author: ORME, Judge:

text:
    2002 UT App 211
    STATE of Utah, Plaintiff and Appellee, v. Juan Quiterio PEREZ, Defendant and Appellant.
    No. 20000517-CA.
    Court of Appeals of Utah.
    June 20, 2002.

      Stephen R. McCaughey, McCaughey & Metos, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Marian Decker, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BENCH, DAVIS, and ORME.
   OPINION

ORME, Judge:

1 1 Defendant Juan Quiterio Perez appeals his aggravated burglary and attempted murder convictions. He raises several issues on appeal. Perez makes two claims regarding the jury instructions at trial. He argues (1) that the trial court's inclusion of a jury instruction on attempted depraved indifference murder was prejudicial error, and (2) that the trial court's failure to include an instruction on eriminal attempt amounts to manifest injustice. Perez also raises two issues regarding the State's alleged failure to properly notify him of expert witness testimony. He claims that (1) the trial court abused its discretion by not excluding the expert testimony, pursuant to Rule 16 of the Utah Rules of Criminal Procedure, and (2) the trial court erred by not granting a continuance pursuant to Utah Code Ann. $ 77-17-18(4)(a) (1999). Finally, Perez claims the trial court abused its discretion by failing to consider all the relevant sentencing factors before imposing consecutive prison terms.

2 We affirm in part, reverse in part, and remand for a new trial on the attempted murder charge.

BACKGROUND

T3 The victim in this case, Ellen, and her adult son, Robert, moved into a four-plex apartment in Midvale, Utah, on April 28, 1999. On August 9, 1999, at about 12:30 a.m., an intruder entered Ellen's apartment through the kitchen window, went to her bedroom, and attacked her with a knife as she lay in bed. Ellen sustained a three-centimeter cut under her eye and a one-centimeter cut on her sealp, each requiring stitches, as well as abrasions on her shoulder, breast, arms, and hands. After her assailant left, Ellen woke Robert and then called the police.

14 Ellen was still on the phone when Officer Holdaway arrived. She told Officer Holdaway that she awoke to find a person on top of and assaulting her. Ellen could not identify her assailant, but she said she thought he was Hispanic because she had experienced previous problems with Hispan-ies in the neighborhood and because the assailant "smelled" Hispanic.

15 Officer Wathen arrived thereafter and conducted the crime seene investigation. After doing a cursory walk-through of the crime seene, Officer Wathen looked for fingerprints near the kitchen window where Ellen said her assailant entered and exited the apartment. On the tile of the windowsill, he found several prints, one of which was clearly discernible. That print was left by a finger from a right hand. Officer Wathen found other prints on the window pane that were clearly visible to the naked eye, assisted only by the illumination of a flashlight. They were from a left hand. A Detective Burgon later determined that both the print on the windowsill and the prints on the window pane matched Perez's fingerprints.

T6 A month after the incident, Detective Norton, the case manager, showed Ellen an array of six photos, including one of Perez, who has a distinctive birth mark on his forehead. Although Ellen thought a couple of the men looked familiar, Detective Norton indicated Ellen "didn't recognize anybody in there as anybody that she had ever seen before."

17 On September 830, 1999, Perez was charged with aggravated burglary and attempted criminal homicide, and on October 5, 1999, Detective Norton interrogated Perez. Two Immigration and Naturalization Service agents participated in the interrogation and provided Spanish translation for Detective Norton. Agent Earnest interpreted while waiting for another agent to arrive; when the second agent arrived, Agent Earnest left.

T8 The full interrogation was recorded, but portions of the recording were subsequently recorded over. What remained of the tape was interpreted and transcribed by a professional Spanish translator, and that transcript was admitted into evidence at trial.

T9 The transcript of the interrogation reveals that Perez admitted he used to live in the apartment above Ellen and knew of Ellen and her son, though he claimed he had no involvement with them. Perez did admit that he once entered Ellen's apartment. Perez stated, however, that when he entered the apartment it was vacant-unoecupied by persons or furnishings-and that his purpose for entering was to have sex with a prostitute. Perez claimed he entered the apartment through the kitchen window, that he opened the front door from the inside to let the prostitute in, and that the two of them left through the front door. Perez maintained that there was no dead bolt lock on the front door when he went into the apartment. Perez also steadfastly denied any involvement in the incident giving rise to this case.

110 Perez's trial counsel entered his appearance on October 12, 1999, and made a contemporaneous discovery request for all "inculpatory evidence"; all "reports or results of scientific tests"; "[alny police or investigative reports"; and the names, addresses, and telephone numbers of all potential witnesses. On October 20, 1999, defense counsel made a second discovery request, asking specifically for "[alll reports, documents and other information related to any fingerprint evidence and analysis conducted." The State's written response to Perez's see-ond discovery request stated both that the "State is not in possession of requested items," and that "[oJther documents may or may not exist in individual police agency files and you are directed to contact these agencies for such information."

1 11 Defense counsel then filed a motion to compel discovery, asserting that "it is clear from what the State has already provided that materials of the kinds that defendant specifically ... requested in his Second Request exist, and are accessible to law enforcement investigating this case." Defense counsel also challenged the prosecution's invitation for the defense to contact the police directly concerning those items. See State v. Shabata, 678 P.2d 785, 788 (Utah 1984) ("Information known to police officers working on a case is charged to the prosecution since the officers are part of the prosecution team."). The trial court never acted on Perez's motion to compel. On March 24, 2000, defense counsel filed a notice that he may call an expert witness on fingerprint analysis. In the notice, counsel stated that he could not specify the substance of the expert's testimony "[slince defendant hald] not yet received full discovery or an expert witness notice from the State on this subject." On March 30, 2000, two weeks before trial, the State filed a notice of intent to call Detective Burgon as an expert witness on fingerprint identification. The State, however, never notified Perez of an intent to call Officer Wathen as an expert.

1 12 During his opening statement at trial, the prosecutor conceded: "We clearly don't have an identification here. But we have some pretty good evidence ... of the fingerprints and the telling stab wounds on Ellen{.]" Defense counsel followed in his opening statement by reiterating that Ellen "really doesn't have any idea who attacked her." He also asserted that although Perez's prints had been found on the window pane and windowsill in Ellen's apartment, the State could not connect Perez to the crime because "the fingerprint witnesses in the case will tell you that fingerprints can last a long time."

I 13 At trial, the State called Officer Wathen and, without defense objection, elicited testimony from him as an expert on fingerprint placement. On direct examination, Officer Wathen explained: "I guess the easiest thing to explain is that when a print is fresh or recent, they seem to just jump out. There is very fine, ridge detailing." He then said of the print found on the windowsill: "[Ilt just jumped right out. The only way I can de-seribe it is it looked as if I took my own finger and put it on and pulled it away and hit it with a brush. It just came right up." Of the prints found on the window pane, he said: "I took my flashlight, held it up to the window at an angle, and, again, boy, I saw a great set of prints on there that even without fingerprint powder I could see had ridge detail on them."

1 14 Rather than objecting to the testimony, Perez's counsel commenced cross-exami-ration. Defense counsel mentioned Officer Wathen's previous testimony that some fingerprints "jump out," and then elicited from Officer Wathen a concession that "fingerprints can last a long time," even years. He also elicited from Officer Wathen a variety of environmental factors that influence the longevity and quality of latent fingerprints, although there was no subsequent testimony analyzing the prints in this case in light of those factors. Officer Wathen also explained techniques, not used in this case, for lifting fingerprints that are "very, very old." He also expressed again that when he "roll{s)[his] own fingers" on a surface and then immediately checks for prints that the "prints pop{ ] right up."

1 15 On redirect examination, the prosecutor asked Officer Wathen: "[If a print was a year old, would it pop up?" Defense counsel objected to this question on the ground that the defense had "not been noticed up that [Officer Wathen] would be an expert on the time and place of the fingerprints." The court noted that "the question of 'pop up' was gone into on cross-examination." Defense counsel acknowledged it had been, but said that going into "pop up" on cross-examination was "only to clarify it." Defense counsel did not at this time or any other explicitly request a continuance or the exclusion of Officer Wathen's testimony.

116 The trial court overruled defense counsel's objection, stating: "Well, I believe we are dealing here with the question of this gentleman's opinion with regard to recent placing of a latent print that he recovered. So the time frame, I think, is an important consideration and I am overruling the objection." Officer Wathen then testified that "lilf a print was over a year old" it would not pop up "as clearly and pronounced as it did in this particular occasion." There was no further testimony regarding the timing of fingerprint placement.

117 Ellen's testimony at trial both con-tradieted in some respects, and added considerably to, what she had said in her first statement to police and her statements after seeing the photo array. Specifically, Ellen testified that she and Perez had previously exchanged words and Perez had said, on more than one occasion, "You are dead meat." © "

118 Ellen testified that after a struggle and ultimately fending off the intruder's attack by kicking him in the "private part," she pursued him back down the hallway. She went to the front room to get her cane in order to "hit whoever it was." The intruder tried to flee out the front door but discovered it had a deadbolt lock that, even from the inside, required a key to open. Thus, the intruder next walked right past Ellen to get a chair from a desk in the living room. He then took the chair to the kitchen, climbed up on the counter, and escaped out the kitchen window.

{19 Ellen also testified that she had cleaned her kitchen windows when she first moved into the apartment. Finally, Ellen testified that the deadbolt lock on the door had not worked when she and Robert moved in and that they installed a new one themselves. Perez did not testify at trial, and his defense strategy focused almost exclusively on disputing whether he was properly identified as Ellen's assailant.

1 20 The jury found Perez guilty of aggravated burglary, a first degree felony, and attempted murder, a second degree felony. At sentencing, the trial court sentenced Perez to consecutive terms of five years to life for the first degree felony and one to fifteen years for the second degree felony. Defense counsel objected to the consecutive nature of the sentences. The trial court overruled the objection.

