author: Justice HOBBS Justice BENDER,

text:
    In re REAPPORTIONMENT OF THE COLORADO GENERAL ASSEMBLY.
    No. 01SA386.
    Supreme Court of Colorado, En Banc.
    Feb. 22, 2002.

      Holme Roberts & Owen, LLP, Daniel J. Dunn, Manuel L. Martinez, Richard F. Rodriguez, Colorado Reapportionment Commission, Rebecca C. Lennahan, Jeremiah B. Barry, Denver, Colorado, Attorneys for the Proponent Colorado Reapportionment Commission.
    Davis Graham & Stubbs LLP, Gale T. Miller, Denver, Colorado, Attorneys for Proponents Jennie Sanchez, Adeline Sanchez and Debra Cassanova.
    Berenbaum, Weinshienk & Eason, P.C., Michael J. Belo, Martin D. Buckley, Denver, Colorado, Attorneys for Proponent Colorado AFL-CIO.
    Berenbaum, Weinshienk & Eason, P.C., Charles A. Bewley, Denver, Colorado, Attorneys for Proponent Colorado Metro Citizens for Fair Reapportionment.
    John H. Vigil, pro se Arvada, Colorado, Representing Proponent John H. Vigil (Adams County Citizen).
    Trimble, Tate & Nulan, P.C., Penfield W. Tate III, Lydia M. Tate, Denver, Colorado, Attorneys for Proponent Blacks for Fair Reapportionment.
    Rothgerber Johnson & Lyons LLP, James M. Lyons, Douglas B. Tumminello, Thomas M. Rogers III, Denver, Colorado, Attorneys for Proponents Stan Matsunaka, President of the Colorado State Senate; Ed Perlmutter, President Pro Tem of the Colorado State Senate; and Bill Thiebaut, Majority Leader of the Colorado State Senate. *
    Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, Burke & Neuwirth, P.C., Dean S. Neuwirth, Denver, Colorado, Attorneys for Proponent Timothy D. Knaus, Chairman of the Colorado State Democratic Party.
    Ballard Spahr Andrews & Ingersoll, LLP, A. Thomas Downey, Denver, Colorado, Attorneys for Proponent Dan Grossman, Colorado House Minority Leader.
    LeBoeuf, Lamb, Greene & MacRae, LLP, Robert N. Miller, Stephanie E. Dunn, Michael D. Smith, Denver, Colorado, Attorneys for Opposers Jeffrey M. Wells, Senator Mark D. Hillman, Richard P. "Sandy" Hume, Representative Mark Paschall and Heather M. Witwer (Colorado Reapportionment Commission Members).
    Bullock Law Office, LLC, James R. Bullock, La Junta, Colorado, Attorneys for Oppo-sers Estelle Thaller and Dan Sandoval.
    Shawn Mitchell, Broomfield, Colorado, Mendenhall & Malouff, LLP, H. Barton Mendenhall, Rocky Ford, Colorado, Attorneys for Opposers Steve Olstad, James Martinez and Karen Nelson (Broomfield citizens).
    John Martin, Chairman Commissioner, pro se, Walt Stowe, Commissioner, pro se, Larry McCown, Commissioner, pro se, Don K. De-ford, Glenwood Springs, Colorado, Attorney for Opposer Garfield County Board of County Commissioners.
    Luis A. Corchado, Littleton, Colorado, Attorney for Opposer Colorado Hispanic Bar Association.
    Hale Hackstaff Tymkovieh, LLP, Allan L. Hale, Richard A. Westfall, Richard W. Dai-ley, Seott E. Gessler, Denver, Colorado, Attorneys for Opposers Betty Chronic, Richard P. Hume, William Swenson and Bétty Swen-son. >
    Hale Hackstaff Tymkovieh, LLP, Allan L. Hale, Richard A. Westfall, Richard W. Dai-ley, Seott E. Gessler, Denver, Colorado, Attorneys for Opposers Richard P. Hume, Betty Chronic and William Berens (Boulder County Citizens).
    Robert S. Gardner, Colorado Springs, Colorado, Attorney for Opposers Mark Sessions, Willie H. Breazell Sr., Lionel Rivera, Charles D. Broerman and Sarah Jack (El Paso County Citizens).
    Susan Fey, pro se, Crestone, Colorado, Representing Opposers Towns of Crestone and Villa Grove. -

      Friedlob Sanderson Paulson & Tourtillott, P.C., Richard C. Kaufman, Christopher R. Paulson, Denver, Colorado, Attorneys for Opposers John Brackney, Andre Subarka and Citizens for Constitutional Maps.
    Cathie Zarlingo, President, pro se, Mary K. Kalenian, Secretary, pro se, Grand Junetion, Colorado, Representing Opposer Mesa County Valley School District No. 51 Board of Education.
    Mesa County Attorney's Office, Maurice Lyle Dechant, Mesa County Attorney, Angela M. Luedtke, Assistant Mesa County Attorney, Grand Junetion, Colorado, Attorneys for Opposer Mesa County Board of County Commissioners.
    Reid & Scheffel, Mark H. Scheffel, Thomas J. Burke, Parker, Colorado, Attorneys for Opposer Douglas/Elbert Citizens for Fair State Senate Representation.
    Richard O. Schroeder, Highlands Ranch, Colorado, Attorney for Opposer Don Lee.
    Williams, Turner & Holmes, P.C., Mark A. Hermundstad, Grand Junction, Colorado, Attorneys for Opposer Ute Water Conservancy District.
    R. Bruce Smith, Town Administrator, pro se, Collbran, Colorado, Representing Oppo-ser Town of Collbran.
    Carter & Sands, P.C., Stephen L. Carter, Rifle, Colorado, Attorneys for Opposer Town of Palisade.
    Carter & Sands, P.C., Stephen L. Carter, Rifle, Colorado, Attorneys for Opposer City of Fruita.
    Doyle, Zakhem, Suhre, & Lilly, LLC, Brett R. Lilly, John S. Zakhem, Denver, Colorado, Attorneys for Opposer Beth Gallegos (Adams County Citizen).
    Arthur LeMelle, pro se, Gateway, Colorado, Representing Opposer Arthur LeMelle (citizen of the Town of Gateway).
    Phil Mueller, President, pro se, Frank-town, Colorado, Representing Opposer Elbert/Douglas County Livestock Association.
    Joe Kline, Chairman, pro se, Glenwood Springs, Colorado, Representing Opposer Garfield County Republicans.
    Raymond E. Smith, Chairman, pro se, Kremmling, Colorado, Representing Opposer Grand County Republicans.
    John Ponikvar, Vice-Chairman, pro se, Craig, Colorado, Representing Opposer Mof-fat County Republican Central Committee.
    Shirley J. Black, Chairman, pro se, Walden, Colorado, Representing Opposer Jackson County Republican Central Committee.
    H. Olive Morton, Chair, pro se, Steamboat Springs, Colorado, Representing Opposer Routt County Republican Central Committee.
    Jack Taylor, Colorado State Senator, pro se, Steamboat Springs, Representing Oppo-ser Jack Taylor.
    Don Davis, pro se, Ruby Davis, pro se, Clifton, Colorado, Representing Opposers Don Davis and Ruby Davis.
    Merilee O'Neal, Chairperson, pro se, Ed O'Leary, Chairperson, pro se, Representing Lake County Republicans and Lake County Democrats, respectively.
   Justice HOBBS

delivered the opinion of the court.

In this original proceeding, the Colorado Reapportionment Commission (Commission) has resubmitted to us its decennial Apportionment Plan (Readopted Plan) for the reapportionment of Colorado General Assembly house and senate districts, based on the year 2000 federal census, as required under Article V, Section 48(1)(e) of the Colorado Constitution. We approve the Final 2002 Reapportionment Plan.

I.

In our prior opinion, we disapproved the Adopted Plan submitted by the Commission and returned the plan to the Commission for revision,. modification, and resubmission. In re Reapportionment of the Colo. Gen. Assembly, 45 P.3d 1237 (Colo. 2002). We held that the Adopted Plan did not comply with the criteria of Article V, Sections 46 and 47, of the Colorado Constitution because: (1) it was not "sufficiently attentive to county boundaries to meet the requirement of section 47(2)," In re Reapportionment of the Colo. Gen. Assembly, 647 P.2d 191, 195 (Colo.1982)[hereinafter "In re Reapportionment 82 "]; and (2) it was not accompanied by "an adequate factual showing that less drastic alternatives could not have. satisfied the equal population requirement of the Colorado Constitution," In re Reapportionment of the Colo. Gen. Assembly, 828 P.2d 185, 195-96 (Colo.1992) [hereinafter "In re Reapportionment 92-I"). For exsample, the Adopted Plan denied whole senate districts to Boulder, Douglas, Jefferson, and Pueblo counties for which they qualify based on the year 2000 census data and the Commission's ideal district projection. In addition, the Commission had not advanced an adequate explanation for division of Adams, Arapahoe, and Mesa counties and the cities of Boulder and Pueblo between senate districts. The Commission subsequently reconvened on three separate occasions, considering a number: of alternative senate reapportionment maps and amendments. On February 7, 2002, the Commission approved the Readopted Plan on a nine to two vote. The Commission resubmitted the Readopted Plan to this Court on February 12, 2002. We accepted objections to the Readopted Plan through February 19, 2002. The Commission submitted its Reply Brief to this Court on February 20, 2002.

IL.

We approve the Readopted Plan as the Final Plan. The Commission has followed the procedures and applied the criteria of federal and Colorado law in adopting its 2002 Final Reapportionment Plan for Colorado General Assembly house and senate districts.

