State v. Beckering

2015 UT App 53
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
DALE R. BECKERING,
Defendant and Appellant.

Opinion
No. 20120157-CA
Filed March 5, 2015

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 111902541

Ronald Fujino, Attorney for Appellant

Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

PEARCE, Judge:

¶1 Dale R. Beckering appeals his aggravated abuse of a
vulnerable adult conviction, which was enhanced to a second
degree felony because the jury found he had acted in concert with
others. Beckering argues that his trial counsel rendered ineffective
assistance by inviting errors in the jury instructions and by failing
to object to several instances of alleged prosecutorial misconduct
and improper testimony. He also argues that the district court’s
failure to prevent the prosecutorial misconduct and improper
testimony constituted plain error. We affirm.
 State v. Beckering

BACKGROUND

¶2 On March 25, 2011, a 22-year-old female (Victim) was found
dead in Beckering’s house. Victim had resided in the house as the
ward of Cassandra Shepard, Beckering’s stepdaughter. Victim
suffered from fetal alcohol syndrome and functioned at a child-like
level. Shepard had been appointed as Victim’s guardian. Shepard
managed Victim’s behavior by allowing her to earn “privileges”
that Shepard would revoke for bad behavior.

¶3 In February 2010, Shepard sent Victim from South Dakota
to Utah to live with Beckering and his wife—Shepard’s mother
Sherrie Beckering (Wife)—in their one-bedroom apartment in West
Valley City. During this period, Wife usually cared for Victim, but
Beckering would tend to her when Wife was working.

¶4 In July 2010, Victim knocked on one of Beckering’s
neighbor’s doors and reported that she “was being abused and she
had escaped.” The neighbor had never seen Victim before and was
surprised when Victim said she lived in Beckering’s apartment.
Victim was wearing ragged clothes and showed the neighbor
bruises on her wrists, forearms, and upper chest. The neighbor
spent the day with Victim and allowed her to make several phone
calls. Although it is unclear who summoned them, police
eventually arrived at the apartment complex. The neighbor told the
officers about the reported abuse and directed them to Victim. The
officers spoke with Victim and indicated they were going to take
her to a psychiatric facility.

¶5 A week or two later, Victim returned to the neighbor’s
apartment and reported that Beckering had instructed Victim to
apologize. The neighbor saw Victim only once more, when Victim
was taking out the garbage. Victim’s hair was buzzed on one side.
She explained that one of the women in the apartment had shaved
her head as punishment. Victim also reported that she was given
only one cup of rice and a glass of water per day and that she was
forced to take pills to make her sleep.

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 State v. Beckering

¶6 In September 2010, Victim moved back to South Dakota to
live with Shepard. After about a month, however, Shepard and
Victim returned to the West Valley City apartment. Victim’s
daughter and Shepard’s two daughters also moved into
Beckering’s apartment at that time. Shepard and the girls slept in
the living room of the apartment. Victim slept in the laundry room.

¶7 Upon her return to Beckering’s apartment, Victim was
having health problems, including sores that failed to heal and
trouble toileting herself. She also found it increasingly difficult to
earn new privileges and began to lose existing ones. After she lost
her television privilege, she was required to stay in the laundry
room so she could not see the television. Eventually, Victim was
forced to stay in the laundry room most of the time. Shepard put
an alarm on the laundry room door to prevent Victim from
escaping.

¶8 In December 2010, a couple who lived in the building across
from Beckering’s began noticing Victim standing alone on the
balcony of Beckering’s apartment. Although it was cold, Victim
would be on the balcony clad only in a t-shirt and shorts or pants.
They sometimes saw Victim eating or drinking out of a coffee can;
whatever was in the can made Victim gag. Other times, they saw
Victim inside the storage closet on the balcony. They could see
Beckering’s living room through the balcony’s sliding door. They
sometimes observed Beckering using a computer while Victim was
outside.

¶9 Eventually, a neighbor called the police after observing
Victim on the balcony, “kind of crying and just looking down at
me, wanting help.” The neighbor knew that Beckering was home
when the police responded because she saw him on the balcony
while officers were in the apartment. Shepard told the police that
Victim was on the balcony “per doctor’s orders” to reduce swelling
in her feet. Thereafter, the neighbors continued to see Victim on the
balcony, but she was dressed more warmly.

