text:
    2002 WY 59
    Lowell Lee WORMAN and Evelyn Worman, Appellants (Plaintiffs), v. Patty CARVER, d/b/a H & R Block, and H & R Block Tax Services, Inc., Appellees (Defendants).
    No. 00-332.
    Supreme Court of Wyoming.
    April 15, 2002.

      Vance Countryman of Vance T. Countryman, P.C., Lander, WY, Representing Appellants.
    Rex 0. Arney and Timothy M. Stubson of Brown, Drew & Massey, LLP, Casper, WY, Representing Appellees.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   KITE, Justice.

[T1] Appellants Lowell Lee Worman (Lee) and Evelyn Worman (Evelyn) appeal from the district court's order granting summary judgment in favor of Appellees Patty Carver, d/b/a H & R Block, and H & R Block Tax Services, Inc. The district court ruled collateral estoppel and public policy barred the Wormans from asserting their claims. We affirm in part, reverse in part, and remand.

ISSUES

[12] The Wormans state the issues on appeal as follows:

Whether Evelyn Worman's claims are derivative or independent of Lee Wor-man's claims;
Whether the submission of a jury instruction regarding Lee Worman's good faith adjudicates Evelyn Worman's claims against Patty Carver and H & R Block;
Whether [tlhe [gleneral [plrinciples [olf [clollateral [elstoppel [alpply [in [this [clase;
Whether the submission of a jury instruction regarding Lee Worman's good faith precludes Lee Worman's claims against Patty Carver and H & R Block;
Whether Appellants are entitled to a jury decision regarding the apportionment of fault;
Whether public policy precludes the claims of the Appellants.

The appellees frame the issues as follows:

1. Whether Appellant Lee Worman is collaterally estopped from bringing his claims where they are fundamentally inconsistent with his conviction in a criminal trial in the United States District Court for the District of Wyoming for willfully signing a fraudulent tax return.
2. Whether Appellant Evelyn Worman is collaterally estopped from bringing her claims where she is in a position of privity with Lee Worman and where her claims are dependent upon the claims of her husband.
3. Whether Appellant Lee Worman's claims are barred by public policy where they arise out of his own eriminal conduct.
4. Whether Appellant Evelyn Worman is precluded from bringing her claims where those claims are based upon Lee Worman's criminal conduct.

FACTS

[13] Lee and Evelyn worked for Farmers Cooperative Association (Farmers Co-op) in Gillette. Lee was the general manager, and Evelyn was a bookkeeper. Ms. Carver operated an H & R Block tax service franchise (Gillette H & R Block) in (Gillette.

[T4] In 1982, Lee became involved in a trucking company known as Whelchel Trucking with his brother-in-law, Ernie Whelchel (Ernie). Ernie was married to Lee's sister, Dorothy Whelchel (Dorothy). The Whechels divorced in 1992. Lee and Ernie disagreed over the extent of Lee's involvement in the trucking company. Lee claimed he was a partner in Whelchel Trucking while Ernie maintained Lee simply loaned him money for the business.

[15] In any event, Whelchel Trucking filed partnership tax returns for several years, listing Ernie and Lee as partners. Gillette H & R Block prepared the Whelchel Trucking returns and the Wormans' individual returns. In 1989, Ernie instructed Ms. Carver not to prepare any more partnership tax returns for Whelchel Trucking.

[16] Whelchel Trucking leased its trucks exclusively to Farmers Co-op. In 1991, Lee began writing checks from the Farmers Coop checking account to his personal account. He wrote on the check stubs that the payments were to Whelchel Trucking, but the checks were made out to his personal account. Lee did not report these funds as income on his personal income tax returns.

[17] The United States charged Lee with four counts of willfully submitting false tax returns in violation of 26 U.S.C. § 7206(1) for the years of 1991 through 1994. Lee was tried before a jury in the federal district court in August 1998, and the jury found him guilty on all four counts. The federal district court denied Lee's motion for a judgment of acquittal notwithstanding the verdict, and Lee appealed.. The United States Court of Appeals for the Tenth Circuit affirmed Lee's conviction on April 6, 2000. United States v. Worman, No. 98-8102, 2000 WL 358384 (10th Cir. Apr.6, 2000).

[T8] The Wormans commenced the present action after Lee was convicted of filing false tax returns. They claimed Ms. Carver was negligent in preparing their tax returns and H & R Block Tax Services, Inc. was negligent in its supervision and training of Ms. Carver. In addition, they asserted claims for negligent misrepresentation, fraud, and respondeat superior. The Wor-mans maintained Lee was convicted of tax fraud because of the appellees' wrongful actions and, as a result, they incurred damages including attorneys' fees in the criminal case, loss of credibility and reputation, loss of value from a civil suit, civil tax penalties and interest, and emotional distress. Evelyn also presented a separate claim for loss of Lee's consortium while he served his prison sentence. }

[T9] The appellees filed a motion for a summary judgment, and the Wormans filed a motion for a partial summary judgment. The district court held a hearing on the motions and subsequently granted the appel-lees' summary judgment motion. In its decision letter, the district court ruled Lee was collaterally estopped from asserting his claims against the appellees. It stated in pertinent part:

The central issue in this case is whether Worman relied in good faith on the advice and work of the Defendants in preparing his 1991-1994 personal income tax returns. If he cannot establish that he relied on the Defendants['] advice and work then he cannot establish that any damages he claims were caused by the Defendants. The Federal Court jury decided, beyond a reasonable doubt, that Worman did not rely in good faith on advice or work from the Defendants. Collateral estoppel prevents him from claiming that he relied in good faith on the Defendants for those tax returns.
The Plaintiffs argue that this case raises numerous issues which were not decided in Worman's criminal trial. Other issues do exist here, but each of them is dependent on Worman's ability to show that his damages were caused by the Defendants because he relied on them.

The district court also held Evelyn was in privity with Lee and her claims were barred because they derived entirely from Lee's claims.

[110] The Wormans filed a motion for reconsideration, which the district court denied. They appealed.

