author: KEITH RAPP, Presiding Judge.

text:
    2004 OK CIV APP 23
    Brian Dale DUBUC, Plaintiff/Appellant, v. Marty SIRMONS, John Richards, Wayne Morton, John Latimer, and Cathy Morton, Defendants/Appellees.
    No. 93,793.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Oct. 21, 2003.
    Rehearing Denied Dec. 22, 2003.
    Certiorari Denied Feb. 18, 2003.

      Brian Dale Dubuc, Davis Correctional Facility, Holdenville, OK, Plaintiff/Appellant, Pro Se.
    Honorable Drew Edmondson, Attorney General, Tracy Folsom Milner, Assistant Attorney General, Oklahoma City, OK, for Defendants/Appellees.
   Opinion on Remand by

KEITH RAPP, Presiding Judge.

¶ 1 The trial court plaintiff, Brian Dale Dubuc (“Dubuc”), appeals the order of dismissal and summary judgment entered by the trial court in favor of the trial court defendants, Marty Sirmons, John Richards, Wayne Morton, John Latimer, and Cathy Morton (collectively “Sirmonses”).

¶2 This matter is before this Court on remand from the Oklahoma Supreme Court after its decision in Dubuc v. Sirmons, 2001 OK 57, - P.3d -, 2001 WL 744467 (pending release). Pursuant to that decision, this Court directed that the trial court, acting as special master, institute a mmc pro tunc hearing for the purpose of supplementing the record on appeal to include the Order Denying Post Conviction Relief entered in the District Court of Tulsa County, Oklahoma, cause number CF 91 3581, styled State of Oklahoma v. Brian Dale Dubuc (Tulsa Case). Dubuc requested and was granted a further opportunity to supplement the appellate record.

¶ 3 The trial court has certified the supplemental material to this Court. Dubuc was directed to advise this Court that the proceedings were completed and he has done so by Notice filed herein on February 19, 2002.

¶ 4 Therefore, this Court finds and orders that the mmc pro tunc hearings are completed and that the record has been supplemented in accord with the decision of the Supreme Court.

BACKGROUND

¶ 5 Dubuc, an inmate in custody of the Oklahoma Department of Corrections (DOC), appealed the trial court’s order of dismissal and summary judgment entered in favor of the trial court defendants, all of whom are DOC officials or employees. He claims monetary and other relief from the defendants on the ground that he was denied access to the Appellate Courts. He asserted the defendants deprived him of meaningful access to the Appellate Courts in his attempt to appeal the denial of the post conviction relief in the Tulsa Case.

¶ 6 The Tulsa Case appeal was denied by the Oklahoma Court of Criminal Appeals as untimely. Dubuc had been convicted in Tulsa County. He filed an application for post-conviction relief on January 7, 1999. The application was denied. However, while the filing date and the date of mailing of the order was shown as February 23, 1999, the date the order denying relief was mailed to Dubuc could not be ascertained from the appellate record. This is because the Tulsa Case order was not part of the transmitted appellate record, even though the dismissal order from the Court of Criminal Appeals recited dates and that order was part of the record.

¶ 7 The Supreme Court determined that the absence of this February 23, 1999 order from the appellate record was critical to a review of the appeal. Dubuc, 2001 OK 57 at ¶¶ 11-16, — P.3d - (pending release). The Tulsa Case order is now a part of the record.

¶ 8 The Tulsa Case order was signed by the District Judge in that case on February 18, 1999. It bears a filing date stamp showing a filing date of February 23, 1999. A certified copy of the order was mailed to Dubuc on February 23, 1999, as shown by the certificate of mailing executed by the Tulsa County Court Clerk to Dubuc at the Jess Dunn Correctional Center (JDC) at Taft, Oklahoma. According to Dubuc’s verified petition, as supplemented by his response to the defendants’ motion for summary judgment and his own motion for summary judgment, he was incarcerated at Jess Dunn Correctional Center until March 19, 1999, when he was transferred to DOC’s McLeod facility.

¶ 9 Dubuc filed a notice of appeal in the Tulsa Case on March 2, 1999, within the 10-day deadline prescribed by the Oklahoma Court of Criminal Appeals (CCA). Rule 5.2(C)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1999). On March 8,1999, the District Court Clerk certified the record and on March 15, 1999, the Clerk gave notice that the record was completed. Dubuc further stated that he was unable to complete the process for his appeal while at JDC because of his transfer to the McLeod facility.

¶ 10 In addition, a person desiring to appeal an order denying post-conviction relief is required to file, within 30 days of the entry of the order, a petition in error, supporting brief, and a certified copy of the order with the Court of Criminal Appeals. 22 O.S.1991, § 1087. According to the CCA’s Rule, the deadline is thirty days from the filing of the order. Rule 5.2(C)(2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1999). Thus, under the Statute, as amplified by the CCA’s Rule, Dubuc’s time to file his appeal commenced on February 23, 1999, and the deadline to file his appeal was March 25, 1999, that is thirty days from the filing date of February 23, 1999.

¶ 11 Dubuc stated he mailed his appeal documents on March 23, 1999, from McLeod, but without payment of costs or, in lieu thereof, an affidavit informa pauperis. The Clerk of the CCA filed the documents on March 26, 1999, and assigned a case number to the appeal. The Clerk’s receipt report in the record shows that no cash cost deposit was made on March 26,1999.

¶ 12 A failure to file the required appeal documents within the time prescribed is deemed by the CCA to be a procedural bar to consideration of the appeal. Rule 5.2(C)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1999). The CCA dismissed Dubuc’s appeal as untimely stating in its Order:

On March 26, 1999, Petitioner, pro se, appealed to this Court from an Order of the District Court of Tulsa County denying his application for post conviction relief in Case No. CF-91-3581. On February 18, 1998(sic), Petitioner’s application was denied by the District Court of Tulsa County. A review of the order submitted with Petitioner’s application indicates that a certified copy of the order was sent to Petitioner on February 23, 1999. It is from this denial that Petitioner appeals.
Rule 5.2(C)(2), Rules of the Oklahoma Court of Cnminal Appeals, Title 22, Ch. 18, App. (1998) requires that an applicant desiring to appeal from the final order of the District Court under Section V of these rules, must first file a petition in error with any brief to be submitted and with a copy of the District Court order attached with the Clerk of this Court within thirty (30) days from the date of the final order of the District Court. Petitioner has failed to timely seek relief in this Court.
Accordingly, we DECLINE jurisdiction of this matter.

¶ 13 Dubuc’s lawsuit claims that Sirmons-es’ actions in failing to assist him with his affidavit caused his appeal to be dismissed. He claims that information pertinent to his account to establish indigency was obtained by prison officials on March 24, 1999, but that DOC officials prevented him from presenting the in forma pauperis affidavit as a part of the remainder of the appeal documents pertaining to the Tulsa Case.

¶ 14 Dubuc, in his motion for summary judgment, admits he knew that the deadline to file his appeal was March 25, 1999. He asserts that the appeal documents, with the exception of the in forma pauperis affidavit, were with the CCA two days prior. He further acknowledges that his affidavit was postmarked March 25, 1999, and states that it was received by the Court on March 26, 1999.

¶ 15 Dubuc states that on his arrival at McLeod on Friday, March 19, 1999, he attempted to use the library to process his appeal but was denied permission due to the hour. He further states that he learned that the library would be open on Saturday, March 20, 1999. He processed his appeal paper’s on that day, except for the affidavit. Prison documents confirm that Dubuc obtained assistance on March 20,1999.

¶ 16 Dubuc asserts that he returned on Monday, March 22, 1999, to complete his affidavit and the records confirm that he signed it on that day. Dubuc also claims he told prison personnel about his filing deadline.

¶ 17 Dubuc then asserts that, on March 22, 1999, the day he claims he told defendant Latimer about the deadline, Latimer told him not to bother anyone else about the issue and when “they got to it” the paperwork would be done. Dubuc claimed that from this moment he was subject to discipline if he again spoke about the deadline.

¶ 18 DOC prepared a report apparently in response to the trial court’s direction. The salient portions of this report deny that DOC personnel were noticed of the deadline and deny that Dubuc was in any manner denied access to assistance to file his court proceedings. The DOC records reflect that Dubuc mailed documents to the Court of Criminal Appeals beginning March 23, 1999, as he admits. The report contains a copy of DOC’s written policy which requires that an inmate notify DOC personnel of court deadlines.

¶ 19 The defendants filed a motion to dismiss and motion for summary judgment. The propositions in support of dismissal range from failure to exhaust administrative remedies to qualified and Eleventh Amendment immunities from suit. The summary judgment argued that Dubuc has failed to show he was denied access to the court by DOC personnel. Dubuc also requested summary judgment.

¶ 20 The trial court sustained the motion to dismiss and granted the defendants’ motion for summary judgment. Dubuc’s motion was denied. Dubuc appeals.

QUESTION FOR REVIEW ON REMAND

¶ 21 The Oklahoma Supreme Court delineated the issue on certiorari for review as:

[Wjhether the appeal would have failed as untimely to review the filed trial court order even if Dubuc had included his in forma pauperis affidavit with the rest of the papers that were delivered to prison officials on March 23 for filing with the clerk of the Court of Criminal Appeals.

Dubuc, 2001 OK 57 at ¶ 16, — P.3d(pending release).

ANALYSIS AND REVIEW OF QUESTION ON REMAND

¶ 22 First, this Court must, and cannot but, presume the Court of Criminal Appeals would not dismiss an appeal as untimely when, in fact, the appeal was timely. Thus, if the required documents to perfect an appeal of the Tulsa Case were received and filed by the deadline, then the appeal would not have been dismissed as untimely.