A. Review Criteria

The federal and state constitutional criteria that guide the Commission and this Court, in order of their applied priority are:

(1) the Fourteenth Amendment Equal Protection Clause and the Fifteenth Amendment; (2) section 2 of the Voting Rights Act; (3) article V, section 46 (equality of population of districts in each house); (4) article V, section 47(2)(districts not to cross county lines except to meet. section 46 requirements and the number of cities and towns contained in more than one district minimized); (5) article V, section 47(1)(each district to be as compact as possible and to consist of contiguous whole general election precinets); and (6) article V, section 47(8) (preservation of communities of interest within a district).

In re Reapportionment of the Colo. Gen. Assembly, 45 P.3d 1237, 1247 (Colo. 2002) (citing In re Reapportionment 92-I, 828 P.2d at 190). We review the reapportionment plan and Commission's process to ensure that the Commission substantively applied all six of the criteria and procedurally applied the criteria in order of their stated preference in adopting the final reapportionment plan for the state of Colorado. "The Commission may not apply the lesser criteria over the greater criteria, but it may use the lesser criteria after satisfying the greater criteria. The Commission resolves conflicts by applying the criteria in preferential order, articulating on submittal to us how the Adopted Plan reflects the criteria." In re Reapportionment of the Colo. Gen. Assembly, 45 P.3d at 1247 (Colo. 2002) (citations omitted).

B. Plan Compliance

We conclude that the Readopted Plan satisfies the six constitutional criteria enumerated in our decision. Id. 45 P.3d at 1247. The Readopted Plan provides whole senate districts to Boulder, Douglas, Jefferson, and Pueblo counties for which they qualify based on the year 2000 census data and the Commission's ideal district projection. The Readopted Plan provides Arapahoe County with four whole senate districts, the number for which Arapahoe County almost qualified using the year 2000 federal census data. Mesa County is no longer divided in the Readopted Plan; a portion of Garfield County was added to it to complete Mesa County's senate district. The cities of Boulder and Pueblo are no longer divided between senate districts in the Readopted Plan. ~

The Readopted Plan contains divisions of Adams County between senate districts and divisions of the City of Boulder between house districts. However, the Commission has advanced adequate explanations for the divisions of Adams County and the City of Boulder, and we determine that the divisions do not offend the constitution.

The following chart submitted by the Commission illustrates the changes in the number of whole senate district allotments between the Adopted and Readopted Plan. The chart also reflects year 2000 federal census population numbers which have been adjusted to reflect the subsequent creation of the City and County of Broomfield.

The Adopted Plan divided Douglas County between Senate Districts 2 and 830, thus denying Douglas County the one whole senate district for which it qualified based upon its population. The Readopted Plan provides Douglas County with one whole senate district entirely within its boundaries in Senate District 30. The Adopted Plan also divided Pueblo County between Senate Districts 3 and 4, thus denying Pueblo County the one whole senate district for which it qualified based upon its population. The Readopted Plan provides Pueblo County with one whole senate district entirely within its boundaries in Senate District 8.

The Adopted Plan divided Boulder County between Senate Districts 18 and 19, thus providing Boulder County with only one of the two whole senate districts for which it qualified based upon its population. The Readopted Plan provides Boulder County with two whole senate districts entirely within its boundaries in Senate Districts 17 and 18. The Adopted Plan also divided Jefferson County between Senate Districts 19 and 23, thus providing Jefferson County with only three of the four whole senate districts for which it qualified based upon its population. The Readopted Plan provides Jefferson County with four whole senate districts within its boundaries (Senate Districts 19, 20, 21 and 22).

The Adopted Plan provided Arapahoe County with only three whole senate districts within its boundaries, even, though it qualified for .97 of an additional senate district. The Readopted Plan provides Arapahoe County with four whole senate districts within its boundaries (Senate Districts 26, 27, 28 and 29). Although Mesa County qualified for 95 of a senate district, the Adopted Plan split Mesa County between Senate Districts 7 and 8. In the Readopted Plan, Mesa County is contained entirely within Senate District 7.

The Adopted Plan divided the City of Pueblo into Senate Districts 3 and 4 and the City of Boulder into Senate Districts 18 and 19. The City of Pueblo is contained entirely within Senate District 8 in the Readopted Plan. The City of Boulder is now contained entirely within Senate District 18.

Therefore, the Commission has resubmitted a Readopted Plan which complies with the criteria of Article V, Sections 46 and 47, of the Colorado Constitution and is "sufficiently attentive to county boundaries to meet the requirement of section 47(2)." In re Reapportionment 82, 647 P.2d at 195.

The Commission was not able to avoid the divisions of Adams County. The Adopted Plan provided Adams County with only two whole senate districts within its boundaries, although it qualified for .96 of an additional senate district. The Readopted Plan continues to provide Adams County with two whole senate districts within its boundaries, Senate Districts 24 and 25. The Commission has advanced the following explanation for this result:

When the City and County of Broomfield was created, it included territory containing 15,239 people that was formerly part of Adams County. After deducting this population, the number of people in Adams County is $48,618, which translates to 2.84 senate seats. Therefore, it was mot possible to form a third district wholly within Adams County and stay within the population variance allowed by Article V, Section 46. As a result, Adams County contains only two whole districts (24 and 25) and two partial districts (23 and 31). See In re Reapportionment 2008-I p. 10. One of two partial districts resulted from the need to complete the partial district remaining in Denver after Arapahoe County was redrawn to include four whole districts. See note 5, supra. The other partial district in Adams County resulted from the need to complete district 28 (which contains Broomfield) after the Commission redrew Boulder County to. include the maximum number of whole districts. See id. pp. 10, 11.

Revised Final Plan for Reapportionment of the Colorado General Assembly, at 5 (emphasis added). We conclude that the Commission has provided "an adequate factual showing that less drastic alternatives could not have satisfied the equal population requirement of the Colorado Constitution," In re Reapportionment 92, 828 P.2d at 195-96. Therefore, we find that the divisions of Adams County are constitutional.

In our prior opinion, we stated that the Commission should address on remand the divisions of the City of Boulder between House Districts 10, 11 and 18 in the Adopted Plan. In re Reapportionment of the Colo. Gen. Assembly, 45 P.3d at 1254, n. 11 (Colo. 2002). The Readopted Plan maintains the divisions of the City of Boulder between House Districts 10, 11 and 18 as they were drawn in the Adopted Plan. Betty Chronic, Richard P. Hume, William Swenson and Betty Swenson reassert their objection to the division of the City of Boulder between house districts in the Readopted Plan. The Commission advanced the following explanation in support of the decision to divide the City of Boulder between house districts:

The Commission has re-examined the objection to the division of the City of Boulder and has concluded to keep house districts 10, 11 and 18 as they were drawn in the Adopted Plan. At the February 1, 2002 and February 7, 2002 Commission meetings, Commissioner Hume introduced and proposed a map called "Hume Boulder Amendment to House." The Hume amendment splits the same number of cities as are split in the Final Plan (two-the cities of Boulder and Longmont) and thus offers no advantage in terms of Article V, § 47(2), which provides that "the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible." Colo. Const. Art. V, § 47(2)(emphasis added). In addition, the Hume amendment isolates a small segment of the population of the City of Longmont from all other Longmont residents. The Commission determined that placing this small group of Longmont residents in a district dominated by Boulder would effectively disenfranchise them. By contrast, dividing Longmont roughly evenly between two senate districts, as the Commission has done, provides Longmont residents with a more effective voice in the Legislature because they will have the ear of two senators, rather than one. The Hume amendment also fails to preserve the community of interest that the Commission found to exist between the areas of the City of Boulder and Longmont that are joined in district 11. For these and the other reasons the Commission previously identified in its reply to the objections to the Adopted Plan (see Reply at 53-57 (Jan. 3, 2002)), the Commission has concluded to keep house districts 10, 11 and 18 as they were drawn in the Adopted Plan.

Revised Final Plan for Reapportionment of the Colorado General Assembly, at 7-8. We conclude that the Commission has provided "an adequate factual showing that less drastic alternatives could not have satisfied the equal population requirement of the Colorado Constitution," In re Reapportionment 92, 828 P.2d at 195-96. The Commission also utilized the community of interest criteria of Article V, Section 47(3) in making the divisions; we agree with this application of the criteria. Therefore, we find that the divisions of the City of Boulder are constitutional.

Article V, Section 46 of the Colorado Constitution requires that "in no event shall there be more than five percent deviation between the most populous and the least populous district in each house." The maximum population deviation of five percent is intended to make it easier to avoid splitting counties between legislative districts, and to permit the Commission to consider community of interest factors, by allowing the Commission some degree of flexibility in the population number for each district. In re Reapportionment of the Colo. Gen. Assembly, 45 P.3d at 1244 (Colo. 2002). In our opinion, we noted that the Adopted Plan technically exceeded this constitutional limit by 0.001% and that the Commission had the opportunity on remand to address this infraction. Id. 45 P.3d at 1253-54. The Readopted Plan's mathematical deviation between the most and least populous senate district is 4.95%, 0.05% below the constitutional limit. Therefore, we find that the Readopted Plan complies with Article V, Section 46 of the Colorado Constitution.