21 Perez now appeals his convictions and the imposition of consecutive sentences.

ISSUES AND STANDARDS OF REVIEW

122 We first address Perez's two claims regarding the jury instructions. Perez preserved his first claim by objecting at trial to the inclusion of an instruction allowing the jury to consider the non-existent crime of attempted "depraved indifference" murder. The State concedes the trial court erred by including such an instruction. However, when a jury instruction is erroneous, "we will reverse only if the defendant shows a reasonable probability the error affected the outcome of his case." State v. Tinoco, 860 P.2d 988, 990 (Utah Ct.App.1998).

123 Perez raises for the first time on appeal his claim that the trial court erred by failing to give a jury instruction on criminal attempt. "[JJury instructions to which a party failed to object at trial will not be reviewed absent a showing of manifest injustice." State v. Gibson, 908 P.2d 352, 354 (Utah Ct.App.1995), cert. denied, 917 P.2d 556 (Utah 1996). Accord Utah R.Crim. P. 19(e).

4 24 Perez alleges the State failed to give proper notice regarding the expert witness testimony of one police officer. He claims the trial court should either have excluded the officer's testimony pursuant to Rule 16(g) of the Utah Rules of Criminal Procedure or granted a continuance pursuant to Utah Code Aun. § 77-17-13(4)(a) (1999).

[A] trial court's decision to admit or bar testimony for failure to adhere to discovery obligations lies within the trial court's discretion. See State v. Begishe, 987 P.2d 527, 580 (Utah Ct.App.1997). Similarly, a trial court's decision to either grant or deny a continuance is also clearly within its discretion. See id. Therefore, we will not disturb such decisions absent a clear abuse of discretion. See id.

State v. Arellano, 964 P.2d 1167, 1169 (Utah Ct.App.1998).

1 25 Finally, Perez contends the trial court erred by not considering all the legally relevant factors before imposing consecutive sentences. "A sentence will not be overturned on appeal unless the trial court has abused its discretion, failed to consider all legally relevant factors, or imposed a sentence that exceeds legally prescribed limits." State v. Nuttall, 861 P.2d 454, 456 (Utah Ct. App.1993).

ANALYSIS

I. Jury Instructions

A. Attempted Depraved Indifference Murder

126 Perez first argues the trial court committed prejudicial error by instructing the jury, over his objection, that it could return a verdict of guilty of attempted murder if it found that Perez acted with depraved indifference toward human life. Perez was charged with attempted murder, in violation of Utah Code Ann. § 76-5-208(1)(a), (b), or (c), read in conjunction with our attempt statutes, sections 764-101 and 102(2). Section 76-5-208(1) reads in pertinent part:

(1) Criminal homicide constitutes murder if the actor:
(a) intentionally or knowingly causes the death of another;
(b) intending to cause serious bodily injury to another commits an act clearly dangerous to human life that causes the death of another; {or]
(c) acting under circumstances evidence-ing a depraved indifference to human life engages in conduct which creates a grave risk of death to another and thereby causes the death of another....

Utah Code Ann. § 76-5-208 (1999).

T27 Under subsection (c), a verdict of guilty to murder may be returned on a depraved indifference theory. However, in State v. Vigil, $42 P.2d $48 (Utah 1992), the Utah Supreme Court held that the crime of attempted murder requires a knowing or intentional mental state:

[Tlo convict a defendant of attempted ... murder, the prosecution must prove that the defendant had a conscious objective or desire to cause the death of another. Because the mental state required for depraved indifference homicide falls short of that intent, the crime of attempted depraved indifference homicide does not exist in Utah.

Id. at 848.

128 Acknowledging the Supreme Court's holding in Vigil, the State here concedes that the trial court erred in giving an instruction allowing a guilty verdict of attempted murder on a depraved indifference theory. The State contends, however, that the error was harmless. |

129 Relying on State v. Haston, 846 P.2d 1276 (Utah 1998) (per curiam), Perez maintains the error was prejudicial. Haston admitted that he shot an acquaintance with a firearm at close range during a drunken quarrel, and he was convicted of attempted murder. See id. at 1277, 1277 n. 1. On appeal, Haston argued that the trial court had erroneously instructed the jury that it could return a verdict of guilty of attempted murder on a depraved indifference theory. See id. at 1277. The Supreme Court acknowledged the error and deemed it prejudicial, see id., because "the evidence before the jury would have supported a conclusion that, while [Haston] did not intend or know his actions would cause death, firing a gun during a drunken quarrel was a reckless actl, and thus, it was possible Haston was convicted of a nonexistent crime." State v. Ti-moco, 860 P.2d 988, 992 (Utah Ct.App.1998) (explaining the Supreme Court's rationale in Haston ). See Haston, 846 P.2d at 1277. In other words, Haston's admission that he intentionally shot his vietim did not amount to a concession that he intended to cause death or knew with reasonable certainty that his actions would cause death. See Haston, 846 P.2d at 1277. Therefore, in Haston, the erroneous inclusion of a jury instruction on a depraved indifference theory for attempted homicide was prejudicial. See id.

130 This case is directly analogous to Ha-ston. The defendant in Haston admitted to intentionally shooting his victim at close range, and Perez similarly does not dispute that Ellen's assailant intentionally caused her bodily harm. As in Haston, however, there is no concession here that the assailant acted with intent to kill or that he acted knowing, with reasonable certainty, that his actions would cause death. In his opening statement, closing argument, and questions to witnesses, Perez's counsel consistently refrained from characterizing the incident as anything more than an assault.

T 31 The Haston Court concluded that the evidence there supported multiple plausible conclusions as to the defendant's intent. See Id.; Tinoco, 860 P.2d at 992. Given that the Supreme Court held that an intentional shooting of a person at close range with a firearm did not necessarily evince an intent to kill, we simply are unable to conclude that an intentional assault with a knife, resulting in comparatively minor cuts and abrasions, standing alone, conclusively demonstrates an intent to kill.

T32 Because the jury in this case might well have based their attempted murder conviction on a depraved indifference theory, the error of including an instruction on attempted depraved indifference homicide was prejudicial. We therefore reverse Perez's conviction for attempted murder.

B. Lack of an Atterapt Instruction

133 Because we have reversed Perez's attempted murder conviction on the basis just stated, we need not consider his separate arguments that the court erred in not instructing the jury on criminal attempt and that his counsel was ineffective for not requesting such an instruction. It is enough to note that, if Perez is retried for attempted murder, an instruction on criminal attempt would obviously be in order. See State v. Harmon, 712 P.2d 291, 291-92 (Utah 1986) (per curiam) (holding that, when an attempt crime is charged, failure to instruct the jury on the elements of attempt is reversible error).

IL -The State's Failure to Disclose

134 We next address Perez's claims regarding the State's failure to notify him of its intent to call Officer Wathen as an expert witness and of the substance of Officer Wathen's proposed testimony. Perez claims the trial court erred by failing either to exclude Officer Wathen's testimony, pursuant to Rule 16(g) of the Utah Rules of Criminal Procedure, or to grant a continuance, pursuant to section 77-17-13. We separately examine Perez's Rule 16 and section 77-17-18 claims.

A. Utah R.Crim. P. 16

In criminal prosecutions, the State has two independent obligations to provide evidence to the defense. First, the State has a duty under the Due Process Clause of the United States Constitution to provide, without request by the defendant, all exculpatory evidence. State v. Worthen, 765 P.2d 889, 850 (Utah 1988); State v. Carter, 407 P.2d 656, 662 (Utah 1985). Second, when required by court order, the State must disclose evidence pursuant to Rule 16 of the Utah Rules of Criminal Procedure.

State v. Kallin, 877 P2d 138, 143 (Utah 1994). "The evidence in question-[Officer Wathen's testimony regarding the recency of the placement of the fingerprints recovered from the erime seene]l-was inculpatory rather than exculpatory. Consequently, the prosecutor's discovery duty was limited to disclosures under Rule 16," as opposed to those required by the Due Process Clause. State v. Rugebregt, 965 P.2d 518, 522 (Utah Ct. App.1998).

1835 "Regarding discovery under Rule 16, [tlhe practice in this state, at least in some districts, is for the prosecutors to make all inculpatory evidence available to the defense on request." " Id. (quoting Kallin, 877 P.2d at 148).

Whether prosecutors produce inculpato-ry evidence under court order or on request, they have a duty to comply fully and forthrightly. In State v. Knight, 734 P.2d 918, 916-17 (Utah 1987), [the Utah Supreme Court] held that when the prosecution makes a voluntary disclosure of in-culpatory evidence to a defendant, the prosecution must produce all the requested material or identify those portions not disclosed. If evidence is disclosed, the prosecutor has a continuing obligation to disclose newly acquired information so as to avoid misleading the defense.

Kallin, 877 P.2d at 148.

