Case Information
*1
T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Plaintiff and Appellee, v.
S HERRIE L YNN B ECKERING , Defendant and Appellant.
Opinion No. 20130254-CA Filed August 20, 2015 Third District Court, Salt Lake Department The Honorable Katie Bernards-Goodman No. 111902545
Richard G. Uday, Attorney for Appellant Sean D. Reyes and Daniel W. Boyer, Attorneys for Appellee
J UDGE K ATE A. T OOMEY authored this Opinion, in which J UDGES M ICHELE M. C HRISTIANSEN and J OHN A. P EARCE concurred.
TOOMEY, Judge: Defendant Sherrie Lynn Beckering appeals her conviction
for aggravated abuse of a vulnerable adult, which was enhanced to a first-degree felony because the jury found she acted in concert with others. Beckering argues her trial counsel rendered constitutionally ineffective assistance because he failed to object to purported errors in the jury instructions. She also argues the trial court erred by allowing ‚gruesome‛ photographs to be admitted into evidence. We affirm.
BACKGROUND On March 25, 2011, police officers and paramedics
responded to a 911 call and found a twenty-two-year-old woman (Victim) in Beckering’s house ‚lying on the ground‛ unconscious. The paramedics could not revive her, and Victim was pronounced dead at the scene. The police officers noted several obvious injuries on Victim’s body, including several large bruises on her left hip and thigh. Officers noticed ‚ligature marks‛ on her ankles, which matched cut nylon zip ties discovered near her body. They also found a red pepper flake under her lower-right eyelid. Someone had wrapped Victim’s hands in ACE bandages ‚all the way around her hand . . . and then they went down to about her elbows‛ in a ‚mitten type of fashion.‛ The bandages were wrapped so tightly Victim could not have moved her fingers or thumbs. Under the bandages, Victim had deep tissue damage and numerous open ulcers. The State medical examiner later noted large areas of bruising with ‚well defined‛ edges and a ‚distinct pattern‛ on Victim’s body. He also observed red spots on Victim’s lips, forehead, and cheeks ‚likely related to exposure to some sort of an irritant.‛ Ultimately, the medical examiner ruled that Victim ‚died as a result of improper care by her caregiver or caregivers . . . . based upon inflicted injuries including patterned injuries, deprivation of water, dehydration and electrolyte abnormalities, immobilization with use of restraints and confinement to a closet and excessive dosing with sedating medication.‛ Victim suffered from fetal alcohol syndrome and was ‚developmentally delayed.‛ After Victim’s mother died of cancer, Beckering’s daughter, Cassandra Shepard, became Victim’s legal guardian and caretaker. Shepard, Shepard’s two daughters, Victim, and Victim’s daughter lived with Beckering and her husband in Beckering’s two-story house.
1. For a more detailed description of the background facts in this case, see State v. Beckering , 2015 UT App 53, ¶¶ 2–14, 346 P.3d 672, in which this court affirmed Beckering’s husband’s conviction for being a party to reckless aggravated abuse of a vulnerable adult for his role in Victim’s death.
