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ORIGINAL *1044686467* IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA JAMES REX CLARK, NOT FOR PUBLICATION FILED Appellant, IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA V. OCT 31 2019 JOHN D. HADDEN STATE OF OKLAHOMA CLERK Case No. F-2017-1307 Appellee. ) ) OPINION LUMPKIN, JUDGE: Appellant James Rex Clark was tried by jury and convicted of four counts of Child Abuse by Injury (Counts I-IV) (21 O.S.Supp.2002, § 843.5(A)) and one count of First Degree Child Abuse Murder (Count V) (21 O.S.2001, § 701.7(C), Case No. CF-2017- 459 in the District Court of Pontotoc County.1 The jury recommended as punishment life imprisonment in each of Counts I- 1 Appellant was charged and tried jointly with his wife, Rebecca Faith Clark. The case was originally filed in the District Court of Seminole County. However, a motion for a change of venue filed by the defense was granted, and the case was transferred to the District Court of Pontotoc County. Rebecca Faith Clark was convicted on all counts and has filed a separate appeal. See Rebecca Faith Clark v. State, F-2017-1306. 1 IV and a five thousand dollar ($5,000.00) fine, and life imprisonment without the possibility of parole in Count V. The trial court sentenced Appellant according to the jury’s recommendations on imprisonment but rejected the recommendation for a fine. The sentences in Counts I-IV were ordered to be served concurrent to each other but consecutive to the sentence in Count V. It is from this judgment and sentence that Appellant appeals. Colton Clark and his older brother T.J.S. lived with Appellant and his wife/co-defendant Rebecca Faith Clark in rural Seminole County. The boys had been removed from the custody of their alcohol, drug addicted biological parents, and placed with Appellant, the boys’ biological uncle, and the co-defendant in the fall of 2003. T.J.S. was nine (9) years old and Colton was seven (7) years old. Approximately one year later, Appellant and the co-defendant (also referred to as Appellants) adopted the boys. In April 2006, the Appellants reported Colton missing. An extensive search for Colton was conducted. Local law enforcement responded as well as representatives from the Oklahoma State Bureau of Investigation and the Federal Bureau of Investigation. Hundreds of people searched the area on foot, horseback, and in vehicles. Bloodhounds, search and 2 rescue dogs, and cadaver dogs were brought in. Helicopter, penetrating radar, and drone searched the area around the Appellants’ home. No sign of Colton was ever found. The search was called off and the case went cold. When the search for Colton died down, the Appellants took T.J.S. to previously scheduled counseling sessions. During one visit, the therapist noticed that T.J.S. had black and swollen eyes and appeared fearful of Appellant. Appellant was overheard to tell T.J.S. it was his fault that Colton had disappeared and that he was the only person willing to take care of T.J.S. Appellant had told T.J.S. he was to tell the therapist that he blackened his own eyes by pressing his thumbs into them. When queried by the therapist, Appellant denied harming T.J.S. The comments and conduct of T.J.S. and Appellant caused the therapist great concern and she recommended in-patient treatment for T.J.S. because of his unsupportive home environment. In September 2006, T.J.S. ran away from the Appellants’ home. Approximately one week later, T.J.S. was found by the sheriff at a local trailer park. The sheriff had received a report that T.J.S. may have broken into a neighbor’s home. The Appellants had not reported T.J.S. as missing. T.J.S. told the sheriff he did not want to go back 3 to the Appellants’ home because he did not know what had happened to his brother and feared something bad was going to happen to him. When the sheriff notified the co-defendant that he had T.J.S. in custody, the co-defendant said to just keep him. T.J.S. was eventually placed in a foster home and ultimately adopted. His new family moved to Spain and then to Tennessee where T.J.S. graduated from high school and went to college on a baseball scholarship. He graduated from college and started his own business. In 2015, he read an article on the internet about his brother’s case and decided it was time to call the Seminole County authorities and tell them about his life with the Appellants and what he thought had happened to his brother. As a result of T.J.S.’s information and further investigation, Colton’s case was reopened. In 2017, a search warrant was executed for the Appellants’ home and property. Investigators thought it odd that the Appellants’ referred to Colton in the past tense. Appellant spontaneously stated to one of the investigators, “you didn’t find anything out at my place, did