2015 UT App 209

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

SHERRIE LYNN BECKERING,

Defendant and Appellant.

Opinion

No. 20130254-CA

Filed August 20, 2015

Third District Court, Salt Lake Department

The Honorable Katie Bernards-Goodman

No. 111902545

Richard G. Uday, Attorney for Appellant

Sean D. Reyes and Daniel W. Boyer, Attorneys

for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN and JOHN A. PEARCE concurred.

TOOMEY, Judge:

¶1 Defendant Sherrie Lynn Beckering appeals her conviction 

for aggravated abuse of a vulnerable adult, which was enhanced 

to a first-degree felony because the jury found she acted in 

concert with others. Beckering argues her trial counsel rendered 

constitutionally ineffective assistance because he failed to object

to purported errors in the jury instructions. She also argues the 

trial court erred by allowing ‚gruesome‛ photographs to be 

admitted into evidence. We affirm. 

BACKGROUND

¶2 On March 25, 2011, police officers and paramedics 

responded to a 911 call and found a twenty-two-year-old woman
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(Victim) in Beckering’s house ‚lying on the ground‛

unconscious.1 The paramedics could not revive her, and Victim 

was pronounced dead at the scene. The police officers noted 

several obvious injuries on Victim’s body, including several 

large bruises on her left hip and thigh. Officers noticed ‚ligature 

marks‛ on her ankles, which matched cut nylon zip ties 

discovered near her body. They also found a red pepper flake 

under her lower-right eyelid. Someone had wrapped Victim’s 

hands in ACE bandages ‚all the way around her hand . . . and 

then they went down to about her elbows‛ in a ‚mitten type of 

fashion.‛ The bandages were wrapped so tightly Victim could 

not have moved her fingers or thumbs. Under the bandages, 

Victim had deep tissue damage and numerous open ulcers. The 

State medical examiner later noted large areas of bruising with 

‚well defined‛ edges and a ‚distinct pattern‛ on Victim’s body. 

He also observed red spots on Victim’s lips, forehead, and 

cheeks ‚likely related to exposure to some sort of an irritant.‛ 

Ultimately, the medical examiner ruled that Victim ‚died as a 

result of improper care by her caregiver or caregivers . . . . based 

upon inflicted injuries including patterned injuries, deprivation 

of water, dehydration and electrolyte abnormalities, 

immobilization with use of restraints and confinement to a closet 

and excessive dosing with sedating medication.‛ 

¶3 Victim suffered from fetal alcohol syndrome and was 

‚developmentally delayed.‛ After Victim’s mother died of 

cancer, Beckering’s daughter, Cassandra Shepard, became 

Victim’s legal guardian and caretaker. Shepard, Shepard’s two 

daughters, Victim, and Victim’s daughter lived with Beckering 

and her husband in Beckering’s two-story house. 

 

1. For a more detailed description of the background facts in this 

case, see State v. Beckering, 2015 UT App 53, ¶¶ 2–14, 346 P.3d 

672, in which this court affirmed Beckering’s husband’s 

conviction for being a party to reckless aggravated abuse of a 

vulnerable adult for his role in Victim’s death. 
State v. Beckering

20130254-CA 3 2015 UT App 209

¶4 Beckering was charged as a party to aggravated abuse of 

a vulnerable adult for conduct spanning from July 1, 2010, to 

March 25, 2011. At trial, Beckering testified she knew nothing 

about Victim’s injuries and had no role in caring for her. She 

claimed that, although she had cared for Victim in the past, she 

did not have ‚any type of responsibility‛ for Victim during the 

time of the alleged abuse. According to Beckering, she and her 

husband lived in the downstairs area of the house and everyone 

else, including Victim, lived upstairs. Even though the only 

kitchen in the house was upstairs, she insisted that the floors 

were ‚separate‛ and that, as a result, she only occasionally saw 

Victim. 

¶5 To rebut Beckering’s claims of ignorance, the State 

presented testimony from several witnesses to demonstrate that 

Beckering cared for Victim. The State also presented evidence, 

including the medical examiner’s report and several 

photographs, to demonstrate that Victim’s injuries were 

intentional or non-accidental and so severe as to have been 

noticeable to anyone in the house. For example, Shepard’s 

daughters described Victim’s punishments in detail, testifying

that Shepard and Beckering took turns caring for Victim and that 

the abuse often occurred in the closet near the kitchen and the 

living room. 

