THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
July 13, 2015
NOT TO BE OFFICIALLY
REPORTED
In the Court of Appeals of Georgia
A15A0437. FOWLER v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Samuel Lewis Fowler was convicted of committing more than
three dozen crimes against his stepdaughter, including rape, aggravated child
molestation, kidnapping with bodily injury, false imprisonment, statutory rape, incest,
child molestation, cruelty to children, and aggravated sodomy. Proceeding pro se,
Fowler appeals, raising more than 20 claims of error. Contrary to Fowler’s arguments,
we hold that the evidence supports the convictions; that Fowler has not shown
prosecutorial misconduct; that the arrest and search warrants were supported by
probable cause; that the trial court had jurisdiction; and that trial counsel was not
ineffective. We also hold that Fowler has waived or abandoned several arguments.
We therefore affirm.
1. Sufficiency of the evidence.
When a defendant challenges the sufficiency of the evidence supporting his
criminal conviction, “the relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted;
emphasis in original). It is the function of the jury, not the reviewing court, to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from the evidence. Id. “As long as there is some competent evidence, even though
contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s
verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001)
(citations and punctuation omitted).
Viewed in this light, the evidence showed that the victim, who was 15 years old
at the time of trial, was Fowler’s stepdaughter. They had lived in the same household
since the victim was two years old. Fowler began abusing the victim when she was
five or six.
The victim testified about several sexual assaults that occurred in a blue
building behind their house. She testified that one time, Fowler forced her to drink
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alcohol, tied her wrists to ropes suspended from the ceiling of the building, and
sexually assaulted her with a metal flashlight. She testified about Fowler sexually
assaulting her at a lake-side pavilion, in the bathroom of their residence, in his
bedroom, and in a van.
The victim described Fowler’s last rape of her. She testified that Fowler
became angry because he believed that, in violation of his rule, she had deleted text
messages from her phone before he could read them. They argued and then the victim
went to bed. Thirty minutes later, Fowler came into her room, yanked her up by her
hair, took her to another bedroom, threw her on the bed, and told her to take off her
clothes. Fowler blocked the bedroom door so no one could come in by pulling out
drawers from a dresser. Fowler touched the victim’s vagina and then raped her. He
ejaculated on her abdomen and used a towel to clean up. He threatened to kill the
victim and her mother if she told. He hit the victim in the mouth.
The next morning, the victim told her mother. They went to the sheriff’s
department, where the victim described what had happened, and then to a hospital,
where samples of Fowler’s semen were recovered from the victim’s abdomen.
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We conclude that the evidence adduced at trial was sufficient to authorize a
rational trier of fact to find beyond a reasonable doubt that Fowler was guilty of the
crimes of which he was convicted. Jackson, supra, 443 U. S. at 319 (III) (B).
Fowler argues that the state failed to prove that the crimes occurred on the
dates alleged in the indictment, which, he argues, is an essential element since he was
charged with multiple counts of the same offense. We find no reversible error.
First, we observe that, contrary to the state’s argument, Fowler did not waive
this argument by failing to raise it in his motion for new trial. “On appeal, a party
shall not be limited to the grounds urged in the motion [for new trial] or any
amendment thereof.” OCGA § 5-5-40 (g). See also OCGA § 5-6-36 (a) (“The entry
of judgment on a verdict by the trial court constitutes an adjudication by the trial
court as to the sufficiency of the evidence to sustain the verdict, affording a basis for
review on appeal without further ruling by the trial court.”) Nonetheless, we reject
Fowler’s argument.
“[T]he [s]tate is not required to prove beyond a reasonable doubt that the
crimes occurred on the date[s] alleged in the indictment unless the indictment
specifically states that the date[s] of the offense[s are] material, which the indictment
in this case failed to do.” Christian v. State, 277 Ga. 775, 776 (1) (596 SE2d 6)
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(2004) (citation omitted). “Nor did [Fowler] offer any defense, such as alibi, that
might render the dates of the crimes material.” Coats v. State, 303 Ga. App. 818, 820
(1) (695 SE2d 285) (2010).
2. Prosecutorial misconduct.
Fowler argues that the assistant district attorney engaged in prosecutorial
misconduct by allowing the victim and her mother to testify falsely at trial. He does
not point to the trial transcript to show at what point during the trial this allegedly
false testimony occurred, however, and thus has abandoned this argument. See Court
of Appeals Rule 25 (c) (2) (i). In any event, “[Fowler] has failed to show that [these
witnesses] perjured themselves, that the [s]tate knowingly used their perjured
testimony, or that the presentation of perjured testimony led to his wrongful
conviction . . . .” Bass v. State, 309 Ga. App. 601, 605 (2) (710 SE2d 818) (2011).
3. Probable cause for arrest and search warrants.
Fowler argues that the arrest and search warrants were not based on probable
cause because they were based on hearsay: the victim spoke with one detective, who
relayed the content of the conversation to the detective who obtained the warrants.
Hearsay rules generally do not apply in warrant proceedings, however. State v.