186 Because the trial court never acted on Perez's motion to compel discovery, the State did not violate Rule 16 through failure to comply with a court order. However, the prosecution voluntarily disclosed at least some inculpatory evidence, including the report accompanying the State's notice of intent to call Detective Burgon as an expert, which contained comparisons matching the fingerprints lifted from the crime seene to Perez's. By its voluntary disclosure of some inculpatory evidence, the State was under "a continuing obligation to disclose newly acquired information so as to avoid misleading the defense." Id. Thus, the State's failure to disclose the anticipated testimony of Officer Wathen was clearly in violation of Rule 16 of the Utah Rules of Criminal Procedure

137 Nevertheless, we cannot conclude that the trial court abused its discretion under Rule 16 by admitting Officer Wathen's testimony. "When the prosecution introduces unexpected testimony, a defendant 'essentially waive[s] his right to later claim error' if the defendant fails to request a continuance or seek other appropriate relief under Rule 16(g)." Rugebregt, 965 P.2d at 522 (quoting State v. Larson, TIS P.2d 415, 418 (Utah 1989)). Perez's counsel did not object to the State's calling of Officer Wathen, establishing him as an expert on fingerprint analysis, or questioning him regarding the time frame when Perez's prints were placed on the window pane and windowsill. Perez's counsel did not object to Officer Wathen's testimony following his direct examination; indeed, defense counsel pursued a similar line of questioning on eross-exami-nation. Defense counsel's first objection to Officer Wathen's expert testimony came only during redirect examination. Although the prosecutor's nondisclosure was clearly in violation of Rule 16 of the Utah Rules of Criminal Procedure, Perez "waived relief under rule 16(g) ... by not making timely efforts to mitigate or eliminate the prejudice caused by the prosecutor's conduct." State v. Griffiths, 752 P.2d 879, 888 (Utah 1988).

B. Section 77-17-13

188 Alternatively, Perez argues the trial court abused its discretion by not granting a continuance pursuant to Utah Code Ann. § 77-17-13(4)(a) (1999) Subsections Ti-1'i-13(1) and (2) mandate:

(1) (a) If the prosecution or the defense intends to call any expert to testify in a felony case at trial or any hearing, ... the party intending to call the expert shall give notice to the opposing party as soon as practicable but not less than 30 days before trial or ten days before the hearing.
(b) Notice shall include the name and address of the expert, the expert's curriculum vitae, and a copy of the expert's report.
(2) (a) The expert shall prepare a written report relating to the proposed testimony.
(b) If the expert has not prepared a report or the report does not adequately inform concerning the substance of the expert's proposed testimony including any opinion and the bases and reasons of that opinion, the party intending to call the expert shall provide to the opposing party a written explanation of the expert's anticipated testimony sufficient to give the opposing party adequate notice to prepare to meet the testimony, followed by a copy of any report prepared by the expert when available.

Furthermore, subsection T7-1'7-13(4)(a) provides: "If ... the prosecution fails to meet the requirements of this section, the opposing party shall be entitled to a continuance of the trial ... sufficient to allow preparation to meet the testimony."

139 Because the State never notified Perez of its intent to call Officer Wathen as an expert, the State plainly violated section 77-17-18. Perez was therefore entitled to a continuance "sufficient to allow preparation to meet [Officer Wathen's] testimony." Id. These two conclusions, however, do not nee-essarily mean that the trial court erred by not granting a continuance.

1 40 Perez did not object to Officer Wathen's testimony on lack of notice grounds until after defense counsel questioned Officer Wathen on cross-examination and the prosecutor began redirect examination of Officer Wathen. He never actually requested a continuance. Nonetheless, Perez asserts that the trial court should have granted a continuance sua sponte: "Although defense counsel failed to request a continuance, the expert notification statute provides that trial judges 'shall continue a trial when the opposing party fails to give notice of expert testimony." Perez mischaracterizes the language of subsection 77-17-18(4)(a).

T41 Subsection (4)(a) does not mandate "that trial judges 'shall continue a trial when the opposing party fails to give notice of expert testimony." Rather, it states that "the opposing party shall be entitled to a continuance of the trial" in that cireumstance. Id. (emphasis added). "Entitle" is defined as "furnish with proper grounds for seeking or claiming something." Webster's Third New Int'l Dictionary 758 (1998). Thus, the plain language of subsection (4)(a) granted Perez the right to a continuance, the granting of which was contingent on his "seeking or claiming" it. Id. In-the absence of a request, the trial court had no duty to order a continuance. Perez's objection to Officer Wathen's expert testimony came too late, and the trial court did not abuse its discretion by failing to grant a continuance that was not requested.

IIL Consecutive Sentences

142 "Although resolution of the above issue[s] is dispositive of the present case, where an appellate court finds that it is necessary to remand a case for further proceedings, it has the duty of 'pass[ing] on matters which may then become material' " Bair v. Axiom Design, L.L.C., 2001 UT 20, ¶ 22, 20 P.3d 388 (quoting LeGrand Johnson Corp. v. Peterson, 18 Utah 2d 260, 263, 420 P.2d 615, 617 (1966)) (second alteration in original). Because on remand the issue Perez raises concerning consecutive sentences may again become germane, we address Perez's argument on this issue. Specifically, Perez contends that the trial court abused its discretion by failing to consider all the relevant sentencing factors before imposing consecutive prison terms.

148 "A sentence will not be overturned on appeal unless the trial court has abused its discretion, failed to consider all legally relevant factors, or imposed a sentence that exceeds legally prescribed limits." State v. Nuttall, 861 P.2d 454, 456 (Utah Ct.App.1998). The Utah Code mandates: "A court shall consider the gravity and circumstances of the offenses and the history, character, and rehabilitative needs of the defendant in determining whether to impose consecutive sentences." Utah Code Ann. § 76-3-401(4) (1999). Concurrent sentences are favored over consecutive ones. See State v. Galli, 967 P.2d 930, 938 (Utah 1998).

' 41 44 At the sentencing hearing, prior to the court announcing its sentence, defense counsel said nothing of substance regarding any of the section 76-3-401(4) factors. The prosecutor noted only:

[There's not much to add to the presen-tence report. The court having heard the evidence, youre well aware of what I would consider to be the egregious conduct in this case.
This individual, based on the conduct and his inability to accept responsibility for this offense in terms of a serious threat to this community, and I would ask the court to follow the presentence investigation ree-ommendations, which it seems to me to be appropriate in this matter.

T 45 The presentence report recommended that "the defendant be committed to the Utah State Prison and serve concurrent terms as prescribed by law." The trial court concluded:

Mr. Perez, having heard the evidence at the trial, I am persuaded that the jury verdict was correct, that, indeed, Mr. Perez, the conduct in which you engaged was-egregious, I guess is an appropriate term. Breaking into a little lady's home in the middle of the night and stabbing her with a knife, which of course is what the jury found you guilty of having done, in my estimation in this civilized society cannot and will not be tolerated, Mr. Perez.
Therefore, it is the judgment and sentence of this court that you be committed to the Utah State Prison forthwith to serve the term provided by law for the first degree felony of five years to life, and for the second degree felony of one to 15 years, and that those terms be served consecutively and not concurrently.

€ 46 Defense counsel promptly objected:

There was one thing I would like to make a record of, and I would like to object to the consecutive. Even under the facts of this case it seems very clear that it was a single criminal episode and involvement of minutes by the assailant in this case.
And I don't think that there are any other aggravating factors. Mr. Perez wasn't on probation at the time. And we would enter an objection and request that you modify and order that they run concurrent.

T47 The trial court overruled the objection, stating:

[Defense counsel], your request is denied. I view the activities of this man to be essentially two separate incidents. He broke into the place in the middle of the night. And then he uses a knife to stab the victim. Those, to me, any way you cut it, are two separate crimes.
Now, if I was to grant him concurrent terms at the prison your ultimate appeal wouldn't have near the poignancy. Good luck to you.

48 The only comment at the sentencing hearing that could be construed as touching on Perez's history, character, or rehabilitative needs is defense counsel's statement that Perez was not on probation at the time of the incident. The trial court's brief commentary dealt only with the "gravity and cireum-stances of the offenses," and did not explicitly address the presentence report's recommendation of concurrent sentences. In short, there is nothing in this record to indicate that the trial court "consider{ed] the ... history, character, and rehabilitative needs of the defendant in determining whether to impose consecutive sentences." Utah Code Ann. § 76-3-401(4) (1999). If Perez is again tried for attempted murder and convicted by a properly instructed jury, the sentencing court must consider all of the statutorily prescribed factors for determining whether to impose consecutive sentences.

CONCLUSION

1 49 The trial court erred in instructing the jury on attempted murder and Perez's conviction for that offense is reversed and the case remanded for a new trial on that charge or such other proceedings as may now be appropriate. This essentially moots his objection to the imposition of consecutive sentences. Perez waived his right to request a continuance when the State's dereliction in properly notifying him of its intention to use expert testimony became apparent. Other concerns he raises do not warrant disturbing his aggravated burglary conviction. Accordingly, that conviction and sentence are affirmed.

{ 50 WE CONCUR: RUSSELL W. BENCH, Judge, and JAMES Z. DAVIS, Judge.

      . Perez raises additional concerns, which are summarily dealt with in Note 7 of this opinion.

      . The following are defense counsel's statements in his closing argument characterizing the incident, with our emphasis added: "Ellen is a victim in a way that is described in those element instructions. She is a victim of an assault." "She was injured in all the ways described, and she was assaulted by somebody." "[No] one [investigated the neighbors] ... to even knock on the door on the night somebody was attempted murdered, if that's what happened, or assaulted for sure." That Perez's defense strategy focused on challenging whether he was properly identified as Ellen's assailant does nothing to lessen the burden on the State to prove beyond a reasonable doubt that the assailant, whoever he was, acted with the requisite intent. See State v. Herrera, 895 P.2d 359, 368 (Utah 1995) ("[DJue process mandates that the prosecution prove every element of the charged crimes beyond a reasonable doubt.").

      . Even given the belatedly-remembered threats that Ellen was "dead meat"-a colloquial expression that is not invariably a death threat-the facts at trial fall short of conclusively establishing that Ellen's attacker intended to kill her. Her assailant inflicted only two relatively minor cuts and some abrasions, while she managed to deliver an effective kick of her own. Furthermore, according to Ellen, although she stood watching while her assailant tried to open the front door and then carried a chair past her into the kitchen, the assailant made no further attempt to harm her. These facts would allow a properly instructed jury to readily conclude that although Ellen's assailant intended to harm her, he did not attack Ellen with an intent to kill her. And as explained, merely acting with depraved indifference to human life is not enough to support a conviction for attempted homicide.

