author: CHAPEL, Judge.

text:
    2002 OK CR 13
    Brent C. TAYLOR, Appellant, v. STATE of Oklahoma, Appellee.
    No. F-2000-1469.
    Court of Criminal Appeals of Oklahoma.
    March 26, 2002.
    Rehearing Denied April 24, 2002.

      Charles Holdstock, Oklahoma City, OK, Attorney for Defendant at trial.
    Stephen Deutsch, Deena Tyler, Assistant District Attorneys, Oklahoma County District Attorney's Office, Oklahoma City, OK, Attorneys for the State at trial.
    Charles Holdstock, Oklahoma City, OK, Attorney for Appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, William R. Holmes, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.
   SUMMARY OPINION

CHAPEL, Judge.

1 Brent C. Taylor was tried by jury and convicted on Count I: Attempted First Degree Co-Joint Robbery, in violation of 21 § 791, 21 O0.8.8upp.1999, § 42(1); and on Counts II and III: First Degree Co-Joint Robbery, in violation of 21 0.8.1991, § 791, in the District Court of Oklahoma County, Case Number CF-99-6687. In accordance with the jury's recommendation, the Honorable Ray C. Elliot sentenced Taylor to ten (10) years imprisonment on each count with the sentences to run concurrently. Taylor has perfected this appeal.

T2 Taylor raises the following propositions of error:

I. The trial court erred when it failed to give an instruction on the lesser-inelud-ed offenses of second degree robbery or larceny.
II. The trial court improperly instructed the jury of the sentence to be imposed for first degree co-joint robbery.
Mr. Taylor was denied a fair trial because of the egregious conduct of the prosecutor. IIL
IV. The trial court erred by failing to determine restitution with in a reasonable certainty, and by imposing restitution for alleged damages that were not resulting from the offense of the convictions.
V. The sentence imposed was excessive.
VI. Appellant's purported statement was improperly admitted into evidence because it is not clear that the police ceased their interrogation after Appellant invoked his right to counsel. It follows that the introduction of Appellant's statement violated his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article II, §§ 7, 20, and 21 of the Oklahoma Constitution.

13 After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we find that trial error warrants modification of Taylor's sentence with respect to each criminal count. We further remand the case for an evidentia-ry hearing at which the trial court may receive evidence on the appropriate amount of restitution.

¶4 We find in Proposition I that the trial court properly instructed the jury because the evidence did not support an instruction on the lesser-included offenses of second degree robbery or lareeny. In Proposition II, we find plain error in the trial court's failure to instruct the jury on the proper range of punishment. We modify Taylor's sentences to reflect five (5) years imprisonment on each count. Counts I and II shall run concurrently, and Count III shall run consecutive to Count II. In Proposition III, we find no misconduct in the prosecutor's comments during closing arguments because these comments were isolated events and did not deny Taylor a fair trial. We find Proposition V is moot due to our resolution of Proposition II. In Proposition VI, we find that the trial court did not err in admitting Taylor's statements because sufficient evidence supports the trial court's in camera ruling that Taylor's statements were voluntary and admissible.

15 We find in Proposition IV that the trial court erred in its determination of the restitution amount with respect to Dr. Carlin's claim of lost wages. Included in the restitution amount was a portion of Dr. Carlin's claim for $1,600.00 in lost wages for two days of work she missed in order to testify against Taylor in court. The trial court ordered Taylor to pay one-half of this amount and assessed his co-defendant the other half. The trial court may order restitution "if the extent of damages to the victim is determinable with reasonable certainty. Restitution is intended to compensate victims for their actual loss, not provide a windfall. No testimony supported Dr. Carlin's claim of lost wages; the claim was included in the presentence report. As no evidence supported the claim, the trial court did not determine the extent of Dr. Carlin's damages with reasonable certainty. We remand the matter to the trial court. At an evidentiary hearing, the trial court may determined the appropriate amount of restitution.

16 Taylor also asserts that his conduct was not the proximate cause of Dr. Carlin's lost wages. The more appropriate question is whether the Legislature intended to include as restitution claims of lost wages based solely on work missed for a court appearance. Every witness that has a job and is not employed by the State at trial may lose wages by missing work to testify in court. This does not entitle every witness to a claim for lost wages against a criminal defendant. However, the Legislature has enacted special protection for crime victims. The Victim's Rights Act allows erime victims to sue their attackers in civil court. In defining its terms, the Act also specifically notes that trial courts may order defendants to pay a victim's out-of-pocket loss, including "unreimbursed and nonreimbursable economic losses incurred as a consequence of participation in prosecution and proceedings related to the crime." Restitution for victims' lost wages is appropriate under this definition. However, the amount of restitution must still be determined with reasonable certainty.

Decision

T7 The Judgment of the trial court is AFFIRMED and the Sentences are hereby MODIFIED to five (5) years imprisonment each on Count I, Count II, and Count III; with the sentence on Counts I and II to run concurrently, and the sentence on Count III to run consecutive to Count II. The case is REMANDED for an evidentiary hearing on the appropriate amount of restitution.

LUMPKIN, P.J.: concur.

JOHNSON, V.P.J.: concur.

STRUBHAR, J.; concur.

LILE, J.; concur.

      . See 21 O.S.1991, § 916 (emphasis added); See Shrum v. State, 1999 OK CR 41, 991 P.2d 1032, 1034.

      . The State conceded in its brief that the trial court erred in its instructions.

      . Salazar v. State, 1993 OK CR 21, 852 P.2d 729, 741 n. 9, cert denied, 528 U.S. 895, 120 S.Ct. 226, 145 L.Ed.2d 190 (1999) (citing Scott v. State, 808 P.2d 73, 77 (Okl.Cr.1991); Turner v. State, 1990 OK CR 79, 803 P.2d 1152, 1158-59, cert. denied, 501 U.S. 1233, 111 S.Ct. 2859, 115 L.Ed.2d 1026 (1991)) (holding that "an improper instruction on the range of penalties is fundamental error and cannot be waived."). Here, the trial court instructed the jury on a minimum punishment of ten (10) years for each count; however, the statutory minimum. for each criminal charge is five (5) years. See 21 O.S.Supp.1999, § 800; 21 0.8.Supp.1999, § 42(1).

      . See Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 514, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000) (holding that "allegations of prosecutorial misconduct do not warrant reversal of a conviction unless the cumulative effect was such to deprive the defendant of a fair trial").

      . See Ullery v. State, 1999 OK CR 36, 988 P.2d 332, 343 (holding that where sufficient evidence supports a trial court's in camera ruling that a defendant's statements are voluntary and admissible, this Court will not disturb that ruling). Testimony from the officers present at Taylor's initial apprehension and strong evidence of Taylor's valid verbal and written waiver of his Miranda rights supports the trial court's ruling on the admissibility of Taylor's statements.

      . 22 O.S.$upp.1999, § 991a(A)(1)(a).

      . Honeycutt v. State, 1992 OK CR 36, 834 P.2d 993, 1000-1001.

      . Section 9112 provides little guidance regarding the types of damages properly claimed as a basis for criminal restitution. However, section 991a-18, codified as part of the Elderly and Incapacitated Victim's Protection Program, requires the trial court to determine "expenses, loss or damage to property and injury to the victim proximately caused by the conduct of the defendant." 22 O.S.Supp.1999, § 991a-18 (emphasis added). Although a proximate cause determination is not expressly required by section 91 1a, it is unlikely that the legislature intended to provide young, healthy victims greater latitude regarding damage claims than elderly or incapacitated victims.

      . 21 O.S.Supp.1997, § 142B.

      . 21 O.S.Supp.1997, §§ 142A-1(4), 142A-1(6).


source: Caselaw Access Project

author: GREENWOOD, Judge.

license: Public Domain

text:
    2002 UT App 74
    Yuriy EKSHTEYN, Petitioner, v. DEPARTMENT OF WORKFORCE SERVICES, Respondent.
    No. 20010463-CA.
    Court of Appeals of Utah.
    March 14, 2002.
    Jay L. Kessler, Salt Lake City, for Petitioner.
    Lorin R:; Blauer, Salt Lake City, for Respondent.
    Before Judges BILLINGS, BENCH, and GREENWOOD.
   OPINION

GREENWOOD, Judge.

1 1 Yuriy Ekshteyn appeals the Workforce Appeals Board's (the Board) decision denying him backdated unemployment benefits for failure to show good cause for his untimely filing. Ekshteyn argues that his "lack of knowledge" of his right to file a claim constitutes "good cause" pursuant to Utah Code Ann. § 85A-4-408 (Supp.2001) of Utah's Employment Security Act, for the purpose of allowing his late claim to be backdated. We affirm.

BACKGROUND

T2 Ekshteyn worked for Spiffy Ice as a delivery driver from April 24, 1999 through August 11, 1999. On August 11, Ekshteyn was delivering ice to an outdoor show when a tornado came through the area. Ekshteyn was caught in the tornado and severely injured, suffering a crushed face, torn shoulder, and injuries to his collar bone, back, and knee. Due to the severity of his injuries, Ekshteyn incurred substantial medical bills. From August 12, 1999, until January 6, 2000, Ekshteyn received workers' compensation benefits. During this period, Ekshteyn was under heavy medication. Ekshteyn consulted with two attorneys with regard to his injuries and workers' compensation claim, but these attorneys never informed him about the availability of unemployment insurance benefits. Ekshteyn began looking for work on January 2, 2000, and obtained work beginning on March 24, 2000, with Popular Mill Design Cabinets.

