Michael Andrew Nordbye v State Of Oklahoma

F-2017-1147

Filed: Dec. 12, 2019

Not for publication

Prevailing Party: Michael Andrew Nordbye

Summary

Michael Andrew Nordbye appealed his conviction for Murder in the First Degree (Child Abuse). Conviction and sentence: life imprisonment without the possibility of parole and a $1,000.00 fine. Judge Kuehn dissented. In this case, a four-year-old girl, J.H., was taken to the emergency room after being found unresponsive. Sadly, she was declared dead shortly after arrival. Medical examinations revealed numerous injuries on J.H., including cigarette burns and blunt force trauma, leading the medical examiner to determine that her death was a homicide. Nordbye, who was the child's mother's boyfriend, had been with J.H. before her death. Although the jury acquitted him of child sexual abuse, they found him guilty of murder. Nordbye argued that there was not enough evidence to convict him, but the court ruled that the evidence presented was sufficient to support the verdict. The trial included discussions about whether the jury was given proper instructions and whether certain defense witnesses should have been allowed to testify. Ultimately, the court found no errors that affected the trial's fairness. Despite his claims of prosecutorial misconduct during closing arguments and ineffective assistance of counsel, the court denied all of Nordbye's requests for relief. The conviction was upheld, and his application for a different hearing was denied.

Decision

The Judgment and Sentence of the District Court is AFFIRMED. Appellant's Application to Supplement the Record or in the Alternative to Remand for Evidentiary Hearing is DENIED. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there sufficient evidence presented at trial to support the conviction for first degree child abuse murder?
• Did the trial court err by failing to give jury instructions concerning the voluntariness of the defendant's statements and the use of prior inconsistent statements?
• Did the trial court err in granting the State's motion to quash subpoenas for defense witnesses?
• Did the trial court improperly exclude hearsay testimony regarding who might have killed the victim?
• Did prosecutorial misconduct during closing arguments deprive the defendant of a fundamentally fair trial?
• Was the trial counsel ineffective for failing to make offers of proof for proposed defense witnesses and for not objecting to the alleged instances of prosecutorial misconduct?
• Did the trial court err in imposing a $1,000.00 fine at sentencing despite the jury's verdict not recommending a fine?
• Did the cumulative effect of the alleged errors warrant relief for the defendant?

Findings

• sufficient evidence was presented to support the conviction for first degree child abuse murder
• no plain error in the omission of jury instructions related to voluntariness of statements and prior inconsistent statements
• no constitutional error in quashing subpoenas for defense witnesses due to lack of disclosure and failure to provide offers of proof
• no abuse of discretion in sustaining the objection to hearsay testimony
• no prosecutorial misconduct that rendered the trial fundamentally unfair
• no ineffective assistance of counsel found regarding failure to make offers of proof or to object to prosecutorial misconduct
• no plain error in the imposition of a fine by the trial court
• no cumulative error warranting relief

F-2017-1147

Dec. 12, 2019

Michael Andrew Nordbye

Appellant

v

State Of Oklahoma

Appellee

OPINION

HUDSON, JUDGE: Michael Andrew Nordbye, hereinafter Appellant, was tried and convicted at a jury trial in Washington County District Court, Case No. CF-2015-444, of Count 1: Murder in the First Degree (Child Abuse), in violation of 21 O.S.Supp.2012, § 701.7(C). The jury recommended a sentence of life imprisonment without the possibility of parole. The Honorable Curtis DeLapp, District Judge, presided at trial and sentenced Appellant in accordance with the jury’s verdict. Judge DeLapp also imposed a fine of $1,000.00 along with various costs and fees.

