Fowler v. State

The error was not harmless, because "Floyd Fowler was convicted of more offenses than were authorized by the indictment."

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Click here for the full text of this decision FACTS:The complainant, S.D., testified that Floyd Fowler, her mother’s boyfriend, began engaging in inappropriate sexual conduct with her when she was 5 years old and engaged in such conduct repeatedly over a period of several years. S.D. testified that the conduct continued until she was 12 years old. After Fowler’s arrest for the alleged conduct, a grand jury in a three-count indictment charged Fowler with indecency with a child by contact, indecency with a child by exposure and aggravated sexual assault of a child. The indictment contained three sections labeled as “Counts,” which contained a total of eight paragraphs. Count I contained three paragraphs and alleged that Fowler committed the following acts of indecency with a child by contact: Count I, Paragraph No. 1, alleged that Fowler touched S.D.’s genitals. Count I, Paragraph No. 2, alleged that Fowler touched S.D.’s breast. Count I, Paragraph No. 3, alleged that Fowler caused S.D. to touch his genitals. Count II contained one paragraph, alleging that Fowler had committed indecency with a child by exposure by exposing his genitals to S.D. Count III contained four paragraphs and alleged that Fowler committed several acts of aggravated sexual assault of a child. Count III, Paragraph No. 1, alleged that Fowler penetrated S.D.’s sexual organ with his sexual organ. Count III, Paragraph No. 2, alleged that Fowler penetrated S.D.’s sexual organ with his finger. Count III, Paragraph No. 3, alleged that Fowler caused S.D.’s sexual organ to contact his anus. Count III, Paragraph No. 4, alleged that Fowler caused S.D.’s sexual organ to contact his sexual organ. Before trial, the state moved to amend Count III, Paragraph No. 3, by switching the terms “sexual organ” and “anus.” In other words, the amended paragraph would allege that Fowler caused S.D.’s anus to contact Fowler’s sexual organ. Fowler objected, asserting that this amendment would charge an additional or different offense. The district court permitted the amendment. The case proceeded to trial. At the close of the state’s case, Fowler moved to require the state to elect among the various acts alleged in the indictment that it would rely on for conviction in Counts I and III. The state chose not to proceed with Count I, Paragraph No. 1, and Count III, Paragraph No. 4. The court submitted all six of the remaining counts to the jury in the court’s charge, and a separate verdict form was provided for each. Other than to renew his previous objection to the amendment in the third paragraph of Count III, Fowler did not object to this submission. On all six verdict forms, the jury found Fowler guilty. In accordance with the jury’s verdicts, the district court entered judgment of conviction for six offenses, two of which were derived from Count I of the indictment and three of which were derived from Count III. Fowler appealed. HOLDING:Reversed and dismissed in part, affirmed in part. In his first two issues, Fowler argued that because the indictment contained only three counts, the indictment authorized only three convictions. Thus, according to Fowler, “[e]rror occurred when appellant was convicted of more than one offense for Count I and more than one offense for Count III.” The law does not permit more than one conviction per count in the indictment, the court stated, noting that the district court convicted Fowler of two offenses under Count I and three offenses under Count III. Once the judge receives the jury’s verdicts, the court noted, he should perform the task of deciding what judgment is authorized by those verdicts in light of the controlling law, the indictment and the evidence presented at trial. In this case, the court stated, the trial judge did not perform that task. He should have realized that the four verdicts of the jury had the legal effect of authorizing only three judgments of conviction. Accordingly, the court held that it was error for the trial court to render judgment of conviction on more than one paragraph per count. The court also held that the error was not harmless, “because appellant was convicted of more offenses than were authorized by the indictment.” To remedy the district court’s harmful error, the court struck one of the two convictions under Count I of the indictment and two of the three convictions under Count III of the indictment. Thus, the court affirmed the convictions in Count I, Paragraph No. 2, and Count III, Paragraph No. 1. The court also affirmed the conviction stemming from Count II. The court reversed and dismissed the judgments of conviction in Count I, Paragraph No. 3, Count III, Paragraph No. 2, and Count III, Paragraph No. 3. OPINION:Pemberton, J.; Puryear, Pemberton and Waldrop, JJ.

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