¶6 Before trial, Beckering objected to the admission of at least 

six photographs offered by the State on the grounds that they 

were ‚irrelevant, highly prejudicial or gruesome.‛ The trial court 

denied Beckering’s pre-trial motion to suppress the photographs

and admitted them into evidence at trial, concluding they were 

relevant to the State’s theory and not gruesome.2 The challenged 

 

2. Prior to trial, Beckering objected to a number of the State’s 

proposed exhibit photographs, but did not attach them to the 

pre-trial motion. At trial, Beckering’s counsel renewed the 

objections when the challenged photographs were offered into 

evidence. On appeal, Beckering has indicated that she challenges 

‚five‛ photographs, but has listed six of the State’s exhibit

(continued...)
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20130254-CA 4 2015 UT App 209

photographs each depict the deceased victim and are as follows: 

‚Exhibit 13‛ depicts Victim’s face with a pepper seed under one 

of her lower eyelids; ‚Exhibit 18‛ depicts Victim’s face and open 

mouth showing the bruising and speckling on her skin and lips; 

‚Exhibit 19‛ shows patterned bruises on Victim’s hip and legs; 

and ‚Exhibit 22‛ is two small photographs of Victim’s right and 

left hands which show open skin ulcers.3

¶7 The jury convicted Beckering of aggravated abuse of a 

vulnerable adult under Utah Code section 76-5-111(2)(a). It 

determined she had acted knowingly or intentionally, and 

enhanced her conviction for acting in concert with others 

pursuant to Utah Code section 76-3-203.1. She was sentenced to

an indeterminate term of five years to life in prison. Beckering 

appeals. 

ANALYSIS

I. Jury Instructions

¶8 Beckering contends her trial counsel performed 

ineffectively by not objecting to several errors in the jury 

instructions given by the court. In particular, she argues the jury 

 

(...continued)

photographs in her argument. But the record does not include 

the State’s exhibits. The record contains only four photographs, 

which were attached to the State’s opposition to Beckering’s pretrial motion to suppress. Because only four of the challenged 

photographs are in the record—‚Exhibit 13,‛ ‚Exhibit 18,‛

‚Exhibit 19,‛ and ‚Exhibit 22‛—we have limited our analysis to 

those photographs.

3. Because the photographs in the record—attached to the State’s 

opposition to Beckering’s pre-trial motion—were not labeled as 

exhibits, we have identified them with the ‚exhibit‛ numbers 

used in the transcript and in Beckering’s appellate brief. 
State v. Beckering

20130254-CA 5 2015 UT App 209

instructions were erroneous because they did not make clear that 

each of several terms—‚party to the offense,‛ ‚vulnerable 

adult,‛ and ‚caretaker‛—were separate factual determinations

the jury needed to make in finding Beckering’s guilt. The 

elements instructions, Beckering asserts, ‚were too conclusory 

and they incorrectly presented [the terms] as . . . ‘established and 

given facts’ rather than letting the jury decide such facts for 

themselves.‛ Beckering also argues that language added to the 

elements instruction, which was not present in the statute, 

created uncertainties in the jury’s findings. As we have recently 

analyzed and decided these very issues, see State v. Beckering, 

2015 UT App 53, ¶¶ 20–37, 346 P.3d 672, we reject these 

arguments. 

¶9 To demonstrate that trial counsel provided 

constitutionally ineffective assistance, 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)). She must overcome a

‚‘strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance.’‛ Id. (quoting 

Strickland, 466 U.S. at 689). And trial counsel’s performance will 

not be deemed deficient unless Beckering can ‚‘show that 

counsel’s representation fell below an objective standard of 

reasonableness.’‛ Id. (quoting Strickland, 466 U.S. at 688).

Moreover, ‚*t+o 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). ‚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.‛ Id. ¶ 6 (alteration in original) 

(citation and internal quotation marks omitted). 

¶10 ‚The general rule for jury instructions is that an accurate 

instruction upon the basic elements of an offense is essential.‛ 
State v. Beckering

20130254-CA 6 2015 UT App 209

State v. Bird, 2015 UT 7, ¶ 14, 345 P.3d 1141 (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). Furthermore, ‚*w+hen 

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.‛ Beckering, 2015 UT App 53, ¶ 24.

