State v. Beck

#25392-a-JKM

2010 SD 52

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

STACY LYNN BECK, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT

OF THE FIFTH JUDICIAL CIRCUIT

BROWN COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JACK R. VON WALD

Judge

* * * *

MARTY J. JACKLEY

Attorney General

JOHN M. STROHMAN

Assistant Attorney General Attorneys for plaintiff

Pierre, South Dakota and appellee.

JAMIE L. DAMON

Pierre, South Dakota

RONALD A. PARSONS, JR. of

Johnson, Heidepriem &

Abdallah, LLP Attorneys for defendant

Sioux Falls, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS

ON APRIL 26, 2010

OPINION FILED 06/23/10

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MEIERHENRY, Justice

[¶1.] Stacy Lynn Beck was found guilty of child abuse in violation of SDCL

26-10-1. The abuse involved an injury to S.S., a nine-month-old girl. Beck appeals.

FACTS AND BACKGROUND

[¶2.] S.S.’s injury consisted of a centimeter to a centimeter and a half

laceration at the lower opening of her vagina. The injury appeared during a diaper

change while S.S. was at daycare in Aberdeen, South Dakota. Beck, who was

employed by the daycare, took S.S. into the changing room to change her diaper

because she noticed that S.S. had “bowel movement on the outside of her clothing.”

Beck testified that she began to wipe the feces from S.S. and saw “profuse” bleeding.

Beck claimed she could not determine whether the bleeding was from S.S.’s anus or

vagina.

[¶3.] Because of the severity of the bleeding, S.S. was taken to the hospital

emergency room for examination. Dr. Falk, an emergency room doctor, examined

S.S. and determined that S.S. had sustained a deep laceration to her vagina.

Unable to stop the “active bleeding,” Dr. Falk transferred S.S. by helicopter to

specialists in Sioux Falls, South Dakota.

[¶4.] The specialists who examined S.S. were Dr. Edward Mailloux, a

pediatrician with Child’s Voice,1 and Dr. Keith Hansen, a pediatric and adolescent

gynecologist. Dr. Mailloux concluded that S.S. was a victim of physical abuse. Dr.

Hansen’s examination revealed that the tear to S.S.’s vagina went “down deep into

1. Child’s Voice is a child abuse evaluation center.

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that muscle” and “hit some pretty big blood vessels that were squirting blood.” Dr.

Hansen applied sutures and stopped the bleeding. He also concluded that S.S.’s

injury was “consistent with abuse.”

[¶5.] Beck was charged with abuse or cruelty to a minor in violation of

SDCL 26-10-1. The case was tried to a jury in September 2008. All three treating

physicians testified that S.S.’s injury was consistent with abuse. Beck testified and

claimed she did not know if she caused the injury to S.S., but that if she did, it was

accidental. The jury found Beck guilty. Beck appeals, raising five issues: (1)

whether the evidence was sufficient to prove the charge beyond a reasonable doubt;

(2) whether Beck is entitled to a new trial based on prosecutorial misconduct; (3)

whether the circuit court erred in denying Beck’s motion for a new trial for not

instructing the jury on the statutory defense of reasonable force; (4) whether Beck is

entitled to a new trial based on ineffective assistance of counsel; and, (5) whether

Beck was denied a fair trial by the cumulative effect of the errors contained in the

record.

ANALYSIS

Sufficiency of the Evidence

[¶6.] Beck was convicted of violating SDCL 26-10-1. SDCL 26-10-1

provides in part that:

Any person who abuses, exposes, tortures, torments, or cruelly

punishes a minor in a manner which does not constitute

aggravated assault, is guilty of a Class 4 felony. If the victim is

less than seven years of age, the person is guilty of a Class 3

felony. The use of reasonable force, as provided in § 22-18-5, is a

defense to an offense under this section.

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The elements for this crime include (1) that Beck abused, exposed, tortured,

tormented, or cruelly punished S.S. and (2) that S.S. was less than seven years of

age. Id. Only the first element is at issue in this case. Beck claims that the State’s

evidence failed to prove beyond a reasonable doubt that she had the criminal intent

to abuse, expose, torture, torment, or cruelly punish S.S.