¶4 Beckering was charged as a party to aggravated abuse of a vulnerable adult for conduct spanning from July 1, 2010, to March 25, 2011. At trial, Beckering testified she knew nothing about Victim’s injuries and had no role in caring for her. She claimed that, although she had cared for Victim in the past, she did not have ‚any type of responsibility‛ for Victim during the time of the alleged abuse. According to Beckering, she and her husband lived in the downstairs area of the house and everyone else, including Victim, lived upstairs. Even though the only kitchen in the house was upstairs, she insisted that the floors were ‚separate‛ and that, as a result, she only occasionally saw Victim. To rebut Beckering’s claims of ignorance, the State
presented testimony from several witnesses to demonstrate that Beckering cared for Victim. The State also presented evidence, including the medical examiner’s report and several photographs, to demonstrate that Victim’s injuries were intentional or non-accidental and so severe as to have been noticeable to anyone in the house. For example, Shepard’s daughters described Victim’s punishments in detail, testifying that Shepard and Beckering took turns caring for Victim and that the abuse often occurred in the closet near the kitchen and the living room. Before trial, Beckering objected to the admission of at least
six photographs offered by the State on the grounds that they were ‚irrelevant, highly prejudicial or gruesome.‛ The trial court denied Beckering’s pre-trial motion to suppress the photographs and admitted them into evidence at trial, concluding they were relevant to the State’s theory and not gruesome. The challenged 2. Prior to trial, Beckering objected to a number of the State’s proposed exhibit photographs, but did not attach them to the pre-trial motion. At trial, Beckering’s counsel renewed the objections when the challenged photographs were offered into evidence. On appeal, Beckering has indicated that she challenges ‚five‛ photographs, but has listed six of the State’s exhibit
(continued…) photographs each depict the deceased victim and are as follows: ‚Exhibit 13‛ depicts Victim’s face with a pepper seed under one of her lower eyelids; ‚Exhibit 18‛ depicts Victim’s face and open mouth showing the bruising and speckling on her skin and lips; ‚Exhibit 19‛ shows patterned bruises on Victim’s hip and legs; and ‚Exhibit 22‛ is two small photographs of Victim’s right and left hands which show open skin ulcers. The jury convicted Beckering of aggravated abuse of a
vulnerable adult under Utah Code section 76-5-111(2)(a). It determined she had acted knowingly or intentionally, and enhanced her conviction for acting in concert with others pursuant to Utah Code section 76-3-203.1. She was sentenced to an indeterminate term of five years to life in prison. Beckering appeals.
ANALYSIS I. Jury Instructions Beckering contends her trial counsel performed ineffectively by not objecting to several errors in the jury instructions given by the court. In particular, she argues the jury (…continued)
photographs in her argument. But the record does not include the State’s exhibits. The record contains only four photographs, which were attached to the State’s opposition to Beckering’s pre- trial motion to suppress. Because only four of the challenged photographs are in the record—‚Exhibit 13,‛ ‚Exhibit 18,‛ ‚Exhibit 19,‛ and ‚Exhibit 22‛—we have limited our analysis to those photographs.
3. Because the photographs in the record—attached to the State’s opposition to Beckering’s pre-trial motion—were not labeled as exhibits, we have identified them with the ‚exhibit‛ numbers used in the transcript and in Beckering’s appellate brief. instructions were erroneous because they did not make clear that each of several terms—‚party to the offense,‛ ‚vulnerable adult,‛ and ‚caretaker‛—were separate factual determinations the jury needed to make in finding Beckering’s guilt. The elements instructions, Beckering asserts, ‚were too conclusory and they incorrectly presented [the terms] as . . . ‘established and given facts’ rather than letting the jury decide such facts for themselves.‛ Beckering also argues that language added to the elements instruction, which was not present in the statute, created uncertainties in the jury’s findings. As we have recently analyzed and decided these very issues, see State v. Beckering , 2015 UT App 53, ¶¶ 20–37, 346 P.3d 672, we reject these arguments. To demonstrate that trial counsel provided
constitutionally ineffective assistance, Beckering must show
‚both ‘that counsel’s performance was deficient’ and ‘that the
deficient performance prejudiced the defense.’‛
Layton City v.
