author: BILLINGS, Associate Presiding Judge:

text:
    2002 UT App 412
    Nanette CARLILE, Plaintiff and Appellant, v. WAL-MART, Defendant and Appellee.
    No. 20010632-CA.
    Court of Appeals of Utah.
    Dec. 12, 2002.
    Ronald E. Dalby, Larson Turner Fairbanks & Dalby, South Jordan, for Appellant.
    Mitchell T. Rice, Morgan Meyer & Rice LC, Salt Lake City, for Appellee.

      Before JACKSON, P.J, BILLINGS, Associate Presiding Judge, and DAVIS, J.
   OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 Nanette Carlile (Carlile) appeals the district court’s grant of summary judgment to Wal-Mart Stores, Inc. (Wal-Mart). We reverse and remand.

BACKGROUND

¶ 2 On April 11, 2000, Carlile was in the fabrics section of Wal-Mart when she was struck by an electric cart. The woman driving the cart fled the scene and has not been identified. Wal-Mart made the cart available for public use.

¶ 3 On January 5, 2001, Carlile filed a negligence action against Wal-Mart. Wal-Mart responded by filing a motion to dismiss, arguing Carlile’s complaint failed to allege sufficient facts to sustain a negligence action. The district court denied the motion without prejudice, stating that Wal-Mart might be liable under respondeat superior if the cart driver was a Wal-Mart employee. Wal-Mart then filed a supplemental memorandum in support of the motion to dismiss. Submitted with the memorandum were two affidavits of Wal-Mart employees, stating they had witnessed the accident and did not recognize the cart driver as an employee. In response, Carlile filed a motion asking for further discovery and leave to amend her complaint.

¶4 In granting summary judgment to Wal-Mart, the district court ruled that, as a matter of fact, the cart driver was not a Wal-Mart employee and therefore Wal-Mart was not liable under respondeat superior. It also ruled that, as a matter of law, Wal-Mart was not liable to Carlile under any other theory of negligence. Lastly, it denied Carlile’s motion for further discovery and leave to amend. Carlile appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 5 Carlile argues the district court erred in holding, as a matter of law, that Carlile could not recover under Utah premises liability law. In deciding whether the district court properly granted summary judgment to Wal-Mart, “we give no deference to the [district] court’s view of the law, we review it for correctness.” CECO Corp. v. Concrete Specialists, Inc., 772 P.2d 967, 969 (Utah 1989).

¶ 6 Carlile next argues the district court erred in denying her motion for further discovery. Because district courts have broad discretion in matters of discovery, we review the district court’s denial for abuse of discretion. See Green v. Louder, 2001 UT 62,¶ 37, 29 P.3d 638.

¶ 7 Lastly, Carlile argues the district court erred in denying her motion to amend. We review the denial of a motion to amend for abuse of discretion. See Aurora Credit Servs., Inc. v. Liberty West Dev., Inc., 970 P.2d 1273,1281 (Utah 1998).

ANALYSIS

I. Utah Premises Liability

¶ 8 Carlile argues the district court misinterpreted Utah premises liability law when it ruled that Wal-Mart could not be held liable for Carlile’s injuries. The Utah Supreme Court has recognized two classes of negligence cases in which a store owner can be held liable: “In the first class, a store owner must have either actual or constructive knowledge of the hazardous condition.” Schnuphase v. Storehouse Mkts., 918 P.2d 476, 478 (Utah 1996) (citing Allen v. Federated Dairy Farms, Inc., 538 P.2d 175, 176 (Utah 1975)). “In the second class, negligence is based on a showing that the store owner created the hazardous condition.” Id. Therefore, Carlile can only recover if the electric cart presented (1) a hazardous condition that Wal-Mart had actual or constructive knowledge of or (2) a hazardous condition that Wal-Mart created.

A. Knowledge of a Hazardous Condition

¶ 9 Carlile first argues the electric cart presented a hazardous condition and that further discovery is needed to determine whether Wal-Mart had actual or constructive knowledge of this condition. In defining this first class of premises liability, the Utah Supreme Court has held that a hazardous condition

“involves some unsafe condition of a temporary nature, such as a slippery substance on the floor and usually where it is not known how it got there. In this class of cases it is quite universally held that fault cannot be imputed to the defendant so liability results therefrom unless two conditions are met: (A) that he had knowledge of the condition, that is, either actual knowledge, or constructive knowledge because the condition had existed long enough that he should have discovered it; and (B) that after such knowledge, sufficient time elapsed that in the exercise of reasonable care he should have remedied it.”

Schnuphase, 918 P.2d at 478 (citation omitted).

¶ 10 In this case, the nature and location of the electric cart does not present a temporary unsafe condition. Rather, Carlile argues that Wal-Mart may have been aware that the cart was defective and failed to remove it from the floor. We conclude Car-lile is entitled to conduct discovery in regard to whether Wal-Mart had actual or constructive knowledge of a defect in the cart and had sufficient time to remedy the same.

¶ 11 Carlile also argues that a cart driven by a negligent customer presents a temporary unsafe condition. Carlile alleges that prior to the cart driver striking her, the cart driver crashed into several racks or displays and Wal-Mart employees “were aware of the situation.”

¶ 12 The Utah Supreme Court has recognized that business owners have a duty to protect customers from “ ‘physical harm caused by the accidental, negligent, or intentionally harmful acts of third parties.’ ” Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991) (quoting Restatement (Second) of Torts § 344 (1955)); see also Pagan v. Thrift City, 23 Utah 2d 207, 460 P.2d 832, 834 (1969). Business owners further have a duty to “ ‘discover that such acts are being done or are likely to be done’ ” or “ ‘give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.’” Dwiggins, 811 P.2d at 183 (quoting Restatement (Second) of Torts § 344). However, “that duty does not arise until the business owner knows, or should know, that [such] acts are likely to occur.” Id.

¶ 13 Because business owners have a duty to prevent “accidental, negligent, or intentionally harmful acts of third persons” that they “know, or should know, ... are likely to occur,” we conclude the district court erred in granting Wal-Mart’s motion for summary judgment and in not allowing discovery as to whether Wal-Mart knew or should have known that third-party cart drivers were likely to commit such harmful acts.

B. Creation of a Hazardous Condition

¶ 14 Carlile next argues the electric cart was a hazardous condition that Wal-Mart created. The Utah Supreme Court has held that:

“The second class of cases involves some unsafe condition of a permanent nature, such as: in the structure of the building, or of a stairway, etc. or in equipment or machinery, or in the manner of use, which was created or chosen by the defendant (or his agents), or for which he is responsible. In such circumstances, where the defendant either created the condition, or is responsible for it, he is deemed to know of the condition; and no further proof of notice is necessary.”

Schnuphase, 918 P.2d at 478 (citation omitted). The Utah Supreme Court has further held that “the foreseeability of an inherently dangerous condition” is essential for recovery under this second class of premises liability. Id.

¶ 15 Carlile argues the use of electric carts in the store created a foreseeable, dangerous condition under which an accident, such as her accident, was likely to occur, and that Wal-Mart failed to take reasonable safety precautions to prevent Carlile’s accident. In Canfield v. Albertson’s, Inc., 841 P.2d 1224 (Utah Ct.App.1992), this court held that the second class of liability applies “where the store owner chooses a method of operation where it is reasonably foreseeable that the expectable acts of third parties will create a dangerous condition. Id. at 1226. In Long v. Smith Food King Store, 531 P.2d 360 (Utah 1973), the Utah Supreme Court held that the safety precautions required in such a situation would be limited to those reasonable in light of the foreseeable danger. See id. at 362.

¶ 16 The use of an electric cart in a store may present a foreseeable danger of an accident, absent proper safety precautions. Contrary to Wal-Mart’s assertion, the Utah Supreme Court did not conclude, as a matter of law, that the sale of ice cream was not inherently dangerous in Schnuphase. Rather, the court held that “under the facts of this case, plaintiff failed to present sufficient evidence on a claim of negligent mode of operation and that reasonable minds could not differ on the question of whether Storehouse Markets took reasonable precautions to protect its customers.” 918 P.2d at 479. Carlile’s ease is distinguishable from Schnu-phase because discovery was never conducted on whether the use of electrical carts presented a foreseeable danger and whether Wal-Mart took reasonable safety precautions. Should discovery show that the use of electrical carts presented a foreseeable danger and that Wal-Mart failed to take reasonable safety precautions to prevent injuries, Carlile could recover under this theory. We therefore reverse the district court’s conclusion that Carlile cannot recover as a matter of law on this theory and remand for further discovery.

¶ 17 Carlile also argues that the electric cart that struck her was defective and therefore unsafe. Because it is foreseeable that malfunctioning cart could present a dangerous condition, Carlile could recover under such a theory if discovery showed her accident resulted from a malfunction and that Wal-Mart failed to take adequate safety precautions to prevent such a malfunction from occurring. Thus, we reverse and remand for further discovery on this issue as well.

II. Motion to Amend and for Further Discovery

¶ 18 Carlile argues the district court exceeded its discretion in denying her motion to amend. Because the district court misunderstood Wal-Mart’s potential liability under Utah premises liability law and discovery has not yet been undertaken, we conclude it is appropriate to allow Carlile to amend her complaint on remand.

¶ 19 Carlile also argues she should have been allowed to conduct discovery. Because the district court misapprehended the scope of Wal-Mart’s potential liability, we conclude that it exceeded its discretion in denying further discovery. Therefore, on remand Carlile should be allowed to conduct discovery on the remanded issues.

