FILED

United States Court of Appeals

Tenth Circuit

April 2, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD LEE GILSON,

Petitioner-Appellant,

v. No. 06-6287

MARTY SIRMONS, Warden, Oklahoma

State Penitentiary,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CV-01-1311-C)

Timothy R. Payne, Assistant Federal Public Defender (James A. Drummond, Federal

Public Defender, and Mariatu Kargbo, Research and Writing Specialist, with him on the

briefs) Death Penalty Federal Habeas Corpus Division, Office of Federal Public

Defender, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Preston Saul Draper, Assistant Attorney General (W. A. Drew Edmondson, Attorney

General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for

Respondent-Appellee.

Before HENRY, Chief Circuit Judge, TACHA and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Donald Lee Gilson, an Oklahoma state prisoner convicted of first degree
2

child abuse murder and sentenced to death, appeals the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition. We exercise jurisdiction pursuant to 28 U.S.C. §

1291 and affirm.

I. BACKGROUND

The pertinent facts of this case were well summarized by the Oklahoma Court of

Criminal Appeals (OCCA) in resolving Gilson’s direct appeal:

 On February 9, 1996, the skeletal remains of eight (8) year old Shane

Coffman were found in an abandoned freezer located next to a mobile home

formerly rented by his mother, Bertha Jean Coffman. A subsequent search

of the mobile home revealed a photograph of [Gilson]. On February 11,

1996, authorities from the Cleveland County Sheriff’s Office met with

[Gilson] at his mobile home. Living in the mobile home with [Gilson] was

Bertha Jean Coffman and her four children, twelve (12) year old Isaac, ten

(10) year old Tia, eleven (11) year old Tranny and seven (7) year old

Crystal. The children were immediately removed from the trailer and taken

to Children’s Hospital in Oklahoma City. [Gilson] and Bertha Jean

Coffman were detained by the deputies.

 Examinations of the children conducted in the emergency room revealed

Tranny and Crystal were healthy with a few small scars on each. However,

Isaac and Tia were malnourished and emaciated. Tia’s feet were swollen

and she had difficulty walking. She had gangrenous tissue on her right foot. 

On her right buttocks was a large open ulcer. Isaac was in the worst

condition, emaciated and needing assistance to walk. He was malnourished

and had several injuries, in various stages of healing, and scars throughout

his body.

 In their initial interview with police, [Gilson] and Coffman both denied

any knowledge as to the manner in which Shane died. They stated he had

run away from home during the early part of November and they had found

him dead in the weeds near Coffman’s trailer. They decided that putting

him in the freezer would be the best thing to do. However, in subsequent

interviews both [Gilson] and Coffman recanted this story and admitted to

knowing more about the circumstances surrounding Shane’s death. From

interviews with [Gilson], Coffman, the Coffman children and other
3

witnesses, the following picture emerged.

 The four Coffman children mentioned above, along with the murder

victim in this case, and another brother, thirteen (13) year old Jeremy, lived

with their mother Bertha Jean Coffman, in a mobile home. During the fall

of 1994, the Cleveland County Sheriff’s Department received complaints of

sexual abuse committed upon one of the Coffman children by Coffman’s

then boyfriend (not [Gilson]). The investigating detective visited

Coffman’s mobile home and found the conditions deplorable and

unsanitary. The children were removed from Coffman’s home until

conditions improved. It was about this time that Bertha Jean Coffman met

[Gilson]. They were both working as janitors at Little Axe Schools. 

[Gilson] fixed up Coffman’s trailer so she could get her children back. The

children were subsequently returned to their mother.

 Thereafter, [Gilson] began spending more and more time with Coffman

and was given the authority to discipline the children. In June of 1995, the

oldest child, Jeremy, ran away [as a result of his mistreatment by Gilson]. 

The next month, Coffman and her children walked to [Gilson]’s trailer for a

visit and never returned to their home. Whatever possessions they had were

left at Coffman’s trailer. [Gilson]’s trailer had only 2 bedrooms; [Gilson]

and Coffman slept in one room and the other room contained [Gilson]’s

leather working material. As a result, all five children were forced to sleep

on blankets in the living room. They were not permitted to go outside, but

had to remain inside the trailer at all times. The children were taken out of

school and claimed to be homeschooled by Coffman, although no evidence

of homeschooling was ever found. The children were also not permitted to

go to church.

 [Gilson] and Coffman both disciplined the children. This discipline took

several forms, including standing at the wall, sometimes for hours at a time,

and beatings with a bamboo stick, a belt, boards, wooden rulers, metal ruler,

and a bullwhip. The children were also made to sit in the bathtub, often for

hours at a time. Food was withheld, particularly from Isaac and Tia, as

punishment. The abuse inflicted upon Shane Coffman resulted in his death

on August 17, 1995.

 At trial, Tranny testified that he last saw his brother Shane sitting in the

bathtub. Tranny said Shane had gotten in trouble for going to the bathroom

on the living room carpet. He said that before Shane was put into the

bathtub, [Gilson] beat him with a board. Tranny said Shane received
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several beatings with the board, all over his body. After the beating,

[Gilson] put Shane into the bathtub. After a couple of hours, Shane was let

out of the bathtub. He then got into trouble again. Tranny said [Gilson]

and Coffman then took Shane outside the trailer. Tranny did not know what

happened to Shane while he was outside, but he said he could hear Shane

screaming. [Gilson] and Coffman carried Shane back inside the trailer. 

Tranny said Shane’s arms were swollen, he was breathing “weird”, and he

had a soft spot on his head. Pursuant to [Gilson]’s “house rules”, the other

children were not permitted to talk to Shane. [Gilson] then carried Shane to

the bathroom and placed him in the bathtub. Tranny said he and the other

children heard a few more screams and banging noises. He said both

[Gilson] and Coffman were with Shane when they heard the screams. The

children then decided to try and go to sleep. He said they were awakened

some time later by [Gilson] and Coffman and told that Shane had run away,

and that [Gilson] and Coffman were going to look for him.

 Isaac testified [Gilson] first sent Shane to stand at the wall for wetting

the bed. While he was standing at the wall, [Gilson] hit him with a board. 

[Gilson] and Coffman eventually took Shane to the bathroom and put him

in the bathtub. Isaac said [Gilson] made all the other children go to the

bathroom and tell Shane what a bad boy he was. He said that both [Gilson]

and Coffman remained in the bathroom with Shane while the children

watched television. He said they could hear Shane crying. Isaac further

stated that later that night, [Gilson] and Coffman told them Shane had run

away.

 In a statement made to police shortly after his arrest, and admitted at trial

as State’s Exhibit 2, [Gilson] stated that on August 17, 1995, he had put

Shane in the bathtub as punishment. [Gilson] said he was trying to teach

Shane a lesson, so he spanked him and put him in the bathtub where he was

to remain until he stopped the disruptive behavior. He said the water in the

bathtub was initially warm to help the pain from the spanking, but then he

changed it to a cold bath. [Gilson] said Shane was crying as Coffman

talked to him about his behavior. He said he then laid down on the couch to

watch television with the rest of the kids where he eventually fell asleep. 

Coffman was in and out of the bathroom talking to Shane before she went

to the bedroom to lay down. A while later, Coffman came into the living

room in tears and told [Gilson] to come to the bathroom. He said Coffman

had taken Shane out of the bathtub and laid him on the floor. Shane’s lips

were blue and he was not breathing. [Gilson] said he performed CPR for

approximately an hour to an hour and half. When his efforts were
5

unsuccessful, [Gilson] took the comforter off of his bed, wrapped Shane up

and placed him back in the bathtub.

 [Gilson] said he and Coffman discussed what to do next. He said

Coffman was worried that the Department of Human Services (hereinafter

DHS) would take her kids away if the authorities found out Shane had died. 

So they left Shane in the bathtub, waiting until the other children had gone

to sleep to remove him from the house. [Gilson] said they carried Shane

outside and placed him in the back of a truck. He said they discussed “just

dumping him somewhere” or “bury[ing] him out in the middle of the

boonies.” But they decided neither of those options were right and “even

though he wasn’t alive he would still be part of the family bein (sic) on her

property, . . . thought about putting him in the freezer, it wouldn’t hurt him

and then concreting it over. And making a flower bed out of it.” So

[Gilson] and Coffman took Shane’s body to the freezer located next to

Coffman’s trailer and put him inside. [Gilson] said he and Coffman told the

other children Shane had run away.

 Bertha Jean Coffman testified at trial to disciplining her children by

making them stand at the time-out wall, and spanking them, only on their

bottoms, with a cloth belt or a wooden paddle. She also testified that

[Gilson] disciplined her children by spanking them with the wooden paddle,

but at various places on their bodies. Coffman stated [Gilson] had a quick

temper and did not want the children tearing up his trailer.

 In her statement to police on August 17, 1995, Coffman said she and

[Gilson] found Shane sexually assaulting his younger brother. As

punishment, they made him stand at the time-out wall, then Coffman

paddled him. When Shane refused to stand at the wall, Coffman spanked

him again. When Shane still would not do as Coffman directed, she

screamed at him. Shane then fainted. When Coffman could not get a

response from Shane, she put a piece of ice on his chest. When he still did

not respond, Coffman picked him up and took him to the bathroom where

she placed him in a tub of cool water. She said Shane eventually came to

and wanted to get out of the tub. She said he slipped and hit his head on the

faucet. Coffman stated she pushed on Shane’s shoulders to keep him in the

bathtub. They struggled, and the shower doors were knocked off their

railing. Coffman called for [Gilson] to come and fix the doors. [Gilson]

left the living room where he had been watching television with the other

children and put the doors back on their railings. [Gilson] left the

bathroom. Coffman and Shane struggled again. [Gilson] returned to the
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bathroom to see what the noise was about. He saw the doors had fallen off

again so he took them and set them on the floor. Coffman said she

remained in the bathroom with Shane while [Gilson] went back to the living

room.

 After a while, [Gilson] stepped into the bathroom and told Coffman to

leave Shane alone for a while. So Coffman left the bathroom to get Shane

dry clothes and prepare lunch. When she saw that [Gilson] had already

prepared lunch, Coffman laid down on her bed. She was awakened by a

noise in the bathroom and saw [Gilson] coming out of the bathroom. When

asked how Shane was, [Gilson] responded he was fine and that he was

blowing bubbles. Coffman sat down to have a cup of coffee, then decided

to check on Shane. She found him quiet but not breathing. She called for

[Gilson] and they pulled Shane out of the bathtub and gave him CPR. She

said they waited until the other children were asleep before taking the body

to the freezer. Coffman also stated that once Shane died, Isaac and Tia

began receiving the brunt of the discipline from [Gilson].

 Shane’s skeletal remains were not found until approximately six (6)

months after his death. Therefore, the medical examiner, Dr. Balding, was

not able to make a determination as to the cause of death. The medical

examiner did testify to injuries to certain bones which were evident upon

his examination of the remains. The injuries included a fracture to the right

jawbone. The injury was determined to be “acute” as it showed no signs of

healing, and therefore was probably less than a week old at the time of

death. Another fracture was also found on the left side of the skull. Dr.

Balding testified the two fractures were the result of two different blunt

force blows. A tooth was missing from the right jaw. Fractures were also

found in the collarbone, shoulder blades, numerous ribs, both legs, and

several vertebrae in the spine. All the fractures were ruled acute, and not

the result of normal childhood play.

 [Gilson] and Bertha Jean Coffman were jointly charged with first degree

murder by child abuse in the death of Shane Coffman, and one count of

injury to a minor child for the abuse suffered by each of the remaining

children. They were also jointly charged with conspiracy to unlawfully

remove a dead body and unlawful removal of a dead body. [The State filed

a bill of particulars asserting that Gilson and Coffman should be sentenced

to death in connection with the first degree murder charge on the basis of

two aggravating factors: (1) that the murder was especially heinous,

atrocious and cruel; and (2) the existence of a probability that they would
7

commit criminal acts of violence that would pose a continuing threat to

society.] On August 20, 1997, approximately eight (8) months prior to

[Gilson]’s trial, Coffman entered Alford [footnote omitted] pleas to all

counts. [Gilson] was subsequently tried and convicted on all charges except

he was found not guilty of committing injury to a minor child as to Jeremy,

Tranny and Crystal. 

Gilson v. State, 8 P.3d 883, 895-98 (Okla. Crim. App. 2000) (Gilson I) (internal

paragraph numbers omitted). The jury, in connection with the two injury to a minor child

convictions, concluded Gilson’s sentence should be life imprisonment. At the conclusion

of the second-stage proceedings, which were conducted as a result of Gilson’s murder

conviction, the jury found the existence of both aggravating factors alleged by the State

and recommended a death sentence. Gilson was formally sentenced by the state trial

court at a later hearing.

Gilson filed a direct appeal challenging his convictions and sentences. On July 26,

2000, the OCCA, with one judge dissenting, affirmed Gilson’s convictions and sentences. 

Gilson I, 8 P.3d at 929. The OCCA subsequently denied Gilson’s request for rehearing. 

Gilson filed a petition for writ of certiorari with the United States Supreme Court. That

petition was denied by the Supreme Court on April 2, 2001. Gilson v. Oklahoma, 532

U.S. 962 (2001).

While his direct appeal was still pending before the OCCA, Gilson, in accordance

with Oklahoma procedural rules, filed an application for post-conviction relief with the

OCCA. The OCCA denied the application for post-conviction relief on September 1,

2000, in an unpublished opinion.
8

On August 20, 2001, Gilson initiated this federal habeas corpus action by filing a

pro se motion to proceed in forma pauperis and a motion for appointment of counsel. 

Gilson’s motion for appointment of counsel was granted and, on March 29, 2002, Gilson

filed his federal habeas corpus petition asserting eleven grounds for relief. ROA, Doc.

13. On August 9, 2006, the district court issued an opinion and order denying Gilson’s

petition. Id., Doc. 29. The district court granted Gilson a certificate of appealability on

six issues, and we subsequently granted Gilson a certificate of appealability on one

additional issue.

II. STANDARD OF REVIEW

Our review of Gilson’s appeal is governed by the provisions of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). Snow v. Sirmons, 474 F.3d 693, 696

(10th Cir. 2007). Under AEDPA, the standard of review applicable to a particular claim

depends upon how that claim was resolved by the state courts. Id. 

If a claim was addressed on the merits by the state courts, we may not grant federal

habeas relief on the basis of that claim unless the state court decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding,” id. § 2254(d)(2). “When reviewing a state court’s application of

federal law, we are precluded from issuing the writ simply because we conclude in our

independent judgment that the state court applied the law erroneously or incorrectly.” 
9

McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir. 2003). “Rather, we must be

convinced that the application was also objectively unreasonable.” Id. “This standard

does not require our abject deference, . . . but nonetheless prohibits us from substituting

our own judgment for that of the state court.” Snow, 474 F.3d at 696 (internal quotation

marks omitted).

If a claim was not resolved by the state courts on the merits and is not otherwise

procedurally barred, our standard of review is more searching. That is, because §

2254(d)’s deferential standards of review do not apply in such circumstances, we review

the district court’s legal conclusions de novo and its factual findings, if any, for clear

error. McLuckie, 337 F.3d at 1197.

III. ANALYSIS

Split verdict on theories underlying child abuse murder conviction

Gilson was charged with first degree child abuse murder in violation of Okla. Stat.

tit. 21 § 701.7(C). That statute provides as follows:

A person commits murder in the first degree when the death of a child

results from the willful or malicious injuring, torturing, maiming or using of

unreasonable force by said person or who shall willfully cause, procure or

permit any of said acts to be done upon the child pursuant to Section 7115

of Title 10 of the Oklahoma Statutes. It is sufficient for the crime of murder

in the first degree that the person either willfully tortured or used

unreasonable force upon the child or maliciously injured or maimed the

child. 

Okla. Stat. tit. 21 § 701.7(C). According to the record, the State alleged two alternative

theories of how Gilson violated § 701.7(C), i.e., that Gilson either was directly
10

responsible for willfully or maliciously injuring, torturing, maiming or using

unreasonable force upon Shane, or that he knowingly permitted Bertha Jean Coffman to

do so. 

At trial, the State submitted a verdict form for the murder charge that listed not

only the option of guilty or not guilty, but also stated:

 FURTHER, we make the following finding of fact as to the basis for our

verdict of guilty:

[ ] Unanimous as to child abuse murder

[ ] Unanimous as to permitting child abuse murder

[ ] Divided as to the underlying theory

Gilson I, 8 P.3d at 898-99. Gilson objected to the underlying instruction that informed

the jury “that while their verdict of guilt as to first degree murder must be unanimous,

they need not unanimously agree as to the theory under which they arrived at their

verdict.” Id. at 899. The state trial court overruled Gilson’s objection and adopted the

verdict form submitted by the State. “When the jury concluded its deliberations and

returned its verdicts, in addition to finding [Gilson] guilty, the last box listed above

(‘divided as to the underlying theory’) was checked . . . .” Id.

In these federal habeas proceedings, Gilson argues that his “conviction for capital

murder, based on a divided jury verdict as to whether he was guilty of ‘committing’ the

child abuse that led to Shane’s death, or of ‘permitting’ such abuse, is in violation of his

constitutional right to due process . . . .” Aplt. Br. at 22. 

a) Schad v. Arizona

The “clearly established federal law” that Gilson cites in support of his argument is
1 Justice Souter wrote the plurality opinion in Schad, which was joined by three

other Justices. Justice Scalia authored a separate concurrence (which, together with

Justice Souter’s opinion, controlled the outcome). For purposes of convenience, we refer

to Justice Souter’s plurality opinion as the decision of “the Court.” See Marks v. United

States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five Justices, the holding of the Court

may be viewed as that position taken by those Members who concurred in the judgments

on the narrowest grounds.” (internal quotation marks omitted)). 

11

the Supreme Court’s decision in Schad v. Arizona, 501 U.S. 624 (1991). The petitioner

in Schad, Edward Schad, Jr., was charged in Arizona state court with first-degree murder. 

During Schad’s trial, the prosecutor advanced alternative theories of premeditated and

felony murder, while Schad himself claimed that, at most, he was guilty of mere theft. 

The jury rejected Schad’s assertions and, in a general verdict, convicted him of firstdegree murder. Schad was subsequently sentenced to death in connection with this

conviction. On direct appeal, Schad argued that the state trial court erred in not requiring

the jury to agree on a single theory of first-degree murder. The Arizona Supreme Court

rejected that argument and affirmed Schad’s conviction and sentence. Schad

subsequently sought and was granted a petition for writ of certiorari by the United States

Supreme Court on that issue.

Although Schad urged the Supreme Court “to decide th[e] case by holding that the

Sixth, Eighth, and Fourteenth Amendments require a unanimous jury in state capital

cases,” 501 U.S. at 630, the Court1

 declined to do so. More specifically, the Court noted

that it “ha[d] never suggested that in returning general verdicts in such cases the jurors

should be required to agree upon a single means of commission, any more than the
2 Justice Scalia offered the following compelling rationale for why no such rule

exists:

As the plurality observes, it has long been the general rule that when a

single crime can be committed in various ways, jurors need not agree upon

the mode of commission. That rule is not only constitutional, it is probably

indispensable in a system that requires a unanimous jury verdict to convict. 

When a woman’s charred body has been found in a burned house, and there

is ample evidence that the defendant set out to kill her, it would be absurd to

set him free because six jurors believe he strangled her to death (and caused

the fire accidentally in his hasty escape), while six others believe he left her

unconscious and set the fire to kill her.

Schad, 501 U.S. at 649-50 (Scalia, J., concurring) (citations omitted).

12

indictments were required to specify one alone.”2 Id. at 631. Instead, the Court

concluded that Schad’s “real challenge [wa]s to Arizona’s characterization of first-degree

murder as a single crime as to which a verdict need not be limited to any one statutory

alternative . . . .” Id. at 630-31. In other words, the Court concluded that the

constitutional issue presented by Schad was “one of the permissible limits in defining

criminal conduct, as reflected in the instructions to jurors applying the definitions,” and

“not one of jury unanimity.” Id. at 631. 

Addressing that constitutional issue head-on, the Court acknowledged that there

was a “point at which differences between means become so important that they may not

reasonably be viewed as alternatives to a common end, but must be treated as

differentiating what the [Due Process Clause] requires to be treated as separate offenses.” 

Id. at 633. For example, the Court noted, “nothing in [its] history suggest[ed] that the

Due Process Clause would permit a State to convict anyone under a charge of ‘Crime’ so

generic that any combination of jury findings of embezzlement, reckless driving, murder,
13

burglary, tax evasion, or littering . . . would suffice for conviction.” Id.

In “attempt[ing] to define what constitutes an immaterial difference as to mere

means and what constitutes a material difference requiring separate theories of crime to

be treated as separate offenses subject to separate jury findings,” id., the Court indicated it

would afford substantial deference to a state court’s interpretation of its own state

statutes. Specifically, the Court stated that “[i]f a State’s courts have determined that

certain statutory alternatives are mere means of committing a single offense, rather than

independent elements of the crime, [it] simply [would] not [be] at liberty to ignore that

determination and conclude that the alternatives [we]re, in fact, independent elements

under state law.” Id. at 636. In Schad’s case, the Court noted, “by determining that a

general verdict as to first-degree murder [wa]s permissible under Arizona law, the

Arizona Supreme Court ha[d] effectively decided that, under state law, premeditation and

the commission of a felony [we]re not independent elements of the crime, but rather

[we]re mere means of satisfying a single mens rea element.” Id. at 637.

That still left, however, the issue of “whether Arizona’s choice [wa]s

unconstitutional.” Id. In resolving this issue, the Court began by stating that its “sense of

appropriate specificity [wa]s a distillate of the concept of due process with its demands

for fundamental fairness . . . and for the rationality that is an essential component of that

fairness.” Id. Continuing, the Court stated that, “[i]n translating these demands for

fairness and rationality into concrete judgments about the adequacy of legislative

determinations, [it would] look both to history and wide practice as guides to fundamental
14

values, as well as to narrower analytical methods of testing the moral and practical

equivalence of the different mental states that m[ight] satisfy the mens rea element of a

single offense.” Id. “The enquiry,” the Court held, “is undertaken with a threshold

presumption of legislative competence to determine the appropriate relationship between

means and ends in defining the elements of a crime.” Id. at 637-38.

