author: DAVIS, Chief Justice.

text:
    Ian R. SPARKS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0181
    Supreme Court of Wyoming.
    May 15, 2019
    Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Lauren McLane, Faculty Director, and Alex N. Cremer, Student Intern, of the Defender Aid Clinic, University of Wyoming College of Law. Argument by Mr. Cremer.
    Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Russell Farr, Assistant Attorney General. Argument by Mr. Farr.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   DAVIS, Chief Justice.

[¶1] Ian Sparks was convicted of furnishing two fifteen-year-old girls with alcohol and sexually abusing them. On appeal, he contends that the district court erred in ordering joinder of the sexual abuse charges relating to the two victims. He further contends that the district court erred and violated his confrontation rights and the right to a complete defense when it excluded evidence of a prior false sexual abuse allegation by one of the victims. We affirm.

ISSUES

[¶2] Mr. Sparks presents two issues on appeal, which we restate as follows:

I. Did the district court abuse its discretion in ordering joinder of the sexual abuse charges relating to the two victims?
II. Did the district court abuse its discretion or infringe on Mr. Sparks' confrontation rights or his right to present a complete defense when it excluded evidence of a prior false sexual abuse allegation by one of the victims?

FACTS

[¶3] In the summer of 2016, DJJ and AK were both fifteen years old and living in Gillette, Wyoming. They had become friends during their participation in Civil Air Patrol that summer, and on July 23, 2016, they made plans for AK to spend the night at DJJ's home. Their plans changed, however, and they instead decided to spend the night with DJJ's former step-sister, Mikelah Williams, and her twenty-three-year old fiancé, Ian Sparks. Mr. Sparks and Ms. Williams had recently moved, so DJJ and AK first went to the apartment they had vacated to assist Mr. Sparks in cleaning it. Afterward, Mr. Sparks drove the girls to the new trailer home he shared with Ms. Williams, stopping along the way to buy vodka, energy drinks, and soda for himself and the girls.

[¶4] It was around 10:00 p.m. when Mr. Sparks and the girls arrived at the trailer he shared with Ms. Williams. He left the vodka in his vehicle and told the girls that because Ms. Williams would be upset about the alcohol, they would wait until she went to sleep to drink it. While the girls watched a movie, Mr. Sparks and Ms. Williams retired to their bedroom. Sometime later, Mr. Sparks came out of the bedroom and told the girls Ms. Williams had finally fallen asleep.

[¶5] Mr. Sparks and the girls then left the mobile home and took the vodka and other drinks to a nearby abandoned trailer. There they passed the vodka around and drank from the bottle. Although AK raised the bottle to her mouth and could taste the alcohol, she only pretended to drink it. DJJ, on the other hand, drank to the point of intoxication. As the three drank, they played a game of "Truth or Dare." AK described how the evening then progressed:

Q. Truth or Dare, how did it start? In what sort of things?
A. Um, so just something stupid, like you have to lick a wall, or stuff like that.
Q. And did there come a time where the game got a little more risqué?
A. Yes.
Q. What did you - can you tell us about that?
A. I think it started daring each other, like kiss each other.
Q. And did there come a point where you and Mr. Sparks got dared to make out?
A. Yes.
Q. Can you tell us about that?
A. [DJJ] dared us to kiss, so we kissed.
Q. Okay. Did you want to follow through with that dare?
A. No.
Q. Why did you?
A. Because I was just playing along and trying to have fun, seem like if I didn't.
Q. When you and Mr. Sparks kissed, were you sitting, or were you standing, or something else?
A. We were sitting.
Q. Okay. And how were you sitting?
A. Like on our knees.
Q. So face-to-face?
A. Yes.
Q. So after - well, how long do you think the kiss with Mr. Sparks lasted?
A. A minute or two.
Q. Okay. Was there any touching at that point?
A. Yes.
Q. What kind of touching?
A. Like my butt and - yeah.
Q. I'm sorry? Your butt and?
A. Um, like my back and my arms.
Q. Okay. Now, after Mr. Sparks kisses you, what happens next?
A. Him and [DJJ] kiss. And then he dares me to kiss him again.
Q. Okay. Now when you see him and [DJJ] kiss, was that the first time that you had seen them kiss?
A. Yes.
Q. Okay. What can you tell us about that kiss?
A. It lasted like a minute, same with touching.
Q. Okay. Did you see Mr. Sparks and [DJJ] kiss again later that night?
A. Yes.
Q. Okay. Now let's talk about that. When you saw Mr. Sparks and [DJJ] kissing again later, what can you tell us about that?
A. Um, it was very - they were very into it. It lasted a while.
Q. Did they both appear to be sort of getting into it?
A. Yes.
Q. Okay. Was Mr. Sparks touching [DJJ]?
A. Yes.
Q. Where?
A. Everywhere.
Q. And I'm sorry, when you say "everywhere" can you be a little more specific?
A. Yes. Her torso, her breasts, butt, and stuff between her legs.
Q. Her torso, her breasts, her rear end, and between her legs?
A. Yes.
Q. Did you say anything to him at that point?
A. Yeah. I told them that they needed to cool it down.
Q. Why?
A. Because she was really drunk, she didn't know what she was doing, and she probably would have been willing to do anything at that point.
Q. And did Mr. Sparks say anything to you?
A. Yes.
Q. What did he say?
A. He told me that we should let [DJJ] decide what she wanted.
Q. Now, you gave an interview with an officer, a female officer; do you remember that?
A. Yes.
Q. Okay. And in talking with Nicole Long, do you remember indicating that the exact thing that Mr. Sparks said was, "it's up to [DJJ] if she wants to have sex or not."
A. Yes.
Q. Is that what Mr. Sparks said?
A. Yes.
Q. Now, how were [DJJ] and Mr. Sparks when they were getting into it? Were they standing? Were they sitting?
A. They were, like, lying down.
Q. Okay. Now, you indicated that you saw Mr. Sparks touch [DJJ] between her legs; is that right?
A. Yes.
Q. Did you see Mr. Sparks touch anyone else between their legs that night?
A. Yes.
Q. Okay. Who?
A. Me.
Q. What can you tell us about that?
A. It was after I had, like, tried leaving. But - I don't remember if I tried leaving before or after, but he had gotten up and he was, um, asking why I wasn't happy, and said "I could make you happy." And telling me to stay, and let's go have fun. And he was touching me while doing it, and - yeah.
Q. Okay. When he was saying these things, were you guys standing or sitting?
A. Standing.
Q. Okay. Were you face-to-face or something else?
A. Something else.
Q. Okay. And what was that something else?
A. He was faced towards my back.
Q. Okay. So his front would have been touching your back?
A. Yes.
Q. Okay. And had he wrapped his arms around you?
A. Yes.
Q. Okay. And where - well, what part of his body was touching what part of your body?
A. So his torso to my back, his legs to the back of my legs.
Q. Did his hands touch you anywhere?
A. Yes.
Q. Where?
A. My breasts, my rear end, between my legs.
Q. Now, when you say between your legs, do you mean your vagina?
A. Yes.
Q. Okay. And was this over your clothing or under your clothing?
A. Over.
Q. Was he talking into your ear, or was he just talking normal?
A. In my ear.
Q. He said that he could make you happy?
A. Yes.
Q. How did that make you feel?
A. Gross.

[¶6] A short time later, the three left the abandoned trailer and returned to Mr. Sparks' trailer home. The next morning, AK and DJJ went to a pancake breakfast and then on to DJJ's home. While she was there, Mr. Sparks contacted DJJ and asked her to help him finish cleaning his apartment. DJJ agreed and invited AK to join her, but AK declined. At the apartment, then, only DJJ and Mr. Sparks were present. DJJ described what happened after they started cleaning:

Q. He asked if you remembered what happened last night?
A. Yes.
Q. And what did you take that - what did you take that to mean he was talking about?
A. The drinking.
Q. Okay. And what happened after he asked you that?
A. I had said yes. And then he kept on, like, moving closer. And then I had turned my head and he was like right there, like kind of like really, like, on my shoulder. And then he had kissed me.
Q. Was - well, did you kiss him back?
A. Yes.
Q. Okay. Did he touch you at all -
A. Yes.
Q. -- while you guys were kissing?
A. Yes.
Q. Tell us about that, please.
A. He touched me, like on my breasts and like on my stomach, and on my legs.
Q. And at first was that over the clothes?
A. Yes.
Q. When you say that he was touching your legs, do you mean between your legs, or on your legs?
A. On my legs and between my legs.
Q. Now, so it started with kissing and some touching over your clothes. Did it stop there?
A. No.
Q. Okay. What happened next?
A. He had started to undress me, and I had started to undress him.
Q. Okay. And did you take off - or did you guys take off all of your clothes?
A. No.
Q. What did you leave on?
A. My bra.
Q. Okay. Did Mr. Sparks get fully undressed?
A. Yes.
Q. Okay. What happened after you both got undressed?
A. We had sex.
Q. When you say that you had sex, did Mr. Sparks put his penis inside your vagina?
A. Yes.

[¶7] About a week later, DJJ attended a Bible camp outside Lander, Wyoming. While there, she told friends what had happened with Mr. Sparks, and those friends encouraged her to tell her mother. She also told the camp director what had happened, and when her mother picked her up from camp, she reported the incidents to her. When they returned to Gillette, DJJ's mother took her to the police department to report the incidents. In addition to the acts described above, DJJ reported two additional incidents of sexual intercourse with Mr. Sparks in the week following the July 23rd incident.

[¶8] Following an investigation, the State filed an information charging Mr. Sparks with three counts of second degree sexual abuse of a minor as to DJJ, one count of third degree sexual abuse of a minor as to AK, and two counts of furnishing alcohol to a minor, with one count for each girl. Following a preliminary hearing, the circuit court bound over all charges but the count for sexual abuse of AK on January 3, 2017. It was not bound over because the State failed to establish AK's age, an element of the offense. On January 13, 2017, the State filed a separate information recharging the count of sexual abuse of a minor in the third degree as to AK, and on March 7, 2017, that count was bound over to district court.

[¶9] On March 22, 2017, the State filed a motion to consolidate the cases for trial and sentencing. Following a hearing, the district court granted the State's motion over Mr. Sparks' objection. In ruling that joinder was appropriate, the court found that the offenses were of similar character in that they involved sexual abuse of minors. The court further found that the acts were part of a connected transaction, though Mr. Sparks' behavior with DJJ progressed further. Finally, the court found that evidence of the offenses would be admissible in separate trials under Rule 404(b), and it expressed its willingness to consider instructions or verdict forms to minimize any prejudice.

