State v. Beck

• Decision Date: 23 June 2010
• Docket Number: No. 25392.,25392.
• Citation: 2010 S.D. 52,785 N.W.2d 288
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Stacy Lynn BECK, Defendant and Appellant.
• Court: South Dakota Supreme Court

785 N.W.2d 288

2010 S.D. 52

STATE of South Dakota, Plaintiff and Appellee,

v.Stacy Lynn BECK, Defendant and Appellant.

No. 25392.

Supreme Court of South Dakota.

Considered on Briefs April 26, 2010.

Decided June 23, 2010.

Marty J. Jackley, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, for plaintiff and appellee.

Jamie L. Damon, Pierre, South Dakota, Ronald A. Parsons, Jr. of Johnson, Heidepriem & Abdallah, LLP, Sioux Falls, South Dakota, for defendant and appellant.

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 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.

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 N.W.2d 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 N.W.2d 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 N.W.2d 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 N.W.2d 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 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 N.W.2d 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 N.W.2d at 626).

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 N.W.2d 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 levelof plain error, for the plain error rule must be applied cautiously and only in exceptional circumstances." State v. Davi, 504 N.W.2d 844, 855 (S.D.1993) (quoting State v. Brammer, 304 N.W.2d 111, 114 (S.D.1981)). "With plain error analysis, the defendant bears the burden of showing the error was prejudicial." State v. Nelson, 1998 SD 124, ¶ 7, 587 N.W.2d 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 N.W.2d 808, 818 (citing Nelson, 1998 SD 124, ¶ 8, 587 N.W.2d at 443 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 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 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 N.W.2d 344, 354 (internal citations omitted). Likewi...