[¶7.] Beck’s claim of insufficient evidence is viewed in the light most

favorable to the verdict. State v. Carter, 2009 SD 65, ¶44, 771 NW2d 329, 342. The

question is whether “there is evidence in the record which, if believed by the fact

finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” Id.

(quoting State v. Buchholz, 1999 SD 110, ¶33, 598 NW2d 899, 905). This Court will

not resolve conflicts in the evidence, assess the credibility of witnesses, or

reevaluate the weight of the evidence. Id. (citing State v. Shaw, 2005 SD 105, ¶19,

705 NW2d 620, 626). “If the evidence, including circumstantial evidence and

reasonable inferences drawn therefrom, sustain[s] a reasonable theory of guilt, a

guilty verdict will not be set aside.” Id. (citing Shaw, 2005 SD 105, ¶19, 705 NW2d

at 626).

[¶8.] Beck argues that the circuit court did not require the State to prove

criminal intent and that the jury applied the statute as if it were a strict liability

crime. We disagree. The circuit court instructed the jury that “[i]n the crime of

Abuse of or Cruelty to a Minor the defendant must have criminal intent,” which

means “intentionally [doing] an act which the law declares to be a crime.”2 The jury

2. SDCL 22-1-2 defines “intent” and “intentionally” as “a specific design to cause

a certain result or, if the material part of a charge is the violation of a

(continued . . .)

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was instructed that “[t]he intent with which an act is done is shown by the

circumstances surrounding the act, the manner in which it is done, and the means

used.” Criminal intent is regularly shown by circumstantial evidence. See State v.

Guthrie, 2001 SD 61, ¶48, 627 NW2d 401, 421 (“All elements of a crime, including

intent . . . may be established circumstantially.” (citation omitted)). These

instructions demonstrate that the State was required to prove criminal intent.

[¶9.] It was established at trial that S.S. was uninjured prior to Beck taking

her into the changing room. Beck changed the soiled diaper. The soiled diaper

contained no blood. The evidence indicated that during the diaper change S.S.

suffered a deep laceration on the lower opening of her vagina, similar to an

episiotomy. The laceration bled profusely, soaking the clean diaper. Dr. Falk

testified that this injury could not have “occurred spontaneously” and would have

required “significant force.” Similarly, Dr. Mailloux testified that S.S. suffered

“very significant genital trauma” that was not the result of “appropriate” wiping

when changing a diaper. Finally, Dr. Hansen testified that S.S.’s injury was the

result of “non-accidental trauma” that was “consistent with abuse.” This evidence

and the natural inferences drawn therefrom sustain a reasonable theory of guilt.

See id. (citing Shaw, 2005 SD 105, ¶19, 705 NW2d at 626).

__________________________

(. . . continued)

prohibition against conduct of a certain nature, regardless of what the

offender intends to accomplish thereby, a specific design to engage in conduct

of that nature.”

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Prosecutorial Misconduct

[¶10.] Although Beck did not object at trial or raise this issue in her motion

for a new trial, she claims on appeal that her trial was unfair because of

prosecutorial misconduct. Generally, in order to give the circuit court an

opportunity to correct an error, a party must object at trial. State v. Gard, 2007 SD

117, ¶15, 742 NW2d 257, 261. The South Dakota Rules of Criminal Procedure

provide that “[p]lain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of a court.” SDCL 23A-44-15. We

have said that “to recognize the rule, however, is not to say that every error that

occurs at trial rises to the level of plain error, for the plain error rule must be

applied cautiously and only in exceptional circumstances.” State v. Davi, 504 NW2d

844, 855 (SD 1993) (quoting State v Brammer, 304 NW2d 111, 114 (SD 1981)).

“With plain error analysis, the defendant bears the burden of showing the error was

prejudicial.” State v. Nelson, 1998 SD 124, ¶7, 587 NW2d 439, 443.