[¶10] On October 22, 2017, Mr. Sparks filed a motion to allow him to present evidence concerning DJJ's familiarity with certain sexual acts, a past false allegation of sexual abuse, and a suicide attempt in 2016 pursuant to Wyo. Stat. Ann. § 6-2-312, the rape shield statute. The State opposed the motion, and following a hearing, the district court ruled that the evidence concerning DJJ's familiarity with certain sexual acts and her suicide attempt were inadmissible. As to the alleged prior false accusation of sexual abuse, the court found that Mr. Sparks had presented sufficient information to warrant an in-chambers hearing on the probative value versus unfair prejudice of the proffered evidence. On February 1, 2018, the court held that hearing and found that the evidence had limited probative value and that probative value was substantially outweighed by its potential for prejudice. The court therefore ruled the evidence inadmissible under both W.R.E. 403 and the rape shield statute.

[¶11] Following a three-day trial, a jury convicted Mr. Sparks of one count of second degree sexual abuse of a minor against DJJ, of one count of third degree sexual abuse of a minor against AK, and of both counts of contributing alcohol to a minor. The jury acquitted on two of the counts of second degree sexual abuse against DJJ. The district court sentenced him to concurrent sentences that totaled six to ten years. Mr. Sparks thereafter filed a timely notice of appeal to this Court.

DISCUSSION

I. Joinder

[¶12] We review a district court's decision to allow the joinder of charges for an abuse of discretion. Hereford v. State , 2015 WY 17, ¶ 30, 342 P.3d 1201, 1209 (Wyo. 2015). An abuse of discretion will not be found unless the court acts in a manner that exceeds the bounds of reason. Id ."An abuse of discretion occurs when joinder of separate charges deprived the defendant of a fair trial." Id . (quoting Lessard v. State , 2007 WY 89, ¶ 24, 158 P.3d 698, 704 (Wyo. 2007) ).

[¶13] Rule 8 of the Wyoming Rules of Criminal Procedure provides that multiple offenses, "whether felonies or misdemeanors or both," may be charged in the same information if the offenses charged "are of the same or similar character, are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan." W.R.Cr.P. 8(a). Rule 13 allows separately-filed informations to be joined for trial if the offenses charged could have been joined in a single information as allowed by Rule 8. W.R.Cr.P. 13. We have also said:

Joinder of offenses is proper absent compelling reasons for severance, because joint trials serve the public interest in expediting the administration of justice by reducing docket congestion, conserving the time of judges and juries, and avoiding the need to recall witnesses to provide identical or overlapping testimony. Lessard , ¶ 25, 158 P.3d at 704 ; Bell v. State , 994 P.2d 947, 955 (Wyo. 2000). The prejudice which may result from joining offenses in a single case must be weighed against the judicial economy obtained by joinder. Id .

Hereford , ¶ 31, 342 P.3d at 1209.

[¶14] In addressing whether the charges against Mr. Sparks were proper for joinder, the district court found that the charges were of a similar character because all four charges alleged sexual assault of a minor. The court further found that the charges were part of a connected transaction. It reasoned:

And in the Court's view, the temporal proximity of these alleged events compels the Court to determine that the defendant was engaged in, generally speaking, the same set of acts or transactions. And to be sure, his behavior, allegedly, gradated to a higher degree with J.D.D. - or D.J.J. excuse me, than with A.K., but nonetheless the Court's of the view that the acts are part of a general transaction related in time and involving both of these girls, and it did constitute part of a common, if not a plan, a common sequential undertaking.

[¶15] Mr. Sparks contends the district court erred in finding these offenses proper for joinder because their statutory elements differ and because they occurred on different dates, in different locations, and under different circumstances. We disagree.

[¶16] Rules 8 and 13 expressly allow joinder of felony and misdemeanor offenses, meaning differences in degree or statutory elements are not controlling questions for determining the propriety of the joinder. The offenses plainly do not need to be identical to be joined, and what is instead required is that the offenses be of a similar character, meaning that they bear a "general likeness." 5 Wayne R. LaFave et al., Criminal Procedure § 17.1(b) (4th ed.) (Nov. 2018 Update) (but "the mere fact that the crimes carry different labels is not determinative" of the joinder issue, as if they have "a general likeness" they are still of "similar character") (footnotes omitted); see also Larkins v. State , 2018 WY 122, ¶ 68, 429 P.3d 28, 44-45 (Wyo. 2018) (agreeing with district court that varying abuse charges against co-defendants involved same general accusations even though methods of injury differed). The charges against Mr. Sparks for sexual abuse of DJJ and AK both involved sexual contact with teenage girls. Regardless of the degree of abuse, we can find nothing unreasonable in the district court's conclusion that the charged offenses were of a similar character.

[¶17] We likewise find that the district court could reasonably conclude that the offenses against DJJ and AK were part of a sequence of transactions. Mr. Sparks initiated sexual contact with both girls on July 23, 2016, and that contact was alleged to have progressed and continued with DJJ over the following days. The differences in dates and locations did not render the connection so attenuated as to undercut the district court's view of the events as a continuing sequence of events. See Larkins , ¶ 68, 429 P.3d at 44-45 (agreeing that joinder was proper for multiple counts of child abuse and one count of abuse of a vulnerable adult where charges involved four victims and occurred on different dates and at different locations); Duke v. State , 2004 WY 120, ¶ 41, 99 P.3d 928, 945 (Wyo. 2004) (upholding joinder of murder solicitation charges occurring years apart and involving different victims as part of common scheme).

[¶18] Separate trials on the sexual abuse charges would require testimony in both trials by both victims as to the events that occurred on July 23rd in the abandoned trailer, both victims' mothers as to the dates of events, the same two investigating law enforcement officers, and presumably by Mr. Sparks and Mikelah Williams, who both testified for the defense. Because the offenses charged were of a similar character, involved a sequence of events over the course of a few days, and separate trials would require duplicative testimony by the same set of witnesses, we find no abuse of discretion in the district court's determination that the offenses were properly joined under Rules 8 and 13. See Larkins , ¶ 68, 429 P.3d at 44 ("[B]ecause the charges ... involved the same victims, the same witnesses, and the same general accusations, they were well-suited for joinder.").

[¶19] Mr. Sparks contends that even if the offenses were properly joined under Rule 8 and 13 standards, the district court should have denied the joinder because it unfairly prejudiced him. The determination of whether joinder will cause unfair prejudice requires a two-part analysis:

The first is whether the evidence relating to the similar offenses charged would be admissible in a separate trial of each offense. If the evidence would be admissible, there is no prejudice. If the evidence would not be admissible in separate trials, the trial court should then determine whether the evidence of each crime is simple and distinct. Stated differently, the second consideration is whether the evidence relating to the separate offenses would be so complicated that the jury could not reasonably be expected to separate them and evaluate the evidence properly and individually on each separate charge.

Hereford , ¶ 33, 342 P.3d at 1209 (quoting Lessard , ¶ 28, 158 P.3d at 705 ).

[¶20] In addressing the question of prejudice, the district court looked to whether evidence relating to the joined offenses would be admissible in separate trials on the offenses. The court observed:

And as I looked to Rule 404(b), it talks about other crimes, wrongs or acts. And the Court is not disturbed that the acts with respect to D.J.J. result in crimes charged occurred after the alleged crime with respect to A.K. I don't think there's a delimitation in Rule 404(b) on that front.
And the Court is of the view that if these were separately tried actions, that the activity alleged with respect to A.K. could indeed be admissible under Rule 404(b) in a trial of D.J.J., as tending to establish a modus operandi, course of conduct, plan, motive, opportunity, and intent, any number of those factors that are set forth in Rule 404(b).

[¶21] Mr. Sparks does not challenge the district court's determination that his acts with AK would be admissible in a trial on the offenses committed against DJJ, and indeed defense counsel conceded to their admissibility below. He asserts, however, that because the court did not address whether his acts with DJJ would likewise be admissible in a separate trial on the offenses committed against AK, it failed to fully analyze the joinder's potential for prejudice, and he contends that no such determination can be made at this late stage.

[¶22] Mr. Spark's argument is not entirely misplaced. The State argued below that Mr. Spark's acts of intercourse with DJJ would be admissible in a separate trial on the AK charges to prove the element of sexual gratification, but the district court did not address that aspect of the cross-admissibility question. This left a gap in the court's prejudice ruling that this Court may not fill on appeal. See Garrison v. State , 2018 WY 9, ¶ 20, 409 P.3d 1209, 1215 (Wyo. 2018) ; Griggs v. State , 2016 WY 16, ¶ 128, 367 P.3d 1108, 1143 (Wyo. 2016) (noting that Rule 404(b) determinations are not made in the first instance on appeal). This gap does not, however, require that we reverse the joinder ruling, because we may affirm the district court's judgment on any basis supported by the record. Allgier v. State , 2015 WY 137, ¶ 11, 358 P.3d 1271, 1275 (Wyo. 2015).

[¶23] Even if some evidence of Mr. Sparks' acts with DJJ might be ruled inadmissible in a separate trial on the AK charge, we find the second prong of our prejudice analysis to be easily satisfied. The facts of this case are simple and straightforward, and the jury could reasonably be expected to separately consider each charge and its supporting evidence. In Hereford , we observed:

Even if the district court might have ruled that some of the evidence was inadmissible in separate trials, the facts of this case, although horrifying, were fairly simple and straightforward. Moreover, the district court instructed the jury to evaluate each charge separately in concise and understandable language. The record contains nothing to suggest that the jury disregarded or failed to follow the instructions, or that it was unable for any reason to evaluate the evidence supporting the murder charge separately from that supporting the sexual assault and kidnapping charges. Indeed, the jury acquitted Appellant on one of the sexual assault charges, which strongly suggests that it held the State to its burden of proof, evaluated the evidence relating to each charge separately, and ultimately found the proof wanting in that respect. The district court did not abuse its discretion in refusing to sever the murder charge from the charges concerning B.B.

Hereford , ¶ 35, 342 P.3d at 1210.

[¶24] The same is true here. The jury was instructed to separately consider each charge and its supporting evidence, and nothing in the record suggests that it was unable to do so. As in Hereford , the jury acquitted Mr. Sparks on two of the charges against him, suggesting it was able to and did separately consider each charge. We are thus satisfied that under the second prong of our prejudice analysis the joinder of the AK and DJJ offenses did not prejudice Mr. Sparks.