The Court held that “[t]he use . . . of due process as a measurement of the sense of

appropriate specificity assumes the importance of history and widely shared practice as

concrete indicators of what fundamental fairness and rationality require.” Id. at 640. 

Expanding on this notion, the Court explained:

Where a State’s particular way of defining a crime has a long history, or is

in widespread use, it is unlikely that a defendant will be able to demonstrate

that the State has shifted the burden of proof as to what is an inherent

element of the offense, or has defined as a single crime multiple offenses

that are inherently separate. Conversely, a freakish definition of the

elements of a crime that finds no analogue in history or in the criminal law

of other jurisdictions will lighten the defendant’s burden.

Id. Applying these principles to the circumstances presented by Schad’s case, the Court

concluded it was “significant that Arizona’s equation of the mental states of premeditated

murder and felony murder as species of the blameworthy state of mind required to prove

a single offense of first-degree murder f[ound] substantial historical and contemporary

echoes.” Id. From a historical perspective, the Court noted that at common law, “[t]he

intent to kill and the intent to commit a felony were alternative aspects of the single

concept of ‘malice aforethought.’” Id. From a contemporary perspective, the Court noted

that most state statutes “retained premeditated murder and some form of felony murder . .
15

. as alternative means of satisfying the mental state that first-degree murder presupposes.” 

Id. at 641. Further, the Court, citing a series of state-court decisions issuing from 1903

through the date of the Court’s decision, concluded “there [wa]s sufficiently widespread

acceptance of the two mental states as alternative means of satisfying the mens rea

element of the single crime of first-degree murder to persuade [it] that Arizona ha[d] not

departed from the norm.” Id. at 642. “Such historical and contemporary acceptance of

Arizona’s definition of the offense and verdict practice,” the Court noted, “[wa]s a strong

indication that they d[id] not offen[d] some principle of justice so rooted in the traditions

and conscience of our people as to be ranked as fundamental . . . .” Id. (internal quotation

marks omitted).

The Court also considered “the function that differences of mental state perform in

defining the relative seriousness of otherwise similar or identical criminal acts.” Id. at

643. According to the Court, “[i]f . . . two mental states are supposed to be equivalent

means to satisfy the mens rea element of a single offense, they must reasonably reflect

notions of equivalent blameworthiness or culpability, whereas a difference in their

perceived degrees of culpability would be a reason to conclude that they identified

different offenses altogether.” Id. Applying these principles to Schad’s case, the Court

noted that “[t]he question . . . [wa]s whether felony murder [could] ever be treated as the

equivalent of murder by deliberation, and in particular whether robbery murder as

charged in [Schad’s] case [could] be treated as thus equivalent.” Id. at 644. Citing its

decision in Tison v. Arizona, 481 U.S. 137 (1987), the Court concluded that “[w]hether or
16

not everyone would agree that the mental state that precipitates death in the course of

robbery is the moral equivalent of premeditation, it [wa]s clear that such equivalence

could reasonably be found, which [wa]s enough to rule out the argument that this moral

disparity bar[red] treating them as alternative means to satisfy the mental element of a

single offense.” Id.

b. The OCCA’s rejection of Gilson’s Schad-based argument

Gilson first raised his due process, Schad-based argument on direct appeal. The

OCCA purported to reject the argument on the merits. In doing so, the OCCA offered the

following lengthy explanation for its decision:

 In the second part of his argument, [Gilson] asserts his right to a

unanimous verdict was violated by the verdict forms allowing the jury to

return a “divided as to underlying theory” guilty verdict. [Gilson] argues

that as he was charged in the alternative with child abuse murder by the

commission of child abuse or by the permitting of child abuse which

resulted in first degree murder, the jury’s verdict showed a disagreement as

to “just what [he] did.” [citation and footnote omitted]. [Gilson]

acknowledges this Court has said that a general verdict of guilt satisfies due

process and unanimity concerns where a defendant is charged in the

alternative with malice aforethought and felony murder, so long as a prima

facie case is made for each alternative. See James v. State, 637 P.2d 862,

866 (Okl.Cr.1981). However, he asserts his case is distinguishable by its

unique circumstances. [Gilson] submits that the jury disagreement in his

case went to the legal, rather than the factual, basis of the crime charged,

“because 1) ‘committing’ and ‘permitting’ child abuse murder are

conceptually distinct crimes and 2) these alternative theories of guilt are

fundamentally repugnant to each other.” [citation omitted]. [Gilson] argues

the contradictory nature of the alternative crimes charged is illustrated by

the differing actus reus requirements for each crime.

 The State argues in response that committing and permitting child abuse

are merely different means by which child abuse murder may be committed.

Citing cases from this Court, the State argues the jury was not required to
17

agree on the specific means by which the crime was committed, only that

the defendant committed the crime charged.

 Both [Gilson] and the State cite to Schad v. Arizona, 501 U.S. 624, 111

S.Ct. 2491, 115 L.Ed.2d 555 (1991). [Gilson] argues that Schad supports a

finding that first degree murder by the commission of child abuse and first

degree murder by permitting child abuse are separate offenses containing

independent elements upon which the jury must be in unanimous

agreement. The State relies on Schad for the proposition that where there

are alternatives to proving the actus reus of the offense, there is no general

requirement that the jury reach a unanimous agreement on the preliminary

factual issues which underlie the verdict.

 In Schad, the Supreme Court addressed the constitutionality of the

Arizona Supreme Court’s holding that a general verdict as to first-degree

murder is permissible under Arizona law as premeditation and the

commission of a felony are not independent elements of the crime, but

rather are mere means of satisfying a single mens rea element. In its

analysis, the Court looked “both to history and wide practice as guides to

fundamental values, as well as to narrower analytical methods of testing the

moral and practical equivalence of the different mental states that may

satisfy the mens rea element of a single offense.” 501 U.S. at 637-38, 111

S.Ct. at 2500.

 The Court found the language of the Arizona first-degree murder statute

was identical in all relevant respects to the language of the first statute

defining murder by differences of degree, passed by the Pennsylvania

Legislature in 1794. 501 U.S. at 641, 111 S.Ct. at 2502. The Court also

looked to decisions from other state courts which agreed “‘it was not

necessary that all the jurors should agree in the determination that there was

a deliberate and premeditated design to take the life of the deceased, or in

the conclusion that the defendant was at the time engaged in the

commission of a felony, or an attempt to commit one; it was sufficient that

each juror was convinced beyond a reasonable doubt that the defendant had

committed the crime of murder in the first degree as that offense is defined

by the statute.’” Id., quoting People v. Sullivan, 173 N.Y. 122, 127, 65

N.E. 989, 989-990 (1903). [footnote omitted]. Although recognizing the

state courts were not unanimous in this respect, the Supreme Court decided

there was sufficient widespread acceptance of the two mental states of

premeditation and felony-murder as alternative means of satisfying the

mens rea element of the single crime of first-degree murder to persuade the
18

Court that Arizona had not departed from the norm. 501 U.S. at 641, 111

S.Ct. at 2502.

 Having made these determinations, the Court stated “[t]he question,

rather, is whether felony murder may ever be treated as the equivalent of

murder by deliberation, and in particular whether robbery murder as

charged in this case may be treated as thus equivalent.” 501 U.S. at 644,

111 S.Ct. at 2503. The Supreme Court concluded:

Whether or not everyone would agree that the mental state

that precipitates death in the course of robbery is the moral

equivalent of premeditation, it is clear that such equivalence

could reasonably be found, which is enough to rule out the

argument that this moral disparity bars treating them as

alternative means to satisfy the mental element of a single

offense.

Id. at 501 U.S. at 644, 111 S.Ct. at 2503-4.

 While recognizing that their “considerations [did not] exhaust the

universe of those potentially relevant to judgments about the legitimacy of

defining certain facts as mere means to the commission of one offense”, the

Supreme Court found the Arizona law “did not fall beyond the

constitutional bounds of fundamental fairness and rationality.” 501 U.S. at

645, 111 S.Ct. at 2504.

 In the present case we are not concerned with the alternatives of

premeditated and felony murder, but with those of child abuse murder by

permitting child abuse and child abuse murder by the commission of child

abuse. [Gilson] was charged under 21 O.S.1991, § 701.7(C) which

provides:

C. A person commits murder in the first degree when the

death of a child results from the willful or malicious injuring,

torturing, maiming or using of unreasonable force by said

person or who shall willfully cause, procure or permit any of

said acts to be done upon the child pursuant to Section 7115

of Title 10 of the Oklahoma Statutes. It is sufficient for the

crime of murder in the first degree that the person either

willfully tortured or used unreasonable force upon the child or

maliciously injured or maimed the child.
19

 This section of the first degree murder statute sets out different ways in

which the offense of first degree murder by child abuse may be committed. 

It may be committed by the willful or malicious injuring, torturing,

maiming, or using of unreasonable force by the defendant upon a child, or

by the defendant’s willfully causing, procuring or permitting the acts of

child abuse. This section specifically states that “a person commits murder

in the first degree when the death of a child results . . .” from either “willful

or malicious injury” or “willfully permitting” those acts to be done. 

Therefore, under the statutory language the crime of first degree murder by

child abuse is committed under either circumstance. This provision is not

unlike the felony-murder provisions of section 701.7(B) which set forth

alternative ways of committing felony-murder.

 [Gilson] is correct in his argument that including the intent to commit

child abuse into the first degree murder statute is a relatively recent

enactment, see Tucker v. State, 675 P.2d 459, 461 (Okl.Cr.1984), and that

the crime of child abuse murder by permitting child abuse did not exist

prior to 1982. See 1982 Okla. Sess. Laws c. 279 § 1. However, the fact

that the legal culpability of a defendant whose abuse of a child results in

that child’s death or who permits a child to be abused to the extent that

death results has only recently been acknowledged by this State does not

mean the Legislature cannot define first degree child abuse murder to have

been committed either by the actual commission of the acts of abuse or by

the willful permitting of the acts to abuse to occur. With the enactment of §

701.7(C) the Legislature has clearly stated its intention to punish as first

degree murder the use of unreasonable force upon a child or the permitting

of unreasonable force to be used upon a child when the death of a child

results.

 Having found the commission of child abuse and the permitting of child

abuse to be alternative means to committing the crime of first degree

murder by child abuse, “[t]he constitutional requirement of a unanimous

jury verdict applies only to the ultimate issue of the appellant’s guilt or

innocence of the crime charged, not the alternative means by which the

crime was committed.” Rounds v. State, 679 P.2d 283, 287 (Okl.Cr.1984). 

In Powell v. State, 906 P.2d 765, 775-76 (Okl.Cr.1995), this Court stated:

[T]his Court has reaffirmed its prior holdings that failure of a

jury to indicate the basis of their finding of guilt was not error

where there was but a single crime charged, i.e. first degree
20

murder. “Whether or not [murder] was committed with

malice aforethought, or during the commission of a felony

goes to the factual basis of the crime.” When the jury verdict

is unanimous that a defendant committed murder in the first

degree, such a verdict satisfies due process. Further, there is

no due process violation when all of the elements of the crime

charged were proven. (citations omitted).

See also Neill v. State, 896 P.2d 537, 552-53 (Okl.Cr.1994), cert. denied,

516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740 (1996); Crawford v. State,

840 P.2d 627, 640 (Okl.Cr.1992); Newsted v. State, 720 P.2d 734, 737-38

(Okl.Cr.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986);

James v. State, 637 P.2d 862, 865 (Okl.Cr.1981).

 The evidence in the present case showed a prima facie case was made

and all of the elements were proven to support a finding of guilt as to either

child abuse murder by the commission of child abuse or child abuse murder

by permitting child abuse. The evidence supporting the conclusion that

[Gilson] was the perpetrator of the abuse inflicted upon Shane came from

the other Coffman children who testified that both [Gilson] and their mother

beat Shane the day of the murder, carried him to the bathtub, and stayed

with him in the bathroom while he cried and screamed. Supporting

evidence can also be found in Coffman’s statement that she saw [Gilson]

coming out of the bathroom and then found Shane in the bathroom not

breathing.

 Evidence supporting a conclusion that [Gilson] permitted the abuse

comes from Coffman’s statement that she was in the bathroom struggling

with Shane when the shower doors fell down. [Gilson] entered the

bathroom, not once but twice to attend to the shower doors. [Gilson]’s own

statement supports the conclusion that he was aware that Coffman was

abusing Shane in the bathroom.

 The jury’s verdict of guilt indicating it was divided as to the underlying

theory was a disagreement as to the factual basis of the offense and as to the

manner in which the crime was committed. As the Supreme Court stated in

Schad:

We have never suggested that in returning general verdicts in

such cases the jurors should be required to agree upon a single

means of commission, any more than the indictments were
21

required to specify one alone. In these cases, as in litigation

generally, “different jurors may be persuaded by different

pieces of evidence, even when they agree upon the bottom

line. Plainly there is no general requirement that the jury

reach agreement on the preliminary factual issues which

underlie the verdict.” (citation omitted).

Id. at 501 U.S. at 631-32, 111 S.Ct. at 2497.

 Here, there was a single crime charged-first degree murder by child

abuse. Whether or not it was committed through the commission of child

abuse or through the permitting of child abuse goes to the factual basis of

the crime. The jury verdict was unanimous that [Gilson] committed the

crime. Such a verdict satisfies due process. See Plunkett v. State, 719 P.2d

834, 841 (Okl.Cr.), cert. denied, 479 U.S. 1019, 107 S.Ct. 675, 93 L.Ed.2d

725 (1986).

 The enactment of § 701.7(C), a separate provision within the first degree

murder statute to address the death of a child as a result of child abuse, is

indicative of the Legislature’s intent within the last two decades to draft

legislation aimed specifically at the protection and welfare of children. See

10 O.S.Supp.1993, § 401 et. seq. (Oklahoma Child Care Facilities

Licensing Act); 10 O.S. Supp.1995, § 7001-1.1 et. seq. (the Oklahoma

Children’s Code); and, 10 O.S.Supp.1995, § 7101 et. seq. (Oklahoma Child

Abuse Reporting and Prevention Act). Although specifically directed at

situations where child abuse has resulted in death, by enacting 21 O.S.1991,

§ 701.7(C) the Legislature has merely created another way of committing

first degree murder.

 The language of the statute, setting forth alternative means of

committing the crime of child abuse murder, makes it analogous to the

crime of felony-murder. Under 21 O.S.1991, § 701.7(B) felony-murder is

committed when a death results from a defendant’s commission of any of

several specifically listed underlying felonies. In a felony-murder

prosecution, proof of the underlying felony is needed to prove the intent

necessary for a felony murder conviction. Fields v. State, 923 P.2d 624,

634 (Okl.Cr.1996), cert. denied, 520 U.S. 1216, 117 S.Ct. 1704, 137

L.Ed.2d 829 (1997). Further, when the crime is charged in the alternative,

with more than one felony charged as the underlying felony, a

constitutionally unanimous verdict is required only with respect to the

ultimate issue of the defendant’s guilt or innocence of the crime charged
22

and not with respect to alternative means by which the crime was

committed. Blackwell v. State, 663 P.2d 12, 16 (Okl.Cr.1983).

 We find the child abuse murder statute should be interpreted in the same

manner as § 701.7(B). Proof of the underlying act of child abuse is needed

to prove the intent necessary for a child abuse murder conviction. See

Fairchild v. State, 998 P.2d 611, 618-19 (Okl.Cr.1999) (holding crime of

first degree murder by child abuse is a general intent crime). A

constitutionally unanimous verdict is required only with respect to the

ultimate issue of the defendant’s guilt or innocence of the crime charged

and not with respect to alternative means by which the crime was

committed.

Gilson I, 8 P.3d at 900-03 (internal paragraph numbers omitted).

c. Gilson’s entitlement to federal habeas relief on this claim

The above-quoted language makes apparent that the OCCA properly conducted the

first part of the Schad analysis. Specifically, it concluded as a matter of state law that,

“[w]ith the enactment of § 701.7(C), the [Oklahoma] Legislature ha[d] clearly stated its

intention to punish as first degree murder the use of unreasonable force upon a child or

the permitting of unreasonable force to be used upon a child when the death of a child

results.” Gilson I, 8 P.3d at 902. Unfortunately, however, the OCCA failed to conduct

the second, and arguably more important, part of the Schad analysis, i.e., determining

whether the Oklahoma Legislature’s decision to treat “the commission of child abuse and

the permitting of child abuse [as] alternative means to committing the crime of first

degree murder by child abuse” was consistent with principles of due process. In place of

this analysis, the OCCA simply reviewed the evidence presented at trial and concluded

that “a prima facie case was made and all of the elements were proven to support a
3 Although we have not found another first-degree murder statute similar to

Oklahoma’s, we find it significant that other states routinely allow criminal defendants to

be charged with first-degree felony murder when death results from the commission or

permission of severe child abuse. E.g., People v. Morgan, 170 P.3d 129, 147 (Cal. 2007)

(noting that a violation of California’s felony child abuse statute “merges with a resulting

homicide”); People v. Moore, No. 269246, 2007 WL 2742781 at *3 (Mich. App. Sept. 20,

2007) (“this case involved felony murder . . . with the underlying felony of first-degree

child abuse”); Tenn Code Ann. § 39-13-202(a)(2) (defining first degree murder to include

the “killing of another committed in the perpetration of or attempt to perpetrate . . .

aggravated child abuse [and] aggravated child neglect”). Thus, the end result in those

states is effectively the same as in Oklahoma, i.e., the defendant in such a case is charged

with first-degree murder.

23

finding of guilt as to either child abuse murder by the commission of child abuse or child

abuse murder by permitting child abuse.” Id. at 902.

Conducting the second part of the Schad analysis de novo, we conclude that

Oklahoma’s choice is consistent with principles of due process. To be sure, Oklahoma’s

decision to directly include both the commission and permission of abuse resulting in the

death of a child in its definition of first-degree murder appears to be unique among the

states.3

 That said, however, there is contemporary support from other states for the notion

of treating the willful commission and willful permission of child abuse as alternative

means of satisfying the actus reus requirements of a single offense. In particular, several

other states treat willful commission and willful permission as alternative means of

satisfying the actus reus requirement of lesser criminal offenses. E.g., Cal. Penal Code §

11165.3 (defining the crime of “Willful harming or endangering of child” to include “a

situation in which any person willfully causes or permits any child to suffer, or inflicts

thereon, unjustifiable physical pain or mental suffering”); Conn. Gen. Stat. § 53-21
4 Although Gilson argues there is no support in history or state-wide practice for

the imposition of capital punishment for the permitting of severe child abuse, that is

clearly not the proper inquiry under Schad. Rather, the proper constitutional inquiry

under Schad is whether there is historical and/or contemporary support for the Oklahoma

Legislature’s decision to treat the two acts at issue as alternative methods of meeting a

single actus reus element of the crime of first-degree child abuse murder. The question of

whether it is permissible to impose capital punishment for such a crime is a separate

constitutional question (i.e., an Eighth Amendment rather than a Due Process issue).

24

(defining the crime of “Injury or risk of injury to, or impairing morals of, children” to

include any person who “wilfully or unlawfully causes or permits any child . . . to be

placed in such situation that the life or limb of such child is endangered”); Idaho Code

Ann. § 18-1501 (defining the crime of “Injury to children” to include “[a]ny person who,

under circumstances or conditions likely to produce great bodily harm or death, willfully

causes or permits any child to suffer”); 720 Ill. Comp. Stat. 5/12-21.6 (defining the crime

of “Endangering the life or health of a child” to include any person who “willfully

cause[s] or permit[s] the life or health of a child under the age of 18 to be endangered”);

Nev. Rev. Stat. § 200.508 (defining the crime of “Abuse, neglect or endangerment of

child” to include both “wilfully caus[ing]” and “permit[ting] or allow[ing]”); Va. Code.

Ann. § 40.1-103 (defining the crime of “Cruelty and injuries to children” to include

“willfully . . . caus[ing] or permit[ting] the life of [a] child to be endangered”); Wyo. Stat.

Ann. § 6-4-405 (defining the crime of “Endangering children” to include “willfully

caus[ing] or permit[ting]”).4

 As noted by the Supreme Court in Schad, it is “unlikely”

that such relatively common legal definitions would “retain wide acceptance” if they were

“at odds with notions of fairness and rationality sufficiently fundamental to be
25

comprehended in due process.” 501 U.S. at 642. Moreover, Gilson has not established

that the two means at issue, i.e., willful commission and willful permission, for proving

the actus reus requirement of the first-degree murder charge at issue here “are so disparate

as to exemplify two inherently separate offenses.” Id. at 643. Thus, we conclude Gilson

is not entitled to federal habeas relief on this issue.

Enmund/Tison violation

Gilson next argues, citing the Supreme Court’s decisions in Enmund v. Florida,

458 U.S. 782, (1982), and Tison v. Arizona, 481 U.S. 137 (1987), that the imposition of

the death penalty violates his Eighth Amendment rights because the jury in his case did

not unanimously find either that he personally participated in the killing of Shane

Coffman or that he possessed the requisite intent to make him eligible for the death

penalty.

a) The decisions in Enmund and Tison

In Enmund and Tison, the Supreme Court explored the degree of culpability

necessary for the imposition of capital punishment in cases involving felony-murder

convictions. In doing so, both cases looked to the Cruel and Unusual Punishments Clause

of the Eighth Amendment, which prohibits “punishments which by their excessive length

or severity are greatly disproportioned to the offenses charged.” Enmund, 458 U.S. at

788 (internal quotation marks omitted).

In Enmund, the Court “explicitly dealt with two distinct subsets of all felony

murders . . . .” Tison, 481 U.S. at 149. “At one pole was [defendant] Enmund himself;
26

the minor actor in an armed robbery, not on the scene, who neither intended to kill nor

was found to have had any culpable mental state.” Id. “The Court held that capital

punishment was disproportional in these cases,” and thus violative of the Eighth

Amendment. Id. at 150. At the other pole was “the felony murderer who actually killed,

attempted to kill, or intended to kill.” Id. The Court held that the Eighth Amendment

posed no hurdle to the imposition of capital punishment in such cases.