you?” When the investigator responded that they had not found Colton but had found other things, Appellant smirked and said, “[y]ou’re never going to find him.” The Appellants 4 were eventually charged and tried on four (4) counts of child abuse by injury (two (2) counts for each boy) and the first degree murder of Colton. The description T.J.S. gave at trial of the life he and his brother shared while living with the Appellants was grim. T.J.S. testified that when he and his brother first went to the Appellants’ home in 2003 as foster children, they were treated well and he and his brother were happy to live on the Appellants’ farm where there were ponds, fishing, animals, and space to run around. Both boys were enrolled and attended the local school. While they were behind academically, there were no reports of any serious disciplinary or behavior problems. In December 2004, after the Appellants had adopted them, the boys were withdrawn from school. The Appellants indicated they wanted to home school the boys. The boys were provided a desk, a math book, and reading plans. However, any schoolwork they were to do soon fell to the side as they were directed by the Appellants to give their primary attention to chores around the house and farm. T.J.S. testified that at some point during 2005, the Appellants’ attitudes toward him and his brother changed. The Appellants routinely accused the boys of stealing things from around the house. 5 When they denied the accusations, the boys were beaten with belts. The boys were accused of having deviant sexual thoughts regarding each other and the Appellants. They were accused of sexually molesting each other and animals on the property. They were ordered to write these thoughts down in a journal. When the boys denied having any inappropriate sexual thoughts or conduct, and refused to write SO in their journals, they were beaten. The beatings, which usually took place in Appellants’ bedroom, became more violent over time and included slapping, kicking, and punching, and progressed to the use of a broom, bamboo sticks, cattle prod, pocketknife, and other implements around the house and farm. T.J.S. described the co-defendant as an “open-handed hitter” while Appellant usually punched the boys in the face and stomach or hit them with objects. T.J.S. said the Appellants routinely cursed at them and called them “perverts”. T.J.S. testified the Appellants isolated them from other family members and neighbors. T.J.S. recalled that one evening in March 2006, they were eating dinner when Colton was accused of stealing a ring. Colton denied taking the ring and argued with Appellant for a minute or two before he was “snatched” up and taken to the Appellants’ bedroom. As he 6 finished his dinner, T.J.S. could hear the Appellants yelling and cursing at Colton and Colton screaming as he was hit. When T.J.S. had cleaned up the dishes, he went to the Appellants’ bedroom, as he did every night, to ask if they needed him to do anything else before he went to bed. Standing at the bedroom door, he saw the co- defendant slap Colton and observed that Colton’s face was already discolored and bruised and Colton was crying hysterically. Knowing he could do nothing for Colton, T.J.S. went to bed. At approximately 2:30 a.m., T.J.S. woke up to go to the bathroom. When he walked by the living room, he saw Colton lying on the sofa, covered in a green sleeping bag. Colton’s eyes were closed, his face was bruised, and there was blood around his ears and nose. The cartoon SpongeBob Square Pants was on the television. Thinking Colton had fallen asleep, T.J.S. walked past him and went back to bed. T.J.S. woke up again at approximately 5:15 a.m. for his morning chores. When he walked through the living room, Colton was no longer on the sofa. Appellant was standing in the kitchen, dressed, with his boots and coat on. This was strange as he was usually not dressed for the day at that early hour. T.J.S. asked Appellant where Colton was and was told he did not know and 7 he should go look outside or ask the co-defendant. T.J.S. went to the co-defendant’s bedroom, found her awake and dressed, which again was unusual for her at that early hour. She said she did not know where Colton was and that T.J.S. should ask Appellant. Thinking that Colton had gone outside to start their morning chores, T.J.S. dressed to go outside and look for him. As he left the house, he noticed that Colton’s coat and boots were by the door, items Colton would have needed if he had gone outside. T.J.S. checked all over the property for Colton and could not find him. He implored the Appellants to call the police. They refused and told T.J.S. not to tell anyone that Colton was gone or they would kill him. When T.J.S. insisted on calling the police, Appellant knocked him down and