13 Ekshteyn first became aware of the unemployment insurance program when he read a notice on a bulletin board at his new place of employment. Ekshteyn then contacted the Department of Workforce Services (the Department) and filed an application for benefits on January 2, 2001, requesting that his claim be backdated, and that he receive benefits for the weeks from January 2, 2000, through March 25, 2000.

{4 The Department denied Ekshteyn's claim, finding that he did not "show|[] that [he was} prevented from filing earlier and [he did] not meet the requirements for backdating" under Utah Code Ann. § 85A-4-408(1)(a) (Supp.2001). Ekshteyn appealed the Department's denial of benefits to an Administrative Law Judge (ALJ) who affirmed the Department's decision. Appellant then appealed to the Board, which affirmed the ALJ's decision in its entirety. This petition for review followed.

ISSUE AND STANDARD OF REVIEW

¶5 "'[Blecause proper application of the Employment Security Act and the relevant rules requires little highly specialized or technical knowledge that would be uniquely within the [Board's] expertise ... this court will review the agency's decision with only moderate deference.'" Autoliv ASP, Inc. v. Department of Workforce Servs., 2001 UT App 198, ¶16, 29 P.3d 7 (quotations and citations omitted). "The ultimate decision as to whether good cause exists is a mixed question of law and fact and should be affirmed only if it is reasonable." Armstrong v. Department of Employment Sec., 834 P.2d 562, 565 (Utah Ct.App.1992).

ANALYSIS

I. "GOOD CAUSE" FOR UNTIMELY FILINGS

16 Ekshteyn argues that his "lack of knowledge" constitutes "good cause" under Utah's Employment Security Act (the Act). Ekshteyn contends that because he did not know he was eligible for unemployment benefits he was prevented from filing for benefits.

T7 Filing of claims for unemployment insurance benefits is governed by the Act and its corresponding rules. See Utah Code Ann. § 35A-4-408 (Supp.2001). Under section 35A-4-408(1)(a), "an unemployed individual is eligible to receive benefits with respect to any week only if ... [tlhe individual has made a claim for benefits with respect to that week in accordance with any rules the department may prescribe." Utah Code Ann. § 35A-4-403(1)(a) (Supp.2001). Pursuant to this section, the Department has promulgated rules, including the following:

R994-403-102a. Filing a New Claim.
(1) Effective Date of a New Claim.
When a claimant believes he may be entitled to unemployment insurance benefits, it is his responsibility to file a claim during the week he desires to claim the benefits, not after the week has passed. Backdating prior to the week of filing will be allowed only if good cause cam be established in accordance with Section R994-403-107a, and Subsections 35A-4-408(1)(a) and 35A-4-406(1)(a). The effective date of the new claim establishes the period of time during which wages can be used for determining the monetary entitlement, and in the case of law changes, the laws under which eligibility is determined....
R994-403-106a. Filing Weekly Claims.
(1) The claimant is solely responsible for filing weekly claims. To maintain continuing eligibility for benefits an individual shall file weekly claims in person, by mail or by telephone in accordance with instructions from the Department.

Utah Admin. Code R994-403-102a, -106a (2001) (emphasis added).

18 Rule 994-403-107a provides guidelines and examples of good cause and lack of good cause for late filings:

R994-408-107a. Good cause for Late Filing.
(1) A claimant has the duty to establish, by competent evidence, that good cause existed for not claiming benefits as prescribed. The Department has a responsibility to NOT apply excessive harshness or technicality in determining good cause. ...
(2) Good cause for late filing will generally be established by evidence a claimant was prevented from filing a timely claim. The proof of inability to properly file may establish unavailability for work. Some examples that may establish good cause for late filing but may raise an availability issues are:
(a) a crisis of several days duration that interrupts the normal routine during the time the claim should be filed,
(b) hospitalization or incarceration,
(c) coercion or intimidation exercised by the employer to prevent the prompt filing of a claim, and
(d) failure of the Department to discharge its responsibilities promptly in connection with a claim.

(8) Some examples of reasons for late filing that may NOT be considered good cause are:

(a) failure to affix correct postage or otherwise properly mail the claim, including placing for mailing somewhere other than in an approved Postal Service mail box or mail drop,
(b) failure to mail the claim far enough in advance to reasonably insure delivery to the Department within the allowable time frame,
(c) delegation of the mailing or filing responsibility to another person,
(d) procrastination for non-compelling reasons,
(e) misplacing the claim, the claim filing telephone number or Personal Identification Number (PIN),
(£) vacation,
(g) temporary or minor illness,
(h) transportation problems,
1) failure to notify the Department of the proper name, address or an address change, and
(J) failure to properly label a personal mail box to insure mail delivery, and
(k) reliance upon inaccurate advice from friends, relatives, other claimants or similar sources as the Department is, and shall remain, the only acceptable source of information about unemployment insurance.

Utah Admin. Code R994-403-1072a (2001).

19 The examples provided in the rule do not address whether "lack of knowledge" is considered "good cause." Ekshteyn, however, argues that each of the examples assume some form of knowledge possessed by the claimant that benefits are available. Therefore, because Ekshteyn had no knowledge of the benefits available, he contends he would necessarily fall outside of the rules' intended purpose.

110 However, Ekshteyn fails to offer any support for his interpretation of R994-403-1074. The legislature granted the Department discretion in establishing rules under section 35A-4-408(1)(a) and "an agency's interpretation of statutory provisions is entitled to deference when there is more than one permissible reading of the statute and no basis in the statutory language or the legislative history to prefer one interpretation over another." Morton Int'l, Inc. v. Utah State Tax Comm'n, 814 P.2d 581, 588 (Utah 1991). Assuming that more than one permissible reading of R994-408-107a is viable, Eksh-teyn has failed to show any text or legislative history that would persuade us to favor Ekshteyn's reading over the Department's.

11 The ALJ denied Ekshteyn's untimely claim for unemployment insurance benefits stating:

The claimant did not file for unemployment insurance benefits when he wanted to receive the benefits because he was not aware of the unemployment insurance program. Nothing prevented the claimant from trying to learn of this program. He could have looked it up in the phone book and called the Department of Workforce Services. The claimant's own ignorance in regard to the program is not good cause for late filing or backdating.

€ 12 The Board affirmed the ALJ, adding, "lilt is the duty of citizens to make themselves aware of their entitlement to benefits." Given these stated reasons, the Board could bave viewed the examples listed in R994-403-107a, regarding good cause, as describing the level of control a claimant has over events which prevent him from timely filing. For instance, the examples which may establish good cause involve cireumstances beyond a claimant's control, such as a crisis, hospitalization, or a Department failure. See Utah Admin. Code R994-403-107a(@2)(a)-(d). Conversely, the examples which do not establish good cause involve cireumstances generally within a claimant's control, such as vacation, inadequate postage, transportation problems, or procrastination. See id. R994-408-107a (3)(a)-(k). Consistent with this approach, the Board could reasonably determine that Ekshteyn's knowledge about unemployment insurance benefits was within his control and therefore, his "lack of knowledge" does not establish good cause.

[ 13 Two New York Supreme Court memorandum decisions support the Board's determination regarding good cause. In Condon v. Levine, 51 A.D.2d 1070, 380 N.Y.S.2d 364, 365 (1976), the New York Supreme Court rejected an appellant's argument that " 'unaware[{ness]' that her employment was covered by unemployment insurance [benefits]" established "good cause." The Unemployment Insurance Appeal Board found that appellant being "unaware" was not good cause and she was therefore "ineligible for benefits." Id. The court concluded, without analysis, that there was substantial evidence to sustain the Board's determination and affirmed. See id.

¶14 Similarly, in Casey v. Levine, 50 A.D.2d 1082, 877 N.Y.S.2d 662, 662 (1975), the appellant argued that his failure to comply with the filing requirements "was due to an honest mistake on his part." Id. The Unemployment Insurance Appeal Board found that the appellant "was not misled by a representative of the Industrial Commissioner and no cireumstances have been shown that would constitute good cause for excusing claimant's failure to file for benefits." Id. at 662-63. The New York Supreme Court sustained the Board's decision because there was substantial evidence "that claimant failed to comply with registration requirements and furnished no valid reason for such failure." Id. at 663.

1 15 We believe the lack of case law on the issue before us exists because equating "good cause" with unawareness of rights, and nothing more, is unreasonable on its face. It would render "good cause" almost meaningless and would result in unwarranted administrative problems. See Autoliv, 2001 UT App 198 at 116 (stating deference to administrative agency decisions includes consideration of " "policy concerns'" and whether issue is " 'susceptible to uniform legal rules'" (citations omitted)).

CONCLUSION

[16 The Board's decision that Ekshteyn's lack of knowledge was not good cause for the late filing of his claim was reasonable. We therefore affirm.

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

      . Although Utah Code Ann. § 35A-4-403 has since been amended, no material changes have been made; therefore, we cite to the current version of the statute throughout this opinion.

      . Because no material changes have occurred to these rules, we cite to the current code.