[¶25] The district court reasonably concluded that joinder of the sexual abuse charges was proper under Rules 8 and 13, and Mr. Sparks has failed to show that he was prejudiced by the joinder. We therefore find no abuse of discretion in the court's joinder of the offenses for trial.

II. Exclusion of Impeachment Evidence

[¶26] We next address Mr. Sparks' claim that the district court abused its discretion and violated his constitutional rights to confront witnesses against him and to present a complete defense when it excluded evidence of an alleged prior false accusation of sexual abuse by DJJ. We will begin by outlining the evidence excluded and the district court's reasons for its ruling and will then address Mr. Sparks' claimed errors.

[¶27] On March 19, 2015, DJJ's mother reported to the Gillette Police Department that she had discovered that DJJ was using her cell phone to have conversations with and send inappropriate photos to what appeared to be adult men. During discovery, Mr. Sparks' defense counsel obtained a copy of the police report that was generated as a result of that 2015 investigation. Contained within that report was a summary of some of the cell phone contents as described by the officer who searched the phone. The officer identified several recipients of messages from DJJ and paraphrased some of the messages including the following two entries:

Chester Copperpot ( [DJJ's] age was provided, during a conversation with Copperpot, [DJJ] claim[s] she has sex with her father ....)
* * * *
PerfectGentleman ( [DJJ's] age was provided, [DJJ] speaks of having sex with her father and becoming pregnant ....)

[¶28] In his motion for introduction of evidence relating to these statements in the police report, Mr. Sparks argued:

DJJ has made false allegations of sexual abuse before to garner attention. She told people online that her father sexually abused her. It is the Defense's assertion that this evidence is pertinent and provides motivation and the intent in the defense's allegation that DJJ's allegations against the Defendant are false and were made in an attempt to garner attention.

[¶29] During the in-chambers hearing on Mr. Spark's motion, DJJ testified that she did not recall telling anyone in her online communications that her father abused her.

Q. And you've had conversations with a number of men on various hookup sites, didn't you?
A. Yes.
Q. Did you ever tell anyone on those sites that you had sex with your father and became pregnant?
A. No.
Q. Never?
A. Not that I can recall.
Q. Did you ever tell anybody that?
A. No.
Q. Did you have sex with your father?
A. No.

[¶30] In response to defense counsel's questions drawn from the police report describing the contents of her phone, DJJ testified:

Q. This is the download from your phone.
A. Okay.
Q. This is what the Police Department found on your phone
A. Okay.
Q. And you had a conversation with a fellow named Copper Pot.
A. Okay.
Q. Okay? Did you lie to Copper Pot?
A. Yes.
Q. You lied to Copper Pot?
A. Yes.

[¶31] In response to questions from the prosecutor, DJJ testified:

Q. Okay. Do you recall talking to a lot of people on various apps?
A. Yes.
Q. Do you remember every specific conversation that you had?
A. No.
Q. Okay. Do you have an independent recollection? That means do you remember telling anybody about having sex with your dad?
A. No.

[¶32] After hearing the parties' arguments and DJJ's testimony, the district court announced its ruling denying Mr. Spark's motion to introduce evidence of DJJ's online statements.

So here's how the Court sees this. For purposes of this particular hearing in ruling on this, the Court's going to conclude, and I'm relying mainly on the offer of proof submitted by the defense, page 5 of 7 of Officer Stroup's report, the Court's going to conclude that two statements were made to the effect at issue here.
* * * *
So for purposes of this hearing, the Court's going to find that [DJJ] claimed to have had sex with her father in one instance and claimed to have had sex with her father and had become pregnant by him in another instance in an anonymous communication, i.e., not with her true identifiable name or identity[,] to individuals who use a handle, not their true identity[,] on the Internet in hookup apps for these sexual venues. So the young lady made the statement.
* * * *
And the argument here for admission here is that this was an example of her making a false statement to garner attention. And to the Court that's an important argument, to garner attention, and saying Judge, that's what she's doing here. Ladies and gentlemen of the jury, that's what she's doing here, she's making a completely false accusation against this defendant as a means of garnering attention from the authorities, I suppose.
Well, what attention did she garner here? From looking at this report, none. I don't see anybody sending return messages: Oh, you poor girl, this, that and the other thing. In fact, probably I'm guessing men who receive messages like this probably think Boy, she's really vulnerable, now I can really take advantage. So I'm not sure she received any attention, it would just mean that she attempted to garner it. I'm just saying that there appears to be probably nothing reciprocal in terms of attention coming her way.
But suffice that to say with all of that predicate, the Court does find that the statements are relevant. Now, how relevant? The Court's of the view that the relevance is of half measure. And the reason I say that is going back to this set and setting of these declarations. I'm not sure I can really put my finger on it, but to me it's a lot different for somebody to make declarations of this kind, a girl of 14, 15 years of age, when she's not identified, making statements to the Internet universe to people who are not identified. That's different from this young lady walking down the street, tugging on the shirt sleeve of somebody of consequence in her life, and falsely stating "dad had sex with me and I became pregnant by him." And that's why I say this material, while relevant, is only relevant to a half measure.
I think the set and setting of these declarations on the Internet on these anonymous sex apps or hookup apps renders this material, the relevancy of this material quite attenuated, although to an extent it is relevant.
We then turn to Rule 403, and the Rape Shield law requires the Court to determine whether or not the probative value of the evidence substantially outweighs the probability that its admission will create prejudice.
And I think the Court has to take into account the other factors under Rule 403, which include confusion of the issues, misleading the jury, considerations of undue delay, waste of time, this kind of thing. And the Court is of the view that the probative value of this evidence, diluted as it is for the reasons I've just explicated, is substantially outweighed by its prejudicial effect, and outweighed by its likelihood for distracting the jury, confusing the issues at hand, misleading the jury.
And the Court takes into account and is persuaded by the argument of the State's attorney under Budig , which discusses the reasoning behind the Rape Shield law. And the Rape Shield law I think is intended to, and I think they said this in Budig , to encourage, not discourage, I should say, people from reporting instances of sexual assault. And this is all enacted for the benefit of an alleged victim, not for the benefit of a defendant.
And so the Court's of the view that this is marginal evidence, would lead to confusion of the issues, does not bear the hallmarks of evidence that would survive a Rape Shield review at all, and so the Court is going to deny inquiry on this piece of evidence.

[¶33] Against that backdrop, we consider Mr. Sparks claims that: 1) the district court abused its discretion under Rule 403 and the rape shield statute; 2) the court's ruling violated his constitutional right of confrontation; and 3) the court's ruling violated his constitutional right to present a complete defense.

A. Abuse of Discretion Claims

[¶34] We review a district court's ruling on the admissibility of evidence for an abuse of discretion. Farrow v. State , 2019 WY 30, ¶ 52, 437 P.3d 809, 823 (Wyo. 2019). "We afford considerable deference to a trial court's rulings on the admissibility of evidence, and we will not disturb the trial court's ruling if there is a legitimate basis for it." Id ."Determining whether the trial court abused its discretion involves the consideration of whether the court could reasonably conclude as it did, and whether it acted in an arbitrary and capricious manner." Moser v. State , 2018 WY 12, ¶ 40, 409 P.3d 1236, 1248 (Wyo. 2018) (quoting Triplett v. State , 2017 WY 148, ¶ 23, 406 P.3d 1257, 1262 (Wyo. 2017) ).

[¶35] We begin with the district court's Rule 403 analysis. The court found that DJJ's statements that she had sex with her father and became pregnant had limited probative value because of their context, and whatever probative value they had was outweighed by their potential for unfair prejudice. We find nothing unreasonable in this conclusion.

[¶36] The statements DJJ made about her father were not reports of sexual abuse. They were statements made anonymously to an anonymous person and therefore could result in no consequences to her or her father. The anonymous nature of the communication gave DJJ license to say anything she wanted without concern for follow-up. In contrast, although DJJ did discuss her sexual contact with Mr. Sparks with friends at camp and with the camp counselor, the report she made was to her mother and law enforcement. That was plainly not an anonymous statement from which no consequences would flow. The district court concluded that because the circumstances and consequences were so different, the probative value of DJJ's internet declarations was limited. This conclusion is neither unreasonable nor arbitrary and capricious.

[¶37] We likewise find nothing unreasonable in the district court's view that the potential for the evidence to distract and mislead the jury and confuse the issues outweighed its limited probative value. DJJ had no recollection of making the online statements concerning her father, so the only way that evidence could come in would be through the police report, assuming its admissibility. If the police report could have been admitted, it would require testimony as to the circumstances of the report DJJ's mother made to law enforcement and the nature of the anonymous communications, which would in turn require delving into DJJ's online sexual activities. To admit the evidence without that context would leave the jury confused and potentially misled as to the nature of both the statements and the police report. Given the marginal relevance of the evidence, we can find no abuse of discretion in the district court's decision to avoid the potential prejudice and confusion.

[¶38] It is for this reason that we also agree with the district court that the evidence implicated the rape shield statute. Unless the evidence were admitted in a way that was confusing and potentially misleading, it would require testimony concerning DJJ's use of hook-up apps and her online activities of a sexual nature, in other words her prior sexual conduct. Although the rape shield statute is not an absolute bar to the admissibility of this type of evidence, "only in the unusual case will the probative value of this kind of evidence substantially outweigh its highly probable prejudicial effect on the victim and the public policy underlying the statute's enactment." Moser , ¶ 42, 409 P.3d at 1249 (quoting McGarvey v. State , 2014 WY 66, ¶ 18, 325 P.3d 450, 456 (Wyo. 2014) ). Given that the evidence's probative value was outweighed by its potential for prejudice, as discussed above, we find no abuse of discretion in the district court's conclusion that the evidence was not admissible under the rape shield statute.

B. Constitutional Claims

[¶39] We next address Mr. Sparks' claims that the exclusion of DJJ's prior false statement concerning her father violated his constitutional rights to confrontation and to present a complete defense. Mr. Sparks did not raise either claim below, and we therefore review both claims for plain error. Anderson v. State , 2014 WY 13, ¶ 20, 317 P.3d 1108, 1115 (Wyo. 2014) (review of constitutional claims is for plain error where appropriate objection not made below). Under our plain error review, the defendant must establish: 1) the record clearly shows the incident alleged as error; 2) the district court transgressed a clear and unequivocal rule of law; and 3) the defendant was denied a substantial right resulting in material prejudice. Bazzle v. State , 2019 WY 18, ¶ 28, 434 P.3d 1090, 1097 (Wyo. 2019) (citing Johns v. State , 2018 WY 16, ¶ 12, 409 P.3d 1260, 1264 (Wyo. 2018) ).

