author: THORNE, Jr., Judge:

text:
    2002 UT App 103
    STATE of Utah, Plaintiff and Appellee, v. David O. KINGSTON, Defendant and Appellant.
    No. 20000751-CA.
    Court of Appeals of Utah.
    April 11, 2002.

      Todd A. Utzinger, Salt Lake City, and David B. Thompson, Tesch, Vance & Miller, LLC, Park City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Laura B. Dupaix, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before BILLINGS, Associate P.J., and GARFF, Senior Judge and THORNE, Jr., J.

      . The Honorable Regnal W. Garff, Senior Judge, sat by special assignment pursuant to Utah Code Ann. § 78-2-4(2) (1996); Utah Code Jud. Admin. R11-201(6).

   OPINION

THORNE, Jr., Judge:

[1 Appellant David Kingston (Kingston) appeals from convictions for Incest, a third degree felony, in violation of Utah Code Ann. § 76-7-102 (1999), and Unlawful Sexual Conduct with a Sixteen or Seventeen Year-Old, a third degree felony, in violation of Utah Code Ann. § 76-5-401.2 (1999). We affirm.

BACKGROUND

12 Kingston was charged with three counts of incest and one count of unlawful sexual conduct with a sixteen or seventeen year-old. The Information alleged that Kingston had sexual intercourse with his sixteen year-old niece M.N., (1) at her mother's home between January 1, 1998 and January 31, 1998; (2) at an apartment where M.N. lived on March 2, 1998; (8) at the same apartment between May 7, 1998 and May 15, 1998; and (4) also at the apartment between April 6, 1998 and April 19, 1998. The sexual intercourse that cccurred between May 7, 1998 and May 15, 1998, resulted in the unlawful sexual conduct charge. The remaining sexual conduct resulted in the three incest charges.

T3 A jury convicted Kingston on three of the four counts, finding him not guilty on one of the incest counts. Following his conviction, Kingston filed a motion for a new trial, which the trial court denied. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

T4 Kingston first argues that his trial counsel rendered ineffective assistance. We review Kingston's claim as a matter of law. See State v. Maestas, 1999 UT 32,¶ 20, 984 P.2d 376.

115 Next, Kingston argues the trial court erred in conducting voir dire by bringing to the potential jurors' attention that Kingston was an alleged polygamist. Because Kingston failed to raise this claim to the trial court, we review it for plain error. See State v. Vargas, 2001 UT 5,¶ 39, 20 P.3d 271 (stating "we will consider an issue raised for the first time on appeal if the trial court committed plain error").

6 Finally, Kingston argues that the prosecutor's repeated remarks at trial concerning polygamy amounted to prosecutorial miseon-duct. Because Kingston failed to raise this claim to the trial court, we review it for plain error. See State v. Saunders, 1999 UT 59,-¶ 30, 992 P.2d 951 (applying plain error analysis to prosecutorial misconduct claim that defendant failed to raise at trial).

ANALYSIS

I. Ineffective Assistance of Counsel

17 First, Kingston raises an ineffective assistance of counsel claim. Kingston argues he received ineffective assistance because his trial counsel failed to (1) present an ex post facto defense to the unlawful sexual conduct charge; (2) adequately present to the jury M.N.'s inconsistent pretrial statements concerning the second incest charge; and (8) request a jury instruction naming M.N. as an accomplice to the criminal charges and directing the jury to view M.N.'s testimony with caution.

T8 To prevail on a claim of ineffective assistance of counsel, Kingston must establish that (1) "his trial counsel's performance was 'deficient'" and (2) "he was 'prejudiced' by the ineffective assistance." State v. Visser, 2001 UT App 215,¶ 14, 31 P.3d 584 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). "In determining whether counsel's performance was deficient, [this court] . 'presume[s] that counsel has rendered adequate assistance.... Thus, if the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel'" State v. Parker, 2000 UT 51,¶ 10, 4 P.3d 778 (citation omitted). With this in mind, we review Kingston's specific claims.

A. Ex post facto claim

T9 Kingston claims that his trial counsel rendered ineffective assistance because he failed to raise an ex post facto defense to the unlawful sexual conduct charge. The Information alleged that Kingston and M.N. had sexual intercourse "on or about May 7, 1998 through May 15, 1998." The applicable unlawful sexual conduct statute, Utah Code Ann. § 76-5-401.2, became effective May 4, 1998. Kingston argues that M.N.'s inability to identify a specific date as to when the two had sexual intercourse should have prompted trial counsel to argue that the sexual conduct might have occurred before the effective date of section 76-5-401.2.

1 10 Kingston offers no factual support to bolster his claim that the sexual conduct occurred before May 4, 1998. Indeed, as the State points out, May 4, 1998, fell on a Monday, and M.N. has consistently indicated that the sexual conduct occurred during the first week of May on a "Tuesday, Wednesday, or Thursday."

1111 Nevertheless, the record shows that trial counsel's strategy was to deny that any sexual conduct ever occurred. We cannot say, in light of trial counsel's defense strategy, that it was not "sound trial strategy" to forego a factually unsupportable ex post facto defense. Parker, 2000 UT 51 at ¶ 10, 4 P.3d 778. We conclude that trial counsel's failure to raise an ex post facto defense does not amount to ineffective assistance. Kingston's first claim therefore fails.

B. M.N.'s inconsistent pretrial statements and trial testimony.

112 Kingston next argues that trial counsel failed to "demonstrate for the jury that M.N. had given numerous contradictory pretrial statements regarding" the second incest charge, which oecurred on March 2, 1998. We disagree.

113 Our review of the record reveals that trial counsel brought to light many of the inconsistencies in both M.N.'s pretrial statements and her trial testimony. For example, trial counsel pointed out to the jury that M.N. had contradicted herself when she testified that she and Kingston had engaged in sexual intercourse at her mother's house. M.N. had previously stated that the two never had sexual intercourse at her mother's home. Trial counsel also spent a great deal of time during his closing argument highlighting these inconsistencies.

14 In sum, we find no deficiency in trial counsel's performance as it relates to presenting M.N.'s inconsistent statements to the jury. Indeed, trial counsel relied on these inconsistencies to bolster his argument that M.N. had lied about having sexual intercourse with Kingston. We conclude that Kingston's second claim that trial counsel was deficient also fails.

C. Trial counsel's failure to request a favorable jury instruction.

115 Finally, Kingston argues that trial counsel's failure to request a favorable jury instruction naming M.N. as an accomplice to the crimes charged and directing the jury to view M.N.'s testimony with caution, denied Kingston effective assistance. Kingston relies upon State v. Foust, 588 P.2d 170 (Utah 1978), and Utah Code Ann. § 77-17-7 (1999) to support his claim.

116 In Foust, the Utah Supreme Court held that an incest vietim would be an accomplice to the crime and her testimony would require corroboration if (1) the victim was of the age of consent at the time the sexual act occurred, and (2) a jury determined that she had consented to the sexual act. See id. at 173. The court relied, in part, on Utah Code Ann. § 77-31-18 (1978), which stated, "[al conviction shall not be had on the testimony of an accomplice, unless he is corroborated by other evidence." Id. at 172 n. 1.

17 Under Foust, assuming that M.N. had consented to the sexual acts, she would be an accomplice and her testimony would require corroboration. However, Kingston's reliance on Foust is misplaced because the law changed after Foust. Utah Code Ann. § 77-17-7 (1999), now expressly states that "A conviction may be had on the uncorroborated testimony of an accomplice." Id. Therefore, any possible benefit trial counsel may have acquired relying on Foust for a favorable jury instruction, namely instructing the jury that M.N.'s testimony needed to be corroborated, was lost when the Utah Legislature did away with the accomplice testimony corroboration requirement in 1979.

1 18 Finally, without the benefit of requiring corroboration, we cannot say that it was not sound trial strategy to forego asking for a jury instruction labeling M.N. as a consenting accomplice because (1) it had a potential to inflame the jury, and (2) trial counsel's defense was that the two never had sexual intercourse.

1119 Next, Kingston relies upon Utah Code Ann. § 77-17-7(2) (1999), which states:

(2) In the discretion of the court, an instruction to the jury may be given to the effect that such uncorroborated testimony should be viewed with caution, and such an instruction shall be given if the trial judge finds the testimony of the accomplice to be self contradictory, uncertain or improbable.

Id. We find Kingston's reliance on this subsection unpersuasive. As the Utah Supreme Court stated in Parker, "'if the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel." " Parker, 2000 UT 51 at ¶ 10, 4 P.3d 778 (citation omitted).

120 First, such a cautionary instruction is left to the discretion of the trial court, and therefore, there is a possibility that the trial court may have denied such a request. Perhaps more importantly, the record shows that such an instruction would not have affected the jury's ultimate conclusion. Trial counsel aptly demonstrated for the jury the inconsistencies in M.N.'s pretrial statements and her trial testimony. Further, the crux of trial counsel's case was that M.N. had fabricated her story to get away from the Kingston family, and highlighted these inconsistencies in his closing argument. Finally, the jury had the question of differing stories squarely presented to them for decision. We conclude that trial counsel's decision to fore-go asking for such an instruction was a strategic one, and therefore, we "will not find that [trial counsel's decision] demonstrates inadequacy of counsel." Id.

4 21 In sum, Kingston has failed to demonstrate that trial counsel rendered deficient assistance. We therefore reject his ineffective assistance claim.