Garfield County Board of Commissioners objects to the division of Garfield County between Senate Districts 7 and 8 in the Readopted Final Plan. The Commission offered the following explanation for the division of Garfield County between senate districts:

The Adopted Plan for Senate district 8 split Mesa and Eagle Counties. On remand, the Commission succeeded in keeping Mesa County whole, as directed by the Court's January 28, 2002 decision, Reapportionment 2002-I, slip op. at 40, and in eliminating the Eagle County split. Unfortunately, because Mesa County provides only enough population for .95 of a Senate district, population from an adjacent county had to be added. All adjacent counties were too large in population to be kept whole in a district with Mesa County. The Commission determined that the best option for equalizing population in the new district 8 was to push north into Garfield County to include the Town of Parachute in the district. The net effect of the Revised Final Plan is to reduce the number of county splits by one. The new district 8 does not split any municipality, and it is properly within the discretion of the Commission to decide which of the counties adjacent to Mesa County should be split.

Reply of Colorado Reapportionment Commission to Objections to Revised Final Plan, at 2-3 [hereinafter omitted). Garfield County Board of Commissioners also objects to the division of Garfield County between House Districts 57 and 61. The Commission offered the following explanation for the division of Garfield County between house districts:

[The Commission drew district 56 to accommodate the public's desire to include Eagle, Lake, and Summit counties in a single district. To equalize population between districts, the Commission added population from the Roaring Fork Valley section of Eagle County and the eastern portion of Garfield County to district 61. The configuration of district 61 maintains the integrity of the City of Henwood Springs and places the city in a district with populations that share common, economic, education,; and transportation concerns. The Garfield objectors have failed to offer an alternative plan with fewer county or city splits and bave failed to identify any constitutional shortcomings in the Revised Final Plan.

Reply, supra, at 4-5 (citations omitted). We conclude that the Commission has provided "an adequate factual showing that less drastic alternatives could not have satisfied the equal population requirement of the Colorado Constitution," In re Reapportionment 92, 828 P.2d at 195-96, for both of these divisions. The Commission also utilized the community of interest criteria of Article V, Section 47(3) in making the divisions; we agree with this application of the criteria. We find that the divisions of Garfield County are constitutional.

Grand County Republicans object to Senate Districts 8 and 16 in the Readopted Plan; they would prefer that Grand County be contained within Senate District 8. The Commission offered the following explanation for the location of Grand County in the Readopted Plan:

The placement of Grand County in Senate district 16 was driven by the need to create four whole Senate districts in Jefferson County and two whole Senate districts in Boulder County, as directed by the Court.... The objectors' alternative of putting Grand County in Senate district 8 and equalizing population by adding the eastern portion of Eagle County to Senate district 16 would cause an additional county split on the Western Slope in violation of Article V, § 47(2) and would elevate the communities of interest criterion over the criterion of keeping counties whole, in violation of the hierarchy mandated by the Constitution as interpreted by this Court. The requirement of keeping counties whole trumps the requirement of preserving communities of interest.

Reply, supra, at 1-2. Lake County Republicans and Lake County Democrats object to the placement of Lake County in Senate District 4. These objections address decisions which are within the Commission's disceretion. "Issues concerning compactness, communities of interest, and which plan is preferred by a certain group of citizens, must remain within the seope of the Commission's discretion. We do not redraw the reapportionment map for the Commission." In re Reapportionment of the Colo. Gen. Assembly, 45 P.3d at 1247 (Colo. 2002).

IL.

Accordingly, we uphold and accept the Commission's action and approve the Res-dopted Plan as the Final 2002 Reapportionment Plan for Colorado General Assembly districts. We order the Commission to file the Final Plan with the Secretary of State as expeditiously as practicable.

Justice BENDER concurs, and Chief Justice MULLARKEY and Justice MARTINEZ join in the concurrence.

Justice BENDER,

concurring:

I agree that the resubmitted plan meets the constitutional criteria as articulated by the court today. However, as stated in my dissent to In re Reapportionment of the Colo. Gen. Assembly, 45 P.3d 1237 (Colo. 2002), I would have approved the original plan submitted by the Commission.

I am authorized to say that Chief Justice MULLARKEY and Justice MARTINEZ join in this concurrence.

      . In its brief, the Commission stated: "Although the Commission believes that nothing in the Colorado Constitution requires it to calculate the maximum population variance to three decimal places, the variance under the revised senate plan is 4.95 percent." Because the Readopted Plan satisfies the constitutional deviation requirement, we do not reach the issue of how many decimal points are required for the deviation calculation here.


source: Caselaw Access Project

author: JOHNSON, Viece-Presiding Judge: LUMPKIN, Presiding Judge:

license: Public Domain

text:
    2002 OK CR 22
    Michael J. HOWREY, Appellant, v. The STATE of Oklahoma, Appellee.
    No. F-2001-820.
    Court of Criminal Appeals of Oklahoma.
    May 7, 2002.
    T. Gene Monroe II, Hall, Estill, Hardwick, Gable, Golden & Nelson, Tulsa, OK, Attorney for Defendant/Appellant at trial and on appeal.
    John Kelson, Asst. District Attorney, Delaware County, Jay, OK, Attorney for the State at trial.
    Stacy Morey, Assistant General Counsel, Oklahoma City, OK, Attorney for Oklahoma State Bureau of Investigation at trial.
    Seth S. Branham, Asst. Attorney General, Oklahoma City, OK, Attorney for the State on appeal.
   SUMMARY OPINION

JOHNSON, Viece-Presiding Judge:

11 Appellant, Michael J. Howrey, petitioned the District Court of Delaware County to order expungement of law enforcement records relating to Delaware County District Court Case Nos. CF-1998-340 and CM-1993-1102, pursuant to 22 O.S.Supp.1997, § 18 and 22 O.S.Supp.1999, § 19 (hereafter 22 O.S. §§ 18 and 19). At a hearing held March 7, 2001, the Honorable Alicia Little-field, Special Judge, denied Appellant's request. This appeal followed.

2 Appellant raises the following propositions of error:

1. Expungement should have been granted because no charges were filed related to the arrest for "Soliciting a Minor for Sex." ©
2. Expungement, or amendment, should have been ordered because the records kept by the Oklahoma State Bureau of Investigation are in error.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we VACATE the district court's order and REMAND for further proceedings.

T3 Appellant was arrested in Delaware County on September 16, 19983. The charges made by the arresting officer (according to the information introduced from Appellant's booking at the jail) were "Indecent Exposure" and "Soliciting a Minor for Sex." The next day, complaints were filed in two separate Delaware County cases, one for the felony charge of Indecent Exposure (21 O.S. 1991, § 1021) (CF-1993-340), and the other for two misdemeanor counts of Obscene, Threatening, or Harassing Telephone Calls (21 O.S.Supp.1998, § 1172) (CM-1993-1102). Appellant ultimately reached a deferred sentencing arrangement with the State, wherein he pled guilty to the charges in exchange for probation terms. Pursuant to 22 O.S.Supp. 1996, § 991c, when Appellant successfully completed his probation, all records of the prosecution in both cases were expunged. However, because expungement of court ree-ords under § 991e has no effect on arrest records kept by law enforcement agencies, state law enforcement records still showed that Appellant had been arrested in Delaware County in September 1998. More importantly, those records listed one of the charges for which Appellant was arrested as "Soliciting a Minor for Indecent Exposure/Obscene Material"-although the arresting officer's charge was "Soliciting a Minor for Sex," and neither charge was ever filed by the district attorney.

T4 At the expungement hearing, Appéllant argued that the arrest records should be expunged because they were inaccurate and misleading. 'Specifically, Appellant claimed (1) the record of an arrest for "Soliciting a Minor for Indecent Exposure/Obscene Material" should be expunged because no such arrest ever took place; and (2) although he was arrested for "Soliciting a Minor for Sex," any reference thereto should be expunged because no charges were ever filed for that offense. The district court concluded that Appellant's cireumstances did not render him eligible to seek expungement under 22 O.S. § 18. The district court's ruling requires this Court to determine (1) whether the circumstances presented entitle Appellant to petition for expungement, and (2) if so, the extent of the district court's authority if it decides that Appellant is entitled to relief.

T5 The right to seek expungement of arrest records is conferred by statute. In 22 O.S. § 18, the Legislature has enumerated the situations in which a person may seek expungement of "eriminal records." Although § 18 defines expungement as "the sealing of eriminal records," § 19 provides a much more elaborate definition of the district court's powers to restrict access to criminal records. Section 19 also details the procedure to be followed when a person "qualified under Section 18" petitions for expungement.

T6 Appellant's primary complaint (and a fact never contested by the State) is that one of the two charges for which he was initially arrested, "Soliciting a Minor for Sex," was never filed by the district attorney. Appellant contends he is eligible to seek expungement under either of two provisions: 22 O.S. § 18(3), which provides that a person is authorized to seek expungement if he "was arrested and no charges are filed or charges are dismissed within one (1) year of the arrest"; or § 18(4), which provides that a person may seek expungement if "[the statute of limitations on the offense had [sic] expired and no charges were filed."

I 7 The State argued, and the district court apparently agreed, that because "charges were filed" on some sort of offense in relation to Appellant's arrest (and that charge was not dismissed within one year), the fact that he was never charged with a particular offense for which he was arrested is irrelevant, and cannot be grounds for an expungement petition. The State's position below relies on the use of the term "charges [are/were] filed" in § 18(3) and (4). The State apparently construes this term to mean "any charge of any kind," including but not limited to charges for the accusation made on arrest.

18 The goal of statutory construction is to discern the intent of the Legislature. A statute should be given a construction according to the fair import of its words taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. State v. Anderson, 1998 OK CR 67, ¶ 3, 972 P.2d 32, 33. This Court may also consider the "natural or absurd consequences of any particular interpretation." Id.

