Holly Tegan Zuniga-Griffin v The State of Oklahoma

F-2017-994

Filed: Nov. 8, 2018

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Holly Tegan Zuniga-Griffin appealed her conviction for Enabling Child Abuse. Her conviction and sentence were set to ten years in prison. Judge Rowland dissented. In this case, Holly left her three-year-old son with her seventeen-year-old boyfriend, even though she knew he had harmed the child before. The boy got very hurt and had many bruises when he went to the hospital. Holly made different statements to the police and hospital staff, some of which she later admitted were not true. Holly raised several reasons for her appeal, but the court found that she had enough warning about the law, and there was enough proof that she knew her child was in danger. The court decided that the sentence was fair because the child's injuries were very serious. Additionally, they did not find any errors in the trial that affected the outcome. Therefore, they confirmed her conviction and sentence.

Decision

The Judgment and Sentence of the District Court of Muskogee County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the statute related to enabling child abuse unconstitutionally vague, both on its face and as applied to the appellant?
• Was there sufficient evidence to convict the appellant, specifically regarding her knowledge or reason to know that her child was at risk?
• Was the appellant denied due process of law due to the trial court's failure to properly instruct the jury?
• Did the court err by allowing a nurse to give an unqualified "expert" opinion?
• Was there a denial of due process when the state failed to disclose favorable evidence?
• Did the appellant receive ineffective assistance of counsel?
• Was the appellant's sentence shockingly excessive?
• Did cumulative errors deprive the appellant of a fair proceeding and a reliable outcome?

Findings

• the court erred
• evidence was sufficient
• no error
• no error
• no violation of Brady
• no ineffective assistance of counsel
• sentence was not excessive
• cumulative errors did not warrant relief

F-2017-994

Nov. 8, 2018

Holly Tegan Zuniga-Griffin

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, JUDGE:

Appellant, Holly T. Zuniga-Griffin, was convicted by a jury in Muskogee County District Court, Case No. CF-2016-912, of Enabling Child Abuse (21 O.S.Supp.2014, § 843.5(B)). On September 19, 2017, the Honorable Michael Norman, District Judge, sentenced her to ten years imprisonment, in accordance with the jury’s recommendation. This appeal followed. Appellant raises eight propositions of error in support of her appeal:

PROPOSITION I. THE STATUTES RELATED TO ENABLING CHILD ABUSE ARE UNCONSTITUTIONALLY VAGUE, BOTH ON THEIR FACE AND AS APPLIED TO APPELLANT.

PROPOSITION II. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT APPELLANT. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT KNEW OR SHOULD HAVE KNOWN THAT HER CHILD WAS AT RISK. 1 Appellant must serve at least 85% of her sentence before parole consideration. 21 O.S.Supp.2015, § 13.1(14).

PROPOSITION III. APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY.

PROPOSITION IV. THE COURT ERRED BY ALLOWING NURSE GREEN TO GIVE AN UNQUALIFIED EXPERT OPINION.

PROPOSITION V. APPELLANT WAS DENIED DUE PROCESS WHEN THE STATE FAILED TO DISCLOSE FAVORABLE EVIDENCE.

PROPOSITION VI. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

PROPOSITION VII. APPELLANT’S SENTENCE WAS SHOCKINGLY EXCESSIVE.

PROPOSITION VIII. CUMULATIVE ERRORS DEPRIVED APPELLANT OF A FAIR PROCEEDING AND A RELIABLE OUTCOME.

After thorough consideration of these propositions, and the record before us on appeal, we affirm. Appellant was convicted of leaving her three-year-old son in the care of her seventeen-year-old boyfriend, while knowing, or having reason to know, that her boyfriend had used (and might continue to use) unreasonable physical force on the child. On an evening in August 2016, while in the boyfriend’s care, the child sustained a subdural hematoma; when hospitalized, he had bruises covering his body, including his forehead, face, eye, ear, buttocks and penis. Witnesses testified to incriminating statements Appellant made, suggesting knowledge that her boyfriend had used unreasonable force on the child before. After the child was hospitalized, Appellant insisted 2 the two of them get their stories straight before talking to authorities.2 Appellant gave police and hospital staff inconsistent accounts of how her son was injured, and later admitted that some of those statements were false. At trial, Appellant conceded that she now believed her boyfriend had abused her son, but she maintained she had no reason to suspect he would do so.

