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ORIGINAL +1041589252 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA HOLLY TEGAN ZUNIGA-GRIFFIN, ) ) NOT FOR PUBLICATION Appellant, vs. No. F-2017-994 THE STATE OF OKLAHOMA, FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA Appellee. NOV – 8 2018 SUMMARY OPINION JOHN D. HADDEN CLERK KUEHN, JUDGE: Appellant, Holly T. Zuniga-Griffin, was convicted by a jury in Muskogee County District Court, Case No. CF-2016-912, of Enabling Child Abuse (21 O.S.Supp.2014, § 843.5(B)). On September 19,2017, the Honorable Michael Norman, District Judge, sentenced her to ten years imprisonment, in accordance with the jury’s recommendation. This appeal followed. Appellant raises eight propositions of error in support of her appeal: PROPOSITION I. THE STATUTES RELATED TO ENABLING CHILD ABUSE ARE UNCONSTITUTIONALLY VAGUE, BOTH ON THEIR FACE AND AS APPLIED TO APPELLANT. PROPOSITION II. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT APPELLANT. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT KNEW OR SHOULD HAVE KNOWN THAT HER CHILD WAS AT RISK. 1 Appellant must serve at least 85% of her sentence before parole consideration. 21 O.S.Supp.2015, § 13.1(14). PROPOSITION III. APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY. PROPOSITION IV. THE COURT ERRED BY ALLOWING NURSE GREEN TO GIVE AN UNQUALIFIED “EXPERT” OPINION. PROPOSITION V. APPELLANT WAS DENIED DUE PROCESS WHEN THE STATE FAILED TO DISCLOSE FAVORABLE EVIDENCE. PROPOSITION VI. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL. PROPOSITION VII. APPELLANT’S SENTENCE WAS SHOCKINGLY EXCESSIVE. PROPOSTION VIII. CUMULATIVE ERRORS DEPRIVED APPELLANT OF A FAIR PROCEEDING AND A RELIABLE OUTCOME. After thorough consideration of these propositions, and the record before us on appeal, we affirm. Appellant was convicted of leaving her three-year-old son in the care of her seventeen-year-old boyfriend, while knowing, or having reason to know, that her boyfriend had used (and might continue to use) unreasonable physical force on the child. On an evening in August 2016, while in the boyfriend’s care, the child sustained a subdural hematoma; when hospitalized, he had bruises covering his body, including his forehead, face, eye, ear, buttocks and penis. Witnesses testified to incriminating statements Appellant made, suggesting knowledge that her boyfriend had used unreasonable force on the child before. After the child was hospitalized, Appellant insisted 2 the two of them “get their stories straight” before talking to authorities.2 Appellant gave police and hospital staff inconsistent accounts of how her son was injured, and later admitted that some of those statements were false. At trial, Appellant conceded that she now believed her boyfriend had abused her son, but she maintained she had no reason to suspect he would do SO. In Proposition I, Appellant claims the statute under which she was charged, 21 O.S.Supp.2014, § 843.5(B) (supplemented with definitions from 10A O.S.Supp.2016, § 1-1-105), is unconstitutionally vague, and does not provide sufficient notice of what is proscribed. She did not raise this claim below, SO our review is only for plain error. To obtain relief, she must prove a plain or obvious error affected the outcome of the proceeding. We will correct plain error only if the error seriously 2 When Appellant’s boyfriend carried the unconscious child into Appellant’s workplace, her first comment was, “What have you done to him?” On the way to the hospital, Appellant told her boyfriend, “You’ve got to get me information because they’re going to ask me what’s going on. We’ve got to get our story straight here. Come on man up.” In text messages from the hospital to her friend Michaela Bassard, Appellant wrote, “DO NOT COME INSIDE THE MUSKOGEE HOSPITAL. CALL ME WHEN YOU GET OFF WORK.” She told Bassard to keep her boyfriend away from the hospital staff “until we get on the same pages [sic].” After the child was transferred to a Tulsa hospital, Appellant texted Bassard, “DHS is here. DO NOT TALK TO HER. DO NOT LET [my boyfriend] TALK TO HER.” On the way home from the hospital, Bassard heard Appellant tell her boyfriend, “You can’t spank somebody that’s like three years old with a belt,” and “I told you not to be spanking him with a belt.” 3 affects the fairness, integrity or public reputation of the judicial proceedings. Engles U. State, 2015 OK CR 17, “I 2, 366 P.3d 311, 312. Since Appellant does not claim § 843.5(B) implicates First Amendment concerns, we need not consider “facial” attacks to it, or how the statute might operate in hypothetical situations.