      . Utah case law is silent on what "good cause" means, and it appears, with the exception of the two New York cases cited, that this particular issue has not been addressed in other jurisdictions.


author: BILLINGS, Associate Presiding Judge: ORME, Judge

text:
    2002 UT App 83
    Gail Lynne ELMAN, Respondent and Appellant, v. Stanley C. ELMAN, Petitioner and Appellee.
    No. 20010145-CA.
    Court of Appeals of Utah.
    March 21, 2002.

      Ellen Maycock, Kruse Landa & Maycock, Salt Lake City, for Petitioner.
    Bert L. Dart, Dart, Adamsondonovan & Hansen, Salt Lake City, for Respondent.
    Before JACKSON, P.J., and BILLINGS, Associate P.J., and ORME, J.
   OPINION

BILLINGS, Associate Presiding Judge:

T1 Stanley C. Elman (Husband) appeals from a decree of divorce. He maintains the trial court erred in the property division. Gail Lynne Elman (Wife) cross appeals the property division and seeks attorney fees on appeal. We affirm and remand for a determination of reasonable attorney fees due Wife on appeal.

BACKGROUND

12 After thirteen years of marriage, Wife filed for divorcee. Following a trial, the trial court determined the marital estate had a net value of $3,421,045. The court awarded each party assets valued at approximately one-half of that amount.

13 Prior to the marriage, Husband acquired interests in four family real estate partnerships. At the time of the marriage, Husband's father managed the partnerships, assisted by a property management firm. Husband was employed as a commercial property manager for Transamerica Realty (Transamerica) in California. Wife also worked in property management until late 1991 or early 1992, when the parties jointly decided she would not work outside of the home.

T4 In 1993, the parties moved to Park City, Utah. Husband maintained his employment with Transamerica and regularly commuted to California. Although no longer employed, Wife actively managed the parties' marital property. She secured the land for, and was in charge of, building the parties' Park City home. The home increased in value from $685,000 to over $1,000,000 at the time of trial. Additionally, Wife located, sold, and traded other marital properties. In particular, she was involved in the acquisition of a Montana ranch, which increased in value by approximately $422,000 at the time of trial; a Park City lot that sold for a $80,000 profit; and a lot, valued at $895,000, which she traded for a lot in the Colony at the Canyons (Colony Lot), valued at $1,200,000 at the time of trial.

T5 After Husband's father died in 1995, Husband managed the partnerships, assisted with daily management by the property management firm. In January 1998, Husband assumed plenary management of the partnerships and left his Transamerica employment where he had been earning approximately $87,000 a year. The partnerships' holdings are extensive, requiring Husband to devote a substantial amount of his time to their management. In 1999, Husband earned over $300,000 from the partnerships.

T6 Throughout the marriage, Husband maintained separate accounts for the partnerships. In 1998, he transferred one-third of the Elman Ltd. partnership to Wife. At trial, the parties stipulated that this one-third interest was marital property.

17 Husband's partnership interests substantially appreciated in value during the marriage. At trial, Wife sought a share of that appreciation. The trial court determined that the partnership interests were premarital property. The court also determined that Husband had not commingled the partnership assets and Wife had not directly enhanced or protected the assets in a meaningful way. However, the trial court found that Wife was a very active partner in managing and enhancing the parties' marital property, particularly during the latter years, when Husband's management of the partnerships substantially increased. The court further found Wife freed Husband to manage the partnerships because of the responsibilities she assumed. Thus, the court concluded Wife was entitled to a small share of marital appreciation derived from their joint, although distinct, efforts.

T8 In calculating the marital appreciation, the trial court began with the appreciation on Husband's partnership interests during the marriage, $4,556,215. The trial court subtracted a reasonable return, as calculated by Wife's expert, and prorated the remaining appreciation, based on the years of Husband's most active partnership management. The court allowed one year for the two years of Husband's overall management following his father's death, and one year each for the two years of plenary management, for a total of three years over the parties' thirteen year marriage, resulting in $504,069 in marital appreciation. The trial court awarded Wife marital property offsetting the marital appreciation and awarded Husband his partnership interests free of any claim by Wife.

T9 At the time of trial, the parties' Park City home had first and second mortgages. Additionally, a trust deed created a $250,000 lien (the Elman Trust Loan). In 1998 or 1999, in conjunction with the sale of their California home, the parties paid $50,000 to reduce the principal of the Elman Trust Loan. No other principal payments have been made. The trust deed note bears interest at a rate of 9% per annum. At trial, Husband asserted that with interest, the amount due the Elman Trust is $423,000.

110 In 1997, over two years prior to filing for divorce, Wife filed for bankruptcy. Husband helped Wife complete the bankruptey schedules. The schedules list the Elman Trust Loan as a secured obligation.

T11 At trial, Wife testified that after she filed for bankruptcy, she asked Husband if they could afford to buy the Colony Lot to build a new home and Husband responded that the Elman Trust Loan was a gift. Husband denied making this statement. Husband did not list the Elman Trust Loan as a debt on financial statements until Wife filed for bankruptcy.

112 The trial court found the Park City home had a value of $1,000,000. The court then subtracted the first and second mortgages and a 6% sales commission, but not the Elman Trust Loan, leaving a net equity of $320,298.

€183 Prior to trial, Husband disclosed an interest in a defined benefit pension plan (the Plan). Husband, his mother, and his sister have interests in the Plan. The parties stipulated that the present value of Husband's interest is $345,000.

At trial, Wife's expert testified that the Plan is administered by Elman Properties, Inc. (the Corporation), which has assets worth approximately $2,000,000. The expert further testified that the Plan may be over-funded. After Husband testified that he owns a 50% interest in the Corporation, Wife asserted she was entitled to an equal share of Husband's stock in the Corporation.

T15 In the property division, the trial court awarded Wife $345,000 in property offsetting the present value of Husband's interest in the Plan. The trial court refused to award Wife any interest in the Corporation, finding there was no persuasive evidence as to the value of the Corporation beyond the Plan.

ISSUES AND STANDARDS OF REVIEW

116 Husband argues: (1) The trial court erred in determining that a portion of the appreciation on his premarital partnership interests is marital property subject to equitable division; (2) the evidence does not support the trial court's finding as to the amount of appreciation on Husband's partnership interests; and (8) the trial court erred in not charging the Park City home equity with the Elman Trust Loan. In her cross appeal Wife argues the trial court erred in refusing to award her an equal share of Husband's interest in the Corporation.

117 "A trial court has considerable discretion concerning property [division] in a divorce proceeding, thus its actions enjoy a presumption of validity." Schaumberg v. Schaumberg, 875 P.2d 598, 602 (Utah Ct. App.1994). We disturb a trial court's property division and valuation "only when there is 'a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderates against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion."" Id. (quoting Noble v. Noble, 761 P.2d 1369, 1873 (Utah 1988)).

ANALYSIS

I. Appreciation on Premarital Property

A. Propriety of Award

118 Husband argues the trial court erred in awarding Wife a portion of the appreciation on Husband's partnership interests. -In distributing property in divoree proceedings, trial courts are first required to properly categorize the parties' property as marital or separate. See, e.g., Kelley v. Kelley, 2000 UT App 236, ¶24, 9 P.3d 171. Generally, trial courts are also required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage. See Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App. 1990); see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).

119 However, separate property is not "totally beyond [a] court's reach in an equitable property division." Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct.App.1990). The court may award the separate property of one spouse to the other spouse in "'extraordinary situations where equity so demands" Id. (quoting Mortensen, 760 P.2d at 308); see also Rappleye v. Rappleye, 855 P.2d 260, 268 (Utah Ct.App.1998) ("Exeep-tions to this general rule include whether ... the distribution achieves a fair, just, and equitable result.'" (quoting Dunn, 802 P.2d at 1820)).

€20 In the present case, the trial court properly categorized Husband's partnership interests as separate property. The court then determined that Husband had not commingled the partnership assets and Wife had not directly enhanced their value. However, the trial court found that Wife was very active in managing the marital property, particularly during the latter years, when Husband's role in managing the partnership assets consumed his full-time attention. The court further found Wife freed Husband to engage in activities benefitting his premarital property because of the unusual responsibilities she assumed. Thus, the court concluded equity required that Wife be awarded a small share of the appreciation on Husband's partnership interests, derived from the parties' joint, although distinct, efforts. In calculating the award, the court subtracted a reasonable rate of return, then prorated the remaining appreciation based only on the years of Husband's most active partnership management.

121 Husband argues there is no basis in Utah law for this award. Specifically, he maintains that once the trial court determined the partnership interests were Husband's separate property, the partnership assets had not been commingled, and Wife had not directly enhanced the value of the partnership assets, the court was required to award all of the appreciation to Husband. See Mortensen, 760 P.2d at 308.

11 22 We disagree with Husband's assertion that the trial court's award is entirely without support in our case law. The trial court appropriately relied on our reasoning in Dunn. In Dunn, the wife, similar to Wife in the present case, resigned from her employment during the marriage to have time to travel with the husband, perform secretarial and bookkeeping for his corporation, entertain his associates, run errands, manage household accounts, run the house, and coordinate the construction of the parties' home. See Dunn, 802 P.2d at 1316. In the divorce proceedings, the wife sought an interest in the tangible assets of the husband's corporation. See id. at 1818. The trial court denied her the same, concluding that the assets were the husband's separate property. See id.