In Tison, the Court expanded on the principle of proportionality by addressing two

related cases that fell between the categories of felony-murder expressly addressed in

Enmund. The petitioners in Tison, two brothers, had assisted their inmate father and

another convict in escaping from prison. During the course of the escape, the group’s car

broke down and one of the brothers flagged down a passing car which contained a family

of four. The group proceeded to kidnap and rob the family. While the brothers were

nearby, the father and the other convict shot and killed all four members of the kidnapped

family. Neither brother attempted to assist the victims before, during, or after the

shooting. Moreover, both brothers continued on with the two escapees and the group was

not apprehended until several days later. Id. at 151-52.

The Supreme Court concluded that although neither petitioner actually killed or

specifically intended to kill any of the victims, the Eighth Amendment did not prohibit

them from being subjected to the death penalty. In reaching this conclusion, the Court

noted that “[a] critical facet of the individualized determination of culpability required in

capital cases is the mental state with which the defendant commits the crime.” Id. at 156. 
27

“Deeply ingrained in our legal tradition,” the Court noted, “is the idea that the more

purposeful is the criminal conduct, the more serious is the offense, and, therefore, the

more severely it ought to be punished.” Id. In turn, the Court noted that “the reckless

disregard for human life implicit in knowingly engaging in criminal activities known to

carry a grave risk of death represents a highly culpable mental state, a mental state that

may be taken into account in making a capital sentencing judgment when that conduct

causes its natural, though also not inevitable, lethal result.” Id. at 157-58. Ultimately, the

Court held that “major participation in the felony committed, combined with reckless

indifference to human life, is sufficient to satisfy the Enmund culpability requirement.”

Id. at 158.

Although not cited by Gilson, the Supreme Court’s decision in Cabana v. Bullock,

474 U.S. 376 (1986), is also relevant to our Enmund/Tison analysis. Cabana was a

procedural case in which the Court “determine[d] in whose hands the [Enmund/Tisonmandated] decision that a defendant possesses the requisite degree of culpability properly

lies.” 474 U.S. at 378. In addressing that issue, the Court emphasized that its “ruling in

Enmund d[id] not concern the guilt or innocence of the defendant” and “establishe[d] no

new elements of the crime of murder that must be found by the jury.” Id. at 385. 

Continuing, the Court noted that “[t]he decision whether a particular punishment–even

the death penalty–is appropriate in any given case is not one that [it] ha[d] ever required

to be made by a jury.” Id. To the contrary, the Court noted, “the decision whether a

sentence is so disproportionate as to violate the Eighth Amendment in any particular case,
28

like other questions bearing on whether a criminal defendant’s constitutional rights have

been violated, has long been viewed as one that a trial judge or an appellate court is fully

competent to make.” Id. at 386. Thus, the Court stated, “Enmund does not impose any

particular form of procedure upon the States.” Id. If a criminal defendant’s conduct

satisfies the Enmund or Tison requirements for imposition of the death penalty, the Court

held, “the Eighth Amendment itself is not violated by his or her execution regardless of

who makes the determination of the requisite culpability . . . .” Id. In other words, “[a]t

what precise point in its criminal process a State chooses to make the Enmund

determination is of little concern from the standpoint of the Constitution.” Id. Thus, the

Court held, “when a federal habeas court reviews a claim that the death penalty has been

imposed on one who” does not meet the Enmund or Tison requirements for imposition of

the death penalty, “the court’s inquiry cannot be limited to an examination of jury

instructions. Rather, the court must examine the entire course of the state-court

proceedings against the defendant in order to determine whether, at some point in the

process, the requisite factual finding as to the defendant’s culpability has been made.” Id.

at 387. “If it has,” the Court held, “the finding must be presumed correct by virtue of 28

U.S.C. § 2254(d), . . . and unless the habeas petitioner can bear the heavy burden of

overcoming the presumption, the court is obliged to hold that the Eighth Amendment as

interpreted in Enmund [and Tison] is not offended by the death sentence.” Id. at 387-88.

b. The OCCA’s rejection of Gilson’s Enmund/Tison claim

Gilson first raised his Enmund/Tison claim on direct appeal. The OCCA rejected
29

the claim on the merits, stating as follows:

 [Gilson] contends in his second assignment of error that his death

sentence violates the Eighth and Fourteenth Amendments, as well as Article

II, § 9, of the Oklahoma Constitution because his conviction under 21

O.S.1991, § 701.7(C), failed to establish eligibility for the death sentence. 

In the first of several subpropositions, [Gilson] argues the State failed to

prove he in fact killed, attempted to kill or was a major participant in a

felony showing reckless indifference to human life. He contends that his

death sentence can stand only if each of the theories underlying his murder

conviction constitutionally justifies the imposition of a capital sentence. 

The State argues in response that the facts in this case are sufficient to

support a finding that [Gilson] was eligible for the death sentence.

 Initially we note the record shows that after the verdicts were rendered,

defense counsel moved to strike the Bill of Particulars arguing that [Gilson]

was no longer constitutionally eligible for the death penalty because the

jury failed to find unanimously that he committed any intentional act which

led to the death of the victim. This objection has properly preserved the

issue for appellate review.

 As addressed in Proposition I, the verdict in this case was a general

verdict of guilt for first degree murder with the jury disagreeing as to the

underlying factual basis. Therefore, we will review that factual basis in

light of the applicable law to determine death eligibility.

 In Wisdom v. State, 918 P.2d 384 (Okl.Cr.1996), we held that a

defendant convicted of First Degree Murder by Child Abuse who actually

killed the victim by his/her own hand was eligible for the death sentence. 

[Gilson] acknowledges this ruling but urges reconsideration. We decline

the offer. (citation omitted). Here, the evidence supports a finding that

[Gilson] actually killed the victim. [Gilson] participated in beating the

victim prior to the time he was taken to the bathroom. [Gilson] was in the

bathroom with the victim and Coffman, and after Coffman left the room,

was seen exiting the bathroom immediately before Shane was found dead. 

This evidence certainly renders [Gilson] eligible for the death sentence.

 This Court has not previously ruled on whether a defendant convicted of

First Degree Child Abuse Murder by permitting child abuse is death

eligible. Both [Gilson] and the State direct us to Tison v. Arizona, 481 U.S.

137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) for the application of the death

penalty to a defendant who does not kill by his/her own hand. In Tison, a
30

felony-murder case in which the defendant himself did not kill, the Supreme

Court held that a defendant who did not actually commit the act which

caused death, but who was a major participant in the felony and who had

displayed reckless indifference to human life, may be sufficiently culpable

to receive the death penalty. 481 U.S. at 158, 107 S.Ct. at 1688. The

Supreme Court stated:

Similarly, we hold that the reckless disregard for human life

implicit in knowingly engaging in criminal activities known

to carry a grave risk of death represents a highly culpable

mental state, a mental state that may be taken into account in

making a capital sentencing judgment when that conduct

causes its natural, though also not inevitable, lethal result.

Id. at 481 U.S. at 157-58, 107 S.Ct. at 1688.

 Tison modified the Supreme Court’s holding in Enmund v. Florida, 458

U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), that the Eighth

Amendment forbids the imposition of the death penalty on “one . . . who

aids and abets a felony in the course of which a murder is committed by

others but who does not himself kill, attempt to kill, or intend that a killing

take place or that lethal force will be employed.” Id., 458 U.S. at 797, 102

S.Ct. at 3376.

 Although this Court has held that an Enmund/Tison analysis does not

apply in the case of the actual killer, (citation omitted), we find it does

apply in a case where the defendant was not the actual killer. (citation

omitted). In as much as one of the underlying theories of this case is

murder by the permitting of child abuse, we apply the analysis used in

Enmund and Tison.

 Here, the evidence shows [Gilson] was a major participant in the felony. 

Acting jointly with Coffman, he took Shane outside the trailer and was

party to conduct which elicited screams from the child. He and Coffman

took Shane back inside the trailer, they both took him back to the bathroom

and they both remained with him in the bathroom for periods of time. This

evidence clearly supports the conclusion that his participation was major

and substantial.

 [Gilson] argues that, at worst, his conduct was that of an omission-of

failing to protect the victim from a potentially dangerous situation-and not

that of knowingly permitting the abuse to occur. To the contrary, [Gilson]’s
31

conduct was not merely the nonperformance of what ought to be done, as in

cases of criminal omissions. (citation omitted). His active participation in

the abuse occurring inside his small trailer is very different from a passive

act of failing to provide what is required by law.

 We next determine whether [Gilson] displayed reckless indifference to

human life. In discussing this term in Tison, the Supreme Court stated “[a]

critical facet of the individualized determination of culpability required in

capital cases is the mental state with which the defendant commits the

crime.” 481 U.S. at 157, 107 S.Ct. at 1687. The Court further stated:

A narrow focus on the question of whether or not a given

defendant “intended to kill,” however, is a highly

unsatisfactory means of definitively distinguishing the most

culpable and dangerous of murderers. Many who intend to,

and do, kill are not criminally liable at all-those who act in

self-defense or with other justification or excuse . . . On the

other hand, some nonintentional murderers may be among the

most dangerous and inhumane of all-the person who tortures

another not caring whether the victim lives or dies, or the

robber who shoots someone in the course of the robbery,

utterly indifferent to the fact that the desire to rob may have

the unintended consequence of killing the victim as well as

taking the victim’s property. This reckless indifference to the

value of human life may be every bit as shocking to the moral

sense as an “intent to kill.” . . . “[I]n the common law,

intentional killing is not the only basis for establishing the

most egregious form of criminal homicide . . . . For example,

the Model Penal Code treats reckless killing, ‘manifesting

extreme indifference to the value of human life,’ as equivalent

to purposeful and knowing killing”). Enmund held that when

“intent to kill” results in its logical though not inevitable

consequence-the taking of human life-the Eighth Amendment

permits the State to exact the death penalty after a careful

weighing of the aggravating and mitigating circumstances. 

Similarly, we hold that the reckless disregard for human life

implicit in knowingly engaging in criminal activities known

to carry a grave risk of death represents a highly culpable

mental state, a mental state that may be taken into account in

making a capital sentencing judgment when that conduct

causes its natural, though also not inevitable, lethal result.
32

Id., at 481 U.S. at 157-58, 107 S.Ct. at 1687-88.

 In making the above determination, the Supreme Court also looked to

the laws of several states and found that in the states which authorize capital

punishment for felony-murder the greater the defendant’s participation in

the felony murder, the more likely that he acted with reckless indifference

to human life. Id., 481 U.S. at 153-54, 107 S.Ct. at 1685-86.

 This Court has addressed reckless indifference to human life only as it

pertains to those who actually killed. In doing so, we found a reckless

indifference to human life turns largely on the facts of the case, but was

evidenced in part by the defendant’s creation of a desperate situation

inherently dangerous to human life. Hain v. State, 919 P.2d 1130, 1146

(Okl.Cr.), cert. denied, 519 U.S. 1031, 117 S.Ct. 588, 136 L.Ed.2d 517

(1996), and the defendant’s causing the serious conscious physical suffering

and death of the victim. Brown v. State, 989 P.2d 913, 931 (Okl.Cr. 1998).

 The facts in the present case support a finding that [Gilson] acted with

reckless indifference to human life. Acts in which [Gilson] participated

outside the trailer caused injury to the child which elicited screams of pain. 

The child was brought back inside the trailer with swollen arms, a soft spot

on his head, and irregular breathing. The victim had to be carried to the

bathroom, an act in which [Gilson] again participated. Further acts in

which [Gilson] participated inside the bathroom caused the victim to again

scream and cry. [Gilson] was aware of the struggle between Coffman and

the victim in which the victim was injured and property in the bathroom

was damaged.

 [Gilson]’s argument focuses on the elements of the offense of permitting

child abuse and asserts that terms “willfully” and “knowingly” contained in

the statute and jury instruction on first degree murder by permitting child

abuse are not the equivalent of reckless indifference for human life. The

elements of the offense of first degree murder by permitting child abuse

have previously been addressed in this opinion. We found the evidence in

this case supported a finding of the existence of those elements beyond a

reasonable doubt. Here, we look beyond those elements and find [Gilson]’s

conduct illustrated a reckless indifference to human life. The evidence

supports a finding that [Gilson] subjectively appreciated that his conduct

would likely result in the taking of innocent life. This is sufficient to make

him eligible for the death penalty.

 In this opinion, we have previously compared the crime of child abuse
33

murder to the crime of felony-murder for purposes of determining

sufficiency of the evidence to sustain a conviction. Such a comparison of

the two offenses is again warranted during this discussion of the

applicability of the death penalty. The eligibility of a defendant convicted

of child abuse murder by the permitting of child abuse is similar to that of a

non-triggerman convicted of felony-murder. In Hatch, 701 P.2d at 1040, a

non-triggerman was sentenced to death for his participation in the

underlying felonies. Hatch and co-defendant Ake forced their way into the

victim’s home, ransacked the home at gunpoint and repeatedly threatened to

kill the family of four who occupied the house. Ake instructed Hatch to go

outside, turn the car around, and “listen for the sound.” Hatch did as he was

told. Ake then shot each family member and fled the scene with Hatch. 

The two adult victims died while the two children survived. Ake v. State,

663 P.2d 1, 4 (Okl.Cr.1983).

 In reviewing Hatch’s death sentence, this Court stated:

 In Enmund, the Supreme Court held that the death penalty

cannot be constitutionally imposed against one who is

convicted of felony murder for a killing occurring during the

course of a robbery who neither kills, does not intend that life

be taken, nor contemplates that lethal force will be employed

by others. The evidence against appellant was that he entered

his victims’ home with a shotgun in hand. His confederate

entered too with a loaded handgun. Appellant held the

victims at gunpoint while Ake looted the home and attempted

to rape his victims’ twelve year old daughter. Appellant also

took a turn attempting to rape her. Appellant frequently

threatened the lives of his victims as they lay hog-tied on the

floor. After a discussion as to their plan of action, appellant

went outside and turned his automobile around while he

waited “for the sound”, as Ake had instructed him to do.

 We agree with the trial court’s finding that “the Defendant

Hatch contemplated that a killing was not only possible, but

probable and further that lethal force probably be employed.” 

Therefore, we find that appellant’s sentences of death are

justified and are in compliance with Enmund and we

AFFIRM each.

Hatch, 701 P.2d at 1040.
34

 The death sentence for a non-triggerman has also been upheld in other

jurisdictions. In Florida v. White, 470 So.2d 1377 (Fla.1985), the defendant

and two companions gained entrance to a home under a subterfuge. All

three men were armed and wore masks. They tied up the people in the

house and ransacked it. When one of the assailants’ mask fell from his

face, the three assailants discussed killing the victims. The defendant

verbally opposed any killing. The two other assailants shot the victims,

killing six of the eight. The three assailants then gathered up their loot and

returned to the defendant’s motel room where the loot was divided. The

Supreme Court of Florida found that Enmund did not bar the imposition of

the death penalty due to the defendant’s presence both before, during and

after the murders; his full and active role in capturing, intimidating and

guarding the victims; his failure to disassociate himself from either the

robbery or the murder while verbally opposing any killing; and the lack of

any evidence he acted under coercion.

 In Fairchild v. Norris, 21 F.3d 799 (8th Cir. 1994), the Eighth Circuit

Court of Appeals held the evidence supported a finding that the defendant

non-triggerman was eligible for the death penalty. In that case, the

defendant and an accomplice kidnapped, raped and killed a woman. The

Court found the defendant fully participated in the kidnapping of the

victim-followed her to her car, forced her inside at gunpoint, and took

money from her purse. Upon arriving at a deserted house, he subsequently

raped her. The defendant was outside of the house when the victim was

shot by the accomplice. However, the defendant had been present when the

gun was initially shown to the victim and death threats were made. The

Eighth Circuit found the defendant’s participation in the armed robbery,

kidnapping and rape; his leaving the victim alone with the armed

accomplice, and his failure to be deterred in his conduct by the victim’s

pleas for mercy were sufficient for a reasonable juror to find that he was a

major participant in the felonies and that he acted with reckless indifference

to human life.

 Accordingly, evidence in the present case of [Gilson]’s full, active and

knowing participation in the underlying acts of child abuse inflicted upon

Shane, his failure to disassociate himself from those acts of abuse

perpetrated by Bertha Coffman, and his failure to either be deterred in his

conduct or respond in any positive manner to what surely must have been

pleas for mercy from the victim, were sufficient for a reasonable juror to

find beyond a reasonable doubt that he was a major participant in the child

abuse and that he acted with reckless indifference to human life.
5 Apprendi was decided approximately a month before the OCCA issued its

decision resolving Gilson’s direct appeal.

35

 [Gilson] next argues his death sentence should be modified as an

Enmund/Tison analysis was not done by the trial court and it would be

improper for this Court to conduct such a review on appeal. In Cabana v.

Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), the Supreme

Court stated that the Eighth Amendment does not require that a jury make

the findings required by Enmund; an appellate court, a trial judge, or a jury

may make the requisite findings. Id. at 474 U.S. at 392, 106 S.Ct. at 700. 

This Court can review the record and make the findings required by

Enmund and Tison. Reviewing the evidence in this case, we find the facts

support a finding that [Gilson]’s major participation in the felony of child

abuse, combined with reckless indifference to human life, is sufficient to

satisfy the Enmund culpability requirement.

Gilson I, 8 P.3d at 919-22 (internal paragraph numbers omitted).

Following the issuance of the OCCA’s decision, Gilson filed a petition for

rehearing with the OCCA arguing that the Supreme Court had just issued its decision in

Apprendi v. New Jersey, 530 U.S. 466 (2000)5

, and that, in light of Apprendi, only a jury

could make the requisite Enmund/Tison findings. On August 29, 2000, the OCCA issued

an order denying Gilson’s petition for rehearing and stating, in pertinent part, as follows:

 We have reviewed Apprendi and find it is not applicable. In Apprendi,

the Supreme Court struck down as unconstitutional the New Jersey “hate

crime” statute. The New Jersey statute provided for an extended term of

imprisonment if the trial judge found, by a preponderance of the evidence,

that the defendant in committing the underlying criminal offense acted with

a purpose to intimidate an individual or group of individuals because of

race, color, gender, handicap, religion, sexual orientation or ethnicity. The

Supreme Court said it was “unconstitutional for a legislature to remove

from the jury the assessment of facts that increase the prescribed range of

penalties to which a criminal defendant is exposed.” 102 S.Ct. 2362-63. 

The Court further said “[i]t is equally clear that such facts must be

established by proof beyond a reasonable doubt.” Id., 102 S.Ct. at 2363. 

The Supreme Court continued by finding the principles involved in its
36

decision in Apprendi did not render invalid prior case law holding that it is

not necessary for a jury in a capital case to make every finding of fact

underlying the sentencing decision.

Finally, this Court has previously considered and rejected the

argument that the principles guiding our decision today render

invalid state capital sentencing schemes requiring judges,

after a jury verdict holding a defendant guilty of a capital

crime, to find specific aggravating factors before imposing a

sentence of death. Walton v. Arizona, 497 U.S. 639, 647-649

(1990); id., at 709-714 (Stevens, J., dissenting). For reasons

we have explained the capital cases are not controlling:

“Neither the cases cited, nor any other case, permits a judge to

determine the existence of a factor which makes a crime a

capital offense. What the cited cases hold is that, once a jury

has found the defendant guilty of all the elements of an

offense which carries as its maximum penalty the sentence of

death, it may be left to the judge to decide whether that

maximum penalty, rather than a lesser one, ought to be

imposed . . . . The person who is charged with actions that

expose him to the death penalty has an absolute entitlement to

jury trial on all the elements of the charge.” AlmendarezTorres, 523 U.S., at 257, n. 2 (Scalia, J., dissenting)

(emphasis deleted).

102 S.Ct. at 2366.

 Accordingly, we find Apprendi does not render invalid the rule of

Cabana, i.e., that the Eighth Amendment does not require that a jury make

the findings required by Enmund; an appellate court, a trial judge, or a jury

may make the requisite findings. Cabana, 474 U.S. at 392, 106 S.Ct. at

700. This Court was legally entitled to make the Enmund/Tison findings in

[Gilson]’s direct appeal.

 Further, under Oklahoma law, in order to return a verdict of guilty, the

jury is required to find, beyond a reasonable doubt, each element of the

offense charged. In the sentencing phase of a capital case, the jury is

required to find, beyond a reasonable doubt, the existence of the

aggravating circumstances alleged and whether the aggravating

circumstances outweigh the mitigating evidence. This is the basis upon

which the death sentence is imposed, not any findings as to culpability
37

which might be required by Enmund/Tison. In Apprendi, the defendant

entered guilty pleas and waived his right to a jury determination of the

issues.

 For the foregoing reasons, we find Apprendi is not controlling, and

rehearing on the issue is denied.

Gilson v. State, No. F-98-606 (Okla. Crim. App. Aug. 29, 2000) (Order Denying

Rehearing and Directing Issuance of Mandate).

c. Gilson’s entitlement to federal habeas relief on this claim

Gilson asserts three challenges to the OCCA’s decision, which we will proceed to

address in turn. First, Gilson argues that, “[b]ased on the verdicts rendered [in his case],

there [wa]s no jury finding [that he] actively participated in any criminal acts” sufficient

to satisfy the Enmund/Tison standards. Aplt. Br. at 49. In connection with that argument,

Gilson, citing the Supreme Court’s decision in Apprendi, asserts that he “has a right to a

jury determination of his Enmund-Tison death-eligibility.” Aplt. Br. at 51. In other

words, he appears to be suggesting that the OCCA, in denying his petition for rehearing,

unreasonably applied Apprendi. The key question in deciding Gilson’s Enmund/Tison

claim, in light of the standards outlined in § 2254(d), is whether the OCCA’s resolution of

that same claim in the context of Gilson’s direct appeal was contrary to, or an

unreasonable application of, clearly established federal law as it existed at the time of the

OCCA’s decision (July of 2000). See Stevens v. Ortiz, 465 F.3d 1229, 1235-38 (10th

Cir. 2006) (noting that a federal habeas court must identify and apply the clearly

established Supreme Court precedent existing at the time the defendant’s conviction

became final). At that time, Apprendi had just been issued, and there was no clear
6 Although some of Apprendi’s progeny, in particular Ring v. Arizona, 536 U.S.

