author: LEHMAN, Justice.

text:
    2004 WY 40
    Andrea M. PAHL, Appellant (Defendant), v. Troy Lee PAHL, Appellee (Plaintiff).
    No. 03-72.
    Supreme Court of Wyoming.
    April 14, 2004.

      Representing Appellant: Donald E. Miller of Graves, Miller & Kingston, P.C., Cheyenne, WY.
    Representing Appellee: Kathryn J. Edel-man of Edelman Law Office, Gillette, WY.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[T1] Andrea M. Pahl (Mother) appeals the district court's decision to award primary custody of the parties' child to Troy M. Pahl (Father). Mother contends the district court failed to consider that she was the primary caregiver when making its custody determination and thus abused its discretion. Mother further asserts the district court relied exclusively on the fact that she planned to take the child to Germany when it decided to award primary custody to Father. Finding no abuse of discretion, we affirm.

ISSUE

[12] Mother presents the following issue on appeal:

Did the trial court err as a matter of law when the court denied the "primary care giver" custody based solely on the fact that the "primary care giver" intended to return to her homeland in Germany?

Father rephrases the issue as:

Was the district court's award of custody to the father a reasonable choice under the cireumstances, giving paramount consideration to the welfare and needs of the child and due consideration to the mother's primary caretaker role?

FACTS

[13] The parties were married while Father was stationed in Germany as a member of the United States Army. The couple moved from Germany to Fort Polk, Louisiana and then eventually to Wright, Wyoming in February of 1999. Father is a United States citizen, and Mother is a citizen of Germany. In September of 2000, the parties' only child was born. The child has both German and U.S. citizenship.

[14] Prior to the child's birth both parties worked full time, but after the birth Mother stayed home to care for the child. Later, Mother took a part-time job. At some point in time, Mother became unhappy living in Wright and sought to move. The parties discussed moving to other towns around northeast Wyoming or perhaps Denver, Colorado, but the parties could not reach an agreement on the subject. Eventually, in February of 2002, Mother stated that she wanted to remain married but that she wanted to return to Germany with the child. This arrangement was unacceptable to Father, and he filed for divorce. After Father filed the complaint, the parties continued to live in the marital home with relatively few problems. The parties additionally shared time with the child in a fairly cooperative manner.

[T5] The parties proceeded to a bench trial on November 18, 2002. Each party testified and briefly presented witnesses and other evidence. The evidence mostly pertained to the parties' past interaction with the child and their current ability to care for the child. On December 16, 2002, the district court notified the parties of its ruling by way of a decision letter and asked the Father's attorney to prepare a decree based on that letter. The decree was filed on January 23, 2003, and, in conformance with the decision letter, granted primary custody of the parties' child to Father. Mother appeals.

STANDARD OF REVIEW

[16] We have addressed the standard of review in cases such as this numerous times.

Custody, visitation, child support, and alimony are all committed to the sound discretion of the district court. Scherer v. Scherer, 931 P.2d 251, 253-54 (Wyo.1997); Triggs v. Triggs, 920 P.2d 653, 657 (Wyo.1996); Basolo v. Basolo, 907 P.2d 348, 352 (Wyo.1995). It has been our consistent principle that in custody matters, the welfare and needs of the children are to be given paramount consideration. Scherer, 931 P.2d at 254; Rowan v. Rowan, 786 P.2d 886, 890 (Wyo.1990); see also Gurney v. Gurney, 899 P.2d 52, 55 (Wyo.1995) and Fink v. Fink, 685 P.2d 34, 36 (Wyo.1984). The determination of the best interests of the child is a question for the trier of fact. "We do not overturn the decision of the trial court unless we are persuaded of an abuse of discretion or the presence of a violation of some legal principle." Fink, 685 P.2d at 36.
A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. Pinther v. Pinther, 888 P.2d 1250, 1252 (Wyo.1995) (quoting Dowdy v. Dowdy, 864 P.2d 439, 440 (Wyo.1993)). Our review entails evaluation of the sufficiency of the evidence to support the district court's decision, and we afford the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party. Triggs, 920 P.2d at 657; Cranston v. Cranston, 879 P.2d 345, 351 (Wyo.1994). Findings of fact not supported by the evidence, contrary to the evidence, or against the great weight of the evidence cannot be sustained. Jones v. Jones, 858 P.2d 289, 291 (Wyo.1998). Similarly, an abuse of discretion is present " 'when a material factor deserving significant weight is ignored.' " Triggs, 920 P.2d at 657 (quoting Vanasse v. Ramsay, 847 P.2d 993, 996 (Wyo.1993)).

Reavis v. Reavis, 955 P.2d 428, 431 (Wyo.1998).

[17] We have additionally explained that "[jludicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously." Ekberg v. Sharp, 2003 WY 123, ¶ 9, 76 P.3d 1250, ¶ 9 (Wyo.2003) (quoting Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998)); see also Stonham v. Widiastuti, 2003 WY 157 ¶ 11, 79 P.3d 1188, ¶ 11 (Wyo.2003).

DISCUSSION

[18] Mother claims that the district court abused its discretion by failing to consider that she was the child's primary caregiver, a material factor deserving significant weight. Mother asserts that instead the district court inappropriately based its decision entirely on her intent to return to Germany. Father, on the other hand, contends that in addition to considering the mandatory factors, the court did consider that Mother was the primary caregiver for the child. Father asserts that other factors weighed in his favor and thus the district court did not abuse its discretion. We agree with Father.

[¥9] We begin by onee again noting that the district court's responsibility for fashioning family relationships through custody determinations encompasses one of the most difficult and demanding tasks assigned to a trial judge. Reavis, 955 P.2d at 431. "This life-altering decision is perhaps most exacting in cases such as this, where it is apparent that both parents love their children and are fit and competent to have eusto-dy." Id. Beyond the emotional and family turmoil that attends custody disputes, adding to the district court's difficulty is that every case involving custody issues presents a different situation and set of facts. Consequently, there are no bright line rules to easily apply when making a custody decision. Instead, every case requires a careful weighing of the relevant factors. Id. The district court must look to the unique family relationships of each case in order to reach a resolution that is in the best interests of the children in that particular family. Id.; see also Martin v. Martin, 798 P.2d 321, 322 (Wyo.1990); Pace v. Pace, 2001 WY 43 ¶ 11, 22 P.3d 861, 865 (Wyo.2001); Stonham, ¶ 13. The law, recognizing the different intricacies and cireumstances of each case, affords the district court wide discretion when fashioning custody and visitation provisions. Reavis, 955 P.2d at 431.

[T10] When exercising its wide discretion in this area, the ultimate goal for the district court is a reasonable balance of the rights and affections of each parent, with paramount consideration being given to the welfare and needs of the children. Stonham, ¶ 13 (quoting Pace, 22 P.3d at 865). In making its custody determination the district court is charged with the following:

(a) In granting a divorcee, separation or annulment of a marriage or upon the establishment of paternity pursuant to W.S. 14-2-101 through 14-2-120, the court may make by decree or order any disposition of the children that appears most expedient and in the best interests of the children. In determining the best interests of the child, the court shall consider, but is not limited to, the following factors:
(i) The quality of the relationship each child has with each parent;
(ii) The ability of each parent to provide adequate care for each child throughout each period of responsibility, including arranging for each child's care by others as needed;
(ii) The relative competency and fitness of each parent;
(iv) Each parent's willingness to accept all responsibilities of parenting including a willingness to accept care for each child at specified times and to relinquish care to the other parent at specified times;
(v) How the parents and each child can best maintain and strengthen a relationship with each other;
(vi) How the parents and each child interact and communicate with each other and how such interaction and communication may be improved;
(vil) The ability and willingness of each parent to allow the other to provide care without intrusion, respect the other parent's rights and responsibilities, including the right to privacy;
(viii) Geographic distance between the parents' residences;
(ix) The current physical and mental ability of each parent to care for each child;
(x) Any other factors the court deems necessary and relevant.

Wyo. Stat. Ann. § 20-2-201 (LexisNexis 2001). Guided by these mandatory statutory factors and any other that the court deems relevant, the district court must fashion a custody award. Depending on the case, different factors will present a greater need for emphasis. Additionally "a process of this kind could readily swing the balance toward one party despite there being a material factor in favor of the other party." Produit v. Produit, 2001 WY 123 ¶ 22, 35 P.3d 1240, ¶ 22 (Wyo.2001). The one constant however is that the resolution must be in the best interests of the children in that particular family. Stonham, ¶ 14. We therefore must determine whether in this case the district court weighed the relevant factors to determine what was in the best interests of this child.

[T11] When determining whether the district court weighed all the relevant factors, we must rely on the district court's articulation of the factors it considered and how those factors support its conclusions. Reavis, 955 P.2d at 431-32. Because the district court is relying on its discretionary power, the district court should place on the record the cireumstances and factors that were crucial to its determination, as well as its reasoning. That way, counsel and the reviewing court will know and be in a position to evaluate the soundness of the district court's decision. Fergusson v. Fergusson, 2002 WY 66, ¶ 15, 45 P.3d 641, ¶ 15 (Wyo.2002). We have repeatedly implored trial courts to place such information on the record so that we may conduct a meaningful review. We continue to strongly encourage and desire such findings. Certainly such findings would have been enormously helpful in our review of this case because the decision letter provided a somewhat sparse explanation of the district court's reasoning.

[112] Nevertheless, unless requested, district courts are not required to make specific findings for each statutory factor if "consideration is reflected in the proceeding transcripts, by opinion letter, or as findings in the written order." Id. at 116 (quoting Produit, §12). Therefore, "consistent with Produit, we may look to the trial transcripts to determine whether the court's considerations are adequately set forth and comply with § 20-2-201(a)." Fergusson, 117. Several indications in the transeript, combined with the district court's statements in its decision letter, convince us that the necessary factors were considered and appropriately weighed.

[113] Mother asserts that the district court failed to consider that she was the primary caregiver. In its decision letter, the district court stated: "Because of the father's employment, the mother became the primary caretaker of the child. However, this case shows evidence of two good parents and primary custody with either parent is likely to create no issues of abuse or neglect.... Both parties love and care for the child." As can be seen, the district court was well aware of Mother's status as the primary caregiver. However, Wyoming statute requires that the district court consider other factors in determining the best interest of the child.