CONCLUSION

¶ 20 Accordingly, we reverse the district court’s ruling that Carlile could not recover as a matter of law under Utah premises liability law. We also reverse the district court’s denial of Carlile’s motion to amend and to conduct further discovery.

¶ 21 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JAMES Z. DAVIS, Judge.

      . In Sandow-Pajewski v. Busch Entm’t Corp., 55 F.Supp.2d 422 (E.D.Va.1999), the plaintiff was hit by a motorized wheelchair while walking through an amusement park. She claimed the wheelchair had been rented out by Busch Gardens and the driver left the scene without being identified. See id. at 423-24. In granting summary judgment against the plaintiff, the court held that Busch Gardens had taken adequate safety precautions when it had no cause to know that the driver was unfit and had provided adequate instructions on the use of the wheelchair. See id. at 429-32.


source: Caselaw Access Project

author: DAVIS, Judge: ORME, Judge

license: Public Domain

text:
    2002 UT App 426
    STATE of Utah, Plaintiff and Appellee, v. Richard Leroy HOLBERT, Defendant and Appellant.
    No. 20010147-CA.
    Court of Appeals of Utah.
    Dec. 12, 2002.
    Rehearing Granted Dec. 11, 2002.

      Sharon S. Sipes, Ogden, for Appellant
    Mark L. Shurtleff, Attorney General, and Jeanne B. Inouye, Assistant Attorney General, Salt Lake City, for Appellee.
    Before BILLINGS, Associate P.J., and DAVIS, and ORME, JJ.
   AMENDED OPINION

DAVIS, Judge:

¶ 1 Defendant Richard L. Holbert (Defendant) appeals his conviction of aggravated kidnaping, a first degree felony, in violation of Utah Code Ann. § 76-5-302 (1999). We affirm.

BACKGROUND

¶ 2 Suann Palmer (Wife) and Defendant were married for over eleven years and had five children together. Defendant and-Wife had not been “getting along very well.” Because of a protective order, Defendant was not allowed to go to the family home. Despite the order, Wife and the children mainly stayed at Wife’s parents’ home.

¶ 3 On August 12, 1999, Wife and the children returned to the family home. Wife was speaking with a friend on the telephone when one of the children announced that Defendant was at the house. Wife told her friend that Defendant was there and to “come now.”

¶ 4 Defendant told Wife he was at the house to get his bowling ball. Wife asked Defendant to wait at the front door while she retrieved the ball. Instead, Defendant shoved Wife into the house, locked the door, pulled a gun from his waistband, and pointed the gun at Wife’s head. Wife ran to the back door of the house but Defendant slammed the door shut as Wife was about to open it. As Wife then ran for the front door, Defendant grabbed her and threw her into the bedroom. Defendant shut the bedroom door and kept the gun pointed at Wife’s head. At this time, Defendant said, “You want a divorce? You are going to die. I’m going to kill you.” Wife told Defendant that she did not want a divorce and wanted the marriage to work.

¶ 5 Defendant then became distracted by the children screaming and ringing the doorbell. Wife again pleaded with Defendant that they could take the children and “leave the state.” Defendant opened the bedroom door, walked to the front door and unlocked it, placed the gun back in his waistband, and asked Wife to defend him when police arrived. While exiting the home, the friend with whom Wife had been speaking on the telephone arrived. Defendant left through the backyard.

¶ 6 During the incident, the children went to a neighbor’s house “screaming and crying.” One of the children told the neighbor that Defendant had locked the children out of the house and was hurting Wife. The neighbor then called the police. While on the phone, the neighbor witnessed Wife running and screaming, “He’s got a gun.”

¶ 7 Later that day, Defendant left several messages on Wife’s answering machine. The messages were retrieved and recorded the following day by Detective Danielle Croyle, an investigator for the Domestic Violence Unit in the Ogden City Police Department. Throughout the messages, Defendant repeatedly stated that he wanted to speak with Wife “one more time” to “tell her goodbye.” At one point, he stated that the day’s incident was intended “to show [Wife] how sad and mad and frustrated” he was. He also frequently implied that , he was going to kill himself.

¶ 8 Subsequent to the incident, Defendant “just left [his] apartment” and stopped paying rent at the Cherry Creek Apartments complex, where he was also employed in maintenance. He left written notice with the landlord that he was going “to move out.” However, neither Defendant nor the landlord could recall specifically what the notice stated.

¶ 9 After a number of days in which Defendant had not been seen, the landlord posted an abandonment notice on the apartment door. Once the apartment was deemed abandoned, the landlord allowed Detective Croyle to enter the apartment and look through Defendant’s remaining belongings. During the search, Detective Croyle viewed the telephone numbers listed in Defendant’s caller I.D. system. The last call from Wife was dated August 3,1999.

¶ 10 Forty-six days after the August 12, 1999 incident, Defendant was located and placed under arrest. During a custodial search, the officer found a small revolver in Defendant’s belongings.

¶ 11 Although charges were initially filed against Defendant on August 12, 1999, the case was dismissed so that federal charges could be pursued. However, on May 5, 2000, the State charged Defendant with aggravated assault, a third degree felony, and aggravated kidnaping, a first degree felony. Prior to trial, the aggravated assault count was dismissed.

' ¶ 12 At trial, Wife testified to a prior • incident on May 18, 1999, during which Defendant and Wife argued about a previous disagreement. During the argument, Wife went to the telephone. Before Wife picked up the telephone, Defendant picked up Wife by the neck and choked her into unconsciousness. Defendant then threw Wife four to five feet into the kitchen. Upon regaining consciousness, Wife realized she was bent over the kitchen table and Defendant was choking her. She blacked out again and awoke a second time on the kitchen floor with Defendant kneeling over her and choking her. Wife “went into survivor mode” and told Defendant, “Please don’t kill me, I wanna [sic] make this marriage work.” Defendant stopped choking Wife but then “held [her] hostage for an hour and a half.” The next day, Wife obtained the protective order, which was later modified.

¶ 13 Defendant objected to Wife’s testimony as inadmissible evidence of a prior bad act. The State responded that the evidence was “foundational for the incident that occurred on the 12th of August.” The trial judge inquired whether the testimony would show intent or motive. The State then confirmed that the testimony would demonstrate intent, motive, and opportunity. In addition, Defendant objected to the “hostage” remark. The trial court sustained the objection on the basis that the answer was non-responsive.

¶ 14 During cross-examination, Wife was asked about contact with Defendant after the protective order had been issued. Wife responded that after Defendant “went to court and [pleaded] guilty to simple assault,” the order was modified to allow mutual consent contact.

¶ 15 Wife further testified that on approximately June 4, 1999, she was staying at the family house with her five children and was awakened at about 3:15 a.m. when she heard someone at the front-room window. She testified that it appeared an instrument was being used to pry open the window. Wife stated she wasn’t sure whether Defendant was the person at the window. Defendant objected to Wife’s testimony as speculation that Defendant may have been involved in the incident. The trial court overruled the objection because Wife did not say anything that tied Defendant to the incident and that she was only testifying as to what she had heard.

¶ 16 Detective Croyle also testified to the June 4 incident. She acknowledged that the police had conducted some investigation, including an unsuccessful search for Defendant’s vehicle at his apartment complex. However, the police did not have enough physical evidence to prosecute the matter as a protective order violation.

¶ 17 Following the State’s case, Defendant filed a motion to dismiss based on one of the original charges — aggravated assault— being subsequently dismissed by the State which, according to Defendant, should have been the primary charge subject to merger. The trial court denied the motion because “there are not two charges. There’s only one.” The court determined that whether Defendant had been “overcharged” was a matter for the jury and so instructed the jury as to the lesser included offenses of aggravated assault and unlawful detention.

¶ 18 Next, Defendant testified to his version of the events on August 12, 1999. He stated that Wife had called his apartment and invited him to the house because she had “changed her mind about [the] marriage situation.” Upon entering the house, Defendant went to the bedroom to search for a copy of the protective order and noticed a gun that he previously purchased for Wife on the dresser. Defendant testified that Wife pulled out the gun and pointed it towards Defendant’s chest area. Wife asked Defendant, “Why can’t you be just like other guys and just leave?” and stated, “If I gotta [sic] kill [you], I’ll kill [you].”

¶ 19 According to Defendant, the children then began banging on the door and ringing the doorbell. As Wife turned to look to the front door, Defendant grabbed the gun and pointed it at Wife for a few seconds. Wife then pleaded with Defendant that they could take the children and leave the state, and also told Defendant that she did not want a divorce and wanted the marriage to work.

¶ 20 Defendant testified that he then placed the gun in his coat pocket. He expressed concern to Wife that she had tricked him and asked Wife to “stick up for [him].” Finally, he left through the backyard because he assumed that he would be in trouble.

¶ 21 During the landlord’s testimony concerning Defendant’s apartment, Defendant objected to the search by Detective Croyle because there was no search warrant. The trial court determined that the apartment had been returned to the possession of management so Defendant did not have a reasonable expectation of privacy.

¶ 22 Upon conclusion of the trial, the jury was instructed as to the lesser included offenses of aggravated assault and unlawful detention. The jury returned a guilty verdict on the charge of aggravated kidnaping.

¶ 23 Prior to sentencing, Defendant filed a motion to arrest judgment, requesting the court grant a new trial or, in the alternative, enter a conviction for the crime of aggravated assault based on an insufficiency of the evidence argument and the merger doctrine, again contending that Defendant should have been convicted for aggravated assault rather than aggravated kidnaping. The court rejected Defendant’s reliance on case law in which a defendant had been convicted of two crimes and ruled that the jury’s verdict could not be ignored and that it was of “no legal consequence ... that [Defendant] also could have been charged with the crime of aggravated assault.” The court concluded that Defendant had not demonstrated any error or impropriety that affected his rights.

