author: DAVIS, Judge.

text:
    2002 UT App 67
    Linda R. ACOSTA, Petitioner, v. LABOR COMMISSION, Salt Lake Regional Medical Center, and Liberty Mutual Insurance, Respondents.
    No. 20000162-CA.
    Court of Appeals of Utah.
    March 7, 2002.

      Gerald J. Lallatin and Sandra N. Dredge, Dredge & Lallatin LC, Provo, for Petitioner.
    Alan Hennebold, Labor Commission, Michael E. Dyer, and Kristy L. Bertelsen, Blackburn & Stoll LC, Salt Lake City, for Respondents.
    Before Judges DAVIS, GREENWOOD, and ORME.
   OPINION

DAVIS, Judge.

1 1 Petitioner Linda Acosta seeks review of a Labor Commission order reversing an Administrative Law Judge's (ALJ) order awarding her workers' compensation benefits. The Commission ruled that because Acosta has a preexisting condition that contributed to her injury, she was subject to the legal causation test enunciated in Allen v. Industrial Commission, 729 P.2d 15 (Utah 1986), and that she did not meet the Allen test. We affirm.

BACKGROUND

12 Acosta was injured on December 20, 1998, while employed as a licensed practical nurse at Salt Lake Regional Medical Center. Acosta was working in the maternity unit, and after she bent down to lift an eight pound infant out of an isolette, which is similar to a crib, she felt pain in her back as she turned to hand the child to its mother. Acosta's pain grew worse, she was eventually diagnosed with degenerative conditions of the spine, including spinal stenosis, and she required surgery. Acosta had no history of prior back pain.

T8 Acosta filed for workers' compensation benefits, and Respondents Salt Lake Regional Medical Center and Liberty Mutual Insurance Company denied her claim. Acosta filed an application for a hearing in March 1999, and Respondents, in their answer, alleged that Acosta suffered from a preexisting condition and that she failed to satisfy the Allen test for legal causation. A formal hearing was held before an ALJ on September 1, 1999.

T4 In an October 1999 order, the ALJ found that Acosta had preexisting but asymptomatic conditions that were discovered after December 20, 1998, that she had never received any treatment for the preexisting back problems, and that, despite the preexisting condition, she had worked continuously for the hospital since 1980. The ALJ concluded that medical causation had been shown by a preponderance of the evidence. The ALJ also concluded that because Acosta's injury was enhanced by the workplace, she did not have to meet the Allen test. The ALJ went on though, to conclude that if the Allen test were applicable, Acosta had met it. In doing so, the ALJ relied on a cumulative trauma theory that he raised sua sponte. The ALJ awarded temporary total disability benefits from April 1999 through the time in August 1999 when Acosta returned to work part time and temporary partial disability until such time as maximum medical improvement was reached.

T5 Respondents filed a motion for review with the Commission, and the Commission reversed the ALJ in a January 2000 order, ruling that Allen applied and that Acosta had failed to meet the Allen test for legal causation. In doing so, the Commission noted that the preexisting condition contributed to the injury for which Acosta was seeking benefits. The Commission, quoting from Allen, 729 P.2d at 26, concluded that the act of lifting a newborn infant from a erib was not an "unusual or extraordinary exertion over and above the 'usual wear and tear and exertions of nonemployment life"" The Commission noted that Acosta had relied on a "single, specific work activity" to meet the Allen test for legal causation, and stated that it was inappropriate for the ALJ to have raised a cumulative trauma theory to justify an award of benefits.

T 6 Acosta filed a timely petition for review in this court. Subsequently, Respondents filed a motion to dismiss the appeal because Acosta's brief was past due. In an August 30, 2000 order, this court, citing Acosta's failure to timely file her brief, ordered the appeal dismissed unless Acosta filed her brief within ten days. During this time period, Acosta was in the process of dismissing her attorney of record and was seeking new counsel. She later filed a pro se motion to reinstate her appeal, and that motion was granted on September 21, 2000, on the condition that she file her brief within thirty-five days of the order. This order was sent not to Acosta, but to the attorney Acosta was seeking to dismiss, and then the case was prematurely remitted to the Commission on October 18-before the thirty-five day period for Acosta to file her brief had run. Acosta filed another pro se motion, in the form of a letter, on January 12, 2001, explaining her difficulty obtaining counsel and again asking this court to reinstate her appeal. In a January 28, 2001 order, the remittitur was recalled and Acosta's appeal was again reinstated and a briefing schedule was set. Her current counsel then appeared and briefing commenced.

ISSUES AND STANDARD OF REVIEW

T7 Respondents argue that: (1) this court lacks subject matter jurisdiction because of the October 18, 2000 remittitur, and (2) because the court committed manifest error in reinstating the appeal, the appeal should be dismissed.

T8 Acosta argues that: (1) the Allen test is inapplicable in cases of asymptomatic preexisting conditions, and (2) if the Allen test is applicable, the ALJ correctly ruled that Acosta met the legal causation standard for preexisting conditions.

19 "Whether appellate jurisdiction exists is a question of law which [is] reviewed for correctness." Pledger v. Gillespie, 1999 UT 54, ¶ 16, 982 P.2d 572.

110 " Judicial review of final agency actions is governed by the Utah Administrative Procedures Act'" Color Country Mgmt. v. Labor Comm'n, 2001 UT App 370,-1 16, 38 P.3d 969, petition for cert. filed, Jan. 4, 2002 (quoting Viktron/Lika Utah v. Labor Comm'n, 2001 UT App 8,% 5, 18 P.3d 519). Under Utah Code Ann. § 68-46b-16(4)(d) (1997), we may grant relief to a party who has been "substantially prejudiced" by an agency that "has erroneously interpreted or applied the law." The Allen test is a judicially crafted rule that the Commission is in no better position to interpret than this court; thus, whether the Commission erroneously interpreted the Allien decision to apply to asymptomatic preexisting conditions is a question of law reviewed for correctness. Ree Esquivel v. Labor Comm'n, 2000 UT 66, ¶ 12-19, 7 P.3d 777; Morton Int'l, Inc. v. Utah State Tax Comm'n, 814 P.2d 581, 587 (Utah 1991); Nyrehn v. Industrial Comm'n, 800 P.2d 330, 333 n. 5 (Utah Ct.App.1990).

111 Whether the Commission erroneously applied the Allen test is a mixed question of law and fact reviewed for reasonableness and rationality. See AE Clevite, Inc. v. Labor Comm'n, 2000 UT App 35,17, 996 P.2d 1072 ("[The Legislature has granted the Commission discretion to determine the facts and apply the law to the facts" and this court will uphold the Commission's determination unless it "exceeds the bounds of reasonableness and rationality.").

ANALYSIS

$12 Respondents argue we are without jurisdiction to hear this appeal because we dismissed the appeal and the October 18, 2000 remittitur divested us of jurisdiction and returned jurisdiction to the Commission. - Respondents cite State v. Clark, 913 P.2d 360 (Utah Ct.App.1996), for the proposition that once a party has failed to file a brief as required, the appeal has been dismissed, and the time for a motion for reinstatement under Rule 23A of the Utah Rules of Appellate Procedure has passed, then the court loses jurisdiction and the dismissal is an adjudication on the merits barring a subsequent appeal of the same issues under the doctrine of res judicata. Clark is easily distinguishable from the instant appeal because in Clark, the court remitted the case to the trial court only after the time had run for the appellant to file a petition for certiorari or to move for reinstatement of the appeal or for a rehearing. See id. at 861.

1 13 This case is controlled by Hi-Country Estates v. Foothills Water Co., 942 P.2d 305 (Utah 1996) (per curiam). In Hi-Country Estates, Foothills Water sought review of our decision in Hi-Country Estates v. Bagley & Co., 863 P.2d 1 (Utah Ct.App.1993), in the Utah Supreme Court by filing a petition for certiorari, after receiving an extension of time to do so from the supreme court. See Hi-Country Estates, 942 P.2d at 805. This court mistakenly remitted the case to the trial court while Foothills's time for seeking review in the supreme court was still pending, and Foothills later petitioned this court to recall the remittitur. We refused,. and Foothills unsuccessfully moved the trial court to stay the proceedings pending review in the supreme court. The trial court instead modified its judgment in accordance with our decision. See id. at 306. Nearly six months later, the supreme court granted Foothills's petition for certiorari from the modified judgment, for the express purpose of reviewing whether the trial court could properly modify the judgment while a petition for certiorari was pending before it. Our supreme court ruled that this court had "issued its remittitur prematurely, and jurisdiction was never returned to the trial court." Id. {emphasis added). The supreme court went on to state that, not only had we erred in prematurely remitting the case to the trial court, but we had also erred when we "refused to recall [the] erroneously issued re-mittitur," and the supreme court ultimately voided the trial court's modification entirely. Id. at 307.

114 Thus, not only was it error to remit the case on October 18, 2000, before the time had run for Acosta to file her brief, but it also would have been error not to recall the remittitur and reinstate the appeal as contemplated by Rule 238A of the Utah Rules of Appellate Procedure.

15 Respondents contend that it was "manifest error" to reinstate Acosta's appeal based "solely upon [Acosta's] January 12, 2001 ex parte communication." Respondents argue that this court violated their due process rights because they were not notified of Acosta's motion to reinstate nor were they given an opportunity to file a responsive pleading, and they ask that the appeal be dismissed.