[¶11.] To demonstrate plain error, Beck must establish that there was: “(1)

error, (2) that is plain, (3) affecting substantial rights; and only then may we

exercise our discretion to notice the error if (4) it ‘seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.’” State v. Mulligan, 2007 SD

67, ¶26, 736 NW2d 808, 818 (citing Nelson, 1998 SD 124, ¶8, 587 NW2d at 443

(quoting Johnson v. United States, 520 US 461, 466-67, 117 SCt 1544, 1549, 137

LEd2d 718 (1997))).

[¶12.] Beck bases her plain error claim on the prosecutor’s statements during

closing argument. First, she claims that the prosecutor misstated the law by

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suggesting that criminal intent was not required. Beck’s claim is not supported by

the record. The prosecutor repeatedly told the jury that the State had the burden to

prove intent. The prosecutor explained intent as follows: “[t]o have general intent

[Beck] did not need to intend to cause this injury. All we need to show is that she

was deliberate and reckless in creating this downward push that created the

injury.” Beck has failed to show that these statements regarding criminal intent

were error.

[¶13.] Next, Beck asserts that the prosecutor misstated the evidence. The

alleged misstatements were (1) that Beck “exposed [S.S.] to this foreseeable harm

by using such reckless force, jabbing down at her, trying to anchor her pelvis down

to the table” and (2) that the doctors testified as to how this injury occurred. In

State v. Smith, this Court discussed the parameters of a prosecutor’s closing

arguments as follows:

What may a prosecutor do in closing arguments? He or she may

“discuss the evidence, pointing out discrepancies and conflicts in

the testimony, and argue that the evidence in the record

supports and justifies a conviction. . . . [He or she] may make

remarks, not based on the record, which concern matters of

general knowledge or experience.” A crime involving outrageous

conduct may warrant stronger words against the accused in the

closing arguments than might otherwise be justified. The

prosecutor may cross the line when he or she injects “unfounded

or prejudicial innuendo into the proceedings . . . [or appeals] to

the prejudices of the jury.”

1999 SD 83, ¶46, 599 NW2d 344, 354 (internal citations omitted). Likewise, we

have said that

[i]n their arguments to the jury, counsel must keep within

reasonable bounds, confine themselves to the evidence, and not

go beyond the record to appeal to the passions or prejudices of

the jury. This, of course, does not prevent them from making

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reasonable comment on the facts as shown by the evidence or

drawing reasonable inferences from the facts.

Cooper v. Holscher, 60 SD 83, 243 NW 739, 739-40 (1932).

[¶14.] On direct examination, the prosecutor asked Dr. Mailloux if it was

possible for a person to apply enough pressure to a child’s vagina to cause an injury

similar to S.S.’s. Dr. Mailloux confirmed this was possible, but stated that a

“significant amount of force” would be required to cause a “significant injury” like

that suffered by S.S. Dr. Hansen testified S.S.’s injury resulted from downward

pressure from her vagina toward her anus. The prosecutor’s arguments were a

reasonable inference from the doctors’ testimony. Consequently, Beck has failed to

show that the statements constituted prosecutorial misconduct.

[¶15.] Finally, Beck argues that the prosecutor misstated the evidence and

inappropriately injected personal knowledge and opinion by telling the jury that:

I have studied the deepness of [S.S.’s] injury. I have studied the

downward angle of this injury, and I’ve compared that, what I

can see with my own eyes, to the medical evidence of three

doctors who said with 100 percent certainty the fact and

circumstances and the manner in this case show me this was

criminal child abuse because this does not happen during a

normal, routine, standard-of-care diaper change.

Beck alleges that this was a misstatement of the evidence because “no doctor

testified with 100 percent certainty that this was criminal child abuse.” Beck also

contends this statement inappropriately injected personal knowledge and opinion

by discussing the prosecutor’s personal study and opinion of the evidence presented.