The jury acquitted Appellant of Count 2: Child Sexual Abuse. The State’s evidence in this case showed that shortly after midnight on November 15, 2015, four-year-old J.H. was brought to the emergency room at St. John’s Hospital in Owasso by her mother, Courtney Hansche, and Appellant, Courtney’s live-in boyfriend. J.H. was limp, unresponsive, pale, and cold to the touch when she arrived in the emergency room. J.H. was not breathing, had no pulse, and her temperature was a dangerously low 83.7 degrees. Dr. Audrey Stanton, the attending physician, immediately started CPR and intubated J.H. Despite the best efforts of the emergency medicine team to resuscitate the child, J.H.’s condition never improved and she was pronounced dead roughly thirty minutes after arriving at the hospital.

Dr. Stanton noticed circular wounds on J.H.’s torso, shoulder, chest, face, mouth, nostrils, back, and under the child’s armpits that were consistent with cigarette burns. Dr. Stanton also found bruising inside J.H.’s lips as well as on other parts of her body and superficial abrasions on J.H.’s back. None of these injuries were related to the resuscitation efforts taken by emergency room personnel. Notably, Dr. Stanton did not observe rigor mortis with J.H.’s body at the emergency room that night. Because of the injuries observed on J.H.’s body, Dr. Stanton contacted the state medical examiner to report what she believed was a very suspicious death.

Prior to her death, J.H. lived with her mother and Appellant in a mobile home outside Vera, Oklahoma, so the hospital staff also contacted Washington County authorities. Washington County Sheriff’s Deputy Jon Copeland responded to the emergency room around 2:00 a.m. where he spoke with hospital staff and photographed J.H.’s body. He then interviewed Courtney and Appellant in separate rooms at the hospital. Deputy Copeland testified that everyone was aware by this point that J.H. was dead. Nonetheless, Appellant’s demeanor was [v]ery laid back and almost lackadaisical during his conversation with Deputy Copeland. At times, Appellant even chuckled.

Deputy Copeland summarized at trial Appellant’s description of events for Saturday, November 14th leading up to J.H.’s trip to the emergency room: [W]hat I was told was that he went to his mom’s to do laundry around 12 or 12:30, that while there [J.H.] watched Toy Story, they went to Sonic, also went to Dollar General. It is about a 15-minute drive from Courtney’s to Oologah. While at Sonic, got a Wacky Pack with chicken and a Root Beer. He said that he went straight home to Courtney’s from Dollar General. It was around 5 to 5:30ish when [Appellant] gets to Courtney’s. He says that [J.H.] fell asleep on the floor about 6 p.m. He states that she laid down on the floor and states that he, [Appellant] is at Courtney’s at 5 or 5:30. [Appellant] says he falls asleep at around 7 p.m. and he does not know anything about any injuries to [J.H.’s] person.

Appellant claimed to have left Sonic around 3:00 or 4:00 p.m. that day. Appellant said that J.H. later slept on a makeshift bed on the floor near the couple’s bed in the trailer house. Appellant said too that he awoke that night to Courtney screaming my baby, my baby. Appellant claimed that J.H. was laying on the floor and had defecated herself. Appellant said that J.H. was not moving, that he felt a little breath from the child at that time and she was cold to the touch. Appellant and Courtney then undressed J.H. and washed her off in the shower before leaving for the emergency room. Appellant was not arrested at the hospital but the investigation into J.H.’s death continued.

Authorities quickly obtained a search warrant and found the clothes the victim was wearing earlier in the day in a washing machine inside the trailer house. The clothes were wet and appeared to have been washed and spun out. Investigators found the makeshift pallet at the foot of the bed described by Appellant as being the place where J.H. had slept that night. Also, small pieces of what appeared to be fecal matter were found on the floor of the shower stall in the nearby bathroom. Authorities seized at the hospital the white van in which Courtney and Appellant drove J.H. to the emergency room. According to Appellant, he drove J.H. in this same white van to all of the places described in his statement to Deputy Copeland.

After obtaining a second search warrant, authorities searched the interior of the van and discovered a lighter and a package of cigarettes. Ashes were found in the ashtray and it appeared someone had smoked in the van. A Sonic bag containing the remnants of a Wacky Pack kids’ meal was found underneath a jacket between the front bucket seats. A medicine bottle labeled Nighttime Cold and Flu with some of its cherry-flavored medicine still inside was found near the Sonic bag on the floorboard. These items were all collected as evidence.