116 We decline to dismiss the appeal on this basis. We can reinstate an appeal "upon motion of the appellant" for any "failure to take a step other than the timely filing of a notice of appeal ... for ... mistake, inadvertence, surprise, or excusable neglect." Utah R.App. P. 28A. Because the remittitur was premature, and in light of our analysis above under Hi-Country Estates, we fail to see what possible impact any responsive pleading filed by the Respondents could have had on our decision to reinstate the appeal-which we would readily have done sua sponte had we been the first to discover the error.

§17 We turn to the merits of Acosta's appeal. In order to recover workers' compensation benefits, an employee must prove she was injured "by accident arising out of and in the course of the employee's employment." Utah Code Ann. § 34A-2-401 (1997). Allen requires: (1) that the injury be " 'by accident," and (2) that " 'there be a causal connection between the injury and the employment'" Nyrehn, 800 P.2d at 334 (quoting Allen, 729 P.2d at 18). Allen then requires a claimant to show both medical causation and legal causation. In this case, the medical causation and "by accident" components are not at issue. All that is before us is whether Acosta carried her burden of proving legal causation.

T18 Acosta first challenges the Commission's decision that the Allen test for proving legal causation where an employee has a preexisting condition applies to asymptomatic preexisting conditions. Acosta urges us to treat claimants with. asymptomatic preexisting conditions differently than those claimants with preexisting conditions that were apparent before an industrial accident. Acosta's argument turns primarily on her reading of the words "suffers from" in Allen, 729 P.2d at 26. The relevant passage from Allen provides: "[Where the claimant suffers from a preexisting condition which contributes to the injury, an unusual or extraordinary exertion is required to prove legal causation." Id. (emphasis added). Acosta also points to the following language in Ny-rehn as support for her contention that the Allen test does not apply to asymptomatic preexisting conditions: "An ALJ may not simply presume that the finding of a preexisting condition warrants application of the Allen test. An employer must prove medically that the claimant 'suffers from a preexisting condition which contributes to the injury" Nyrehn, 800 P.2d at 334 (quoting Allen, 729 P.2d at 26).

[ 19 Based on this language, Acosta argues that asymptomatic preexisting conditions do not trigger the Allen test because the claimant does not really suffer from any symptoms. Acosta relies on a narrow definition of the word "suffer" that includes to experience or to endure pain or affliction. She argues that the word suffer, in the workers' compensation context, refers to "one who has had prior injuries or complaints in the same low back area and has received treatment for that injury or complaint." Acosta then argues that because the word asymptomatic means symptomless, a claimant with an asymptomatic preexisting condition cannot be "suffering from" a preexisting condition when there have been no prior symptoms, treatment or loss of employment. Acosta then concludes from this that if a claimant is not "suffering from" the preexisting condition as she defines it, "then that condition cannot be found to contribute to her injury."

420 Although this argument is superficial ly appealing, it must fail for a number of reasons. First, Acosta misreads Nyrehn to support her position that asymptomatic preexisting conditions are outside the scope of the Allen test. She concludes that because we reversed the Commission in Ny-rehn and the claimant's preexisting condition was asymptomatic, we must have ruled as we did because the preexisting condition was asymptomatic. This is not so. The fact that the preexisting condition was asymptomatic was immaterial to the Nyrehn decision. In Nyrehn, the Commission had failed to make a required finding of fact-that the preexisting condition contributed to the injury. See Nyrehn, 800 P.2d at 384-35. We ruled that this was a threshold finding necessary to make the Allen test applicable, although we eventually ruled this was harmless error because the claimant satisfied the strictures of Allen when we considered the cumulative effect of the claimant's workplace duties. See id. Thus, we never held that the Allen test was inapplicable in Nyrehn, let alone that it was inapplicable because the claimant's preexisting condition was asymptomatic.

{21 Second, Acosta's argument that asymptomatic preexisting conditions are outside the Allen test depends on her narrow definition of the verb "suffer." In contrast, Respondents maintain that "suffers from" means merely "to have." Respondents point to the context and purpose of the use of the language "suffers from" in Allen as supporting their interpretation.

7° & 4 22 Webster's offers "experience," "undergo," and "bear" as synonyms for "suffer." Webster's Third New International Dictionary 2284 (1986). It also defines "suffer" as "to submit to or endure death, affliction, penalty, or pain or distress"; "to be in a state of disability"; to "be subject to something disabling"; and "to be at a disadvantage." Id. These alternative meanings support Respondents' broader reading of the phrase "suffers from" as used by the Allen court.

T23 The purpose behind the legal causation test for preexisting conditions announced in Allen was to distinguish between injuries that

eoincidentally occur at work because a preexisting condition results in symptoms which appear during work hours without any enhancement from the workplace, and . those injuries which occur because some condition or exertion required by the employment increases the risk of injury which the worker normally faces in ... everyday life.

Allen, 729 P.2d at 25. Or, as stated by Professor Larson, "the object is to distinguish work-connected collapses from those that are due to normal progression of a disease." 2 Arthur Larson & Lex K. Larson, Larson's - Workers' - Compensation - Low § 46.03[4], at 46-18 (2001). The underlying purpose served by making this distinction is to prevent awarding benefits where there is not "a sufficient causal connection between the disability and the working conditions." Allen, 729 P.2d at 25.

T 24 In further describing preexisting conditions, Larson speaks of "having a ... personal disease," and not necessarily of enduring the pain or symptoms associated with a preexisting - condition. Larson, _ supra § 46.083[2], at 46-7 (emphasis added). Larson also notes a distinction between a "prior heart weakness" as opposed to a heart that is "previously healthy." Id. § 46.03[2], at 46-10. The use of this objective language supports Respondents' position that the Allen court, which cited Larson extensively in formulating the legal causation test, did not mean to limit the meaning of the phrase "suffers from" to claimants who subjectively experience pain or symptoms prior to their workplace injury. Instead, this language supports an interpretation of "suffers from" that includes those claimants who simply have the preexisting condition-whether or not they experience pain or symptoms.

125 The concurring opinion of Justice Zimmerman in Holloway v. Industrial Commission, 729 P.2d 31, 82 (Utah 1986) (Zimmerman, J., concurring), issued exactly one week after Allen, is most helpful in analyzing this question. In focusing on what should be the scope of the inquiry on remand in Holloway, Justice Zimmerman wrote:

I would observe that the preexisting condition of which Allen speaks need not be patent; in fact, it need not have been known or knowable to anyone before the injury. The sole question is whether the worker came to the workplace with a condition that increased his risk of injury. If he did and that condition contributed to the injury, then Allen's higher standard of legal causation comes into play so as to place that worker on the same footing as one who did not come to work with a preexisting condition. To rule otherwise would create the strong likelihood that a worker who has a preexisting condition and whose virtually inevitable injury simply happens to occur at work will be able to foist the cost of that injury on his employer when the workplace had little to do with causing the injury.

Id. (citation omitted). We believe Justice Zimmerman's concurrence correctly states the law in Utah.

126 Other jurisdictions have applied a test for legal causation similar to our Allen test in cases where the preexisting condition was asymptomatic. See, eg., Market Food Distribs., Inc. v. Levenson, 383 So.2d 726 (Fla. Dist.Ct.App.1980); Conn v. ITL, Inc., 187 Neb. 112, 187 N.W.2d 641, 642-44 (1971) (applying test similar to Allen for case of preexisting atherosclerosis with no prior symptoms of heart disease or prior heart attacks). The facts of the Levenson case are remarkably similar to those here. In Leven-son, the employee injured himself on the job when he bent over to pull out a twenty to thirty pound desk drawer. 888 S8o.2d at 726. The Florida court reversed an award of benefits in that case because Levenson had an asymptomatic preexisting spinal condition-lumbar stenosis-that "had advanced to the point that an injury could have been triggered at any time during a normal torsional movement." Id. at 727. In doing so, the Florida court relied on the same passage from Larson cited by our supreme court in Allen, and stated a test for legal causation identical to our Allen test. See id. The Florida court noted that the issue was whether the employee/claimant brought some element of personal risk to the job in the form of a preexisting condition. If so, in order to recover benefits, then he or she must demonstrate an unusual or extraordinary exertion greater than that normally performed in non-employment life. See id.

127 The real issue in cases of preexisting conditions is not whether the claimant has suffered pain, nor is it a problem of proof, it is quite simply a problem of causation. When analyzing whether an injury arose out of and in the course of employment, it matters not at all, from the standpoint of legal causation, whether the preexisting condition was symptomatic or asymptomatic. Once the employer/insurer has shown that there was a preexisting condition that contributed to the injury, that is, that the employee has brought some element of risk of injury to the job him or herself, the Allen test applies-whether anyone knew prior to the accident that the condition existed or not. It is simply an objective question that queries whether there was a preexisting condition in fact-whether the preexisting condition was ascertained, or ascertainable, is not determinative.

128 Finally, Acosta's conclusion, that if a claimant is not "suffering from" actual pain and symptoms of a preexisting condition then the condition cannot contribute to the injury, is fallacious. It assumes as a medical necessity that any preexisting condition that could possibly contribute to an injury must be knowable before the injury occurs. The facts of this very case prove the assumption incorrect. Both the ALJ and the Commission found that Acosta had a preexisting condition consisting of spinal stenosis, or narrowing of the spinal canal, and the Commission determined that, "[the medical record establishes that this preexisting condition actually contributed to the injury for which she now seeks compensation."

129 Under the Utah Administrative Procedures Act, we review the Commission's factual determinations to see whether they are "supported by substantial evidence when viewed in the light of the whole record" before us. Utah Code Ann. § 63-46b-l6(4)(g) (1997). Substantial evidence has been defined as " 'that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion" U.S. West Communications, Inc. v. Public Serv. Comm'n, 882 P.2d 141, 146 (Utah 1994) (quoting Boston First Nat'l Bank v. Salt Lake County Bd. of Equalization, 799 P.2d 1168, 1165 (Utah 1990)).

