author: GOODMAN, C.J.

text:
    2000 OK CIV APP 56
    In the Matter of M.B., C.B., and T.B., alleged deprived children. State of Oklahoma ex rel. Department of Human Services, Appellee, v. Laura Bateman, Appellant.
    No. 93,414.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    March 28, 2000.

      SuAnn Carlson, Assistant District Attorney, Oklahoma City, Oklahoma, For Appel-lee,
    William R. McKinney, Assistant Public Defender, Oklahoma City, Oklahoma, For M.B., C.B., and TB.
    Kristie D. Scivally, Lopez & Scivally, Oklahoma City, Oklahoma, For Appellant.
   MEMORANDUM OPINION

GOODMAN, C.J.

11 This is an appeal from a district court order entered on a jury verdict finding the parental rights of the natural mother of three minor children should be terminated based upon the mother's heinous or shocking abuse of one of the children, and her eriminal sentence and incarceration for the abuse. Based upon our review of the record and applicable law, we affirm the order.

I

12 On October 21, 1995, appellant Laura B. gave birth to a baby girl, M.B. Shortly after birth, M.B. was diagnosed with retinob-lastoma, a cancer of the eye she inherited from 'her father, who had lost an eye to the disease and whose mother and sister had died from it. M.B. began a monthly combination laser/chemotherapy regimen which required a surgically implanted "central line" with an external point of entry for the chemotherapy. Between 7 and 10 days after chemotherapy, it is common for a patient to have a low blood count and be extremely susceptible to infection. If such a child also develops a fever, the child is automatically admitted to the hospital for observation and treatment.

T3 M.B. was admitted to the hospital in mid-March 1996, and released. On April 3, 1996, the mother took M.B. to the hospital for a blood count after the child had developed a fever. The mother was told to check back for the lab results. However, at approximately 11 p.m., the mother took M.B. to the emergency room reporting that M.B. had had seizure activity and had bled from the central line, which had broken. The child was extremely ill and had a diaper rash with a yeast infection. The emergency room doe-tors feared she may be septic because her blood counts were precipitously low. M.B. was admitted to the intensive care unit. Comparing the blood count taken earlier in the day with the one taken upon admission to the hospital, emergency room doctors concluded that there had been a gross contamination of the central line probably at the time it was broken. © The central line was removed and M.B. remained in intensive care until April 7, when she was moved to the pediatric hematology/oneology unit known as 3G. Once there M.B. again developed a fever, and had changes in the color of her skin, spasms of her hands and feet, and episodes of breathing difficulty. She was returned to the ICU. Extensive medical testing could not identify any cause of M.B.'s worsening and fluctuating condition.

T4 The mother stayed with M.B. throughout her hospitalization, often living in M.B.'s room. M.B. improved and stabilized and was returned to 8G April 9. Approximately 2 hours later, the mother reported that M.B. was having difficulty breathing. The nurses on staff feared M.B. was in cardiac or respiratory arrest and summoned an emergency team which could not re-establish breathing without intubating M.B. with an endotracheal tube and administering 2 rounds of "code" drugs. MB. stopped breathing on a second occasion and had to be revived.

15 On April 23, M.B. had improved, and her treating physician was considering releasing her when a nurse entered M.B.'s room and noticed something suspicious with both the color and amount of intravenous fluid being administered to M.B. The mother was in the room and just about to leave to do laundry. The nurse turned off the machine and removed part of the unit and its contents for testing. The results suggested the intravenous fluid had been contaminated with adult human urine.