STANDARD OF REVIEW

[T11l]l A summary judgment may be granted when there are no genuine issues of material fact and the prevailing party is entitled to a judgment as a matter of law. Boley v. Greenough, 2001 WY 47, ¶ 10, 22 P.3d 854, 110 (Wyo.2001); Burbank v. Wyodak Resources Development Corp., 11 P.3d 943, 946 (Wyo.2000).

We review a summary judgment in the same light as the district court, using the same materials and following the same standards. We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences that may fairly be drawn from the record. The review of a grant of summary judgment involving a question of law is de novo.

Rawlinson v. Cheyenne Board of Public Utilities, 2001 WY 6, ¶ 5, 17 P.3d 13, ¶ 5 (Wyo.2001) (citations omitted).

DISCUSSION

A. Collateral Estoppel

[112] The Wormans contend the district court erred by ruling that collateral estoppel barred their claims. In general, they argue the issue in the federal criminal case was not identical to the issue presented in the case at bar. The Wormans also insist Evelyn's claims did not derive from Lee's claims and she is not, therefore, bound by the federal criminal jury's decision.

[113] Res judicata and collateral es-toppel are related but distinct concepts which preclude the relitigation in a subsequent suit by the same parties or their privies of questions directly determined by a court of competent jurisdiction. Eklund v. PRI Environmental, Inc., 2001 WY 55, ¶ 15, 25 P.3d 511, ¶ 15 (Wyo.2001); Tenorio v. State ex rel. Wyoming Workers' Compensation Division, 931 P.2d 234, 238 (Wyo.1997). The United States Supreme Court discussed the purpose of the preclusion doctrines in Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979):

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.

[114] Res judicato bars relit-igation of previously litigated claims or causes of action, and collateral estoppel bars relitigation of previously litigated issues. Slavens v. Board of County Commissioners for Uinta County, 854 P.2d 683, 686 (Wyo.1993). Collateral estoppel may preclude the relitigation in a subsequent civil action of an issue decided in a criminal case. Seq, e.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); see also Restatement (Second) of Judgments § 85 (1982); 47 Am.Jur.2d Judgments § 738 (1995).

[115] The proper doctrine for our consideration in this case is collateral estop-pel because the matter involves issues previously litigated in Lee's criminal case. Four factors are considered in determining whether collateral estoppel applies:

(1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (8) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the pri- or proceeding.

Eklund, 2001 WY 55, ¶ 15, 25 P.3d 511.

1. Lee's Claims

[T16] The parties strongly disagree about whether the issues in this case and those in the criminal case were identical. In this case, the Wormans stated causes of action for negligence, misrepresentation, and fraud. They maintained Lee was convicted of tax fraud as a result of the appellees' wrongful actions and he incurred damages including attorneys' fees in the criminal case, loss of credibility and reputation, loss of value from a civil suit, civil tax penalties and interest, and emotional distress. In order to prevail, the Wormans had to prove Lee relied upon the appellees' advice and services in signing their 1991 through 1994 income tax returns. If Lee did not rely on the appel-lees' advice and services, the Wormans cannot establish that the appellees caused Lee's damages. Consequently, Lee's state of mind was at issue in this action.

[T17] The criminal case also addressed Lee's state of mind. The federal jury found Lee guilty on four counts of willfully submitting a false tax return. The federal court instructed the jury that, in order for it to convict Lee, the government had to prove the following elements for each of the four years at issue:

One: The defendant, Lowell Lee Wor-man, made and signed a tax return for the years 1991, 1992, 1993, and 1994 that contained false information, as to a material matter as detailed in the Indictment;
Two: The defendant knew that this information was false;
Three: The return contained a written declaration that it was being signed subject to the penalties of perjury; and
Four: In filing the false tax return, the defendant acted willl]fully.

The court also instructed the jury on the meaning of willfully: "To act willfully means to act voluntarily and deliberately and intending to violate a known legal duty. Negligent conduct is not sufficient to constitute willfulness." Another instruction informed the jury that good faith was a complete defense to the charges:

The good faith of the defendant, Lowell Lee Worman, is a complete defense to the tax charge in Counts 1, 2, 3, and 4 of the indictment because good faith is simply inconsistent with willfully filing a fraudulent or false tax return.
While the term "good faith" has no precise definition, it means, among other things, an honest belief, a lack of malice, and the intent to perform all lawful obligations. A person who acts on a belief or on an opinion honestly held is not punishable under the statute merely because that honest belief turns out to be incorrect or wrong. The tax laws subject to criminal punishment only those people who willfully filef ] a fraudulent or false tax return.

The jury determined Lee's actions were willful when it convicted him of tax fraud.

[118] In Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441 (Tex.App.1993), a Texas Court of Appeals addressed a factual situation similar to the one in this ease. Mr. Dover was convicted of making and subscribing to false tax statements under 26 U.S.C. § 7206(1) (1988), and he subsequently sued his attorneys and accountants for malpractice, claiming he was convicted because of their misconduct. 859 S.W.2d at 444-45. The trial court dismissed Mr. Dover's claims against the accountants because they were barred by the statute of limitations. 859 S.W.2d at 447. The trial court also granted summary judgment in favor of the attorneys. Id. The court held Mr. Dover was collaterally estopped from claiming he relied upon the attorneys' legal advice. 859 S.W.2d at 449.

[119] The Texas Court of Appeals affirmed the trial court's decision. It explained the jury was required to find Mr. Dover's actions were willful to convict him of tax fraud under 26 U.S.C. § 7206(1) and a finding of willfulness would be inconsistent with a claim his attorneys were negligent:

[A] critical issue decided in each of these criminal convictions was that Dover participated in the corporate transaction knowingly and willllfully, and not out of justifiable reliance on [the attorneys'] advice. Dover could not have knowingly and willllfully engaged in the underlying transactions and engaged in those transactions in good faith mistaken reliance on [the attorneys'] advice. Under the eriminal law, those findings were mutually exclusive,

859 S.W.2d at 449 (emphasis added); see also Richey v. United States Internal Revenue Service, 9 F.3d 1407 (9th Cir.1993) (holding the issue of the taxpayer's willfulness was decided in his criminal tax fraud case and could not be relitigated in a subsequent civil suit).