1. Confrontation Claim

[¶40] The district court denied Mr. Sparks the opportunity to confront DJJ with her prior statements alleging sexual abuse by her father, and the record thus clearly shows the incident Mr. Sparks alleges as error. Mr. Sparks has not, however, established that the district court's ruling transgressed a clear and unequivocal rule of law.

[¶41] The constitutional right to confront a witness arises under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Wyoming Constitution. We have summarized that right and the limitations a court may constitutionally place upon it as follows:

The primary right secured by the Confrontation Clause of the United States and Wyoming Constitutions is the right of cross-examination. In order for there to be a violation of the right of confrontation, a defendant must show more than just a denial of the ability to ask specific questions of a particular witness. Rather, a defendant must show that he was prohibited "from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness ... 'to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.' " Hannon [v. State, 2004 WY 8,] ¶ 18, 84 P.3d [320] at 330 [ (Wyo. 2004) ] (quoting Delaware v. Van Arsdall , 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986) ). The Confrontation Clause guarantees a defendant an "opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Van Arsdall , 475 U.S. at 679, 106 S.Ct. at 1435 (quoting Delaware v. Fensterer , 474 U.S. 15, 20, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (per curiam ) (emphasis in original)). A defendant's right to cross-examination of a witness is not unfettered, but is subject to the trial court's "discretion to reasonably limit cross-examination to prevent, among other things, questioning that is repetitive or of marginal relevance." Hannon , ¶ 22, 84 P.3d at 331-32 (quoting United States v. DeSoto , 950 F.2d 626, 629-30 (10th Cir. 1991) ); see also Olden v. Kentucky , 488 U.S. 227, 232, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988) (per curiam ).

Swan v. State , 2014 WY 38, ¶ 10, 320 P.3d 235, 238 (Wyo. 2014) (quoting Budig v. State , 2010 WY 1, ¶ 8, 222 P.3d 148, 151 (Wyo. 2010) ).

[¶42] Mr. Sparks presumably sought to cross-examine DJJ using the police report that summarized her online activities and statements. The district court exercised its discretion to prevent that questioning because the evidence was of marginal relevance and that that relevance was outweighed by the potential for prejudice. Mr. Sparks was not otherwise restricted in his ability to challenge DJJ's credibility and motives, and his counsel was permitted to elicit testimony from DJJ and her mother that DJJ has been dishonest, and from DJJ that she does not like Mr. Sparks being in her stepsister Mikelah's life. Under like circumstances, where evidence was held inadmissible under the rape shield statute, we have found no violation of a defendant's confrontation rights.

We hold that because the evidence of meanness, manipulation, and prior sexual conduct was not admissible, and because the appellant was given the opportunity to challenge the victims' credibility, motives, and biases using other admissible evidence, the appellant was not denied his constitutionally protected right to confrontation.

Budig , ¶ 14, 222 P.3d at 154.

[¶43] Because Mr. Sparks has failed to establish a violation of a clear and unequivocal rule of law, we need not complete the prejudice prong of plain error analysis. We find no plain error as to Mr. Sparks' confrontation rights.

2. Right to a Complete Defense

[¶44] Mr. Sparks contends that the district court's exclusion of DJJ's false statement concerning her father violated his right to present a complete defense. While the record clearly shows the incident Mr. Sparks alleges as error, we again find that he has failed to establish a violation of a clear and unequivocal rule of law.

[¶45] We have described the right to present a complete defense and the limitations on that right as follows:

The United States Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Crane v. Kentucky , 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986) ; Hannon , ¶ 62, 84 P.3d at 346. "[T]he Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote." Holmes [v. South Carolina ], 547 U.S. [319] at 327, 126 S.Ct. 1727 [164 L.Ed.2d 503] [ (2006) ]. However, the Constitution does not prevent trial judges from applying well-established rules of evidence to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. Id . The Constitution permits judges to exclude evidence that is repetitive, only marginally relevant, or poses an undue risk of harassment, prejudice or confusion of the issues. Id ."A specific application of this principle is found in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged." Id .

Smith v. State , 2009 WY 2, ¶ 37, 199 P.3d 1052, 1064 (Wyo. 2009) (quoting Bush v. State , 2008 WY 108, ¶ 59, 193 P.3d 203, 217-18 (Wyo. 2008) ).

[¶46] Here again, the district court excluded DJJ's prior statements based on its findings that the evidence was only marginally relevant and that its probative value was outweighed by its potential for prejudice. We have upheld that determination, and Mr. Sparks therefore cannot show a violation of his right to present a complete defense.

CONCLUSION

[¶47] We find no abuse of discretion in the district court's joinder of the sexual abuse charges relating to the two victims. We also find no abuse of discretion and no constitutional violation in the court's exclusion of evidence of a prior false statement of sexual abuse by one of the victims. Affirmed.

      We will discuss the proffered evidence and the district court's reasoning in greater detail in our review of the court's ruling.

      Mr. Sparks did not challenge the joinder of the counts charging the contributing of alcohol to DJJ and AK, so the district court's sole concern was with the sexual assault charges.

      Rule 14 provides that "[i]f it appears that a defendant ... is prejudiced by a joinder of offenses ..., the court may order an election or separate trials of counts[.]" W.R.Cr.P. 14.

      Mr. Sparks contends that because the testimony of DJJ's mother was the only foundationally sound evidence of the date of the crime against AK, and the district court did not determine the admissibility of that evidence in a separate trial on the AK offense, there was an inappropriate commingling of the evidence on the charges in contravention of the second prong of the prejudice analysis. This argument is misplaced. First, Mr. Sparks did not object to the admissibility of DJJ's mother's testimony to establish the date of the offense against AK, and Mr. Sparks offers no basis for its exclusion in a separate trial. Additionally, the second prong of the prejudice analysis requires that a jury be reasonably able to separately consider each charge and the evidence supporting that charge. It does not bar the use of the same evidence in proving each offense. Indeed, use of the same evidence is one of the reasons our rules favor joinder. Earley v. State , 2011 WY 164, ¶ 5, 267 P.3d 561, 563 (Wyo. 2011) ; see also Hereford , ¶ 31, 342 P.3d at 1209 ("Joinder of offenses is proper absent compelling reasons for severance, because joint trials serve the public interest in expediting the administration of justice by reducing docket congestion, conserving the time of judges and juries, and avoiding the need to recall witnesses to provide identical or overlapping testimony .") (emphasis added).

      Rule 403 provides that "[a]lthough relevant, evidence may be excluded 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."W.R.E. 403.

      The rape shield statute restricts the admissibility of evidence of a victim's prior sexual conduct. It provides:
      (a) In any prosecution under this article or for any lesser included offense, if evidence of the prior sexual conduct of the victim, reputation evidence or opinion evidence as to the character of the victim is to be offered the following procedure shall be used:
      (i) A written motion shall be made by the defendant to the court at least ten (10) days prior to the trial stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the victim and its relevancy to the defense;
      (ii) The written motion shall be accompanied by affidavits in which the offer of proof is stated;
      (iii) If the court finds the offer of proof sufficient, the court shall order a hearing in chambers, and at the hearing allow the questioning of the victim regarding the offer of proof made by the defendant and other pertinent evidence;
      (iv) At the conclusion of the hearing, if the court finds that the probative value of the evidence substantially outweighs the probability that its admission will create prejudice, the evidence shall be admissible pursuant to this section. The court may make an order stating what evidence may be introduced by the defendant, which order may include the nature of the questions to be permitted.
      (b) This section does not limit the introduction of evidence as to prior sexual conduct of the victim with the actor.
      (c) Any motion or affidavit submitted pursuant to this section is privileged information and shall not be released or made available for public use or scrutiny in any manner, including posttrial proceedings.
      Wyo. Stat. Ann. § 6-2-312 (LexisNexis 2017).

      That is not to say that we agree with the State's assertion that the rape shield statute applies to any prior report of sexual assault whether true or false. We have described the policy behind the rape shield statute as follows:
      Wyoming, along with most other jurisdictions, enacted a "rape-shield" statute to bring under control a long-standing tradition that rape victims could be discredited as witnesses based on prior sexual conduct.... This tradition was based on the faulty notion that women who engaged in nonmarital intercourse were immoral and likely to engage in such conduct on any given occasion, and was deemed prejudicial and humiliating to the victim. Annotation, Constitutionality of "Rape Shield" Statute Restricting Use of Evidence of Victim's Sexual Experiences , 1 A.L.R.4th 283, 286 (1980).
      Moser , ¶ 42, 409 P.3d at 1249 (quoting Carroll v. State , 2015 WY 87, ¶ 21, 352 P.3d 251, 257 (Wyo. 2015) ).
      The difficulty in the present case is that admission of DJJ's prior statements would have required testimony concerning her prior sexual conduct and, with the evidence's potential for prejudice outweighing its probative value, it would have run afoul of the policy underlying the statute. On the other hand, if the evidence of a false report does not implicate past sexual conduct, it may be that admissibility of the evidence would be properly analyzed under Rule 403 rather than the rape shield statute.