6 On April 26, 1996, during a videotaped interview with police investigators, the mother confessed to intentionally contaminating the IV fluid with her own urine. The State of Oklahoma filed a petition April 30, 1996, alleging that 6-month-old M.B. and her 2-year-old sister, C.B. were deprived children due to shocking or heinous abuse of M.B. The alleged abuse included "placing urine in the child's intravenous feeding bag, inserting a syringe into the intravenous feeding tube and sabotaging the child's medical treatment." The mother entered a nolo contende-re plea to charges of child abuse and was sentenced to 20 years, with all but the first 10 years suspended. The petition to terminate the mother's parental rights was later amended to include TB., a son who was born in May 1997, while the mother was incareer-ated with the Oklahoma Department of Corrections serving her sentence for the abuse of M.B. The amended petition asserted as an additional basis for terminating the mother's parental rights that she had been convicted of abusing M.B. and was incarcerated for a term of not less than 10 years.

1 7 The trial court held a jury trial May 18, 19, and 20, 1999, at the conclusion of which the court entered judgment on the jury's verdict terminating the mother's parental rights to the children. The mother appeals.

II

T8 The mother first contends the State "failed to introduce any evidence that the physical abuse of M.B. was heinous and shocking warranting a termination" of her parental rights to her children. She admits that it is "undisputed" that she "placed urine into the LV. unit of M.B.," but argues that M.B. "suffered no life threatening injuries as a result of that incident." Consequently, the mother contends the State failed to introduce evidence of heinous or shocking abuse. We disagree.

T9 In this matter, the State sought termination pursuant to 10 O.S8. Supp.1995, § 7006-1.1(A)(6)(a), and (A)(8), which state:

A. The finding that a child is delinquent, in need of supervision or deprived shall not deprive the parents of the child of their parental rights, but a court may terminate the rights of a parent to a child in the following situations:
6. A conviction in a criminal action pursuant to the provisions of Sections 1021.3, 1111 and 1123 of Title 21 of the Oklahoma Statutes, the laws relating to child abuse and neglect, or a finding in a deprived child action either that:
a. the parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or a sibling of such child from physical or sexual abuse that is heinous or shocking to the court or that the child or sibling of such child has suffered severe infury as a result of such physical or sexual abuse, or
8. A finding that all of the following exist:
a. the child has been adjudicated deprived, and
b. the custody of the child has been placed outside the home of a natural or adoptive parent, guardian or extended family member, and
c. the parent whose rights are sought to be terminated has been sentenced to a period of incarceration of not less than ten (10) years, and
d. the continuation of parental rights would result in harm to the child based on consideration of the following factors, among others: the duration of incarceration and its detrimental effect of the parent/child relationship; any previous incarcerations; any history of erimi-nal behavior, including crimes against children; the age of the child; the evidence of abuse or neglect of the child or siblings of the child by the parent; and the current relationship between the parent and the child and the manner in which the parent has exercised parental rights and duties in the past, and
e. termination of parental rights is in the best interests of the child.

110 In an action to terminate parental rights, DHS must support its case by clear and convincing evidence. Matter of D.D.EF., 801 P.2d 708 (O0k1a.1990) cert. denied 500 U.S. 922, 111 S.Ct. 2027, 114 L.Ed.2d 118. "Clear and convincing evidence" is defined as "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established." In re C.G., 1981 OK 131, 637 P.2d 66, 71 n. 12 (Okla.1981). If any competent evidence supports the jury's verdict, we will not disturb its verdict and judgment based thereon unless shown to be contrary to law. In re T.R.W., 1985 OK 99, 722 P.2d 1197.

{11 It is undisputed that the mother intentionally injected her own urine into M.B.'s intravenous fluid. The fact that an alert nurse intervened before the urine could enter the IV line and potentially harm M.B. does not diminish the shocking, heinous nature of the mother's action. The State presented. extensive, and compelling, competent evidence on which the jury could conclude that the Mother repeatedly acted to compromise the well-being of M.B, and indeed jeopardized not only M.B.'s recovery, but M.B.'s life. On two occasions M.B. had to be revived by a medical emergency team. At trial, one of the two detectives to whom the mother confessed testified the mother's actions fit the "checklist" for Munchausen Syndrome by Proxy, a condition in which a family member, most frequently the mother, intentionally, albeit surreptitiously, harms the child or exaggerates the child's condition in order to receive sympathetic attention. The jury saw the videotaped interview during which the mother confessed to harming, and attempting to harm, M.B. The relevant statutes permit termination of an abusive parent's parental rights to the siblings of a child which has been subjected to shocking or heinous abuse. We find competent evidence supports the jury's verdict, and the judgment entered thereon, to terminate the mother's parental rights to M.B., C.B., and T.B. -