II. Polygamy Allegations

A. Voir dire

122 Kingston argues the trial court erred in conducting voir dire by highlighting allegations that Kingston was a polygamist. Because Kingston failed to raise this claim to the trial court, we review it for plain error. See Vargas, 2001 UT 5 at ¶ 39, 20 P.3d 271. To establish plain error, Kingston has "the burden of showing 'i) an error exists; (i) the error should have been obvious to the trial court; and (iii) the error is harmful, ie., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant'" State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993) (citation omitted). Further, where trial counsel's failure to raise an objection before the trial court was the "result of a consciously chosen strategy ... rather than an oversight," an appellate court "should refuse to consider the merits of the trial court's ruling." State v. Bullock, 791 P.2d 155, 158-59 (Utah 1989). In sum, when trial counsel makes a strategic decision not to raise an objection, it "should be treated as a conscious waiver and should preclude further consideration of the issue." Id. at 159.

123 In Bullock, the supreme court explained that

If trial counsel were permitted to forego objecting to evidence as part of a trial strategy that counsel thinks will enhance the defendant's chances of acquittal and then, if that strategy fails, were permitted to claim on appeal that the Court should reverse because it was plain error for the court to admit the evidence, we would be sanctioning a procedure that fosters invited error.

Id. (footnote omitted).

1 24 During voir dire, the trial court made the following statements concerning polygamy:

[Olur objective is to get a fair panel of jurors.
This is fundamentally a case of incest. The coincidence to this case that makes it of interest to the public and to the media happens to be the fact that Mr. Kingston is alleged to be engaged in the practice of polygyny, commonly referred to als] polygamy, which means multiple spouses. Poly-gyny means multiple wives. I don't know any of the case-of this case really any better than any of you know this case. And until it's presented to us, we will learn together.
For that reason, if any of you are selected in the final jury panel ... I would like you to be sure that you do not read, listen, view any media reporting of this case. Because I can tell you candidly that you will get a clear view of the case in the courtroom....
And so I would expect that if you are unwilling to abide by any of the instructions of the Court, you would so let us know and we can then deal with whether we should excuse you for that.
But that's one matter that's very important to me is that this matter be tried solely in this courtroom and not through any outside influence, source of information.

1 25 Later, the trial court made the following statement cautioning the potential jurors:

I explained at the very beginning of this case that fundamentally this is not a case about polygamy. This is a case about an allegation of incest. ...
Now, the fact that Mr. Kingston is alleged to be-and I don't even know all the details of that-a polygamist, should really have no bearing on this case. And what I want to find out about is whether there are those among you ... who feell ] that they are more inclined to be more favorable to the State, most favorable to Mr. Kingston on that factor alone.

126 The Utah Supreme Court has explained that the trial court has " 'considerable latitude as to the manner and form of conducting the voir dire examination.'" State v. Mead, 2001 UT 58,¶ 31, 27 P.3d 1115 (quoting State v. Malmrose, 649 P.2d 56, 60 (Utah 1982)). Moreover, the court has expressly explained that "trial courts should liberally conduct voir dire proceedings ' "in a way which not only meets constitutional requirements, but also enables litigants and their counsel to intelligently exercise peremptory challenges and which attempts, as much as possible, to eliminate bias and prejudice from the trial proceedings.""'" State v. Reed, 2000 UT 68,¶ 11, 8 P.3d 1025 (quoting State v. Piansiaksone, 954 P.2d 861, 867 (Utah 1998) (citation omitted)). We generally review matters concerning voir dire for an abuse of the trial court's considerable discretion. See Mead, 2001 UT 58 at ¶ 10-11, 27 P.3d 1115.

127 In the present matter, the trial court's remarks addressed the pretrial publicity surrounding the case and sought "to eliminate bias and prejudice from the trial proceedings." Reed, 2000 UT 68 at ¶ 11, 8 P.3d 1025 (quotations and citations omitted). In fact, trial counsel later testified at a motion hearing for a new trial that both he and Kingston agreed that because "there'd been extensive pretrial publicity on the polygamy issue ... we decided in the voir dire questions that I submitted to the judge, to sort of face this situation head on, to have the judge ask these questions, and try to ferret out anybody that had any bias." Later, in response to the trial court's statements, trial counsel responded "the court asked basically the questions we submitted. It got into the nature of the pretrial publicity, the nature of polygamy. And in fact, really, he did a pretty good job of asking questions."

[ 28 We conclude that the trial court committed no error by its statements made to the potential jurors. Additionally, we conclude that trial counsel's strategic decision to forego objecting to those statements effectively waived any claim of error.

B. Polygamy allegations at trial.

129 Next, Kingston argues the trial court erred by allowing the State to "repeatedly br[ing] to the jury's attention the claim that Kingston was a polygamist." We disagree.

1 30 During the hearing on Kingston's Motion for a New Trial, Kingston's trial counsel testified to the following:

Trial Counsel: Some evidence of polygamy was going to come in, to some extent, yes.
Mr. Utzinger: Throughout the trial, eventually you made a number of objections to attempts to elicit evidence of polygamy. Do you recall?
Trial Counsel: I think they mostly had to do with his [Kingston's] wives and stuff....
Mr. Utzinger: Those were all sustained, as I recall?
Trial Counsel: I believe they were.
Mr. Utzinger: Okay. So in hindsight, do you think that perhaps you might have been able to block more evidence of polygamy from coming in, given the judge's favorable rulings on each of your objections?
Trial Counsel: You know, I look back over that transcript, and I knew this question would come up, and I thought about it. No. You know, part of our defense involved the fact that she was trying to get away from the Kingston faomily. Part of our defense was sort of set forth in the voir dire when we asked those questions. So, no. You know, as I look back on the direct, which basically is where evidence came from, from M.N., I didn't see anything in there that I would object to now that I didn't object to then.

(Emphasis added.)

1131 As we believe is evident from trial counsel's testimony, his decision not to object to every reference to polygamy was a "consciously chosen strategy ... rather than an oversight." Bullock, 791 P.2d at 158-59. Accordingly, trial counsel's reasonable strategic decision not to raise an objection below precludes this court from addressing the merits of Kingston's claim for the reasons set forth above.

III. Prosecutorial Misconduct

132 Finally, Kingston argues the prosecutor's repeated references to polygamy amounted to prosecutorial misconduct. However, Kingston failed to raise this claim in the trial court, and trial counsel admitted that "[slome evidence of polygamy was going to come in." Therefore, trial counsel's decision not to raise this claim also appears to be "consciously chosen strategy ... rather than an oversight." Bullock, 791 P.2d at 158. And, as we stated above, when trial counsel makes a strategic decision not to raise an objection, it "should be treated as a conscious waiver and should preclude further consideration of the issue." Id. at 158-59. Accordingly, we do not address the merits of Kingston's claim.

183 Kingston's convictions are therefore affirmed.

€ 34 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and REGNAL W. GARFF, Senior Judge.

      . The 1998 enactment replaced former § 76-5-401 (1983).

      . In 1979, the Utah Legislature amended Utah Code Ann. § 77-31-18, which required that accomplice testimony be corroborated, allowing a conviction based upon uncorroborated testimony to stand. In 1980, the section was renumbered to Utah Code Ann. § 77-17-7 (1980).

      . We take this and subsequent passages from the hearing transcript contained in the record.


source: Caselaw Access Project

author: JACKSON, Presiding Judge:

license: Public Domain

text:
    2002 UT App 119
    STATE of Utah, Plaintiff and Appellee, v. Jose Manuel RODRIGUEZ, Defendant and Appellant.
    No. 20010221-CA.
    Court of Appeals of Utah.
    April 18, 2002.

      Bryan Sidwell, Delta, for Appellant.
    Mark L. Shurtleff, Attorney General and Karen A. Klueznik, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges JACKSON, BENCH, and GREENWOOD.
   OPINION

JACKSON, Presiding Judge:

{1 Defendant Jose Manuel Rodriguez appeals his sentence of six years to life without probation, arguing that he was denied equal protection because the trial court denied him probation solely due to his status as a deport-able alien. We affirm.

BACKGROUND

T2 On June 8, 2000, Defendant pleaded guilty to three counts of Rape of a Child, a first degree felony, under Utah Code Ann. § 76-5-402.1 (1999). He was subsequently sentenced to a minimum mandatory term of six years to life for each count, with the sentences to be served concurrently. At sentencing, the trial court found that Defendant failed to comply with the terms of Utah Code Ann. § 76-5-406.5 (1999) (Probation Statute). This statute allows a sentencing court to consider probation for a defendant convicted under section 76-5-402.1 only where the defendant complies with the terms of the statute. The court also "reject[ed Defendant's] argument that he ought to be placed on probation" because of his status as a deporta-ble alien, and because it knew "of no way that he can be monitored internationally on probation." Defendant appeals.

ISSUE AND STANDARD OF REVIEW

13 "The decision to grant or deny probation is at the discretion of the trial court, and we review it under an abuse of discretion standard." State v. Chapoose, 1999 UT 83,¶ 6, 985 P.2d 915 (citing Utah Code Ann. § 76-5-406.5(1), (4) (Supp.1998)). However, we will not reverse the trial court's underlying finding that Defendant failed to meet the Probation Statute's requirements unless it is clearly erroneous. See State v. Gentlewind, 844 P.2d 372, 375 (Utah Ct.App. 1992).

4 Defendant challenges the trial court's ruling that denies him probation. He argues that the trial court unconstitutionally based its decision on his status as a deporta-ble alien. However, " '[a]l constitutional question is not to be reached if the merits of the case in hand may be fairly determined on other than constitutional issues'" State v. Webster, 2001 UT App 238, ¶ 30 n. 8, 32 P.3d 976 (quoting Hoyle v. Monson, 606 P.2d 240, 242 (Utah 1980)). Thus, because we conclude that Defendant failed to satisfy the requirements of the Probation Statute, we need not reach his constitutional argument.