      . In arguing that the inclusion of the depraved indifference instruction was harmless error, the State makes much of our decision in State v. Tinoco, 860 P.2d 988 (Utah Ct.App.1993). Ti-noco was charged with aggravated assault and admitted to committing acts conclusively establishing an aggravated assault, ie., that he intentionally shot his victim with a firearm. See id. at 992. On appeal, Tinoco argued that the trial court's jury instruction on a reckless attempt theory of aggravated assault was prejudicial error. See id. We held that any error in that instruction was harmless because Tinoco's admissions established that he had committed aggravated assault under another, plainly legitimate, theory. See id. As explained more fully in Note 2, we reject the State's contention here that Perez likewise "strategically conceded below that Ellen's attacker committed attempted murder." Our rejection of that claim negates the claimed similarity essential to analogizing this case to Tinoco.

      . It is also clear that the State's failure to make this disclosure did mislead the defense because, in his opening statement at trial, defense counsel asserted that "the fingerprint witnesses in this case will tell [the jury only] that fingerprints can last a long time."

      . Notwithstanding language in State v. Arellano, 964 P.2d 1167, 1169 (Utah Ct.App.1998), the mandatory language of section 77-17-13(4)(a) suggests it may be more precise to view the court's discretion as limited to determining how long the continuance should be. If a party is entitled to a continuance under the terms of the statute, it is difficult to see how a court would have the discretion to ignore the statutory mandate.

      . Perez assails various tactics of the trial court, including a question it put to the translator who prepared the partial transcript of Perez's interrogation by Detective Norton; show of sympathy toward INS Agent Earnest; interference with cross-examination of Officer Holdaway regarding prostitution in the area and a related reference to Perez "tellling] his story when he gets an opportunity"; characterization of permitted opinion testimony by Officer Wathen; unnecessary commentary about defense counsel's request for a bathroom break; rushing defense counsel in his making a record of his objections to various jury instructions and editorializing about the quality of the presentation of objections; and requiring Perez's translator to complete the translation of the jury instructions for Perez after the jury began deliberating. The State does not disagree with the factual premise of Perez's complaints, but points out that the trial court also rushed and interrupted the prosecuting attorney and objected, sua sponte, to prosecution questions as well, albeit with less frequency than befell Perez's counsel. The State also points out that many of these problems were rectified with the jury instructions, including instructions recognizing the jury as sole judge of the evidence and Perez's right to remain silent. See generally State v. Harmon, 956 P.2d 262, 271-77 (Utah 1998).
      It is enough for purposes of this appeal to observe that Perez has failed to demonstrate that these actions, most of which were not objected to at the time, so tainted his trial that, but for those events, he likely would have been acquitted. See State v. Litherland, 2000 UT 76, ¶ 31, 12 P.3d 92 (''To demonstrate plain error, [an appellant] must show an error occurred that should have been obvious to the trial court and that prejudiced the outcome of his trial.") (emphasis added).


source: Caselaw Access Project

author: JACKSON, Presiding Judge:

license: Public Domain

text:
    2002 UT App 229
    STATE of Utah, Plaintiff and Appellee, v. Wade WILLIS, Defendant and Appellant.
    No. 20010495-CA.
    Court of Appeals of Utah.
    July 5, 2002.
    Margaret P. Lindsay, Provo, for Appellant.
    Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee.
    Before Judges JACKSON, DAVIS, and THORNE.
   OPINION

JACKSON, Presiding Judge:

« 1 Defendant appeals his conviction subsequent to a conditional guilty plea to possession of a firearm by a restricted person, a second-degree felony, in violation of Utah Code Ann. § 76-10-508(2)(a) (Supp.2001) (Weapons Restrictions Statute). We affirm.

12 Defendant challenges the statute under which he was convicted as being unconstitutional on its face. " '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. Morrison, 2001 UT 73, ¶ 5, 31 P.3d 547 (Utah 2001) (alteration in original) (quoting State v. Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191).

ANALYSIS

13 State v. In, 2000 UT App 358, 18 P.3d 500, is controlling. In that case we stated that the Weapons Restrictions Statute

does not unconstitutionally interfere with one's right to bear arms. This statute only restricts that right under very limited circumstances-such as a felony indictment or conviction. Such restrictions are constitutional. See Utah Const. art. I, § 6 ...; 1 State v. Beorchia, 530 P.2d 813, 815 (Utah 1974) (holding that this section is a proper exercise of State police powers).

Id. at 114. Defendant attempts to distinguish the present case by arguing that In only addresses the constitutionality of the statute as it applies to use, as opposed to "mere possession of a firearm by a restricted person." (Emphasis added.) However, our conclusion in Ix, a case in which the defendant was convicted of illegally possessing a firearm, simply stated that the restrictions contained in "this statute do[ ] not unconstitutionally interfere with one's right to bear arms," and made no distinction between use and possession. Id. Because In made no distinction between use and possession, its conclusion that the Weapons Restrictions Statute is constitutional applies both to restrictions on possession and to restrictions on use.

1 4 Accordingly, we reject Defendant's constitutional challenge to the Weapons Restrictions Statute and affirm his conviction for possession of a firearm by a restricted person.

1 5 Affirmed.

1 6 We Concur: JAMES Z. DAVIS and WILLIAM A. THORNE JR., Judges.

      . This section provides, in pertinent part, "[a] Category I restricted person who purchases, transfers, possesses, uses, or has under his custody or control: (a) any firearm is guilty of a second degree felony." Utah Code Ann. § 76-10-503(2)(a) (Supp.2001).

      2. Utah Const. art. I, § 6 provides: "The individual right of the people to keep and bear arms for security and defense of self, family, and others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms."

      . Moreover, we note that one may "use" a firearm by the mere act of possessing it-e.g., to deter unlawful behavior in "defense of self, family, and others" etc. Utah Const. art. I, § 6. By way of further illustration, we note that the United States, by mere possession of a nuclear arsenal, theoretically "uses" that arsenal to deter would-be aggressors from taking military action against it. We also note that Utah Const. art. I, § 6 makes no distinction between passive use and active use of a firearm.


author: GREENWOOD, Judge:

text:
    2002 UT App 235
    STATE of Utah, Plaintiff and Appellant, v. Dean Allen MOGEN, Defendant and Appellee.
    No. 20010207-CA.
    Court of Appeals of Utah.
    July 11, 2002.

      Mark L. Shurtleff, Atty. Gen., and Joanne C. Slotnik, Asst. Atty. Gen., Salt Lake City, for Appellant.
    Wesley M. Baden, Uintah County Legal Defender, Vernal, and Richard P. Mauro, Salt Lake City, for Appellee.
    Before Judges BENCH, GREENWOOD, and THORNE.
   OPINION

GREENWOOD, Judge:

4 1 The State appeals an order dismissing one count of Possession of a Controlled Substance (Methamphetamine), a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (2000); and one count of Possession of Drug Paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. § 58-3Ta-5(1) (2000). The State argues that the trial court erred in granting Defendant's Motion to Suppress, determining that Defendant was still seized within the meaning of the Fourth Amendment when the officer searched Defendant's truck and discovered illegal drugs and contraband. We affirm.

BACKGROUND

T2 Shortly after midnight on August 22, 2000, Uintah County Deputy Sheriff Troy Slaugh (Officer Slaugh) was patrolling a rural road in the area of Jensen, Utah, when he noticed a large Dodge flatbed truck speeding in the opposite direction. Officer Slaugh made a u-turn and activated his overhead emergency lights, pulling the truck over. Keeping his overhead lights on, Officer Slaugh approached the truck and asked Defendant for his identification. After receiving Defendant's driver license, Officer Slaugh returned to his vehicle to do a routine driver license and warrants check. After the check came back clear, Officer Slaugh returned Defendant's driver license and issued him a verbal warning for speeding.

13 Officer Slaugh then took a couple of steps toward his patrol car, turned around, and again made contact with Defendant. Defendant testified that after Officer Slaugh returned his identification, the officer stepped back and stared at him for a few seconds, as if the officer had something more to say. Officer Slaugh then stated to Defendant that he "would be interested in knowing if there is any illegal guns, drugs, knives or bombs in his vehicle, [and] asked him if he would mind if I took a look." Defendant agreed to the search. Officer Slaugh admitted he had no particular reason for turning around and asking Defendant to consent to a search other than he noticed that Defendant "had been quite fidgety while [he] was dealing with him."

4 Upon searching Defendant's truck, Officer Slaugh found methamphetamine in an Advil bottle in the truck's ashtray. Officer Slaugh placed Defendant under arrest. Officer Slaugh also found a small torch under the front passenger seat. Defendant was subsequently charged with possession of a controlled substance and possession of drug paraphernalia.

15 Defendant filed a motion to suppress the drugs and paraphernalia. After an evi-dentiary hearing, the trial court granted Defendant's motion and the evidence was suppressed. The State then filed a motion to dismiss, which the trial court granted. This appeal followed.

ISSUE AND STANDARD OF REVIEW

(16 The sole issue before us is whether the trial court erred in granting Defendant's motion to suppress the evidence as having been seized in violation of the Fourth Amendment.

"The factual findings underlying a trial court's decision to grant or deny a motion to suppress evidence are reviewed under the deferential clearly-erroneous standard, but the legal conclusions are reviewed for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts."

State v. Giron, 943 P24 1114, 1116 (Utah Ct.App.1997) (quotations, alteratlon and citation omitted).

ANALYSIS

17 The State argues that the trial court erred in determining that Defendant was still seized within the meaning of the Fourth Amendment after the officer, who had stopped Defendant for speeding, issued a verbal warning, returned Defendant's documents, and stepped back from the vehicle. Defendant argues that he was not free to terminate the encounter with the officer; therefore, he remained seized under the Fourth Amendment when the search of the truck occurred.

