author: GOLDEN, Justice.

text:
    2003 WY 12
    Jason Christopher HART, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-22.
    Supreme Court of Wyoming.
    Jan. 28, 2003.

      Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Assistant Appellate Counsel, Representing Appellant. Argument by Ms. Kerin.
    Hoke MacMillan, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jay Jerde, Senior Assistant Attorney General, Representing Appellee. Argument by Mr. Jerde.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE and VOIGT, JJ.

       Chief Justice at time of oral argument.

   GOLDEN, Justice.

[¶ 1] A Sheridan County jury found appellant Jason Hart (Hart) guilty of aggravated assault and battery for threatening to use a drawn deadly weapon on his former father in-law. After reviewing the record, we find sufficient evidence to support the conviction and also conclude the prosecutor did not commit reversible misconduct in closing argument. In addition, we find no reversible error as a result of the actions of Hart’s former attorney, who “switched sides” and was employed by the prosecuting attorney’s office at the time of trial. However, as detailed below, in future cases involving an attorney who switches sides, a prosecuting attorney’s office must do much more than was done in this ease to establish, on the record, that the attorney in question was properly screened from the prosecution of the former client.

[¶ 2] We affirm.

ISSUES

[¶ 3] Hart and the State present these issues:

I. Was the evidence sufficient to convict appellant of aggravated assault?
II. Did the prosecution violate Wyoming Rule of Professional Conduct 1.9 by not disqualifying its office from the prosecution of appellant, and by allowing appellant’s pi'ior attorney to be present and participate in appellant’s prosecution?
III. Did the prosecutor commit prosecu-torial misconduct in closing argument?

FACTS

[¶ 4] Hart and Natalie Moline divorced in January of 1996. After their divorce, they maintained an “on-again/off-again” relationship. In February of 1998, a son was born of their union. Sometime in late January of 2000, Ms. Moline informed Hart that their relationship was over. According to Ms. Mo-line, Hart became very upset as a result. The situation reached a head on January 29, 2000.

[¶ 5] During the late afternoon of that day, Hart called Ms. Moline several times. Scared by the phone calls, Ms. Moline left her home and drove to her parents’ home. After speaking with her parents and being assured that her son was safely in the care of Hart’s parents, Ms. Moline decided to return to her home. As she left her parents’ home, she observed Hart approaching in his pickup truck. Ms. Moline ran back inside her parents’ house and called 911. In the meantime, Hart parked his vehicle across the street from the Moline home and exited his vehicle.

[¶ 6] As Hart walked toward the Moline home, Ms. Moline observed Hart tuck a handgun into the back waistband of his pants. Informed that Hart was approaching with a gun, Richard Moline, Ms. Moline’s father, went to the front door of the home to lock and secure the door. Hart opened the outer screen door and demanded to be let in. He told Mr. Moline: “Dick, you better let me in.” Mr. Moline responded by telling Hart to go home and either cool off or settle down. Hart then pulled the gun out of the back of his pants and showed it to Mr. Moline by holding it straight up in the air, pointing toward the sky, directly in front of a window. Hart then beat on the Molines’ front door. When it became apparent he would not gain entry, Hart left. As he walked to his pickup truck, Hart stopped and shot four rounds into Ms. Moline’s pickup truck. He then drove off.

[¶ 7] Hart was apprehended within minutes of the incident and arrested. He was later charged with aggravated assault under Wyo. Stat. Ann. § 6 — 2—502(a)(iii). A two-day jury trial resulted in a guilty verdict, and this timely appeal followed.

DISCUSSION

A. Sufficiency of the Evidence

[¶ 8] Hart contends the State presented insufficient evidence to establish, beyond a reasonable' doubt, that he threatened to use a drawn deadly weapon. Our standard for reviewing such a claim is well established.

When reviewing a sufficiency of the evidence claim in a criminal case, we must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. Jennings v. State, 806 P.2d 1299, 1302 (Wyo.1991) (quoting Munson v. State, 770 P.2d 1093, 1095 (Wyo.1989)). We do not consider conflicting evidence presented by the unsuccessful party, and afford every favorable inference which may be reasonably and fairly drawn from the successful party’s evidence. Bloomquist v. State, 914 P.2d 812, 824 (Wyo.1996). We have consistently held that it is the jury’s responsibility to resolve conflicts in the evidence. Id. (citing Wetherelt v. State, 864 P.2d 449, 452 (Wyo.1993)). “We will not substitute our
judgment for that of the jury, ... our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did.” Id. (citing Hodges v. State, 904 P.2d 334, 339 (Wyo.1995)).

Williams v. State, 986 P.2d 855, 857 (Wyo.1999).

[¶ 9] Hart was convicted of violating Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis 2001), which provides in pertinent part:

(a) A person is guilty of aggravated assault and battery if he:
(iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another[.]

In interpreting this statutory language, this Court has held

that the phrase “threatens to use” in § 6-2-502(a)(iii) ... requires proof of an actual threat of physical injury during the act of employing a deadly weapon. [Thus, it] was error for the trial judge to insinuate in his answer to the question that factual circumstances would govern in determining if the (mere) presence of a weapon in hand could constitute a threat to use. It cannot. Proof of a required ingredient of an element of a criminal offense to be proved beyond a reasonable doubt cannot be aided by such an inference, presumption or insinuation of the kind contained in the trial court’s reply.

Johnston v. State, 747 P.2d 1132, 1134 (Wyo.1987).

[¶ 10] Applying these principles to this ease, we find adequate evidence to sustain Hart’s conviction. Viewed in a light most favorable to the State, the facts show that Hart went to the front door of the Molines’ home and told Mr. Moline, “you better let me in.” To reinforce this demand, Hart held up his handgun for Mr. Moline to see. Clearly, this is more than mere presence of a weapon in Hart’s hand. Instead, given Hart’s demands and his display of a deadly weapon to the man resisting the demands, we are satisfied that a jury could rationally conclude that Hart made an actual threat to use a drawn deadly weapon on Mr. Moline. We thus conclude there was sufficient evidence to support the conviction.

B. Prosecutorial Misconduct

[¶ 11] Hart next contends that the prosecutor committed misconduct in closing argument. Hart points to two remarks, one from the prosecutor’s closing argument, the other from the prosecutor’s rebuttal closing. In his brief, Hart quotes the first challenged remark:

This whole thing about the Defendant intending to kill himself has been a false issue that’s just been kind of floating around out there throughout. What the Defendant’s actions were all about weren’t about suicide. * ⅜ ⅞ ⅜
But the bottom line is it doesn’t really matter what his intention was, whether he was intending at that time to kill himself. What matters is that he committed an aggravated assault.

[¶ 12] Appellant contends the prosecutor’s remark was a gross misstatement of the law because intent does matter, even if the crime is a general intent crime. See Cox v. State, 829 P.2d 1183, 1185-86 (Wyo.1992) (holding that Wyo. Stat. Ann. § 6-2-502(a)(iii) defines a general intent crime); accord Streitmatter v. State, 981 P.2d 921, 923-24 (Wyo.1999). However, when viewed in context, we find no error in this remark. Instead, we find the prosecutor was imploring the jury to focus on Hart’s intent with respect to his actions at the Molines’ front door, not Hart’s purported intent to commit suicide. Indeed, defense counsel, in opening statement, importuned that Hart’s intent when leaving his home, with three firearms, was to commit suicide. In addition, one of the arresting officers testified that Hart stated he intended to kill himself. Thus, because Hart’s suicidal ideation was a factual issue before the jury, the prosecutor was free to direct the jury’s focus with respect to those facts. We find no error in the prosecutor’s remarks that Hart’s suicidal ideation was not the issue. Such an argument was well within the permissible scope of a prosecutor’s argument, as set out in Trujillo v. State, 2002 WY 51, ¶ 5, 44 P.3d 22, ¶ 5 (Wyo.2002).

[¶ 13] The second challenged remark came as the prosecutor finished his rebuttal argument. There, the prosecutor stated:

I trust that you’ll follow your oath and return a finding of guilty against the Defendant.

[¶ 14] Recently, in Wilks v. State, 2002 WY 100, ¶ 28, 49 P.3d 975, ¶ 28 (Wyo.2002), we addressed Wilks’ challenge to the following comment from the prosecutor: “Do your duty, please, and find the Defendant guilty of First Degree Murder.” There, we wrote:

“Generally, an exhortation to the jury to ‘do the right thing,’ to ‘do your job,’ or to ‘do your duty’ is error if it ‘implies that, in order to do so, it can only reach a certain verdict, regardless of its duty to weigh the evidence and follow the court’s instructions on the law.’ ” Jackson v. State, 791 So.2d 979, 1029 (Ala.Crim.App.2000), cert, denied, 532 U.S. 934, 121 S.Ct. 1387, 149 L.Ed.2d 311 (2001) (quoting Arthur v. State, 575 So.2d 1165, 1185 (Ala.Crim.App.1990)). Such a statement may also run afoul of the admonition against injecting issues broader than the guilt or innocence of the accused. See [I A.B.A.] Standards for Criminal Justice 3-5.8(d) [2d ed.1980].

Wilks, ¶ 28.

[¶ 15] Applying those principles to this case, we find no error. Clearly, the prosecutor did not expressly tell the jury that, in order to perform its duty, it must return a guilty verdict. In addition, after a careful review of the prosecutor’s entire closing statement, we find the prosecutor did not make such an implication, either. Instead, the comment in question followed the prosecutor’s exhortation to the jury that it should review all of the evidence in reaching its decision. Thus, while we will continue to review these sorts of comments with a careful and, where appropriate, jaundiced eye, we find no error in this or any similar comment made by the prosecutor.

