author: BENCH, Judge:

text:
    2002 UT App 291
    STATE of Utah, Plaintiff and Appellee, v. Tracy Micah ALLRED, Defendant and Appellant.
    No. 20010113-CA.
    Court of Appeals of Utah.
    Sept. 12, 2002.

      Heather Johnson and Lisa J. Remal, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General and Marian Decker, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges JACKSON, BENCH, and GREENWOOD.
   OPINION

BENCH, Judge:

T1 Defendant appeals his conviction of possession of a controlled substance with intent to distribute. We affirm.

BACKGROUND

12 While on patrol in Liberty Park, Officers Dimond and Evans approached a picnic table where Defendant and five other people were sitting. The officers asked if they had seen any drug activity in the area and were told no. The officers then asked the individuals for identification and checked for outstanding warrants. None of the individuals had warrants. As the officers were preparing to leave, one of them noticed a black bag underneath the picnic table with no one sitting near it. The officers asked who owned the bag, and all six individuals denied ownership. The officers also asked other people in the vicinity and no one claimed ownership. When the officers looked inside the bag to locate anything to identify its owner, they discovered some car stereos, a couple of baggies of marijuana, and eighty-two empty one-inch square baggies.

§38 The officers took each person aside separately and again inquired as to the bag's owner. All six again denied any knowledge of the bag. The officers then conferred with one another, within hearing distance of the people at the picnic table, as to how they could identify who owned the bag. The officers discussed bringing a police dog to the scene. The officers had available to them two types of police dogs: canines and bloodhounds. Canines are dogs specifically trained to locate narcotics, and are also used to apprehend fleeing suspects. The officers expressed some reservations about bringing a canine to the scene because of its training to treat narcotics as a toy. One of the officers said he had seen a canine nip a suspect who had stuffed narcotics down his pants. Ultimately, the officers decided to call for a bloodhound to come to the scene because bloodhounds are trained only to locate a particular scent, either a person or an object.

T4 After the officers had this discussion, but prior to the bloodhound's arrival on the seene, Defendant confessed that he owned the bag (the pre-Miranda confession). The officers arrested Defendant, told him they wanted to ask him a few questions, and asked him if he had ever been read the Miranda warnings. See Miranda v. Arizona, 384 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant said that he had. Officer Evans nonetheless explained the Miranda rights, after which Defendant agreed to talk to the officers. Defendant again admitted that the bag belonged to him, and admitted to selling marijuana in the park (the post-Miranda confession). The bloodhound eventually arrived at the scene, but did not leave the transport car until after Defendant was arrested and seated in the back of Officer Dimond's car.

1 5 Defendant was charged with possession of a controlled substance with the intent to distribute. In a pretrial motion, Defendant moved to suppress the evidence of his confessions alleging that they were the results of police misconduct. The trial court suppressed Defendant's pre-Miranda confession, but allowed in his post-Miranda confession. During the trial, Defendant moved for a mistrial alleging that the State had violated a pretrial stipulation regarding evidence of car stereos found in the bag with the marijuana, and that the jury had been tainted by a statement of one of the officers that Defendant had been read his Miranda rights before. The trial court denied the motion, concluding that Defendant's arguments were without merit. However, in an abundance of caution, the trial court offered a curative instruction regarding the officer's Miranda statements.

T6 At trial, Defendant called Sonya Ortiz, one of the six people sitting at the picnic table, to testify on his behalf. Ms. Ortiz testified about an individual she knew only as "Clay." She said Clay had originally been with the group, but had left when the police officers approached. She claimed that Clay returned to the area approximately one hour after Defendant was arrested. Ms. Ortiz further testified that Clay was angry when he returned. Defense counsel attempted to elicit testimony from Ms. Ortiz that when Clay returned, he said that the bag was his. The State objected to this testimony as hearsay, and the trial court sustained the objection over Defendant's argument that the statement fell under the excited utterance exception to the hearsay rule.

T7 The jury found Defendant guilty of possessing a controlled substance with intent to distribute. Defendant now appeals.

ISSUES AND STANDARDS OF REVIEW

18 Defendant first argues that the trial court erred when it refused to suppress the post-Miranda confession, ruling that it was not obtained through coercion. "In reviewing the trial court's denial of [Defendant's] motion to suppress, we examine the underlying factual findings for clear error, and review the trial court's conclusions of law based thereon for correctness." State v. Hayes, 860 P.2d 968, 971 (Utah Ct.App.1998) (quotations and citations omitted). We may affirm the trial court's judgment on any ground available, whether or not it was relied on by the trial court. See Bailey v. Bayles, 2002 UT 58, ¶9, 450 Utah Adv. Rep. 34, 52 P.3d 1158.

19 Defendant next argues that the trial court erred when it denied his motion for mistrial. "We will not reverse a trial court's denial of a motion for mistrial absent an abuse of discretion." State v. Robertson, 932 P.2d 1219, 1230 (Utah 1997).

110 Finally, Defendant argues that the trial court erroneously concluded that the excited utterance exception to the rule against hearsay did not apply to Ms. Ortiz's testimony regarding Clay. When considering a trial court's determination regarding hearsay testimony, we must first determine " "whether the trial court's analysis involves a factual or a legal determination or some combination thereof." " State v. Parker, 2000 UT 51, ¶ 13, 4 P.3d 778 (quoting Hansen v. Heath, 852 P.2d 977, 978 (Utah 1998)). We apply a clearly erroneous standard because "the trial court's exclusion of the exculpatory statements turned on its factual determinations regarding the reliability of these statements." Id.

ANALYSIS

I. Confession

111 In denying Defendant's motion to suppress, the trial court first ruled that Defendant's pre-Miranda confession. was inadmissible because Defendant made the statement before receiving Miranda warnings. Although both parties addressed this issue in their memoranda supporting and opposing the motion to suppress, and again during the suppression hearing, neither party squarely addresses the issue on appeal.

[It is well settled that an appellate court may affirm the judgment appealed from "if it is sustainable on any legal ground or theory' apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action, and this is true even though such ground or theory is not urged or argued on appeal by appel-lee. ..."

Dipoma v. McPhie, 2001 UT 61, ¶18, 29 P.3d 1225 (quoting Limb v. Federated Milk Producers Ass'n, 23 Utah 2d 222, 461 P.2d 290, 293 n. 2 (1969)); see also Boud v. SDNCO, Inc., 2002 UT 83, ¶ 10, 56 P.3d 1148 Banks v. Means, 2002 UT 65, ¶7, 52 P.3d 1190. We conclude that there is adequate support in the record to affirm the trial court's judgment on the ground that the pre-Miranda confession was admissible. We also conclude that doing so presents no constitutional difficulties to Defendant, because the argument was made below.

112 In ruling on Defendant's motion to suppress, the trial court first concluded that Defendant's pre-Miranda confession was inadmissible because it "was made without benefit of the Miranda warnings." However, the United States Supreme Court has "held that these safeguards 'come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.'" Hayes, 860 P.2d at 971 (quoting Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). Thus, Defendant's pre-Miranda confession is inadmissible only if it was the result of a custodial interrogation. See id.

118 In Salt Lake City v. Carner, 664 P.2d 1168 (Utah 1983), the Utah Supreme Court identified four factors to be considered when determining whether an individual who has not been formally arrested is in custody. See id. at 1171. These factors are "(1) the site of the interrogation; (2) whether the investigation focused on the accused; (3) whether the objective indicia of arrest were present; and (4) the length and form of interrogation." Id. In this case, Defendant and the officers were in a public park sitting at a picnic table with others when Defendant first claimed ownership of the bag. Defendant was not the sole focus of the investigation; the officers asked the same questions to all six individuals in an attempt to identify the bag's owner. Moreover, none of the indicia of arrest were present except perhaps for the officers' empty threat to cite all of the individuals at the table for possession of marijuana. Defendant was not handcuffed, the officers did not have their guns drawn, and there were no indications that Defendant was to be moved to a more custodial environment such as a police car or police station. Officer Evans testified that the length of time between their initial contact with the individuals at the picnic table and Defendant's arrest was twenty to forty minutes. Defendant was therefore not in custody when he made the incriminating statements.

T 14 Further, Defendant was not subjected to either " 'express questioning or its functional equivalent'" when he confessed. Hayes, 860 P.2d at 971 (quoting Innis, 446 U.S. at 800, 100 S.Ct. at 1689). The only express questioning Defendant was subjected to was when the officer pulled him aside individually and asked if the bag was his or if he knew whose bag it was. This was the same question asked to the other five individuals, and Defendant responded to the question by denying ownership and any knowledge as to ownership.

15 We cannot conclude that the officers' discussion between themselves about bringing a dog to the seene was the functional equivalent of express questioning of Defendant. -It was not the type of discussion that " 'the police should know ... [was] reasonably likely to elicit an incriminating response from the suspect'" Id. (citation omitted). Defendant characterizes the conversation as a coercive tactic used by the police to wring a confession out of him through the implicit threat of attack by a vicious dog. The record does not support this position. Faced with an impasse in their investigation, the officers had a discussion between themselves, which, although conducted within the hearing of the individuals at the picnic table, did not include and was not directed at them. The officers were not making threats, veiled or otherwise, but were discussing their options to further the investigation and identify the bag's owner. In deciding that it might be advisable to bring a dog to the seene, they discussed their options as to a canine or a bloodhound. Any references to a certain canine's propensity to nip individuals concealing drugs on their person was made in the context of the officers' reservations about bringing this type of dog to the scene. Thus, the officers determined to call for a bloodhound, not a canine, out of concern for the safety of the individuals in the park. Therefore, we cannot agree that the officers' discussion about dogs was the functional equivalent of interrogation.

116 We have determined that the trial court erred in suppressing Defendant's pre-Miranda confession because it was not obtained as the result of a custodial interrogation. Given that, we readily agree with the trial court's ultimate conclusion that Defendant's post-Miranda confession was not obtained through coercion. If the totality of the cireumstances do not support a conclusion that Defendant was subject to a custodial interrogation, then they also do not support the conclusion that Defendant's confessions were obtained through "coercive tactics of the police [that] overcame the free will." State v. Galli, 967 P.2d 930, 936 (Utah 1998). Having concluded that the trial court correctly admitted Defendant's post-Miranda confession, we need not address Defendant's state constitution argument regarding harmfulness of the alleged error.