source: Caselaw Access Project

author: BY THE COURT:

license: Public Domain

text:
    Kelly Marc ELLIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-19-0011
    Supreme Court of Wyoming.
    May 22, 2019
    ORDER AFFIRMING THE DISTRICT COURT'S JUDGMENT AND SENTENCE
    [¶ 1] This matter came before the Court upon its own motion following notification that Appellant has not filed a pro se brief within the time allotted by this Court. Pursuant to a plea agreement, Appellant entered an unconditional guilty plea to one count of possession of a felony amount of marijuana. Wyo.Stat.Ann. § 35-7-1031(c)(iii). The district court imposed a sentence of 3 to 5 years. Appellant filed this appeal to challenge the district court's October 29, 2018, "Judgment and Sentence and Dismissal of Count."
    [¶ 2] On March 15, 2019, Appellant's court-appointed appellate counsel filed a "Motion to Withdraw as Counsel," pursuant to Anders v. California , 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). The same day, this Court entered an "Order Granting Motion for Extension of Time to File Pro Se Brief." This Court ordered that, on or before May 2, 2019, Appellant "may file with this Court a pro se brief specifying the issues he would like the Court to consider in this appeal." This Court also provided notice that, after the time for filing a pro se brief expired, this Court would "make its ruling on counsel's motion to withdraw and, if appropriate, make a final decision on this appeal." This Court notes that Appellant did not file a pro se brief or other pleading in the time allotted.
    [¶ 3] Now, following a careful review of the record and the " Anders brief" submitted by appellate counsel, this Court finds that appellate counsel's motion to withdraw should be granted and the district court's "Judgment and Sentence and Dismissal of Count" should be affirmed. It is, therefore,
    [¶ 4] ORDERED that the Wyoming Public Defender's Office, court-appointed counsel for Appellant, Kelly Marc Ellis, is hereby permitted to withdraw as counsel of record for Appellant; and it is further
    [¶ 5] ORDERED that the district court's October 29, 2018, "Judgment and Sentence and Dismissal of Count" be, and the same hereby is, affirmed.
    [¶ 6] DATED this 22nd day of May, 2019.
   BY THE COURT:

/s/ MICHAEL K. DAVIS

Chief Justice


text:
    In re the Marriage of Shelly Rae BARRON, Petitioner/Appellee, v. Paul Roger BARRON, Respondent/Appellant.
    No. CV-18-0234-PR
    Supreme Court of Arizona.
    Filed May 21, 2019
    Mary K. Boyte Henderson (argued), Mary Katherine Boyte, P.C., Yuma, Attorney for Shelly Rae Barron
    S. Alan Cook, S. Alan Cook, P.C., Phoenix; Keith Berkshire (argued), Kristi Reardon, Erica Gadberry, Berkshire Law Office, PLLC, Tempe; Richard G. Maxon, Tempe; Theodore C. Jarvi, Tempe, Attorneys for Paul Roger Barron
    CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL and JUSTICES TIMMER, BOLICK, GOULD, LOPEZ, and PELANDER (RETIRED) joined.
   CHIEF JUSTICE BALES, opinion of the Court:

¶1 In this divorce case, we hold that federal law does not permit a state court to order a military spouse to pay the equivalent of military retirement benefits to a former spouse if the military spouse continues to work past an eligible retirement date.

I.

¶2 Paul Barron ("Husband") and Shelly Rae Barron ("Wife") married in 2004, when Husband was an active duty member of the United States Marine Corps. When they divorced in 2017, Husband was still an active duty service member. As part of the dissolution proceedings, the superior court found that Husband could retire in 2023 after twenty years of military service and divided the parties' assets, including Husband's military retirement pay ("MRP"), assuming Husband would apply for and collect retirement as soon as he became eligible.

¶3 The dissolution decree provided that Wife was entitled to 29% of the MRP. The trial judge also ordered Husband, if he chose to work beyond his retirement-eligibility date, to begin making payments to Wife equivalent to what she would have received as her share of the MRP had he retired.

¶4 On appeal, Husband argued that the court improperly ordered him to indemnify Wife if he chose to remain in the military on active duty status. Barron v. Barron , 796 Ariz. Adv. Rep. 31, 35 ¶ 24, 2018 WL 3722815 at *5 (Ariz. App. July 31, 2018). The court of appeals agreed and reversed, reasoning that federal law precludes such indemnification. Id. at 37 ¶ 30, 2018 WL 3722815 at *7.

¶5 We granted review because division of military retirement benefits is a recurring legal issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution.

II.

¶6 Military members may be eligible to retire and receive MRP after serving for a certain length of time, typically twenty years or more. See Howell v. Howell , --- U.S. ----, 137 S. Ct. 1400, 1402-03, 197 L.Ed.2d 781 (2017). Although some states had divided MRP upon divorce, in 1981 the United States Supreme Court held that such orders were preempted because they created a "conflict between the terms of the federal retirement statutes and the [state] community property right." McCarty v. McCarty , 453 U.S. 210, 232, 235, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981).

¶7 In response, Congress passed the Uniformed Services Former Spouses Protection Act ("USFSPA"), 10 U.S.C. § 1408, which provides the "precise and limited" authority to treat certain military retirement benefits as divisible property upon divorce. See Mansell v. Mansell , 490 U.S. 581, 588-89, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). The USFSPA grants states the authority to divide "disposable retired pay" in divorce proceedings. 10 U.S.C. § 1408(c). Thus, since the enactment of the USFSPA, state courts have been able "to treat disposable retired pay as community property." Mansell , 490 U.S. at 589, 109 S.Ct. 2023.

¶8 Even before passage of the USFSPA, Arizona generally treated military retirement assets as community property, divisible upon divorce, like any other retirement asset. See, e.g. , Van Loan v. Van Loan , 116 Ariz. 272, 274, 569 P.2d 214, 216 (1977). Since the USFSPA's enactment, Arizona has chosen to treat MRP as community property. See Edsall v. Superior Court , 143 Ariz. 240, 242, 693 P.2d 895, 897 (1984).

¶9 Wife argues that the indemnification order in this case was proper under Koelsch v. Koelsch , 148 Ariz. 176, 713 P.2d 1234 (1986). In that case, we considered "how and when a non-employee spouse's community property interest in an employee spouse's matured retirement benefit plan is to be paid when the employee wants to continue working, thus delaying receipt of the retirement benefits." Id. at 180, 713 P.2d at 1238. As applied to benefits that are "matured and payable," id. at 183, 713 P.2d at 1241, we held that "the court can order that the non-employee spouse be paid a monthly amount equal to his or her share of the benefit which would be received if the employee spouse were to retire," id. at 185, 713 P.2d at 1242.

¶10 Although we treat MRP as community property, and Koelsch permits an indemnification order under state law for public retirement benefits when a spouse elects to keep working instead of retiring, Arizona may only divide MRP to the extent permitted by federal law. See Howell , 137 S. Ct. at 1403-04. Thus, we must first examine the authority granted by Congress.

¶11 On that issue, Howell is instructive. That case involved a former spouse whose MRP payments were reduced years after the dissolution decree because the retired military spouse elected to waive MRP to receive disability benefits. Id. at 1402. The trial court ordered the military spouse to indemnify the former spouse for her vested rights in the MRP. In re Marriage of Howell, 238 Ariz. 407, 408-09 ¶¶ 1-5, 361 P.3d 936, 938-39 (2015), rev'd , Howell , --- U.S. ----, 137 S. Ct. 1400, 197 L.Ed.2d 781. Relying on the USFSPA and United States Supreme Court precedent, we concluded that although a trial court could not, at the time of the decree or thereafter, divide MRP that a military spouse has waived to obtain disability benefits, the court could require the military member to reimburse his former spouse for a post-decree reduction in the benefits she received as a result of his electing to receive disability benefits in lieu of MRP. Id. at 409-10 ¶¶ 10-15, 361 P.3d at 938-39.

¶12 The Supreme Court reversed. Howell , 137 S. Ct. at 1406. Like us, the Court recognized that, in allowing states to treat MRP as community property, "Congress excluded from its grant of authority the disability-related waived portion of military retirement pay." Id. at 1404. The Court also noted that it had previously held that "federal law completely pre-empts the States from treating waived military retirement pay as divisible community property," which was "just what the Arizona family court did here." Id. at 1405. Although the divorce decree gave the non-military spouse a right to half of MRP, the Court held that such an interest "is, at most, contingent, depending for its amount on a subsequent condition: [the military spouse's] possible waiver of that pay." Id. at 1405-06. Thus, under Howell , a state court can divide MRP only to the extent it is disposable retired pay, as defined by § 1408(a)(4)(A), and a state court may not enter orders that "displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress." 137 S. Ct. at 1406.

¶13 The grant of authority to divide MRP under the USFSPA "does not authorize any court to order a member to apply for retirement or retire at a particular time in order to effectuate any payment under this section." § 1408(c)(3). Here, the court of appeals relied on this provision to hold that a court cannot order a service member to indemnify the non-military former spouse if the service member chooses to work past an eligible retirement date. See Barron , 796 Ariz. Adv. Rep. at 36 ¶ 27, 2018 WL 3722815 at *6. The court also read Howell as prohibiting the equitable remedy under Koelsch of ordering indemnification payments. Id. at 36-37 ¶¶ 28-30, 2018 WL 3722815 at *6-7.

¶14 We agree with the court of appeals' observation that § 1408(c)(3) would have little effect if a court, instead of ordering a service member to retire, could simply order a member to begin making payments as if he or she had retired. However, we focus our attention on the definition of "disposable retired pay," which is the relevant benefit that Congress has authorized state courts to divide as part of dissolution proceedings. Federal law does not permit states to divide MRP but rather grants them the authority to "treat disposable retired pay " as community property. § 1408(c)(1) (emphasis added). "Disposable retired pay," in turn, is defined as "the total monthly retired pay to which a member is entitled ." § 1408(a)(4)(A) (emphasis added).

¶15 We read "entitled" to mean a member has applied and been approved for military retirement benefits. Although Congress did not define "entitled," our interpretation effectuates its intent in passing the USFSPA. The legislative history reveals Congress's intent that a military member must retire to become "entitled" to MRP. See S. Rep. No. 97-502, at 17 (1982) ("[I]t is not enough that the member has sufficient years of service so that the member could, if the member so desired, retire .... Rather, the member must have actually retired from the uniformed service or entered some other status in which the member is actually entitled to receive retired or retainer pay."). The Department of Defense's regulations also support this interpretation of "entitled." See 7B Department of Defense, DoD 7000.14-R, Military Pay Policy and Procedures - Retired Pay 29-6 (2018) (defining entitlement as "the legal right of a military member to receive military retired pay" and differentiating "members who actually receive retired pay" from "those who qualify by completing the required years of service").

¶16 Moreover, the grant of authority for states to treat disposable retired pay as community property only applies to "disposable retired pay payable to a member." § 1408(c)(1) (emphasis added). Unlike the employee spouse's retirement plan in Koelsch , military retirement based on years of service is discretionary, and thus a member's interest in MRP is neither vested nor mature until the member retires and benefits are approved. See, e.g. , 10 U.S.C. § 8323 (granting permissive, not mandatory, authority to retire an officer after twenty years of service). Pay that may never be received, and the grant of which is discretionary, is not "payable" to a member. To the same effect, the legislative history states that "the provisions of section 1408 only will permit payments [to a former spouse] to be made from a member's or former member's 'retired or retainer pay,' " S. Rep. No. 97-502, at 15, rather than from active duty pay or prospective retirement pay.