C. Conflict of Interest

[¶ 16] Here, Hart claims the county attorney’s continued representation of the State after Hart’s original attorney “switched sides” violates the Rules of Professional Conduct and necessitates a new trial wherein the county attorney’s office would be disqualified from prosecuting Hart. The facts relevant to this claim are these. On February 2, 2000, the attorney in question, Ms. Bennett, while employed as a public defender, was appointed to represent Hart in this matter. Ms. Bennett represented Hart at arraignment, where Hart pled not guilty, and for some time thereafter. The record does not include any order allowing Ms. Bennett to withdraw from this case. However, the record does reveal that substitute counsel entered an appearance, at the latest, on June 20, 2000.

[¶ 17] Clearly, due to her representation of Haif in the very same case, Ms. Bennett was disqualified from involvement in the state’s prosecution of Hart. State v. Cline, 122 R.I. 297, 405 A.2d 1192, 1207 (1979) (“There is no doubt that an attorney who has represented a defendant may not serve as his prosecutor.”). See also, Rules of Professional Conduct for Attorneys at Law 1.11(c)(1). It is also clear from the record that Ms. Bennett did not appear in court on behalf of the State in the prosecution against Hart. Thus, the question is whether the entire prosecutor’s office was disqualified from prosecuting Hart because one of its associates, Ms. Bennett, had previously represented Hart in the same matter.

[¶ 18] We recently addressed a similar claim in Blumhagen v. State, 11 P.3d 889 (Wyo.2000). There we wrote:

Blumhagen contends that the district attorney’s office’s continued representation of the state after his original attorney “switched sides” violated the Rules of Professional Conduct for Attorneys at Law. In general, the rules of professional conduct prohibit attorneys from representing clients when there is a potential conflict of interest. See, e.g., Rules of Professional Conduct for Attorneys at Law 1.7, 1.9, 1.10,1.11,1.12. Nevertheless, the rules recognize that attorneys change employment and, consequently, include a number of safeguards to protect the clients’ interests under such circumstances. For example, when an attorney who works for a governmental agency leaves his employment and enters private practice or takes a position with another governmental agency, he cannot be involved in a matter that he participated in with his first employer. Rules of Professional Conduct for Attorneys at Law 1.11 & cmt. [4]. Other attorneys associated with the disqualified attorney’s new employer may, however, undertake or continue representation in a matter that the transferring attorney, is prohibited from being involved with, provided that “the disqualified lawyer is screened from any participation in the matter” and notice is given to the former employer. Rules of Professional Conduct for Attorneys at Law 1.11(a). The evidence in this ease shows that the district attorney’s office complied with the requirements of Rule 1.11(a) by screening Blumhagen’s former attorney from participation in the matter and giving notice to the public defender’s office. Additionally, Blumhagen has not shown that his defense was prejudiced, or even affected, by the attorney’s change of employment.

Id. at 896-97.

[¶ 19] Even more recently, in Johnson v. State, 2003 WY 9, 61 P.3d 1234, we addressed another case where an attorney had switched sides. We wrote:

As the first step in providing guidance to trial courts in handling such a question, we will adopt the standard that a trial court has substantial latitude in deciding if counsel must be disqualified. See United States v. Frega, 179 F.3d 793, 799 (9th Cir.1999) (citing United States v. Stites, 56 F.3d 1020, 1024 (9th Cir.1995)). We decline to adopt an “appearance of impropriety” standard and adopt instead a “function approach,” which focuses on preserving confidentiality and avoiding positions adverse to the client. See State v. Dimaplas, 267 Kan. 65, 978 P.2d 891, 893-94 (1999). We are persuaded that much more needs to be done in future cases where such a conflict as that identified above arises, but we will set down no bright-line rules. Utilizing the standards adopted above, we hold that Johnson was not substantially prejudiced by the Natro-na County district attorney’s handling of adding Brown [Johnson’s former attorney] to his staff, however ill-considered it might appear on the surface. We are satisfied that Brown’s testimony was frank and direct and that his personal efforts to ensure that no prejudice would result to his former client outbalance any lack of attention to this vital issue. From the case, Matter of RB., 583 N.W.2d 839, 841-42 (S.D.1998), we have distilled the following additional guidelines, which must be followed in future cases:
1. Oral and written directions must be given to all staff members that the attorney will not participate in any matter in which the attorney participated as a public defender or criminal defense attorney. A written screening policy must be put in place to ensure this requirement is met.
2. A letter should be directed to every former client of the attorney announcing the new employment relationship. This letter may be sent to the client, care of the client’s current attorney. Ideally, this letter should appear in the court record of an affected criminal case.
3. The prosecuting attorney’s screening policy should be sent to every judge in the district, circuit, and/or county affected.
4. A copy of the screening policy should be placed in every active case file in which the attorney participated.
5. All office employees should be advised both orally and in writing that any violation of the screening process must be reported immediately and that inattention to the screening policy will result in discipline.
6. In a prominent location near case files, post a list of all cases from which the attorney is to be screened.

These, or comparable procedures, should remain in place until the need for them has passed.

In addition, prosecuting attorneys should be familiar, or as necessary become familiar, with applicable ABA standards relating to the prosecution function, as well as with pertinent case law, as may be required by circumstances such as those which arose here. Ignorance of the law is no less a defense for a prosecuting attorney than it is for a criminal defendant.

Id., ¶¶ 19, 20, 21.

[¶ 20] Despite filing his brief following publication of our decision in Blumhagen, Hart suggests that this Court should adopt a rule of per se disqualification, ie., that the prosecuting attorney’s office should be disqualified in every case involving an attorney who switches sides. However, it is implicit from Blumhagen, as well as the later Johnson case, that this Court has eschewed such an approach. Thus, this Court will continue to follow the majority of jurisdictions that reject the per se rule of disqualification, and we will continue to look at each case on its facts. Johnson, ¶ 19; State v. McKibben, 239 Kan. 574, 722 P.2d 518, 526 (1986) (“We choose to follow the majority of jurisdictions and reject the per se rule of disqualification.”); Young v. State, 297 Md. 286, 465 A.2d 1149, 1152-54 (1983); Wayne R. La-Fave et al., Criminal Procedure § 22.5(d), at 357-58 (2nd ed.1999); see also Rules of Professional Conduct for Attorneys at Law 1.11 cmt. 8 (“Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated.”).

[If 21] Turning to the facts in this case, unlike Blumhagen and Johnson, there is no evidence in the record that the county attorney’s office employed screening procedures. Hart contends this Court should presume that Ms. Bennett communicated confidential information to members of the county attorney’s office. Before getting to that question, Hart is correct that it is irrebutt-ably presumed that, during the course of Ms. Bennett’s representation of Hart in this matter, Hart shared confidential information with Ms. Bennett. In Carlson v. Langdon, 751 P.2d 344, 348-49 (Wyo.1988), this Court, in interpreting Rule 1.9 of the Rules of Professional Conduct, wrote:

In its ruling, the trial court further indicated that disqualification was not required because, even if it assumed the existence of the attorney-client relationship, there was nothing to show that any confidential information had been communicated. Rule 1.9, W.R.P.C., and the eases out of which it evolved, do not require any showing of disclosure of confidential information. The correct interpretation is that the communication of confidential information is presumed once a showing is made that the matter in which an attorney formerly provided representation is substantially related to matters in the pending action.
The majority rule is that the presumption of disclosure is not rebuttable when the interests of the previous client are adverse to a client whom the attorney now is representing.* * * * We adopt the rule of ir-rebuttable presumption* * *.

[¶ 22] While this irrebuttable presumption is part of the reason that Ms. Bennett is not permitted to participate in prosecuting Hart, the more difficult question is whether there should also be a second stage presumption, i.e., a presumption that Ms. Bennett communicated confidential information to other members of the county attorney’s office. See id. at 348. In Carlson, this Court wrote, “while that is not this case, we would not adopt a second-stage irrebuttable presumption in cases involving imputed knowledge.” Id. at 349. While it could be argued that, by implication, Carlson establishes a second stage presumption, i.e., that Ms. Bennett is presumed to have shared confidential information with members of the county attorney’s office, it must be remembered that Carlson generally dealt with civil matters involving private attorneys.

[¶ 23] “There is, of course, quite a difference in the relationship between law partners and associates in private law firms and lawyers representing the government.” United States v. Caggiano, 660 F.2d 184, 190 (6th Cir.1981). In reversing a decision disqualifying an entire United States Attorney’s Office, the Sixth Circuit Court of Appeals reasoned:

The relationships among lawyers within a government agency are different from those among partners and associates of a law firm. The salaried government employee does not have the financial interest in the success of departmental representation that is inherent in private practice. The important difference in the adversary posture of the government lawyer is recognized by Canon 7: the duty of the public prosecutor to seek justice, not merely to convict, and the duty of all government lawyers to seek just results rather than the result desired by a client. The channeling of advocacy toward a just result as opposed to vindication of a particular claim lessens the temptation to circumvent the disciplinary rules through the action of associates.

Id. at 191 (quoting Formal Opinion 342, 62 A.B.A.J. 517 (1976) of ABA Committee on Professional Ethics). Based on this reasoning, and taking into account Ms. Bennett’s continuing duty to preserve client confidences, we see no reason, in this particular case, to employ a rule that presumes that Ms. Bennett shared confidential information with the prosecuting attorney’s office. See also, Rules of Professional Conduct for Attorneys at Law 1.9 cmt. 7 (“Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented.”).