II. Motion for Mistrial

$17 Defendant argues that the trial court erred when it ruled that the State had not violated a pretrial stipulation, and denied his request for a mistrial. The stipulation concerned the car stereos found in the bag, which Defendant had admitted to police were stolen. Defendant's counsel objected prior to trial to the admission as a prior bad act and the State agreed that it would not introduce it for the purpose of showing that the car stereos had been stolen. Defendant's perception of the stipulation was that no mention would be made at all as to the contents of the bag other than the marijuana. During questioning of the officers, however, the State elicited testimony wherein they identified the bag as containing car stereos in addition to the marijuana. Defense counsel did not object at this point, but requested a sidebar, wherein she moved for a mistrial based on the State's violation of the pretrial stipulation. Both the prosecutor and the trial judge said that their perception of the stipulation was only that the prosecution would not refer to the stereos as stolen.

[ 18 The trial court interpreted the stipulation so as to fall legitimately within the confines of rule 404(b) of the Utah Rules of Evidence. Thus, although the prosecution's witness identified the additional items in the bag as car stereos, no mention was made as to the origin of the stereos. Defendant urges us to conclude that the mere mention of the car stereos is violative of rule 404(b) and was designed to portray him as a "person of evil character with a propensity to commit crime." State v. Daniels, 584 P.2d 880, 882 (Utah 1978). We disagree. The stereos were never identified as stolen and the jury was never informed of Defendant's admission that he had stolen them. The prosecutor's sole purpose in mentioning the other items in the bag was to bolster the State's proof that the bag was, in fact, Defendant's since he was familiar with its contents. Therefore, we conclude that the trial court did not err in allowing mention of the car stereos. Further, any error that may have resulted was harmless. See State v. Wetzel, 868 P.2d 64, 69 (Utah 1993) (holding that even if error was made, reversal is not warranted absent a showing of prejudice). The 'stereos were not introduced as products of a crime or other bad act, and other testimony, including Defendant's confession, provided the jury with ample evidence to find Defendant guilty of the crime charged.

119 Defendant also argues that the trial court should have granted a mistrial based on testimony from Officer Evans that after Defendant's arrest, he asked Defendant "if he had ever been read his Miranda rights. He said yes." Defendant argues that this identified him to the jury as a habitual erimi-nal. The trial court suggested a curative instruction, which defense counsel initially declined, but ultimately asked to be given to the effect that before questioning a suspect, officers will often check to see if the suspect has been administered his Miranda warnings by another officer.

120 " 'Onee the trial court has exercised [its] discretion and made [its]! judgment thereon, the prerogative of this court on review is much more limited." State v. Robertson, 932 P.2d 1219, 1231 (Utah 1997) (citation omitted) (alterations in original).

Unless a review of the record shows that the [trial] court's decision is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial, we will not find that the court's decision was an abuse of discretion.

Id. Defendant has not shown the requisite abuse of discretion. The trial court appropriately found that the statement did not "Imply to the average person listening any prior problems with the law. It is neutral in that respect." Nevertheless, the trial court offered a curative instruction, which was approved by defense counsel, to neutralize any possible negative effect. See State v. Harmon, 956 P.2d 262, 271-72 (Utah 1998) (stating curative instructions are a necessary tool used by trial courts to correct errors). We therefore cannot conclude that the trial court abused its discretion in denying Defendant's motion for mistrial.

III. Excited Utterance

121 Defendant's final claim of error relates to the exclusion of Ms. Ortiz's hearsay testimony as to what Clay said upon returning to the picnic table. Defendant argues that Clay's statements should have come in pursuant to the excited utterance exception to the rule against hearsay. See Utah R. Evid. 8032).

122 "Exceptions to the hearsay rule are based on factors that provide assurances of testimonial reliability sufficient to dispense with the usual means of purging testimony of error and falsehood." State v. Smith, 909 P.2d 236, 239 (Utah 1995). The trial court found that there was not sufficient evidence about Clay to provide these assurances of reliability. We agree.

In assessing a declarant's state of mind, . it is necessary to consider the likely effects of the declarant's age, the declar-ant's physical and mental condition, the cireumstances and nature of the startling event, the subject matter of the statement, and the time lapse between the event and the utterance.

Id. at 240. It was impossible for the trial court to evaluate Clay's state of mind because nothing was known about him except his first name. Further, we agree with the trial court that the cireumstances do not amount to a situation that induces a "mental state that tends to block reflection and the reasoning process." Id. at 241. We thus conclude that the trial court did not clearly err in finding that the hearsay statements did not fit within the excited utterance exception.

CONCLUSION

123 We affirm the trial court's decision permitting admission of Defendant's confession, although on alternate grounds. We conclude that Defendant's pre-Miranda confession was not the subject of a custodial interrogation; therefore, the lack of a Miranda warning is inapposite and no police illegality tainted the post-Miranda confession. We further conclude that the trial court did not abuse its discretion in denying Defendant's motion for mistrial, nor did it clearly err in excluding Ms. Ortiz's hearsay testimony.

124 Accordingly, we affirm Defendant's conviction.

€ 25 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and PAMELA T. GREENWOOD, Judge.

      . In Bailey v. Bayles, 2002 UT 58, 450 Utah Adv. Rep. 34, 52 P.3d 1158, the supreme court recognized that there may be certain circumstances where the alternate grounds relied upon by the appellate courts in affirming the lower court judgment may come as a surprise to the parties. See id. at 113 n. 3. In such circumstances, the court recommended giving the parties the option to argue the alternate grounds in supplemental briefing so that issues regarding timely and adequate notice can be resolved. See id. We do not see the need for supplemental briefing in this case, since the issue of the admissibility of the pre-Miranda confession was raised and argued by both parties in their memoranda to the trial court regarding the suppression motion.


source: Caselaw Access Project

author: BILLINGS, Associate Presiding Judge:

license: Public Domain

text:
    2002 UT App 290
    STATE of Utah, Plaintiff and Appellee, v. Lee WALKER, Defendant and Appellant.
    No. 20010012-CA.
    Court of Appeals of Utah.
    Sept. 12, 2002.
    Harold J. Dent Jr., Scarth & Dent, St. George, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Jeffrey S. Gray, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before JACKSON, P.J., BILLINGS, Associate P.J., and THORNE, J.
   OPINION

BILLINGS, Associate Presiding Judge:

1 1 Appellant Lee Walker appeals from his convictions of Securities Fraud, a class A misdemeanor, in violation of Utah Code Ann. §§ 61-1-1 (2000) and 61-1-21(2)(b)(T) (2000 & Supp.2002), and Money Laundering, a third degree felony, in violation of Utah Code Ann. § 76-10-1908 (1999). We dismiss the appeal.

BACKGROUND

1 2 Because this appeal raises issues relating to Walker's previous appeals, much of the extensive procedural history is set forth below.

13 A jury found Walker guilty of securities fraud and money laundering on October 21, 1998. Following a sentencing hearing on January 21, 1999, the trial court's Judgment, Stay of Imposition of Sentence, and Order of Probation was entered on February 3, 1999.

4 In its judgment, the trial court stated that "the imposition of any sentence in this matter is stayed." The court further ordered that Walker be "placed on supervised probation for a period of thirty-six (86) months." The judgment stated that the trial court "specifically retains jurisdiction" over the case and Walker personally "for the purpose of making such Orders and Judgments or Commitments as the same may become necessary or proper."

1 5 Walker timely appealed the trial court's judgment. This court dismissed the appeal without prejudice, holding that it did not have jurisdiction because Walker had not yet been sentenced. See State v. Walker, 1999 UT App 241, 1999 WL 33244825, No. 990198-CA (Aug. 19, 1999) (per curiam) (Walker I ).

T6 On June 18, 1999, Walker filed a Motion for Arrest of Judgment and Motion for a New Trial. These motions were denied by the trial court and Walker again appealed to this court. This court dismissed Walker's appeal because the notice of appeal was untimely, see State v. Walker, 2000 UT App 148, 2000 WL 38250547, No. 20000181-CA (May 18, 2000) (per curiam) (Walker II ), and the case was remitted back to the trial court.

17 On August 31, 2000, Walker filed a Motion to Enter Conviction Pursuant to Utah Code Ann. § 76-3402 (1999) and to Terminate Probation. A hearing on the motion was held on September 7, 2000, and the trial court entered an Amended Judgment on December 8, 2000. The Amended Judgment lowered both convictions one degree-securities fraud to a class A misdemeanor and money laundering to a third degree felony. However, because the prosecution did not give the consent required by Utah Code Ann. § 76-23-4028), the convictions were not lowered two degrees. The Amended Judgment also terminated supervised probation and placed Walker on bench probation for the balance of the original thirty-six month term, on the condition that Walker commit no law violations and that he "pay restitution as previously ordered, until the issue of restitution is resolved." The court again stated that it "specifically retains jurisdiction" over the case and Walker.

T8 Walker now appeals the Amended Judgment, claiming subsection 76-3-402(3) violates the separation of powers doctrine. In addition, Walker raises specific errors based on the jury trial itself. The State moved to dismiss this appeal, asserting that this court lacked jurisdiction for the same reason as that in Walker I-because Walker still has not been sentenced by the trial court, there continues to be no final, appeal-able order. Another panel of this court denied the State's motion, holding the trial court's Amended Judgment "constitutes a final appealable order." State v. Walker, No. 20010012-CA (Utah Ct.App. Dec.28, 2001) (December Order).