130 Here, the medical evidence in the record, expressly relied upon by the Commis-gion, consists of a March 1999 report by Acosta's surgeon, Dr. Robert Hood. Dr. Hood writes: "I do not think there is any question that the severe stenosis seen on [the] MRI is the cause of her symptoms and that it first became symptomatic as a result of the work injury even though she clearly had some pre-existing disease." In addition, a report by Dr. Bart Fotheringham, who examined Acosta in February 1999-prior to her surgery-indicates that

these degenerative changes [in Acosta's spine] are clearly pre-existing with this having been gradually increasing over multiple years. I suspect, though, that there has been some type of slight disk herniation that then sort of set the patient into her current symptoms. I do not think it would have to be much ... due to the significant stenosis.

These medical reports are adequate to convince us that the Commission's finding that the preexisting condition contributed to the injury is supported by substantial evidence.

T381 Acosta next argues that, even if the Allen test applies to her case, the Commission applied the test incorrectly when it reversed the ALJ's ruling. The ALJ, in ruling Acosta had satisfied Allen, relied on a cumulative trauma theory. The ALJ, in his order, wrote:

The single lift of an eight pound baby, turning and handing it to the mother, considered alone, would not constitute an extraordinary exertion under the Allen test of legal causation.... The totality of the circumstances in Acosta's case include much more than this single event for she had five babies and their respective mothers to care for. That uncontradicted testimony is supplemented by her deposition which indicates ... that if the mother was breastfeeding, the lifting of a child would be repeated about every two hours, or four times in an eight-hour shift, Of course there would be a second lift from the mother back to the isolette. For five mothers, that would be 40 lifts for feeding alone, and certainly there would be many other lifts for changing, bathing and visitors, probably doubling that number. But even that was only a portion of petitioners [sic] work.... Acosta testified that she had to assist the patients in their total care and activities of daily living, e.g. [but not limited tol, helping patients with a C-section up and to the bathroom. Petitioner also testified that she often had to pick things up from the floor in assisting the mothers.
... [EJven if legal causation is required ..., Acosta has shown by a preponderance of the evidence that her aggregated workplace duties caused her injury and exceeded the Allen test.

The Commission, in reversing the award of benefits, cited Hilton Hotel v. Industrial Commission, 897 P.2d 352 (Utah Ct.App.1995), and noted that Acosta had "relied on a single, specific work activity to meet the test of legal causation." The Commission stated it was "inappropriate for either the ALJ or the Commission to raise other theories, such as cumulative trauma or cumulative exertion, to justify an award of benefits."

132 Respondents argue that the Commission was correct to reverse the award of benefits because Acosta never raised a cumulative trauma theory, it was improper for the ALJ to do so sua sponte, and the single lifting of a small child to chest height is not an unusual or extraordinary exertion under Allen.

133 We agree with Respondents that the Commission acted reasonably and rationally in its application of the law to the facts of this case in reversing the ALJ's award of benefits. First, as noted by the Commission, under Hilton Hotel, it was improper for the ALJ to raise the cumulative trauma theory on his own because doing so denied Respondents "the opportunity to present evidence and challenge this type of claim." 897 P.2d at 356. Acosta, in her pleadings and correspondence, failed to raise the cumulative trauma or cumulative exertion she experienced in her workplace. Instead, she relied on the one specific instance on December 20, 1998, when she lifted one eight pound infant and turned to hand the child to its mother. Second, a single lift of one eight pound infant is not enough to satisfy the Allen test. In fact, the Allen court itself, in listing examples of ordinary exertions of nonemployment life, specifically mentioned that "lifting a small child to chest height" was a "typical nonem-ployment activitly] ... generally expected in today's society." Allen, 729 P.2d at 26.

1 34 Hence, because Acosta cannot rely on a cumulative trauma theory, and the Allen court itself specifically rejected lifting a small child to chest height as an unusual or extraordinary exertion, the Commission acted reasonably and rationally in denying her claim for workers' compensation benefits.

CONCLUSION

"[ 35 We conclude that we have jurisdiction to consider the merits of Acosta's appeal. We conclude that the Commission was correct in ruling that the Allen test for legal causation for preexisting conditions does apply to Acosta's asymptomatic preexisting condition. We also conclude that the Commission's ruling that Acosta did not meet the Allen test was reasonable.

[ 36 Affirmed.

137 WE CONCUR: PAMELA T. GREENWOOD and GREGORY K. ORME, JJ.

      . Acosta also argues that Crosland v. Board of Review, 828 P.2d 528, 532 (Utah Ct.App.1992), supports treating asymptomatic preexisting conditions differently. We do not read Crosland to support Acosta's position.

      . The parties dispute how Acosta's approach would affect proceedings before the Commission. Respondents argue Acosta's interpretation of the word "suffer" would "wreak evidentiary havoc" before the Commission, while Acosta argues this would simply not be the case. Neither party makes a convincing argument on this issue, and we decline to give this issue much weight.

      . In her "First Report of Injury," filed with the Commission, Acosta, in answering how the injury occurred, replied: "Lifting a baby to crib, twisted back." (Emphasis added.) She also named a specific date, December 20, 1998, and a specific time of the occurrence, 10:00 a.m. In the ''Physician's Initial Report," also filed with the Commission, under the section captioned "Employee's Statement of Cause of Injury," is written: "Lifting an infant from an isolette." (Emphasis added.) In her application for hearing, Acosta described the accident occurring as follows: "I was lifting a baby out of an isolet [sic] to hand to its mother."
      Just as in Hilton Hotel v. Industrial Comm'n, 897 P.2d 352, 356 (Utah Ct.App.1995), the way this injury was characterized by the claimant precluded the ALJ from raising a cumulative trauma theory sua sponte.


source: Caselaw Access Project

author: ORME, Judge.

license: Public Domain

text:
    2002 UT App 63
    PROVO CITY, Plaintiff and Appellee, v. Sean G. THOMPSON, Defendant and Appellant.
    No. 20000071-CA.
    Court of Appeals of Utah.
    March 7, 2002.

      Dana M. Facemyer, Provo, for appellant.
    Vernon F. Romney, Provo City Attorney's Office, Provo, for appellee.
    Before Judges JACKSON, GREENWOOD, and ORME.
   OPINION

ORME, Judge.

T1 Defendant Sean G. Thompson appeals from a bench trial conviction of telephone harassment, a class B misdemeanor, in violation of Utah Code Ann. § 76-9-201 (1999), as adopted by Provo City. Defendant argues that section 76-9-201 is both unconstitutionally overbroad and unconstitutionally vague. He also argues that he received ineffective assistance of counsel. We conclude that portions of section 76-9-201 are indeed facially overbroad. However, we affirm defendant's conviction because we conclude that the portion of subsection 76-9-201(1)(b) most applicable to defendant's actions is neither facially overbroad nor void for vagueness, and because we find no merit in defendant's ineffective assistance claim.

BACKGROUND

12 "When reviewing a bench trial, '[wle recite the facts from the record most favorable to the findings of the trial court.'" State v. Layman, 953 P.2d 782, 784 n. 1 (Utah Ct.App.1998) (quoting State v. Moosman, 794 P.2d 474, 476 (Utah 1990)). "We present conflicting evidence only when necessary to understand issues raised on appeal." State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116.

{ 3 In early May 1999, defendant's ex-wife, Carolyn, and their five-month-old daughter lived alone in an apartment in Provo City. During the late evening of May 1, and the early morning of May 2, 1999, defendant phoned Carolyn ten times within the space of an hour. Carolyn told defendant two or three times that his calls were frightening her and asked him to quit calling. When defendant continued to call, Carolyn phoned the police.

Officer Bastian arrived at Carolyn's apartment at 12:47 a.m. and observed that Carolyn was "nervous, emotional, [and] appeared kind of scared." She told Officer Bastian that defendant "had been calling her and upsetting her by his frequent phone calls and [that] she just wanted him to stop." As Officer Bastian spoke with Carolyn, the phone in her apartment rang again. The phone's caller identification function indicated that the call was from defendant, bringing his total calls to eleven within the hour.

T5 Officer Bastian answered the phone and asked who was calling. Defendant identified himself. Officer Bastian told defendant not to leave his apartment because he, Officer Bastian, would soon be arriving. Officer Bastian then went to defendant's apartment and cited defendant for telephone harassment.

1 6 Defendant claimed at trial that Carolyn initiated the first telephone call and expressed suicidal intentions. Defendant said he had "learned in school and from counselors and therapists" that "whenever you're faced with a situation where you're talking with somebody who ... is threatening to commit suicide ..., as soon as they hang up you immediately call them back to get them on the line ... and keep talking to them, and if they hang up, call back." Thus, he claimed, he did not call Carolyn repeatedly with any intent to annoy her, but only out of concern for her safety.

T7 Defendant failed, however, to mention any of his concerns for Carolyn's safety to Officer Bastian either when Officer Bastian first spoke to defendant on the telephone or when Officer Bastian arrived at defendant's apartment. Instead, Officer Bastian testified that defendant admitted he had been drinking and that he had also taken antidepressant medication. Defendant testified that when Officer Bastian scolded him for drinking too much, he became concerned because Officer Bastian threatened to arrest him and simply forgot to mention his concerns for Carolyn.