[¶24] In addition to Ms. Bennett’s duty to preserve client confidences, other pragmatic reasons support this decision under these particular facts. Hart’s trial counsel replaced Ms. Bennett and later appeared at the change of plea hearing where it was apparent that Ms. Bennett was employed by the county attorney’s office. Obviously, defense counsel was aware that Ms. Bennett had switched sides. If defense counsel believed there was any impropriety in the switching of sides, we believe counsel would have lodged an objection. Counsel, in his discretion, did not do so. Thus, we conclude that defense counsel did not believe there was any impropriety in Ms. Bennett’s actions. Under these limited circumstances, we find no error. However, in the future, as discussed above, the prosecuting attorney’s office must make a showing, on the record, that the attorney who switched sides was screened from the prosecution of the former client.

[¶ 25] We find no legal error in the proceedings and therefore affirm.

      . Although not mentioned by Hart, the prosecutor, at the end of his opening statement, also made a similar remark: "And in accordance with the instructions that [the district court judge] will give you at the end of the trial, well call upon you to do your duty under the law and return a finding of guilty against the Defendant.”

      . Although Ms. Bennett was present at a change of plea hearing involving Hart, her presence there does not suggest that she was participating in the prosecution of Hart. Whether she attended the hearing as a spectator or was simply waiting for her turn on some other matter, Ms. Bennett did not, at that hearing, participate in the prose-dition of Hart. Instead, taking advantage of knowledge Ms. Bennett had gained from having been on "both sides of the fence," the district court drew Ms. Bennett into the proceeding by asking for her assistance in locating some extradition forms.


source: Caselaw Access Project

author: LEHMAN, Justice.

license: Public Domain

text:
    2003 WY 14
    Joseph MAY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-40.
    Supreme Court of Wyoming.
    Jan. 30, 2003.

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

       Chief Justice at time of oral argument.

   LEHMAN, Justice.

[¶ 1] May appeals his convictions for aggravated assault and battery with a deadly weapon and aggravated burglary arising from his entry into the home of his wife’s parents and his stabbing of two people. May claims that his aggravated burglary conviction cannot stand as the jury was instructed in the alternative and there was insufficient evidence to support one of the alternatives. May further asserts that his Sixth Amendment right to counsel was violated.

[¶ 2] We reverse in part and affirm in part.

ISSUES

[¶ 3] May states the issues as follows:

I. Whether there was insufficient evidence to support appellant’s aggravated burglary conviction.
II. Whether appellant’s state and federal constitutional rights not to be placed twice in jeopardy for the same offense were violated when the district court allowed the prosecution to use two charges appellant was acquitted of as evidence that appellant had committed the crime of aggravated burglary.
III. Whether the trial court erred in refusing to appoint different standby counsel for appellant, resulting in a violation of appellant’s Sixth Amendment right to counsel.
IV. Whether appellant’s right to effective assistance of counsel during a critical stage in the proceeding was violated because of a conflict of interest.
V. Whether the district court abused its discretion in failing to ensure appellant’s access to adequate legal materials.

FACTS

[¶ 4] May and his wife, Shannon, separated around December of 1997. After the separation, May was living and working in Colorado while Shannon and the couple’s son were living in Casper with Shannon’s parents, the Chadwicks. At the end of April 1998, May traveled to Casper for work-related reasons. While in Casper, May saw Shannon only briefly but did have a visitation with the couple’s son.

[¶ 5] May spent the evening of May 6 and early morning hours of May 7,1998, out with friends visiting a couple bars. At the conclusion of his activities, May drove to the Chad-wicks’ home just east of Casper. When May arrived at the Chadwicks’ home at approximately 3:30 a.m., he entered the home and made his way to Shannon’s room. He entered the room and approached the bed where Shannon was sleeping.

[¶ 6] Shortly after May entered the room, David Buss was awakened from his sleep in the bed next to Shannon by pain in his shoulder. When Buss felt blood under his arm, he asked Shannon to turn on the light. With the light on, Buss saw May beside the bed holding a Swiss army knife in his hand. Buss said, ‘You stabbed me.” May replied, “I didn’t stab you.” Buss said, ‘You stabbed me under the arm.” May then approached Buss, stabbed him in the chest and said, “There, now I stabbed you.”

[¶ 7] Buss jumped up from the bed, made his way to the door and tried to open it. May came after him, and Buss and May struggled. Buss yelled for Shannon’s father, Mr. Chadwick. Awakened by the sound of yelling, Chadwick ran into his daughter’s room. He reached for May and was cut under the left arm. Chadwick grabbed May’s arm, twisted it behind him and held him up against the wall. Chadwick told Shannon to call the police, which she did. In the meantime, May struggled loose from Chadwick’s hold and escaped through the balcony door. He leaped off the balcony onto the lawn and ran off into the darkness.

[¶ 8] Later that morning, a deputy sheriff patrolling the east side of Casper apprehended May when he noticed a vehicle matching the description of May’s car. When arrested, May’s clothes were stained with blood, and a red Swiss army knife was found in his pocket. May was charged with three counts of aggravated assault and battery and one count of aggravated burglary. Counsel was appointed on May 11, 1998. May had concerns about his appointed counsel and requested to proceed pro se. A hearing was held on the motion on January 21. Following the hearing, the court entered an order allowing May to proceed pro se and ordering appointed counsel to act as standby counsel.

[¶ 9] On February 16, May filed motions requesting greater access to the law library in order to prepare his defense and requesting appointment of alternate standby counsel. A hearing was held on the motions, at which time the court denied the motion for substitute counsel and denied, without prejudice, the motion concerning library access. In March, May filed additional motions in which he claimed he was being denied access to the law library. Following a hearing, the court denied the motions, and the case proceeded to trial on April 12, 1999.

[¶ 10] On April 14, the jury returned a verdict finding May guilty of one count of aggravated assault and battery for stabbing Buss and not guilty of the remaining two counts of aggravated assault and battery. The jury was not able to reach a unanimous verdict as to the charge of aggravated burglary, and the court declared a mistrial on that charge. A second trial began on May 17, 1999. This time the jury found May guilty of aggravated burglary. May was sentenced to a term of imprisonment in the Wyoming State Penitentiary of eleven to fifteen years on the aggravated burglary charge to run consecutively with a sentence of six to ten years on the aggravated assault and battery conviction. May timely appealed on August 13,1999.

DISCUSSION

Sufficiency of the Evidence

[¶ 11] In reviewing May’s sufficiency of the evidence claim, we utilize our usual standard:

When reviewing a sufficiency of the evidence claim in a criminal case, we must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. Jennings v. State, 806 P.2d 1299, 1302 (Wyo.1991) (quoting Munson v. State, 770 P.2d 1093, 1095 (Wyo.1989)). We do not consider conflicting evidence presented by the unsuccessful party, and afford every favorable inference which may be reasonably and fairly drawn from the successful party’s evidence. Bloomquist v. State, 914 P.2d 812, 824 (Wyo.1996). We have consistently held that it is the jury’s responsibility to resolve conflicts in the evidence. Id. (citing Wetherelt v. State, 864 P.2d 449, 452 (Wyo.1993)). “We will not substitute our judgment for that of the jury, ... our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did.” Id. (citing Hodges v. State, 904 P.2d 334, 339 (Wyo.1995)).

Williams v. State, 986 P.2d 855, 857 (Wyo.1999).

[¶ 12] May was convicted of aggravated burglary under Wyo. Stat. Ann. § 6-3-301 (LexisNexis 2001). In his first claim of error, May contends that his conviction under the statute cannot stand because it is not clear on what ground the jury based its verdict of guilty to the charge of aggravated burglary. Specifically, May asserts that to the extent the State did not specify which it was relying on, either the intent to commit larceny or the intent to commit a felony, the State is required to provide sufficient evidence of both. As can be seen by our recent decision, Tanner v. State, 2002 WY 170, 57 P.3d 1242 (Wyo.2002), we agree.

[¶ 13] Much like the appellant in Tanner, May cites Bush v. State, 908 P.2d 963 (Wyo.1995) to support his argument. In Bush, we said a “verdict must be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Id. at 966 (citations omitted). Finding insufficient evidence to support one of the grounds with which the State had charged Bush, we reversed his conviction. Id. at 968.

[¶ 14] In Bush, a jury convicted the defendant of burglary and felony accessory. Neither the information, the jury instruction defining the elements of burglary, nor the general verdict form specified the underlying crime (larceny or a felony) supporting the burglary charge. Instead, the information and jury instruction generically stated that the defendant entered the building without authority “with intent to commit larceny or a felony therein.” The court said:

Count I of the Information, Jury Instruction No. 10, and the general verdict form all fail to particularize the underlying crime that supports the burglary conviction. It is impossible to tell whether the jury relied on the crime of felony accessory or the crime of larceny when it convicted Bush of burglary. Therefore, the burglary conviction will stand, only if evidence in the record proves that Bush entered [the] apartment with the intent to commit both a felony and the crime of larceny. Price v. State, 807 P.2d 909, 912 (Wyo.1991).

Bush, 908 P.2d at 967. Stating these principles in a slightly different manner, “if a jury is instructed in the alternative, and if that jury returns a general verdict of guilty, then upon appellate review of the sufficiency of the evidence to support the conviction, the record must support each alternative beyond a reasonable doubt.” Tanner, ¶ 15.

[¶ 15] Just as it did in Tanner, the State argues the record shows that the State was proceeding on one theory, so there is no violation of the principles established in Bush. In this case, the State’s “one theory” is that May entered the residence with the intent to commit aggravated assault on one of the persons in the residence. May’s appellate brief appears to concede that the State’s ease was based on aggravated assault as the underlying felony to prove burglary. However, when resolving this issue, we review the information, the jury instructions, and the form of the jury’s verdict, not the argument of the parties. Tanner, ¶ 14.