III

$12 The mother argues that the State's alternative legal basis to terminate her parental rights-her conviction and resulting incarceration-is tainted because she did not knowingly enter her nolo contendere plea. We agree with the State that this is

not a proper forum to contest the plea. The' record before us contains the plea, which is not facially deficient, and therefore is impervious to further review.

IV

1138 At the conclusion of the first day of trial, the trial judge's bailiff handed the judge a motion which had been forwarded to another judge. The motion was signed by the mother, and was entitled Motion for Appointment of Counsel. An affidavit was attached to the motion requesting that the mother's attorney be "terminated" and that the matter be "reassigned" to another attorney. The judge excused the jury for the day, and conducted a hearing on the motion. The mother's initial reaction: "Can I withdraw that? I assumed that it got destroyed. I didn't know it got mailed." The trial judge noted his admiration of the attorney's legal ability representing the rights of parents. The judge denied the mother's request to withdraw the motion, stating: "I'm ruling on the motion, the motion for appointment of counsel pro se motion is denied."

{14 The mother contends that she was denied a fair trial when the trial court denied her motion. The argument is that "[wiithout the benefit of the attorney/client relationship, a fair trial is impossible." We find the proposition of error does not have merit.

115 It is fundamental that the attorney-client relationship is one of the highest trust and requires that an attorney's dealings with his client must be characterized by the utmost candor and fairness. State ex rel. Oklahoma Bar Association v. Hatcher, 1969 OK 42, 119, 452 P.2d 150, 154. It is equally well settled that a trial court's mid-trial rulings will not be set aside on appeal absent an abuse of discretion or error as a matter of law. To reverse a trial court under an abuse-of-discretion standard, we must find that the trial court made a clearly erroneous conclusion against reason and evidence. Green Boy Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, 982 P.2d 1091.

116 In this matter, apparently the motion had not been properly filed, and therefore was not properly before the trial court for a ruling. Consequently, neither the motion nor supporting affidavit are part of the record on appeal. It is an appellant's obligation to provide us with a record sufficient to support her propositions of trial court error. From a silent record we must presume the trial judge did not err. The mother had not alleged ineffective assistance of counsel, nor has she alleged or demonstrated any prejudice as a result of the denial of the wayward motion. In City of Lawton v. Kelley, 1917 OK 116, 162 P. 1081, the Oklahoma Supreme Court held that a trial court's decision on an application to file a pleading out of time would not be reversed in the absence of an abuse of discretion. We find no abuse of the trial court's discretion.

V

1 17 We find no trial court error, and hold the jury's verdict and judgment entered thereon are supported by competent evidence. The judgment terminating the mother's parental rights is affirmed.

T 18 AFFIRMED.

119 STUBBLEFIELD, J., and REIF, J., concur.

      . M.B.'s treating physician testified that the diagnostic procedures included at least ten blood cultures, two spinal taps, two abdominal ultrasounds, a CT scan of the head, and MRI of the head, an EEG, a sleep study, a pH study, two echocardiograms, and endoscopy by the ear, nose and throat doctors, and two or three nasal pharyngeal washings.

      . The statutory subsections cited by the State in its answer brief became effective after the last amended petition was filed June 5, 1997, and therefore could not serve as the legal basis for this proceeding to terminate parental rights.

      . The condition is named after Baron Karl Fried-rich von Munchausen, who lived from 1720 to 1797, and was a German hunter, soldier, and supposed teller of absurdly exaggerated stories.


source: Caselaw Access Project

author: ADAMS, Judge:

license: Public Domain

text:
    2000 OK CIV APP 63
    PENNMARK RESOURCES COMPANY, Appellant, v. The OKLAHOMA CORPORATION COMMISSION; Louis Dreyfus Natural Gas Corporation; and Stonewater Holding, Inc. Now LDNG Texas Holdings, Inc., Appellees.
    No. 92,559.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    March 31, 2000.