[T14] In Raymond v. Raymond, 956 P.2d 329, 332 (Wyo.1998), we acknowledged that the other factors can, in some cireumstances, outweigh placing custody with the primary caregiver. "Although the trial court considered the wife's role as a primary caregiver in determining what was in the best interests of the child, the other factors which were considered by the trial court ultimately weighed in the husband's favor; ie., the husband's willingness to get help through counseling to improve his parenting abilities, the emotional stability he could offer the child, and the likelihood that he would promote an ongoing relationship between the child and the wife." Id. Thus, while primary caregiver status is a weighty consideration, it is not in all cases ultimately determinative. Rather, the primary caregiver is another factor among the many that the district court considers. Other factors may outweigh the primary caregiver status.

[115] Mother asserts that geographic distance was the only other factor considered by the district court. The record and the district court's decision letter do reflect that geographic distance was of eminent concern, but the transcript shows that other factors were also present. It generally appears that Wyo. Stat. Ann. § 20-2-201(a)(@), (i), (Mi) and (vi) weighed in neither party's favor. Each parent had a good relationship with the child, and there was testimony that each parent could provide care to the child including arranging care for the child through others. § and (ii). It also appears that each parent was equally competent and fit to have custody of the child. § 20-2-201(a)(ifm). It also seems that each parent interacted and communicated with the child, equally well. § 20-2-201(a)(vi).

[T16] The transcript indicates that § 20-2-201(a)(iv) presented some element of consideration. This subsection requires that the court consider each parent's willingness to accept all responsibilities of parenting including a willingness to relinquish care of the child to the other parent at specified times. The evidence showed that Mother reduced the amount of time that the child was available to the Pahl family after Father filed the divorcee action. Also related through testimony was an incident where Father sought to take the child on a five-day camping trip with his family. Mother would only consent to a three-day trip for the child. When the child was not returned as Mother required, Mother drove to the Pahl family campsite and took the child from the family's camper refusing to wait until Father could return to the campsite before leaving.

[T17] Sometime later Mother consented to a longer trip, but Mother stated that she only consented to a later longer trip because if she did not Father "probably would have insisted on his rights again." Mother further admitted that it was a source of irritation to her that Father insisted on his visitation rights. Mother also seemed to struggle with the idea of Father having lengthy visitation time. Moreover, Mother felt that the child, only two years old, could understand and decide when and where he wanted to go when faced with a choice, and she therefore declined to arrange a specific visitation schedule pending the district court's decision. These incidents combined to cause Father concern that Mother would not safeguard his relationship with the child. On the other hand, Father appeared to respect the time Mother spent with the child. Father also proposed that if he were given custody Mother could have visitation on any days that he worked in addition to her other visitation time. Based on this testimony the district court could reasonably conclude that Father would be more likely and willing to relinquish care of the child at specified times and could reasonably weigh this factor in Father's favor.

[T18]1 It is also clear that the court considered how each parent could best maintain and strengthen a relationship with the child. § 20-2-201(a)(v). In its decision letter the court stated:

f With the parties having moved to the United States and having conceived a child here, it seems to the court that the likelihood of each party having a bonded relationship with this child will be best served by awarding primary custody to the father. For another thing, the mother is able to speak both German and English and father is unable to speak German. This gives the mother the advantage in ease of exercising visitation as she speaks perfect English and can maneuver between Germany and the United States with ease while father would be handicapped in Germany. Another item is the ability of the mother to obtain employment in the United States and the near impossibility of the father to obtain employment in Germany. Also, the father testified that the mother informed him that if he were to obtain primary custody, she would remain in the United States, but in another city, possibly Cas-per, in order to exercise visitation and to continue with the mother-child bond.

Mother proposed that if she were given custody the child would be returned to the United States for two in-person visits per year with Father. Considering how much Father currently saw the child this was hardly routine visitation. The district court could therefore reasonably conclude that each parent could best maintain and strengthen a relationship with the child if the child were in Father's primary custody.

[119] Based on the transcript we can also see that the district court considered the ability and willingness of each parent to allow the other to provide care without intrusion and respect the other parent's rights and responsibilities. § 20-2-201(a)(vii). While there was not a great deal of evidence on this point, the evidence that was presented showed that Mother demonstrated some inability to permit Father to provide care without her intrusion. For example, testimony showed that Father knew and followed the child's bedtime routine. Yet, when Father put the child to bed, Mother felt the need to get the child back up to again brush his teeth and wash his hands. Mother insisted that the child be home by 7:00 when he was with Father and would call at that time or go pick up the child. However, the 7:00 curfew did not always apply when the child was with Mother. Testimony also showed that when the child was on the aforementioned longer Pahl family trip, Mother insisted on calling the child twice a day. The district court is in the best position to evaluate the witnesses and their demeanor when testifying; and we thus conclude that, based on the above evidence, the district court could reasonably find that this factor also weighed in Father's favor.

[120] Finally, it is clear that geographic distance was at the heart of the district court's decision. In its decision letter the district court stated: "Since the court must decide this based upon the best interest of the child, I will find that the decision of the mother to return to Germany and to permanently place so much distance between the child and the father, is not in the best interest of the child." There is no doubt that there is a great distance between Germany and Wright. The round-trip airfare would be costly; the round trip lengthy. These considerations are important because reasonable visitation for the noneustodial parent must be available. Watt v. Watt, 971 P.2d 608, 614 (Wyo.1999); Love v. Love, 851 P.2d 1283, 1288-89 (Wyo.1993). Additionally, the chances of both parents having a meaningful relationship with the child may rest on how often that parent can exercise visitation.

[T21] The recent Stomnham case addressed similar international custody issues. In Stonkam, the. mother, an Indonesian woman, was awarded sole custody of the couple's two children despite the fact that she intended to return to Indonesia following the divorce. On appeal we held that the district court did not abuse its discretion when making this custody award. Stonkham, 132. In doing so, we in part reasoned that 'each case requires the trial court to carefully weigh the relevant factors while looking to the uniqueness of each situation. 114. The particular facts of Stonham showed that the mother was the primary caregiver for the children and planned to return to Indonesia following the divorcee. Additionally weighing in the mother's favor as primary custodian was evidence that the mother was emotionally better equipped to care for the children and she had the support of a stable, supportive, and loving family in Indonesia. Weighing against the father was the fact that he was unable to maintain stable and long-term relationships, and he had little or no respect for mother. 117. The evidence also indicated that the father had stormy relationships with his own family, and he presented a moderate risk of verbal and emotional abuse to the child. 1% 18,19.

[T22) While the international element of Stonham is similar to the case now before us, the other facts and cireumstances are not. Stonham did show that we are willing to uphold a custody award where the primary custodian intends an international move, but the basic message from that case is similar to the message from all our cases involving custody issues: the district court must weigh all the relevant factors and make a custody determination in the best interests of that individual child. Cases involving child custody when one party seeks to move abroad are, like all custody cases, fact sensitive. Therefore, it would be foolish to attempt to define a bright line test for their determination. Instead, we must decide whether the district court weighed all the relevant factors in each particular case.

[123] In the course of Stonham we also acknowledged that the international element of that case complicated the matter. We then noted that we have not had a prior occasion to address such a case as that but noted that others had. Stonkam, n.8 (citing Caroll J. Miller, Annotation, Court-Authorized Permanent or Temporary Removal of Child by Parent to Foreign Country, 30 ALRAth 548 (1984 & 2002 Supp.) and M. David LeBrun, Annotation, Propriety of Awarding Custody of Child to Parent Residing or Intending to Reside in Foreign Country, 20 AL.RAth 677 (1983 & 2002 Supp)). Those compiled cases "illustrate the competing benefits and limitations in awarding or denying custody to a foreign parent." Ston-ham, n.8. Many of those cases present a compelling argument for awarding primary custody to the parent who will be remaining in the United States. However, others show how a court can reasonably award custody to the moving parent. "Despite the factual differences in these cases, there is one common analytical thread in virtually every case: the best interest of the child is paramount in any award of custody and visitation, and the trial court has a large measure of discretion in making that award." Id.

[T24] In Resor v. Resor, 987 P.2d 146 (Wyo.1999) we also addressed the issue of a primary custodian who intended to move following the divorce. We held that the district court did not abuse its discretion in allowing the mother custody even though she intended to move to Seattle, Washington. We said that our decisions precluded the court from keeping the mother from giving up her plans to relocate with the children. Id. at 150. We further stated: "It is unrealistic to assume that divorced parents will remain in the same location after dissolution of the marriage or to exert pressure on them to do so." Id. at 151. However, the differences between Germany and Seattle are significant. Importantly, the court is required to take geographic distance into consideration when making its initial custody determination. "Geographical relocation does not make a parent who has cared for the children less capable of maintaining parental responsibilities and obligations." Id. at 152. Nevertheless, it does bear on the ability of both parents to enjoy a meaningful relationship with their child. In this instance, the child's move to Germany would significantly impact Father's right of visitation. Although Mother proposed two in-person visits per year, the proposal was that she pay for the child to return to the United States for the summer for visitation with Father. However, Father would have to pay for the child's return to ° Germany and any other visitation Father desired in Germany. Mother admitted that Father did not have a lot of additional income to take other trips to Germany. The district court could accordingly conclude that even if liberal visitation were awarded, given Father's inability to speak German and unlikelihood of finding a job in Germany, Father may not have been able to exercise regular visitation.

[125] Consequently, this factor weighed heavily in Father's favor, especially considering that Mother stated that she would not move to Germany if Father were granted primary custody. We thus cannot conclude that the district court abused its discretion. The district court weighed the relevant evidence and determined that primary custody with Father was in the child's best interests. Although Mother was in fact the primary caregiver, the trial court was well within its discretion to decide that, on the whole, Mother's difficulty in relinquishing care to Father, trouble allowing Father to have time with the child without interference, and her planned move to Germany, combined with Father's stable work schedule, abilities, and willingness to share the child with Mother ultimate ly weighed in Father's favor.

CONCLUSION

[126] For the reasons noted above holding that the district court did not abuse its discretion, we affirm the district court's decision to award primary custody to Father in this case.

      . Father testified that the parties were married on August 12, 1998, and Mother testified that they were married on August 16, 1997. In any event, the parties agree that they were married while Father was stationed in Germany.