¶11 Although the disputed terms were couched within 

enumerated elements of the crime, rather than being listed as 

separate elements, the jury instructions included the disputed 

terms and instructed the jury on the applicable law. Moreover, 

the jury received a separate instruction defining the concept of 

‚party to the offense‛ or ‚accomplice liability‛ and an 

instruction defining the terms ‚caretaker‛ and ‚vulnerable 

adult.‛4 Accordingly, we are not convinced the organization of 

the instructions misled the jury or ‚insufficiently or erroneously 

advise*d+ the jury on the law.‛ Cf. State v. Stringham, 2001 UT 

App 13, ¶ 17, 17 P.3d 1153 (citation and internal quotation marks 

omitted) (explaining that failure to give a requested instruction 

is reversible error only if the omission misleads or erroneously 

advises the jury). 

 

4. Beckering argues the jury instructions were erroneous 

because, although they required the jury to determine whether 

Beckering caused or permitted harm to a vulnerable adult, they 

did not specifically require the jury to find that Victim was a 

vulnerable adult. We are not persuaded. To determine whether 

Beckering ‚*c+aused a vulnerable adult to suffer serious physical 

injury‛ or permitted a ‚vulnerable adult’s person or health to be 

injured,‛ the jury necessarily needed to determine whether 

Victim—the only person harmed in this case—was a vulnerable 

adult. 
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20130254-CA 7 2015 UT App 209

¶12 Beckering also argues that trial counsel performed 

ineffectively by not objecting to the elements instruction that

added language requiring the jury to determine whether she 

acted ‚as a party to the offense, including as a caretaker.‛ 

(Emphasis added.) She asserts that because being a ‚‘party to the 

offense’ is not the same as being a ‘caretaker’‛ and because both 

terms were present in the instruction, there are ‚uncertainties 

and inconsistencies in determining whether the jury had 

factually found that Sherrie Beckering was a ‘caretaker’ or a 

‘party to the offense.’‛ Beckering’s argument suggests the jury 

could have mistakenly thought that finding that she was a 

‚caretaker‛ would satisfy the requirement of finding that 

Beckering was a ‚party to the offense‛ for the purposes of the inconcert enhancement.5

¶13 Even if we determined there was an error in the 

challenged jury instruction, Beckering has failed to demonstrate

that the error prejudiced her defense. The language used in the 

jury instruction is consistent with the language and structure of

Utah Code section 76-5-111(2), which provides for criminal 

penalties against ‚any person, including a caretaker,‛ who ‚is 

guilty of the offense of aggravated abuse of a vulnerable adult.‛

See State v. Beckering, 2015 UT App 53, ¶ 31 & n.3, 246 P.3d 672.

An instruction that stated the elements of the crime verbatim 

would require the jury to find only that Beckering was ‚any 

person.‛ Utah Code Ann. § 76-5-111(2) (LexisNexis 2012). By 

substituting the language ‚any person‛ with ‚party to the 

 

5. Implicit in Beckering’s argument is the suggestion that the 

jury may have inappropriately found that she was a ‚party to 

the offense‛ by relying on the mistaken belief that finding 

Beckering was a ‚caretaker‛ would satisfy the requirement of 

finding Beckering had acted in concert with others. We are not 

persuaded. The instructions thoroughly explained what ‚party 

to the offense‛ meant and the jury was required to make a 

separate finding as to whether Beckering’s culpability was 

enhanced by acting in concert with two or more persons. See 

supra ¶ 11. 
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20130254-CA 8 2015 UT App 209

offense,‛ the instruction required the jury to make a more 

narrow finding which increased the State’s burden and benefited 

Beckering. In particular, to find Beckering guilty of aggravated 

abuse of a vulnerable adult, the instruction’s language required 

the State to demonstrate Beckering was something more than

‚any person‛ as the statute requires; it imposed the additional 

burden on the State to prove Beckering was either a ‚party to the 

offense‛ or a ‚caretaker,‛ where ‚any person‛ would satisfy the 

requirements provided by the statute. This increased burden on 

the State stood to benefit Beckering by requiring the jury to make 

an additional finding not required by the statute. An error that 

‚actually benefits the defendant‛ cannot serve as the basis for a 

claim of ineffective assistance of counsel. See State v. Malaga, 2006 

UT App 103, ¶ 16 n.4, 132 P.3d 703. Beckering fails to

persuasively explain how the language ‚as a party to the offense, 

including as a caretaker‛ caused prejudice or how altering or 

removing the language from the elements instruction would 

have led to a more favorable result. Accordingly, we are not 

convinced any error in adding the language ‚party to the 

offense‛ prejudiced Beckering’s defense. 