[120] The federal jury found Lee guilty of willfully signing a false tax return. In making that determination, it necessarily concluded Lee did not rely in good faith upon the appellees' advice and services in submit, ting the information. Consequently, the ap-pellees' conduct, whether negligent or not, could not have caused Lee to be convicted of tax fraud. The issues in the criminal case were identical to those in the civil case.

[121] The other collateral estoppel factors are also clearly satisfied as to Lee's claims. He was a party in the criminal action, and his criminal conviction was a judgment on the merits. See Eklund, 2001 WY 55, ¶ 15, 25 P.3d 511; Dover, 859 S.W.2d at 449; Richey, 9 F.3d at 1410-11. In addition, a criminal trial presents a defendant with a full and fair opportunity to litigate the issues because a criminal defendant has strong incentives to vigorously defend the charges against him. See, e.g., Kennedy, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644. At the criminal trial, Lee attempted to prove his actions were not willful and he relied in good faith upon the appellees advice. Even though he was not successful, he had a full and fair opportunity to litigate the issue.

[T22] The Wormans contend the application of collateral estoppel in this case was improper because the decision in another civil case altered the underlying facts of this matter. "It is, of course, true that changes in facts essential to a judgment will render collateral estoppel inapplicable in a subsequent action raising the same issues." Montana, 440 U.S. at 159, 99 S.Ct. 970.

[123] Prior to the criminal trial, Ernie filed a civil action against his ex-wife-Dorothy-and Lee. Whelchel v. Whelchel, Civ. Case No. 19963 (6th Jud. Dist.Wyo.1999). He also named Farmers Co-op in the suit. Id. The various parties filed numerous claims, cross-claims, and counterclaims. Ernie asserted, among other things, that Lee improperly took funds which belonged to Whelchel Trucking when he issued the Farmers Co-op checks to his personal account. The case was tried to the court, but the court did not issue its decision until after the criminal trial was held. The Whelchel court ultimately ruled generally against each of the parties.

[124] The Wormans claim the ruling in Whelchel was inconsistent with Lee's erimi-nal conviction because, in order to convict Lee of tax fraud, the federal jury had to find he converted funds from Whelchel Trucking. Otherwise, they argue, the funds he received would have been partnership distributions which were not taxable. The Tenth Cireuit Court of Appeals ruled in Lee's appeal that sufficient evidence existed for the jury to reasonably conclude Lee was not a partner in Whelchel Trucking and, consequently, the funds he took from Farmers Co-op amounted to income and were taxable. Worman, 2000 WL 358884, at *3.

[T 25] The Wormans assert that the court in Wheilchel determined Lee did not convert funds. A careful review of the decision in Whelchel, however, belies the Wormans' argument. The Whelchel court did not conclude Ernie had failed to establish Lee wrongfully took Whelchel Trucking funds. In fact, that court did not examine the individual elements of any of the asserted causes of action. Instead, it simply ruled that none of the parties met their burden of proof because the evidence was too speculative to award a judgment to any party. The relevant portion of that court's decision letter stated:

In conclusion I am going to find generally against each party on their claim against the others. The evidence before the court was so conflicting it was difficult to tell what the facts were. The lack of contracts, the lack of proper and timely accounting (by anyone), the sloppy information presented and placed in tax returns, and the misleading paper trail left the court with a dim view of the position advocated by each party. In other words, no one proved their case by a preponderance of the evidence despite what could be argued from a view of the various bottom lines. Equity and good justice, as I view it from the thorough review of this evidence requires that the parties be left where they entered.

[126] The Whelchel decision was not inconsistent with Lee's criminal conviction. The application of collateral estoppel in the case at bar was, therefore, appropriate because the underlying facts did not change.

2. Evelyn's Claims

[127] The district court also dismissed Evelyn's claims. Like Lee, Evelyn maintained the appellees' wrongful conduct caused her to suffer damages including attorneys' fees from Lee's criminal case, damage to credibility and reputation, loss of value from a potential civil case, loss of consortium because of Lee's jail sentence, and civil tax penalties and interest. The district court ruled Evelyn was in privity with Lee in the criminal case because her claims derived entirely from Lee's conviction. The district court, therefore, concluded collateral estoppel barred her claims.

[128] Collateral estoppel may be applied to one who was a party to the prior proceeding or to one who was in privity with a party. Tenorio, 931 P.2d at 238-39. Privity exists when there is a close or significant relationship between the party and the nonparty. Gambocz v. Yelencsics, 468 F.2d 837, 841 (3d Cir.1972); see also Seamon v. Bell Telephone Company of Pennsylvania, 576 F.Supp. 1458, 1461 (W.D.Pa.1983), aff'd, 740 F.2d 958 (3d Cir.1984); Restatement (Second) of Judgments § 85 emt. f (1982). When a nonparty's interests are sufficiently represented by a party, the nonparty is considered to be a privy, and the preclusive effects of res judicata and collateral estoppel will apply to bar a subsequent action by a nonparty. First Options of Chicago, Inc. v. Kaplan, 918 F.Supp. 377, 383-84 (E.D.Pa.1996); Eubanks v. Federal Deposit Insurance Corporation, 977 F.2d 166, 170 (5th Cir.1992); Restatement (Second) of Judgments § 85(2) (1982). A nonparty is adequately represented in a prior action when a party "is so closely aligned to her interests as to be her virtual representative." Eubanks, 977 F.2d at 170. Thus, when the nonparty's claims derive from the claims asserted by the party, the nonparty will be bound by the prior judgment against the party. Id.

[129] Most of Evelyn's asserted damages were actually injuries suffered by Lee; ie., attorneys' fees from Lee's criminal case, damage to reputation and credibility, and loss of value from a potential civil case. It is questionable whether Evelyn could individually assert those claims for damages. In any event, we agree with the district court that, as to those claims, Evelyn was in privity with Lee.

[180] In order to prove the damages from Lee's conviction were caused by the appellees' wrongful conduct, Evelyn had to establish that Lee relied upon the appellees' advice and services. As we stated earlier in this opinion, that issue was fully litigated in the criminal case. The jury determined Lee acted willfully and did not rely in good faith upon the appellees advice and services. Evelyn's claims derived entirely from Lee's conviction, and her interests were identical with Lee's interests in the criminal case. Evelyn is, therefore, bound by the determinations made in the criminal case.