20120157-CA 3 2015 UT App 53
 State v. Beckering

¶10 In early January 2011, Beckering and the other residents of
the West Valley City apartment moved to a house in Kearns.
Everyone slept in bedrooms at the Kearns house except Victim,
who had lost the privilege of having a room and was forced to
sleep in a coat closet. The closet door was fitted with an alarm and
kept shut by a shelf or other object placed in front of the door.
Although Victim knew “to stay quiet,” the girls could sometimes
hear her whining.

¶11 Victim usually stayed in the closet. She was not permitted to
sit at the dinner table and had lost the privilege of playing with the
girls. Shortly before Victim’s death, one of the girls saw Victim
being bound and placed in the closet. The girl also witnessed
Shepard put tape across Victim’s mouth.

¶12 On March 25, 2011, police and medical personnel responded
to a 911 call reporting a “possible overdose” at the Kearns home.
When they arrived, they discovered Victim lying dead on the living
room floor. Shepard was attempting to revive Victim. Officers
observed that Victim’s hands and forearms were wrapped so
tightly with bandages that she would not have been able to use her
fingers or thumbs. Both of her eyes were bloodshot. Officers found
a red pepper flake under her right eyelid. Victim was wearing a
“very soaked” toddler-sized diaper and had wounds on her ankles
that matched cut zip ties found near her body.

¶13 In the closet where Victim had slept, police found zip ties
attached to the clothing rod such that a person could be bound
with outstretched arms. Cardboard on the floor appeared to be
stained with blood, urine, and feces. Scented pine cones and baking
soda had been placed in the closet in an apparent attempt to mask
the resulting odor. Outside the closet, a metal shelf had been
mounted on the wall next to the door. The shelf held a Lysol bottle,
deodorizer, duct tape, and a saucepan containing a steak knife,
pepper seeds, and nylon zip ties, two of which were cut. On the
wall of the closet, there was “a fairly large drawing of a suffering
Jesus with the thorns on his head.”

20120157-CA 4 2015 UT App 53
 State v. Beckering

¶14 A post-mortem examination of Victim revealed redness
caused by contact dermatitis, possibly the result of exposure to a
chemical spray, on her face and inside her mouth. She had a bruise
on her forehead and bruises on her left hip and right leg consistent
with having been struck by an object. Ulcers had formed
underneath the bandages on her hands, which had not healed
because the bandages were wrapped tightly. Toxicology testing
revealed a toxic and possibly fatal dose of antihistamine—nine
times the therapeutic level—in Victim’s system. Victim was also
severely dehydrated. The medical examiner ruled Victim’s death
a homicide caused by physical abuse and neglect.

¶15 Police arrested Beckering, Shepard, and Wife. Beckering
submitted to a police interview, wherein he consistently denied any
knowledge of Victim’s abuse. Although he initially denied any role
in Victim’s care, he eventually admitted that he sometimes cared
for Victim at the West Valley City apartment. He claimed that he
kept his distance from Victim because she had falsely accused him
of rape and he was afraid that she would do so again. Beckering
told police that he and Wife lived primarily in the basement of the
Kearns home, that he worked twelve-hour shifts, and that when he
returned home from work he might see Victim “for five seconds”
before going downstairs.

¶16 Beckering admitted that he knew of the bandages on
Victim’s hands, but he told police that he believed Shepard’s
explanation that the bandages were designed to prevent Victim
from harming herself. He also told police that he knew Shepard
had placed an alarm on the closet door but that “he didn’t ask
why.” Beckering knew that Shepard would not allow Victim to eat
dinner with the family, and when Shepard would shuttle food into
the living room to feed Victim, he could hear Shepard shouting and
“telling [Victim] to eat it, swallow it, and don’t throw it up.”

¶17 The State charged Beckering with being a party to the
intentional or knowing aggravated abuse of a vulnerable adult, a
second degree felony subject to an in-concert enhancement to a first

20120157-CA 5 2015 UT App 53
 State v. Beckering

degree felony. Beckering’s defense at trial was that he did not
know about Victim’s abuse and that he had no duty to act to
protect her. Beckering did not testify at trial. The jury convicted
Beckering of the lesser-included offense of being a party to reckless
aggravated abuse of a vulnerable adult, enhanced to a second-
degree felony because it was committed in concert with others. The
district court sentenced Beckering to one to fifteen years in prison.