ISSUES AND STANDARDS OF REVIEW

¶ 24 Defendant raises several issues on appeal. First, Defendant contends that the trial court erred when it allowed Wife to testify about the May 18, 1999 choking incident. ‘When reviewing a trial court’s decision to admit evidence under rule 404(b), we apply an abuse of discretion standard.” State v. Widdison, 2001 UT 60,¶ 42, 28 P.3d 1278. In addition, “[w]e review the record to determine whether the admission of [prior] bad acts evidence was ‘scrupulously examined’ by the trial judge ‘in the proper exercise of that discretion.’ ” State v. Nelsorir- Waggoner, 2000 UT 59,¶ 16, 6 P.3d 1120 (citation omitted).

¶ 25 Second, Defendant argues that the trial court erred in admitting evidence obtained from Defendant’s apartment without a search warrant. We review the trial court’s findings of fact “deferentially under the clearly erroneous standard, and its conclusions of law are reviewed for correctness with some discretion given to the application of the legal standards to the underlying factual findings.” State v. Loya, 2001 UT App 3,¶ 6,18 P.3d 1116.

¶ 26 Third, Defendant claims that he was deprived of the right to effective assistance of counsel when counsel: (1) failed to object to testimony concerning the attempted break-in at the family home and the subsequent investigation, (2) failed to request a curative instruction after Wife testified that Defendant assaulted her and held her “hostage,” (3) failed to request a mistrial or curative instruction after Wife mentioned Defendant’s prior conviction and other prior bad acts, (4) failed to prepare witnesses to testify on Defendant’s behalf, and (5) failed to request a jury instruction on Defendant’s theory of self-defense. When an ineffective assistance of counsel claim “is raised for the first time on appeal without a prior evidentiary hearing, it presents a question of law.” State v. Bryant, 965 P.2d 539, 542 (Utah Ct.App.1998). However, “appellate review of counsel’s performance [is] highly deferential.” Id. (quotations and citation omitted).

¶27 Next, Defendant challenges the evidence as insufficient to support a conviction for aggravated kidnaping. “In considering an insufficiency of the evidence claim, this court reviews ‘the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury.’ ” Widdison, 2001 UT 60 at ¶ 74, 28 P.3d 1278 (citations omitted). “A jury conviction will be reversed for insufficient evidence ‘only if the evidence presented at trial is so insufficient that reasonable minds could not have reached the verdict.’ ” Id. (citation omitted).

¶28 Finally, Defendant argues that the cumulative effect of errors committed at trial undermines confidence that a fair trial occurred. “Under the cumulative error doctrine, we will reverse only if ‘the cumulative effect of the several errors undermines our confidence ... that a fair trial was had.’ ” State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (ellipsis in original) (citations omitted).

ANALYSIS

I. Prior Bad Acts Testimony

¶29 Defendant argues that the trial court erred in permitting testimony about the May 18, 1999 incident. Rule 404(b) of the Utah Rules of Evidence prohibits the admission of “[e]vidence of other crimes, wrongs or acts ... to prove the character of a person in order to show action in conformity therewith.” Utah R. Evid. 404(b). Evidence “may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. Evidence of prior bad acts is “admissible under rule 404(b) if the evidence is relevant to a proper, non-character purpose, unless its danger for unfair prejudice and the like substantially outweighs its probative value.” State v. Widdison, 2001 UT 60,¶ 41, 28 P.3d 1278.

¶ 30 The Utah Supreme Court has established a three-part process for determining the admissibility of prior bad acts evidence. “[T]he trial court must first determine whether the bad acts evidence is being offered for a proper, noncharacter purpose, such as one of those specifically listed in rule 404(b).” State v. Nelson-Waggoner, 2000 UT 59,¶ 18, 6 P.3d 1120.

¶ 31 “Second, the court must determine whether the bad acts evidence meets the requirements of rule 402, which permits admission of only relevant evidence.” Id. at ¶ 19. “Under rule 402, all relevant evidence is admissible except as otherwise provided.” Widdison, 2001 UT 60 at ¶ 41, 28 P.3d 1278. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Utah R. Evid. 401. Thus, if prior bad acts evidence “tends to prove some fact that is material to the crime charged,” it is relevant and admissible under rule 402. Nelson-Waggoner, 2000 UT 59 at ¶ 19, 6 P.3d 1120 (quoting State v. Decorso, 1999 UT 57,¶22, 993 P.2d 837, cert, denied, 528 U.S. 1164,120 S.Ct. 1181,145 L.Ed.2d 1088 (2000)).

¶ 32 “Finally, the trial court must determine whether the bad acts evidence meets the requirements of rule 403 of the Utah Rules of Evidence.” Id. at ¶ 20. “Rule 403 excludes relevant evidence ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ ” Widdison, 2001 UT 60 at ¶ 41, 28 P.3d 1278 (quoting Utah R. Evid. 403). To determine whether prior bad acts evidence is admissible under rule 403, “a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.” State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988) (quotations and citation omitted).

¶ 33 In this case, we first determine whether the trial court admitted the prior bad acts testimony for a proper, non-character purpose under rule 404(b). See State v. Fedorowicz, 2002 UT 67,¶ 27, 52 P.3d 1194. The State argues that Wife’s testimony concerning the May 18, 1999 assault is admissible to: (1) demonstrate motive, (2) show intent; (3) provide background and explain Defendant’s pattern of behavior, and (4) rebut Defendant’s fabrication and justification defenses. Defendant challenges the admission of Wife’s testimony as allowing the jury to convict him based on his “presumed bad character rather than his conduct on August 12,1999.”

¶ 34 We hold that the trial court did not abuse its discretion when it permitted Wife’s testimony about the May 18 incident under rale 404(b) to show Defendant’s intent and motive in committing the charged offense. Clearly, the prior incident of domestic violence that resulted in Wife seeking a protective order and presumably triggered by the parties’ experiencing marital discord, tends to show that Defendant would go to any length to get Wife back. Thus, the May 18, 1999 assault demonstrated Defendant’s motive to engage in threatening behavior against Wife as a means for coping with the divorce.

¶ 35 In addition, evidence of the prior assault helps prove Defendant’s intent to commit aggravated kidnaping. Defendant was charged with aggravated kidnaping, by which a

person intentionally or knowingly, without authority of law and against the will of the victim, by any means and in any manner, seizes, confines, detains, or transports the victim ... and ... possesses, uses, or threatens to use a dangerous weapon ... with intent ... to inflict bodily injury on or to terrorize the victim or another.

Utah Code Ann. § 76-5-302(1) (1999). Because aggravated kidnaping is a specific intent crime, evidence of the May 18 assault is material thereto. See State v. Teuscher, 883 P.2d 922, 926 (Utah Ct.App.1994) (“‘Where specific intent is an element of the crime, the prosecution may introduce evidence of other offenses to establish the element of intent. ...’” (Citation omitted.)); cf. State v. Morrell, 803 P.2d 292, 295 (Utah Ct.App.1990) (noting “[ajdmission of prior bad acts is proper when it tends to prove a contested material element of the crime charged”). Defendant’s prior assaultive conduct is material to the element of intent because it shows that Defendant had engaged in violent behavior against Wife on a prior occasion and could easily use the same threatening behavior “to terrorize the victim” in the future. Utah Code Ann. § 76-5-302(l)(b)(iii).

¶ 36 Other courts have allowed evidence of prior acts of domestic violence committed by a defendant against the same victim to prove motive and intent. See, e.g., Baker v. State, No. CR-95-0292, 2001 Ala.Crim.App. LEXIS 7, at *113, 2001 WL 32832 (Jan. 12, 2001) (admitting evidence of collateral offenses to prove motive and intent); People v. Linkenauger, 32 Cal.App.4th 1603, 38 Cal.Rptr.2d 868, 872 (1995) (restating rule that evidence of prior quarrels and making of threats is admissible to show motive and state of mind); State v. Gibbons, 256 Kan. 951, 889 P.2d 772, 780 (1995) (noting evidence of prior physical abuse of spouse is admissible to prove motive or intent); State v. Jacobs, 939 S.W.2d 7,10 (Mo.Ct.App.1997) (concluding that evidence of prior domestic abuse tended to establish intent and motive for charged crimes); People v. Hines, 260 A.D.2d 646, 690 N.Y.S.2d 66, 67 (N.Y.App.Div.1999) (permitting evidence of prior domestic incidents to establish defendant’s motive); State v. Johnson, 73 Ohio Misc.2d 1, 3, 657 N.E.2d 383, 384 (Hamilton Co. Mun.Ct.1994) (holding prior bad acts by defendant against same victim admissible in domestic violence cases to prove intent and motive under rule 404(b)); State v. Laible, 594 N.W.2d 328, 335 (S.D.1999) (“When an accused had a close relationship with the victim, prior aggression, threats or abusive treatment of the same victim by the same perpetrator are admissible when offered on relevant issues under [rjule 404(b).”).

¶ 37 Next, we consider whether Wife’s testimony was relevant under rule 402. See Fedoronricz, 2002 UT 67 at ¶ 32, 52 P.3d 1194. As previously mentioned, the prior bad acts evidence is relevant to prove the Defendant’s specific intent “to inflict bodily injury on or to terrorize [Wife].” Utah Code Ann. § 76 — 5—302(l)(b)(iii). In addition, the May 18, 1999 choking incident is relevant to refute Defendant’s claim that Wife was the perpetrator in the August 12, 1999 episode. Thus, evidence of the prior assault tended to make Wife’s version of the events on August 12, 1999, more probable than without the evidence. See Utah R. Evid. 401 (defining relevant evidence). Because the evidence is material to an element of the charged offense and tends to rebut Defendant’s allegations that Wife initially pointed the gun at him, the trial court did not abuse its discretion in admitting the evidence.