19 With these principles in mind, we cannot agree with the district court's construction of 22 O.S. § 18. Six of the nine situations enumerated in $ 18 which permit a person to seek expungement of criminal records involve either insufficiency of evidence or prosecutorial inaction. A person may seek expungement if (a) he has been acquitted, (b) his conviction was reversed with instructions to dismiss, or (c) his conviction was reversed and the charge was subsequently dismissed for any reason. 22 O.S. § 18(1), (2). A person may also seek expungement if (a) he was arrested and "no charges are filed," (b) he was arrested and charges were filed but dismissed within one year of the arrest, or (c) the statute of limitations for the offense has expired and "no charges were filed." 22 O.S. § 18(3), (4).

I 10 Reading § 18 as a whole, with the aim of rendering each part harmonious with the others, we believe the term "charges [are/ were] filed" as used in § 18(3) and (4) necessarily refers to charges for the accusation made at arrest. Any other construction would lead to anomalous, even absurd, results. The State's construction would place § 18(3) and (4) in conflict with other provisions of the statute which permit expungement after acquittal and reversal of convictions, but which make absolutely no mention of situations where the charge filed differs from the accusation at arrest.

T11 The State's construction would bar persons from seeking expungement even if, in the district attorney's estimation, the accusation at arrest had absolutely no factual basis, and the charge actually filed had no factual relation to the accusation at arrest (e.g., an arrest for first-degree murder, and a subsequent charge of possessing marijuana discovered during book-in at the jail). Indeed, the accusation made at arrest need not even be an offense cognizable in Oklahoma; nevertheless, under the State's construction, the arrestee would be barred from any type of relief.

{ 12 Finally, the State's construction would be contrary to the clear legislative purpose of permitting expungement in cases of eviden-tiary insufficiency and prosecutorial inaction. Section 18 permits expungement when the evidence is sufficient to merit a formal charge and bindover for trial, but is insufficient to sustain a conviction. It even permits expungement where the evidence is clearly sufficient to sustain a conviction, but the case is reversed for trial error and subsequently dismissed for any reason. Yet in the State's view, expungement would never be permitted where the accusation at arrest did not even merit the filing of a eriminal complaint for that offense in the first place. We cannot believe the Legislature intended such a strange result.

113 We conclude that under the cireumstances presented here, Appellant was statutorily eligible to seek expungement of his arrest record, pursuant to 22 O.S. § 18(3) and (4), to the extent that record reflects arrest for an offense for which no charges were filed. Because Appellant is statutorily eligible to seek expungement under 22 O.S. § 18, prejudice to his privacy interests is presumed. Hoover v. State, 2001 OK CR 16, ¶ 6, 29 P.3d 591, 594; McMahon v. State, 1998 OK CIV APP 103, 959 P.2d 607, 608. Whether Appellant is entitled to relief is for the district court to determine. In that connection, we note that 22 O.S. § 19 affords the district court broad powers in determining what information is affected, and to whom access is denied. Section 19 permits sealing "all or any part" of the records (except basic identification information), and grants the court authority to selectively limit access to the records as the-court may deem appropriate under the cireumstances (e.g. access by law enforcement vis a vis access by private parties). 22 O.S. § 19(A), (C); Hoover, 2001 OK CR 16, ¶ 7, 29 P.3d at 595.

DECISION

T14 The district court's Order Denying Expungement is VACATED and the case is REMANDED for further proceedings not inconsistent with this opinion.

CHAPEL, and STRUBHAR, JJ., concur.

LUMPKIN, P.J., dissents. .

LILE, J., joins in Judge LUMPKIN's dissent.

LUMPKIN, Presiding Judge:

Dissents.

T1 I dissent to the Court's decision to vacate the District Court's order denying expungement as I find Appellant was not statutorily eligible to seek expungement of his arrest record.

T2 The record reflects Appellant was initially arrested for Soliciting a Minor for Sex and Indecent Exposure. The District Attorney then reviewed the arrest records and the supporting evidence in order to determine whether criminal charges should be filed. In making that legal decision, the District Attorney determined Solicitation of a Minor was not a criminal offense as set forth in the state criminal statutes. Based upon the evidence, the District Attorney determined the appropriate criminal charge to file was the misdemeanor offense prohibiting the making of obscene, threatening, or harassing phone calls. To this offense, Appellant pled guilty.

13 Under 22 O.S.Supp.1997, § 18(3) Appellant was not entitled to have his arrest record for Soliciting a Minor for Sex expunged as criminal charges were filed on that offensive conduct. That the appropriate criminal charge for the acts committed by Appellant happened to bear a name different from the accusation made by the arresting officer does not change the fact that a ecrimi-nal charge was filed for that conduct. The decision as to which provision of the criminal code the erime is to be charged is properly vested in the prosecutor, and not in the arresting officer. See Romano v. State, 847 P.2d 368, 393 (Okl.Cr.1993); Dangerfield v. State, 742 P.2d 573 (Okl.Cr.1987). Here, criminal charges were filed on the conduct comprising the Solicitation of a Minor for Sex offense. Therefore, expungement under § 18(3) was not appropriate.

T4 While Appellant is not entitled to the expungement of his arrest record, he is entitled to have that arrest record corrected to note that the arrest culminated in the prosecution and conviction for Making Obscene, Threatening, or Harrassing Phone Calls.

11 5 I am authorized to state that Judge LILE joins in this dissent.

      . See State ex rel. Hicks v. Freeman, 1990 OK CR 45, ¶ 9, 795 P.2d 110, 112.

      . Two of the seven paragraphs of § 18 contain multiple scenarios.

      . It is not clear whether the State reads "charges [are/were] filed" to mean "charges were filed which themselves resulted in a final conviction or deferred sentence." The affected sections, § 18(3) and (4), do not supply this condition. Taken literally, the State's construction of the term "charges [are/were] filed" in these sections would mean that whenever the charge at arrest differs from the charge filed, the former can never be expunged regardless of the disposition of the prosecution. For example, § 18(1) permits expungement if the person "has been acquitted." But if the person was arrested for crime X, and charges were filed instead on crime Y and the person was acquitted of crime Y, there has been no "acquittal" on crime X. Because the person was arrested [for crime X] and "charges were filed" [for crime Y], under the State's view, the arrest for crime X could never be expunged.

      . In this case, the accusation at arrest was a felony, but the offense ultimately charged (Making Obscene, Threatening, or Harassing Telephone Calls) was a misdemeanor.

      . In a related argument, Appellant claims that his arrest record should be expunged because there is no such offense in Oklahoma as "Soliciting a Minor for Sex." We disagree. See 21 O.S.Supp.1992, § 1123(A)(1), which punishes lewd proposals for sexual relations made to any child "under sixteen (16) years of age." Appellant's argument does, however, underscore the absurdity in the State's construction of the applicable law. Under the State's construction, an arrest record could not be expunged even if one of the charges was for an offense that did not exist in our law, regardless of how detrimental such misleading information might be, so long as the arrestee was convicted or pled guilty to some sort of charge.

      . In addition to the presumption of prejudice, we note that Appellant presented evidence on 'this point at the expungement hearing.


author: JOE C. TAYLOR, Presiding Judge:

text:
    2002 OK CIV APP 60
    BOHM, INC. d/b/a Mid-Kansas Diesel, Plaintiff/Appellee, v. Seth B. MICHAEL, Defendant/Appellant.
    No. 96,811.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    April 9, 2002.

      James L. Menzer, Menzer Law Offices, P.C., Blackwell, OK, for Plaintiff/Appellee.
    Timothy R. Beebe, Enid, OK, for Defendant/Appellant.
   Opinion by

JOE C. TAYLOR, Presiding Judge:

{1 Defendant, Seth B. Michael, appeals from the trial court's order denying his motion to vacate the grant of summary judgment in favor of Plaintiff, Bohm, Inc. d/b/a Mid-Kansas Diesel. Based on our review of the record and the applicable law, we affirm.

T2 The parties' initial pleadings do not appear in the record. Defendant does. not dispute Plaintiff's procedural history of the case as set forth in Plaintiffs motion for summary judgment, however. According to that document, Plaintiff filed this action in November 2000 and Defendant answered in January 2001, denying the allegations of Plaintiff's petition and asserting no affirmative defenses. Though the factual allegations of Plaintiffs petition are not set forth in Plaintiff's motion, it is clear from the record provided that Plaintiff sought damages from Defendant for Defendant's alleged failure to perform 'the terms of an agreement between the parties.

T3 Shortly after Defendant filed his answer, Plaintiff mailed to Defendant's counsel and filed in the case requests for admission concerning the transaction, pursuant to 12 O.S.1991 § 3236. Defendant's responses initially were due in mid-February 2001, though Plaintiff agreed to extend the time for re-spouse, first, to March 2001, and then to May 2001. Defendant never responded to the requests. Plaintiff moved for summary judgment, asserting facts undisputed by virtue of Defendant's deemed admissions. The trial court granted Plaintiffs motion and entered judgment, based on the admissions, against Defendant for $2,816.83 (a sum that included prejudgment interest), plus costs, attorney fees, and post-judgment interest.

«4 Defendant moved to vacate within ten days, essentially claiming unavoidable casualty or misfortune under 12 O.S. Supp.2000 § 1031(7). The trial court denied the motion, and Defendant perfected 'this appeal. He does not assert error in the trial court's denial of his motion to vacate, but lists two issties of error challenging the underlying judgment: (1) that disputed issues of fact are disclosed by the record, and (2) that the trial court had no authority to award Plaintiff prejudgment interest in the absence of an agreement between the parties allowing it We thus apply the standard of review applicable to review of a trial court's entry of summary judgment, meaning that the issues are before us for a de novo examination. Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, 932 P.2d 1100.

