State v. Beckering

2015 UT App 209

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
SHERRIE LYNN BECKERING,
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

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and JOHN A. PEARCE concurred.

TOOMEY, Judge:

¶1 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

¶2 On March 25, 2011, police officers and paramedics
responded to a 911 call and found a twenty-two-year-old woman
 State v. Beckering

(Victim) in Beckering’s house ‚lying on the ground‛
unconscious.1 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.‛

¶3 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.

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 State v. Beckering

¶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.

¶5 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.

¶6 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.2 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…)

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 State v. Beckering

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.3

¶7 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

¶8 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.

20130254-CA 4 2015 UT App 209
 State v. Beckering

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.

¶9 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, 2014 UT App 227, ¶ 12, 336 P.3d 587 (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)). She must overcome a
‚‘strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.’‛ Id. (quoting
Strickland, 466 U.S. at 689). And trial counsel’s performance will
not be deemed deficient unless Beckering can ‚‘show that
counsel’s representation fell below an objective standard of
reasonableness.’‛ Id. (quoting Strickland, 466 U.S. at 688).
Moreover, ‚*t+o establish the prejudice element of an ineffective
assistance of counsel claim, the defendant must show that a
reasonable probability exists that, but for counsel’s error, the
result would have been different.‛ Id. (citation and internal
quotation marks omitted). ‚When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether
[the] defendant was deprived of the effective assistance of
counsel as a matter of law.‛ Id. ¶ 6 (alteration in original)
(citation and internal quotation marks omitted).

¶10 ‚The general rule for jury instructions is that an accurate
instruction upon the basic elements of an offense is essential.‛

20130254-CA 5 2015 UT App 209
 State v. Beckering

State v. Bird, 2015 UT 7, ¶ 14, 345 P.3d 1141 (citation and internal
quotation marks omitted). ‚To determine if jury instructions
correctly state the law, we ‘look at the jury instructions in their
entirety and will affirm when the instructions taken as a whole
fairly instruct the jury on the law applicable to the case.’‛ State v.
Painter, 2014 UT App 272, ¶ 6, 339 P.3d 107 (quoting State v.
Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892). Furthermore, ‚*w+hen
a single element in a criminal-elements instruction contains
multiple factual determinations, the element implicitly requires
the jury to resolve each of those factual determinations in favor
of the State in order to convict.‛ Beckering, 2015 UT App 53, ¶ 24.

¶11 Although the disputed terms were couched within
enumerated elements of the crime, rather than being listed as
separate elements, the jury instructions included the disputed
terms and instructed the jury on the applicable law. Moreover,
the jury received a separate instruction defining the concept of
‚party to the offense‛ or ‚accomplice liability‛ and an
instruction defining the terms ‚caretaker‛ and ‚vulnerable
adult.‛4 Accordingly, we are not convinced the organization of
the instructions misled the jury or ‚insufficiently or erroneously
advise*d+ the jury on the law.‛ Cf. State v. Stringham, 2001 UT
App 13, ¶ 17, 17 P.3d 1153 (citation and internal quotation marks
omitted) (explaining that failure to give a requested instruction
is reversible error only if the omission misleads or erroneously
advises the jury).

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.

20130254-CA 6 2015 UT App 209
 State v. Beckering

¶12 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.5

¶13 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, 2015 UT App 53, ¶ 31 & n.3, 246 P.3d 672.
An instruction that stated the elements of the crime verbatim
would require the jury to find only that Beckering was ‚any
person.‛ Utah Code Ann. § 76-5-111(2) (LexisNexis 2012). By
substituting the language ‚any person‛ with ‚party to the

5. Implicit in Beckering’s argument is the suggestion that the
jury may have inappropriately found that she was a ‚party to
the offense‛ by relying on the mistaken belief that finding
Beckering was a ‚caretaker‛ would satisfy the requirement of
finding Beckering had acted in concert with others. We are not
persuaded. The instructions thoroughly explained what ‚party
to the offense‛ meant and the jury was required to make a
separate finding as to whether Beckering’s culpability was
enhanced by acting in concert with two or more persons. See
supra ¶ 11.

20130254-CA 7 2015 UT App 209
 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.

¶14 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

¶15 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

20130254-CA 8 2015 UT App 209
 State v. Beckering

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, 2001 UT 5, ¶ 51, 20 P.3d 271; State v.
Stapley, 2011 UT App 54, ¶ 8, 249 P.3d 572.