T8 Following a bench trial, defendant was found guilty of telephone harassment. Specifically, the trial court found that defendant made "a large number of telephone calls" to Carolyn; that "she asked the defendant not to make additional calls and yet he continued to do so"; and that defendant's "clear ... intent [was] to annoy." Defendant now appeals.

ISSUES AND STANDARD OF REVIEW

19 Defendant claims he received ineffective assistance of counsel. We generally will not review a claim of ineffective assistance of counsel on direct appeal unless the defendant is represented by new counsel on appeal and the record is adequate to review the defendant's claims. See State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376; State v. Vessey, 967 P.2d 960, 964-65 (Utah Ct.App.1998). If these conditions are met, "we will review [ineffective assistance] claims as a matter of law." Maestas, 1999 UT 32 at 120, 984 P.2d 376. "To establish that he received ineffective assistance of counsel, [defendant] must show that his counsel 'rendered deficient performance which fell below an objective standard of reasonable professional judgment' and that 'counsel's deficient performance prejudiced him.'" Id. (quoting State v. Chacon, 962 P.2d 48, 50 (Utah 1998)).

110 Defendant also argues that Utah Code Ann. § 76-9-201 (1999) violates the First Amendment of the United States Constitution because it is unconstitutionally overbroad on its face and because it is void for vagueness. "A constitutional challenge to a statute presents a question of law, which we review for correctness. When addressing such a challenge, this court presumes that the statute is valid, and we resolve any reasonable doubts in favor of constitutionality." State v. Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191 (citation omitted).

I. Ineffective Assistance of Counsel

{11 We only briefly address defendant's ineffective assistance of counsel claims, which are unavailing. - Defendant claims two deficiencies in his counsel's performance. First, he alleges that had counsel properly investigated, counsel would have found evidence that Carolyn had previously shown suicidal tendencies. Such evidence, he claims, would have bolstered defendant's testimony that he did not call repeatedly with intent to annoy but rather to prevent Carolyn from harming herself. However, there is nothing in the record identifying what evidence counsel may have found had he investigated further. Defendant states only in his brief that he "had evidence of a prior occasion in which [Carolyn] threatened to kill herself and all passengers ... who were with her while she was driving a car." However, defendant did not request a remand under Rule 23B of the Utah Rules of Appellate Procedure to substantiate the assertion he now argues would support his claim of ineffective assistance. Without a proper record before us, we are unable to say whether counsel's alleged deficiency in failing to investigate prejudiced defendant. See State v. Vessey, 967 P.2d 960, 964-65 & n. 5 (Utah Ct.App.1998).

$12 Defendant also claims counsel's performance was deficient in not drawing more attention to two contradictory statements made by Carolyn. On direct examination, Carolyn said she could not remember whether she had called defendant on the day of the incident, but she said if she had, it was to ask him whether he wanted to come visit their daughter. On eross-exami-nation, Carolyn admitted she had called defendant on the day of the incident, but again said her call was only to ask if he wanted to visit their daughter and that she had not expressed- any intent to harm herself. "[In reviewing counsel's performance, we give trial counsel wide latitude in making tactical decisions and [do] not question. those tactical decisions unless there is no reasonable basis supporting them." State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376. Defense counsel might have considered that successfully impeaching Carolyn's testimony by drawing out the inconsistency was sufficient, and that to delve further into the subject might only have served to highlight the contrast between Carolyn's gracious encouragement of visitation and defendant's subsequent harassing behavior. Thus, we cannot say defense counsel's decision not to pursue the contradiction in Carolyn's testimony fell outside the wide latitude accorded trial counsel in making tactical decisions.

II. Constitutionality of Section 76-9-201

{13 Defendant argues that Utah Code Ann. § 76-9-201 (1999) is unconstitutionally overbroad on its face and void for vagueness.

Faced with overbreadth and vagueness attacks on a statute or ordinance, our first task is to determine whether the enactment makes unlawful a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail and we should then examine the facial vagueness challenge. If it does, it may be held facially invalid even if it also has legitimate application.

Logan City v. Huber, 786 P.2d 1372, 1375 (Utah Ct.App.1990) (citations omitted).

'I 14 At the time of the incident giving rise to this case, section 76-9-201 read:

(1) A person is guilty of telephone harassment and subject to prosecution in the jurisdiction where the telephone call originated or was received if with intent to annoy, alarm another, intimidate, offend, abuse, threaten, harass, or frighten any person at the called number or recklessly creating a risk thereof, the person:
(a) makes a telephone call, whether or not a conversation ensues;
(b) makes repeated telephone calls, whether or not a conversation ensues, or after having been told not to call back, causes the telephone of another to ring repeatedly or continuously;
(c) makes a telephone call and insults, taunts, or challenges the recipient of the telephone call or any person at the called number in a manner likely to provoke a violent or disorderly response;
(d) makes a telephone call and uses any lewd or profane language or suggests any lewd or lascivious act; or
(e) makes a telephone call and threatens to inflict injury, physical harm, or damage to any person or the property of any person.
(2) Telephone harassment is a class B misdemeanor.

Utah Code Aun. $ 76-9-201 (1999.

{15 The information charging defendant with telephone harassment did not indicate under which subsection of Utah Code Ann. § 76-9-201 (1999) he was charged. The trial court's findings, however, support a guilty verdict only under subsections (a) and (b) of section 76-9-201. We therefore confine our analysis of section 76-9-201 to subsections (a) and (b); we do not address the constitutionality of the remaining subsections. See Provo City v. Whatcott, 2000 UT App 86, ¶ 9 n. 2, 1 P.3d 1113.

A. Subsection (a)

1 16 In Provo City v. Whatcott, which was decided while this case was pending on appeal, we analyzed subsections (a) and (d) of section 76-9-201, concluding that each was unconstitutionally overbroad. See id. at 119 n. 2; 16. Whatcott's analysis of subsection (a) forecloses the need to revisit here the question of subsection (a)'s constitutionality. See State v. Belgard, 615 P.2d 1274, 1275-76 (Utah 1980) (holding that a defendant may claim the benefit of appellate decisions issued while the defendant's case is pending final judgment on appeal). Thus, we restate Whatcott's analysis of subsection (a) only as useful prelude to our similar analysis of subsection (b).

1 17 An enactment which is unconstitutionally overbroad "is one 'which does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary cireumstances constitute an exercise of freedom of speech or the press'" Logan City v. Huber, 786 P.2d 1372, 1375 (Utah Ct.App.1990) (quoting Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 786, 741-42, 84 L.Ed. 1098 (1940)) (additional citation omitted). In Whatcoit we said of section 76-9-201:

Presumably, the Legislature intended to prohibit threatening and menacing calls, and calls that would provoke a breach of the peace. This is certainly within the Legislature's power, and does not offend the First Amendment.
But section 76-9-201 sweeps even more broadly. Under subsection (a), the statute prohibits any "telephone call, whether or not a conversation ensues," where the caller has "recklessly creat[ed] a risk" of "annoy[ing], alarm[ing] ..., intimidat{[ing], offend[ing], abus[ing], threaten{ing], ha-rasslingl, or frighten{ing]" the recipient. Id. Read thus, the statute would prohibit a potentially huge universe of otherwise legitimate telephone calls.

2000 UT App 86 at TT 10-11, 1 P.3d 1113.

1 18 We then gave five example categories of legitimate calls prohibited under subsection (a): (1) "unwanted telephone solicitations made to a private home during the dinner hour"; (2) calls from a mother to "a young adult who has recently moved out of the family home," which the mother makes in order "to make sure he is alright," and which she continues to make despite "his exasperation (frequently and vocally expressed)"; 8) calls from " 'a consumer ... [to] the seller or producer of a product to express dissatisfaction of product performance'"; (4) calls from " 'a businessman ... [to] another to protest failure to perform a contractual obligation' "; and (5) calls from " 'a constituent ... [to] his legislator to protest the legislator's stand on an issue." Id. at 1° 12, 14 (quoting State v. Dronso, 90 Wis.2d 110, 279 N.W.2d 710, 714 (App.1979)). Each of these calls would be prohibited because of the callers' "conscious disregard of the substantial likelihood that the call would annoy [the recipient and thus] bring the call within the statute's ambit." Id. at 279 N.W.2d 710. "These few examples show that the overbreadth of subsection ](a) ... is real and substantial." Id. at I 14, 279 N.W.2d 710. Thus, if defendant's conviction were based solely on subsection (a), we would be constrained to reverse.

B. Subsection (b)

1 19 We now turn to an analysis of subsection (b). Subsection (b) contains two parts. The first prohibits the "mak[ing of] repeated telephone calls, whether or not a conversation ensues," if the caller acts with the requisite intent, i.e., "with intent to annoy, alarm another, intimidate, offend, abuse, threaten, harass, or frighten any person at the called number or recklessly creat{es] a risk thereof." Utah Code Ann. § 76-9-201(1)(b) (1999). The second prohibits the "causfing of] the telephone of another to ring repeatedly or continuously" if the caller "ha[s] been told not to call back," and if the caller acts with the requisite intent. Id. We discuss each of subsection (b)'s prohibitions separately.

1. Repeated Calling

120 Subsection (a) prohibits "a [single] telephone call, whether or not a conversation ensues," if made with the requisite intent. Utah Code Ann. § 76-9-201(1)(a) (1999). The first part of subsection (b) criminalizes "repeated telephone calls, whether or not a conversation ensues," if made with the requisite intent. Id. § 76-9-201(1)(b) (emphasis added). Prohibiting repeated calls rather than only single calls does little to narrow the field of otherwise legitimate communications that subsection (a) unconstitutionally " 'sweeps within its ambit." Huber, 786 P.2d at 1875 (citation omitted).