ISSUES AND STANDARDS OF REVIEW

¶18 Beckering, represented by new counsel on appeal, contends
that his trial counsel rendered ineffective assistance by inviting
errors in the jury instructions and by failing to object to several
instances of prosecutorial misconduct and improper testimony.
“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.’” Layton City v.
Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (alteration in original)
(quoting State v. Tennyson, 850 P.2d 461, 466 (Utah Ct. App. 1993)).

¶19 Beckering also argues that the district court committed plain
error by failing to intervene in the alleged prosecutorial
misconduct. “The plain error standard of review requires an
appellant to show the existence of a harmful error that should have
been obvious to the district court.” State v. Waterfield, 2014 UT App
67, ¶ 18, 322 P.3d 1194; see also State v. Dunn, 850 P.2d 1201, 1208–09
(Utah 1993) (discussing plain error).

ANALYSIS

I. Jury Instructions

¶20 Beckering identifies several alleged errors in the jury
instructions. He did not object to the jury instructions at trial, and

20120157-CA 6 2015 UT App 53
 State v. Beckering

the alleged errors are therefore not subject to ordinary appellate
review. See State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (“‘Where
there is no clear or specific objection . . . the theory cannot be raised
on appeal.’” (quoting State v. Johnson, 2006 UT App 3, ¶ 13, 129 P.3d
282)). Further, Beckering concedes that his counsel invited the
alleged errors by approving the jury instructions, thereby
precluding review for plain error. See State v. Lee, 2014 UT App 4,
¶ 20, 318 P.3d 1164 (“[I]nvited error precludes appellate review of
an issue under the plain error standard.”); State v. Alfatlawi, 2006
UT App 511, ¶ 26, 153 P.3d 804 (“A defendant invites error where
he affirmatively approve[s] of the jury instructions at trial.”
(alteration in original) (citation and internal quotation marks
omitted)). Because the alleged errors in the jury instructions are
both unpreserved and invited, Beckering argues that his trial
counsel provided ineffective assistance by failing to ensure that the
jury instructions were correct.

¶21 To succeed on an ineffective assistance of counsel claim,
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)).
Counsel’s performance will not be deemed deficient unless a
defendant can “show that counsel’s representation fell below an
objective standard of reasonableness.” Id. (citation and internal
quotation marks omitted). There is a “strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. (citation and internal quotation marks
omitted). “To 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).

¶22 Beckering first complains that his counsel should have
ensured that the elements instructions made clear that each of
several terms in those instructions—including “party to the

20120157-CA 7 2015 UT App 53
 State v. Beckering

offense,” “vulnerable adult,” and “caretaker”—was a separate
factual determination that the State needed to prove and the jury
needed to decide. Beckering argues that the elements instructions
“were too conclusory and they incorrectly presented [the terms] as
a ‘given’ rather than let the jury decide such facts for themselves.”
For example, the instructions on aggravated abuse of a vulnerable
adult asked the jury to find, in part, that Beckering “cause[d] a
vulnerable adult to suffer serious physical injury.” By Beckering’s
reading, this language “concluded that a ‘vulnerable adult’ did in
fact exist even though such a finding should have been made by
the jury.”

¶23 “The general rule for jury instructions is that an accurate
instruction upon the basic elements of an offense is essential.” State
v. Bird, 2015 UT 7, ¶ 14 (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); cf. State v. Stringham, 2001 UT App 13, ¶ 17, 17 P.3d 1153
(“Failure to give requested jury instructions constitutes reversible
error only if their omission tends to mislead the jury to the
prejudice of the complaining party or insufficiently or erroneously
advises the jury on the law.” (citation and internal quotation marks
omitted)).