ANALYSIS

A. Law of the Case

19 As a threshold matter, the State continues to argue this court does not have jurisdiction to hear this appeal. The State previously raised this issue in a motion to dismiss this appeal, which was denied by the December Order. Because the State has "previously made [its] jurisdictional arguments to this court through a motion to dismiss this appeal," Linam v. King, 804 P.2d 1235, 1237 (Utah Ct.App.1991), this issue is now law of the case. See id. " 'Under [the law of the case doctrine], one panel of an appellate court will not reconsider matters resolved in a prior appeal [by] another panel in the same case' " State v. Ellis, 969 P.2d 1053, 1054 (Utah Ct.App.1998) (citation omitted) (second alteration in original). This doe-trine was developed in part " 'to avoid the delays and difficulties involved in repetitious contentions and reconsideration of rulings on matters previously decided in the same case." " Gildea v. Guardian Title Co., 2001 UT 75, ¶9, 81 P.8d 543 (quoting Thurston v. Box Elder County, 892 P.2d 1034, 1037 (Utah 1995)).

110 However, the law of the case doctrine "is not applied inflexibly." Id. "Indeed, this court need not apply the doctrine to promote efficiency at the expense of the greater interest in preventing unjust results or unwise precedent." Id. "Accordingly, the doctrine will generally not be enforced under the following exceptional cireumstances:

(1) when there has been an intervening change of controlling authority; (2) when new evidence has become available; or (8) when the court is convinced that its prior decision was clearly erroneous and would work a manifest injustice.

Id. (quoting Thurston, 892 P.2d at 1039). As our subsequent analysis explains, we conclude that we should revisit whether a conviction is final when a defendant has never been sentenced. We do so because we conclude the December Order was clearly erroneous. The December Order considered the same issue as presented in Walker I. The December Order panel took a contrary view to Walker I and retained jurisdiction, determining there was a final, appealable order even though Walker had never been sentenced. This we conclude was clear error.

B. Whether a Sentence First Must Be Imposed to Have a Final, Appealable Judgment

111 Under Utah law, a defendant may appeal from "the final judgment of conviction, whether by verdict or plea." Utah Code Ann. § 77-18a-1(a) (1999); see also Utah R.App. P. 3a). The Utah Supreme Court has explained that "[in the technical legal sense, sentence is ordinarily synonymous with judgment, and denotes the action of a court of criminal jurisdiction formally declaring to the accused the legal consequences of the guilt which he has confessed or of which he has been convicted." State v. Fedder, 1 Utah 2d 117, 262 P.2d 758, 755 (Utah 1958). "Very obviously, because of the interchangeable use of the terms 'sentence' and "judgment," our Code of Criminal Procedure was compiled with this common law definition in mind." Id. In addition, Rule 22(c) of the Utah Rules of Criminal Procedure implies that a sentence must be imposed before the trial court must advise the defendant of his or her right to appeal. See Utah R.Crim. P. 22(c). Finally, in at least one case we have determined that a defendant's notice of appeal was "early" when it was filed after his conviction but before he was sentenced. St. George City v. Smith, 814 P.2d 1154, 1155-56 (Utah Ct.App.1991), overruled on other grounds, St. George City v. Smith, 828 P.2d 504 (Utah Ct.App.1992). Therefore, we hold that under Utah law a trial court must impose a sentence in order to create a final, appealable order.

C. Whether the Amended Judgment Constituted a Final, Appealable Order

The December Order held that although the trial court's original judgment was not a final order, the Amended Judgment constituted a final, appealable order. However, the trial court in the Amended Judgment still did not sentence Walker, but instead only changed Walker's supervised probation to bench probation. Furthermore, the trial court, in an earlier memorandum decision, specifically stated that it desired to continue to stay the imposition of sentence and that it still had not sentenced Walker. Therefore, because Walker still had not been sentenced, we conclude the December Order incorrectly held the Amended Judgment to be a final, appealable order, and thus may be overruled under the law of the case exception that it was " 'clearly erroneous and would work a manifest injustice! " Gildea v. Guardian Title Co., 2001 UT 75,19, 31 P.3d 543 (citation omitted). Accordingly, because the Amended Judgment failed to sentence Walker, this court is without jurisdiction to hear this appeal. See Utah R.App. P. 3(a).

CONCLUSION

T 13 In conclusion, we hold that this court does not have jurisdiction over this appeal because Walker has not been sentenced, and thus, the Amended Judgment is not a final, appealable order. The appeal is therefore dismissed.

1 14 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and WILLIAM A. THORNE JR., Judge.

      . These motions were amended in November of 1999.

      . The State argues in its brief on appeal that dismissal was also required because there continued to be no final, appealable order because Walker still had not been sentenced.

      . An order that was essentially the same as the Amended Judgment was entered on March 2, 2001.

      . This section provides in relevant part that [aln offense may be reduced only one degree under this section unless the prosecutor specifically agrees in writing or on the court record that the offense may be reduced two degrees." Utah Code Ann. § 76-3-402(3) (1999).

      . We further note that the State should have filed a petition for rehearing if it believed the December Order was decided incorrectly rather than waiting to reargue the issue now. However, at oral argument, counsel for the State maintained that his office did not receive notice of the December Order until two months after it was entered and therefore did not have time to properly appeal the December Order.

      . Under Rule 22(c) of the Utah Rules of Criminal Procedure, "[ulpon a verdict ... the court shall impose sentence and shall enter a judgment of conviction which shall include the ... verdict, if any, and the sentence. Following imposition of sentence, the court shall advise the defendant of defendant's right to appeal and the time within which any appeal shall be filed." Id.

      . This idea was also indirectly articulated in earlier cases. See State v. Johnson, 700 P.2d 1125, 1127 (Utah 1985) ("It is generally accepted that the imposition of sentence is required for finality of a judgment of conviction."); State v. Gerrard, 584 P.2d 885, 886 (Utah 1978) (holding a change in sentence occurring before the sentence was committed to a formal order was not appealable, noting "[it is the sentence itself which constitutes a final judgment from which appellant has the right to appeal. Thus, prior statements made from the bench are not the judgment of the case and, therefore, are not appealable."); State v. Hunsaker, 933 P.2d 415, 416 (Utah Ct.App.1997) (holding a plea in abeyance is not a final order in part because the defendant had not been sentenced).

      . We note that the trial court continues to assert that it has the ability to continue to stay the imposition of sentence, relying on Utah Code Ann. § 77-18-1(2)(a) (1999). While this provision does grant the trial court the authority to "suspend the imposition or execution of sentence and place the defendant on probation," id., this provision does not deal with whether such an order is final. Further, suspending or staying a sentence presumes a necessary pre-condition that the sentence actually be imposed.
      In addition, the trial court asserts that section 77-18-1(2)(a) is in conflict with Rule 22(c) of the Utah Rules of Criminal Procedure, since rule 22(c) appears to remove the trial court's discretion to stay the imposition of sentence. Under rule 22(c), "[uJpon a verdict ... the court shall impose sentence and shall enter a judgment of conviction which shall include the ... verdict, if any, and the sentence." We disagree that there is a conflict. Rather, we believe rule 22(a) harmonizes both the statute and rule 22(c) Rule 22(a) provides:
      Upon the entry of a ... verdict of guilty ... the court shall set a time for imposing sentence which shall be not less than iwo nor more than 45 days after the verdict ... unless the court, with the concurrence of the defendant, otherwise orders. Pending sentence, the court may commit the defendant or may continue or alter bail or recognizance.
      Utah R.Crim. P. 22(a). Because we read provisions "so as to harmonize them," In re B.B., 2002 UT App 82,115, 45 P.3d 527, we hold that rule 22(a) merely imposes a time limit on the court's discretion to stay sentencing that is granted by section 77-18-1(2)(a). Further, although section 77-18-1(2)(a) gives the trial court discretion to stay the imposition of sentence, rule 22(c) makes clear there is no final order to appeal until a sentence has been entered.


author: KITE, Justice.

text:
    2002 WY 152
    Gary HOBLYN and Michelle Hoblyn, Appellants (Plaintiffs), v. Margurette JOHNSON, Chuck Johnson, Matthew Wayne Davis, Loucin Port Davis, Officer Crumpton, Greg Bybee, Ken Peterson, the Laramie County Sheriff's Department and the State of Wyoming, Appellees (Defendants).
    No. 01-169.
    Supreme Court of Wyoming.
    Oct. 9, 2002.
    Rehearing Denied Nov. 5, 2002.

      Bernard Q. Phelan of Phelan-Watson Law Office, Cheyenne, Wyoming, Representing Appellants.
    Misha E. Westby and Ryan T. Schelhaas of Hirst & Applegate, P.C., Cheyenne, Wyoming, Representing Appellees Johnson.
    Curtis B. Buchhammer and Loretta R. Green of Buchhammer & Kehl, P.C., Cheyenne, Wyoming, Representing Appellees Davis.
    Hoke MacMillan, Attorney General; John W. Renneisen, Deputy Attorney General; and John D. Rossetti, Senior Assistant Attorney General, Representing Appellees Crump-ton, Bybee, and State of Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument

   KITE, Justice.

[T1] The teenage daughter of Appellants Gary and Michelle Hoblyn (the parents) accused her father of abuse. While the charges were being investigated, the parents took the daughter to stay temporarily with her grandparents in Nebraska but would not permit her to take her horse. The daughter undertook efforts, with the assistance of a state brand inspector, to obtain possession of her horse. Though the father was later found not guilty of abuse, the daughter did not return home. The parents sued the grandparents, the neighbors, the brand inspector, the Laramie County sheriff's department, and others for various conspiracy and individual claims including tortious interference with the parent-child relationship, deprivation of constitutional rights under color of state law, intentional infliction of emotional distress, larceny, trespass, harassment, and defamation. The district court dismissed the tortuous interference claim against the grandparents for lack of jurisdiction, and it dismissed the remainder of the claims by summary judgment. We affirm.

ISSUES
[12] We fephrase the issues as follows:
I. Under the facts of this case, should Wyoming adopt the cause of action for intentional interference with the parental relationship?
IIL Did the district court err in granting the grandparents' motion to dismiss the parents' claim of intentional interference with the parental relationship for lack of in personam jurisdiction?
III Did the state brand inspector, assisted by deputies of the Laramie County sheriff's department, violate the parents' Fourth Amendment rights by entering their property without a warrant to inspect and transfer the daughter's horse to a new owner?
IV. Must a person seek psychological care or submit expert testimony to prove severe emotional distress?
V. May a tort action be premised on statutory criminal larceny?
VI. In Wyoming, is a civil action for harassment provided by statute?
VII. How is the jurisdictional amount in controversy to be determined?
VIII. Was the neighbor's comment, reported by the newspaper, that the parents were "not nice people" sufficient by itself to establish a prima facie case of defamation?

