author: KAUGER, J: OPALA, J.,

text:
    2002 OK 75
    B.E. & K. CONSTRUCTION and St. Paul Fire & Marine, Petitioners, v. Dennis ABBOTT and the Workers' Compensation Court, Respondents.
    No. 97,039.
    Supreme Court of Oklahoma.
    Oct. 1, 2002.

      John B. Vera, Oklahoma City, OK, for Petitioner.
    Brandon Burton, Oklahoma City, OK, for Respondent.
   KAUGER, J:

11 A single, first-impression, question of law is presented: whether an employee, volunteering for inclusion in an employer-planned reduction in force, is entitled to post-termination temporary total disability benefits for an on-the-job injury. Under the facts presented, we determine that benefits are payable.

UNDISPUTED FACTS

T 2 On March 21, 2001, the petitioner, Dennis Abbott (Abbott/employee), while working for the respondent, B.E. & K. Construction (construction company/employer), was injured on the job. When the accident occurred, the employee was approximately thirty feet above ground on an extension ladder. A thirty-pound bearing cap fell, striking Abbott in the head and knocking him to the ground. The employee lost consciousness, cut his brow and suffered injuries to his neck and back.

T3 Abbott resumed his job the day after the injury on light-duty restrictions. He continued to work from March 22nd to April 26th. By that time, the construction project was beginning to phase out and Abbott learned that reductions in force were imminent. Because the work he had been assigned was interrupted and he had nothing to do, Abbot asked his supervisor to be included in the employer-planned reduction in force. His request was granted and Abbott was terminated on April 26th. When the employee returned to his doctor on May 8rd, the physician advised Abbott that he should not be doing even light duty jobs and took him completely off work.

T4 A hearing on the employee's claim for temporary total disability was held on July 5, 2001. Although Abbott's supervisor testified that it was the employee's decision to leave the job, he also stated that being included in the reduction in force was not tantamount to an employee quitting.

T5 The trial judge, Honorable Susan Witt Conyers, ordered Abbott's temporary total disability terminated effective April 26, 2001. The three judge panel modified the order, directing that temporary benefits be paid from April 26th through August 7, 2001-the date the employee was released from treatment by his physician. Finding that the employee left his job without coercion from his employer, the Court of Civil Appeals reversed the panel's order and remanded for an alteration in the beginning date for benefits. We granted certiorari on July 2, 2002.

T6 EVEN THOUGH AN INJURED EMPLOYEE VOLUNTEERS FOR INCLUSION IN AN EMPLOYER PLANNED REDUCTION IN FORCE, IF THE EMPLOYER MAKES THE FINAL DETERMINATION TO DISCHARGE THE EMPLOYEE, WORKERS COMPENSATION BENEFITS ARE PAYABLE.

T7 Although Abbott asked to be included in the employer's reduction in force, he argues that temporary total disability is payable. He asserts that, ultimately, the employer controlled the decision.to conduct a layoff and to include him in the reduction in force. The employer concedes that had it either fired or laid off the injured employee, Abbott would be entitled to temporary total disability benefits. Nevertheless, it contends that the employee would not have been terminated if he had not volunteered for the program. Essentially, the employer insists that Abbott controlled his own destiny-he would not have been terminated absent his request. Therefore, volunteering for the reduction in force constituted a refusal to accept an offered light-duty assignment and was tantamount to a resignation. We disagree.

18 The employer finds support in three non-precedential opinions released for publication by the Court of Civil Appeals: Tubbs v. Oklahoma Tax Comm'n, 2001 OK CIV APP 97, 28 P.3d 624; Akers v. Seaboard Farms, 1998 OK CIV APP 169, 972 P.2d 885; and Hinton v. Labor Source, 1998 OK CIV APP 2, 953 P.2d 358. All three cases are factually distinguishable.

T9 Tubbs provides that an employee, released for light duty, is entitled to temporary total disability benefits if the employer offers no light-duty assignment. The precise issue presented in Tubbs is the effect that an employee's resignation will have on the right to receive benefits. The Court of Civil Appeals determined that employer's are not required to offer light-duty work to former employees not incapacitated and that the employee's resignation severed the employment relationship and the responsibility to pay benefits. Unlike the employee in Tubbs, Abbott did not resign his position nor did he refuse a light-duty assignment.

{10 The employee in Akers was discharged for cause-failing a drug test. Essentially, the Court of Civil Appeals determined that the employee's own actions were an effective refusal to continue accepting the light-duty work provided by the employer. Although Abbott offered to be included in his employer's reduction in force, he did not leave his employment because of a violation of job related policies. Further, until ordered by his physician to discontinue work, he would have continued his light-duty assignments.

111 Hinton involved a single issue: whether an employer must offer light-duty work to an employee to avoid the payment of temporary total disability benefits. The Court of Civil Appeals held that the burden rested on the employer to show that it had offered light-duty work to defend against the payment of benefits. Under Hinton, absent an offer of light duty, the employer is responsible for paying temporary total disability. Here, there is no question that light duty was offered. Unlike Hinton, this cause turns on whether the employer may avoid payment of temporary benefits after having chosen to include Abbott in its reduction-in-foree program.

{ 12 Several views exist in extant jurisprudence on the issue of the payment of workers' compensation benefits to employees who subsequently leave their jobs. Some courts find that where an employee's separation from employment is voluntary, workers' compensation benefits are not payable. Others recognize that even a voluntary separation from employment will not preclude the award of benefits. Another acknowledges that employer's may not avoid their responsibilities under workers' compensation laws by allowing employees to voluntarily retire without advising them of their rights to compensation benefits. Benefits have been denied where the employee resigned rather than face the possibility of disciplinary action, to avoid unfriendly environmental factors, or to accept a higher paying job which the employee subsequently was unable to perform.

113 Authority is split over whether an employee volunteering to be included in an employer-planned reduction in force, as Abbott did here, should be considered as having effectively resigned from employment. The majority of these cases provide that although an employee may opt for inclusion in an employer-mandated layoff, the layoff itself is still instituted at the employer's prerogative. The fact that the employees may decide among themselves who will bear the burden of termination does not make the employee's departure voluntary. These courts reason that when the first and last steps of the termination process are taken by the employer, ie. planning the reduction and then selecting certain employees for inclusion, even one who has agreed to participate in the process has not voluntarily terminated employment.

1 14 The majority recognizes that the ultimate choice and responsibility for unemployment lies only with the employer's decision to reduce available jobs. It is immaterial which of several employees are terminated or that an employee may participate in the selection process or whether, absent an offer of inclusion in the lay off, the employee's position would have been at risk. Employers are not compelled to accept an employee's offer and their benefits are the same-a reduction in the work force. The employees have no voice in promulgating the lay-off policy and exercise only limited options.

1 15 We consider the analysis proffered by the majority of jurisdictions addressing whether an employee's offer to be included in an employer-announced lay off should be considered a voluntary termination persuasive and logical. The majority's conclusions are based in the realities of the workplace-an employee electing to volunteer for an employer-planned reduction in force does not exercise the ultimate power or final decision as to which employees will be targeted for termination. It is the employer who decides to eliminate a job and to lay off a given individual, based on the employer's needs. It is irrelevant that the employee may have made the employer's determination easier by first volunteering to be laid off.

{16 We hold that where, as here, an injured employee volunteers for an employer-instigated reduction in force, and the employer makes the ultimate decision to terminate, rights to workers' compensation benefits are not affected. In reaching this result, we align ourselves with the majority of jurisdictions addressing the nature of an employee's actions when deciding to volunteer for an employer-instigated reduction in force.

1 17 Were we not convinced by the majority position, we would still be compelled to hold in favor of the employee. Unquestionably, as the employer recognizes, had the construction company fired or laid off Abbott-without his volunteering for inclusion in the reduction in force, he would be entitled to temporary total disability benefits. Absent very limited cireumstances, none of which apply here, the Workers' Compensation Act, 85 0.8.2001 § 11, mandates that employers subject to the act "shall pay" compensation to an employee for an accidental on-the-job injury. The statute does not provide that the requirement to disburse compensation terminates upon the employee's dismissal and we may not interpret it to do so. Otherwise, we would create an extra-statutory forfeiture of benefits in the face of the Legislature's clear prohibition in 85 0.8. 2001 § 5 against an employee's discharge for filing a compensation claim. Our statutory structure mandating that employers not be allowed to avoid compensating their employees for their on-the-job injuries through termination, combined with the remedial nature of the statutes and Oklahoma's well-settled jurisprudence that the statutes should be construed in favor of the workers they are intended to benefit, necessitates that we recognize Abbott's right of recovery.