123 We held the trial court exceeded its discretion. See id. We emphasized that the wife assumed the sole responsibility of running the household and managing household accounts while the husband worked sixty to seventy hours per week for the corporation. See id. She was left without companionship and domestic contributions during those hours. See id. While she was not his partner in the business of the corporation, she was his partner in the business of marriage. See id. Because her efforts were necessary to the growth of his corporation, the wife was entitled to a fair share of the corporation's assets. See id.

1I 24 In the present case, Husband left his luerative employment with Transamerica to manage the family partnerships, which were premarital property. The partnership holdings are extensive, requiring him to devote significant time to their management. While Husband was growing his partnership assets, Wife not only managed the household, but also grew the parties' marital properties. She secured the land for and was in charge of building the parties' Park City home. The home increased in value from $685,000 to over $1,000,000 at the time of trial. She was also involved in the acquisition of a Montana ranch, which increased in value by approximately $422,000 at the time of trial; a Park City lot that sold for a $80,000 profit; and a lot, valued at $895,000, which she traded for the Colony Lot, valued at $1,200,000 at the time of trial. Additionally, by joint agreement, Wife left her private sector employment to actively manage the household. Wife freed Husband to engage in partnership managing activities because of the responsibilities she assumed. Husband was awarded 50% of the value of the marital properties Wife grew during the marriage. Thus, it is only equitable, given the unusual responsibilities she assumed, that Wife share in the appreciation on the properties Husband grew during the marriage.

125 The trial court's decision is also in accord with Schaumberg v. Schaumberg, 875 P.2d 598 (Utah Ct.App.1994). In Schaum-berg, the husband used marital funds to augment his separate property, a building he purchased with inherited funds. See id. at 603. We upheld the trial court's conclusion that the appreciation on the building had changed character from a separate to a marital asset. See id. We thus concluded the trial court did not exceed its discretion in awarding one-half of the appreciation on the building to the wife. See id.

{26 Unlike in Schaumberg, in the present case, no marital funds were used to augment Husband's premarital partnership interests. However, the trial court found Wife "aided and freed [Husband] to engage in [partnership managing] activities largely because of the responsibilities [she] assumed." Further, Husband quit his luerative job with Trans-america to devote full-time efforts to increase the value of the partnerships. Thus, marital labor augmented Husband's partnership interests. Further, Schaumberg recognizes that appreciation may be a marital asset apart from an underlying separate asset. See id. In fact, in Schaoumberg, the court awarded the wife 50% of all of the appreciation. See id. In the present case, the trial court gave a much smaller and more narrowly drawn award based on the years of Husband's most active partnership management and only above a reasonable rate of appreciation.

127 Other case law supports the trial court's award as well. See Savage v. Savage, 658 P.2d 1201, 1204 (Utah 1988) (approving award of 40% of husband's interest in premarital corporation to wife where entire present value was developed during the marriage, and although wife did not assume responsibility for the corporation, her assumption of "domestic burdens" made husband's full-time participation in the corporation possible); Lee v. Lee, 744 P.2d 1878, 1880 (Utah Ct. App.1987) (reversing trial court for failing to award wife equitable share of corporation, established after marriage with proceeds from sale of separate property, where corporation's value was actualized during the marriage and wife assisted in operation of corporation, performed domestic duties, and reared parties' children).

$28 In support of his position, Husband relies on Burke v. Burke, 733 P.2d 133 (Utah 1987). In Burks, the Utah Supreme Court rejected the husband's claim to a share of the appreciation on the wife's inherited property. See id. at 186. However, in Burke the appreciation was due solely to inflation that occurred during the marriage. See id. at 135. Of particular concern to the supreme court was whether the husband had made "any contribution toward the growth" or "whether the assets were accumulated or enhanced by the joint efforts of the parties." Id. Thus, the supreme court concluded the trial court did not exceed its discretion in denying the husband a share of the appreciation. See id. at 186.

{29 Unlike in Burke, in the present case, the trial court found that the parties through joint, although distinct, efforts contributed to the appreciation on the premarital property. Wife's efforts benefitted their joint property while Husband's efforts benefitted his separate property. Moreover, the trial court appropriately accounted for appreciation due to inflation by subtracting a reasonable rate of return. Thus, contrary to Husband's assertion, Burke does not require that we reverse the trial court.

T30 In sum, because Wife's efforts freed Husband to grow his premarital partnership interests, and he is entitled to one-half of the marital assets she grew, the trial court did not exceed its discretion in holding that equity requires that she receive a fair share of the appreciation on Husband's partnership interests and in awarding Wife a small portion of the appreciation, based only on the number of years of Husband's active partnership management.

B. Amount of Appreciation

T31 Husband argues the trial court erred in calculating the amount of appreciation on his partnership interests because there was no evidence as to the value of his interests at the time of the marriage and the financial statements used to determine the appreciation contained incorrect values and percentages for Husband's interests.

{32 Utah appellate courts have not addressed who has the burden to prove the amount of marital appreciation on a premarital asset. However, we have suggested that a spouse who seeks an interest in the other spouse's business as a marital asset has the burden to establish the value of that business and its assets. See Thomas v. Thomas, 1999 UT App 239, ¶18, 987 P.2d 608. We have also refused to find that a trial court exceeded its discretion in basing its valuation of marital property solely upon evidence presented by one spouse, where the other spouse failed to present any contrary evidence as to the value of such property, because the facts are "clear, uncontroverted, and capable of supporting ouly a finding in favor of the judgment." Smith v. Smith, 751 P.2d 1149, 1151 (Utah Ct.App.1988) (quotations and citations omitted); see also Warren v. Warren, 655 P.2d 684, 687 (Utah 1982) (concluding trial court did not err in valuing marital property based on the sole evidence before it); cf. Argyle v. Argyle, 688 P.2d 468, 470-71 (Utah 1984) ("If [a party's] position [is] that [an asset] should have been valued by a measure different than the value" that party supplied, that party has "the burden of offering further evidence on alternative methods of valuation.").

1838 Although we conclude that Wife had the burden to introduce credible evidence as to the appreciation on Husband's partnership interests, she met that burden by obtaining financial statements prepared by Husband. Husband is an experienced commercial property manager and he submitted these statements to banks. After Wife made a credible showing as to the amount of appreciation on Husband's partnership interests, Husband then had the burden to produce credible evidence contradicting the financial statements. He failed to offer such evidence. Thus, he has failed to show that the trial court exceeded its discretion in relying on the financial statements that he prepared. See Talley v. Talley, 739 P.2d 88, 84 (Utah Ct.App.1987).

€34 Furthermore, although "crucial to determining whether the value of [an] asset [has] increased during the parties' marriage" is the finding as to the value of that asset at the time of marriage, Rappleye v. Rappleye, 855 P.2d 260, 268 (Utah Ct.App. 1993), the trial court did not err in relying upon Husband's 1989 financial statement, the only statement produced, for the beginning values in its appreciation calculation. Evidence was presented that California real property values were increasing at 10% a year. Thus, although evidence should have been presented as to the value of Husband's partnership interests in 1987, the trial court relied on a higher starting value, reducing the amount of appreciation awarded to Wife. Because Husband has not established that he was harmed by the trial court's reliance on a later beginning year, this claim fails.

II. Park City Home Equity

135 Husband argues the trial court exceeded its discretion in not charging the Park City home equity with the Elman Trust Loan. He argues that because Wife received one-half of the benefit of the loan and the benefit of discharging her debts in bankruptcy, her share of the marital estate is increased by approximately $150,000, while he is left to pay the bankruptcy trustee or the Elman Trust.

1 36 "Whether moneys received from close family members represent a gift or a debt can be problematic." Finlayson v. Finlayson, 874 P.2d 848, 848 (Utah Ct.App.1994). "However, given the trial court's unique role in weighing the evidence and judging the credibility of the witnesses, we affirm its findings where they are adequate and supported by sufficient evidence." Id.

137 The trial court questioned whether the Elman Trust Loan was a gift and concluded that as a matter of equity the Park City home equity should not be charged with the loan. At trial, Wife testified that Husband told her the loan was a gift when she inquired about whether the parties could afford to purchase the Colony Lot. Although Husband denied the same, the only "loan" payment the parties made was the $50,000 payment, applied to the principal, following the sale of the parties' California home. Furthermore, Husband did not list the loan on financial statements until after the loan appeared on Wife's bankruptcy schedules. Given these facts, we cannot say the trial court exceeded its discretion in refusing to charge the home equity with the loan.

III. Stock in Elman Properties, Inc.

$38 Wife argues the trial court exceeded its discretion in not awarding her an equal share of Husband's interest in El-man Properties, Inc. (the Corporation), which administers the pension plan (the Plan) in which Husband, his mother, and his sister have interests. "[All assets acquired by the parties during marriage are to be considered by the trial court when making an equitable distribution, unless the law specifically prevents the court from considering a particular asset." Jefferies v. Jefferies, 895 P.2d 885, 837 (Utah Ct.App.1995).

T 39 Husband acquired a 50% share in the Corporation during the marriage. However, according to Husband's trial testimony, the sole asset of the Corporation is the Plan. Prior to trial, Husband disclosed the present value of his interest in the Plan as $345,000. At trial, the parties stipulated to this present value and the trial court awarded Wife offsetting property.