¶23 The prison officials’ investigation report (report) states Dubuc requested document preparation assistance on March 20, 1999, for his motion, petition in error and brief. He also requested assistance in preparation of his affidavit on March 22, 1999. According to the officials’ report, the status of Dubuc’s account had to be ascertained and the necessary information was received on March 23, 1999 at 3:36 P.M. The affidavit form was completed and returned to Dubuc on March 24,1999. Then Dubuc asserts that he, on March 25, 1999, sought permission to FAX the affidavit to the Court. This permission was denied by prison officials. The prison mail log shows that Dubuc mailed a document to the Court of Criminal Appeals Clerk on March 25, 1999, which was the last and final day to file the appeal, as Dubuc well knew.

¶ 24 Dubuc states that he mailed the affidavit on March 25, 1999. Moreover, his statements in his materials supporting his and opposing Sirmonses’ motion for summary judgment set forth a chronology consistent with the report.

¶ 25 Thus, all parties agree that the appeal papers, except for the affidavit, were prepared and mailed by March 23,1999, and the affidavit was finalized and mailed as of March 25, 1999. Other than the filing date of March 26, 1999, assigned by the Clerk, the record here does not reflect when any of the papers were actually received by the Clerk’s office.

¶26 The missing and unanswered fact here is what is the date on which the papers mailed on March 23, 1999, were physically received by the CCA Clerk. Thus, inherent in the Supreme Court’s statement of the issue, is the factual question: When were the materials that were mailed on March 23, 1999, physically received by the CCA? That question cannot be answered from the appellate record before this Court because it must be inferred that items mailed on one day are delivered in another locale of the state the next day or in a short time thereafter.

¶ 27 Consequently, the issue denominated by the Supreme Court as the “dispositive issue on certiorari” cannot be resolved on the record here before this Court. Dubuc, 2001 OK 57 at ¶ 11, — P.3d-emphasis original. Whether the appeal would have failed as untimely to review the filed trial court order even if Dubuc had included his fully completed in forma pauperis affidavit with the rest of the papers that were delivered to prison officials on March 23 for filing with the clerk of the Court of Criminal Appeals remains here as an unresolved question of fact.

¶ 28 It is therefore necessary to delve further into the issues of this case in order to ascertain whether the dismissal and summary judgment entered in favor of Sirmons-es was proper.

STANDARD OF REVIEW

¶29 The ajopellate court has the plenary, independent, and nondeferential authority to reexamine a trial court’s legal rulings. Neil Acquisition L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100, fn. 1. A trial court’s dismissal for failure to state a claim upon which relief can be granted involves a de novo review to ascertain whether the petition, including its exhibits, is legally sufficient. Indiana National Bank v. State Dept. of Human Services, 1994 OK 98, 880 P.2d 371; Gay v. Akin, 1988 OK 150, 766 P.2d 985.

¶30 The appellate standard of review in summary judgment is de novo. Kirkpatrick v. Chrysler Corp., 1996 OK 136, ¶ 2, 920 P.2d 122, 124. This means without deference. Hulett v. First National Bank & Trust Co. in Clinton, 1998 OK 21, 956 P.2d 879; see Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). The pleadings and evidentiary materials will be examined to determine what facts are material and whether there is a substantial controversy as to one material fact. Sperling v. Delay, 1998 OK 81, 963 P.2d 577; Malson v. Palmer Broadcasting Group, 1997 OK 42, 936 P.2d 940. All inferences and conclusions to be drawn from the materials must be viewed in a light most favorable to the non-moving party. Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051. Even though the facts may be uneontroverted if reasonable persons may draw different conclusions from these facts summary judgment must be denied. Bird v. Coleman, 1997 OK 44, 939 P.2d 1123. Summary judgment is proper only if the record reveals uncontroverted material facts failing to support any legitimate inference in favor of the non-moving party. N.C. Corff Partnership, Ltd. v. OXY USA, Inc., 1996 OK CIV APP 92, 929 P.2d 288. When genuine issues of material fact exist summary judgment should be denied and the question becomes one for determination by the trier of fact. Brown v. Oklahoma State Bank & Trust Co. of Vinita, 1993 OK 117, 860 P.2d 230; Flowers v. Stanley, 1957 OK 237, 316 P.2d 840. Because the trial court has the limited role of determining whether there are any such issues of fact, it may not determine fact issues on a motion for summary judgment nor may it weigh the evidence. Stuckey v. Young Exploration Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730.

¶ 31 One who defends against a claim and who does not bear the burden of proof is not required to negate the plaintiffs claims or theories in order to prevail on motion for summary judgment. When, as here, a defendant moves for summary judgment without relying upon an affirmative defense, the defendant must show that: 1) no substantial factual controversy exists as to at least one fact essential to plaintiffs theory of the cause of action; and, 2) the fact is in defendant’s favor. Once a defendant has introduced evi-dentiary materials to establish these points, the plaintiff then has the burden of showing that evidence is available which justifies a trial of the issue. Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶ 8, 977 P.2d 1040, 1044; Stephens v. Yamaha Motor Co., Ltd. Japan, 1981 OK 42, ¶ 11, 627 P.2d 439, 441; Runyon v. Reid, 1973 OK 25, ¶¶ 12-13, 510 P.2d 943, 946.

¶ 32 On the other hand, when the defendant, as here also, relies upon an affirmative defense, then the defendant, as the party with the burden of proof, must meet the same standards as a plaintiff movant. Akin, 1998 OK 102 at ¶ 9, 977 P.2d at 1044.

ANALYSIS AND REVIEW

Dismissal Based Upon Relief Demanded

¶ 33 Even though an undocumented gap in the record exists concerning the date on which materials mailed on March 23, 1999, were physically received, the ultimate inquiry remains: What relief, if any, can be afforded Dubuc? He has asked for reinstatement of his appeal and neither the trial court nor this Court has authority to grant such relief. He has requested a pardon or dismissal of his criminal conviction in the Tulsa Case. Again, that form of relief cannot be granted by the trial court or this Court.

¶ 34 Dubuc’s claim for these forms of relief were properly dismissed.

Summary Judgment Review

Defendants W. Morton, C. Morton, and Richards

¶ 35 Dubuc’s only allegation against W. Morton is that W. Morton advised the staff, “Watch this one, he think’s he’s a lawyer, and he can push us around with his smart mouth lawyer stuff.” There are no facts in the record to even infer that W. Morton was involved with any actions that Dubuc claims deprived him of access to the courts.

¶ 36 Defendant C. Morton is a case manager. Even Dubue’s version shows that this person in no way hindered but rather tried to assist him on the afternoon of March 25, 1999, by seeking to ascertain whether Dubuc could FAX his materials. Defendant Richards is a Warden’s Assistant and he was called by C. Morton concerning use of the FAX. He merely checked on whether this was permitted and reported to C. Morton that inmates were not permitted use of the FAX machines.

¶ 37 Dubuc’s claims against these persons are clearly mean spirited, frivolous and subject to dismissal with prejudice. 57 O.S. Supp.2000, § 566(A)(2). Summary judgment was proper as to each of the individuals, W. Morton, C. Morton and J. Richards.

Summary Judgment Review

Defendants Sirmons and Latimer

¶ 38 Record review reveals that Du-buc’s appeal is here subject to the rule of res judicata for the reasons set forth in subsequent paragraphs.

¶ 39 The Oklahoma Supreme Court remanded this case for this Court to determine whether prison officials did anything in the processing of Dubuc’s pauper’s affidavit to thwart an appeal he was attempting to file with the Court of Criminal Appeals. In remanding this case, the Oklahoma Supreme Court directed that Dubuc be allowed to supplement the record. Dubuc, at his request, was allowed to supplement the record. One of the items that Dubuc provided in his supplement to the record was an order by the Court of Criminal Appeals denying him leave to file the appeal in question out of time.

¶ 40 The significance of this order is twofold and dispositive. First, it indicates that Dubuc was not absolutely precluded from pursuing his appeal simply because his initial filing of the appeal was not timely. Court of Criminal Appeals Rule 2.1(E)(1) allows an appeal out of time upon a showing that an inmate “was denied an appeal through no fault of his/her own.” Secondly, the order reflects Dubuc sought review and relief set forth in Rule 2.1(E)(1) and that the Court of Criminal Appeals expressly heard and decided whether Dubuc was denied an appeal through no fault of his own. In making this determination, the Court of Criminal Appeals necessarily considered any fault by prison officials in handling or delaying the paupers affidavit.

¶41 The order denying Dubuc’s leave to file out of time specifically addresses inmate Dubuc’s allegation that “his application to appeal ... was timely filed ... but he failed to include a paupers affidavit [due to] delays in acquiring the information for the paupers affidavit that were beyond his control.” The Court of Criminal Appeals noted Dubuc “does not explain why he waited ... to finalize his appeal” and then ruled that there was “nothing in [Dubuc’s] application to support his claim that he was denied an appeal through no fault of his own.” The Court generally observed, “It is Petitioner’s responsibility to comply with this Court’s Rules when filing pleadings with this Court” and specifically stressed, “Timely submission of the required affidavit was Petitioner’s responsibility.” In other words, Dubuc’s loss of access to the courts in the form of an appeal to the Court of Criminal Appeals occurred because he did not meet his burden to show the untimely appeal was due to fault by someone other than himself.

¶ 42 The process afforded by Rule 2.1(E)(1) gave Dubuc a full and fair opportunity to litigate any and all issues concerning “fault” for his untimely appeal, including “fault” on the part of prison officials (whether intentional or negligent) that was beyond his control. Having pursued this course to a final conclusion before the Court of Criminal Appeals, Dubuc cannot here again relitigate allegations of fault by the prison officials as a basis for a cause of action for denial of access to the courts.