FACTS

[13] Pursuant to our standard of review for summary judgments, we consider the facts from the vantage point most favorable to the parents, as the party opposing the motions, awarding them all the favorable inferences which may be drawn from those facts. S & G Investors, LLC v. Blackley, 994 P.2d 941, 943 (Wyo.2000).

[14] In October 1998, the sixteen-year-old daughter accused her father of physical abuse. The Department of Family Services (DFS) suggested a "cooling off" period, and the parents took the daughter from Cheyenne to North Platte, Nebraska, to stay approximately one month with her paternal grandmother, Margurette Johnson, and step-grandfather, Chuck Johnson (the grandparents). The grandmother asked the parents to allow the daughter to have her horse while she stayed in Nebraska. They refused though the daughter was the horse's legal owner. The daughter contacted Matthew Davis, her neighbor from Cheyenne, for advice. Mr. Davis spoke with Greg Bybee, a state brand inspector, who apparently later contacted the daughter. On November 18, 1998, the grandparents drove the daughter to a truck stop near Burns, Wyoming, so she could meet with the brand inspector. Although the grandparents and Mr. Davis and his wife (the neighbors) were present at the truck stop, the daughter met with the brand inspector alone at a separate table. During the meeting, the daughter signed papers transferring ownership of her horse to Ken Peterson.

[15] At seven o'clock the next morning, the brand inspector and Deputies Fanning and Crumpton from the Laramie County sheriffs department went to the parents' Cheyenne home. The brand inspector had requested assistance from the sheriff's department, and the deputies were sent in response. Mr. Peterson also went to the parents' home with a pickup truck and a horse trailer. While everyone else waited on the county road off the property, Deputy Fanning knocked on the front door of the residence. No one answered, and Deputy Fanning joined the others on the county road to wait and see if anyone would appear. After approximately twenty to thirty minutes, the brand inspector entered the property from behind the residence and went to a fenced area with some outbuildings. He opened a wire gate, entered an enclosure, and identified a horse he found there as being the same horse the daughter had transferred to Mr. Peterson the night before. The brand inspector led the horse off the property and loaded it into the horse trailer, and Mr. Peterson drove away. Later that day, the brand inspector met Mr. Peterson at a welding shop and completed the paperwork transferring ownership of the horse back to the daughter. The neighbors then took the horse to the daughter in Nebraska.

[16] The father was criminally charged for allegedly hitting the daughter and found not guilty after a March 1999 jury trial. The neighbors kept in contact with the daughter and grandparents through personal visits, letters, and telephone calls The grandparents brought the daughter to Cheyenne on several occasions to visit the neighbors and did not advise the parents. The daughter bought a truck from the neighbors, and the grandparents helped her purchase a horse trailer.

[T7] The grandparents started temporary guardianship proceedings in Nebraska as required by the school district where the daughter was enrolled. The parents reportedly did not show up at the hearing, and the matter was not pursued further.

[T8] At the time of the father's trial, the mother gave the daughter a necklace as a birthday gift which the daughter returned to her after the trial. A short time later, the grandmother and the daughter obtained protective orders from the District Court of Lincoln County, Nebraska to preclude all contact by the parents. Instead of returning home, the daughter reroained with her grandparents, completed high school, and obtained a job as a horse trainer.

[19] From the record, it appears the parents never reported the daughter's horse was stolen nor made any larceny or trespass complaints. Further, they filed no legal action in either Nebraska or Wyoming to regain custody of their daughter from the grandparents, nor did they appear in the Nebraska district court to contest the protective orders.

[T10] In January 2000, the parents filed a civil complaint, subsequently amended, alleging various causes of action against the grandparents, the neighbors, Deputy Crump-ton, the brand inspector, Ken Peterson, and the Laramie County sheriffs department. The combined damages were alleged to be "in exeess of $500,000.00 plus punitive damages in an amount sufficient to deter the defendants and others." The parents appeal the district court's order by which all the causes of action were dismissed.

STANDARD OF REVIEW
[% 11]
The standard of review applied by this Court in reviewing the granting of summary judgment is well-settled. "When a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record. We separate the formal and pretended from the genuine and substantial so only the latter may be considered in eliminating the burden of a formal trial if only questions of law are left to decide; there must be no issue of material fact to decide. A material fact, expressed in various ways, is one having legal significance which would in a given case control the legal relations of the parties; one upon which the outcome of the litigation depends in whole or in part; one on which the controversy may be determined; one which will affect the result or outcome of the case depending upon its resolution; or one which constitutes a part of the plaintiffs cause of action or the defendant's defense. Summary judgment affords an opportunity for prompt disposition of a lawsuit in its early stages, permitting an end to unfounded claims and avoiding the expense of a full-fledged trial to both litigants and the state's judicial machinery." Reno Livestock Corp. v. Sun Oil Co. (Delaware), 638 P.2d 147, 150-51 (Wyo.1981) [ (citations omitted) ].

McLean v. Hyland Enterprises, Inc., 2001 WY 111, T 14, 84 P.3d 1262, 1 14 (Wyo.2001). If we can uphold summary judgment on the record presented under any proper legal theory, we will. Hulse v. First Interstate Bank of Commerce-Gillette, 994 P.2d 957, 959 (Wyo.2000).

DISCUSSION

A. Intentional Interference with the Parental Rights

[112] In the first cause of action, the parents claimed the grandparents individually, and in conspiracy with the neighbors, interfered with their parent-child relationship by harboring the daughter and inducing her to remain out of their custody. The district court dismissed this count on the grandparents' motion claiming lack of in per-sonam jurisdiction. It granted the neighbors' motions for summary judgment because the cause of action is not recognized in Wyoming.

[T13] The Restatement (Second) of Torts, entitled "Causing Minor Child to Leave or not to Return Home," provides: "One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent." 3 Restatement (Second) of Torts § 700 at 505 (1977).

{[¶14] In Stone v. Wall, 784 So.2d 1038 (Fla.1999), the Florida Supreme Court reviewed the history of the action and thoughtfully analyzed the effects of recognizing the tort. We acknowledge, as referenced by the Stone court, that the majority of states has recognized this tort and Wyoming is not yet one of them. Stone, 734 So.2d at 1042 n. 6.

[T15] In Cosner v. Ridinger, 882 P.2d 1243 (Wyo.1994), we declined to recognize the tort when a noneustodial parent asserted it alleging deprivation of visitation. This court reviewed the Wyoming statutes which give priority to the child's best interests as well as the public policy behind those statutes and concluded recognition of the cause of action in the context of custody and visitation could negatively impact children by encouraging more litigation in already volatile family cireumstances. Our reasoning was greatly influenced by the policy considerations raised in Larson v. Dunn, 460 N.W.2d 39 (Minn.1990), as follows:

"For the good of our children, the law should seek to promote such harmony as is possible in families .... At a minimum, the law should not provide a means of escalating intrafamily warfare....
"It is clear that this tort would be used as a new weapon in such disputes.... The interest in compensation should not outweigh the effects of bitter accusations on ... children....
"Creating this tort would create a new wrong. It would place innocent children in the middle of a vigorous, probably vicious, lawsuit ...."

Cosner, 882 P.2d at 1247 (quoting Larson, 460 N.W.2d at 45-46 (citations omitted)).

[T16] The intentional interference with parental rights cause of action is commonly referenced in divorce situations where the noneustodial parent, with or without collusion with relatives, absconds with the children and hides from the custodial parent. See Marshak v. Marshak, 226 Conn. 652, 628 A.2d 964 (1993); Weirich v. Weirich 796 S.W.2d 513 (Tex.App.1990). The elements of the tort include compelling or inducing a child to leave the parents and refusing to return the child. Those elements are not present in this case, which more closely resembles a voluntary foster care placement.

[T17] The father's affidavit reflects, at the time of the daughter's abuse accusations against him, the DFS suggested a "cooling off" period during which the daughter would be temporarily placed outside the home. The parents asked the paternal grandmother and step-grandfather to take their daughter to live with them for approximately one month, and the grandparents agreed. At a minimum, the placement effected de facto custody in the grandparents, implicitly giving them the necessary authority to address the daughter's day-to-day needs. Such a voluntary placement agreement usually remains in effect until revoked because, generally speaking, the voluntary transfer of parental rights is only effective due to the parental consent and is, therefore, revocable at will. 3 Donald T. Kramer, Legal Rights of Children § 29.02 (2d ed.1994). Thus, the daughter must be returned to the parents, if the parents request, unless there is some authority to continue custody under the state's juvenile law. Id.

[118] The evidence submitted in response to the motions for dismissal and summary judgment does not indicate the parents ever revoked their grant of temporary custody or requested that their daughter be returned. The father stated in his affidavit, "[dluring the trial, I, of course, was not allowed contact with my daughter as a condition of my release on bond." We can reasonably infer that the contact prohibition was not limited to just the period of the trial but actually began when the father was released on bond and remained in place through the conclusion of the trial. Therefore, we can further infer that, during this time frame, the daughter could not return to the family home unless the father left.

[119] However, nothing in the record suggests, after the father's acquittal, the parents ever revoked the grant of temporary custody or demanded the daughter's return or the grandparents ignored or rebuffed requests of this nature. In fact, the only evidence of the parents even asking to visit their daughter was the mother's purported request for the daughter to come home for the 1998 Thanksgiving holiday. Even though the grandmother allegedly refused to permit this visitation, the parents did not respond at any time thereafter by revoking the voluntary placement or taking legal action to regain physical custody of their daughter.