T5 The record reflects that Defendant did not respond to Plaintiff's motion for summary judgment in the trial court but this fact is not necessarily fatal to his challenge of the motion on appeal. The burden of producing admissible evidence to support every material fact is on the movant, and the trial court has the burden "to insure that the motion is meritorious." Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court). If admissible evidence has not been submitted to support each material fact, the motion should be denied. Id. Further, a party need not respond and challenge material facts which are not supported by admissible evidence in the moving party's brief, Id. at ¶ 9, 743 P.2d at 684. When the movant has shown there is no genuine issue as to a material fact or the reasonable interpretation of undisputed facts, however, summary judgment should be granted. Flanders v. Crane Co., 1984 OK 88, 693 P.2d 602. We find the latter situation present in the case at bar, with the record supporting the trial court's judgment.

T6 Under 12 0.8.1991 $ 8236(A), requests for admission which are not answered are deemed admitted, and under § 8236(B) are "conclusively established unless the court on motion permits withdrawal or amendment of the admission." The record here does not suggest that Defendant at any time requested to withdraw or amend his admissions to Plaintiff's requests; thus, the material facts set forth in those requests were conclusively established when Plaintiff moved for summary judgment, and the trial court was entitled to rely on them in ruling on the motion. Though this is not an issue that has specifically been addressed by the Oklahoma Supreme Court, it is clear under federal law-on which Oklahoma's discovery and evidence statutes are based-that "unanswered requests for admissions may properly serve as a basis for summary judgment and with a failure to make a timely response, the truth of the matter contained in the request for admission is conclusively established and may serve as the basis for a court's consideration of a motion for summary judgment." Donovan v. Porter, 584 F.Supp. 202, 207-08 (D.Md.1984) (citing Batson v. Porter, 154 F.2d 566 (4th Cir.1946)); see also Stubbs v. Comm'r of LRS, 797 F.2d 986 (lith Cir. 1986); Unit Petroleum Co. v. Nuex Corp., 1991 OK 21, 807 P.2d 251, 252-53 (state court may use federal interpretation as a guide when state law is based on federal counterpart); Warner v. Hillcrest Med. Cir., 1995 OK CIV APP 123, 18, 914 P.2d 1060, 1064 (same). The fact that the evidence is an "admission" also avoids application of the hearsay rule, which might otherwise render such documentary evidence inadmissible. Ree 12 0.S.1991 § 2801(4)(b) and Evidence Subcommittee Notes ("Section 801(4)(b) takes admissions out of the category of hearsay.").

T7 By failing to respond to the admissions request, Defendant admitted the following: an agreement existed between the parties whereby Defendant was to provide a rebuildable core to Plaintiff at some time before September 3, 1996; Defendant failed to provide the rebuildable core; Defendant received notice from Plaintiff of his failure to provide the part on or about September 3, 1996; Defendant's breach resulted in a debt to Plaintiff of $1,400, with interest accruing thereon at the rate of 21 percent per annum; Defendant represented to Plaintiff on several occasions that he would pay the debt; and Defendant failed to pay the debt per the agreement. The admissibility of this evidence is not questioned.

18 The evidence is sufficient to support a prima facie case for breach of contract. See, e.g., Thompson v. Phillips Pipe Line Co., 200 Kan. 669, 438 P.2d 146, 149 (1968). No contrary evidence appears in the record to dispute it. The record is therefore sufficient to demonstrate undisputed facts supporting the trial court's judgment against Defendant, including its award of prejudgment interest, which is clearly within the seope of the matter admitted.

T9 Though, as Defendant argues, a court may not award prejudgment interest in the absence of a statute or agreement allowing for the same, the fact that such an interest rate was part of the parties' agreement is in the material deemed admitted, including an agreement allowing a rate of prejudgment interest greater than the statutory rate allowable by virtue of 23 O.S.1991 § 6 and 15 O.S.1991 § 266. Thus Defendant's argument on this allegation of error fails, as well.

110 Plaintiff has filed a motion for appeal-related attorney fees pursuant to 12 O.S.1991 § 936. "Whenever thére is statutory authority to award attorney fees in the trial [court], additional fees may be allowed . for legal services rendered in the appellate court." Sisney v. Smalley, 1984 OK 70, ¶ 20, 690 P.2d 1048, 1051. Plaintiff's motion is granted, subject to a determination of reasonableness by the trial court in a hearing on remand. See State ex rel. Burk v. City of Okla. City, 1979 OK 115, 598 P.2d 659.

T11 AFFIRMED AND REMANDED FOR DETERMINATION OF PLAIN-TIFE'S REASONABLE APPEAL-RELATED ATTORNEY FEES.

REIF, C.J., and STUBBLEFIELD, J., concur.

      . Defendant asserted that he individually had not received a copy of the motion for summary judgment mailed to him by his counsel and therefore had not communicated with counsel concerning response to the same; Defendant had not answered Plaintiff's "interrogatories" because Defendant did not "possess such information"; Defendant believed counsel "would go ahead and represent him and he could pay at a later date"; and Defendant believed he had a valid defense, which he did not delineate.

      . Although, under 12 O.S. Supp.2000 § 990.2(A), post trial motions to vacate filed within ten days after judgment is entered will operate to extend a party's time to appeal a judgment, a party filing a motion to vacate is not specifically limited by statute to raising, on appeal, only the grounds asserted in the motion to vacate, as is the case with new trial motions pursuant to 12 O.S.1991 § 991(b).

      . Specifically, Plaintiff's request sought Defendant's admission of the following facts:
      1. On September 3, 1996, Plaintiff notified Defendant that Defendant had failed to provide a rebuildable core per the terms of "Exhibit A" to Plaintiff's petition.
      2. Defendant failed to provide the rebuildable core per the terms of "Exhibit A."
      3. Defendant represented to Plaintiff that Defendant would pay the debt that is the basis of Plaintiff's petition.
      4. Defendant has not performed all obligations per the terms of "Exhibit A."
      5. In October 1999, Defendant represented to Plaintiff that Defendant was getting a loan to pay the debt owed.
      6. In December 1999, Defendant told Plaintiff he was taking finals and would mail a check to Plaintiff that month to pay the debt.
      7. Defendant has received numerous invoices from Plaintiff for the debt.
      8. Defendant never disputed owing the debt prior to the filing of this action.
      9. Defendant is indebted to Plaintiff in the principal amount of $1,400 as of September 3, 1996, with interest accruing thereafter at the rate of 21 percent per annum.
      10. Defendant has no valid defense to Plaintiff's claims. h
      11. Defendant has no valid affirmative defense to Plaintiff's claims.


author: TOM COLBERT, Presiding Judge:

text:
    2002 OK CIV APP 58
    In the Matter of K.C., T.C., K.C., & T.C., Adjudicated Deprived Children. Sheri L. Hadley, Appellant, v. State of Oklahoma, Appellee.
    No. 96,365.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    April 9, 2002.

      David A. Webb, Idabel, OK, for Appellant.
    L. Walter Hamilton, District Attorney, Virginia D. Sanders, Assistant District Attorney, Idabel, OK, for Appellee.
   Opinion by

TOM COLBERT, Presiding Judge:

T1 Sheri L. Hadley (Mother) appeals a judgment of the trial court terminating her parental rights to her children, K.C., T.C., K.C., and T.C. (Children). The issue on appeal is whether there is sufficient evidence to support a finding that the State of Oklahoma (State) met its burden of proving by clear and convincing evidence that termination of Mother's parental rights was in Children's best interests. We find there is not, reverse the judgment, and remand for further proceedings.

BACKGROUND

12 In April 1999, State filed a petition to have Children adjudicated deprived. State sought the adjudication on the grounds that Mother and her youngest child both tested positive for methamphetamines at the time of the child's birth; that Mother's home environment had contributed to neglect of Children in that the electricity and water had been disconnected, Mother and Children had been evicted from their trailer home, Mother slept all day, stayed out late at night and left Children with inadequate supervision, and refused to get a job; and that Mother had abandoned Children by voluntarily placing them in foster care on March 31, 1999.

13 Mother stipulated to the allegations in the petition. On May 11, 1999, the trial court entered an order finding that Children were deprived and placed them in the custody of the Department of Human Services (DHS). The court adopted a treatment plan, submitted by DHS, which required Mother to obtain drug and alcohol abuse counseling; obtain, complete and return an employment application to the local employment office; attend Narcotics Anonymous meetings at a frequency to be determined by the substance abuse counselor; cooperate with Child Welfare Services (CWS) and follow any and all recommendations of CWS; attend individual counseling for anger and behavior management; and enroll in and complete parenting skills classes. The ultimate goal of the treatment plan was that Mother would be able to provide Children a secure home environment. DHS filed updated treatment plans in September 1999 and March 2000. The updated plans retained the same requirements as the original plan.

T4 On June 23, 2000, State filed a motion to terminate Mother's parental rights. State's primary allegations were that Mother was unwilling to complete her treatment plan after having been given fourteen months; she failed to support her children financially; she had not been compliant with DHS and CWS, and Children had been in foster care for more than fifteen of the most recent twenty-two months. A non-jury trial was conducted on May 2, 2001, after which the trial court terminated Mother's parental rights to Children on the grounds that: (1) Mother failed to complete her treatment plan and failed to correct the conditions which led to Children's deprived adjudication; (2) Mother failed to pay any child support as ordered by the court and in accordance with her ability to pay; and (3) Children had been in foster care for fifteen of the most recent twenty-two months. Mother appeals.