Carr
,
instruction upon the basic elements of an offense is essential.‛
State v. Bird
,
4. Beckering argues the jury instructions were erroneous because, although they required the jury to determine whether Beckering caused or permitted harm to a vulnerable adult, they did not specifically require the jury to find that Victim was a vulnerable adult. We are not persuaded. To determine whether Beckering ‚*c+aused a vulnerable adult to suffer serious physical injury‛ or permitted a ‚vulnerable adult’s person or health to be injured,‛ the jury necessarily needed to determine whether Victim—the only person harmed in this case—was a vulnerable adult. Beckering also argues that trial counsel performed
ineffectively by not objecting to the elements instruction that added language requiring the jury to determine whether she acted ‚as a party to the offense , including as a caretaker.‛ (Emphasis added.) She asserts that because being a ‚‘party to the offense’ is not the same as being a ‘caretaker’‛ and because both terms were present in the instruction, there are ‚uncertainties and inconsistencies in determining whether the jury had factually found that Sherrie Beckering was a ‘caretaker’ or a ‘party to the offense.’‛ Beckering’s argument suggests the jury could have mistakenly thought that finding that she was a ‚caretaker‛ would satisfy the requirement of finding that Beckering was a ‚party to the offense‛ for the purposes of the in- concert enhancement. Even if we determined there was an error in the
challenged jury instruction, Beckering has failed to demonstrate
that the error prejudiced her defense. The language used in the
jury instruction is consistent with the language and structure of
Utah Code section 76-5-111(2), which provides for criminal
penalties against ‚any person, including a caretaker,‛ who ‚is
guilty of the offense of aggravated abuse of a vulnerable adult.‛
See State v. Beckering
,
offense,‛ the instruction required the jury to make a more narrow finding which increased the State’s burden and benefited Beckering. In particular, to find Beckering guilty of aggravated abuse of a vulnerable adult, the instruction’s language required the State to demonstrate Beckering was something more than ‚any person‛ as the statute requires; it imposed the additional burden on the State to prove Beckering was either a ‚party to the offense‛ or a ‚caretaker,‛ where ‚any person‛ would satisfy the requirements provided by the statute. This increased burden on the State stood to benefit Beckering by requiring the jury to make an additional finding not required by the statute. An error that ‚actually benefits the defendant‛ cannot serve as the basis for a claim of ineffective assistance of counsel. See State v. Malaga , 2006 UT App 103, ¶ 16 n.4, 132 P.3d 703. Beckering fails to persuasively explain how the language ‚as a party to the offense, including as a caretaker‛ caused prejudice or how altering or removing the language from the elements instruction would have led to a more favorable result. Accordingly, we are not convinced any error in adding the language ‚party to the offense‛ prejudiced Beckering’s defense. In sum, Beckering has failed to demonstrate that trial
counsel performed ineffectively with regard to the jury instructions or that ‚but for counsel’s error, the result would have been different.‛ See Layton City v. Carr , 2014 UT App 227, ¶ 12, 336 P.3d 587 (citation and internal quotation marks omitted). Because ‚the instructions given still required the jury to resolve each individual factual determination in the State’s favor to find that the State had proven the elements as a whole,‛ we therefore conclude that there was no deficient performance by counsel in allowing the elements instruction. Beckering , 2015 UT App 53, ¶ 27.
II. Photographs Beckering also challenges the trial court’s decision to
admit Exhibits 13, 18, 19, and 22 into evidence, arguing that the
unfair prejudice to her defense substantially outweighed their
probative value. Specifically, she argues the photographs are
irrelevant and gruesome, and because they are gruesome, the
State failed to meet its burden of showing they had unusual
probative value that substantially outweighed the unfair
prejudice.
See State v. Vargas
,
photograph is admissible, we apply the three-part test adopted
by the Utah Supreme Court in
State v. Bluff
,
‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’‛ Bluff , 2002 UT 66, ¶ 42 (quoting Utah R. Evid. 401 (2002)). At trial, Beckering was charged with intentionally or knowingly abusing Victim, but maintained she had no knowledge of Victim’s injuries. In support of its case, the State presented Exhibit 18, which shows bruising and speckling on Victim’s face, to demonstrate that the ‚visible reaction of *Victim’s+ skin would have been obvious to anyone who saw her face.‛ The State presented Exhibit 19, which depicts large patterned bruises on Victim’s hip and thigh, to support the State’s theory that someone intentionally struck Victim. And the State presented Exhibits 13 and 22 to demonstrate that the bandages on Victim’s arms had been on for an extended period, and to demonstrate that because Victim did not have the use of her hands, someone other than Victim would have had to put the pepper seed in her eye. Because they tended to make the State’s theory—that someone intentionally abused Victim and that Victim’s injuries would have been apparent to Beckering—more probable than if there were no photographs admitted into evidence, we conclude that the trial court did not abuse its discretion in determining that the photographs were relevant. Next, we consider whether the photographs are
gruesome. To determine whether a photograph is gruesome, courts consider several non-exclusive factors, including
whether the photograph is in color or black and white; whether it is an enlargement or close-up shot; when the photo was taken in relation to the crime; and whether other details in the photo, aside from the victim, may exacerbate the photograph’s impact on the viewer.
State v. Gulbransen
,
CONCLUSION Beckering has not demonstrated that trial counsel
performed ineffectively with regard to the jury instructions. Moreover, because the challenged photographs are not gruesome, we conclude the trial court did not exceed its discretion by admitting the photographs into evidence. We affirm.