CONCLUSION

118 Today's pronouncement addresses a first impression question of law on undisputed facts. We determine that, under the facts presented-where Abbott suffered an on-the-job injury while in the course of his employment, volunteered for the employer's instigated reduction in foree and was terminated following the construction company's decision to include him in the downsizing program-the employee is entitled to temporary total disability benefits. Our holding: 1) aligns us with the majority of jurisdictions recognizing that even where an employee may volunteer for inclusion in a reduction-in-force program, it is the employer who has the ultimate control over the jobs which will be eliminated and the employees who will be terminated; and 2) avoids the extra-statutory forfeiture of benefits guaranteed to employees pursuant to 85 0.8.2001 § 5. The cause is remanded for proceedings consistent with the views expressed herein.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION - VACATED; ORDER - OF THREE-JUDGE PANEL SUSTAINED IN PART, OVERRULED IN PART; TRIAL COURT OVERRULED; CAUSE REMANDED.

HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, SUMMERS, BOUDREAU, WINCHESTER, JJ. concur.

OPALA, J. concurs in result.

OPALA, J.,

concurring in result.

The provisions of the Workers' Compensation Act do not authorize the trial tribunal to deny an employee's claim for temporary total disability based on the employer's assertion that the injured person's employment status came to be terminated before the end of his healing period. Neither common-law norms nor those of equity are available to supplement, abridge or alter the statute's exclusive provisions that define the outer limit of compensation liability. I hence concur in today's conclusion that the trial tribunal's denial of claimant's quest for temporary total disability from on-the-job harm impermissi-bly shortchanged the amount of statutory benefits that were his due.

      . On consideration of factual determinations, the three-judge panel's review of the trial judge's findings is governed by a clear weight of the evidence test. Title 85 0.$.2001 § 3.6(A); Sneed v. McDonnell Douglas, 1999 OK 84, ¶ 8, 991 P.2d 1001. In reviewing the three-judge panel's determinations, this Court applies the any competent evidence standard. Owings v. Pool Well Service, 1992 OK 159, ¶ 7, 843 P.2d 380; Lacy v. Schlumberger Well Service, 1992 OK 54, ¶ 7, 839 P.2d 157. However, on questions of law we exercise de novo review. Ibarra v. Hitch Farms, 2002 OK 41, ¶ 4, 48 P.3d 802; Upton v. State ex rel. Dept. of Corrections, 2000 OK 46, ¶ 4, 9 P.3d 84. Under this standard, the Court has plenary, independent and non-deferential authority to address legal issues. American Airlines v. Hervey, 2001 OK 74, ¶ 11, 33 P.3d 47; Kluver v. Weatherford Hospital Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081. The entitlement to temporary total disability compensation is generally a question of fact left to the Workers' Compensation Court. Gray v. Natkin Contracting, 2001 OK 73, ¶ 11, 44 P.3d 547. Here, however, the question is not whether the medical testimony or the factual circumstances will support the award. Rather, the material facts are undisputed and a question of law is presented. Morillo v. Director of the Division of Employment Security, 394 Mass. 765, 477 N.E.2d 412 (1985); Rice v. Arizona Dept. of Econ. Sec., 183 Ariz. 199, 901 P.2d 1242 (Ct.App.1995). But see, Healion v. Great West Life Assurance Co., 830 F.Supp. 1372, 1374 (D.Colo.1993) [Voluntariness a question of fact where material issues of fact exist.]; Fisher v. Levine, 36 N.Y.2d 146, 365 N.Y.S.2d 828, 325 N.E.2d 151, 153 (1975) [Voluntariness may present a mixed question of law and fact.].
      We note that some provisions of the workers' compensation statutes have been amended since Abbott's injury in March of 2001. Nevertheless, references are to the most current codification absent a finding that an earlier version controls.

      . The employer asserted on appeal that the wrong date was noted in the three-judge panel's order for the beginning of temporary total disability benefits. Both parties now agree that the award of benefits should begin three days following the date the employee left his employment under the employer's reduction in force plan. Therefore, we need not address this issue and the three-judge panel's order is overruled only to the extent that the wrong date was originally utilized for the calculation of benefits. Title 85 0.8.2001 § 13 provides:
      "No compensation shall be allowed for the first three (3) calendar days of disability except the benefits as provided for in Section 14 of this title."
      Rule 14, Rules of the Workers' Compensation Court, 85 0.$.2001, Ch. 4, App. provides in pertinent part:
      "A. Upon the receipt of notice that an employee has been injured, the employer has an obligation under the Workers' Compensation Act to provide that employee with reasonable and necessary medical treatment, and to commence temporary compensation in the event that the employee is disabled and unable to return to work for more than three (3) calendar days...."
      The employee's brief in chief, filed on January 14, 2002, provides in pertinent part at pp. 3-4:
      "... Although Respondent failed to cite the proper authority for this issue, Claimant concedes the Court En Banc's order is void on its face in as much as it orders the start date for temporary total disability is April 26, 2001. In light of 85 0.S. § 13, temporary total disability benefits properly begin on April 29, 2001. Respondent stated the proper date as April 30, 2001. However, April 26, 2001, was the day Claimant was laid off, and therefore, the first day of disability rendering April 29, 2001, the fourth date of disability. 85 0.8. § 13."
      Admissions in the brief may be regarded as a supplement to the appellate record. Keating v. Edmondson, 2001 OK 110, ¶ 9, 37 P.3d 882; World Publishing Co. v. White, 2001 OK 48, ¶ 19, 32 P.3d 835; Oklahoma Urban Renewal Auth. v. Medical Technology & Research Auth. of Oklahoma, 2000 OK. 23, ¶ 14, 4 P.3d 677.
      Although the employee requested that he be awarded appeal-related costs and fees in his brief in chief on appeal, the plea was not renewed in the petition for certiorari.

      . The purpose of temporary disability benefits is to replace wages lost during an employee's healing period. American Airlines v. Hervey, see note 1 at ¶ 12, supra; Farm Fresh, Inc. v. Bucek, 1995 OK 44, ¶ 8, 895 P.2d 719. Temporary total disability awarded pursuant to 85 0.$.2001 § 22(2) involves the time frame following an accidental injury when an employee is totally incapacitated for work. Upton v. State ex rel. Dept. of Corrections, 2000 OK 46, ¶ 1, 9 P.3d 84; Bodine v. L.A. King Corp., 1994 OK 22, ¶ 9, 869 P.2d 320; Bama Pie, Inc. v. Roberts, 1977 OK 100, ¶ 12, 565 P.2d 31.

      . Transcript of proceedings, July 5, 2001, the employee's testimony providing in pertinent part:
      "... Q Now, you go back to Dr. Schneider on May the 3rd?
      A Yes.
      Q Does he take you off work at that point or leave you on light duty?
      A - No, he took me off completely.
      Q He's had you off work ever since; is that right?
      A Yes, sin. ...' +

      . Although an employee capable of doing light work is not considered to be totally disabled, capacity is considered total where no work within the employee's capability is available. Gray v. Natkin Contracting, see note 1 at ¶ 17, supra.

      . Transcript of proceedings, July 5, 2001, Melvin E. Lee testifying, providing in pertinent part at pp. 25-26:
      "... Q Andy by his asking to be included in this reduction in force, is that like quitting in your business?
      A - Well, I mean, it's not like quitting, but it's, you know, we usually-what we do, we have volunteers, you know, if people wants to work, if people volunteer, then we let the people, you know, who really want stay or need to work to stay there.
      Q Let me rephrase that. Whose choice was it for him to stop working there, BE & K's or his?
      A - Absolutely his....
      Q This reduction of force, when people leave your employment under reduction of force, it's not as though they quit; isn't that correct?

        A No...."