¶ 43 Stated another way, a claim here in this Court against the prison officials for some “fault” on their part that may have affected Dubuc’s access to the courts (i.e., appeal to the Court of Criminal Appeals) is precluded by a prior adjudication of this issue adverse to him. Therefore, any such claim by Dubuc (whether based on state law or § 1983) does not he as a matter of law.

¶ 44 Therefore, the trial court was correct in dismissing the Defendants Sirmons and Latimer. The judgment of the trial court is affirmed.

¶ 45 AFFIRMED.

TAYLOR, J., and REIF, J. (sitting by designation), concur.

      . Incorporating the date of mailing the order to Duboc here does not alter the timing as the mailing date and the filing date are identical, February 23, 1999. Moreover, in an analogous situation, the CCA does not recognize the "mailbox rule” for purposes of timely filing of appeals to that Court. Hunnicutt v. State, 1997 OK Cr 77, 952 P.2d 988.

      . In matters "criminal in nature” the CCA has exclusive appellate jurisdiction. Smith v. Oklahoma Dept. of Corrections, 2001 OK 95, ¶ 1, 37 P.3d 872, 873.

      .The 1998 date is clearly a typographical error. In any event, whether the Court computed the deadline from February 18, 1998, or February 18, 1999, or February 23, 1999, the filing date shown by the Court of Criminal Appeals of March 26, 1999, fell outside the thirty day period. The issue of whether Dubuc was prevented from access to the courts by prison officials would not have been resolved by reference to tire Court's order under the Supreme Court's decision remanding the matter to this Court for further review.

      . In the same document he stated that he mailed the materials on March 23, 1999, so the only way that the documents could be "filed" two days before the deadline would be to apply the mailbox rule, which is not available in the CCA. See note 1.

      . Facilities are available at the law library to assist inmates with the preparation and filing of court matters.

      . The DOC report appears to be patterned after the procedure approved in Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978). Under Federal law the U.S. District Court may dismiss the prisoner's action at any time on grounds such as the action is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). The trial court in Martinez directed that an investigation be conducted and then to develop what amounted to an administrative record. Whether that procedure, which would essentially lead to a motion to dismiss or motion for summary judgment under state procedure, is appropriate in Oklahoma state courts in the absence of statutory authority is not in issue before this Court. Moreover, the record here developed apparently made no attempt to take evidence from the complaining party, Dubuc, as was done in Martinez. This failure left factual disputes unresolved, such as, whether Dubuc pursued his administrative grievance remedy before seeking District Court relief or whether such pursuit was futile and thus excused and whether he timely notified DOC personnel of his deadline.

      . A person desiring to appeal an order denying post-conviction relief is required to file, with the Court of Criminal Appeals within 30 days of Üie order, a petition in error, supporting brief, and certified copy of the order. 22 O.S.1991, § 1087; Rule 5.2(C)(2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, ch. 18, App. (1999). Although neither the Rule nor the Order Dismissing Dubuc's appeal mention provision for payment of costs, the Court requires provision for costs as a necessary element of perfecting an appeal. Dubuc, 2001 OK 57 at ¶ 12, - P.3d - (pending release); Behrens v. Patterson, 1997 OK CR 76, ¶ 3, 952 P.2d 990, 991.

      . See note 4.

      . While the words "undocumented gap” were used, there is a strong probability that the reason the CCA's clerk did so was that he was acting in accord with the holdings in Hunnicutt v. State, 1997 OK CR 77, 952 P.2d 988, and Behrens v. Patterson, 1997 OK CR 76, 952 P.2d 990, by retaining the documents as received and did not process or "file” them until all required for filing were present and then did so.

      . The CCA has exclusive jurisdiction in matters criminal in nature.


source: Caselaw Access Project

author: KENNETH L. BUETTNER, Judge.

license: Public Domain

text:
    2004 OK CIV APP 22
    CELESTICA INC. and The Hartford Insurance Company of the Midwest, Petitioners, v. Phyllis G. HINES, Lucent Technologies, Liberty Mutual Insurance Company, and The Workers’ Compensation Court, Respondents.
    No. 99,354.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Dec. 18, 2003.
    Certiorari Denied Feb. 23, 2004.

      James S. Daniel, Paul A. Scott, Paul Scott & Associates, Oklahoma City, OK, for Petitioners.
    Arlen E. Fielden, Crowe & Dunlevy, Oklahoma City, OK, for Respondents Lucent Technologies and Liberty Mutual Insurance Company.
   Opinion by

KENNETH L. BUETTNER, Judge.

¶ 1 Petitioners Celestica Inc. and The Hartford Insurance Company of the Midwest (Celestica) seek review of an order of the Workers’ Compensation Court which found that Respondent Phyllis G. Hines had sustained a work-related cumulative trauma injury and ordered Celestica, as Hines’s last employer for more than 90 days, to pay all of the compensation award. Celestica asserts that the trial court should have apportioned liability for compensation between it and Respondent Lucent Technologies (Lucent). Because we find the trial court correctly applied the statutory provision for determining liability between subsequent employers, we sustain its order.

¶ 2 In her Form 3 filed February 18, 2003, Hines asserted that she suffered cumulative trauma injuries to the hands, arms, and shoulders while employed by Lucent and Celestica. Hines listed November 2001 as the date of last exposure, but indicated the injury was aggravated in April 2002. Celes-tica filed its Form 10 March 29, 2003, in which it denied that Hines had sustained an injury arising out of and in the course of her employment.

¶ 3 Trial was held May 7, 2003, and the Workers’ Compensation Court issued its Order May 16, 2003. In its Order, the court found that Hines had sustained cumulative trauma injuries to the left hand, left thumb, left arm, right arm, left shoulder, and neck arising out of and in the course of her employment. The court ordered temporary total disability from March 15, 2003 and continuing. Pertinent to this review pi'oceeding, the court found that Hines worked for Lu-cent from the time Lucent took over the plant from A.T. & T. in 1996 and continuing until December 1, 2001. The court found that Hines sustained cumulative trauma to the body parts listed throughout that period of time. The court further found that Hines worked for Celestica from December 1, 2001 to March 14, 2003 and that she sustained cumulative trauma to the body parts listed throughout that period of time as well. The court noted that 85 O.S.2001 § 11(B)(5) provides that in cumulative trauma cases, “the last employer in whose employment the employee was last injuriously exposed to the trauma during a period of a least ninety (90) days or more ... shall alone be liable therefor, without right of contribution from any prior employer.... ” The court therefore concluded that Celestica was liable for all the benefits awarded. The court denied Celesti-ca’s argument that Section 11(B)(5) was inapplicable in this case. The court also denied Celestica’s assertion that application of Section 11(B)(5) would result in a miscarriage of justice.

¶ 4 Decisions of fact made by the Workers’ Compensation Court will be sustained if they are supported by competent evidence. Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548. In this case the parties have not challenged the court’s factual findings. Instead, Celestica has raised a legal challenge to the applicability of § 11(B)(5). We review the Workers’ Compensation Court’s decisions on issues of law de novo. B.E. & K. Const. v. Abbott, 2002 OK 75, 59 P.3d 38, n. 1.

V 5 In this review proceeding, Celestica challenges the application of 85 O.S.2001 § 11(B)(5). That subsection provides:

B. Liability of any person, firm, or corporation having an interest in the subject matter, employers and contracting employers, general or intermediate, for compensation under the Workers’ Compensation Act, when other than the immediate employer of the injured employee, shall be as follows:
5. Where compensation is payable for an injury resulting from cumulative trauma, the last employer in whose employment the employee was last injuriously exposed to the trauma during a period of at least ninety (90) days or more, and the insurance carrier, if any, on the risk when the employee was last so exposed under such employer, shall alone be liable therefor, without right of contribution from any pri- or employer or insurance carrier. If there is no employer in whose employment the employee was last injuriously exposed to the trauma for a period of at least ninety (90) days, then the last employer in whose employment the employee was last injuriously exposed to the trauma and the insur-anee carrier, if any, on the risk when such employee was last so exposed under such employer, shall be liable therefor, with right to contribution from any prior employer or insurance carrier.

Subsection 11(B)(5) became effective October 23, 2001. Hines began working for Celestica December 1, 2001, after the effective date of the statute.

¶ 6 Before the enactment of subsection 11(B)(5), in cumulative trauma cases involving multiple employers, the Workers’ Compensation Court apportioned the compensation award among the employers. See Kerr Glass Co. v. Wilson, 1994 OK CIV APP 69, 880 P.2d 414. In Kerr Glass, the claimant was employed by Kerr Glass for over nine years until Ball Incon Glass took over the plant. Six months later, the claimant sought workers’ compensation benefits for cumulative trauma injuries. The Workers’ Compensation Court apportioned the compensation award between Kerr Glass (95%) and Ball Incon Glass (5%). On appeal, Kerr Glass argued that Ball Incon should be held solely liable based on the last injurious exposure rule. Kerr Glass asserted that the Workers’ Compensation Act previously had been amended to provide that the statute of limitations for cumulative trauma injuries began to run on the date of last injurious exposure, citing 85 O.S.1991 § 43(A). Kerr Glass also asserted that 85 O.S.1991 § 11(4) provided that in cases of occupational disease, the employer in whose employment the employee was last injuriously exposed was solely liable, without right of apportionment. Kerr Glass argued that because both statutes used the last injurious exposure as the relevant date, then compensation for cumulative trauma cases should not be apportioned, and that instead, the employer in whose employment the claimant was last injuriously exposed should be solely liable.