³ We have previously rejected similar challenges to this statute, finding its terms sufficiently specific to place citizens on notice of what their responsibilities as parents and caregivers are. Gilson v. State, 2000 OK CR 14, 99 90-93, 8 P.3d 883, 913-14. We find no reason to revisit this issue. Proposition I is denied. In Proposition II, Appellant claims the evidence was insufficient to show that she knew, or reasonably should have known, that placing her son in her boyfriend’s care was likely to result in the child’s harm. We disagree. Considering the many inconsistent accounts Appellant gave about how the child was injured (most of which were fanciful, and some of which she admitted were false), medical testimony suggesting 3 Vagueness challenges to statutes that do not implicate First Amendment freedoms “must be examined in the light of the facts of the case at hand.” United States U. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). “Objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.” Maynard v. Cartwright, 486 U.S. 356, 361-62, 108 S.Ct. 1853, 1857-58, 100 L.Ed.2d 372 (1988). 4 ongoing physical abuse had occurred, and Appellant’s incriminating statements to her boyfriend and others, a rational juror could easily conclude, beyond any reasonable doubt, that Appellant not only should have known, but did know that placing her child in her boyfriend’s care meant placing the child in danger. The evidence supports the conviction. Johnson U. State, 1988 OK CR 54, 5-8, 751 P.2d 1094, 1096. Proposition II is denied. In Proposition III, Appellant points to four Uniform Jury Instructions that she claims should have been given to her jury. She did not request these instructions at trial, SO our review is only for plain error. We find error with regard to at least three of the four instructions; had they been requested, they would have been appropriate. However, in light of the totality of evidence, and the circumstances relevant to each instruction in particular, we are confident that no prejudice occurred. Malone U. State, 2007 OK CR 34, 36-37, 168 P.3d 185, 200-01. Appellant claims that her friend, Michaela Bassard, was an accomplice under the law, and that her testimony had to be corroborated (OUJI-CR (2nd) Nos. 9-25 to 9-32). Because Bassard occasionally stayed at Appellant’s home, Appellant claims she became equally responsible for the child’s well-being. See 5 10A S.Supp.2016, § 1-1-105(51). We need not decide whether accomplice instructions would have been warranted if trial counsel had asked for them, because any omission was harmless; Bassard’s testimony was strongly corroborated in several respects. Wade U. State, 1981 OK CR 14, 9 12, 624 P.2d 86, 90. Other witnesses heard Appellant make incriminating statements to her boyfriend. See footnote 2, Supra. The incriminating text messages Bassard sponsored (introduced without objection) spoke for themselves, and did not themselves require corroboration. Appellant also claims the jury should have been cautioned that Bassard’s prior felony convictions affected her credibility (OUJI-CR (2nd) No. 9-22). Bassard’s criminal history was thoroughly explored at trial, and we believe her credibility was sufficiently called into question before the jury. Appellant points out that the court omitted one of several Uniform Instructions addressing direct and circumstantial evidence (OUJI-CR (2nd) No. 9-2). Because the law makes no distinction between direct and circumstantial evidence, and because other instructions communicated this concept, we find no prejudice. Lay U. State, 2008 OK CR 7, II 29-30, 179 P.3d 615, 623, overruled on other grounds, Harmon U. State, 2011 OK CR 6, 248 P.3d 918. 6 Finally, Appellant claims the trial court should have instructed her jury on how to determine the voluntariness of her statements to police and hospital personnel (OUJI-CR (2nd) No. 9-12). Of the two written statements Appellant gave to police, she admitted one was false, and maintained the other was true. She did not deny giving information to an emergency-room nurse; she simply disagreed with some of the details about the statement. Importantly, the State never claimed any of these statements were true; in none of them did Appellant ever make any incriminating admissions. The statements were only incriminating by dint of their mutual inconsistency. Any error in failing to give OUJI-CR (2nd) No. 9-12 was harmless. Harger v. State, 1983 OK CR 30, 13, 665 P.2d 827, 830. Proposition III is denied. In Proposition IV, Appellant claims the trial court erred in overruling her objection to a pediatric nurse’s opinion regarding the relative ages of the victim’s bruises. She claims the nurse was not qualified to give such opinions, that the opinions lacked foundation, and that they told the jury what verdict to reach. We disagree. Defense counsel objected to the nurse’s opinion for lack of foundation only. When the prosecutor asked foundational questions, counsel withdrew 7 his objection and explored the matter on cross-examination. We