kicked him in the ribs. He told T.J.S. to stay inside the house unless he was doing chores SO none of the neighbors would notice there was only one boy at the house. Appellants also told T.J.S. that if anyone asked about Colton he was to say that Colton had either run away or been kidnapped by his biological father. Fearful of the Appellants, T.J.S. did as he was told. What seemed to T.J.S. to be three to four weeks later, a child welfare investigator from the Department of Human Services, Ms. 8 Harge, came to the Appellants’ home inquiring about the welfare of the boys. The Appellants told T.J.S. to say that Colton was at his grandmother’s house helping to fix a goat pen. T.J.S. did as he was told and in the presence of the Appellants, told Ms. Harge that he and his brother were fine. Ms. Harge scheduled a return visit and told the Appellants that Colton needed to be there for her to talk with him. During the next few days, the Appellants rehearsed a story for T.J.S. to tell Ms. Harge upon her return. He was to say that Colton either ran away as they were getting ready for a counseling appointment or their biological father kidnapped him. On the date of the return visit by Ms. Harge, Colton was not there. T.J.S. told Ms. Harge that Colton had run away. When Ms. Harge asked the co- – defendant about Colton, she said they were looking for him. When she asked Ms. Harge what they should do, Ms. Harge replied that they should call the police if he did not return home within a few hours. The police were called later that night and Colton was reported missing. A possible clue as to what happened to Colton came in 2013 when the Appellants’ had a storm shelter installed on their property. 9 Mr. Lehman recalled that while installing the shelter, he overheard Appellant cursing at the co-defendant, and saying that if anyone came on his property he would shoot them. As Mr. Lehman’s employee would need to make a return visit to the property to finish the install, he told Appellant not to shoot him. Appellant replied that if he shot him he would know what to do with the body. Appellant said he would put the body in a barrel, cook it, and feed it to his dogs. Whatever was left, he would throw in the river. Appellant commented that he had “done worse”. Appellant did not testify at trial. The co-defendant did testify and described the boys as extremely troubled and as “sexual deviants”. She denied abusing the boys, as well as any responsibility for Colton’s disappearance/murder. Further facts will be set forth as necessary. In Proposition I, Appellant contends he was denied a full and complete record of his trial thus preventing this Court from conducting a meaningful review of his case. Specifically, he points out approximately 30 bench conferences held out of the hearing of the jury which were not transcribed by the court reporter. He argues that in the absence of any agreement between the parties or order 10 from the court that the bench conferences would not be memorialized, the court’s failure to adhere to 20 O.S.2011, § 106.4(A) warrants reversal of his conviction or at the minimum remand to the District Court for further proceedings. Title 20 O.S.2011, § 106.4(A) provides in part that the court reporter shall make a full reporting of all the trial proceedings, including the statements of counsel and the court and the evidence. A review of the record shows no objections were raised by defense counsel to the lack of transcription. Appellant has therefore waived all but plain error review. See Higgins U. State, 1973 OK CR 59, I 20, 506 P.2d 575, 578 (the failure to “seasonably” insist on transcription waives any error). Under the plain error test set forth in Simpson V. State, 1994 OK CR 40, 876 P.2d 690, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his substantial rights. See Duclos U. State, 2017 OK CR 8, I 5, 400 P.3d 781, 783. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. 11 In Parker v. State, 1994 OK CR 56, 887 P.2d 290 the appellant argued in his capital appeal that he was denied a fair opportunity to appeal his conviction because approximately 34 bench conferences were not transcribed on the record. The Court rejected the appellant’s request for relief stating that while the appellant claimed the bench conferences were “critical”, he “does not allege any error arising from a ruling of the trial court made during one of the conferences.” Id., 1994 OK CR 56, 99 23-25, 887 P.2d at 294. The Court further said: Because the bench conferences were held outside the hearing of the jury, we are not inclined to include them in a blanket rule which would require automatic reversal as is the case with other portions of the trial such as jury selection. Lack of record of bench conferences does not hinder our ability to conduct the mandatory sentence review required under the Oklahoma Statutes. Conferences at the bench, while potentially effecting the actual evidence presented or the manner in which the evidence is presented, do not in and of themselves influence our determination of “whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.” Section 701.13(C)(1). Problems involving the rulings resulting from the conferences are easily appealed in their own right. 