[120] The father contends, after he was acquitted, he went to Nebraska to see his daughter only to have the daughter and the grandparents call the police to intervene and prevent contact. The record reflects that the District Court of Lincoln County, Nebraska issued ex parte domestic abuse protection orders on March 23, 1999, precluding the parents from contacting or communicating with the grandmother and the daughter. These orders stated, as provided in Neb.Rev. Stat. § 42-925 (1998), that a respondent has the right to file a request for a show cause hearing to demonstrate why the order should not remain in effect. The Nebraska statute requires the court to hold the hearing within thirty days of receipt of the request, if timely made. Section 42-925. The parents do not contend they were not properly served with the orders. However, despite the parents' alleged emotional distress caused by separation from their daughter and the prohibition of contact with her, the record contains no request for such a hearing or evidence of an attempt to contest the issuance of the orders and gain access to their daughter.

[121] Likewise, the parents failed to demonstrate an effort to utilize the Wyoming court system to regain custody of their daughter before she turned eighteen years of age. They filed no legal action in either Nebraska or Wyoming for her physical return subsequent to the March 1999 abuse trial. Instead, they waited until January of 2000 to file this lawsuit to seek money damages alleging the grandparents, whom they had asked to care for the daughter, in conspiracy with the neighbors, intentionally interfered with their parental authority. The primary goal of this lawsuit does not appear to be the daughter's best interests. Instead, it appears to be a means for the parents to vindicate themselves and retaliate against the grandparents, the neighbors, and others who assisted the daughter while she was placed out of her home. See Politte v. Politte, 127 S.W.2d 198 (Mo.Ct.App.1987).

[122] The parents' evidence fails to persuade this court that recognition of the intentional interference with parental rights tort in these cireumstances will advance the best interests of children and families. Even if we were inclined to recognize the tort now, the parents have failed to establish a prima facie case that the elements of the cause of action were present.

[123] The district court also concluded it had no in personam jurisdiction over the grandparents regarding this claim. We need not address the jurisdictional issue as we decline to apply the cause of action in these circumstances.

[124] We affirm the district court's dismissal of this claim against the grandparents and its grant of summary judgment to the neighbors. This holding does not necessarily preclude future recognition of the cause of action under different cireumstances.

B. Claims Related to Ownership and Possession of the Horse

[125] The parents claim the grandparents, Mr. Peterson, Deputy Crumpton, and the brand inspector, under color of state law, unlawfully acted individually and in conspiracy with each other by express and implied agreement with regard to the daughter's horse to deprive the parents of their constitutional rights provided by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. The district court granted summary judgment to all defendants holding the horse was subject to the brand inspector's jurisdiction, the brand inspection statutes diminish the expectation of privacy, and therefore there was no Fourth Amendment claim.

[126] The parents also alleged the same defendants conspired to commit larceny by taking or leading away property-the horse-in their lawful possession. The district court dismissed this count with prejudice because the daughter owned the horse and was denied possession; therefore, no claim of larceny could be maintained for the taking of the horse from the parents' property. The district court further found larceny does not exist in civil law and conversion was the appropriate civil remedy, which was not pleaded.

[127] In a further related allegation, the parents accused the same defendants of conspiring to enter their real property without consent and against their will and, in the course of the trespass, causing damages. The district court found a question of material fact existed as to whether a trespass occurred. However, it dismissed the cause of action with prejudice because, even if the issue was resolved in favor of the parents, the damages evidence did not meet the court's minimum jurisdictional limits.

[128] Pursuant to a different legal analysis, we reach the same resolution as the district court on these causes of action.

[129] The dispute over the daughter's horse is at the heart of these actions. The parents concede the horse was legally the daughter's and titled in her name. However, they also contend, as parental custodians of the animal, they could refuse to permit the daughter to take the animal to Nebraska where they had voluntarily placed her. We believe their contention is unfounded.

"As a general rule any property acquired by the child in any way except by its own labor or services belongs to the child, and not to the parent." [46 C.C. 1314].... It furthermore goes without saying that a parent cannot deprive a child of its property except pursuant to law (31 C.J. 1011), and the fact that in this instance the father had the property in question assessed as his property could not affect the title of the children. In Banks v. Conant, 96 Mass. 497, 14 Allen (Mass.) 497, it was said: "In consideration of the duty which the law imposes on a father to furnish adequate support to his child during infancy, the services of the child during that period are due to the father, and, if they are rendered to a third person, the right of the father to recover the value thereof is clear and indisputable. But this is the extent of the father's right. He has no title to the property of the child, nor is the capacity or right of the latter to take property or receive money by grant, gift or otherwise, except as a compensation for services, in any degree qualified or limited during minority. Whatever therefore an infant acquires which does not come to him as a compensation for services rendered, belongs absolutely to him, and his father cannot interpose any claim to it, either as against the child, or as against third persons who claim title or possession from or under the infant."

Kreigh v. Cogswell, 45 Wyo. 581, 21 P.2d 831, 833 (1933) (emphasis added). Though issued almost seventy years ago, this opinion still provides an accurate statement of the law. See also 1 Donald T. Kramer, Legal Rights of Children §§ 8.01-8.03 (2d ed.1994); Fare v. Scott K., 24 Cal.3d 395, 155 Cal.Rptr. 671, 595 P.2d 105, 110-11 (1979); 67A C.J.S. Parent and Child § 118 (1978).

[130] Despite the general rule, parents do retain property rights in certain items they provide their children for the purpose of support, maintenance, or education such as clothing and books. 1 Kramer, Legal Rights of Children, supra at § 8.12; 67A C.J.S8. Parent and Child, supra at § 119. It is uncontroverted the daughter's paternal grandfather gave the horse to her as a gift, the horse was titled in her name, and it was not necessary for her support or maintenance. As a matter of law, the horse belonged to the daughter, and the parents had no implied authority over it simply because of their proprietary interest in the premises on which it was located.

[T81] The parents do not dispute the daughter wanted her horse returned to her personal possession and had not appointed them to act as agents for her in any capacity. The parents' agency on behalf of the daughter cannot be inferred from the mere existence of the family relationship. Rather, the daughter must duly authorize the parents to act as her agent. 67A C.J.S. Parent and Child, supra at § 119; Angus v. London, 92 Cal.App.2d 282, 206 P.2d 869, 870 (1949). In effect, an involuntary bailment was created when the parents took the daughter to live elsewhere and kept her horse.

A constructive or involuntary bailment arises where the person having possession of a chattel holds it under such circumstances that the law imposes on him the obligation of delivering it to another, where a person has lawfully acquired possession of personal property of another otherwise than by a mutual contract of bailment, or where a person has lawfully acquired the possession of personal property of another and holds it under cireum-stances whereby he should, on principles of justice, keep it safely and restore it or deliver it to the owner.

8 C.J.S. Bailmenits § 15 at 287 (1988).

[132] Such a bailment was at issue in Moore v. Moore, 885 P.2d 1148 (Wyo.1992), a divorcee case in which the wife left her horses on the ranch awarded to the husband because she had no place to keep them. See also Horn v. State, 556 P.2d 925 (Wyo.1976). The Moore facts are different from those in this case to the extent the husband had no say regarding the animals remaining on his property. In the instant case, the horse was on the property to begin with, the parents took the owner elsewhere to live, and they did not permit the horse to go with her. These distinctions do not change the involuntary character of the bailment, and, as we noted in Moore, the involuntary bailee has an absolute duty to return the property. Moore, 835 P.2d at 1153.

"Where the person in possession has committed no independent act of conversion, a rightful possession in him continues as such until it is transformed into a wrongful detention by a demand for the property and a refusal to deliver it." [65 C.J. 48-45.]
.... And it is generally held that ordinarily a demand should be made by a bailor upon the bailee for the return of his goods before an action for conversion against the bailee will lie.

Vissenberg v. Bresnahen, 65 Wyo. 367, 202 P.2d 663, 669-70 (1949).

[133] Viewing the facts in the light most favorable to the parents, we will assume they did nothing inconsistent with their daughter's ownership interests in the horse until they refused her request to return it. The Restatement (Second) of Torts provides:

(1) Except as otherwise agreed, a conditional vendor or lessor of a thing who is entitled to immediate possession thereof, or a successor to his legal interest in the thing, is privileged, at a reasonable time and in a reasonable manner, to enter land in the possession of the vendee or lessee, for the purpose of taking possession of the thing and removing it from the land.
(3) The privileges stated in Subsection[ ](1) ... are also available to
(c) a bailor of a thing who by reason of the termination of the bailment is entitled to the immediate possession of the thing.

1 Restatement (Second) of Torts § 183 at 382 (1965). As noted in the comments, absent an express agreement, the law infers consent of the bailee to entry by the bailor who is entitled to possession of the thing by reason of the termination of the bailment. Id., § 183 at 883. The Restatement (Second) of Torts likewise extends a privilege to the bail- or to retrieve the property:

(1) One is privileged to enter land in the possession of another, at a reasonable time and in a reasonable manner, for the purpose of removing a chattel to the immediate possession of which the actor is entitled, and which has come upon the land otherwise than with the actor's consent or by his tortious conduct or contributory negligence.

1 Restatement (Second) of Torts, supra, § 198 at 361. Comment a of this subsection explains that application of § 198 is limited to those situations where the actor, as against all persons, is entitled to immediate possession of the chattel both at the time when the chattel is placed on the land and when the actor seeks to enter and reclaim it. See Salisbury Livestock Company v. Colorado Central Credit Union, 798 P.2d 470 (Wyo.1990); see also Sammons v. American Automobile Association, 912 P.2d 1103 (Wyo.1996). It follows that, once the parents refused the daughter's request for the return of her horse, she was privileged to enter their real property at a reasonable time and in a reasonable manner to take the horse. No reason exists why she could not accomplish the same through an agent.

[134] The daughter also had the right to transfer her bailed property, and the parents' arguments to the contrary are unfounded.

It must not be overlooked that minors have ... the capacity to take, but their capacity to give is limited. They have capacity to contract, at least when of sufficient age to understand what they are doing; but, in general, they have the right to repudiate their contracts. Thus they may contract ... but the contract is, ordinarily, voidable at their election.