      . A more specific discussion of this evidence will be set out in the body of the opinion.


source: Caselaw Access Project

author: THORNE, Judge:

license: Public Domain

text:
    2004 UT App 43
    Paul Blaine MARTINEZ, Plaintiff and Appellee, v. Glen L. WELLS, Defendant and Appellant.
    No. 20010869-CA.
    Court of Appeals of Utah.
    Feb. 26, 2004.
    Rehearing Denied April 30, 2004.

      Bruce A. Maak, Parr Waddoups Brown Gee & Loveless, Salt Lake City, for Appellant.
    Eric C. Olson, Kirton & MeConkie, Salt Lake City, for Appellee.
    Before BILLINGS, P.J., and JACKSON and THORNE, JJ.
   OPINION

THORNE, Judge:

NATURE OF THE CASE

¶ 1 Glen L. Wells appeals a jury verdict granting Paul Blaine Martinez an easement across Wells’s property. We affirm.

BACKGROUND

¶ 2 In 1944, the Conover family purchased several hundred acres of property located approximately twenty miles southeast of Price, Utah, and north of Sunnyside, Utah (the Conover Property). Prior to the purchase, Jay (aka Gay) Pagano owned land (Pagano Property) adjacent to that purchased by the Conovers.

¶ 3 The Conover Property and Pagano Property were roughly divided by a mountain ridge. A dirt road, the “Left Fork road,” crossed this mountain ridge, connecting the two properties. Historically, the Left Fork road began in the southwest corner of the southeast corner of section 35 in Township 13 (property owned by Pagano) and proceeded northwesterly for over six miles through sections 35, 34, 27, 22, 23, 15 and into section 14 (property owned by the Con-overs).

¶ 4 In 1974, LaVon Day acquired an undivided one-fourth interest in the Conover Property, which he then conveyed to the Lazy Dazy Ranch (Lazy Dazy), a partnership in which LaVon and his brother, Donald Day, were the only partners. In 1978, LaVon Day and the Conovers’ partitioned the property. The parties did not record the deeds for this 1978 transaction until 1982. The Conovers retained property not at issue in this case, and LaVon Day retained title to the property that is presently owned by Appellee, Paul Martinez (Property 1M), and Appellant, Glen Wells (Property 2W).

¶ 5 In 1983, the Lazy Dazy partnership was dissolved. The Day brothers divided the property held by the partnership, with La-Von taking possession of Property 1M and Donald taking possession of Property 2W. Even though Lazy Dazy held title to Property 1M and Property 2W, the brothers executed the deeds in their individual names and listed themselves as the grantors. LaVon quit-claimed his interest in Property 1M to Donald and Donald quit-claimed his interest in Property 2W to LaVon. However, Donald reserved to himself “a road right[-]of[-]way over and across portions of [Property 2W] on an existing dirt roadway so as to provide [Donald] with ingress and egress to” Property 1M.

¶ 6 In 1984, Donald and LaVon apparently noted the defects in the 1983 deeds and executed corrected deeds. These deeds also named Lazy Dazy Ranch as a grantor and noted that Donald and LaVon were each general partners of the Lazy Dazy partnership. As in 1983, the 1984 deed executed by Donald reserved a right-of-way across portions of Property 2W to access Property 1M.

¶ 7 In 1988, Donald conveyed Property 1M to Paul Martinez Sr. by warranty deed, who in 1989 transferred it to Paul Martinez Jr. and two others. In 1993, Martinez, the Ap-pellee, became the sole owner of Property 1M.

¶ 8 In 1993, Glenn L. Wells purchased Property 2W from LaVon Day and obtained a title insurance policy. This policy noted as an exception from coverage the right-of-way reserved “for the driving of sheep” through portions of section 35 and 34 in Township 13, where the Left Fork road ran. The policy also noted the 1983 and 1984 reservation of a right-of-way by the owner of Property 1M across portions of Property 2W for access to Property 1M.

¶ 9 After taking possession of Property 2W, Wells began a logging operation and developed more roads on the property. According to Martinez, Wells’s logging operation made the historic Left Fork road impassible. When Martinez complained, Wells directed him to use one of the new routes to access his property. During this time, one of Wells’s cows was found dead on the road and Wells suspected that a Martinez guest hit and killed the cow while driving the Left Fork road. Wells also accused a Martinez guest of trespassing when that guest allegedly followed a wounded deer onto Wells’s property during a hunt. Soon thereafter, Wells became dissatisfied with Martinez’s use of the Left Fork road. In an attempt to keep Martinez from using the Left Fork road, Wells purchased land from Pagano that contained the entrance to the Left Fork road and which Wells believed was not subject to any easement.

¶ 10 In 1997, Pagano conveyed to Wells a small portion of the Pagano Property located in the southwest corner of the southwest corner of section 35 (the Pagano access property). This piece of land included an original part of the Left Fork road. Once Wells obtained this property, he sent Martinez a letter informing him:

I am writing to advise you that I have just purchased the lower portion of the [Left Fork] roadway.... My staff advises me that the locks have now been changed. This property has never been part of [Property 1M and Property 2W] and no easement, by use or otherwise, have [sic] ever been established across this property. As [LeVon] Day will tell you, [LeVon and Donald’s] use was by personal permission only. This road and its gate shall be locked at all times and any attempt to enter upon the property will result in criminal trespass charges.

Upon receipt of the letter, Martinez contacted Wells to obtain access to Wells’s property by the Left Fork road. Wells refused and Martinez brought suit.

¶ 11 Prior to submitting the case to the jury, the court entertained several motions for directed verdict. The court directed a verdict, finding an express easement in favor of Property 1M across Property 2W. The remaining issues were submitted to the jury. After deliberating, the jury found that Martinez had proven by clear and convincing evidence that a prescriptive easement existed across the Pagano access property. Wells appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 12 Wells argues that the trial court erred when it granted Martinez’s motion for directed verdict, finding an express easement in favor of Property 1M across Property 2W. “In reviewing a [motion for] directed verdict, [we] use the same standard as the trial court, evaluating whether ‘the evidence at trial raised a question of material fact which precluded judgment as a matter of law.’ ” Pavoni v. Nielsen, 2000 UT App 74, ¶ 14, 999 P.2d 595 (citations omitted).

¶ 13 Wells also argues that the trial court improperly excluded a letter from Pagano’s attorney when it concluded that the letter was inadmissible hearsay. Whether an out-of-court statement constitutes hearsay is a question of law reviewed for correctness. See Salt Lake City v. Alires, 2000 UT App 244, ¶ 9, 9 P.3d 769.

¶ 14 Wells next argues that the trial court improperly instructed the jury that “any open and notorious use gives rise to a presumption that the use is adverse and not permissive.” “Whether a jury instruction correctly states the law presents a question of law which we review for correctness.” State v. Houskeeper, 2002 UT 118, ¶ 11, 62 P.3d 444.

¶ 15 Wells finally claims that the evidence is insufficient to support the jury verdict that a prescriptive easement existed across the Pagano access property or to support the scope of the easement found. “A jury verdict should not be reversed due to insufficient evidence unless the evidence presented at trial is so lacking that reasonable minds could not have reached the conclusion that the jury reached.” Harding v. Bell, 2002 UT 108, ¶ 14, 57 P.3d 1093.

ANALYSIS

I. Property 2W

¶ 16 Wells attacks the directed verdict granting an express easement across Property 2W. Wells does not claim that a factual dispute exists regarding the express easement across Property 2W, but raises the legal argument that the trial court improperly found an express easement when the deeds purporting to create the express easement were ineffective. We disagree.

¶ 17 In 1983, the Day brothers dissolved the Lazy Dazy partnership. LaVon Day took title to Property 2W and Donald Day took title to Property 1M, reserving unto himself a right-of-way across Property 2W to access Property 1M. At the time of the dissolution, Lazy Dazy held title to both properties; however, Donald and LaVon Day named themselves as grantors on the deeds. Wells argues that this was an error that renders these deeds ineffective. Wells also claims that the subsequent deed that seems to correct this error was also ineffective.

¶ 18 “The finding that an easement exists is a conclusion of law” reviewed for correctness. Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998). Likewise, resolution of this issue involves statutory construction which we also review for correctness. See Shafer v. State, 2003 UT 44, ¶ 5, 79 P.3d 936.

¶ 19 Utah Code Annotated section 48-1-6 (2001) provides that “[ejvery partner is an agent of the partnership for the purposes of its business, and the act of every partner ... binds the partnership_” Utah Code Ann. § 48-1-6 (2001). Moreover, Utah Code Annotated section 48-1-7 (2001), provides that “[wjhere title to real property is in the name of the partnership a conveyance executed by a partner in his own name passes the equitable interest of the partnership.” Utah Code Ann. § 48-1-7 (2001).

¶ 20 Reading these code sections together, we conclude that the deeds executed by La-Von and Donald Day in their own names and as partners in Lazy Dazy effectively passed title to Property 1M and Property 2W. The deed transferring Property 2W to LaVon Day reserved in Donald Day a “road right[-]of[-]way over and across portions of [Property 2W] on an existing dirt roadway so as to provide grantor with ingress and egress to [Property 1M].” This deed was recorded and put all subsequent buyers, including Wells, on notice that Property 2W was subject to an express easement. Thus, once the trial court resolved the legal dispute regarding the effectiveness of the 1983 and 1984 deeds, the trial court properly granted a directed verdict determining the existence of an express easement across Property 2W. See Pavoni v. Nielsen, 2000 UT App 74, ¶ 14, 999 P.2d 595 (noting that a directed verdict is proper when there is no factual dispute).

II. Pagano Access Property

¶ 21 Next, Wells argues the jury’s verdict that Martinez had an easement by prescription across the Pagano access property was not supported by sufficient evidence, that the trial court improperly in-stracted the jury, and that the trial court improperly excluded relevant evidence. Each of Wells’s arguments relate in some way to whether the prior owners of Property 1M or Property 2W used the Pagano access property with or without permission. Permission is relevant because in Utah, “[a] party claiming a prescriptive easement must prove that his use of another’s land was open, continuous, and adverse under a claim of right for a period of twenty years.” Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998) (emphasis added). “However, once a claimant has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, the use will be presumed to have been adverse.” Id. “To prevent the prescriptive easement from arising, the owner of the servient estate then has the burden of establishing that the use was initially permissive.” Id. at 311-12.

