author: Judge STERNBERG.

text:
    Barno MAVASHEV and Rubin Mavashey, Plaintiffs-Appellants, v. WINDSOR INSURANCE COMPANY, Defendant-Appellee.
    No. 02CA1244.
    Colorado Court of Appeals, Div. I.
    May 8, 2003.

      Frankl & Kabler, P.C., Keith E. Frank, Steven R. Kabler, Denver, Colorado, for Plaintiffs-Appellants.
    Kane, Donley & Johnson, P.C., Mark H. Kane, Colorado Springs, Colorado, for Defendant-Appellee.
   Opinion by

Judge STERNBERG.

The determinative issue in this appeal is whether an uninsured motorist (UM) insurance contract that contains a corroboration clause is void as a violation of public policy.

The clause provides that, in a hit-and-run accident where the vehicles do not make contact, the policy will provide coverage only if the fact of the accident is corroborated by evidence other than the testimony of a person making a claim under the policy. We find this provision to be contrary to public policy and therefore reverse the judgment that reached a contrary conclusion.

On the night of January 17, 2000, plaintiff Rubin Mavashey was driving a car insured by defendant, Windsor Insurance Company. His wife, plaintiff Barno Mavashev, and a family friend were also in the vehicle. Allegedly, an oncoming vehicle came into the lane of traffic in which the Mavashey vehicle was traveling, resulting in Mavashevy swerving out of his lane, across the oncoming lane, and into a large rock. There was no contact between the vehicles, the reported oncoming vehicle did not stop following the incident, and no dther witnesses are known to exist. All three occupants of the vehicle were injured in the collision. Windsor paid a claim filed by the friend under the general liability and bodily injury provision of the policy.

The Mavashevs filed a claim for bodily injuries under the UM portion of their policy with Windsor. Windsor denied their claim because they did not have a corroborating, nonclaiming witness, as required by the UM policy agreement. In relevant part, the policy requires that:

If there is no physical contact with the hit and run vehicle the facts of the accident must be proved. [Windsor] will only accept competent evidence other than the testimony of a person making a claim under this or any similar coverage. There is no coverage for property damage.

In granting Windsor's motion for summary judgment, the trial court concluded that the language in the contract does nothing to limit coverage mandated by the Colorado Uninsured Motorists Act, § 10-4-609, C.R.S8.2002. The trial court reasoned that without the challenged language, insurers would have no defense against these types of claims and the increased potential for fraud and collusion. We disagree with the court's ruling.

1.

Colorado courts have previously declined to uphold UM provisions that create heightened or additional procedural requirements. See Huizar v. Allstate Ins. Co., 952 P.2d 342 (Colo.1998)(trial de novo clause invalid); Peterman v. State Farm Mut. Auto. Ins. Co., 961 P.2d 487 (Colo.1998)(consent to sue clause invalid). The exelusions that have been allowed are typically based upon the class of persons or vehicles involved in the accident, so that under those facts the claimant fell outside the protection of the UM statute. See Allstate Indem. Co. v. Gonzales, 902 P.2d 953 (Colo.App.1995)(motoreycle exclusion); Lopez v. Datryland Ins. Co., 890 P.2d 192 (Colo.App.1994)(excluded driver); Keely v. Allstate Ins. Co., 885 P.2d 584 (Colo. exclusion); Williams-Diehl v. State Farm Fire & Cas. Co., 798 P.2d 587 (Colo.App.1989)(owned-but-uninsured exclusion).

A term in a policy may be void and unenforceable "if it violates public policy by attempting to 'dilute, condition, or limit statutorily mandated coverage."" - Terranova v. State Farm Mut. Auto. Ins. Co., 800 P.2d 58, 60 (Colo.1990)(quoting Meyer v. State Farm Mut. Auto. Ins. Co., 689 P.2d 585, 589 (Colo. 1984)). In our view, the policy provision involved here serves as a direct limitation on the mandated coverage.

The coverage is mandated by § 10-4-609(1)(a), C.R.S.2002, which provides that:

No automobile liability or motor vehicle liability policy insuring against loss resulting from lability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state ... unless coverage is provided ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury ... except that the named insured may reject such coverage in writing.

This language has been analyzed extensively by the supreme court, which has observed that:

The purpose of [UM] coverage is to compensate an innocent insured for loss, subject to the insured's policy limits, caused by financially irresponsible motorists. The legislative intent is satisfied by coverage that compensates a person injured by an uninsured motorist to the same extent as one injured by a motorist who is insured in compliance with the law.

Terramova, supra, 800 P.2d at 61 (citation omitted).

The UM statute does not define an uninsured motorist or an uninsured automobile, but divisions of this court have found those terms to include vehicles that have no applicable insurance under the facts and circumstances in which the claim was made. See Borjas v. State Farm Mut. Auto. Ins. Co., 33 P.3d 1265, 1268 (Colo.App.2001); Claire v. State Farm Mut. Auto. Ins. Co., 973 P.2d 686, 688 (Colo.App.1998)(citing State Farm Mut. Auto. Ins. Co. v. Nissen, 835 P.2d 537 (Colo.App.1992), aff'd, 851 P.2d 165 (Colo.1993)).

A division of this court also has held, in the case of a hit-and-run accident where the vehicles did not make contact and where the hit-and-run driver was unidentified, that a clause in the UM policy requiring contact between vehicles was void. When the driver of the vehicle cannot be identified, that driver is held, for purposes of UM coverage, to be uninsured. See Farmers Ins. Exch v. McDermott, 34 Colo.App. 305, 308-09, 527 P.2d 918, 919-20 (1974). Windsor argues that, because the claiming party in McDer-mott was prepared to have an independent witness testify to corroborate the claim, the rationale of that case supports its position. We are not persuaded by Windsor's interpretation of MeDermott as requiring us to uphold the corroboration clause here.

II.

Windsor cites numerous cases from the courts of other states to show that, under the facts here, the contract provision does not violate public policy. These cases, however, do not support its position because either they hold, contrary to McDermott, that physical contact is required, or they rest their holding on the various states' UM statutes that require corroboration. We see nothing in these cases that is applicable to this case because the Colorado statute does not contain a corroboration clause or specifically permit a policy to have such a provision.

In the absence of specific statutory mandates - requiring - corroborative - evidence, courts of other states have almost unanimously declared corroborative evidence requirements invalid. See Walker v. GuideOne Specialty Mut. Ins. Co., 834 So.2d 769 (Ala.2002); Keystone Ins. Co. v. Raffile, 225 Conn. 223, 622 A.2d 564 (1993); Massa v. S. Heritage Ins. Co., 697 So.2d 868 (Fla.Dist.Ct.App.1997); Kramer v. Ins. Co. of N. Am., 54 S.W.3d 613 (Mo.Ct.App.2001); Pak v. Allstate Ins. Co., 15 Pa. D. & C 4th 514 (Pa.Com.Pl.1992); Perez v. Am. Bankers Ins. Co., 81 N.J. 415, 409 A.2d 269 (1979). But see Dunn v. Doe, 206 W.Va. 684, 527 S.E.2d 795 (1999).

We are cognizant of the potential for collusion and insurance fraud in cases such as this, but, contrary to Windsor's argument, our decision here should not necessarily lead to a rash of fraudulent claims. Trial judges and juries are competent to determine whether a claimant has carried the burden of proof and will weed out fraudulent claims. In any event, this argument is better made to the General Assembly than to the courts. See Schlessinger v. Schlessinger, 796 P.2d 1385 (Colo.1990); Meyer v. State Farm Mut. Auto. Ins. Co., supra.

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge VOGT and Judge GRAHAM concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.


source: Caselaw Access Project

author: GREENWOOD, Judge: BENCH, Judge

license: Public Domain

text:
    2003 UT App 181
    STATE of Utah, Plaintiff and Appellee, v. Albert GROSSI, Defendant and Appellant.
    No. 20020151-CA.
    Court of Appeals of Utah.
    June 5, 2003.

      Heather Johnson, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Jeffrey S. Gray, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BILLINGS, BENCH, and GREENWOOD.
   OPINION

GREENWOOD, Judge:

{1 Albert Grossi (Defendant) appeals the trial court's denial of his motion to suppress evidence seized in his home following his arrest. Defendant was convicted for possessing cocaine, a third degree felony, in violation of Utah Code Ann. § 58-87-8(1)(a)@H) (Supp.1999). Defendant pleaded guilty but reserved his right to appeal. We reverse.