([ 21 In other words, tracking the examples set out in Whatcott, the telephone solicitor who attempts to call again "at a more convenient time"; the overly anxious mother who calls her grown son repeatedly despite his expressed exasperation; the consumer who calls customer service the first, second, third, and fourth times her computer crashes; the businessman who leaves a voice mail message for his counterpart at another company regarding an unperformed contractual term, then calls again later to speak in person, and then calls a third time-or twenty times-to "keep the pressure on"; and the concerned citizen who calls on different occasions to chastize his legislator for her stance on varied issues might all be subject to prosecution under the first part of subsection (b), as well as under subsection (a). Again, it is the callers' "conscious disregard of the substantial likelihood that the [repeated] call{s] would annoy [the recipient that] bring[s] the call within the statute's ambit." Whatcott, 2000 UT App 86 at 112, 1 P.3d 1118. Because both the first and repeat calls in the above scenarios are legitimate, we hold that the first part of subsection (b) is also facially overbroad and unconstitutional. If defendant's conduct had fit solely under the first part of subsection (b), we would, again, be constrained to reverse.

2. Repeatedly Calling After a Request to Discontinue

122 The trial court's findings, however, clearly support defendant's conviction for telephone harassment under the second part of subsection (b). The second part of subsection (b) prohibits "caus[ing] the telephone of another to ring repeatedly or continuously" when one has "been told not to call back," and when one acts with the requisite intent. Utah Code Ann. § 76-9-201(1)(b) (1999). The trial court found that defendant made "a large number of telephone calls" to Carolyn; that "she asked the defendant not to make additional calls and yet he continued to do so"; and that defendant's "clear ... intent [was] to annoy."

123 In order to conclude that a statute is unconstitutionally overbroad "where conduct and not merely speech is involved ... the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (19783). We conclude that, unlike subsection (a) and the first part of subsection (b), any possible overbreadth in the second part of subsection (b) is not substantial.

% 24 The distinguishing feature of the second part of subsection (b) is that to be prosecuted under it, one must "have} been told not to call back" and yet, with the requisite intent, nevertheless then "causes the telephone of another to ring repeatedly or continuously." Utah Code Ann. § 76-9-201(1)(b) (1999) (emphasis added). "The right of free speech is guaranteed every citizen that he may reach the minds of willing listeners and to do so there must be opportunity to win their attention." Kovacs v. Cooper, 386 U.S. 77, 87, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949) (emphasis added). Clearly, there is no right to audibly invade another's home or place of business by telephone ring in an attempt to commandeer her listening ear when she has affirmatively expressed a desire to be left alone. Cf. id. at 87-88, 69 S.Ct. at 454 ("Opportunity to gain the public's ears by objectionably amplified sound on the streets is no more assured by the right of free speech than is the unlimited opportunity to address gatherings on the streets."). We see no substantial overbreadth in the second part of subsection (b)'s prohibition.

125 Defendant also argues that the intent requirement of section 76-9-201 is unconstitutionally vague. A statute is unconstitutionally vague if persons " 'of common intelligence must necessarily guess at its meaning and differ as to its application.'" United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 1225, 187 L.Ed.2d 482 (1997) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)). We do not believe that persons of common intelligence must guess at whether, after having been told not to call again, causing the telephone of another to ring repeatedly or continuously will create a risk of annoying, alarming, intimidating, offending, abusing, threatening, harassing, or frightening the other person. See Utah Code Ann. § 76-9-201 (1999). It most assuredly will. We thus see no unconstitutional vagueness in the intent requirement of section 76-9-201 as applied to the second part of subsection (b).

126 Because the undisputed findings of the trial court place defendant's conduct squarely within the prohibitions of the see-ond part of Utah Code Ann. § 76-9-201(1)(b), which we hold to be constitutional, we affirm defendant's conviction under that portion of the subsection.

CONCLUSION

127 We follow our decision in Whatcoft that Utah Code Ann. § 76-9-201(1)(a) (1999) is unconstitutionally overbroad on its face. We also conclude that the first part of section 76-9-201(1)(b) is also unconstitutionally over-broad on its face. However, we determine that the second part of subsection 76-9-201(1)(b), prohibiting one from, "after having been told not to call back, caus[ing] the telephone of another to ring repeatedly or continuously," when done with culpable intent, is not unconstitutionally overbroad. Nor is the intent requirement of section 76-9-201 unconstitutionally vague in the context of the second part of subsection (b).

{28 As defendant's ineffective assistance claim fails, and because his conduct fits squarely within the prohibition contained in the second part of subsection (b), we affirm his conviction for telephone harassment.

129 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and PAMELA T. GREENWOOD, Judge.

      . - It is inconceivable that if defendant were truly concerned for Carolyn's safety, his response to Officer Bastian's indication he was on his way to defendant's apartment would not have been something like: "No! You've got to stay with Carolyn. She may try to kill herself."

      . "[Defendant] also cites the free speech guarantees of the Utah Constitution, Utah Const. art. I, § 15. However, he makes no argument that the state provision should be interpreted any differently than the federal provision.... Therefore, we choose to confine our analysis to his arguments based on the first amendment."

        Provo City v. Willden, 768 P.2d 455, 456 n. 2 (Utah 1989).

      . Defendant makes only a facial overbreadth challenge to section 76-9-201 and does not argue that it is overly broad as applied to him. "In the First Amendment area, the overbreadth doctrine gives a defendant standing to challenge a statute on behalf of others not before the court even if the law could be constitutionally applied to the defendant." Salt Lake City v. Lopez, 935 P.2d 1259, 1263-64 n. 2 (Utah Ct.App.1997). See Bigelow v. Virginia, 421 U.S. 809, 814-17, 95 S.Ct. 2222, 2229-30, 44 L.Ed.2d 600 (1975).

      . Section 76-9-201 has since been amended to delete subsections (a) and (d), which were invalidated in Provo City v. Whatcott, 2000 UT App 86, 1 P.3d 1113. See Utah Code Ann. § 76-9-201 (Supp.2001) (amendment notes). Former subsections (b), (c), and (e) are now codified, with minor stylistic changes, as subsections (a), (b), and (c), respectively. See id. In this opinion, unless stated otherwise, we refer to each subsection as it appeared in the code version in effect at the time of the incident giving rise to this case.

      . Because of our previous reliance on several examples, we must recognize that the examples of consumers calling customer service, businessmen calling each other regarding contractual terms, and constituents seeking redress of grievances by calling their legislators pose the closer question as to the possible overbreadth of the second part of subsection (b). However, (1) because consumers, businessmen, and constituents each may make initial contact by telephone with producers, fellow businessmen, and legislators, respectively and (2) because further recourse may be pursued through correspondence if the caller is told not to call again, we conclude that the prohibitions in the second part of subsection (b) are not beyond the bounds of constitutionality.

      . - As previously indicated, Utah Code Ann. § 76-9-201(1)(b) (1999) is now codified as Utah Code Ann. § 76-9-201(1)(a) (Supp.2001).


author: DAVIS, Judge:

text:
    2002 UT App 66
    SALT LAKE CITY, Plaintiff and Appellee, v. Martha Susana ROSETO, Defendant and Appellant.
    No. 20001152-CA.
    Court of Appeals of Utah.
    March 7, 2002.
    Rudy J. Bautista, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Padma Veeru-Collings, Salt Lake City Attorney Office, Salt Lake City, for Appellee.

      Before JACKSON, P.J., and BENCH, and DAVIS, JJ.
   OPINION

DAVIS, Judge:

{1 Ms. Roseto, who was charged with a class C misdemeanor, challenges the trial court's denial of her request for a jury trial.

BACKGROUND

12 During the evening of July 24, 2000, Salt Lake City Police Officer Chris Williamson responded to a high priority call to assist other officers at an apartment complex located at 1601 West 300 South, Salt Lake City, Utah. When Officer Williamson arrived at the apartment complex other Salt Lake City police officers were investigating an aggravated assault.

{3 Upon his arrival Officer Williamson was asked to assist in crowd control. His objective was to control a group of people near the investigation to ensure that they did not interfere with the officers' investigation. There were approximately a dozen people in the group who were in the front of the apartment complex to observe the Pioneer Day firework display. Officer Williamson did not clarify what the people were doing; whether they were watching the police officers, the fireworks, or both. Officer Williamson decided the best way to control the people was to order them back into their apartments. During cross-examination, Officer Williamson testified that his decision to order people into their apartments was discretionary, not required.

T4 Ms. Roseto encountered Officer Williamson outside the building in which she resides. Officer Williamson testified that Ms. Roseto had asked him why so many police officers were needed. She informed him that she was a witness to a related incident involving an assault and wanted to speak with the police sergeant in charge. Officer Williamson testified that he ordered Ms. Roseto to return to her apartment five times. Each time he ordered her to return to her apartment, she would retreat away from the officer, but she never returned to her apartment and continued to ask to speak with the sergeant in charge. Ms. Roseto had witnessed a previous arrest and wanted to ensure that the police were aware of what she had seen.

1 5 According to Officer Williamson's testimony, he was not aware of anyone interfering with the police investigation. Moreover, the officer never testified that Ms. Roseto crossed his "line in the sand." In addition, Officer Williamson's sergeant, Sergeant Thurgood, testified that he did not see Ms. Roseto blocking people or officers from the investigation site. Nonetheless, pursuant to Salt Lake City, Utah, Code 11.12.020, Ms. Roseto was charged with Disturbing the Peace, a class C misdemeanor.