      Tim W. Green, Guthrie, Oklahoma, For Appellant.

      Charles L. Helm, Helm & Boone, Oklahoma City, Oklahoma for Appellee Louis Dreyfus Natural Gas Corporation.
    Chanda R. Graham, Rachel Lawrence Mor, Oklahoma City, Oklahoma, For Appellee Oklahoma Corporation Commission.
   OPINION

ADAMS, Judge:

T1 After Louis Dreyfus Natural Gas Corporation (hereinafter, LDNG) refused to turn over operations of a waterflood unit to Penn-mark Resources Company (Pennmark), Pennmark asked the Oklahoma Corporation Commission (the Commission) to enforce. the provisions of its order creating the Northwest Flats Unit by examining the procedures followed and the results recorded in a 1997 election concerning the unit operator. The validity of that election, and the extent of the Commission's authority concerning it are at the heart of this appeal.

Underlying Events

2 In the late 19703, the original working interest owners (predecessors in interest to some of the parties in this appeal) entered into a contract for management of production from the Morrow "A" Sand common source of supply underlying lands in Morton County, Kansas and Texas County, Oklahoma. The Commission ultimately incorporated this contract into a unitization order. The Unit Operating Agreement (the Unit Agreement) embodied in the Commission's order provided specific procedures for the selection and removal of the unit operator. Those provisions prohibit the current unit operator from voting in elections for the removal and replacement of a unit operator. The unit operator could be removed if 85 percent of the eligible working interest owners vote for replacement.

3 Stonewater Holding, Inc. (Stonewater) was incorporated on October 24, 1996. In early 1997, LDNG transferred 12 per cent of its ownership in the unit (out of the total of 89.18 per cent LDNG then held) to Stonewa-ter. On December 8, 1997, documents were filed with the Oklahoma Secretary of State memorializing that in November of 1997 Stonewater had merged with LDNG Texas Holdings, Inc. (LTH). LTH is a limited partner with LDNG in a limited partnership. Following the merger, LTH, which is licensed to do business in both Oklahoma and Texas, owned interests in 12 flood water units and some 8,523 wells.

€ 4 In December, 1997, Pennmark cireulat-ed ballots to interest owners for an election to determine if LDNG should be removed as operator and Pennmark should be selected as new operator. After the ballots were returned, Pennmark refused to include the ballot from LTH in the vote count, believing it was merely an alter ego of LDNG and could not be treated as a separate entity for voting purposes. When LDNG refused to surrender operations, Pennmark filed this proceeding. Pennmark's application asked the Commission to determine who was entitled under the Unit Agreement to vote on removal of the operator and selection of a new operator. The answer to that question determined who would be the operator of the unit. If LTH's votes should have been counted, then LDNG withstood the removal vote. If not, Penn-mark had sufficient votes to oust LDNG as operator and take over operations.

1 5 Before the Commission, Pennmark contended the assignment from LDNG to Stone-water was improper, and LDNG and LTH could not be treated as separate owners. According to Pennmark, the transfer of ownership interests between LDNG and Stone-water was not at arms length, LTH was an alter ego of LDNG, and both entities should both fall under the prohibition against a current unit operator voting in elections for removal and replacement of the unit operator.