« 40 Wife alleges the present value of the combined interests of the Plan beneficiaries is $1,085,000 ($345,000 x 8). She further alleges that because the Corporation has approximately $2,000,000 in assets, the Plan may be overfunded. Because the Plan may be overfunded, she argues she should be awarded one-half of Husband's stock.

[ 41 Wife relies on Savage v. Savage, 658 P.2d 1201 (Utah 1988). In Savage, the Utah Supreme Court upheld an in-kind distribution of corporate stock where the evidence failed to establish the stock's value and the husband could not pay the wife her share. See id. at 1208-04. However, Savage is distinguishable from the present case. In Savage, three experts were called to testify as to the stock's value and presented plausible, credible, but conflicting testimony. See id. at 1204. Thus, neither party had established the value of the stock by a preponderance of the evidence. See id. Unlike in Savage, in the present case, no credible evidence was offered to establish the Corporation's value beyond the Plan.

I 42 In essence, the trial court declined to award Wife more than offsetting property equal to the present value of Husband's interest in the Plan because there was no persuasive evidence as to any overfunding. Without such evidence, we cannot say the trial court exceeded its discretion in not awarding Wife 50% of Husband's interest in the Corporation.

IV. Attorney Fees on Appeal

$48 Wife seeks attorney fees on appeal. In divorce actions "where the trial court has awarded attorney fees and the receiving spouse has prevailed on the main issues, we generally award fees on appeal." Rosendahl v. Rosendahl, 876 P.2d 870, 875 (Utah Ct.App.1994). Because Wife has prevailed on the main issues on appeal, she is entitled to attorney fees on appeal. "We [accordingly] remand for [a] determination of the amount of reasonable fees." Id. In awarding Wife fees, the " 'trial court should also take into account the fact that [Wife] was only granted partial attorney fees at trial"" Id. at 875-76 (quoting Hill v. Hill, 869 P.2d 968, 967 (Utah Ct.App.1994)) (alteration in original).

CONCLUSION

€ 44 In sum, we conclude the trial court's distribution " 'achieves a fair, just and equitable result."" Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct.App.1998) (quoting Dunn v. Dunn, 802 P.2d 1814, 1820 (Utah Ct.App. 1990). We accordingly conclude the trial court did not exceed its discretion in awarding Wife a portion of the appreciation on Husband's premarital partnership interests, prorated based on the number of years of Husband's most active management. We further conclude the trial court did not exceed its discretion in not charging the Park City home equity with the Elman Trust Loan. Finally, we conclude the trial court did not exceed its discretion in refusing to award Wife an equal share of Husband's stock in Elman Properties, Inc. We affirm and remand for a determination of reasonable attorney fees due Wife on appeal.

45 I CONCUR: NORMAN H. JACKSON, Presiding Judge.

ORME, Judge

(concurring specially):

[ 46 I concur in the court's opinion, exeept that as to section L.A., I concur only in the result. The basis for my disagreement can be suceinetly stated.

T47 This is, as the main opinion recognizes, a very unusual case. In affirming the trial court's equitable distribution to the wife of a portion of the husband's separate property, the main opinion sweeps too broadly and employs language that might be seized upon as precedential in cases that are not so very unusual,. I do not believe the trial court's allocation can be validated merely because "Wife's efforts freed Husband to grow his premarital partnership interests," and I do not agree that "marital labor augmented Husband's partnership interests."

1 48 Instead, the court's allocation can best be affirmed in this atypical case on a theory of equitable set-off. During the time the husband devoted his energies exclusively to managing his separate interests, the wife took full charge of the financial aspects of the marital estate. Her astute efforts resulted in a considerable enriching of the marital estate and, thus, of the husband. It is entirely fair, then, that she share in some of the gain resulting from his efforts during the same period. In other words, it is only equitable, given the significant responsibilities the wife assumed, that she share in the appreciation of the husband's separate properties attributable to the part of the marriage when the parties allocated their time-their "marital time"-in a way that allowed the husband to focus exclusively on his assets while the wife was focused exclusively on their assets.

      . Eden Roc consists of five buildings, each with approximately 20,000 square feet. Elman Ltd. consists of five buildings with approximately 60,-000 combined square feet. Fulton Ltd. consisted of three buildings, one of which was sold in 2000, leaving two buildings with approximately 60,000 combined square feet. Clementine Ltd. consists of two buildings with approximately 20,-000 combined square feet. The buildings were almost completely rented at the time of trial.

      . The trial court calculated the appreciation as . follows:
      Value of [Husband's] interest in the premarital partnerships as of December 20, 1989-$1,282,154,
      Value of [Husband's] interest in the premarital partnerships as of February, 2000-$5,838,371[,]
      Increase-$4,556,215 ( [Wife's] exhibit 57), 10% ... return on 12/89 value[ ]- $2,096,654,
      Increase in excess of 10% return-$2,191,606,
      Value of the marital interest in the premarital partnerships-(3/13 x $2,191,606)-$504,069.

      . The bankruptcy trustee has sued the Elman Trust seeking to avoid the trust's lien as a fraudulent conveyance.

      . At trial, the parties stipulated that the interest in Elman Ltd. that Husband transferred to Wife during the marriage was marital property. The trial court appropriately accounted for this interest in the property division.

      . We emphasize that this is not the normal circumstance where a spouse reviews premarital stock holdings and makes investment decisions, devoting a few hours to such management, while maintaining a normal occupation. This situation involves very unique facts as to Husband's time spent managing premarital property and Wife's active efforts increasing the value of the marital property.

      . In Schaumberg, we emphasized that we were not "suggest[ing] that payment of a legitimate business expense related to the value or use of an inherited [or premarital] asset converts that asset or a portion of that asset into a marital asset." Schaumberg v. Schaumberg, 875 P.2d 598, 603 n. 1 (Utah Ct.App.1994). In the present case, we are not suggesting Husband's activities as an interest holder in the partnerships, before he assumed active management of the partnerships after his father's death, would convert the appreciation into a marital asset.

      . We also reject Husband's argument that the trial court erred in distributing the equity in the Park City home to Husband because the Elman Trust Loan was listed on Wife's bankruptcy schedules. See State ex rel. Miley v. Parrott, 77 Ohio St.3d 64, 671 N.E.2d 24, 27 (1996) (per curiam) ("The Bankruptcy Code does not define a debtor's interest in property; the answer to that question must be made after reference to state law.... With regard to the present pending state court divorce proceedings, ... the state court [acts] with expertise in such [proceedings] to decide questions that are an inherent part of the divorce process." (Quotations and citations omitted)).

      . Actually, it might have been conceptually easier had the trial court accomplished the same fair result by simply leaving the husband with his separate property, including all of its post-marital increase in value, while explicitly dividing an appropriate part of the marital estate on other than a fifty-fifty basis in recognition of the fact the increase in the value of the marital estate was due to the wife's extraordinary efforts on behalf of the estate while the husband devoted all his energies to his separate property.


author: GOLDEN, Justice.

text:
    2002 WY 63
    David O'BRIEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 00-135.
    Supreme Court of Wyoming.
    April 24, 2002.

      Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos, Representing Appellant.
    Gay Woodhouse, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, and Tammy L. Farmer, Student Intern, of the Prosecution Assistance Program. Argument by Ms. Farmer, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[T1] In this appeal, we primarily consider the instruction a jury should receive when considering whether the elements of aggravated assault and battery are met. Appellant David Wayne O'Brien contends that the trial court improperly defined the term "recklessly under cireumstances manifesting extreme indifference to the value of human life." We agree that this language requires that the State prove that a defendant's conduct exhibited more than recklessness, but we determine that sufficient evidence supported O'Brien's conviction on one count of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(). On this issue and others presented by O'Brien, we find no reversible error and affirm his conviction.

ISSUES

[T2] The parties agree that the following issues are presented for our review:

I. Whether plain error occurred when the jury was erroneously instructed regarding the recklessly under circumstances manifesting extreme indifference to the value of human life component of aggravated assault and battery?
II. Whether there was insufficient evidence to convict O'Brien of aggravated assault under W.S. § 6-2-502(a)()?
III. Whether Nurse Krininger's testimony eliciting statements made by Mr. Foster was improper hearsay under W.R.E. 803(4)?
IV. Whether prosecutorial misconduct occurred during the State's closing argument and in the State's case in chief?

FACTS

[13] On the evening of August 21, 1999, twenty-two year old Jordan Foster reported to two friends that, as he drove around in Gillette, Wyoming, he had been "bothered" by some people in a red Ford Probe. Foster was "cruising," or driving around town, which is an activity many young people in Gillette engage in to meet with friends and visit. Later, Foster was a passenger in a pickup truck driven by his friend, Chris Weber, age 18. Weber's girlfriend, Amanda Jameson, age 17, was also a passenger. The three drove around Gillette and soon encountered the red Ford Probe, which was driven by Shawn Lewis, age 20, with Shelly Lane, age 16, occupying the front seat passenger side, and O'Brien seated in the back. This party was also cruising. O'Brien is Lewis' uncle and is 80 years old. As the two vehicles drove next to each other, the Probe's occupants began calling out insults to the occupants of the pickup truck, The Probe parked in a bank parking lot, and Foster and his friends also pulled into the lot and parked. Weber testified that Foster's demeanor was curious and not angry.