1 8 The trial court made the following findings of fact and conclusions of law relevant to our analysis:

FINDINGS OF FACT

4. Deputy Slaugh then returned to the driver side of the defendant's vehicle and returned to the defendant his license and any other papers the defendant had given him. Deputy Slaugh gave the defendant a warning for the speeding violation and then turned and took a couple of steps back toward his vehicle.
5. At this time Deputy Slaugh's overhead lights were still flashing.
6. Within a few seconds Deputy Slaugh stepped back to the driver's window and asked the defendant if he had, "any guns, drugs, knives or bombs" in the vehicle. Defendant replied negatively. Deputy Slaugh then asked the defendant for permission to look.
7. The defendant agreed to allow Deputy Slaugh to look in his vehicle.

CONCLUSIONS OF LAW

2. Based on facts of this case, the defendant did not reasonably feel comfortable in leaving, and the court finds that the natural inference is that the defendant was still being detained when the deputy asked 'his permission to search the defendant's vehicle. © O9
~ 8. The defendant voluntarily consented to a search of the vehicle he was driving, however, the consent was obtained while the defendant was still within the arena of the detention of the traffic stop.
4. Based on the case law for Utah, an ~ officer does not have the right to ask for consent to search a vehicle during a traffic stop unless there is an independent constitutionally permitted basis for either the request or the search.
T9 Based on the testimony presented at the suppression hearing, the trial court determined that there was an insufficient ree-ord from which to make a' finding concerning whether the officer said to Defendant that he was free‘to go.

110 Utah law governmg traffic stops is that

[aln officer conducting a routine traffic stop may request a driver's license and vehicle registration, conduct a computer check, and issue a citation. However, once the driver has produced a valid license and evidence of entitlement to use the vehicle, "he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning." Any further temporary detention for investigative questioning after the fulfillment of the purpose for the initial traffic stop is justified under the fourth amendment only if the detaining officer has a reasonable suspicion of serious criminal activity. The detaining officer must be able to articulate a particularized and objective basis for their suspicions that is drawn from the totality of cireumstances facing them at the time of the seizure.

State v. Robinson, 797 P.2d 431, 435 (Utah Ct.App.1990) (citations omitted).

T11 The State admits that the officer did not have reasonable suspicion to justify a search, but essentially argues that this case is not governed by the standard cited above because onee the officer told Defendant he was free to go and stepped back from the vehicle towards his police car, the seizure ended. Therefore, when the officer turned around and again approached Defendant, the encounter had de-escalated to a level-one stop and reasonable suspicion to search was not necessary. Defendant argues that he did not feel free to go because the officer appeared to have something further to say, was standing close to his truck, making it difficult to pull away safely, and the officer's overhead emergency lights were still flashing.

112 In determining whether Defendant remained seized within the meaning of the Fourth Amendment, Utah courts have followed the totality of the circumstances standard: .

Not every encounter between a police officer and a citizen is a seizure. Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387 [115 L.Ed.2d 389] (1991). A person is seized under the Fourth Amendment when, considering the totality of the circumstances, the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise terminate the encounter and go about his or her business. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877 [64 L.Ed.2d 497] (1980).

State v. Higgins, 884 P.2d 1242, 1244 (Utah 1994); see also State v. Justesen, 2002 UT App 165, ¶ 16, 47 P.3d 986 (holding that activation of police overhead lights alone was insufficient under the totality of ciream-stances to escalate the encounter to a level-two stop); State v. Hansen, 2000 UT App 353, ¶ 16, 17 P.3d 1135 (holding that given the totality of cireumstances Defendant remained seized for Fourth Amendment purposes after the officer returned Defendant's documentation), cert. granted, 26 P.3d 235; State v. Patefield, 927 P.2d 655, 659 (Utah Ct.App.1996) (applying totality of cireumstances standard in determining whether officer exceeded seope of traffic stop).

118 However,

[oJnee a person is seized for Fourth Amendment purposes, the seizure does not cease simply because the police formulate an uncommunicated intention that the seized person may go his or her way. For the seizure to end, it must be clear to the seized person, either from the words of an officer or from the clear import of the cireumstances, that the person is at liberty to go about his or her business.

Higgins, 884 P.2d at 1244 (citation omitted).

T 14 Other courts that have addressed similar issues have followed the same totality of the circumstances approach. See United States v. Elliott, 107 F.3d 810, 814 (10th Cir.1997) (evaluating whether encounter following a traffic stop was consensual under totality of the cireumstances test of whether objective cireumstances would demonstrate to reasonable person that he is no longer subject to detention by police) United States v. Werking, 915 F.2d 1404, 1408 (10th Cir.1990) (same); Commonwealth v. Strickler, 568 Pa. 47, 757 A.2d 884, 899 (2000) (same). In beginning their analyses, courts in other jurisdictions have determined that before a detention can end and a consensual encounter begin, an officer must return a driver's documentation. See Working, 915 F.2d at 1408-09 (after officer has returned driver license and registration, questions concerning drugs and weapons, or request for voluntary consent to search, may become "an ordinary consensual encounter between a private citizen and a law enforcement official."); Elliott, 107 F.3d at 814 (same); People v. Cervantes-Arredondo, 17 P.8d 141, 148 (Colo.2001) (remanding back to trial court for determination of when defendant's documents were returned and for finding concerning nature of interrogation}.

1115 However, the mere return of the driver's documentation, alone, is not enough to show that the detention has de-escalated to a level-one, voluntary encounter. See Kiliott, 107 F.3d at 814 (concluding that although officer must return a driver's documentation before detention can end, return of driver's documentation is not always sufficient to demonstrate that encounter has become consensual); Werking, 915 F.2d at 1408 (concluding that return of driver's documents will not end detention if driver "has an objective reason to believe that he was not free to end his conversation with the law enforcement official and proceed on his way.").

116 In reviewing the trial court's decision in this case, we "consider the facts in a light most favorable to the trial court's determination," Patefield, 927 P.2d at 657, and defer to the trial court's assessment of witness credibility. See State v. Vigil, 815 P.2d 1296, 1299 (Utah Ct.App.1991) ("[Thhe trial judge is in the best position to sift witness credibility and the accuracy of conflicting evidence." (Citation omitted)). We also accord the trial court some discretion in applying the law to the facts. See State v. Pena, 869 P.2d 932, 989 (Utah 1994) (providing trial court should be accorded a "measure of discretion" when applying the law to the facts). Furthermore, the State has the burden of establishing that a warrantless search of a citizen did not violate the Fourth Amendment. See State v. Menke, 787 P.2d 537, 543 (Utah Ct.App.1990).

T17 The evidence in this case presents a close question. The trial court properly considered the totality of the circumstances in determining whether the officer's conduct would have communicated to a reasonable person that he was not free to leave onee the officer returned his identification. The officer kept his overhead emergency lights on during the entire encounter with Defendant. The officer obtained Defendant's driver license on which the officer ran a computer check that revealed no outstanding warrants. The officer then returned Defendant's license and issued him a verbal warning for speeding. After receiving his identification, Defendant testified that the officer stared at him for a few seconds which made Defendant feel that the officer still had something more he wished to say. The officer then took a few steps towards his car, turned around and stated to Defendant that he "would be interested in knowing if there is [sic] any illegal guns, drugs, knives or bombs in his vehicle, [and] asked him if he would mind if [the officer] took a look." Defendant then gave permission for the officer to search his truck.

118 The trial court then concluded that given the totality of the cireumstances, Defendant remained seized within the meaning of the Fourth Amendment when the officer asked to search his truck. Applying the appropriate deference to the trial court's assessment of the evidence, we conclude that the trial court's findings were not clearly erroneous and that the court did not err in applying the law to these facts.

CONCLUSION

119 Because we defer to the trial court's findings of fact and application of the law to those facts, we conclude that the trial court did not err in determining that Defendant remained seized within the meaning of the Fourth Amendment. Therefore, we affirm the trial court's grant of Defendant's Motion to Suppress the evidence obtained from the search of his vehicle.

1 20 WE CONCUR: RUSSELL W. BENCH and WILLIAM A. THORNE JR., Judges.

      . Officer Slaugh testified that he then told Defendant that he was free to go, but Defendant denied that he was told he was free to go. The trial court did not make a finding regarding whether the officer had communicated to Defendant that he was free to go, concluding it had "an insufficient record to make a finding" regarding this issue.

      . "Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 [20 L.Ed.2d 889] (1968), and its progeny, there are three levels of police-citizen encounters, each requiring a different degree of justification under the Fourth Amendment. The first level occurs when an officer approaches and questions a [person]. An officer may stop and question a person at any lime so long as that person 'is not detained against his [or her] will'"
      Salt Lake City v. Smoot, 921 P.2d 1003, 1006 (Utah (Utah.App.1996) (citations omitted).


author: BILLINGS, Associate Presiding Judge:

text:
    2002 UT App 234
    STATE of Utah, Plaintiff and Appellee, v. Kelly Lafe GARNER, Defendant and Appellant.
    No. 20010462 CA.
    Court of Appeals of Utah.
    July 11, 2002.

      Maurice Richards and Jerald N. Eng-strom, Ogden, for Appellant.
    Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee.
    Before Judges JACKSON, BILLINGS, and BENCH.
   OPINION

BILLINGS, Associate Presiding Judge:

{11 Defendant Kelly Lafe Garner pleaded guilty to four counts of burglary, third degree felonies, in violation of Utah Code Ann. § 76-6-202 (1999), reserving the right to appeal the district court's denial of his motion to dismiss. Because Defendant's brief is inadequate under Rule 24 of the Utah Rules of Appellate Procedure, we decline to review his claims. We accordingly affirm.