A. Jury Instruction

¶ 22 Wells claims that the trial court erred in giving jury instruction 26, which provides in relevant part that “[u]se of land by a non-owner is ordinarily presumed to be without permission.” Instruction 26 then goes on to state that the presumption of permission can be rebutted if “Glenn Wells could [show] that the Pagano [access] property was used with permission.”

¶ 23 Wells argues that the instruction is an “incorrect statement of the law and imper-missibly shifts the burden of proof on the issue of adversity/permission from plaintiff to defendant.” According to Wells, the evidence showed that the Paganos (the party from whom he had obtained title) “opened the road” across the Pagano access property, thus the presumption should be that the use of the road had been permissive. Wells cites Harkness v. Woodmansee, 7 Utah 227, 26 P. 291 (1891), Jensen v. Gerrard, 85 Utah 481, 39 P.2d 1070 (1935), and other cases in support of his claim.

¶ 24 “Whether a jury instruction correctly states the law presents a question of law which we review for correctness.” State v. Houskeeper, 2002 UT 118,¶ 11, 62 P.3d 444. “In determining whether the jury was properly instructed [,] ... a reviewing court must consider all of the jury instructions read together in light of the total evidence before the jury.” State v. Lawson, 688 P.2d 479, 481 (Utah 1984).

“Reversal will not necessarily follow the giving of a defective instruction, if, when taken in connection with the other [instructions], the law of the case is fairly given, and no one instruction should be condemned as reversible error, if it appears to be entirely clear as a guide to the jury, when read with the others given in the case.... If two instructions are given on the same subject, they should be considered together, and where two instructions, construed together, fairly state the law, the case will not be reversed for error existing in one of them.”

Sutton v. Otis Elevator Co., 68 Utah 85, 249 P. 437, 451 (1926) (quoting Blashfield’s Instructions to Juries 170 (1st Ed.)).

¶ 25 At trial, Martinez presented evidence from which the jury could have concluded that owners of Property 1M had been crossing the Pagano access property under a claim of right (e.g., without first obtaining permission) since at least 1944, and Wells introduced evidence to rebut this claim. In light of this conflict in the evidence, we conclude that instruction 26 was warranted by the evidence. Furthermore, the instruction correctly stated the law, as it noted that after twenty years of use the use is presumed to be adverse but that this presumption may be rebutted.

¶ 26 Wells also claims the trial court improperly refused to instruct the jury that both “neighborly accommodation” and the existence of locked gates suggested that the use of the Pagano access property was permissive. The instructions Wells proposed, when read in context, relate to the adversity element of a prescriptive easement. See Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998). However, we have already established that instruction 26 fully and accurately states the law regarding prescriptive easements. Accordingly, it was not error to refuse to give these additional instructions. See Summerill v. Shipley, 890 P.2d 1042, 1045 (Utah Ct.App.1995) (“If an omitted instruction is adequately covered by other instructions, it is not error for the trial court to refuse the instruction.”)- Moreover, Wells had ample opportunity to argue to the jury, and did argue, that the use of the Pagano access property had been merely a “neighborly accommodation” and that the presence of the locked gates was evidence of this accommodation. Thus, Wells has not shown that failing to give the requested instructions prejudiced him. See id. “Failure to give requested jury instructions constitutes reversible error only if their omission tends to mislead the jury to the prejudice of the complaining party or insufficiently or erroneously advises the jury on the law.” Id. (quoting Biswell v. Duncan, 742 P.2d 80, 88 (Utah Ct.App.1987)).

B. Exclusion of Letter as Hearsay

¶27 Wells offered into evidence a 1989 letter written by a lawyer on behalf of Pagano. Wells sought to admit the letter both for its content and as proof that LeVon Day had notice that his use of the Pagano access property was permissive. Martinez objected, and the trial court sustained Martinez’s hearsay objection.

¶28 Whether an out-of-court statement constitutes hearsay is a question of law that we review for correctness. See Salt Lake City v. Alires, 2000 UT App 244,¶ 9, 9 P.3d 769. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Utah R. Evid. 801(c).

¶ 29 On appeal, Wells argues that the letter he sought to admit constituted non-hearsay pursuant to Utah Rules of Evidence 801(d)(1) because the author testified at trial and was subject to cross-examination. See Utah R. Evid. 801(d)(1). To qualify as non-hearsay under this rule, the declarant must testify at the trial or hearing, be subject to cross-examination concerning the statement, and the statement must either be (a) offered as inconsistent with the testimony, or (b) consistent with the testimony and offered to rebut an express or implied charge of recent fabrication, improper influence, or motive. See id. Wells has not satisfied the requirements of Utah Evidence Rule 801(d)(1) because he has not shown that the letter was being offered as inconsistent to previous testimony or that it was being offered to rebut a charge of recent fabrication, improper influence, or motive. Thus, the letter is not admissible as non-hearsay pursuant to rule 801(d)(1).

¶ 30 Wells also argues that the letter should be admitted for the non-hearsay purpose of providing notice to LaVon Day that his use of the Pagano access property was by permission only. However, the letter contains statements made to the author by other persons. These statements are themselves hearsay. Thus, the letter constitutes hearsay within hearsay. See Utah R. Evid. 806 (“Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.”).

¶ 31 Wells’s argument that the letter serves the non-hearsay purpose of notice to LaVon Day addresses only one level of hearsay. Wells does not provide a valid hearsay exception for the hearsay statements within the letter nor does he argue that the statements therein constitute non-hearsay. Under these circumstances, the trial court properly excluded the letter as inadmissible hearsay.

C. Sufficiency of the Evidence to Support Prescriptive Easement and Its Route

¶ 32 Wells argues the jury verdict declaring a prescriptive easement across the Pagano access property is not supported by sufficient evidence because any easement that may have arisen across the Pagano access property was abandoned in 1978 when LáVon Day sought permission to use the access. Wells also argues that the evidence does not support the scope and route of the easement ordered by the trial court.

¶33 “ ‘To successfully attack the verdict, an appellant must marshal all the evidence supporting the verdict and then demonstrate that, even viewing the evidence in the light most favorable to that verdict, the evidence is insufficient to support it.’ ” Evans v. Doty, 824 P.2d 460, 468 (Utah 1992) (quoting Von Hake v. Thomas, 705 P.2d 766, 769 (Utah 1985)). To overcome a jury verdict, a party must marshal “every scrap of evidence that supports ” the jury’s finding. Neely v. Bennett, 2002 UT App 189,¶ 11, 51 P.3d 724, (quotations and citations omitted), cert. denied, 59 P.3d 603 (Utah 2002).

[T]he marshaling concept does not reflect a desire to merely have pertinent excerpts from the record readily available to a reviewing court. The marshaling process is not unlike becoming the devil’s advocate. Counsel must extricate himself or herself from the client’s shoes and fully assume the adversary’s position. In order to properly discharge the duty of marshaling the evidence, the challenger must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists. After constructing this magnificent array of supporting evidence, the challenger must ferret out a fatal flaw in the evidence. The gravity of this flaw must be sufficient to convince the appellate court that the court’s finding resting upon the evidence is clearly erroneous.

West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah 1991).

¶ 34 Here, the jury found that no previous owner of the Martinez property had abandoned a right to cross the Pagano access property. Additionally, the jury made factual findings regarding the scope and route of the easement. Specifically, the jury found that the Pagano access property could be crossed by vehicle, horse, or by foot as needed in Spring, Summer, and Fall to “service” the property and cattle on Property 2W. “Service” of Property 2W included “the conduct of any lawful activity on [Property 2W].”

¶ 35 The trial court incorporated each of these factual findings into its order regarding the scope of the easement. Wells challenges these factual findings but has not marshaled the evidence in support of them. Wells simply restates the evidence in a light most favorable to his own position that no prescriptive easement exists across the property and does not assume the “devil’s advocate” role as required. Id. Wells has not shown us a grave “flaw ... sufficient to convince [us] that the [jury’s] finding resting upon the evidence is clearly erroneous.” Id. Accordingly, we affirm the jury’s finding of a prescriptive easement and the court’s determination of its scope.

CONCLUSION

¶ 36 The trial court properly directed a verdict finding an express easement across Property 2W. Further, the trial court properly instructed the jury and' the court properly excluded the letter offered by Wells as inadmissible hearsay. Lastly, Wells did not meet his marshaling obligation to challenge the jury verdict. Accordingly, we affirm.

¶ 37 WE CONCUR: JUDITH M. BILLINGS, Presiding Judge and NORMAN H. JACKSON, Judge.

      . We recite facts in the light most favorable to the jury verdict.

      . Utah Code Annotated sections 48-1-6 (2001) and 48-1-7 (2001) have been in effect since 1921 and were in effect at the time the Days dissolved the Lazy Dazy partnership. We cite to the most recent version of the statute for convenience only.

      . In the alternative, the trial court directed a verdict that an easement hy necessity and an easement by implication existed across Property 2W. Wells attacks these findings as well and argues that a factual dispute remains regarding the correct route for the easement by implication or necessity and that this precludes the direct verdict. We have already concluded that the trial court properly directed a verdict on the express easement across Property 2W, an issue involving only legal matters. Any factual dispute that may exist in the trial court’s alternate findings is irrelevant once we determine that the primary basis for granting a directed verdict is correct. Accordingly, we do not address Wells’s challenge to the trial court’s findings that an easement by necessity and an easement by implication existed across Property 2W.

      . Additionally, Wells’s emphasis on who "opened the way" is not relevant here because there is no evidence regarding who opened the Left Fork road. The only evidence introduced by Wells was that Pagano maintained the road by removing boulders and clearing a mud slide. Maintaining the road and opening the road are different activities and are treated differently under the law. See Harkness v. Woodmansee, 7 Utah 227, 26 P. 291, 293 (1891) ("Where a person opens a way for use of his own premises, and another person uses it also without causing damage, the presumption is ... such use ... was permissive, and not under a claim of right.”).

