P. v. Stowell 5/29/02 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C032839

Case Date: 08/22/2002

Preview:Filed 5/29/02

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY BRIAN STOWELL, Defendant and Appellant.

C032839 (Super.Ct.No. 98F5894)

Defendant Timothy Brian Stowell was convicted by a jury of digitally penetrating and committing a lewd act upon a fouryear-old female acquaintance in violation of Penal Code sections 289, subdivision (j), and 288, subdivision (a), respectively.1 On appeal, defendant asserts that the trial court erred in (1) refusing to instruct the jury with CALJIC No. 4.30 on his
1

Unless designated otherwise, all further statutory references are to the Penal Code.
1

defense that he was sleepwalking and was therefore unconscious at the time of the crimes; (2) instructing the jury pursuant to CALJIC No. 4.21 that it "should" (rather than "must") consider evidence of defendant's intoxication in deciding whether he possessed the requisite criminal intent; (3) instructing the jury with CALJIC No. 2.03 concerning a consciousness of guilt; (4) instructing the jury with CALJIC No. 2.62 regarding the inferences to be drawn from defendant's failure to explain or deny evidence against him; (5) instructing the jury with CALJIC No. 17.41.1 because it improperly infringed on the jurors' privacy and constituted an impermissible anti-nullification instruction; and (6) ordering defendant to undergo HIV testing. He also contends that the cumulative prejudice arising from these errors compels reversal. As none of these contentions has merit, we shall affirm the judgment. FACTS AND PROCEDURAL BACKGROUND Defendant and LeaAnn Thompson, his girlfriend, lived together. The victim, Taylor, is the daughter of Tracie H., a At the time of these events,

friend of defendant's girlfriend.

defendant was 38 years old, and the victim, Taylor, was four. On Saturday, July 25, 1998, Tracie and her daughter Taylor went with defendant and Thompson on a day trip from Redding to Bruney Falls. Over the course of the day and before returning

home to Redding, they hiked to the falls, picnicked, waded and
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swam, visited a cabin belonging to defendant's family, and went sightseeing in defendant's truck. beer throughout the day. After the four returned to the apartment shared by Thompson and defendant, they agreed that Tracie and her daughter would spend the night at the apartment. Tracie and her daughter were The adults bought and drank

to sleep in the bedroom, while Thompson and defendant slept in the living room. After dinner and more beer, Tracie finally

retired and got into the bed with Taylor, who was already asleep. Tracie testified at trial that she was awakened by Taylor's "rustling" in the bed around 2:30 a.m., and told her to settle down. As Taylor seemed to settle down, Tracie heard someone say Suddenly fully awake and Quit it." She

the words, "tight little pussy."

listening, Tracie heard Taylor say, "Don't, Tim. asked, "Taylor, what is he doing to you?" "He's got his finger in my pee-pee."

Taylor responded,

Tracie scooped Taylor out

of the bed and fled to the living room, where she saw Thompson asleep. Leaving Taylor on the couch, Tracie returned to the bedroom to retrieve her purse, and saw defendant, wrapped in a blanket, in the bedroom doorway. Defendant told Tracie: "I'm so

sorry[,] I'm so sorry" and "I didn't know" or "I didn't know it was her." LeaAnn." Tracie responded, "You probably thought it was

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When she arrived home around 3:00 a.m., Tracie examined her daughter. Taylor's genitals seemed a little red, and she said Tracie contacted the police and

it hurt to go to the bathroom.

took Taylor to a local emergency room for evaluation. The following Monday, Tracie spoke to Redding Police Investigator Tracy Hall. Investigator Hall arranged for Taylor

to be examined by Dr. Vovakes. Investigator Hall first interviewed defendant on July 29.2 Defendant stated that he had no recollection of getting into the bed with Taylor or of touching her: "[T]he last thing I And the

remember is drinking my beer and watching television.

next thing I remember is Trac[ie] yelling and I said, `[O]h shit, where am I.' . . . I do not remember doing anything, I Defendant explained

honestly don't think I did do anything."

that he only apologized to Tracie because "I was in the bed that she was sleeping in. My bed. And then when she got up and

left, went out the door . . . I apologized to her a second time. I honestly just thought that I was just in the wrong place." On August 12, police again interviewed defendant.3 This

time, he said, "[T]he first thing I remember is Taylor pulling away from me . . . . I'm positive in my heart that it was

2 3

This interview was recorded by audiotape, and played for the jury at trial. A videotape of defendant's August 12 interview with police was also played for the jury.
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Taylor. . . .

My hand was on her belly, I think, because when

I, when she pulled away from me my hand dropped off her belly." Although at one point, defendant suggested that he believed himself to have been touching his girlfriend, Thompson, not Taylor, he later admitted that touching Taylor's vagina "felt different" from touching Thompson's, and that he "first knew it was Taylor . . . when she had said something. She said

something like, uh, ouwie [sic], or something like that . . . when I had my finger in her." He also said that he had been

aware that his finger was inside her vagina up to the first knuckle. Defendant was arrested and charged in count 1 with committing a lewd act upon Taylor (

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