BACKGROUND

T2 On November 15, 2000, Officer Knight (Knight) and Officer Beauchaine (Beau-chaine) of the Salt Lake City Police Department responded to a call that two women were being assaulted. When Knight arrived at the seene, a woman, Shandra Karren (Kar-ren), ran toward him and told him that Defendant had dragged her friend by the hair into a basement apartment where he was assaulting her. Knight knocked on 'the apartment door and Defendant appeared at the window, but initially refused to open the door. Knight heard Defendant yell to the alleged victim to tell the officer she was alright. Knight never heard or saw the victim. At some point, Defendant said he would send the victim out the cellar door.

113 While Knight was negotiating with Defendant to open the door, Beauchaine followed a call from the side of the house, near the cellar door. Defendant eventually exited the apartment, leaving the door "cracked" or "shut a little bit" behind him. Knight patted him down for weapons and found nothing. Beauchaine returned and helped Knight handcuff Defendant, whom he arrested for delaying the investigation. After the officers escorted Defendant to the police vehicle, Beauchaine told Knight he saw the victim exit the apartment through the cellar door, and run "northbound through the backyard."

[ 4 According to the officers, while Defendant was waiting to be transported to jail, he "kept saying" that he "wanted the [apartment] secure." Knight, refusing to let Defendant do so himself, went to lock the door. Because the lock required a key, and Defendant did not have a key, Knight entered the apartment to find one.

15 After Knight entered the apartment, Karren came out of the bedroom. She told Knight that she was there to get her coat, as she had stayed in the apartment the night before. Knight testified that Karren was acting very nervous. After doing a pat down of Karren, Knight decided to secure the rest of the apartment: "I wanted to make sure no one else was in there for my safety, not to mention whether the victim had come back through the cellar door...." Knight acknowledged on cross examination that his police reports did not mention that he secured the apartment, in part, to check on the victim.

T6 Because the power was out, Knight used his flashlight to search the apartment. When he looked in the bedroom, he saw multiple drug items in plain view. The officers seized the items and Defendant was charged with four drug related counts. Defendant filed a motion to suppress, alleging that the evidence resulted from an illegal search and seizure. The motion was denied. Defendant then pleaded guilty to Possession of a Controlled Substance, reserving his right to appeal the denial of his motion to suppress. See State v. Sery, 758 P.2d 935, 938 (Utah Ct.App.1988).

ISSUES AND STANDARDS OF REVIEW

T7 Defendant claims he did not consent to Knight entering his apartment. "Consent is a factual finding that should be made based on the totality of the cireum-stances.... [The court of appeals may not substitute its judgment as to a factual question unless the district court's finding is clearly erroneous." State v. Hansen, 2002 UT 125, ¶ 48, 63 P.3d 650.

18 Defendant also argues that even if Defendant gave Knight his consent to enter the apartment, Knight was not justified in conducting a protective sweep. A trial court's findings of fact are reviewed under the clearly erroneous standard, and "the legal conclusions are reviewed for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts." State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App.1996) (citing State v. Pena, 869 P.2d 932, 935-40 (Utah 1994)).

ANALYSIS

19 In this case, there is no dispute that the incriminating evidence was in "plain view." Instead, the issue is whether Knight was lawfully present in Defendant's apartment and, if so, whether the protective sweep exception to the search warrant requirement applies.

"Warrantless searches are unreasonable per se unless they fall within a recognized exception to the warrant requirement of the fourth amendment." Evidence in an officer's plain view is one such exception. However, to establish that the plain view exception applies, the State must demonstrate that: "(1) the officer is lawfully present where the search ... occur(s]; (2) the evidence is in plain view; and (8) the evidence is clearly incriminating."

State v. Gallegos, 967 P.2d 973, 976 (Utah Ct.App.1998) (alteration in original) (citations omitted). Defendant argues that because Knight was not lawfully present in the apartment, the plain view exception does not apply. In contrast, the State maintains that Defendant consented to Knight's initial entrance into Defendant's apartment, and onee inside, the need for a protective sweep arose.

I. Consent

110 The trial court found that Knight entered Defendant's apartment lawfully, based on Defendant's request that his apartment be locked. We affirm the trial court's finding.

Consent is a factual finding that should be made based on the totality of the cireum-stances. Since a district court is in a unique position to assess the credibility of witnesses and weigh the evidence, the court of appeals may not substitute its judgment as to a factual question unless the district court's finding is clearly erroneous.

State v. Hansen, 2002 UT 125, ¶ 48, 68 P.3d 650. In this case, there was testimony from the officers that Defendant "kept saying" that he "wanted the [apartment] secure." Additionally, a neighbor testified about an exchange between Defendant and the police. According to the neighbor, Defendant said, "Let me lock my door." The police responded by saying, "We'll take care of it," to which Defendant responded, "No, let me take care of it [inaudible] couple a minutes." Defendant did not testify at the Motion to Suppress hearing. The trial court held, "in reviewing the testimony of both Officer Knight and [the neighbor], it is clear to the Court that both heard the defendant communicate a need to secure his apartment before he was taken to jail." The trial court therefore found that "Knight lawfully entered the apartment."

111 Based on testimony from the police and Defendant's neighbor, the trial court found there was substantial and competent evidence that Defendant consented to Knight's entry. Further, the trial court specifically found that Knight's testimony was credible. Accordingly, we uphold the trial court's ruling.

II. Protective Sweep

{12 Because we affirm the holding that Knight lawfully entered Defendant's apartment, we next consider whether the protective sweep was lawful. Defendant consented only to Knight's entry to lock the apartment, not to search the apartment. Accordingly, if the protective sweep is invalid, Knight was not lawfully present in the room where the evidence was seized, and the motion to suppress should have been granted.

{13 Although we uphold the trial court's ruling on consent, we reverse the trial court's conclusion that "Officer Knight was justified in conducting a security sweep of the apartment because of his concerns that arose when he saw Ms. Karren inside the apartment." Knight's concerns about Karren's presence and nervous demeanor simply do not meet the standard required for a protective sweep.

114 First, we address the State's argument that this court must apply a reasonableness test when considering whether the warrantless seizure was constitutional,. The State relies on language from the Supreme Court in Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001), stating that the " 'central requirement " of the Fourth Amendment "is one of reasonableness." Id. at 380, 121 S.Ct. at 949 (citation omitted). This requirement has been understood to establish rules, such as warrant requirements, to protect privacy interests. See id. Nevertheless, the Supreme Court has "made it clear that there are exceptions to the warrant requirement." Id. A protective sweep is one such exception.

115 While reasonableness is indeed a guiding principle in search and seizure questions, it is not, as the State suggests, the test we apply. "[In determining reasonableness, we have balanced the intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Maryland v. Buie, 494 U.S. 325, 331, 110 S.Ct. 1093, 1096, 108 L.Ed.2d 276 (1990). While a search of a home is generally unreasonable absent a warrant based on probable cause, "[tlhere are other contexts . where the public interest is such that neither a warrant nor probable cause is required." Id. at 331, 110 S.Ct. at 1097; see also Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) ("Slearches conducted outside the judicial process ... are per se unreasonable under the Fourth Amendment."); State v. Gallegos, 967 P2d 973, 976 (Utah Ct.App.1998) (" Warrantless searches are unreasonable per se unless they fall within a recognized exception to the warrant requirement of the fourth amendment' " (quoting State v. Holmes, 774 P.2d 506, 510 (Utah Ct.App.1989))).

116 To determine if the warrant-less search in this case was reasonable, we analyze the parameters of the protective sweep exception to the warrant requirement. "A 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. Buie, 494 U.S. at 327, 110 S.Ct. at 1094. An officer must have a "reasonable belief based on specific and articula-ble facts which, taken together with the rational inferences from those facts, reasonably warrant[ed] the officer in believing that the area swept harbored an individual posing a danger to the officer or others." Id. at 327, 110 S.Ct. at 1095 (alteration in original) (quotations and citations omitted). officers need not have probable cause to believe a dangerous third person is present, the mere possibility of such a presence is not enough." Hayes v. State, 106 Nev. 543, 797 P.2d 962, 967 (1990). Defendant argues that Knight did not have specific and articulable grounds to search the apartment, as the protective sweep doctrine requires.