BACKGROUND

12 On June 14, 1999, Defendant was charged by information with four counts of burglary, third degree felonies, in violation of Utah Code Ann. § 76-6-202 (1999), three counts of theft, second degree felonies, in violation of Utah Code Ann. §§ 76-6-404 and 76-6-412(1)(a) (1999), two counts of eriminal mischief, third degree felonies, in violation of Utah Code Ann. § 76-6-106 (1999), and one count of theft, a class B misdemeanor, in violation of Utah Code Ann. §§ 76-6-404 and 76-6-412(1)(d) (1999). The charges were based on crimes committed in Weber County between November 1997 and March 1998.

13 In early May 1998, a co-defendant implicated Defendant in the crimes. Thereafter, Weber County authorities continued to investigate Defendant's involvement in the crimes. They contacted Defendant while he was in the Davis County Jail on other charges, and he agreed to talk with them upon his release. However, upon his release, Defendant fled the jurisdiction.

I 4 In June 1998, Defendant was incarcerated in the Colorado State Prison on criminal trespass charges. Sometime in early 1999, Weber County authorities learned Defendant was incarcerated somewhere in Colorado. On June 14, 1999, just over a year after commencing its investigation of Defendant, the Weber County prosecutor filed the infor-mations charging Defendant with the Weber County offenses. Following a hearing on Defendant's motion to dismiss, the district court found that the State did not know where Defendant was incarcerated to lodge a detainer when the informations were filed.

{5 In November 1999, Defendant was transferred to the Alabama State Prison for violating parole. At some point, the State became aware of Defendant's incarceration in Alabama. In June 2000, the State began the process of lodging a detainer under the Interstate Agreement on Detainers (IAD). See Utah Code Ann. § 77-29-5 (1999). The de-tainer was lodged on August 3, 2000.

6 On September 12, 2000, Defendant filed a 180 day demand for disposition under the IAD. See id. § 7i-29-5, art. IHl(a) The demand was received by the State on October 2, 2000. On December 22, 2000, Defendant made his initial appearance before the district court and was appointed counsel from the Weber County Public Defender's Association. At his arraignment on January 4, 2001, Defendant waived a preliminary hearing and pleaded not guilty. A trial was set for February 5, 2001. On January 25, 2001, Defendant made a motion to strike the trial date, indicating that he planned to file a motion to dismiss on speedy trial grounds. On January 29, 2001, he filed the motion to dismiss alleging that the State improperly delayed filing the informations, violating his right to due process, and negligently delayed filing a detainer, violating his right to a speedy trial. On April 19, 2001, Defendant pleaded guilty to four counts of burglary, reserving the right to appeal the denial of his motion to dismiss. On May 10, 2001, Defendant was sentenced to zero to five years on each count to run concurrently with each other and with his Alabama sentence. Defendant filed this appeal on May 31, 2001. On July 13, 2001, Maurice Richards and Jerald Engstrom, Weber County Public Defenders, entered their appearance as appellate counsel.

ANALYSIS

T7 In essence, Defendant claims the district court erred in denying his motion to dismiss alleging his federal and state due process and speedy trial rights were violated. See U.S. Const. amend. VI, XIV; Utah Const. art. I, §§ 7, 12. The State responds that we should not consider Defendant's claims because they are inadequately briefed under Rule 24 of the Utah Rules of Appellate Procedure. We agree with the State.

18 It is well established that Utah appellate courts will not consider claims that are inadequately briefed. See, e.g., State v. Lucero, 2002 UT App 135, ¶ 8, 47 P.3d 107; State v. Marquez, 2002 UT App 127, ¶ 12, 54 P.3d 637. Rule 24 requires that an appellant's brief contain "[a] statement of the issues presented for review, including for each issue: the standard of appellate review with supporting authority." Utah R.App. P. 24(a)(5). Further, each "argument shall contain the contentions and reasons of the appellant with respect to the issues presented, including the grounds for reviewing any issue not preserved in the trial court, with citations to the authorities, statutes, and parts of the record relied on." Utah R.App. P. 24(a)(9).

T9 Defendant's brief first fails to comply with rule 24 because instead of properly challenging the district court's findings, see Utah R.App. P. 24(a)(9), Defendant makes contrary assertions without record support. Defendant asserts the State obtained "a full and complete" twenty page statement "from the co-defendant on May 5, 1998, that clearly implicated ... Defendant in the crime{[s]." Defendant then asserts the State "offered no excuse for the delay in filing the information[s], and there was no evidence the delay was caused by any action of ... Defendant." He also asserts the State "failed to file infor-mations and detainers for some twenty months after the events occurred, where at all times the State knew where ... Defendant was housed." In so asserting, Defendant ignores the district court's findings that the co-defendant's statement was further developed over four to six months, authorities continued to investigate Defendant's involvement in the crimes through early 1999, Defendant fled the jurisdiction after he had agreed to talk with authorities upon his release from jail, the State was unaware of Defendant's whereabouts in Colorado when the informations were filed, and Defendant remained in the Alabama State Prison until shortly after the State became aware of Defendant's incarceration and lodged a detain-er. Furthermore, the record shows the in-formations were filed approximately fifteen, not twenty, months after the last offense occurred, and the detainer was lodged approximately fourteen months after the infor-mations were filed.

110 "If a lower court has erred in its written findings of fact, the proper procedure is for the complaining party to challenge those findings on appeal under our clearly erroneous standard of review." Mac-Kay v. Hardy, 973 P.2d 941, 944 (Utah 1998). In the absence of a proper challenge to the findings, "we cannot conclude that those findings were clearly erroneous." Id. "Moreover, this court will not consider any facts not properly cited to, or supported by, the record." Phillips v. Hatfield, 904 P.2d 1108, 1109 (Utah Ct.App.1995) (quotations and citations omitted).

' 11 Defendant's brief also violates rule 24 because it fails to "set forth a coherent statement of the issues or standard of review for each issue." State v. Yates, 834 P.2d 599, 602 (Utah Ct.App.1992). The statement of the "issues" presented provides that the issue for review is whether the district court committed "reversible error when it ruled that statements of ... Defendant and evidence obtained by a search of ... Defendant would not be suppressed." The brief then provides the standard of review for the denial of a motion to suppress evidence. However, the remainder of the brief has nothing to do with the suppression of evidence. The jurisdictional statement indicates the issue on appeal is whether the State's delay in filing a detain-er violated Defendant's right to a speedy trial.

112 Furthermore, Defendant's claims are "devoid of any 'meaningful analysis" " Marques, 2002 UT App 127 at 110 (citation omitted). "[Rlule 24(a)(9) requires not just bald citation to authority but development of that authority and reasoned analysis based on that authority." State v. Thomas, 961 P.2d 299, 305 (Utah 1998). Defendant quotes relevant constitutional provisions. He cites State v. Jensen, 818 P.2d 551 (Utah 1991); State v. Russell, 2000 UT App 359, No. 990846-CA, slip op., 2000 WL 33249956 (Dec. 14, 2000); and State v. Ley-va, 906 P.2d 910 (Utah Ct.App.1995); but fails to clearly analyze "what this authority requires and ... how the facts of [his] case satisfy these requirements." Thomas, 961 P.2d at 305. Although he lists facts of Dog-gett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), and "the criteria listed therein for assessing [alleged speedy trial violations,]" he "does not present any meaningful analysis dealing with the application of [Doggett ] to this case." State v. Helmick, 2000 UT 70,°7, 9 P.B8d 164. When a party fails to offer any meaningful analysis regarding a claim, we decline to reach the merits. See, eg., State v. Thomas, 1999 UT 2,118, 974 P.2d 269; State v. Jae-ger, 1999 UT 1,131, 973 P.2d 404; Thomas, 961 P.2d at 305; State v. Price, 827 P.2d 247, 250 (Utah Ct.App.1992). The argument seetion of Defendant's brief is five and a half pages. Of those pages, only three paragraphs set forth defense counsels' cursory argument. Because Defendant's brief utterly fails to explain why any of the cases cited compel this court to reverse the district court, we decline to reach the merits of Defendant's claims.

118 This is not the first time defense counsel, publicly funded contract attorneys, have failed to adequately brief claims of indigent defendants who have no choice as to their representation. As we recently instructed defense counsel:

[Tjo permit meaningful appellate review, briefs must comply with the briefing requirements sufficiently to enable us to understand ... what particular errors were allegedly made, where in the record those errors can be found, and why, under applicable authorities, those errors are material ones necessitating reversal or other relief.

Lucero, 2002 UT App 135 at ¶ 13, 47 P.3d 107 (alterations in original) (quotations and citations omitted). Moreover,

[ilf the questions involved in a case are of sufficient importance to justify asking this court to decide them, they are worthy of careful consideration of counsel presenting them.... It is the duty of attorneys practicing in this court to present ... authorities supporting their views and to assist the court in reaching a correct conclusion.

Thomas, 1999 UT 2 at ¶ 13, 974 P.2d 269 (quotations and citations omitted) (second alteration in original).

T 14 Accordingly, we affirm.

§ 15 We Coneur: NORMAN H. JACKSON, Presiding Judge and RUSSELL W. BENCH, Judge.