[¶ 16] In this case, the Amended Information charged that:

Joseph May late of the County aforesaid, on or about the 7th day of May, 1998, in the County of Natrona, in the State of Wyoming, did unlawfully and without authority, enter or remain in a building, occupied structure, or separately secured or occupied portion thereof with intent to commit larceny or a felony therein and was in the course of committing the crime of burglary armed with or used a deadly weapon, or did knowingly or recklessly inflict bodily injury on any one, or did attempt to inflict bodily injury on any one in violation of W.S. § 6-3-301(a)(e) contrary to the form of the statute in such ease made and provided, and against the peace and dignity of the State of Wyoming.

Just as we saw in Tanner, the Amended Information was phrased in the entire language of the statute itself. The information contains no indication of the circumstances related to the particular charge.

[¶ 17] Recently, in our supervisory role, we pointed out a recurring problem in prosecutions for felony interference where the defendant was being charged with the entire language of the statute with no differentiation between the two versions of the offense. Regarding this problem, we said: “By failing to specify, either through charging documents or the jury instructions, the State was faced with the more difficult task of proving both crimes at trial. As a further result, now, on appeal, the conviction must be sustained on both theories.” King v. State, 2002 WY 27, ¶ 24, 40 P.3d 700, ¶ 24 (Wyo.2002) (citing Bush v. State, 908 P.2d at 966). This statement applies with equal force when a person is charged with the entire language of the burglary statute as was May.

[¶ 18] As indicated above, we also look to the jury instructions to determine whether the State specified the crime on which it is relying. A thorough review of the jury instructions in this case convinces us that the jury was, in fact, instructed in the alternative with no particularization of the underlying intent to support the burglary conviction. Instruction No. 4 informed the jury of the charges against May and recited exactly the language of the Amended Information. Instruction No. 5 reads in relevant part:

You are instructed that the elements of the crime of Aggravated Burglary, as charged in this case, are:

1. On or about the 7th day of May, 1998
2. In Natrona County, Wyoming
3. The Defendant, Joseph May
4. While in the course of committing the crime of burglary
5. Was armed with or became armed with or used a deadly weapon or knowingly or recklessly inflicted or attempted to inflict bodily injury on another person.

The form of Instruction No. 5 requires that the jury then be instructed as to what constitutes the crime of burglary. To this end, Instruction No. 7 states: “You are instructed that ‘Burglary’ means the act of entering or remaining in a building, occupied structure or vehicle or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein.” (emphasis added). As was the case in Tanner, such instructions do not specify the underlying intent upon which the State is proceeding. Instruction No. 7 is an accurate definition of burglary, but the instruction does nothing to indicate the circumstances of this particular case. The jury must, at some point, still be instructed as to the underlying intent to support the burglary charge or sufficient evidence of both must be presented.

[¶ 19] The jury returned a guilty verdict on the aggravated burglary charge, so clearly it found all the elements listed in Instruction No. 6. The fifth element of Instruction No. 5 does give us pause, and we must determine whether a jury finding of the fifth element of Instruction No. 5 was equivalent to a finding of the underlying felony of aggravated assault and battery. In this case, we would say no. A person could enter a home armed with a deadly weapon but still only have the intent to commit larceny not aggravated assault. Although Buss and Chadwick were in fact injured, because the fifth element of Instruction No. 5 used alternatives, we do not know on what grounds the jury based its finding of the existence of this element. It may simply have been that he was armed with a deadly weapon, which is not equivalent to aggravated assault.

[¶ 20] The State points to two instructions to support its contention that the jury was only instructed on intent to commit a felony therein. Instruction No. 9 states: “You are instructed that in the State of Wyoming, the crime of Aggravated Assault and Battery is a felony crime.” Instruction No. 16 reads:

You are instructed that the elements of the crime of Burglary as a lesser offense of the crime of Aggravated Burglary charged in this case, are:

1. On or about the 7th day of May, 1998
2. In Natrona County, Wyoming
3. The Defendant, Joseph May
4. Without authority
6.Entered or remained in a building, occupied structure, or vehicle or separately secured or occupied portion of a building, occupied structure or vehicle.[]
6. With intent to commit the felony of Aggravated Assault and Battery.

(Emphasis added.) Instruction No. 9 merely informs the jury that aggravated assault and battery is a felony, it does nothing to particularize the theory of intent the State is relying on in this specific instance. Instruction No. 16 is more helpful to the State’s argument, but the argument still fails. Such an argument could possibly be persuasive if the jury had convicted May of the lesser included offense of burglary, but it did not. Instead, May was convicted of aggravated burglarg for which the instruction used alternate theories of intent.

[¶ 21] We also consider Instruction No. 18, the instruction on self-induced intoxication. This instruction once again muddied the waters by stating in relevant part, “if the defendant was intoxicated to such a degree that he was unable to formulate the intention to commit larceny or a felony at the time he entered the building or occupied structure without authority” and “whether the defendant possessed the mental ability to form the intention to commit the larceny or felony at the time he entered the building.” Once again, the jury was exposed to either theory. Although not an elements instruction, this instruction certainly gives the impression that either larceny or a felony can be used as the underlying intent for the burglary conviction.

[¶ 22] Charging the defendant and instructing as it did, the State gave the jury license to decide either way. “Submitting claims to the jury which have no foundation in the evidence allows the jury to engage in conjecture or to speculate as to the defendant’s guilt.” Fife v. State, 676 P.2d 565, 569 (Wyo.1984). With only the general verdict form guiding us, we cannot say on which grounds the jury found. It is possible that the jury based its verdict on the charges properly in the case, but we cannot conclusively presume it did. We do not know that the jury found its verdict on the State’s “one theory” or that the jury considered the lesser-included instruction as a clarification to the other burglary instruction. What we do know is that the verdict form read:

We the jury, duly empaneled and sworn to try the above entitled cause, do find as follows:
1. As to the charge of Aggravated Burglary in the Amended Information, we find the Defendant, Joseph May ...

(Emphasis added.) The amended information used the entire language of the statute itself. Just as in Bush and Tanner, due to the general verdict, we are left to speculate on which ground the jury found May guilty of burglary. Of course, as we stated in Fife v. State, 676 P.2d at 568, “If both theories of intent submitted to the jury were sufficiently supported by the evidence, we could uphold the general verdict on the aggravated burglary charge.”

[¶ 23] We, therefore, now turn to the record to see whether both intent to commit a larceny and intent to commit a felony were supported by sufficient evidence. The evidence showed that May went to the Chadwick home armed with a Swiss army knife, entered without authority, broke into the room where he knew Shannon was likely to be, and stabbed her companion in the chest. The evidence also showed that a few days before these events, May saw Shannon with Buss and reacted angrily to her being with him. In addition, the evidence showed that two days before he broke into the Chadwick home, May appeared on the doorstep of Shannon’s friend iii an agitated and angry state and inquired as to the whereabouts of Shannon and Buss. Testimony also showed that sometime in the early morning hours of May 7, May called a friend and asked if he had a gun, saying that he was going to go kill Shannon, and her parents if they got in the way. Viewing this evidence in the light most favorable to the State, we find it sufficient to support a jury’s finding of guilty on the aggravated burglary charge based on the intent to commit the felony of aggravated assault and battery.

[¶ 24] Sufficient evidence that May entered with the intent to commit larceny is not reflected in the record. The majority of the State’s witnesses testified only about the incident itself and circumstances that would indicate May’s intent to harm someone in the house. No evidence was presented that anything was taken from the Chadwick home. Testimony did establish that May’s entry into the house was unauthorized and that he did have knowledge of the house. However, in Wyoming, no automatic inference of intent to steal arises with unauthorized entry by a person with knowledge of the contents of the building. Bush, 908 P.2d at 967. One of the State’s witnesses did testify that May had little money and had pawned some items to pay for necessities. May himself testified that money was tight for him. However, this evidence cannot be considered sufficient evidence, of the intent to commit larceny.

[¶ 25] Because there was insufficient evidence of the intent to commit larceny, we cannot uphold the general jury verdict. As discussed in Tanner, the appropriate remedy for such errors is for us to direct the district court to enter a judgment of acquittal on the burglary charge because jeopardy attaches when a conviction is overturned due to the insufficiency of • evidence. Tanner at ¶ 17 (citing Longstreth v. State, 890 P.2d 551, 553 (Wyo.1995) and Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978)). We, therefore, must reverse May’s conviction for aggravated burglary.

[¶ 26] It is with the same frustration we expressed in Tanner that we reverse May’s conviction. Tanner at ¶ 18. The error occurring in this case is easily avoidable, beginning with better charging documents. W.R.Cr.P 3(b)(2) states, “The information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” (emphasis added). We recognize that when originally charging a person with a crime, the exact facts and circumstances surrounding the crime may not be known. But we also recognize that the rule allows the information to be amended. W.R.Cr.P. 3(e). Surely closer to trial when all the discovery and investigation is complete the State has a better idea of what it will be alleging and could amend the information to reflect such a charge.

[¶ 27] Following that, instructions to the jury need to be carefully crafted. For instance, the instructions for burglary and aggravated burglary appear in this case to be taken from the Wyoming Criminal Pattern Jury Instructions. The error could be avoided by simply following the use note that states: “Use appropriate bracketed language in element....” W.Cr.P.J.I. 33.01C and 33.01A. The introduction to the pattern instructions states that some of the instructions contain language in brackets, which signifies that the language in adjoining sets of brackets is meant to be used in the alternative. The instruction should only include the appropriate language that fits the circumstances of the crime charged and the evidence introduced not include every phrase within the brackets.