[131] Evelyn also presented a claim for loss of Lee's consortium while he served his prison term. In Wyoming, a claim for loss of consortium is derivative of the injured party's claim. See, e.g., Massengill v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132, 1187 (Wyo.2000); Verschoor v. Mountain West Farm Bureau Mutual Insurance Company, 907 P.2d 1293, 1301 (Wyo.1995). Therefore, if the injured party's claim fails, the loss of consortium claim must also fail. Massengill, 996 P.2d at 1137, The district court correctly concluded that, because Lee's claims were barred, Evelyn could not maintain her loss-of-consortium claim.

[182] Finally, Evelyn asserted the appel-leeg' wrongful conduct caused her to incur civil tax penalties and interest. IMustration 11 of Restatement (Second) of Judgments § 85 (1982) recognizes the spouse of a person convicted of tax fraud may be independently liable for civil penalties and the criminal judgment is not preclusive against the spouse:

11. [The husband] is convicted of the crime of fraudulently understating his income tax lability. The government then brings a civil action against [the wife], [the husband's] spouse, to recover a civil penalty based upon the same tax return. The judgment in the eriminal prosecution is not preclusive against [the wife] as to issues concerning [the wife's] liability for the penalty.

[T83] The Tenth Cireuit Court of Appeals has similarly recognized that spouses are separate and distinct income taxpayers even when they file joint tax returns. Tavery v. United States, 897 F.2d 1032, 1034 (10th Cir.1990). Consequently, a tax liability determination against one spouse is not pre-elusive against the other spouse in a subsequent case. Id. " '[A] wife who files a joint return with her husband is not a party privy to her husband in [income tax] litigation. " Id. (quoting Henry M. Rodney v. Commissioner of Internal Revenue, 53 T.C. 287, 307, 1969 WL 1680 (1969)).

[134] Applying this rationale to the case at bar, we conclude, with regard to her individual liability for civil tax penalties, Evelyn was not in privity with Lee. Thus, Evelyn's claims against the appellees for wrongful conduct which resulted in civil tax penalties being assessed against her are not barred as a result of Lee's eriminal convietion.

B. Public Policy

[135] The district court also ruled public policy foreclosed the Wormans from sustaining their claims against the appellees. It relied upon Feltner v. Casey Family Program, 902 P.2d 206 (Wyo.1995), to support its ruling. In that case, Veronica and Doniv Feltner were Jason Feltner's parents. 902 P.2d at 207. All three Feltners sued the Casey Family Program after a jury convicted nineteen-year-old Jason of fourth-degree sexual assault for having sexual intercourse with a fourteen-year-old girl. 902 P.2d at 207-08. The Casey Family Program had placed the girl in the Feltners' home for foster care. Id. The Feltners alleged claims for recovery of damages resulting from Jason's conviction. 902 P.2d at 208.

[136] The district court dismissed the Feltners' claims, and this court affirmed. 902 P.2d at 207. 'We held public policy precludes a plaintiff from bringing suit to recover for injuries he sustained as a direct result of his own serious violation of the law. 902 P.2d at 208. We also affirmed the dismissal of the parents' claims which arose from their son's criminal conduct. 902 P.2d at 209. The opinion left the possibility open that independent claims may not be barred on public policy grounds. This court acknowledged the parents may have had an independent claim for breach of confidentiality which did not derive from Jason's eriminal actions. 902 P.2d at 209. Nevertheless, we declined to consider the propriety of the district court's dismissal of that claim because the Feltners did not adequately brief the issue. 902 P.2d at 210.

[187] The Feltner decision unquestionably supports the dismissal of Lee's claims. Lee's injuries were a direct result of his illegal conduct. Public policy precludes judicial relief for " 'those injured in the course of committing a serious criminal act' " 902 P.2d at 208 (quoting Barker v. Kallash, 63 N.Y.2d 19, 479 N.Y.S.2d 201, 468 N.E.2d 39, 41 (1984)). Similarly, Feltner also barred Evelyn's claims which derived from Lee's conviction. 902 P.2d at 209.

[138] Public policy does not, however, prevent Evelyn from presenting her independent claim for civil tax penalties and interest which she maintains the appellees' wrongful acts caused. Evelyn may have incurred civil tax penalties and interest even if Lee had not been convicted of the criminal act.

[139] Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

      . - Lee was also charged with two counts of aiding and assisting in the preparation of a false tax return as prohibited by 26 U.S.C. § 7206(2), but the United States dismissed those counts.


source: Caselaw Access Project

author: VOIGT, Justice. GOLDEN, J.,

license: Public Domain

text:
    2002 WY 62
    Judy B. LOGUE, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
    No. 01-127.
    Supreme Court of Wyoming.
    April 16, 2002.

      Donald L. Painter, Casper, WY, Representing Appellant. °
    Hoke MacMillan, Attorney General; John W. Renneisen, Deputy Attorney General; Gerald L. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[11] The Office of Administrative Hearings (OAH) awarded Judy B. Logue (the appellant) worker's compensation benefits for a neck injury, but denied benefits for a lower back injury. Following a contested case hearing, the hearing examiner found that the appellant failed timely to report and file her claim for the alleged back injury. This created a presumption that the benefits for the back injury would be denied unless the appellant could establish by clear and convine-ing evidence that neither her employer nor the Wyoming Workers' Safety and Compensation Division (the Division) was prejudiced by the late filing. The appellant presented no evidence to rebut the presumption, and the hearing examiner denied benefits for the back injury. We affirm.

ISSUES

[12] The appellant states the issue as:

Whether Appellant failed to timely report and file a report of her low back injury.

The Division, as appellee, phrases the issue as:

Did the Hearing Examiner correctly find that Appellant's reporting obligations arose when she knew, no later than January 2000, that her back injury was work-related and compensable?