Novosel v. Sun Life Assur. Co. of Canada, 49 Wyo. 422, 55 P.2d 302, 305-06 (1936); see also Jankousky v. Halladay Motors, 482 P.2d 129 (Wyo.1971). The parents place significant emphasis on the appearance of the sale as a sham. Even if we assume this is true, it has absolutely no bearing on the resolution of this appeal. The daughter had the ability to sell her horse, and, with the brand inspector's assistance, she completed the paperwork to accomplish the transfer of the title.

[135] With regard to the claims against the brand inspector, his actions were consistent with his statutory authority. Pursuant to Wyo. Stat. Ann. § 11-20-2083 (LEXIS 1999) (amended 2001), Wyo. Stat. Ann. § 11-20-205(a) (LexisNexis 2001), Wyo. Stat. Ann. § 11-20-214(a) (LexisNexis 2001), and 1 Restatement (Second) of Torts, supra, § 211 at 398, the brand inspector had authority to enter the parents' land to retrieve the daughter's horse for transfer to Mr. Peterson. His actions constituted neither trespass nor larceny.

[¥36] The claims against Officer Crumpton are also specious in light of the uncontested facts because he never entered the parents' property. Though Officer Fanning did enter the property, he did so in a reasonable way in order to notify the parents that the brand inspector was there to secure the horse. Pursuant to Wyo. Stat. Aun. §§ 11-18-112. and 18-8-606 (LexisNexis 2001) and 1 Restatement (Second) of Torts, supra at § 211, these actions were reasonable; legally authorized; and, again, constituted neither trespass nor larceny.

[137] The parents also allege the grandparents, the neighbors, and Mr. Peterson were part of a conspiracy to trespass and commit larceny. These causes of action fail for the same reasons the underlying claims against the brand inspector and Officer Crumpton failed. It is fronic, albeit immaterial, that the parents' actions appear to better fit the statutory larceny by bailee definition than the actions of any of the parties they have accused.

C. Intentional Infliction of Emotional Distress/Proof of Severity

[1381 In their third cause of action, the parents alleged the grandparents and neighbors had, individually and in conspiracy with one another, subjected them to severe emotional harm by their outrageous conduct. The district court granted summary judgment holding there was no evidence the parents' emotional distress was severe and they failed in their burden to establish a genuine issue of material fact. On appeal, the parents contend the district court dismissed their allegations because they did not seek psychological care or submit expert testimony to prove the severity of their injuries. This portrayal of the district court's action is inaccurate. The district court actually concluded:

8. In order to make a prima facie showing of intentional infliction of emotional distress the [parents] must show severe emotional distress. The [parents] have asserted emotional distress but have no evidence that such distress is severe. There is no evidence that [they] have sought professional help, only that they are pained by these events. A party moving for summary judgment carries the burden of dispelling the existence of material fact thereby shifting the burden to the nonmoving party to produce evidence raising a genuine question of material fact. The record contains only bald statements that they have suffered severe emotional distress with no supporting evidence. Therefore, Count II[I] of the amended complaint is dismissed with prejudice.

[1 391 This court recognized intentional infliction of emotional distress as a cause of action in Leithead v. American Colloid Company, 721 P.2d 1059, 1065-67 (Wyo.1986), which explained:

Section 46 of the Restatement, Second, Torts (1965), places several limits on the action for intentional infliction of emotional distress. It provides:
"Outrageous Conduct Causing Severe Emotional Distress
"(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm."
Outrageous conduct is defined in comment "d" of the Restatement as conduct which goes beyond all possible bounds of decency, is regarded as atrocious, and is utterly intolerable in a civilized community. Severe emotional distress is defined in comment "j" as distress which is so severe that no reasonable man could be expected to endure it.
.... Comment "h" to § 46 of the Restatement, Second, Torts (1965) states: "Court and jury. It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability."
... "The actor is never liable ... where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress." Restatement, Second, Torts § 46, comment "g." ....
... Comment ";" of § 46 of the Restatement, Second, Torts states:
"It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed."

See also Worley v. Wyoming Bottling Company, Inc., 1 P.3d 615, 628 (Wyo0.2000). The father's affidavit provides the only evidence of the severity, and he simply maintains they experienced uncomfortable and unpleasant feelings of various descriptions. There is no evidence of the impact of this alleged distress on their lives such as missed work, inability to sleep or engage in hobbies and activities previously enjoyed, diminished ability to socialize or handle the necessary functions of everyday life, or memory loss. Certainly, the need for professional counseling could be evidence of the severity of the emotional distress, but it is not a required element. Contrary to the parents' representation, the district court did not find their proof failed because they did not seek treatment from mental health professionals. Instead, the court found the parents' statements that they experienced offensive feelings and emotions without further evidence of the effect on their lives were insufficient to establish a prima facie case of severe emotional distress. This decision is squarely within the district court's gatekeeping function, and we affirm.

D. Civil Harassment Cause of Action Based on Criminal Stalking Statute

[140] The parents also claimed the right to pursue a civil harassment cause of action against the neighbors founded on the criminal stalking provisions of Wyo. Stat. Ann. § 6-2-506 (LexisNexis 2001) as referenced in Wyo. Stat. Ann. § 1-1-126 (Lexis-Nexis 2001). The district court dismissed this cause on two alternative grounds: (1) The claim as pleaded under § 6-2-506 was not actionable in Wyoming; and, (2) even if it was actionable, like the intentional infliction of emotional distress count, it lacked merit because there was no evidence of substantial emotional distress. We affirm the district court's dismissal of this claim based upon a failure of proof of substantial emotional distress. Consequently, we need not address whether a harassment cause of action can be pursued under the stalking statute §§ 6-2-506 and 1-1-126.

E. Defamation

[T41]l Finally, the parents contend they were defamed when a comment made by their neighbor, Mrs. Davis, that they were "not nice people" was reported in a newspaper article The district court, without additional explanation and citing Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211 (Wyo.1994), dismissed this cause of action holding the statement did not rise to the level of defamation. We conclude this was the correct result because the statement did not constitute defamation per se; therefore, proof of special damages was required, and the parents failed to carry this burden.

"A defamatory communication is one which tends to hold the plaintiff up to hatred, contempt, ridicule or seorn or which causes him to be shunned or avoided; one that tends to injure his reputation as to diminish the esteem, respect, goodwill or confidence in which he is held." Tschirgi v. Lander Wyoming State Journal, 706 P.2d 1116, 1119 (Wyo.1985). Accord Century Ready-Mix Co. v. Campbell County School Dist., 816 P.2d 795, 799 (Wyo.1991).

Wilder, 868 P.2d at 224. Defamation per se means "a statement which is defamatory on its face and, therefore, actionable without proof of special damages." 50 Am.Jur.2d IAbel and Slander § 134 at 480 (1995). The only statements classified as defamatory per se or damaging on their face, and which therefore do not require proof of special harm, are those which impute (1) a criminal offense; (2) a loathsome disease; (8) a matter incompatible with business, trade, profession, or office; or (4) serious sexual misconduct. 3 Restatement (Second) of Torts, supra at §§ 570, 575. It is apparent Mrs. Davis' statement does not fall into any of these per se categories.

[142] The Restatement (Second) of Torts provides: "One who publishes a slander that, although not actionable per se, is the legal cause of special harm to the person defamed, is subject to liability to him." 3 Restatement (Second) of Torts, supra, § 575 at 197. In comment b of § 575, special harm is defined as "loss of something having economic or pecuniary value." The parents provided no proof of special harm or special damages. The record contains no prima fa-cie showing of economic or pecuniary damage caused by the "not nice people" statement.

[143] Because the statement was not considered defamation per se and no economic damages were shown, the district court properly determined there was no defamation. This is consistent with Wilder in which we concluded, although the statements complained of might be disparaging and offensive, they were not actionable as defamation per se because they were not defamation per se and no damages were shown. We affirm the dismissal.

[T44] For the reasons expounded above, we conclude the district court properly dismissed all the parents' claims.

[145] Affirmed.

      . It is unclear from the record precisely what offense was charged against the father and whether it was a misdemeanor or a felony. However, because the father was found not guilty, this information is of minimal significance.

      . The original complaint set out damages in excess of $100,000 plus punitive damages. The amended complaint added the harassment and defamation claims and increased the damages request to $500,000.

      . Footnote six reads:
      Sixteen state supreme courts have recognized the tort of intentional interference with the custodial relationship or abduction: Anonymous v. Anonymous, 672 So.2d 787 (Ala.1995); Borer v. American Airlines, 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858, 865 n. 3 (1977); D & D Fuller CATV Constr., Inc. v. Pace, 780 P.2d 520 (Colo.1989); Shields v. Martin, 109 Idaho 132, 706 P.2d 21 (1985); Montgomery v. Crum, 199 Ind. 660, 161 N.E. 251 (1928); Wood v. Wood, 338 N.W.2d 123 (Iowa 1983); Murphy v. I.S.K. Con. of New England, Inc., 409 Mass. 842, 571 N.E.2d 340 (1991); Brown v. Brown, 338 Mich. 492, 61 N.W.2d 656 (1953); Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983); Howell v. Howell, 162 N.C. 283, 78 S.E. 222 (1913); Pickle v. Page, 252 N.Y. 474, 169 N.E. 650 (1930); Clark v. Bayer, 32 Ohio St. 299 (1877) McBride v. Magnuson, 282 Or. 433, 578 P.2d 1259 (1978); Bedard v. Notre Dame Hosp., 89 R.I. 195, 151 A.2d 690 (1959); Silcott v. Oglesby, 721 S.W.2d 290 (Tex.1986); Kessel v. Leavitt, 204 W.Va. 95, 511 S.E.2d 720 (1998), cert. denied, 525 T.S. 1142, 119 S.Ct 1035, 143 L.Ed.2d 43 (1999). Two other state supreme courts have implied that they would have recognized this cause of action if the question were properly before them. See Marshak v. Marshak, 226 Conn. 652, 628 A.2d 964 (1993); Finn v. Lipman, 526 A.2d 1380 (Me.1987). In addition, an intermediate appellate court in at least two other states [has] approved the tort: Mathews v. Murray, 101 Ga.App. 216, 113 S.E.2d 232 (1960); Spencer v. Terebelo, 373 So.2d 200 (La.Ct.App.1979); see also Kristin A. Wentzel, Note, In the Best Interests of the Child? Minnesota's Refusal to Recognize the Tort of Intentional Interference with Custodial Rights, 14 Hamline L.Rev. 257, 265 n. 83 (1990) (courts in 23 states and the District of Columbia have recognized this tort).
      Two state supreme courts have refused to recognize a claim for tortious interference with the custodial parent-child relationship based upon their concern that tort recovery and its accompanying litigation would be detrimental to the best interests of the child. See Larson v. Dunn, 460 N.W.2d 39 (Minn.1990); Zaharias v. Gammill, 844 P.2d 137 (Okla.1992); see also Cosner v. Ridinger, 882 P.2d 1243 (Wyo.1994) (implying that it would reject tort if it were properly before the court). In two other states, Illinois and Missouri, there is a split in authority in the intermediate-level appellate courts regarding whether the cause of action should be recognized. Compare Whitehorse v. Critchfield, 144 Ill.App.3d 192, 98 Ill. Dec. 621, 494 N.E.2d 743 (1986) with Dymek v. Nyquist, 128 Ill.App.3d 859, 83 Ill.Dec. 52, 469 N.E.2d 659 (1984); compare Politte v. Polite, 727 S.W.2d 198 (Mo.Ct.App.1987) with Kramer v. Leineweber, 642 S.M.2d 364 (Mo.Ct.App.1982).

