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ORIGINAL 10446843047 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA MELISSA D. CLARK, ) NOT FOR PUBLICATION ) Appellant, ) ) V. ) Case No. F-2017-1293 ) FILED THE STATE OF OKLAHOMA, ) IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA Appellee. ) DEC 12 2019 SUMMARY OPINION JOHN D. HADDEN CLERK LUMPKIN, JUDGE: Appellant, Melissa D. Clark, was tried by jury and convicted of First Degree Murder-Child Abuse, in violation of 21 O.S.Supp.2012, § 701.7, in the District Court of Cleveland County Case Number CF- 2016-1193. The jury recommended as punishment imprisonment for life.1 The trial court sentenced Appellant accordingly. It is from this judgment and sentence that Appellant appeals. Appellant raises the following propositions of error in this appeal: 1 Appellant must serve 85% of her sentence before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1. 1 I. The evidence was insufficient to prove the elements of first degree (child abuse) murder beyond a reasonable doubt. II. The trial court committed reversible error in allowing the admission into evidence of Appellant’s statements to the police, obtained in violation of her Fifth Amendment privilege against self-incrimination due to the failure to advise her of her rights pursuant to Miranda U. Arizona. III. The trial court deprived Appellant of his [sic] right to present his [sic] theory of defense to the jury and coerced a verdict not supported by the evidence by refusing Appellant’s requested instruction on second degree manslaughter as a lesser included offense. IV. Under the facts and circumstances of this case, a life sentence for arguably negligent conduct, in a brief period of time under extreme stress, amounts to an unconstitutionally excessive sentence. After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted. In Proposition I, Appellant contends the State presented insufficient evidence to support her child abuse murder conviction. She argues the State failed to prove sufficiently that she caused four- month-old B.Z.’s death. This Court follows the standard for the determination of the sufficiency of the evidence which the United 2 States Supreme Court set forth in Jackson v. Virginia, 443 U.S. 307, (1979). Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559; Spuehler U. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04. Under this test, “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, 443 U.S. at 319; Easlick, 2004 OK CR 21, I 5, 90 P.3d at 558; Spuehler, 1985 OK CR 132, I 7, 709 P.2d at 203- 04. “A reviewing court must accept all reasons, inferences, and credibility choices that tend to support the verdict.” Taylor U. State, 2011 OK CR 8, I 13, 248 P.3d 362, 368. “The credibility of witnesses and the weight and consideration to be given to their testimony are within the exclusive province of the trier of facts and the trier of facts may believe the evidence of a single witness on a question and disbelieve several others testifying to the contrary.” Davis U. State, 2011 OK CR 29, IT 83, 268 P.3d 86, 112-13. “Pieces of evidence must be viewed not in isolation but in conjunction, and we must affirm the conviction SO long as, from the inferences reasonably drawn from the record as a whole, the jury might fairly have concluded the defendant was guilty beyond a 3 reasonable doubt.” Matthews v. State, 2002 OK CR 16, I 35, 45 P.3d 907, 919-20. The State had to prove beyond a reasonable doubt the following elements of first-degree child abuse murder: First, the death of a child under the age of eighteen; Second, the death resulted from the willful or malicious injuring or using of unreasonable force; Third, by the defendant. Instruction No. 4-65A, OUJI-CR(2d). Appellant argues the State’s proof of the second and third elements was insufficient. Appellant provided much of the State’s evidence. She operated a home daycare, attended by B.Z. and her two-year-old brother, as well as four other children. They ranged in age from four months to five years. According to her statement to police, on July 19, 2016, Appellant lost her temper, shook B.Z. and “tossed” her into a bouncy seat. B.Z. hit her head on the seat’s toy bar and bounced out onto the floor. Appellant was the only adult present in the home. Appellant stated B.Z. became sleepy, SO she put B.Z. on a blanket on the floor. After about ten or fifteen minutes, B.Z. made gurgling sounds and was in distress. Appellant first called B.Z.’s mother, Chasity Zachary, at 1:23 p.m., before finally calling 911 at 1:30 p.m. (Tr. 1546). B.Z. died on July 24, 2016. 