      . Alternatively, had Wells complied with his marshaling obligation, it is unlikely that we would reverse the jury verdict, as there appears to be sufficient evidence to support the verdict. For example, Martinez introduced evidence that the previous owners of the property crossed the Pa-gano access property to enter the Left Fork Road since at least 1944 and that during that time they had entered the property under a claim of right. There was no evidence that the original owners of the Property 1M and Property 2W had ever asked permission to cross the Pagano access property but instead had simply used the road because it was the only way to access their property. Donald Day testified that when Paga-no told him that he could not use the road, that he tore down the gate or cut the locks and used the road anyway. " 'We accord due deference to the jury as the fact finder and do not substitute ourselves in this role.’ ” Evans v. Doty, 824 P.2d 460, 468-69 (Utah 1992) (quoting Israel Pagan Estate v. Cannon, 746 P.2d 785, 793 (Utah Ct.App.1987)).


author: BILLINGS, Presiding Judge:

text:
    2004 UT App 54
    Beverly Ann BURGE fka Beverly Ann Facio, Petitioner and Appellee, v. Gary Thomas FACIO, Respondent and Appellant.
    No. 20020929-CA.
    Court of Appeals of Utah.
    March 11, 2004.
    Gary Thomas Facio, Lakewood, Ohio, Appellant Pro Se.
    Helen E. Christian, Gustin & Christian, Salt Lake City, for Appellee.
    Before BILLINGS, P.J., DAVIS and ORME, JJ.
   OPINION

BILLINGS, Presiding Judge:

¶ 1 Gary Thomas Facio Husband appeals from the property distribution in a decree of divorce, arguing that the trial court abused its discretion by enforcing a prior order of separate maintenance (Maintenance Order) because (1) Husband and Beverly Ann Burge (Wife) had reconciled, thereby voiding the Maintenance Order; and (2) Husband’s original consent to the terms of the Maintenance Order had not been voluntary. We affirm.

BACKGROUND

¶2 Husband and Wife were married on March 16, 1974. Wife first filed for divorce in 1982, believing that Husband was financially irresponsible and had created unnecessary debt for the family. After discussions with Husband, however, Wife voluntarily dismissed the divorce proceeding.

¶3 Wife again filed for divorce in 1991 when she discovered that Husband had (1) cashed-in various IRAs funded by Wife; (2) liquidated a college fund established by Wife for the oldest child; (3) cashed-in various gifts from Wife’s family; (4) incurred numerous debts for his own personal use; and (5) failed to file federal and state tax returns. Subsequently, Husband convinced Wife to seek an order for separate maintenance instead of a divorce decree.

¶4 Wife filed a Complaint for Separate Maintenance on August 11, 1992. Husband consulted with Brian Barnard, an attorney who had represented him previously. Subsequently, Husband executed an Acceptance, Waiver, and Consent by which he agreed that the trial court could enter an order for separate maintenance consistent with Wife’s complaint. Accordingly, the trial court entered the Maintenance Order on August 28, 1992.

¶ 5 Relevant portions of the Maintenance Order provide as follows: (1) Wife retains all interest in her house, (2) Wife is awarded sole physical custody of both children, (3) neither party is awarded alimony, (4) Wife retains all interest in her IRA accounts, and (5) the personal property is to be divided in a manner the parties deem fair and equitable.

¶ 6 After entry of the Maintenance Order, the parties lived separately until late 1993 or early 1994. During the time they lived apart, Husband repeatedly represented to Wife that he had improved his life in ways that addressed Wife’s concerns. Wife subsequently agreed to attempt reconciliation if Husband kept his promises.

¶ 7 In late 1993 or early 1994, Wife learned that Husband had lost his housing and agreed to allow Husband to move back into her house. Nonetheless, the parties continued to adhere to the terms of the Maintenance Order as if they lived separately. For instance, Wife alone incurred liabilities and paid bills related to maintaining the household, and Husband believed that he had no financial obligation to Wife’s household or the children other than his obligation under the Maintenance Order to pay $500 per month in child support. Both parties repeatedly acknowledged that the Maintenance Order was still in effect.

¶ 8 Despite his promises to become more fiscally responsible and to remain monogamous, Husband continued to incur unnecessary debt, eventually failed to make child support payments, and dated other women. Under oath, Husband acknowledged that he had not kept his promises.

¶ 9 Because Husband had failed to keep his promises, in 1997 Wife asked Husband to move out. On October 7, 1997, Wife filed for divorce. On March 19, 1999, the trial court granted Wife a divorce based upon irreconcilable differences, but bifurcated financial issues. At trial on the financial issues, Husband contested only the distribution of equity acquired since 1993 in both Wife’s house and Wife’s Postal Service retirement accounts.

¶ 10 In the Second Amended Divorce Decree, the trial court declined to award Husband any interest' in Wife’s house or her Postal Service retirement accounts. In addition, the trial court refused to award alimony to either party and awarded items of personal property to the party who possessed them.

¶ 11 In the Second Amended Findings of Fact and Conclusions of Law, the trial court explained its rationale for the property distribution. Wife was awarded her house because the trial court had “awarded this property to her in the [Maintenance Order] and because any contribution to the equity since that time has been made from [Wife’s] separate funds.” Wife was awarded all title to her retirement accounts “because she obtained these additional benefits through her separate funds.” No alimony was awarded to either party because both parties are “able-bodied and employed on a full time basis[,]” and Husband “is voluntarily underemployed.” Husband appeals.

ISSUE AND STANDARD OF REVIEW

¶ 12 Husband contends that the trial court erred by enforcing the Maintenance Order when it determined the distribution of property in the Second Amended Divorce Decree. “In order to reverse the trial court’s distribution of property in a divorce action, we must find that it ‘works such a manifest injustice or inequity as to indicate a clear abuse of discretion.’ ” Gibbons v. Gibbons, 656 P.2d 407, 409 (Utah 1982) (quoting Turner v. Tuner, 649 P.2d 6, 8 (1982)). “[I]n exercising their discretion in divorce actions, trial courts ‘need be guided by the general purpose to be achieved by a property division, which is to allocate the property in a manner which best serves the needs of the parties and best permits them to pursue their separate lives.’ ” Peterson v. Peterson, 748 P.2d 593, 594 (Utah Ct.App.1988) (quoting Burke v. Burke, 733 P.2d 133, 135 (Utah 1987)).

ANALYSIS

¶ 13 Husband contends that the trial court erred by enforcing the Maintenance Order when it distributed property in the Second Amended Divorce Decree. In support of his contention, Husband argues that the Maintenance Order was void because (1) the parties had reconciled while Husband lived with Wife between 1993 and 1997 and (2) Husband’s consent to the Maintenance Order in 1992 had not been voluntary.

¶ 14 Wife argues that the trial court did not abuse its discretion by enforcing the Maintenance Order because the factual findings are sufficient to support the court’s conclusions that (1) the parties had not voluntarily and permanently reconciled and (2) Husband’s consent to the Maintenance Order in 1992 had been voluntary.

¶ 15 First, we address Husband’s apparent challenge to the trial court’s factual findings. Utah Rule of Civil Procedure 52(a) provides that “[flindings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous.” Id. To challenge a trial court’s findings of fact, “[t]he challenging party must marshal all relevant evidence presented at trial which tends to support the findings and demonstrate why the findings are clearly erroneous.” West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1313 (Utah Ct.App.1991). Husband fails to cite any evidence or testimony that supports the trial court’s findings. Therefore, we accept the trial court’s factual findings in the Second Amended Findings of Fact and Conclusions of Law and Second Amended Decree of Divorce.

¶ 16 Second, we address Husband’s contention that the trial court abused its discretion by enforcing the Maintenance Order. A trial “court may change the support or maintenance of a party from time to time according to circumstances, and may terminate altogether any obligation upon satisfactory proof of voluntary and permanent reconciliation.” Utah Code Ann. § 3(M-3(3) (1999) (emphasis added). Thus, if there is satisfactory proof of voluntary and permanent reconciliation between Husband and Wife, then a trial court has discretion to terminate the Maintenance Order.

¶ 17 Husband cites numerous cases from other jurisdictions that discuss when sufficient reconciliation has occurred to void a separate maintenance agreement or order. Yet the principles of common law at issue in those cases require only reconciliation not “permanent” reconciliation as Utah’s statute requires. See In re Marriage of Reeser, 635 P.2d 930, 932 (Colo.Ct.App.1981) (discussing what constitutes reconciliation under a common law standard); Cox v. Cox, 659 So.2d 1051, 1053 (Fla.1995) (same); Miller v. Miller, 189 Mont. 356, 616 P.2d 313, 316 (1980) (same); Brazina v. Brazina, 233 N.J.Super. 145, 558 A.2d 69, 71-72 (1989) (same); In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541, 546 (N.C.1976) (same).

¶ 18 In this ease, the findings of fact establish that any reconciliation was conditional, not permanent. Wife agreed to attempt a reconciliation with Husband if he remained monogamous and became more fiscally responsible. Husband did neither. Husband had girlfriends and continued to incur debt as he had previously. In fact, it was Husband’s failure to change his behavior as he had promised that led Wife to file for divorce rather than merely continue to live under the terms of the Maintenance Order. Thus, the parties never permanently reconciled, but rather attempted unsuccessfully to resolve issues which might have permitted reconciliation. Because there is not satisfactory proof of voluntary and permanent reconciliation between Husband and Wife, the trial court did not abuse its discretion by enforcing the Maintenance Order.

¶ 19 Finally, we address Husband’s contention that the Maintenance Order was void because his consent to its terms had not been voluntary. This contention is without merit. In 1992, Husband received a copy of Wife’s Complaint for Separate Maintenance and did not contest the relief it requested. In fact, Husband consulted with his attorney, Brian Barnard, regarding the proposed terms of the Maintenance Order and thereafter consented to its terms in writing. There is no evidence that duress, coercion, fraud, or trickery induced Husband to consent to the terms of the Maintenance Order. Moreover, after the Maintenance Order was entered on August 28, 1991, Husband honored its terms and repeatedly acknowledged that he was bound by it. There is no evidence that Husband found the terms of the Maintenance Order objectionable until 1997, when Wife filed for divorce. Thus, we hold that the trial court correctly found that Husband’s consent to the terms of the Maintenance Order had been voluntary.

CONCLUSION

¶ 20 The Maintenance Order provides that Wife retains all interest in both her house and her IRA accounts. The Maintenance Order also provides that neither party is awarded alimony and items of personal property are to be divided in a manner the parties deem fair and equitable at the time. The trial court’s division of property in the Second Amended Decree of Divorce is consistent with the terms of the Maintenance Order, which remained enforceable. Thus, the trial court did not abuse its discretion in its distribution of property between Husband and Wife. Accordingly, we affirm.

¶ 21 WE CONCUR: JAMES Z. DAVIS and GREGORY K. ORME, Judges.