ANALYSIS

15 Regarding the Probation Statute we noted in State v. Tryba, that

"the court may suspend execution of sentence and consider probation to a residential sexual abuse treatment center only if all of the following circumstances are found." [Utah Code Ann. § 76-5-406.5 (1999).] The statute then lists a dozen requirements, ... each of which the "defendant has the burden to establish by a preponderance of evidence." These twelve requirements are in the conjunctive, meaning if any one of the requirements is not established by a preponderance of evidence, probation is not an option. Of course, "even the establishment of all the section 76-5-406.5(1) criteria by a preponderance of the evidence does not compel a trial court to grant probation. Section 76-5-406.5[ (4) ] gives the court 'diseretion to deny the request based on its consideration of the cireumstances of the offense and impose the minimum mandatory sentence."

State v. Tryba, 2000 UT App 230,¶ 12, 8 P.3d 274 (first citation included, others omitted).

16 Defendant argues that he "met all the criteria required by" the Probation Statute, including the requirement that he "has been accepted for mental health treatment in a residential sexual abuse treatment center that has been approved by the Department of Corrections." Utah Code Ann. § 76-5-406.5(1)(h). "Because a defendant has the burden of meeting all twelve requirements of section 76-5-406.5(1), we need not review all the criteria for eligibility if our inquiry reveals that any single requirement is not satisfied." Tryba, 2000 UT App 230 at ¶ 13, 8 P.3d 274. Defendant must establish that he met this burden by a preponderance of the evidence. See id. at ¶ 12.

T7 At sentencing, the trial court stated, "I'm going to make a determination at the threshold, that [Defendant] cannot comply with the mandated terms of the statute.... I have to make that decision, in light of the facts that I have." The court then concluded, "[In light of that, probation is not an option."

18 As Defendant's only record support for his contention that he met the residential treatment requirement, Defendant cites to Adult Probation and Parole's report, which states that he "has been accepted for treatment." However, he omits the rest of the report's comment. The report states, "This Defendant has admitted to this offense and has been accepted for treatment, but not in a residential program." (Emphasis added.) By selectively omitting this language, Defendant misstates the evidence.

19 Our review of the record reveals no evidence that would support a candid assertion that Defendant met the requirement that he be admitted into a residential treatment program. "(Incarceration for child sex abusers is the expectation, and failure to meet all the requirements of the narrow probation exception, regardless of the reason for the failure, means probation cannot even be considered by the trial court." Tryba, 2000 UT App 230 at ¶ 21, 8 P.3d 274 (emphasis added). As a result, Defendant failed to meet his burden of showing he met the statutory requirements by a preponderance of the evidence. Thus, the trial court's finding that Defendant failed to meet the requirements of the Probation Statute was not clearly erroneous. Accordingly, the trial court did not abuse its discretion, but "correctly concluded [Defendant] was ineligible for probation under Utah Code Ann. § 76-5-406.5 (1999)." Id. at ¶ 23.

CONCLUSION

110 Defendant failed to show the trial court's finding that he did not comply with the Probation Statute was clearly erroneous. Thus, the court correctly concluded that Defendant was ineligible for probation. Accordingly, we affirm.

T 11 WE CONCUR: RUSSELL W. BENCH and PAMELA T. GREENWOOD, Judges.

      . "Classifications which have been deemed 'suspect' for purposes of equal protection analysis include those based upon alienage. ..." State v. Bell, 785 P.2d 390, 398 (Utah 1989).

      . We have previously characterized this determination as a finding of fact. See State v. Gentlewind, 844 P.2d 372, 376 & n. 3 (Utah Ct.App. 1992). Thus, Defendant challenges the trial court's finding that he did not meet the necessary criteria, and he is obligated to marshal the evidence supporting the trial court's finding. See id. at 375. We note that Defendant failed to marshal the evidence and inferences relating to Adult Probation and Parole's report that he had not "been accepted for mental health treatment in a residential sexual abuse treatment center." Utah Code Ann. § 76-5-406.5(1)(h) (1999) (emphasis added).

      . Thus, even if Defendant was not accepted into residential treatment due to his deportation status, he cannot be said to have complied with the Probation Statute.


author: BENCH, Judge:

text:
    2002 UT App 120
    STATE of Utah, Plaintiff and Appellee, v. Amber BARRICK and Travis Glenn Johnston, Defendants and Appellants.
    No. 20010027-CA.
    Court of Appeals of Utah.
    April 18, 2002.
    Margaret P. Lindsay, Aldrich Nelson Weight & Esplin, Provo, for Appellants.
    Mark L. Shurtleff, Attorney General and Christopher D. Ballard, Assistant Attorney General, for Appellee.
    Before Judges BENCH, DAVIS, and ORME.
   OPINION

BENCH, Judge:

1 1 Defendants Amber Barrick and Travis Johnston appeal from conditional guilty pleas to one count each of attempted forgery. We affirm.

BACKGROUND

12 Defendants allegedly found or otherwise acquired a money order,. The money order had the signature and address of the purchaser, but the payee line was blank. The purchaser apparently bought the money order to pay a utility bill and did not know either Defendant. One of the Defendants wrote Amber Barrick on the blank payee line, endorsed the money order, and then cashed it. Defendants were charged with Forgery, a third degree felony, in violation of Utah Code Ann. § 76-6-501 (1999). Defendants entered a plea of guilty to attempted forgery, conditional upon their right to appeal the denial of their motion to dismiss the forgery charge and their convictions for attempted forgery. See Utah Code Ann. § 76-4-101 (1999).

ISSUES AND STANDARDS OF REVIEW

3 Defendants first argue that by filling in a name on a blank payee line, the legal significance of the instrument is not changed. Second, they argue that the trial court erred in concluding that their actions constitute forgery by the completion or utterance of a writing purporting to be the act of another as required by section 76-6-501 (Forgery Statute). See Utah Code Ann. § 76-6-501. Defendants claim that their actions constitute, at worst, the class A misdemeanor of theft of lost or mislaid property. See Utah Code Ann. § 76-6-407 (1999).

14 "We review for correctness a trial court's statutory interpretation, according it no particular deference." State v. Singh, 819 P.2d 356, 359 (Utah Ct.App.1991) (quotations and citations omitted). "In interpreting a statute we give the words their usual and accepted meaning." Gull Labs., Inc. v. Utah State Tax Comm'n, 936 P.2d 1082, 1084 (Utah Ct.App.1997) (quotations and citation omitted). We first examine the statute's plain language, resorting to other methods of statutory interpretation only if the language is ambiguous. See Hercules, Inc. v. Utah State Tax Comm'n, 2000 UT App 372,¶ 9, 21 P.3d 231.

ANALYSIS

15 The Forgery Statute provides, in part, that

(1) A person is guilty of forgery if, with purpose to defraud anyone, or with knowledge that he is facilitating a fraud to be perpetrated by anyone, he:
(a) alters any writing of another without his authority or utters any such altered writing; or
(b) makes [or] completes ... or utters any writing so that the writing or the making, [or the] completion ... or [the] utterance purports to be the act of another, whether the person is existent or nonexistent....

Utah Code Ann. § 76-6-501. Defendants do not contest that they had "purpose to defraud" or "knowledge" that they were facilitating a fraud. The requirements for forgery under the first part of section 76-6-501 are accordingly met. Therefore, we consider Defendants' actions and arguments in the order listed in the Forgery Statute: first looking at the issue of altering a writing without authority as stated in subsection (1)(a), and then considering whether Defendants completed or uttered the writing as specified in subsection (1)(b).

16 The language of the Forgery Statute is plain and unambiguous and we "give the words their usual and accepted meaning." Gull Labs., 936 P.2d at 1084 (quotations and citation omitted). "When language is clear and unambiguous, it must be held to mean what it expresses, and no room is left for construction." Hanchett v. Burbidge, 59 Utah 127, 202 P. 377, 380 (1921). Defendants argue that the trial court erred when it concluded that their actions constituted forgery under section 76-6-501. Defendants contend that their actions did not change the legal significance of the instrument. Subsection (1)(a) of the Forgery Statute states that anyone who "alters any writing of another without his authority" is guilty of forgery. Utah Code Ann. § 76-6-501(1)(a). The purchaser of the money order did not know either Defendant. Therefore, Defendants did not have the authority to alter or add anything to the money order. Inserting Barriek's name into the blank payee line clearly altered the money order. See People v. Pool, 185 Colo. 131, 522 P.2d 102, 104 (1974) (en bane) (holding that defendant committed forgery when, without authority, he altered a money order by filling in his own name as payee in the blank payee line, endorsed it, and then cashed it). Specifically, the money order was altered by Defendants in at least three respects. First, Defendants' conduct subverted the purchaser's intent as to who was to be paid by the money order. Second, the face of the money order was altered according to the meaning of "alter" by filling in a line that was left blank. Finally, as we discuss below, Defendants' conduct "altered" the writing within the meaning of the Forgery Statute by converting the money order from a bearer instrument to an order instrument, which changes the legal significance of the instrument. See Utah Code Ann. § 70A-3-109 (1997).

T7 Section 70A-3-109, part of the Utah Uniform Commercial Code (UUCC), delineates the difference between a bearer instrument and an order instrument. That section provides, in part, that

(1) A promise or order is payable to bearer if it:
(a) states that it is payable to bearer or to the order of bearer ...;
(b) does not state a payee; or
(c) states that it is payable to or to the order of cash or otherwise indicates that it is not payable to an identified person.
(2) A promise or order that is not payable to bearer is payable to order if it is payable to the order of an identified person, or to an identified person or order. A promise or order that is payable to order is payable to the identified person.

