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.

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¶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.”

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¶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

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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

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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

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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

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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.”

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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).

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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

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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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¶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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¶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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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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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.

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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.

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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.

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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