Subsequent laboratory testing of the Nighttime Cold and Flu bottle found in the van revealed the presence of a mixture of DNA from more than one person on the mouth contact area of the bottle. J.H.’s DNA matched the major DNA component profile found on the mouth of this bottle. Appellant could not be excluded as a contributor to the minor DNA profile found on the mouth of this same bottle. The toxicological analysis by the medical examiner of J.H.’s blood revealed the presence of two drugs in her system: doxylamine and dextromethorphan. Both drugs are commonly found in over-the-counter cough medicines and sleep aids like Benadryl. Notably, these products are not considered safe for use by children and are labeled as such on the bottle.

Dr. Andrea Wiens, the state’s medical examiner, testified that the level of these drugs found in J.H.’s blood were high even for adults. Dr. Wiens opined that the most likely explanation for the presence of these two drugs in combination in the victim’s bloodstream would be through the consumption of some kind of over-the-counter cough syrup. Although no alcohol was detected in the victim’s blood, Dr. Wiens opined that the victim would likely have metabolized the small amount of alcohol found in any over-the-counter cough medication.

The parties stipulated at trial that the Nighttime Cold and Flu bottle recovered from Appellant’s white van contained the same drugs that were found in J.H.’s system. Dr. Wiens autopsied J.H. and her external examination revealed circular thermal injuries on the openings of J.H.’s nostrils; on J.H.’s face, chest, back, and buttocks; and on both her lower right leg and right anterior shoulder. All of the thermal injuries appeared to be very recent, meaning whatever caused them happened shortly before J.H.’s death. They were consistent with injuries caused by a cigarette or something of similar size and shape that was hot. Dr. Wiens found a total of thirteen burns on J.H.’s body. She considered these to be superficial injuries to the surface of the skin with no bleeding.

Dr. Wiens also found approximately fifty blunt force injuries spread across J.H.’s head, neck, face, torso, and extremities. These consisted mostly of scrapes and bruises. The blunt force injuries were all acute meaning they were recently made. J.H. also had a laceration, or tear, of the skin inside her lower lip; this injury probably caused bleeding. Dr. Wiens discovered internal injuries to J.H.’s body caused by blunt force trauma. This included subdural bleeding inside the skull that resulted in swelling of the victim’s brain. According to the medical examiner, this was a slow bleed. Although the victim suffered no skull fractures, Dr. Wiens testified that several of the blunt force injuries to J.H.’s scalp and face resulted in impacts that were sufficient to cause the subdural bleeding.

Additionally, Dr. Wiens observed bleeding in the septum of J.H.’s heart which is commonly seen with head injuries. Dr. Wiens too observed soft tissue hemorrhaging in the pelvic area around J.H.’s uterus. This type of bruising could occur from an impact to the outside of the lower abdomen or pelvis. Dr. Wiens further opined that the bruising around the uterus could have resulted from penetration inside the anus or vagina and manipulation of the internal tissues that resulted in tears to the vessels in the connective tissue around the uterus. Although Dr. Wiens could not determine the exact cause of this bruising, she did find a small exterior bruise on J.H.’s lower abdomen in the same general area overlaying the uterus. Additionally, Dr. Wiens found a tear to J.H.’s anal sphincter as well as three skin tears to J.H.’s vaginal opening.

In addition to the autopsy, Dr. Wiens reviewed the medical records for the victim’s treatment at the hospital. Dr. Wiens observed that J.H.’s body temperature at the emergency room was roughly fifteen degrees lower than normal. A temperature this low would normally occur anywhere from seven to sixteen hours after death. Yet, the absence of rigor mortis in J.H. when she appeared at the ER called into question that general time frame here. Rigor mortis usually begins to develop two to four hours after death.