117 The relevant facts are as follows. Defendant, the alleged assaulter, was already in police custody and therefore was not a threat to anyone's safety. While Kar-ren appeared in the apartment unexpectedly, and was nervous, she was not known to be violent, to carry a weapon, or to have access to a weapon. Further, Knight testified that he did not hear any suspicious sounds or see any shadows in the apartment. Defense counsel asked Knight, "After you got [Kar-ren] in custody what fact did you have to lead you to believe that there was someone posing a danger to you or your fellow officers in the inner portion of the apartment?" Knight responded, "The fact was that [Karren] was there and she was acting nervous." "Any other facts?" "None except that I hadn't searched] the apartment previously."

T18 Based on these facts, the trial court concluded Knight's protective sweep of the apartment was justified. Although we defer to the trial court's findings of fact, the "legal conclusions are reviewed for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts." State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App.1996) (citing State v. Pena, 869 P.2d 932, 935-40 (Utah 1994)). We disagree with the trial court's determination that Knight's concerns about Karren's presence and demeanor, as well as the unknown status of the alleged victim, justified the protective sweep. These facts and rational inferences therefrom are insufficient to justify the warrantless search. Knight did not have "specific and articulable facts which . reasonably warrant[ed][him] in believing that the area swept harbored an individual posing a danger to [him] or others." Buie, 494 U.S. at 327, 110 S.Ct. at 1095 (first alteration in original) (quotations and citations omitted). Contrary to our dissenting colleague's comments, we do not assail the trial court's factual findings, but determine the trial court exceeded its discretion in applying the law to the facts and thus erred in its legal conclusion that these facts justified the search.

CONCLUSION

«[ 19 We affirm the trial court's finding that Defendant consented to Officer Knight entering his apartment in order to lock it. However, we hold the trial court erred in its conclusion that Knight was justified in conducting a protective sweep of the apartment. Because the protective sweep was not justified, Knight was not lawfully present in the room where the evidence was seized. Therefore, the warrantless search and seizure cannot be upheld on the plain view exception to the search warrant requirement. We reverse the trial court's denial of the motion to suppress, and remand the case for such further proceedings as may now be appropriate.

1 20 I CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge.

BENCH, Judge

(concurring in part and dissenting in part):

'I 21 I concur in the main opinion's analysis of the consent issue. The trial court's finding that Defendant consented to Officer Knight's entry into Defendant's apartment is not clearly erroneous. See State v. Hansen, 2002 UT 125, ¶ 48, 63 P.3d 650. However, I respectfully dissent from the main opinion's conclusion that Officer Knight was not lawfully present in the room where the evidence was seized because "[wle disagree with the trial court's determination that [the facts] justified the protective sweep."

122 The main opinion gives only lip service to the appropriate standard of review. In determining whether the facts justified a protective search, we grant the trial court discretion to apply the legal standard to the facts. See State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App.1996) (citing State v. Pena, 869 P.2d 932, 935-40 (Utah 1994). "Only when the trial judge crosses an existing [legal] fence or when the appellate court feels comfortable in more closely defining the law by fencing off a part of the pasture previously available does the trial judge's decision exceed the broad discretion granted." Pena, 869 P.2d at 938. In simply disagreeing with the trial court, the main opinion fails to recognize that it must conclude that the trial court abused its discretion in a particular way.

123 "A 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L.Ed.2d 276 (1990). According the trial court the proper measure of discretion in the present case, I cannot say that the trial court abused its discretion in concluding that the facts justified a protective search.

124 Officers Knight and Beauchaine returned to secure, at Defendant's request, what they thought was an empty apartment. Both officers entered through the front door, and Officer Beauchaine went to lock "the back entrance to the apartment." As Officer Knight attempted to lock the front door, Ms. Karren unexpectedly emerged from the bedroom. Surprised to find Karren inside and suspecting that she might be burglarizing the apartment, he detained Karren to find out why she was there. Karren explained that she had returned to retrieve her coat, but "ghe was acting definitely a lot more nervous than she was when" she reported the assault of her friend. Concerned that Karren may have retrieved a weapon, Officer Knight conducted a quick pat down search. He then conducted a "security check of the residence" out of concern for his own safety and "to make sure no one else was in there," including the victim who could have "come back through the cellar door that was in the rear of the building." Aided by a flashlight, Officer Knight seanned the bedroom from which Karren had emerged and observed "numerous drug items in plain sight."

125 Given Karren's behavior and the unknown status of the victim, Officer Knight's "cursory visual inspection" of the bedroom where "a person might be hiding" was an appropriate protective search. Id. The trial court properly applied the legal standard to the facts in concluding that this protective search was warranted by Officer Knight's reasonable belief that Defendant's home may have "harbored an individual posing a danger to the officer or others." Id., 110 S.Ct. at 1095.

126 In my view, the trial court did not abuse its discretion in holding that the protective search was justified by the facts. Officer Knight had Defendant's consent to be in the apartment and performed a justifiable sweep of the bedroom from which Karren unexpectedly emerged and he saw the contraband in plain view. The trial court therefore properly denied Defendant's motion to suppress the evidence.

T 27 I would affirm Defendant's conviction.

      . "We recite the facts in the light most favorable to the trial court's findings from the suppression hearing held in this case." State v. Comer, 2002 UT App 219, ¶ 2, 51 P.3d 55 (quotations and citation omitted).

      . Defense counsel argues that the protective sweep doctrine does not apply because Defendant's arrest took place outside the apartment, rather than inside. "Although it is true that Bute involved an in-home arrest, courts have recognized that the same exigent circumstances present in Buie can sometimes accompany an arrest just outside of a residence or other structure." United States v. Cavely, 318 F.3d 987, 995 (10th Cir.2003).

      . Additionally, Knight had no knowledge, and there was no indication, that the apartment was the scene of drug production or sales. Courts have upheld protective sweeps where there was knowledge or a clear indication of drug activity, because of the danger surrounding such operations. See United States v. Cavely, 318 F.3d 987, 996 (10th Cir.2003) (upholding protective sweep where there was a clear indication that methamphetamine production was ongoing, large amounts of cash and drugs were known to be in the defendant's possession, officers saw defendant carrying an explosive fuel, defendant stated that a friend was inside, and firearms were previously found in the house); see also United States v. Walsh, 299 F.3d 729, 734 (8th Cir.2002) (noting risks of methamphetamine production).

      . The State suggests in its brief that the warrant-less search was also lawful under the emergency aid doctrine. That doctrine only applies if the following requirements are met:
      (1) Police have an objectively reasonable basis to believe that an emergency exists and believe there is an immediate need for their assistance for the protection of life.
      (2) The search is not primarily motivated by intent to arrest and seize evidence.
      (3) There is some reasonable basis to associate the emergency with the area or place to be searched. That is, there must be a connection with the area to be searched and the emergency.
      Salt Lake City v. Davidson, 2000 UT App 12, ¶ 12, 994 P.2d 1283 (quotations and citation omitted). Even if the alleged victim had returned, the emergency aid doctrine does not apply. After being told that she jumped a fence and ran away, it would not have been reasonable for Knight to believe that there was "an immediate need for [an officer's] assistance for the protection of life." Id. (quotations and citation omitted).


author: THORNE, Judge:

text:
    2003 UT App 179
    STATE of Utah, Plaintiff and Appellee, v. Thomas Howard SMITH, Defendant and Appellant.
    No. 20010817-CA.
    Court of Appeals of Utah.
    June 5, 2003.

      Linda M. Jones, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney Generals Office, Mark W. Baer, Janis K. Macanas, and Kris C. Leonard, Assistant Attorneys General, Salt Lake City, for Appellee.
    Before JACKSON, P.J., and DAVIS and THORNE, JJ.
   OPINION

THORNE, Judge:

1 Defendant Thomas Howard Smith appeals his convictions for failure to file a tax return, a third degree felony, in violation of Utah Code Ann. § 76-8-1101(1)(b) (1995), and willful evasion of income tax, a second degree felony, in violation of Utah Code Ann. § 76-8-1101(1)(c) (1995). We affirm his convictions, however, we reverse and remand the trial court's restitution order for reconsideration and the entry of substantive findings to support its eventual order.