[¶ 28] We are not suggesting that the State must only charge one single theory. We are, however, saying that if the State is going to present two alternatives and instruct in the alternative, the State is required to provide sufficient evidence of both or utilize a special interrogatory verdict form requiring the jury to indicate which alternative formed the basis for its finding of guilt. Our holdings in Bush, Tanner, and now this case, should make it clear more precise charging and jury instructions are required. Because we believe it accurately reflects the state of our law and properly advises practitioners, we would once again direct attention to Professor Theodore Lauer’s explanation in his article, Burglary in Wyoming, XXXII Land & Water L.Rev. 721, 780-81 (1997) wherein he states:

It is very important that only those alternative bracketed terms in the foregoing instruction which are supported by the evidence in the case be included in the instruction given to the jury. In too many instances, the elements instruction given to the jury simply restates the content of the information, setting forth, for example, that the defendant “entered or remained in a building, occupied structure or vehicle or separately secured or occupied portion thereof,” and “with intent to commit larceny or a felony therein.” Such instructions are inadequate, and should lead to reversal of convictions. The instruction must conform to the crime as charged in the information, and must also conform to the evidence which has been introduced.

(Emphasis added.)

[¶ 29] May makes other arguments connected to his conviction for aggravated burglary such as: to support a conviction for aggravated burglary the charging document, jury instructions and verdict form must identify specifically the individual whom the defendant intended to injure and the conviction for aggravated burglary in the second trial must be reversed if in reaching its verdict the jury relied upon evidence of a crime for which he was acquitted in the first trial. We need not address these issues, as our decision on May’s first contention is ultimately determinative. We further decline to address May’s second issue, as our resolution of the first disposes of the aggravated burglary conviction. We will, however, address his third, fourth, and fifth issues because they relate to his conviction for aggravated assault and battery as well, which is unaffected by our previous discussion.

Appointment of Standby Counsel

[¶ 80] We review May’s claims regarding the district court’s refusal to appoint different standby counsel under an abuse of discretion standard. “While a trial court has the power in its discretion to appoint substitute counsel, its refusal to do so is not error unless an abuse of discretion is shown.” Allen v. State, 2002 WY 48, ¶ 27, 43 P.3d 551, ¶27 (Wyo.2002) (quoting Bell v. State, 994 P.2d 947, 951 (Wyo.2000)). May argues that his Sixth Amendment right to counsel was violated when the trial court refused to appoint new standby counsel to replace the attorney originally appointed to represent him.

[¶ 31] After May’s arrest in May of 1998, an attorney from the public defender’s office was appointed to represent him. On January 11, 1999, May sent a letter to the trial judge stating that he had seen appointed counsel only twice since his incarceration eight months earlier. May also stated in the letter that counsel had failed to inform him about court dates, refused to accept his phone calls, and failed to respond to his letters. May’s letter to the court was followed a few days later by a motion requesting to proceed with the trial pro se. On January 21, a hearing was held on May’s motion. Appointed counsel was not present due to an automobile accident, and another attorney from the public defender’s office appeared on May’s behalf.

[¶ 32] During the hearing, the trial court inquired into May’s understanding of the implications of representing himself and reviewed with May the charges filed against him and possible penalties. The court also discussed with May the complexities of his case and risks involved in self representation and recommended that May proceed with counsel. Despite the court’s recommendation, May stated that he wished to proceed pro se. May also asked the court to appoint standby counsel other than his appointed public defender. The court stated that standby counsel would be required and that generally the selection of counsel is not left to the defendant. The court granted May’s motion to proceed pro se but indicated that standby counsel would be the attorney already appointed to represent May. The court directed May to contact that attorney to discuss his concerns and told May that if another hearing was needed to address the issue, the court would consider it. May responded that all he could do to contact counsel was write her a letter and that she did not respond to his letters and phone calls. The attorney from the public defender’s office indicated he, too, would contact May’s attorney. Consistent with the court’s rulings at the hearing, an order was entered on January 26, 1999, granting the request to proceed pro se with standby counsel to be present to assist at trial.

[¶ 33] On February 16, 1999, May filed a motion to dismiss standby counsel and for appointment of other counsel. In support of the motion, May asserted that he and appointed counsel had been unable to establish an amenable relationship. A hearing was held on the motion on February 18, 1999, at which time May asserted that appointed counsel had hardly spoken to him since his arrest and they had not established any relationship. The court reminded May that he had asked to proceed pro se, that he was responsible for representing himself at trial, and that the only function of standby counsel would be to answer questions, assist with legal technicalities, and provide minimal guidance where needed. Finding no basis for concluding that appointed counsel would be unable to provide such guidance, the court denied May’s motion. May proceeded to trial on April 12 with appointed standby counsel present throughout all of the proceedings.

[¶ 34] Citing United States v. Anderson, 189 F.3d 1201, 1210 (10th Cir.1999), May argues that his right to counsel was violated because the trial court in this case failed to fulfill its duty to inquire into his reasons for requesting substitute counsel. The constitutional right to have counsel appointed does not include a right to demand that a particular attorney be appointed by the court. Irvin v. State, 584 P.2d 1068, 1070 (Wyo.1978). The same rule applies where a defendant asks for the substitution of a particular attorney. Id.

While a trial court has the power in its discretion to appoint substitute counsel, its refusal to do so is not error unless an abuse of discretion is shown. A factual showing of good cause for the appointment of substitute counsel is essential to the demonstration of an abuse of discretion, and good cause is to be found in incompetence, commitment to a position or an interest which would conflict with the furnishing of an effective defense to the accused, or other good reason to conclude that appointed counsel is unable to furnish effective assistance.

Id. at 1071. Trial courts are under a duty to make formal inquiry into the defendant’s reasons for dissatisfaction with present counsel when substitution of counsel is requested. Johnson v. Gibson, 169 F.3d 1239,1254 (10th Cir.1999).

[¶ 35] This case is similar to Bell v. State, 994 P.2d 947, 951 (Wyo.2000), wherein the defendant and counsel had differing opinions regarding case strategy and had difficulty communicating. Citing Morris v. Slappy, 461 U.S. 1, 13-14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), we said in Bell that the Sixth Amendment does not guarantee a meaningful relationship with appointed defense counsel. Rather, the purpose of providing assistance of counsel is to ensure that criminal defendants receive a fair trial. Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). In evaluating Sixth Amendment claims, the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer. Id.

[¶ 36] Once May asserted his right to represent himself, the court had no duty to appoint counsel for him. Van Riper v. State, 882 P.2d 230, 235 (Wyo.1994). The appointment of standby counsel is not mandatory; standby counsel is appointed to a defendant simply through the goodwill of the trial judge. Id. We have held that failure to appoint standby counsel is not an abuse of discretion. Id. We, therefore, fail to see how refusing to appoint alternate standby counsel could be an abuse of discretion.

[¶ 37] Applying these principles, we are unable to find that the trial court abused its discretion in denying May’s motions for substitute standby counsel. The issue of substitute counsel was addressed by the trial court, and by May, at two separate hearings. May was heard on the issue of his dissatisfaction with appointed counsel. After discussing the matter with May and appointed counsel, the trial court confirmed the appointment of standby counsel. In doing so, the court reminded May of his right to retain private counsel, to proceed entirely on his own, or to make use of standby counsel to assist him during the trial. Upon May’s motions for substitute counsel, the trial court concluded, based upon all the facts and circumstances before it, that appointing a different attorney to act as standby counsel was not warranted. Under these circumstances, we find no abuse of discretion in the denial of May’s motions for appointment of substitute standby counsel.

Effective Assistance of Counsel

[¶ 38] May contends that his Sixth Amendment right to counsel was violated when a public defender other than the one appointed to represent him appeared at the January 21 hearing on his motion to proceed pro se. May claims that the public defender had a conflict of interest because he worked in the public defender’s office and a former employee of that office had a relationship with one of the victims of May’s alleged offenses.

[¶ 39] At the January 21 hearing, as the court was addressing with May his decision to represent himself, May made known that he wished to have different standby counsel appointed. The court asked May to consult with appointed counsel about his concerns and also requested the public defender present at the hearing communicate with appointed counsel about May’s concerns. The public defender mentioned the potential conflict within the public defender’s office and told the court that appointed counsel was selected in order to avoid that conflict because she did not have an office in the public defender’s office. The attorney also indicated that it was his understanding that a personality conflict existed between May and appointed counsel but that he did not believe it rose to the level that appointed counsel would be unable to assist as standby counsel in this case. Beyond those comments made at the January 21 hearing, that public defender had no further involvement in May’s case. From that point forward, appointed counsel appeared as standby counsel for May. May contends that the attorney’s limited appearance and comments at the January 21 hearing violated his right to effective assistance of counsel given the potential conflict of the public defender’s office.

[¶ 40] The right to counsel is guaranteed by the Sixth Amendment to the Constitution of the United States and is applicable to the states by virtue of the Fourteenth Amendment. In addition, it is specifically articulated in article 1, § 10, of the Constitution of the State of Wyoming: “In all criminal prosecutions the accused shall have the right to defend in person and by counsel.... ” This right to counsel includes that the assistance of counsel be effective. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Shongutsie v. State, 827 P.2d 361, 364 (Wyo.1992). The right to effective counsel encompasses the correlative rights that counsel be reasonably competent and that counsel be free from conflicts of interest. Shongutsie, at 364.

[¶ 41] Co-existing with a defendant’s right to counsel is the right to waive representation by an attorney and elect to proceed pro se.

A defendant has a constitutional right to waive his right to counsel and to represent himself at criminal trial. However, to be valid, the trial judge must ensure that the waiver of counsel is “an intentional relinquishment or abandonment of a known right or privilege.” Ideally, the trial judge should conduct a thorough and comprehensive formal inquiry of the defendant on the record to demonstrate that the defendant is aware of the nature of the charges, the range of allowable punishments and possible defenses, and is fully informed of the risks of proceeding pro se.