FACTS

[13] The appellant worked as a meat cutter at a Safeway store in Casper. In October 1999, the appellant suffered an injury to her neck while lifting a case of large frozen turkeys from a pallet. The appellant testified that prior to that date, she did not have any physical problems associated with her work at Safeway. The appellant believed she had pulled a muscle in her neck and told her immediate supervisor about the incident after she finished unloading the pallet. She testified that she felt a pop in her neck and began experiencing pain in her neck shortly after the incident. Approximately two weeks later, the appellant tripped over a pallet. She testified she thought she had pulled a muscle in her back. She did not report this injury to her supervisor. The appellant further testified that after the second injury, her pain would come and go but never went completely away, and her leg often went to sleep.

[T4] In December of 1999, the pain worsened. The appellant testified that she knew sometime after Christmas 1999 that her neck and back symptoms had increased and the pain had not subsided. She had not, at that point, consulted with a doctor. On May 23, 2000, when she went for an annual checkup, the appellant told her family physician about the pain in her neck and back, and stated, "I can't stand the pain in my neck no longer." She further stated that her leg was constantly going numb, and that it felt like it was continually being stuck with needles. The doctor ordered x-rays and informed the appellant on May 24, 2000, that she had degenerative disks in her neck and back, and limited her to lifting no more than twenty-five pounds.

[T5] The appellant was referred to two additional doctors and was ultimately referred to a rehabilitative specialist, Dr. Hem-ler, for treatment. The appellant saw Dr. Hemler on September 22, 2000. He diagnosed her with degenerative osteoarthritis with cervical (neck) segmental pain and lumbar (back) degenerative disease. Dr. Hemler concluded that these conditions arose directly as a result of the appellant's employment and that she had a work-related injury. He again saw the appellant on November 9, 2000, and stated that the appellant's condition was unlikely to improve medically. Dr. Hemler diagnosed the appellant as having five percent impairment in the neck area and having five percent impairment to the back. This equaled a ten percent total body impairment, which he considered to be directly related to the appellant's combined work-related injuries.

[T6] After learning on May 24, 2000, that she had degenerative disks in her neck and back, the appellant informed the Safeway store manager of her condition. He prepared an Employer's Report of Injury, which he fazed to Safeway's corporate office on May 25, 2000. The manager's report indicated that the appellant notified him of her condition on May 25, 2000, but left blank the date of her actual injury. The appellant completed an Employee's Report of Injury on May 25, 2000, indicating that the date of injury was May 28, 2000, and that she reported the incident to her employer on May 25, 2000. The appellant filed a worker's compensation claim on June 9, 2000.

[17] - On August 8, 2000, the Division sent the appellant a Final Determination letter in response to her claim. It concluded that it could not pay her benefits because: (1) the Division was prejudiced by the late filing of the claim, and (2) the Division had not received any medical information relating to the injury. The appellant timely objected to this determination on August 18, 2000. After a contested case hearing on March 12, 2001, the OAH issued an Order Awarding and Denying Benefits dated April 12, 2001. The OAH awarded the appellant benefits for medical and temporary total disability for her neck condition, but denied benefits for the back injury. The appellant petitioned the district court on April 26, 2001, for review of the OAH's order. The district court certified review to this Court on June 4, 2001.

STANDARD OF REVIEW

[18] When the district court certifies directly to this Court an administrative agency's decision, we review that agency decision "under the same appellate standards applicable to the reviewing court of the first instance." Matter of Bessemer Mt., 856 P.2d 450, 453 (Wyo.1993), cert. denied, 519 U.S. 1091, 117 S.Ct. 765, 136 L.Ed.2d 712 (1997). Our review is limited to a determination of the factors specified in Wyo. Stat. Ann. § 16-3-l14(c) (LexisNexis 2001). The reviewing court shall:

Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; _
Ce
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Wyo. Stat. Ann. § 16-8-114(c)@).

The interpretation and correct application of the provisions of the Wyoming Worker's Compensation Act are a question of law over which our review authority is plenary. In re Jensen, 2001 WY 51, ¶ 10, 24 P.3d 1133, 1136 (Wyo.2001). We affirm an administrative agency's conclusions of law only if they are in accord with the law. We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law. Id.

[T10] In reviewing the findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency's findings. Id. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency, and we must uphold the findings on appeal. Substantial evidence is relevant evidence that a reasonable mind might accept in support of the agency's conclusion. It is more than a scintilla of evidence. Id.

[¥11] In a worker's compensation case, the claimant has the burden of proving the statutory elements that comprise a "com-pensable injury." Matter of Workers' Compensation Claim of Jacobs, 924 P.2d 982, 984 (Wyo.1996). The claimant must show the cause of the condition for which compensation is claimed, and that the injury occurred in the course of employment. State ex rel. Wyoming Workers' Compensation Div. v. Espinoza, 924 P.2d 979, 981 (Wyo.1996).

DISCUSSION

[T12] The appellzm’c~ argues that she fully and timely complied with the reporting and filing requirements of Wyo. Stat. Ann. § 27-14-502(a) (LexisNexis 2001), which states, in pertinent part:

As soon as is practical but not later than seventy-two (72) hours after the general nature of the injury became apparent, an injured employee shall, in writing or by other means approved by the department, report the occurrence and general nature of the accident or injury to the employer. In addition, the injured employee shall within ten (10) days after the injury became apparent, file an injury report with the employer and the division in a manner and containing information prescribed by division rule and regulation.

The reporting and filing requirements under Wyo. Stat. Ann. § 27-14-502(a) are triggered by a compensable injury. Big Horn Coal Co. v. Wartensleben, 502 P.2d 187, 188 (Wyo.1972). The law on determining the date of a compensable injury is well established. The notice and claim requirements of the worker's compensation statutes do not begin to run until the employee becomes aware that an accident has caused an injury; and the term "injury" as used in the statutes means compensable injury. Wesaw v. Quality Maintenance, 2001 WY 17, ¶ 10, 19 P.3d 500, 504 (Wyo.2001). "[When determining the time a particular injury became compensable, it should be asked: When would a reasonable person, under the circumstances, have understood the full extent and nature of the injury and that the injury was related to his or her employment?" Aanenson v. State ex rel. Wyoming Workers' Compensation Div., 842 P.2d 1077, 1082 (Wyo.1992).