[¶16.] Prosecutors are not permitted to misstate the law or evidence in

closing argument. See Schoon v. Looby, 2003 SD 123, ¶13, 670 NW2d 885, 889-90.

Further, this Court has previously recognized that “a lawyer is not allowed to state

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personal knowledge of the facts in final argument.” Id. ¶7 (citing Binegar v. Day, 80

SD 141, 120 NW2d 521, 527 (1963)). “It is not proper for counsel to state facts of his

personal experience, or his own knowledge of the facts, unless he has testified

thereto as a witness, or to make his argument an avenue for the presentation of

unsworn testimony, or for him to insinuate that he has knowledge of facts.” Id.

[¶17.] In this case, the prosecution called medical experts to assist the jury in

determining the nature and possible cause of S.S.’s injury. As in other cases, the

expert testimony was used to “assist the jury in understanding matters that would

ordinarily be outside a layperson’s knowledge.” State v. Schweitzer, 533 NW2d 156,

159 (SD 1995). The prosecutor’s interjection of her own observations and

conclusions was error that was plain. Nevertheless, Beck still has the burden of

showing that the error affected her substantial rights, which “means [s]he must

demonstrate that it ‘affected the outcome of the [circuit] court proceeding.’” Puckett

v. United States, __ US __, __, 129 SCt 1423, 1429, 173 LEd2d 266 (2009) (citing

United States v. Olano, 507 US 725, 734, 113 SCt 1770, 1777, 123 LEd2d 508

(1993)). Beck fails in this regard. She is unable to show that the prosecutor’s

statements affected the outcome of the trial. The jury was instructed that

“statements of counsel not supported by the evidence or a fair inference drawn

therefrom should not be considered by [the jurors] in arriving at [a] verdict.”

Consequently, Beck has failed to show that this one statement by the prosecutor, in

the context of the entire argument involving extensive evidence and jury

instructions, affected her substantial rights.

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[¶18.] Beck also contends that the prosecutor’s statement in final argument

that “this was criminal child abuse because this does not happen during a normal,

routine, standard-of-care diaper change” constituted prosecutorial misconduct.

Beck claims that the prosecutor’s use of the term “standard-of-care” was an attempt

to lower the burden of proof to that of a preponderance of the evidence instead of

beyond a reasonable doubt. However, the jury instruction clearly outlined the

required burden of proof as follows:

The State ha[d] the burden of proving [Beck] guilty beyond a

reasonable doubt. Some of you may have served as jurors in

civil cases, where you were told that it [wa]s only necessary to

prove that a fact is more likely true than not true. In criminal

cases, the State’s proof must be more powerful than that. It

must be beyond a reasonable doubt. Proof beyond a reasonable

doubt is proof that leaves you firmly convinced of the

defendant’s guilt. There are very few things that we know with

absolute certainty. In criminal cases the law does not require

proof that overcomes every possible doubt. If, based on your

consideration of the evidence, you are firmly convinced that the

defendant is guilty of the crime charged, you must find her

guilty. If, on the other hand, you think there is a real possibility

that she is not guilty, you must give her the benefit of the doubt

and return a verdict of not guilty.

Beck cannot demonstrate that her substantial rights were affected by the

prosecutor’s one ambiguous statement in light of the specific instruction to the jury.

Reasonable Force Instruction

[¶19.] Beck brought a motion for a new trial pursuant to SDCL 23A-29-1 and

SDCL 15-6-59(a)(1) and (7) on grounds of irregularities in the proceedings and error

of law. Both grounds were based on “the [f]ailure to present the statutory defense of

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reasonable force pursuant to SDCL 26-10-1 and SDCL 22-18-5 in instructions to the

jury.” 3 The circuit court denied the motion.

[¶20.] SDCL 15-6-59(a) provides in part that:

A new trial may be granted to all or any of the parties and on all

or part of the issues for any of the following causes:

(1) Irregularity in the proceedings of the court, jury, or

adverse party or any order of the court or abuse of

discretion by which either party was prevented from

having a fair trial; . . .