      . The employer's reply brief, filed on February 7, 2002, provides in pertinent part at p. 3:
      "... If the Respondent here had laid the Claimant off while he was on light duty, clearly the Claimant would be entitled to temporary total disability benefits...."
      Title 85 0.$.2001 § 11, see note 28, infra; 85 ©.$.2001 § 14; 85 0.$.2001 § 22; Pierce v. Franklin Elec. Co., 1987 OK 34, ¶ 12, 737 P.2d 921 [Termination does not relieve an employer of the responsibility for the employee's medical care and disability payments. Superseded by statute on other grounds.]. See also, Ventris v. Express Personnel, 1999 OK CIV APP 25, ¶ 13, 978 P.2d 374 [Employee presenting himself to employer for light duty work but told that no such work is available may collect temporary total disability benefits.]. Abbott was not receiving temporary total disability when he was discharged pursuant to the employer's reduction in force. Such a termination, if based solely on absence from work, is prohibited. Title 85 0.8. 2001 § 5(B), see note 30, infra; Upton v. State ex rel. Dept. of Corrections, see note 1 at ¶ 12, supra.

      . Opinions released for publication by order of the Court of Civil Appeals, are persuasive only, and lack precedential effect. Rule 1.200, Supreme Court Rules, 12 0.$.2001, Ch. 15, App. 1.

      . The employer also finds support in extant jurisprudence. Specifically, Freeman v. Continental Baking Co., 212 Ga.App. 855, 443 S.E.2d 520-21 (1994) [Employee denied benefits after having been fired for failing a drug test]; Goodyear Tire Rubber Co. v. Watson, 219 Va. 830, 252 S.E.2d 310, 312 (1979) [Employee denied benefits after having been discharged for poor work performance and frequent absences.]. These cases differ on the facts from the situation presented here-in both Freeman and Watson, this note, supra, the employee was essentially discharged for cause.

      . Transcript of proceedings, July 5, 2001, Dennis Ray Abbott testifying in pertinent part at pp. 9-10:
      "... Q Would you have, if the ROF request hadn't been granted, would you have quit?
      A - No, sir.
      Q You would have kept doing the light duty?
      A Yes...."

      . Involving the same issue and the burden of proof relating to the offer of light duty opportunities, see, Cummings v. Armin Plastics, Own Risk, 2000 OK CIV APP 61, ¶ 16, 5 P.3d 1099; Fidler v. Walters Morgan Constr. Co., 1999 OK CIV APP 83, ¶ 16, 987 P.2d 457; Moss v. Affiliated Food Stores, Inc., 1999 OK CIV APP 51, ¶ 6, 982 P.2d 1089; Ventris v. Express Personnel, note 7, supra.

      . Baliles v. District of Columbia Dept. of Employment Servs., 728 A.2d 661, 665 (D.C.App.1999) [Employee cleared for job duties who voluntarily limits income through retirement is not entitled to temporary total disability benefits following retirement date.]; Amicola v. New York Telephone Co., 294 A.D.2d 621, 741 N.Y.S.2d 329-30 (Ct.App.2002) [Participation in early retirement incentive program rendered employee ineligible for workers' compensation benefits.].

      . Scalise Indus. v. Workers' Compensation Appeal Bd., 797 A.2d 399, 402 (Pa.2002) [Retirement decision based on limitations related to work-related injury will not preclude the award of workers' compensation benefits.]; State ex rel. Wagers v. Industrial Comm'n of Ohio, 93 Ohio St.3d 218, 754 N.E.2d 777, 780 (2001) [Temporary total disability compensation benefits payable if the employee does not abandon completely the job market.]; State ex rel. Baker v. Industrial Comm'n, of Ohio, 89 Ohio St.3d 376, 732 N.E.2d 355, 361 (2000) [To the same effect as Wagers, this note, supra.].

      . Phillips v. Duval County School Bd., 577 So.2d 630-31 (Fla.1991)

      . State ex rel. Liposchak v. Industrial Comm'n of Ohio, 73 Ohio St.3d 194, 652 N.E.2d 753-54 (1995), reconsideration denied, 74 Ohio St.3d 1410, 655 N.E.2d 188 (1995).

      . Capezzuti v. Glens Falls Hosp., 282 A.D.2d 808, 722 N.Y.S.2d 620-21 (2001).

      . Powers v. District of Columbia Dept. of Employment Servs., 566 A.2d 1068-69 (D.C.App.1989).

      . Harants v. United States Postal Serv., 130 F.3d 1466, 1468 (Fed.Cir.1997); Perlman v. United States, 203 Ct.Cl. 397, 490 F.2d 928, 931 (1974) [Where no real chance of reassignment exists, retirement involuntary.]; Missouri Div. of Employment Sec. v. Labor & Indust. Relations Comm'n of Missouri, 651 S.W.2d 145, 150 (Mo.1983); Morillo v. Director of Employment Sec., see note 1 at 413, supra; Wailuku Sugar Co. v. Agsalud, 65 Haw. 146, 648 P.2d 1107, 1111 (1982); Nielsen v. Employment Security Dept. of Washington, 93 Wash.App. 21, 966 P.2d 399, 407 (1998); Martell v. State of Florida Unemployment Appeals Comm'n, 654 So.2d 1203-04 (Fla.Ct.App.1995), review denied, 662 So.2d 934 (Fla.1995); Rice v. Arizona Dept. of Economic Sec., see note 1 at 1244; South Central Bell v. Louisiana Dept. of Labor, 527 So.2d 1113, 1116, writ denied, 532 So.2d 153 (La.1988); AT & T Information Sys., Inc. v. Department of Econ. Sec., 154 Ariz. 236, 741 P.2d 703, 705 (Ct.App.1987); Stanford v. Unemployment Ins. Appeals Bd., 147 Cal.App.3d 98, 195 Cal.Rptr. 1, 3-4 (1983); Barash v. Levine, 43 A.D.2d 778, 350 N.Y.S.2d 790 (1973); Westinghouse Elec. Corp. v. Unemployment Compensation Bd., 182 Pa.Super. 491, 128 A.2d 184, 186 (1956). Other situations involving an employee's determination to retire or leave the workforce have also been found not to terminate benefits. Scalise Indus. v. Workers' Compensation Appeal Bd., see note 13, supra; State ex rel. Wagers v. Industrial Comm'n of Ohio, see note 13, supra; State ex rel. Baker v. Industrial Comm'n of Ohio, see note 13, supra. See also, Oklahoma Employment Security Comm'n v. Board of Review, 1996 OK CIV APP 19, ¶ 2, 914 P.2d 1083 [Benefits were denied to a federal employee accepting early retirement. Nevertheless, the appellate court indicated that had the cause involved a situation where an actual reduction in force were involved, the result would have been in favor of the employee.]. See generally, Annot., "Eligibility for Unemployment Compensation of Employee who left Employment Based on Belief that Involuntary Discharge was Imminent," 79 ALRAth 528 (1990). But see, Torain v. United States Postal Serv., 83 F.3d 1420, 1422 (Fed.Cir.1996) [Decision to retire before announcement of reduction in force found voluntary.]; Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584, 587 (1975) [Decision to retire rather than to fight dismissal for cause found voluntary.]; Baliles v. District of Columbia Dept. of Employment Servs., see note 12, supra; Matter of Anderalli, 247 A.D.2d 652, 668 N.Y.S.2d 778, 780 (1998); Ortega v. Employment Security Dept., 90 Wash.App. 617, 953 P.2d 827, 831 (1998), review granted, 136 Wash.2d 1028, 972 P.2d 464 (1998); McArthur v. Borman's, Inc., 200 Mich.App. 686, 505 N.W.2d 32, 36 (1993); Robinson v. Department of Employment Security, 827 P.2d 250, 252 (Utah App.1992); Sievers v. Commonwealth, 124 Pa.Cmwlth. 52, 555 A.2d 260, 263 (1987), appeal granted, 518 Pa. 645, 542 A.2d 1373 (1988), aff'd, 520 Pa. 83, 551 A.2d 1057 (1989); Shea v. Hanna Mining Co., 397 N.W.2d 362, 368 (Minn.App.1986); Fisher v. Levine, see note 1 at 834.
      The Court notes that several of the cited cases involve unemployment benefits. These cases are likewise persuasive in the workers' compensation arena. CJS Co. v. Workers' Compensation Appeals Bd., 74 Cal.App.4th 294, 88 Cal.Rptr.2d 109 (1999). In Oklahoma, just as workers' compensation statutes are liberally construed in favor of the employes, see 117 and accompanying footnotes, infra, so are unemployment compensation statutes intended to protect employees from the evils associated with unemployment. Realty Mortgage & Sales Co. v. Oklahoma Employment Sec. Comm'n, 1945 OK 268, ¶ 10, 169 P.2d 761.