¶24 “We generally presume that a jury will follow the
instructions given it.” State v. Menzies, 889 P.2d 393, 401 (Utah
1994). When 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. To use the example Beckering
advances, the element asking the jury to determine whether he
“cause[d] a vulnerable adult to suffer serious physical injury”
required the jury to make at least three subsidiary factual
determinations: (1) that Beckering caused an injury, (2) that the

20120157-CA 8 2015 UT App 53
 State v. Beckering

injury was a serious physical injury, and (3) that the injured person
was a vulnerable adult.1 We presume the jury did so, see Menzies,
889 P.2d at 401, and we are not convinced that the organization of
the instructions “misle[d] the jury” or “insufficiently or erroneously
advise[d] the jury on the law,” see Stringham, 2001 UT App 13, ¶ 17
(citation and internal quotation marks omitted).

¶25 Beckering also provides this court with no authority for his
proposition that a defendant is entitled to, and that his counsel
provides ineffective assistance by failing to secure, instructions that
present each discrete factual inquiry as a separate element of an
offense. Instead, Beckering compares this case to Alleyne v. United
States, 133 S. Ct. 2151 (2013). In Alleyne, a jury convicted the
defendant, finding that he had “‘[u]sed or carried a firearm during
and in relation to a crime of violence.’” Id. at 2156 (alteration in
original). However, the trial court imposed a statutorily enhanced
mandatory minimum sentence based on the court’s own
determination that the defendant had brandished the firearm. Id.
The Supreme Court reversed the conviction, holding that because
the finding of brandishing increased the defendant’s sentence, that
determination “was an element, which had to be found by the jury
beyond a reasonable doubt.” Id. at 2163.

¶26 The Alleyne decision primarily addressed sentencing
enhancement factors, abrogating a prior distinction “between facts
that increase the statutory maximum and facts that increase only
the mandatory minimum.” Id. at 2155. In doing so, it applied and
confirmed the pre-existing general rule that “each element of a
crime [must] be proved to the jury beyond a reasonable doubt.” Id.
at 2156. Beckering points to nothing in Alleyne that suggests that

1. The jury’s fact-finding role in this regard was further emphasized
by separate instructions providing definitions of terms including
“vulnerable adult” and “caretaker.”

20120157-CA 9 2015 UT App 53
 State v. Beckering

elements must be presented to a jury in any particular form.2 The
only aspect of Alleyne that appears to apply to this case is the
general requirement that elements of crimes be decided by a
jury—a requirement that was satisfied here.

¶27 We see no deficient performance by counsel in allowing the
elements instructions to present multiple factual determinations
within individual elements, because “the instructions taken as a
whole fairly instruct the jury on the law applicable to the case.”
Painter, 2014 UT App 272, ¶ 6 (citation and internal quotation
marks omitted). Furthermore, even if counsel had acted
unreasonably by failing to seek to limit each element to a single
factual question, Beckering has not demonstrated prejudice,
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. Absent a showing of
prejudice, Beckering has not established ineffective assistance of
counsel relating to this aspect of the jury instructions.

¶28 Beckering next argues that his trial counsel performed
ineffectively by allowing the elements instructions to include
language asking the jury to determine whether he acted “as a party
to the offense, including as a caretaker.” Beckering argues that
because a “party to the offense” and a “caretaker” are two different
and unrelated concepts, the language used in the elements
instructions created “both uncertainties and inconsistencies in
determining whether the jury had factually found that [Beckering]
was a ‘caretaker’ or a ‘party to the offense.’” Beckering argues that
his trial counsel’s acquiescence to the instructions’ wording
constituted ineffective assistance.

2. We note that in Alleyne v. United States, 133 S. Ct. 2151 (2013), the
Supreme Court expressed no discomfort with the verdict form the
jury used to find that the defendant had “‘[u]sed or carried a
firearm during and in relation to a crime of violence,’”
notwithstanding the multiple factual determinations contained in
that single finding. Id. at 2156 (alteration in original).

20120157-CA 10 2015 UT App 53
 State v. Beckering

¶29 To obtain relief based on ineffective assistance of counsel,
Beckering must demonstrate prejudice, i.e., a reasonable
probability that but for counsel’s errors, the result would have been
different. Strickland v. Washington, 466 U.S. 668, 687 (1984). “In the
event it is ‘easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice,’ we will do so without
analyzing whether counsel’s performance was professionally
unreasonable.” Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232
(quoting Strickland, 466 U.S. at 697). Here, we proceed directly to
the prejudice prong of Beckering’s ineffective assistance claim.