FACTS

2 Beginning in 1987, Smith stopped filing state income tax returns with the State of Utah. Due to his failure to file, the Utah State Tax Commission (Commission) performed non-filing audits on Smith for the years 1998 through 1995, resulting in an assessment against Smith. Smith petitioned for a redetermination, however, he failed to appear for a hearing on the matter and the Commission entered a default order affirming its earlier assessment.

1 3 In 1995, Smith operated a business out of his home through which he provided tax assistance, assistance with bankruptey, and legal research to a variety of clients for a fee. The clients usually paid the fee by check to either the F.0O.LA. Research Center, the Citizen's Legal Library Trust, or to John Haas Burrell, and Smith deposited the money in similarly entitled bank accounts. Payments made directly to Smith were also deposited in the aforementioned bank accounts. Smith was either the sole signatory or had cosigning authority on all three accounts. During 1995, Smith deposited over $66,000 in these three accounts. However, Smith filed no 1995 state tax return.

T4 At various times throughout 1995, Smith withdrew over $7,500 from the F.OILA. account to pay the balance of the mortgage remaining on his mobile home and to pay the rental fees for space at his mobile home park. Smith also paid all of his 1995 personal utility bills from the F.O.ILA. account, as well as drew funds from each of the accounts to purchase groceries at Ream's, Dan's, and Smith's grocery stores.

€5 In 1999, the Commission instituted an investigation into Smith,. As a result, the Commission determined that Smith was running a home business and paying his personal expenses with business income that had been deposited in bank accounts for the F.O.LA. Research Center, the Citizen's Legal Library Trust, and John Haas Burrell. Relying on the deposits received into these accounts, minus certain non-income transactions and subject to the standard set of deductions available to Smith, the Commission determined that Smith's taxable income for 1995 was $45,308.65. The State then charged Smith with two counts of criminal tax evasion, each based upon a separate act of Smith and each relying on different facts to establish the required elements.

T6 The trial court appointed counsel to represent Smith, however, after meeting with counsel, Smith asked the court to allow him to proceed pro se. The trial court consented to Smith's request, but then appointed Smith's former counsel in a standby capacity. Following a three-day jury trial, Smith was convicted of both charges and the court sentenced Smith to concurrent terms of zero to five years and one to fifteen years in prison. However, the court then suspended the prison term and placed Smith on probation, provided he cooperate with the Commission and file all of his outstanding tax returns. On September 7, 2001, Smith's standby counsel filed a timely notice of appeal. On September 21, 2001, the State filed a timely motion to clarify the sentencing order with the trial court wherein the State, inter alia, requested that the trial court impose over $6,000 in restitution in addition to the punishment already imposed. On September 26, the trial court granted the State's motion. Smith's standby counsel then filed a timely notice of appeal from the clarification order. We consolidated these appeals, resulting in this opinion that addresses all of the issues raised by Smith and his counsel on appeal. We affirm in part and remand in part.

ISSUES AND STANDARDS OF REVIEW

T7 Smith first argues that the trial court erred in refusing to merge the two charges of tax evasion. Smith's argument presents a question of law that we review for correctness. See State v. Diaz, 2002 UT App 288,-¶ 10, 55 P.3d 1131, cert. denied, 63 P.3d 104 (Utah 2003).

T8 Smith next argues that the trial court erred in failing to submit to the jury his proposed "Good Faith Defense" instruction. "Whether the trial court's refusal to give a proposed jury instruction constitutes error is a question of law, which we ... review for correctness." State v. Stringham, 2001 UT App 13, ¶ 11, 17 P.3d 1153 (quotations and citations omitted).

T9 Smith also argues that the evidence was insufficient to support both convictions. "[We will reverse a jury verdict only when we find that the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust." Id. at $12 (quotations, citations, and alterations omitted). | *

10 Finally, Smith argues that under the cireumstances of this case the trial court erred in ordering restitution. "[The imposition of restitution is a matter left to the discretion of the [trial] court." State v. Robertson, 932 P.2d 1219, 1233 (Utah 1997), overruled on other grounds by State v. Weeks, 2002 UT 98, ¶ 24, 61 P.3d 1000.

ANALYSIS

T11 Smith argues that the trial court erred in failing to either merge his convie-tions because they implicate the doctrine of multiplicity or vacate one as a lesser included offense. - Under the Double Jeopardy Clause of the United State's Constitution, the state may not twice punish a person for the same offense. See U.S. Const. amend. V; see also Brown v. Ohio, 432 U.S. 161, 165-66, 97 S.Ct. 2221, 2225, 58 L.Ed.2d 187 (1977). Here, Smith argues that his dual convictions violate this tenet either because one crime is a lesser included offense of the other, or because the acts were part of a single erimi-nal episode.

12, "To identify a lesser included offense, we must first determine if the lesser offense is 'established by proof of the same or less than all the facts required to establish the commission of the offense charged." State v. Yanez, 2002 UT App 50,¶ 21, 42 P.3d 1248 (quoting State v. Ross, 951 P.2d 236, 241 (Utah Ct.App.1997)), cert. denied 53 P.3d 1 (Utah 2003); see also State v. Wood, 868 P.2d 70, 90 (Utah 1993) ("Under the Fifth Amendment, 'the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not'") (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1982)), overruled on other grounds by State v. Mirquet, 914 P.2d 1144 (Utah 1996). "If the greater offense 'cannot be committed without necessarily having committed the lesser, then the lesser offense merges into the greater crime"" Yanez, 2002 UT App 50 at ¶ 21, 42 P.3d 1248 (quoting Ross, 951 P.2d at 241). Thus, unless the crimes involved " 'have multiple variations,' " we will "look only to the statutory elements of the two crimes in making this determination." Id. (citation omitted). If, however, from the statutory language we conclude that it is possible for one statute to be a lesser included offense of the other, " 'we must look beyond the statutory elements' and compare the evidence." Id. (citation omitted).

113 In the instant case, Smith was convicted of violating both Utah Code Annotated section 76-8-1101(1)(b) (Subsection (1)(b)) and Section 76-8-1101(1)(c) (Subsection (1)(c)). Subsection (1)(b), in relevant part, states: |

Any person who, with intent to evade any tax or requirement of Title 59 [the Utah Tax Code] or any lawful requirement of the State Tax Commission, fails to make, render, sign, or verify any return ... is guilty of a third degree felony.

Utah Code Ann. § 76-8-1101(1)(b) (1999). Thus, to conviet Smith of violating Subsection (1)(b), the State was required to prove that Smith failed to file a state tax return with the intent to evade any (a) tax, (b) requirement of Title 59, or (c) lawful requirement of the State Tax Commission.

114 Subsection (1)(c), in relevant part, states, "[alny person who willfully attempts to evade or defeat any tax or the payment thereof is, in addition to other penalties provided by law, guilty of a second degree felony...." Therefore, to obtain a conviction of Smith for violating Subsection (1)(c), the State was required to prove that Smith willfully attempted to evade or defeat any tax or payment. Thus, because there are clearly multiple variations of conduct that would violate Subsection (1)(c), including the wiliful failure to file a tax return, we must look to the evidence to determine if Smith's conviction for violating Subsection (1)(b) is a lesser included offense of his conviction for violating Subsection (1)(c).

T 15 Here, after repeated attempts by the Commission to induce Smith to file a return for 1995 and pay any outstanding tax liability, the State charged Smith with willfully attempting to evade his 1995 income tax liability and failing to file his 1995 income tax return. To convict Smith of willfully attempting to evade his 1995 tax liability, the State provided evidence that Smith ran a business from his home that generated over $65,000 in revenue for the year. However, the entire corpus of the revenue stream was deposited in three bank accounts that were accessible to Smith, but that were not opened in his name or in the name of his business. The State further offered proof that periodically throughout 1995 Smith withdrew funds from these accounts to pay for personal expenses ranging from orthodontic care for his daughter to settling the balance owed by Smith on a mobile home contract. Finally, the State offered uncontroverted proof that

Smith reported no income in 1995 and paid nothing in taxes for that year.