16 Ms. Roseto filed a written demand for a jury trial on October 10, 2000. A pre-trial conference was held on November 17, 2000, at which time she made another request for a jury trial. Her request was denied on the ground that she was not entitled to a jury trial when charged with a class C misdemeanor. The trial court indicated that it was familiar with both Utah Code Ann. 77-1-6 (1999) and case law relied upon by the Appellant and found that "this class C falls within the constitutional definition of petty cases." The trial court further based its determination on its commitment that no jail time would be imposed even if Ms. Roseto were convicted. A bench trial was held on December 4, 2000, where, pursuant to Salt Lake City, Utah, Code 11.12.020, Ms. Roseto was found guilty of Disturbing the Peace by failing to comply with a police officer's order to return to her apartment. Ms. Roseto's sentence was credited for her community service already rendered, and she was ordered to pay a recoupment fee of $150.00 to Salt Lake Legal Defenders Association.

ISSUE AND STANDARD OF REVIEW

T7 Ms. Roseto argues that the trial court erred in denying her a jury trial pursuant to Utah Code Ann. 77-1-6 (1999), and Rule 17(d) of the Utah Rules of Criminal Procedure. This court reviews a trial court's legal determinations non-deferentially for correctness. See State v. Pena, 869 P.2d 932, 935-36 (Utah 1994).

ANALYSIS

18 Appellant contends that section Ti-1-6 and Rule 17 guaranty a criminal defendant a jury trial in all cases, except those involving mere infractions, unless a trial by jury has been waived. See Utah Code Ann. Ti-1-6(2)(e); see also Utah R.Crim. P. 17(d). The rules of statutory construction in Utah are well settled. When interpreting a statute, this court looks first to the plain language of the statute. See State v. Vigil, 842 P.2d 843, 845 (Utah 1992); see also Salt Lake Therapy Clinic v. Frederick, 890 P.2d 1017, 1020 (Utah 1995) ("[Sitatutes are generally to be construed according to their plain language. Moreover, Tulnambiguous language may not be interpreted to contradict its plain meaning." (second alteration in original) (citation omitted)). The reason for such an approach is that "'[wle must be guided by the law as it is.... When language is clear and unambiguous, it must be held to mean what it expresses, and no room is left for construction.'" Frederick, 890 P.2d at 1020 (citation omitted).

1 9 Section 77-1-6 provides:

(1) In eriminal prosecutions the defendant is entitled:
(£) To a speedy public trial by an impartial jury of the county or district where the offense is alleged to have been committed;
(2) In addition:
(e) No person shall be convicted unless by verdict of a jury, or upon a plea of guilty or no contest, or upon a judgment of a court when trial by jury has been waived or, in ease of an infraction, upon a judgment by a magistrate.

Utah Code Ann. 77-1-16.

110 To invoke the rights guaranteed by this section, a defendant charged with a misdemeanor must comply with Rule 17 of the Utah Rules of Criminal Procedure which requires that: -

(c) All felony cases shall be tried by jury unless the defendant waives a jury in open court with the approval of the court and the consent of the prosecution.
(d) All other cases shall be tried without a jury unless the defendant makes a written demand at least ten days prior to trial, or the court orders otherwise. No jury shall be allowed in the trial of an infraction.

Utah R.Crim. P. 17(c)-(d).

11 Section 77-1-6 is clear and unambiguous: pursuant to this section, the trial court need only determine (1) that the defendant is charged with a crime other than an infraction; (2) that the defendant has complied with Rule 17(d) by making a written demand for a jury trial; and (8) that the defendant has not waived the right to a jury trial. See Utah Code Ann. 77-1-6; Utah R.Crim. P. 17(d). Appellant filed both a timely written demand for a jury trial and renewed the same at pretrial conference. It is undisputed that Ms. Roseto did not waive her right to a jury trial.

112 Salt Lake City (the City) argues that the court's commitment to sentence Ms. Roseto as though she were convicted of an infraction rather than a class C misdemeanor obviates her entitlement to a jury trial. It relies on West Valley City v. McDonald, 948 P.2d 371 (Utah Ct.App.1997), a case in which the trial court's denial of a jury trial to a defendant charged with a class C misdemeanor was upheld. The distinction between that case and the case at hand is that in McDonald, prior to the trial, the prosecutor amended the charge against the defendant to an infraction. See id. at 378-74. In accordance with section 77-1-6, this court affirmed the trial court's determination that the Appellant was not entitled to a jury trial when charged with an infraction. See id. at 375. By so holding, this court recognized the validity of section 77-1-6, and the rights granted a defendant charged with a class C misdemeanor. In the case at hand, even though Appellant was sentenced as though charged with an infraction, her record reflects that she was charged and convicted of a class C misdemeanor.

113 The City further makes the rather novel argument that section 77-1-6 and Rule 17(d) cannot give a criminal defendant greater rights than those provided for in the United States and Utah Constitutions. Both parties agree that Ms. Roseto has no constitutional right to a jury trial on a class C misdemeanor. See, e.g., Lewis v. United States, 518 U.S. 322, 324, 116 S.Ct. 2163, 2166, 135 L.Ed.2d 590 (1996); McDonald, 948 P.2d at 374. However, the right to a jury trial provided by the United States and Utah Constitutions establishes the minimum right to which our citizens are entitled and in no way limits the ability of the legislature to extend the same beyond those minimum constitutional standards. See, e.g., State v. Mangelsen, 207 Neb. 213, 297 N.W.2d 765, 767-68 (1980) (recognizing statutory right to jury trial in petty cases); State v. Golden, 8 Neb.App. 601, 599 N.W.2d 224, 228 (1999) (recognizing that even though defendant had no constitutional right to a jury trial, the same right was statutorily provided).

CONCLUSION

T14 Under the clear and unambiguous provisions of section 77-1-6 and Rule 17(d), Ms. Roseto is entitled to a jury trial We therefore reverse and remand for a jury trial.

115 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and RUSSELL W. BENCH, Judge.

      . - Alternatively, Appellant challenges the constitutionality of Salt Lake City, Utah, Code 11.12.020. However, because we conclude that under Utah Code Ann. 77-1-6 (1999) and Utah R.Crim. P. 17(d) a defendant charged with a class C misdemeanor is entitled to a jury trial unless waived, we do not reach this issue. See R.O.A. Gen., Inc. v. Department of Transp., 966 P.2d 840, 842 (Utah 1998) ("We do not reach [appellant's] constitutional arguments because we can resolve this case on statutory grounds."); Hoyle v. Monson, 606 P.2d 240, 242 (Utah 1980) ("[A] constitutional question is not to be reached if the merits of the case in hand may be fairly determined on other than constitutional issues."); see also Draughon v. Department of Fin. Insts., 1999 UT App 42, ¶5 n. 2, 975 P.2d 935 ("'Because we conclude this issue is dispositive, we do not reach appellant's constitutional arguments.").


author: THORNE, Judge:

text:
    2002 UT App 64
    Connie ALBRECHT, individually, and on behalf of those similarly situated, Plaintiff and Appellant, v. Wallace R. BENNETT and David D. Bennett, Defendants and Appellees.
    No. 20000714-CA.
    Court of Appeals of Utah.
    March 7, 2002.

      Phillip B. Shell, Day Shell & Lilenguist, Murray, for Appellant.
    Daniel G. Moquin, South Salt Lake City, for Appellee Wallace Bennett.
    Matthew G. Cooper and Mel S. Martin, Mel S. Martin PC, Murray, for Appellee David Bennett.
    Before BILLINGS, Associate P.J., and BENCH, and THORNE, JJ.
   AMENDED OPINION

THORNE, Judge:

{1 Appellant Connie Albrecht (Albrecht) appeals from an order dismissing her complaint against Appellees Wallace Bennett and David Bennett (the Bennetts), and suppressing the changes to her deposition testimony. We affirm.

BACKGROUND

12 Robert J. DeBry and Associates (the DeBry law firm) filed a complaint against the Bennetts in Third District Court on behalf of Albrecht. The complaint alleged, among other things, fraud, interference, breach of contract, and negligence. The complaint stemmed from a pleading filed by the Ben-netts in federal court after Robert DeBry (DeBry) allegedly terminated them as "associated counsel" from a class action lawsuit. The federal case concerned breast implant litigation, wherein Albrecht was a class member. In that litigation, the DeBry law firm represented Albrecht and other members of the purported class.

1. Breast Implant Litigation Team

T3 On February 18, 1992, the DeBry law firm, the Bennetts, and three others entered into an agreement, wherein the Bennetts and the others agreed to serve as "associated counsel" in the case of Jane Doe v. Dow Corning. - According to the agreement, the Bennetts and the others would "appear in the case as counsel of record, [and] ... consult or assist from time to time." The DeBry law firm was to serve as lead counsel for the "breast implant litigation team" or "BI team" as they came to call it.

1 4 On June 2, 1999, Robert DeBry notified David Bennett, via letter, that he was "out of ideas and out of energy for [the BI team's] nationwide and statewide breast implant litigation." DeBry then informed David Bennett that "I think it is time to formally disband our BI team."

15 On June 5, 1999, David Bennett responded to DeBry's suggestion to disband the BI team. Bennett informed DeBry that he thought it was "premature to 'disband our BI team'" Bennett indicated that, per a previous DeBry letter, the BI team had 100 clients with Dow Corning implants. Further, Bennett explained that he believed that the BI team had agreed to represent both individual cases and the class "from the outset of the litigation." Bennett closed the letter by stating that "the BI [team [should] not disband until such time as all women with claims the BI [tleam has sought to represent have left bankruptey proceedings, settled or concluded by trial or appeal."