¶17 Finally, § 1408(c)(3) would be meaningless if "entitled" means "eligible" as Wife argues. If a member were "entitled" to disposable retired pay before retiring, then Congress would have had no reason to explicitly note that courts cannot force retirement in order to effectuate payments under the USFSPA. Although the USFSPA contemplates that a court may order the division of disposable retired pay in advance of retirement, the statutory scheme does not contemplate implementation of that order until the member actually retires. See § 1408(d)(1) ("In the case of a member not entitled to receive retired pay on the date of the effective service of the court order, such payments shall begin not later than 90 days after the date on which the member first becomes entitled to receive retired pay.").

¶18 Because the USFSPA only permits state courts to divide "disposable retired pay," and no entitlement to MRP exists until the member retires and is approved to receive such benefits, state courts cannot order service members to make MRP-based payments to former spouses before retirement.

III.

¶19 Here, at the time of the dissolution, Husband had not applied for, had not been approved to receive, and was not receiving MRP. The dissolution decree provided for a payment to Wife of her share of Husband's MRP starting when Husband purportedly would be eligible to retire. This part of the decree was in error.

¶20 Before a military spouse retires, a court remains free to enter orders awarding a former spouse his or her share of MRP, but such orders cannot require payment until the military spouse retires. See, e.g. , § 1408(a)(4)(B) (freezing benefits for decrees finalized before retirement); § 1408(d)(1) (contemplating orders served on the Secretary before entitled to payment). Notably, in Howell , the United States Supreme Court observed that a state "remains free to take account of the contingency that some military retirement pay might be waived, or ... take account of reductions in value when it calculates or recalculates the need for spousal support." Howell , 137 S. Ct. at 1406. We express no view, however, on whether or how the court on remand should make any adjustments based on MRP-related contingencies.

¶21 For the foregoing reasons, we vacate paragraphs 24 through 30 of the court of appeals' opinion, we vacate the portion of the decree providing for a Koelsch order, and we remand the case to the superior court for further proceedings. We deny Wife's request for attorney fees and grant Husband's request for costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.


text:
    STATE of Arizona, Appellee, v. Rodney Christopher JONES, Appellant.
    No. CR-18-0370-PR
    Supreme Court of Arizona.
    Filed May 28, 2019
    Sheila Polk, Yavapai County Attorney, Dennis M. McGrane, Chief Deputy County Attorney, Benjamin D. Kreutzberg (argued), Deputy County Attorney, Prescott, Attorneys for State of Arizona
    Robert A. Mandel (argued), Taylor C. Young, Mandel Young PLC, Phoenix; and Lee Stein, Anna H. Finn, Mitchell Stein Carey Chapman, PC, Phoenix, Attorneys for Rodney Christopher Jones
    Sarah L. Mayhew, Tucson, Attorney for Amicus Curiae Arizona Attorneys for Criminal Justice; and Thomas W. Dean, Phoenix, Attorney for Amicus Curiae National Organization for the Reform of Marijuana Laws
    Eric M. Fraser, Osborn Maledon, P.A., Phoenix, Attorneys for Amicus Curiae Arizona Dispensaries Association
    Gary Michael Smith, Smith Saks, PLC, Phoenix, Attorney for Amicus Curiae Will Humble
    Gaye L. Gould, Janet E. Jackim, Philip R. Rudd, Sacks Tierney P.A., Scottsdale, Attorneys for Amici Curiae Physicians
    Sharon A. Urias, Greenspoon Marder LLP, Scottsdale; and John H. Pelzer, Greenspoon Marder LLP, Ft. Lauderdale, FL, Attorneys for Amicus Curiae MPX Bioceutical Corporation
    Jared G. Keenan, Kathleen E. Brody, American Civil Liberties Union Foundation of Arizona, Phoenix; and Emma A. Andersson, American Civil Liberties Union, New York, NY, Attorneys for Amicus Curiae Qualifying Patients and Caregivers
    Elizabeth Burton Ortiz, Arizona Prosecuting Attorneys' Advisory Council, Phoenix, Attorneys for Amicus Curiae Arizona Prosecuting Attorneys' Advisory Council
    Alex Lane, Lane, Hupp, Crowley, PLC, Phoenix, Attorneys for Amici Curiae Jennifer Welton and Alex Lane
    Kathi Mann Sandweiss, Lawrence E. Wilk, Thomas S. Moring, Jaburg & Wilk, P.C., Phoenix, Attorneys for Receiver for Green Hills Patient Center, Inc.
    VICE CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICES TIMMER, BOLICK, GOULD, LOPEZ, and PELANDER (Retired) joined.
   VICE CHIEF JUSTICE BRUTINEL, opinion of the Court:

¶1 Rodney Christopher Jones appeals his convictions and sentences arising from his possession of hashish, a form of cannabis resin, A.R.S. §§ 13-3401(4)(a), -3408(A)(1), arguing that the Arizona Medical Marijuana Act ("AMMA") immunizes his conduct. AMMA defines marijuana as including "all parts of any plant of the genus cannabis whether growing or not." A.R.S. § 36-2801(8). Consistent with this language, we hold that AMMA's definition of marijuana includes both its dried-leaf/flower form and extracted resin, including hashish.

I.

¶2 In March 2013, Jones-a registered qualifying patient under AMMA-was found in possession of a jar containing 1.43 grams, or 0.050 ounces, of hashish. Jones was charged with possession of cannabis and possession of drug paraphernalia (the jar). As defined by Arizona's criminal code, cannabis is a narcotic drug, § 13-3401(20)(w), consisting of "[t]he resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or its resin," § 13-3401(4)(a).

¶3 Jones moved to dismiss the charges, arguing his use was allowed under AMMA. Relying on State v. Bollander , 110 Ariz. 84, 515 P.2d 329 (1973), the State argued that AMMA does not displace the criminal code distinctions between cannabis, § 13-3401(4)(a), and marijuana, § 13-3401(19), and that AMMA only provides a defense for the use of marijuana from which the resin has not been extracted. Agreeing with the State, the trial court denied Jones's motion. After a bench trial, Jones was convicted as charged and sentenced to concurrent 2.5-year prison terms.

¶4 The court of appeals affirmed Jones's convictions in a divided opinion, holding that AMMA did not immunize his possession of cannabis. State v. Jones , 245 Ariz. 46, 49-50 ¶¶ 9-15, 424 P.3d 447, 450-456 (App. 2018). We granted review to determine whether AMMA immunizes cannabis, a recurring issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution.

II.

¶5 "We review questions of statutory interpretation de novo." Reed-Kaliher v. Hoggatt , 237 Ariz. 119, 122 ¶ 6, 347 P.3d 136, 139 (2015). Because AMMA was passed by voter initiative, our primary objective "is to give effect to the intent of the electorate." Id. (quoting State v. Gomez , 212 Ariz. 55, 57 ¶ 11, 127 P.3d 873, 875 (2006) ). The most reliable indicator of that intent is the language of the statute, and if it is clear and unambiguous, we apply its plain meaning and the inquiry ends. State v. Burbey , 243 Ariz. 145, 147 ¶ 7, 403 P.3d 145, 147 (2017).

¶6 Passed in 2010, "AMMA permits those who meet statutory conditions to use medical marijuana." Reed-Kaliher , 237 Ariz. at 122 ¶ 7, 347 P.3d at 139. AMMA does so by "broadly immuniz[ing] qualified patients" for their medical marijuana use and by "carving out only narrow exceptions from its otherwise sweeping grant of immunity." Id. ¶ 8 (citing A.R.S. § 36-2811(B) ). Specifically, AMMA provides protection "[f]or the registered qualifying patient's medical use of marijuana pursuant to this chapter, [so long as] the registered qualifying patient does not possess more than the allowable amount of marijuana." § 36-2811(B)(1). AMMA defines "marijuana" to mean "all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant." § 36-2801(8).

¶7 The court of appeals' majority determined that voters only intended to immunize the use of marijuana as defined by the criminal code, meaning the dried leaves or flowers of the cannabis plant, but not the use of cannabis, the resin extracted from the marijuana plant. Jones , 245 Ariz. at 49 ¶ 9, 424 P.3d at 450 ("[B]y not specifically including extracted resin within its description of immunized marijuana, AMMA adopts the preexisting law distinguishing between cannabis and marijuana." (internal quotation marks omitted)); see also § 13-3401(19) (defining "marijuana" to mean "all parts of any plant of the genus cannabis, from which the resin has not been extracted"); cf. Bollander , 110 Ariz. at 87, 515 P.2d at 332 (concluding "that the legislature has recognized hashish and marijuana as two distinct forms of cannabis"). We disagree.

¶8 We start with the statutory language. Because AMMA specifically defines "marijuana," we apply the statutory definition and look to neither the criminal code nor common understanding. See Enloe v. Baker , 94 Ariz. 295, 298, 383 P.2d 748, 750 (1963). Indeed, AMMA's definition of "marijuana" stands on its own: it neither cross-references nor incorporates the criminal code definition. Cf. State v. Pirello , 365 Mont. 399, 282 P.3d 662, 663-65 ¶¶ 11-18 (2012) (recognizing that the Montana Medical Marijuana Act cross-references and incorporates the criminal code distinction between marijuana and hashish).

¶9 AMMA defines "marijuana" as "all parts of [the] plant." § 36-2801(8). The word "all," one of the most comprehensive words in the English language, means exactly that. See Flood Control Dist. of Maricopa Cty. v. Gaines , 202 Ariz. 248, 252 ¶ 9, 43 P.3d 196, 200 (2002). "Part" means "an essential portion or integral element," or, as relevant here, "one of the constituent elements of a plant or animal body." Part , Merriam-Webster, https://www.merriam-webster.com/dictionary/part (last visited May 20, 2019). Taken together, "all parts" refers to all constituent elements of the marijuana plant, and the fact the resin must first be extracted from the plant reflects that it is part of the plant.