¶ 7 The Court of Civil Appeals responded, however, that 85 O.S.1991 § 11(4) addressed only occupational disease, which it distinguished from cumulative trauma. Id. at ¶ 14. The court recognized its earlier holdings which rejected application of the last exposure rule to cumulative trauma cases and instead apportioned liability between multiple employers. Id. at ¶ 13. In Kerr Glass, the court opined “(i)f the Legislature had intended § 11(4) to apply to cumulative trauma injuries, it would have so provided by expressly amending that section.” Id. at ¶ 16. The court sustained the order apportioning the compensation award between the two employers. Id. at ¶ 18.

¶ 8 The Oklahoma Supreme Court reiterated the distinction between cumulative trauma and occupational disease in Rankin v. Ford Motor Co., 1996 OK 94, 925 P.2d 39. Celestica urges in this proceeding that Rankin established that the date of injury in cumulative trauma cases is the date of awareness. In Rankin, the claimant worked for only one employer, but the parties disputed whether the date of awareness or date of last exposure was the “time of injury” and therefore the date on which compensation rates were calculated. The court noted that the Court of Civil Appeals had previously analogized cumulative trauma cases to occupational disease cases, but in Rankin, the court rejected that analogy and held that the date of awareness is the date of injury for purposes of setting the compensation rate in cumulative trauma cases. Id. at ¶¶ 4-5. The court then offered the following analysis of the statutory distinction between cumulative trauma and occupational disease:

The significance of the distinction between accidental injury and occupational disease is that under 85 O.S.1991 § 11.4, ‘where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease ... shall alone be liable therefore, without right of contribution from any pri- or employer.’ ... This requirement is ordinarily referred to as the ‘last exposure doctrine.’
The last exposure doctrine applies only in occupational disease cases, not in cumulative trauma cases with regard to wage rate disputes. For statute of limitations purposes, the time to file a claim of this type starts with the date of last exposure. In this case, however, the statute of limitations is not an issue.
Both the legislature and this court have drawn a clear distinction between cumulative trauma cases, which are accidental injuries, ... and occupational disease.

Id. at ¶¶ 7-9. The court went on to conclude that the amendment of the statute of limitations for cumulative trauma cases to the date of last exposure did not amend the date of injury for cumulative trauma cases to the date of last exposure simply because § 11(4) provided for the last exposure doctrine in occupational disease cases. Id. at ¶ 11.

¶ 9 Since Kerr Glass and Rankin, the Legislature has amended § 11 by adding subsection 11(B)(5), which is substantially similar to the prior § 11(4), except that § 11(B)(5) expressly applies the last exposure doctrine to cumulative trauma eases, while § 11(B)(4) remains the statute addressing the last exposure doctrine regarding occupational disease. The only difference is that a claimant must have worked for the last employer for 90 days before the last employer will be held solely liable for the compensation in a cumulative trauma case. The distinction made in Kerr Glass and Rankin, followed by the amendment to § 11, requires our conclusion that the Legislature intended to make the last exposure doctrine apply to cumulative trauma cases, both for determination of the date of injury and for the determination of the liable employer in cases of multiple employers. For this reason, we disagree with Celestica’s contention that the application of § 11(B)(5) in this case resulted in an impermissible retroactive effect. Additionally, even if we were to conclude that the awareness doctrine continued to determine the date of injury, despite the amendment to § 11, the Workers’ Compensation Court found that Hines became aware of her work-related injury November 1, 2001, which was after the effective date of § 11(B)(5). We therefore also reject Celestica’s argument that the compensation award must be apportioned using the law in effect at the time of injury.

¶ 10 Celestica’s remaining argument is that § 11(B)(5) violates its constitutional due process rights to notice. We first note that Celestiea took over the plant after the effective date of the statute and was charged with notice of the law in effect at that time. Additionally, Celestiea has failed to cite any authority to support its argument that the last exposure rule is unconstitutional. Indeed, the last exposure doctrine, in occupational disease cases, has long been upheld. See Parks v. Flint Steel Corp., 1988 OK 64, 755 P.2d 680, which explained:

In Oklahoma, the last injurious exposure rule is designed to apply in situations where an employee contracts an “occupational disease,” and then establishes that such disability resulted from causal conditions at two or more places of successive employment. Smith v. Workers’ Compensation Court, 618 P.2d 942 (Okl.1980). The substantive nature of the rule assigns liability between successive employers. The rule also relieves the employee from proving specific medical causation as to any particular employer or insurance carrier of those potentially liable for the disability. Thus, the last employment that bears a causal relation to that disability, i.e. by providing some potentially causal conditions or contributory exposure, is deemed to have caused the disease, even though the employee has not proved the last employment was the actual cause of the disability.

Id. at 683. The Parks court then distinguished accidental injuries, including cumulative trauma cases, which it found were not governed by the last exposure doctrine. Id. Accordingly, we find no support for Celesti-ca’s argument that the last exposure rule is unconstitutional. And, as noted above, the amendment of § 11 to add § 11(B)(5) shows a legislative intent to alter the holdings in Parks, Rankin and other cases which declined to apply the last exposure rule to cumulative trauma cases.

¶ 11 Celestiea has not challenged the trial court’s factual findings. We have found no error of law in the court’s application of the provisions of 85 O.S.2001 § 11(B)(5) to make Celestiea solely liable for Hines’s cumulative trauma injury where Celestiea was the employer for at least 90 days during which time Hines was last exposed to the work-related harm. Accordingly, the order of the Workers’ Compensation Court is SUSTAINED.

ADAMS, P.J., and JOPLIN, C.J., concur.

      . Now§ 11(B)(4), that section provides:
      B. Liability of any person, firm, or corporation having an interest in the subject matter, employers and, contracting employers, general or intermediate, for compensation under the Workers’ Compensation Act, when other than the immediate employer of the injured employee, shall be as follows:

      4. Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier; provided, however, that in the case of silicosis or asbestosis, the only employer and insurance carrier liable shall be the last employer in whose employment the employee was last exposed to harmful quantities of silicon dioxide (SiO 2) dust on each of at least sixty (60) days or more, and the insurance carrier, if any, on the risk when the employee was last so exposed under such employer.

      . Citing Pauley v. Lummus Construction, 1992 OK CIV APP 96, 836 P.2d 692 (declined to follow by Oklahoma Petroleum Workers' Compensation Ass’n v. Mid-Continent Cas. Co., 1994 OK CIV APP 107, 887 P.2d 335, based on finding that cumulative hearing loss not divisible), and Lummus Construction v. Vancourt, 1992 OK CIV APP 113, 838 P.2d 43.


text:
    2004 OK CIV APP 26
    Edward F. HALL, Petitioner, v. SHEFFIELD STEEL CORPORATION and the Workers’ Compensation Court, Respondents.
    No. 99,605.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Decided Dec. 18, 2003.
    Certiorari Denied March 1, 2004.

      Susan H. Jones, Wilson Jones, P.C., Tulsa, OK, for Petitioner.
    Madalene A.B. Witterholt, Nora R. O’Neill, Crowe & Dunlevy, P.C., Tulsa, OK, for Respondent Sheffield Steel Corporation.
   Opinion by

KENNETH L. BUETTNER, Judge.

¶ 1 Edward F. Hall injured his back while working for Sheffield Steel in 1989 and was found to have a 20% permanent impairment because of his accident. He later moved for a change of condition for the worse and an additional 3% permanent impairment was adjudicated in 1999. In the 1999 order, the Workers’ Compensation Court also ordered Sheffield Steel to provide Hall with “continuing medical care in the nature of prescription medication (prescription medication does not include injections) and monthly visits, with Dr. Feild.” The trial court denied Hall’s 2003 request for a “medical maintenance” hot tub with whirlpool. We sustain.

¶ 2 The record does not contain any formal or filed request for the hot tub, but a hearing was held concerning the issue at which the court took testimony and medical documentary evidence. It then issued its order July 10, 2003 stating:

THAT the prior Order of this Court dated December 16, 1999, contained a specific provision for continuing medical maintenance. That provision required the respondent to provide claimant with prescription medications and monthly office visits only. Claimant now requests, pursuant to Court directed review, a continuation of the prescription medication and office visits and also a hot tub. The hot tub was not covered by the prior orders directive concerning prescription medication. [Emphasis in original.] Further, the claimant has not filed a new motion to re-open to address the additional maintenance request of a hot tub. Therefore, claimant’s request for a hot tub is denied as not falling under the Court’s original Order for continuing medical maintenance nor as being requested pursuant to a new Motion to re-open.

¶ 3 Hall claims he does not need to file a motion to re-open and change of condition for the worse because the medical maintenance clause in his 1999 order covers the request for a hot tub. We disagree.

¶ 4 The 1999 order specifically provided for prescription medication (not injections) and doctor visits to maintain his medical condition. It did not include a hot tub, or any other devices which might temporarily relieve Hall’s back pain and give him comfort, such as a special bed mattress or vibrating chair pad. Sheffield Steel voluntarily supplied him with a TENS unit, but that was a generosity outside the order.

¶ 5 In Armstrong v. Unit Drilling, 2002 OK 17, 43 P.3d 383, a claimant had been adjudged permanently and totally disabled in 1993 as a result of his heart attack. Armstrong had sought medical in 1993 and although there was no specific order with respect to medical maintenance, employer paid for his prescription medicines for the next six years. Employer then declined to pay for the medications. The Oklahoma Supreme Court held that the parties and the judge apparently interpreted the 1999 order as requiring the employer to pay for the continuing prescription expenses. It then stated, at ¶ 13, p. 386:

We further direct, however, that only those medications Respondents paid for during the six years following the 1993 order are covered here. Any additional medications are expressly not covered by this opinion. Armstrong would be required to establish that his condition had changed for the worse and that the change was causally related to his original on-the-job injury as a prerequisite to establishing a right to an order requiring payment for additional medications. Bill Hodges Truck, 1989 OK 86 at ¶ 6, 774 P.2d 1063.