Vim Riper v. State, 882 P.2d at 234 (citations omitted).

[¶ 42] May makes no claim of error relating to his decision to waive his right to counsel and represent himself. He does not claim, for example, that the trial court failed to properly inquire into his decision to proceed pro se or that his waiver was done without knowledge of the risks of appearing without counsel. May claims only that his right to counsel was violated when a public defender made a limited appearance on his behalf despite the potential conflict within his office.

[¶ 43] We find no violation of May’s right to effective assistance of counsel. In reaching that result, we note that once May waived his right to counsel and elected to proceed pro se, his claim of ineffective assistance is of questionable validity in the absence of a clear showing of prejudice. Additionally, once May invoked his right to self-representation, the court appointed standby counsel to assist him. The fact that the court required standby counsel to be present to assist May should not give rise to an ineffective assistance claim in the absence of a clear showing of prejudice. May has made no showing of prejudice.

[¶ 44] Finally, May raised no objection at the trial level, during the January 21 hearing, or at anytime thereafter to the appearance by the attorney from the public defender’s office. Absent such an objection, May must show that an actual conflict of interest adversely affected his lawyer’s performance for prejudice to be presumed. Sorensen v. State, 6 P.3d 667, 663 (Wyo.2000). May has made no showing of an actual conflict of interest nor has he shown any prejudice resulting from any such conflict. Under these circumstances, we find no denial of his Sixth Amendment right to counsel.

Access to Legal Materials

[¶ 45] May’s final contention is that the trial court abused its discretion in not requiring the Natrona County Detention Center to provide greater access to the law library and legal materials in order to prepare an adequate defense. Specifically, May contends that his access to the library was on a very limited basis, inmates who were not getting ready for trial were allowed more time in the library than he was, access to the library was granted at unreasonable times, and there were times when he was not allowed to use the library at all because it was being used for some other purpose. May asserts that the trial court abused its discretion by not ordering the detention center to allow him access to the library a set number of hours per week at reasonable times.

[¶ 46] When a defendant makes a decision to manage his own case, he relinquishes many of the traditional benefits associated with his right to counsel. Jennings v. State, 4 P.3d 915, 919 (Wyo.2000). In this case, over the trial court’s warnings concerning the risks of proceeding pro se and its repeated recommendation that he have legal representation, May affirmatively invoked his right to proceed pro se.

[¶ 47] Additionally, in the months leading up to the trial, two continuances were granted by the court, one at the State’s request and one on a motion by May which he filed expressly in order to gain more time to prepare his defense. Both continuances were granted after May elected to proceed pro se, giving him extra time to prepare for trial. At the time May filed his motion on February 16, the trial was scheduled to begin on February 22. By virtue of the order granting the continuance, the trial was rescheduled for April 12, giving May seven additional weeks to prepare his case.

[¶48] At the February 18 hearing on May’s motion for more access to the library, the trial court specifically invited May to repetition the court and delineate specifics concerning his denial of access claim. On March, 1, May filed a motion to dismiss for denial of due process in which he again asserted, without specifics, that he was being denied access to legal materials. That motion was followed on March 10 by another motion in which May asserted that he had only been able to do three hours of research in the preceding month. Another motion followed on March 19 in which May alleged that he was awakened at 6:40 one morning and told that he could use the library. In this last motion, May alternatively sought dismissal of the charges against him, a second continuance, or an order requiring the detention center to allow him access to the library one hour per day between the hours of 8:00 a.m. and 9:00 p.m. excluding mealtimes.

[¶ 49] A hearing was held on March 23 at which time the motions were denied on the ground that May failed to provide documentary evidence showing that he had made demand for more time in the library and that any such demands were denied. In denying the motions, the court urged May to make his demands for use of the library in writing and to utilize standby counsel to assist him in gaining access. The court also indicated that May could re-file his motions along with documentary support showing specific violations.

[¶ 50] Nothing further appears in the record concerning May’s allegations that he was denied access to legal materials. The trial began as scheduled on April 12 at which time the court asked May whether he was ready to proceed with his defense and May responded that he was. Thereafter, in the course of the two trials that followed, May made no further claim that a denial of access to legal materials hampered his ability to present his defense. Moreover, his performance during the trials demonstrated that he was adequately prepared. Under these circumstances, we find no error in the court’s rulings in this regard.

CONCLUSION

[¶ 51] In accordance with the foregoing discussion, we affirm May’s conviction for aggravated assault and battery. We reverse May’s conviction for aggravated burglary and vacate the judgment and sentence entered by the district court. We remand this matter to the district court for entry of judgment of acquittal on the aggravated burglary charge against May.

      . Wyo. Stat. Ann § 6-3-301 (LexisNexis 2001) provides in relevant part:
      (a) A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein.

      (c) Aggravated burglary is a felony punishable by ... if, in the course of committing the crime of burglary, the person:
      (i) Is or becomes armed with or uses a deadly weapon or a simulated deadly weapon;
      (ii) Knowingly or recklessly inflicts bodily injury on anyone; or
      (iii) Attempts to inflict bodily injury on anyone.

      . The issues in this appeal are strikingly similar to the issues we recently addressed in Tanner; as such our discussion in this case will mirror in many respects the discussion set forth in that decision. We would note that May’s appeal was submitted before our Tanner opinion was published.

      . We would note that this element is also being instructed in the alternative and would require sufficient evidence of each alternative. See W.Cr.P.J.I. 33.01C. However, as our discussion of the alternate theories of intent is dispositive, we decline to address whether sufficient evidence of each alternative existed.

      . See fn. 3 and W.Cr.P.J.I. 33.01A.

      . We note that Instruction No. 5 was taken from the W.Cr.PJ.I 33.01C that referenced 33.01D as a definition of burglary. But, as discussed above, at some point the jury must be instructed as to the underlying theory of intent or sufficient evidence of both must be presented. Perhaps to avoid this problem in the future, the better instruction is the second option for 33.01C that combines the elements of burglary and aggravated burglary into one instruction.


text:
    2003 WY 16
    Jerald R. BREITENSTINE, Appellant (Defendant), v. Nancy L. BREITENSTINE, Appellee (Plaintiff).
    No. 02-15.
    Supreme Court of Wyoming.
    Jan. 30, 2003.

      Andrea L. Richard of Rothgerber, Johnson & Lyons, LLP, Cheyenne, WY; and Christopher H. Hawks of Hawks & Levy, LLC, Jackson, WY, Representing Appellant. Argument by Ms. Richard.
    W. Keith Goody of Jackson, WY, Representing Appellee. Argument by Mr. Goody.

      Before HILL, C.J., and GOLDEN, LEHMAN,* KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] Jerald Breitenstine (Husband) appeals the property division ordered by the district court in conjunction with his divorce. Husband claims the district court erred in its division of the marital estate between him and Nancy Breitenstine (Wife). We find the trial court did not abuse its discretion and, therefore, affirm with modification.

ISSUES

[¶ 2] Husband presents and we consider the following three issues on appeal:

I. The trial court abused its discretion by disregarding the evidence that gifts and inheritance from Mr. Breitenstine’s parents to Mr. Breitenstine accounted for substantially all of the assets at issue, and erred by including Mr. Breitenstine’s inherited assets in the marital estate and awarding the bulk of Mr. Breitenstine’s inherited assets to Ms. Breitenstine.
II. The trial court attempted to punish Mr. Breitenstine by awarding substantially all of Mr. Breitenstine’s inherited assets to Ms. Breitenstine and in doing so, issued erroneous findings of fact that are not supported by the record.
III. The trial court attempted to punish Mr. Breitenstine by exceeding its jurisdiction and ordering territories outside the state of Wyoming to take action with respect to Mr. Breitenstine’s assets.

FACTS

[¶ 3] Husband and Wife married on June 30, 1979, in Canton, Ohio. During the course of their marriage the couple had two children. Early in the marriage, Wife attended college full time and worked. Husband worked intermittently at a landfill operated by Breitenstine Landfill, Inc. Wife’s earnings supported the family during that time. Husband’s parents initially owned all stock in Breitenstine Landfill, Inc. Husband received shares of stock in the early part of the marriage; this stock represented twenty-one percent of the outstanding stock. In 1989, Breitenstine Landfill, Inc. sold for about $30 million. The sale took place as one transaction but it involved three parts: 1) the sale of the actual land on which the landfill was situated, 2) the sale of the corporation itself, and 3) the sale of the farm adjacent to the landfill owned by Husband and his father. The sale was structured in a manner so that Husband and his father received the money from the sale of the farm, each owner received compensation for their outstanding shares of stock, and Husband’s parents received the proceeds from the sale of the landfill itself. Husband’s portion of the sale proceeds amounted to $106,550.

[¶ 4] However, as was contemplated by the parties when structuring the sale, that same year Husband received a gift from his father in the amount of $1.9 million and a gift from his mother in an identical amount. Husband placed the money from these gifts into Husband and Wife’s joint account. Both parties had access to the joint account and used the funds in the account of their own free will. The money was co-mingled with other marital property, and thereafter the couple lived off these funds or the income from investments purchased with these funds. After the receipt of these funds, in an effort to minimize taxes, Husband wanted to move offshore. The couple moved to the Bahamas in 1989. Husband’s father died in 1994, and around that time the marriage began to have trouble. In 1994, Wife went on a hunting trip with her brother to Jackson Hole, Wyoming. She liked the area and, after discussions with Husband, both decided that a home should be purchased in Wyoming. After remodeling and renovation, the home cost approximately $2.2 million, a substantial portion of which was paid for out of the joint account. Shortly after this purchase, the marriage began to further deteriorate. The parties separated for a short time but then reconciled in March of 1995.

