State v. Beckering, 20120157–CA.
| Decision Date | 05 March 2015 |
| Docket Number | No. 20120157–CA.,20120157–CA. |
| Citation | 2015 UT App 53,346 P.3d 672 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Dale R. BECKERING, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Ronald Fujino, Layton, for Appellant.
Sean D. Reyes and Deborah L. Bulkeley, Salt Lake City, for Appellee.
Opinion
¶ 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.
¶ 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.
¶ 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.
¶ 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.”
¶ 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 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.
¶ 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...
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