Dr. Wiens reconciled this seeming inconsistency by noting that one possible physiological effect of the victim’s head injury could have been the dysregulation of her body temperature. This phenomenon could explain a severe drop in body temperature that does not match the development of rigor mortis. Under this scenario, J.H. would still be alive while her body temperature sharply dropped because her brain was no longer able to regulate body temperature appropriately. Dr. Wiens’s theory drew support from her finding that J.H.’s lungs at autopsy were heavy and full of fluid. This condition has many causes but can be seen in patients with decreased respiratory drive, pneumonia, bronchitis or those suffering from a drug overdose or drowning.

Because the victim showed no sign of illness or infection, Dr. Wiens opined that the most likely cause of J.H.’s lung edema was a decreased respiratory drive from the head injury resulting in the accumulation of fluids in the lungs. It was apparent to Dr. Wiens that J.H.’s body showed visible signs of lingering before death after receiving her injuries and that none of the victim’s injuries individually would have been instantly fatal. Based upon her findings, Dr. Wiens opined that the manner of death was a homicide. According to Dr. Wiens’s report, which was admitted into evidence, the cause of death was multiple blunt force injuries. Dr. Wiens testified that the medical evidence was not inconsistent with J.H. having been injured anywhere from 4:30 p.m. through 7:00 p.m. on November 14th.

The State presented extensive evidence at trial establishing a timeline of events surrounding the victim’s final hours during the afternoon and evening of November 14th. Caitlin Hansche, Courtney’s sister, observed Appellant leave home with J.H. in the white Dodge van sometime during the afternoon on November 14th although she was unaware of the exact time. Surveillance video from the Dollar General store in Oologah showed Appellant and J.H. entering the store after 2:10 p.m. and leaving at 2:21 p.m. on November 14th. The video showed Appellant purchased several items during this visit. Kimberly Nordbye, Appellant’s mother, testified that Appellant and J.H. visited her Oologah home on the afternoon of November 14th. Appellant and J.H. told Nordbye they had just been to the Dollar General store which was roughly a mile away.

Appellant told his mother that he purchased J.H. a headband and a sucker at Dollar General. Nordbye testified that Appellant and J.H. drove to her home in the white Dodge van and J.H. brought her a photo album as a gift that she had made with Courtney. Nordbye testified Appellant came to her home that day to pick up his computer and it was not unusual for him to visit on the weekend. Appellant did laundry at his mother’s house and Nordbye fed J.H. a honey-and-peanut-butter sandwich because the child was hungry. Later, Nordbye watched the movie Toy Story with J.H.

Before the movie was over, Appellant decided to leave with J.H. and stop at Sonic on the way home. Nordbye gave Appellant ten dollars to buy J.H. some ice cream or something else to eat. Nordbye testified that J.H. was a happy, healthy child while at her house that day. J.H. was dressed for the weather and showed no signs of illness or injuries when she left with Appellant. J.H. did, however, have a slight cough.

The State introduced evidence showing that the only Wacky Pack kids’ meal with chicken purchased on the afternoon of November 14th at the Sonic in Oologah was ordered at approximately 4:11 p.m. and that the food was delivered around 4:14 p.m. As discussed infra, Appellant told investigators during subsequent interviews that he ordered the food at Sonic and immediately returned home. However, the State presented evidence refuting Appellant’s explanation of his whereabouts. Deputy Copeland testified the driving time between the Sonic in Oologah and the rural trailer house Appellant, Courtney and J.H. called home was approximately fifteen minutes. A Facebook post by Courtney at 5:00 p.m. while she was at home stated Appellant and J.H. were having daddy/daughter time and that she, Courtney, had not been this bored in Awhile [sic].

Further, Caitlin Hansche testified that she was outside when she saw Appellant carrying J.H. into her sister’s trailer house after dark on November 14th during the seven o’clock hour. Caitlin knew the time because she checked her phone. According to Caitlin, Appellant had J.H. in his right arm with her rear-end sitting on his forearm and he also had several grocery bags in his left hand. Caitlin told J.H. she loved her but got no response from the child. Caitlin did not see J.H. move and her head was down with her arms crossed. J.H. at the time was wearing a coat with colorful polka dots. Caitlin soon left the trailer to go meet a friend and this encounter was the last time she ever saw J.H.

