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F-2018-391

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Zachary Troy King v The State Of Oklahoma

F-2018-391

Filed: Jun. 20, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Zachary Troy King appealed his conviction for Child Abuse by Injury. Conviction and sentence: 20 years imprisonment, with 15 years suspended. Judge Kuehn dissented.

Decision

The Judgment and Sentence of the District Court of Custer County 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.

Issues

  • Was the State's evidence sufficient to establish beyond a reasonable doubt that Mr. King committed the crime of child abuse by injury?
  • Did the trial court abuse its discretion by overruling the defense's request for a mistrial and allowing the introduction of irrelevant or cumulative evidence?
  • Did the cumulative effect of prosecutorial misconduct deprive Mr. King of a fair trial in violation of the Fourteenth Amendment and the Oklahoma Constitution?
  • Did cumulative errors deprive Mr. King of a fair proceeding and a reliable outcome?

Findings

  • the evidence was sufficient to establish beyond a reasonable doubt that Mr. King committed the crime of child abuse by injury
  • the trial court did not abuse its discretion in admitting testimony from the victim's caregivers
  • no prosecutorial misconduct affected Appellant's trial
  • no error requires relief; therefore, there is no cumulative error

F-2018-391

Jun. 20, 2019

Zachary Troy King

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN KUEHN, VICE PRESIDING JUDGE:

Zachary Troy King was tried by jury and convicted of Child Abuse by Injury in violation of 21 O.S.Supp.2014, § 843.5(A), in the District Court of Custer County, Case No. CF-16-416. In accordance with the jury’s recommendation the Honorable F. Doug Haught sentenced Appellant to twenty (20) years imprisonment, with all but the first fifteen (15) suspended. Appellant appeals from this conviction and sentence. Appellant raises four propositions of error in support of his appeal:

I. The State’s evidence was insufficient to establish beyond a reasonable doubt that Mr. King committed the crime of child abuse by injury and therefore his conviction must be overturned with instructions to dismiss.

II. The trial court abused its discretion when it overruled the defense’s request for a mistrial and allowed the introduction of evidence that was not relevant, cumulative, and that was more prejudicial than probative.

III. The cumulative effect of prosecutorial misconduct deprived Mr. King of a fair trial in violation of the Fourteenth Amendment to the United States Constitution and article II, §§ 7 and 9 of the Oklahoma Constitution.

IV. Cumulative errors deprived Mr. King of a fair proceeding and a reliable outcome.

After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the law and evidence do not require relief. We find in Proposition I that, taking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that Appellant injured the victim. Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559. To sustain a conviction for child abuse the State had to show beyond a reasonable doubt that Appellant willfully or maliciously injured a child under eighteen. 21 O.S.Supp.2014, § 843.5. The jury decides the credibility of witnesses and the weight to be given evidence; where testimony conflicts, we will not disturb a verdict supported by competent evidence. Rutan v. State, 2009 OK CR 3, ¶ 49, 202 P.3d 839, 849. We accept reasonable inferences supporting the jury’s verdict. Mitchell v. State, 2018 OK CR 2, ¶ 24, 424 P.3d 677, 682. A jury may choose to believe a single witness, although other witnesses testify differently. Davis v. State, 2011 OK CR 29, ¶ 83, 268 P.3d 86, 112-13; see also Day v. State, 2013 OK CR 8, ¶ 13, 303 P.3d 291, 298 (jury may rely on witness’s expertise over testimony of other witnesses).

Physicians testified that the victim’s injuries, taken together, would have been immediately symptomatic. Appellant, who was the sole caretaker for the hours before the injury, claimed the victim was fine all afternoon and ate normally, then abruptly stopped breathing. All the medical testimony suggested this was inconsistent with the victim’s injuries. This proposition is denied.