¶ 6 By analogy to Armstrong, only those things first authorized in the medical maintenance order may be brought to the court’s attention in any manner other than a motion to re-open for change of condition for the worse. For example, in Leach v. Hamilton Trucking Company, 2002 OK CIV APP 11, 39 P.3d 824, a worker was found to have suffered compensable permanent partial bin-aural hearing loss. The employer was ordered to furnish the worker with hearing aids. When the worker could no longer have the hearing aids repaired, he asked for new ones. Employer objected stating the statute of limitations had run. The Court of Civil Appeals found that the hearing aids were medical maintenance (providing comfort while maintaining worker’s present condition) and that there was no limitation period for such things. Employer was required to furnish the employee with hearing aids until an order of the Workers’ Compensation Court that the aids were not necessary.

¶ 7 Employer is responsible for the specific medical maintenance the Workers’ Compensation Court orders. It is not responsible for any other arguably maintenance-type materials without a court order pursuant to a motion to re-open. For the reason expressed, we SUSTAIN the order of the Workers’ Compensation Court.

ADAMS, P.J., and JOPLIN, C.J., concur.


author: LARRY JOPLIN, Judge.

text:
    2004 OK CIV APP 24
    RANCHWOOD AUTO LUBE and Comp-Source Oklahoma, Petitioners, v. James Robert WOESSNER and the Workers’ Compensation Court, Respondents.
    No. 99,718.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Feb. 6, 2004.

      Jeffrey D. Black, Bonham & Howard, Oklahoma City, OK, for Petitioners.
    Michael J. Harkey, Oklahoma City, OK, for Respondent.
   Opinion by

LARRY JOPLIN, Judge.

¶ 1 Petitioners Ranchwood Auto Lube and Compsource Oklahoma (collectively, Employer) seek review of an order of a three-judge panel of the Workers’ Compensation Court, affirming the trial court’s award of benefits for additional temporary total disability (TTD) to Respondent James Robert Woess-ner (Claimant). In this proceeding, Employer challenges the award of additional TTD as affected on a procedure not complying with 85 O.S. § 22(2)(b).

¶2 On or about March 7, 2002, Claimant allegedly suffered injury to his neck while performing the duties of his employment on Employer’s premises. Claimant filed a Form 3 to commence the instant action on April 11, 2002, and subsequently sought benefits for TTD and medical treatment.

¶ 3 By order filed August 15, 2002 after a hearing, the trial court determined that Claimant suffered a compensable injury as alleged and awarded benefits:

-3.-
THAT as a result of said injury, [Cjlaim-ant has been [TTD] and is still [TTD] and in need of further medical treatment, care and attention, and is entitled to compensation for such disability. Compensation is due at the rate of $315.00 per week from April 25, 2002 to DATE, a period of 15 weeks and 4 days in the amount of $4,977.00 (lien wage earned by the [Claimant at any time from March 7, 2002 and continuing). Compensation shall continue for and during [Claimant’s period of TTD, not to exceed 52 weeks.

By order nunc pro tunc filed September 10, 2002, the trial court vacated paragraph three of its August order and substituted a new paragraph three, which provided:

THAT as a result of said injury, [Claimant has been [TTD] and is still [TTD] and in need of further medical treatment, care and attention, and is entitled to compensation for such disability. Compensation is due at the rate of $315.00 per week from April 25, 2002 to DATE, a period of 15 weeks and 4 days in the amount of $4,977.00 (less wages earned). Compensation shall continue for and during [C]laim-ant’s period of TTD, not to exceed 52 weeks.

¶ 4 Employer paid Claimant weekly TTD for 52 weeks as ordered, then ceased payments. After an unscheduled and untran-scribed conference with counsel for Claimant and Employer on May 19, 2003, the trial court entered an order, filed May 23, 2003, granting Claimant benefits for an additional 52 weeks of TTD:

The Court having considered the evidence and records on file, and being well and fully advised in the premises FINDS AND ORDERS AS FOLLOWS:
-1.-
THAT the [Employer] is directed to continue the payment of [TTD] benefits not to exceed 52 weeks from the date of filing of this order.

¶ 5 Employer appealed to a three-judge panel, alleging: (1) “the trial court erred in determining Claimant had a compensable injury,” (2) “the trial court erred in awarding [TTD] benefits to continue for a period of time not to exceed 52 weeks,” and (3) “the Court order is contrary to the evidence presented.” On consideration of the record and argument, the three-judge panel affirmed by a 2-1 vote. Employer now seeks review in this Court.

¶ 6 In its first proposition, Employer asserts the trial court’s initial order granting TTD for a period “not to exceed 52 weeks” clearly evinces a judicial determination that the claim is governed by 85 O.S. § 22(2)(b), which provides:

With respect to injuries occurring on or after November 4, 1994, in eases of temporary total disability, seventy percent (70%) of the employee’s average weekly wages shall be paid to the employee during the continuance thereof, but not in excess of fifty-two (52) weeks, except as otherwise provided in the Workers’ Compensation Act. Provided, after compensation has been paid for a period of forty-two (42) weeks, the employee may request a review of the case by a judge of the Court for continued temporary total disability benefits provided by the Workers’ Compensation Act. Upon a finding that benefits should be extended beyond the initial fifty-two-week period, compensation may be continued for additional successive fifty-two-week periods, provided the employee has requested review of the case at forty-two (42) weeks during each period involved, and upon a finding by the Court that benefits should be extended. Total payments of compensation for temporary total disability may not exceed a maximum of three hundred (300) weeks in the aggregate.

(Emphasis added.) So, says Employer, because Claimant did not request review and extension of TTD “after compensation has been paid for a period of forty-two (42) weeks,” but before expiration of “the initial fifty-two-week period,” Claimant is not entitled to additional benefits for TTD.

¶ 7 Claimant responds, asserting that because his injury occurred after November 1, 1997, his right to TTD is governed by 85 O.S. § 22(2)(c), which provides:

With respect to injuries occurring on or after November 1, 1997, total payments of compensation for temporary total disability may not exceed a maximum of one hundred fifty-six (156) weeks in the aggregate except for good cause shown, as determined by the Court.

So, says Claimant, because § 22(2)(c) controls and allows him TTD of “a maximum of one hundred fifty-six (156) weeks in the aggregate,” there is no requirement for a forty-two week application for review, nor could Employer terminate TTD pursuant to the review-and-extension provisions of § 22(2)(b).

¶ 8 Prior to November 4, 1994, § 22(2) imposed a 150-week limit on an award of benefits for TTD. However, that version of § 22(2) permitted an award of an additional 150 weeks of TTD on application to and review by the Workers’ Compensation Court “after one-hundred forty (140) weeks.”

¶ 9 Effective November 4, 1994, the Legislature amended § 22(2). By the 1994 amendments, the Legislature designated the existing section as § 22(2)(a) to apply “with respect to injuries occurring before the effective date of the” amendment, and added § 22(2)(b) “[w]ith respect to injuries occurring on or after the effective date of the” amendment. New § 22(2)(b) limited benefits for TTD to one 52-week period, subject to extension for “additional successive fifty-two-week periods, provided the employee has requested review of the case at forty-two (42) weeks during each period involved, and upon a finding that benefits should be extended,” but not to “exceed a maximum of three hundred weeks in the aggregate.”

¶ 10 Effective November 1, 1997, the Legislature again amended § 22(2). The Legislature made § 22(2)(a) applicable “with respect to injuries occurring before November 4, 1994,” and made § 22(2)(b) applicable “with respect to injuries occurring on or after November 4, 1994.” The Legislature also added § 22(2)(c), applicable “with respect to injuries occurring on or after November 1, 1997,” and limiting aggregate TTD benefits to 156 weeks “except for good cause shown, as determined by the [Workers’ Compensation] Court.”

¶ 11 Section 22(2) has since remained substantially unchanged. The problem posed by the present case, however, is the absence in subsection (c) of the application/review/extension provisions of (a) and (b). We are nevertheless bound by the plain language of the statute, and must read its various provisions as a harmonious whole, giving effect to each. See, e.g., TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 5, 829 P.2d 15, 20; Bryant v. Com’r of Dept. of Public Safety, 1996 OK 134, ¶ 11, 937 P.2d 496, 500.

¶ 12 The plain language of § 22(2)(a), (b) and (c) clearly dictates that subsection (a) applies only to injuries occurring before November 4, 1994, and limits TTD benefits for injuries occurring before that date to an initial 150-week period and one extension of 150 weeks, but not exceeding 300 weeks in the aggregate. Subsection (b) applies to injuries occurring on or after November 4, 1994, and limits TTD benefits for injuries after that date to an initial 52-week period with four extensions of 52 weeks each, but not exceeding 300 weeks in the aggregate. Subsection (c) applies to injuries occurring on or after November 1, 1997, and limits TTD benefits for injuries after that date to 156 weeks in the aggregate.

¶ 13 When (a), (b) and (c) are read together, we cannot help but believe that (c) was only intended as a limit on aggregate TTD benefits for injuries occurring after the specified date. It would be an anomalous and inconsistent construction of § 22(2) to read (c) as free from the review procedures for the extension of benefits dictated by (a) and (b).