¶14 In sum, Beckering has failed to demonstrate that trial 

counsel performed ineffectively with regard to the jury 

instructions or that ‚but for counsel’s error, the result would 

have been different.‛ See Layton City v. Carr, 2014 UT App 227, 

¶ 12, 336 P.3d 587 (citation and internal quotation marks 

omitted). 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,‛

we therefore conclude that there was no deficient performance 

by counsel in allowing the elements instruction. Beckering, 2015 

UT App 53, ¶ 27. 

II. Photographs

¶15 Beckering also challenges the trial court’s decision to 

admit Exhibits 13, 18, 19, and 22 into evidence, arguing that the 

unfair prejudice to her defense substantially outweighed their 

probative value. Specifically, she argues the photographs are 
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20130254-CA 9 2015 UT App 209

irrelevant and gruesome, and because they are gruesome, the 

State failed to meet its burden of showing they had unusual 

probative value that substantially outweighed the unfair 

prejudice. See State v. Vargas, 2001 UT 5, ¶ 51, 20 P.3d 271; State v. 

Stapley, 2011 UT App 54, ¶ 8, 249 P.3d 572.

¶16 When determining whether an allegedly gruesome 

photograph is admissible, we apply the three-part test adopted 

by the Utah Supreme Court in State v. Bluff, 2002 UT 66, ¶ 46, 52 

P.3d 1210. ‚The threshold question when considering the

admissibility of any piece of evidence is whether it is relevant.‛

Id. ¶ 42. ‚If the proffered evidence is relevant, the court must 

next determine whether the evidence belongs to one of the 

categories of evidence that we presume to be inherently 

prejudicial, such as gruesome photographs.‛ Id. ¶ 43. Finally, the 

court must apply the appropriate balancing test. Id. ¶¶ 44–46. If

the photograph is not gruesome, the court may apply the 

standard rule 403 balancing test in which ‚the court must admit 

the photograph if its probative value is not substantially 

outweighed by its potential to unfairly prejudice the jury.‛ Id. 

¶ 44. But, if ‚the photograph meets the legal definition of 

gruesomeness, it may not be admitted absent a showing of 

‘unusual probative value.’‛ Id. ¶ 45 (quoting State v. Lafferty, 749 

P.2d 1239, 1256 (Utah 1988)). The burden is then shifted to ‚the 

State to show that the probative value of such evidence 

substantially outweighs the risk of unfair prejudice.‛ Id. 

¶17 In considering the admission of the challenged 

photographs, ‚we review the trial court’s determination of 

whether the photographs are relevant for abuse of discretion.‛ 

Id. ¶ 47. ‚The determination of whether a photograph is 

gruesome is a question of law, which we review for correctness.‛ 

Id. Then, ‚*a] trial court’s ruling under rule 403 is reviewed for 

abuse of discretion.‛ Id. Even if the court erroneously admitted 

the photographs, that ruling requires reversal only if it ‚had a 

substantial influence in bringing about the verdict.‛ Id. (citation 

and internal quotation marks omitted); see also Utah R. Evid. 

103(a) (providing that a ‚party may claim error in a ruling to 
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20130254-CA 10 2015 UT App 209

admit or exclude evidence only if the error affects a substantial 

right of the party‛). 

¶18 With respect to relevance, ‚*e+vidence is relevant if it has 

‘any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or 

less probable than it would be without the evidence.’‛ Bluff, 2002 

UT 66, ¶ 42 (quoting Utah R. Evid. 401 (2002)). At trial, Beckering 

was charged with intentionally or knowingly abusing Victim, 

but maintained she had no knowledge of Victim’s injuries. In 

support of its case, the State presented Exhibit 18, which shows

bruising and speckling on Victim’s face, to demonstrate that the 

‚visible reaction of *Victim’s+ skin would have been obvious to 

anyone who saw her face.‛ The State presented Exhibit 19, which 

depicts large patterned bruises on Victim’s hip and thigh, to 

support the State’s theory that someone intentionally struck

Victim. And the State presented Exhibits 13 and 22 to 

demonstrate that the bandages on Victim’s arms had been on for 

an extended period, and to demonstrate that because Victim did 

not have the use of her hands, someone other than Victim would 

have had to put the pepper seed in her eye. Because they tended 

to make the State’s theory—that someone intentionally abused 

Victim and that Victim’s injuries would have been apparent to 

Beckering—more probable than if there were no photographs 

admitted into evidence, we conclude that the trial court did not 

abuse its discretion in determining that the photographs were 

relevant.