584 (2002) (holding that Arizona statute that allowed a trial judge, sitting alone, to

determine the presence or absence of aggravating factors in capital case violated the Sixth

Amendment right to a jury trial), arguably lend support to Gilson’s position, those cases

were issued well after Gilson’s direct appeal was decided by the OCCA. 

38

indication by the Supreme Court that it intended for Apprendi to overrule or undermine

the key holdings in Cabana, i.e., that Enmund “establishe[d] no new elements of the

crime of murder that must be found by the jury,” and that “[t]he decision whether a

particular punishment–even the death penalty–is appropriate in any given case is not one

that [is] required to be made by a jury,” 474 U.S. at 385. Indeed, there has yet to be any

such clear indication.6

 Therefore, to allow Gilson to obtain federal habeas corpus relief

on the basis of an argument that has yet to be conclusively decided by the Supreme Court,

and that was essentially unavailable to the OCCA at the time it decided his direct appeal,

is contrary to the dictates of § 2254(d).

In his second challenge to the OCCA’s decision, Gilson argues that allowing the

OCCA to make Enmund/Tison-related findings would effectively “negate[] the jury’s

specific findings.” Aplt. Br. at 53. In connection therewith, Gilson argues that “[s]ome

of his jury believed he did nothing more than ‘permit’ Coffman to commit the physical

abuse,” and in doing so “these jurors specifically rejected a finding [that he] even

participated with another in the crime.” Id. at 49. To properly address this argument, we

turn first to the jury instructions that were employed at Gilson’s trial to determine what

facts the jury necessarily had to have found in reaching its verdict on the first-degree

murder charge. The state trial court gave the following instruction outlining the essential
39

elements of the first-degree murder charge:

 No person may be convicted of MURDER IN THE FIRST DEGREE

unless the State has proved beyond a reasonable doubt each element of the

crime. These elements are: First, the death of a child under the age of

eighteen; Second, the death resulted from the willful or malicious injuring,

torturing or using of unreasonable force; Third, by the defendant and/or

another engaged with the defendant.

 AND IN THE ALTERNATIVE

 No person may be convicted of MURDER IN THE FIRST DEGREE

unless the State has proved beyond a reasonable doubt each element of the

crime. These elements are: FIRST, the death of a child under the age of

eighteen; Second, the death resulted from the willful or malicious injuring,

torturing or using of unreasonable force; Third, which was knowingly

permitted; FOURTH, by a person responsible for the child’s health or

welfare.

State ROA - Case No. CF96-245, File #6 at 946 (Instruction No. 6). The state trial court

also gave the following instructions that provided more detail regarding how the jury was

to apply the elements of first-degree murder:

 You are further instructed as to the following Definitions:

 Direct Result - Immediate consequence which is not separated from its

initial cause by other, independent factors.

Id. at 947 (Instruction No. 7).

 No person may be convicted of FIRST DEGREE MURDER unless his

conduct or the conduct of another person for which he is criminally

responsible caused the death of the person allegedly killed. A death is

caused by the conduct if the conduct is a substantial factor in bringing about

the death and the conduct is dangerous and threatens or destroys life.

Id. at 948 (Instruction No. 8).

 No person may be convicted of MURDER IN THE FIRST DEGREE

unless both the fact of the death of the person allegedly killed and the fact

that his death was caused by the conduct of another person are established

as independent facts and beyond a reasonable doubt. Such proof must
40

consist of evidence which is wholly independent of any confession made by

the defendant. Such evidence, however, may be circumstantial and need

not include proof of the identity of the person who caused the death.

Id. at 949 (Instruction No. 9).

 You are instructed that, although your verdict as to guilt of the crime of

FIRST DEGREE MURDER must be unanimous, you need not agree

unanimously as to the theory upon which you arrive at that verdict.

Id. at 954 (Instruction No. 14).

 You are further instructed as to the following Definitions:

 Knowingly - With personal awareness of the facts.

 Malicious - The term imports a wish to vex, annoy or injure another

person.

 Person Responsible for a Child’s Welfare - Includes a parent, legal

guardian, custodian, foster parent, a person eighteen years of age or older

with whom the child’s parent cohabitates or any other adult residing in the

home of the child.

 Torture - Infliction of great physical pain.

 Unreasonable Force - More than that ordinarily used as a means of

discipline.

 Willful - Purposeful. “Willful” is a willingness to commit the act or

omission referred to, but does not require any intent to violate the law, or to

acquire any advantage.

Id. at 958 (Instruction No. 18).

In light of these instructions and the results indicated on the verdict form, it is

indisputable that all twelve jurors agreed that the death of Shane Coffman resulted from

the willful or malicious injuring, torturing or using of unreasonable force. As noted,

however, the jurors were divided on which of the two alternative theories supported the
41

murder conviction. One or more of the jurors found beyond a reasonable doubt that

Gilson “and/or another engaged with” him, i.e, Bertha Coffman, committed the willful or

malicious injuring, torturing or using of unreasonable force. In other words, this group of

jurors found beyond a reasonable doubt that Gilson took an active part, either alone or

together with Bertha Coffman, in the specific acts that directly resulted in Shane

Coffman’s death. See generally Webster’s Third New Int’l Dictionary 751 (1993)

(defining the term “engage” as “to involve or entangle (as a person) in some affair or

enterprise”); id. (defining the term “engaged” as “involved esp. in a hostile encounter”). 

The second group of jurors (which, like the first group, would have encompassed

anywhere from one to eleven jurors) found beyond a reasonable doubt that Gilson was a

“person responsible for” Shane Coffman’s health or welfare and that Gilson “knowingly

permitted” another person, Bertha Coffman, to commit the specific acts that directly

resulted in Shane Coffman’s death. Importantly, nothing about this second group’s

findings necessarily meant, as suggested by Gilson, that they “specifically rejected a

finding [that he] even participated with another in the crime.” Aplt. Br. at 49. As noted,

the jury instructions required the jury to focus on the specific acts that directly resulted in

Shane Coffman’s death. Although the second group of jurors had to have found that

Bertha Coffman, with Gilson’s knowing permission, committed those acts, that does not

mean that this group necessarily also found that Gilson played no other role in the

offense. Stated differently, it is entirely possible that this second group of jurors found

that Gilson played an active role in severely abusing Shane Coffman in the hours prior to
42

his death, but that Bertha Coffman committed the final act or acts that resulted in Shane’s

death. Indeed, such a finding could have been directly derived from a combination of

witnesses’ testimony: testimony from the surviving children regarding severe abuse

jointly perpetrated by Gilson and Bertha Coffman in the hours leading up to Shane’s

death, and Bertha Coffman’s own testimony that she was in the bathroom alone with

Shane just prior to his death and that Gilson entered the bathroom on two occasions

during that time period to fix the shower doors.

The next question is whether any of the OCCA’s Enmund/Tison culpability

findings were inconsistent with the jury’s findings. The OCCA found that Gilson

“active[ly] participat[ed] in the abuse” of Shane Coffman, Gilson I, 8 P.3d at 920, and in

so doing “acted with reckless indifference to human life.” Id. at 921. More specifically,

the OCCA found that Gilson “participated [in acts] outside the trailer [that] caused injury

to the child which elicited screams of pain,” “brought [the child] back inside the trailer

with swollen arms, a soft spot on his head, and irregular breathing,” “carried [the child] to

the bathroom,” “participated [in acts] inside the bathroom [that] caused the [child] to

scream and cry,” and “was aware of the struggle between Coffman and the [child] in

which the [child] was injured and property in the bathroom was damaged.” Id. The

OCCA also found that Gilson “subjectively appreciated that his conduct would likely

result in the taking of innocent life.” Id. In sum, the OCCA found that Gilson’s “major

participation in the felony of child abuse, combined with reckless indifference to human

life, [wa]s sufficient to satisfy the Enmund culpability requirement.” Id. at 922.
43

We conclude that none of the OCCA’s findings were inconsistent with the factual

findings that the jury necessarily had to have made in reaching its verdict on the firstdegree murder charge. In particular, the OCCA’s findings regarding Gilson’s active

participation in the events leading up to the death of Shane Coffman, and Gilson’s

reckless indifference to human life, are not inconsistent with or precluded by the findings

of those jurors who determined that Gilson knowingly permitted, rather than directly

committed, the specific acts that directly resulted in Shane’s death. Thus, we reject

Gilson’s assertion that the OCCA’s findings effectively nullified the jury’s verdict on the

first-degree murder charge.

In his third and final challenge to the OCCA’s decision, Gilson argues that “the

facts and evidence in his case simply d[id] not support a finding of death eligibility”

under Enmund and Tison. Aplt. Br. at 55. More specifically, Gilson takes issue with

“[t]he OCCA’s finding [that he] was a ‘major participant’ in the offense and showed

‘reckless indifference for human life’ . . . .” Id.

On federal habeas review, we must presume the OCCA’s factual determinations

are correct and such a presumption may only be rebutted by clear and convincing

evidence to the contrary. 28 U.S.C. § 2254(e)(1); Willingham v. Mullin, 296 F.3d 917,

922 (10th Cir. 2002). Unless the OCCA’s factual determinations are shown to be clearly

wrong and objectively unreasonable, we may not overturn them on federal habeas review. 

Miller-El v. Cockrell, 537 U.S. 322, 324 (2003).

Reviewing the record in light of these standards, we readily reject Gilson’s
44

arguments. Although each of the eyewitnesses to the events leading up to the murder

(Bertha Coffman and the four surviving children) gave slightly differing accounts, their

testimony, particularly when combined with the physical evidence found at the trailer and

the results of the autopsy performed on Shane Coffman, was more than sufficient to

support each of the OCCA’s Enmund/Tison findings. In particular, Tranny Coffman

testified that on the day he last saw Shane (i.e., the day of Shane’s death), Gilson

disciplined Shane inside the trailer by beating him with a board, later that day Gilson

accompanied Shane and Bertha Coffman outside the trailer and Shane could be heard

screaming, Gilson and Coffman then jointly carried Shane back inside the trailer and

placed him on the couch, as Shane sat on the couch, Tranny observed that Shane’s arms

were swollen, his head had a soft spot on it, and he was breathing in a “weird” fashion

(i.e., making gargling-type sounds), Gilson then carried Shane to the bathroom, and at

some point thereafter Shane could be heard inside the bathroom. Tranny’s testimony was

bolstered by that of his brother, Isaac Coffman, who testified that he used the bathroom

that day, observed Shane in the bathtub with some of his hair gone, bruises on his arms

and legs, making funny noises and failing to respond to questions from Isaac. In addition

to this testimony, all five witnesses testified more generally that Gilson routinely

“disciplined” the children, including Shane, by beating them with various objects. 

Considered together, this evidence was more than sufficient to support each of the
7 Although Gilson correctly notes that the OCCA’s findings were inconsistent with

portions of Bertha Coffman’s testimony, that does not render the OCCA’s findings

improper or unsupported by the evidence. As noted, the OCCA’s findings were amply

supported by the testimony of Tranny and Isaac Coffman. Moreover, a review of the

entire trial transcript strongly suggests that much of Bertha Coffman’s testimony was less

than truthful.

45

OCCA’s findings regarding Gilson’s actions and mental state.7

In sum, we conclude that the OCCA’s decision was neither contrary to, nor an

unreasonable application of, the principles outlined in Enmund and Tison.

Is Gilson’s death sentence disproportionate to his offense?

In his third issue on appeal, Gilson argues that his death sentence violates the

Cruel and Unusual Punishment Clause of the Eighth Amendment because it is

disproportionate to his offense. In support of this proposition, Gilson asserts that the

“jury did not find he had a direct role in Shane’s death,” and that his “crime [wa]s one of

omission, or failing to act.” Aplt. Br. at 58. “Under these circumstances,” Gilson argues,

“imposition of the death penalty, unique in its severity and irrevocability, is ‘excessive in

relation to the crime committed’ in violation of his constitutional rights.” Id. (quoting

Coker v. Georgia, 433 U.S. 584, 592 (1977)).

a) Clearly established Supreme Court precedent

Our first task is to determine the clearly established federal law applicable to this

claim. The Supreme Court, in several cases, including Coker, as well as Enmund and

Tison, has outlined general proportionality standards for imposition of the death penalty. 

Under those standards, “a punishment is ‘excessive’ and unconstitutional if it (1) makes
46

no measurable contribution to acceptable goals of punishment and hence is nothing more

than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of

proportion to the severity of the crime.” Coker, 433 U.S. at 592. “A punishment might

fail the test on either ground.” Id. “Furthermore, these Eighth Amendment judgments

should not be, or appear to be, merely the subjective views of individual Justices;

judgment should be informed by objective factors to the maximum possible extent.” Id.

“To this end, attention must be given to the public attitudes concerning a particular

sentence history and precedent, legislative attitudes, and the response of juries reflected in

their sentencing decisions are to be consulted.” Id.

b) OCCA’s application of the proportionality standards

In connection with its analysis of Gilson’s Enmund/Tison arguments on direct

appeal, the OCCA addressed and rejected Gilson’s proportionality arguments, stating as

follows:

 Finally, [Gilson] argues the death penalty is constitutionally

disproportionate to the crime of permitting child abuse murder. He

contends the death penalty is excessive as: (1) it does not contribute to the

goals of punishment and results in needless imposition of pain and

suffering, and (2) the punishment is grossly disproportionate to the severity

of the crime. See Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861,

2866, 53 L.Ed.2d 982 (1977). In discussing the constitutionality of the

death sentence for a defendant who did not kill, the Supreme Court in

Enmund stated:

In Gregg v. Georgia the opinion announcing the judgment

observed that “[t]he death penalty is said to serve two

principal social purposes: retribution and deterrence of capital

crimes by prospective offenders.” (citation omitted). Unless

the death penalty when applied to those in Enmund’s position

measurably contributes to one or both of these goals, it “is
47

nothing more than the purposeless and needless imposition of

pain and suffering,” and hence an unconstitutional

punishment. Coker v. Georgia, 433 U.S. at 592, 97 S.Ct. at

2866.

Enmund, 458 U.S. at 798, 102 S.Ct. at 3377.

 The Supreme Court stated that neither the deterrent nor the retributive

purposes of the death penalty were advanced by imposing the death penalty

upon Enmund as the Court was unconvinced “that the threat that the death

penalty will be imposed for murder will measurably deter one who does not

kill and has no intention or purpose that life will be taken.” Id., at 458 U.S.

at 798-799, 102 S.Ct. at 3377. In reaching this conclusion, the Court relied

upon the fact that killing only rarely occurred during the course of

robberies, and such killing as did occur even more rarely resulted in death

sentences if the evidence did not support an inference that the defendant

intended to kill. Id., at 458 U.S. at 799, 102 S.Ct. at 3377-78.

 As for the principle of retribution, the Court stated the heart of the

retribution rationale is that a criminal sentence must be directly related to

the personal culpability of the criminal offender.

As for retribution as a justification for executing Enmund, we

think this very much depends on the degree of Enmund’s

culpability-what Enmund’s intentions, expectations, and

actions were. American criminal law has long considered a

defendant’s intention-and therefore his moral guilt-to be

critical to “the degree of [his] criminal culpability,” (citation

omitted), and the Court has found criminal penalties to be

unconstitutionally excessive in the absence of intentional

wrongdoing.

Id., at 458 U.S. at 800, 102 S.Ct. at 3378,

 Enmund was the driver of the “getaway” car in an armed robbery of a

dwelling. The occupants of the house, an elderly couple, resisted and

Enmund’s accomplices killed them. The result in Enmund did not turn on

the mere fact that Enmund was convicted of felony murder. It is important

to note how attenuated was Enmund’s responsibility for the deaths of the

victims in that case.

 In the present case, [Gilson] was convicted of first degree murder by
48

child abuse by the commission of the child abuse or in the alternative first

degree murder by child abuse through the willful permitting of child abuse. 

21 O.S.1991, § 701.7(C). We have determined the evidence is sufficient to

support either of the alternative ways to commit first degree murder under

the statute. The offense of willfully permitting child abuse murder requires

a knowing and willful permitting of child abuse to occur by a person

authorized to care for the child. Child abuse does not always result in

death, but death is the result often enough that the death penalty should be

considered as a justifiable deterrent to the felony itself. Children are the

most vulnerable citizens in our communities. They are dependent on

parents, and others charged in their care, for sustenance, protection, care

and guidance. Depending on age and physical development they tend to be

more susceptible to physical harm, and even death, if unreasonable force is

inflicted upon them. Within this context, legislative action to address the

specific crime of child abuse murder is legally justified.

 Applying the death penalty to this situation wherein [Gilson], willfully,

purposefully and knowingly allowed the victim to be abused to the extent

that death resulted, when he was in a position to have prevented that abuse,

certainly serves both the deterrent and retributive purposes of the death

penalty. The threat that the death penalty will be imposed for permitting

child abuse which results in the death of the child accentuates the

responsibility a parent or person charged with the care and protection of a

child has to that child and will deter one who permits that abuse.

 As for retribution, [Gilson]’s personal culpability in this situation is

high. The situation is quite different from that where the child abuse occurs

and the individual is not aware of the abuse. [Gilson]’s responsibility for

the death of the victim was not so attenuated as was that of Enmund who

merely waited in the car while the victims were shot and had no knowledge

of or immediate control over the actions of his co-defendants. [Gilson]’s

personal participation in permitting Coffman to abuse the victim to the

extent that death resulted was major and substantial, and there was proof

that such participation was wilful [sic] and knowing. Therefore the death

penalty is not excessive retribution for his crime.

 Accordingly, we find the requirements of Enmund and Tison have been

met, and the death penalty is an appropriate punishment for the crime of

first degree murder by permitting child abuse in these circumstances. This

assignment of error is denied.

Gilson I, 8 P.3d at 922-24 (internal paragraph numbers omitted).
49

c) Gilson’s challenges to the OCCA’s proportionality review

Gilson asserts three general challenges to the OCCA’s proportionality review. 

First, he argues “there is a glaring lack of historical or precedential support for imposing

the death penalty” upon him. Aplt. Br. at 62. “Indeed,” he argues, “there appears to be

no precedent whatsoever for executing a defendant for a crime based on permitting or

failing to prevent another’s commission of an offense; nor is there precedent for

executing a defendant where there is no actus reus.” Id. “Historically,” Gilson argues,

“absent a legal duty to act, failure to act to prevent a crime has constituted no offense at

all, let alone a capital one.” Id. Second, Gilson argues there is “no precedent for

imposing death based on a state criminal statute which does not require, and a jury

determination which fails to find, the defendant was a participant in the offense.” Id. at

64. Third, and finally, Gilson argues that imposition of the death penalty based on an

offense of “permitting” makes no measurable contribution to the goals of punishment. In

support of this argument, Gilson asserts that “[t]he trial produced no proof [he] committed

any acts resulting in harm, nor intended any harm be inflicted (by another), upon the

children,” and thus “the threat of execution is unlikely to deter the inaction required to

sustain the conviction.” Id. at 67 (italics in original). Relatedly, Gilson asserts that

“executing a defendant to avenge a killing he had no intention of committing or causing

does not measurably contribute to the retributive end of ensuring the criminal gets his

‘just deserts.’” Id. at 68-69.

The problem with Gilson’s arguments is that there is a complete disconnect
8 There does, however, appear to be relatively substantial support among the states

for allowing a defendant to be convicted of first degree murder or felony murder and

sentenced to death based upon an underlying felony or act of severe child abuse. E.g.,

State v. Velazquez, 166 P.3d 91 (Ariz. 2007); People v. Beames, 153 P.3d 955 (Cal.

2007); Brooks v. State, 918 So.2d 181 (Fla. 2005). Thus, although the Oklahoma

Legislature’s decision to expressly incorporate child abuse murder into its first-degree

murder statute appears to be unique, its decision regarding how to treat and punish such

crimes does not appear to be unique.

50

between them and the actual circumstances of his case. For example, while we might

well agree that there is little, if any, historical or contemporary support for imposition of

the death penalty on a defendant who merely fails to act to prevent a crime, and who had

no intention of committing or causing the death of the victim, those are not the

circumstances presented here.8

 In Tison, the Supreme Court made clear that

proportionality review takes into account not merely the findings necessarily inherent in

the jury’s verdict, but also any Enmund/Tison findings subsequently made by the state

trial or appellate courts. The OCCA’s Enmund/Tison findings regarding Gilson’s active

and significant participation and his reckless indifference to human life effectively

equated Gilson with the two petitioners in Tison and thereby allowed the OCCA to

essentially incorporate Tison’s own proportionality review, including the Court’s

conclusion that imposition of the death penalty in such circumstances was proper. Thus,

we are not persuaded that the OCCA’s proportionality review was contrary to, or an

unreasonable application of, clearly established federal law.

Ex Post Facto Violation

In his fourth issue, Gilson argues that his first-degree murder conviction rests on
51

elements set forth in a statute enacted after Shane Coffman’s death, thereby resulting in a

violation of the Ex Post Facto Clause. Gilson notes that the jury in his case “was

instructed that ‘permitting’ child abuse could be committed by ‘a person responsible for a

child’s health or welfare’ which was the new language of 10 O.S. § 7115, effective

11/1/1995.” Aplt. Br. at 71. In turn, he notes, “[a] person responsible for a child’s health

or welfare was defined for the jury as including an adult ‘with whom the child’s parent

cohabitates or any other adult residing in the home of the child.’” Id. (quoting State

ROA, Vol 6. at 637 (Instruction No. 18)). Gilson asserts, however, that at the time of

Shane Coffman’s death in August 1995, “the statute was codified as 21 O.S. § 843 and

defined ‘permitting’ as a crime committed ‘by one under a legal duty to render aid to the

child.’” Id. at 71-72.

a) Clearly established Supreme Court precedent

Gilson identifies Collins v. Youngblood, 497 U.S. 37 (1990), as providing the

“clearly established federal law” applicable to his ex post facto claim. In Collins, the

Supreme Court offered the following explanation of the constitutional prohibition against

ex post facto laws:

 Although the Latin phrase “ex post facto” literally encompasses any law

passed “after the fact,” it has long been recognized by this Court that the

constitutional prohibition on ex post facto laws applies only to penal

statutes which disadvantage the offender affected by them. Calder v. Bull,

3 Dall. 386, 390-392, 1 L.Ed. 648 (1798) (opinion of Chase, J.); id., at 396

(opinion of Paterson, J.); id., at 400 (opinion of Iredell, J.). See Miller v.

Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). 

(footnote omitted). As early opinions in this Court explained, “ex post facto

law” was a term of art with an established meaning at the time of the

framing of the Constitution. Calder, 3 Dall., at 391 (opinion of Chase, J.);
52

id., at 396 (opinion of Paterson, J.). Justice Chase’s now familiar opinion in

Calder expounded those legislative Acts which in his view implicated the

core concern of the Ex Post Facto Clause:

“1st. Every law that makes an action done before the passing

of the law, and which was innocent when done, criminal; and

punishes such action. 2d. Every law that aggravates a crime,

or makes it greater than it was, when committed. 3d. Every

law that changes the punishment, and inflicts a greater

punishment, than the law annexed to the crime, when

committed. 4th. Every law that alters the legal rules of

evidence, and receives less, or different, testimony, than the

law required at the time of the commission of the offence, in

order to convict the offender.” Id., at 390 (emphasis in

original).

 Early opinions of the Court portrayed this as an exclusive definition of

ex post facto laws. (citations omitted). So well accepted were these

principles that the Court in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70

L.Ed. 216 (1925), was able to confidently summarize the meaning of the

Clause as follows:

“It is settled, by decisions of this Court so well known that

their citation may be dispensed with, that any statute which

punishes as a crime an act previously committed, which was

innocent when done; which makes more burdensome the

punishment for a crime, after its commission, or which

deprives one charged with crime of any defense available

according to law at the time when the act was committed, is

prohibited as ex post facto.” Id., at 169-170, 46 S.Ct., at

68-69.

(citation and footnote omitted)

 The Beazell formulation is faithful to our best knowledge of the original

understanding of the Ex Post Facto Clause: Legislatures may not

retroactively alter the definition of crimes or increase the punishment for

criminal acts. * * *

497 U.S. at 41-43.

Although not cited by Gilson, there is another relevant Supreme Court opinion that
9 As an example of a “sufficiency of the evidence rule,” the Court cited to the case

of Sir John Fenwick, in which Parliament, after Fenwick’s purported crime, amended “an

act [that, prior to the purported crime,] proclaimed that two witnesses were necessary to

convict a person of high treason.” Carmell, 529 U.S. at 526. 

53

needs to be mentioned. In May 2000, approximately two months prior to the OCCA’s

resolution of Gilson’s direct appeal, the Supreme Court issued its decision in Carmell v.

Texas, 529 U.S. 538 (2000). In Carmell, the Court acknowledged “that Collins[’]

[discussion of what constitute[d] an ex post facto law] [wa]s rather cryptic.” Id. at 538. 

That is, “[w]hile calling Calder’s four categories the ‘exclusive definition’ of ex post

facto laws, [Carmell] also call[ed] Beazell’s definition a ‘faithful’ rendition of the

‘original understanding’ of the Clause, even though that quotation omitted category four.” 

Id. Thus, the Court in Carmell had to clarify that the “fourth category” of ex post facto

laws mentioned in Calder remained valid. Id. at 539. And, the Court clarified that this

fourth category was aimed at what it referred to as “sufficiency of the evidence rules” that

“inform us whether the evidence introduced is sufficient to convict as a matter of law

(which is not to say the jury must convict, but only that, as a matter of law, the case may

be submitted to the jury and the jury may convict).”9

 Id. at 547.

b) OCCA’s rejection of Gilson’s ex post facto claim

Gilson asserted his ex post facto argument on direct appeal. The OCCA rejected it

on the merits, stating as follows:

 In his third assignment of error, [Gilson] contends his right to be free

from ex post facto laws was violated as the jury was instructed on the

elements of child abuse and child abuse murder which were not the law at

the time of the offense. The prohibition against ex post facto law requires
54

the finding of two elements: first, that the law was enacted subsequent to

the conduct to which it was being applied; and second, that it must

disadvantage the offender affected by it. Allen v. State, 821 P.2d 371,

375-76 (Okl.Cr.1991).

 In the present case, [Gilson] was charged with causing the death of

Shane on or about August 17, 1995. [Gilson] was also charged with

abusing the other Coffman children between July 1995 and February 9,

1996. Prior to November 1995, the first degree murder by child abuse

statute, 21 O.S.1991, § 701.7(C) referred to 21 O.S.1991, § 843, for its

definition of child abuse. Under § 843, the elements of Permitting Child

Abuse were: 1) knowingly, 2) permitting, 3) injury or use of unreasonable

force, 4) upon a child under the age of 18, and 5) by one under a legal duty

to render aid to the child. Johnson v. State, 751 P.2d 1094, 1096

(Okl.Cr.1988)

 In November 1995, § 843 was renumbered as 10 O.S.Supp.1995, § 7115. 

In 1996, § 7115 was amended and the definition of “permitting” was added

to the statute. The elements of “permitting” child abuse are: 1) a person

responsible for a child’s health or welfare; 2) knowingly; 3) permitted; 4)

injury/torture/maiming/(use of unreasonable force); 5) upon a child under

the age of eighteen. OUJI-CR (2d) 4-37. The instructions given to the jury

in this case referred to permitting and persons responsible for the child’s

health or welfare and were consistent with OUJI-CR (2d) 4-37.

 In the first of his three challenges to the above stated law and

instructions, [Gilson] argues the jury was improperly instructed under §

7115, a law that was enacted after the death of the victim and after many of

the alleged acts of abuse were committed against the other Coffman

children. He contends some of the prosecution’s case implied he injured

the children prior to November 1, 1995. As stated previously, [Gilson]’s

acts of child abuse were one continuous transaction: therefore, while there

may have been some evidence of abuse inflicted by [Gilson] prior to

November 1, 1995, most of the acts occurred after November 1995, and

therefore it was not error to apply § 7115 to [Gilson]’s case. Further,

evidence showed that certain injuries to Tia and Isaac were, at the time of

discovery in February 1996, relatively recent. That abuse certainly

occurred after the enactment of 21 O.S.Supp. 1995, § 7115.

 [Gilson] next argues applying the element of a person responsible for a

child’s health or welfare contained in the 1996 amendment to § 7115

violated ex post facto principles as that element lowered the State’s burden
55

of proof. He asserts that at trial the prosecution merely had to show he was

a person responsible for the children’s health and welfare, a lesser burden

than proving he had a legal duty to render aid as set forth in § 843.

 The jury in this case was instructed in part as follows:

No person may be convicted of permitting the beating or

injuring of a child unless the State has proved beyond a

reasonable doubt each element of the crime. These elements

are: FIRST, a person responsible for a child’s health or

welfare; SECOND, knowingly; THIRD, permitted; FOURTH,

injury, torture, or use of unreasonable force; FIFTH, upon a

child under the age of eighteen.

OUJI-CR (2d) 4-37. The list of definitions given to the jury included the

following:

Person responsible for a child’s welfare-includes a parent,

legal guardian, custodian, foster parent, a person eighteen

years of age or older with whom the child’s parent cohabitates

or any other adult residing in the home of the child.

 This language is consistent with 21 O.S.Supp.1992, § 845(B)(4)

renumbered as 10 O.S.Supp.1995, § 7102(B)(4). See also OUJI-CR (2d)

4-39.

 Under the renumbered 21 O.S.1991, § 843, the element of “by one under

a legal duty to render aid to the child” was defined in the uniform jury

instructions as follows:

A person is under a legal duty to render aid to a child if [a

statute imposes a duty to render aid to the child] [a

(parent-child) (husband-wife) relationship exists between that

person and the child] [a contractual duty to render aid to the

child has been assumed by that person] [that person has

voluntarily assumed the care of the child].

OUJI-CR (1st) 424.

 Under 21 O.S.1991, § 843, in order to prove a legal duty to render aid,

the prosecution had to prove a relationship between the defendant and the

victim, either parent-child, husband-wife or a contractual duty to render aid
56

to the child has been assumed by that person or that the defendant had

voluntarily assumed the care of the child. Under 10 O.S.Supp.1995, §

7115, in order to support a finding that the defendant was responsible for

the child’s welfare, the prosecution had to prove a certain relationship

between the defendant and the child, either that of parent, legal guardian,

custodian, foster parent, a person eighteen years of age or older with whom

the child’s parent cohabitates or any other adult residing in the home of the

child. Proving any of the alternatives in § 7115 is not any lesser of a burden

than proving the minimum requirement under § 843 that the defendant had

voluntarily assumed the care of the child.

 Further, the evidence in this case clearly showed [Gilson] had a

parent-child relationship with the children. [Gilson] stated he shared equal

responsibility with Coffman in disciplining and parenting the children. He

said he and Coffman wanted to be a family and provide the children with

two parents. In statements concerning his disciplining of the children, he

often stated “that’s part of being parents.” Coffman also stated she had

given [Gilson] authority to discipline the children and that she, the children

and [Gilson] were all trying to be a family. Under this evidence, the State

proved the parent-child relationship as set forth in both §§ 843 and 7115. 

Any differences in the definitions of by one under a legal duty to render aid

to the child and person responsible for a child’s welfare did not

disadvantage [Gilson], deprive him of an available defense, nor change the

facts necessary to establish guilt. Therefore, no ex post facto violation

occurred.

Gilson I, 8 P.3d at 914-16 (internal paragraph numbers omitted).

c) Gilson’s challenge to the OCCA’s ex post facto analysis

Gilson asserts four general challenges to the OCCA’s ex post facto analysis, which

we proceed to address in turn. First, Gilson contends that “the OCCA denied relief based

on a continuous transaction theory pertinent only to the injury-to-child charges” and “the

result was that the evidence of one type of crime (injury to child) was used to support a

conviction for another (murder).” Aplt. Br. at 74. In other words, Gilson argues, “the

effect [wa]s to punish [him] with the death penalty for his crimes against the other
57

children who did not die.” Id. Although Gilson is correct that the OCCA utilized a

“continuous transaction” theory, it is clear from the OCCA’s opinion that that rationale

was intended to apply solely to the injury to child charges, and not to the first-degree

murder charge. Indeed, it would have been unnecessary for the OCCA to analyze

Gilson’s remaining ex post facto arguments had it concluded that the continuous

transaction theory allowed the newer statute to be properly applied to the first-degree

murder charge. Moreover, there is simply no support for Gilson’s bald assertion that

“evidence of one type of crime (injury to child) was used to support a conviction for

another (murder).” Our review of the trial transcript firmly establishes that the firstdegree murder charge was based on specific and substantial evidence regarding the chain

of events on the day of Shane’s death.

In his second challenge to the OCCA’s decision, Gilson asserts that, contrary to

the conclusion reached by the OCCA, “[t]here is a substantial difference between having

to prove a legal duty to a child and merely proving that the person cohabitates with the

parent of the child.” Aplt. Br. at 75. Gilson further asserts that the newer statute that was

applied in his case effectively “widened the net of those who could be defined as

‘permitting’ such child abuse” because “proving mere cohabitation is a lesser burden than

proving a legal duty . . . .” Id. at 76. In addition, he asserts, citing Calder’s fourth

category of ex post facto laws, that it “‘alter[ed] the legal rules of evidence” and required

the receipt of “‘less, or different, testimony, than the law required at the time of the

commission of the offense, in order to convict the offender.’” Id. (quoting Calder, 3 Dall.
10 To the extent Gilson takes issue with the OCCA’s interpretation of the two

statutes, we are bound by the OCCA’s interpretation. Parker v. Scott, 394 F.3d 1302,

1319 (10th Cir. 2005) (noting that state court interpretations of state law are binding on

this court in habeas proceedings).

58

at 390). In short, he asserts that “the OCCA missed the point that the change of statute

included [him] when the jury might well not have found him liable for murder under the

earlier language . . . .” Id. 

Although Gilson may well be correct in asserting that the newer statute effectively

“widened the net of those who could be” held responsible for permitting child abuse (i.e.,

by encompassing individuals who, under the older statute, did not owe a “legal duty” to

the child victim), the important point is that, as concluded by the OCCA and as amply

supported by the evidence presented at trial, Gilson was responsible under both the older

and the newer statutes, and thus the application of the newer statute to his case, although

procedurally incorrect, did not result in an ex post facto violation.10 More specifically,

the State’s evidence, which we outline in greater detail below, firmly established that

Gilson had voluntarily assumed the care of the Coffman children, and thus under the

older statute would have had a legal duty to render aid to Shane Coffman. In sum, then,

we conclude that Gilson had fair warning, at the time of Shane’s death, that his conduct

was illegal, and thus there was no ex post facto violation. See Miller v. Florida, 482 U.S.

423, 429-30 (1987) (noting that the Ex Post Facto Clause restrains legislatures from

enacting “arbitrary or vindictive” laws, and ensures that individuals are given “fair

warning” of a law’s effect).
59

As for Gilson’s reliance on Calder’s fourth category of ex post facto laws, there

are two problems with it. First, the newer statute that was applied in Gilson’s case does

not fall within Calder’s fourth category. In particular, the newer statute, which (like the

older statute) simply outlines the elements of the crime of permitting child abuse, is not a

“sufficiency of the evidence rule” in that it does not “inform us whether the evidence

introduced is sufficient to convict as a matter of law . . . .” Carmell, 529 U.S. at 547. 

Second, even assuming to the contrary, we conclude, for the reasons already stated, that

Gilson was not harmed by the application of the newer statute. In other words, even if the

newer statute falls within Calder’s fourth category and there was a technical ex post facto

violation, we conclude beyond a reasonable doubt that Gilson was not prejudiced by it

because the State’s evidence was sufficient to establish his guilt under both the older and

the newer statute.

In his third challenge to the OCCA’s decision, Gilson contends that he “had no

authority to permit or to withhold permission from [Bertha] Coffman because, under the .

. . language of the [older] statute, he had no legal duty.” Aplt. Br. at 80. More

specifically, Gilson argues that “the mere fact of cohabitation did not . . . confer such a

legal duty and thus did not confer the prerequisite authority.” Id. at 80-81. As a result,

Gilson argues, “[t]he defense that he could not have permitted this child abuse was thus

taken from him by the trial court’s actions in giving the instructions predicated on laws

amended to [his] disadvantage after Shane’s death, in violation of the Ex Post Facto

clause . . . .” Id. at 81.
60

These arguments are easily rejected. As the OCCA essentially found, and as we

have previously noted, the evidence presented by the State at trial overwhelmingly

established that Gilson voluntarily assumed a duty of care towards the Coffman children. 

Shortly after Gilson and Bertha Coffman entered into a relationship with one another in

the fall of 1994 (well before they began living together), Gilson began assisting Coffman

in the care and discipline of her children. In July 1995, Gilson invited Coffman and her

children to begin living with him at his trailer. Thereafter, Gilson and Coffman jointly

engaged in the care and discipline of the children. For example, Gilson established the

rules regarding where the children could sleep (only in the living room), which rooms

they could physically be in inside the trailer (they were prohibited from going in either of

the two bedrooms), when and what they could eat, and prohibited them from attending

school or church, or from playing outside the trailer. Gilson also regularly disciplined

each of the Coffman children by way of long periods of standing at a wall, beatings,

placement in the bathroom, and deprivation of food and contact with the other children. 

Lastly, during his interviews with law enforcement officials, Gilson admitted that he and

Coffman were “plan[ning] on bein[g] husband and wife and [were] formin[g] a family

and gettin[g] some of the basics down,” State ROA, State’s Exhibit 01 at 29, that the two

of them shared equal responsibility for parenting the children, and that both were

involved in disciplining the children. Id. at 37 (“Yeah, that’s part of being parents.”). 

In his fourth and final challenge to the OCCA’s decision, Gilson contends that

application of the newer statute in his case deprived him of the defense that he lacked
61

authority to permit or to withhold permission from Bertha Coffman. We summarily reject

this contention for the reasons we have already discussed.

Trial court’s refusal to provide instructions re lesser included offenses

In his fifth issue on appeal, Gilson contends that his “Eighth and Fourteenth

Amendment rights were violated” as a result of “the trial judge’s refusal to instruct his

jury on the lesser included offenses of second degree depraved mind murder, and on

second degree manslaughter.” Aplt. Br. at 84-85. The facts relevant to this contention

are as follows. At the conclusion of the first-stage evidence, Gilson requested that the

trial court instruct the jury on what Gilson asserted were the lesser included offenses of

murder in the second degree and second degree manslaughter. Tr., Vol. X at 2103. The

trial court rejected Gilson’s requests. In doing so, the trial court concluded that, with

respect to Gilson’s request for an instruction on murder in the second degree, “there [wa]s

no[t] sufficient evidence to establish an element of depraved mind and conduct . . . .” Id.

With respect to Gilson’s request for an instruction on manslaughter, the trial court

concluded “there [wa]s no evidence of possible negligent conduct. If the State’s evidence

is believed, the acts described are intentional acts which the jury could find occurred and

caused the death of Shane Coffman and, if so, were intentional acts, knowingly done or

permitted by the defendant.” Id. As a result of the trial court’s ruling, the jury was

instructed solely on the charge of first degree murder under the two alternative theories

alleged by the State, and the jury ultimately returned a verdict of guilty on that charge.
62

a) Clearly established Supreme Court precedent

Gilson identifies Beck v. Alabama, 447 U.S. 625 (1980), as providing the “clearly

established federal law” applicable to this claim. In Beck, the Supreme Court held “that

the death penalty may not [constitutionally] be imposed under . . . circumstances” where

“the jury was not permitted to consider a verdict of guilt of a lesser included non-capital

offense, and when the evidence would have supported such a verdict . . . .” 447 U.S. at

627. The Court explained that “when the evidence unquestionably establishes that the

defendant is guilty of a serious, violent offense – but leaves some doubt with respect to an

element that would justify conviction of a capital offense – the failure to give the jury the

‘third option’ of convicting on a lesser included offense would seem inevitably to

enhance the risk of an unwarranted conviction.” Id. at 637. “Such a risk,” the Court

stated, “cannot be tolerated in a case in which the defendant’s life is at stake.” Id.

To succeed on a claim under Beck, a state capital defendant seeking federal habeas

relief “must show that the evidence presented at trial would permit a rational jury to find

him guilty of the lesser included offense and acquit him of first-degree murder.” Young

v. Sirmons, 486 F.3d 655, 670 (10th Cir. 2007) (citing Hogan v. Gibson, 197 F.3d 1297,

1307 (10th Cir. 1999)). As noted by the dissent, “this Court has n[ever] decided whether

a question concerning the sufficiency of the evidence to support the giving of a lesser

included offense instruction is a matter of law or fact, and therefore reviewable under §

2254(d)(1) or § 2254(d)(2).” Boltz v. Mullin, 415 F.3d 1215, 1233 (10th Cir. 2005). 

Although it is by no means outcome-determinative in this case, we agree with the dissent
63

that it is a mixed question of law and fact and is thus reviewable under § 2254(d)(1). See,

e.g., Samu v. Elo, 14 Fed. Appx. 477, 478 (6th Cir. 2001) (reviewing question under §

2254(d)(1)); United States v. Abeyta, 27 F.3d 470, 473 (10th Cir. 1994) (treating trial

court’s decision not to give a lesser included offense instruction as a mixed question of

law and fact). More specifically, we conclude that a state court’s determination of

whether the evidence presented at trial was sufficient under the Beck standard to justify a

lesser-included instruction is not a finding of historical fact, but rather a legal

determination reached after assessing a body of evidence in light of the elements of the

alleged lesser-included offense.

Under Oklahoma law, “all lesser forms of homicide are considered lesser included

offenses of first degree murder.” Id. (citing Shrum v. State, 991 P.2d 1032, 1036 (Okla.

Crim. App. 1999)). Thus, both of the offenses cited by Gilson, i.e., second-degree murder

and second-degree manslaughter, were and are considered lesser-included offenses of

first-degree murder.

b) OCCA’s rejection of Gilson’s Beck claim

Gilson asserted his Beck claim on direct appeal. The OCCA rejected it on the

merits:

 In his ninth assignment of error, [Gilson] contends the trial court erred in

failing to instruct the jury on the lesser included offenses of second degree

murder and second degree manslaughter. The trial court denied [Gilson]’s

requested instructions finding “no sufficient evidence to establish an

element of depraved mind and conduct” to support second degree murder

and “no evidence of possible negligent conduct” to support second degree

manslaughter.
64

 In a criminal prosecution, the trial court has the duty to correctly instruct

the jury on the salient features of the law raised by the evidence without a

request by the defendant. (citations omitted). This means that all lesser

forms of homicide are necessarily included and instructions on lesser forms

of homicide should be administered if they are supported by the evidence. 

(citation and footnote omitted). In determining the sufficiency of the

evidence to support a lesser offense we look at whether the evidence might

allow a jury to acquit the defendant of the greater offense and convict him

of the lesser. See Hogan v. Gibson, 197 F.3d 1297, 1305 (10th Cir. 1999)

citing Beck v. Alabama, 447 U.S. 625, 636, 100 S.Ct. 2382, 2388, 65

L.Ed.2d 392 (1980). Only if there is evidence which tends to negate an

element of the greater offense, which would reduce the charge, should

instructions on a lesser included offense be given. See Fairchild [v. State],

998 P.2d [611,] 627 [(Okla. Crim. App. 1999)]. See also United States v.

Scalf, 708 F.2d 1540, 1546 (10th Cir. 1983) (“a lesser included offense

instruction should not be given unless there is evidence to support a finding

that the lesser offense was committed while the greater offense was not.”).