4 Dr. Lauren Conway, a child abuse fellow at St. Francis Hospital in Tulsa, diagnosed B.Z. with abusive head trauma (Tr. 1277). After sustaining her injuries, Dr. Conway testified B.Z. would have been immediately symptomatic. That B.Z. was symptomatic is borne out by Appellant’s statement that she thought B.Z. was sleepy, SO she placed her on the floor and then minutes later, heard B.Z. making gurgling sounds. Dr. Joshua Lanter, the medical examiner, found subdural hemorrhages in B.Z.’s brain consistent with Appellant’s statement that she threw B.Z. into the bouncy seat. He determined B.Z. died as a result of blunt force trauma to her head. The defense experts’ testimony primarily consisted of expressing their views that shaking babies does not cause injury or death. While they each attributed B.Z.’s death to a combination of factors, i.e., DIC (disseminated intravascular coagulopathy), hypoxia, improper intubation, neither expert addressed the underlying cause of these factors. The State’s evidence showed that cause was Appellant’s abuse of B.Z. by shaking her and throwing her into the bouncy seat. The jury heard all the evidence regarding B.Z.’s injuries and death and chose to believe the State’s witnesses. Having thoroughly 5 examined the record, we find the evidence presented was sufficient for the jury to determine that Appellant committed first-degree child abuse murder. Proposition One is denied. In Proposition II, Appellant maintains the trial court erred in admitting her statements to law enforcement. She argues police violated her Fifth Amendment right against self-incrimination by failing to advise her of her rights as set forth in Miranda U. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prior to questioning her. Appellant moved to suppress her statements and a Jackson U. Denno2 hearing regarding the voluntariness of her statements occurred on September 20, 2017. The trial court issued an order denying Appellant’s motion to suppress statements, finding that Appellant’s interview with police was not a custodial interview; therefore, no Miranda warnings were necessary. “This Court reviews a trial court’s ruling on a motion to suppress for an abuse of discretion.” Bramlett U. State, 2018 OK CR 19, I 10, 422 P.3d 788, 793 (citing State U. Pope, 2009 OK CR 9, I 4, 204 P.3d 1285, 1287). “In reviewing a trial court’s decision, we defer 2 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). 6 to the trial court’s findings of fact unless they are clearly erroneous.” Id. (citing Gomez v. State, 2007 OK CR 33, I 5, 168 P.3d 1139, 1141-42). “We review the trial court’s legal conclusions derived from those facts de novo.” Id. In Oregon U. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714 (1977), the Supreme Court held: [P]olice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” “The relevant inquiry as to whether a suspect is in custody is how a reasonable person in the suspect’s position would have understood the situation.” Mason U. State, 2018 OK CR 37, I 18, 433 P.3d 1264, 1270 (citing Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317 (1984)). We consider the totality of the circumstances in determining whether a defendant’s freedom of movement has been restricted such that he is in custody for purposes of Miranda. Bryan U. State, 1997 OK CR 15, I 16, 935 P.2d 338, 351. In Andrew U. State, 2007 OK CR 23, I 72, 164 P.3d 176, 194- 7 95, overruled on other grounds by Williamson U. State, 2018 OK CR 15, 422 P.3d 752, this Court affirmed the trial court’s denial of the appellant’s motion to suppress her statements, finding she was not in custody at the time she made them. Specifically, this Court found that the appellant voluntarily came to the police station to answer questions about her husband’s murder, she was the only eyewitness to the killing, she was not handcuffed or placed in any restraints, she was not arrested and police took her to a friend’s house after the interview. Id. In the instant case, Appellant agreed to go to the police department, ostensibly to view some photographs, and her husband took her there. The interview took place in a break room at the department. Appellant was not restrained in any way and she was left alone in the room with her cell phone several times. Appellant was the only adult eyewitness to the events of July 19, 2016. Police drove her home from the department and she was never restrained in any way. After demonstrating how she shook and threw B.Z. into the bouncy seat, police left Appellant’s home without arresting her. Appellant never indicated she no longer wished to speak with law enforcement or wanted an attorney. 8 It is of no consequence that police asked Appellant to come to the department to look at non-existent photographs. It is not improper for law enforcement personnel to use deception while investigating crimes. See Darity v. State, 2009 OK CR 27, I 13, 220 P.3d 731, 735 (neither Oklahoma Statutes nor the Constitution requires police to deal truthfully with targets of criminal investigations). Nor was it improper for police to use aggressive questioning during Appellant’s interview. Cf. Bernay v. State, 1999 OK CR 46, 9 30, 989 P.2d 998, 1009. In Bernay, we addressed a claim that the appellant’s video-taped statement was improperly admitted as it deprived him of a fair trial. Id. We found no error in law enforcement’s interrogation techniques as follows: Police use different techniques in interrogation. A juror should know that interrogation is not testimony but is trying to illicit [sic] facts or get a party to make certain statements. The mere fact a detective during interrogation makes statements does not cause a reasonable juror to consider those as vouching for the credibility of a party. It is, quite frankly, a way to obtain a confession or try to obtain the truth as to what did in fact occur. This Court finds the interrogation was not misleading and did not deprive the Appellant of a fair trial. The interrogation technique was a proper one, and no error is found. Barnett U. State, 1993 OK CR 26, I 14, 853 P.2d 226, 230. 