¶30 Beckering argues that, due to the nature of the alleged jury
instruction error, we should either presume prejudice or require
the State to establish lack of prejudice. However, none of the cases
that Beckering cites in support of this argument arose in the context
of an ineffective assistance of counsel claim. See Alleyne v. United
States, 133 S. Ct. 2151 (2013); Neder v. United States, 527 U.S. 1 (1999);
Chapman v. California, 386 U.S. 18 (1967); State v. O’Bannon, 2012 UT
App 71, 274 P.3d 992; State v. Pearson, 1999 UT App 220, 985 P.2d
919. “To show prejudice in the ineffective assistance of counsel
context, the defendant bears the burden of proving that counsel’s
errors actually had an adverse effect on the defense and that there
is a reasonable probability that, but for counsel’s errors, the result
of the proceeding would have been different.” State v. Munguia,
2011 UT 5, ¶ 30, 253 P.3d 1082 (citation and internal quotation
marks omitted); see also State v. Cruz, 2005 UT 45, ¶ 18, 122 P.3d 543.

¶31 Beckering fails to articulate a persuasive explanation of how
removing or altering the language “as a party to the offense,
including as a caretaker” from the elements instructions could
reasonably have led to a more favorable result for him at trial.
Beckering argues that “being a ‘party to the offense’ was not the
same as being a ‘caretaker,’” but he ignores the instructions’ use of
the word “including” as a bridge between the two seemingly
unrelated terms. The entire phrase “as a party to the offense,
including as a caretaker” can reasonably be read to mean simply
“as a party to the offense,” with the language “including as a

20120157-CA 11 2015 UT App 53
 State v. Beckering

caretaker” included to remind the jury that caretaker status would
not preclude conviction so long as the other elements of the offense
were satisfied.3 If other plausible readings of the language exist,
Beckering neither identifies them nor explains their relevance to the
prejudice analysis.

¶32 Beckering has failed to show prejudice arising from the
inclusion of the language “as a party to the offense, including as a
caretaker” in the elements instructions. Accordingly, he has failed
to carry the heavy burden of establishing an ineffective assistance
of counsel claim. See State v. Lenkart, 2011 UT 27, ¶ 25, 262 P.3d 1.
We therefore reject his ineffective assistance of counsel claim
relating to the challenged language.

3. This reading of the challenged language is consistent with the
language and structure of Utah Code section 76-5-111, which
defines the crime of aggravated abuse of a vulnerable adult and
provides for two separate theories of criminal liability. See Utah
Code Ann. § 76-5-111(2) (LexisNexis 2012). Section 76-5-111(2)
provides for criminal penalties against “any person, including a
caretaker,” who causes serious physical injury to a vulnerable adult
under circumstances likely to produce death or serious physical
injury. See id. Section 76-5-111(2) also provides for criminal liability
for a person who, “having the care or custody of a vulnerable
adult, causes or permits” the vulnerable adult to be injured or
placed in a situation where her person or health is endangered. See
id. The statutory language “including a caretaker” appears to be
intended to clarify that, while only a caretaker can be liable for
“caus[ing] or permit[ting]” the harm identified in the second theory
of liability, “any person, including a caretaker” can be liable under
the first theory by “caus[ing] a vulnerable adult to suffer serious
physical injury.” See id. (emphasis added). The State charged
Beckering under both theories of liability and, like the statute, the
elements instructions at his trial clarified that only the “causes or
permits” theory required a jury finding that Beckering was Victim’s
caretaker.

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 State v. Beckering

¶33 Beckering also argues that his trial counsel permitted the
jury instructions to incorporate two mental states into the same
charged offense. Beckering argues that the elements instruction for
reckless aggravated abuse of a vulnerable adult required the jury
to find that he acted both recklessly and intentionally.4

¶34 Beckering contends that the reckless aggravated abuse
instruction “improperly tasked the jury to find both (1) that Mr.
Beckering was a ‘party to the offense’ (which required an
intentional mental state), and (2) ‘that the defendant did so
recklessly’ (which required a reckless mental state).” He also
argues that the instruction failed to adequately link the different
mental states to the individual elements to which they applied. He
further argues that, due to the conflicting mental standards, “the
crime, as decided by the jury, is a legal impossibility.”