¶ 38 The final step in admitting prior bad acts testimony requires the trial court to determine whether the evidence is admissible under rule 403. See State v. Bluff, 2002 UT 66,¶ 59, 52 P.3d 1210. Defendant contends that Wife’s description of the assault on May 18, 1999, had an “inherently prejudicial effect [that] far outweighed any minimal probative value to the incident three months later.” In applying the Shickles factors to this case, we conclude that Wife’s testimony about the May 18, 1999 assault was more probative than prejudicial.

¶ 39 First, there is strong evidence that the May 18, 1999 assault occurred. As a result of the incident, Wife obtained a protective order against Defendant. Also, Defendant does not refute that the episode occurred, only that testimony concerning the event should have been excluded.

¶ 40 Second, the May 18 assault is similar to the August 12 incident. Generally, each incident was a form of domestic violence. Although the second event involved a firearm, both involved life-threatening aggression perpetrated by Defendant against Wife. Also, in each incident, Defendant prevented Wife from having access to others by telephone or by exiting the home. Furthermore, in order to prevent further violence in both instances, Wife told Defendant that she wanted the marriage to work.

¶ 41 Third, the time that lapsed between the events was less than three months. Thus, the interval of time between the choking incident and the offense at issue was minimal.

¶ 42 Next, the need for the evidence is significant because the prior assault helps demonstrate a pattern of domestic violence that goes to prove the specific intent element of intending to inflict injury or to terrorize. Without the evidence, the jurors would be left to resolve a “contest of credibility between [Defendant and [Wife].” Nelson-Waggoner, 2000 UT 59 at ¶ 30, 6 P.3d 1120. The evidence assisted the jurors in determining whose description of events was more or less probable. Thus, the evidence was necessary.

¶ 43 Further, without evidence of the pri- or domestic violence episode on May 18, there would be an absence of alternative proof to support the aggravated kidnaping charge since the only direct evidence presented concerning the August 12, 1999 incident was Wife’s testimony and Defendant’s testimony. There was no other direct evidence that the incident inside the home occurred as described by either party. Also, there were no eyewitnesses to the offense besides the parties themselves.

¶ 44 Finally, Wife’s testimony would not rouse the jury to overmastering hostility. The evidence concerning the May 18 assault was “no worse than the evidence” of the August 12, 1999 incident that was presented to the jury. Widdison, 2001 UT 60 at ¶ 52, 28 P.3d 1278. In fact, Wife’s testimony about the event helped provide an overall context of domestic abuse that would give foundation for the August 12, 1999 incident and that would explain the protective order and the limitations established by the order. There was nothing in Wife’s testimony about the May 18, 1999 assault that would have caused the jury to lose concentration on the aggravated kidnaping offense.

¶ 45 Upon applying the Shickles factors to the facts of this case, we conclude that the trial court did not abuse its discretion in permitting Wife’s testimony since the probative value of the evidence was not “substantially outweighed by the danger of unfair prejudice.” Utah R. Evid. 403.

¶ 46 In conclusion, the trial court did not abuse its discretion in allowing Wife to testify about the assault that occurred on May 18, 1999 under rule 404(b) because the evidence was offered for the proper, non-character purposes of intent and motive, was relevant, and was more probative than prejudicial.

II. Abandonment

¶ 47 Defendant contends that the trial court erred when it admitted testimony concerning the telephone numbers retrieved from Defendant’s caller I.D. system inside Defendant’s apartment because Detective Croyle did not have a search warrant. Leased or rented premises are protected against unreasonable searches and seizures. See State v. Kent, 20 Utah 2d 1, 432 P.2d 64, 66 (1967). However, “ ‘[w]hen individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had.’ ” State v. Rowe, 806 P.2d 730, 736 (Utah Ct.App.1991) (citations omitted), rev’d on other grounds, 850 P.2d 427 (Utah 1992); see also 68 Am.Jur.2d Searches and Seizures § 23 (2002) (stating an individual “may relinquish his or her reasonable expectation of privacy in a rented property, and thus lose the right to challenge a search of the premises, by abandoning the property”). Thus, a person who has voluntarily abandoned property “lacks standing to object to a search or seizure of it.” State v. Fisher, 141 Ariz. 227, 686 P.2d 750, 764 (1984).

¶ 48 Under a search and seizure analysis, whether abandonment has occurred is “primarily a factual question of intent to voluntarily relinquish a reasonable expectation of privacy, which may be inferred from ‘words spoken, acts done, and other objective facts.’ ” Rowe, 806 P.2d at 736 (citation omitted). Thus, an individual “does not have a reasonable expectation of privacy in a rented apartment, so as to be entitled to challenge a warrantless search of the apartment, when his or her acts and intent indicate that he or she has abandoned the premises.” 68 Am.Jur.2d Searches and Seizures § 23 (2002).

¶ 49 Here, Defendant left written notice with his landlord that he would be leaving his job and/or apartment. Defendant had ceased performing maintenance duties and stopped paying rent for the apartment. Also, Defendant had not been seen for several days. Thus, the landlord followed established procedures to deem the apartment abandoned, i.e., posting notice, leaving the notice for a few days. Most importantly, Defendant testified that he “just left [the] apartment” by giving the landlord “notice to move out” and that he no longer paid rent because he “wasn’t there.”

¶ 50 Although no Utah case law specifically addresses the abandonment of leased property, other courts have determined that abandonment occurred in the search and seizure context under similar factual circumstances. See Baggett v. State, 254 Ark. 553, 494 S.W.2d 717, 720 (1973) (concluding there was abandonment based partly on defendant turning over apartment keys and terminating employment with property owner); People v. Urfer, 274 Cal.App.2d 307, 310, 79 Cal.Rptr. 60 (Cal.Ct.App.1969) (determining apartment abandoned, although furniture and belongings remained, when defendant had not used apartment for some time); State v. Madera, 206 Mont. 140, 670 P.2d 552, 557 (1983) (holding abandonment occurred when there was no response to knock, rent was unpaid, key was inside apartment, and there was no evidence that defendant returned to premises after offense occurred); State v. Clark, 105 N.M. 10, 727 P.2d 949, 952 (N.M.Ct.App.1986) (concluding abandonment occurred when rent was unpaid, eviction notice was posted, landlord heard defendant was incar-cei’ated, and arrangements were made with defendant’s sister to remove possessions); see generally State v. Branch, 133 Idaho 215, 220, 984 P.2d 703, 708 (1999) (noting indicators of abandonment to include nonpayment of rent; removal of furniture, clothes, etc.; nonpayment or disconnection of utilities; statements to landlords or neighbors; and other acts inconsistent with tenant’s control or occupation of premises).

¶ 51 We conclude that Defendant’s actions in failing to pay rent, being absent from the premises, and providing formal notice to the landlord that he was to move and/or terminate his employment demonstrated his intent to abandon the apartment. Thus, Defendant relinquished any expectation of privacy in the premises and property therein. Therefore, the trial court did not err when it ruled that Defendant had no reasonable expectation of privacy in the apartment.

III. Ineffective Assistance of Counsel

¶ 52 Defendant argues that he was deprived of the right to effective assistance of counsel because counsel (1) failed to object to testimony concerning the attempted break-in, (2) failed to request a curative instruction after Wife testified that Defendant has assaulted her and held her “hostage,” (3) failed to request a mistrial or curative instruction after Wife mentioned during her testimony that Defendant had previously pleaded guilty to assault, (4) failed to prepare witnesses for trial, and (5) failed to request a self-defense jury instruction.

¶ 53 The Supreme Court of the United States recognizes ‘“the right to counsel is the right to the effective assistance of counsel.’” Strickland v. Washington, 466 U.S. 668, 686,104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) (citation omitted). In order to succeed on an ineffective assistance of counsel claim, Defendant must show (1) trial counsel’s performance was deficient by falling below an objective standard of reasonableness, and (2) trial counsel’s deficient performance prejudiced Defendant by depriving him of a fair trial. See id. at 687, 104 S.Ct. 2052; State v. Bryant, 965 P.2d 539, 542 (Utah Ct.App.1998). “If a defendant fails to establish either of the two parts of the Strickland test, counsel’s assistance was constitutionally sufficient, and we need not address the other part of the test.” State v. Medina-Juarez, 2001 UT 79,¶ 14, 34 P.3d 187.

¶ 54 “In reviewing an alleged deficiency in counsel’s trial performance, we must indulge in the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Bryant, 965 P.2d at 542 (internal quotations and citation omitted). Defendant “must overcome the presumption that ... the challenged action might be considered sound trial strategy.” Id. (internal quotations and citation omitted); State v. Maestas, 1999 UT 32,¶ 20, 984 P.2d 376 (stating that trial counsel is given “wide latitude in making tactical decisions”); see also State v. Litherland, 2000 UT 76,¶ 25, 12 P.3d 92 (noting presumption may be rebutted by showing counsel was inattentive, juror was biased, or counsel’s choice was not justifiable). Thus, “ ‘[i]f a rational basis for counsel’s performance can be articulated, [the court] will assume counsel acted competently.’” Bryant, 965 P.2d at 542 (alterations in original) (citation omitted).

¶ 55 To demonstrate prejudice, “[Defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694,104 S.Ct. at 2068. “A reasonable probability is that which is sufficient to undermine the confidence in the reliability of the outcome.” State v. Tyler, 850 P.2d 1250, 1258 (Utah 1993).