¶10 The State nevertheless argues AMMA does not apply to resin or its extracts. Again, we disagree. Section 36-2811(B)(1) immunizes the patient's "medical use" of marijuana, defined to mean "the acquisition, possession, cultivation, manufacture , use, administration, delivery, transfer or transportation of marijuana or paraphernalia relating to the administration of marijuana to treat or alleviate a registered qualifying patient's debilitating medical condition." § 36-2801(9) (emphasis added). AMMA does not define "manufacture" but it commonly means "to make into a product suitable for use." Manufacture , Merriam-Webster, https://www.merriam-webster.com/dictionary/manufacture (last visited May 20, 2019); see also § 13-3401(17) (defining "manufacture" in the criminal code as to "produce, prepare, propagate, compound, mix or process, directly or indirectly, by extraction from substances of natural origin or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis" (emphasis added)). AMMA anticipates not only that dispensaries will produce marijuana in edible form, see § 36-2801(15) (defining "usable marijuana" to include mixtures or preparations, to be "prepared for consumption as food or drink"), but also that patients will "consume[ marijuana] by a method other than smoking," see A.R.S. § 36-2805(A)(3). Taken together, these statutes indicate AMMA's intent to allow the manufacture and preparation of parts of the marijuana plant for medical use, including extracting the resin.

¶11 We are likewise unpersuaded by the State's argument that §§ 36-2811(B)(1) and 36-2801(1), (15) limit marijuana use to dried flowers. Section 36-2811(B)(1) provides that a registered qualifying patient may not possess more "than the allowable amount of marijuana." Section 36-2801(1) provides that the allowable amount of marijuana is two-and-one-half ounces of "usable marijuana," which § 36-2801(15) defines as "the dried flowers of the marijuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks and roots of the plant and does not include the weight of any non-marijuana ingredients combined with marijuana and prepared for consumption as food or drink." The State argues that by conjunction these provisions limit marijuana use to "dried flowers." See People v. Carruthers , 301 Mich.App. 590, 837 N.W.2d 16, 21-24 (2013) (giving controlling weight to the Michigan Medical Mari[j]uana Act's definition of "usable mari[j]uana," meaning "dried leaves and flowers of the mari[j]uana plant," and concluding it does not include "all parts" of the cannabis plant or its resin).

¶12 But § 36-2811(B)(1) protects "the registered qualifying patient's medical use of marijuana ," not just the use of the dried flowers of the marijuana plant. (Emphasis added.) Section 36-2801(8) provides the definition of marijuana, and nothing in § 36-2801(1) or (15) alters its meaning. Rather, by its own language, the limitation in § 36-2801(1) and (15) pertains only to the amount of marijuana the patient can legally possess, not the type or form of marijuana one may possess and use. See Amount , Merriam-Webster, https://www.merriam-webster.com/dictionary/amount (last visited May 20, 2019) (defining "amount" to mean "the total number or quantity"). Accordingly, we decline to follow Carruthers .

¶13 Section 36-2806.02 supports this view. First, it authorizes dispensaries to dispense "marijuana": it includes no reference or limitation to "usable marijuana." § 36-2806.02(A)-(B). We decline to adopt an interpretation that presents contradictory definitions and allows the dispensary to dispense "marijuana"-all parts of the plant-but only allows the patient to receive "usable marijuana"-the dried flowers of the plant. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) ("The provisions of a text should be interpreted in a way that renders them compatible, not contradictory."). Second, in dispensing marijuana, the dispensary is required to list "[h]ow much marijuana is being dispensed," § 36-2806.02(B)(1), and to determine whether the amount to be dispensed would cause patients to exceed their two-and-one-half-ounce limit, § 36-2806.02(A)(3). Section 36-2806.02 thus supports our interpretation that the limitation refers to the quantity of marijuana that may be dispensed, not its type or form.

¶14 The State contends that such a reading will result in the allowance of two-and-one-half ounces of cannabis, equivalent to far more than two-and-one-half ounces of dried flowers and leaves. We disagree. In defining what AMMA protects, § 36-2801(8) defines marijuana broadly. See supra ¶¶ 9-12; see also § 36-2811(B) (immunizing the "qualifying patient's medical use of marijuana"). In defining how much marijuana may be possessed, however, § 36-2801(1) and (15) define the weight more narrowly. See § 36-2811(B) (limiting patients' marijuana possession to the "allowable amount of marijuana"). Section 36-2801(1) provides that the "allowable amount of marijuana" is "[t]wo-and-one-half ounces of usable marijuana," which subsection (15) defines as "the dried flowers of the marijuana plant, and any mixture or preparation thereof." AMMA's weight limitation is based on "two-and-one-half ounces" of "the dried flowers of the marijuana plant," regardless of the weight of the product manufactured from those flowers.

¶15 As stated above, AMMA extends to manufactured marijuana products using extracted resin. See supra ¶ 10. Under § 36-2801(15), these products are "mixture[s] or preparation[s]" of the dried flowers of the marijuana plant. We therefore read § 36-2801(1) and (15) to mean qualifying patients are allowed two-and-one-half ounces of dried flowers, or mixtures or preparations made from two-and-one-half ounces of dried flowers.

¶16 A plain reading of the relevant provisions compels our conclusion that AMMA protects the use of "marijuana," including resin, so long as the patient does not exceed the allowable amount and otherwise complies with the statutory requirements. Consideration of AMMA's purpose and ballot materials support this plain reading. See Ruiz v. Hull , 191 Ariz. 441, 450 ¶ 36, 957 P.2d 984, 993 (1998) (stating that we may consider ballot materials in construing initiatives).

¶17 AMMA appeared on the 2010 ballot as Proposition 203. The accompanying ballot materials stated Proposition 203's purpose was to "protect patients with debilitating medical conditions ... from arrest and prosecution" for their "medical use of marijuana." Ariz. Sec'y of State, 2010 Publicity Pamphlet 73 (2010), https://apps.azsos.gov/election/2010/info/PubPamphlet/english/e-book.pdf. Proposition 203 was intended to allow the use of marijuana in connection with a wide array of debilitating medical conditions, including "cancer, glaucoma, ... amyotrophic lateral sclerosis, Crohn's disease, [and] agitation of Alzheimer's disease," including "relief [from] nausea, vomiting and other side effects of drugs" used to treat debilitating conditions. Id. It is implausible that voters intended to allow patients with these conditions to use marijuana only if they could consume it in dried-leaf/flower form. Such an interpretation would preclude the use of marijuana as an option for those for whom smoking or consuming those parts of the marijuana plants would be ineffective or impossible. Consistent with voter intent, our interpretation enables patients to use medical marijuana to treat their debilitating medical conditions, in whatever form best suits them, so long as they do not possess more than the allowable amount.

¶18 Separately, the State argues AMMA is preempted by the Comprehensive Drug Abuse Prevention and Control Act, which is comprised of two components, the Controlled Substances Act ("CSA"), 21 U.S.C. §§ 801 - 971, and the Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. §§ 301 - 399i. But the State did not raise this argument before the court of appeals or in its petition for review to this Court. Though the State urges us to nevertheless consider the issue because it is one of statewide importance, see, e.g. , Barrio v. San Manuel Div. Hosp. for Magma Copper Co. , 143 Ariz. 101, 104, 692 P.2d 280, 283 (1984), we previously rejected a preemption challenge based on the CSA in Reed-Kaliher , 237 Ariz. at 123-25 ¶¶ 18-24, 347 P.3d at 140-42, and the State offers no persuasive reason to revisit that decision. As to the FDCA, the State's preemption argument is undeveloped, and we thus decline to consider it. See Hawkins v. Allstate Ins. Co. , 152 Ariz. 490, 503, 733 P.2d 1073, 1086 (1987) (stating the Court may hear issues though they were not properly raised but declining to exercise that power).

III.

¶19 We hold that the definition of marijuana in § 36-2801(8) includes resin, and by extension hashish, and that § 36-2811(B)(1) immunizes the use of such marijuana consistent with AMMA. We reverse the trial court's ruling denying Jones's motion to dismiss, vacate the court of appeals' opinion, and vacate Jones's convictions and sentences.

      Post-Carruthers , the Michigan Medical Mari[j]uana Act's definition of "usable mari[j]uana" was amended to include "resin" and "extract." See Mich. Comp. Laws § 333.26423(n).

      We express no opinion on how much resin may be extracted from, or how much "mixture" may be obtained from, two-and-one-half ounces of dried flowers.


text:
    Gary SHEEK, Sheek Family Limited Partnership, and Pamsey I. Sheek, Plaintiffs-Appellants v. Roger BROOKS, Veryl Goodnight, Ida May Smith, and The James Fenberg Revocable Trust, Defendants-Appellees.
    Supreme Court Case No. 18SA110
    Supreme Court of Colorado.
    May 6, 2019 As Modified on Denial of Rehearing May 28, 2019
    Attorneys for Plaintiffs-Appellants: Colorado Water & Land Law, LLC, Amy N. Huff, Durango, Colorado
    Attorneys for Defendants-Appellees Roger Brooks and Veryl Goodnight: Russell & Pieterse, LLC, Jennifer Russell, Telluride, Colorado, Kelly R. McCabe, P.C., Kelly R. McCabe, Keenen D. Lovett, Cortez, Colorado
    No appearance on behalf of Ida May Smith or The James Fenberg Revocable Trust.
    En Banc
   JUSTICE HART delivered the Opinion of the Court.

¶1 In 2008, defendant-appellees Roger Brooks and Veryl Goodnight (together "Brooks") filed an application in the water court to change the point of diversion of their water right from the Giles Ditch to the Davenport Ditch. The application and the required notice published in the local newspaper misidentified the section and range in which the Davenport Ditch headgate is located. Both, however, referred repeatedly to the Davenport Ditch. Brooks successfully moved to amend the application with the correct section and range shortly afterward. The water court, finding that "no person [would] be injured by the amendment," concluded that republication of the notice was unnecessary.

¶2 Eight years later, plaintiff-appellant Gary Sheek filed this action in the water court, seeking judgment on five claims for relief: (1) declaratory judgment that Brooks's decree was void for insufficient notice; (2) quiet title to a prescriptive access easement for the Davenport Ditch, including ancillary access rights; (3) trespass; (4) theft and interference with a water right; and (5) a permanent injunction prohibiting Brooks from continued use of the Davenport Ditch. After concluding that sufficient notice was provided, the water court granted Brooks's motion for summary judgment and deemed the trespass and injunction claims moot in light of that ruling. The court then dismissed the prescriptive easement claim as well as the theft and interference claim for lack of subject-matter jurisdiction.