[14] O'Brien, however, emerged from the Probe's back seat appearing angry and stating that he hated cowboys. Weber testified that O'Brien had a bigger build and appeared much older. Foster got out of the pickup truck and walked over to O'Brien to see if there was a problem. O'Brien placed a beer that he had been drinking on the hood of the pickup truck and asked if Foster was seared of him. After Foster asked if he should be, O'Brien punched Foster near the left eye knocking him to the ground. Foster reported that he had been knocked unconscious, and eyewitnesses testified that he did not fight back. Falling on him, O'Brien hit Foster in the head "pretty quick and hard" and about ten or eleven times. O'Brien then stood up, jumped up and down and said, "I am the greatest," repeatedly.

[T5] Lane apologized to Jameson, and all three Probe occupants returned to it and left. Weber and Jameson placed Foster in their pickup truck and drove him to the Campbell County Memorial Hospital emergency room in Gillette. An emergency room nurse, Patty Krininger, testified that Foster was pale, nauseated, in need of stitches, and had a broken jaw, a combination that could cause him to stop breathing. Foster was transported by ambulance to the hospital in Cas-per to undergo surgery. Dr. Donald Greer, a plastic surgeon, observed a severely fractured and displaced jaw, a condylar fracture, a concussion, and a laceration on the forehead. He testified that the broken jaw did not allow Foster to control his tongue, which could fall back and block his airway. A permanent titanium plate was inserted across Foster's fractured jawbone and wires and bands used to set the jaw.

[16] Afterwards, Foster's memory of the incident was impaired, and he could not identify O'Brien. Lane identified O'Brien to police. O'Brien was charged with aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(), convicted by a jury, and sentenced to three to eight years. This appeal followed.

DISCUSSION

Jury Instructions

[17] In his first issue, O'Brien contends that the trial court committed plain error when it improperly provided the jury with the definition of the term "recklessly" rather than providing the jury with a definition of the term "recklessly under cireumstances manifesting extreme indifference to the value of human life" found in Wyo. Stat. Ann. § 6-2-502(a)(i). O'Brien contends that this term required the jury to find a degree of culpability beyond mere recklessness, and the instruction defining the term "reckless" was an inaccurate statement of the law and misleading.

[¥8] No objection to the instruction was made at trial; and under a plain error review, O'Brien must show that the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right. Taylor v. State, 2001 WY 13, ¶16, 17 P.3d 715, 116 (Wyo.2001). Prejudicial error must be demonstrated by appellant, and prejudice will not be demonstrated unless the instruction confused or misled the jury with respect to the proper principles of law. Collins v. State, 854 P.2d 688, 700 (Wyo.1998); Lowseth v. State, 875 P.2d 725, 729 (Wyo.1994). Failure to instruct properly on an element of a crime does not constitute plain error where that element is not contested at trial or where evidence of the defendant's guilt is overwhelming. Miller v. State, 904 P.2d 344, 349 (Wyo.1995).

[19] The jury received the following instructions on the elements of aggravated assault:

Instruction No. 4

The elements of the crime of Aggravated Assault and Battery, as charged in this case, are:
1. The events occurred on or about August 22, 1999.
2, They occurred in Campbell County, Wyoming; 8. The Defendant, David Wayne O'Brien caused serious bodily injury to Jordan Foster; and
4. Intentionally, knowingly or recklessly under cireumstances manifesting extreme indifference to the value of human life.
If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that each of these elements has not been proven beyond a reasonable doubt, then you should find the defendant not guilty.
Instruction No. 5
"Serious bodily injury" means bodily injury which creates substantial risk of death or which causes severe disfigurement or impairment of the function of any bodily member or organ.
Instruction No. 6
An act is "knowingly" or "intentionally" done if it is done voluntarily and purposely; not accidentally, because of a mistake or for some other innocent reason. The State must prove that the defendant's acts were done knowingly or intentionally, but the State is not required to prove that the defendant intended the consequences which may have resulted from the doing of those acts.
Whether acts were knowingly or intentionally done must be determined or inferred from all of the evidence in the case. In making that finding you may consider the acts themselves, the manner in which they were done, the means used, and all the cireumstances surrounding the acts.
Instruction No. 7
Recklessly is different from knowingly or intentionally. Recklessness does not require proof of an intent or purpose to do harm. It is, instead, an utter unconcern about the consequences of one's acts. Receklessness is rash and careless conduct. A person is reckless when he consciously disregards a substantial and unjustified risk that his acts will cause serious harm. The risk must be of such a nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe under the cireumstances.

[110] The State contends that a clear and unequivocal rule of law was not violated because it is not necessary to define a term which is used in the sense of its ordinary meaning, has no distinguishable technical legal meaning, and when no specific statutory definition of the term exists. The State asserts that it is self-evident that more than recklessness is required, and the jury was properly instructed in Instruction No. 4 to find not only that O'Brien acted recklessly but that he did so "under cireumstances manifesting extreme indifference to the value of human life."

[T11]l In this case, to determine whether the jury was properly instructed, it is necessary to interpret the meaning of the phrase "recklessly under cireumstances manifesting extreme indifference to the value of human life." "The accuracy of an instruction to the jury is purely a question of law which we review de novo. If the instruction fails to correctly state the law, reversible error exists." Paugh v. State, 9 P.3d 973, 975-176 (Wyo.2000).

[T12] The aggravated assault and battery statute is the ouly Wyoming statute using the term "recklessly under cireum-stances manifesting extreme indifference to the value of human life," and the Wyoming legislature has not defined that term. Before 1982, the offense of aggravated assault and battery without a dangerous weapon carried a maximum one year county jail term when one was convicted for "unlawfully and maliciously" inflicting upon another person any "grievous bodily harm." Wyo. Stat, Ann. § 6-4-506 (Michie 1977). In 1982, however, Wyoming enacted a comprehensive criminal code based upon the Model Penal Code, and the aggravated assault and battery statute in its present form was passed using the term at issue in this case. That term was derived from the Model Penal Code. Theodore E. Lauer, Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982, 19 Land & Water L.Rev. 107, 132 (1984). Before it was placed in the statute, the tern had not been used in Wyoming.

[113] In many other states, the "extreme indifference" language was preceded by the "depraved heart" and "implied malice" terms to distinguish between homicides such as see-ond degree murder and involuntary manslaughter, and each term was recognized to mean that it contemplated circumstances which make a defendant more blameworthy than recklessness alone. State v. Boone, 294 Or. 630, 661 P.2d 917, 920-21 (1988). Wyoming, however, has no previous decisions on the meaning of "extreme indifference" or "depraved heart." Second degree murder was established when a defendant killed "purposely and maliciously, but without premeditation;" involuntary manslaughter existed when a defendant killed by any "culpable neglect or criminal carelessness." Wyo. Stat. Ann. §§ 6-4-104; 6-4-107 (Michie 1977). In addressing other issues, it was noted that Wyoming juries were instructed that "culpable neglect" and "criminal carelessness," were defined to mean conduct of a "gross or flagrant character, such as would show wantonness or recklessness, and would demonstrate a reckless disregard of human life or the safety of others, or an indifference to consequences equivalent to criminal intent." State v. Sodergren, 686 P.2d 521, 529 (Wyo. 1984) (Thomas, J., specially concurring). So-dergren declared that the distinction between "culpable neglect or criminal carelessness," "reckless disregard for the safety of others," "conscious disregard for the safety of others," "gross negligence," "disregard of consequences which may ensue," "wantonness," "indifference to the rights of others that is equivalent to criminal intent," "evincing a reckless disregard of human life or bodily injury," is de minimus for the purpose of defining a criminal act. Id. at 528. This precedent clarifies that this Court interpreted the term "reckless" when used in a homicide as synonymous with the state of mind necessary to convict for involuntary manslaughter, i.e., conduct equivalent to criminal intent. Id.

[T 14] In 1982, the Legislature revamped Wyoming's assault and battery provisions and provided that bodily injury caused by "recklessness" sufficed for a misdemeanor conviction. The definition for the term "recklessness" appears to have been borrowed from the Model Penal Code. Lauer, swpra, at 181. The Model Penal Code distinguishes between "reckless" and "recklessly under cireumstances manifesting extreme indifference to the value of human life." The Legislature appears to have revised its assault and battery statutory scheme by adopting the language used for these offenses in the Model Penal Code rather than attempting to follow definitions provided by our judicial decision, and we therefore examine the Model Penal Code's definitions of these terms to ascertain legislative intent.

[115] "Recklessly" is defined by the Model Penal Code in basically the same terms as it is in Wyo. Stat. Ann. § 6-1-104(a){ix) (LexisNexis 2001):

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the cireumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

Model Penal Code, § 2.02(2)(c), at 226 (Official draft 1962).