116 To prove that Smith failed to file a tax return, in violation of Utah Code Annotated Section 76-8-1101(1)(b), the State showed that Smith not only failed to file a return, but, in fact, refused to file a return for 1995. Further, because intent "may be inferred from the actions of the defendant or from surrounding cireumstances," State v. Colwell, 2000 UT 8,¶ 43, 994 P.2d 177 (quotations and citation omitted), the State offered evidence of Smith's behavior and course of conduct from 1987 forward to show that Smith's failure to file was motivated by an intent to evade either (a) any tax, (b) any requirement of Title 59, or (c) any lawful requirement of the State Tax Commission. See Utah Code Ann. § 76-8-1101(1)(b). Thus, because the State relied upon materially different acts to prove that Smith violated both Subsection (1)(b) and Subsection (1)(c), Subsection (1)(b) is not a lesser included

offense of Subsection (1)(c) in the case before us.

117 Smith also asserts that the two charges should merge as acts included within a single criminal episode. We disagree. Utah Code Annotated section 76-1402 establishes:

A defendant may be prosecuted in a single criminal action for all separate offenses arising out of a single criminal episode; however, when the same act of a defendant under a single criminal episode shall establish offenses which may be punished in different ways under different provisions of this code, the act shall be punishable under only one such provision.

Utah Code Ann. § 76-1-402(1) (1999). In the instant case, there is no question that the State relied upon separate acts to convict Smith of his multiple violations, however, Smith argues that statements made by the Utah Supreme Court in State v. Kimbel, 620 P.2d 515 (Utah 1980), and State v. Crosby, 927 P.2d 638 (Utah 1996), enlarge the plain language of section 76-1-402. Smith relies on one passage, included in both cases, wherein the supreme court stated:

"The general test as to whether there are separate offenses or one offense is whether the evidence discloses one general intent or discloses separaté and distinct intents. The particular facts and cireumstances of each case determine the question. If there is but one intention, one general impulse, and one plan, even though there is a series of transactions, there is but one offense."

Crosby, 927 P.2d at 645 (quoting Kimbel, 620 P.2d at 518); Kimbel, 620 P.2d at 518 (quoting People v. Howes, 99 Cal.App.2d 808, 222 P.2d 969 (1950)).

T 18 In Kimbel, the defendant was charged with, and convicted of, felony theft based upon the aggregate value of items he had stolen over a period of time. See Kimbel, 620 P.2d at 517-18. The defendant argued that the "evidence showed two distinct thefts," id., neither of which individually rose to the level of a felony; thus, his conviction and punishment should have been for no more than misdemeanor theft. See id. at 518. The supreme court, however, foreclosed the defendant's argument, noting only that it was proper to consider both acts of embezzlement and acts of theft that occurred over a period of time as a continuous transaction so long as the State proved the continuous intent to steal on the part of the thief. See id. Similarly, in Crosby, the court noted "that although the transactions underlying Crosby's theft convictions occurred over a period of time, they were part of a single plan and should have been charged as a single offense." Crosby, 927 P.2d at 645. When viewed in isolation, these cases seem to support Smith's position. However, a careful review of the language of section 76-1-402 reveals the flaw in Smith's argument.

T19 Section 76-1-402 applies to cases where "the same act" can be punished under different provisions. Id. (emphasis added); see also State v. Suarez, 736 P.2d 1040, 1042 (Utah Ct.App.1987) (highlighting the meaning of the phrase "the same act"). We find the cireumstances of this case more analogous to the cireumstances in Suarez than to the circumstances in either Crosby or Kim-bel. In Crosby, we have a case that involved theft over time, an act involving proof of the same elements, which ultimately was determined to be a single act. See Crosby, 927 P.2d at 645. Similarly, in Kimbel we have a situation involving theft over time, an act that involves proof of the same elements and, much like Crosby, the supreme court determined Kimbel's behavior to be a single act worthy of felony prosecution. See Kimbel, 620 P.2d at 518.

T20 In Suarez, however, the defendant was convicted of three counts of forcible sexual abuse of a minor stemming from a single episode. See 786 P.2d at 1041. Following his conviction, the defendant appealed and argued, inter alia, that two of his convictions stemmed from a single criminal episode where both involved the "touching of the genitals of the victim." Id. at 1042. In refuting his argument, we stated:

Defendant's argument is flawed in that he first placed his mouth on the victim's breast, the taking of indecent liberties, and then placed his hand on her vagina. These are separate acts requiring proof of different elements and constitute separate offenses.

Id. (emphasis added). We conclude that Suarez presents a situation much more analogous to the instant case. Here, Smith was convicted of willful attempted tax evasion because of his concerted effort to hide his income from detection by the Commission through the use of three proxy bank accounts and his concerted efforts to ensure that virtually none of the payments made to his business were made in either his name or the name of his business. His conviction for failure to file a tax return rested solely on his clear failure or unwillingness to comply with the known requirement to file a return. Thus, as in Suarez, we conclude that "these are separate acts requiring proof of different elements and constitute separate offenses," id., and therefore Smith's convictions are not subject to merger under the single criminal episode doctrine.

121 Smith next argues that the trial court erred in refusing to submit his proposed "Good Faith Belief" instruction to the jury. "' "Failure to give [al requested jury instruction[ ] constitutes reversible error only if the[ ] omission tends to mislead the jury to the prejudice of the complaining party or insufficiently or erroneously advises the jury on the law.""" State v. Stringham, 2001 UT App 13,¶ 17, 17 P.3d 1153 (quoting Summerill v. Shipley, 890 P.2d 1042, 1044 (Utah Ct.App.1995) (additional citation omitted)). We have heretofore declined to require a good faith instruction in criminal trials, opting instead to adopt the majority position that " 'a jury finding that the defendant has acted knowingly and willfully is inconsistent with a finding that the defendant acted in good faith'" Id. at 120 (quoting United States v. Gross, 961 F.2d 1097 (3d Cir.1992)). Thus, "if a jury instruction 'already contains a specific statement of the government's burden to prove the[ ] elements of the crime, the good faith instruction is simply a redundant version of the instruction on those elements'" Id. (quoting Gross, 961 F.2d at 1103). Accordingly, so long as the instructions submitted to the jury specifically address the government's burden to prove that Smith knowingly or intentionally committed tax evasion, the trial court's refusal to submit Smith's proposed instruction to the jury was not error.

122 After examining jury instructions submitted by both the State and Smith, the trial court submitted a packet of thirty-two instructions to the jury. Instruction seven explained that the jury must find that the State had proven its case beyond a reasonable doubt and explained that proof beyond a reasonable doubt

does not require proof to an absolute certainty. Now by reasonable doubt is meant a doubt that is based on reason and one which is reasonable in view of all the evidence. It must be a reasonable doubt and not a doubt which is merely fanciful or imaginary or based on a wholly speculative possibility.

Instruction twenty-eight informed the jury that a person's conduct was intentional or willful "when it is his conscious objective or desire to engage in the conduct or cause the result." Through instruction thirty-three, the jury was informed that to find Smith guilty of failure to make, render, sign or verify a tax return, in violation of section 76-8-1101(1)(b), they must find that he "intentionally or willfully evaded" any applicable tax or requirement for the year 1995 and that he "[flailed to make, render, sign, or verify any return or to supply information within the time required." Similarly, instruction thirty-four informed the jury that to convict Smith of willful evasion of income tax, in violation of section 76-8-1101(1)(c), they must find beyond a reasonable doubt that he willfully or intentionally attempted to evade any or all taxes applicable to the income he received in 1995. Finally, the court took great pains to instruct the jury concerning the definition of a Utah resident for tax purposes, the definition of taxpayer under Utah law, the general meaning of taxable income, the applicable meaning of gross income for tax purposes, and the definition of exempt income for tax purposes.

[ 23 These instructions, when read in concert, fully explained to the jury its burden. The instructions fully explained the elements of the crime, the requisite intent, and the concept of reasonable doubt. Accordingly, the trial court did not err in refusing to submit Smith's proposed good faith instruction because the instructions that were submitted to the jury "ensured that a jury finding of good faith would lead to acquittal." Stringham, 2001 UT App 18 at ¶ 23, 17 P.3d 1153; cf. United States v. Neujahr, 1999 WL 125718, **5-6, 1999 U.S.App. LEXIS 3770, **16-17 (4th Cir. March 10, 1999) (noting "the [United States] Supreme Court has decided that it is not necessary that a trial court issue a separate good faith instruction").

124 Smith next argues that the evi-denee was insufficient to support a conviction for either tax evasion or the willful failure to file a tax return. Smith's argument focuses solely on his assertion that to prove either offense, the State had to prove that Smith was required to file a federal income tax return for 1995.