[¶ 5] In April of 1995, Husband received another sum of money from his mother which the parties stipulated was inheritance from his father’s estate. This sum amounted to approximately $4 million. In November of 1995, Husband created the Breitenstine Family Trust (family trust) and transferred a substantial portion of the marital assets to the trust. In November of 1996, the couple separated again, and Wife filed for divorce. However, Wife dismissed the divorce at Husband’s request with the promise of marriage counseling. Nevertheless, in April of 1997 the couple separated for the final time. During the time between the creation of the family trust and the hearing for division of marital property, Husband continued to make transfers of property to the family trust.

[¶ 6] Wife filed for divorce in Wyoming, and the divorce was granted February 16, 1999. Yet, the property division matters were not heard until January 29, 2001. On August 17, 2001, the district court entered findings of fact, conclusions of law, and judgment related to the property division matters. The district court’s findings concluded in relevant part that the total marital estate was at least $8,764,673, made up almost entirely of the gifts from Husband’s parents. The judgment awarded Wife $2,000 per month in alimony and one-half of the marital estate. Husband appeals this judgment.

STANDARD OF REVIEW

[¶ 7] Decisions concerning the division of marital property are within the sound discretion of the trial court. The disposition of marital property will not be disturbed on appeal unless there was an abuse of discretion. Hall v. Hall, 2002 WY 30, ¶ 12, 40 P.3d 1228 ¶ 12 (Wyo.2002) (citing Davis v. Davis, 980 P.2d 322, 323 (Wyo. 1999)). Property divisions are complex and therefore require the trial court, in its discretion, to assess what is right under the circumstances considering the respective merits and needs of the parties. McCulloh v. Drake, 2001 WY 56, ¶ 15, 24 P.3d 1162, ¶ 15 (Wyo.2001) (citing France v. France, 902 P.2d 701, 703 (Wyo.1995); Neuman v. Neuman, 842 P.2d 575, 578 (Wyo.1992); Kennedy v. Kennedy, 456 P.2d 243, 247 (Wyo.1969)). “An abuse of discretion occurs when the property disposition shocks the conscience of this court and appears so unfair and inequitable that reasonable people cannot abide it.” Hall, at ¶ 12. In our review, we consider only the evidence of the prevailing party, granting the prevailing party every reasonable inference to be drawn from the evidence. We omit from consideration evidence presented by the unsuccessful party. Johnson v. Johnson, 11 P.3d 948, 950 (Wyo.2000) (citing Bailey v. Bailey, 954 P.2d 962, 965 (Wyo.1998); Grosskopf v. Grosskopf, 677 P.2d 814, 818 (Wyo.1984)).

DISCUSSION

Inherited Assets

[¶ 8] Husband claims the trial court erred in the division of the Breitenstine marital property. He contends that the gifts and inheritance from his parents should not have been awarded to Wife. Husband argues that in dividing the marital estate the trial court ignored a material factor deserving significant weight, i.e., the party through whom the property was acquired. Citing McCulloh v. Drake, ¶ 15, Husband further asserts “in Wyoming, property inherited or gifted to one spouse is awarded to the spouse who received it.” We disagree.

[¶ 9] The division of marital property is controlled by Wyo. Stat. Ann. § 20-2-114 (LexisNexis 2001):

In granting a divorce, the court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired and the burdens imposed upon the property for the benefit of either party and children.

A reading of the statute indicates that the party through whom the property was acquired is one of the multiple factors the trial court considers in determining the appropriate division of property. In McCulloh, we made it clear that property inherited by one party can be awarded to the party by whom it was inherited or given. McCulloh, at ¶ 15. But we did not hold that property inherited by one spouse must always be awarded to the spouse that received it. Before the McCulloh decision, we said no hard and fast rules govern property divisions. Moore v. Moore, 809 P.2d 261, 265 (Wyo.1991) (citing Dennis v. Dennis, 675 P.2d 265 (Wyo.1984); Klatt v. Klatt, 654 P.2d 733 (Wyo.1982); Paul v. Paul, 616 P.2d 707 (Wyo.1980)). We continue to adhere to that principle. We have never established bright line rules for the disposition of a gift or inheritance, and we do not do so now. Instead, we review whether the trial court considered the appropriate factors in making the disposition. The particular circumstances of the case dictate the property distribution. Bricker v. Bricker, 877 P.2d 747, 750 (Wyo.1994) (citing Biggerstaff v. Biggerstaff, 443 P.2d 524, 526 (Wyo.1968)).

[¶ 10] In its findings of fact, the trial court stated “[t]he gifts from the Defendant’s parents and the proceeds therefrom account for substantially all of the marital estate subject to division by this Court.” Clearly, this statement indicates the district court considered through whom the property was acquired. Nothing in the statute or our ease law would then require the district court to award this entire amount to Husband. The district court also has to weigh other appropriate factors.

[¶ 11] For instance, consideration must be given to the respective merits of the parties. The district court’s findings of fact, all of which are supported by the record, include consideration of this factor. The district court found that Husband was able to account for $11,092,316 of income into the marital estate and only $3,545,048.78 in disbursements. Yet, Husband claimed he was worth only $1.5 million. Because Husband offered no evidence to account for where all the assets went, the judge was free to conclude that he still had them. During the course of the marriage, the couple created a trust account for each child (children’s trusts) with a $500,000 initial deposit for each trust. Husband regularly withdrew money from the children’s trusts and converted at least a portion of the funds to his own use necessitating his removal as trustee. Husband took substantial steps to secrete his assets in protection trusts and various corporations. Husband never produced a proper accounting of these trusts and corporations. Instead, Husband left the district court to guess at their purpose and value.

[¶ 12] Furthermore, Wife gave up work and moved to the Bahamas to help Husband avoid taxes. This can be said to contribute to the value of the assets. For a time, the move to the Bahamas made home schooling necessary, and Wife took care of those duties. For tax minimization reasons, the couple returned to Ohio on only a limited basis. Wife assisted in this strategy by staying offshore away from family and friends. The couple also invested together; they used his name, her name, both names, and the kids’ names. For all intents and purposes the money was treated as marital property once it was received.

[¶ 13] The district court also considered the conditions in which the parties may be left after the divorce. As the district court recognized and the record reveals, the couple had little property that was not either inherited or gifted assets or purchased with such assets. This was due in part to the fact that immediately after the sale of the landfill both Husband and Wife stopped working and decided to live on the sale proceeds and income from investments made with the proceeds. Under the circumstances, the district court could reasonably conclude that Wife should not be left without any property. Likewise, Wife resumed teaching after the separation, but she and the children now live in a diminished lifestyle. Husband, on the other hand, is unemployed and still enjoys his considerable wealth.

[¶ 14] Additionally, Wife was awarded custody of the children. Up until the point of the property division, Husband had not paid any child or spousal support though ordered to do so. The district court was well within its discretion to contemplate Husband’s reluctance to pay alimony and child support in the past and burden the assets for the benefit of Wife and the children. We find, therefore, that the court considered and weighed all the appropriate factors.

[¶ 15] Furthermore, we disagree with Husband’s assertion that Wife received all of the marital assets. Wife was awarded one-half of the marital estate. The district court’s judgment did order assignment to Wife of all the property and assets of Husband, but read fully, such assignment was only to the extent necessary to satisfy the judgment, provide for alimony, and provide for child support. Once the judgment and orders of the court are complied with, Wife has no claim to Husband’s remaining assets. The district court’s action was to aid in collection, which is entirely appropriate given Husband’s lack of compliance up until that point. Likewise, we consider that a portion of Wife’s share of the marital estate included the property in Jackson. Based on the purchase price and renovation costs, the district court therefore deducted $2 million from the amount Husband owed Wife. However, some testimony indicated that this property was only worth $950,000. Should the $950,000 valuation turn out to be accurate, Wife will actually receive less than one-half of the estate.

[¶ 16] Considering the above-mentioned facts, nothing in the property distribution of this case shocks the conscience of the court. As such, we do not find the division to be unjust or inequitable. The district court considered the appropriate criteria and did not therefore abuse its discretion.

Intent to Punish

[¶ 17] Husband contends that the trial court attempted to punish him by awarding substantially all of his inherited assets to Wife. He claims that in order to accomplish this end, the trial court issued erroneous findings of fact that are not supported by the record. We have stated that when making a property division, the trial court in its discretion may consider the fault of the respective parties, but the division must not be done with the intent to punish one of the parties. Carlton v. Carlton, 997 P.2d 1028, 1034 (Wyo.2000). Accordingly, “[fjindings of fact not supported by the evidence, contrary to the evidence, or against the great weight of evidence cannot be sustained.” Id. (citing Jones v. Jones, 858 P.2d 289, 291 (Wyo.1993)). Generally, evidence of an intent to punish a party can be found in an unjust or inequitable property division. Beckle v. Beckle, 452 P.2d 205, 208 (Wyo.1969). As noted above, we do not find the award to be unjust or inequitable. However, because Husband asserts the district court made erroneous and unsupported findings of fact in an attempt to punish him, the issue bears further analysis.

[¶ 18] The particular finding of fact that Husband takes issue with states: “The [family] Trust was created for the sole purpose of defrauding the defendant’s creditors and potential creditors, including the plaintiff, Nancy L. Breitenstine.” In determining whether such a finding is erroneous, we begin our analysis by considering the Uniform Fraudulent Conveyance Act as expressed in Wyo. Stat. Ann. § 34-14-108. “Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors.” (emphasis added). Our case law indicates that an intent to hinder or delay creditors is enough to consider the conveyance fraudulent even if there was no actual fraud. Matter of Estate of Reed, 566 P.2d 587, 590 (Wyo.1977). The determining factor in this instance is Husband’s intent when transferring marital assets to the trust. If Husband transferred the assets to the family trust with the intent to hinder, delay, or defraud either his present or future creditors, then such a transfer is fraudulent.