[113] This question requires a careful evaluation of all facts to determine when an employee reasonably understood the nature and seriousness of her condition and that it was work-related. While employees need not file claims for trivial injuries to avoid timeliness issues, the employee may not ignore the requirements for compensable injuries because notice and the statute of limitations exist to allow employers to investigate claims, monitor medical care, and avoid stale claims. Sherwin-Williams Co. v. Borchert, 994 P.2d 959, 964 (Wy.2000). The finder of fact must determine the time and cause of a compensable injury. Whether an employee's claim is to be barred for failure timely to file notice or a claim is a mixed question of fact and law. Aanenson, 842 P.2d at 1080.

[T 14] The appellant argues that she was not aware of the magnitude and extent of her injuries until she saw her family physician on May 28, 2000, and he informed her of her condition on May 24, 2000. She contends that she timely filed a report with her employer on May 25, 2000, and with the Division on June 9, 2000.

[115] The Division alleged that the appellant did not suffer a compensable injury and that the appellant failed timely to report the injury to Safeway and to the Division. The Division also argued that it and Safeway were prejudiced in investigating the incident and in monitoring medical treatment. In order to overcome a presumption of claim denial for failure timely to file, the appellant had to show a lack of prejudice to Safeway and the Division by clear and convincing evidence. Wyo. Stat. Ann. § 27-14-502(c). Whether a claimant has established a lack of prejudice is a question of fact. In re Worker's Compensation Claim of Payne, 993 P.2d 313, 316 (Wyo.1999). In Wesaw, we stated that the presumption of claim denial "does not arise unless an employee failed to report within 72 hours and failed to file an injury report within ten days." Wesaw, 2001 WY 17, ¶ 14, 19 P.3d at 506 (emphasis in original).

[T16] In the instant case, the appellant's actions indicate that she understood by January 2000 the nature of her injuries and that they were work-related. The appellant immediately told her supervisor about her neck injury after it occurred in October 1999. She characterized the injury as a pulled muscle that was painful. Approximately two weeks later, she tripped over a pallet and again characterized the injury as a pulled muscle, this time in her back, yet she failed to report this to her employer until May 25, 2000. The record shows the appellant knew sometime after Christmas 1999 that her neck and back symptoms had increased and the pain had not subsided. An injury is apparent when the claimant knows she " ' "has suffered an injury which can result in, or is likely to cause, a compensable disability." ' " Beitel v. State ex rel. Wyoming Workers' Compensation Div., 991 P.2d 1242, 1245 (Wyo.1999) (quoting Matter of Zielinske, 959 P.2d 706, 709 (Wyo.1998) and Curnow v. State ex rel. Wyoming Workers' Compensation Div., 899 P.2d 875, 878 (Wyo.1995). The appellant's testimony suggests that the injury occurred within a reasonably definite time period, and that she knew she had a compensable injury by January 2000, triggering the notice requirement pursuant to Wyo. Stat. Ann. § 27-14-502(a).

[T 17] Based on the evidence, the hearing examiner concluded that the appellant had timely reported her neck injury to Safeway, but did not timely report her back injury to Safeway or the Division. The hearing examiner found that the appellant was entitled to benefits for the neck injury as the medical evidence had established a causal connection between work and her neck condition. The hearing examiner presumed benefits were denied for the back injury pursuant to Wyo. Stat. Ann. § 27-14-502(c), which states:

Failure of the injured employee ... to report the accident or injury to the employer and to file the injury report in accordance with subsection (a) of this seetion is a presumption that the claim shall be denied. The presumption may be rebutted if the employee establishes by clear and convincing evidence a lack of prejudice to the employer or division in investigating the injury and in monitoring medical treatment.

[118] We hold that there is substantial evidence to support the hearing examiner's factual findings. We also agree with the hearing examiner that the appellant presented no evidence to rebut the presumption of claim denial. We affirm the hearing examiner's award of benefits for the appellant's neck injury and the denial of benefits for the appellant's back injury.

GOLDEN, J.,

dissenting.

[119] In a series of decisions over the last year, this Court has settled the law in a troublesome area of workers' compensation: when can valid claims be denied because all reporting requirements were not followed. Because these denials must comport with the constitutional right to due process, our decisions developed an appropriate standard of review, focused on the proper interpretation of the statutory requirements, and distinguished between the definition of a "compen-sable injury" and that of an "incident" or "accident." Resolving whether notices and claims were timely presents mixed questions of fact and law, and our review is de novo. Wesaw v. Quality Maintenance, 2001 WY 17, ¶¶ 11, 12, 19 P.3d 500, ¶¶ 11, 12 (Wyo.2001). Applying a de novo review to the denial of benefits for Logue's back injury, I find that the record does not support the denial, and I must respectfully dissent.

[120] The facts of this case are simple. In October of 1999, Logue injured her neck. Approximately a week or two later, Logue injured her back. It was the holiday season, a very busy time at her store, and she continued working. In May 2000, she had her annual check-up and reported neck pain and leg numbness to her doctor. A series of tests produced a diagnosis that she had suffered work-related injuries to both her neck and back. She reported the diagnosis to her Safeway department supervisor, and her employer provided her with an injury report that both completed and submitted to the Division. The Division denied her claim for both injuries stating they were not work-related and had not been timely reported.

[121] At the contested case hearing, Lo-gue testified that she told her supervisor of her neck injury, and the hearing examiner found that Logue had timely told her supervisor in October that she had injured her neck. Safeway did not have Logue complete an injury report at that time. Logue then testified that she tripped and hurt her back but did not "report" it at that time. On cross-examination, Logue testified that she did tell her supervisor that she had hurt her back when it happened. She confirmed this fact on redirect examination. Importantly, the Division did not have Logue's supervisor testify. In Wesaw, we stated that if a claimant timely tells her supervisor of a work-related injury, her claim cannot be denied under Wyo. Stat. Ann. § 27-14-5022. Wesaw, 1 15.

[122] Despite receiving the same testimony on both injuries, the hearing examiner found that Logue did not tell her employer about her back injury. The basis for this last finding was the hearing examiner's finding # 19 which stated:

Had Logue had [sic] mentioned an accident at work, a supervisor would have filled out a report and faxed it to "loss control." Safeway would then contact the employee, discuss medical treatment and conduct an additional investigation if needed. Safeway did not do that in this case because Logue did not report a specific injury.