DISCUSSION

15 In proceedings to terminate parental rights, the paramount consideration is the health, safety, welfare, and best interests of the child. 10 O.S. Supp.2000 § 7006-1.1(A). There is a presumption that a child's best interests lie in preserving family integrity. In re J.M., 1993 OK CIV APP 121, ¶ 4, 858 P.2d 118, 120. Therefore, the standard of proof required for the termination of parental rights under section 7006-1.1(A) is "clear and convincing." In re C.G., 1981 OK 131, ¶ 17, 637 P.2d 66, 71. "Clear and convincing" evidence is "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established." Id. at ¶ 17 n. 12, 637 P.2d at 71 n. 12. This standard balances the fundamental rights of parents with the State's duty to protect the children within its borders. Id. at ¶ 17, 637 P.2d at 70. The State must prove by clear and convincing evidence the potential for parental harm to the child. Id. at ¶ 17, 637 P.2d at 71. Additionally, the State must clearly and convincingly prove that termination of parental rights is in the best interests of the child. J.M., 1993 OK CIV APP 121, ¶ 4, 858 P.2d at 120. In the absence of sufficient evidence that the State met its burden clearly and convincingly, an order terminating parental rights will be reversed on appeal. Id. at ¶ 19, 858 P.2d at 123.

T6 Section 7006-1.1(A)(5) provides that a trial court may terminate parental rights upon finding that the child has been adjudicated deprived; the deprived condition is caused by or contributed to by acts or omissions of the parent; termination of parental rights is in the best interests of the child; and the parent has failed to show that the condition which led to the deprived adjudication has been corrected, although the parent has been given not less- than three months to correct the condition. See also 10 O.S. Supp.2000 § 7003-5.5(D(1). Title 10 O.S. Supp.2000 § 7006-1.1(A)(15) provides that a trial court may terminate parental rights upon a finding that a child has been placed in foster care by DHS for fifteen of the most recent twenty-two months. Children have been in foster care since May 11, 1999. See § 7006-1.1(A)(15)(a) & (b). State argued at trial that Children were in foster care for that duration of time because Mother failed to complete the requirements of her treatment plan.

T7 Mother correctly points out that failure to comply with the service plan, in itself, is not a ground for termination. See J.M., 1993 OK CIV APP 121, ¶ 4, 858 P.2d at 120. See also In re A.G. and E.G., 2000 OK CIV APP 12, ¶ 6, 996 P.2d 494, 497 ("The test, however, is not whether [the parent] completed the plan but whether [the parent] corrected the conditions which led to the adjudication."). The State uses noncompliance with the plan as evidence that parental rights should be terminated because the conditions which led to the deprived adjudication have not been corrected, and parents use compliance with the plan to show that the conditions which led to the deprived adjudication have been corrected. J.M., 1993 OK CIV APP 121, ¶ 4, 858 P.2d at 120.

8 At the hearing, the trial court acknowledged that Mother had substantially complied with certain aspects of the treatment plan. However, the court determined that termination was in order because Mother had taken too long to complete the plan. We disagree with the court's determination.

9 The primary condition which led to the deprived adjudication was Mother's substance abuse. The record contains a certificate of completion from Kiamichi Council on Alcoholism & Other Drug Abuse, Inc. (Kiamichi Council), reflecting that Mother completed substance abuse counseling on March 9, 2000. State argues on appeal that Mother did not complete the substance abuse counseling within ninety days. However, section 7006-1.1(A)(5) and section 7008-5.5(I)(1) provide that a parent must be given not less than three months to correct the conditions which led to the deprived adjudication. The statute does not establish a maximum time limit.

T10 The treatment plan required that Mother attend Narcotics Anonymous meetings at a frequency to be determined by her substance abuse counselor. Mother's substance abuse counselor at Kiamichi Council, Terry Wallace, testified that he never told Mother to attend Narcotics Anonymous meetings. Although he recommended that she attend them on an "as needed" basis, he never set a number of meetings or gave any specific meeting times. On eross-examination, Wallace admitted that the common sense meaning of "as needed" was that the individual could determine when and how often to attend the meetings.

11 Moreover, State did not provide any evidence or make any implication that Mother was currently using drugs. Mother took and passed at least two random urinalysis tests. Although there were instances when she refused to take the tests, Tricia Burrell, a CWS caseworker, testified that Mother's refusal was based on the fact that she did not have the money to pay for the tests. Burrell stated that Mother took the tests when CWS paid for them.

{12 The record also reflects that Mother completed parenting skills classes on December 30, 1999. Although Burrell testified that Mother was not able to verbalize what she had learned from the classes, Mother did complete them.

- (18 Although Mother admitted that she never registered with the local employment office, she also testified that she had obtained employment on her own. Burrell admitted that, while she worked with CWS from October 1999 to June 2000, she had knowledge that Mother was employed as a bartender. However, she did not know how long Mother was employed. Mother testified that, since the fall of 1999, she had not been without a job for more than three weeks. She worked as a truck driver, bartender, and beautician, and was employed at the time of trial.

{14 Mother sought individual counseling at Carl Albert Mental Health Center, the facility recommended by CWS. However, Burrell testified that Carl Albert informed her that Mother did not meet their criteria for counseling. Mother testified that she sought counseling at another facility but did not receive it. Burrell stated that, when she discovered that Mother was not receiving individual counseling, she gave her a list of counselors she could contact. Although one of the counselors provided services free of charge, the others charged a fee, and, according to Mother, she could not pay. According to the testimony of both Mother and Burrell, inability to pay was a primary reason that Mother did not receive individual counseling.

T 15 State bases its allegation that Mother failed to cooperate with CWS primarily upon the fact that Mother did not keep workers aware of her address and phone number. State also argues that Mother repeatedly blamed CWS for breaking up her family. As the trial court noted, parents frequently dislike being forced to cooperate with DHS. Although Mother kept CWS informed of her whereabouts on a limited basis, it is clear that, on at least one occasion, Burrell visited Mother while Mother was living with friends. When asked whether the home environment was appropriate or inappropriate, Burrell responded, "It was a home." Mother testified that she does have her own home and is ready to care for Children.

T16 Burrell also testified that Mother missed only one visit with Children. She stated that, although some of the visits went well, others did not. However, the only negative aspects Burrell cited were that Children were sometimes "upset" after the visits and Mother often made empty promises that she would take Children home. Neither Burrell nor anyone else alleged that Mother yelled at Children or physically abused them.

T17 Although Mother admitted that she did not pay any child support as required by 10 O.S. Supp.2000 § 7006 1.1(A)(7), it is clear that the trial court did not base termination primarily upon this factor. Regardless of the statutory bases for termination, State did not meet its burden of showing clearly and convincingly that there was potential for parental harm to Children. See C.G., 1981 OK 131, ¶ 17, 637 P.2d at 71. Moreover, State did not clearly and convincingly prove that termination was in Children's best interests. See § 7006-1.1(A); J.M., 1993 OK CIV APP 121, ¶ 4, 858 P.2d at 120. The most evidence which State presented to show harm to Children was that they were sometimes emotionally upset-a common occurrence-after visits with Mother and that Mother promised them things she could not deliver. Although protracted foster care placement is generally not in children's best interests, there is evidence showing that Mother corrected the conditions which led to the deprived adjudication, and she substantially complied with her treatment plan.

I 18 This court has often stressed that the right of a parent to the companionship, care, custody, and management of the child is a fundamental right protected by both the federal and state constitutions. See M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 564, 136 L.Ed.2d 473 ("Choices about marriage, family life, and upbringing of children are among associational rights this Court has ranked as 'of basic importance in our society,' rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect.") (citation omitted); In re M.C., 1999 OK CIV APP 128, ¶ 9, 993 P.2d 137, 140 ("It is fundamental in Oklahoma that 'the right of a parent to the care, custody, companionship and management of his or her child is a fundamental right protected by the Federal and State Constitutions."). See also Alford v. Thomas, 1957 OK 218, ¶ 21, 316 P.2d 188, 192 ("It has long been the rule of this Court that the parents have by nature, as well as by law, the legal right to the custody of their minor children. This right will always control the judgment of the courts, unless circumstances of great weight and importance connected with the necessary welfare of the child exists to overcome such strict legal right.").

119 It is because of this fundamental right which parents have in the custody of their children that we are mindful of the gravity of the sanction imposed by termination. We emphasize that termination is not a matter to be taken lightly by the courts, and State must always be held to its burden of proof.

CONCLUSION

" 20 State did not clearly and convincingly show that Mother posed a harm to Children or that termination was in Children's best interests. Therefore, we reverse the order terminating Mother's parental rights and remand the case for further proceedings.

121 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

RAPP, J., and GOODMAN, J., concur.

      . K.C., the oldest child, was born on March 14, 1986; T.C. was born on October 21, 1988; KC. was born on February 14, 1990; the youngest child, T.C., was born on December 22, 1998.

      . The petition further alleged that Children's father did not support them or provide for their care. Mother's youngest child has a different biological father than the older three children.

      . State also sought termination as to both biological fathers. However, the fathers' parental rights are not at issue here.

      . In re C.G., 1981 OK 131, 637 P.2d 66, cites to 10 O.S. Supp.1977 § 1130, an earlier version of 10 O.S. Supp.2000 § 700671.1(A).

      . Wallace further testified that his assessment and evaluation of a particular individual depends partially upon a substance abuse screening test known as S.A.S.S.I. Wallace did not have a record of a S.A.S.S.I. being performed on Mother. Mother testified that DHS administered the test but did not disclose the results to her.

      . Mother denied having received the list of counselors prior to trial.

      . Mother argues that 10 O.S. Supp. §§ 7006-1.1(A)(7) & (A)(15) are unconstitutional. We need not address this argument in light of our decision.


author: GREENWOOD, Presiding Judge:

text:
    2001 UT App 10
    STATE of Utah, Plaintiff and Appellee, v. John Joseph BUSH, Defendant and Appellant.
    No. 990964-CA.
    Court of Appeals of Utah.
    Jan. 11, 2001.
    Rehearing Denied Feb. 28, 2001.
    Rehearing Denied June 7, 2002.

