Oliver v. State

516 P.3d 699

Nicholaus Mark OLIVER, Appellant,

v.The STATE of Oklahoma, Appellee.

Case No. F-2021-482

Court of Criminal Appeals of Oklahoma.

Filed August 11, 2022

APPEARANCES AT TRIAL

JOHN CANNON, 809 E. 33^RD STREET, EDMOND, OK 73013, COUNSEL FOR DEFENDANT

MITCHELL THROWER, TAYLOR BROWN, ASST. DISTRICT ATTORNEYS, 303 N. CHOCTAW, EL RENO, OK 73036, COUNSEL FOR STATE

APPEARANCES ON APPEAL

EVAN W. KING, 620 N. ROBINSON, #201, OKLAHOMA CITY, OK 73102, COUNSEL FOR APPELLANT

JOHN M. O'CONNOR, ATTORNEY GENERAL, SAMANTHA K. OARD, ASST. ATTORNEY GENERAL, 313 NE 21^ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

SUMMARY OPINION

LUMPKIN, JUDGE:

¶1 Appellant, Nicholaus Mark Oliver, was tried by jury and convicted in the District Court of Canadian County, Case No. CF-2018-698, of Domestic Abuse by Strangulation, in violation of 21 O.S.2011, § 644(J). The jury returned a guilty verdict with a sentence of two years imprisonment and the trial court sentenced Appellant to two years imprisonment.

¶2 From this judgment and sentence, Appellant appeals and raises the following propositions of error:

I. THE DISTRICT COURT ERRED WHEN IT ALLOWED EXPERT WITNESS TESTIMONY THAT IMPERMISSIBLY VOUCHED FOR THE VICTIM.

II. THE DISTRICT COURT ERRED WHEN IT FAILED TO HOLD A DAUBERT HEARING ON THE EXPERT WITNESS EVIDENCE OF KERI THOMPSON, RN, AND DETECTIVE EDWARD MOSIER.

III. DETECTIVE [MOSIER] TESTIFIED BEYOND HIS EXPERTISE AS A LAW ENFORCEMENT DETECTIVE.

IV. THE DISTRICT COURT ERRED WHEN IT PERMITTED THE PROSECUTOR TO IMPROPERLY SHIFT THE BURDEN TO THE DEFENDANT DURING CLOSING ARGUMENT.

V. THE DISTRICT COURT ERRED WHEN IT IMPROPERLY INSTRUCTED THE JURY AS TO THE DEFINITION OF GREAT BODILY HARM.

VI. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION.

VII. THE EVIDENCE SUBMITTED AT TRIAL WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR DOMESTIC ABUSE BY STRANGULATION.

VIII. EVEN IF INDIVIDUAL ERRORS DO NOT MERIT REVERSAL OF THE APPELLANT'S CONVICTION, THE CUMULATIVE ERROR [SIC] OF THESE ERRORS DEPRIVED HIM OF A FAIR TRIAL REQUIRING THE REVERSAL OF THE APPELLANT'S CONVICTION.

¶3 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, Appellant is not entitled to relief.

I.

¶4 In his first proposition, Appellant takes issue with the testimony of Keri Thompson, R.N., that victim Leslie Pfrehm's symptoms she related during Thompson's examination of her were consistent with domestic abuse by strangulation. He contends Thompson vouched for Pfrehm's credibility. Review of this claim is for plain error as Appellant lodged no vouching objection to Thompson's testimony at trial. Brewer v. State , 2019 OK CR 23, ¶ 4, 450 P.3d 969, 971. As set forth in Simpson v. State , 1994 OK CR 40, ¶¶ 2, 11, 23, 30, 876 P.2d 690, 694-95, 698-701, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. 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. , 1994 OK CR 40, ¶ 30, 876 P.2d at 701.

¶5 "Vouching' occurs when an attorney or witness indicates a personal belief in a witness's credibility, either through explicit personal assurances of the witness's veracity or by implicitly indicating that information not presented to the jury supports the witness's testimony." Bench v. State , 2018 OK CR 31, ¶ 90, 431 P.3d 929, 957.

¶6 Thompson testified she was a registered nurse and domestic violence forensic nurse examiner, a registered nurse with specialized training in treatment of victims of domestic violence. She testified she observed petechial injuries on Pfrehm's scalp and in her right eye, she observed red marks on her upper chest and neck and a bruise by her left collarbone. Thompson testified these injuries were consistent with Pfrehm having been strangled. Thompson further testified regarding Pfrehm's emotional state during the examination and that it was consistent with her history of strangulation. This was not impermissible vouching as Thompson never indicated her personal belief that Pfrehm was telling the truth. She simply testified that based upon her experience as a nurse examining domestic violence victims who were strangled, Pfrehm's demeanor and injuries were consistent with her history of being strangled. There was no error in Thompson's testimony. Proposition I is denied.