Id. (emphasis added). A bearer instrument "does not state a payee" while an order instrument is "payable to order if it is payable to the order of an identified person." Id. When Defendants filled in one of their names on the blank payee line, the instrument ceased to be a bearer instrument and became payable to the order of an identified person. The newly created order instrament restricted who could receive payment and changed the obligation of the parties to the money order. See id. Defendants' actions therefore "altered" the writing by changing the instrument from bearer to order, and in the process changed the instrument's legal significance. See Utah Code Ann. § 70A-3-115 (1997).

18 Defendants also assert that the term "completes," as used in subsection (1)(b) of the Forgery Statute, refers to the negotiability of the instrument as specified in the UUCC. Defendants urge that the money order with a blank payee line was a completed, negotiable instrument, pointing to State v. Donaldson, 14 Utah 2d 401, 385 P.2d 151 (1963), as support. Donaldson, however, is easily distinguished from the instant case. Donaldson involved a defendant who challenged his conviction of issuing a bad check against insufficient funds. See id. at 151. The defendant argued that the instrument he issued was not a check because the payee section was left blank. See id. The court in Donaldson stated:

It is well settled by authority that the omission to insert in an instrument the name of a payee is not a feature or a defect which affects negotiability. The effect of the omission to name a payee is to invest any bona fide holder with the authority to fill in the blank left for that purpose by the drawer or maker. Such instruments are payable to the bearer until restricted in their currency as negotiable instruments by the insertion of the name of some particular payee.

Id. at 151-52 (quotations and citation omitted) (emphasis added). The court used this language to conclude that the defendant's instrument was a check, although the payee section was left blank. See id. at 152. Unlike Donaldson, where the issue was whether an instrument was a negotiable check, the issue Defendants raise in the present case is whether a writing was completed.

T 9 The Forgery Statute states that a person is guilty of forgery if the person completes "any writing so that the writing ... purports to be the act of another." Utah Code Ann. § 76-6-501(1)(b). A money order is clearly a writing as defined by section 76-6-501(2), and Defendants do not challenge that their writing purported to be the act of another. See Utah Code Ann. § 76-6-501(1)(b). Based on the ordinary meaning of complete, Defendants "completed" a writing by inserting one of their names into the blank payee line. This action completed an order instrument that prior to the entering of Barriek's name was incomplete as an order instrument, and by so doing purported to be the act of the purchaser in designating Bar-rick as the intended payee. See Utah Code Ann. § 70A-3-115. Accordingly, we conclude that the Defendants also "completed" the writing.

1110 Finally, Defendants contend that they did not "utter" the instrument as the term is used in the Forgery Statute. When the Defendants cashed the forged instrument, they, in effect, uttered the instrument. See State v. Green, 89 Utah 437, 57 P.2d 750, 757 (1936) (holding that offering a forged check with intent to defraud and knowing that it is false constitutes uttering); see also State v. Gorham, 93 Utah 274, 72 P.2d 656, 660 (1937) (concluding that to convict defendant of uttering a forged instrument, it may be sufficient to show the passing of an instrument known by defendant to be false or forged and it is not essential to prove that the defendant personally forged the instrument).

CONCLUSION

T11 We conclude that the trial court did not err in denying Defendants' motion to dismiss, and in finding that Defendants' actions legally constituted the offense of forgery. The decision of the trial court is therefore affirmed.

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

      . Utah Code Annotated § 76-6-407 (1999) provides, in part, that "[a] person commits theft when: (1) He obtains property of another which he knows to have been lost or mislaid ... without taking reasonable measures to return it to the owner; and (2) He has the purpose to deprive the owner of the property when he obtains the property...." We do not decide whether Defendants could be found guilty of theft of lost or mislaid property because that issue is not before us.


author: HILL, Justice. VOIGT, Justice,

text:
    2002 WY 74
    Shirley WEIDT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-84.
    Supreme Court of Wyoming.
    May 17, 2002.

      Ken Koski, State Public Defender; Donna Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender, Representing Appellant. Argument by Ms. Yoder.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, and Robin Sessions Cooley, Senior Assistant Attorneys General, Representing Appellee. Argument by Ms. Cooley.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   HILL, Justice.

[T1] Shirley Aun Weidt (Weidt) appeals a conviction for interference with custody alleging that she was denied a fair trial because of a variance between the offense charged in the Information and the instructions given to the jury. Weidt also challenges the sufficiency of the evidence to support the conviction and the competency of her trial attorney's representation. We find no error in any of the claims raised, and we affirm Weidt's conviction.

ISSUES

[12] Weidt presents three issues for consideration:

Issue I
Was the fact that Appellant was charged with a crime other than the one of which she was found guilty and for which she was sentenced reversible error?
Issue II
Was there sufficient evidence adduced to support Appellant's conviction for violation of W.S. § 6-2-204(a)(ii)(d)(i), the sole statutory section with which Appellant was charged?
Issue III
Did Appellant's trial counsel fail to adequately represent Appellant?

The State agrees with Weidt's statement of the issues but presents them using slightly different language:

I. Whether Appellant was properly convicted by a jury of the offense alleged in the Information?
II. Whether the evidence was sufficient to support Appellant's conviction of interference with custody?
III. Whether Appellant was denied effective assistance of counsel at trial?

FACTS

[13] Weidt is the mother of a young daughter. The father of the girl, John Sher-ard (Sherard), is the primary custodial parent. Pursuant to a court order issued on March 22, 2000, Weidt was prohibited from having any unsupervised visitations with her daughter. In spite of the court order, Sher-ard allowed the girl to have an unsupervised visit. On June 25 or 26, 2000, Sherard observed Weidt's van parked outside of her friend's house in Sheridan. The girl wanted to see her mother, so Sherard agreed to drop her off with the caveat that he would pick her up in a couple of hours. Sherard watched his daughter walk up to the house and then left when he saw Weidt. Later, Sherard returned only to find Weidt's van gone. Sherard located the van at Weidt's rural residence, but he did not approach the house because he believed that there was a court order preventing him from entering the property. Using his cell phone, Sherard attempted to contact Weidt. Despite the fact that he could see that the lights and television were on, no one answered the phone.

[14] Sherard continued to search for his daughter on his own, but he also contacted the Sheriffs office, which began to look for Weidt and the girl after being provided with a copy of the district court's custody order. Several days later, Sherard received a phone call from Weidt, who informed him that he "wasn't going to ever see [their daughter] again, that [Weidt] was going to hide her out in the prairie dog fields; and [that Sherard] would never see her again."

[15] The police located the girl on July 12 and arrested Weidt. After a one-day jury trial, a verdict of guilty to one count of interference with custody was returned. Additional facts will be developed in our discussion below of the issues raised on appeal by Weidt.

DISCUSSION

1. Variance between Information and Jury Instruction

[16] In order to address this issue, we begin by setting forth the context in which it appears. Weidt was charged with interference with custody, which provides, in its entirety:

§ 6-2-204. Interference with custody; presumption of knowledge of child's age; affirmative defenses; penalties.
(a) A person is guilty of interference with custody if, having no privilege to do so, he knowingly:
(i) Takes or entices a minor from the custody of the minor's parent, guardian or other lawful custodian; or
(i) Fails or refuses to return a minor to the person entitled to custody.
(b) Proof that the child was under the age of majority gives rise to an inference that the person knew the child's age.
(c) It is an affirmative defense to a prosecution under this section that:
(i) The action was necessary to preserve the child from an immediate danger to his welfare; or
(ii)The child was not less than fourteen (14) years old and the child was taken away or was not returned:
(A) At his own instigation; and
(B) Without intent to commit a criminal offense with or against the child.
(d) Interference with custody is a felony punishable by imprisonment for not more than five (5) years if:
(i) The defendant is not a parent or person in equivalent relation to the child; or
(ii)The defendant knowingly conceals and harbors the child or refuses to reveal the location of the child to the parent, guardian or lawful custodian.
(e) Interference with custody which is not punishable under subsection (d) of this section is a felony punishable by imprisonment for not more than one (1) year and one (1) day.

Wyo. Stat. Ann. § 6-2-204 (LexisNexis 2001). The Information charging Weidt with interference with custody provided:

Comes now Dianna D. Bennett, Deputy County and Prosecuting Attorney of the County of Sheridan and State of Wyoming, and in the name and by the authority of the State of Wyoming informs the Court and gives the Court to understand that SHIRLEY ANN WEIDT, late of the county aforesaid, on or about June 27, 2000, at the County of Sheridan, in the State of Wyoming, did unlawfully having no privilege to do so, knowingly fail or refuse to return a minor to the person entitled to custody, to-wit: in that the said SHIRLEY ANN WEIDT, having no privilege to do so, knowingly failed to return a minor child to the person entitled to custody, John B. Sherard, the minor child's father and furthermore, SHIRLEY ANN WEIDT refuses to reveal the location of the child to Mr. Sherard;
In violation of W.S. § 6-2-204(a)(ii)(d)(ii)
"INTERFERENCE WITH CUSTODY”

Pursuant then to the Information, Weidt was charged with, having no privilege to do so, failing or refusing to return the minor child, her daughter, to the person entitled to have custody, Sherard, and knowingly concealing, harboring or refusing to reveal the location of the girl to Sherard. Inexplicably, the jury instruction proffered by the State, however, omitted the language from subsection (d) relating to "knowingly concealing, harboring or refusing to reveal the location of [their daughter] to Sherard:"

INSTRUCTION NO. 3
The elements of the crime of Interference with Custody as charged in this case are
1. On or about the 25th or 26th of June, 2000
2. In the County of Sheridan, and State of Wyoming
3. The Defendant, Shirley Ann Weidt
4. Having no privilege to do so
5. Failed or refused to return a minor, ..., to the person entitled to custody of the minor.
If you find from your consideration of all of the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the Defendant guilty.
If, on the other hand, you find from your consideration of all of the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty.