In Proposition I, Appellant claims the statute under which she was charged, 21 O.S.Supp.2014, § 843.5(B) (supplemented with definitions from 10A O.S.Supp.2016, § 1-1-105), is unconstitutionally vague, and does not provide sufficient notice of what is proscribed. She did not raise this claim below, so our review is only for plain error. To obtain relief, she must prove a plain or obvious error affected the outcome of the proceeding. We will correct plain error only if the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Engles v. State, 2015 OK CR 17, ¶ 2, 366 P.3d 311, 312. Since Appellant does not claim § 843.5(B) implicates First Amendment concerns, we need not consider facial attacks to it, or how the statute might operate in hypothetical situations.³ We have previously rejected similar challenges to this statute, finding its terms sufficiently specific to place citizens on notice of what their responsibilities as parents and caregivers are. Gilson v. State, 2000 OK CR 14, ¶¶ 90-93, 8 P.3d 883, 913-14. We find no reason to revisit this issue. Proposition I is denied.

In Proposition II, Appellant claims the evidence was insufficient to show that she knew, or reasonably should have known, that placing her son in her boyfriend’s care was likely to result in the child’s harm. We disagree. Considering the many inconsistent accounts Appellant gave about how the child was injured (most of which were fanciful, and some of which she admitted were false), medical testimony suggesting ongoing physical abuse had occurred, and Appellant’s incriminating statements to her boyfriend and others, a rational juror could easily conclude, beyond any reasonable doubt, that Appellant not only should have known, but did know that placing her child in her boyfriend’s care meant placing the child in danger. The evidence supports the conviction. Johnson v. State, 1988 OK CR 54, ¶¶ 5-8, 751 P.2d 1094, 1096. Proposition II is denied.

In Proposition III, Appellant points to four Uniform Jury Instructions that she claims should have been given to her jury. She did not request these instructions at trial, so our review is only for plain error. We find error with regard to at least three of the four instructions; had they been requested, they would have been appropriate. However, in light of the totality of evidence, and the circumstances relevant to each instruction in particular, we are confident that no prejudice occurred. Malone v. State, 2007 OK CR 34, ¶¶ 36-37, 168 P.3d 185, 200-01. Appellant claims that her friend, Michaela Bassard, was an accomplice under the law, and that her testimony had to be corroborated (OUJI-CR (2nd) Nos. 9-25 to 9-32). Because Bassard occasionally stayed at Appellant’s home, Appellant claims she became equally responsible for the child’s well-being. See 5 10A S.Supp.2016, § 1-1-105(51). We need not decide whether accomplice instructions would have been warranted if trial counsel had asked for them, because any omission was harmless; Bassard’s testimony was strongly corroborated in several respects. Wade v. State, 1981 OK CR 14, ¶ 12, 624 P.2d 86, 90. Other witnesses heard Appellant make incriminating statements to her boyfriend. See footnote 2, Supra. The incriminating text messages Bassard sponsored (introduced without objection) spoke for themselves, and did not themselves require corroboration. Appellant also claims the jury should have been cautioned that Bassard’s prior felony convictions affected her credibility (OUJI-CR (2nd) No. 9-22). Bassard’s criminal history was thoroughly explored at trial, and we believe her credibility was sufficiently called into question before the jury. Appellant points out that the court omitted one of several Uniform Instructions addressing direct and circumstantial evidence (OUJI-CR (2nd) No. 9-2). Because the law makes no distinction between direct and circumstantial evidence, and because other instructions communicated this concept, we find no prejudice. Lay v. State, 2008 OK CR 7, ¶¶ 29-30, 179 P.3d 615, 623, overruled on other grounds, Harmon v. State, 2011 OK CR 6, 248 P.3d 918.

Finally, Appellant claims the trial court should have instructed her jury on how to determine the voluntariness of her statements to police and hospital personnel (OUJI-CR (2nd) No. 9-12). Of the two written statements Appellant gave to police, she admitted one was false, and maintained the other was true. She did not deny giving information to an emergency-room nurse; she simply disagreed with some of the details about the statement. Importantly, the State never claimed any of these statements were true; in none of them did Appellant ever make any incriminating admissions. The statements were only incriminating by dint of their mutual inconsistency. Any error in failing to give OUJI-CR (2nd) No. 9-12 was harmless. Harger v. State, 1983 OK CR 30, ¶ 13, 665 P.2d 827, 830. Proposition III is denied.