      . Wife also seeks an award of attorney fees on appeal as the prevailing party. However, in a divorce action, when "attorney fees [are] not awarded below, neither party is entitled to attorney fees on appeal.” Baker v. Baker, 866 P.2d 540, 547 (Utah Ct.App.1993). In the Second Amended Decree of Divorce, the trial court ordered the parties to assume and pay their own attorney fees and costs. Thus, we decline to award Wife attorney fees on appeal. Insofar as Wife is suggesting she should be awarded fees because the appeal is frivolous, we are not persuaded.


text:
    2004 UT App 57
    Andrew D. MOENCH, Plaintiff and Appellant, v. STATE of Utah, Defendant and Appellee.
    No. 20030382-CA.
    Court of Appeals of Utah.
    March 11, 2004.

      Bruce A. Jacques, South Jordan, for Appellant.
    Mark L. Shurtleff, atty. gen., and Christopher D. Ballard, asst. atty. gen., Salt Lake City, for Appellee.
    Before BILLINGS, P.J., DAVIS and ORME, JJ.
   OPINION

BILLINGS, Presiding Judge:

¶ 1 Defendant Andrew D. Moench appeals the trial court’s denial of his petition for post-conviction relief that challenged his conviction for aggravated assault with a gang enhancement, a second-degree felony. Moench argues that he (1) was improperly sentenced under the gang enhancement statute, (2) did not enter a voluntary and knowledgeable guilty plea, and (3) received ineffective assistance of counsel. We affirm.

BACKGROUND

¶2 On October 31, 1998, Defendant, a “Straight Edge” gang member, together with several gang associates, was involved in a fight with another group of men including the victim, Bernardo Repreza. During the fight, Defendant and Jason Cunningham chased Repreza while Sean Darger yelled at the two to “get him.” Cunningham struck Repreza with an expandable police baton causing Repreza to fall. Defendant then struck Repreza in the head with a club or a bat resulting in serious bodily injury. Subsequently, while Repreza lay unconscious from the beating, a fourth person, Collin Ressor, stabbed Repreza, causing his death.

¶ 3 Defendant originally was charged with murder, a first-degree felony, subject to a gang enhancement. However, the State, as part of plea bargain negotiations, offered to reduce the charge to aggravated assault, a second-degree felony, subject to a gang enhancement. In a separate paragraph, the second amended information stated that Defendant was subject to an enhanced penalty because the crime was committed in concert with two or more persons. The State also agreed that if the court sentenced Defendant to prison, the State would remain silent on a motion to reduce the degree of the offense to a third-degree felony.

¶ 4 On October 20,1999, Defendant accepted the State’s plea offer and pleaded guilty to committing an aggravated assault in concert with two or more persons. In particular, Defendant’s plea affidavit set forth the elements of Defendant’s crime as “[t]he actor commits an assault and intentionally causes serious bodily injury to another. He does so in concert with two or more people.” Additionally, Defendant admitted to the following facts in his affidavit:

My conduct, and the conduct of other persons for which I am criminally liable, that constitutes the elements of the crime charged are as follows: On October 31, 1998, in Salt Lake County, Utah, I intentionally struck Bernard[o] Repreza in the head with a club. According to Dr. Leis [, an assistant medical examiner for the State of Utah], this resulted in serious bodily injury. Immediately prior to my striking him, Jason Cunningham struck him with a baton. We had been urged to chase and “get him” by a third person.

Defendant also stated in his plea affidavit, “I know that if I wish to contest the charge against me, I need only plead ‘not guilty’ and the matter will be set for trial. At the trial the State of Utah will have the burden of proving each element of the charge beyond a reasonable doubt.”

¶ 5 During the plea colloquy, Defendant’s attorney stated that Defendant had read and understood the plea affidavit and that Defendant had signed it in his presence. When questioned by the court, Defendant indicated that he intended to plead guilty to the second amended information charging him with aggravated assault with a gang enhancement. Defendant stated that he was satisfied with the advice of his attorney. Defendant also admitted to the facts constituting the aggravated assault charge with a gang enhancement. Additionally, Defendant stated that he understood that by admitting and pleading to the charge, he was admitting to every element of the offense. Defendant further indicated that he understood that the penalty for the aggravated assault with the gang enhancement was six to fifteen years at the Utah State Prison. Defendant then pleaded guilty to the charge of second degree aggravated assault with a gang enhancement.

¶ 6 On December 15, 1999, Defendant was sentenced to six to fifteen years at the Utah State Prison. The Findings of Fact, Conclusions of Law, and Order were entered on February 15, 2000. Defendant timely filed a petition for post-conviction relief on February 15, 2001, pursuant to Utah Code Annotated sections 78-35a-101 to -304 (1996) and Utah Rule of Civil Procedure 65C. The trial court dismissed Defendant’s petition as frivolous on its face. On appeal, we held the trial •court erred when it found the petition frivolous on its face, and we reversed and remanded directing the State to file a response and for the court to hold, if necessary, an evidentiary hearing.

¶ 7 On December 4, 2002, the trial court ordered the State to respond to Defendant’s petition, and on March 4, 2003, the trial court heard oral arguments. The trial court entered its Findings of Fact, Conclusions of Law, and Order denying Defendant’s petition for post-conviction relief on March 31, 2003. Defendant appeals.

ISSUES AND STANDARD OF REVIEW

¶8 Defendant argues that the trial court erred by denying his petition for post-conviction relief because he had (1) been sentenced improperly under the gang enhancement statute without every element of the crime having been established beyond a reasonable doubt, (2) not entered a voluntary and knowledgeable guilty plea, and (3) received ineffective assistance of counsel. “We review an appeal from an order dismissing or denying a petition for post-conviction relief for correctness without deference to the lower court’s conclusions of law.” Rudolph v. Galetka, 2002 UT 7,¶ 4, 43 P.3d 467 (citing Julian v. State, 966 P.2d 249, 252 (Utah 1998)).

ANALYSIS

I. Gang Enhancement Statute

¶ 9 Defendant argues that the trial court erred by sentencing him under the gang enhancement statute without having established each element of the gang enhancement statute beyond a reasonable doubt either (1) at a trial where the State proved the criminal liability of the others involved in the incident, or (2) through guilty pleas to identical crimes by the others involved in the incident. We disagree.

¶ 10 The gang enhancement statute provides an increased penalty for certain crimes if committed “in concert with two or more persons.” Utah Code Ann. § 76-3-203.1(l)(a) (1998). To be guilty of acting “in concert” under section 76-3-203.1(l)(a), the actors “must (i) have possessed a mental state sufficient to commit the same underlying offense and (ii) have directly committed the underlying offense or solicited, requested, commanded, encouraged, or intentionally aided one of the other.two actors to engage in conduct constituting the underlying offense.” State v. Lopes, 1999 UT 24, ¶ 8, 980 P.2d 191.

¶ 11 The Utah Supreme Court addressed the constitutionality of section 76-3-203.1(5)(c) in State v. Lopes. As originally drafted, the statute required “[t]he sentencing judge rather than the jury [to] decide whether to impose the enhanced penalty ... contingent upon a finding by the sentencing judge that this section is applicable.” Utah Code Ann. § 76-3-203.1(5)(c) (Supp.1999). The supreme court stated that the gang enhancement-statute “mandated imposition of an enhancement only upon proof of elements over and above those required for the crime of lesser consequence.” Lopes, 1999 UT 24 at ¶ 15, 980 P.2d 191. The court reasoned that because the statute created a separate offense apart from the underlying offense, each element must be found beyond a reasonable doubt by a jury rather than the trial judge. See id. at ¶ 17. Thus, the court concluded that subsection (5)(c) violated Lopes’s right to a jury trial under article I, section 12 of the Utah Constitution. See id.

¶ 12 Defendant argues that the holding in Lopes prevents a defendant from pleading guilty to a gang enhancement without either (1) a trial where the State proves the criminal liability of the in-concert actors involved in the incident or (2) the actors pleading guilty to the identical crime. Defendant relies upon the following statement in Lopes to support this contention: “Even though Lopes pled guilty to the underlying offense, his plea did not establish the requisite mental state of the other actors, as is necessary to support imposition of the gang enhancement.” Id. However, under the particular facts of Lopes, the defendant entered a conditional guilty plea to the gang enhancement, preserving his right to appeal the constitutionality of the statute. See id. at ¶3. The defendant in Lopes “never conceded that all the elements of the enhancement statute were satisfied, i.e., that the other individuals shared the requisite mental state for murder.” Id. at ¶ 4 n. 3.

¶ 13 Unlike the defendant in Lopes, Defendant in this case entered an unconditional plea admitting that he had committed an aggravated assault “in concert with two or more people.” Defendant admitted the elements of both the aggravated assault and the gang enhancement in his plea affidavit. In particular, Defendant admitted that he had committed an aggravated assault in concert with Cunningham, who had beat Repreza with an expandable police baton, and Darger, who had encouraged both Cunningham and Defendant to “get” Repreza.

¶ 14 Furthermore, the supreme court indicated in Lopes that defendants may plead guilty to a crime with a gang enhancement without a finding by a jury of the requisite elements. Id. at ¶22. In particular, the court stated in Lopes that “[sjince the elements of the crime were not established against Lopes, either by his plea or by a jury trial, he was deprived of his due process rights as guaranteed by the federal and Utah constitutions.” Id. (emphasis added).

¶ 15 Therefore, we hold that the trial court properly sentenced Defendant under the gang enhancement statute because Defendant admitted every element of both the underlying crime and the gang enhancement. Thus, we affirm Defendant’s sentence under the gang enhancement statute.

II. Validity of Defendant’s Plea

¶ 16 Defendant contends the trial court erred in finding that Defendant’s guilty plea was entered knowingly and voluntarily. Specifically, Defendant asserts that his guilty plea was invalid because the trial court did not comply strictly with rule 11 of the Utah Rules of Criminal Procedure when it failed to ascertain whether Defendant understood the nature and the elements of aggravated assault with a gang enhancement. Defendant further argues that his plea was insufficient to establish the factual basis for imposing the gang enhancement.