1994 OK CR at I 26, 887 P.2d at 294. Appellant acknowledges our ruling in Parker but argues his case is distinguishable as he has specifically alleged error arising from the 12 rulings “that may have been made during the presentation of evidence at the unrecorded bench conferences.” He asserts that “through no fault of his own, [he] is unable to support issues raised in this brief with any argument or ruling that may have been made during the unrecorded bench conference.” None of the allegations of error raised in the appellate brief relate to any of the referenced bench conferences. No specific errors have been alleged as a result of the unrecorded bench conferences. A review of the cited bench conferences shows most of them concerned “housekeeping issues” made after the conclusion of a portion of voir dire, before and after breaks in the proceedings, before the publication of an exhibit, before an oral instruction was given to the jury, and after an admonishment was given to the courtroom gallery about talking out loud. Other bench conferences were held concerning the excusal of a potential juror for cause with no objection raised by either party, before a record was made on three objections by the State which were overruled, and before the court made a record concerning his comments about the handling of a witness. Appellant’s claim that rulings detrimental to him “may have been 13 made” at these conferences is pure speculation and not sufficient to warrant relief. While this Court “strongly recommends all portions of the trial be transcribed, including bench conferences and conferences in chambers”, this Court will not grant relief when the appellant fails to either allege or demonstrate error as a result of the non-transcription. Pickens v. State, 2001 OK CR 3, I 45, 19 P.3d 866, 881. Here, Appellant has failed to show any error as he has failed to specify any errors resulting from the unrecorded bench conferences. In the absence of any error, there is no plain error. This proposition is denied. In Proposition II, Appellant contends the trial court improperly admitted victim impact evidence during the guilt stage of trial. Specifically he complains about testimony from T.J.S. about Colton’s personality, that they had a close relationship, and that Colton would not have run off without telling him. No objection was raised to this testimony; therefore, our review is for plain error under the standard set forth above. Martinez U. State, 2016 OK CR 3, I 64, 371 P.3d 1100, 1115 (citing Simpson, 1994 OK CR 40, I 2, 876 P.2d at 692- 93). 14 Initially, the testimony was not introduced as victim impact evidence as provided in 21 O.S.Supp.2014, § 142A-8. Further, the testimony was relevant in showing the Colton had not just run away. The record shows the Appellants vilified their adopted sons in order to deflect blame for Colton’s disappearance off of them. They did SO by painting the boys as “little perverts” who could barely function in polite society and who had to be pulled out of school for acting in sexually inappropriate ways. In order to rebut the Appellants’ characterization of the boys and their claim that Colton merely ran away, the prosecutor asked T.J.S. to recall what he knew about Colton and his habits and behavior. T.J.S. testified in part that while Colton was “ornery”, he was a typical kid who did not abuse animals as the Appellants’ claimed nor did he act out in sexually inappropriate ways as claimed by the Appellants. T.J.S. said he and his brother “lived through nine years of hell together” and would have done anything for each other. T.J.S. testified there was “no doubt” in his mind that Colton “didn’t just jump up and run away” and that there was no way Colton would have just left him. This testimony was relevant evidence properly admitted as it tended to show that Colton did not just run away from 15 the Appellants. See 12 O.S.2011, § 2401 et.seq. We find no error, and thus no plain error in its admission. This proposition is denied. In Proposition III, Appellant claims he was denied a fair trial by the admission of extrinsic prejudicial evidence in the form of State’s Exhibit 6. Donald Newsom of the National Center for Missing and Exploited Children testified he became involved in the case in June 2006, approximately two months after Colton’s disappearance. Based upon his investigation, including interviews with family