¶35 We do not address these arguments on their merits because
they allege errors that were invited below. Instead, Beckering must
demonstrate that trial counsel’s failure to correct the alleged errors
constituted ineffective assistance of counsel. To do so, Beckering
must establish both deficient performance by counsel and resulting
prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
However, his brief does not address either the objective
reasonableness of counsel’s failure to object to the instructions or
the likelihood of a different result for Beckering had counsel
objected. We will not conduct that analysis on Beckering’s behalf.
See State v. Robison, 2006 UT 65, ¶ 21, 147 P.3d 448 (noting that the
appellant bears the burden of persuasion on appeal and that an
appellate court will not “do the heavy lifting” for the appellant).

4. The jury received a separate instruction defining the concept of
“party to the offense” or “accomplice” liability. That instruction
stated, among other things, that Beckering could not be convicted
as an accomplice unless he had “the intent that the underlying
crime be committed,” he “intended to aid the principal actor(s) in
the offense,” and he “intentionally aid[ed] in the commission of the
crime.”

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 State v. Beckering

¶36 We note, however, that the instruction’s inclusion of both
recklessness and party-to-the-offense concepts does not appear to
present any inherent error. Utah courts have concluded that
accomplice—i.e., “party to the offense”—liability can attach to
offenses requiring a reckless mental state. In State v. Jeffs, 2010 UT
49, 243 P.3d 1250, the Utah Supreme Court explained that “intent”
as used in the accomplice liability context “is a legal term of art that
means ‘[t]he state of mind accompanying an act.’ It should not be
confused with the mental state designated as ‘intentionally.’” Id.
¶ 43 (alteration in original) (citation omitted). Rather, “accomplice
liability adheres only when the accused acts with the mens rea to
commit the principal offense.” Id. (citation and internal quotation
marks omitted); see also State v. Briggs, 2008 UT 75, ¶ 14, 197 P.3d
628 (“[I]t is not necessary for the accomplice to have the same
intent that the principal actor possessed as long as the accomplice
intended that an offense be committed.”); State v. Binkerd, 2013 UT
App 216, ¶¶ 24–29, 310 P.3d 755. Reading the jury instructions in
light of Jeffs, the elements instruction properly informed the jury
that it could convict Beckering of aggravated abuse of a vulnerable
adult if it found that Beckering had acted with the “intent” of
recklessness. See Jeffs, 2010 UT 49, ¶ 43.

¶37 Beckering has not shown deficient performance of trial
counsel or resulting prejudice relating to the elements instruction’s
inclusion of both “reckless” and “party to the offense.” He has
therefore not established ineffective assistance of counsel arising
from the instruction’s use of those terms.

II. Prosecutorial Misconduct

¶38 Beckering also contends that the State’s prosecutorial
misconduct entitles him to a new trial. Beckering argues the State
solicited “inappropriate witness opinion, together with other
improperly admitted evidence,” from the detective who
interviewed Beckering after Victim’s death. Beckering’s counsel did
not object to this testimony, and Beckering raises the issue as an
ineffective assistance of counsel claim. Beckering also argues that

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 State v. Beckering

the district court’s failure to intervene to prevent or strike the
testimony constitutes plain error. See State v. Dunn, 850 P.2d 1201,
1208 (Utah 1993) (explaining that the doctrine of plain error
requires an appellant to show that an error exists, that the error
should have been obvious to the trial court, and that the error is
harmful).

¶39 During its direct examination of the detective who
interviewed Beckering, the State elicited testimony that the
detective did not believe that Beckering could have been unaware
of the abuse occurring in his house. Beckering identifies some seven
questions and answers that he deems objectionable. For example,
Beckering points to the following exchange:

Q: At this point, did you again confront the
defendant, so to speak, with the actual conditions
that [Victim] was living in, and how it was possible
[Beckering] may not have known it, and . . . what
kind of information you gave to him to confront him
with that statement?