125 Smith, however, points to no authority that contradicts or contravenes previous decisions issued by the Utah Supreme Court expressly rejecting this argument. See Nelson v. Utah State Tax Comm'n, 903 P.2d 939, 940 (Utah 1995); Jensen v. State Tax Comm'n, 835 P.2d 965, 969-71 (Utah 1992). In Nelson, the supreme court stated that "the duty to file a [state tax] return arises when a person earns income, not when his or her income is assessed for tax purposes." Nelson, 903 P.2d at 940. The court's treatment of the argument in Jensen was equally concise. In Jensen the court explained:

Federal taxable income is defined by the Utah Code as taxable income under 26 U.S.C. § 63. Section 68 of title 26 of the United States Code, in conjunction with section 61, defines taxable income as all income from whatever source derived, including gross income derived from a business and compensation for services, such as fees, commissions, and fringe benefits.

Jensen, 835 P.2d at 969-70 (citations omitted). Thus, the court concluded, "[tJax liability arises from the earning of income," and not from the assessment of tax liability by the federal government. Id. We can see nothing in our subsequent case law, or in the Utah Code, that alters this analysis. Therefore, we conclude the duty to file a federal tax return is not a predicate element of either state income tax evasion, or the willful failure to file a state income tax return. Accordingly, Smith's argument concerning the sufficiency of the evidence supporting his conviction is without merit, and we affirm the jury's verdict.

Restitution

A. - Preservation

26 Smith's final argument centers on the correctness of the trial court's restitution order. Smith argues that the trial court erred in ordering restitution without affording Smith either a hearing or an opportunity to be heard and that the trial court failed to consider the mandatory factors set forth in Utah Code Annotated section 76-8-201(8)(c) (1999). See id. The State responds that Smith waived any objection to the imposition of restitution through a letter he sent after restitution was imposed. We first address the State's waiver argument.

127 " '[Als a general rule, claims not raised before the trial court may not be raised on appeal"" State v. Cram, 2002 UT 37,¶ 9, 46 P.3d 230 (quoting State v. Holgate, 2000 UT 74,¶ 11, 10 P.3d 346). "[T]he doe-trine of waiver has application if [a] defendant{ ] fail{s] to raise claims at the appropriate time at the trial level, so the judge has an opportunity to rule on the issue."" Id. (quoting State v. Emmelt, 839 P.2d 781, 783-84 (Utah 1992)). "To preserve a claim or an objection for appellate review, the defendant must raise a timely or contemporaneous claim or objection." Id. In the instant case, after the trial court issued its memorandum ordering Smith to, inter alia, pay over $6,000 in restitution, Smith filed an objection. Through his objection, Smith stated that he "objects to and moves the Court to summarily deny the Plaintiffs proposed order on grounds that the Court lacks jurisdiction to grant the relief requested (no hearing is needed) and sets forth his reasons below." Thus, Smith affirmatively waived his right to a hearing on the issue of restitution.

128 However, while his objection document is inartfully drawn, a cursory review of the document supports his contention that he objected to the amount he had been ordered to pay, did not understand why the trial court had settled on that amount, and saw no reason to conduct a hearing when it was clear, at least in his mind, that the State's request was so obviously flawed. Accordingly, Smith preserved his argument concerning the quality of the trial court's findings.

B. Basis For The Imposition of Restitution

129 "In our view, subsection 76-3-201(4)(d)(i) does not require that a sentencing court reference on the record the factors listed in subsections 76-3-201(8)(b) and (c). Rather, it merely states that the sentencing court set forth the reasons for its restitution decision in the record." State v. Weeks, 2002 UT 98,¶ 25 n. 11, 61 P.3d 1000. is no mandatory requirement in the language of the statute that a sentencing court make a record setting forth its reasoning as to each of the factors in its restitution order, only that it consider each factor and make a ree-ord setting forth the reasons for its decision." Id. at 128. Here, the trial court order sets forth that:

The defendant is hereby Ordered as follows in addition to anything already ordered in this case:
(1) File all past Utah State returns from 1990 to present;
(2) That the filings must account for income and expenses of the defendant;
(3) That the defendant must present supporting documentation with such returns; (4) That restitution is hereby set at $6,105.94, for purposes of this criminal ease only, but that this amount does not bind the Utah State Tax Commission, and further only relate(s) to tax year 1995.

130 In the absence of any additional record findings, we are foreed to limit our review to the language of the restitution order. Based upon the language of this order, Smith's confusion concerning the restitution amount is easily understood. Nowhere in the order does the court explain its rationale for the amount ordered, nor does it disclose the reasoning underlying its decision. Thus, we remand this issue to the trial court for reconsideration of its restitution order and the entry of findings supporting whatever amount is eventually assessed against Smith.

CONCLUSION

£31 The trial court properly refused Smith's motion to merge the two charges levied against him because he failed to demonstrate that one was a lesser included offense of the other or that the convictions fell under the single criminal episode doctrine. The trial court also did not err in refusing to submit Smith's good faith instruction to the jury because the instructions that were submitted fully explained the elements of the crimes and the level of intent that the jury was required to find to convict. Moreover, contrary to Smith's assertion, the evidence was clearly sufficient to support both convie-tions. Finally, while Smith affirmatively waived his right to a restitution hearing, the trial court erred in failing to set forth the reasons underlying the restitution order on the record.

[ 32 Accordingly, we affirm Smith's convie-tions for willful evasion of income tax and failure to file an income tax return. However, we remand the issue of restitution to the trial court to allow the trial court the opportunity to make findings in support of an appropriate restitution order.

33 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and JAMES Z. DAVIS, Judge.

      . The deductions used in calculating Smith's income did not include business deductions or other deductible expenses because Smith did not make an effort to establish these deductions with the Commission.

      . Prior to standby counsel filing her notice of appeal, Smith had filed a pro se notice of appeal with this court. However, we granted standby counsel's motion to strike Smith's pro se notice following which this appeal was timely filed.

      . While Smith's counsel separated the arguments out as argument of standby counsel and argument of pro se defendant, each of the arguments presented were contained in one brief that comported fully with rule 24 of the Utah Rules of Appellate Procedure. While we find counsel's candor refreshing, so long as the brief and the arguments comport with the rules, we will address their merits.

      . The State argues that Smith failed to preserve this issue because any objection raised to the multiplicity of the charges was made prior to Smith's conviction. In making this argument, the State relies on a footnote included in State v. Hawatmeh, 2001 UT 51,¶ 17 n: 3, 26 P.3d 223. The State's reliance, however, is misplaced. The footnote states, in relevant part, "[State v. Finlayson, 2000 UT 10, 994 P.2d 1243] is not applicable to the instant case, however, because we are not dealing with corvictions for aggravated kid-naping, but merely aggravated 'kidnaping charges." Id. The State interprets this language to mean that the issue of merger cannot be properly considered "until after a jury has rendered its verdict and defendant is subject to multiple convictions for the same act." However, a brief review of Finlayson clearly contradicts this interpretation. In Finlayson, the supreme court reversed the defendant's conviction after concluding that his trial counsel had provided ineffective assistance. See 2000 UT 10 at ¶26, 994 P.2d 1243. In drawing this conclusion, the court examined the nature of the charges arrayed against the defendant and determined that "the facts of this case do not support a conviction for aggravated kidnaping ... [yjet defendant's counsel made no objection to this charge, and failed to raise this at any time, either during trial, or following the' conviction on a motion to vacate." Id. at 124 (emphasis added). The court further stated that "[ofbjecting to the aggravated kidnap-ing charge in the trial court or moving to vacate the conviction would have precluded that court from properly allowing it." Id. at 125 (emphasis added). tC
      Moreover, the specific procedural stance of Hawaitmeh is vital to understanding footnote three. Hawatmeh presented the supreme court with an appeal from a magistrate's decision, made at the bindover phase, to merge an aggravated kidnaping charge into the other crimes alleged in the information. See id. 2001 UT 51 at T1, 26 P.3d 223. Thus, in footnote three, the court was merely explaining that double jeopardy considerations were not properly implicated at the bindover phase of a criminal prosecution. See Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 2541, 81 LEd.2d 425 (1984) ("'While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting [defendants] for such multiple offenses in a single prosecution."). Accordingly, by submitting his "Motion to Dismiss Multiplicious [sic] Charges," Smith preserved this issue. -

      . Because the statute remained unchanged between 1995 and 1999, we cite to the 1999 version. .

