1997 OK CR 78, 950 P.2d 839
  • Goode v. State, 2010 OK CR 10, 236 P.3d 671
  • Marshall v. State, 2010 OK CR 8, 232 P.3d 467
  • Warner v. State, 2006 OK CR 40, 144 P.3d 838
  • Ross v. State, 1992 OK CR 18, 829 P.2d 58
  • Livingston v. State, 1995 OK CR 68, 907 P.2d 1088
  • Rutan v. State, 2009 OK CR 3, 202 P.3d 839
  • Pullen v. State, 2016 OK CR 18, 387 P.3d 922
  • Rea v. State, 2001 OK CR 28, 34 P.3d 148
  • Neloms v. State, 2012 OK CR 7, 274 P.3d 161
  • Engles v. State, 2015 OK CR 17, 366 P.3d 311
  • Williams v. State, 2001 OK CR 9, 22 P.3d 702

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