A: Basically towards the end of the interview,
admittedly I’m getting frustrated with how
somebody can live in a home, a small home, and not
hear or see things that are going on in the home or be
aware of it or have questions about what’s going on
in your own home, and I go over the autopsy, what
we found, the conditions of the zip ties in the closet,
that sort of thing, and you know, how somebody
could not be aware of what’s going on, and basically
again he just, you know, he doesn’t go upstairs, he
doesn’t do anything to interact with her, has basically
no clue about what’s going on in the home in regards
to [Victim]. The information he was getting was
coming from [Wife] and [Shepard].

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 State v. Beckering

The detective expressed his “frustration” with Beckering’s answers
at least five times, as well as stating, “[M]y belief was, I was having
a hard time understanding how somebody could not know that
that was happening in the home, being in that close proximity.” At
least twice, the detective characterized Victim’s treatment as
torture, stating that “basically she’s been tortured in the closet” and
expressing his belief that “when somebody’s being tortured to the
amount that [Victim] was being tortured, . . . everybody in that
home would’ve known.”

¶40 Beckering raises numerous legal theories to explain how
these questions and answers implicate plain error and ineffective
assistance of counsel. He argues that the State repeatedly and
improperly elicited the detective’s opinion and feelings about
whether Beckering was telling the truth. See State v. Burk, 839 P.2d
880, 883 (Utah Ct. App. 1992) (“Evidence is unfairly prejudicial[] if
it has a tendency to influence the outcome of the trial by improper
means, . . . or otherwise causes a jury to base its decision on
something other than the established propositions of the case.”
(citation and internal quotation marks omitted)). He argues that the
State’s questions asked the detective to “comment on the veracity”
of Beckering’s statement, see State v. Davis, 2013 UT App 228, ¶ 38,
311 P.3d 538, and that the answers constituted improper expert
testimony about Beckering’s credibility, see State v. Perea, 2013 UT
68, ¶ 40, 322 P.3d 624. He also argues that the answers constituted
improper expert testimony about Beckering’s “mental state.” See
Utah R. Evid. 704.

¶41 Beckering’s authorities are distinguishable from the instant
case. For example, State v. Davis, 2013 UT App 228, 311 P.3d 538,
held that a prosecutor asking a defendant whether another witness
“was lying” was inappropriate because “[s]uch a question is
argumentative and seeks information beyond the defendant’s
competence.” Id. ¶¶ 37–38. Here, the State did not ask the detective
whether he believed Beckering was telling the truth during the
interview.

20120157-CA 16 2015 UT App 53
 State v. Beckering

¶42 The detective’s testimony also does not resemble that in
cases where courts have found that an expert improperly testified
as to a witness’s veracity. For example, in State v. Nelson, 777 P.2d
479 (Utah 1989), the Utah Supreme Court reversed a conviction
after a family therapist opined that the victim “was telling the truth
at the time [the therapist] interviewed him.” Id. at 481. Similarly,
State v. Van Matre, 777 P.2d 459 (Utah 1989), reversed the conviction
of a defendant convicted after an expert testified that children who
describe sexual conduct “‘are usually telling the truth’” and that
“‘[c]hildren typically don’t lie.’” Id. at 461 (alteration in original).

¶43 Here, the detective’s testimony never directly asserted that
Beckering was lying during the interview. Nor did the detective
testify that he could detect dishonesty or that Beckering was being
dishonest. Instead, the detective, as part of describing the
interview, commented on why he continued to ask Beckering about
the abuse despite Beckering’s repeated denials. Beckering also fails
to identify any way in which the State took undue advantage of the
allegedly objectionable aspects of the detective’s testimony to argue
for his conviction.5

¶44 Beckering also argues that the detective’s multiple uses of
the word “tortured” constituted improper “comments meant to
inflame passion or prejudice in the jury.” See Boyle v. Christensen,
2011 UT 20, ¶ 18, 251 P.3d 810. In Boyle, the Utah Supreme Court
concluded that defense counsel’s reference to “the McDonald’s
coffee case” in front of a civil jury was improper because it “would
seem to have the sole purpose of recalling the public outrage over
isolated elements of the [McDonald’s] case—thus improperly

5. For example, it would likely have been improper for the State to
suggest to the jury that the detective’s experience made him an
excellent judge of credibility and that if he did not believe
Beckering then the jury should not believe him either. But
Beckering points us to no such explicit improper use of the
detective’s testimony.