 Murder in the second degree occurs “when perpetrated by an act

imminently dangerous to another person and evincing a depraved mind,

regardless of human life, although without any premeditated design to

effect the death of any particular individual.” 21 O.S.1991, § 701.8(1). 

[Gilson] argues, and the State concedes, that when an individual wilfully

[sic] or maliciously injures, tortures, or uses unreasonable force on a child

there can be no question but that the individual is acting with a depraved

mind. [Gilson] and the State also agree that in addition, committing the

abuse which results in the death of a child, but without the intent to kill, is

imminently dangerous conduct. However, as the State points out, these

elements do not negate the element that the victim was a child.

 By enacting 21 O.S.1991, § 701.7(C), the Legislature clearly intended to

make a homicide occurring during the commission of or the permitting of

child abuse to be first degree murder. Drew, 771 P.2d at 228. Where child

abuse committed in violation of 21 O.S.1991, § 7115, results in the death of

the child, the specific homicide provision of 21 O.S.1991, § 701.7(C),

should be used. Fairchild, 998 P.2d at 627. Here, the victim was clearly a

child, and [Gilson] has not shown that the greater offense of first degree

murder was not committed. Therefore, the evidence did not support an

instruction on second degree depraved mind murder.

 Further, [Gilson] was not entitled to an instruction on second degree

depraved mind murder as he has failed to show that under the evidence
65

presented at trial, a rational jury would acquit him of first degree murder

and find him guilty of the lesser offense of second degree murder. [Gilson]

is entitled to an instruction on second degree murder only if the evidence at

trial would allow a jury to rationally conclude that his conduct was not done

with the intention of taking the life of an individual. 21 O.S.1991, §

701.8(1).

 Here the evidence showed that [Gilson] either willfully and intentionally

participated in the abuse of Shane or that he knowingly permitted Coffman

to abuse Shane to the extent that death resulted. The Coffman children

testified [Gilson] acted with Coffman in each instance of abuse inflicted on

Shane the day he died. Coffman testified she disciplined Shane that day

and that [Gilson] stayed in the other room, except for the two times he

attended to the shower doors and the time she saw him exit the bathroom

shortly before the victim was found not breathing. In his pre-trial

statement, [Gilson] said all he did was spank Shane and put him in the

bathtub. This evidence would lead a reasonable jury to conclude that either

[Gilson] willfully and intentionally inflicted such abuse to the extent that

Shane died as a result or that he did nothing at all. The evidence does not

support a finding that [Gilson] merely acted with a depraved mind having

no intention of taking the victim’s life.

 As for the offense of second degree manslaughter, to warrant such an

instruction evidence must be presented at trial showing the defendant’s

culpable negligence. [citation omitted]. The evidence here did not show a

degree of carelessness amounting to a culpable disregard of the rights and

safety of others to warrant an instruction on second degree manslaughter. 

[citation omitted]. Evidence of [Gilson]’s active participation in the abuse

of the victim would not lead a rational jury to acquit him of first degree

murder and convict him of second degree manslaughter.

 Further, this Court has held that a defendant is not entitled to instructions

on any lesser included offense when he defends against the charge by

proclaiming his innocence. Hooker v. State, 887 P.2d 1351, 1361

(Okl.Cr.1994), cert. denied, 516 U.S. 858, 116 S.Ct. 164, 133 L.Ed.2d 106

(1995); Snow v. State, 876 P.2d 291, 297 (Okl.Cr.1994), cert. denied, 513

U.S. 1179, 115 S.Ct. 1165, 130 L.Ed.2d 1120 (1995). [Gilson]’s defense

was that he did not commit nor did he know of any abuse to any of the

children. He claimed he was asleep on the sofa while Coffman was in the

bathroom with Shane. He confessed that his only bad act was hiding the

body and lying about Shane’s death. Here, the evidence showed either

[Gilson]’s wilful [sic] and malicious infliction of or his permitting the
66

infliction of child abuse or it showed he knew nothing about the abuse. 

Therefore, instructions on second degree murder and second degree

manslaughter were not warranted. Accordingly, the trial court did not

abuse its discretion in denying the requested instructions. This assignment

of error is denied.

Gilson I, 8 P.3d at 917-18 (internal paragraph numbers omitted).

c) Gilson’s challenge to the OCCA’s analysis

Gilson challenges each of the three rationales offered by the OCCA in rejecting his

claim that he was entitled to an instruction on second degree murder. As outlined in

greater detail below, we conclude that the final two rationales offered by the OCCA are,

indeed, suspect, but that the initial rationale, standing alone, represents a reasonable

application of Beck. See 28 U.S.C. § 2254(d)(1). We also conclude that the OCCA

reasonably applied Beck in rejecting Gilson’s claim that he was entitled to a jury

instruction on the lesser included offense of second degree manslaughter. Id.

The first rationale offered by the OCCA for rejecting Gilson’s request for an

instruction on second degree murder was that, even assuming the evidence presented at

trial would have allowed a jury to reasonably find the existence of all the elements of

second degree murder, the uncontroverted fact that the victim in the case was a child

effectively required Gilson to be convicted of first degree murder rather than second

degree murder. More specifically, the OCCA noted that the Oklahoma Legislature

“clearly intended to make a homicide occurring during the commission of or the

permitting of child abuse to be first degree murder.” Gilson I, 8 P.3d at 917. 

The only challenge Gilson now asserts to this rationale is that “‘the inability to
67

negate the element that’ the victim was a child should not have barred the inclusion of the

jury instruction [on second degree murder], because the party proving the case, the State,

conceded the evidence at trial was more than sufficient to support the giving of [such] an

instruction . . . .” Aplt. Br. at 87-88. This challenge, however, is easily rejected. To

begin with, Gilson cites to no cases, and we have found none, that would have bound the

OCCA to the State’s purported concession as to the sufficiency of the evidence. More

importantly, it is apparent that the OCCA’s conclusion hinged not on its view of the

evidence presented at trial, but instead on its legal conclusion that, under Oklahoma’s

statutory scheme, an individual guilty of the second degree murder of a child was

effectively responsible for having committed, and thus was required to be convicted of,

first degree child abuse murder. Stated in terms of Beck, the OCCA effectively

concluded, and reasonably so in our view, that Gilson was not entitled to an instruction on

second degree murder because, under Oklahoma’s statutory scheme, a jury could not

rationally have acquitted Gilson of first degree child abuse murder and convicted him of

second degree murder.

The OCCA’s second rationale for affirming the state trial court’s decision to reject

Gilson’s request for a second degree murder instruction was that, in its view, the

“evidence would lead a reasonable jury to conclude that either [Gilson] willfully and

intentionally inflicted such abuse to the extent that Shane died as a result or that he did

nothing at all.” Gilson I, 8 P.3d at 918. Gilson argues that this represents “an

unreasonable interpretation of the facts in evidence.” Aplt. Br. at 89. In particular,
68

Gilson contends “the statement is belied by the jury’s divided verdict,” and “is simply

contrary to the evidence presented which, considered as a whole, could support a finding

[he] acted with a depraved mind having no intention of taking the victim’s life.” Id. 

This is an extremely close question. Although the evidence presented at trial

clearly establishes that Gilson was intimately involved in, if not primarily responsible for,

the extreme abuse inflicted on Shane prior to his death, a rational jury perhaps could have

found that Gilson acted not with the intent to kill Shane, but rather with a depraved mind

and without the intention of taking Shane’s life. Even assuming this is true, however, the

OCCA’s initial rationale still holds true, i.e., the jury would have been required under

Oklahoma’s statutory scheme to find Gilson guilty of first degree child abuse murder

rather than second degree murder. Thus, it is unnecessary for us to ultimately decide

whether the OCCA’s second rationale passes muster under the AEDPA standards.

The final rationale offered by the OCCA for rejecting Gilson’s claim that he was

entitled to an instruction on second degree murder, i.e., that Gilson was not entitled to

instructions on any lesser included offenses because he defended against the first-degree

murder charge by proclaiming his innocence, has previously been rejected by this court as

inconsistent with Beck. See Hooker v. Mullin, 293 F.3d 1232, 1238 (10th Cir. 2002);

Mitchell v. Gibson, 262 F.3d 1036, 1049-50 (10th Cir. 2001). Thus, it must likewise be

rejected in this case. As we have noted, however, the OCCA’s first rationale is sufficient,

standing alone, to render reasonable the OCCA’s rejection of Gilson’s claim that, under

Beck, he was entitled to an instruction on second degree murder.
11 The OCCA also offered the alternative rationale that Gilson was not entitled to

instructions on second degree manslaughter because he defended against the first-degree

murder charge by proclaiming his innocence. As noted, this rationale has previously been

rejected by this court as inconsistent with Beck. 

12 For example, Coffman’s statements regarding the types of abuse inflicted by

Gilson on Shane varied dramatically. Throughout most of her post-arrest interviews,

69

That leaves only Gilson’s challenge to the OCCA’s conclusion that he was not

entitled to a jury instruction on the lesser included offense of second degree

manslaughter. The OCCA’s conclusion on this issue rested primarily on the rationale that

“[e]vidence of [Gilson]’s active participation in the abuse of the victim would not lead a

rational jury to acquit him of first degree murder and convict him of second degree

manslaughter.”11 Gilson I, 8 P.3d at 918. Gilson’s only challenge to this rationale is that

the jury could have found him guilty of second degree manslaughter “if [Bertha] Coffman

were believed . . . .” Aplt. Br. at 93. More specifically, Gilson argues that “[r]easonable

jurors could have concluded that evidence of [his] failure to intervene initially when

Coffman began the physical abuse of Shane showed he was careless in that he did not

exercise ordinary care and caution.” Id. at 98. In other words, Gilson argues that,

“[b]ased on the evidence and testimony, reasonable jurors may have concluded [he] was

careless in his failure to intervene to prevent the abuse as it occurred.” Id. at 99. 

Gilson’s arguments notwithstanding, we conclude the OCCA’s rationale was

neither contrary to, nor an unreasonable application of, Beck. Although it is true that

Bertha Coffman testified at trial and attempted to downplay Gilson’s involvement in the

death of Shane, her testimony was riddled with internal inconsistencies12, was contrary to
Coffman was clearly protective of Gilson, generally denying that he did anything more

than spank or correct her children. Her general denials were belied, however, by her

admission to investigators that Gilson had an explosive temper, that there had “been so

much punishment in [Gilson’s] house,” 2/12/1996 Coffman Interview Tr. at 31, that her

children were afraid of Gilson’s “punishments,” id. at 181, and that her children talked

about Gilson “doing most of his bustings with force.” Id. at 184. Her general denials

were also belied by her admission during her second post-arrest interview that Gilson had

“whipped” Shane “a couple of days” before Shane’s death. Id. at 147. At trial, Coffman,

having been separated from Gilson for over two years, acknowledged that Gilson had, in

fact, severely abused all of her children. Moreover, Coffman admitted observing Gilson

use a board to hit Shane on the top of his head, his shoulders, his chest, and his legs. She

also testified that Gilson was the last person alone with Shane in the bathroom prior to his

death, and that she was awakened by a loud sound from the bathroom during that time.

13 As we have already noted, the OCCA, in making its Enmund/Tison findings,

specifically found that Gilson “was a major participant in the felony” because, “[a]cting

jointly with Coffman, he took Shane outside the trailer and was party to conduct which

elicited screams from the child,” and also, together with Coffman, “took Shane back

inside the trailer . . . to the bathroom and . . . remained with him in the bathroom for

periods of time.” Gilson I, 8 P.3d at 920. In turn, we have concluded that those findings

were amply supported by the evidence presented at trial. Although the dissent suggests

that the jury could rationally have found that Gilson “played no part in abusing Shane the

day he died,” Dissent at 3, any such conclusion would be contrary to both the OCCA’s

Enmund/Tison findings and our affirmance of those findings.

70

virtually all of the other witnesses’ testimony, and was likewise contrary to the physical

evidence presented by the State. The overwhelming weight of the State’s evidence,

which we recounted in detail in addressing Gilson’s Enmund/Tison claim, established that

Gilson was not merely negligent, but rather was intimately involved in the abuse of Shane

and, at a minimum, acted with the intent of causing him physical harm.13 See Ball v.

State, 173 P.3d 81, 91 (Okla. Crim. App. 2007) (noting that “ordinary negligence

resulting in death is sufficient to warrant a conviction for second-degree manslaughter . . .

.”). Thus, reviewing the OCCA’s determination under the deferential standard outlined in
71

§ 2254(d)(1), we conclude the OCCA reasonably determined that a rational jury could not

have convicted Gilson of second degree manslaughter and acquitted him of first degree

child abuse murder. In turn, we conclude the OCCA reasonably applied Beck in

determining that Gilson was not entitled to an instruction on second degree manslaughter.

The dissent argues that a rational jury, relying on Bertha Coffman’s trial testimony

and, apparently, Gilson’s post-arrest statements to police, could have found that “Gilson

played no part in abusing Shane the day he died and that he [Gilson] was asleep on the

couch during the abuse that led to Shane’s death.” Dissent at 3. There are at least three

significant flaws in this reasoning. First, the dissent’s analysis affords virtually no

deference to the OCCA’s assessment of the evidence presented at trial. Rather than

examining the evidence presented at trial with an eye toward determining whether the

OCCA’s determination was reasonable, the dissent appears to review the evidence

presented as if this were a direct appeal, and ultimately substitutes its own judgment for

that of the OCCA. 

The second major flaw in the dissent’s reasoning is that the testimony of Bertha

Coffman does not even remotely begin to account for either the serious injuries sustained

by Shane or the cause of his death. According to Coffman’s testimony, her physical

contact with Shane on the day of his death was limited to spanking or swatting him

approximately fifteen times on his bottom and the back of his legs, carrying him to the

bathtub, and pressing on his shoulders to force him to sit back down in the tub when he

attempted to stand up. Coffman also testified that at one point Shane slipped and fell in
14 Dr. Larry Balding, the deputy medical examiner who examined Shane’s remains,

testified that he found evidence of acute fractures throughout Shane’s body. To begin

with, Balding testified there was a fracture to Shane’s jaw, and a fracture separation of the

zygoma on the right side of the skull (i.e., the cheek bone). Tr. at 1943. Balding opined

that these two fractures were caused by separate blows because they were on opposite

sides of the head, id. at 1944-46, and that it would have taken a great deal of force to

cause the jaw fracture. Id. at 1946. Balding further testified that he found a “localized

complex fracturing involving the left clavicle or collarbone,” id. at 1948, fractures of “the

left ribs, first, second and third ribs,” id., and a fracture of the right shoulder blade, id. at

1950-51. Balding testified he found a left distal tibial metaphyseal fracture, which would

have been consistent with some form of blunt force or a severe twisting of the ankle. Id.

at 1952. Lastly, Balding testified that there were fractures of the spinal processes (the

bony protrusions) of the C-7 vertebrae (i.e., the lower-most neck vertebrae), T-2, T-3, T4, and T-10. Id. at 1953-54. 

15 Contrast this with Ball, the recent OCCA case cited by the dissent in alleged

support of its position. The defendant therein, Carlis Anthony Ball, was charged with and

convicted of first-degree child abuse murder in the scalding death of his two-year-old son. 

On appeal, Ball argued that the trial court erred in refusing his request for instructions on

the lesser-included offense of second-degree manslaughter. The OCCA agreed, noting

that Ball had described an “accidental spill injury . . . in his 911 call and subsequent

statements” to responding firefighters, 170 P.3d at at 86, and that these “statements about

his handling of the boiling water were sufficient as a matter of law to support an inference

of culpable negligence.” Id. at 91. Unlike the situation here, the evidence cited by Ball

provided an alternate explanation for how his young son was scalded and ultimately died. 

Neither Bertha Coffman’s testimony nor Gilson’s post-arrest statements provided an

explanation of how or why Shane died.

72

the bathtub and hit his head or face on the bathtub faucet. Even assuming the worst, none

of these events could have allowed the jury to make any rational findings regarding how

Shane sustained the multiple acute fractures found by the medical examiner14 or, more

importantly, how he died.15

Lastly, even assuming, arguendo, that the jury could rationally have found that

Gilson was asleep on the couch while Coffman abused and ultimately killed Shane, then

Gilson would have been entitled to an acquittal, not a conviction of second-degree
73

manslaughter. That is, Gilson’s conduct would not have risen even to the level of

culpable negligence necessary to be convicted of second-degree manslaughter. Indeed,

Gilson’s trial counsel argued this same factual theory (i.e., Gilson being asleep during the

abuse and death) to the jury at the close of the first-stage proceedings and the jury

rejected it. Dissent at 9 (discussing first-stage closing arguments of defense counsel).

Trial court’s refusal to allow testimony from defense expert witness

In his sixth issue, Gilson argues that the state trial court’s refusal to allow his

expert witness, Dr. Wanda Draper, to testify regarding the credibility of the Coffman

children’s testimony violated his constitutional rights. We begin our analysis of this issue

by reviewing the key events that culminated in the state trial court’s ruling.

On April 2, 1998, the state trial court, at Gilson’s request, conducted an in camera

hearing regarding the competency of the surviving Coffman children to testify during the

State’s case-in-chief. Tr. Vol. IV at 840. During that hearing, Gilson presented the

testimony of Dr. Wanda Draper, who holds a Ph.D in child development and was a

professor in the Department of Psychiatry and Behavioral Sciences in the College of

Medicine at the University of Oklahoma. Draper indicated that she had concerns about

the competency of the Coffman children to testify. Id. at 855. To begin with, Draper

noted that the children “for a period of months were living under the assumption [created

by their mother and Gilson] that one of their brothers [Shane] had run away, but the

assumption was that he was still alive. And then that changed and they discovered that he

[wa]s not alive.” Id. Draper questioned whether the children could “appreciate the
74

obligation to tell the truth when their own mother lied to them . . . .” Id. at 859. Draper

also noted that “[t]he stories between and among the children ha[d] changed,” id. at 862,

and she opined that the “children ha[d] had enough trauma in their lives that it would be

very difficult for them over time to recall accurately what actually happened.” Id. at 863. 

At the conclusion of Draper’s testimony, Gilson’s counsel moved to suppress the

testimony of the Coffman children based on their lack of competence to accurately testify

about events relevant to the case. Id. at 890. The state trial court overruled that motion,

but reserved a final ruling on each of the children’s competency to testify until it had

heard their individual voir dire examinations. Id. at 895. With respect to the testimony of

Dr. Draper, the state trial court concluded it “d[id] not meet the Daubert standards to

qualify as expert direct testimony regarding credibility,” and that “credibility . . . [wa]s a

matter for the finder of fact.” Id.

On April 7, 1998, during the course of the prosecution’s case-in-chief, the state

trial court conducted voir dire proceedings to determine the competency of each of the

children to testify. At the conclusion thereof, the state trial court determined that all of

the children were competent to testify. Id. Vol. VII at 1540. The State proceeded to

introduce the testimony of each of the children, and Gilson’s trial counsel was allowed to

cross-examine each child. During his own case-in-chief, Gilson renewed his request to

present the testimony of Dr. Draper regarding the credibility of the Coffman children’s

testimony. The state trial court denied that request.
75

a) Clearly established Supreme Court precedent

Gilson identifies Davis v. Alaska, 415 U.S. 308 (1974), and Chambers v.

Mississippi, 410 U.S. 284 (1973), as providing the “clearly established federal law”

applicable to this claim. In Davis, the Supreme Court emphasized the importance of

allowing a criminal defendant to adequately cross-examine prosecution witnesses. In

particular, the Court noted “that the exposure of a [prosecution] witness’ motivation in

testifying is a proper and important function of the constitutionally protected right of

cross-examination.” 415 U.S. at 316-17. Such cross-examination, the Court noted,

would be “directed toward revealing possible biases, prejudices, or ulterior motives of the

witness as they may relate directly to issues or personalities in the case at hand.” Id. at

316. If this right is violated, the Court held, “no amount of showing of want of prejudice

would cure it.” Id. at 318 (internal quotation marks omitted). 

In Chambers, the defendant in a Mississippi state criminal proceeding sought to

introduce reliable evidence that a prosecution witness had, orally and through a written

confession (that was later recanted), admitted being guilty of the murder offense that

Chambers was charged with. The state trial court refused to allow Chambers to

cross-examine the witness on credibility. Although the Mississippi Supreme Court

affirmed the conviction, the Supreme Court granted Chambers’ petition for writ of

certiorari and reversed. In doing so, the Court noted that “[t]he right of an accused in a

criminal trial to due process is, in essence, the right to a fair opportunity to defend against

the State’s accusations.” Chambers, 410 U.S. at 294. “Few rights,” the Court held, “are
76

more fundamental than that of an accused to present witnesses in his own defense.” Id. at

302. “In the exercise of this right,” the Court held, “the accused, as is required of the

State, must comply with established rules of procedure and evidence designed to assure

both fairness and reliability in the ascertainment of guilt and innocence.” Id.

b) OCCA’s rejection of Gilson’s claim

In his direct appeal, Gilson challenged the state trial court’s refusal to admit the

testimony of Dr. Draper, arguing that the state trial court’s ruling was unreasonable and

violated his constitutional rights. The OCCA did not address Gilson’s latter argument,

and instead simply affirmed the state trial court’s evidentiary ruling:

 [Gilson] . . . argues the trial court erred in excluding the trial testimony

of Dr. Draper. After hearing in-camera testimony from Dr. Draper, the trial

court found the testimony “does not meet the Daubert standards to qualify

as expert direct testimony regarding credibility. The credibility, again, is a

matter for the finder of fact.” The trial court did allow the defense the

opportunity to have Dr. Draper serve as “expert advisory counsel” and

remain in the courtroom during the children’s testimony to advise the

defense as to areas of possible cross-examination and closing argument. 

Further, prior to closing their case-in-chief, defense counsel renewed the

request to call Dr. Draper to the stand. The court denied the request, but

accepted Dr. Draper’s in-camera testimony as an offer of proof.

 The admission of expert testimony is governed generally by 12

O.S.1991, § 2702. In areas of novel scientific evidence, this Court has

adopted the standard set forth in Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Taylor v.