The jury returned a verdict of guilty predicated on Instruction Number 38. Defense counsel brought the discrepancy between the Information and the jury instruction to the district court's attention at sentencing. The district court resolved the issue by imposing the penalty under subsection (e):

The Court is going to rule that although the State had an opportunity to charge this Defendant under the five-year felony portion of 6-2-204 after the case was bound over from Cireuit Court, it elected to present an element instruction for the smaller, one-year felony under Subsection (a) when the case was presented to the jury for deliberation. Therefore, the Court is going to enter a conviction against the Defendant for having violated 6-2-204(a)(ii).
The penalty section that applies to a violation of that statute is found under Subsection (e)....
The Court observes that had either side requested an element instruction that would have included the concealing and harboring language of Subsection (d) the Court would have granted that instruction.

The district court proceeded to sentence Weidt under subsection (e).

[17] On appeal, Weidt claims that there was a prejudicial variance between the Information and the jury instruction. Weidt contends that she was, in effect, never tried on the charge that was filed against her. She argues that her counsel entered trial with the expectation that he would be able to offer an affirmative defense to the element charged under subsection (d) that Weidt "knowingly concealled] and harbor[ed] the child or refuse[d] to reveal the location of the child to the parent[.]" Wyo. Stat. Ann. § 6-2-204. Weidt insists that she was prejudiced because she could have been acquitted of the charge of interference with custody based upon her defense to that element.

[18] Weidt did not offer an objection to the proposed instruction. Therefore, a plain error analysis applies. Taylor v. State, 2001 WY 13, ¶ 16, 17 P.3d 715, ¶ 16 (Wyo.2001). Plain error exists if it can be demonstrated that the record clearly shows an error that has transgressed a clear and unequivocal rule of law and has adversely affected a substantial right of the defendant. Id.

[¥9] "A variance between the information and the jury instruction does not automatically result in reversible error." State v. Williams, 18 S.W.3d 461, 469 (Mo.App. E.D.2000).

Such a variance is fatal where the instruction submits a new and distinct offense to the jury. State v. Jones, 930 S.W.2d 453, 455 (Mo.App. E.D.1996). Instructing on one form of the offense where the information charges another form of the same offense is not reversible error absent a showing that the variance between the information and the instruction is material and prejudicial. [State v. Lee, 841 S.W.2d 648, 651 (Mo. banc 1992)] Variances are material where they affect whether the defendant received adequate notice of the charges against him. State v. Whitfield, 939 S.W.2d 361, 366 (Mo. banc 1997). Variances are prejudicial where they affect the defendant's ability to defend the charge against him. Id.

Id. at 469. A variance may also be prejudicial if it leaves a defendant open to the risk of double jeopardy. State v. Sherrod, 131 Idaho 56, 951 P.2d 1283, 1286 (App.1998).

[1 10] The crime of interference with custody may be charged in two distinct ways under the statute. Subsection (d) provides that interference with custody is a felony punishable by up to five years imprisonment if one of two conditions is proved: (1) the defendant is not a parent or person in equivalent relation to the child; or (2) the defendant knowingly conceals and harbors the child or refuses to reveal the location of the child to the parent, guardian, or lawful custodian. Subsection (e) is effectively a catchall provision since it provides that any interference with custody not punishable under subsection (d) is a felony punishable by imprisonment for not more than one year and one day. If placed side by side, the elements of a charge under either subsection would look like this:

The Information specified a charge of interference with custody under subsection (d) while the jury was instructed on a charge of interference under subsection (e). There was no variance on the crime underlying either the Information or the jury instruction-Weidt was accused of and the jury was instructed on interference with custody under Wyo. Stat. Ann. § 6-2-204. There was a difference between the Information and the jury instruction on the subsection that defined the penalty to be applied for the crime. Assuming that difference rose to the level of a variance, however, it cannot reasonably be argued that Weidt was not on notice of the charge against her. The elements of the crime of interference with custody are identical under either subsection with the only difference being the additional element under subsection (d), which, if proved, provides an enhanced penalty for the crime. The absence of that additional element in the jury instruction does not affect whether or not the crime of interference with custody itself was committed under the statute. Accordingly, any variance between the Information and the jury instruction did not materially affect notice to Weidt of the crime for which she was charged.

[111] Weidt claims that she could have been acquitted of the charge set forth in the Information based upon an affirmative defense that she did not conceal, harbor or refuse to reveal the location of the girl. She insists that there was insufficient evidence produced at trial to support a finding under subsection (d), and the absence of that element from the jury instruction prejudiced her ability to make that defense.

[112] Weidt's contention that her defense was prejudiced by the variance cannot withstand scrutiny. First, Weidt had every opportunity to present her defense. The parties approved the jury instruction that omitted language from subsection (d) in an instruction conference that took place after the parties had presented their case to the jury. Furthermore, defense counsel acknowledged that he did not notice the discrepancy between the Information and the jury instruction until just prior to the sentencing hearing. Accordingly, it is impossible for the alleged variance between the Information and the jury instruction to have had any affect whatsoever on Weidt's presentation of her defense.

[T13] Presented with a full opportunity to make a defense, Weidt chose to make her stand on the question of whether she failed or refused to return the girl to Sherard. Weidt's defense counsel made the point during his closing:

You'll have a chance to go through all of the elements. And when you get down to Number 5, where it says "... failed or refused to return a minor," there has been no testimony given where Shirley refused to return a minor.

Weidt's defense was, essentially, that Sher-ard never asked for his daughter's return. The failure to instruct the jury on subsection (d) did not impact Weidt's ability to present her chosen defense. There has been no showing that the variance between the Information and the jury instruction was material or prejudicial to Weidt's notice of the crime charged or her ability to defend against it.

2. Sufficiency of the Evidence

[114] In the section of her brief dedicated to a challenge to the sufficiency of the evidence supporting the conviction, Weidt also asserts several claims that are best characterized as alleged evidentiary errors. We need to address those claims first since they impact any consideration of the evidence in support of Weidt's conviction. The admission of evidence is consigned to the sound discretion of the district court judge. Hodges v. State, 904 P.2d 334, 340 (Wyo.1995). If no objection is posed, then review is under the plain error standard.

Plain error exists when 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him. Yetter v. State, 987 P.2d 666, 668 (Wyo.1999) (quoting Sandy v. State, 870 P.2d 352, 358 (Wyo.1994)); see also Mora v. State, 984 P.2d 477, 480 (Wyo.1999).

Mazurek v. State, 10 P.3d 531, 535 (Wyo.2000).

[115] First, Weidt contends that the trial court should have admitted into evidence an order issued on October 4, 1999, setting forth the initial custody and visitation rights between Weidt and Sherard. Weidt contends that the order would have shown that "custody," as used in subsection (d), did not reside exclusively with Sherard. Weidt notes that Sherard referred to a court "order" barring him from entering Weidt's property on numerous occasions in his testimony. She insists that admission would have impeached Sherard's testimony on this point.

[T16] At trial, the State introduced into evidence, without objection, a copy of the district court order restricting Weidt's visitation rights with her daughter. Later, defense counsel sought admission of a court order, which apparently arose out of the first custody hearing between Weidt and Sherard. Sherard was recalled to the stand by the defense whereupon defense counsel sought to impeach Sherard on his claim that he was prohibited from entering Weidt's property by court order. The following exchange then took place between the court and defense counsel:

The Court; The-{defense counsel], if the only reason you want this in evidence is to demonstrate to the jury that there is no written order of the Court after the September 1, 1999 hearing prohibiting Mr. Sherard from going on Ms. Weidt's property, I do not want to admit the document into evidence, because there's a number of other items contained therein that might provide some confusion. Is there any other purpose?
[Defense counsel]: That would be the only purposel[.]
The Court: [Prosecutor], do you stipulate and agree that there is no order from the Court in Defendant's Exhibit A that would prohibit Mr. Sherard from going onto Ms. Weidt's premises?
[Prosecutor]: We would stipulate, Your Honor.
The Court: Okay. You may accept that fact as proved. The Court is going to deny admission of the exhibit into evidence for the reasons stated.

(Emphasis added.) Weidt never argued to the district court that the order was offered for any reason other than to impeach Sher-ard on his claim that a court order prohibited him from entering her property. The prosecutor stipulated that no such order existed. The Court felt that the order contained extraneous material that could create confusion for the jury. Weidt fails to offer us any argument on why admission of the order would not cause confusion to the jury. Instead, she makes an argument-the order could have been used to defeat a claim under subsection (d) that she concealed, harbored or refused to reveal the girl's location-that was not raised by defense counsel during the trial. We will not consider whether the order should have been admitted into evidence on a theory raised for the first time in this Court on appeal. The district court's deci-gion to deny admission of the proffered order was a discretionary act within its authority.