20120157-CA 17 2015 UT App 53
 State v. Beckering

appealing to a jury’s passions.” Id. ¶ 22. In this case, we are not
convinced that the isolated references to torture had the “sole
purpose” of creating outrage or “improperly appealing to [the]
jury’s passions.” See id.

¶45 However, even assuming impropriety in the detective’s
questioning and testimony, Beckering cannot establish either
ineffective assistance of counsel or plain error if there was a
conceivable strategic reason for Beckering’s counsel to allow the
questioning without challenge. The Utah Supreme Court has
instructed that “if the challenged act or omission might be
considered sound trial strategy, we will not find that it
demonstrates inadequacy of counsel.” State v. Dunn, 850 P.2d 1201,
1225 (Utah 1993). Similarly, “[p]lain error does not exist when a
conceivable strategic purpose exists to support the use of the
evidence.” State v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697 (citation and
internal quotation marks omitted). The district court “should take
measures to avoid interfering with potential legal strategy or
creating an impression of a lack of neutrality.” Id.

¶46 There were conceivable strategic reasons for Beckering’s
counsel to let the detective’s testimony proceed without objection.
The detective’s testimony afforded Beckering the opportunity to
present his side of the story to the jury without taking the witness
stand and subjecting himself to cross-examination. It was
reasonable trial strategy to allow the detective to describe his
multiple expressions of frustration and disbelief so that the jury
could hear Beckering’s repeated and strenuous denials in the face
of strong questioning.

¶47 Similarly, there were justifiable reasons for trial counsel not
to object to the detective’s description of Victim’s treatment as
torture. Objecting to the isolated references could have been
viewed by the jury as an attempt to minimize Victim’s suffering. It
was sound trial strategy not to contest the State’s characterization
of the abuse but to ask the jury to blame that abuse entirely on Wife
and Shepard.

20120157-CA 18 2015 UT App 53
 State v. Beckering

¶48 In combination, both aspects of the detective’s testimony
played into Beckering’s ultimate trial strategy, which was to
acknowledge the severity of Victim’s treatment while asking the
jury to focus on the evidence presented at trial and find that
Beckering did not know about the abuse. Indeed, Beckering’s
counsel referred to both aspects of the detective’s testimony in his
closing argument, stating,

[The detective testified,] “I don’t believe him. You
have to know what’s going on in your house.” Time
after time after time, parents don’t know that their
teenagers are cutting school and hanging out in the
house. Time after time after time, they don’t know
their teenagers are having sex, doing drugs.

....

. . . . [T]he real question is, did he know that he
had to do something? You heard from the evidence
that from December to March, he didn’t want
anything to do with her. He stayed away from her.
Because he was scared of her. He was afraid of the
problems. It’s as he said to the officers, when he
found out—when they said, she’s been tortured.

She’s been tortured?

Yes, and that’s putting it mildly.

Oh my God, were his words. He said, I wish
I would’ve gone up there more. Because maybe he
could’ve done something about it.

Thus, Beckering’s counsel actually made use of both the detective’s
statements of disbelief and the references to torture in arguing for
Beckering’s acquittal.

20120157-CA 19 2015 UT App 53
 State v. Beckering

¶49 Because counsel’s decision to refrain from objecting to the
State’s examination of the detective could be considered a
reasonable trial strategy, that lack of objection cannot support a
claim of ineffective assistance of counsel. See State v. Lee, 2014 UT
App 4, ¶ 17, 318 P.3d 1164. For the same reason, the district court
did not commit plain error by refusing to intervene in the State’s
questioning. See Bedell, 2014 UT 1, ¶ 26 (“A district court is not
required to constantly survey or second-guess [a] nonobjecting
party’s best interests or trial strategy and is not expected to
intervene in the proceedings unless the evidence would serve no
conceivable strategic purpose.” (alteration in original) (citation and
internal quotation marks omitted)).

CONCLUSION

¶50 Beckering has failed to demonstrate that he received
ineffective assistance of counsel at trial. He has also failed to
establish that the alleged prosecutorial misconduct and improper
testimony constituted plain error. We therefore affirm his
conviction of aggravated abuse of a vulnerable adult.

20120157-CA 20 2015 UT App 53