      . Section 42-925 provides in part:
      If such ex parte order is issued to the respondent, the court shall forthwith cause notice of the petition and order to be given the respondent stating that, upon service on the respondent, the order shall remain in effect for a period of one year and, if the order grants temporary custody, that such custody shall not exceed the number of days specified by the court unless the respondent shows cause why the order should not remain in effect. The court shall also cause to be served upon the respondent a form with which to request a show-cause hearing. If the respondent wishes to appear and show cause why the order should not remain in effect, he or she shall affix his or her current address, telephone number, and signature to the form and return it to the clerk of the district court within five days after service upon him or her. Upon receipt of the request for a show-cause hearing, the court shall immediately schedule a show-cause hearing to be held within thirty days after the receipt of the request for a show-cause hearing and shall notify the petitioner and respondent of the hearing date.

      . Section 42-925 directs the request be made within five days after service of the show cause form on the respondent.

      . _ Issues of alleged parental conversion of property or other torts against the child are not raised in this appeal, nor are issues raised of the proper role of parental discipline or the common law defense of parental authority and discretion. See Dellapenta v. Dellapenta, 838 P.2d 1153 (Wyo. 1992); Keser v. State, 706 P.2d 263 (Wyo.1985). On appeal, we do not consider issues not raised in the district court except for those issues which are jurisdictional or fundamental in nature. Simek v. Rocky Mountain, Inc., 977 P.2d 687, 689 (Wyo.1999).

      . Common authority over personal property may not be implied from the father's proprietary interest in the premises. Neither may it be premised on the nature of the parent-child relation.
      Juveniles are entitled "to acquire and hold property, real and personal," (Estate of Yano (1922) 188 Cal. 645, 649, 206 P. 995, 997); and "a minor child's property is his own ... not that of his parents" (Emery v. Emery (1955) 45 Cal.2d 421, 432, 289 P.2d 218, 225).
      (Some citations omitied.)

      . The daughter was given the horse by her paternal biological grandfather, not by Chuck Johnson, her paternal step-grandfather.

      . (a) Except as hereafter provided, it is unlawful for any person, firm, partnership, corporation, or association to sell and deliver or to remove or cause to be removed in any way from any county in Wyoming to any other county, state or country, any livestock unless each animal has been inspected for brands and ownership at the time of delivery or removal by an authorized Wyoming brand inspector and a proper certificate of inspection or clearance has been issued.
      (b) Transporting livestock across state lines without first having had such inspection and having obtained such certificates is prima facie evidence of intent to avoid inspection and to steal, take and carry away the animals and is punishable as provided in W.S. 6-3-402.

      . (a) Except as otherwise provided, before removing any livestock from any county of Wyoming, the person selling or intending to cause removal shall notify the inspector of the date of the intended removal and the time and place when and where the required inspection for brands and ownership can be made. The inspection shall be made within a reasonable time prior to shipment. The person in charge of the livestock shall hold the livestock at the place designated until the livestock have been inspected and an official certificate of inspection is issued. The person in charge shall render the inspecting officer such assistance as is practicable while the required inspection is being made.

      . (a) A brand inspector may inspect livestock being transported, trailed, pastured or confined at his discretion, to determine ownership, without an inspection fee.

      . A duty or authority imposed or created by legislative enactment carries with it the privilege to enter land in the possession of another for the purpose of performing or exercising such duty or authority in so far as the entry is reasonably necessary to such performance or exercise, if, but only if, all the requirements of the enactment are fulfilled.

      . (a) A person is guilty of criminal trespass if he enters or remains on or in the land or premises of another person, knowing he is not authorized to do so, or after being notified to depart or to not trespass. For purposes of this section, notice is given by:
      (i) Personal communication to the person by the owner or occupant, or his agent, or by a peace officer; or
      (ii) Posting of signs reasonably likely to come to the attention of intruders. Wyo. Stat. Ann. § 6-3-303(a) (LexisNexis 2001).

      . (a) A person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny.
      (b) A bailee, a public servant as defined by W.S. 6-5-101(a)(vi) or any person entrusted with the control, care or custody of any money or other property who, with intent to steal or to deprive the owner of the property, converts the property to his own or another's use is guilty of larceny.

      (d) Conduct denoted larceny in this section constitutes a single offense embracing the separate crimes formerly known as larceny, larceny by bailee or embezzlement.
      Wyo. Stat. Ann. § 6-3-402(a), (b), (d) (LexisNexis 2001).

      . All federal authorities authorized, and the various inspectors of this state, may call upon any sheriff or peace officer in any county in this state to assist them in the discharge of their duties and those peace officers shall assist them when so requested. The federal inspector has the same power to enforce the laws of this state as the various inspectors of the state when authorized as aforesaid and engaged in the discharge of their official duties. Any person refusing to comply with the orders of such officer or federal inspector shall be punished as provided in W.S. 11-1-103.

      . Each county sheriff and deputy shall preserve the peace in the respective counties and suppress all affrays, riots, unlawful assemblies and insurrections. Each sheriff or deputy sheriff may call upon any person to assist in performing these duties or for the service of process in civil and criminal cases or for the apprehension or securing of any person for felony or breach of peace.

      . By way of illustration, the affidavit refers in part to: anger, fear, sadness, hatred, remorse, obsession, depression.


author: HILL, Chief Justice.

text:
    2002 WY 155
    Steven Allen DELOGE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-41.
    Supreme Court of Wyoming.
    Oct. 16, 2002.

      Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General, Representing Ap-pellee.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference.

   HILL, Chief Justice.

[11] Appellant, Steven Allen DeLoge (DeLoge), appeals from the judgment and sentence of the district court, which imposed six consecutive life sentences. DeLoge entered pleas of guilty to six counts of sexual assault in the second degree and, in accordance with the enhancement provision of the sentencing statute which governs sexual assault convictions, the six consecutive life sentences were imposed.

[T2] We will affirm.

ISSUES
[18] DeLoge raises these issues:
I. Whether the district court erred when it sentenced Appellant to six (6) life terms under the enhancement provision of Wyo. Stat. § 6-2-806(c), as the plain statutory language of Wyo. Stat. § 6-2-8306 does not expressly permit multiple enhancements?
II. Whether the district court erred as a matter of law when it enhanced Appellant's sentence to life in prison for Count 1?
III. [Were] Appellant's State and Federal constitutional rights not to be placed twice in jeopardy for the same offense violated by the enhanced penalties of W.S. § 6-2-3067
IV. Did the prosecutor commit prose-cutorial misconduct when he specifically mentioned uncharged, unfounded misconduct evidence in closing at sentencing, and did the district court err in overruling Appellant's objection to this?

The State condenses those issues into these two queries:

I. Whether Appellant was properly sentenced for his convictions on six counts of second degree sexual assault?
II. Whether the prosecutor committed misconduct at Appellant's sentencing hearing?

FACTS

[114] The central issue in this case concerns the intended meaning of the sentencing provisions of the sexual assault statutes. The statute provides:

§ 6-2-306. Penalties for sexual assault.
(a) An actor convicted of sexual assault who does not qualify under the criteria of subsection (b) or (d) of this section shall be punished as follows:
(i) Sexual assault in the first degree is a felony punishable by imprisonment for not less than five (5) years nor more than fifty (50) years;
(ii) Sexual assault in the second degree is a felony punishable by imprisonment for not more than twenty (20) years;
(ii) Sexual assault in the third degree is a felony punishable by imprisonment for not more than fifteen (15) years;
(ivy) Repealed by Laws 1997, ch. 185, § 2.
(b) An actor who is convicted of sexual assault and who does not qualify under the criteria of subsection (d) of this section shall be punished by the extended terms of subsection (c) of this section if;
(i) He is being sentenced for two (2) or more separate acts of sexual assault in the first or second degree;
(ii) He previously has been convicted of any crime containing the same or similar elements as the crimes defined in W.S. 6-2-302 or 6-2-308.
(c) An actor convicted of sexual assault who qualifies under the criteria of subsection (b) of this section shall be punished as follows:
(1) Sexual assault in the first or see-ond degree is a felony punishable by imprisonment for not less than five (5) years or for life;
(i) Sexual assault in the third degree is a felony punishable by imprisonment for not more than twenty (20) years;
(Hi) Repealed by Laws 1997, ch. 185, § 2.
(d) An actor who is convicted of sexual assault shall be punished by life imprisonment without parole if the actor has two (2) or more previous convictions for any of the following designated offenses, which convictions resulted from charges separately brought and which arose out of separate occurrences in this state or elsewhere:
(i) A crime defined in W.S. 62-802 through 6-2-8304 or a criminal statute containing the same or similar elements as a crime defined by W.S. 6-2-3802 through 6-2-304;
(ii) Repealed by Laws 1997, ch. 185, § 2.
(iii) A conviction under W.S. 14-3-105(a), or a criminal statute containing the same or similar elements as the crime defined by W.S. 14-8-105(a), if the circumstances of the crime involved a victim who was under the age of sixteen (16) at the time of the offense and an actor who was at least four (4) years older than the vice-tim.