Yet we know that Logue reported her earlier neck injury, and Safeway did not follow this process. It is against the great weight of the evidence and purely speculative, in addition to being illogical, for the hearing examiner to decide that this process would have been followed for the later back injury when Safeway did not follow this procedure for the neck injury. We, therefore, have the same evidence, Logue's testimony, that she reported both the neck and back injuries to her supervisor after each happened. If that testimony is sufficient to establish the neck injury, then it is sufficient to establish the back injury.

[123] -In addition, even if we assume that Logue's unrefuted testimony is not sufficient to grant her benefits for her back injury, we must nevertheless apply our law regarding "compensable injury." Wesaw, ¶¶ 15, 16. In its disclosure statement, the Division contended that Logue untimely filed her report on May 25, 2000. Logue had received her doctor's diagnosis on May 23, 2000. The hearing examiner determined that because Lo-gue's symptoms increased during the holidays, Logue knew or should have known no later than January 2000 that she had a work-related injury or injuries. However, these symptoms were neck pains and are not relevant to the back injury. "Knowledge of the 'full extent and nature of the injury' must be distinguished from an 'incident' or an 'accident' before the notice and claim requirements of Wyo. Stat. Ann. §§ 27-14-502 and 508 are triggered." Id. at 117. There is no evidence establishing that Logue knew that her leg numbness was caused by the tripping incident that pulled a muscle in her back. She discovered that relationship when she received her doctor's diagnosis, and it was then that she knew the "full extent and nature of her injury."

[124] This is not a Beitel case where the claimant sought chiropractic treatment but did not file an injury report for several months. Here, the claimant suffered minor injuries and continued to work; however, repetitive trauma to those minor injuries resulted in a compensable injury made known to the claimant only after testing and a doctor's diagnosis. Logue timely filed her reports after receiving this diagnosis, the hearing examiner determined that these injuries were work-related, and she is entitled to benefits.

[125] I would reverse the hearing examiner's order. I respectfully dissent from the majority's decision to affirm.

      . A case contained four turkeys, each weighing between ten and fifteen pounds.

      . Safeway hired the appellant for the meat cutter position in 1991.


author: VOIGT, Justice.

text:
    2002 WY 61
    Kari BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-11.
    Supreme Court of Wyoming.
    April 16, 2002.

      Kenneth Koski, Public Defender; Donna Domonkos, Appellate Counsel; Diane Cour-selle, Director, Wyoming Defender Aid Program; Justin Kallal, Student Intern; and Melody Gallegos, Student Intern, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; T. Alan Elrod, Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Brent Thomas, Student Intern, Representing Ap-pellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[T1] The appellant, Kari Brown, was charged with felony larceny, conspiracy to commit felony larceny, and felony taking or disposing of property. She appeals only the convictions for felony larceny and conspiracy to commit felony larceny. Finding plain error in the district court's failure to instruct the jury as to its duties under the aggregation statute, Wyo. Stat. Ann. $ 6-3-410 (Lex-isNexis 2001), we reverse both convictions and remand for a new trial.

ISSUES

(T 2] The appellant has raised the following issues in this appeal:

I. Did the trial court commit plain error when it failed to instruct the jury on the law of aggregation and what constitutes a common scheme for the purposes of determining the value of property in a trial for felony larceny and conspiracy to commit felony larceny?
II. Did the Prosecutor's closing argument misstate the law and increase the odds of the jury improperly aggregating the values of the property when the prosecutor suggested that the jury could arbitrarily aggregate the value of any property it saw fit?
Did the State fail to prove every element of the crime as charged in counts I and II beyond a reasonable doubt, therefore, requiring Ms. Brown's conviction to be overturned on sufficiency of the evidence grounds? IIL

The State's statement of the issues is similar:

I. Was the jury properly instructed on the elements of the crimes of larceny and conspiracy to commit larceny, including the respective property values it must find for the crimes to constitute felonies?
II. - Did the State commit plain error in closing argument?
Was the evidence sufficient to permit the jury to find appellant guilty of larceny of property of the value of $500.00 or more, and of conspiracy to commit larceny of property of the value of $500.00 or more? TIL

FACTS

[T3] The appellant was charged with stealing property valued over $500.00 and conspiracy to steal property valued over $500.00, between March 1, 2000, and May 12, 2000. The theory of the State's case, and the State's evidence at trial, was that the appellant and several acquaintances, including store clerks, agreed to remove property from the Pamida store in Worland without paying for that property. Execution of a search warrant at the appellant's residence later turned up numerous items identified as having been stolen from Pamida.

RELEVANT STATUTES

[T4] Larceny is defined in Wyo. Stat. Ann. § 6-3-402(a) (LexisNexis 2001):

A person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny.

The gradations of the crime of larceny, for punishment purposes, are found in subsection (c) of the same statute:

Except as provided by subsection (e) of this section, larceny is:
@) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the value of the property is five hundred dollars ($500.00) or more; or
* sok
ii) A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the value of the property is less than five hundred dollars ($500.00).

Wyo. Stat. Aun. § 6-3-402(c).

[15] Clearly, the difference between felony larceny and misdemeanor larceny is the value of the property stolen-if $500.00 or more, it is a felony; if less than $500.00, it is a misdemeanor. In determining the value of stolen property, Wyo. Stat. Ann. § 6-3-410 applies:

The amount of property involved in violations of W.S. 6-8-402 through 6-3-404 and 6-3-406 through 6-3-408 committed pursuant to a common scheme or the same transaction, whether the property is taken from the same person or different persons, may be aggregated in determining the value of the property.

(Emphasis added.)

[T6] The crime of conspiracy is defined in Wyo. Stat. Ann. § 6-1-803(a) (LexisNexis 2001):

A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a crime and one (1) or more of them does an overt act to effect the objective of the agreement.