      . On appeal, Smith urges upon this court his view of the standard adopted by several federal circuit courts when interpreting federal criminal tax law. See United States v. Doyle, 956 F.2d 73 (5th Cir.1992) (reversing the defendant's convictions for willful tax evasion based upon the trial court's failure to submit a lesser included offense instruction after the defendant had raised a viable good faith defense); United States v. Kaiser, 893 F.2d 1300 (11th Cir.1990) (reversing the defendant's conviction for willful failure to file a tax return because the government had proved the lesser included offense as the act necessary to prove the greater offense); United States v. Snyder, 766 F.2d 167 (4th Cir.1985) (vacating defendant's conviction for failure to file a tax return after concluding that the charge was a lesser included offense of the defendant's conviction for tax evasion); United States v. Buckley, 586 F.2d 498 (5th Cir.1978) (vacating three of the defendant's convictions for willful failure to file a tax return as lesser included offenses to his convictions for willful tax evasion); United States v. Newman, 468 F.2d 791 (5th Cir.1972) (merging the defendant's convictions for willful failure to file a tax return with his convictions for willfully evading income tax). However, much like the courts of our sister states, see, e.g., State v. Long, 121 NM. 333, 911 P.2d 227, 229 (N.M.Ct.App.1995) (stating "[wle have previously rejected a defendant's contention relying on federal law in a tax case because that law was not persuasive notwithstanding the similarity of state and federal tax statutes"), we will adopt the analysis and logic of federal courts only to the extent that we find the reasoning persuasive. Moreover, after examining the cases urged upon us by Smith, we have concluded that Smith has read the holdings of these cases, and their effect, too broadly.
      The court in Doyle reversed the defendant's convictions not because the willful failure to file an income tax return is per se a lesser included offense of attempted willful tax evasion, but rather because the trial court had failed to instruct the jury that under the facts of the case the willful failure to file a tax return was a lesser included offense of willful tax evasion. See Doyle, 956 F.2d at 75-76. In Kaiser, the Eleventh Circuit vacated the defendant's conviction because the United States had relied solely upon the defendant's failure to file an income tax return to prove both his willful tax evasion charge and his willful failure to file a tax return charge. See Kaiser, 893 F.2d at 1307. In making this decision, the court stated "[the other circuits that have considered this issue have similarly concluded that filing a false return is a lesser included offense of tax evasion by filing a false return and that therefore consecutive punishments for both offenses are impermissible." Id. at 1306 (emphasis added). In Snyder, the Fourth Circuit adopted the analysis of the Buckley court stating " '[wlhere one of the affirmative acts of evasion relied upon by the government in proving attempted tax evasion under Section 7201 is the failure to file an income tax return, failure to file is a lesser included offense, and Congress did not intend for defendant to be punished for both offenses.'" Snyder, 766 F.2d at 171 (quoting Buckley, 586 F.2d at 504). Finally, in Newman, the Fifth Circuit vacated the defendant's convictions for willful failure to file a tax return after deciding that the United States had relied on the defendant's willful failure to file as the required "willful act' to prove attempted tax evasion. Newman, 468 F.2d at 794, 796. Thus, Smith's interpretation of these cases is flawed and his invitation for us to adopt the reasoning of these cases is of little or no value because the logic used to merge or vacate the involved convictions mirrors our present lesser included offense jurisprudence. Accordingly, contrary to Smith's assertion, there is no shelter from his conviction in federal case law.

      . The court also included two instructions concerning evidence introduced by Smith that he argued formed the basis for his belief that he was not subject to the income tax laws of the State of Utah. Arguably, although neither instruction uses the phrase "good faith," these instructions satisfied Smith's request for a good faith instruction. However, because we conclude that the instructions as a whole properly instructed the jury regarding its burden and the meaning of willful and intentional, there is no need to address the effect of these specific instructions.
      Furthermore, were we to conclude that the trial court erred in refusing to submit the instruction, "in light of all the evidence, it is clear that the error was harmless." United States v. Harrold, 796 F.2d 1275, 1284 (10th Cir.1986). The evidence presented to the jury showed that Smith had routinely paid his income tax prior to 1987. Following that year, Smith ran a business from his home, however all proceeds generated by the business were paid to one of three accounts held in names other than Smith's. In 1995, Smith withdrew a substantial amount from at least one of these accounts to pay his personal expenses and he neither claimed to have earned income during the year, nor did he file a tax return involving either the income he generated through his business or for the money he had removed from the three accounts. "Thus, even if a good-faith instruction had been given, we are confident the result of the trial would have been the same." Id.

      . Moreover, the evidence strongly supports the jury's verdict. The evidence showed that prior to 1987 Smith routinely filed his State of Utah income tax returns and, when necessary, paid any tax liability. In 1995, Smith operated a business from his home that generated over $65,000 in gross revenue. Smith, however, required his customers to make their payments not to him, but to three accounts bearing different names, but on which he was a signatory. Moreover, throughout 1995, Smith accessed the funds deposited in these accounts to pay his personal expenses and at no point did he claim the funds as income. Finally, not only did Smith place the totality of his earned income in these accounts, he affirmatively failed to file a State tax return for 1995 even though it was clear that he had read and previously complied with the state tax laws. Thus, the jury was presented with ample evidence from which it could reasonably conclude that Smith was guilty of the charged crimes. See State v. Stringham, 2001 UT App 13,¶ 29, 17 P.3d 1153 (stating "[wle will reverse a jury verdict only when we find that the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust" (quotations, citations and alterations omitted)).

      . Although it is permissible to assume that the trial court considered all of the factors set forth in Utah Code Annotated section 76-3-201(8), see State v. Weeks, 2002 UT 98,¶ 24, 61 P.3d 1000; State v. Robertson, 932 P.2d 1219, 1235 (Utah 1997), overruled on other grounds by Weeks, 2002 UT 98 at ¶ 24, 61 P.3d 1000, this recourse is only available if it is reasonable to do so. See Weeks, 2002 UT 98 at ¶ 24, 61 P.3d 1000. Here, the judge who considered the State's restitution motion, and issued the restitution order, was not the judge who oversaw Smith's trial or sentencing. Thus, we conclude that it would not be reasonable to assume that all of the restitution factors had been considered absent some evidence to the contrary.

      . We leave to the trial court's discretion the decision to entertain any additional evidence from Smith on the issue of restitution, but can see no reason at this time to deny Smith this opportunity to be heard.


author: VOIGT, Justice.

text:
    2003 WY 83
    In the Matter of The Workers' Compensation Claim of Darcy S. TAYLOR, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
    No. 02-186.
    Supreme Court of Wyoming.
    July 10, 2003.

      Kathleen J. Swanson of Murane & Bo-stwick, LLC, Casper, Wyoming, Representing Appellant.
    Hoke MacMillan, Attorney General; John W. Renneisen, Deputy Attorney General; Steve Czoschke, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶ 1] Darey S8. Taylor (Taylor) seeks review of the Office of Administrative Hearings' (OAH) order stating the method for calculating his worker's compensation benefits. The district court affirmed the decision of the OAH. In 1990, Taylor's feet were crushed in a work-related accident that resulted in partial amputation of his left foot. Doctors assessed impairment in the left foot at 75%, for which Taylor received benefits. In 2000, Taylor underwent additional surgery that increased his impairment rating to 83%. Taylor disagrees with the OAH's method of calculating his additional benefits. We affirm.

ISSUES

[¶ 2] Taylor presents the following issue on appeal:

Whether the Office of Administrative Hearings improperly calculated Darcey Taylor's award for Permanent Partial Impairment of 83%, based upon Wyo. Stat. § 27-14-405(g) in effect in April, 2000, by subtracting 75%.

FACTS

[¶ 3] In 1990, after a serious work-related injury at a sawmill, doctors partially amputated Taylor's left foot near the arch,. As a result, Taylor has undergone treatment for several consequential progressive injuries stemming from the original accident. The Wyoming Division of Workers' Safety and Compensation (the Division) has paid Taylor worker's compensation benefits for these injuries.