Appellant voluntarily sat for two additional interviews with Deputy Copeland during the course of the investigation. During the second interview, Appellant told the same basic story as before but acknowledged going to Dollar General with J.H. prior to driving to his mother’s home. Appellant also said that he went straight home from Sonic at 5:00 or 5:15 p.m. and that he arrived at the trailer by 5:45 p.m. Appellant said both he and J.H. walked inside the trailer from the van. J.H. laid down in bed with Courtney and Appellant for roughly an hour and then the makeshift bed was put together on the floor. At that point, Appellant moved J.H. to the floor; Appellant said J.H. was awake, responsive and spoke to them. Appellant claimed that he watched television then fell asleep around 9:00 or 10:00 p.m. Appellant maintained that he awoke to Courtney screaming shortly after he fell asleep. Appellant said J.H.’s clothes were taken off and put in the washer while J.H. was in the shower with Courtney. Appellant claimed that he checked for a pulse on J.H. before she was placed in the shower.

During Appellant’s third and final interview, he made additional changes to his timeline of events for November 14th. Appellant said that he and J.H. went to Sonic at 5:00 or 6:00 p.m. and that it was dark when they arrived. Appellant claimed they arrived back at the trailer in Vera roughly twenty minutes later. Appellant initially claimed during the third interview that both he and J.H. walked inside the trailer but said later during this interview that he actually carried J.H. inside. Appellant said he checked for a pulse on J.H. twice that night: once in the shower and once in the van. Appellant said too that only he and Courtney were with J.H. from the time he left his mother’s house until J.H. arrived at the emergency room. Appellant described the victim as sleeping after arriving at the trailer and he described no other type of activity by the child before his discovery that something was wrong with J.H. During all three of his interviews, Appellant maintained that he was the only person who was alone with J.H. during the time frame from 4:15 p.m. on November 14th when they left Oologah until the pair returned to the trailer house. Appellant maintained that the victim was healthy and perfectly fine before he awoke to the sounds of Courtney screaming in the bedroom. Appellant portrayed Courtney’s screaming as the first time he learned J.H. was injured. Appellant also never mentioned anything about either himself or J.H. taking cough medicine.

I. Sufficiency of the Evidence. In his first proposition, Appellant complains that insufficient evidence was presented at trial to support his conviction for first degree child abuse murder. Appellant argues there was no competent evidence for a jury to reasonably conclude, beyond a reasonable doubt, that [he] was the person who injured J.H. and caused her death. The issue in this proposition thus is whether, taken in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. This analysis requires examination of the entire record. This Court will accept all reasonable inferences and credibility choices that tend to support the verdict.

Further, the law makes no distinction between direct and circumstantial evidence and either, or any combination of the two, may be sufficient to support a conviction. The elements of first degree child abuse murder as charged in this case are: 1) the death of a child under the age of eighteen; 2) the death resulted from the willful or malicious injuring or torturing or using of unreasonable force; 3) by the defendant. Taken in the light most favorable to the prosecution, sufficient evidence was presented to allow any rational trier of fact to conclude beyond a reasonable doubt that J.H.’s death resulted from the willful or malicious injuring, torturing or use of unreasonable force by Appellant.

The record evidence allowed any rational trier of fact to conclude that the whereabouts of Appellant and J.H. were unknown from roughly 4:14 p.m. when they left the Sonic in Oologah until well after dark, during the seven o’clock hour, when Caitlin Hansche saw Appellant carrying J.H. into Courtney’s trailer house; that, according to the medical examiner, the victim’s many injuries were consistent with having been inflicted during this nearly three hour time frame, and that Appellant admitted to being alone with J.H. during this same time frame; that Appellant’s inconsistent statements concerning the timing of his return home, and whether the victim had walked inside the trailer that night, along with his failure to mention the cough syrup consumed by the victim that afternoon, established a consciousness of guilt on his part concerning the victim’s injuries; that the physical evidence showed Appellant force-fed J.H. cold medicine from the Nighttime Cold and Flu bottle found in his van sometime after leaving the Sonic; that Appellant inflicted the victim’s numerous injuries during this same time frame after drugging the victim with the cold medicine but before returning to the trailer house; and, based on Caitlin’s observations, that the victim was unresponsive when she returned to the trailer due to a combination of being drugged with the cold medicine and the subdural brain bleed caused by blunt force injuries Appellant inflicted on her head and face.