members, he prepared a timeline of events he thought would be helpful in the investigation. This timeline was blown up and marked as State’s Exhibit 11A and 11B. The prosecutor noted the timeline was lengthy and had to be put on two 81/2 by 11 pages. Exhibits 11A and 11B were admitted without objection. With defense counsel’s agreement, the prosecutor noted that the exhibits had been redacted to remove references to polygraph examinations, and certain sexual allegations regarding the Appellants. State’s Exhibit 6 appears to be a smaller, unredacted version of Exhibits 11A and B. Appellant admits there is nothing in the transcripts which show Exhibit 6 was ever admitted by the trial court for consideration by the jury. Nevertheless, he argues it appears 16 Exhibit 6 was provided to the jury during deliberations. This was error, according to Appellant, as there was at least the reasonable possibility that he was harmed by the jury viewing references to polygraphs contained in the unredacted Exhibit 6. A review of the record shows that State’s Exhibit 6 was never actually offered by the State or even admitted into evidence. Neither Mr. Newsom, nor any other witness, identified a State’s Exhibit 6. In Volume 7 of the trial transcripts, entitled “Volume 7 Transcripts of Exhibits of Jury Trial”, an Exhibit 6 is listed. However, this Exhibit, an unredacted copy of Exhibit 11 bears a different color sticker from the rest of the State’s exhibits. Neither the record nor Appellant provide a page reference to the transcript where the exhibit was admitted. Therefore, it is not all clear that State’s Exhibit 6 was actually admitted into evidence and given to the jury. To the extent State’s Exhibit 6 was admitted, any error was harmless. The timeline includes approximately 32 entries detailing the investigation into Colton’s disappearance. There are four (4) references to the Appellants agreeing and then refusing to take a polygraph. While the results of a polygraph are inadmissible, see Matthews v. State, 1998 OK CR 3, I 18, 953 P.2d 336, 343, this 17 isolated reference, when considered in light of the evidence of Appellant’s guilt, did not result in an unreliable verdict. See Thornburg U. State, 1999 OK CR 32, 91 10-11, 985 P.2d 1234, 1242 (superseded by statute on other grounds by Coddington v. State, 2006 OK CR 34, 142 P.3d 437). This proposition of error is denied. In Proposition IV, Appellant claims he was denied a fair trial by prosecutorial misconduct during opening statements, T.J.S.’s testimony, and closing argument. No contemporaneous objections were raised to the comments now challenged therefore our review is for plain error under the standard set forth above. See Malone v. State, 2013 OK CR 1, I 40, 293 P.3d 198, 211. We evaluate alleged prosecutorial misconduct within the context of the entire trial, considering not only the propriety of the prosecutor’s actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel. Sanders U. State, 2015 OK CR 11, I 21, 358 P.3d 280, 286. We will reverse the judgment or modify the sentence only where grossly improper and unwarranted argument affects a defendant’s rights. Id. Relief will be granted on claims of prosecutorial misconduct only where the prosecutor committed misconduct that SO infected the defendant’s 18 trial that it was rendered fundamentally unfair, such that the jury’s verdicts should not be relied upon. Id. Appellant first asserts that during opening statement, the prosecutor “went out of his way to inflame the jury’s passion and prejudice” and improperly vouch for T.J.S.’s credibility by stating that T.J.S. was “now ready, now recovered, and ready to testify truthfully.” “Opening statements are intended to show the jury what evidence the parties intend to present and what the parties expect the evidence to prove, and to prepare jurors’ minds for the evidence that will be presented.” Myers v. State, 2006 OK CR 12, IT 55, 133 P.3d 312, 329, overruled on other grounds by Davis v. State, 2018 OK CR 7, 419 P.3d 271. Impermissible vouching occurs when the prosecutor gives his personal assurance of a witness’s veracity. Warner v. State, 2006 OK CR 40, IT 24, 144 P.3d 838, 860 overruled on other grounds, Taylor v. State, 2018 OK CR 6, 419 P.3d 265. To say that a witness is prepared to testify truthfully is not improper vouching. Further, the prosecutor’s comment was based on the anticipated testimony of T.J.S. as based upon that given at the Preliminary Hearing. We find no error in the prosecutor’s statements as they appropriately prepared the jury for the State’s expected testimony. 