therefore review this claim for plain error. To obtain relief, she must prove a plain or obvious error affected the outcome of the proceeding. We will correct plain error only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings. Engles, 2015 OK CR 17, IT 2, 366 P.3d 311, 312. This witness had specialized training and considerable experience in the matter about which she testified. She repeatedly qualified her opinions and the limits of her expertise. Welch U. State, 2000 OK CR 8, 22, 2 P.3d 356, 369. The fact that the nurse’s opinions differed slightly from those of the State’s physician expert, Dr. Passmore, does not render them inadmissible. Both witnesses agreed that the number, variety, size, shape, location, and color of the child’s bruises suggested not an isolated event, but an ongoing pattern of physical abuse. The fact that these opinions embraced the ultimate issue does not render them improper. Id. at I 23, 2 P.3d at 369. There was no error here. Proposition IV is denied. In Proposition V, Appellant claims the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by failing to turn over photos of the victim taken by one of Appellant’s friends at 8 a children’s birthday party a week or SO before the instant injury. Invoking the Due Process Clause of the Fifth Amendment to the United States Constitution, Brady obligates prosecutors to disclose any exculpatory evidence to the accused. That obligation extends to information even if the prosecutor is not personally aware of it; good faith is not a defense. Still, relief is not warranted unless the evidence is “material” – unless there is a reasonable probability that it would have affected the outcome of the trial. Bramlett V. State, 2018 OK CR 19, IT 28, 422 P.3d 788, 797. Here, defense counsel was made aware of the photos during trial, but he never attempted to use them or made any further comment about them. 4 On this record, we decline to hold that Appellant was denied access to material, exculpatory evidence. Proposition V is denied. In Proposition VI, Appellant faults her trial counsel for (1) failing to request several jury instructions (see Proposition III) and (2) failing to object to medical opinion testimony (see Proposition IV). To prevail 4 Presumably, these photos corroborated the friend’s testimony that she saw no visible bruising on the child at that time. Other witnesses made similar claims. The prosecutor was unaware of the photos but promised to look for them during a recess. It seems likely that the witness who took the photos did SO with a digital device, and could easily have provided the defense with copies herself. In any event, we can safely presume from the record’s silence that defense counsel ultimately found no material value to the photos. 9 on a claim that counsel’s performance violated her Sixth Amendment right to reasonably effective assistance, Appellant must show that counsel made an objectively unreasonable decision which undermines confidence in the outcome of the trial. Strickland U. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); Sanchez U. State, 2009 OK CR 31, I 98, 223 .3d 980, 1012. With regard to the instructions discussed in Proposition III, we found no reasonable probability of prejudice which would warrant relief. With regard to the testimony discussed in Proposition IV, we found no error. Failure to meet either of prong of Strickland’s test is fatal to an ineffective-counsel claim. Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206. Proposition VI is therefore denied. In Proposition VII, Appellant claims her sentence is excessive and should be modified. Given that the victim’s injuries were extensive and permanently disabling, and the sentence was within the statutory range, we cannot say the sentence imposed was shocking to the conscience. Head v. State, 2006 OK CR 44, “I 27, 146 P.3d 1141, 1148. Proposition VII is denied. In Proposition VIII, Appellant claims the cumulative effect of all errors warrants relief. We have already determined that the instruction 10 errors identified in Proposition III did not, individually or cumulatively, result in prejudice; no other errors have been identified. Postelle v. State, 2011 OK CR 30, 9 94, 267 P.3d 114, 146. Proposition VIII is therefore denied. DECISION The Judgment and Sentence of the District Court of Muskogee County is AFFIRMED Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY THE HONORABLE MICHAEL NORMAN, DISTRICT JUDGE 11 ATTORNEYS AT TRIAL ATTORNEYS ON APPEAL DANIEL MEDLOCK CHAD JOHNSON 620 WEST BROADWAY INDIGENT DEFENSE SYSTEM MUSKOGEE, OK 74401 P.O. BOX 926 COUNSEL FOR DEFENDANT NORMAN, OK 73070 COUNSEL FOR APPELLANT RYAN FERGUSON ASST. DISTRICT ATTORNEY MIKE HUNTER 220 STATE STREET ATTORNEY GENERAL OF OKLA. MUSKOGEE, OK 74401 JULIE PITTMAN COUNSEL FOR THE STATE ASST. ATTORNEY