¶ 14 We therefore hold, for injuries occurring after November 4, 1994, subsection (b) permits an award of one initial 52-week term of TTD, with the potential for up to four additional 52-week terms of TTD, but not exceeding 300 total weeks of TTD. Reading (b) and (c) together, we further hold, for injuries occurring after November 1, 1997, § 22(2)(c) permits one initial 52-week term of TTD, with the potential for up to two additional 52-week terms of TTD, but not exceeding 156 total weeks of TTD.

¶ 15 Further, we do not believe the 42-week application provision is an absolute condition precedent to an award for additional periods of TTD. By its very nature, § 22(2) anticipates that an employee may suffer TTD for a period longer than 52 weeks before reaching maximum medical improvement, and allows an award of “continued [TTD benefits] for additional successive fifty-two-week periods.” In this respect, we view the emphasized language as merely providing for uninterrupted TTD benefits. We read nothing in (a), (b) or (c) which prohibits the award of non-successive additional periods of TTD. The 42-week application provision is only necessary to maintain “continued” “additional successive” fifty-two-week “periods” of TTD. Here, the trial court’s order of May 23 began the second 52-week period of TTD after an interruption in TTD benefits. We find the lower court’s order free of legal error as alleged in the first proposition.

¶ 16 In its second proposition, Employer complains Claimant adduced no medical evidence supporting his plea for additional TTD, and benefits should not have been granted absent the requisite medical evidence so demonstrating. Bama Pie, Inc. v. Roberts, 1977 OK 100, ¶¶ 12, 13, 565 P.2d 31, 34. Claimant responds, asserting in his brief that he “advised the Court that authorization for surgery was pending!,] that no physician had released [him] to return to work[,] [that] [Employer] presented no medical evidence nor offered any explanation for termination of [TTD] other than the authority of 85 O.S. Sec. 22(2)(b),” and Employer does not dispute these assertions.

¶ 17 We have no transcript of the May 19, 2003 proceedings in the record before us. Absent a transcript of the proceedings or other record demonstrating the error of which Employer complains, we presume the Workers’ Compensation Court did not err. Enochs v. Martin Properties, Inc., 1997 OK 132, ¶ 6, 954 P.2d 124, 127.

¶ 18 The order of the three-judge panel is therefore SUSTAINED.

HANSEN, J., and MITCHELL, P.J., concur.

      . "In cases of [TTD], seventy percent (70%) of the employee’s average weekly wages shall be paid to the employee during the continuation thereof, but not in excess of one hundred fifty weeks except as otherwise provided in the Workers’ Compensation Act. Provided, after compensation [for TTD] has been paid for a period of one hundred forty weeks, the employee may request a review of the case by a judge of the [Workers’ Compensation] Court for continued [TTD] benefits provided by the Workers’ Compensation Act. Upon a finding that benefits should be extended beyond the initial one-hundred-fifty week period, compensation may be continued for an additional one hundred fifty (150) weeks.”


author: GOLDEN, Justice. VOIGT, Justice,

text:
    2004 WY 30
    In the Matter of The Application of Action Bailbonds for Remission of a Judgment of Bond Forfeiture. Jeanine BEAGLE, d/b/a Action Bailbonds, Appellant (Petitioner), v. The STATE of Wyoming, Appellee (Respondent). In the Matter of The Application of Northwest Bail Bonds, Inc. To Set Aside Bond Forfeiture. Northwest Bail Bonds, Inc., Appellant (Petitioner), v. The State of Wyoming, Appellee (Respondent).
    Nos. 03-39, 03-40.
    Supreme Court of Wyoming.
    March 25, 2004.
    Representing Appellants: Rick L. Koehmstedt of Schwartz, Bon, Walker & Stu-der, Casper, Wyoming; and John H. Robinson of Jamieson & Robinson, LLC, Casper, Wyoming.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General, Cheyenne, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[¶ 1] These matters were previously before the Court. Action Bailbonds v. State, 2002 WY 103, 49 P.3d 992 (Wyo.2002) (hereafter Action); In the Matter of Northwest Bail Bonds, Inc., 2002 WY 102, 50 P.3d 313 (Wyo.2002) (hereafter Northwest). They were remanded to the district court to take additional evidence and to consider Action’s and Northwest’s contentions that the district court should remit all, or something close to all, of the 100% bond forfeitures originally ordered by it. In the case of Action, the district court originally ordered the $5,000 bond forfeited. It later remitted to Action $1,500 of that forfeiture. On remand the district court increased the remission to $2,500. In the case of Northwest, the district court originally ordered the $7,500 bond forfeited. It later remitted to Northwest $2,500 of that forfeiture. On remand the district court increased the remission to $3,750. Both Action and Northwest contend the district court’s rulings are an abuse of discretion. We will affirm.

[¶ 2] The sole issue is again whether the district court abused its discretion in remitting only 50% of the bonds. The pertinent facts are fully set forth in our prior opinions. We will employ the same standard of review as we did in our earlier opinions.

DISCUSSION

[¶ 3] The basis for our remand was articulated in our previous decisions:

An appellate court will not interfere with a trial court’s discretionary rulings absent a clear abuse of discretion. Semler v. Semler, 924 P.2d 422, 424 (Wyo.1996). This general rule applies to decisions on motions to set aside a bond forfeiture. “[T]he decision to grant or deny a remission is a discretionary one that will only be overturned on appeal for a patent abuse of discretion amounting to arbitrary and capricious action.” Application of Allied Fidelity Ins. Co., 664 P.2d 1322, 1325 (Wyo.1983). Assessing whether there has been an abuse of discretion involves determining whether the evidence was sufficient to support the district court’s decision. Basolo v. Basolo, 907 P.2d 348, 353 (Wyo.1995). One factor in that assessment is whether the district court’s “conclusions [were] drawn from objective criteria.” Mintle v. Mintle, 764 P.2d 255, 257 (Wyo.1988) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)). The burden is upon the appellant to show an abuse of discretion. Blake v. State, 933 P.2d 474, 477 (Wyo.1997).
⅜ ⅜ ⅜ ⅜

It is important to note the procedural context of a contested bond forfeiture. W.R.Cr.P. 46(f)(1)[] provides that “[i]f there is a breach of condition of a bond, the court shall declare a forfeiture of the bail.” (Emphasis added.) Use of the word “shall” indicates that this decision is mandatory rather than discretionary. LePage v. State, Dep’t of Health, 2001 WY 26, ¶¶ 11, 12, 18 P.3d 1177, ¶¶11, 12 (Wyo.2001). The bail must be forfeited. The discretion of the district court is exercised under W.R.Cr.P. 46(f)(2):

The court may direct that a forfeiture be set aside in whole or in part, upon such conditions as the court may impose, if a person released upon execution of an appearance bond with a surety is subsequently surrendered by the surety into custody or if it otherwise appears that justice does not require the forfeiture.

These rules being structured as they are, the issue comes to the district court not by way of a motion from the State to forfeit the bail, but by way of a motion from the appellant to set aside the forfeiture. The intent and effect of this structure is to place the burden on the surety to show why the forfeiture should be set aside. State v. Martinez-Gonzales, 145 Ariz. 300, 701 P.2d 8, 10 (Ariz.App.1985); Bob Cole Bonding v. State, 340 Ark. 641, 13 S.W.3d 147, 149 (2000); State v. Hedrick, 204 W.Va. 547, 514 S.E.2d 397, 403 (1999).

Application of Allied Fidelity Ins. Co. recited both general principles and specific factors that a judge should consider when faced with a motion to set aside a bail bond forfeiture. The general principles include:

The purpose of a bail bond is not punitive. Its object is not to enrich the government or punish the defendant. Nor can it be “used as a balm to soothe the disappointment resulting from the inability to punish and rehabilitate.” ... “Neither frustration nor its kinsman vindictiveness should be of weight in tipping the scales by which the elements of the court’s decision is weighed.”

Application of Allied Fidelity Ins. Co., 664 P.2d at 1325-26 (quoting United States v. Parr, 594 F.2d 440, 444 (5th Cir.1979)).

Application of Allied Fidelity Ins. Co., at 1325-26 (citing United States v. Castaldo, 667 F.2d 20, 21 (9th Cir.1981), cert. denied 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982), and United States v. Parr, at 444) also enunciated that the district court should specifically consider in making its determination:

1. The willfulness of the defendant’s breach of conditions;
2. The reasonable relationship between the forfeiture ordered and the cost and inconvenience to the government of regaining custody of the defendant;
3. The participation of the surety in apprehending the defendant;
4. The cost, inconvenience, and prejudice suffered by the government as a result of the defendant’s breach;
5. The amount of delay caused by the defendant’s default and the stage of the proceedings at the time of the disappearance;
6. The public interest and necessity of effectuating the appearance of the defendant; and
7. Any explanation or mitigating factors presented by the defendant.

Northwest Bail Bonds, Inc., ¶¶ 6, 8-10; Action Bailbonds, ¶¶ 17-19.