¶3 We agree with the water court's conclusion that the published notice was sufficient. As a result, all of the remaining claims should have been dismissed for lack of subject-matter jurisdiction. In other words, the water court should not have held that the trespass and injunction claims were moot because it lacked jurisdiction over those claims. We therefore affirm the judgment of the water court, but on other grounds.

I. Facts and Procedural History

¶4 In October 2008, Brooks filed an application for a change of water right, proposing a change in the point of diversion from the Giles Ditch to the headgate of the Davenport Ditch. The resume notice of this application was published on October 17 in the Dolores Star , then a weekly newspaper in Montezuma County, in accordance with section 37-92-302(3), C.R.S. (2018).

¶5 The resume notice stated that Brooks was unable to use his water right because his property was located above the Giles Ditch headgate. Brooks could use his water right, however, if it was diverted from the lateral of the Davenport Ditch that runs through the Brooks property. The resume notice continued: "[a]pplicant proposes changing the point of diversion for their Giles Ditch water right to the headgate of the Davenport Ditch." The resume notice stated that the headgate was located in the NE ¼ of the SE ¼ of Section 13, Township 36N, Range 13W. In total, the published resume notice included the words "Davenport Ditch" five times, once in bold typeface. As required by law, Brooks mailed notice to the owner of the real property underlying the headgate, the James Fenberg Revocable Trust.

¶6 Four months later, after the water commissioner requested a map of the property to be irrigated as well as revised coordinates to the Davenport Ditch headgate, Brooks realized that the resume notice had incorrectly stated the headgate's section and range. Brooks filed a motion to amend the application for change of water right, as the correct location is the NW ¼ of the SW ¼ of Section 18, Township 36N, Range 12W. The motion to amend pointed out that the original application listed the headgate's location as on the east section line of Section 13, Range 13W, which is the same as the west section line of Section 18, Range 12W. Thus, while these amendments changed the section and range in the location description, the change amounted to a difference of only 100 feet.

¶7 The water court granted the motion to amend. Because the court found that "no person [would] be injured by the amendment," it held that the "applicants [were] not required to republish the amended application."

¶8 Eight years later, Gary Sheek, the Sheek Family Limited Partnership, and Pamsey I. Sheek (together "Sheek") filed a complaint in the water court. Although Sheek acknowledges in the amended complaint that the recorded interest in the real property underlying the Davenport Ditch headgate belongs to the James Fenberg Revocable Trust, he asserts sole ownership of the Davenport Ditch water rights. Sheek claims to have "exclusively operated, maintained, and repaired the headgate and the ditch that carries the Davenport Ditch water rights to their place of use."

¶9 Sheek's complaint presented five claims for relief based on Brooks's change of water right. The first claim sought a declaratory judgment that the water decree granted by the water court was void because it was based upon insufficient resume notice. The second claim was for quiet title to a prescriptive access easement for the Davenport Ditch, including ancillary access rights. The third claim was for trespass, the fourth was for theft and interference with a water right, and the fifth claim was for injunctive relief. Brooks filed a motion for summary judgment on the first claim and a motion to dismiss the remaining claims.

¶10 The water court-La Plata County District Court, Water Division No. 7-granted both motions. On the motion for summary judgment, the court held that the resume notice was sufficient to place interested parties on inquiry notice, as required by section 37-92-302(3)(a), C.R.S. (2018), meaning that the decree was valid. As to the motion to dismiss the remaining claims, the water court held that-because the decree was valid-Brooks had the right to use the Davenport Ditch to deliver water to his land, and "[t]hus, [Sheek's] causes of action alleging trespass and seeking an injunction from using the Davenport Ditch are moot." Finally, the water court held that it lacked ancillary jurisdiction over the remaining claims.

¶11 Sheek appealed the order granting the motions, arguing, inter alia, that the water court erred in holding that the resume notice was sufficient, in determining that the trespass and injunctive relief claims were moot, and in dismissing the remaining claims.

II. Analysis

¶12 We begin by considering whether the resume notice published on October 17, 2008, was sufficient to place Sheek on inquiry notice. We conclude that it was. As a result, all the remaining claims should have been dismissed by the water court for lack of subject-matter jurisdiction.

A. Sufficiency of Notice

¶13 Colorado law requires that notice of all filed applications for a change in water right be published in a generally circulated newspaper. § 37-92-302(3). This so-called "resume notice," a substitute for personal service, together with the application itself, vests subject-matter jurisdiction in a water court. See In re Water Rights of Columbine Ass'n , 993 P.2d 483, 488-89 (Colo. 2000). Because a published resume notice substitutes for personal service, it "must put interested parties 'to the extent reasonably possible on inquiry notice of the nature, scope, and impact of the proposed diversion.' " Monaghan Farms, Inc. v. City & Cty. of Denver By & Through Bd. of Water Comm'rs , 807 P.2d 9, 15 (Colo. 1991) (quoting Closed Basin Landowners Ass'n v. Rio Grande Water Conservation Dist. , 734 P.2d 627, 633 (Colo. 1987) ).

¶14 The inquiry notice standard is not onerous. To meet the standard, a resume notice must include "sufficient facts to attract the attention of interested persons and prompt a reasonable person to inquire further." Monaghan Farms , 807 P.2d at 15 ; see also City of Black Hawk v. City of Central , 97 P.3d 951, 959-61 (Colo. 2004). Thus, a resume notice is defective only if, "taken as a whole[, it] is insufficient to inform or put the reader on inquiry of the nature, scope[,] and impact of the proposed diversion." Monaghan Farms , 807 P.2d at 15. We have explained that "[i]n cases where notice was inadequate, the applicants' filings were 'characterized by the complete absence of material information concerning the disputed water rights.' " City of Black Hawk , 97 P.3d at 959 (quoting City of Thornton v. Bijou Irrigation , 926 P.2d 1, 26 (Colo. 1996) ).

¶15 The sufficiency of the resume notice ultimately turns on the facts and circumstances of the particular case. See Bijou Irrigation , 926 P.2d at 24. We have previously considered whether misidentification of the exact location of a water right rendered notice of the claimed right insufficient, and we have concluded that it does not. See Closed Basin , 734 P.2d at 635 (concluding that a resume notice was sufficient because it notified interested parties of the total appropriation amount and the affected tracts of land, even though it did not specifically identify the location of well sites); City of Black Hawk , 97 P.3d at 959-61 (holding that the discrepancy between the location listed in an initial application and the intended site of a dam enlargement was immaterial and thus no amendment or republication of the resume notice was required). Similarly here, given all of the facts and circumstances, the misidentification of the location of the water right in the resume notice did not render the notice deficient.

¶16 Here, the resume notice was sufficient under the inquiry notice standard because it would have alerted Sheek to the nature, scope, and impact of Brooks's proposed change. First, Sheek was apparently the only user of the Davenport Ditch at the time of the published notice. A reasonably interested, sole user of the ditch would be put on inquiry notice by any mention of the Davenport Ditch in the resume notice. That is even more true here because the words "Davenport Ditch" appeared in the resume notice five times, once in bold typeface. And, Brooks's resume notice specifically stated that the applicants sought to change "the point of diversion for their Giles Ditch water right to the headgate of the Davenport Ditch." Therefore, Sheek cannot plausibly contend that there was inadequate notice based on the published resume because he "should have anticipated that the disputed rights might be at issue." Bijou Irrigation , 926 P.2d at 25.

¶17 Second, even with the error in section and range, the resume notice published on October 17 contained sufficient information to alert an interested party as to the nature, scope, and impact of the change in water right. The nature of the change was clearly stated as a change of point of diversion. The scope was addressed by (1) the resume notice's indication that the location of the property and the headgates of both the Giles Ditch and the Davenport Ditch were shown on a map attached to the application and (2) the repeated, explicit identification of the Davenport Ditch. And, in terms of impact, the resume notice indicated that Brooks intended to change the point of diversion for his previously decreed water right of 0.167 cubic feet per second from the Giles Ditch to the point of diversion for the Davenport Ditch.

¶18 Water Rule 4 generally requires republication of the resume notice when a correction would result in a move of the claimed right to a different quarter section, which this correction did. See Co. St. Water Ct. Rule 4(b)(3). However, the water judge "may determine that republication is unnecessary" if it determines that "no person will be injured" by foregoing republication. Rule 4(c). Here, the water court made that determination. And because the inquiry notice standard was met, that determination was reasonable.

¶19 Thus, Brooks's original resume notice was sufficient because it would have placed a reasonably interested party on inquiry notice. As such, the water court did not err in granting summary judgment in favor of Brooks on the claim that the resume notice was deficient.

B. Remaining Claims

¶20 Once the water court found that the resume notice was sufficient, it should have dismissed the remaining claims for lack of subject-matter jurisdiction because they were not "water matters" within the purview of section 37-92-203, C.R.S. (2018).

¶21 Water courts in Colorado have "exclusive jurisdiction of water matters...." Id. This grant of subject-matter jurisdiction includes ancillary issues that "directly affect the outcome of water matters within the exclusive jurisdiction of the water court." Crystal Lakes Water & Sewer Ass'n v. Backlund , 908 P.2d 534, 543 (Colo. 1996) ("Although the water court has jurisdiction over issues ancillary to water matters, that court does not have jurisdiction over real property issues only tangentially related to a water matter."); see also FWS Land & Cattle Co. v. Colo. Div. of Wildlife , 795 P.2d 837, 841 (Colo. 1990) (holding that a water court properly refused to determine "a right to use lands underlying a reservoir [because it] involve[d] real property issues and only tangentially involve[d] water matters").

¶22 Because the resume notice in this case was sufficient and Brooks's change of water right was valid, the water court lacked ancillary jurisdiction over Sheek's remaining claims for relief. Any additional claims deriving from Brooks's point of diversion change, such as trespass or theft, do not directly affect the outcome of the water matter and therefore may be brought only before the district court. See Crystal Lakes , 908 P.2d at 543 (holding that water courts have jurisdiction over ancillary matters that "directly affect the outcome of water matters").

¶23 The water court, however, found that the claims of trespass and the request for injunctive relief were moot. Because the water court lacked jurisdiction over those claims, it should not have concluded that they were moot. But because the water court did dismiss all of the claims, we affirm the judgment, albeit on different grounds.

III. Conclusion

¶24 The published resume notice in this case was sufficient to put Sheek on inquiry notice, and all the remaining claims should thus have been dismissed for lack of subject-matter jurisdiction. We therefore affirm, on different grounds, the judgment of dismissal.

      Brooks requested an award of attorneys' fees. We deny that request.