[117] Related to her argument on the admissibility of the order, Weidt argues that even eliciting testimony alluding to the prior judicial rulings in this case was error. She claims that any reference by Sherard to the previous order was reversible error. Relying on our decision in Sheeley v. State, 991 P.2d 136 (Wyo.1999), Weidt contends that testimony "appears to quote [the] judge on an ultimate issue" invading the province of the jury and depriving her of a fair trial, Essentially, Weidt claims that the references to the previous court orders effectively constituted an expression of opinion on the evi-denee indicating a possible bias on the part of the trial judge.

[118] Weidt's argument has no merit. Sherard testified that he did not enter Weidt's property to ascertain whether his daughter was there because he believed that he was prohibited from doing so by an order of the court. Sherrard offered this testimony solely as an explanation for his actions. We fail to see how this testimony constituted a representation by the judge on the evidence. In Sheeley, the prosecutor asked a witness during cross-examination whether or not an investigator recalled what the victim had been told by a judge during the preliminary hearing regarding her testimony in that proceeding. The investigator responded that he thought the judge cautioned her in regard to perjury. We held that this exchange was reversible error for the obvious reason that it injected possible judicial bias into the trial. 991 P.2d at 139-40. Eliciting the testimony concerning the judge's statement in another proceeding may have allowed the jury to conclude that the trial judge believed the evidence favored a finding of guilt. Id. In that case, the judge, through the prosecutor's line of questioning, was effectively commenting on the weight and quality of the evidence. That is not the situation before us in this case. There is nothing in the transcript or the record indicating that a witness testified about a statement made by the judge in another proceeding. Similarly, there is nothing in the record indicating that the judge made any comment about the testimony or any other evidence in front of the jury that could be considered improper. What the record does show is that Sherard was testifying about his personal belief of what he could or could not do pursuant to a court order. Our decision in Sheeley simply bears no relevance to the situation in this case, and we find no error.

[T19] Next, Weidt suggests that the district court should have stricken specific testimony of Sherard relating to a phone call from Weidt where she allegedly stated that he "wasn't going to ever see [their daughter] again, that [Weidt] was going to hide her out in the prairie dog fields; and [that Sherard] would never see her again." Weidt describes this testimony as "fantastic" and "incendiary," which was improperly elicited by the prosecutor. Again, Weidt fails to offer any cogent reason why this testimony was improperly solicited or why it should have been stricken by the district court. The testimony is clearly not hearsay. W.R.E. 801(d)(2). Weidt does not offer an analysis pursuant to W.R.E. 403 that the statement's probative value was substantially outweighed by the danger of unfair prejudice beyond attaching labels like "fantastic" and "incendiary" to it. Again, Weidt has failed to present a cogent argument, and we will decline to consider her argument any further.

[120] Mixed within her arguments about the district court's handling of the evidence, Weidt manages to offer a contention that the evidence does not support her conviction for interference with custody.

"The appellate test for sufficiency of evidence is whether a rational trier of fact could have been sufficiently armed by the evidence to find the essential elements of the offense beyond a reasonable doubt. In assessing that issue, we view the evidence in a light most favorable to the state, affording them the benefit of all reasonable inferences to be drawn therefrom. It is not our task, let alone our place, to reweigh the evidence or reexamine the credibility of the witnesses."

Nollen v. State, 12 P.3d 682, 684 (Wyo.2000) (quoting Rodriguez v. State, 962 P.2d 141, 148 (Wyo.1998) and Curl v. State, 898 P.2d 369, 375 (Wyo.1995)).

[121] Our review of the evidence indicates a rational trier of fact could have found the essential elements of the offense of interference with custody beyond a reasonable doubt. The essential elements of interference with custody are that Weidt: (1) having no privilege to do so; (2) failed or refused to return a minor to the person entitled to have custody. Sherard had custody of the girl while Weidt had limited visitation rights. Despite the restrictions of her visitations with their daughter, Sherard elected to drop her off so she could visit with Weidt for two hours. When Sherard returned, Weidt and the girl were gone. Sherard located Weidt's van at her home but did not go onto the property because he believed, incorrectly as it turned out, that he could not enter onto it. Nevertheless, Sherard attempted to contact Weidt by phone but never received an answer. Sherard informed law enforcement, which maintained a lookout for Weidt. Several days later, Weidt called Sherard and told him that he was never going to see his child again. For 17 days, Weidt kept the girl with her. A deputy testified that when Weidt was arrested, her van was parked around the back of a friend's house out of view from the street. This is sufficient evi-denee to support Weidt's conviction.

3. Ineffective Assistance of Counsel

[T22] In order to prevail on a claim of ineffective assistance of counsel, a dual showing that the counsel's performance was deficient and that the deficient performance prejudiced the defense must be made. Dike v. State, 990 P.2d 1012, 1027 (Wyo.1999), cert. denied, 529 U.S. 1078, 120 S.Ct. 1697, 146 L.Ed.2d 502 (2000).

Our standard of review with respect to this issue counsels that the paramount determination is whether, in light of all the pertinent circumstances, trial counsel's acts or omissions were outside the range of professionally competent assistance. We indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. An appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient and that prejudice resulted. We also inquire as to whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Chapman v. State, 2001 WY 25, ¶ 6, 18 P.3d 1164, ¶ 6 (Wyo.2001); Pearson v. State, 12 P.3d 686, 691-92 (Wyo.2000).

Schmidt v. State, 2001 WY 73, ¶ 32, 29 P.3d 76, 86 (Wyo.2001).

[123] Weidt claims that her trial counsel made a series of errors and omissions that constituted a deficient performance and individually and/or collectively resulted in prejudice to her defense. Weidt lists four alleged errors by her trial counsel: (1) failure to use an affirmative defense asserted in pretrial motions; (2) failure to elicit impeachment of Sherard by pursuing admission of the custody order; (8) failure to prevent Sherard from testifying about the contents of the judge's orders and injecting judicial opinion on the evidence in violation of Sheeley, 991 P.2d 136; and (4) failure to move for a judgment of acquittal in light of the variance between the Information and the jury instruction.

[T24] In a pretrial motion requesting appointment of a guardian ad litem, defense counsel intimated that he would assert the affirmative defense of "necessity" pursuant to Wyo. Stat. Ann. § 6-2-204(c)(i) ("It is an affirmative defense to a prosecution under this section that ... [tlhe action was necessary to preserve the child from an immediate danger to his welfare[.]"). The affirmative defense was not overtly pursued at trial. The defense instead focused on whether or not the State proved Weidt had failed or refused to return the minor child to the person entitled to custody. Weidt contends that competent defense counsel would have pursued the affirmative defense. She points out that there was testimony in support of the defense. Specifically, the owner of the house where Sherard left the girl testified that she was left there despite the fact that Weidt was not present at the time. Weidt also argues that there were other witnesses who could have testified in support of the defense, but they were not interviewed nor called by counsel.

[125] Weidt fails to identify these potential witnesses or offer details on their proposed testimony. Absent those specifics, Weidt's argument is not persuasive. Shipman v. State, 2001 WY 11, ¶ 12, 17 P.3d 34, ¶ 12 (Wyo.2001). Furthermore, it is reasonably arguable that defense counsel's failure to pursue the affirmative defense was a tactical decision. Clearly, defense counsel was alerted to the possibility of the defense since it was he who initially raised its potential application prior to trial. The evidence produced at trial, however, suggests that any argument in support of the defense would have been difficult to maintain. Sherard testified that Weidt appeared at the door with the girl before he left. Importantly, the girl also testified that her mother was at the house. In order to press the defense as suggested by Weidt, defense counsel would have had to challenge the credibility of a nine-year-old child. In the face of that proposition, we cannot say that the decision by defense counsel not to pursue the defense was evidence of a deficient performance.

[126] The next two claims of deficient performance alleged by Weidt-failure to impeach Sherard through admission of the custody order and invoking the court as a "virtual witness" through Sherard's testimony-have largely been addressed above. Defense counsel successfully impeached Sher-ard on the question of whether or not there was a court order prohibiting him entry onto Weidt's land. Once the State stipulated that there was no order, the district court denied admission of the custody order because of its potential to confuse the jury. It is not clear what else defense counsel could have accomplished on this point. Continued argument by counsel over the admissibility of the custody order after he had succeeded in his goal of impeaching Sherard and in the face of the district court's clear and unequivocal decision denying admission would have been futile, perhaps even detrimental. Defense counsel's performance in this instance was not deficient. We also rejected Weidt's claim of error based upon an alleged violation of our decision in Sheeley, and for the reasons we noted above, this claim will not support a claim of ineffective assistance either.

[127] In her final claim of deficient performance by her trial counsel, Weidt contends that her counsel should have moved for a judgment of acquittal in light of the variance between the Information and the jury instruction. As the State points out, however, "alerting the prosecutor to such facts could have meant an additional four years in prison for Appellant." The trial court noted during sentencing that he would have instructed the jury on subsection (d) had its absence from the jury instruction been brought to his attention. Even if one assumes that defense counsel's failure to move for a judgment of acquittal constituted a deficient performance, Weidt has failed to show that it prejudiced her defense. While we are not convinced that the failure to move for a judgment of acquittal under these circumstances constituted a deficient performance, the failure by Weidt to show any prejudice to her defense is fatal to her claim for ineffective assistance of counsel.

CONCLUSION

[128] Finding no error on any of the claims put forth by Weidt, her conviction is hereby affirmed.

VOIGT, Justice, filed a specially concurring opinion.

VOIGT, Justice,

specially concurring.