Pursuant to Wyo. Stat. Ann. § 6-1-304 (Lex-isNexis 2001), the gradations of conspiracy for punishment purposes are the same as the underlying crime:

The penalty for attempt, solicitation or conspiracy is the same as the penalty for the most serious erime which is attempted, solicited or is an object of the conspira-ey....

DISCUSSION

[17] On October 13, 2000, the State filed its proposed jury instructions, along with a proposed verdict form. Seventeen jury instructions were listed, including several defining statutory terms and elements. No jury instruction based on the aggregation concept of Wyo. Stat. Ann. § 6-3-410 was included. There is nothing in the record to indicate that the appellant filed any proposed jury instructions. The only indication that a jury instruction conference took place is the following comment by the district court after the evidence was closed:

We're going to take a short recess and counsel and I are going to decide upon the instructions to give you. That shouldn't take but a few minutes, and so we'll ask that the Bailiff conduct you to [the] jury room.

[T8] The district court eventually read eighteen instructions to the jury. In form, most are identical to the ones submitted by the State. Two of the jury instructions and the verdict form are different. No jury instruction was given concerning aggregation of values.

[T9] We have a well-established standard for review of jury instruction issues:

Jury instructions should inform the jurors concerning the applicable law so that they can apply that law to their findings with respect to the material facts, instructions should be written with the particular facts and legal theories of each case in mind and often differ from case to case since any one of several instructional options may be legally correct, a failure to give an instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction, and the test of whether a jury has been properly instructed on the necessary elements of a crime is whether the instructions leave no doubt as to the cireumstances under which the crime can be found to have been committed.

Mueller v. State, 2001 WY 134, ¶ 9, 36 P.3d 1151, 1155 (Wyo.2001) (citing Schmidt v. State, 2001 WY 73, ¶ 23, 29 P.3d 76, 83 (Wy.2001) and Metzger v. State, 4 P.3d 901, 908 (Wyo.2000)). We analyze jury instructions as a whole and do not single out individual instructions or parts thereof. Ogden v. State, 2001 WY 109, ¶ 8, 34 P.3d 271, 274 (Wyo.2001). We give trial courts great latitude in instructing juries and " 'will not find reversible error in the jury instructions as long as the instructions correctly state the law and the entire set of instructions sufficiently covers the issues which were presented at the trial' " Id. (quoting Harris v. State, 933 P.2d 1114, 1126 (Wyo.1997)).

[110] Since the appellant did not object at trial to any of the jury instructions that were given, or any that may not have been given, our review of this issue follows our plain error standard:

"First, the record must clearly present the incident alleged to be error. Second, appellant must demonstrate that a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable, way. Last, appellant must prove that he was denied a substantial right resulting in material prejudice against him."

Ogden, 2001 WY 109, ¶ 9, 34 P.3d at 274 (quoting In Interest of CB, 749 P.2d 267, 268-69 (Wyo.1988)).

[111] The problem presented by this case is quite simple. Many things were stolen from Pamida at different times over a lengthy period. Many people were involved. Since no single item was valued at $500.00 or more, the appellant cannot be guilty of felony larceny, or conspiracy to commit felony larceny, unless the amounts can be aggregated under Wyo. Stat. Ann. § 6-38-410 based on a finding that the property was stolen "pursuant to a common scheme...." That question-whether the items were stolen pursuant to a common scheme-is a fact question that must be determined by the jury. State v. Lloyd, 103 Idaho 382, 647 P.2d 1254, 1255 (1982); State v. Garman, 100 Wash.App. 307, 984 P.2d 453, 457 (1999).

[112] Wyoming Criminal Pattern Jury Instruction 34.02D, which was not given in this case, makes it clear for the jury that the fact of a common scheme must be proven beyond a reasonable doubt:

In determining the value of property obtained through [OFFENSE CHARGED], if you find beyond a reasonable doubt that the Defendant engaged in a common scheme or single transaction involving [OFFENSE CHARGED] of the property of one or more persons, you may consider all such property taken in finding the value of the property.

If the jury is not so instructed, it does not know what it must find to make several separate misdemeanors into one single felony. In the similar situation of aggregation in a case of misdemeanor or felony property destruction, this Court has approved a jury instruction that incorporated the common scheme language into the elements instruction. Christian v. State, 883 P.2d 376, 379 (Wyo.1994). We do not hold that one way or the other is necessarily preferable, but we do hold that, either as a separate instruction along the lines of W.Cr.P.J.I. 34.02D, or as part of the elements instruction, the jury in an aggregation case must be instructed that aggregation cannot occur unless it finds a common scheme, beyond a reasonable doubt.

[T13] The State suggests that it was not plain error by the district court not to give an aggregation instruction, both because there was no clear precedent in Wyoming that said such an instruction had to be given and because the appellant was not prejudiced by the failure. We disagree. Wyoming law could not be more clear that a Jury must be instructed so as to "leave no doubt as to the cireumstances under which the crime can be found to have been committed." Mueller, 2001 WY 134, ¶ 9, 36 P.3d at 1155. The instructions must " 'sufficiently cover[ ] the issues which were presented at the trial' " Ogden, 2001 WY 109, ¶ 8, 34 P.3d at 274 (quoting Harris, 933 P.2d at 1126). Here, a primary issue was whether the appellant had stolen $500.00 worth of property pursuant to a common scheme. The jury was not properly instructed as to how to resolve that issue. And since we do not know how, or even if, the jury addressed that issue, we can have no faith in the verdict. The appellant was prejudiced and her convictions must be reversed.

[114] Given this resolution of the first issue, we need not address the other two issues. The giving of an aggregation instruction upon retrial, coupled with proper argument based on that jury instruction, likely will resolve the additional concerns raised by the appellant.

CONCLUSION

[T 15] The district court committed plain error in not instructing the jury that it had to find "a common scheme or the same transaction" before the values of the stolen property could be aggregated under Wyo. Stat. Ann. § 6-8-410.

[116] Reversed and remanded.

      . In Christian, 883 P.2d at 379, Jury Instruction No. 12 stated, in part:
      The necessary elements of the crime of Destruction of Property in Count II of the Information are:
      aoc %
      2. That the Defendant knowingly, and pursuant to a common scheme, did knowingly deface, injure or destroy. ...