[¶ 4] Our previous decisions are enhanced by the following analysis found in 3B Wright, King, & Klein, Federal Practice and Procedure: Criminal Sd § 777 (2004):

Former Rule 46(e) had contained, since 1972, the provisions that before that had been designated Rule 46(f). Pursuant to the 2002 amendments, former Rule 46(e)(2) and (4) have been redesignated back to Rule 46(f)(2) and (4). Rule 46(f)(2) provides that a forfeiture may be set aside, upon such conditions as the court may impose, if (A) the surety later surrenders into custody the person released on the surety’s appearance bond; or (B) it appears that justice does not require the enforcement of the forfeiture. Rule 46(f)(4) provides that after a judgment of default on a forfeited bond, the court may remit it in whole or in part under the conditions applying to setting aside a forfeiture. If forfeited bail has been paid into the Treasury, and a remission is later ordered, there is statutory authority for refund of the money.
These provisions of Rule 46 give the court a freer choice than it had prior to their adoption. The former law had been that the only circumstance under which the surety could avoid forfeiture was a showing that the default of his principle had not been willful. The rule is not so limited, and a showing of lack of willfulness is no longer essential. Instead the court may now take into consideration the expense and inconvenience to the government in determining whether to allow a remission. If there has been no injury to the government, or there is a satisfactory explanation for the default, remission of the entire sum may be ordered. The expense and inconvenience to the government may suggest instead a partial remission.
The district court is given wide discretion with regard to ordering a remission, and ordinarily an appellate court will not interfere with its decision, but the appellate court will reverse if the action of the trial court is an abuse of discretion.
If the surety locates the defaulting defendant, and returns him to the court, some remission is ordinarily proper, but this is not always the case, and a remission may be refused. The court should not order a remission if defendant’s failure to appear is the result of inadequate supervision of the defendant by the surety, or if the cost to the government occasioned by the default approaches the face amount of the bond, or if for any other reason the surety has failed to establish that justice does not require enforcement of the forfeiture.

[1Í 6] We have carefully reviewed the record developed in the district court after our remand. We conclude that the district court provided adequate findings and reached a sustainable conclusion in remitting 50% of the bonds at issue. We would be remiss if we did not take note that the district court was not aided by the State in resolving these important issues. Indeed, the State refused to present any evidence of substance, and its arguments foundered on a naive assumption that words such as “willfulness,” “cost,” “prejudice” and “inconvenience” applied only in a colloquial sense. In context, the language used by the rules and by the cqurts has a more precise meaning than that ascribed to it by the State. The representatives of the State evinced a lack of understanding of the technical language pertinent to this matter, as well as the applicable legal principles. The State’s arguments to the district court were puerile, and its cross-examination of cooperative witnesses was abusive and focused on irrelevant matters. The State essentially conceded that it-incurred no costs and suffered no inconvenience or prejudice. We construe the district court’s finding to conclude that neither defendant in these cases acted “willfully,” though the district court did opine that it bordered closely on it. However, the district court’s focus on the public’s interest and the court’s interest in ensuring the timely appearance of defendants in criminal matters, as well as the lack of mitigating factors which favored Action and Northwest, serve to sustain these discretionary rulings.

[¶ 6] Finally, we note that the State chose to interpret our remand as a mandate for the State and the district court to merely “go through the motions and say the words.” We view such an attitude as a dereliction of duty that is repugnant both to the courts and to the citizens of this State, and Natrona County in particular. In addition, it was the State’s contention that our former opinion was, “more than anything, this is yet another opinion of the Wyoming Supreme Court that seems to indicate they have no concept of how a busy docket runs. None. This is a classic example.” The prosecutor’s fit of pique served no role in these proceedings other than to disparage this very important process and to demonstrate his unbridled arrogance. This sort of mindless posturing serves no useful purpose.

[¶ 7] In conclusion, we hold the district court did not abuse its discretion in remitting only 50% of the bonds at issue and, thus, we affirm.

VOIGT, Justice,

specially concurring.

[¶ 8] I concur in the result and reasoning of the majority opinion. I write separately only to note that I continue to hold to the position espoused in the dissents published in the earlier incarnation of these cases.

      . Wyo. Stat. Ann. § 7-10-105 (LexisNexis 2003) provides:
      Any proceeds recovered as a result of the forfeiture of bail in any criminal case shall be paid into the county treasury to the credit of the public school fund of the county in which the defendant was admitted to bail.

      . W.R. Cr. P. 46(f) provides:
      (f) Forfeiture of bail.-—
      (1) Declaration. — If there is a breach of condition of a bond, the court shall declare a forfeiture of the bail.
      (2) Setting Aside. — The court may direct that a forfeiture be set aside in whole or in part, upon such conditions as the court may impose, if a person released upon execution of an appearance bond with a surety is subsequently surrendered by the surety into custody or if it otherwise appears that justice does not require the forfeiture.
      (3) Enforcement. — When a forfeiture has not been set aside, the court shall on motion enter a judgment of default and execution may issue thereon. By entering into a bond, the obligors submit to the jurisdiction of the court and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. The obligor’s liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the obligors to their last known addresses.
      (4)Remission. — After entry of such judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2).

      . For example:
      "Willfulness,” as used here, is more akin to "[vjoluntary and intentional, but not necessarily malicious” than it is to "inconsiderate.” Black's Law Dictionary 1593 (7th ed.1999).
      "Cost” is more akin to actual “price or expenditure," than it is to a circumstance having no significant economic implications. Black's Law Dictionary 349 (7th ed.1999).
      "Prejudice,” connotes "[d]amage or detriment to one's legal rights or claims” and not just a brief delay in fully vindicating those rights or claims. Black's Law Dictionary 1198 (7th ed.1999). .
      "Inconvenience” suggests "the sacrifice ... of important public interests or hampering the legitimate activities of government" and not a subjective sense of personal frustration. Black's Law Dictionary 766 (óth ed. 1990).


author: LEHMAN, Justice.

text:
    2004 WY 33
    Edward C. MANES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 03-17.
    Supreme Court of Wyoming.
    March 25, 2004.

      Representing Appellant: Kenneth M. Ko-ski, State Public Defender; Donna D. Do-monkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.
    Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Daniel M. Fetsco, Assistant Attorney General. Argument by Mr. Fetsco.

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

[¶ 1] This is an appeal from the judgment finding appellant Edward C. Manes guilty of possession, manufacture, transportation, sale, or delivery of explosives in violation of Wyo. Stat. Ann. § e-S-llKb). We affirm.

ISSUES

[¶ 2] Manes phrases the issues on appeal as:

I. Whether the verdict against appellant was fatally inconsistent and there was insufficient evidence to sustain the verdict with regard to appellant’s intent to endanger the life of the confidential informant[.]
II. Whether plain error occurred when appellant’s statements to police informant David Husmann were admitted into evidence, as David Husmann was acting as an agent of the State when he obtained information from appellant, while appellant was represented by counsel[.]
III. Whether there was insufficient evidence to convict appellant, as there was no evidence that the blasting caps found in appellant’s house were “explosives” as that term was defined for the jury[.]

FACTS

[¶3] On September 6, 2001, Manes was arrested on two counts of controlled substance violations stemming from an investigation conducted by the State of Wyoming, Office of Attorney General, Division of Criminal Investigation (DCI). The investigation included the involvement of a DCI confidential informant, Kevin Lockman. Following Manes’ arrest, David Husmann contacted DCI and informed DCI that, while he was in jail with Manes, the men had discussed Kevin Lockman and expressed that they were both “unhappy” with him and that these discussions led to Manes advising Husmann that Lockman needed to be “taken out of the picture.” Further, Husmann advised DCI that while he was on work release he telephoned Manes, and the two further discussed Lockman.

[¶ 4] Subsequently, Husmann agreed to work with DCI. On October 19, 2001, Hus-mann met with Manes at Manes’ residence wearing a wire. The wire, however, produced a poor recording of the meeting. According to Husmann, Manes asked if Hus-mann could get him some marijuana. The conversation then turned to Lockman. Manes expressed that he wanted to “blowup” Lockman’s vehicle to prevent Lockman from testifying against him. Manes also identified Lockman’s vehicle, offered Hus-mann blasting caps from Manes’ job at a quarry, and provided Husmann with detailed instructions of how to use a blasting cap to produce an explosion in Lockman’s vehicle. Manes and Husmann also discussed Manes buying Husmann a bus ticket in order to get out of town following placement of a blasting cap on Lockman’s vehicle.

[¶ 5] Two additional telephone conversations occurred between Husmann and Manes. These conversations were recorded, and Husmann and Manes again discussed the exchange of marijuana and the blasting caps. They finally agreed to meet at a local laundromat with the marijuana and blasting caps. On October 23, 2001, Husmann, wearing a wire, met with Manes in the laundromat parking lot. During the meeting, Husmann claimed to have left the marijuana behind but asked Manes about the blasting caps. Manes indicated that he had not brought the blasting caps to the meeting, although he had two blasting caps in his possession. Manes then again described in detail to Husmann how to attach a blasting cap to Lockman’s vehicle to ignite an explosion. Plans were then made for the two to meet again.

[¶ 6] Immediately after this meeting, Manes was arrested, and law enforcement officials proceeded to Manes’ residence with a search warrant. There, Manes’ wife informed the officers of the existence and location of two blasting caps which were recovered from the home.

[¶ 7] On October 24, 2001, Manes was charged with solicitation of first-degree murder and possession, manufacture, transportation, sale, or delivery of explosives. After a jury trial, Manes was acquitted on the solicitation of murder charge, but was convicted of the possession charge. This appeal followed.

STANDARD OF REVIEW

[¶ 8] We stated in Hughes v. State, 2003 WY 35, ¶ 23, 65 P.3d 378, ¶ 23 (Wyo.2003) (quoting Williams v. State, 986 P.2d 855, 857 (Wyo.1999)):

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

We also recognized in Thomas v. State, 2003 WY 53, ¶ 14, 67 P.3d 1199, ¶ 14 (Wyo.2003), that:

In the absence of an objection to preserve the error, review will be limited to the noticing of any plain error. Derksen [v. State], 845 P.2d 1383 [ (Wyo.1993) ]; Craney [v. State], 798 P.2d 1202 [(Wyo. 1990) ]; Muniz [v. State ], 783 P.2d 141 [ (Wyo.1989) ].