State, 889 P.2d 319, 328 (Okl.Cr.1995). In Daubert, the Supreme Court

stated that such expert testimony is admissible only if it is both relevant and

reliable. Daubert, 509 U.S. at 597, 113 S.Ct. at 2799. This inquiry into

reliability and relevance is two-fold. The reliability prong requires the

expert opinion testimony be about “scientific knowledge”. Taylor, 889

P.2d at 329. The relevance prong involves the requirement that the

proffered testimony “assist the trier of fact to understand the evidence or to

determine a fact in issue.” Id. at 330.
77

 [Gilson] argues Dr. Draper’s testimony “undoubtedly involved

‘scientific knowledge’”, and that the relevant question here is whether Dr.

Draper’s testimony would have assisted the trier of fact. While we

appreciate [Gilson]’s offer to reduce our work by focusing on only one

prong of the Daubert analysis, we find it necessary to review both prongs of

the analysis in order to properly evaluate the trial court’s ruling and resolve

[Gilson]’s allegation of error.

 In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167,

1174, 143 L.Ed.2d 238 (1999), the Supreme Court extended Daubert to

testimony based on “technical” and “other specialized” knowledge. The

Court stated whether Daubert’s specific factors are, or are not, reasonable

measures of reliability in a particular case is a matter that the law grants the

trial judge broad latitude to determine. 526 U.S. at 152, 119 S.Ct. at 1176.

 Reviewing the record under the criteria set forth in Daubert and Kumho

we find Dr. Draper’s qualifications as an expert do not seem to be in doubt. 

She testified to having a Ph.D. in Child Development and working and

teaching in the field of child development for approximately twenty years. 

She also stated that during the previous ten years she had participated in a

hands-on program which worked directly with abused and neglected

children. The trial court seems to have excluded her testimony based upon

her theory that the children were not competent to testify, and not upon her

lack of qualifications.

 Dr. Draper testified generally to factors to be considered in determining

whether a child could be a competent witness including capacity and ability

to observe, intelligence, memory, ability to communicate. When asked

whether “it would be correct to say that failing to properly interview or

elicit information from a child can taint or impact their ability to then

accurately relate an event?”, she answered “[t]hat’s a very great possibility,

yes.” Dr. Draper then addressed the Coffman children specifically. Dr.

Draper stated she interviewed each of the Coffman children individually

and studied material from the court proceedings and DHS. She gave her

conclusion as to whether each of the Coffman children was competent to

testify. She generally concluded that based upon the children’s life history

of trauma, abuse and neglect, and the effect that has on memory and ability

to recall, combined with the death of their brother Shane, and the numerous

interviews conducted in connection with the court proceedings, none of the

Coffman children were competent to testify at trial.
78

 A review of the record shows there was no testimony regarding whether

Dr. Draper’s theory of the effect of trauma on the child’s ability to be a

competent witness has been or can be tested. There was no showing of its

general acceptance in the field of child development. Further, Dr. Draper

testified only as to a “great possibility” that improper interview techniques

could impact a child’s ability to relate an event. Dr. Draper interviewed

each of the children only once, just prior to trial, and asked each of them

five or six uniform questions. She testified she had no knowledge of

whether the statements the children made concerning the facts of the case

were embellished or false. She also stated that piecemeal disclosure of the

facts is common among child abuse victims.

 Having thoroughly reviewed the record, we find the trial court did not

abuse its discretion in excluding the testimony. Dr. Draper’s testimony did

not meet the Daubert requirements of “scientific knowledge” and the

testimony would not have assisted the trier of fact. Once the trial court

determined the children were competent witnesses, Dr. Draper’s testimony

would have been confusing and its speculative nature would not have been

relevant to the jury’s determination of the credibility of children’s

testimony. Accordingly, we find the testimony was properly excluded. This

assignment of error is denied.

Gilson I, 8 P.3d at 907-08 (internal paragraph numbers omitted).

c) Gilson’s challenge to the OCCA’s analysis

Because the OCCA did not address Gilson’s argument that the state trial court’s

ruling violated his constitutional rights, we must review those arguments de novo. See

Young, 486 F.3d at 663 (“If the state court did not decide a claim on the merits, and it is

not otherwise procedurally barred, we review the district court’s legal conclusions de

novo.”). In doing so, however, we

may not provide habeas corpus relief on the basis of state court evidentiary

rulings unless they rendered the trial so fundamentally unfair that a denial

of constitutional rights results. Because a fundamental-fairness analysis is

not subject to clearly definable legal elements, when engaged in such an

endeavor a federal court must tread gingerly and exercise considerable

self-restraint.
79

Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (internal quotation marks and

citations omitted).

Despite Gilson’s general assertion that his constitutional rights were violated, his

supporting arguments focus almost exclusively on the merits of the state trial court’s

evidentiary ruling. For example, Gilson complains that, contrary to the conclusion

reached by the OCCA, “the trial judge based his ruling on Dr. Draper’s conclusions, not

on her methodology or her scientific knowledge.” Aplt. Br. at 101. Gilson argues that

“once the judge ruled the children were competent under Oklahoma Evidence Rules 2601

and 2603, the issue was no longer admissibility but the weight the jury should give their

testimony,” and “Dr. Draper’s expertise should have been allowed to assist the jury in that

evaluation.” Id. In other words, Gilson argues, “the trial judge failed in his gatekeeper

role because he did not perform the proper rudimentary tests to assess the admissibility of

Dr. Draper’s testimony in light of Daubert and its Oklahoma progeny, Taylor v. State,

889 P.2d 319 (Okla. Crim. App. 1995).” Id. at 101-02. Similarly, Gilson argues that

“[t]he OCCA perpetuated the trial judge’s error by holding Dr. Draper to the outmoded

general acceptance standard of Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).” Id. at 107. 

“This,” Gilson argues, “is now merely an additional though not exclusive factor in the

Daubert analysis . . . .” Id. Gilson also asserts that “[t]he OCCA further erred because it

did not apply the proper standard of review to the proposition of error regarding the

testimony of Dr. Draper.” Id. at 108. More specifically, Gilson argues that because the

state trial judge “failed in his gatekeeper role,” “the review of this failure should have
80

been de novo and not for abuse of discretion.” Id. 

Given the fundamental fairness analysis that applies to this issue, as well as the

self-restraint that we are bound to exercise in this setting, we conclude that Gilson’s

arguments can be easily disposed of without delving into all of their specifics. Although

Gilson argues in essence that the state trial court applied Oklahoma’s evidentiary rules

unfairly, a review of the trial transcript firmly establishes otherwise. As noted, the sole

focus of Draper’s proposed testimony was the credibility of the Coffman children’s trial

testimony. Although Draper was formally trained in child development, nothing about

her educational or professional background necessarily qualified her to provide expert

testimony on an issue normally reserved exclusively for the jury, i.e., witness credibility. 

Indeed, we have long held the “credibility” of a witness “is generally not an appropriate

subject for expert testimony” because, in part, it “encroaches upon the jury’s vital and

exclusive function to make credibility determinations . . . .” United States v. Adams, 271

F.3d 1236, 1245 (10th Cir. 2001) (internal quotation marks and citations omitted); see

United States v. Smith, 156 F.3d 1046, 1053-54 (10th Cir. 1998) (affirming district

court’s decision to exclude proposed expert testimony on subject of eyewitness

identification); cf. United States v. Call, 129 F.3d 1402, 1407 (10th Cir. 1997) (“Although

the use of experts to bolster witness credibility is disfavored, no absolute rule prohibits

utilizing expert testimony for this purpose.”). Moreover, it is important to emphasize

that, notwithstanding the state trial court’s exclusion of Draper’s testimony, Gilson was

allowed to extensively cross-examine the Coffman children and to explore any alleged
16 In our view, Davis is simply inapposite. The Supreme Court noted in Davis

“that the exposure of a [prosecution] witness’ motivation in testifying is a proper and

important function of the constitutionally protected right of cross-examination.” 415 U.S.

at 316-17. Such cross-examination, the Court noted, would be “directed toward revealing

possible biases, prejudices, or ulterior motives of the witness as they may relate directly

to issues or personalities in the case at hand.” Id. at 316. If this right is violated, the

Court held, “no amount of showing of want of prejudice would cure it.” Id. at 318

(internal quotation marks omitted). It is difficult to see how Davis is relevant to the issue

of the state trial court’s refusal to allow Draper to testify. Although Draper would have

testified as to the credibility of the Coffman children, the state trial court’s ruling did not

directly impact Gilson’s right to cross-examine the Coffman children. Indeed, that crossexamination occurred well before Gilson sought to introduce Dr. Draper’s testimony.

17 Gilson’s attempt to equate Draper’s proposed testimony with the crucial

credibility evidence at issue in Chambers is clearly a stretch and ultimately unpersuasive.

81

inconsistencies between their trial testimony and their prior sworn testimony. Thus, we

conclude the state trial court’s ruling was neither unreasonable nor rendered Gilson’s trial

fundamentally unfair. 

In terms of the two Supreme Court cases cited by Gilson, the state trial court’s

evidentiary ruling did not result in a deprivation of Gilson’s right to adequately crossexamine prosecution witnesses (as discussed in Davis)

16, nor did it deprive Gilson of his

right to a fair opportunity to defend against the State’s accusations (as discussed in

Chambers).17 As noted, Gilson’s trial counsel was afforded a full and fair opportunity to

cross-examine each of the Coffman children, and in doing so was able to attack their

credibility and place that issue before the jury. Further, Gilson’s trial counsel vigorously

attacked the children’s credibility during the first-stage closing arguments. E.g., Tr., Vol.

X at 2168 (“These kids know they have to come in here and say as many bad things about

Don Gilson to make sure he’s convicted.”); id. (“Unfortunately, with all those pressures
82

and in light of all the trauma that these kids have been through, that combination renders

them unreliable, unbelievable.”). We therefore conclude that Gilson is not entitled to

federal habeas relief on this claim.

Trial counsel’s failure to present evidence of Gilson’s brain damage

In his final issue, Gilson argues that his trial counsel “were ineffective for failing

to investigate and present powerful evidence establishing [his] extensive and permanent

brain damage.” Aplt. Br. at 110. “This information,” Gilson argues, could have been

used to challenge [his] mental capacity to commit the crime” and, “[m]ore importantly, . .

. should have been used as mitigation and could very well have resulted in a sentence less

than death.” Id.

In support of these arguments, Gilson asserts that he “was temporarily paralyzed . .

. and suffered prolonged unconsciousness” as a result of “an auto accident on March 12,

1993.” Id. at 111. According to Gilson, “[t]he impact caused severe head injuries,

including multiple, extensive facial and cranial fractures,” and resulted “in permanent

organic brain damage.” Id. In turn, Gilson asserts, citing various expert witnesses, that

the “brain damage had repercussions on his personality and behavior.” Id. at 112. In

particular, Gilson asserts that the brain damage resulted in “severe executive and

personality dysfunction,” and a “decreased ability to self-regulate behavior or inhibit

impulses . . . .” Id. (internal quotation marks omitted). These post-accident changes in

behavior, Gilson contends, could have been affirmed by testimony from “[n]umerous

family members and acquaintances . . . .” Id. at 113.
83

a) Clearly established Supreme Court precedent

Not surprisingly, Gilson identifies Strickland v. Washington, 466 U.S. 668 (1984),

as providing the “clearly established federal law” applicable to his claim of ineffective

assistance of trial counsel. In Strickland, the Supreme Court held that “[a] convicted

defendant’s claim that counsel’s assistance was so defective as to require reversal of a

conviction or death sentence has two components.” 466 U.S. at 687. “First,” the Court

noted, “the defendant must show that counsel’s performance was deficient.” Id. “This

requires showing that counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. “Second,” the

Court noted, “the defendant must show that the deficient performance prejudiced the

defense.” Id. “This requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.” Id. “Unless a defendant

makes both showings,” the Court held, “it cannot be said that the conviction or death

sentence resulted from a breakdown in the adversary process that renders the result

unreliable.” Id. 

b) OCCA’s rejection of Gilson’s claim

Gilson first raised the issue of ineffective assistance of trial counsel on direct

appeal. The OCCA rejected Gilson’s arguments on the merits:

 [Gilson] contends in his thirteenth assignment of error that he was

denied a fair trial and reliable sentencing proceeding by the ineffective

assistance of counsel. An analysis of an ineffective assistance of counsel

claim begins with the presumption that trial counsel was competent to

provide the guiding hand that the accused needed, and therefore the burden

is on the accused to demonstrate both a deficient performance and resulting
84

prejudice. Strickland v. Washington, at 466 U.S. at 687, 104 S.Ct. at 2064. 

See also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d

389 (2000). Strickland sets forth the two-part test which must be applied to

determine whether a defendant has been denied effective assistance of

counsel. First, the defendant must show that counsel’s performance was

deficient, and second, he must show the deficient performance prejudiced

the defense. [footnote omitted]. Unless the defendant makes both

showings, “it cannot be said that the conviction ... resulted from a

breakdown in the adversary process that renders the result unreliable.” Id.,

466 U.S. at 687, 104 S.Ct. at 2064. [Gilson] must demonstrate that

counsel’s representation was unreasonable under prevailing professional

norms and that the challenged action could not be considered sound trial

strategy. Id., 466 U.S. at 688-89, 104 S.Ct. at 2065. The burden rests with

[Gilson] to show that there is a reasonable probability that, but for any

unprofessional errors by counsel, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id., 466 U.S. at 698, 104 S.Ct. at

2070. This Court has stated the issue is whether counsel exercised the skill,

judgment and diligence of a reasonably competent defense attorney in light

of his overall performance. Bryson v. State, 876 P.2d 240, 264 (Okl.Cr.

1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995).

* * *

 Filed with the direct appeal is an Application for Evidentiary Hearing on

Sixth Amendment Claim and Motion to Supplement, pursuant to Rule

3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22,

Ch. 18, App. (1998). [Gilson] asserts in the Application that counsel was

ineffective in failing to investigate and utilize available mitigating evidence. 

Attached to the Application are twelve (12) affidavits. The first two (2)

affidavits are from [Gilson]’s trial counsel wherein they state they received

boxes of medical records from Saint Anthony’s Hospital pertaining to

injuries [Gilson] suffered in a 1993 automobile accident. Both counsel state

they did not see any reference to a C.A.T. (Computer Axial Tomograph)

scan in the records, therefore they made no attempt to locate such. Both

counsel also state that during their investigation of the case, they spoke to

several people who mentioned drastic personality changes in [Gilson] since

the 1993 accident. Counsel also stated that at the time of trial, they did not

know the true extent of the physical and/or psychological damage suffered

by [Gilson] as a result of the accident. (Exhibits A and B).

 The third affidavit is from Michael L. Johns, an investigator in the
85

Capital Direct Appeal Division of the Oklahoma Indigent Defense System. 

Mr. Johns stated he reviewed the files provided by [Gilson]’s trial counsel

and discovered “two Radiological Reports which indicated that two series

of C.A.T. scans were taken of [Gilson’s] brain and skull. The first series

was done on March 15, 1993, and the second series was done on March 22,

1993.” Mr. Johns also stated that on May 6, 1999, he personally picked up

from Saint Anthony’s Hospital copies of all of the C.A.T. scans conducted

on [Gilson]. (Exhibit C).

 The next three (3) affidavits are from C. Alan Hopewell, Ph.D., Albert

V. Messina, M.D., and Jay A. Rosenblum, M.D. Dr. Hopewell stated he

conducted a neuropsychological evaluation of [Gilson] on May 24, 1999, at

the Oklahoma State Penitentiary. Based upon that testing, Dr. Hopewell

concluded [Gilson] suffers from “irreversible organic brain syndrome which

is chronic in nature and which [is] classic for this type of damage and which

is a direct result of traumatic head injury.” (Exhibit D, pg. 18). Dr.

Messina stated he evaluated the C.A.T. scans and medical records

concerning [Gilson]. He concluded the records indicated extensive brain

damage to [Gilson]’s right frontal lobe and right temporal lobe which

remains and results from the prior motor vehicle accident on March 12,

1993. (Exhibit E). Dr. Rosenblum stated he evaluated the reports of Drs.

Hopewell and Messina, as well as [Gilson]’s medical records. He verified

the findings of Drs. Hopewell and Messina and concluded that [Gilson]’s

“severe brain damage in the area most affected is compatible with Dr.

Hopewell’s neuropsychological evaluation. As a result, [Gilson’s]

prognosis for improvement is very poor and permanent.” (Exhibit F).

 The remaining six (6) affidavits are from family, friends and co-workers

who state that [Gilson] exhibited drastic personality changes after the 1993

automobile accident. [Gilson]’s mother and step-father state that prior to

the accident [Gilson] did not act out of the ordinary, and showed attention

to his appearance and household. However, after the accident he withdrew,

became careless with his appearance, and took on bizarre habits such as

eating only certain foods and having an unnatural fear of other food items. 

(Exhibits G and H.) Friends and co-workers stated [Gilson] often seemed

distant and unaware of his surroundings after the accident (Exhibits I, J, K,

and L).

 [Gilson]’s Application contends the information contained in the

affidavits constitute [sic] the “clear and convincing evidence” necessary

under Rule 3.11(B)(3)(b)(i) to demonstrate a strong possibility trial counsel

was ineffective. Accordingly, [Gilson] urges this Court to so find and to
86

order an evidentiary hearing to fully address the ineffectiveness issue.

 Rule 3.11(B)(3)(6) allows an appellant to request an evidentiary hearing

when it is alleged on appeal that trial counsel was ineffective for failing to

“utilize available evidence which could have been made available during

the course of trial . . . .” Once an application has been properly submitted

along with supporting affidavits, this Court reviews the application to see if

it contains “sufficient evidence to show this Court by clear and convincing

evidence there is a strong possibility trial counsel was ineffective for failing

to utilize or identify the complained-of evidence.” Rule 3.11(B)(3)(b)(i).

 Upon review of the affidavits, we find trial counsel was aware of the

automobile accident and any personality changes in [Gilson] since the

accident. However, the record reflects that with that knowledge, counsel

chose a defense of actual innocence, not one of diminished capacity. That

strategic choice is not indicative of deficient performance as a defense of

actual innocence was reasonable based upon information provided to

counsel by [Gilson]’s family and friends.

“[A]n attorney who makes a strategic choice to channel his

investigation into fewer than all plausible lines of defense

upon which he bases his strategy are reasonable and his

choices on the basis of those assumptions are reasonable . . .

,” An attorney’s decision not to interview witnesses and to

rely on other sources of information, if made in the exercise

of professional judgment, is not ineffective counsel.

Boltz v. State, 806 P.2d 1117, 1126 (Okl.Cr. 1991), cert. denied, 502 U.S.

846, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991), quoting United States v. Glick,

710 F.2d 639, 644 (10th. Cir. 1983).

 Here, [Gilson] told police he never abused Shane, but merely assisted in

the decision concerning what to do with the body and the removal of the

body. Further, he said he never abused any of the other children, that it was

Bertha Coffman who abused the children. [Gilson]’s mother and

step-father testified they never saw [Gilson] abuse the children and that the

children appeared to be fond of [Gilson]. Based upon this evidence, it was

a reasonable decision based upon their professional judgment for defense

counsel to focus on Bertha Coffman as the actual perpetrator and pursue a

defense of actual innocence on [Gilson]’s part. That the strategy proved

unsuccessful is not grounds for branding counsel ineffective. Absent a

showing of incompetence, [Gilson] is bound by the decisions of his counsel

and mistakes in tactic and trial strategy do not provide grounds for

subsequent attack. Davis v. State, 759 P.2d 1033, 1036 (Okl.Cr.1988). To
87

have also raised any type of mental disorder defense would have been

inconsistent with a defense of actual innocence and would have

considerably weakened both defenses. Counsel’s decision in this case was

reasonable trial strategy, which we will not second guess on appeal. Bernay

v. State, 989 P.2d 998, 1015 (Okl.Cr. 1999).

 Further, counsel was not ineffective for failing to present evidence of the

injury during second stage. The record shows the second stage defense

focused on [Gilson] being a productive and contributing member of society

therefore, he deserved a punishment less than death. This included

evidence of his lack of any prior violent conduct and his skills and ability to

maintain employment. While evidence of [Gilson]’s mental condition and

his inability to control his “explosive behavior” may have had some

mitigating effect, this evidence could be a two-edged sword. Evidence that

[Gilson] had poor control over his behavior had the potential of proving

[Gilson] was a threat to society, including prison society, and could indicate

a propensity for future violence. Such evidence would have been

contradictory to mitigating evidence of [Gilson]’s lack of culpability and

lack of violent conduct. Counsel’s strategic decision to pursue a second

stage defense that [Gilson] was less culpable than Coffman, and highlight

the positive traits of his character instead of focusing on any mental

problems he might have was well within the range of professional

reasonable judgment.

 While [Gilson] has provided a great deal of information in his affidavits,

we find he has failed to set forth sufficient evidence to warrant an

evidentiary hearing. He has failed to show by clear and convincing

evidence a strong possibility that defense counsel was ineffective for failing

to utilize the complained-of evidence. [citation omitted]. Accordingly, we

decline to grant [Gilson]’s application for an evidentiary hearing.

Gilson I, 8 P.3d at 926-29 (internal paragraph numbers omitted).

c) Gilson’s challenge to the OCCA’s analysis

Gilson argues that the OCCA’s decision was “flawed” in two related respects. 

Aplt. Br. at 116. First, Gilson argues that the OCCA’s decision “overlook[ed] the

requirement that counsel conduct a ‘thorough’ mitigation investigation.” Id. (citing

Wiggins v. Smith, 539 U.S. 510, 524 (2003)). Second, Gilson complains that the
18 We also question whether Gilson adequately presented this argument to the

OCCA. Although the “Application for Evidentiary Hearing on Sixth Amendment

Claims” that Gilson filed with the OCCA asserted generally that Gilson was denied

effective assistance of counsel in both stages of trial, it failed to offer any specific

arguments regarding counsel’s first-stage performance, and instead focused exclusively

on counsel’s failure to present evidence of Gilson’s auto accident and resulting effects

during the second-stage proceedings. 