¶19 Next, we consider whether the photographs are 

gruesome. To determine whether a photograph is gruesome, 

courts consider several non-exclusive factors, including

whether the photograph is in color or black and 

white; whether it is an enlargement or close-up 

shot; when the photo was taken in relation to the 

crime; and whether other details in the photo, aside 

from the victim, may exacerbate the photograph’s 

impact on the viewer. 
State v. Beckering

20130254-CA 11 2015 UT App 209

State v. Gulbransen, 2005 UT 7, ¶ 39, 106 P.3d 734. ‚A photograph 

is not gruesome, however, merely because it is unpleasant to 

view. Rather, gruesome means something much stronger than 

being offensive, embarrassing, or graphic. . . . [I]t inspire[es] 

horror or repulsion.‛ Stapley, 2011 UT App 54, ¶ 15 (alterations 

and omission in original) (citations and internal quotation marks 

omitted). Each of the challenged photographs depicts a close-up, 

cropped, color image of Victim. The images were projected on a 

large screen in the courtroom to make them easier to see. But 

none of the images show unnatural body contortions, blood, or

oozing wounds. Although Exhibit 22 shows open sores on 

Victim’s arms, ‚[t]he sterile and clean manner in which [Victim]

is depicted negates the effect‛ of the wounds. See Bluff, 2002 UT 

66, ¶¶ 49, 51. We recognize that the Utah Supreme Court has 

cautioned that enlargements or close-ups ‚show greater detail 

and therefore are often more disturbing than a life-like view . . . 

or may give a distorted impression of the thing photographed,‛

but the images in this case do not unfairly characterize Victim’s 

condition. See id. ¶ 50 (omission in original) (citation and internal 

quotation marks omitted). Although the challenged photographs 

are unpleasant and cause discomfort, there is nothing otherwise 

inflammatory about them. We therefore conclude that the trial 

court did not err in determining they are not gruesome. 

¶20 Because the photographs are not gruesome, we must 

determine whether the trial court exceeded its discretion in 

admitting them under rule 403 of the Utah Rules of Evidence. 

Rule 403 allows the court to exclude relevant evidence if ‚its 

probative value is substantially outweighed by a danger of one 

or more of the following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly 

presenting cumulative evidence.‛ Utah R. Evid. 403. The trial 

court concluded that, because the photographs tended to 

demonstrate that Victim’s injuries were intentional and would 

be obvious to any person who encountered her, they were highly 

probative of the State’s case. Beckering suggests that, because 

one juror had a ‚visibly emotional reaction‛ to the photographs 

and ‚refused to observe‛ them, the photographs had a 

‚prejudicial impact on the jury.‛ We agree that viewing the 
State v. Beckering

20130254-CA 12 2015 UT App 209

challenged photographs could reasonably cause an emotional 

reaction, but this does not make them less probative. Given the 

nature of the case and Beckering’s defense, the photographs 

were highly probative of contested elements of the charged 

offense. Moreover, as discussed above, their disturbing nature is 

the essence of the injuries themselves, not a deliberate attempt 

by the State to distort the extent of Victim’s injuries or otherwise 

mislead the jury. See State v. Stapley, 2011 UT App 54, ¶ 16, 249 

P.3d 572. Even if the court had erred, Beckering would have 

needed to demonstrate prejudice by showing how the 

photographs’ admission had a ‚substantial influence in bringing 

about the verdict.‛ See State v. Bluff, 2002 UT 66, ¶ 47, 52 P.3d 

1210 (citation and internal quotation marks omitted). She has not 

done so. Therefore, because any prejudicial effect of the 

photographs did not substantially outweigh their highly 

probative value, we conclude the trial court did not abuse its 

discretion in admitting the photographs.

CONCLUSION

¶21 Beckering has not demonstrated that trial counsel 

performed ineffectively with regard to the jury instructions. 

Moreover, because the challenged photographs are not 

gruesome, we conclude the trial court did not exceed its 

discretion by admitting the photographs into evidence. We 

affirm.