      Kenneth R. Brown and Patrick L. Anderson, Salt Lake City, for Appellant.
    Mark L. Shurtleff and Christine Soltis, Assistant Attorney General, Salt Lake City, for Appellee. - .
    Before Judges GREENWOOD, JACKSON, and THORNE.
   OPINION

GREENWOOD, Presiding Judge:

1 Defendant brings this interlocutory appeal, claiming the trial court erred in (1) allowing the State to amend the information to change the charge from theft by deception to theft of lost, mislaid, or mistakenly delivered property, (2) denying his motion for a new preliminary hearing on the amended charge, and (8) denying his motion to quash the bindover because the State did not produce sufficient evidence to support a probable cause finding. We affirm in part, reverse in part, and remand.

BACKGROUND

¶ 2 On October 29, 1998, the State charged defendant and his employee Brad Brewer with four counts of theft by deception under Utah Code Ann. § 76-6-405 (1999), and Brewer alone with four counts of forgery. The information stated that defendant and Brewer "obtained or exercised control over the property of MBCI and DBCI by deception, with the purpose to deprive the owner thereof, and that the value of said property is or exceeds $5,000." At the preliminary hearing, witnesses testified that defendant was the owner of Syndicated Storage Solutions (SSS), a general contractor that builds storage units. As a general contractor, SSS subcontracted with two companies, MBCI and DBCI, to provide certain materials used by SSS in its construction projects. When customers paid for projects, they normally submitted checks payable jointly to SSS and its subcontractors. Under this payment method, the subcontractor's right to payment was protected. Thus, SSS received the checks and would settle any outstanding accounts with its subcontractors before depositing any remaining amounts into its own account.

¶ 3 In this case, SSS received checks payable jointly to itself and MBCI. Normally, SSS would send the check to MBCI. After determining how much of the payment it was entitled to, MBCI would retain the amount owed to it and pay to SSS any remaining balance.

¶ 4 In this case, SSS received two checks as payment on a project made payable jointly to SSS and MBCI. The State produced testimony that an SSS employee, Brewer, forged the name of an MBCI employee on the check and deposited the checks into SSS's account. According to an MBCI employee, SSS was not entitled to any of the proceeds from these checks because MBCI was owed more than the amount of the checks. Eventually, MBCI learned that the checks had been forged and contacted the police.

¶ 5 When contacted by police, defendant stated he was unaware of any forgery or problems with the checks. Defendant, however, admitted that SSS owed MBCI money. Defendant stated the allegedly forged checks had been deposited into the SSS account, and the proceeds used to pay business and personal expenses. Later, an SSS secretary apparently informed defendant that there had been some improprieties with respect to the two checks.

¶ 6 At the preliminary hearing held December 29, 1998, the trial court found probable cause existed to bind over defendant with respect to the two checks made jointly payable to MBCI.

¶ 7 Defendant moved to quash the bind-over, arguing that the State had failed to show probable cause that he was directly involved in forging the checks or in theft by deception of the proceeds. Specifically, defendant argued the State was proceeding under a theory of vicarious liability for the forgeries, which was insufficient to support a criminal charge of theft by deception. During the hearing on the motion to quash, the prosecution admitted that theft by deception may not be the proper theory and suggested it could amend the information to charge theft of lost, mislaid, or mistakenly delivered property. Ultimately, the trial court denied defendant's motion to quash.

¶ 8 Defendant then petitioned for interlocutory appeal. Subsequently, the State amended the information, charging defendant with theft of lost, mislaid, or mistakenly delivered property under Utah Code Ann. § 76-6-407 (1999). This court denied the interlocutory appeal because of the amended information.

¶ 9 Defendant moved to strike the amended information, arguing it charged a new offense in violation of Rule 4 of the Utah Rules of Criminal Procedure. Defendant also moved for a new preliminary hearing based on the new charges contained in the amended information. The trial court again denied defendant's motions. The court also denied defendant's motion to quash the bind-over. Defendant again petitioned for interlocutory appeal, which this court granted.

ISSUES AND STANDARDS OF REVIEW

¶ 10 Defendant presents three questions: (1) did the trial court err in allowing the State to amend the information, changing the charge from theft by deception to theft of lost, mislaid, or mistakenly delivered property; (2) did the trial court err in denying defendant's request for a new preliminary hearing based on the amended charges; and (3) did the State produce sufficient evidence to support the bindover of defendant on the amended charge. These three issues all present questions of law which this court reviews for correctness, according the trial court some deference for its factual findings. See State v. Pena, 869 P.2d 932, 936 (Utah 1994) (questions of law); Tillman v. Cook, 855 P.2d 211, 215 (Utah 1998) (amended information); State v. Wodskow, 896 P.2d 29, 31 (Utah Ct.App.1995) (preliminary hearing and sufficiency of evidence).

ANALYSIS

I. Does Amending an Information to Charge a Different Theft Theory Constitute A New and Distinct Offense Under Rule 4

¶ 11 Defendant claims the trial court erred in allowing the State to amend the information after the preliminary hearing to charge theft of lost, mislaid, or mistakenly delivered property instead of theft by deception. Under Rule 4(d) of the Utah Rules of Criminal Procedure, "the trial court may allow an information to be amended if two conditions are met: (1) no additional or different offense is charged, and (2) the substantial rights of the defendant[] are not prejudiced.". State v. Ramon, 736 P.2d 1059, 1062 (Utah Ct.App.1987). Defendant relies on Tillman v. Cook, 855 P.2d 211 (Utah 1993) to argue that because the two theft crimes involve different elements of proof, the amendment in this case violates Rule 4(d). See id. at 215. In Tillman, the supreme court examined Rule 4(d) and stated: "Whether an amendment charges an additional or different offense turns on whether different elements are required to prove the offense charged in the amended information or whether the offense charged in the amended information increased the potential punishment from that originally charged." Id. (footnote omitted).

112 It is clear that the two theft crimes charged in this case involve different elements of proof. Compare State v. Roberts, 711 P.2d 235, 237 (Utah 1985) (stating "State must prove beyond a reasonable doubt that the defendant has (1) obtained or exercised control over the property of another; (2) by deception and; (8) with a purpose to deprive that person of the property." (footnotes omitted), with Utah Code Ann. § 76-6-407 (1999) (requiring proof that defendant (1) obtained property which he or she knew to be lost, mislaid, or mistakenly delivered; (2) failed to take reasonable measures to return the property to its owner; and (8) had the intent to deprive the owner of the property prior to attempting to return the property). Notwithstanding the different elements required to prove these two crimes, Utah's consolidated theft statute provides:

Conduct denominated theft in this part constitutes a single offense embracing the separate offenses such as those heretofore known as larceny, larceny by trick, larceny by bailees, embezzlement, false pretense, extortion, blackmail, receiving stolen property. An accusation of theft may be supported by evidence that it was committed in any manner specified in Sections 76-6-404 through 76-6410, subject to the power of the court to ensure a fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

Utah Code Ann. § 76-6-408 (1999). Thus, "[a]ll that is now required is to simply plead the general offense of theft and the accusation may be supported by evidence that it was committed in any manner specified in sections 404 through 410 of the Code...." State v. Taylor, 570 P.2d 697, 698 (Utah 1977) (footnote omitted). Specifically, the consolidated theft statute is designed to "eliminate[ ] the distinctions and technicalities previously existing, recognizing one crime of theft and incorporating therein all crimes involving the taking or obtaining of personal property without force." Id.

¶ 13 Therefore, the State argues that merely switching from one theory of theft to another does not constitute charging a new or different offense for purposes of Rule 4. We agree. The fundamental purposes of Rule 4 and section 76-6-403 are to provide a framework allowing the State to properly charge a defendant and to provide a defendant with notice of the crime charged and the evidence supporting the charge.

¶ 14 It is a fundamental principle of criminal law that a defendant is entitled to know "the nature and cause of the accusation against him," Utah Const. art. I, § 12, and "to sufficient time to prepare adequately for trial." State v. Peterson, 681 P.2d 1210, 1221 (Utah 1984) (Stewart, J., concurring in part and dissenting in part). Rule 4 protects a defendant's rights by requiring an indictment or information setting forth the offense and supporting facts and allowing a defendant to request a bill of particulars if desired. See Utah R.Crim P. 4.

¶ 15 Section 76-6-403 is modeled after the Model Penal Code's consolidated theft statute. See Paul N. Cox, Utah's New Penal Code: Theft, 1973 Utah L.Rev. 718, 734. The commentary to the Model Penal Code states: " [tlhe purpose of consolidation ... is not to avoid the need to confront the substantive difficulties in the definition of theft offerises. The appropriate objective is to avoid procedural problems' " Commonwealth v. Martin, 395 Pa.Super. 244, 577 A.2d 200, 203 (1990) (quoting Model Penal Code § 228.1(1), revised Commentary at 127-28 (1980)). As the commentary suggests, the purpose of the consolidated theft statute is not to allow the State to avoid the substantive safeguards contained in Rule 4. Rather, the consolidated theft statute is designed to prevent a defendant from escaping an otherwise valid theft charge on a mere technicality in the pleadings. Seq, eg., id. ("[I])n order to prevent a charge based on one method of unlawfully obtaining property from being defeated by the defense that the property was acquired by a different unlawful method, the statute allows the Commonwealth to introduce evidence at trial of any form of theft regardless of the form of theft charged, but always subject to the defendant's right to fair notice and an opportumty to defend.").