19 Appellant next argues the prosecutor improperly elicited irrelevant and prejudicial evidence from T.J.S. by asking him to tell the jury about his life after leaving the Appellants’ custody and about Colton’s life before he was killed. In reference to Proposition II, Appellant asserts this questioning brought forth improper victim impact evidence clearly designed to insert passion and prejudice into the case. As addressed in Proposition II, testimony by T.J.S. about Colton’s life and personality was relevant to show that it was not in Colton’s nature to just run away without contacting his brother. Inquiry into T.J.S.’s life after he left the Appellants’ custody was relevant in rebutting the Appellants’ claims that T.J.S. could not be trusted or disciplined, that he acted out in sexually inappropriate ways, and that he essentially had to be removed from society and kept isolated. The testimony also showed how the prosecution against the Appellants evolved after authorities had essentially closed the case on Colton’s disappearance. Appellant’s concerns about the emotional impact of this testimony was cured by instructions directing the jury not to let sympathy or sentiment enter into their 20 deliberations. There is no indication the verdicts in this case were based on anything other than the evidence. Finally, Appellant argues the prosecutor cast aspersions on defense counsel by discussing the failed attempts to locate Colton. Prosecutors should not cast aspersions on opposing counsel or ridicule the defense. Hanson V. State, 2003 OK CR 12, I 14, 72 P.3d 40, 49. The comments in the present case were not directed at defense counsel, but at Appellant, and were based on testimony by Chief Hanson wherein he described in detail all of the leads provided by the Appellants and others into Colton’s disappearance which proved only to be dead-ends. Appellant also finds error in the prosecutor’s arguments regarding the circumstances surrounding Colton’s death and the last time T.J.S. saw Colton. The majority of the argument was reasonably based on the evidence. While certain comments may have exceeded the bounds of proper comment, we cannot find that whether considered individually or cumulatively they were SO prejudicial as to deny Appellant a fair trial. See Childress v. State, 2000 OK CR 10, I 31, 1 P.3d 1006, 1014; Slaughter U. State, 1997 OK CR 78, I 161, 950 P.2d 839, 879. 21 Having thoroughly reviewed the challenged comments in this case, we find the prosecutor’s conduct was not SO improper or prejudicial SO as to have infected the trial SO that it was rendered fundamentally unfair. This was an emotional trial and some of the comments by both sides may have crossed the lines. However, arguments of counsel generally carry less weight with a jury than do instructions from the court. “The former are usually billed in advance to the jury as matters of argument, not evidence, and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.” Boyde U. California, 494 U.S. 370, 110 S.Ct. 1190, 1200, 108 L.Ed.2d 316 (1990). Closing arguments of counsel are not evidence, Smith v. State, 1986 OK CR 158, 25, 727 P.2d 1366, 1372, and the jury is SO informed. The evidence in this case strongly supported the State’s theory that the Appellants’ physically abused Colton and T.J.S. and that this abuse resulted in Colton’s death. Finding no error in the prosecutor’s comments, we find no plain error. This proposition is denied. In Proposition V, Appellant claims he was denied the effective assistance of counsel. This Court reviews ineffective assistance of 22 counsel claims under the two-part test mandated by the United States Supreme Court in Strickland U. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Frederick U. State, 2017 OK CR 12, I 158, 400 P.3d 786, 825, (overruled on other grounds, Williams v. State, 2018 OK CR 15, I 51, n.1., 422 P.3d 752, 762, n.1). “The Strickland test requires an appellant to show: (1) that counsel’s performance was constitutionally deficient; and (2) that counsel’s deficient performance prejudiced the defense.” Id. “Unless the appellant makes both showings, ‘it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” Id. “Appellant must overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance and demonstrate that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy.” Id., 2017 OK CR 12, I 159, 400 P.3d at 825-26. Appellant first claims counsel was ineffective for failing to ensure that a complete record was prepared for appeal. Referencing Proposition I, Appellant argues counsel’s failure denied him effective 23 appellate advocacy. As addressed in Proposition I, none of the selected bench conferences were the basis for any allegations of error raised in the appellate brief. Appellant has therefore failed to show the record is incomplete, and we will not find trial counsel ineffective for failing to ensure the recording of all bench conferences. Appellant also finds counsel ineffective for failing to object to the admission of State’s Exhibit 6. As addressed in Proposition