[116] In discussing the term "recklessly under cireumstances manifesting extreme indifference to the value of human life," the Commentary to the Model Penal Code states that this is a "special character" of recklessness required to elevate assault or battery to aggravated assault or battery and is adopted from the definition of murder found in Seetion 210.2(1)(b) of the Code. § 211.1(2)(2) emt. 4, at 189. That discussion states that criminal homicide constitutes murder when it is committed "recklessly under cireumstances manifesting extreme indifference to the value of human life." § 210.2(1)(b) emt. 4, at 21. That Commentary goes on to state that this term is intended to reflect the judgment that there is a kind of reckless homicide that cannot fairly be distinguished in grading terms from homicides committed purposely or knowingly. Id. Stating that conduct amounting to a "gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation" is "ordinary recklessness" that would justify a manslaughter conviction, the Commentary observes that

[in a prosecution for murder, however, the Code calls for the further judgment whether the actor's conscious disregard of the risk, under the circumstances, manifests extreme indifference to the value of human life. The significance of purpose or knowledge as a standard of culpability is that, cases of provocation or other mitigation apart, purposeful or knowing homicide demonstrates precisely such indifference to the value of human life. Whether recklessness is so extreme that it demonstrates similar indifference is not a question, it is submitted, that can be further clarified. It must be left directly to the trier of fact under instructions which make it clear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter.

Id. at 21-22. The Commentary then notes that this type of extreme recklessness, formerly known as the so-called "depraved heart" conduct that allowed murder convie-tions when a defendant killed his friend playing Russian roulette, killed by firing into occupied homes, or killed when he intended to shoot over the head of the victim but missed, would permit a jury to reach the same conclusion under the Code's language. Id. at 22-28. It warns, however, that negligent creation of risk of death, regardless of its extravagance or unjustification, cannot be punished as murder. Under Section 210.2(1)(b), the actor must perceive and consciously disregard the risk of death to another before the conclusion of extreme recklessness can be drawn. Id. at 27-28.

[T17] The Commentaries addressing aggravated assault and battery state that this special character of recklessness, or extreme recklessness, is designed to more severely punish battery where the defendant's state of mind would have justified a murder conviction had his victim not fortuitously lived. § 211.1(2)(a) emt. 4, at 189. By adopting the Model Penal Code's term, "recklessly," to justify a lesser punishment for assault and battery, the Wyoming Legislature plainly intended to distinguish between "recklessly" and "recklessly under cireumstances manifesting extreme indifference to the value of human life" in the same manner as had the Model Penal Code. We, therefore, determine that O'Brien correctly asserts that the jury was not properly instructed when it was provided with the statutory definition of "recklessly" without further proper instruction.

[118] In O'Brien's case, a jury instruction defined recklessness in accordance with the statutory definition which, as we now see, is the "ordinary" recklessness that would warrant a simple battery conviction. The question, thus, is whether the jury was properly instructed when it was provided this definition along with Instruction No. 4 which told the jury that it must find that it was recklessness "under cireumstances manifesting extreme indifference to the value of human life."

[119] O'Brien contends that the trial court erred in presenting all three states of mind to the jury without a special verdict instructing them to identify the applicable state of mind. Accordingly, he contends that if his conduct was not extreme recklessness, then the rule of Bush v. State, 908 P.2d 963 (Wyo.1995), is invoked. That rule states that the verdict must be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected. Id. at 967.

[120] The Model Penal Code provides that when recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. § 2.02(5) at 226. The Explanatory Note to this Code explains that this rule makes it unnecessary to state in the definition of an offense that the defendant can be convicted if it is proved that he was more culpable than the definition of the offense requires. Thus, if the crime can be committed recklessly, it is no less committed if the actor acted purposely. Id. at 228. In other words, if the evidence supports finding that a reasonable jury could have concluded that O'Brien intentionally or knowingly caused serious bodily injury to Jordan Foster, then this special character recklessness is established. In that respect then, O'Brien is not correct that the trial court should have instructed on only one state of mind. We hold that it was harmless error for the jury to be instructed with all three states of mind, i.6., intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life.

[121] O'Brien asserts that the statutory definition of recklessness should not be given in an aggravated assault and battery jury trial, but the jury should instead be given an instruction defining the term "reckless under circumstances manifesting extreme indifference to the value of life" so that the jury will understand that it is required to determine whether the defendant perceived and consciously disregarded the risk of death to his victim before the conclusion of recklessness can be drawn. A Commentary to the Code states that "[gliven the Model Code definition of recklessness, the point involved is put adequately and succinetly by asking whether the recklessness rises to the level of 'extreme indifference to the value of human life' As has been observed, it seems undesirable to suggest a more specific formulation." § 210.2 emt. 4, at 25. © We hold, therefore, that, in an aggravated assault and battery trial, the jury should be given an instruction defining "reckless under circumstances manifesting extreme indifference to the value of human life" rather than just "reckless" as happened in O'Brien's trial. That definition will provide the statutory definition of reckless but must include language explaining that if the jury determines the defendant acted recklessly, the jury must then determine whether that recklessness rose to the level of "extreme indifference to the value of human life." Although this more precise instruction was not given in O'Brien's case, the failure to do so is not plain error because the evidence supports finding that O'Brien intentionally and knowingly seriously injured Jordan Foster.

Sufficient Evidence

[¥22] In his second issue, O'Brien contends that the evidence was insufficient to convict him of causing serious bodily injury recklessly under circumstances manifesting extreme indifference to the value of human life. He again points out that the jury's general verdict makes it impossible to determine under which state of mind standard he was convicted, and he examines whether the evidence was sufficient to find that he had acted "recklessly under cireumstances manifesting extreme indifference to the value of human life."

[123] We again point out that the statutory intent behind the language "intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life" is to establish an equivalent state of mind before conviction is justified. O'Brien contends that, although he was reckless in causing the serious bodily injury to Foster, his conduct, while criminal, did not amount to acts that were "only one step short of murder" or the "functional equivalent of a murder in which, for some reason, death fails to occur." O'Brien cites to a series of Pennsylvania cases reversing aggravated assault and battery convictions after finding that the acts were insufficient to convict, In the first, he states that the Pennsylvania Supreme Court found insufficient evidence to support convicting a defendant who ran a red light while driving intoxicated and hit another vehicle resulting in serious bodily injury. Commonwealth v. O'Hanlon, 589 Pa. 478, 658 A2d 616, 618 (1995). He next notes that Pennsylvania also reversed a conviction for a defendant who came up behind an officer handeuffing his brother, grabbed the officer by the shirt and pants, picked him up and threw him forward into some nearby concrete steps causing him to fracture his collar bone. Commonwealth v. Magnelli, 348 Pa.Super. 345, 502 A.2d 241, 248 (1985). Finally, he provides us with a decision from the Pennsylvania Supreme Court that determined there was insufficient evidence to convict a defendant who had crashed into a bus stand, killing one individual and severely injuring another. That defendant had consumed several beers and become somewhat intoxicated, had then ingested muscle relaxers and driven away at an excessive speed from a party on his way to a bar, rubbed against the curb, left the roadway, crashed into a bus stand and finally smashed into a brick wall leaving no skid marks. The Court ruled that this evidence of recklessness was insufficient to establish the threshold standard for recklessness under circumstances manifesting extreme indifference to the value of human life, and concluded "[wlhile Appellant's actions are clearly criminal, they do not constitute aggravated assault." Commonwealth v. Comer, 552 Pa. 527, 716 A.2d 593, 596 (1998). O'Brien notes that, since these decisions, a statute has been enacted that allows for an aggravated assault by vehicle conviction when driving under the influence.

[124] O'Brien distinguishes our decision in Trujillo v. State, 750 P.2d 1884, 1336-38 (Wyo.1988), where this Court found sufficient evidence to convict the appellant of aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(1). In that case, O'Brien notes that the appellant had punched and broken the victim's jaw, but importantly, the evidence revealed that the appellant had been the aggressor in a fight an hour earlier; had ignored then an earlier warning by police officers to depart from the bar and go home; and the appellant was a trained boxer who knew that he could inflict serious injury with his fists. In comparison, O'Brien asserts that the facts in this case demonstrated a fight between two individuals where one bested the other.

[T25] We appreciate O'Brien's contention that aggravated assault is not an appropriate offense to be charged for the average mutual fight between similarly matched combatants. We do find, however, that it is an appropriate offense to be charged under the particular facts of this case. Here, although much older and bigger, O'Brien attacked without provocation another person, viciously beat him when the victim was unconscious and not responding; O'Brien celebrated triumphantly over the body, and then left the scene. These facts show the jury found that O'Brien intentionally acted, and the issue then was whether he had caused serious bodily injury as defined under the statute. The jury was instructed:

"Serious bodily injury" means bodily injury which creates substantial risk of death or which causes severe disfigurement or impairment of the function of any bodily member or organ.

The State contends that Foster was beaten so savagely that his life was endangered, and that the broken jaw was a bodily injury which created a substantial risk of death. In support, it provided medical testimony that it is rare to see a jaw broken at the back of the joint as the result of a blow from a fist, and the broken jaw resulted in trauma that required surgery to prevent Foster's tongue from blocking his airways. The evidence supports the jury's determination that O'Brien acted intentionally and caused serious bodily injury.

Hearsay

[T26) During her testimony, Nurse Kri-ninger testified that she could not determine from her examination how Foster had sustained his broken jaw and therefore asked Foster if he had provoked somebody. Defense counsel objected on grounds that it was hearsay and a denial of confrontation. The trial court ruled that the nurse could answer because it was for medical diagnosis. The prosecutor then asked the following:

Q. Now, what did he tell you again about his actions as far as starting a fight?
A. He said he didn't do anything. He said he didn't know why he had been hit.
Q. How many times did he say this? Quite frequently?
A. Yes.