Chulpayev, 296 Ga. 764, 777-778 (3) (b) (__ SE2d __) (Cases No. S14A1375 &
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S14A1376, decided March 27, 2015). And contrary to Fowler’s argument, hearsay
may supply probable cause for the issuance of warrants. Lewis v. State, 255 Ga. 101,
105 (2) (335 SE2d 560) (1985).
4. Trial court’s jurisdiction.
Fowler argues that the trial court erred in “denying [his] argument that [the]
trial court lacked subject matter jurisdiction to try defendant because a true bill of
indictment was not returned publicly in open court.” The indictment was signed by
the grand jury bailiff, the superior court clerk, and the grand jury foreperson on June
20, 2008, and Fowler has pointed to nothing in the record to show that the courtroom
was not open on that date. Further,
our review of the record fails to reveal that [Fowler] objected to the
indictments on this specific ground before trial. A demurrer to the
indictment, motion to quash or plea in abatement must be entered before
trial. [Fowler] therefore waived this alleged error by going to trial under
the indictment without raising the objection that the indictment was not
returned in open court.
Thomas v. State, 331 Ga. App. 641, 655-656 (4) (771 SE2d 255) (2015) (citations,
punctuation, and footnotes omitted).
5. Jury’s notes.
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Fowler argues that the trial court erred by responding to two jury notes in his
absence, by failing to enter the notes into evidence, and by failing to re-charge the
jury in response to the notes.
During Fowler’s sentencing hearing, the assistant district attorney wanted to
put the content of the notes on the record because, as the trial court explained, the
notes had been left with the jury foreperson and then destroyed. Fowler was present
during this discussion at the hearing. The prosecutor and Fowler’s counsel agreed that
the jury first asked whether the jurors had to find physical injury to find Fowler guilty
of aggravated child molestation based on bodily injury and that after consultation
with the attorneys, the court wrote “yes,” and returned the note. They agreed that the
second note asked, in reference to kidnapping with bodily injury, whether rape could
be considered physical injury. After consultation with the attorneys, the court
declined to answer this question but instructed the jurors that they had to determine
the issue from the evidence presented.
Fowler submitted his own affidavit with his amended motion for new trial in
which he testified that he was not present when the court read and responded to the
notes. The trial court flatly disbelieved Fowler, noting that her policy is never to talk
with the jury unless the defendant and attorneys are present.
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(a) Fowler’s presence.
“[A]ny answers to . . . questions [from the jury related to their decision process]
must be given in open court with the accused and his counsel present.” Morris v.
State, 257 Ga. 781, 784 (4) (364 SE2d 571) (1988). But here, by denying his motion
for new trial on this ground, the trial court implicitly found that Fowler was present.
In any event, “we fail to see how [Fowler] could have made a meaningful contribution
to the manner in which the judge formulated [her] response, which was done in the
presence of [Fowler’s] trial counsel. . . . [W]e find no error requiring reversal under
the circumstances here.” Engle v. State, 290 Ga. App. 396, 398 (1) (659 SE2d 795)
(2008).
(b) Failure to enter notes into evidence.
Fowler argues the trial court should have entered the jury’s notes into evidence.
The contents of the notes “were read into the record and are not disputed by the
parties in this appeal. Therefore, although the better practice would have been for the
trial court to mark the notes as exhibits to be included with the appellate record,
[Fowler] has shown no harm from the trial court’s failure to do so in this instance.”
Grant v. State, 295 Ga. 126, 129 (4) (757 SE2d 831) (2014).
(c) Response to notes.
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Fowler argues that the notes indicate that the jury was confused, so the trial
court should have re-charged the jury. The trial court responded to the notes, and
Fowler does not argue that the response failed to resolve any confusion. Nor does
Fowler describe how the trial court should have charged the jury. Finally, before they
began deliberating, the trial court had sent out with the jury a written copy of its full
charge. We find no error requiring reversal under the circumstances here.
6. Failure to recuse.
Fowler argues that the trial court judge should have recused herself. He argues
that a colloquy between the trial court and counsel on the third day of trial
demonstrates that the court discussed his case with a third party. But he failed to
timely raise this issue. After a party learns of grounds for a potential disqualification
of the judge,
he must promptly move for the recusal of the judge, see Uniform
Superior Court Rule 25.1, 8 and if he does not, the question of
disqualification is not preserved for appellate review. Here, the record
shows that [Fowler] never filed a motion to recuse, even after he had
knowledge of the grounds for potential disqualification. Asserting a
disqualification in a motion for new trial before the same judge who is
alleged to be disqualified – without also asking the judge to recuse from
hearing the motion for new trial – is not a proper means of raising and
preserving the issue.
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State v. Hargis, 294 Ga. 818, 821 (1) (756 SE2d 529) (2014) (citations omitted).
7. Sentencing.
Fowler raises two challenges to his sentence. We conclude that he has not
shown reversible error.
First Fowler argues that the trial court impermissibly converted his sentence
on count 12 by changing it from a concurrent sentence to a consecutive sentence after
he had begun serving it. But “a concurrent sentence may be converted into a
consecutive sentence without being considered ‘more severe’. . . .” Fair v. State, 281
Ga. App. 518, 519 (1) (636 SE2d 712) (2006). See also Alvarado v. State, 248 Ga.