III, there is no indication the exhibit was ever admitted into evidence and shown to the jury. Therefore, Appellant has not shown any prejudice resulting from any failure on counsel’s part to raise an objection. Appellant next argues counsel was ineffective for failing to object to the comments challenged as prosecutorial misconduct in Proposition IV. As addressed above, the prosecutor’s comments were based on the evidence and reasonable inferences therefrom. Any objections from counsel would have been denied. We will not find trial counsel ineffective for failing to raise objections that would have been overruled. Eizember v. State, 2007 OK CR 29, I 155, 164 P.3d 208, 244. Appellant argues counsel was ineffective for failing to object to the admission of improper victim impact evidence. As addressed in 24 Proposition II, the challenged evidence was properly admitted, relevant evidence. Any objection on the grounds of improper victim impact evidence would have been overruled. Finally, Appellant finds counsel ineffective for failing to thoroughly impeach T.J.S. with the “multitude of prior inconsistent statements available”. Specifically, he directs us to records admitted into evidence from Parkside Hospital which showed T.J.S. admitted to sexually and physically abusing Colton, and to a history of deviant sexual thoughts and acting out in sexually inappropriate ways. Appellant argues this evidence painted a very different picture of T.J.S. than that presented by the State, and counsel was ineffective for failing to utilize the records. T.J.S. testified that while he lived with the Appellants and for a time after he left their custody, he was in counseling. He testified that while living with the Appellants, he was forced to write about having sexual thoughts and sexual interactions with Appellants, animals, and other people. T.J.S. denied such thoughts and actions, but said he wrote in his journal as Appellants’ directed in order to avoid further abuse. He testified that it was not until he had been in therapy after 25 leaving the Appellants that he was able to open up and fully reveal what had happened while he lived with them. Counsel thoroughly cross-examined T.J.S. on the journal writings. Many of the records from Parkside Hospital now identified by Appellant referenced these writings. To cross-examine T.J.S. with each of the reports referencing these writings would have been cumulative. Further, in many instances it would have only reinforced T.J.S.’s claims of the outlandish things the Appellants forced the boys to do and write. Counsel clearly established that T.J.S. had made prior inconsistent statements. Counsel’s decision not to impeach T.J.S. with details in the Parkside records was reasonable trial strategy. Appellant’s claims of ineffectiveness merely show that appellate counsel would have tried the case differently from trial counsel. Absent a showing of incompetence, the Appellant is bound by the decisions of his counsel and mistakes in tactic and trial strategy do not provide grounds for subsequent attack”. Lee U. State, 2018 OK CR 14, I 15, 422 P.3d 782, 786-787 (citing Shultz v. State, 1991 OK CR 57, I 9, 811 P.2d 1322, 1327). We will not find counsel ineffective for pursuing strategies different than what appellate counsel might have followed. 26 Having thoroughly reviewed the record, and Appellant’s allegations of ineffectiveness, we find defense counsel’s performance in this case did not “so undermine the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Warner, 2006 OK CR 40, I 206, 144 P.3d at 893 (quoting Strickland, 466 U.S. at 686, 104 S.Ct. at 2064). In Proposition VI, Appellant asserts that cumulative error warrants a new trial or a modification of his sentence. A cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Frederick U. State, 2017 OK CR 12, I 202, 400 P.3d 786, 832-33. Having found no errors warranting reversal or modification, we find relief is not warranted upon a cumulative error argument. Lott U. State, 2004 OK CR 27, 166, 98 P.3d 318, 357. This proposition of error 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 PONTOTOC COUNTY THE HONORABLE GEORGE BUTNER, DISTRICT JUDGE 27 APPEARANCES AT TRIAL APPEARANCES ON APPEAL ROBERT L. BUTLER WYNDI THOMAS HOBBS 320 N. BROADWAY OKLAHOMA INDIGENT SHAWNEE, OK 74801 DEFENSE SYSTEM COUNSEL FOR THE DEFENDANT P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT PAUL B. SMITH MIKE HUNTER DISTRICT ATTORNEY ATTORNEY GENERAL OF 105 W. 13TH ST. OKLAHOMA ADA, OK 74820 JENNIFER B. WELCH COUNSEL FOR THE STATE ASST. ATTORNEY GENERAL 313 N.E. 21ST ST. OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE OPINION BY: LUMPKIN, J. LEWIS, P.J.: Concur KUEHN, V.P.J. Concur HUDSON, J.: Concur ROWLAND, J.: Concur RA 28

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