Sufficient evidence thus was presented at trial, when taken in the light most favorable to the State, to support Appellant’s first degree murder conviction based on the theory that Appellant inflicted the victim’s injuries during the time frame when he was alone with the victim after leaving Sonic but before returning to the trailer house. Proposition I is denied.

II. Jury Instructions. In his second proposition, Appellant complains the trial court erred in failing to instruct with certain jury instructions concerning the voluntariness of the defendant’s statements and the use of prior inconsistent statements. Appellant concedes that he did not object below to the omission of these instructions and did not request them at trial. This claim is unpreserved and our review is thus limited to plain error. To show plain error, Appellant must show an actual error, which is plain or obvious, affected his substantial rights. This Court will only correct plain error if the error seriously affected the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice.

Appellant fails to show actual or obvious error from the omission of the instructions he now claims should have been given. The determination of which instructions to give is a matter left to the trial court’s broad discretion. Where the instructions given accurately state the law, relief on appeal is unwarranted. There is no indication in the record before this Court that the voluntariness of any of Appellant’s three statements to Deputy Copeland was ever questioned by the defense. On the contrary, defense counsel repeatedly emphasized during both opening statement and closing argument that Appellant voluntarily appeared for all three interviews and answered the deputy’s questions.

The omission of jury instructions also does not constitute plain error. Appellant argues this instruction was necessary because a witness made statements to the police that were inconsistent with her trial testimony. The record, however, shows that the witness explained at trial that her statement to authorities that J.H. was awake normal and happy referred to the victim’s condition on the morning of November 14th. Further, the trial court instructed addressing the jury’s responsibility to determine the credibility of witnesses and the factors the jury may properly consider in making this assessment. The jury could determine for itself with this instruction the credibility to be given to her testimony. There is no actual or obvious error affecting Appellant’s substantial rights from the trial court’s failure to instruct on the witness’ inconsistent statements.

Proposition II is denied.

III. Exclusion of Defense Witnesses. In his third proposition, Appellant complains that the trial court erred in granting the State’s mid-trial motion to quash subpoenas for two defense witnesses. During a lunch break on the second day of trial, the prosecutor moved to quash defense subpoenas that were served that morning on certain individuals. Neither party disclosed these individuals as potential witnesses during voir dire when the list of each side’s potential witnesses was read to the venire panel. The trial court granted the prosecutor’s motion to quash the defense subpoenas because Appellant did not disclose these witnesses’ names during voir dire.

Appellant fails to demonstrate the relevance and materiality of either witness’s testimony because no offer of proof was made below for their proposed testimony. There is thus no constitutional error on this record from the trial court’s ruling granting the State’s motion to quash the subpoenas for these witnesses. Appellant fails to show that he was denied the constitutional right to present a defense at trial from the trial court’s ruling. Relief for Proposition III is denied.

IV. Hearsay. In his fourth proposition, Appellant challenges the trial court’s disallowance of testimony concerning whether a witness gave information as to who she thought might have killed J.H. The prosecutor objected to this question on grounds that the question called for hearsay answers. The trial court sustained the State’s objection, finding that the question called for hearsay. We review a trial court’s ruling admitting or disallowing evidence for abuse of discretion.

Appellant fails to show prosecutorial misconduct from any of the challenged conduct. The prosecutor’s argument that Appellant force-fed the victim cough syrup was supported by the DNA profiles for J.H. and Appellant found on the mouth of the Nighttime Cold and Flu bottle recovered from Appellant’s van; the toxicology report showing the presence of two drugs in the victim’s bloodstream that are commonly found in this type of cold medicine; the laceration found by the medical examiner inside J.H.’s lower lip; and the numerous blunt force injuries and cigarette burns found on the victim’s body.