[129] I agree with the result and reasoning of the majority opinion. I write separately only to contrast this situation with that in Black v. State, 2002 WY 72, 46 P.3d 298 (Wyo.2002), where I dissented. In Black, the dissent maintained that the jury could not convict the appellant of aiding and abetting the principal crimes unless it made a factual determination that aiding and abetting had actually occurred. Because the jury instructions in that case did not make clear to the jury that such a determination had to be made, the appellant was prejudiced. Here, to the contrary, to convict of the lesser felony, the jury did not need to make a factual determination on the additional element to allow enhancement of the penalty under Wyo. Stat. Ann. § 6-2-204(d) (LexisNexis 2001), so the failure to so instruct the jury did not prejudice the appellant. If anyone was prejudiced, it was the State, and it was the State's fault for not offering an instruction covering Wyo. Stat. Ann. § 6-2-204(d).

      . At trial, the parties expressed confusion over the correct date.

      . After Sherard testified, the State stipulated there was, in fact, no such order.

      . The actual instruction contained the name of the child here.

      . There is no contention by Weidt that the alleged variance at issue here could leave her open to double jeopardy and, under the circumstances of this case, we cannot perceive any poss1b1hty of such a situation arising here.

      . To the extent Weidt argues that there was insufficient evidence to support a finding under subsection (d), we note that she was not convicted under that subsection, so whether or not there was sufficient evidence on that point is irrelevant.


author: VOIGT, Justice.

text:
    2002 WY 75
    Dan Eugene INGALLS, Petitioner, v. The STATE of Wyoming, Respondent.
    No. 01-70.
    Supreme Court of Wyoming.
    May 20, 2002.

      Sky D. Phifer, Lander, Wyoming, Representing Petitioner.

      Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Senior Assistant Attorney General, Cheyenne, Wyoming, Representing Respondent.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[T1] On April 4, 1999, the petitioner, Dan Ingalls (Ingalls), was involved in an altercation with Gerald Huelle when he tried to remove his cattle from Huelle's feed grounds. For his role in the fracas, Ingalls was eventually convicted in the Fremont County Court (now cireuit court) of three misdemeanors-property destruction, reckless endangering, and removal of property without the lienholder's consent. The convictions were affirmed upon appeal to the district court. On May 1, 2001, we granted Ingalls' Petition for Writ of Review. Finding error in the proceedings leading to the convictions, we reverse.

ISSUES

[T2] The issues before this Court are:

1. Whether the cireuit court complied with W.R.Cr.P. 11 in accepting Ingalls pleas?

2. Whether ex parte communications occurred between the State and the circuit court that deprived Ingalls of due process?

FACTS

[T3] Ingalls was charged by citation with several misdemeanors. The unverified reports of the Fremont County Sheriff's office were filed along with the citations, but copies were not given to Ingalls. At arraignment, Ingalls entered not guilty pleas to all charges and informed the cireuit court that he would retain private counsel. His release order included the condition that an attorney enter an appearance on his behalf within ten working days.

[T4] Ingalls failed timely to have an attorney enter an appearance, so the circuit court entered an Order to Show Cause why he should not be held in contempt. At the hearing on the show cause order, Ingalls requested appointment of counsel, and the cireait court appointed a public defender to represent Ingalls. Ingalls also requested that he be supplied with a copy of the sheriffs office reports. The cireuit court orally ordered the State to provide copies to Ingalls within three working days. A month later, Ingalls filed a pro se Motion to Dismiss because he had not been provided with the sheriff's office reports. The record does not reflect that the circuit court ever ruled on the motion to dismiss. Despite repeated requests to the cireuit court and the prosecuting attorney, Ingalls did not get a copy of the sheriffs office reports until three months after the charges were brought.

[T5] The cireuit court held a scheduling conference on September 27, 1999, at which time the trial was set for November 8, 1999. The next day, Ingalls filed a Motion for Disqualification of Judge, which was later heard and denied. The trial was then reset for January 27, 2000. On that date, rather than holding a trial, the circuit judge held a conference in his chambers. The circuit judge and county attorney were present in person, while Ingalls and his attorney appeared by telephone. No verbatim recording was made of this telephone conference. A plea bargain was discussed whereby the State would amend certain charges and In-galls would change his plea to certain charges. There was also discussion to the effect that Ingalls would change his pleas if he received no jail time. The cireuit court would not "guarantee" no jail time, but agreed to order a Presentence Investigation Report, and, according to Ingalls, agreed to follow its recommendations. The Presen-tence Investigation Report was completed on February 18, 2000, and recommended that Ingalls receive unsupervised probation.

[16] Sentencing was held on March 14, 2000. Ingalls was sentenced to 180 days in jail for reckless endangering, and 180 days in jail for property destruction, with the sentences to run concurrently, and with all but thirty days suspended. He was also fined $100.00 for removal of property without the lienholder's consent, and was assessed court costs and a victim's compensation surcharge.

[17] Ingalls filed an appeal to the district court on March 16, 2000. Because no record was made of the proceedings held in chambers on January 27, 2000, the circuit court received submissions from Ingalls and the State to attempt to settle the record pursuant to W.R.A.P. 3.03. The cireuit court accepted the State's submission and entered an Order Settling Record on September 7, 2000. That version of the record indicated that, during the telephone conference in chambers, Ingalls pled no contest to reckless endangering and guilty to both property destruction and removal of property without lienholder's consent. In affirming the convictions, the district court declined to substitute its judgment for that of the cireuit court as to which version of the facts was correct, and concluded that Ingalls had failed to show violation of any substantial right.

DISCUSSION

W.R.Cr.P. 11

[T8] This Court adopted the Wyoming Rules of Criminal Procedure in 1968. The rules were revised and re-adopted in 1991. The purpose of the rules is set forth in W.R.Cr.P. 2:

These rules are intended to provide for the just determination of every erim-inal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.

{[§9] Consonant with these purposes, W.R.Cr.P. 3 and 3.1 provide that misdemeanors may be charged by citation rather than by indictment or information. Likewise, subsections (b) and (c) of W.R.Cr.P. 11 allow for less formal advisements at arraignment where a defendant charged only with a misdemeanor is represented by counsel. Nevertheless, the Wyoming Rules of Criminal Procedure contemplate certain formalities in the plea process. For instance, whether charged by indictment, information, or citation, and whether charged with a felony or misdemeanor, each defendant must be arraigned pursuant to W.R.Cr.P. 10:

Arraignments shall be conducted in open court and shall consist of reading the indictment, information or citation to the defendant or stating to the defendant the substance of the charge and calling on the defendant to plead thereto. The defendant shall be given a copy of the indictment, information or citation before being called upon to plead.

[T10] It is in the acceptance of guilty and nolo contendere pleas that the judge is most strictly required to follow the dictates of the Wyoming Rules of Criminal Procedure, in general, and W.R.Cr.P. 11, in particular. Several subsections of W.R.Cr.P. 11 bear directly on the issues at hand:

(b) Advice to Defendant.-Exeept for forfeitures on citations (Rule 3.1) and pleas entered under Rule 43(c)(2), before accepting a plea of guilty or nolo conten-dere to a felony or to a misdemeanor when the defendant is not represented by counsel, the court must address the defendant personally in open court and, unless the defendant has been previously advised by the court on the record and in the presence of counsel, inform the defendant of, and determine that the defendant understands, the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law and other sanctions which could attend a conviction including, when applicable, the general nature of any mandatory assessments (such as the surcharge for the Crime Victim Compensation Account), discretionary assessments (costs, attorney fees, restitution, etc.) and, in controlled substance offenses, the potential loss of entitlement to federal benefits....
* * *
(2) The defendant has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will be appointed to represent the defendant;
(8) The defendant has the right to plead not guilty or to persist in that plea if it has already been made, the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross-examine adverse witnesses, the right to court process to obtain the testimony of other witnesses, and the right against compelled self-incrimination;
(4) If a plea of guilty or nolo conten-dere is accepted by the court there will not be a further trial of any kind, so that by pleading guilty or nolo contendere the defendant waives the right to a trial; and
(5) If the court intends to question the defendant under oath, on the record, and in the presence of counsel, about the offense to which the defendant has pleaded guilty, that the defendant's answers may later be used against the defendant in a prosecution for perjury or false statement.
(c) Waiver of advisements.-A misdemeanor defendant represented by counsel may waive the advisements required in subdivision (b).
(d) Insuring that plea is voluntary.The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo con-tendere results from prior discussions between the attorney for the state and the defendant or the defendant's attorney.
(£) Determining accuracy of plea.Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.
(g) Record of proceedings.-A verba tim record of the proceedings at which the defendant enters a plea shall be made and, if there is a plea of guilty or nolo contendere, the record shall include, without limitation, the court's advice to the defendant, the inquiry into the vol-untariness of the plea including any plea agreement, and the inquiry into the accuracy of a guilty plea.
(h) Harmless error-Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.

[T11] W.R.Cr.P. 11 is supposed to act as a guideline for the courts in determining that a plea by a defendant is intelligent, knowing, and voluntary, and that the plea has been entered with an understanding of the consequences. Bird v. State, 901 P.2d 1123, 1128 (Wyo.1995), cert. denied, 531 U.S. 907, 121 S.Ct. 253, 148 L.Ed.2d 183 (2000); Smallwood v. State, 748 P.2d 1141, 1143 (Wyo.1988). Strict compliance with the rule is required to ensure due process of law; failure to comply is unconstitutional and requires reversal. Hoggatt v. State, 606 P.2d 718, 725 (Wyo.1980). The attorneys for the state and for the defendant have a duty to make sure that the court does not omit necessary inquiries. Sanchez v. State, 592 P.2d 1130, 1136 (Wyo.1979) (quoting State v. Darling, 109 Ariz. 148, 506 P.2d 1042, 1047 (1973)). Further, resort to the extended record should not be required; the record made at the time a guilty plea is entered should satisfy the rule's requirements. Id. (quoting Darling, 506 P.2d at 1047).