II.

¶7 In Proposition II, Appellant maintains that the trial court should have held a hearing regarding the testimony of Thompson as well as that of Detective Edward Mosier, as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc ., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). He argues their expert testimony concerned novel scientific evidence which required such a hearing. Review of this claim is for plain error as set forth in Proposition I since there was no objection to this testimony below. Brewer , 2019 OK CR 23, ¶ 4, 450 P.3d at 971.

¶8 When expert testimony concerns novel scientific evidence, then it must be subjected to the pre-trial analysis set forth in Daubert . Taylor v. State , 1995 OK CR 10, ¶ 44, 889 P.2d 319, 339. When evidence of domestic abuse is admitted at trial, expert testimony concerning "the effects of such domestic abuse on the beliefs, behavior and perception of the [victim] shall be admissible as evidence." 22 O.S.2011, § 40.7.

¶9 Thompson's testimony regarding the physical injuries she observed on Pfrehm did not involve novel scientific knowledge. Strangulation injuries are well-documented in medicine and are well-known to medical professionals like Thompson. Moreover, Thompson's training and experience as a domestic violence nurse examiner allowed her to testify regarding certain statistics and effects of domestic violence strangulation upon victims. As shown above, our Legislature has seen fit to enact Section 40.7 to expressly allow testimony in this regard in domestic violence cases. There is nothing novel about this evidence.

¶10 Appellant also complains of Mosier's testimony regarding the effects of lack of oxygen to the brain, neck anatomy and pounds of pressure necessary to block the jugular vein and carotid artery. The evidence revealed that Mosier has eighteen years of experience as a police officer, that he has received training in strangulation injuries and specialized training in the investigation of sexual assault, domestic violence and stalking crimes. His reference to a 1940's study on the effects of lack of oxygen to the brain, neck anatomy and pounds of pressure necessary to block the jugular vein and carotid artery could hardly be viewed as novel scientific evidence. Again, strangulation injuries and the mechanism of strangulation are well-documented in medical materials, as shown by this 80 year old study and Mosier had received special training regarding these types of injuries.

¶11 As the evidence at issue was not novel scientific evidence, no Daubert hearing was required. No error occurred in the admission of Thompson's and Mosier's testimony. Proposition II is denied.

III.

¶12 Proposition III challenges Mosier's testimony as lying outside the parameters of his expertise. Review of this claim is for plain error as set forth in Proposition I since there was no objection to Mosier's testimony at trial.

¶13 A witness may be "qualified as an expert by knowledge, skill, experience, training or education[.]" 12 O.S.Supp.2013, § 2702. "Any combination of education, training, and experience may qualify a person as an 'expert' on a particular subject." Harris v. State , 2004 OK CR 1, ¶ 37, 84 P.3d 731, 747. See also Salazar v. State , 1996 OK CR 25, ¶ 32, 919 P.2d 1120, 1129 ("expert witnesses" are ordinarily persons who have experience and knowledge in regard to matters that are not generally known and a formal degree has never been nor is required to qualify a witness as an expert).

¶14 Mosier testified regarding his law enforcement experience and specialized training, particularly in the areas of domestic violence strangulation and domestic violence crime investigation. He testified about his observations of Pfrehm during his interview with her, including that he saw petechial hemorrhaging in her right eye and bruising on her arms. Based upon his training and experience, Mosier testified regarding the effects of strangulation, including that a victim could suffer short term memory problems due to lack of oxygen to the brain and he testified regarding the pressure necessary to block blood flow to the brain. Mosier's testimony was proper as it was based upon his personal observations of Pfrehm, as well as his expertise and knowledge of domestic abuse strangulation. Cf. Simpson v. State, 2010 OK CR 6, ¶ 34, 230 P.3d 888, 900-01 (police officer properly testified, based upon his training and experience, that the defendant's statements, in an interview denying his involvement in the crime but admitting certain facts he believed the police knew, were not unusual); Berry v. State , 1988 OK CR 83, ¶ 6, 753 P.2d 926, 929 (police officer properly gave expert testimony regarding the severity of the victim's injuries). Mosier's testimony was not erroneously admitted. Proposition III is denied.

IV.

¶15 In his fourth proposition, Appellant argues the prosecutor improperly made two burden-shifting comments during his closing argument. We review the first instance for an abuse of discretion as Appellant objected to it at trial. Bever v. State , 2020 OK CR 13, ¶ 61, 467 P.3d 693, 706. An abuse of discretion is a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented or,...