      . Morillo v. Director of Employment Sec., see note 1 at 413, supra; Nielsen v. Employment Security Dept. of Washington, see note 18, supra; South Central Bell v. Louisiana Dept. of Labor, see note 18, supra; AT & T Information Sys., Inc. v. Arizona Dept. of Econ. Sec., see note 18, supra.

      . Missouri Div. of Employment Sec. v. Labor & Indus. Relations Comm'n, see note 18, supra; Morillo v. Director of the Division of Employment Security, see note 1 at 413, supra; Nielsen v. Employment Security Dept. of Washington, see note 18, supra; Westinghouse Elec. Corp. v. Unemployment Compensation Bd., see note 18, supra.

      . Missouri Div. of Employment Sec. v. Labor & Indust. Relations Comm'n of Missouri, see note 18, supra; Nielsen v. Employment Security Dept. of Washington, see note 18, supra.

      . Rice v. Arizona Dept. of Economic Sec., see note 1 at 1244.

      . South Central Bell v. Louisiana Dept. of Labor, see note 18, supra.

      . Rice v. Arizona Dept. of Economic Sec., see note 1 at 1244.

      . Nielsen v. Employment Security Dept. of Washington, see note 18, supra; Stanford v. California Unemployment Ins. Appeals Bd., see note 18, supra. See also, Westinghouse Elec. Corp. v. Unemployment Compensation Bd., note 18, supra.

      . See, T7 and accompanying footnotes, supra.

      . Pierce v. Franklin Elec. Co., see note 7, supra [Termination does not relieve an employer of the responsibility for the employee's medical care and disability payments.]; Conlin Co. v. Guckian, 1933 OK 276, ¶ -, 21 P.2d 740 [Employee laid off entitled to consideration of degree to which disability related to employment or pre-existing physical condition.]; Magnolia Petroleum Co. v. Bunnell, 1932 OK 400, ¶ 8, 11 P.2d 460 [Employee laid off or discharged entitled to workers' compensation benefits in accordance with workers' diminution in earning capacity.]; Forrest E. Gilmore Co. v. Shipley, 1932 OK 370, ¶ 12, 11 P.2d 474 [To the same effect as Bunnell, this note, supral; Magnolia Petroleum Co. v. Spoon, 1932 OK 125, ¶ 10, 8 P.2d 61 [Employee struck in head while in course of employment entitled to workers' compensation benefits after having been laid off by employer.]; Atlantic Oil Producing Co. v. Malone, 1931 OK 458, ¶ 11, 3 P.2d 874 [Employee laid off because of inability to do work entitled to workers' compensation benefits.]; Centrilift v. Evans, 1995 OK CIV APP 159, ¶ 22, 915 P.2d 391 [An employee filing workers' compensation claim after being laid off by employer was entitled to temporary total disability benefits.]. There are situations when an employee who has quit his position may continue to be entitled to workers' compensation benefits. Leonhardt Enterprises v. Houseman, 1977 OK 51, ¶ 5, 562 P.2d 515 [Employee continues to be covered by workers' compensation statutes for reasonable time after quitting position, i.e. period sufficient to gather belongings and exit employer's premises.]. Further, even a termination for cause following a work-related injury may not result in the termination of benefits. Guico v. Excel Corp., 260 Neb. 712, 619 N.W.2d 470, 478 (2000) [Employee discharged for cause day following work-related injury entitled to workers' compensation benefits.].

      . Title 85 0.98.2001 § 11 provides in pertinent part:
      "A. Every employer subject to the provisions of the Workers' Compensation Act shall pay, or provide as required by the Workers' Compensation Act, compensation according to the schedules of the Workers' Compensation Act for the disability or death of an employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of employment, without regard to fault as a cause of such injury, and in the event of disability only, except as follows:
      1. An injury occasioned by the willful intention of the injured employee to bring about injury to himself or another;
      2. An injury resulting directly from the willful failure of the injured employee to use a guard or protection against accident furnished for use pursuant to any statute or by order of the Commissioner of Labor;
      3. An injury resulting directly from the use or abuse of alcohol, illegal drugs or chemicals, or the abuse of prescription drugs; provided, this paragraph shall only apply when the use or abuse rendered the employee incapable of acting in the manner in which an ordinarily prudent and cautious person, in full possession of his or her faculties, and using reasonable care, would have acted at the time of the injury. For the purposes of this paragraph, post-accident alcohol or drug testing results shall be admissible as evidence; and
      4. Except for innocent victims, an injury caused by a prank, horseplay, or similar willful or intentional behavior.
      B. No person, firm, partnership, corporation, or other entity may discharge any employee during a period of temporary total disability solely on the basis of absence from work...."

      . The use of "shall" generally signifies a legislative command. Davis v. GHS Health Maintenance, 2001 OK 3, ¶ 9, 22 P.3d 1204; United States through Farmers Home Admin. v. Hobbs, 1996 OK 77, ¶ 7, 921 P.2d 338; State ex rel. Macy v. Freeman, 1991 OK 59, ¶ 8, 814 P.2d 147. Nevertheless, the term can be permissive. Minie v. Hudson, 1997 OK 26, ¶ 7, 934 P.2d 1082; Texaco, Inc. v. City of Oklahoma City, 1980 OK 169, ¶ 9, 619 P.2d 869.

      . Title 85 0.$.2001 § 5 provides in pertinent part:
      "A. No person, firm, partnership, corporation, or other entity may discharge, or, except for non-payment of premium, terminate any group health insurance of any employee because the employee has in good faith:
      1. Filed a claim;
      2. Retained a lawyer for representation regarding a claim;
      3. Instituted or caused to be instituted any proceeding under the provisions of this title; or
      4. Testified or is about to testify in any proceeding under the provisions of this title which relates to the employee's past or present employment. ..."

      . Phillips v. Duke Manufacturing, Inc., 1999 OK 25, ¶ 6, 980 P.2d 137; Garrison v. Bechtel Corp., 1995 OK 2, ¶ 17, 889 P.2d 273; Buckner v. General Motors Corp., 1988 OK 73, ¶ 18, 760 P.2d 803; Special Indem. Fund v. Treadwell, 1984 OK 91, ¶ 11, 693 P.2d 608; Note, "Workers' Compensation-Retaliatory Dischharge-The Legislative Response to Dockery v. Lampart Table Co.," 58 N.C.L.Rev. 629, 640 (1980).

      . Harants v. United States Postal Serv., see note 18, supra; Perlman v. United States, see note 18, supra; Missouri Div. of Employment Sec. v. Labor & Indust. Relations Comm'n of Missouri, see note 18, supra; Morillo v. Director of Employment Sec., see note 1 at 413, supra; Wailuku Sugar Co. v. Agsalud, see note 18, supra; Nielsen v. Employment Security Dept. of Washington, see note 18, supra; Martell v. State of Florida Unemployment Appeals Comm'n, see note 18, supra; Rice v. Arizona Dept. of Economic Sec., see note 1 at 1244; South Central Bell v. Louisiana Dept. of Labor, see note 18, supra; AT & T Information Sys., Inc. v. Department of Econ. Sec., see note 18, supra; Stanford v. Unemployment Ins. Appeals Bd., see note 18, supra; Barash v. Levine, see note 18, supra; Westinghouse Elec. Corp. v. Unemployment Compensation Bd., see note 18, supra. See also, Scalise Indus. v. Workers' Compensation Appeal Bd., note 13, supra; State ex rel. Wagers v. Industrial Comm'n of Ohio, note 13, supra; State ex rel. Baker v. Industrial Comm'n of Ohio, note 13, supra; Oklahoma Employment Security Comm'n v. Board of Review, note 18, supra.

      . Title 85 0.$.2001 § 5, see note 30, supra.

      . See Brooks v. A.A. Davis & Co. et al, 1926 OK 965, 124 Okl. 140, 254 P. 66, 67, whose syllabus states: ''The Workmen's Compensation Law [now the Workers' Compensation Act] ... is in derogation of the common law; and common-law rules cannot be invoked either to enforce or defeat a claim for compensation asserted under the act' (emphasis supplied). Were the court persuaded today to sustain the trial tribunal's order that denies the claimant's quest for the full amount of his healing-period disability, its pronouncement would rightly deserve condemnation for placing the court's imprimatur on an extra-statutory forfeiture of a worker's right to legislatively authorized compensation benefits.


source: Caselaw Access Project

author: DONNELL, District Judge.

license: Public Domain

text:
    2002 WY 176
    Jeffrey Allen METZER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-21.
    Supreme Court of Wyoming.
    Dec. 10, 2002.

      Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel, Representing Appellant. Argument by Mr. Roden.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Joseph Cole, Deputy Carbon County and Prosecuting Attorney, Special Assistant Attorney General, Representing Appellee. Argument by Mr. Cole.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ, and DONNELL, D.J.
   DONNELL, District Judge.

[11] Jeffrey Metzer appeals his convictions on two counts of aggravated burglary in violation of Wyo. Stat. Aun. § 6-8-301(a) and (c)) (LexisNexis 2001). Mr. Metzer asserts that there was not sufficient evidence to con-viet him for aggravated burglary. He further argues he was denied a fair trial by virtue of the State's failure to disclose a witness in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and related cases.

[12] We affirm.

ISSUES

[18] Appellant raises two issues on this appeal:

1. [Was] there sufficient evidence to con-viet appellant of two counts of aggravated burglary?
2. [Was] Appellant denied a fair trial by the State's failure to disclose a witness and information pertaining to other possible suspects in violation of Brandy [sic] v. Maryland?

The State phrases the second issue somewhat differently:

Was Appellant denied a fair trial by the State's failure to provide him a copy of a police report prior to trial?

FACTS

[T4] On May 2, 2001 at about 5:00 p.m., Darlene Lovato returned to her home in Rawlins. It was snowing at the time, and she noticed fresh footprints on her front porch. She also noticed that the house was unusually cold when she entered. This drew her attention to an open back door where she observed a broken lock. Further seeing her bedroom was in a state of disarray, she retreated to her car and called police.

[15] Officer Mike Rose arrived on the scene and observed what he described as boot-type footprints near the back door, approximately size 11. He followed the tracks but eventually lost them on wet pavement. He did not photograph or otherwise preserve this evidence. An inventory of Ms. Lovato's property revealed that she was missing about $80 from a bow! in her living room, a moneybag containing some $300 in $2 bills, some silver coins, and a .38 caliber Colt revolver and nylon holster.

[16] On the following day at about 11:45 a.m., John France left his home in Rawlins to go to lunch. When he returned at about 1:80 pm. he saw water on a hallway floor and a music box on the bedroom floor. The doors to the medicine cabinet in the bathroom and the linen closet were also standing open. Onee again, police were called and footprints of approximately size 9 to 11 were observed in the snow. Missing from the France home were two $1 bills and a .22 caliber Browning semiautomatic pistol.

[T7] Local merchants were contacted by police and asked to keep an eye out for anyone passing $2 bills. On May 6 a female customer passed a $2 bill and three silver dimes at a local Mini Mart. An alert clerk took down the license number and a description of the car, and at about noon on that day Appellant, while driving the subject automobile, was stopped by police. Metzer admitted that his driver's license was suspended and was asked to step out of the car. He was then asked whether or not he had anything in his pockets, whereupon he produced what was later determined to be 60 $2 bills. The officer suggested a detective might like to visit with him, at which point Mr. Metzer fled. He was quickly apprehended and arrested. The money and his boots, Nike lug-soled size 10, were taken into evidence. A subsequent interview of Kristen Setright, the owner of the car Metzer had been driving, confirmed that she had passed the $2 bill and silver coins at the Mini Mart. A consensual search of her house turned up several silver dimes on the living room floor but no other incriminating evidence.

[18] On June 20, 2001 a local fisherman found a .22 caliber Browning semiautomatic pistol in shallow water on the north side of Teton Reservoir, a reservoir south of Raw-lins. Mr. France identified the weapon as his. On July 21, 2001 children located a .38 caliber Colt revolver in a nylon holster, again in shallow water at Teton Reservoir about 100 yards from where Mr. France's pistol was found. Ms. Lovato identified this gun as her missing revolver. Both were rusty, indicating that they had been in the water for some time. No fingerprints were recovered from the guns or from any of the bills found in Appellant's possession.

[149] Trial was conducted in August of 2001. There was no real issue with respect to any of the elements of aggravated burglary except for the identity of the burglar. Testimony on both counts indicated that the houses in question had been entered without authority of the owners on the dates and at the places alleged; that property had been stolen (thus inferring intent to commit laree-ny), and; that the burglar had become armed with a deadly weapon in each case, those weapons being the .22 caliber Browning and the .38 caliber Colt.

[1 10] Testimony showed that Ms. Lovato had been relieved of 150 $2 bills and some silver coins, including dimes, in the burglary, and that Appellant had been apprehended with 60 $2 bills in his pocket only four days later. The evidence showed that his girlfriend passed a $2 bill and three silver dimes on the same day and that $2 bills and silver coins were not commonly tendered at the local Mini-Mart. Testimony also showed that Appellant attempted to flee when the issue of a detective came up, thus implying guilty knowledge. Appellant's boots and photographs of the tracks at the France burglary were provided to the jury for comparison and, while the footprint evidence at the Lovato burglary was less conclusive, the evi-denee found there did not exclude Appellant as the burglar. Also provided was evidence by which the jury might conclude both burglaries had been committed by the same person. Most compelling were the two handguns, stolen from private homes during daylight hours within a day of each other and located in a reservoir within 100 yards of each other.

[111] Appellant testified on his own behalf. He admitted that he had been out of work and low on funds at the time of the burglaries. He explained that he had received the $2 bills in payment for a guitar he sold in Oregon about 18 months earlier to a man he barely knew by the name of Justin. He said that he had been at Ms. Setright's house packing for a move to Casper on May 2 and 8. Finally, he indicated that he ran from the police because of his suspended driver's license.

[112] Detective Ford of the Rawlins Police Department also testified at trial, and it was through him that Appellant learned of certain additional information he considers critical. Detective Ford disclosed at trial that two other people were known to have passed $2 bills in Rawlins during the time at issue, one of them being a Mr. Rudy Maki-nen. The detective had interviewed Mr. Makinen and eliminated him, in his own mind, as a suspect. However, no report of this interview was delivered to the defense prior to the trial.

[113] The State, realizing the problem here, immediately located Mr. Makinen and made him available for interview by the defense. He was then called to testify by the defense. He said he had purchased ten $2 bills from a Cheyenne railroader at George's Bar and Grill in Rawlins. He believed they were all new bills from 1976 and were sequentially numbered. Appellant moved for a mistrial on the grounds that the State had improperly withheld evidence. The motion for mistrial was denied. There is no indication that the defense requested a recess or additional time to investigate or try to learn the identity of the unknown railroader.

[T14] Defendant was convicted on both counts of aggravated burglary and sentenced on November 19, 2001 to concurrent terms of five to seven years each.

DISCUSSION

[115] Metzer first alleges the evi-denee was not sufficient to sustain his convictions.

When reviewing a sufficiency of the evidence claim in a criminal case, we must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. Jennings v. State, 806 P.2d 1299, 1302 (Wyo.1991) (quoting Munson v. State, 770 P.2d 1093, 1095 (Wyo.1989)). We do not consider conflicting evidence presented by the unsuccessful party, and afford every favorable inference which may be reasonably and fairly drawn from the successful party's evidence. Bloomquist v. State, 914 P.2d 812, 824 (Wyo.1996).

Williams v. State, 986 P.2d 855, 857 (Wyo.1999). The court does not substitute its judgment for that of the jury but rather determines only if a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury did. Bloomquist v. State, 914 P.2d 812, 824 (Wyo.1996).

[416] The following evidence concerning the identity of the burglar was presented to the jury in this matter:

1. Two burglaries of private homes occurred during daylight hours. This is not a common event in Rawlins, yet these burglaries occurred only one day apart. Firearms and money, including in one case numerous $2 bills and silver coins, were stolen in each burglary.

2. Footprints or tracks similar to the prints left by Appellant's boots were observed at each scene.

8. The stolen firearms were located in a reservoir within 100 yards of each other, and both had apparently been in the water for quite some time.

4. Appellant's girifriend was observed passing a $2 bill and silver dimes only four days after the first burglary, and this was quite uncommon. Appellant was captured on the same day with 60 $2 bills in his possession. Additional silver coins were found on the floor at his girlfriend's residence. The $2 bills in Appellant's possession were not new and were not sequentially numbered.