Wyo. Stat. Ann. § 6-2-3806 (LexisNexis 2001) (emphasis added).

[15] DeLoge entered pleas of guilty to committing sexual assault in the second degree, on six separate and distinct occasions, on the person of FL, a female child who was eight years old at the time the crimes were committed. DelLoge was approximately 40 years old when the offenses were committed. The second degree sexual assault statute provides:

§ 6-2-3038. Sexual assault in the see-ond degree.
(a) Any actor who inflicts sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituting sexual assault in the first degree:
(i) The actor causes submission of the victim by threatening to retaliate in the future against the victim or the victim's spouse, parents, brothers, sisters or children, and the victim reasonably believes the actor will execute this threat. "To retaliate" includes threats of kidnapping, death, serious bodily injury or extreme physical pain;
(i) The actor causes submission of the victim by any means that would prevent resistance by a victim of ordinary resolution;
(iii) The actor administers, or knows that someone else administered to the vice-tim, without the prior knowledge or consent of the victim, any substance which substantially impairs the victim's power to appraise or control his conduct;
(iv) The actor knows or should reasonably know that the victim submits erroneously believing the actor to be the victim's spouse;
(v) At the time of the commission of the act the victim is less than twelve (12) years of age and the actor is at least four (4) years older than the victim;
(vi) The actor is in a position of authority over the vietim and uses this position of authority to cause the victim to submit; or
(vii) The actor inflicts sexual intrusion in treatment or examination of a victim for purposes or in a manner substantially inconsistent with reasonable medical practices.
(b) A person is guilty of sexual assault in the second degree if he subjects another person to sexual contact and causes serious bodily injury to the victim under any of the cireumstances listed in W.S. 6-2-302(a)(G) through (iv) or paragraphs (a)(i) through
(vi) of this section. (c) Repealed by Laws 1997, ch. 135, § 2.

Wyo. Stat, Ann. § 6-2-8308 (LexisNexis 2001) {emphasis added).

[16] DeLoge claimed to be the common-law husband of FL's mother and stepfather to FL and her brother DL. DeLoge and the children came to Cheyenne from Mississippi in August of 1999. It was FL's claim that her mother had disappeared before they left Mississippi, after she caught DeLoge in the act of having sexual intercourse with FL. Repetition of the repugnant details of De-Loge's assaults on FL is unnecessary to resolution of the issues presented. It will suffice to include here that DeLoge had sexual intercourse with FL dozens, if not hundreds, of times, according to the reports she made to police. FL related that the sexual assaults occurred virtually every day. DeLoge was charged with 11 counts of second degree sexual assault, which represented one incident of sexual assault for each of the 11 weeks DeLoge had been in Cheyenne with FL. He agreed to plead guilty to six of those counts in exchange for an agreement by the State to drop the other five counts and to refrain from filing any other eriminal charges arising out of DeLoge's abuse of FL in Wyoming. On November 8, 1999, FL fled the apartment in which much of the abuse took place and with the help of a neighbor managed to get to the police to tell her story.

STANDARD OF REVIEW

Double Jeopardy

[17] This Court has recognized that, although the double jeopardy clauses found in Article 1, $ 11 of the Wyoming Constitution and in the Fifth Amendment of the United States Constitution are dissimilar in language, they have the same meaning and are co-extensive in application. State v. King, 2002 WY 98, 116, 48 P.3d 396, 116 (Wyo.2002); Umbach v. State, 2002 WY 42, 1 8, 42 P.3d 1006, 18 (Wyo.2002). The double jeopardy clause provides an accused with three protections. It protects the accused who has been acquitted against a second prosecution for the same offense, it protects the accused who has been convicted against a second prosecution for the same offense, and it protects the accused against multiple punishments for the same offense. King, ¶17; Bilderback v. State, 183 P.3d 249, 253-55 (Wyo.2000). In this instance, DelLoge contends that multiple punishments have been imposed for a single crime.

Statutory Construction

[T8] DeLoge contends that the district court erred in construing the sentencing statute at issue to permit imposition of six consecutive life sentences. Statutory construction and legislative intent will control the determination of this issue. Applicable general principles of statutory construction include: If the language is clear and unambiguous, we must abide by the plain meaning of the statute; if a statute is ambiguous, we may resort to general principles of construction; an ambiguous statute is one whose meaning is uncertain and susceptible of more than one meaning; and in a eriminal statute, an ambiguity should be resolved in favor of lenity. Umbach, ¶ 9; Abeyta v. State, 2002 WY 44, ¶ 9, 42 P.3d 1009, ¶ 9 (Wyo.2002).

Abuse of Discretion in Sentencing

[149] Sentencing decisions are within the broad discretion of the sentencing court. Smith v. State, 941 P.2d 749, 750 (Wyo.1997). This Court will not disturb a sentence on the ground of sentencing procedures absent a showing by the defendant of an abuse of discretion, procedural conduct prejudicial to him, cireum-stances that manifest inherent unfairness and injustice, or conduct that offends the public sense of fair play. Brower v. State, 1 P.3d 1210, 1216 (Wyo.2000). In that regard, the trial judge abuses his discretion if he premises a sentence on a mistaken reading of the law. Cook v. State, 710 P.2d 824, 825 (Wyo.1985).
The discretion of the trial court is also limited by the fact that a sentencing court may only impose those sentences that have been authorized by the legislature. Williams v. State, 949 P.2d 878, 880 (Wyo.1997); Wyo. Stat. Ann. § 6-10-104 (Lexis-Nexis 2001) ("[wlithin the limits prescribed by law" the court is "to determine and fix" punishment).

Daugherty v. State, 2002 WY 52, 14 12-13, 44 P.3d 28, 1 12-13 (Wyo.2002).

DISCUSSION

[T10] First, DelLoge contends that the statute will permit only one enhancement; that is, that the proper sentence would have been, at most, one life sentence for all six counts. In making this argument, DeLoge relies on authority construing a statute that permits enhancement of a sentence based on a previous conviction or convictions. An example of such a statute is Wyoming's "habitual criminal" statute:

6-10-201. "Habitual criminal" defined; penalties.
(a) A person is an habitual criminal if:;
(i) He is convicted of a violent felony; and
(ii) He has been convicted of a felony on two (2) or more previous charges separately brought and tried which arose out of separate occurrences in this state or elsewhere.
(b) An habitual eriminal shall be punished by imprisonment for:
() Not less than ten (10) years nor more than fifty (50) years, if he has two (2) previous convictions;
() Life, if he has three (8) or more previous convictions.

Wyo. Stat. Ann. § 610-201 (LexisNexis 2001). DeLoge's argument falls short, however, because the plain language of § 62-306(b)(i) only speaks in terms of "being sentenced for two (2) or more separate acts of sexual assault in the ... second degree." There is no requirement that the convictions be "previous," as is the case with the habitual criminal statute. Our rules of statutory construction require that we construe statutes in pari materia, giving effect to each word, clause, and sentence so that no part will be inoperative or superfluous, and we must not construe a statute in a manner that renders any portion meaningless or produces an absurd result. Abeyta, 1 9. When we apply the applicable rules of statutory construction to this statute, we are compelled to conclude that the legislative intent is clear that a defendant who is being sentenced for two or more separate acts of sexual assault in the second degree may be sentenced to a life sentence for each separate act. Stambaugh v. State, 613 P.2d 1237, 1241-43 (Wyo.1980).

[T11] Next, Deloge contends that the statute must be construed to mean that a sentence not subject to the enhancement provision must be imposed for the first count and the enhancement provision only applies to offenses subsequent to the first sentence. Again, applying the same rules of statutory construction set out above, we are compelled to conclude that the rules of statutory construction do not permit us to add such language to that which the legislature provided in its unambiguous enactment. Fullmer v. Employment Security Commission, 858 P.2d 1122, 1124 (Wyo.1993).

[T12] Deloge also maintains that the statute operates in a manner which violates double jeopardy because for at least one count he is punished twice, 4.e., one count is used both as the underlying offense and as an offense giving rise to the enhancement provision. Again, we view this as mixing the concept of "previous" offenses used in the habitual criminal statute, with the language used in § 6-2-306(b)(i), "being sentenced for two (2) or more separate acts of sexual assault in the ... second degree." Our precedents are clear that multiple sexual assaults are separate offenses even though they might be separated by only very short time periods. Frenzel v. State, 938 P.2d 867, 868-9 (Wyo.1997); Hamill v. State, 602 P.2d 1212, 1216-17 (Wyo.1979).

Prosecutorial Misconduct

[113] As his final issue, Deloge contends that he was prejudiced by the prosecutor's misconduct at the sentencing hearing, during which the prosecutor asserted that DeLoge was responsible for killing FL's mother. The record reveals that the prosecutor actually told the district court that, "No, you can't take into account in this sentencing the very probable fact that this defendant killed [DL's] and [FL's] mother." However, we will concede that DeLoge's disputation that what the prosecutor really intended was to call that controversial cireum-stance to the district court's attention so that it would consider that undocumented allegation in sentencing. We agree that such conduct was improper and constituted prosecu-torial misconduct. However, in context we must also credit that this controversial matter had been called to the district court's attention on other occasions during the proceedings in this case. It appears that the district court's decision to overrule the objection was based upon the fact that the district court already knew of the cireumstance, so the prosecutor's misconduct was essentially meaningless, however misguided it appears to have been. Given that this was argument to the court during the sentencing hearing, we conclude that the misconduct did not result in denying DelLoge a fair sentencing hearing, nor did it prejudice DeLoge in terms of the sentence imposed. See Mazurek v. State, 10 P.3d 531, 542 (Wyo.2000).

CONCLUSION

[114] For the reasons set out above, the sentence of the district court is affirmed.