      . For cases with inadequate briefing by Maurice Richards and Jerald Engstrom, see State v. Waldron, 2002 UT App 175, 51 P.3d 21; State v. Candelaria, 2002 UT App 141, No. 20010476-CA, slip op., 2002 WL 845244 (May 2, 2002); State v. Marquez, 2002 UT App 127, 54 P.3d 637; State v. Snarr, 2002 UT App 41, No. 20010083-CA, slip op., 2002 WL 257672 (Feb. 14, 2002). For cases with inadequate briefing by Maurice Richards see State v. Helmick, 2000 UT 70, ¶¶ 6-7, 9 P.3d. 164; State v. Lucero, 2002 UT App 135, 47 P.3d 107; State v. Perry, 2002 UT App 4, No. 20000756-CA, slip op., 2002 WL 44182 (Jan. 10, 2002); State v. McCloy, 2000 UT App 128, No. 990117-CA, slip op., 2000 WL 33249032 (May 4, 2000); State v. Arviso, 1999 UT App 381, ¶ 14, 993 P.2d 894.


author: GOLDEN, Justice.

text:
    2002 WY 121
    In the matter of The Worker's Compensation Claim of Lynn J. BRIERLEY, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
    No. 01-166.
    Supreme Court of Wyoming.
    Aug. 14, 2002.

      Kennard F. Nelson of Kirkwood Nelson Schilling & Winn, P.C., Laramie, Wyoming, Appellant.
    Hoke MacMillan, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General; David L. Delicath, Assistant Attorney General, Representing Appel-lee.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference

   GOLDEN, Justice.

[11] After suffering a compensable injury in 1999, Appellant Lynn J. Brierley suffered chronic, intense pain. In 2000, he unsuccessfully attempted suicide, inflicting injuries that generated medical costs. Bri-erley filed claims for these costs and for temporary disability benefits, which Appel-lee Workers' Compensation Division denied. After a contested case hearing, the hearing examiner upheld the denial of benefits, concluding that Brierley failed to prove his compensable injury caused a mental injury that resulted in the attempted suicide. Our review of the entire record reveals that Brierley received a diagnosis that his physical condition had caused a major depression, which had "adequate symptoms to stand alone as a DSM-IV diagnosis." Bri-erley was also diagnosed with anxiety and pain disorder consistent with standards found in the DSM-IV. The diagnosis was made by a licensed clinical psychologist who later testified that it was probable and logically sound to find that the injury that had caused Brierley's pain and depression resulted in the attempted suicide. This clear and convincing evidence proves that Brierley's attempted suicide was the result of a mental injury suffered subsequent to a compensable physical injury.

[12] We reverse and remand for entry of an order granting benefits.

ISSUES

[13] Brierley presents this issue for our review:

The Hearing Examiner's conclusion that Lynn J. Brierley failed to prove his self-inflicted gunshot wound was a direct and proximate result of his compensable work related injuries of March 28, 1999 was arbitrary, capricious and not in accordance with law in that it was clearly contrary to the overwhelming weight of the evidence.

The Division rephrases the issue as:

Did Appellant's compensable injury produce a mental injury so severe that his suicide attempt was not a willful act?

FACTS

[14] On March 28, 1999, Brierley: sustained compensable, work-related injuries to his lumbar spine and lower back while acting within the course and scope of his duties as a boilermaker for his employer, LP.C. Industrial Power, at the Jim Bridger Power Plant in Sweetwater County, Wyoming. Since then he has suffered chronic and unrelenting pain as a direct result of his work-related injuries and has been unable to work. His treating physician, Dr. Bosworth, a family practitioner, diagnosed him as suffering from a depression caused by the pain from his work-related injuries. On April 5, 2000, Bri-erley was referred for a psychological examination to obtain an opinion whether he was a suitable candidate for back surgery. Brier-ley was examined by Dr. Hart, Ph.D., a licensed clinical psychologist, and, during an interview with Dr. Hart, Brierley described his physical and mental conditions and stated he had suicidal thoughts. In a written report that was admitted at the hearing, Dr. Hart made the following statement; however, this statement was not referred to by the hearing examiner in its findings of fact and conclusions of law:

After integrating the data obtained through my review of the medical record with the insights from my clinical interview and the results of the psychometric testing, I have arrived at the following psychological diagnoses.
1. Anxiety Disorder, NOS. The DSM-IV code is $00.0. This diagnosis allows for a mixed condition of depression and anxiety. Typically, it is used when neither construct meets all the criteria. I am using it in a different sense in that I believe Mr. Brier-ley has vulnerability to psychological intensity and anxiousness, but his physical condition has exacerbated that vulnerability and brought on a major depression, which, in fact, does have adequate symptoms to stand alone as a DSM-IV diagnosis. I am wanting to show the interconnection between these two psychological conditions by using this present DSM-IV 800.00 diagnosis. I should note the severity of these symptoms puts him in the moderate to severe range. Presently, the condition is severe with respect to depression.
2. Pain Disorder Associated with Psychological Factors and a Medical Condition. The DSM-IV code is 307.89. The ICD.9 code is 784.4.

Dr. Hart's final opinion was that Brierley was not a good candidate for back surgery.

[¶15] On June 9, 2000, Brierley shot himself in the abdomen, inflicting injuries that he survived. He filed a claim for medical and temporary total disability benefits that was denied by the Division. The matter then went to hearing. In its findings of fact, the hearing examiner stated the parties' positions: Brierley contended the self-inflicted gunshot wound injuries were caused by his work-related injuries and compensable under Wyo. Stat. Aun. § 27-14-102(a)(xi), while the Division contended the gunshot injuries were the result of his willful intent to injure or kill himself and, therefore, were not compensable under Wyo. Stat. Ann. § 27-14

[¶16] Dr. Bosworth appeared at the hearing and testified. The hearing examiner found that, although Dr. Bosworth was not a licensed psychiatrist or clinical psychologist, Dr. Bosworth's opinion was that, to a reasonable degree of medical probability, the claimant's chronic pain and inability to return to work caused or substantially contributed to the claimant's becoming depressed. Dr. Hart did not testify at the hearing, but a transcript of an earlier deposition containing Dr. Hart's testimony was entered into evidence. Relying upon a portion of Dr. Hart's deposition testimony, the hearing examiner found that Dr. Hart was unable to opine with "any reasonable degree of psychological probability that the claimant's self-inflicted gunshot wound was the direct result of his work-related back injury." The hearing examiner quoted the following:

There's a linkage there that you could make inferentially, but I'm not sure I can go clear back to that. I believe that his suicide gesture was due to depression and anxiousness associated with his failure-his perception of his inability to care for his family and function as a whole man. I believe that those thoughts came from the pain experiences that he had secondary to a very bad, bad back, a back which I believe was not just caused by a single incident.

The hearing examiner does not quote the entire statement but skips to this:

Now, the logic flows in that sequence of things, since I've already ruled out the fact that he had not had major depression in the past, at least I didn't have documentation of that and I don't think anybody else has, either, that he didn't have collateral problems along the way, other than financial pressures which may have been the result of not being able to work which may have been the result of pain. Then the pain, the inability to function, the depression, the suicide gesture. But you've got to make that connection. I ean't just link, automatically say, hey, he killed himself because he's got pain because of an injury.

In its conclusions of law, the hearing examiner stated:

6. In State ex rel Wyoming Workers' Compensation Division v. Ramsey, 839 P.2d 936 (Wyo.1992), the Supreme Court held that an employee's suicide is compen-sable if a work-related injury "produces mental derangement and the mental derangement produces suicide." Id. at 940, quoting 1A Larson, The Law of Workmen's Compensation $ 36.00 at 6-160 (1990). If still good law, however, the claimant failed to produce sufficient evidence to prove that his work-related injury produced mental derangement.
7. After Ramsey, supra, the legislature amended W.S. § 27-14-102(a)(xi) to provide, in pertinent part, that: "Injury" does not include any mental injury unless it is caused by a compensable physical injury, it occurs subsequent to or simultaneously with, the physical injury and it is established by clear and convincing evidence, which shall include a diagnosis by a licensed psychiatrist or licensed clinical psychologist meeting criteria established in the most recent edition of the diagnostic and statistical manual of mental disorders published by the American Psychiatric Association.
In this case, however, the claimant failed to prove by clear and convincing evidence that his compensable work-related injury caused a compensable mental injury that, in turn, caused the self-inflicted gunshot wound. After weighing the evidence and opinions of Dr. Bosworth and Dr. Hart, the Office concludes that the claimant has failed to prove that his self-inflicted gunshot wound was the direct and proximate result of his compensable work-related injuries of March 28, 1999.

(Emphasis added.) Benefits were denied, and this appeal followed.

- DISCUSSION

Standard of Review

[¶17] Judicial review of agency action is governed by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2001):

To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
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(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Sechrist v. State ex rel. Wyo. Workers' Safety and Comp. Div., 2001 WY 45, ¶ 17, 23 P.3d 1138, ¶ 17 (Wyo.2001).

[¥8] The interpretation and correct application of the provisions of the Wyoming Workers' Compensation Act are questions of law over which our review authority is plenary. Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law. State ex rel. Wyo. Workers' Safety and Comp. Div. v. Garl, 2001 WY 59, ¶ 8, 26 P.3d 1029, ¶ 8 (Wyo.2001).

[¶19] We recently held that the substantial evidence test is the appropriate standard of review in appeals from Wyoming Administrative Procedures Act (WAPA) contested case proceedings when factual findings are involved and both parties submit evidence. Newman v. Wyo. Workers' Safety and Comp. Div., 2002 WY 91, ¶ 22, 49 P.3d 163, ¶ 22 (Wyo.2002). We further held that when only the party with the burden of proof submits evidence in the contested case proceeding and that party does not ultimately prevail, the arbitrary or capricious standard governs the judicial review of that agency decision. Id. Even if the factual findings are found to be supported by substantial evidence, the ultimate agency decision may be found to be arbitrary or capricious for other reasons. Id. at 128. We do not examine the record only to determine if there is substantial evidence to support the board's decision, but we must also examine the conflicting evidence to determine if the hearing examiner could have reasonably made its finding and order upon all of the evidence before it. Id. at ¶ 24, ¶ 25. Because only Brierley presented a case-in-chief, we apply the arbitrary and capricious standard.