5. Appellant fled police when he was advised that a detective would like to speak to him.

6. Although Appellant indicated that he had been painting and packing for two days before he was arrested, no sign of either was observed at his residence. He was unable to produce, or even provide the full name of, the individual who allegedly paid him in $2 bills for his guitar, and he did not explain why he was walking around with this money in his pocket some 18 months after he obtained it.

7. Appellant admitted he was nearly broke and unemployed at the time of the burglaries, thus providing a motive for same.

[117] Appellant points to certain "missing" evidentiary items such as the lack of fingerprints, and he offers numerous alternative explanations for the presence of the firearms in the reservoir. That is all well and good, but it is not the point. We do not consider conflicting evidence offered by Appellant, and we consider all of the evidence in a light most favorable to the prevailing party, in this case the State. Civen the undisputed facts that Appellant was in possession of a large number of $2 bills, an unusual currency to say the least, and that silver coins were discovered strewn on the floor at his girlfriend's house; that his boots left a print similar to those found at both scenes; that the modus operandi in both crimes was similar; that both firearms were recovered in the same location, thus indicating they were probably stolen by the same person; that Appellant fled from the police; that he provided no verification of his alibi; that the physical evidence actually contradicted his story; and that Appellant himself provided the motivation for these erimes, we conclude that the evidence was such that a reasonable jury might fairly conclude beyond a reasonable doubt, as it did here, that both of the burglaries were committed by the same individual and that Appellant was that person.

[T18] Appellant also argues that he was deprived of a fair trial when the State failed to disclose evidence favorable to his defense, that being the existence and identity of Mr. Makinen. The State does not here dispute the fact that it failed to provide the evidence at issue, albeit mistakenly. That is of no moment. "In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court set forth the basic principle that the prosecution violates due process by suppressing favorable evidence that is material either to the guilt or to the punishment of the accused, "irrespective of the good faith or bad faith of the prosecution." Davis v. State, 2002 WY 88, ¶ 14, 47 P.3d 981 ¶ 14 (Wyo.2002).

[¥19] The State argues, however, that there was no prejudice to Appellant because it promptly made Mr. Makinen available for interview, and Appellant called him to testify. The State points out as well that, while Appellant moved for a mistrial, he did not ask for additional time to investigate or to interview Makinen. As in Davis:

We must determine, therefore, whether the government's failure to disclose evidence favorable to the defendant deprived the defendant of a fair trial under Brady by considering whether the "favorable evi-denee could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 290, 119 S.Ct. at 1952 (quoting Kyles, 514 U.S. at 435, 115 S.Ct. at 1566). In order to establish a Brady violation, a defendant must demonstrate that the prosecution suppressed evidence, the evidence was favorable to the defendant, and the evidence was material Helm v. State, 1 P.3d 635, 639 (Wyo.2000).

Davis I 16.

[120] Evidence is "material" if:

"its suppression undermines confidence in the outcome of the trial." Bagley, 473 U.S. at 678, 105 S.Ct. at 3381. In Kyles, the Court further reviewed the meaning of materiality as it relates to the final result of the trial:
Bagley's touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial."

Davis 119. (Emphasis in original.) (Citations omitted.)

[121] Defendant's theory at trial was to the effect that someone else committed the burglaries, and evidence that someone else had been passing $2 bills in Rawlins would initially appear to be at least of significant interest. However, this was one of those leads that, in the end, simply did not pan out. There is no doubt that the State had an obligation to produce the evidence as part of the court's discovery order, and it would certainly have been better if this had been done in a timely manner. However, the State promptly produced Mr. Makinen when his name came up at trial, and the defense had an opportunity to interview him at that time. Apparently, sufficient time was afforded the defense as no recess was requested. More importantly, Mr. Makinen testified at trial, and the jury had the opportunity to hear what he had to offer. His testimony indicated that the bills he purchased were new and sequentially numbered, unlike Ms. Lovato's bills, which were used and had been collected over a period of time. While he could not identify the railroader from whom he bought the bills, there is no indication in the record that Appellant requested additional time to attempt to locate this person or that any new evidence concerning his identity has been discovered even now. The jury had a full opportunity to hear Mr. Makinen's testimony, to evaluate his credibility, and to weigh it against Appellant's argument that it was just as likely that the unknown railroader had committed the crimes as Appellant. They rejected this assertion.

[122] We conclude that Appellant was not denied a fair trial because material exculpatory evidence was withheld. Even had the evidence been entirely suppressed, we would be reluctant to conclude that it was material, as it did not call into question the physical evidence and uncontested facts upon which the jury clearly relied. Hensley v. State, 2002 WY 96, 48 P.3d 1099 (Wyo.2002). Here, the jury actually heard the evidence at issue, and they rejected it. Appellant speculates that there might have been other more persuasive evidence had the State revealed Mak-inen's evidence earlier, but there is nothing in the record to support such a conclusion, and Appellant made no request for additional time to investigate when he had the opportunity, We will not now join Appellant in this idle speculation.

[4123] The judgment and sentence of the district court are affirmed in all respects.

      . We note that the evidence at issue was not completely suppressed, rather it was provided late. Nevertheless, we consider the matter at the outset as though the jury never heard Mr. Maki-nen's testimony.


author: KITE, Justice.

text:
    2002 WY 177
    Rodney Dean BLAKEMAN, Appellant (Defendant), v. The STATE Of Wyoming, Appellee (Plaintiff).
    Nos. 01-130, 02-26.
    Supreme Court of Wyoming.
    Dec. 11, 2002.
    Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument

   KITE, Justice.

[11] In this consolidated appeal, Appellant Rodney Dean Blakeman challenges the sentences the district court imposed after he pleaded guilty to six counts of sexual assault against his daughters. This court holds the district court properly applied the enhancement provisions of the statute pertaining to multiple sexual assaults and did not violate Mr. Blakeman's right to be free from double jeopardy. In addition, we hold Mr. Blake-man's sentences were not disproportionately long.

[12] We affirm.

ISSUES

[13] In Case No. 01-130, Mr. Blakeman presents the following issues:

I. Did the trial court violate Appellant's right to be free from double jeopardy in its sentencing of Appellant?
II. Did the trial court err in enhancing each of Appellant's sentences?
III. Did the trial court err in sentencing Appellant to disproportionate sentences?

In Case No. 02-26, Mr. Blakeman articulates a single issue in his appeal of the district court's denial of his motion to correct an illegal sentence: "Did the trial court err in denying Appellant's motion to correct illegal sentence?" - Appellee State of Wyoming combined its responses to both of Mr. Blake-man's cases in a single brief and stated the following issue: "Did the district court abuse its discretion in imposing sentence?"

FACTS

[14] Mr. Blakeman pleaded guilty to six counts of sexual assault against his two daughters, including: one count of attempted second-degree sexual assault under Wyo. Stat. Ann. §§ 6-1-301(a)(G) and 6-2-303(a)(vi) (LexisNexis 2001); two counts of first-degree sexual assault under Wyo. Stat. Ann. § 6-2-302(a)(i) (LexisNexis 2001); and three counts of second-degree sexual assault under § 6-2-303(a)(vi). The parties to the plea agreement expressly acknowledged they did not have an understanding as to sentencing.

[15] At the sentencing hearing, the district court considered the entire record in the case, the presentence investigation report, Mr. Blakeman's objections to that report, the victims' statements of the impact their father's assaults had upon them, Mr. Blake-man's statement, and counsel's arguments. The district court then applied the enhanced penalty provisions of Wyo. Stat. Ann. § 6-2-306 (LexisNexis 2001) and sentenced Mr. Blakeman to serve six consecutive prison sentences of thirty years to life. Mr. Blake-man filed a timely notice of appeal.

[16] While his appeal was pending, Mr. Blakeman filed a motion to correct an illegal sentence in the district court. The district court denied his motion, and Mr. Blakeman appealed. Because Mr. Blakeman asserted the same arguments in both appeals, the Wyoming Supreme Court consolidated the cases for response by the state and for decision.

DISCUSSION

[17] In both cases currently before this court, Mr. Blakeman contends the district court erred by enhancing his sentence under § 6-2-306(c) on each count. He claims that, by applying the extended punishment provision of the statute to each count, the district court violated his constitutional right to be free from double jeopardy and also incorrectly interpreted the language of § 6-2-806(c).