88

OCCA’s “determination[] as to counsel making a strategic decision [was] based on sheer

speculation, which is not enough.” Id. In this regard, Gilson argues that the affidavits he

submitted to the OCCA from his trial counsel “say nothing of a strategic decision to

intentionally omit the evidence,” and in fact “suggest there was no strategic decision, as

they admit they overlooked the reference to CAT scans and were not aware of the true

nature and extent of [his] head injuries.” Id. at 117.

We find it unnecessary to address Gilson’s arguments, both of which focus on the

first Strickland prong, because we conclude, applying a de novo standard of review, that

Gilson cannot satisfy the second Strickland prong. Turning first to Gilson’s complaint

that his trial attorneys failed to present evidence of his auto accident and its effects during

the first-stage proceedings, we conclude that Gilson was not prejudiced by this purported

failure.18 Although the OCCA recognized a defense of complete insanity at the time of

Gilson’s trial, it had never recognized, and appears to this date to have never recognized,

a defense to first degree murder positing that the defendant was incapable of forming the

specific intent due to a mental illness short of complete insanity. See Grant v. State, 58

P.3d 783, 795 (Okla. Crim. App. 2002) (“We need not reach the issue of a ‘diminished

capacity’ defense in this [first degree murder] case, as Grant’s evidence regarding his
89

mental illness did not show that he suffered mental infirmities that would have rendered

him incapable of forming the specific intent necessary.”). Moreover, none of the

evidence submitted by Gilson to the OCCA in connection with his ineffective assistance

claim establishes that he lacked the ability to form the specific intent necessary to be

found guilty of first degree murder. To the contrary, the clinical neuropsychologist who

examined Gilson (Dr. C. Alan Hopewell) concluded that Gilson had “an overall IQ score

of 92,” Hopewell Report at 8, and “technically ‘kn[e]w right from wrong’” but was “often

unable to ‘conform his behavior to the right’ due to impulsivity, poor judgment, and the

failure to see or understand the consequences of his actions.” Id. at 10. Thus, the

purported failure of Gilson’s trial attorneys to pursue a diminished capacity defense to the

first degree murder charge, based on Gilson’s alleged post-accident changes in behavior,

simply did not prejudice Gilson.

We reach a similar conclusion with respect to Gilson’s claim that his trial attorneys

erred in failing to present accident-related evidence during the second-stage proceedings. 

With respect to this claim, it is not entirely clear whether the OCCA intended to address

the second prong of the Strickland test, but its opinion does contain the following

language that is relevant to our second prong analysis:

While evidence of [Gilson]’s mental condition and his inability to control

his “explosive behavior” may have had some mitigating effect, this

evidence could be a two-edged sword. Evidence that [Gilson] had poor

control over his behavior had the potential of proving [Gilson] was a threat

to society, including prison society, and could indicate a propensity for

future violence. Such evidence would have been contradictory to

mitigating evidence of [Gilson]’s lack of culpability and lack of violent

conduct. Counsel’s strategic decision to pursue a second stage defense that
90

[Gilson] was less culpable than Coffman, and highlight the positive traits of

his character instead of focusing on any mental problems he might have was

well within the range of professional reasonable judgment.

Gilson I, 8 P.3d at 928.

Whether or not we owe any deference to these conclusions, we believe they are

entirely accurate. To be sure, the evidence presented by Gilson to the OCCA in

connection with his ineffective assistance claim persuasively established that he was

involved in a 1993 automobile accident, sustained a serious brain injury as a result of the

accident, and has experienced negative physical and mental effects since the accident

(e.g., a constant “global” headache; photophobia; increased sensitivity to auditory

stimuli). Dr. Hopewell’s neuropsychological consulting report, however, paints a bleak

and ominous picture of Gilson’s personality, behavior, and likely future conduct. For

example, Hopewell noted that Gilson had a “tendency to become agitated and belligerent

easily when frustrated.” Hopewell Report at 12. Indeed, Hopewell reported that this

tendency actually played out during their interview, with Gilson becoming frustrated at

Hopewell and at times throwing his pencil across the room, yelling, answering in

gibberish, and refusing to continue with requested testing. Hopewell opined that Gilson

“w[ould] have extreme difficulties in terms of frustration tolerance as well as restrictions

in abilities to deal with complicated, stressful, complex, and ambiguous situations.” Id. at

8. Relatedly, Hopewell concluded that Gilson would have difficulty conforming his

behavior to societal norms “due to impulsivity, poor judgment, and the failure to see or

understand the consequences of his actions.” Id. at 10. Hopewell also concluded that
91

Gilson had an “inability to regulate behavior or inhibit impulses” and thus “w[ould] often

act before thinking.” Id. at 18. Given these extremely negative descriptions of Gilson’s

likely behavior, we conclude that the presentation of this evidence to the jury during the

second-stage proceedings would not have resulted in a different outcome. In particular,

we conclude that the presentation of this evidence would likely have weighed against

Gilson by erasing any lingering doubts that may have existed as to his role in Shane’s

murder, and by confirming the jury’s conclusion that he represented a continuing threat,

even if confined in prison for life. Thus, we conclude Gilson was not prejudiced by the

failure of his trial attorneys to gather and present this evidence to the jury during the

second-stage proceedings.

The judgment of the district court is AFFIRMED.
Gilson v. Sirmons, No. 06-6287

HENRY, Chief Judge, dissenting in part.

“This was a horrible crime.” Gilson v. State, 8 P.3d 883, 930 (Okla. Crim. App.

2000) (Chapel, J., dissenting). It is difficult to imagine a more heart-rending set of facts

than those that befell a helpless and innocent Shane Coffman. There is no question that

Donald Gilson had a history of abusing at least some of the Coffman children, who lived

in fear of him, and I rest assured that he will be punished for that abuse, as he was

convicted of two out of five counts of injury to a minor. Further, should the court see fit

to adopt the reasoning of this partial dissent, Mr. Gilson would again face trial for murder

or manslaughter with a properly instructed jury. 

I am aware that we owe state courts great deference under AEDPA. We may only

reverse their determinations in the most limited circumstances. Nevertheless, when a

death sentence is imposed we must be certain that it was with the full protections of the

Constitution. 

It was with this in mind that Congress enacted 28 U.S.C. § 2254, providing habeas

relief in order “to interpose the federal courts between the States and the people, as

guardians of the people’s federal rights – to protect the people from unconstitutional

action.” Reed v. Ross, 468 U.S. 1, 10 (1984) (internal quotation marks omitted). This

protection is most crucial when the defendant’s life hangs in the balance. “[D]eath is a

different kind of punishment from any other which may be imposed in this country . . . . 

It is of vital importance to the defendant and to the community that any decision to
2

impose the death sentence be, and appear to be, based on reason rather than caprice or

emotion.” Gardner v. Florida, 430 U.S. 349, 357-58 (1977). 

The majority opinion is well-written and carefully resolves a number of issues in

this prosecution under a relatively new and unique statute. While I agree with much of its

resolution of the issues before us, I must part company on one vital issue protected by our

legal heritage. In a case with such disturbing facts, filed against a defendant who had at

least some history of abuse, the risk of an unwarranted conviction is especially high. 

“The absence of a lesser included offense instruction increases the risk that the jury will

convict . . . simply to avoid setting the defendant free.” Spaziano v. Florida, 468 U.S.

447, 455 (1984). This “risk cannot be tolerated in a case in which the defendant’s life is

at stake.” Beck v. Alabama, 447 U.S. 625, 637 (1980). 

Ms. Coffman, whose guilty plea was accepted by the state court, was convicted of

first-degree murder and received a sentence of life in prison. The dispositive portion of

Mr. Gilson’s appeal is only about what role Mr. Gilson played in Shane’s murder. When

determining the narrow question whether Mr. Gilson was entitled to a jury instruction on

second-degree manslaughter, we have only one question before us – what could a

reasonable jury have found regarding Mr. Gilson’s culpability in Shane’s death? 

Evidence was presented at trial that Mr. Gilson played no part in abusing Shane the day

he died and that he was asleep on the couch during the abuse that led to Shane’s death. A

rational jury could have believed this evidence and found Mr. Gilson guilty of culpable

negligence, but not of actively permitting child abuse, as the Oklahoma statute requires
3

for a first-degree murder conviction. Because, even under our deferential standard of

review, the evidence supported giving an instruction on second-degree manslaughter – a

right protected under Beck and Spaziano – I must respectfully dissent.

A. Standard of Review

First, I must address the appropriate standard of review. We have never

definitively determined whether sufficiency of the evidence to support a lesser included

offense instruction is a factual or a legal question. See, e.g., Boltz v. Mullin, 415 F.3d

1215, 1233 (10th Cir. 2005) (noting that the Tenth Circuit has not yet decided the

appropriate standard); Turrentine v. Mullin, 390 F.3d 1181, 1197 (10th Cir. 2004) (same);

Hogan v. Gibson, 197 F.3d 1297, 1306 (10th Cir. 1999) (same). If it is a legal question,

we must ask whether it was contrary to or an unreasonable application of clearly

established federal law. 28 U.S.C. § 2254(d)(1). If it is a factual determination, we must

ask whether the OCCA’s conclusion was “an unreasonable determination of the facts in

light of the evidence presented.” 28 U.S.C. § 2254(d)(2). Further, if factual, we must

presume the state court’s determinations to be correct unless Mr. Gilson has presented

clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).

The Oklahoma Court of Criminal Appeals characterizes the sufficiency of the

evidence to support a lesser included offense instruction as a legal issue. See e.g., Young

v. State, 12 P.3d 20, 39 (Okla. Crim. App. 2000). Moreover, in direct criminal appeals,

we treat denials of lesser included offense instructions as legal determinations. See, e.g.,
4

United States v. Castillo, 140 F.3d 874, 886 (10th Cir. 1998). 

Consistent with this approach, the sufficiency of the evidence to support a lesser

included offense instruction seems to me not to be a purely factual determination. See

Hogan, 197 F.3d at 1306 n.6 (stating that although the panel cannot resolve the

inconsistency itself, it unanimously agrees that we should treat the determination as a

conclusion of law). While such a determination involves some application of the facts,

this is not the end of the inquiry, as “[t]his appellate function does not involve fact finding

in the first instance, but rather a review of the record to determine whether the factfinder

had an evidentiary basis for its rulings which would satisfy the legal standard in

question.” Bryson v. Ward, 187 F.3d 1193, 1211 (Briscoe, J., concurring) (emphasis

added). In this case, the OCCA did not find any facts in determining that Mr. Gilson was

not entitled to lesser included offense instructions. Instead, the OCCA applied the clearly

established federal legal standard set forth in Beck, to the facts in the record. 

“No presumption of correctness attaches to legal conclusions or determinations on

mixed questions of law and fact.” Case v. Mondragon, 887 F.2d 1388, 1393 (10th Cir.

1989). Therefore, we must review such legal determinations under § 2254(d)(1),

reversing the OCCA only if its determination was an unreasonable application of Beck. I

maintain that it was. 
5

B. The second-degree manslaughter instruction

Under Beck, “a sentence of death [may not] constitutionally be imposed after a

jury verdict of guilt on a capital offense, when the jury was not permitted to consider a

verdict of guilt of a lesser included non-capital offense, and when the evidence would

have supported such a verdict.” 447 U.S. at 627 (internal quotation marks omitted). It is

the jury’s duty to weigh the evidence – not ours, and not the OCCA’s. But in order to

allow a jury to most freely perform its duties, we must be sure that state courts follow

Beck’s mandate, which was designed “to eliminate the distortion of the factfinding

process that is created when the jury is forced into an all-or-nothing choice between

capital murder and innocence.” See Spaziano, 468 U.S. at 455. Beck’s mandate applies

even when the convicting jury retained the discretion not to sentence the defendant to

death. Hooks v. Ward, 184 F.3d 1206, 1227 (10th Cir. 1999). Here, the evidence

supported instructions for culpable negligence second-degree manslaughter under Okla.

Stat. Ann. tit. 21, § 716. 

1. Second-degree manslaughter defined

“Every killing of one human being by the act, procurement, or culpable negligence

of another . . . is manslaughter in the second degree.” OKLA. STAT. ANN. tit. 21, § 716. 

Oklahoma defines culpable negligence as “the omission to do something which a

reasonably careful person would do, or the lack of the usual ordinary care and caution in

the performance of an act usually and ordinarily exercised by a person under similar

circumstances and conditions.” Oklahoma Uniform Jury Instructions – Criminal 4-104
1

Notably, in a subsequent case, the OCCA did comply with Beck and held that

where the defendant spilled boiling water on his son to the point that he died as a result of

his burns (and this tragedy took place in the bedroom, not the kitchen), the defendant was

entitled to culpable negligence second-degree manslaughter instructions. Ball v. State,

173 P.3d 81 (Okla. Crim. App. 2007).

6

(2007). Mr. Gilson argues that he fell asleep on the couch while Shane was alone with

Ms. Coffman, but did not actively permit Shane’s abuse, as the first-degree murder statute

requires. “To permit” as used in Oklahoma’s child-abuse murder statute means “to

authorize or allow for the care of a child by an individual when the person authorizing or

allowing such care knows or reasonably should know that the child will be placed at risk

of abuse . . . .” OKLA. STAT. ANN. tit. 10, § 7115. As the State argued in its brief before

us, “[t]h[e] definition [of ‘to permit’] does not encompass a mere failure to act . . . but

instead anticipates one’s affirmative action . . . .” Aple’s Br. at 42 (emphasis added). 

“Permitting” under the first-degree child abuse murder statute requires active

authorization. A “mere failure to act,” that does not involve the affirmative action

necessary to support a first-degree murder child abuse conviction may constitute culpable

negligence. Oklahoma courts have found a defendant guilty of such a culpably negligent

failure to act, when, for instance, he failed to seek medical care for a sick child. 

Funkhouser v. State, 763 P.2d 695 (Okla. Crim. App. 1988).1

 The “kaleidoscopic nature

of the varying degrees of mental culpability,” People v. Green, 437 N.E.2d 1146, 1149

(N.Y. 1982), makes the line between active permission necessary for first-degree murder

and a culpably negligent failure to act hard to draw. Determining a given defendant’s

degree of culpability, however hard to define, is “to be inferred from the facts and
2 See, e.g., Trial Transcript, vol. VI, at 1403-04, 1375 (Ms. Coffman stating that, as

she said in the February 9 interview with police, Don Gilson did not touch Shane on the

day he died and that Mr. Gilson hadn’t done anything else to discipline Shane that day). 

See also Add. Aplt’s Br., at 145, 154, 180 (Oklahoma State Bureau of Investigation

Interview Transcript) (stating “[I]t was about two days before [Shane died] that he had

spanked Shane,” “Nobody touched that boy [Shane] but me that day. Nobody,” and, “I

have gone over this, and over this, and over this and for six, for almost six months. But

believe me, I lived this day every day of my life since then. And I don’t remember him

(continued...)

7

circumstances proved and involve[s] fine gradations along but a single spectrum of

culpability.” Id. (internal quotation marks omitted). The question for us is whether a

rational jury could have found that Mr. Gilson engaged in some failure to act that falls

short of the necessary active authorization required to meet Oklahoma’s definition of

“permit” but is still actionable as culpable negligence. 

2. The evidence

“[I]t has long been beyond dispute that the defendant is entitled to an instruction

on a lesser included offense if the evidence would permit a jury rationally to find him

guilty of the lesser offense and acquit him of the greater.” Beck, 447 U.S. at 635 (internal

quotation marks omitted). After considering all of the State’s evidence, I believe there

remains a set of facts that a rational jury could have relied on to convict Mr. Gilson of

second-degree manslaughter and acquit him of first-degree murder. Although, as the

majority notes, Ms. Coffman’s testimony and police interviews contained some

inconsistencies as to exactly what happened that night, Ms. Coffman consistently claimed

that Mr. Gilson had not abused Shane on the day of or the few days preceding Shane’s

death.2

 Whatever inconsistencies plagued Ms. Coffman’s testimony as to her own
2

(...continued)

ever spanking Shane that day.”).

8

actions, and whatever she stated about Mr. Gilson’s temper in general, she was consistent

as to this one, critical point. 

A rational jury, believing Ms. Coffman’s testimony along with, for instance, Mr.

Gilson’s claims that he was asleep on the couch during the abuse leading to Shane’s

death, could have found that Mr. Gilson was culpably negligent and therefore guilty of

second-degree manslaughter. The culpably negligent action in this scenario would have

been falling asleep on the couch while Ms. Coffman, to his knowledge, disciplined Shane. 

In the closing arguments during the guilt phase of the trial, Mr. Gilson’s counsel said, “He

thought that Bertha was just spanking [Shane]; that she had Shane in timeout; that he was

in the bathtub; that he was not being cooperative. Nowhere in [Mr. Gilson]’s statement is

there anything about him being aware of [Ms. Coffman] beating on Shane, hitting him

with a board, hitting him in the legs, hitting him in the arms, hitting him in the head,

nowhere.” Trial Transcript, vol. X, at 2202-03. Mr. Gilson’s counsel further pointed to

the report of the state’s investigator, Cliff Winkler, which noted that Mr. Gilson’s

testimony was consistent with Ms. Coffman’s as to the fact that he was asleep when she

came in and reported that Shane was not breathing and that he then performed CPR for an

hour and a half. Id. “[Mr. Gilson] said he was in shock. He said he had no conceivable

idea what had happened.” Id. 

A rational jury could believe this set of facts and find that Mr. Gilson did not
9

actively permit Ms. Coffman’s abuse that killed Shane, but instead negligently failed to

intervene, falling asleep while she was alone with him. A rational jury could have found

that this failure to act, while tragic, did not rise to the level of affirmatively, actively,

wilfully permitting Ms. Coffman to abuse Shane – that is, that along the spectrum of

culpability, Mr. Gilson’s failure to act was culpably negligent. 

The majority states that Ms. Coffman’s testimony’s “internal inconsistencies” and

“the overwhelming weight of the State’s evidence” establish that no rational juror could

convict Mr. Gilson of manslaughter while acquitting him of first-degree murder. Maj.

Op. at 69-70. The majority is certainly right that the State presented abundant evidence to

support Mr. Gilson’s first-degree murder conviction – but, respectfully, this is not the

question:

A Beck claim is not the functional equivalent of a challenge to the sufficiency

of the evidence for conviction; rather, Beck focuses on the constitutionality of

the procedures employed in the conviction of a defendant in a capital trial and

is specifically concerned with the enhanced risk of an unwarranted capital

conviction where the defendant’s life is at stake and a reasonable jury could

have convicted on a lesser included offense.

Hogan, 197 F.3d at 1305 (emphasis added). 

As the State itself noted in its closing argument during the guilt phase of the trial,

Ms. Coffman has consistently claimed that she and she alone is responsible for Shane’s

death. Trial Transcript, vol. X, at 2161. The State further argued that the jury should not

believe Ms. Coffman’s version of events because “[t]here is a bond between those two,

Bertha Jean and Donald Lee,” id. at 2162, and that “[Ms. Coffman] thinks she’s got the
10

death penalty beat and she is going to try her damnedest to give him the same gift out of

you. . . . From her jail cell Bertha Jean is still trying to run things, and she will if you let

her.” Id. at 2163. While it is certainly possible Ms. Coffman may have been covering up

for Mr. Gilson, the State’s mere intimations regarding Ms. Coffman’s motivation is not

enough to render Ms. Coffman’s testimony unbelievable by any rational jury. 

3. Application of Beck

It is neither our job, nor the OCCA’s to weigh the evidence and decide which

side’s is stronger. “Our question is not whether the evidence pointing to the lesser

offense . . . was weak.” United States v. Humphrey, 208 F.3d 1190, 1207 (10th Cir.

2000). Instead, we must ask whether “there is any evidence fairly tending to bear upon

the lesser included offense, however weak that evidence may be.” Id. A trial court may

properly deny a defendant’s request for a lesser included offense instruction only when

there is no evidence to reasonably support that conviction. See, e.g., Young v. Sirmons,

486 F.3d 655, 672 (10th Cir. 2007) (defendant not entitled to a lesser included seconddegree murder instruction when “forensic evidence revealed that there were at least three

weapons used during the gunfight, and there was no evidence of shots fired by anyone but

[the defendant and two others]) (emphasis added), cert denied, 128 S.Ct. 1269, (2008);

Darks v. Mullin, 327 F.3d 1001, 1010 (10th Cir. 2003) (defendant not entitled to a lesser

included first-degree manslaughter instruction when “[his] attorney was forced to concede

at oral argument, that no evidence support[ed] the adequate provocation element”)

(emphasis added). 
11

Here, the State did present ample evidence that Mr. Gilson’s treatment of the

Coffman children was, at times, nothing short of atrocious. Nevertheless, in conducting

our lesser included offense inquiry, we must only concern ourselves with the events that

caused Shane’s death. The evidence of prior abuse on which the State relied to support

the capital murder charge is not evidence that Mr. Gilson necessarily caused or wilfully

permitted Shane’s death. Although the State’s case was strong, the State’s presentation of

the facts was not the only reasonable interpretation of the evidence, and the jury did not

have to believe it (and in fact did not believe the evidence in three of the five counts of

injury to a minor). We already know that the jury was split as to whether Mr. Gilson

actively permitted the abuse or committed it himself. Especially in light of Ms.

Coffman’s unequivocal testimony that Mr. Gilson played no part in abusing Shane the

day he died, and the testimony of both that Mr. Gilson was asleep on the couch, it is not

the case that there was no evidence to support an instruction on second-degree

manslaughter. 

Beck and its progeny are meant to ensure that no jury in a capital case is faced with

an all-or-nothing decision when the evidence supports a third option. In this case, the

evidence did just that. Because “permitting” child abuse requires affirmative action, a

rational juror could have found that Mr. Gilson guilty of the culpable negligence of

second-degree manslaughter, without finding that his failure to act rose to the level of

affirmative action required to prove first-degree murder beyond a reasonable doubt. 

However, the jury was still faced with an all-or-nothing decision. Because, in my view,
12

the OCCA’s determination was an unreasonable application of Beck and Mr. Gilson was

entitled to a second-degree manslaughter instruction, I must dissent.