¶ 17 “ ‘The purpose of rule 11 is to ensure that a defendant knows of his or her rights and thereby understands the consequences of a decision to plead guilty.’ ” State v. Mora, 2003 UT App 117,¶ 18, 69 P.3d 838 (quoting State v. Martinez, 2001 UT 12,¶ 22, 26 P.3d 203). “The findings mandated by rule 11 ‘may be based on questioning of the defendant on the record or, if used, an affidavit reciting these factors after the court has established that the defendant has read, understood, and acknowledged the contents of the affidavit.’ ” State v. Visser, 2000 UT 88, ¶ 12, 22 P.3d 1242 (quoting Utah R.Crim. P. 11(e)(8)). While it is the responsibility of the trial judge to ensure that strict compliance with rule 11 is established, “ ‘strict compliance can be accomplished by multiple means so long as no requirement of the rule is omitted and so long as the record reflects that the requirement has been fulfilled.’ ” State v. Penman, 964 P.2d 1157, 1160 (Utah Ct.App.1998) (quoting State v. Maguire, 830 P.2d 216, 218 (Utah 1991)). However, in post-conviction relief cases, “a failure to comply with Utah’s rule 11 in taking a guilty plea does not in itself amount to a violation of a defendant’s rights under either the Utah or the United States Constitution.” Salazar v. Warden, 852 P.2d 988, 992 (Utah 1993). To obtain post-conviction relief, Defendant

must show more than a violation of the prophylactic provisions of rule 11; he ... must show that the guilty plea was in fact not knowing and voluntary. Further, a court considering such a claim is not limited to the record of the plea hearing but may look at the surrounding facts and circumstances, including the information [Defendant] received from his ... attorney[ ] before entering the plea.

Id.

¶ 18 Defendant argues that the trial court erred by accepting his guilty plea without verifying that he understood the nature and elements of aggravated assault and the gang enhancement. Defendant claims that he did not understand the elements of his crime because the trial court never informed him during the plea colloquy that the gang enhancement could not be imposed unless the State had established accomplice liability. However, as addressed above, it is unnecessary for the State to prove beyond a reasonable doubt the guilt of the other participants; the gang enhancement may be imposed based solely on Defendant’s guilty plea.

¶ 19 Moreover, the record demonstrates that Defendant understood he was pleading guilty to aggravated assault with a gang enhancement. In particular, Defendant’s plea affidavit set forth the elements of Defendant’s crime as “[t]he actor commits an assault and intentionally causes serious bodily injury to another. He does so in concert with two or more people.” During the plea colloquy, Defendant’s attorney indicated that he was confident that Defendant understood the contents of the plea affidavit. Upon questioning by the trial court, Defendant stated that he intended to plead guilty to the second amended information charging him with aggravated assault with a gang enhancement. Defendant admitted to facts constituting the elements of the aggravated assault with a gang enhancement in his plea affidavit and during the plea colloquy. Defendant also indicated he understood that the penalty for aggravated assault with a gang enhancement was six to fifteen years. Thus, we hold that the trial court properly concluded that Defendant’s plea was knowingly and voluntarily entered.

III. Ineffective Assistance of Counsel

¶ 20 Defendant argues that he received ineffective assistance of counsel because his attorney (1) persuaded him to enter a guilty plea when he knew or should have known that the State could not have proven its initial ease of first-degree murder, and (2) allowed him to enter a guilty plea without a factual basis for the plea.

¶ 21 To demonstrate ineffective assistance of counsel, Defendant must establish “ ‘that his counsel rendered deficient performance which fell below an objective standard of reasonable professional judgment and that counsel’s deficient performance prejudiced him.’ ” State v. Simmons, 2000 UT App 190, ¶ 4, 5 P.3d 1228 (quoting State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

To prevail on the first prong, [Defendant] must overcome a strong presumption that counsel rendered adequate assistance. [Defendant] must identify specific acts or omissions demonstrating that counsel’s representation failed to meet an objective standard of reasonableness. We give counsel wide latitude to make tactical decisions and will not question such decisions unless we find no reasonable basis for them.

Taylor v. Warden, 905 P.2d 277, 282 (Utah 1995) (quotations and citations omitted). In evaluating this prong, a court must make every effort to “eliminate the distorting effects of hindsight” and “evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. “As to the second prong, [Defendant] must proffer evidence sufficient to support a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.” Taylor, 905 P.2d at 282 (quotations and citations omitted). Moreover, “[w]here a defendant challenges a guilty plea on grounds of ineffective assistance of counsel, he or she must show ‘a reasonable probability that, but for counsel’s errors, he [or she] would not have pleaded guilty and would have insisted on going to trial’ ” Parsons v. Barnes, 871 P.2d 516, 525 (Utah 1994) (alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)).

¶ 22 Defendant argues that his attorney’s conduct fell below the objective standard of reasonable professional judgment and this allegedly deficient conduct prejudiced Defendant. Specifically, under Defendant’s original charge of murder, Defendant asserts that the State could not have proven beyond a reasonable doubt that Defendant’s conduct “created a grave risk to [Repreza] and thereby caused the death of [Repreza,]” or that he caused serious bodily injury to Repreza which caused his death. Utah Code Ann. § 76-5-203(b), (e) (1998). For this reason, Defendant concludes that a reasonably prudent attorney would have known' that a jury could not have found Defendant guilty of murder because the evidence demonstrated that Defendant’s blow to Repreza did not and would not have caused Repreza’s death. Defendant further asserts that Darger’s subsequent acquittal on the murder charge for the same incident demonstrates that Defendant likely also would have been acquitted of murder.

¶23 The State argues that although the evidence might have established that Defendant did not directly cause Repreza’s death, Defendant could have been convicted as an accomplice to murder pursuant to Utah Code Annotated section 76-2-202 (1999). This statute provides that a person who possesses the requisite mental state and “solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense” may be convicted of the offense as an accomplice, even though that person did not directly commit the offense. Id. The State concludes that because the beating Defendant inflicted on Repreza rendered him unconscious, it provided Ressor the opportunity to stab and kill him. The State also asserts that the acquittal of Darger is a poor indicator for predicting what would have occurred had Defendant gone to trial because, as the trial court found, Darger was not as culpable as Defendant in that Darger never struck Repreza. The State further argues that comparing the outcome of Darger’s trial with the hypothetical outcome of Defendant’s trial is exactly the type of second-guessing hindsight prohibited by Strickland. See 466 U.S. at 689, 104 S.Ct. at 2065.

¶ 24 We agree with the State. Defendant has not demonstrated that his counsel’s conduct fell below an objectively reasonable standard if we “eliminate the distorting effects of hindsight.” Id. at 689, 104 S.Ct. at 2065. Defendant has failed to “overcome the presumption that under the circumstances, the challenged action ‘might be considered sound ... strategy.’ ” Id. (citation omitted). Because Defendant has failed to establish the deficient-performance prong of the Strickland test, “counsel’s assistance was constitutionally sufficient, and we need not address the other part of the test.” State v. Medina-Juarez, 2001 UT 79,¶ 14, 34 P.3d 187.

CONCLUSION

¶ 25 We conclude that the trial court properly denied Defendant’s petition for post-conviction relief because Defendant (1) was properly sentenced under the gang enhancement statute, (2) entered a voluntary and knowledgeable guilty plea, and (3) received effective assistance of counsel. Therefore, we affirm.

¶ 26 WE CONCUR: JAMES Z. DAVIS, Judge and GREGORY K. ORME, Judge.

      . The gang enhancement statute, see Utah Code Ann. § 76-3-203.1 (2003), is more properly referred to as the "group criminal activity” statute. However, because Utah courts commonly refer to it as the "gang enhancement” statute, for purposes of consistency, we also refer to it as the gang enhancement statute.


author: BENCH, Associate Presiding Judge: THORNE, Jr., Judge

text:
    2004 UT App 51
    STATE of Utah, Plaintiff and Appellee, v. Colby REES, Defendant and Appellant.
    No. 20011026-CA.
    Court of Appeals of Utah.
    March 11, 2004.

      Franklin Richard Brussow, Salt Lake City, for Appellant.

      Mark L. Shurtleff, atty. gen., and Erin Riley, asst. atty. gen., Salt Lake City, for Appellee.
    Before BENCH, Associate P.J., ORME and THORNE Jr., JJ.
   MEMORANDUM DECISION

BENCH, Associate Presiding Judge:

¶ 1 Colby Rees appeals his conviction of Attempted Forcible Sexual Abuse, a third degree felony, in violation of Utah Code Annotated Sections 76-5-404 and 76-4-101 (2003). We affirm.

¶2 Rees essentially argues that evidence of his prior conviction was inadmissible character evidence pursuant to Utah Rule of Evidence 404(b). When analyzing the admissibility of bad-acts evidence, the trial court must determine “(1) whether the evidence is being offered for a proper, non-character purpose under rule 404(b), (2) whether such evidence meets the requirements of rule 402, and (3) whether the evidence meets the requirement of rule 403.” State v. Decorso, 1999 UT 57, ¶ 20, 993 P.2d 837, cert. denied, 528 U.S. 1164, 120 S.Ct. 1181, 145 L.Ed.2d 1088 (2002).

¶3 At trial, the State argued that the purpose in offering evidence of Rees’s past sexual offense was to show his “motive, intent to gratify his sexual desires, and absence of mistake or accident,” and the victim’s lack of consent. His past actions— making a sexual remark and inappropriately touching a woman in a parking lot — are consistent with the allegation that Rees was attempting to gratify “sexual desire” when he took the hand of the victim and pulled her down toward his erect and exposed penis. Utah Code Ann. § 76-5-404(1). Motive, intent, or absence of mistake or accident are purposes expressly allowed under rule 404(b). Accordingly, the evidence was properly offered for non-character purposes.

¶ 4 The next inquiry is “whether the bad acts evidence meets the requirements of rule 402, which permits admission of only relevant evidence.” State v. Nelson-Waggoner, 2000 UT 59, ¶ 19, 6 P.3d 1120. Rule 401 of the Utah Rules of Evidence defines relevant evidence as “evidence having 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.” However, “unless the other crimes evidence tends to prove some fact that is material to the crime charged — other than the defendant’s propensity to commit crime — it is irrelevant and should be excluded.” Decorso, 1999 UT 57 at ¶ 22, 993 P.2d 837. Prior bad-acts evidence “ ⅛ both relevant and material to the issue of consent.’ ” Nelson-Waggoner, 2000 UT 59 at ¶ 24, 6 P.3d 1120 (citation omitted). Furthermore, intent is an essential element of the charges against Rees, and thus relevant. Therefore, the bad-acts evidence is relevant pursuant to rule 402.