On appeal, O'Brien contends that these questions were asked to establish that the fight was unprovoked, not for purposes of medical treatment or diagnosis, and violated the hearsay rule. The State contends that the testimony was admitted properly under an exception to the hearsay rule, W.R.E. 808(4).

[127] Our review of rulings by a trial court, admitting or excluding evidence, is premised upon deference to the trial court, and we do not reverse a case because of evidentiary rulings unless an abuse of diseretion is demonstrated. Horton v. State, 764 P.2d 674, 676-77 (Wyo.1988). "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireamstances and without doing so arbitrarily or capriciously." Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).

[128] Hearsay evidence generally is excluded by W.RE. 802, which provides, "Thlearsay is not admissible except as provided by these rules or by other rules adopted by the Supreme Court of Wyoming or by statute." The definition of hearsay is found in W.R.E. 80l(c): " Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Twenty-three specific exceptions to the hearsay rule, together with a catch-all exception, are set forth in W.R.E. 808 which permits testimony on evidence that W.R.E. 802 otherwise would exclude. Oldman v. State, 998 P.2d 957, 960-61 (Wyo.2000). Rule 808(4) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
ok
(4) Statements for Purposes of Medical Diagnosis or Treatment.-Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

[1291 We have held that "[sItatements which attribute fault or causation generally are not relevant to diagnosis or treatment" and are usually inadmissible under W.R.E. 803(4). Stephens v. State, 774 P.2d 60, 72 (Wyo.1989). We have determined, however, that this exception permits admitting a child's statement identifying her sexual abuser. Blake v. State, 933 P.2d 474, 477 (Wyo. 1997). The State asserts that Nurse Kri-ninger testified to the cause of Foster's injuries as allowed under the exception and did not testify O'Brien was guilty of causing those injuries.

[180] Ordinarily, we use a two-part test for invoking this exception; however, although we believe that the trial court properly allowed Krininger's answer under the exception, the questions and answers that followed that decision were hearsay and were not properly admitted. Erroneous evidentia-ry rulings will not be disturbed on appeal if the error is harmless. Warner v. State, 2001 WY 67, ¶29, 28 P.3d 21, 129 (Wyo.2001). Generally, if other evidence properly established the defendant's guilt then we will find the error harmless. Id. at 180. Here, Kri-ninger's hearsay testimony, that Foster had stated that the attack had been unprovoked, was in addition to testimony provided by eyewitnesses to the actual attack who de-seribed the attack as unprovoked and who also identified O'Brien as the attacker. The State did not refer to these statements of the nurse in its closing, and we find that the jury verdict would not have been different had this testimony been excluded. The error, therefore, is harmless and does not require reversal for a new trial,

Prosecutorial Misconduct

[T81] The prosecutor made the following statement during closing argument:

And what you need to do here is find Mr. O'Brien guilty and send a message to him and to people that might be like him or might have the same idea that they are not going to get away with this. And I think that you will do that, ladies and gentlemen. And I will ask you to do that.

This Court has explicitly disapproved such arguments, finding "the fear in allowing such appeals is that the accused will be convicted for reasons wholly irrelevant to her guilt or innocence." Trujillo v. State, 2002 WY 51, ¶ 9, 44 P.3d 22, 19 (Wyo.2002) (quoting Gayler v. State, 957 P.2d 855, 861 (Wyo.1998)). "Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society's woes is far too heavy a burden for the individual eriminal defendant to bear." Id.

Similarly, "send a message" arguments by prosecutors to juries are universally condemned. The Mississippi Supreme Court in Williams v. State, 522 So.2d 201, 209 (Miss.1988), simply yet colorfully explained the problem with these arguments:
The jurors are representative of the community in one sense, but they are mot to vote in a representative capacity. Each juror is to apply the law to the evidence and vote accordingly. The issue which each juror must resolve is not whether or not he or she wishes to "send a message" but whether or not he or she believes that the evidence showed the defendant to be guilty of the crime charged. The jury is an arm of the State but it is not an arm of the prosecution. The State includes both the prosecution and the accused. The function of the jury is to weigh the evidence and determine the facts. When the prosecution wishes to send a message they should employ Western Union. Mississippi jurors are not messenger boys.

Trujillo at 19 (emphasis in Trujillo ).

[T32] We notice that no objection to these remarks was made at O'Brien's trial; therefore, the error must rise to the level of plain error. "Plain error exists when 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him." Mazurek v. State, 10 P.3d 531, 585 (Wyo.2000) (quoting Yetter v. State, 987 P.2d 666, 668 (Wyo.1999)). We agree with the State that O'Brien was not convicted for reasons wholly irrelevant to his guilt or innocence. This argument was not so prejudicial that it constitutes plain error.

[T33] Finally, O'Brien contends that the prosecutor committed misconduct when, during trial in violation of a pretrial ruling, he engaged in a line of questioning that the trial judge had ruled would be prohibited. Lewis, the driver of the car occupied by O'Brien, was subpoenaed to testify. Lewis was facing eriminal charges of accessory after the fact for his conduct during the police investigation of O'Brien's attack on Foster. Defense counsel advised the trial court that in order to avoid Lewis' refusal to testify based upon Fifth Amendment rights, the prosecutor and defense counsel had reached an agreement with Lewis limiting his testimony to events leading up to the incident, that he would identify O'Brien, and no questions would be asked regarding what occurred after Lewis left the parking lot. In response to the prosecution's concern that Lewis might testify that mutual combat had occurred, the trial court determined that the agreement limited both the prosecution and defense to identification only. The trial court refused the prosecution's request that it be allowed to impeach Lewis with statements that he made afterwards for which he was now charged.

[134] The prosecutor called Lewis to the stand, and the trial court sustained objections by both the prosecution and defense counsel that the other side was questioning on matters beyond the agreement. Despite a record showing that Lewis did not testify concerning any subject other than identification, O'Brien contends that, in violation of W.R.E. 608, the prosecution then questioned Shelly Lane in an attempt to go beyond the trial court's ruling by erroneously impeaching the testimony of Lewis. The prosecution asked Lane the following:

Q. -What was Shawn Lewis in jail for?
A,. Lying to the cops.
Q. Lying to the cops about what?
A. I don't know. Something about accessory after the fact. I think that's when they put him in jail.
Q. Accessory after the fact?
A. (Nods head.)
Q. Accessory after the fact of what?
A. I don't know.
Defense Counsel: Objection, Your honor, as irrelevant.
The Court: Sustained.
Q. Okay. But he was in jail for lying to the police?
A. I think so, yeah.
Q. Do you know what he lied to the police about?
A. No.
Q. Well, do you know what the police questioned him about?
Defense Counsel: Objection, Your Honor. It's irrelevant and no foundation of her knowledge.
The Court: Sustained.
Q. Well, do you know yourself if whether or not Mr. Shawn Lewis ever lied to the police?
It's irrele-Defense Counsel: Objection. vant.
The Court: Sustained.
Q. Do you know if he ever lied to the police about beating up-David O'Brien beating up Jordan Foster? Defense Counsel: Objection. It's irrelevant and no foundation.
The Court: Sustained.
Q. Did you ever hear of a person called Terry Perry?
A. Yeah. Yes.
Defense Counsel: Objection, Your Honor. It's irrelevant. No showing. I don't know where they're at.
The Court: Will Counsel approach the bench.

The record shows that defense counsel objected to each of these questions, and the trial court sustained these objections. The trial judge then called counsel to the bench and admonished the prosecutor to discontinue this line of questioning. The question presented is whether this conduct requires reversal upon appeal.

[185] Prosecutorial misconduct "has always been condemned in this state." Earll v. State, 2001 WY 66, ¶9, 29 P.3d 787, ¶9 (Wyo.2001) (quoting Valerio v. State, 527 P.2d 154, 156 (Wyo.1974)). Whether such misconduct has been reviewed on the basis of harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the basis of plain error, W.R.Cr.P. 52(b) and W.RAP. 9.05, this Court has focused on whether such error affected the accused's "substantial rights." Id. "The accused's right to a fair trial is a substantial right. Wyo. Const. art. 1, §§ 6, 9, and 10; and see, e.g., Jones v. State, 580 P.2d 1150, 1154 (Wyo.1978)." Id. "Before we hold that an error has affected an accused's substantial right, thus requiring reversal of a conviction, we must conclude that, based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused." Id.; Warner, ¶ 18.

[136] In this case, the State's witnesses established that O'Brien had attacked Foster without provocation and severely beaten him. O'Brien contended that Foster was a mutual combatant because he confronted O'Brien. The jury had to determine whether this attack was unprovoked and whether the injuries inflicted were a serious bodily injury as that term is defined in the statute. The prosecutor's violation of the trial court's pretrial ruling was appropriately dealt with by the trial court. Based on the entire record, a reasonable possibility does not exist that, in the absence of the prosecutor's misconduct, the verdict might have been more favorable to the accused.

[187] The conviction is affirmed.

      . Wyo. Stat. Ann. § 6-2-502(a)@i) (LexisNexis 2001) states:
      (a) A person is guilty of aggravated assault and battery if he:
      (i) Causes serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]

      . " 'Recklessly' is defined as the following conduct: A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that the harm he is accused of causing will occur, and the harm results. The risk shall be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation|.]"

      . "[Flirst, the declarant's motive in making the statement must be consistent with the purposes of promoting treatment [or diagnosis]; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis." Stephens, 774 P.2d at 72.