¶ 16 In order to protect a defendant's right to know the nature of the accusation, several courts have stressed the importance of providing defendants with sufficient notice and time to adequately prepare a defense. See, e.g., State v. Seiber, 117 Idaho 637, 791 P.2d 18, 20 (App.1989) (noting that amendment of information "must not deprive a defendant of his due process right to notice and opportunity to prepare a defense"); State v. Scott, 225 Neb. 146, 403 N.W.2d 351, 354 (1987) (upholding conviction because defendant had notice of the specific charge on which he was tried); State v. Stearns, 130 N.H. 475, 547 A.2d 672, 679 (1988) (upholding conviction because defendant tried under theory of theft by unauthorized taking and convicted by jury of that crime); Martin, 577 A.2d at 203 (reversing conviction because defendant was never informed that the Commonwealth intended to prove theft by receipt of stolen property instead of theft of property lost, mislaid, or delivered by mistake). Thus, allowing the State to amend the information to charge a different theory of theft does not offend the procedural safeguards in the criminal process, so long as defendant is adequately notified of the theory being used and given ample time to prepare a defense to the charge.

¶ 17 Finally, defendant argues that if Utah's consolidated theft statute allows the State to amend the information, the State failed to properly plead the theft offense. Defendant argues that in order to charge under the consolidated theft statute, the State must charge the general provision contained in sections 76-6-408 and -404. Because the first information charged defendant under a specific theft provision, section 76-6-405, defendant claims the State lost the ability to change the charge to a different theft theory under a separate section of the theft statute.

¶ 18 Defendant relies on this court's statement in State v. Fowler to support his position:

It is evident from the facts and holding in Taylor that sections 76-6-4083 and 404 are co-operative. Section 76-6404 is the "general offense of theft" required to be pled by section 76-6-408 to invoke the, provisions of consolidated theft. Onee the prosecution charges a defendant with the general offense of "theft" under section 76-6-404, it may then present its evidence to prove the theft was "committed in any manner specified in sections 404 through 410. ..."

Id. 745 P.2d 472, 474 (Utah Ct.App.1987) (citation omitted) (emphasis added).

1 19 Defendant also cites State v. Peterson as support for this theory. In Peterson, the supreme court upheld the amendment to the information because it merely changed the subsection on which the State intended to rely. See id. 681 P.2d 1210, 1220-21 (Utah 1984). The court stated that defendant had notice of the statutory offense, and thus his rights had not been prejudiced by merely altering the subsection. See id. at 1221. Defendant claims that Peterson is instructive because rather than merely changing the subsection as in Peterson, the State is changing the section and charging an entirely separate offense.

¶ 20 Thus, we must determine whether the State must plead under the general theft provision in order to have the ability to change its theory as to the specific type of theft charged. The State argues that by charging under the specific section, rather than the general, it is attempting to provide defendant with more information about the nature of the charge. Under this theory, the State believes it should not be foreclosed from changing the theft theory simply because its initial theory was incorrect. The State claims that Utah's theft statute is designed to avoid exactly this circumstance; procedural problems arising from difficulties of proof involving the specific means of theft. See Martin, 577 A.2d at 203.

¶ 21 Although neither Utah nor any other state has specifically addressed whether the general provision must be pleaded in order to be advantaged by the consolidated theft statute, it is clear that other states have allowed an information to be amended from one specific theft provision to another. For example, in Seiber, the Idaho Court of Appeals allowed the State to amend the information from one specific theft crime to another, stating: "theft and theft by obtaining control over stolen property are simply alternate 'circumstances' under which the crime of theft may be charged." Id., 791 P.2d at 20. In other words, under Idaho's theft statute, the different crimes are not separate offenses for purposes of amending an information, rather they are merely different ciream-stances of the single crime of theft. See id.

¶ 22 Similarly in Stearns, the Supreme Court of New Hampshire allowed a bill of particulars to be amended, changing the crime from theft by unauthorized taking to theft by deception. See id., 547 A.2d at 679. In Stearns, the court stated: "An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the indictment or information." Id. Contrary to defendant's assertion that the general provision must be pleaded to invoke the consolidated theft statute's provisions, these other states have uniformly allowed the information to be amended from one specific theft provision to another. See Seiber, 791 P.2d at 20; Scott, 403 N.W.2d at 354; Stearns, 547 A.2d at 679; Martin, 577 A.2d at 202-03.

¶ 23 In light of the underlying purpose of consolidated theft statutes, we believe the more sound approach is that followed by jurisdictions that allow the State to amend an information from one specific theft theory to another. As the State points out, charging under a specific theft theory provides a defendant with more information about the nature of the charge than charging under the general section. If it turns out, as is the case here, that the State's initial theory of theft is not supported by the evidence and a different theory is warranted, the State should not be foreclosed from changing the theory of theft simply because it attempted to provide more information in the initial charge. The purpose of the consolidated theft statute is to allow the State to change its theory of the crime when it later determines the evidence supports a different theory. In so holding, however, we reiterate that allowing the State to amend the charge is always subject to a defendant's right to fair notice.

II. Is Defendant Entitled to a New Preliminary Hearing on the Amended Charge of Theft of Lost, Mislaid, or Mistakenly Delivered Property

¶ 24 Defendant claims the trial court erred by not ordering a new preliminary hearing on the amended information. Specifically, defendant argues the trial court's ruling deprived him of the opportunity to fully cross-examine the State's witnesses and hear the evidence supporting the amended charge. He further contends that had the State charged him under the general theft provision of section 76-6-404 he would have filed a bill of particulars to ascertain the State's theory, but he did not do so because of the more particularized charge. Defendant's argument is well-taken.

The purpose of the right to a preliminary hearing "is to secure to the accused, before he is brought to trial under an information, the right to be advised of the nature of the accusation against him, and to be confronted with and given an opportunity to cross-examine the witnesses testifying on behalf of the State."

State v. Sommers, 597 P.2d 1346, 1347 (Utah 1979) (footnote omitted).

¶ 25 At the preliminary hearing on the theft by deception charge, the State produced evidence to show that defendant owned SSS; SSS received money from forged checks; defendant used the money from the forged checks to pay personal and business expenses; defendant, at some point, learned that an SSS employee had forged the name of an MBCI employee on the checks; and defendant, upon learning of the forgery, did nothing to return the money to the rightful recipient. The trial court determined this evidence was sufficient to establish probable cause that defendant was guilty of theft by deception.

¶ 26 Defendant then moved to quash the bindover, arguing that the State's vicarious liability theory could not support a theft by deception charge because the State had failed to show that defendant was a party to any criminal act-Le. he had not participated in or encouraged the forgery-and Utah law does not provide for vicarious eriminal liability. During the hearing on defendant's motion to quash, the trial court, with a different judge presiding, stated that it did not think the evidence could support theft by deception, but that the evidence could support theft of lost, mislaid, or mistakenly delivered property or theft by receiving stolen property. The State conceded that theft by deception may not be the proper charge and offered to amend the information to reflect the new offense. Based on the amended information, the trial court determined probable cause existed to support the charge of theft of lost, mislaid, or mistakenly delivered property, denied defendant's motion to quash, and decided a new preliminary hearing was not necessary because the State had not alleged any new evidence to support the amended charge.

¶ 27 Our review of the record indicates that at no time during the preliminary hearing did the State suggest that it was considering amending the information to charge a different theft theory. Defendant was deprived of the opportunity to eross-examine the State's witnesses or call witnesses on the theory of theft of lost, mislaid, or mistakenly delivered property. Thus, defendant was deprived of his right to know the "nature of the accusation against him and an opportunity to assail the sufficiency of the complaint." Id. at 1347 n. 5.

¶ 28 The State claims that a new preliminary hearing is not necessary because it will not be producing any new evidence to support the amended charge. The State refers us to State v. Seiber, 117 Idaho 637, 791 P.2d 18, 20 (App.1989) to support its position that a new preliminary hearing is not necessary when the evidence supporting the amended charge is the same as that presented at the preliminary hearing for the initial charge. Although Seiber does support the State's position, see id., we believe defendant is entitled to the opportunity to cross-examine the State's witnesses with respect to the new charge. -

¶ 29 The State's ability to amend an information under the consolidated theft statute is tempered by a defendant's right to notice of charges against him. In this case, defendant is entitled to a preliminary hearing on the amended charge because during the preliminary hearing, defendant was never given the opportunity to explore the State's evidence in light of the theory the State would be pursuing at trial. © Because we reverse the trial court's denial of defendant's motion for a new preliminary hearing, we do mot reach defendant's last issue regarding sufficiency of the evidence for bindover.

CONCLUSION

¶ 30 Under Utah's consolidated theft statute, the trial court did not err when it allowed the State to change the offense charged from theft by deception to theft of lost, mislaid, or mistakenly delivered property. The consolidated theft statute specifically allows the State to change the theory of theft charged. Additionally, the consolidated theft statute does not require the State to plead under the general statute in order to be able to amend the information. The State may plead under a specific provision of the statute and later amend the information to plead a different theory. Under the consolidated theft statute, there is only one offense of theft. Although the State claims that it will not produce new evidence to support the amended charge, defendant is entitled to a new preliminary hearing in order to cross-examine. the State's witnesses and call his own witnesses in light of the amended charge.

¶ 31 Affirmed in part, reversed in part, and remanded.

WE CONCUR: NORMAN H. JACKSON, Associate Presiding Judge, WILLIAM A. THORNE, Jr., Judge.

      . Defendant was also charged with respect to two checks made jointly payable to SSS and DBCI, but the trial court did not find probable cause to bind over defendant on these two counts.