[18] Section 6-2-8306 states:

(a) An actor convicted of sexual assault who does not qualify under the criteria of subsection (b) or (d) of this section shall be punished as follows:
( Sexual assault in the first degree is a felony punishable by imprisonment for not less than five (5) years nor more than fifty (50) years;
(i) Sexual assault in the second degree is a felony punishable by imprisonment for not more than twenty (20) years;
(i) Sexual assault in the third degree is a felony punishable by imprisonment for not more than fifteen (15) years;
(iv) Repealed by Laws 1997, ch. 185, § 2, eff. July 1, 1997.
(b) An actor who is convicted of sexual assault and who does not qualify under the criteria of subsection (d) of this section shall be punished by the extended terms of subsection (c) of this section if:
(i) He is being sentenced for two (2) or more separate acts of sexual assault in the first or second degree;
(ii) He previously has been convicted of any crime containing the same or similar elements as the crimes defined in W.S. 6-2-302 or 6-2-308.
(c) An actor convicted of sexual assault who qualifies under the criteria of subsection (b) of this section shall be punished as follows:
(i) Sexual assault in the first or second degree is a felony punishable by imprisonment for not less than five (5) years or for life; '
() Sexual assault in the third degree is a felony punishable by imprisonment for not more than twenty (20) years;
(iii) Repealed by Laws 1997, ch. 185, § 2, eff, July 1, 1997.
(d) An actor who is convicted of sexual assault shall be punished by life imprisonment without parole if the actor has two (2) or more previous convictions for any of the following designated offenses, which convictions resulted from charges separately brought and which arose out of separate occurrences in this state or elsewhere:
(i) A crime defined in W.S. 6-2-302 through 6-2-804 or a criminal statute containing the same or similar elements as a crime defined by W.S. 6-2-3802 through 6-2-304; '
(H) Repealed by Laws 1997, ch. 135, § 2, eff. July 1, 1997[;] ~
(ii) A conviction under W.S. 14-3-105(a), or a criminal statute containing the same or similar elements as the crime defined by W.S. 14-3-105(a), if the cireum-stances of the crime involved a victim who was under the age of sixteen (16) at the time of the offense and an actor who was at least four (4) years older than the vie-tim.

[19] In Deloge v. State, 2002 WY 155, 55 P.3d 1233 (Wyo.2002), we addressed arguments identical to those presented by Mr. Blakeman in the cases at bar. Like Mr. Blakeman, Mr. DeLoge argued that the district court subjected him to double jeopardy by using the same offense to sentence him for the underlying offense and to enhance his punishment. We held that use of the offenses in this manner does not violate a defendant's right to be free from double jeopardy. Deloge, 2002 WY 155, ¶ 12.

[§10] Mr. Blakeman also claims the district court misconstrued § 6-2-3806 when it enhanced each of his convictions. Again, this issue was addressed in DeLoge:

When we apply the applicable rules of statutory construction to this statute, we are compelled to conclude that the legislative intent is clear that a defendant who is being sentenced for two or more separate acts of sexual assault in the second degree may be sentenced to a life sentence for each separate act. Stambaugh v. State, 613 P.2d 1237, 1241-43 (Wyo.1980).

Id. at ¶ 10, 55 P.3d 1233.

[T11] Finally, Mr. Blakeman contends the district court erred by imposing sentences which were disproportionately long when analyzed in accordance with the criteria articulated in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In Solem, the United States Supreme Court outlined the factors to be used in determining, under the Eighth Amendment to the United States Constitution, whether a sentence is disproportionately long:

In sum, a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (i) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

463 U.S. at 292, 103 S.Ct. 3001. Nevertheless, as we acknowledged in Oakley v. State, 715 P.2d 1374, 1379 (Wyo.1986):

We will not engage in a lengthy analysis under all three of the Solem criteria, including a consideration of the sentences imposed on similarly situated defendants in this and other jurisdictions, except in cases where the mode of punishment is unusual or where the relative length of sentence to imprisonment is extreme when compared to the gravity of the offense (the first of the Solem criteria).

See also Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., with whom Souter, J., joined, concurring in part & concurring in the judgment); Sampsell v. State, 2001 WY 12, ¶ 10, 17 P.3d 724, ¶ 10 (Wyo.2001).

[T12] Applying the rationale articulated in Oakley, we conclude it is not necessary in these cases to engage in a complete analysis of the Solem factors. The mode of punishment imposed-imprisoning Mr. Blakeman-was not unusual. Moreover, we do not believe that, in light of the egregious nature of the crimes Mr. Blakeman committed, the relative lengths of his sentences were extreme. Mr. Blakeman subjected his two daughters to continual sexual abuse from the time they were approximately four years of age until they were in their late teenage years. We need not further victimize the girls by describing in detail the horrific crimes their father inflicted upon them. Suffice it to say that Mr. Blakeman subjected his daughters to many different types of sexual assaults over a period of many years and, on occasion, resorted to violence to secure their submission to his reprehensible advances. The sentences he received were appropriate in light of the gravity of his actions.

CONCLUSION

[113] The district court properly applied the enhancement provisions of § 6-2-3806 and did not violate Mr. Blakeman's right to be free from double jeopardy. In addition, Mr. Blakeman's sentences were not disproportionately long.

[114] Affirmed.


text:
    2002 WY 178
    Walter B. MIECH, Appellant (Plaintiff), v. SHERIDAN COUNTY, WYOMING, Appellee (Defendant).
    No. 02-16.
    Supreme Court of Wyoming.
    Dec. 11, 2002.

      Donald E. Miller of Graves, Miller & Kingston, P.C., Cheyenne, Wyoming, Representing Appellant.
    Roger E. Shumate of Murane & Bostwick, LLC, Casper, Wyoming, Representing Ap-pellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   KITE, Justice.

[T1] This case comes before the court on the following certified question from the United States District Court for the District of Wyoming:

Whether the holding in Brodie v. General Chemical Corp., 934 P.2d 1263 (Wyo.1997), requiring additional consideration when an employer modifies an employment contract implied from an employee handbook, applies when a newly-elected governing body modifies personnel policies to restore at-will status?

We answer the certified question as follows:

(1) The holding in Brodie v. General Chemical Corporation, 934 P.2d 1263 (Wyo.1997), applies when a newly elected governing body modifies personnel policies to restore at-will status if a showing has been made that the employment contract implied from an employee handbook was justified by necessity and benefit to the governing body at the time the contract was made. If that showing has been made, the new governing body eannot void the contract under Mariano & Associates, P.C. v. Board of County Commissioners of County of Sublette, 737 P.2d 323 (Wyo.1987), and the usual rules of employment contract law apply, including the Brodie requirement that additional consideration must be provided to effectively modify an implied employment contract.
(2) Conversely, the holding in Brodie does not apply when a newly elected governing body modifies personnel policies to restore at-will status if there has been no showing that the employment contract implied from an employee handbook was justified by necessity and benefit to the governing body at the time the contract was made. If no such showing is made, the new governing body can void the contract under Mariano, and the Brodie requirement of additional consideration does not apply.

FACTS

[12] In a W.RAP. 11 certification of a question of law, we rely upon the facts presented by the certifying court. Kaycee Land and Livestock v. Flahive, 2002 WY 73, ¶ 3, 46 P.3d 323, ¶ 3 (Wyo.2002). The Certification Order (footnote omitted) contains the following statement of facts relevant to the certified question:

From 1983 until June 830, 1999, [Mr. Miech] was employed as a fire fighter in the Sheridan County Fire Department. [His] position with the Sheridan County Fire Department was eliminated because fire and emergency medical services in Sheridan County and the City of Sheridan were consolidated by agreement. [Mr. Miech] was given the opportunity to be assigned to work for the City of Sheridan Fire Department but declined to pursue this opportunity for personal reasons.
Since 1980, the Board of County Commissioners of Sheridan County has revised the 1980 personnel policies on numerous occasions. The most recent revision to the policies occurred on March 22, 1999. As a result, Sheridan County maintained that on the effective date of [Mr. Miech's] termination, the March 22, 1999, personnel policy was the policy applicable to [Mr. Miech's] employment. In any event, because of previous litigation leaving unresolved questions regarding the applicability of the 1980 personnel policies, Sheridan County agreed to provide [Mr. Miech] the administrative remedies created by the 1980 personnel policies at the time of his termination.
In his complaint against Sheridan County, [Mr.] Micch alleged causes of action for violation of due process rights, negligence and breach of implied contract. [Mr. Miech] contends that he had a protected property interest in continued employment with Sheridan County and that this property right was terminated without due process. The claimed source of his asserted property interest is an employment contract implied from the 1980 Personnel Policies and Procedures Manual for Sheridan County, Wyoming. [Mr. Miech's] breach of contract claim is based on [Sheridan County's] alleged "failure to abide by and follow the terms of its contract of employment with [Mr. Miech] as contained within the 1980 personnel policy."
[Sheridan County] maintains that the 1980 personnel policies were not in effect when [Mr. Miech] was terminated, and the subsequent revisions to such policies clearly state that county employees are at-will and create no implied contract of employment. Therefore, [Sheridan County] argues, [Mr. Miech] had no protected property interest in his employment and there is no basis for the breach of contract claim. [Mr. Miech] contends that none of the revisions to the 1980 personnel policies are valid as to him because he was not given consideration for the changes, while [Sheridan County] contends that a newly-elected governing body can revise personnel policies upon their election without the consideration required by Brodie.
Following a- hearing on [Sheridan County's) Motion for Summary Judgment, this Court dismissed [Mr. Miech's] due process claim finding that, even assuming he had a property interest in continued employment pursuant to the 1980 personnel rules, [Mr. Miech] was not deprived of due process. The Court reserved judgment on [(Mr. Miech's] breach of contract claim pending the Wyoming Supreme Court's answer to the question certified herein.

DISCUSSION

[13] Much of the discussion, and the outcome, in this case hinges on two Wyoming cases: Mariano, 737 P.2d 323, and Brodie, 934 P.2d 1263. In Mariano, the court held that a newly elected governing body may challenge a government contract entered into by, and extending beyond the term of office of, the preceding governing body if no showing is made that the contract was necessary and of benefit to the governing body at the time the contract was made. In Brodie, a case involving a contract with a private rather than governmental employer, the court held that additional consideration must be provided to modify a "for cause" implied employment contract to restore at-will status.

[T4] The question we are asked to decide is whether the holding in Brodie applies in the context of government employment when a newly constituted governing body modifies an existing implied employment contract to restore at-will status. In other words, is a newly constituted governing body required to provide additional consideration in order to effectively modify an existing employment contract? With this background in mind, we turn to the parties' contentions.

[15] Walter Miech asserts the personnel policies provided to him when he began his employment with Sheridan County created an implied "for cause" employment contract which was still in effect at the time the county eliminated his position. He contends the newly elected county officials' subsequent efforts to revise the implied contract were not effective because additional consideration did not support the revisions as Brodie requires. Mr. Miech also contends he was a nonadministrative, nonessential, nonsupervi-sory employee; Mariano does not apply to employees in that category; and, therefore, newly elected county officials could not void his contract.

[T6] Sheridan County asserts that, under Mariano, a newly elected governing body may modify personnel policies, including "for cause" employment contracts implied from employee handbooks, to restore at-will employment without providing additional consideration. The county elaims subsequent county officials effectively modified any employment contract implied from the handbook provided to Mr. Miech when he was hired to restore at-will employment. Under the county's theory, Mr. Miech was an at-will employee when his position was eliminated, and he had no right to continued employment. The county further contends Mr. Miech's argument that he was among a class of employees to which Mariano does not apply goes beyond the scope of the certified question. |

[17] We begin our consideration of the certified question with a careful examination of the court's holding in Mariano. The court held:

[Slubject to only applicable state statutes as specifically applied, any contract with a unit of government of the state of Wyoming which extends beyond the term of office of the governmental decisionmakers . can be subject to challenge if, in consideration of the facts and cireumstances, the necessity and benefit to the governmental unit did not justify the extended term when the agreement was made.

737 P.2d at 329. Thus, we determine on a case-by-case basis whether a contract is voidable under Mariano according to the particular facts and cireumstances, and that determination depends upon whether a contract extending beyond the term of the contracting authority was justified by governmental necessity and benefit at the time the contract was made. The party seeking to enforce the contract has the burden of proving the extended contract term was necessary and of benefit to the governing body at the time the contract was made. 737 P.2d at 330. The court applied these standards in Mariano to hold a two-year contract for the performance of auditing services was voidable. Id. While suggesting some possible evidentiary seenar-ios which might satisfy the required showing, the court found on the evidence presented that the accounting firm failed to meet its burden of proving benefit or necessity justifying the two-year contract term. 737 P.2d at 330-31. Thus, Mariano's holding that the contract was voidable turned on a failure of proof.

[T8] Relying on Mariano, the court in Keabler v. City of Riverton, 808 P.2d 205, 207 (Wyo.1991), likewise held a new city administration could void a contract based upon a failure of proof. In the contract at issue, the city promised to provide insurance benefits to city employees. A subsequent administration withdrew the promise of insurance benefits. The court held the employees failed to make an adequate showing that the promise to provide insurance was reasonably necessary or of definable advantage to the city. Addressing the employees' contention that they held key positions with the city and the contract promoted a stable work force, the court stated:

While a secure, stable, and fully insured work force is beneficial to the City, the employees fall short in presenting a material fact to indicate that providing them with insurance was reasonably necessary or of a definable advantage to the City. In any event, the mere conclusory statements made by counsel are not competent evidence necessary to carry the burden to preclude summary judgment.

Keabler, 808 P.2d at 207.

[19] More recently, in Jewell v. North Big Horn Hospital District, 953 P.2d 185 (Wyo.1998), one of the issues the court was asked to decide was the very issue presented in this case-whether the right of a newly elected governing body to void existing contracts is subject to the Brodie rule requiring additional consideration when an implied "for cause" contract is modified to restore at-will employment. The court decided Jewell on other grounds and, therefore, did not reach the issue. However, in dictum the court suggested Mariano might not be applicable in the context of some implied for cause employment contracts: "The language of Mariano allowing challenge of a contract that is not reasonably necessary or of definable advantage to a governing body is not likely to extend to an implied employment contract for hospital employees of a public hospital." - Jewell, 953 P.2d at 138-39.

[T10] Turning to the certified question before us, we conclude Mariano does not stable, and loyal work force. support a blanket rule allowing newly constituted governing bodies to modify implied "for cause" employment contracts without providing additional consideration. Rather, the question of whether a new governing body must provide additional consideration in order to modify an implied "for cause" employment contract to restore at-will status must be decided on a case-by-case basis according to the particular facts and cireumstances presented. Keabler, and Jewell clearly leave open the possibility that an implied for cause employment contract is not voidable under Mariano where competent evidence is presented that the contract promotes a secure, Where such competent evidence is presented, the contract is not voidable, and additional consideration is required to modify an implied contract to restore at-will status.

[T11] Therefore, in cases challenging a new governing body's modification of an implied employment contract to restore at-will status, the first question our courts must answer is whether, considering all the facts and cireumstances presented, the employee has met his burden of showing the extended term of the implied "for cause" employment contract was justified by necessity or benefit to the government at the time the contract was made. One such method of making this showing is by presenting competent evidence that the implied "for cause" employment contract promoted a stable, secure, and loyal work force. If the employee meets that burden, the governing body cannot void the contract, and the usual rules of employment contract law apply, including the Brodie requirement that additional consideration must be provided when an employment contract is modified. If the employee fails to meet that burden, however, the governing body can void the contract, and the Brodie requirement of additional consideration does not apply.

CONCLUSION

[112] We answer the certified question as follows: The Brodie requirement of additional consideration does not apply when a newly elected governing body modifies personnel policies to restore at-will status and no adequate showing has been made that the "for cause" contract was reasonably necessary or of a definable advantage to the governing body when the contract was made. If, however, an adequate showing is made that the implied "for cause" contract was reasonably necessary or of a definable advantage to the governing body when the contract was made, the contract cannot be voided under Mariano, the usual rules of employment contract law apply, and additional consideration is required when a newly elected governing body modifies the contract to restore at-will status.

      . - After reviewing earlier Wyoming cases addressing the issue of a newly elected governing body's right to void contracts executed by its predecessor and extending into the new term, the Mariano court in essence disregarded those cases as having little precedential value, saying: "Wyoming precedent ... provides two political-economic result-oriented decisions, a two-to-two nonprecedential result, and a footnote in the most recent case. We will view this case generally with a fresh perspective in contemplation of today's world." 737 P.2d at 326. We, therefore, do not consider the earlier cases in resolving the issue before us.