[¶ 19] A fraudulent conveyance is by its very nature hard to substantiate. Considering § 34-14-108, much of the difficulty stems from the virtual impossibility of proving actual fraudulent intent. In response to the difficulty, this court and other courts have come to rely on inferences and presumptions drawn from the surrounding circumstances. We have stated: “It is not necessary to prove a fraudulent conveyance by direct evidence, circumstantial evidence being sufficient.” Reed, 566 P.2d at 591. “The only way of determining actual intent to hinder or delay creditors is by a consideration of the circumstances surrounding the transaction.” Smith, Keller & Assoc, v. Dorr & Assoc, 875 P.2d 1258, 1269 (Wyo.1994) (quoting Matter of Estate of Reed, 566 P.2d at 591). Circumstantial evidence of intent in these cases also often takes the form of certain badges of fraud. We have defined badges of fraud as “a fact tending to throw suspicion upon the questioned transaction, excites distrust as to bona fides, raises an inference that a conveyance is fraudulent and by its presence usually requires a showing of good faith.” Reed, 566 P.2d at 589.

[¶ 20] In Reed, we enumerated several “badges.of fraud” including transfers of property without consideration, hurried transaction not in the normal course of business, the conveyance occurs after notice of pending action, and the relationship between the parties to the conveyance. Id. at 590. The badges of fraud now recognized by courts have grown too numerous to completely list. However, the more common badges of fraud include: lack or inadequacy of consideration, close familial relationship or friendship among the parties, retention of possession or benefit of the property transferred, the financial condition of the transfer- or both before and after the transfer, the chronology of events surrounding the transfer, the transfer takes place during the pen-dency or threat of litigations, and hurried or secret transactions. See Walsh v. Walsh, 841 P.2d 831, 839 (Wyo.1992); Consumers United Ins. Co. v. Smith, 644 A.2d 1328 (D.C.1994); Diss v. Agri Bus. Int’l, 670 N.E.2d 97 (Ind.Ct.App.1996); Berger v. Hi-Gear Tire & Auto Supply Inc., 257 Md. 470, 263 A.2d 507 (1970); Coleman-Nichols v. Tixon Corp., 203 Mich.App. 645, 513 N.W.2d 441 (1994); Jones v. Arnold, 272 Mont. 317, 900 P.2d 917 (1995). Even though the catalog of badges of fraud is lengthy, a single badge of fraud may stamp a transaction fraudulent. Reed, 566 P.2d at 589. Because it is impossible to look into Husband’s mind to determine his actual intent, we consider the surrounding circumstances and the family trust itself.

[¶ 21] The trial court found that the family trust was an asset protection trust. A special expert was appointed by the court to review the family trust and present testimony. The special expert intimated that because the family trust was located in the Commonwealth of the Bahamas the family trust would be considered an offshore asset protection trust (OAPT). We agree. We would note that many badges of fraud can be found in the very form of the family trust. Even though OAPTs themselves are legal, we must consider the purpose for which the assets were transferred to the family trust. If the sole purpose of the transfer was to place assets beyond the reach of present or future creditors, we consider this an “intent to hinder or delay” under the fraudulent conveyance act. While there are surely some legitimate reasons for establishing OAPTs, such as estate planning or tax planning, the exclusive intent to hinder creditors is not such a legitimate reason.

[¶ 22] Considering, as the district court did, the family trust itself and the circumstances surrounding the establishment of the family trust, we see many badges of fraud. The transfer to the family trust named the children as beneficiaries. Certainly this would be a close familial relationship. Furthermore, although the family trust names the children as beneficiaries, Husband receives the benefit from the family trust. Looking at the overall scheme of the family trust, the children get no benefit because the income is accumulated and the family trust ends in 2005 at which time the assets will be returned to Husband. Husband would not even have to wait until 2005 to realize income from the trust as the family trust allows Husband himself to become a beneficiary.

[¶ 23] Further, Husband has retained the possession or benefit of the property transferred. The family trust assets are entirely within Husband’s control, which is why he is being taxed on the income to the family trust, and the family trust assets would be included in his estate should he die. Husband has named a “protector” over the trust assets who is a long-time friend of Husband’s who even Husband agreed would act in Husband’s best interests not necessarily the children’s. For all practical purposes, Husband has given the assets to himself with the benefit of a spendthrift provision.

[¶ 24] Moreover, the timing of the family trust is suspicious. Only after the first separation and the subsequent reconciliation did Husband decide to make the family trust. Clearly, Husband was on notice of threatened litigation as the couple had separated for a time before he created the family trust. Husband created the family trust in secret and then continued to transfer assets to the family trust up until the property division hearing. The district court also heard evidence of other transfers Husband made into corporations to protect his assets. Husband’s own accountant agreed such steps were taken solely for asset protection from creditors. The special expert stated that the purpose of the family trust was to protect the assets from Husband’s creditors, perhaps including Wife.

[¶ 25] The district court has discretion to weigh the evidence and the credibility of the witnesses. The district court clearly recognized the multiple badges of fraud accompanying the transfers to the family trust and determined Husband’s actual intent in making such transfers was simply to hinder, delay, or defraud Husband’s creditors including Wife. Reviewing the record as discussed above, we cannot say these findings of fact are erroneous.

Jurisdiction over the Property

[¶ 26] Lastly, Husband claims that, in an effort to punish him, the district court exceeded its jurisdiction by ordering territories outside Wyoming to take action on assets held by Husband. We have said:

We think the issue settled, at least since Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65 (1909), 23 L.R.A., N.S., 924 that the court of one state has no power to directly affect title to land located wholly within the borders of another. Decrees and judgments purporting to this effect are void, and to the extent the decree before us purports to so do it must fail. However, we consider it equally well established that a court of equity having authority to act upon the person may indirectly act upon real estate located in another state, through the instrumentality of its equity power over the person. Fall v. Eastin, supra; Rozan v. Rozan, 49 Cal.2d 322, 317 P.2d 11 (1957), reh. denied; Weesner v. Weesner, 168 Neb. 346, 95 N.W.2d 682 (1959); McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722, reh. denied (1961); 34 A.L.R.3d 962.

Kane v. Kane, 577 P.2d 172, 175-76 (Wyo.1978). One equitable function of the court is the disposition of property. When the court has jurisdiction over the parties in a divorce action, the court has the power to settle property matters even if the property is not located in the jurisdiction. Id. We distinguish between a judgment directed at the property itself and one directed against the owner of the property. Id. at 176. The district court’s judgment does appear to attempt to direct judgment on both the property itself and the owner of the property. The former cannot stand, but the later can. Id. We, therefore, recognize that the judgment can properly operate upon Husband himself with modification and direct such modification to strike the improper portions. The judgment ordered by the district court reads as follows:

3. All property and assets of the defendant, or under the control of the defendant, of whatsoever kind or description, whether real, personal, or mixed, and wheresoever situate, whether within the State of Wyoming or without the State of Wyoming, should be frozen forthwith; and the defendant and all other persons or entities, of whatsoever kind or description, and wheresoever located or resident, should be, and hereby are, ordered to take no action of whatsoever kind which might have the effect of removing any such asset from the jurisdiction of any court of any state or territory of the United States or from the jurisdiction of any of the Courts of the United States.
4. All property and assets of the defendant, of whatsoever kind or description, or under the control of the defendant, whether real, personal, or mixed, or under the control of the defendant, whether real, personal, or mixed, [sic] and wheresoever situate, whether within the State of Wyoming or without the State of Wyoming, are hereby assigned to the plaintiff as her sole and separate property, to the extent necessary to satisfy the judgment hereby awarded in favor of the defendant, provide for the alimony payments herein ordered, provide for the child support payments herein ordered, or to comply otherwise with the orders of this Court.

The above-mentioned paragraphs should be modified to read as follows:

3. The defendant should be, and hereby is, ordered to take no action of whatsoever kind which might have the effect of removing any asset under the control of the defendant from the jurisdiction of any court of any state or territory of the United States or from the jurisdiction of any of the Courts of the United States.
4. The defendant is directed to assign property within his control to the plaintiff as her sole and separate property, to the extent necessaiy to satisfy the judgment hereby awarded in favor of the plaintiff, provide for the alimony payments herein ordered, provide for the child support payments herein ordered, or to comply otherwise with the orders of this Court.

CONCLUSION

[¶ 27] Husband has not shown the district court abused its discretion in its division of marital property. Therefore, the judgment of the district court is affirmed with modification consistent with this opinion.

       Chief Justice at time of oral argument.

      . We have not previously addressed OAPTs but other courts have. Generally, OAPT’s are trusts established in a foreign jurisdiction to protect assets from creditors without requiring the set-tlor to lose control over the assets. See S.E.C. v. Brennan, 230 F.3d 65 (2nd Cir.2000); FTC v. Affordable Media, LLC, 179 F.3d 1228 (9th Cir.1999). Because it is outside the scope of this opinion to discuss the merits of OAPTs, we decline to do so. However, the characteristics of and the motives for establishing such trusts are known to us. While such trusts may have benefits in asset protection, the use of such trusts to avoid alimony, child support, and a fair division of marital property upon divorce is reprehensible to us.

      . The "protector” of an offshore asset protection trust generally oversees the trustee’s actions and can consent or veto those actions at the protector’s discretion. The protector also generally has the power to remove the trustee. See FTC v. Affordable Media, LLC, 179 F.3d 1228, 1242 (9th Cir.1999).