T 6 In its order denying Pennmark's application, the Commission concluded Pennmark failed to sustain its burden of proof for removal of LDNG as operator. The Commission specifically concluded:

The evidence presented by Pennmark did not éstablish that the parent/subsidiary corporations were so closely linked and so extricably [sic] entwined as to be effectively one entity. The showing of a common board of directors and unity of corporate purpose was insufficient to pierce the corporate veil. Warner v. Hillcrest Medical Center, 942[sic] P.2d 1060 [914 P.2d 1060] (Okl.App.1995). One must remember that the general rule is that a corporation is a distinct legal entity separate and apart from other legal entities or stockholders. Gulf Oil Corp. v. State, 360 P.2d 933 (Okl.1961). Given the fact that Stonewater has interests in 12 other waterfloods and over 3,500 wells both in Oklahoma and Texas, tends to disprove that Stonewater was created so that its existence was a design or scheme to perpetuate fraud or to avoid the terms of the Unitization Order in this particular Unit. Thus, where the presumption is that the subsidiary is not an instrumentality or ad-junet of the parent corporation; Penn-mark has not prevailed.

JURISDICTION

17 Initially in response to Penn-mark's application, LDNG contended the Commission lacked jurisdiction over what it said was a private rights dispute. The Commission rejected this argument, and neither party raised this issue in their briefs. However, because this Court has an obligation to examine its subject matter jurisdiction and the subject matter jurisdiction of the lower tribunal, sua sponte, we directed the parties to address the jurisdictional question.

{18 LDNG again argues this was a private rights dispute and that jurisdiction was in the district courts, not at the Commission. According to LDNG, allowing the Commission to determine this controversy violates 52 0.8.1991 § 287.4, which specifies that the Commission shall not designate the unit operator. Pennmark argues the issue is not whether the Commission could select the operator but whether the procedures employed complied with the order of the Commission for the unit. The Commission determined that it had authority to construe and clarify its order and that what was before it was a question involving a clarification of the process used when electing an operator, not the designation of the operator. We agree that clarification of an order was the issue presented and the one that the Commission addressed. *

19 The Commission has authority, which is 'continuous in nature and which flows from entry of the initial order, to clarify its own orders. Nilsen v. Ports of Call Oil Company, 1985 OK 104, 711 P.2d 98; 52 O.S.1991 § 189 and § 287.2. This is precisely the relief requested by Pennmark in its application. The operator must be elected as provided for in the Unit Agreement. To accomplish that end, the parties needed to know who was eligible to vote according to the order of the Commission, and that determination required clarification of an order of the Commission, an action within the power and authority of the Commission.

§10 This matter is distinguishable from the problem posed in Atlantic Richfield Company v. Tomlinson, 1993 OK 106, ¶ 28, 859 P.2d 1088, 1096, wherein the Court noted that "the instant case involves a dispute over oumership of certain oil and gas interests, not a dispute over rights and equities of interest owners within a drilling and spacing unit," (emphasis in original), and reiterated that where title is at issue, jurisdiction over controversies lies with the district court. While perhaps inartfully stated at times, Pennmark's challenge does not attack LTH's ownership interest, but only whether that interest, given LTH's alleged domination by LDNG, should be allowed to vote on the removal of its parent corporation as unit operator. The Commission had jurisdiction of Pennmark's application.

STANDARD OF REVIEW

T11 Our review of Commission orders is generally restricted to, determining whether the findings and conclusions are sustained by law and substantial evidence. Samson Resources Company v. Oklahoma Corporation Commission, 1987 OK 73, 742 P.2d 1114 (construing Okla. Const. Art. 9, § 20). When performing such a review, the Court does not weigh the evidence on appeal, but only determines whether the supporting evidence possesses substance and relevance. Currey v. Corporation Commission, 1979 OK 89, 617 P.2d 177. This process does not entail comparing the evidence of the parties, but includes determining if the evidence supporting the order furnishes a substantial basis of facts from which the issue could be reasonably resolved. Substantial evidence is something more than a scintilla and means evidence possessing something of substance and of relevant consequence such as carries with it a fitness to induce conviction, even though it may be evidence about which reasonable men may fairly differ on the point of establishing the case. Union Texas Petroleum, A Div. of Allied Chemical Corp. v. Corporation Commission, 1981 OK 86, 651 P.2d 652. The determination of substantial evi-dentiary support requires measurement of the supportive points to determine whether the criterion of substantiality is present, not the weighing of the evidence. Central Oklahoma Freight Lines v. Corporation Commission, 1971 OK 57, 484 P.2d 877.

