Abshier v. State

• Decision Date: 24 May 2001
• Docket Number: No. F-98-188.,F-98-188.
• Citation: 2001 OK CR 13,28 P.3d 579
• Parties: Steven Lynn ABSHIER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

28 P.3d 579

2001 OK CR 13

Steven Lynn ABSHIER, Appellant, v. STATE of Oklahoma, Appellee.

No. F-98-188.

Court of Criminal Appeals of Oklahoma.

May 24, 2001.

Rehearing Denied July 12, 2001.

Robert H. Macy, District Attorney, Susan L. Caswell, Lynn Loftis, Assistant District Attorneys, Oklahoma City, OK, Attorneys for the State at trial. Paul Faulk, Indigent Defense System, Norman, OK, Attorney for Defendant at trial.

Anita Sanders, Oklahoma City, OK, Attorney for Defendant at trial.

James H. Lockard, Perry W. Hudson Norman, OK, Attorneys for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.

OPINION

LILE, JUDGE:

¶ 1 Steven Lynn Abshier was tried by jury in January 1998¹ for the crime of First Degree Murder of a Child in violation of 21 O.S.1991, § 701.7(C) in the District Court of Oklahoma County, Case No. CF-95-2194, before the Honorable Roma McElwee, District Judge. The jury returned a verdict of guilty and found the existence of two aggravating circumstances beyond a reasonable doubt: (1) "The murder was especially heinous, atrocious, or cruel," and (2) "The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." The jury set his punishment at death. On February 5, 1998, the trial court sentenced Abshier to death in accordance with the jury's verdict. From this Judgment and Sentence Abshier has perfected his appeal to this Court.

FACTS

¶ 2 The victim in this case, Ashley Nicole Abshier, was born May 25, 1993. At the time she was murdered on March 30, 1995, she was twenty-two (22) months old and weighed twenty-two (22) pounds. She was the natural daughter of Stephanie Abshier² and the Appellant, Steven Lynn Abshier. Stephanie married Appellant around June of 1993. By the fall of 1994, the three were living in Eufaula, Oklahoma. Stephanie was working at McDonalds, and Appellant normally stayed home with Ashley. Stephanie did not drive and was completely dependent upon Appellant to drive her to and from work, and to take care of Ashley while she was at work.

¶ 3 Sherrie Casey, the mother of a friend of Appellant testified that she saw the Abshiers every two or three days in Eufaula and felt like a grandmother to Ashley. Once, in the fall of 1994, she saw Appellant, in Casey's front yard, grab Ashley by the arm and then kick her hard enough to knock her down. In response to that incident Casey placed an anonymous telephone call to the Department of Human Services to report the abuse she had seen Appellant inflict on Ashley.

¶ 4 Another time it appeared Appellant may have hit or pushed Ashley while he was arguing with his wife, knocking Ashley out of the car into the street in front of Casey's house where she skinned her face. Casey wasn't certain that he hit her or pushed her that time, but she saw Ashley, who was between Stephanie and Appellant, climb over him and fall out onto the street while the parents were arguing. This would have been the only time she saw Appellant abuse Ashley in the presence of Stephanie, but she was not sure it was abuse that time. Appellant once told Casey he would whip or beat Ashley until she learned how to use the toilet.

¶ 5 It did not appear to her that the Department of Human Services had responded to her first call, so she made a follow-up call to find out what was being done about the abuse. ¶ 6 Another time she had seen Appellant, while in the front seat of the car, grab Ashley by the arm, and throw her from the back seat into the front seat. Later that same day, while baby-sitting Ashley, Casey changed Ashley's diaper. Ashley started crying and Casey observed bruises all over her — on the top part of her legs, face, stomach, bottom, and arms, many of which were apparently not visible until she removed her clothing and diaper. Casey also observed that Ashley seemed to be protecting her left arm. Casey made another anonymous call to the Department of Human Services to report the abuse she had observed that day. This was apparently the call received by Curt Been.

¶ 7 Stephanie Abshier testified that in the fall of 1994 she had noticed bruises and injuries to the child, but had never seen Abshier hurt her. Appellant would tell her different stories as to how Ashley became injured, and she said she believed him at the time. She noticed that the child began to react differently to him. When only Stephanie was around, Ashley would be happy, and "she was all right." But when Appellant was around and he was holding her, she would appear sad and afraid of her dad. She would start crying and would start screaming, "Mommy, mommy."