In Proposition IV, Appellant claims the trial court erred in overruling her objection to a pediatric nurse’s opinion regarding the relative ages of the victim’s bruises. She claims the nurse was not qualified to give such opinions, that the opinions lacked foundation, and that they told the jury what verdict to reach. We disagree. Defense counsel objected to the nurse’s opinion for lack of foundation only. When the prosecutor asked foundational questions, counsel withdrew his objection and explored the matter on cross-examination. We therefore review this claim for plain error. To obtain relief, she must prove a plain or obvious error affected the outcome of the proceeding. We will correct plain error only if the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Engles, 2015 OK CR 17, ¶ 2, 366 P.3d 311, 312. This witness had specialized training and considerable experience in the matter about which she testified. She repeatedly qualified her opinions and the limits of her expertise. Welch v. State, 2000 OK CR 8, ¶ 22, 2 P.3d 356, 369. The fact that the nurse’s opinions differed slightly from those of the State’s physician expert, Dr. Passmore, does not render them inadmissible. Both witnesses agreed that the number, variety, size, shape, location, and color of the child’s bruises suggested not an isolated event, but an ongoing pattern of physical abuse. The fact that these opinions embraced the ultimate issue does not render them improper. Id. at ¶ 23, 2 P.3d at 369. There was no error here. Proposition IV is denied.

In Proposition V, Appellant claims the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by failing to turn over photos of the victim taken by one of Appellant’s friends at a children’s birthday party a week or so before the instant injury. Invoking the Due Process Clause of the Fifth Amendment to the United States Constitution, Brady obligates prosecutors to disclose any exculpatory evidence to the accused. That obligation extends to information even if the prosecutor is not personally aware of it; good faith is not a defense. Still, relief is not warranted unless the evidence is material – unless there is a reasonable probability that it would have affected the outcome of the trial. Bramlett v. State, 2018 OK CR 19, ¶ 28, 422 P.3d 788, 797. Here, defense counsel was made aware of the photos during trial, but he never attempted to use them or made any further comment about them. 4 On this record, we decline to hold that Appellant was denied access to material, exculpatory evidence. Proposition V is denied.

In Proposition VI, Appellant faults her trial counsel for (1) failing to request several jury instructions (see Proposition III) and (2) failing to object to medical opinion testimony (see Proposition IV). To prevail 4 Presumably, these photos corroborated the friend’s testimony that she saw no visible bruising on the child at that time. Other witnesses made similar claims. The prosecutor was unaware of the photos but promised to look for them during a recess. It seems likely that the witness who took the photos did so with a digital device and could easily have provided the defense with copies herself. In any event, we can safely presume from the record’s silence that defense counsel ultimately found no material value to the photos.

on a claim that counsel’s performance violated her Sixth Amendment right to reasonably effective assistance, Appellant must show that counsel made an objectively unreasonable decision which undermines confidence in the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); Sanchez v. State, 2009 OK CR 31, ¶ 98, 223 P.3d 980, 1012. With regard to the instructions discussed in Proposition III, we found no reasonable probability of prejudice which would warrant relief. With regard to the testimony discussed in Proposition IV, we found no error. Failure to meet either of prong of Strickland’s test is fatal to an ineffective-counsel claim. Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206. Proposition VI is therefore denied.

In Proposition VII, Appellant claims her sentence is excessive and should be modified. Given that the victim’s injuries were extensive and permanently disabling, and the sentence was within the statutory range, we cannot say the sentence imposed was shocking to the conscience. Head v. State, 2006 OK CR 44, ¶ 27, 146 P.3d 1141, 1148. Proposition VII is denied.

In Proposition VIII, Appellant claims the cumulative effect of all errors warrants relief. We have already determined that the instruction errors identified in Proposition III did not, individually or cumulatively, result in prejudice; no other errors have been identified. Postelle v. State, 2011 OK CR 30, ¶ 94, 267 P.3d 114, 146. Proposition VIII is therefore denied.