(7) Error of law occurring at the trial; provided, that in the

case of claim of error, admission, rejection of evidence, or

instructions to the jury or failure of the court to make a

finding or conclusion upon a material issue which had not

been proposed or requested, it must be based upon an

objection, offer of proof or a motion to strike.

[¶21.] An irregularity in the proceedings under SDCL 15-6-59(a)(1) has been

recognized as a “departure[] by the court, during the trial of a case, from the due

and orderly method of disposition of a case. . . .” State v. Reyes, 2005 SD 46, ¶30,

695 NW2d 245, 255 (quoting Fechner v. Case, 2003 SD 37, ¶12, 660 NW2d 631,

3. SDCL 26-10-1 provides in part that “[t]he use of reasonable force, as provided

in § 22-18-5, is a defense to an offense under this section.” SDCL 22-18-5

provides:

To use or attempt to use or offer to use force upon or toward the

person of another is not unlawful if committed by a parent or the

authorized agent of any parent, or by any guardian, teacher, or

other school official, in the exercise of a lawful authority to

restrain or correct the child, pupil, or ward and if restraint or

correction has been rendered necessary by the misconduct of the

child, pupil, or ward, or by the child’s refusal to obey the lawful

command of such parent, or authorized agent, guardian, teacher,

or other school official, and the force used is reasonable in

manner and moderate in degree.

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635). In this case, the circuit court did not depart from an orderly disposition of the

case by refusing to instruct the jury on an issue that lacked support in the record.

“[Circuit] courts [are] not required to instruct the jury on issues lacking support in

the record.” State v. Well, 2000 SD 156, ¶12, 620 NW2d 192, 194 (quoting State v.

Shadbolt, 1999 SD 15, ¶9, 590 NW2d 231, 232). Instead, circuit courts must only

present “those instructions to the jury which are supported by competent evidence

and set forth the applicable law.” Shadbolt, 1999 SD 15, ¶12, 590 NW2d at 233

(citations omitted).

[¶22.] Beck did not request an instruction on reasonable force at trial. The

circuit court’s jury instructions did not include a charge concerning the defense of

reasonable force because the instruction would have been contrary to Beck’s theory

of her case. Beck’s theory was that she did not know what caused S.S.’s injury.

Beck never claimed that she was attempting to “restrain or correct” S.S. when

changing her diaper. Consequently, Beck’s claim of irregularity in the proceedings

under SDCL 15-6-59(a)(1) has no merit. Furthermore, SDCL 15-6-59(a)(7) provides

that a new trial may only be granted when there is an error of law that occurred at

trial if “based upon an objection.” In this case, Beck failed to object or offer an

instruction on reasonable restraint. Thus, Beck cannot seek a new trial on the basis

of an error of law pursuant to SDCL 15-6-59(a)(7).

Ineffective Assistance of Counsel

[¶23.] Beck argues she received ineffective assistance of counsel at trial. This

Court has “consistently held that claims of ineffective assistance of counsel

generally will not be considered on direct appeal.” State v. Garber, 2004 SD 2, ¶38,

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674 NW2d 320, 328-29 (citing State v. Hoeft, 1999 SD 24, ¶25, 594 NW2d 323, 328

(citing State v. McGill, 536 NW2d 89, 94 (SD 1995)); State v. Petersen, 515 NW2d

687, 688 (SD 1994); State v. Sonen, 492 NW2d 303, 304 (SD 1992); State v. Wurtz,

436 NW2d 839, 842 (SD 1989)). Consistent with our prior cases, we decline to

address this claim.

Cumulative Effect of Alleged Errors

[¶24.] Beck argues that the cumulative effect of errors by the circuit court

supports a finding that she was denied her “constitutional right to a fair trial.”

Beck, however, does not assert any specific errors on this issue that resulted in

prejudice. Therefore, we conclude she received a fair trial. See State v. Wright,

2009 SD 51, ¶69, 768 NW2d 512, 534.

[¶25.] The circuit court is affirmed.

[¶26.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

SEVERSON, Justices, concur.

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