Finally, we clarified in Dysthe v. State, 2003 WY 20, ¶ 23, 63 P.3d 875, ¶ 23 (Wyo.2003), that:

“ ‘Plain error exists when 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him.’” Mazurek, 10 P.3d at 535 (quoting Yetter v. State, 987 P.2d 666, 668 (Wyo.1999)).... Where the plain error elements are met, we may correct the error if it “ ‘ “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” ’... ” Johnson v. United States, 520 U.S. 461, 469-70, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), cert. denied, 519 U.S. 931, 117 S.Ct. 303 [136 L.Ed.2d 221] (1996)).

DISCUSSION

Inconsistent Verdict

[¶ 9] Initially, Manes asserts that all the evidence introduced by the State showed that Manes intended to kill Lockman using the blasting caps and there was absolutely no evidence indicating that Manes intended some lesser harm or endangerment to Lockman. Additionally, Manes argues that because he was acquitted on the charge of solicitation of first-degree murder, it was inconsistent for the jury to have found that he was guilty of possession of explosives in violation of Wyo. Stat. Ann. § 6-3-lll(b).

[¶ 10] The jury instruction concerning the charge of possessing explosives with the intent to endanger another appropriately advised the jury that in order to convict Manes of this charge, it must find that:

1. On or about the 23rd day of October, 2001
2. In Platte County, Wyoming
3. The Defendant, Edward C. Manes
4. Possessed
5. An explosive
6. With the intent, unlawfully, to endanger the life or physical well being of another, or to assist another person to do the same.

Sufficient evidence was presented at trial on each of these elements.

[¶ 11] Manes was a certified blaster with knowledge and training on how to create explosions. He was also responsible for reviewing and keeping the inventory records of explosive materials kept at his jobsite but did not have permission to remove any such explosive materials, including blasting caps, from the site. Two blasting caps, usually used in mining and agricultural activities that were capable of igniting large explosions, were found in Manes’ residence. The blasting caps appear to have been taken from Manes’ worksite through Manes’ attempted falsification of records and theft.

[¶ 12] Evidence was also presented that Manes and Husmann discussed on a number of occasions Manes’ desire that Lockman be “taken out of the picture.” Additionally, Manes personally threatened Lockman and his children during an encounter with Lock-man. Manes developed a plan with Husmann whereby Husmann would place a blasting cap onto Lockman’s vehicle which would ignite an explosion and thereby, at minimum, severely injure Lockman. In furtherance of this plan, Manes identified Lockman’s vehicle for Husmann and gave Husmann detailed instructions on how to use a blasting cap to produce an explosion in Lockman’s vehicle. Manes also discussed with Husmann his defense in the event he were to be investigated as a suspect in the Lockman explosion and buying Husmann a bus ticket to get out of town afterwards.

[¶ 13] We do not find any inconsistency between the jury’s acquittal of Manes of the solicitation of first-degree murder charge and its conviction of Manes under the charge of possessing explosives with the intent to endanger another. Specifically, the jury was instructed that it must find that Manes commanded, encouraged, or facilitated Husmann to commit the crime of first-degree murder with the intent that the crime actually be accomplished under circumstances strongly corroborative of Manes’ intent. A rational jury could find that Manes possessed the blasting caps with the unlawful intent to endanger the life or physical well being of Lockman, but Manes did not solicit the premeditated killing of Lockman given the required showing of evidence for that particular crime.

[¶ 14] Furthermore, we recognized in Moore v. State, 2003 WY 153, ¶ 16, 80 P.3d 191, ¶ 16 (Wyo.2003), that consistency in a jury’s verdict is not necessary.

In a case in which there are multiple counts, each one is treated as if it were a separate indictment. The verdict on the various counts need not be consistent. An acquittal on one count does not prevent conviction of another, even though the evidence is the same and the defendant could not have committed one crime without committing both, so long as the evidence is sufficient to support conviction on the count on which a guilty verdict was reached.

Id. (citing Hankinson v. State, 2002 WY 86, ¶ 11, 47 P.3d 623, ¶ 11 (Wyo.2002) and 3 Charles Alan Wright, Federal Practice and Procedure § 514 at 14-16 (1982)).

Evidentiary Issues

[¶ 15] Manes also asserts that, given the circumstances, plain error occurred when his statements to Husmann were admitted into evidence because Husmann was acting as an agent of the State at a time when Manes was represented by counsel. In particular, Manes argues that because he was actually represented by counsel with respect to the drug related charges filed against him when Husmann spoke to him about Lock-man, such statements cannot be considered knowing and voluntary and his Sixth Amendment right to counsel was violated.

[¶ 16] In McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991), the United States Supreme Court stated that “[t]he Sixth Amendment right ... is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced.” A prosecution is commenced “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Id. Moreover, the United States Supreme Court recognized in Maine v. Moulton, 474 U.S. 159, 180, 106 S.Ct. 477, 489, 88 L.Ed.2d 481 (1985), that “to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities,” and “[ijnerimi-nating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.” Id., at n. 16. In accord see United States v. Britt, 917 F.2d 353, 361 (8thCir.1990), holding that after the right to counsel has attached with respect to one crime, the government may question a defendant in the absence of counsel as to other crimes to which the Sixth Amendment has not yet attached because to hold otherwise would be essentially to immunize a defendant from further prosecution.

[¶ 17] The State did not violate Manes’ Sixth Amendment rights because the information solicited did not pertain to the pending drug related charges to which those rights had attached. Rather, Manes’ statements related to a separate and distinct matter, the subject of this action. Because the Sixth Amendment right to counsel is offense specific and does not attach until a particular prosecution is commenced, Manes’ Sixth Amendment rights, as they relate to this case, were not violated. Consequently, Manes’ incriminating statements were properly admitted.

Sufficiency of Evidence

[¶ 18] In his final issue, Manes contends that the State failed to present sufficient evidence that the blasting caps found in his residence were “explosives.” Specifically, Manes argues that even though the testimony given at trial informed the jury that blasting caps are capable of producing an explosion, the evidence did not show under what conditions an explosion might result and if any resulting explosion would destroy property or life and limb. Hence, Manes again asserts the jury could not have found every element of the crime for which he was convicted.

[¶ 19] The instruction given to the jury defining “explosive” read as follows:

“Explosive” means any chemical or mechanical compound, substance or mixture that is commonly used or intended to cause an explosion and which contains any oxidizing and combustive units or other ingredients in such proportions, quantities or packing that an ignition by fire, friction, concussion, percussion or by detonation of any part of the compound or mixture is likely to cause such a sudden generation of heated gases that the resultant gaseous pressures are capable of producing destructive effects on nearby objects, or of destroying life or limb.

Further as indicated previously, the statute under which Manes was charged, in applicable part, makes it illegal to possess any explosive, improvised explosive device, or incendiary apparatus, with the intent to endanger the life or physical well being of another, to commit assault or battery, or to inflict bodily harm or injury upon the person of another, or with the intent to assist another person to do the same. Wyo. Stat. Ann. § 6-3-111(b).

[¶20] Donald Farmer, a former Cheyenne police officer and newly hired special agent with DCI, testified that he had been involved with the bomb squad of the Cheyenne police department and, as such, he was licensed as a blaster in Wyoming and a certified bomb technician through the Federal Bureau of Investigation. He further testified regarding the extensive training he received to maintain his expertise in the area of explosives. Farmer then explained his involvement in recovering the blasting caps from Manes’ home and identified these blasting caps as being very effective and of high-grade quality. He further indicated that these blasting caps had a zero millisecond delay and contained PETN, which classified the blasting caps as containing a high explosive with a detonating velocity of 8300 feet per second. Farmer explained that blasting caps are used to essentially ignite the explosion of another explosive. He related that, consistent with the instructions Manes gave to Husmann, if the blasting caps “were properly wired to the taillights of a vehicle and one to one wire, just as long as it would enable a current to pass through the cap, it would initiate the cap.” Farmer explained that accidents occur with blasting caps alone and that the majority of bomb technicians that are killed in the United States are killed during disposal operations of blasting caps.

[IT 21] Even discounting Farmer’s testimony, Manes was identified as a certified blaster who was responsible for reviewing and keeping inventory of the explosives at his jobsite, but was without permission to remove any such explosive materials, including blasting caps, from the site. Manes also clearly admitted during the taped conversation that he had with Husmann in the laundromat parking lot that he attempted to falsify inventory records. Blasting caps from Manes’ worksite were found in his home. Manes further displayed an appreciation of the danger posed by the blasting caps and the possible resulting legal consequences of their illegal use, stating, “I don’t want to get busted either ... you’re talking about a f* ⅜ *ing dude dying.” Moreover, Manes gave Husmann detailed instructions on how to produce an explosion in Lockman’s vehicle. Manes even discussed Husmann’s defense in the event he were to be investigated as a suspect in Lockman’s death. Affording the State every favorable inference which may be fairly and reasonably drawn from the evidence, the evidence presented was sufficient for a reasonable jury to find beyond a reasonable doubt that the blasting caps were explosives.

CONCLUSION

[¶ 22] For the foregoing reasons, Manes’ conviction is affirmed.

      . Wyo. Stat. Ann. § 6-3-111(b) (LexisNexis 2003) provides, in part:
      Any person who possesses, manufactures, transports, sells or delivers to another person any explosive, improvised explosive device, or incendiary apparatus, with the intent unlawfully to endanger the life or physical well being of another, to commit assault or battery or to inflict bodily harm or injury upon the person of another, or with the intent to assist another person to do the same, is guilty of a felony.

      . The plain error standard is applicable because Manes did not object to the admission of such statements at time of trial.