9 Id. Finally, even if the agents considered Appellant a suspect in B.Z.’s injuries, they never conveyed such a consideration to her. Thus, Miranda warnings were unnecessary. Berkemer, 468 U.S. at 442. In Berkemer, even though the officer decided to arrest the suspect at the conclusion of their encounter, he did not convey that to the suspect. Thus, the Court held the suspect was not in custody during the encounter as contemplated by Miranda because “a policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time . “). Id. Cf. Mason, 2018 OK CR 37, 9 20, 433 P.3d at 1271 (where OSBI agents did not convey their intent to arrest the appellant before or during their interview with him, he failed to show entitlement to Miranda warnings prior to the interview or error in the trial court’s denial of his motion to suppress). We find the totality of the circumstances of Appellant’s interview demonstrates her freedom of movement was not significantly restricted such that she should have received the Miranda warning. Thus, the trial court did not abuse its discretion in denying 10 Appellant’s motion to suppress her statements and properly admitted the statements at trial. Proposition Two is denied. In her third proposition, Appellant argues that the trial court erred in refusing to instruct the jury on the lesser-related offense of second-degree manslaughter. She claims there was a question whether her action in throwing B.Z. into the bouncy seat was willful or malicious injury or use of unreasonable force as opposed to negligence. This Court reviews the trial court’s rulings on requested instructions for abuse of discretion. Eizember U. State, 2007 OK CR 29, I 111, 164 P.3d 208, 236. “An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue or a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented.” Runnels v. State, 2018 OK CR 27, I 41, 426 P. 3d 614, 624. The Oklahoma Legislature has codified the lesser included offense doctrine at 22 O.S.2011, § 916. Shrum U. State, 1999 OK CR 41, I 5, 991 P.2d 1032, 1034. Section 916 provides: “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt 11 to commit the offense.” “Prima facie evidence of the lesser included offense must be presented at trial in order to warrant giving the lesser included instruction.” Davis U. State, 2011 OK CR 29, I 101, 268 P.3d 86, 116 (citing Ball U. State, 2007 OK CR 42, I 32, 173 P.3d 81, 90). “Prima facie evidence of a lesser included offense is that evidence which would allow a jury rationally to find the accused guilty of the lesser offense and acquit him of the greater.” Id. “[A] defendant is entitled to an instruction on any theory of defense supported by the evidence, as long as the theory is tenable as a matter of law.” Cipriano U. State, 2001 OK CR 25, I 30, 32 P.3d 869, 876. When prima facie evidence meeting the legal criteria for the defense is presented, an instruction should be given. Jackson U. State, 1998 OK CR 39, I 65, 964 P.2d 875, 892. In order to warrant an instruction on second-degree manslaughter, evidence must have been presented which showed Appellant’s actions in shaking and throwing B.Z. into the bouncy seat were culpably negligent. Gilson U. State, 2000 OK CR 14, I 118, 8 P.3d 883, 918. “Culpable negligence is simply ‘the omission to do something which a reasonably careful person would do, or the lack of the usual and ordinary care and caution in the performance of an 12 act usually and ordinarily exercised by a person under similar circumstances and conditions.” Ball, 2007 OK CR 42, I 34, 173 P.3d at 91 (quoting Harless U. State, 1988 OK CR 155, I 5, 759 P.2d 225, 227). Contrary to Appellant’s assertion, no evidence was presented at trial that showed her actions in shaking and throwing B.Z. into the bouncy seat were culpably negligent. No rational adult could find shaking and throwing an infant in such a manner fits the definition of culpable negligence. The evidence showed that Appellant’s actions were willful or malicious and that they constituted the use of unreasonable force on B.Z. Appellant admitted she committed those acts. She had a long history of caring for infants without incident. Dr. Lanter testified it was unreasonable to throw an infant into an object. He further testified B.Z.’s injuries were consistent with