Statutory Interpretation

[110] The State contends that the plain language of Wyo. Stat. Ann. § 27-14-102(a)(x1)(B)(II) requires this Court's overruling Ramsey and holding that the legislature intended that any injury resulting from a suicidal act is not compensable. Our well-established rules of statutory interpretation were recently summarized to be:

We decide initially whether the statute is clear or ambiguous. This Court makes that determination as a matter of law. If we determine that a statute is clear and unambiguous, we give effect to the plain language of the statute. In effectuating the plain language of the statute, we begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia. If, on the other hand, we determine that the statute is ambiguous, we resort to general principles of statutory construction to determine the legislature's intent.

Sechrist, § 10.

[¶11] In the part of the statute referenced by the Division, the statute provides:

(xi) "Injury" means any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extra hazardous duties incident to the business. "Injury" does not include:
(A) Any illness or communicable disease unless the risk of contracting the illness or disease is increased by the nature of the employment;
(B) Injury caused by:
(I) The fact the employee is intoxicated or under the influence of a controlled substance, or both, except any prescribed drug taken as directed by an authorized health care provider; or
(II) The employee's willful intention to injure or kill himself or another.

Wyo. Stat. Ann. § 27-14-102(a)(xi) (Lexis-Nexis 2001) (emphasis added).

Brierley relies upon a subsequent part of that same statutory provision, subsection (J), which was first enacted in 1994 after the Ramsey decision and provides:

"Injury" does not include:
wore shor
(J) Any mental injury unless it is caused by a compensable physical injury, it occurs subsequent to or simultaneously with, the physical injury and it is established by clear and convincing evidence, which shall include a diagnosis by a licensed psychiatrist or licensed clinical psychologist meeting criteria established in the most recent edition of the diagnostic and statistical manual of mental disorders published by the American Psychiatric Association. In no event shall benefits for a compensable mental injury be paid for more than six (6) months after an injured employee's physical injury has healed to the point that it is not reasonably expected to substantially improve.

[112] This particular provision requires the claimant to prove by clear and convincing evidence that the compensable physical injury caused the mental injury. Sechrist, ¶ 11. We agree with the hearing examiner's conclusions that Ramsey decided that suicide is compensable "if the injury produces mental derangement and the mental derangement produces suicide," and that this holding applies to attempted suicide. The State's contention that Ramsey ignored legislative intent and should be overruled would require that we ignore the plain intent of the latter legislative amendment, which we are prohibited from doing. Additionally, we are required to harmonize all parts of the statute. Plainly, the meaning of "injury does not include ... [injury caused by ... [tlhe employee's willful intention to injure or kill himself or another" refers to those situations preceded by or simultaneous with a compen-sable physical injury.

[113] The State contends that Ramsey was the result of the disfavored liberal construction rule. As we explained in Wilkinson v. State ex rel. Wyoming Workers' Safety and Compensation Div., 991 P.2d 1228, 1242 (Wyo.1999), the rule of liberal construction of a statute in favor of the claimant is applied when the statute at issue is silent as to the issue presented and precedes the legislature's 1994 amendment to the preamble of the workers' compensation statutes. Therefore, our statutory construction in this case "should be accomplished to afford coverage wherever that end may be achieved without unreasonably extending the clear language of the statute." Id. (quoting Wright v. Wyo. Workers' Safety and Comp. Div., 952 P.2d 209, 211 (Wyo.1998)). After the effective date of the current statute, workers' compensation statutes can no longer be interpreted in favor of coverage but will be interpreted in a way that gives effect to the legislative intent and preserves the historic compromise between workers and employers. State ex rel. Wyo. Workers' Safety and Comp. Div. v. Summers, 987 P2d 153, 157 (Wyo.1999). Our conclusion in this case, however, is driven by the plain language of the statute. Thus, the rule of liberal construction does not come into play. This statute is not silent as to the issue presented and must be interpreted in accordance with its plain language to effectuate legislative intent. Moller v. State ex rel. Wyo. Workers' Safety and Comp. Div., 12 P.3d 702, 706 (Wyo.2000).

Failure of Proof

[114] We recently held that whether the employee has shown by a preponderance of evidence that he has received a diagnosis satisfying the statute's specific requirements, a diagnosis by a licensed psychiatrist or psychologist that meets the criteria for that mental disorder in the specified manual by the American Psychiatrists Association, presents a question of fact. The different burden of proof mandated by the statutory language applies to the provision's requirement that the employee show by clear and convincing evidence that he has suffered a compensable mental injury caused by a compensable physical injury. Sechrist, T11. Here, the hearing examiner heard the testimony of Dr. Bosworth, a treating physician, whose opinion was that, to a reasonable degree of medical probability, the claimant's chronic pain and inability to return to work caused or substantially contributed to the claimant's becoming depressed. The hearing examiner then had the written report of Dr. Hart's psychological diagnoses of major depression combined with anxiety, a diagnosis commonly considered more serious than just that of depression, and pain disorder with both diagnoses made in accordance with the statutory requirements. Finally, the hearing examiner bad the deposition testimony of Dr. Hart. We shall again quote the part of that testimony that the hearing examiner found significant; however, because its meaning changes when read in context, we quote it in more depth:

There's a linkage there that you could make inferentially, but I'm not sure I can go clear back to that. I believe that his suicide gesture was due to depression and anxiousness associated with his failure-his perception of his inability to care for his family and function as a whole man. I believe that those thoughts came from the pain experiences that he had secondary to a very bad, bad back, a back which I believe was not just caused by a single incident. But when you've got degenerative disk disease from L2 clear to the sacrum, you've had a whole series of battering your back to death.
And so I believe his pain is a function of a whole series of things exacerbated by a specific injury, pulling out those welding rods. And that led to the whole process of evaluating treatment options and care as accepted by the Worker's Comp program. And then, at some point, I guess-I don't know-he's probably declared MMI and sent on his way.
That he couldn't function physically as he had in the past led to the depression. That inability to function mixed with his own perception of what he needed to be as a man, which was preexisting kind of perception of life, led to his suicide gesture.
Now, the logic flows in that sequence of things, since I've already ruled out the fact that he had not had major depression in the past, at least I didn't have documentation of that and I don't think anybody else has, cither, that he didn't have collateral problems along the way, other than financial pressures which may have been the result of not being able to work which may have been the result of pain. Then the pain, the inability to function, the depression, the suicide gesture. But you've got to make that connection. I can't just link, automatically say, hey, he killed himself because he's got pain because of an injury.
*e ok
Q. Okay. And understanding that, Doctor, that I'm not asking for a guarantee, I'm asking you, based upon what is most probable, the most probable scenario based upon your experience, your training, your interviews and testing of Mr. Brier-ley, and your review of the records from the University of Utah Medical Center, whether or not the chain of events set in motion by the injury of March 28 of 1999 are the cause of Mr. Brierley's suicide attempt.
A. Having worked in the workers' compensation field for 11 years, that argument is more supported than refuted. There is more probability that the injury was a major component to the pain, to the dysfunction and inability to work, to the depression, to the anxiety. And then because he was not psychologically strong enough, for one reason or another, he thought, I guess, that he needed to take his life. So the logic is pretty sound, probably more on the likelihood to be that scenario than not.

"Clear and convincing evidence is something more than a preponderance, but less than proof beyond a reasonable doubt. It is the kind of proof that would persuade a trier of fact that the truth of the contention is highly probable." Bando v. Clure Bros. Furniture, 980 P.2d 323, 329 (Wyo.1999) (citation omitted). When presented with medical opinion testimony, the hearing examiner, as the trier of fact, is responsible for determining relevancy, assigning probative value, and ascribing the relevant weight to be given to the testimony. Id. "In weighing the medical opinion testimony, the fact finder considers: (1) the opinion; (2) the reasons, if any, given for it; (8) the strength of it; and (4) the qualifications and credibility of the witness or witnesses expressing it." Id. at 329-830.

[415] In the order denying benefits, the hearing examiner stated that Brierley had failed to prove by clear and convincing evidence that his compensable work-related injury caused a mental injury that, in turn, caused the self-inflicted gunshot wound, and that, after weighing the evidence and opinions of Dr. Bosworth and Dr. Hart, the hearing examiner concluded that the claimant had failed to prove that his self-inflicted gunshot wound was the direct and proximate result of his compensable work-related injuries of March 28, 1999.

[T16] When, as here, a hearing examiner decides that the only party presenting evidence and charged with the burden of proof has failed to meet that burden, the case is reviewed under the "[alrbitrary, capricious, an abuse of discretion or otherwise not in accordance with law" standard of § 16-3-1l4(0)@®)(A). Newman, at 122. The hearing examiner, as the trier of fact, is charged with weighing the evidence and determining the credibility of witnesses. Id. at 26, 181. A hearing examiner's findings of fact are accorded deference, and the hearing examiner's decision will not be overturned unless it is clearly contrary to the overwhelming weight of the evidence. Id. Demonstrating evidentiary contradictions in the record does not establish the ruling was irrational, but we do examine conflicting evidence to determine if the agency reasonably could have made its finding and order based upon all of the evidence before it. Bando, 980 P.2d at 831.

[T17] Dr. Bosworth stated unequivocally that Brierley's compensable injury caused pain and depression that led to the suicide attempt. Dr. Hart's lengthy opinion, reduced to its essence, was "that the truth of the contention is highly probable," which sat-isfiee the clear and convincing standard. The hearing examiner's decision is based upon only a portion of the evidence before it and is contrary to the overwhelming weight of the evidence. The order denying benefits is reversed and remanded for entry of an order granting benefits.

      . Subsection (j) requires that the evidence establish a diagnosis by the proper authority in accordance with the criteria of the DSM-IV. Sechrist held that this requirement of subsection (§) could be established by a preponderance of the evidence.