¶ 56 First, Defendant contends that trial counsel should have objected to testimony concerning the June 4, 1999 attempted break-in in which police lacked evidence to prosecute the matter. Actually, defense counsel objected to the testimony as speculative when Wife provided her account of the incident, but was overruled. Defense counsel did not object when Detective Croyle was asked about the incident.

¶ 57 Even if trial counsel should have objected to Detective Croyle’s testimony concerning the attempted break-in — a doubtful proposition given the court’s ruling on the same objection when previously made — Defendant’s claim fails under the prejudice prong. See State v. Germonto, 868 P.2d 50, 62 (Utah 1993). Neither Wife nor Detective Croyle named Defendant as the, person that committed the attempted break-in. Wife specifically stated that she wasn’t sure whether Defendant was the person at the window. Also, Detective Croyle noted that, although there was speculation, there was “no proof ... of who did it.” Because Defendant does not demonstrate that a different result at trial would have occurred absent such testimony, Defendant has not satisfied the prejudice prong under Strickland.

¶ 58 Second, Defendant argues that trial counsel was ineffective for failing to request a curative instruction when Wife claimed that Defendant held her “hostage” after choking her on May 18, 1999. If the “conceivable tactical bas[e]s for defense counsel’s actions are apparent,” Defendant has not overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, [and] we must assume defense counsel acted competently.” Bryant, 965 P.2d at 543-44 (first alteration in original) (internal quotations and citations omitted).

¶ 59 Here, it is entirely possible that trial counsel declined to request a curative instruction so as not to further emphasize the remark. Such a strategy becomes more apparent because, during cross-examination, Defendant did not request the same remark be stricken when Wife testified that the protective order against Defendant did not mention Defendant “holding [her] hostage.” Thus, trial counsel may not have requested a curative instruction as a tactical matter. Given this sound basis for not requesting a curative instruction, Defendant has not overcome the burden that trial counsel was ineffective.

¶ 60 Third, Defendant challenges the assistance of trial counsel as ineffective because counsel failed to request a mistrial or curative instruction after Wife testified that Defendant had previously pleaded guilty to assault.

¶ 61 Again, trial counsel may have deliberately declined to request a curative instruction as a tactical decision. It is reasonable that counsel did not want, the jury to take special notice of the testimony. Thus, there is a conceivable tactical basis for counsel’s conduct and Defendant has not shown sufficient evidence to overcome the presumption of the reasonableness of trial counsel’s choice. See State v. Morrell, 803 P.2d 292, 294 n. 2 (Utah Ct.App.1990) (noting error in admission of evidence under rule 609 would be harmless because evidence was admissible under rule 404(b)).

¶ 62 Even if trial counsel erred by failing to request a curative instruction or a mistrial, Defendant has not demonstrated that he was prejudiced and that a different result would have occurred but for Wife’s testimony about the prior plea. See Strickland, 466 U.S. at 694,104 S.Ct. at 2068.

¶ 63 Fourth, Defendant argues that trial counsel failed to prepare witnesses for trial. Defendant points out that one witness had to read material to refresh her memory, one witness had her memory refreshed just prior to her testimony, and one witness could not recall exactly when Defendant worked for him and did not have time to research employment records since he was called “at the spur of the moment.” However, Defendant does not offer any evidence of how these witnesses would have testified if trial counsel had prepared them. Because there is no indication that the trial outcome would have been different, Defendant fails to show that he suffered prejudice as a result of trial counsel’s actions. See id.

¶ 64 Finally, Defendant claims that trial counsel was ineffective for failing to request a jury instruction on self-defense. A self-defense instruction is appropriate if there is evidence that provides some reasonable basis that an offense was committed in self-defense. See State v. Garcia, 2001 UT App 19,¶ 8, 18 P.3d 1123. In this case, trial counsel could have justifiably determined that there was no reasonable basis for a self-defense instruction. Even if trial counsel should have requested a self-defense instruction, Defendant has not demonstrated prejudice by showing how the outcome of the case would have been different if the instruction had been given. See Strickland, 466 U.S. at 694,104 S.Ct. at 2068. Therefore, trial counsel was not ineffective for failing to request a self-defense instruction.

¶ 65 Because Defendant has failed to demonstrate either trial counsel’s deficiency under an objective reasonableness standard or that he suffered prejudice in that a different outcome at trial would have resulted but for trial counsel’s performance, we conclude that Defendant was provided effective assistance of counsel.

IV. Insufficiency of the Evidence

¶ 66 Defendant argues that the evidence at trial was insufficient to support a conviction for aggravated kidnaping. However, the primary focus of Defendant’s argument, which is somewhat mischaracterized as an insufficiency claim, is that the aggravated assault charge should have been the host crime in which aggravated kidnaping merges.

¶ 67 We decline to engage in a merger analysis because Defendant did not object to the aggravated assault charge as a lesser included offense. As a lesser included offense, the aggravated assault becomes the predicate offense to the greater crime of aggravated kidnaping. Thus, Defendant is not entitled to the benefit of having aggravated assault be a lesser included offense and then, upon proof of the greater crime, characterize the lesser charge as a host crime to which the greater offense is merged. Because the jury convicted upon the greater offense of aggravated kidnaping, the aggravated assault charge is no longer at issue. See State v. Shaffer, 725 P.2d 1301, 1313 (Utah 1986) (“If the greater crime is proven, then the lesser crime merges into it.”). Therefore, by accepting aggravated assault as a lesser included offense, Defendant has waived any application of the merger doctrine.

¶ 68 Because “we assume that the jury believed the evidence supporting the verdict,” State v. Brown, 948 P.2d 337, 343-44 (Utah 1997), and Defendant neither challenges the level of evidence offered to prove each of the aggravated kidnaping elements nor the basis of the jury verdict, we conclude that the jury was not unreasonable in finding Defendant guilty of aggravated kidnaping.

V. Cumulative Error

¶ 69 Defendant argues that the existence of several errors committed at trial undermines confidence that Defendant received a fair trial. After review of Defendant’s claims and the record, we conclude that no prejudicial error occurred at trial. Therefore, “there is no cumulative error.” State v. Medina-Juarez, 2001 UT 79,¶ 27, 34 P.3d 187.

CONCLUSION

¶ 70 We conclude that the trial court did not abuse its discretion in permitting Wife to testify about a prior assault under rule 404(b). Also, the trial court did not err when it found a proper warrantless search because Defendant had abandoned his apartment. Defendant was not deprived of his right to effective assistance of counsel and there was sufficient evidence to support his conviction for aggravated kidnaping, which was not subject to merger. Finally, because there were no errors at trial, the cumulative error doctrine is inapplicable.

¶ 71 I CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge.

ORME, Judge

(concurring in the result in part):

¶ 72 There was no real dispute in this case concerning Defendant’s intent. Defendant did not claim he detained the victim with a dangerous weapon for some purpose other than to terrorize her. (Had he done so, evidence of the prior incident would be very telling indeed.) On the contrary, he claimed that she had the gun and he merely removed it to avoid a dangerous confrontation. Evidence of the prior incident of his serious aggression toward the victim compellingly undercuts the credibility of this contention. Thus, for the reasons more fully set forth in Judge Thorne’s opinion and my opinion in State v. Bradley, 2002 UT App 348, 57 P.3d 1139,1 believe the sounder basis on which to premise admission of the prior bad act evidence was to refute Defendant’s fabrication and justification defenses.

¶ 73 I also concur only in the result of Section II of the opinion. I find it wholly unnecessary to reach the issue of Defendant’s claimed abandonment of his apartment, as it is clear that admission of the data from his “caller i.d.” device was completely inconsequential to his conviction and, thus, harmless beyond a reasonable doubt.

¶ 74 I concur in the balance of the court’s opinion.

      . This Amended Opinion replaces the Court's original Opinion in this case, Case No. 20010147 CA, 2002 UT App 364, issued November 7, 2002.

      . Facts are viewed in a light most favorable to the jury verdict and are recited accordingly. See State v. Loose, 2000 UT 11,¶ 2, 994 P.2d 1237.

      . Defendant suggests that the testimony is inadmissible under rules 608 and 609 of the Utah Rules of Evidence. However, even if the evidence was improperly admitted under either rule 608 or 609, the evidence is admissible as substantive evidence of prior bad acts for proper non-character purposes under rule 404(b). See State v. O’Neil, 848 P.2d 694, 701 n. 7 (Utah Ct.App.1993) (noting that trial judge admitted evidence under rules 404(b) and 403 so no consideration of whether evidence was admissible under rule 609 was necessary); cf. State v. Morrell, 803 P.2d 292, 294 n. 2 (Utah Ct.App.1990) (recognizing that "any error in the admission of a guilty plea under [rjule 609 was harmless in view of the admissibility of other evidence of the crime under [r]ule 404(b)”). Furthermore, Defendant did not object to the evidence in the context of rules 608 and 609. See State v. Stevenson, 884 P.2d 1287, 1292 (Utah Ct.App.1994) (requiring assertion of argument before trial court before raising argument on appeal). Therefore, we decline to engage in further analysis of this argument.

      . Rule 404(b) was recently amended to follow the federal rule verbatim. See Utah R. Evid. 404(b) advisory committee’s note. The amended version deleted a specific provision that evidence admissible under rule 404(b) must meet the requirements of rules 402 and 403. However, despite the absence of such language, under the current version, evidence must still conform with rules 402 and 403 in order to be admissible. See id.