[¶ 4] Doctors initially assessed Taylor's permanent partial impairment (PPI) in the left foot at 75%. In April 2000, after Taylor underwent surgery to release his left Achilles tendon, his doctor increased his impairment rating to 88%. In September 2000, the Division advised Taylor that his temporary total disability had ended, and that he qualified to apply for a PPI award based on the 88% impairment to his left foot. The Division had previously awarded Taylor $20,176.92 for his 75% impairment, calculated pursuant to statutes in effect in 1990 when the original injury occurred. In its Notice of Permanent Partial Impairment Rating to Taylor, the Division advised Taylor how the new award would be calculated: "Twenty four months x $1120.94 which is 2/8 of the states average [1990] wage x 88% = $22,829.12. ... You received a seventy-five percent ($20,176.92) permanent partial impairment award for your left foot July 1991. Therefore, you are entitled to receive the difference/additional impairment percentage which equals $2,152.20" (Emphasis in original.)

[¶ 5] Taylor disagreed that the calculation should be based on the 1990 average wage, and a hearing was held before the OAH. At the hearing, Taylor argued that his surgery in 2000 constituted a second compensable injury, and that he should be awarded an 83% PPI award under the 2000 statute, using the average monthly wage in 2000 less the award he previously received. The OAH agreed that the surgery was a second com-pensable injury, and eventually determined that the award would be calculated using the 8% increase in PPI and the statute in effect at the time of the second injury. The OAH determined the award would be calculated taking the 8% increased PPI rating and multiplying it by 44 months as found in Wyo. Stat Ann. § 27-14-405(g) (LexisNexis 2008). This amount was then to be multiplied by the statewide monthly average wage in effect in the quarter preceding July 2000 to arrive at the new PPI award.

[¶ 6] Taylor agreed with the last OAH method of calculating the award amount, but contended there should be no deduction for the prior 75% payment, and appealed to the district court. The district court affirmed

the OAH's calculation and its order in entirety, and this appeal followed.

STANDARD OF REVIEW

[¶ 7] "When reviewing an administrative order, we are not compelled to accept any of the conclusions reached by the district court, and will review the case as if it had come directly to this Court from the agency." Appleby v. State ex rel. Wyoming Workers' Safety and Compensation Div., 2002 WY 84, ¶ 9, 47 P.3d 613, 616 (Wyo.2002). Taylor presents a pure question of law that requires interpretation of Wyo. Stat. Ann. § 27-14-405(g). _- Statutory interpretation and the application of law made by an administrative agency are reviewed by this Court de novo. Bailey v. State ex rel. Wyoming Workers' Safety and Compensation Div., 2002 WY 145, ¶ 10, 55 P.3d 23, 26 (Wyo.2002); Gray v. Stratton Real Estate, 2001 WY 125, ¶ 5, 36 P.8d 1127, 1128 (Wyo.2001).

"The interpretation and correct application of the provisions of the Wyoming Worker's Compensation Act are questions of law over which our review authority is plenary. Collicott [v. State ex rel. Wyoming Workers' Safety and Compensation Div., 2001 WY 35] ¶ 4 [20 P.3d 1077, ¶ 4 (Wyo.2001) ]. Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. Id. We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law. Id."

Bailey, 2002 WY 145, ¶ 9, 55 P.3d at 26 (quoting State ex rel. Wyoming Workers' Safety and Compensation Div. v. Garl, 2001 WY 59, T9, 26 P.3d 1029, 1032 (Wyo.2001)).

DISCUSSION

[¶ 8] Taylor argues that the hearing examiner improperly calculated his PPI award with respect to Wyo. Stat,. Ann. § 27-14-405(g). Taylor claims that because the statutory language in effect at the time of his second compensable injury is different from the language in effect at the time of the original injury in 1990, the worker's compensation benefits he previously received should not be deducted from the present calculation. Taylor claims that Wyo. Stat. Ann. § 27-14 405(b)' applicable in 1990 contained language providing for the subtraction of previous awards, whereas the statute in effect in 2000 contained no such language. Wyo. Stat. Ann. § 27-14-405(b) applicable in 1990 stated:

For any permanent partial disability described in this section, the employee shall receive for the number of months indicated a monthly payment as provided by W.S. 27-14-403(c), less any previous awards for the same body part[.]

(Emphasis added.) Wyo. Stat. Aun. § 27-14-405(g) applicable in 2000 provided:

An injured employee's impairment shall be rated by a licensed physician using the most recent edition of the American Medical Association's guide to the evaluation of permanent impairment. The award shall be paid as provided by W.S. 2714-408 for the number of months determined by multiplying the percentage of impairment by forty-four (44) months.

[¶ 9] Taylor's claim requires us to interpret Wyo. Stat. Ann. § 27-14-405(g). Statutory interpretation involves a reasoned search for the intention of the legislature.Petroleum Inc. v. State ex rel. State Bd. of Equalization, 988 P.2d 1237, 1240 (Wyo.1999). We interpret statutory language in light of the purpose and policy behind the enactment. In seeking to ascertain the intent of the legislature regarding the proper construction, we are guided by the fact that the legislature is presumed to have intended a reasonable, just, and constitutional result. 82 C.J.S. Statutes §§ 8307-810 (1999); Petroleum Inc., 988 P.2d at 1240.

[T10] The rules of statutory interpretation are well recognized.

"We first decide whether the statute is clear or ambiguous. This Court makes that determination as a matter of law. A 'statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability.' Allied-Signal, Inc. [v. Wyoming State Board of Equalization}, 8183 P.2d [214,] 220 [ (Wyo.1991) ]. A 'statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations.' 813 P.2d at 219-20."

Powder River Coal Co. v. Wyoming State Bd. of Equalization, 2002 WY 5, 11 6, 88 P.3d 428, 426 (Wyo.2002) (quoting State v. Bannon Energy Corp., 999 P.2d 1806, 1808-09 (Wyo0.2000)).

"When the words used are clear and unambiguous, a court risks an impermissible substitution of its own views, or those of others, for the intent of the legislature if any effort is made to interpret or construe statutes on any basis other than the language invoked by the legislature. ... If the language selected by the legislature is sufficiently definitive, that language establishes the rule of law. ... This inhibition upon statutory construction offers assurance that the legislative efforts and determinations of elected representatives will be made effective without judicial adjustment or gloss."

State ex rel. Dept. of Revenue v. Buggy Bath Unlimited, Inc., 2001 WY 27, 116, 18 P.8d 1182, 1187 (Wyo.2001) (quoting Allied-Signal, Inc. v. Wyoming State Board of Equalization, 818 P.2d 214, 219 (Wyo.1991)).

[111] We find the language in the 1990 and 2000 statutes to be clear and unambiguous, and we conclude that the subtraction language in the 1990 statute was superfluous because the law does not allow one to receive double compensation for the same injury. In State ex rel. Wyoming Worker's Compensation Div. v. Colvin, 681 P.2d 269, 273 (Wyo.1984), we held that double recovery was prohibited (claimant could not be compensated for the partial loss of his entire arm and also be compensated for the individual injuries to the same member).

[112] It is true that this Court has recognized the second compensable injury rule, under which an employee who has incurred a compensable injury and received benefits for that injury, may receive more benefits for a compensable injury caused by the first injury, regardless of the passage of time. Yenne-Tully v. State ex rel. Wyoming Workers' Safety and Compensation Div.,

2002 WY 90, ¶ 10, 48 P.3d 1057, 1062 (Wyo. 2002). In order for a second injury to be compensable, the original compensable injury must be the direct cause of the subsequent injury. Id.

[¶ 13] In the instant case, there is no dispute that Taylor had a second compensa-ble injury for which he could receive compensation benefits. There also is no dispute that the PPI rating is now 88%, an additional 8% over his original assessment. Therefore, the hearing examiner concluded that the calculation, based on the 2000 version of Wyo. Stat. Ann. § 27-14-405(g), would be 8% times 44 months times the wage rate in effect in the quarter preceding July 2000. We conclude that the hearing examiner's calculation of Taylor's increased impairment is correct according to the statute. To do as Taylor suggests would allow him a "double recovery" of 158% (75% + 88%), which is contrary to the intent of the Wyoming Worker's Compensation Act.

CONCLUSION

[T14] The OAH properly applied Wyo. Stat. Ann. § 27-14-405(g) in calculating Taylor's PPI award. The order of the district court affirming the OAH is affirmed.

      . Wyo. Stat. Ann. § 27-14-405(a) and (b) were repealed in 1994.