being thrown into the bouncy seat and hitting the toy bar. Dr. Lori Berry and Dr. Conway both testified B.Z.’s injuries were the result of non-accidental trauma. Appellant’s own expert testified it was “not recommended” for anyone to throw a four-month-old baby. Zero evidence was presented that showed B.Z. was breathing normally at the time paramedics arrived at Appellant’s home. 13 Since there was not any evidence to negate Appellant’s willfulness or maliciousness or use of unreasonable force against B.Z., a lesser- related instruction on second-degree manslaughter was not warranted. See White v. State, 2019 OK CR 2, I 14, 437 P.3d 1061, 1067 (“[i]n the context of lesser-related offense instructions, relief is not warranted unless a rational juror could have rejected elements that distinguish the charged crime from the lesser alternative.”); Gilson, 2000 OK CR 14, I 113, 8 P.3d at 917 (“[o]nly if there is evidence which tends to negate an element of the greater offense, which would reduce the charge, should instructions on a lesser included offense be given.”). We find the evidence did not warrant an instruction on the lesser- related offense; thus, the trial court did not abuse its discretion in refusing to instruct the jury on second-degree manslaughter. Proposition Three is denied. In her final proposition, Appellant challenges her life sentence as excessive. The jury had only two options for punishment, life and life without parole. Appellant’s jury recommended the lesser punishment and the trial court sentenced her accordingly. We will not disturb a sentence within statutory limits unless, under the facts and circumstances of the case, it is SO excessive as to shock the 14 conscience of the Court. Baird v. State, 2017 OK CR 16, I 40, 400 P.3d 875, 886. As shown by the record and found by the jury, Appellant deliberately shook four-month-old B.Z. and threw her into a bouncy seat. B.Z. bounced out of the seat onto the floor. As a result of these actions, B.Z. sustained injuries which resulted in her death. The jury recommended the least punishment available for Appellant. Nothing about Appellant’s sentence shocks the conscience of this Court. Proposition Four is denied. DECISION The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY THE HONORABLE C. STEVEN KESSINGER, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL KEITH J. NEDWICK JAMES H. LOCKARD CHARLES DOUGLAS BOX 926 ASHLEY THUL NORMAN, OK 73070-0926 104 EAST EUFAULA ST. COUNSEL FOR APPELLANT NORMAN, OK 73069 COUNSEL FOR DEFENDANT 15 CHARISTY MILLER MIKE HUNTER SUANNE CARLSON ATTY GENERAL OF OKLAHOMA ASST. DISTRICT ATTORNEYS JULIE PITTMAN 201 SOUTH JONES ASST. ATTORNEY GENERAL NORMAN, OK 73069 313 N.E. 21ST ST. COUNSEL FOR THE STATE OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE OPINION BY: LUMPKIN, J. LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur in Result HUDSON, J.: Concur ROWLAND, J.: Concur in Result RA 16 ROWLAND, JUDGE, CONCURRING IN RESULTS: I concur in affirming Clark’s conviction and sentence, but I must disagree with a portion of the majority’s analysis of Proposition II. The majority opinion states, “Finally, even if the agents considered Appellant a suspect in B.Z.’s injuries, they never conveyed such a consideration to her.” In my view, it is quite clear that the questioning agents suspected Clark of involvement in B.Z.’s injuries and conveyed their suspicions to her. Throughout the interview, the agents accused Clark of lying and told her that they were skeptical of her story. This, however, is not dispositive of the issue of whether the interview was custodial. In Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d. 714 (1977), the defendant agreed to meet officers at the state patrol office SO they could “discuss something.” Id. at 493. During the interview, “[t]he officer further advised that the police believed defendant was involved in the burglary and [falsely stated that] defendant’s fingerprints were found at the scene.” Id. The Supreme Court found there was no custodial interrogation because “there [was] no indication that the questioning took place in a context where respondent’s freedom to depart was restricted in any way.” Id. at 495. The Supreme Court further held that “[T]he requirement of warnings [is not] imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.” Id. In this case, Clark agreed to meet with agents under the pretense of viewing photographs. The interview took place in a break room at the police department, and she was not restrained in any way. At the conclusion of the interview, Clark was free to leave and was not placed under arrest. The record shows that Clark was aware she was a suspect in B.Z.’s injuries. But, as in Mathiason, knowing she was suspect did not make the interview custodial. The interview was not custodial, and therefore Miranda warnings were unnecessary. I am authorized to state that Judge Kuehn joins in this writing.

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