      . We do not find it necessary to address the State’s arguments that the prior bad acts evidence was admissible to show background or a specific pattern of behavior and to rebut fabrication and justification defenses since we deem that the prior bad acts evidence was properly admissible to show intent and motive, specifically designated permissible non-character purposes under rule 404(b).

      . Although the trial judge did not expressly engage in a scrupulous examination of the evidence by outlining the evidence under each step required by rule 404(b) of the Utah Rules of Evidence, including an application of the Shickles factors to satisfy the rule 403 requirement, the court did inquire into whether the evidence was admissible for the proper, non-character purposes of motive and intent. See State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988). Considering that the trial court did not strike the testimony or revisit the matter after the State confirmed that, upon proceeding, the testimony would be admissible prior bad acts evidence, the testimony satisfied the requirements of rule 404(b). See State v. Nelson-Waggoner, 2000 UT 59, ¶ 23 n. 8, 6 P.3d 1120 (noting that trial court did not make specific finding that evidence was admissible under final step in 404(b) analysis but inference follows from fact that evidence was ruled admissible). Thus, because Defendant neither objected to nor challenges whether the trial court "scrupulously examined" the evidence, State v. Decorso, 1999 UT 57,¶ 18, 993 P.2d 837, and because the State proceeded, after objection, to show that the testimony about the assault was offered for a proper, non-character purpose, the trial court engaged in a sufficiently scrupulous examination of the evidence.
      Nevertheless, we encourage trial courts to conduct a complete and thorough application of the three-step procedure as set forth by the Utah Supreme Court and as followed here.

      . Defendant’s reference to Utah Code Ann. §78-36-12.3 (1996), which defines abandonment in the context of forcible entry and detainer, is not applicable to this case. See id. (presuming abandonment when tenant has not notified landlord of absence, fails to pay rent, and there is no evidence that tenant is occupying premises). First, whether Defendant abandoned the apartment, and any reasonable expectation of privacy in it, so that a warrantless search could be properly conducted is a matter for search and seizure analysis. See Bloodworth v. State, 233 Ga. 589, 212 S.E.2d 774, 776 (1975) (stating question of abandonment for search and seizure purposes does not turn on property concepts but on whether reasonable expectation of privacy in premises has been relinquished). Second, Defendant does not challenge the legal procedures used by the landlord for deeming the apartment abandoned for occupation or rental purposes.

      . The note is not included in the record and, thus, the specific wording remains a mystery. However, Defendant testified that he gave written notice that he was leaving. He further testified that his rent had been paid "until I gave notice to move out.” The landlord testified that she was given a written note that Defendant was quitting his maintenance job but could not recall whether the note stated that Defendant would no longer be living at the apartment.

      . Because there is no challenge to aggravated assault being a lesser included offense, it is not necessary to review whether aggravated assault is in fact a lesser included offense to aggravated kidnaping.


text:
    2002 UT App 414
    Melinda GILLEY, Plaintiff and Appellant, v. G. Barton BLACKSTOCK; and Department of Public Safety, Office of Driver License Services, Defendants and Appellees.
    No. 20010828-CA.
    Court of Appeals of Utah.
    Dec. 12, 2002.

      J. Franklin Allred, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Rebecca D. Waldron, Asst. Atty. Gen., Salt Lake City, for Appellees.
    Before BILLINGS, Associate Presiding Judge, ORME and THORNE, Jr., JJ.

      . For the first time on appeal, Gilley argues the district court should have exercised its power to issue extraordinary writs. Because Gilley failed to raise this issue below, we decline to address Gilley’s argument. See Jeffs, 2002 UT App 232 at V 9 n. 3, 57 P.3d 232.

   OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 Melinda Gilley (Gilley) appeals the district court’s dismissal of her appeal of the Driver License Division’s (Division) order to revoke her license. We affirm.

BACKGROUND

¶ 2 On February 1, 2001, Gilley was arrested for refusing to submit to a chemical test, pursuant to Utah Code Ann. § 41-6-44.10 (1998), after police suspected her of driving under the influence of alcohol. In an order dated February 25, 2001, the Division revoked Gilley’s driver license for eighteen months. No statutory driver license revocation hearing was held prior to the revocation.

¶ 3 Gilley subsequently filed an appeal to the district court on May 21, 2001, requesting reinstatement of her driver license and claiming she never received proper notice of the revocation process. The Division then filed a motion to dismiss for lack of jurisdiction due to untimeliness of the complaint in violation of the Utah Administrative Procedures Act (UAPA), Utah Code Ann. § 63-46b-14(3)(a) (1997). In response, Gilley argued because she never received initial notice of intent to revoke her license, as required by Utah Code Ann. § 41-6^14.10(2)(b), the Division lacked jurisdiction to proceed with revocation, and therefore UAPA time limits did not apply to her appeal to the district court.

¶ 4 At a hearing on the Division’s motion, the Division for purposes of the hearing stipulated Gilley never received the initial notice of intent to revoke. Nevertheless, the district court dismissed Gilley’s appeal as untimely, and Gilley now appeals to this court.

ISSUE AND STANDARD OF REVIEW

¶ 5 Gilley asserts the district court erred in dismissing her appeal to the district court as untimely. “We review the district court’s legal determination that it lacked jurisdiction for judicial review on grounds of untimeliness under a correctness standard, and thus accord it no deference.” Bourgeous v. Department of Commerce, 1999 UT App 146,¶ 5, 981 P.2d 414 (citing C.P. v. Utah Office of Crime Victims’ Reparations, 966 P.2d 1226,1228 (Utah Ct.App.1998)).

ANALYSIS

¶ 6 Relying on Mabus v. Blackstock, 1999 UT App 389, 994 P.2d 1272, Gilley argues notice of intent to revoke, required by Utah Code Ann. § 41-6-44.10, is essential to the Division’s jurisdiction over revocation proceedings. Gilley asserts the UAPA’s thirty-day time limit for appealing a final agency action to the district court does not apply to her claim that she never received notice of intent to revoke, essentially arguing the UAPA is inapplicable because the Division never obtained jurisdiction. The Division points to the UAPA, which provides, “[a] party shall file a[n appeal] for judicial review of final agency action within 30 days after the date that the order constituting the final agency action is issued,” Utah Code Ann. § 63-16b-14(3)(a), and asserts the district court correctly dismissed Gilley’s appeal, which was filed almost three months after the revocation order’s issue date.

¶ 7 Utah Code Ann. § 41-6-44.10(2)(b) requires a peace officer, after warning a driver of the consequences of refusing a chemical test and continued refusal, to serve “immediate notice of the Driver License Division’s intention to revoke the person’s privilege or license to operate a motor vehicle.” This notice must include “basic information regarding how to obtain a hearing before the Driver License Division.” Id. § 41-6-44.10 (2) (b) (iii).

¶ 8 In Mabus, this court concluded service of such notice and basic information on how to obtain a hearing “is the initiatory event under the ... statute.” 1999 UT App 389 at ¶ 8, 994 P.2d 1272. We concluded the Division’s failure to present evidence to the district court of notice of intent to revoke “ ‘rendered] the administrative revocation of appellant’s license and the derivative district court review void and the revocation a legal nullity.’ ” Id. at ¶ 11, 994 P.2d 1272 (citation omitted) (alteration in original). However, timeliness of the district court appeal was not at issue in Mabus.

¶ 9 The relevant statutes and Mabus’s holding support the district court’s conclusion that Gilley did not timely file her appeal. Section 41-6-44.10 provides, “[a]ny person whose license has been revoked by the Driver License Division under this section may seek judicial review,” and “[j]udicial review of an informal adjudicative proceeding is a trial.” Utah Code Ann. § 41-6-44.10(2)(j)(i)(ii). In reviewing agency adjudicative proceedings, the district court must comply with the requirements of Title 63, Chapter 46b of the UAPA. See Utah Code Ann. § 78-3-4(7) (1996). Under the UAPA, “[t]he district courts have jurisdiction to review by trial de novo all final agency actions resulting from informal adjudicative proceedings.” Utah Code Ann. § 63-46b-15(l)(a) (1997). The UAPA also requires the challenging party to file its appeal to the district court within thirty days of issuance of the final agency action. Id. § 63-46b-14(3)(a) (1997). Finally, at the trial de novo, the district court “shall determine all questions of fact and law and any constitutional issue presented in the pleadings.” Id. § 63-46b-15(3)(a) (emphasis added).

¶ 10 Here, the Division revoked Gil-ley’s driver license in an order dated February 25, 2001, yet Gilley filed her appeal to the district court on May 21, 2001, well beyond the UAPA’s thirty-day deadline. After the final revocation order issued, Gilley could have timely appealed to the district court for review. At the trial de novo, the Division would have had to produce “ ‘competent evidence that the revocation proceeding was initiated by’ service of immediate notice and basic information.” Mabus, 1999 UT App 389 at ¶ 9, 994 P.2d 1272 (citation omitted). Failure to provide proper notice would have made the Division’s revocation of Gilley’s license “ ‘invalid’ ” and a “ ‘legal nullity.’ ” Id. (citation omitted). However, because Gilley exceeded the UAPA’s thirty day time limit, the district court correctly dismissed Gilley’s appeal.