¶ 8 Near the end of October 1994, an incident occurred in their car in the Wal-Mart parking lot. Stephanie and Ashley had been shopping while Appellant waited for them in the car. He got mad because of something Stephanie had bought for Ashley. Ashley started crying, and he told her, "Just shut up, you stupid, little, fucking, whining brat," and he hit her on her left arm.

¶ 9 Curt Been, a Department of Human Services worker in Eufaula, took the anonymous call about Ashley in October of 1994. He assigned the case Priority I, the highest priority, and although the call came in at 5:00 p.m., he went out to Abshier's house with a police officer that day. Mr. Been met Appellant, Stephanie, and Ashley at the home and observed Ashley. He saw a knot on Ashley's forehead which Appellant said was caused when she was running through the house and tripped and fell. The Abshiers had not taken her to a doctor.

¶ 10 Ashley was able to raise her arms without apparent pain. She was wearing a tee-shirt and terry cloth shorts. Been and the officer did not look for injuries on the parts of her body that were covered by her clothing.

¶ 11 Because he had not seen any more injuries on her, Been and the officer determined there was not enough to take the child then, but Been told the parents to have her examined at the clinic just to make sure she was okay. The parents agreed they would take her to the Indian clinic in Eufaula.

¶ 12 The next day, Been checked with the clinic and found that Appellant had not yet taken Ashley there. Been got another officer from the police department and returned to the Abshiers' house to find out why. After Been knocked for some time, Appellant answered the door. He looked like he had just woke up, but insisted, "I'm going to take her." Been called the clinic when he got back to his office and verified that the Abshiers had arrived at that time. Stephanie testified Appellant was the one who took Ashley to the Indian clinic while she, Stephanie, was at work.

¶ 13 The clinic transferred Ashley to St. Francis Hospital in Tulsa, Oklahoma. Dr. Boone, an orthopedic surgeon, testified that he saw Ashley November 1, 1994, at St. Francis Hospital. She had been brought in the night before. He verified that her upper left arm was broken, a fracture of the upper humerus with minimal displacement, and she had multiple contusions or bruises. According to the history given by the mother at the emergency room, the father stated the child tripped over a tool box. Stephanie also testified at trial that Appellant had told her the same thing.

¶ 14 Dr. Boone said that normally a simple fall would not produce enough energy or velocity in a child of Ashley's age with healthy bones to fracture the humerus. Ashley's bones otherwise appeared healthy. Dr. Boone also testified that tests had been performed at St. Francis Hospital November 1, 1994, that showed that Ashley did not bruise more easily than normal. He believed that Ashley's injuries were secondary to blunt trauma, and by history, secondary to child abuse. For a person to cause that kind of fracture with a hand or fist would require most of their force. Such a fracture could be caused by someone slinging a child by the arm.

¶ 15 Stephanie wrote out a statement of what had happened, and based upon her agreement to leave Appellant, Ashley was allowed to remain with her. Stephanie went to stay at her father's house with Ashley.

¶ 16 In December of 1994, Appellant got back together with Stephanie. In mid-January 1995 they moved with Ashley to Oklahoma City to avoid being found by the Department of Human Services. The Department issued a pick-up order for the child.

¶ 17 Initially, in Oklahoma City, they stayed at the house of a friend, Ed Banister, before moving into their own house at 1802 South Stonewall. Stephanie got a job at Hardee's restaurant near 74th Street and South Pennsylvania Avenue. Abshier stayed home to take care of Ashley.

¶ 18 On the evening before Ashley died, the Abshiers ate dinner at Ed Banister's house. They returned home by 9:00 or 9:30 p.m., but Appellant left again, returning some time around 4:00 or 4:30 the next morning.

¶ 19 On March 30, 1995, Stephanie awoke at approximately 5:00 a.m. and was supposed to be at work by 6:00 a.m. However, she was not able to awaken Appellant to take her to work, so she went back to sleep. She woke up again at 9:00 a.m. and was able to wake Appellant, and he drove her to work.

¶ 20 The Hardee's manager, Mary Gilbert, testified that Stephanie was scheduled to come in at 6:00 a.m. but didn't clock in until 9:32 a.m. The time was verified by the personnel time tape. Gilbert further testified, "[Stephanie] said that her husband was out all night with the landlord and he was late getting back and couldn't get her to work."

¶ 21 Appellant returned to Hardee's, with Ashley, after lunch time. She did not appear injured at that time to the manager, Mary Gilbert, or to the co-employee, Fred Toliver, or to Stephanie. Appellant asked Stephanie to get him and Ashley something to eat. Stephanie told him to wait, that she thought there was some food in the house, and that she would see about getting some food to take home when she got...