[T12] Before we address the particular W.R.Cr.P. 11 deficiencies that mandate reversal of Ingalls' convictions, we will first describe the procedural messiness that characterizes this entire case and which contributes to the decision to reverse. We noted at the outset of this opinion that Ingalls was charged with several misdemeanors. The record on appeal, however, contains only one citation, that being for reckless endangering. The State's appellate brief begins by referencing that one citation. Ingalls' appellate brief, on the other hand, suggests that the original charges were reckless endangering, property destruction, and three counts of battery.

[113] This confusion, or perhaps just lack of clarity, persists throughout the record. Several documents carry five cireuit court docket numbers, no doubt reflecting the five original charges. The Order for Presentence Investigation has only one docket number and indicates that Ingalls pled guilty only to property destruction. The Presentence Investigation Report itself shows a guilty plea to property destruction, "no plea agreement provided," and "no disposition" as to reckless endangering and the three battery counts. The Judgment and Sentence, to the contrary, is headed with three docket numbers and reflects pleas of guilty to property destruction and removal of property without the Hienholder's consent, and a plea of nolo con-tendere to reckless endangering. There are no amended charging documents in the ree-ord, and there is no indication that Ingalls was ever arraigned on amended charges. Capping off this untidiness is the fact that the Judgment and Sentence states that In-galls pled guilty to property destruction in violation of Wyo. Stat. Ann. § 6-2-301(a) and (b)(i) (1977 as amended) and that he pled nolo contendere to reckless endangering in violation of Wyo. Stat. Ann. § 6-2-501(a) and (b)) (1977 as amended). Property destruction is actually found at Wyo. Stat. Ann. § 6-3-201 (LexisNexis 2001) and reckless endangering is found at Wyo. Stat. Ann. § 6-2-504 (LexisNexis 2001).

[114] This imprecision carried over into the taking of Ingalls' pleas, and it is that imprecision that requires reversal of the Judgment and Sentence. Ingalls contends that at no time did he even enter pleas; rather, there was simply a discussion of a proposed plea agreement. While this issue seemingly was resolved against Ingalls when the circuit court adopted the State's W.R.A.P. 3.03 submittal, that submittal says only that Ingalls "offered" pleas to the three charges as amended. There is no indication that such pleas, if offered, were accepted by the cireuit court, or that, in accepting the pleas, the circuit court performed any of the tasks mandated by W.R.Cr.P. 11. The lack of a verbatim record, which itself is a violation of W.R.Cr.P. 11(g), prevents us from knowing whether the cireuit court read or described the charges to Ingalls, whether the cireuit court advised Ingalls as to his rights and as to the consequences of his pleas, whether the cireuit court determined the vol-untariness of the pleas, or whether the circuit court determined the accuracy of the pleas. Furthermore, there is no indication in the record that, pursuant to W.R.Cr.P. 11(c), Ingalls waived the necessary advisements.

Ex PartE COMMUNICATIONS

[115] When an information is filed, the court decides whether there is probable cause to issue a summons 'or warrant by reading the verified information or an accompanying affidavit. W.R.Cr.P. 4, The effect of a citation, on the other hand, is to allow a defendant to be charged, and to promise to appear in court, without the necessity of court involvement at this preliminary charging stage of the proceedings. W.R.Cr.P. 3.1. In the case of an information, the judge issuing the warrant or summons gains knowledge of the facts alleged in the information or affidavit. In the case of a citation, the judge does not gain such knowledge.

[T 16] -In the instant case, when the investigating officer filed the citations with the circuit court, he also filed the unverified sheriff's office reports concerning the case. The State has conceded that such reports are filed with all citations in Riverton's circuit court. For reasons unexplained in the record, Ingalls had some difficulty in obtaining copies of those reports from the State. He now contends that the filing of the sheriff's office reports constituted an ex porte communication between the State and the circuit court, and his inability to obtain a copy of the sheriff's office reports violated due process.

[117] Because these claims pfesent questions of law, de movo review is required. If the district court's decision is in accordance with law, it is affirmed; if not, it is corrected. Garver v. Garver, 981 P.2d 471, 472 (Wyo.1999). In support of his complaint that an ex parte communication occurred, Ingalls cites to Moore v. Moore, 809 P.2d 261 (Wyo.1991) and Coletti v. State, 769 P.2d 361 (Wyo.1989), claiming that this Court "has made it quite clear that submitting a report by a Sheriffs Deputy to the Court, unbeknownst to the defendant, constitutes improper ex parte communication." Moore and Coletti are distinguishable from this case. Unlike Coletti, Ingalls knew about the sheriffs office reports. Further, the sheriffs office reports in the instant case were not submitted to influence the circuit court for sentencing purposes as was the letter in Coletti. Coletti, 769 P.2d at 362. In Moore, the trial court discussed a custody decision with the child's guardian ad litem prior to ruling on the custody issue. Moore, 809 P.2d at 264. Nothing like that occurred here.

[118] In both Moore and Coletti, the challenged communications were made directly to the trial judge rather than, as here, being filed as an addendum to the charging documents that initiated the case. Thus, the judge in both Moore and Coletti was directly involved in the ex parte communications. Even then, this Court did not find reversible error in either case. In Moore, we stated:

Furthermore, a claim of error relating to ex parte contact is susceptible to waiver, as is true of most claims of error. The trial judge certainly made known to the parties the fact of the ex parte contact. The appellant did not object at that time. The appellant did not seek to explore the tenor of the ex parte contact. Instead, the parties accepted what the court said as being a full disclosure of the event. It was only after the articulation of an adverse ruling that the appellant became concerned about the matter of ex parte contact. That matter should have been raised and explored at the trial.

Moore, 809 P.2d at 264.

[T19] The same is true in the instant case. If filing the sheriffs office reports constituted an improper ex parte communication, Ingalls should have made that objection in the cireuit court. Instead, In-galls' counsel actually relied on the sheriff's office reports during argument at sentencing. Ingalls waived any objections to the filing of the sheriffs office reports.

[120] Ingalls further alleges prejudice because he was not given a copy of the sheriff's office reports until he was appointed an attorney in late July, in violation of due process. He relies in particular on W.R.Cr.P. 5(b), which requires, in pertinent part, that the "defendant shall be given a copy of the information or citation and any supporting affidavits before being called upon to plead." As we noted above, supporting affidavits are filed with informations, but not with citations. The investigative reports that may exist in both situations are not part of the charging documents and need not be provided to a defendant prior to entry of an initial plea. To hold otherwise would jeopardize the purposes of the rules set forth above.

[121] Ingalls also argues that his early requests for copies of the sheriffs office reports were denied. We consider this to be a discovery issue. As noted above, Ingalls did receive copies of the sheriffs office reports prior to sentencing and he did not pursue this issue at the sentencing hearing. We perceive nothing in the record suggesting prejudice to Ingalls by any delay in discovery. Since this case is being reversed and remanded on Ingalls first issue, any remaining discovery issues should be addressed in the cireuit court. We decline to address the underlying issue of whether such reports ever should be placed in the court file along with the citation. This question was not adequately briefed.

CONCLUSION

[122] We are mindful that W.R.Cr.P. 11(b) recognizes harmless error where variances from the rule's mandates have not been shown to have affected a defendant's substantial rights. Before we will consider harmless error, however, there must have been a reasonable modicum of required formality in the plea proceedings. In the instant case, even if we conclude, as did the district court, that Ingalls uttered the magic words, "I plead guilty" over the telephone on January 27, 2000, we simply cannot conclude that Ingalls pled guilty with the knowledge and voluntariness that is to be ensured by compliance with W.R.Cr.P. 11. As we have previously stated, "[alny error in accepting a guilty plea under W.R.Cr.P. 15 [now W.R.Cr.P. 11] must be harmless beyond a reasonable doubt because such an error implicates a denial of constitutional rights." Stice v. State, 799 P.2d 1204, 1208 (Wyo.1990). We continue also to adhere to the additional holding of Stice as to the reasons strict compliance with W.R.Cr.P. 11 is necessary:

Those purposes are to assist the judge in making the constitutionally required determination that a defendant's plea is truly voluntary, to produce a complete record at the time the plea was entered of the factors relevant to this voluntariness determination, and to enable more expeditious disposition of the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas.

Stice, 799 P.2d at 1209.

[123] We conclude that the cireuit court's failure to follow W.R.Cr.P. 11 in accepting Ingalls' pleas requires that the Judgment and Sentence in this case be reversed. We further hold that W.R.Cr.P. 5(b) does not require delivery of law enforcement investigative reports to a defendant before entry of a plea. In the instant case, Ingalls has not shown that he was prejudiced by the allegedly delayed production of copies of such reports to his attorney. The case is remanded to the district court for the purpose of further remand to the cireuit court for proceedings pursuant to Ingalls pleas to the original charges or other resolution of this matter.

      . The details of those charges and their eventual dispositions will be discussed later herein.

      . Long after the January 27, 2000, telephone conference, the pleas were still being characterized in the record as future events. Even as late as the March 14, 2000, sentencing hearing, counsel indicated that, pursuant to the plea agreement, Ingalls "will" plead guilty to the amended charges.

      . Why Ingalls simply did not copy them from the court file is not explained in the record.

      . Many defendants appear in court on citations long before any law enforcement reports become available even to the prosecutor, no less the defendant. We would impose unmanageable delays, particularly in the circuit courts, were we to disallow entry of a plea prior to completion and full discovery of those reports.