¶ 11 Our holding does not foreclose the pursuit of an extraordinary writ under Rule 65B of the Utah Rules of Civil Procedure. “Where no other plain, speedy and adequate remedy is available” and an “administrative agency ... has exceeded its jurisdiction,” an aggrieved party may petition the district court for an extraordinary writ. Utah R. Civ. P. 65B (a), (d)(2). In Mabus, 1999 UT App 389 at ¶ 9, 994 P.2d 1272, this court left open the question of whether the immediate notice and basic information requirements of Utah Code Ann. § 41-6-44.10(2)(b) are “jurisdictional.” Any “jurisdictional” challenge in district court beyond the UAPA’s thirty-day time limit would have to be made as an extraordinary writ. Here, Gilley’s district court challenge to the Division’s jurisdiction and request for reinstatement of Gilley’s driver licence was clearly brought in the form of an appeal. We have closely reviewed the record below and there is no indication that Gilley pursued an extraordinary writ under rule 65B.

CONCLUSION

¶ 12 Gilley’s appeal to the district court requesting reinstatement of her driver li-cence exceeded the UAPA’s thirty-day time limit. Therefore, we affirm the district court’s dismissal of her appeal.

¶ 13 I CONCUR: WILLIAM A. THORNE Jr., Judge.

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

      . Gilley also argues the district court'.s ruling violates the open courts and due process provisions of the Utah Constitution, and further argues the district court had jurisdiction to hear Gilley’s appeal pursuant to its general jurisdiction over agency adjudicative proceedings. Because these issues were not raised in the district court and are now argued for the first time on appeal to this court, we do not address them. See Williams v. Jeffs, 2002 UT App 232,¶ 9 n. 3, 57 P.3d 232.
      Furthermore, although the district court has general jurisdiction to review agency adjudicative proceedings, see Utah Code Ann. § 78-3-4(7) (1996), the district court must "comply with the requirements" of the UAPA, id., which sets clear time limits for administrative appeals to the district courts.

      . In earlier proceedings and at oral argument, Gilley claimed she did not properly receive the revocation order. However, because she did not argue this issue in her brief, we decline to address this issue. See, e.g., In re S.L.F. v. L.F., 2001 UT App 183,¶ 16, 27 P.3d 583 (noting it is " 'well settled this court need not address issues that a party has not briefed’ ”) (citations omitted).


author: KITE, Justice.

text:
    2003 WY 3
    Albert V. METZ, Jr., Appellant (Defendant), v. Kathryn K. METZ, Appellee (Plaintiff).
    No. 02-110.
    Supreme Court of Wyoming.
    Jan. 13, 2003.

      Frank R. Chapman of Beech Street Law Office, Casper, Wyoming, Representing Appellant.
    Lea Kuvinka of Kuvinka & Kuvinka, P.C., Jackson, Wyoming, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] Albert V. Metz, Jr. (husband) appeals from the property distribution portion of a divorce decree awarding his ex-wife, Kathryn K. Metz, now known as Kathryn K. Karst (wife), part of his past and future disability insurance benefits. He also claims the trial court erred in presiding over the divorce trial after hearing evidence concerning the parties’ failed settlement mediation. We find no error and affirm.

ISSUES

[¶ 2] The husband presents the following issues:

1. The trial court committed reversible error when it included [the husband’s] disability insurance benefits in the marital estate and awarded [the wife] one-half of the monthly disability insurance benefits and the sum of $75,000 for past disability insurance benefits.
2. The trial court committed reversible error when it heard [the wife’s] Motion to Enforce a Settlement Agreement and subsequently conducted a bench trial in the same divorce action.

The wife restates the issues as follows:

A. Did the trial court abuse its discretion in making a division of property designed to equalize the parties’ incomes after they had been married for 35 years and the trial court found that both parties should be left in similar economic circumstances after the divorce?
B. In absence of any motion to disqualify or objection by the Appellant/Husband prior to trial, did the trial judge commit reversible error by conducting a trial after finding in favor of the AppellanVHusband and denying the Appellee’s/Wife’s motion to enforce settlement?

FACTS

[¶ 3] In October of 1999, after thirty-three years of marriage, the wife filed for a divorce from the husband. At the time the divorce was finalized in January of 2002, both the husband and the wife were in their late fifties. The husband was a neurosurgeon who retired from his practice in July 1999 due to a medical disability relating to his knee and cervical vertebrae. Except for working as a medical research technician while the husband finished medical school and several part-time jobs over the years, the wife primarily stayed home with the couple’s two children during the marriage. She also managed the family finances throughout the marriage. At the time of the divorce, neither party was, nor did they expect in the future to be, employed full time. The husband estimated the value of the couple’s assets at approximately $3,000,000, consisting of a residence in Casper; a vacation home in Teton County; various investment, retirement, and bank accounts; future disability insurance benefits; and numerous items of personal property.

[¶ 4] One of the main areas of contention in the divorce proceedings concerned the payments from a disability insurance policy which the husband began receiving after closing his medical practice. The husband applied for the policy in 1986, and the premiums were paid out of family funds. The husband began receiving payments after his retirement in 1999. Prior to his receipt of the first payment, the parties had separated. At the time of the divorce, the husband had received $189,000 from the policy and expected to receive an additional $6,500 per month until he reached the age of sixty five. None of the disability benefits received up to the time of the divorce had been shared with the wife.

[¶ 5] The parties attempted on two occasions to resolve their differences through mediation, first with a retired district judge acting as mediator and then, on October 13, 2001, with the parties’ certified public account (who is also a licensed attorney) acting as mediator. Following the second mediation, the wife filed a motion to enforce the settlement agreement claiming the parties had reached a legally enforceable settlement agreement for which she paid valuable consideration and the husband reneged on the agreement. A hearing was held on the motion on January 4 and 7, 2002. After hearing testimony and the arguments of counsel, the trial court denied the motion to enforce the settlement agreement, finding there was not a mutual assent during the mediation sufficient to create a contract. The case proceeded to trial on January 14 through 16, 2002, and on January 23, 2002, the trial court entered findings of fact, conclusions of law, and a decree granting the divorce and dividing the property as evenly as possible between the parties. In addition to its other findings and conclusions, the trial court made the following award which the husband challenges on appeal:

2. [The wife] is awarded the sum of $2112.5[0] per month or one half of the monthly disability payments received by [the husband], whichever is greater, as a division of property to be paid by the [husband] each month so long as the [husband] continues to collect his disability benefits ...; and the sum of $75,000.00 to compensate the [wife] for past disability payments received by the [husband] during the separation and not shared with the [wife].

STANDARD OF REVIEW

[¶ 6] The husband claims the trial court abused its discretion in awarding the wife a portion of the disability benefits and presiding over the divorce trial after hearing evidence of the failed settlement. The ultimate question in determining whether an abuse of discretion occurred is whether the trial court could have reasonably concluded as it did. Horn v. Welch, 2002 WY 138, ¶ 8, 54 P.3d 754, 118 (Wyo.2002). We will not disturb a property division in a divorce case, except on clear grounds, as the trial court is usually in a better position than the appellate court to judge the parties’ needs and the merits of their positions. Paul v. Paul, 616 P.2d 707, 712 (Wyo.1980); Warren v. Warren, 361 P.2d 525, 526 (Wyo.1961).

DISCUSSION

A. Distribution of Disability Insurance Benefits

[¶ 7] The husband claims the trial court abused its discretion when it included the benefits from the disability policy in the property distribution. He argues first that the disability benefits should not have been included because they were not property which was the product of the marital union acquired during the course of the marriage by the joint efforts of the parties as Wyo. Stat. Ann. § 20-2-114 (LexisNexis 2001) has been interpreted to require. France v. France, 902 P.2d 701, 704 (Wyo.1995). He further argues that the disability benefits were separate property not subject to division under Wyo. Stat. Ann. § 20-1-201 (LexisNexis 2001).

[¶ 8] Addressing the latter statute first, this court has repeatedly held that a married person’s separately owned property, like jointly owned property, is subject to distribution in a divorce action. Mann v. Mann, 979 P.2d 497, 499 (Wyo.1999). Even assuming, therefore, that the husband properly characterizes the benefits from the disability insurance policy as separate property, they were subject to division by the trial court in the same manner as the parties’ jointly owned property.

[¶ 9] We turn next to the question of whether the trial court properly included the benefits from the disability insurance policy as property subject to equitable distribution under § 20-2-114, which provides:

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. The court may decree to either party reasonable alimony out of the estate of the other having regard for the other’s ability to pay and may order so much of the other’s real estate or the rents and profits as is necessary be assigned and set out to either party for life, or may decree a specific sum be paid by either party.

The husband correctly asserts that, under this statute, the property subject to division consisted of property which was the product of the marital union and was acquired during the course of the marriage by the parties’ joint efforts. France, 902 P.2d at 704. Applying this standard, we said in France that it was not an abuse of discretion to award the wife property she had received as a gift or by inheritance from her parents. Id. However, we do not find that holding to be particularly relevant to the facts of this case given that we are not concerned here with a gift or inheritance but are concerned with benefits from a disability policy paid for out of the marital estate during the marriage.

[¶ 10] In determining whether those benefits were properly included in the property to be divided, we look first to that portion of the benefits received by the husband before the divorce — benefits totaling $189,000, of which $75,000 was awarded to the wife. We hold the trial court did not abuse its discretion in making that award to the wife. Under the facts presented here, that portion of the disability payments from the insurance policy received by the husband prior to the divorce sübstituted for income he would have otherwise earned and was “the product of the marital union and was acquired during the course of the marriage by the joint efforts of the parties.” Id.

[¶ 11] We consider next whether disability payments which the insurance policy will provide to the husband until he turns sixty-five were properly included in the property division. In concluding that such payments should be included, the trial court said:

14. Due-to the length oh the marriage, the fact that ... the parties[’] assets were accrued exclusively during the marriage, and the fact that both parties are, for all practical purposes, retired, the Court finds that the parties’ incomes should be made as nearly equal as possible in a property division so that they will be left in similar economic circumstances after the marriage.