DECISION

The Judgment and Sentence of the District Court of Muskogee County is AFFIRMED.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 1 Appellant must serve at least 85% of her sentence before parole consideration. 21 O.S.Supp.2015, § 13.1(14).
2. 2 When Appellant's boyfriend carried the unconscious child into Appellant's workplace, her first comment was, "What have you done to him?" On the way to the hospital, Appellant told her boyfriend, "You've got to get me information because they're going to ask me what's going on. We've got to get our story straight here. Come on man up." In text messages from the hospital to her friend Michaela Bassard, Appellant wrote, "DO NOT COME INSIDE THE MUSKOGEE HOSPITAL. CALL ME WHEN YOU GET OFF WORK." She told Bassard to keep her boyfriend away from the hospital staff "until we get on the same pages [sic]." After the child was transferred to a Tulsa hospital, Appellant texted Bassard, "DHS is here. DO NOT TALK TO HER. DO NOT LET [my boyfriend] TALK TO HER." On the way home from the hospital, Bassard heard Appellant tell her boyfriend, "You can't spank somebody that's like three years old with a belt," and "I told you not to be spanking him with a belt."
3. 3 Vagueness challenges to statutes that do not implicate First Amendment freedoms "must be examined in the light of the facts of the case at hand." United States U. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). "Objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk." Maynard v. Cartwright, 486 U.S. 356, 361-62, 108 S.Ct. 1853, 1857-58, 100 L.Ed.2d 372 (1988).
4. 4 On this record, we decline to hold that Appellant was denied access to material, exculpatory evidence. Proposition V is denied.
5. 5 Presumably, these photos corroborated the friend's testimony that she saw no visible bruising on the child at that time. Other witnesses made similar claims. The prosecutor was unaware of the photos but promised to look for them during a recess. It seems likely that the witness who took the photos did SO with a digital device, and could easily have provided the defense with copies herself. In any event, we can safely presume from the record's silence that defense counsel ultimately found no material value to the photos.
6. 6 The fact that the nurse's opinions differed slightly from those of the State's physician expert, Dr. Passmore, does not render them inadmissible. Both witnesses agreed that the number, variety, size, shape, location, and color of the child's bruises suggested not an isolated event, but an ongoing pattern of physical abuse. The fact that these opinions embraced the ultimate issue does not render them improper. Id. at P 23, 2 P.3d at 369.
7. 7 To obtain relief, she must prove a plain or obvious error affected the outcome of the proceeding. We will correct plain error only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings. Engles, 2015 OK CR 17, P 2, 366 P.3d 311, 312.
8. 8 Johnson U. State, 1988 OK CR 54, P 5-8, 751 P.2d 1094, 1096.
9. 9 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
10. 10 Harger v. State, 1983 OK CR 30, P 13, 665 P.2d 827, 830.
11. 11 Lay U. State, 2008 OK CR 7, P 29-30, 179 P.3d 615, 623, overruled on other grounds, Harmon U. State, 2011 OK CR 6, 248 P.3d 918.
12. 12 Head v. State, 2006 OK CR 44, P 27, 146 P.3d 1141, 1148.
13. 13 Postelle v. State, 2011 OK CR 30, P 94, 267 P.3d 114, 146.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5 (2014) - Enabling Child Abuse
• Okla. Stat. tit. 10A § 1-1-105 (2016) - Definitions
• Okla. Stat. tit. 21 § 13.1 (2015) - Parole Consideration
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentence Modification
• Okla. Stat. tit. 22 § 1 (2018) - Rules of Criminal Appeals

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:

• Bramlett v. State, 2018 OK CR 19, I 28, 422 P.3d 788, 797
• Engles v. State, 2015 OK CR 17, I 2, 366 P.3d 311, 312
• Gilson v. State, 2000 OK CR 14, I 90-93, 8 P.3d 883, 913-14
• Johnson v. State, 1988 OK CR 54, I 5-8, 751 P.2d 1094, 1096
• Lay v. State, 2008 OK CR 7, I 29-30, 179 P.3d 615, 623
• Harger v. State, 1983 OK CR 30, I 13, 665 P.2d 827, 830
• Malone v. State, 2007 OK CR 34, I 36-37, 168 P.3d 185, 200-01
• Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206
• Head v. State, 2006 OK CR 44, I 27, 146 P.3d 1141, 1148
• Postelle v. State, 2011 OK CR 30, I 94, 267 P.3d 114, 146
• Weeks v. State, 2015 OK CR 16, I 16, 362 P.3d 650, 654
• Sanchez v. State, 2009 OK CR 31, I 98, 223 P.3d 980, 1012