Both parties have wide latitude to discuss the evidence and draw reasonable inferences from the evidence during closing argument. There was no error, plain or otherwise, as Appellant was not deprived of a fair trial from these comments. Appellant’s complaint that the prosecutor expressed his personal opinion of guilt is unsupported in the record. In the challenged passage, the prosecutor merely argued that Appellant was J.H.’s killer based upon what the evidence showed. This was proper.

Proposition IV is denied.

V. Prosecutorial Misconduct Claims. In his fifth proposition, Appellant alleges that prosecutorial misconduct during closing argument deprived him of a fundamentally fair trial. Appellant complains the State argued facts not in evidence by urging that Appellant force-fed the victim cough syrup to subdue her. Appellant alleges too that the prosecutor expressed his personal opinion of Appellant’s guilt; improperly pointed at Appellant in the courtroom; and engaged in improper name calling.

This Court will not grant relief for alleged prosecutorial misconduct unless, viewed in the context of the whole trial, the misconduct rendered the trial fundamentally unfair, so that the jury’s verdict is unreliable. Appellant objected at trial only to the alleged finger pointing and name calling by the prosecutor. These claims are thus preserved for our review and we review the trial court’s rulings concerning this alleged prosecutorial misconduct for abuse of discretion.

Appellant fails to show prosecutorial misconduct from any of the challenged conduct. The trial court did not abuse its discretion in overruling Appellant’s objections to these portions of the State’s closing argument. Proposition V is denied.

VI. Ineffective Assistance of Counsel Claims. In his sixth proposition, Appellant claims that trial counsel was constitutionally ineffective for failing to make offers of proof at trial for proposed defense witnesses. To prevail on an ineffective assistance of counsel claim, the defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense.

Appellant fails to show Strickland prejudice from counsel’s failure to make this offer of proof. The circumstantial proof in this case connected Appellant, not a third party, to the victim’s murder. Appellant fails to show by clear and convincing evidence a strong possibility that trial counsel was ineffective for failing to make the offers of proof contained within their respective affidavits that are now presented on appeal. Proposition VI is denied.

VII. The $1,000.00 Fine. In his seventh proposition, Appellant complains that the trial court erred in imposing a $1,000.00 fine at formal sentencing in addition to the life without possibility of parole sentence recommended by the jury with its verdict. Appellant argues that because the jury’s verdict did not recommend imposition of a fine the trial court had no authority to impose one.

The $1,000.00 fine was well within the range of fines provided in legislation. The trial court thus did not commit actual or obvious error by imposing a fine in this case. Proposition VII is denied.

VIII. Cumulative Error. In his eighth and final proposition, Appellant complains that the cumulative effect of the various errors raised on appeal warrant relief. We found no error in the preceding propositions. Where there is no error, there will be no cumulative error. Relief for Proposition VIII is denied.