16 On June 18, 1999, DeBry informed the BI team members that he still intended to disband the team. Further, with regard to the individual cases, DeBry informed the team members that "[slo far as I recall, our BI team only worked on the class action aspect of the case." Finally, DeBry addressed the BI team's obligations to "the client and court," stating:

Actually, the Contingent Fee Agreement is with the DeBry law firm-not you. We have brought [the BI team] on board to assist on certain technical issues, and we no longer need that assistance. It is that simple. I do recognize that you have some obligation to the court, but your only obligation is simply to file a Notice of Withdrawal.

T7 The letter writing continued between DeBry and the BI team members through June 29, 1999, when DeBry informed the members that he was submitting the "dispute" to the American Arbitration Association. Then, on July 80, 1999, DeBry, by letter, informed Wallace Bennett that he was "surprised" to receive a pleading titled Motion by Co-Counsel of Record Respecting Plaintiff's Final Report of Settlement filed by the Bennetts in the Commie Albrecht v. McGhan federal case. In that letter, DeBry stated:

I call to your attention the fact that you have no contract with Connie Albrecht (or any of the other plaintiffs for that matter). Indeed, I don't think you have ever even met Connie Albrecht. I do have a direct written contract with Connie Albrecht (as well as the other clients). Your involvement was as an associated counsel which I elected to do at my discretion, a discretion derived from the agreement with my client. My authority also allows termination of such relationships. Exercising that implied authority, both you and David [Bennett] have been terminated.

2. The Ensuing Litigation in Third District Court

T8 The DeBry law firm, on behalf of Al-brecht, filed a complaint against the Bennetts in Third District Court. The complaint alleged that the Bennetts had filed their motion in federal court after DeBry had terminated them, and that the filing either delayed or interfered with Albrecht's settlement. The Bennetts responded with a motion to dismiss, alleging that the DeBry law firm was the real party in interest to the complaint. The Bennetts also filed a motion to disqualify DeBry from representing Albrecht in the case. The trial court denied the Ben-netts' Motion to Dismiss, but granted their Motion to Disqualify. Subsequently, Phillip Shell represented Albrecht in the matter.

T9 On April 6, 2000, Albrecht filed a motion to dismiss her claims against the Ben-netts, but the motion did not specify whether Albrecht sought a dismissal without prejudice. On April 7, 2000, David Bennett deposed Albrecht. During that deposition, Bennett repeatedly questioned Albrecht regarding her complaint. Throughout the deposition, Albrecht denied authorizing the De-Bry law firm to file the complaint. Albrecht also denied that the Bennetts' actions affected her settlement.

[ 10 On April 12, 2000, the Bennetts filed a motion for summary judgment. In that motion, the basis for which was Albrecht's deposition testimony, the Bennetts argued that Albrecht "was unaware she had been a named plaintiff in this case[;] ... that she had suffered no damages at the hands of the Bennetts; and, that she had no interest in pursuing a case against the Bennetts." Thereafter, Albrecht altered her deposition testimony, making nearly forty changes to her testimony, by using the errata sheets provided to her after the preparation of the deposition transcript. In the errata sheets, Albrecht asserted that she had, in fact, given the DeBry law firm authorization to file the complaint against the Bennetts and she retracted her statements that her settlement had not been affected by the Bennetts' motion.

1 11 Examples of Albrecht's changes to her testimony are:

Q: Did you authorize Mr. DeBry's office to file a lawsuit against the Bennetts?
A: -No, it was not. It was that they, had confronted me if I would be-if they needed me, is my understanding, would I be kind of a witness for them in their behalf, but as far as my name being a plaintiff, I about fell through the floor when I seen [sic] it.
Amended Answer: I authorized Mr. De-Bry's office to represent me and take care of whatever needed to be done regarding the Bennetts due to legal actions they took on July 22, 1999 in connection with my implant case, although I did not know all the details.
Q: You [Albrecht] did not give approval for that, did you?
A: Not to-no, to be a plaintiff, no I did not.
Amended Answer: I wasn't aware of what legal actions Mr. DeBry's office was going to take, but in August of 1999, I authorized any legal action they felt necessary.
Q: Thank you. Did they [the DeBry law firm] ever tell you that your settlement with the breast implant cases was being compromised by the Bennetts.
A: No.
Amended Answer: Yes. I understood back then that their actions could delay or hurt my case. That's why I authorized Mr. DeBry's firm to represent me against the Bennetts.
Q: Would it be a fair statement to say it [the complaint] was filed without your knowledge and permission? A: Yes.
Amended Answer: Answer should be no in that I did authorize my attorneys to act in this matter, although I didn't understand the technicalities.
Q: Did you ever give permission for [the complaint] to be filed?
A: I knew nothing about it.
Amended Answer: I didn't authorize it, but I don't understand it. I relied on my attorneys.
Q: Was your settlement delayed by the Bennetts?
A: No.
Amended Answer: Answer should be it was delayed but my attorney knows more about the details.

[ 12 In response to Albrecht's changes to her testimony, the Bennetts moved to strike or suppress those changes. The Bennetts also responded to Albrecht's Motion to Dismiss, arguing that the court should dismiss the complaint with prejudice. On July 17, 2000, the trial court entered an order dismissing Albrecht's complaint with prejudice and disallowing Albrecht's changes to her deposition testimony. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

113 Albrecht argues the trial court erred by suppressing the changes to her deposition testimony. We review a trial court's legal conclusions granting a motion to suppress for correctness. See State v. Swink, 2000 UT App 262. ¶6, 11 P.3d 299.

$14 Albrecht also argues the trial court erred by granting her Motion to Dismiss her complaint against the Bennetts with prejudice. We review a trial court's decision to dismiss a claim with prejudice for an abuse of discretion. See Murray First Thrift & Loan v. Benson, 568 P.2d 185, 186 (Utah 1977) (affirming trial court's decision to dismiss claims in a third-party complaint with prejudice, although third-party plaintiff sought dismissal of claims without prejudice).

ANALYSIS

I. The Bennetts' Motion to Suppress

$15 Albrecht argues the trial court erred by granting the Bennetts' Motion to Suppress the changes to her deposition testimony. Initially, we note that neither Al-brecht nor the Bennetts have included copies of either the relevant portions of Albrecht's testimony or Albrecht's errata sheets. Further, the transcript from Albrecht's deposition, containing her original answers, is absent from the record. Accordingly, "because the entire record in this case is not before this court, we presume the trial court's findings are supported by competent and suffi-client evidence, 'however, ... the findings must themselves be sufficient to provide a sound foundation for the judgment.'" Sampson v. Richins, 770 P.2d 998, 1002 (Utah Ct.App.1989) (citation omitted).

A. Rule 830(e) of the Utah Rules of Civil Procedure

{16 Albrecht contends that Rule 80(e) of the Utah Rules of Civil Procedure neither limits nor imposes restrictions on what changes in "form or substance" a deponent may make to her deposition testimony. Utah R. Civ. P. 30(e).. In pertinent part, Rule 80(e) states:

[The deponent shall have 80 days after being notified by the officer that the transcript or recording is available in which to review the transeript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by deponent for making them.

Id.

{17 In Gaw v. State, 798 P.2d 1130 (Utah Ct.App.1990), we addressed, in some detail, the workings of Rule 80(e). See id. at 1138-40. We explained that although courts have "allowed liberal changing of deposition testimony, they have been fairly strict in requiring compliance with the technical requirements of Rule 80(e)." Id. at 1189. Drawing primarily from federal case law, we articulated three factors a trial court should consider when deciding whether to strike or suppress subsequent changes to deposition testimony.

118 These factors are: (1) were the changes so extensive that it was " 'virtually impossible for the court reporter to enter the changes upon the deposition as he is required to do'"? Id. at 1189 (quoting Barlow v. Esselte Pendaflex Corp., 111 F.R.D. 404, 406 (M.D.N.C.1986)) (stating that deponent's more than one hundred changes to her deposition testimony were "at variance with the letter and spirit of Rule 30(e)"); (2) Did the deponent offer to reopen the deposition examination at the deponent's expense? See id. (citing Sanford v. CBS, Inc., 594 F.Supp. 718, 715 (N.D.Ill.1984) (mem.); Lugtig v. Thomas, 89 F.R.D. 689, 642 (N.D.Ill.1981) (mem.); and (8) Did the deponent comply with the technical requirements of Rule 30(e), i.e., did the deponent give specific reasons for each change? See id.

1. Number of Changes to Albrecht's Testimony

119 The trial court concluded that Albrecht attempted to make "wholesale alteration of [her] sworn testimony." As we have stated above, the parties in this matter have failed to provide either a copy of the relevant portions of the deposition transeript or copies of the errata sheets in the addenda to their briefs. Further, neither party has informed this court how many changes Albrecht made to her testimony. Only after reviewing the record, were we able to locate copies of the errata sheets.

20 The errata sheets show that Albrecht made nearly forty changes to her testimony. Many of these changes were substantive, changing "yes" to "no" and vice versa. Several of these changes went from single word answers to more detailed answers. We are confident that many of these answers would likely have prompted additional examination. Although the number of changes Albrecht made to her testimony and the substantive nature of those changes are not dispositive on the issue of whether the trial court abused its discretion by striking the changes, they are relevant when considering the factors suggested in Gaw as a whole.