We find in Proposition II that admission of testimony from three of the victim’s caregivers was proper. The State called two medical professionals, Johnson and Phelps, and the victim’s foster mother, Ham. Because Appellant failed to object to Johnson’s testimony, we review the trial court’s decision to admit it for plain error. Goode v. State, 2010 OK CR 10, ¶ 44, 236 P.3d 671, 680. Plain error is an actual error, that is plain or obvious, and that affects a defendant’s substantial rights, affecting the outcome of the trial. Thompson v. State, 2018 OK CR 5, ¶ 7, 419 P.3d 261, 263. We review the decision to admit testimony from Phelps and Ham for abuse of discretion. Bramlett v. State, 2018 OK CR 19, ¶ 16, 422 P.3d 788, 794. An abuse of discretion is any unreasonable or arbitrary action made without proper consideration of the relevant facts and law, also described as a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. State v. Hovet, 2016 OK CR 26, ¶ 4, 387 P.3d 951, 953. Jurors had to decide whether the victim was injured, if Appellant caused the injury, and if the injury was willful or malicious. 21 O.S.Supp.2014, § 843.5(A). Relevant evidence is that which makes the existence of a fact of consequence more or less probable. 12 O.S.2011, § 2401. While, in combination with other evidence, it must tend to establish a material fact, but need not itself directly or conclusively establish guilt. Martinez v. State, 2016 OK CR 3, ¶ 37, 371 P.3d 1100, 1111. This testimony was relevant to establish the extent of the victim’s injuries and that the injuries were willful or malicious, not accidental. We give the evidence its maximum probative force and minimum reasonable prejudicial value. Mitchell v. State, 2011 OK CR 26, ¶ 87, 270 P.3d 160, 181, overruled on other grounds by Nicholson v. State, 2018 OK CR 10, 421 P.3d 890. In addition, this evidence was not cumulative to the medical testimony. A nurse and three doctors testified as to E.K.’s condition immediately upon her arrival at the ER, and to the process of diagnosis and initial treatment. By contrast, Johnson and Phelps testified to her subsequent progress, developmental delays and ongoing treatment directly related to the injuries. Brown v. State, 2018 OK CR 3, ¶ 113, 422 P.3d 155, 176. The trial court did not abuse its discretion in admitting testimony from Phelps and Ham, and there was no plain error in admission of Johnson’s testimony. This proposition is denied.

We find in Proposition III that no prosecutorial misconduct affected Appellant’s trial. Both parties have wide latitude to argue the evidence and its inferences, and we will not grant relief unless improper argument affects the fairness of the trial. Barnes v. State, 2017 OK CR 26, ¶ 6, 408 P.3d 209, 213. We will not grant relief unless errors in argument render a trial so fundamentally unfair that we cannot rely on the jury’s verdict. Webster v. State, 2011 OK CR 14, ¶ 81, 252 P.3d 259, 281. Appellant failed to object to the comments raised here, and we review for plain error. Mathis v. State, 2012 OK CR 1, ¶ 24, 271 P.3d 67, 76. Appellant mistakenly claims the prosecutor vouched for an expert witness. Vouching occurs when a prosecutor expresses a personal opinion about a witness’s credibility, or suggests there are facts not known to jurors that support the witness. Bench v. State, 2018 OK CR 31, ¶ 90, 431 P.3d 929, 957; Nickell v. State, 1994 OK CR 73, ¶ 7, 885 P.2d 670, 673. The prosecutor here appropriately discussed Conway’s qualifications, consistency, candor, and impartiality, without expressing a personal opinion. Later, in arguing that jurors should review the circumstantial evidence as a whole rather than in isolation, the prosecutor returned to a metaphor used in voir dire. This was neither a suggestion that defense counsel was about to try and mislead the jury, nor a personal opinion about the truthfulness of either defense counsel or Appellant. The prosecutor admitted it was difficult to believe a father could cause such injury and probably everyone in the courtroom wished the family were still together, watching the victim play. She then described the mother’s experience in the hospital, and some of the testimony about E.K.’s fight for life and current condition. This was argument from the evidence, not an improper appeal for sympathy. The prosecutor may describe a victim’s experience where, as here, the argument neither manipulates nor misstates the evidence. Browning v. State, 2006 OK CR 8, ¶ 37, 134 P.3d 816, 839. Later, the prosecutor did not shift the burden of proof. A prosecutor may comment on a defendant’s ability to call witnesses and examine evidence. Bosse v. State, 2017 OK CR 10, ¶ 85, 400 P.3d 834, 863; Mitchell v. State, 1994 OK CR 70, 9 40 884 P.2d 1186, 1201-02, habeas corpus granted in part Mitchell v. Gibson, 262 F.3d 1036 (10th Cir. 2001). Finally, taken in context, the prosecutor did not offer a personal opinion of Appellant’s guilt. We view alleged improper statements in context, not in isolation. Barnes, 2017 OK CR 26, ¶ 6, 408 P.3d at 213. The prosecutor’s argument that Appellant shook the victim was based on the evidence in the case, and the evidence reasonably tended to support that argument. Bryson v. State, 1994 OK CR 32, ¶ 45, 876 P.2d 240, 257-58. This proposition is denied.