¶16 When determining whether an allegedly gruesome
photograph is admissible, we apply the three-part test adopted
by the Utah Supreme Court in State v. Bluff, 2002 UT 66, ¶ 46, 52
P.3d 1210. ‚The threshold question when considering the
admissibility of any piece of evidence is whether it is relevant.‛
Id. ¶ 42. ‚If the proffered evidence is relevant, the court must
next determine whether the evidence belongs to one of the
categories of evidence that we presume to be inherently
prejudicial, such as gruesome photographs.‛ Id. ¶ 43. Finally, the
court must apply the appropriate balancing test. Id. ¶¶ 44–46. If
the photograph is not gruesome, the court may apply the
standard rule 403 balancing test in which ‚the court must admit
the photograph if its probative value is not substantially
outweighed by its potential to unfairly prejudice the jury.‛ Id.
¶ 44. But, if ‚the photograph meets the legal definition of
gruesomeness, it may not be admitted absent a showing of
‘unusual probative value.’‛ Id. ¶ 45 (quoting State v. Lafferty, 749
P.2d 1239, 1256 (Utah 1988)). The burden is then shifted to ‚the
State to show that the probative value of such evidence
substantially outweighs the risk of unfair prejudice.‛ Id.

¶17 In considering the admission of the challenged
photographs, ‚we review the trial court’s determination of
whether the photographs are relevant for abuse of discretion.‛
Id. ¶ 47. ‚The determination of whether a photograph is
gruesome is a question of law, which we review for correctness.‛
Id. Then, ‚*a] trial court’s ruling under rule 403 is reviewed for
abuse of discretion.‛ Id. Even if the court erroneously admitted
the photographs, that ruling requires reversal only if it ‚had a
substantial influence in bringing about the verdict.‛ Id. (citation
and internal quotation marks omitted); see also Utah R. Evid.
103(a) (providing that a ‚party may claim error in a ruling to

20130254-CA 9 2015 UT App 209
 State v. Beckering

admit or exclude evidence only if the error affects a substantial
right of the party‛).

¶18 With respect to relevance, ‚*e+vidence is relevant if it has
‘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.

¶19 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.

20130254-CA 10 2015 UT App 209
 State v. Beckering

State v. Gulbransen, 2005 UT 7, ¶ 39, 106 P.3d 734. ‚A photograph
is not gruesome, however, merely because it is unpleasant to
view. Rather, gruesome means something much stronger than
being offensive, embarrassing, or graphic. . . . [I]t inspire[es]
horror or repulsion.‛ Stapley, 2011 UT App 54, ¶ 15 (alterations
and omission in original) (citations and internal quotation marks
omitted). Each of the challenged photographs depicts a close-up,
cropped, color image of Victim. The images were projected on a
large screen in the courtroom to make them easier to see. But
none of the images show unnatural body contortions, blood, or
oozing wounds. Although Exhibit 22 shows open sores on
Victim’s arms, ‚[t]he sterile and clean manner in which [Victim]
is depicted negates the effect‛ of the wounds. See Bluff, 2002 UT
66, ¶¶ 49, 51. We recognize that the Utah Supreme Court has
cautioned that enlargements or close-ups ‚show greater detail
and therefore are often more disturbing than a life-like view . . .
or may give a distorted impression of the thing photographed,‛
but the images in this case do not unfairly characterize Victim’s
condition. See id. ¶ 50 (omission in original) (citation and internal
quotation marks omitted). Although the challenged photographs
are unpleasant and cause discomfort, there is nothing otherwise
inflammatory about them. We therefore conclude that the trial
court did not err in determining they are not gruesome.

¶20 Because the photographs are not gruesome, we must
determine whether the trial court exceeded its discretion in
admitting them under rule 403 of the Utah Rules of Evidence.
Rule 403 allows the court to exclude relevant evidence if ‚its
probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.‛ Utah R. Evid. 403. The trial
court concluded that, because the photographs tended to
demonstrate that Victim’s injuries were intentional and would
be obvious to any person who encountered her, they were highly
probative of the State’s case. Beckering suggests that, because
one juror had a ‚visibly emotional reaction‛ to the photographs
and ‚refused to observe‛ them, the photographs had a
‚prejudicial impact on the jury.‛ We agree that viewing the

20130254-CA 11 2015 UT App 209
 State v. Beckering

challenged photographs could reasonably cause an emotional
reaction, but this does not make them less probative. Given the
nature of the case and Beckering’s defense, the photographs
were highly probative of contested elements of the charged
offense. Moreover, as discussed above, their disturbing nature is
the essence of the injuries themselves, not a deliberate attempt
by the State to distort the extent of Victim’s injuries or otherwise
mislead the jury. See State v. Stapley, 2011 UT App 54, ¶ 16, 249
P.3d 572. Even if the court had erred, Beckering would have
needed to demonstrate prejudice by showing how the
photographs’ admission had a ‚substantial influence in bringing
about the verdict.‛ See State v. Bluff, 2002 UT 66, ¶ 47, 52 P.3d
1210 (citation and internal quotation marks omitted). She has not
done so. Therefore, because any prejudicial effect of the
photographs did not substantially outweigh their highly
probative value, we conclude the trial court did not abuse its
discretion in admitting the photographs.

CONCLUSION

¶21 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.

20130254-CA 12 2015 UT App 209