2. Albrecht's Offer to Reopen the Deposition

1 21 Albrecht concedes that the corrections to her deposition testimony were "substantive." For example, during the deposition, Albrecht repeatedly denied authorizing the DeBry law firm to file the complaint against the Bennetts on her behalf. Albrecht would later recant her testimony, by way of the errata sheets, indicating that she did have knowledge of the complaint and did give the DeBry law firm the authority to file it.

122 It is clear that Albrecht's subsequent changes would impair the usefulness of the deposition. Albrecht claims that she offered to reopen the deposition at her own expense. We find Albrecht's claim disingenuous.

123 In McHugh v. Kilp, No. CA-99-875, 2001 WL 303063 at *4, 2001 Mass.Super. LEXIS 107, at **10-12 (Mass.Super.Mar.22, 2001), the court explained the necessity of reopening a deposition when a deponent substantively changes her testimony through the use of errata sheets.

The Plaintiffs' errata sheets have changes in substance to their respective depositions ..., as they add to the detail of; contradict; or make original answers of each deposition incomplete without further testimony. Several changes made by [Plaintiff] during her deposition have been changed from "no" to "yes" or vice versa. Changes such as these may alter the direction and nature of the inquiries of the examining attorney and therefore have effect on the scope, nature, and opportunity to cross-examine. Also, some of the substantial additions to the original answers appearing in the Plaintiffs' deposition errata sheets may warrant further inquiry into other discoverable matters.

Id. (internal quotations and citations omitted).

124 Here, Albrecht contends that she offered to reopen the deposition at her expense. On May 3, 2000, after they had filed a motion for summary judgment based upon Albrecht's deposition, the Bennetts filed a notice of deposition, seeking to depose Al-brecht for a second time.

125 On May 24, 2000, Albrecht's counsel sought a protective order to prevent the Ben-netts from reopening the deposition, notwithstanding Albrecht's claim that she offered to reopen the deposition. In her motion, Al-brecht argued that a second deposition "should not be taken or should be postponed until after a determination by the [trial court] is made on [Albrecht's] pending Motion to Dismiss."

126 Suffice it to say, Albrecht was content to allow her changes to stand without reopening the deposition, or, at a minimum, content to allow the trial court to rule on her Motion to Dismiss without allowing the Ben-netts the opportunity to serutinize the changes to her testimony in a second deposition. Accordingly, we view Albrecht's offer as disingenuous, and therefore, we conclude that Albrecht made no real offer to reopen the deposition at her expense.

3. Albrecht's Reasons for the Changes to Her Testimony

127 On the first page of Albrecht's errata sheets, she states the following:

The changes on the following 4 pages are made because [sic] due to nervousness, confusion, and lackof [sic] memory, I didn't answer a lot of the questions correctly at my deposition. I have since reviewed doe-uments and letters previously provided by my attorney and that has helped me make these changes and corrections.

These are the sum reasons for Albrecht's nearly forty changes to her testimony.

128 As we stated in Gaw, courts have been "fairly strict in requiring compliance with the technical requirements of Rule 30(e)" 798 P.2d at 1139. We find no reason to deviate from that position. Rule 30(e) requires the deponent to "sign a statement reciting such changes and the reasons given by the deponent for making them." Utah R. Civ. P 30(c). Here, Albrecht provided a laundry list of general conclusory reasons for her four pages of changes. We conclude that Albrecht's "general conclusory reasons given for all the changes ... are not sufficient; after each change, the deponent must state the specific reason for that particular change." Lugtig, 89 F.R.D. at 641.

129 Finally, we agree with the court in Greenway v. International Paper, 144 F.R.D. 322 (W.D.La.1992), that Rule 30

cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all and then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.

Id. at 325; see also Rios v. Bigler, 847 F.Supp. 1538, 1546 (D.Kan.1994) (stating "(allthough the errata sheet ... may be used to correct errors or to clarify or change an answer when a question is misunderstood, it may not be used to allow a person to alter what has been said under oath").

130 We conclude that Albrecht did not satisfy the factors set forth in Gaw, and therefore, the trial court did not exceed its discretion by suppressing Albrecht's changes. Accordingly, we affirm the trial court's decision granting the Bennetts' Motion to Suppress.

II. Albrecht's Motion to Dismiss

131 Albrecht argues the trial court erred by dismissing her complaint with prejudice. Rule 41(a)(1) of the Utah Rules of Civil Procedure allows plaintiffs to seek a voluntary dismissal of their complaint without prejudice. See Utah R. Civ. P. 41(a)(1). However, we need not reach the merits of Albrecht's claim because any error on the part of the trial court in dismissing Al-brecht's complaint with prejudice was harmless error.

132 We conclude that given the trial court's decision to suppress Albrecht's deposition changes and our decision affirming that ruling, the trial court would have undoubtedly granted the Bennetts' summary judgment motion, and therefore, effectively dismissed Albrecht's complaint as a matter of law. Accordingly, any error on the part of the trial court was harmless error.

CONCLUSION

133 We affirm the trial court's ruling to suppress Albrecht's changes to her deposition testimony. Further, any error on the part of the trial court in dismissing Al-brecht's complaint with prejudice, if one exists, was harmless error that would not have changed the ultimate outcome.

{34 The judgment of the trial court is therefore affirmed.

11 85 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and RUSSELL W. BENCH, Judge.

      . This Amended Opinion replaces the Opinion in Case No. 20000714-CA issued on December 13, 2001.

      . The Bennetts would later file a motion to dismiss based in part on Albrecht's alleged failure to name the real party in interest, which the Ben-netts claimed was actually the DeBry law firm.

      . These passages are taken from the parties' briefs.

      . We note that Albrecht's motion seeking dismissal did not specify whether the trial court should dismiss her complaint with or without prejudice. During oral argument on the motion, Albrecht's counsel indicated that she desired the complaint be dismissed without prejudice.

      . Moreover, we note that the trial court found Albrecht's reasons for her changes lacked credibility.


author: MANNHEIMER, Judge.

text:
    Tracy L. RANDALL, Appellant, v. STATE of Alaska, Appellee.
    No. A-8021.
    Court of Appeals of Alaska.
    March 22, 2002.
    David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    James J. Fayette, Assistant District Attorney, Susan A. Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Tracy L. Randall shoplifted a nail gun from an Anchorage pawn shop. A store clerk followed Randall, confronted him in the parking lot, and retrieved the nail gun. As the clerk was walking back to the store entrance, Randall hit her with his car. The clerk sustained torn ligaments in her leg.

Randall was indicted for first-degree robbery, assault in the first and second degrees, second-degree theft, and driving while his license was suspended. He ultimately pleaded no contest to second-degree assault and second-degree theft.

Randall had previously been convicted of second-degree theft. Because he was a see-ond felony offender, he faced a 4-year presumptive term for the class B felony of see-ond-degree assault and a 2-year presumptive term for the class C felony of second-degree theft.

Superior Court Judge Larry D. Card found (in fact, Randall conceded) that the State had proved several aggravating factors under AS 12.55.155(c) with respect to the second-degree assault charge: (c)(10)-that Randall's conduct was among the most serious within the definition of second-degree assault because, factually, he was guilty of first-degree assault; (c)(19)-that Randall had been adjudicated a delinquent minor for conduct that would have been a felony had he been an adult; and (c)(d)-that Randall used a dangerous instrument (the automobile) in the commission of the assault. In addition, with respect to the second-degree theft charge, Judge Card found that the State had proved aggravator (c)(@1)-that Randall had a history of similar offenses. Randall did not propose any mitigating factors.

On the charge of second-degree assault, Judge Card imposed the 4-year presumptive term but added another 4 years of suspended jail time (4.e., 8 years' imprisonment with 4 years suspended). On the charge of second-degree theft, Judge Card imposed a sentence of 3 years' imprisonment, but he made 2% years concurrent with Randall's sentence for assault. Thus, Randall received a composite 44 years to serve.

On appeal, Randall argues that this sentence is excessive-that he should not have received more than 4 years to serve. He relies on the rule announced in Farmer v. State, 746 P.2d 1300, 1301 (Alaska App.1987): "When an offender is convicted of multiple crimes, the presumptive term for the most serious crime [is] a benchmark that is not to be exceeded without good reason."

But Judge Card found that the State had proved several aggravating factors. Because of these aggravating factors, Judge Card was authorized to increase Randall's sentence for second-degree assault above the 4-year presumptive term. Our review of the record convinces us that Judge Card would not have been clearly mistaken if, based on these aggravating factors, he had sentenced Randall to 4% years to serve for the assault conviection. It necessarily follows that these aggravating factors constituted the "good cause"

required by Farmer to support a composite sentence of 4% years to serve.

Moreover, Randall was convicted of two factually separate crimes. Although both crimes arose from the same incident, Randall's theft of the nail gun was over when he assaulted the store clerk with his car. This fact also supports Judge Card's decision to impose at least partially consecutive sentences for these two offenses.

Randall faced an effective minimum sentence of 4 years to serve for the assault alone (because he proposed no mitigating factors that would have allowed Judge Card to reduce the applicable 4-year presumptive term). Randall's separate conviction for the theft of the nail gun provided good cause for Judge Card to impose a consecutive half-year's imprisonment for that crime.

The superior court's sentencing decision is AFFIRMED.

      . AS 11.41.210(a)(1) and AS 11.46.130(a)(6), respectively.

      . Second-degree assault is a class B felony, see AS 11.41.210(b), and second felony offenders convicted of this crime face a 4-year presumptive term. See AS 12.55.125(d)(1). Second-degree theft is a class C felony, see AS 11.46.130(c), and second felony offenders convicted of this crime face a 2-year presumptive term. See AS 12.55.125(e)(1).