DECISION
The Judgment and Sentence of the District Court is AFFIRMED. Appellant’s Application to Supplement the Record or in the Alternative to Remand for Evidentiary Hearing is DENIED. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 1 The jury acquitted Appellant of Count 2: Child Sexual Abuse.
2. 2 The probability of selecting at random an unrelated person from the population having this same DNA profile is one in 217 sextillion. A sextillion has twenty-one zeros.
3. 3 The probability of selecting at random an unrelated person from the population having this same DNA profile is one in 1.33 quadrillion. A quadrillion has fifteen zeros.
4. 4 Investigators found several items in the Wacky Pack food bag recovered from Appellant's white Dodge van. This included a discarded food wrapper, a damaged Sonic drink cup, straw wrappers, a French fry box and French fries in the bottom of the bag. In addition, investigators discovered a pink lollipop along with plastic wrappers for a toy headband and a doll. A pink sticker with the word "Diva," a Dollar General clothing tag and a plastic water bottle were also found inside the bag. Only the food items and the wrapper for the headband are normally included with the Sonic Wacky Pack kids' meal.
5. 5 Courtney was also charged in this case with first degree child abuse murder. In exchange for her limited testimony at Appellant's trial identifying the Facebook post, the State agreed to consider a plea deal in which Courtney pled guilty to child neglect if the jury convicted Appellant of J.H.'s murder. By the time of Appellant's formal sentencing, Courtney had entered a plea to child neglect and was sentenced to prison time.
6. 6 Deputy Copeland consulted meteorological records and discovered that sunset in Vera, Oklahoma, occurred at approximately 5:16 p.m. on November 14, 2015. Deputy Copeland too noted the commonly observed phenomenon in which actual darkness onsets roughly thirty minutes after sunset. According to the deputy, darkness would have occurred on November 14th at roughly 5:45 p.m.
7. 7 The second interview with Appellant occurred on November 17, 2015, at the sheriff's office in Bartlesville. The third and final interview occurred on December 8, 2015, also at the sheriff's office. Appellant was arrested at the conclusion of the December 8th interview.
8. 8 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).
9. 9 Defense counsel erroneously referred to Ms. Blackwood as Debra Elizabeth Blackfoot during a portion of his questioning of Deputy Copeland. It is clear from defense counsel's subsequent questioning however, that he is actually referring to Ms. Blackwood during this exchange with Deputy Copeland.
10. 10 12 O.S.2011, §§ 2801-2802.
11. 11 12 O.S.2011, § 2104(C) ("In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being presented to the jury by any means, including making statements or offers of proof or asking questions within the hearing of the jury.").
12. 12 Title 22, O.S.Supp.2017, § 991a(A)(2) provides that the trial court may impose a fine prescribed by law for an offense in addition to the imposition of incarceration as set forth in the jury's verdict. We held in Fite U. State, 1993 OK CR 58, II 11, 873 P.2d 293, 295, that Section 991a(A)(2) "demonstrates the legislature's intent to allow the trial court, in certain circumstances, to impose additional, or alternative, sanctions as prescribed by law."
13. 13 Appellant's application for evidentiary hearing under Rule 3.11 is denied.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7(C) - Murder in the First Degree (Child Abuse)

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)
• Davis v. State, 2011 OK CR 29, II 74, 268 P.3d 86, 111
• Young v. State, 2000 OK CR 17, II 35, 12 P.3d 20, 35
• Miller v. State, 2013 OK CR 11, q 84, 313 P.3d 934, 965
• Harris v. State, 2019 OK CR 22, I 69, __P.3d_
• Jackson v. State, 2016 OK CR 5, H 4, 371 P.3d 1120, 1121
• Lamar v. State, 2018 OK CR 8, II 40, 419 P.3d 283, 294
• Barnes v. State, 2017 OK CR 26, q 22, 408 P.3d 209, 217
• Reed v. State, 2016 OK CR 10, II 15, 373 P.3d 118, 122
• Parent v. State, 2000 OK CR 27, III 18-22, 18 P.3d 348, 352-53
• Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986)
• Tryon v. State, 2018 OK CR 20, II 38, 423 P.3d 617, 632
• Sanders v. State, 2015 OK CR 11, H 21, 358 P.3d 280, 286
• Bosse v. State, 2017 OK CR 10, II 82, 400 P. 3d 834, 863
• Childress v. State, 2000 OK CR 10, II 28, 1 P.3d 1006, 1013
• Williams v. State, 2008 OK CR 19, II 107, 188 P.3d 208, 228
• Holtzclaw v. State, 2019 OK CR 17, II 68, 448 P.3d 1134, 1155
• Wahid v. State, 1986 OK CR 37, II 12, 716 P.2d 678, 681
• Coddington v. State, 2006 OK CR 34, II 47, 142 P.3d 437, 451
• Summers v. State, 2010 OK CR 5, II 67, 231 P.3d 125, 147