¶ 5 The final inquiry is whether the probative value of the evidence was outweighed by the danger of unfair prejudice, pursuant to rule 403. In determining whether the evidence of Rees’s prior conviction met the requirements of rule 403,

“ ‘a variety of matters must be considered, including the strength of the evidence as to the commission of that crime, the similarities between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree which the evidence probably will rouse the jury to overmastering hostility.’ ”

Nelson-Waggoner, 2000 UT 59 at ¶ 20, 6 P.3d 1120 (quoting Decorso, 1999 UT 57 at ¶ 29, 993 P.2d 837) (other citations omitted). A review of the record reveals that the trial court properly considered these matters. First, there were several similarities between the two crimes including the fact that both “involved the uninvited obscene touching of completely unknown women for the purpose of sexual gratification.” State v. Rees, 2002 UT App 347. Second, the time between the incidents was only four months. Because “ ‘proximity in time combined with similarity in type of crime virtually guarantees admittance of prior acts evidence,’ ” Nelson-Waggoner, 2000 UT ¶ 59 at 29, 6 P.3d 1120 (citation omitted), “the combination of these two factors makes the bad acts evidence in this case highly probative.” Id. Furthermore, the need for the evidence was great. It was essentially the only evidence of Rees’s intent, other than the victim’s speculation. Finally, there is no reasonable indication that the evidence would rouse the jury to “overmastering hostility.” Id. at ¶ 20. The trial court therefore properly admitted the evidence.

¶ 6 Additionally, Rees claims that the evidence failed to prove that he attempted to use force, threat, or intimidation to overcome the victim’s earnest resistance. See Utah Code Ann. § 76-5-406 (1988). However, Rees relies on an old and inapplicable version of the statute. While the 1988 version defines “without consent” as a use of force or threat to overcome the victim’s earnest resistance, the version applicable in this case provides that lack of consent can be merely expressed “through words or conduct.” Utah Code Ann. § 76-5-406 (2003). Language requiring that the victim earnestly resist is eliminated. Thus forcible sexual abuse “may be prosecuted solely on the basis of lack of consent by the victim, absent any actual force or violence.” State v. Hammond, 2001 UT 92, ¶ 16, 34 P.3d 773. “ ‘The determination of whether ... consent was present or absent in any given case is factual in nature, and is thus a matter for determination by the finder of fact.’ ” In re J.F.S., 803 P.2d 1254, 1257 (Utah Ct.App.1990) (citation omitted). In reviewing a jury verdict, we accord “high deference to the fact-finder” and do not “substitute our judgment for that of the fact-finder.” State v. Hamilton, 2003 UT 22, ¶ 38, 70 P.3d 111 (other quotations and citation omitted). In this case, there was sufficient evidence of lack of consent to justify the jury’s verdict.

¶ 7 We therefore affirm.

¶ 8 I CONCUR IN THE RESULT: GREGORY K. ORME, Judge.

THORNE, Jr., Judge

(dissenting):

¶ 9 I respectfully dissent.

¶ 10 Although case law makes clear that when specific intent is an element of the charged crime, and the purpose of the evidence is not to attack the defendant’s character, prior bad-act evidence is not prohibited, see, e.g., United States v. Hernandez, 84 F.3d 931, 935 (7th Cir.1996) (stating “when a defendant is charged with a specific intent crime, the government may present other acts evidence [in its case-in-ehief] to prove intent” (quotations and citation omitted)), case law also makes clear that the such evidence must satisfy the requirements of rules 402 and 403, of the Utah Rules of Evidence, before it is deemed admissible.

¶ 11 To be admissible,
the evidence [first] must be directed toward establishing a matter in issue other than the defendant’s propensity to commit the charged crime. Second, the ‘other act’ must be similar to the charged conduct and be close enough in time to be relevant to the matter at issue. Third, the evidence [of the prior act] must be sufficient to support a jury finding that the defendant committed the similar act. Finally, the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice.

Hernandez, 84 F.3d at 935.

¶ 12 Here, because Rees had been convicted for the prior act in question, we may assume that the State satisfied the third element of the standard. Consequently, the analysis will turn on the outcome of the remaining three. First, we must examine whether the evidence was directed toward an issue in dispute and not toward showing Rees’s propensity to commit sex crimes. Although it may appear that the State’s decision to use the evidence was motivated by its desire to show Rees’s propensity to commit the charged crime, the State argued that its purpose was to show intent. Because intent is always at issue in a specific intent crime, the State’s assertion is sufficient to satisfy the first element, despite the fact that Rees presented no testimony.

¶ 13 Second, we must consider whether the evidence satisfies the relevancy requirement of rule 402 of the Utah Rules of Evidence, or, in other words, we must determine whether the prior act is “similar to the charged conduct and ... [occurred] close enough in time to be relevant to the matter at issue.” Hernandez, 84 F.3d at 935. The prior act offered by the State in this case involved an incident wherein Rees placed his hands on the covered genital area of a female victim, after he followed her for a time. Rees saw the previous victim at a store, followed her as she left the store and went to her car, and approached her. He briefly spoke to the victim, commented on her anatomy, and then groped her. In the instant case, however, Rees was accused of approaching the victim, engaging her in conversation, and then luring her to his car by proffering his hand. The victim took his hand in the mistaken belief that Rees’s act was a friendly gesture. Instead, Rees used the ruse to draw her attention toward his exposed penis. He did not attempt to touch her genitals, nor does it appear that he attempted to force her to touch his.

¶ 14 Although both acts involve an attempt at either sexual gratification, or an attempt to cause emotional pain, the similarities end there. In the prior case, Rees followed the victim and imposed himself upon her by grabbing and fondling her. In this case, Rees sought to have the victim approach and then displayed his exposed genitals to her. Although certain superficial similarities exist between the cases — i.e., they both involve sexual offenses — I do not share the lead opinion’s conclusion that Rees’s previous assault was similar enough to the instant case to justify its admission into evidence. Accordingly, I would conclude that the evidence does not satisfy all of the relevancy requirements necessary for admission under rule 404(b).

¶ 15 Furthermore, if we assume that Rees’s prior assault was sufficiently similar to the instant case, thus satisfying any relevancy concerns, I believe that the probative value of the prior act evidence, as presented in this case, was substantially outweighed by the danger of unfair prejudice. Specifically, the prior act itself was inflammatory and of little real value to proving the elements necessary for conviction in the instant case. Moreover, the State’s decision to replicate the previous trial — virtually in its entirety — • was particularly inflammatory and of no real probative value to the instant case.

¶ 16 After introducing its direct evidence, the State called the victim of the previous assault, called the officer who investigated the previous assault, admitted into evidence a photo of the previous crime scene, and played for, and submitted to, the jury an audio-taped interrogation of Rees made during the investigation of the prior act. Accepting, for the sake of this discussion, that the previous act evidence was admissible to prove Rees’s intent, the sheer volume of evidence amounted to a retrial of Rees’s previous assault. When viewed against the backdrop of the direct evidence presented to the jury concerning this assault, the State’s prior act evidence was overwhelming. The extraordinary detail presented concerning Rees’s prior act was simply not necessary to prove the contested element of intent and, instead, served only to inflame the jury’s hostility toward Rees.

¶ 17 Because the prior bad-act evidence involved a sexual assault, albeit one substantially dissimilar from that alleged in the instant case, I believe that the trial court abused its discretion in determining that the evidence was not “substantially more prejudicial than probative.” Utah R. Evid. 403. Admittedly, the evidence demonstrated that Rees had a propensity to seek sexual gratification from women unknown to him. However, it did nothing to prove or disprove his guilt in this case. Nor did it provide a necessary connection to his methods, his patterns, his motive, or his identity. The evidence did, however, demonstrate to the jury that Rees is a reprehensible human being who had, in the past, inflicted himself upon an unsuspecting and unwilling young woman.. The importance of the prior act evidence to the instant case was insufficient to counterbalance the State’s decision to present it in an extremely detailed and inflammatory fashion. The quality and volume of the evidence prejudiced the jury and ensured that Rees was convicted for being a bad person, rather than for the crime in question. Consequently, the evidence was substantially more prejudicial than probative and it should never have been admitted as evidence in this trial.

¶ 18 Accordingly, I disagree with the lead opinion’s conclusion that the evidence was properly admitted, and would, instead, reverse Rees’s conviction and remand this case for a new trial.

      . Rees also argues that he was denied due process when the trial court refused to give his proposed jury instructions regarding the “lack of consent” element of the crime. However, because Rees relied on an old and inapplicable version of the statute, the court properly refused "to give an instruction that misstates the law.” State v. Hamilton, 827 P.2d 232, 238 (Utah 1992).

      . In United States v. Hernandez, 84 F.3d 931 (7th Cir.1996), the Seventh Circuit Court of Appeals outlined the factors to apply when "reviewing the admissibility of 404(b) evidence.” Id. at 935. I believe that these factors not only mirror the Utah requirements, they describe the process that a trial court should apply when faced with situations like that presented here.

      . Not only did the State call the victim of the prior act to testify, the State also called the police officer who investigated the prior act. The State additionally introduced into evidence a photograph of the previous crime scene and an audiotape of Rees’s interrogation performed during the investigation of the previous act, which the trial court then allowed into the jury room during its deliberations. Finally, during its closing argument, the State labeled Rees "a sexual predator” and argued that "we know what he did before, four months prior to this, and we know what he did with this.... He’s out there and he's just preying upon stranger women who he thinks are attractive.”

      . Rees was charged with attempted forcible sexual abuse, a violation of Utah Code Annotated sections 76-5-404 and 76-4-101 (1999). Because attempt is a crime of specific intent, see State v. Vigil, 842 P.2d 843, 846-47 (Utah 1992) (determining that, in Utah, attempt is a crime of specific intent), overruled on other grounds by State v. Casey, 2003 UT 33, 82 P.3d 1106, the State may properly introduce relevant prior act evidence to demonstrate Rees’s intent in the instant case.

      . Because the prior act occurred less than six months before this incident, I believe it satisfies the timing requirement set forth in Hernandez. See 84 F.3d at 935; see also State v. Nelson-Waggoner, 2000 UT 59,¶¶ 20, 29, 6 P.3d 1120. Accordingly, I address only the lack of similarities between the events.