App. 810, 811 (1) (547 SE2d 616) (2001) (trial court did not impose a harsher
sentence where it converted an “existing sentence from a concurrent sentence into a
consecutive one without increasing the length of the sentence”); Duffey v. State, 222
Ga. App. 802, 803 (1) (476 SE2d 89) (1996) (same).
Fowler also argues that the trial court erred by “allowing [him] to be convicted
and then sentencing him on lesser included offenses.” “If a jury finds a defendant
guilty of both the charged offense and the lesser included offense, the lesser offense
merges into the greater offense and the court sentences on the greater offense only.”
Ellison v. State, 265 Ga. App. 446, 449 (3) (594 SE2d 675) (2004). Conversely, “an
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‘acquittal’ on a greater offense does not preclude a jury’s determination that a
defendant is guilty as to the lesser included offense. There may, of course, be a
conviction of a lesser offense than that expressly named in the indictment, where the
former is necessarily included in the latter.” Grimes v. State, 232 Ga. App. 155, 156
(1) (500 SE2d 609) (1998).
8. Effective assistance of counsel.
Fowler argues that trial counsel was ineffective in multiple ways. To prevail
on his claim of ineffective assistance of counsel, Fowler must show both deficient
performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U.
S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782,
783 (1) (325 SE2d 362) (1985). If he “fails to meet his burden of proving either
prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App.
108, 114 (7) (686 SE2d 863) (2009) (citation omitted).
(a) Special demurrer.
Fowler argues that counsel was ineffective for failing to file a special demurrer
to challenge the lack of specificity as to the dates of the crimes. “[B]ecause a
defendant can be re-indicted after the grant of a special demurrer, a failure to file such
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a demurrer generally will not support a finding of ineffective assistance of counsel.”
Washington v. State, 298 Ga. App. 105, 106 (679 SE2d 111) (2009).
(b) Forensic interview.
Fowler claims that counsel was ineffective for failing to have the victim’s
forensic interview transcribed for use in impeaching her. But a transcription of the
interview was not required to impeach the victim. To establish a proper foundation
for a prior inconsistent statement, counsel simply needed to “question[] the witness
about the circumstances of her earlier statement . . . and afford[] her an opportunity
to admit, explain, or deny the prior contradictory statement.” Edwards v. State, 293
Ga. 612, 614 (2) (748 SE2d 870) (2013) (citation and punctuation omitted).
(c) Alibi.
Fowler argues that trial counsel was ineffective for failing to call certain
witnesses who would have supported an alibi defense, at least for some of the
charges. But Fowler did not present the potential alibi witnesses at the hearing on his
motion for new trial, nor has he shown that he made a proffer as to how they would
have testified. “Accordingly, [Fowler] cannot show that but for his counsel’s alleged
deficient conduct, the result of the trial would have differed.” Johnson v. State, 275
Ga. App. 21, 26 (7) (e) (619 SE2d 731) (2005) (citation omitted).
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(d) Expert medical witness.
Fowler argues that counsel was ineffective for failing to call expert medical
witnesses who would have testified that a spinal cord injury rendered him impotent
and incapable of committing the sex crimes. His argument is belied by the record,
which shows that trial counsel called a urologist, who was qualified as an expert
witness in the fields of sexual dysfunction and erectile dysfunction. The urologist
testified that he conducted a physical exam of Fowler, conducted tests to assess
Fowler’s ability to generate an erection, and reviewed Fowler’s medical history,
including his injury and his history of diabetes. The doctor testified that in his opinion
Fowler was unable to generate an erection on his own and that this inability likely had
been ongoing for some time.
(e) Suppression.
Fowler argues that trial counsel was ineffective for failing to move to suppress
two items of evidence – the rape kit and a DNA swab – because certain documents
showed that the state did not establish chain of custody. Trial counsel testified at the
amended motion for new trial hearing that he did not move to suppress the evidence
on the ground of insufficient chain of custody because the state presented testimony
sufficient to overcome the deficiencies noted by Fowler and to establish the chain of
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custody. Moreover, counsel had gone to the GBI crime lab to review their procedures
and had investigated the possibilities of the samples being contaminated. Fowler has
not shown that trial counsel was deficient in this regard.
9. Abandoned enumerations.
Finally, we deem Fowler’s remaining enumerations of error abandoned. Fowler
asserts that the trial court erred by not sustaining certain trial objections and by failing
to grant him a mistrial; that trial counsel rendered a deficient performance by failing:
to call an expert witness to rebut a nurse’s testimony, to timely and thoroughly
investigate the case, to contest the state’s version of the facts, to interview witnesses,
to obtain witness statements, to make the process truly adversary, and to present
evidence at the sentencing hearing that he had saved several lives; and that the
cumulative effect of counsel’s errors mandate a new trial. Fowler has not supported
these enumerations of error with citation of authority or argument and we therefore
deem them abandoned. Court of Appeals Rule 25 (c) (2).
Judgment affirmed. Ellington, P. J., and Dillard, J., concur.
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Samuel Lewis Fowler v. State
Combined Opinion