APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA, HONORABLE JACK R. VON WALD Judge.
The opinion of the court was delivered by: Meierhenry, Justice
CONSIDERED ON BRIEFS ON APRIL 26, 2010
[¶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.
[¶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,*fn1 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.
Sufficiency of the Evidence
[¶6.] Beck was convicted of violating SDCL 26-10-1. SDCL 26-10-1 ...