GENERAL 313 NE 21 ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE OPINION BY KUEHN, J. LUMPKIN, P.J.: CONCUR IN RESULT LEWIS, V.P.J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: CONCUR 12 LUMPKIN, PRESIDING JUDGE: CONCURRING IN RESULT I concur in the results reached but write separately to further explain aspects of the analyses set forth in the opinion. The opinion properly applies plain error in Proposition One. I note that Appellant raises both a facial and an as-applied challenge to the constitutionality of 21 O.S.Supp.2014, § 843.5(B). This Court reviews constitutional challenges to the face of a statute under a de novo standard of review. Weeks V. State, 2015 OK CR 16, I 16, 362 P.3d 650, 654 (performing de novo review where statute challenged on its face as opposed to an as applied challenge). However, “[f]acial challenges are disfavored.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). Instead, the preference is to employ an as- applied analysis. Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-29, 126 S.Ct. 961, 967, 163 L.Ed.2d 812 (2006) (“[T]he ‘normal rule’ is that ‘partial, rather than facial, invalidation is the required course,” such that a ‘statute may be declared invalid to the extent that it reaches too far, but otherwise left intact.”) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). In addition, both Appellant’s facial challenge and his as- applied challenge turn upon the facts of the case. Appellant’s facial challenge is wholly dependent upon the facts as determined below. See United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975) (“It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.”). This Court reviews a trial court’s determination of the facts for an abuse of discretion. Smith v. State, 2018 OK CR 4, “I 3, 419 P.3d 257, 259; Coffia V. State, 2008 OK CR 24, II 5, 191 P.3d 594, 596; Seabolt v. State, 2006 OK CR 50, “I 5, 152 P.3d 235, 237. Because Appellant did not raise these challenges before the district court, the trial court did not make a determination of the facts in relation to these claims. Thus, there is nothing for this Court to review for an abuse of discretion and it must be concluded that Appellant waived appellate review of his claims for all but plain error when he failed to permit the trial court to make a determination of the facts which this Court could then review. Simpson v. State, 1994 OK CR 40, 10-11, 876 P.2d 690, 694-95; see also United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 2 1777, 123 L. Ed. 2d 508 (1993) (recognizing theory that if the question was not presented to the trial court there is nothing to review) As to Proposition Three, I agree that no relief is required. However, it is not at all clear from the language in the opinion whether error occurred and why those circumstances do or do not constitute error. Instead, the opinion resorts to assuming error without deciding and then finding such presumed error to be harmless. This Court does not assume the presence of error. Instead, “[t]he general rule, often announced by this Court, is that error must affirmatively appear from the record; it is never presumed.” Tuggle v. Page, 1967 OK CR 73, T 6, 427 P.2d 439, 441; Linebarger v. State, 1974 OK CR 178, 30, 527 P.2d 178, 184 (“This Court will never presume error.”). This is because “[t]here is a presumption of regularity in the trial court proceedings.” Stevens v. State, 2018 OK CR 11, IT 26, 422 P.3d 741, 748, quoting Brown v. State, 1997 OK CR 1, I 33, 933 P.2d 316, 324-25. The “presumption of correctness” attaches to the trial court’s judgment. Hatch v. State, 1996 OK CR 37, I 57, 924 P.2d 284, 296; Romano v. State, 1993 OK CR 8, 102, 847 P.2d 368, 391. The burden is 3 upon the appellant to establish to the appellate court the trial court’s commission of error. Grissom v. State, 2011 OK CR 3, I 25, 253 P.3d 969, 979; Manuel v. State, 1975 OK CR 174, I 7, 541 P.2d 233, 236; Sharp v. State, 1965 OK CR 133, I 73, 407 P.2d 593, 603 (“[T]he burden is upon the appellant to affirmatively show error in the ruling of the trial court.”). Furthermore, under the plain error test, the burden is on the appellant to show the existence of an actual, obvious error that affected his substantial rights. Simpson, 1994 OK CR 40, 919 10 & 30-34, 876 P.2d at 694 & 700-02; Mitchell v. State, 2018 OK CR 24, I 9, 424 P.3d 677, 681. Turning to the present case, Appellant has not shown that the trial court’s omission of an accomplice instruction constituted error in the case at hand. He also has not shown that omission of instructions on circumstantial evidence, impeachment by prior felony conviction, and the voluntariness of the defendant’s statement were errors that affected his substantial rights. No relief is required. 4

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