We find in Proposition IV that no error requires relief. We found no error in the preceding propositions. Where there is no error, there is no cumulative error. Engles v. State, 2015 OK CR 17, ¶ 13, 366 P.3d 311, 315. This proposition is denied.

DECISION

The Judgment and Sentence of the District Court of Custer County 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.

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Footnotes:

  1. 21 O.S.Supp.2014, § 843.5(A).
  2. 21 O.S.Supp.2014, § 843.5.
  3. 12 O.S.2011, § 2401.
  4. Mathis v. State, 2012 OK CR 1, I 24, 271 P.3d 67, 76.
  5. Goode v. State, 2010 OK CR 10, I 44, 236 P.3d 671, 680.
  6. Thompson v. State, 2018 OK CR 5, I 7, 419 P.3d 261, 263.
  7. Rutan v. State, 2009 OK CR 3, I 49, 202 P.3d 839, 849.
  8. Davis v. State, 2011 OK CR 29, I 83, 268 P.3d 86, 112-13.
  9. Day v. State, 2013 OK CR 8, I 13, 303 P.3d 291, 298.
  10. Martinez v. State, 2016 OK CR 3, I 37, 371 P.3d 1100, 1111.
  11. Mitchell v. State, 2011 OK CR 26, I 87, 270 P.3d 160, 181.
  12. Browning v. State, 2006 OK CR 8, I 37, 134 P.3d 816, 839.
  13. Webster v. State, 2011 OK CR 14, I 81, 252 P.3d 259, 281.
  14. Bosse v. State, 2017 OK CR 10, I 85, 400 P.3d 834, 863.
  15. Nickell v. State, 1994 OK CR 73, I 7, 885 P.2d 670, 673.
  16. Engles v. State, 2015 OK CR 17, I 13, 366 P.3d 311, 315.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 843.5 (2014) - Child Abuse by Injury
  • Okla. Stat. tit. 12 § 2401 (2011) - Relevant Evidence
  • Okla. Stat. tit. 22 § 3.5 (2019) - Rules of the Oklahoma Court 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:

  • Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559.
  • Rutan v. State, 2009 OK CR 3, I 49, 202 P.3d 839, 849.
  • Mitchell v. State, 2018 OK CR 2 24, 11, 424 P.3d 677, 682.
  • Davis v. State, 2011 OK CR 29, I 83, 268 P.3d 86, 112-13.
  • Day v. State, 2013 OK CR 8, "I 13, 303 P.3d 291, 298.
  • Goode v. State, 2010 OK CR 10, "I 44, 236 P.3d 671, 680.
  • Thompson v. State, 2018 OK CR 5, I 7, 419 P.3d 261, 263.
  • Bramlett v. State, 2018 OK CR 19, "I 16, 422 P.3d 788, 794.
  • State v. Hovet, 2016 OK CR 26, I 4, 387 P.3d 951, 953.
  • Martinez v. State, 2016 OK CR 3, I 37, 371 P.3d 1100, 1111.
  • Mitchell v. State, 2011 OK CR 26, I 87, 270 P.3d 160, 181.
  • Brown v. State, 2018 OK CR 3, 'I 113, 422 P.3d 155, 176.
  • Barnes v. State, 2017 OK CR 26, I 6, 408 P.3d 209, 213.
  • Webster v. State, 2011 OK CR 14, 81, 252 P.3d 259, 281.
  • Mathis v. State, 2012 OK CR 1, I 24, 271 P.3d 67, 76.
  • Bench v. State, 2018 OK CR 31, I 90, 431 P.3d 929, 957.
  • Nickell v. State, 1994 OK CR 73, I 7, 885 P.2d 670, 673.
  • Bosse v. State, 2017 OK CR 10, I 85, 400 P.3d 834, 863.
  • Mitchell v. State, 1994 OK CR 70, 9 40 884 P.2d 1186, 1201-02.
  • Bryson v. State, 1994 OK CR 32, I 45, 876 P.2d 240, 257-58.
  • Engles v. State, 2015 OK CR 17, I 13, 366 P.3d 311, 315.

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