In light of the evidence presented, dividing the benefits of the disability policy yet to be received provided the means for leaving the parties in similar economic circumstances after the divorce.

[¶ 12] Despite the trial court’s stated purpose, the husband argues the future disability payments were not subject to division because they were not received during the marriage. The husband likens the benefits to money a spouse earns subsequent to divorce. The husband’s analysis fails to take into account the fact that these payments will be derived from an insurance policy paid for by his professional corporation during the marriage from funds which otherwise could have been used for family living expenses or invested for the family’s benefit. In this sense, the disability benefits are not like earnings post-divorce, which have no relation to the marriage.

[¶ 13] The husband’s analysis also fails to take into account that Wyoming law gives the trial court broad discretion -in divorce actions to arrive at a just and equitable property distribution based upon the evidence before it. Wyoming law also authorizes the trial court to award alimony, although we have recognized that a property award is a preferable modern substitute for alimony. Belless v. Belless, 2001 WY 41, ¶ 8, 21 P.3d 749, ¶ 8 (Wyo.2001). If the intent is to adjust the equities between the parties at the time of the divorce, as was the case here, property division, which may encompass a series of payments, is the preferable method. Id. In evaluating the question of whether a property division by the trial court is, in fact, just and equitable, we must analyze the situation from the perspective of the overall distribution of the marital assets and liabilities rather than narrowly focusing on the effects of the disposition of any one particular asset. Neuman v. Neuman, 842 P.2d 575, 579 (Wyo.1992). Here, the trial court could have awarded the wife a greater percentage of some other asset in lieu of one-half of the disability payments. However, we cannot conclude that failure to do so was an abuse of discretion. Other considerations, such as liquidity and problems with dividing other property, may well have played a part in the court’s decision.

[¶ 14] Moreover, in dividing property, the trial court must assess the parties’ respective needs and the merits of their positions. Mann, 979 P.2d at 499-500. In reviewing the trial court’s determinations in this regard,

“The function of -this court is not to constitute a reconsideration or retrial of the district court’s decision unless the same is clearly unjust and inequitable.” Kane v. Kane, ... 577 P.2d 172,174 [ (Wyo.1978) ]..
The trial court exercises a broad discretion in adjusting the rights and obligations of parties upon the dissolution of their marriage. We will not disturb the decision of the lower court unless we can say that that discretion was abused, that the result was clearly unjust and inequitable.

Grosskopf v. Grosskopf, 677 P.2d 814, 823 (Wyo.1984). Considering all the facts and circumstances of this case, the parties’ respective education and employment backgrounds, the length of their marriage, their respective contributions — both economic and noneconomic — to their home and family during the marriage, and their age and current financial circumstances, we cannot say the result reached by the trial court in this case was clearly unjust and inequitable. We, therefore, affirm the property distribution, including the division of disability benefits.

[¶ 15] In reaching this result, we are aware that other courts have held disability benefits are not marital property and are not subject to distribution upon divorce. See Gragg v. Gragg, 12 S.W.3d 412 (Tenn.2000), for a discussion of the various approaches courts have taken on the subject. However, this other precedent does not address the particular facts of this case, and, given Wyoming’s statutory scheme and prior ease law, we decline to adopt a hard and fast rule that all disability benefits are, or are not, marital property subject to distribution. Rather, the courts must make a determination on a case-by-case basis according to the particular facts giving careful consideration to the entire marital property and keeping an eye toward a just and equitable distribution. We are satisfied from the record before us that the trial court accomplished that end.

B. Bench Trial After Hearing on Settlement Efforts

[¶ 16] The husband contends the trial court abused its discretion in presiding over the divorce trial after hearing evidence concerning the parties’ settlement mediation. He claims the trial court was no longer impartial after hearing evidence concerning the failed mediation and should have ordered a change of judge for the divorce trial. The husband cites TZ Land & Cattle Co. v. Condict, 795 P.2d 1204, 1211 (Wyo.1990), in support of his claim of judicial prejudice warranting a change of judge.

[¶ 17] The change or disqualification of a judge under the circumstances presented here is governed by W.R.C.P. 40.1(b)(2), which provides in pertinent part as follows:

(2) Disqualification for Cause. Whenever the grounds for such motion become known, any party may move for a change of district judge on the ground that the presiding judge: ... (E) is biased or prejudiced against the party or the party’s counsel. The motion shall be supported by an affidavit or affidavits of any person or persons, stating sufficient facts to show the existence of such grounds.

Nothing in the record suggests, nor does the husband argue, that he moved for a change of judge or filed an affidavit showing the presiding judge was biased or prejudiced as required by W.R.C.P. 40.1(b)(2). The husband asserts his failure to file a motion with a supporting affidavit was not fatal because filing a motion is discretionary and not mandatory, the issue really fell under W.R.C.P. 40.1(b)(4) which provides for a change of judge on, the presiding judge’s own motion, and the first opportunity he had to raise the issue was on appeal. We find no merit in the husband’s claims.

[¶ 18] It is clearly the intent of W.R.C.P. 40.1(b)(2) that disqualification of a judge be initiated by the filing of a motion with a supporting affidavit. It is discretionary only in the sense that the filing of a motion is not mandated in all cases where a party believes a judge is biased; rather, the party may choose to proceed with the presiding judge despite" the suspected bias or file a motion for a change of judge. It is not discretionary, however, in the sense asserted by the husband that a party may elect to not seek disqualification by filing a motion; proceed with the presiding judge; and then, after an unfavorable outcome at trial, claim bias or prejudice for the first time on appeal. Particularly where, as here, the basis for the husband’s allegation did not arise during trial but rather arose during the hearing on the wife’s motion to enforce settlement a full week before trial, we can see no justifiable reason for the delay in raising the issue.

[¶ 19] As for the husband’s claim that the presiding judge should have ordered a change of judge on his own motion pursuant to W.R.C.P. 40.1(b)(4), we find nothing in the record before us to support the claim that a change of judge was warranted. The husband points to the trial judge’s comments which he made at the close of the evidence on the wife’s motion to enforce the settlement and after closing arguments in the same proceeding:

I want [closing arguments] to be brief because I know exactly what your positions are. I’ve made up my mind, and you’re not going to persuade me otherwise, but you’re welcome to be brief.
... These parties have used the system to quite an extent and they have been unable to resolve their differences. I’m going to resolve those differences and neither one of you may like how it gets resolved, and the waffling and all that stuff is over with now.
And there will be no mediation. And it isn’t called mediation when a case goes to trial. I’ll sit and listen to this some more and then I’m going to decide. And you’re not going to have any input in how I decide, and that’s the way it’s going to be and it may be a lot more painful than where this was when you left Denver.
And so the motion to enforce the settlement agreement is denied, and this case will go to trial as scheduled.

Neither of these comments is sufficient to form a basis for disqualification.

[¶ 20] We have defined bias and prejudice as follows: “Prejudice involves a prejudgment or forming of an opinion without sufficient knowledge or examination. Bias is a leaning of the mind or an inclination toward one person over another.” Cline v. Sawyer, 600 P.2d 725, 729 (Wyo.1979). The fair meaning of any remark made by the trial judge must be interpreted in light of the context in which it was made. Brown v. State, 816 P.2d 818, 824 (Wyo.1991). Prom the trial judge’s comments, there is no evidence of either bias or prejudice. The first comment asserted by the husband, taken in context, simply reflected the trial court heard the evidence presented by the parties; understood their positions; and, based upon the evidence, reached a decision. The comment further reflected that, while the trial court was willing to allow counsel to make closing arguments, it was firmly convinced from the evidence there was no mutual assent and the comments of counsel in closing argument would unlikely persuade it differently. There simply is nothing about the comment to suggest judicial prejudice.

[¶ 21] The second comment likewise fails to suggest prejudice on the trial court’s part. Rather, it reflects the reality of the situation — the parties were unsuccessful in their efforts to settle their differences, resolution of the dispute was now in the trial court’s hands, and the court would decide the matter based upon the evidence presented without the parties’ consensus. Again, we find nothing prejudicial in the trial court’s comment.

[¶ 22] Finally, the manner in which the hearing on the wife’s motion to enforce settlement was conducted convinces us no prejudice occurred. Early in the hearing, the husband’s counsel objected to testimony concerning the settlement terms, pointing out the issue was whether the parties had entered into an enforceable contract and whether there was a mutual assent, not the details of the failed settlement. The trial court responded as follows:

I don’t have any problem with it being appropriate that [the mediator] testifies. I’m not certain that I need to know that they put a value of “X” dollars on this asset and half went to one and half went to the other or anything like that.
I need to know if it was fully explained to them, and what evidence there was that there was an acceptance or a meeting of the minds by each of them and that sort of thing, and I think I can do that independently of the nuts and bolts terms of the agreement.

Thereafter, both the trial court and the parties’ counsel were sensitive to the necessity of not getting into the details of the settlement discussions. Under these circumstances, we find no prejudice.

[¶ 23] Affirmed.

      . Section 20-1-201 provides:
      All property belonging to a married person as his separate property which he owns at the time of his marriage or which during marriage he acquires in good faith from any person by descent or otherwise, together with all rents, issues, increase and profits, thereof, is during marriage his sole and separate property under his sole control and may be held, owned, possessed and enjoyed by him the same as though he were single. Such property is not subject to the disposal, control or interference of his spouse and is exempt from execution or attachment for the debts of his spouse if the property was not conveyed to him by his spouse in fraud of his creditors. The necessary expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, for which they may be sued jointly or separately.