Alter Ego Inquiry

12 The designation of an operator is required to be "by a vote of the lessees in the unit in a manner provided in the plan of unitization and not by the Commission." 52 O.S$.8upp.1995 § 287.4(a). This text has existed in the law of Oklahoma since enactment effective May 26, 1951. Pennmark argues that LTH is an alter ego or instrumentality of LDNG and that the two should be treated as one entity for voting purposes.

113 Pennmark cites several cases for the proposition that separate corporate existence may be disregarded where that separate existence is used in a scheme to permit one corporation to evade its "just obligations." Pennmark identifies the "obligation" in this instance as that of the operator not to vote in removal and replacement elections. LDNG argues that nothing in the Unit Agreement prevents assignment of any of its interest and that as a consequence LTH's interest should be accorded voting rights. We decline to adopt the analyses of either Penn-mark or LDNG.

{14 The question before the Commission was not whether an "obligation" was owed by any of the parties or whether an interest was assignable-it was a question of who was entitled to vote under the Unit Agreement which was part of an order of the Commission order. To answer that question, the Commission needed to determine if LTH was a separate owner who was entitled to vote.

Af 15 The Commission's order cites ownership in other properties as showing a lack of a scheme or design to perpetuate fraud or to avoid the terms of the Unit Agreement. The order finds that Pennmark did not establish that LTH and LDNG were "so closely linked" and "entwined as to be effectively one entity." The Commission's analysis recited that the questions in the case were "close calls," and that because it was "a draw," Pennmark had failed to meet its burden of proof under the evidence adduced. The Commission found that there was a proper assignment, and that LTH was "a proper owner to vote on the question of unit operator." Our task is to determine if the record reflects that the Commission's findings and conclusions are sustained by law and substantial evidence.

116 Corporate distinctions may be disregarded and two separate entities may be treated as one if one corporation is but an instrumentality or agent of another. Frazier v. Bryan Memorial Hospital Authority, 1989 OK 73, 775 P.2d 281. Factors to be considered in determining if an entity has sufficient control over another entity to justify treating one as the instrumentality of the other for the purpose of a given transaction were set forth in Frazier v. Bryan Memorial Hospital Authority, 1989 OK 73, ¶ 17, 775 P.2d at 288:

1) the parent corporation owns all or most of the subsidiary's stock, 2) the corporations have common directors or officers, 3) the parent provides financing to its subsidiary, 4) the dominant corporation subscribes to all the other's stock, 5) the subordinate corporation is grossly under-capitalized, 6) the parent pays the salaries, expenses or losses of the subsidiary, 7) almost all of the subsidiary's business is with the parent or the assets of the former were conveyed from the latter, 8) the parent refers to its subsidiary as a division or department, 9) the subsidiary's officers or directors follow directions from the parent corporation and 10) legal formalities for keeping the entities separate and independent are observed.

In addition to these factors, commonality of purpose also may be considered. Oliver v. Farmers Insurance Group of Companies, 1997 OK 71, 941 P.2d 985.

117 LDNG's motive is not determinative when analyzing whether the corporate veil should be pierced and the corporate structure ignored. Although several cases have discussed fraud as a potential basis for ignoring formal corporate identity, it is not necessary for fraudulent intent to be present for the alter ego theory to be applied to pierce the corporate veil. E.g., TPQ Investment Corporation v. State ex rel. Oklahoma Tax Commission, 1998 OK 13, 954 P.2d 139, (alter ego analysis used to determine tax credit eligibility); Alfalfa Electric Cooperative, Inc. v. First National Bank & Trust Company of Oklahoma City, 1974 OK 98, 525 P.2d 644 (corporate affairs of nonprofit development company created by electric cooperative so conducted that company was instrumentality of cooperative, rendering borrower and pledgor of cooperative assets the same); Harvey v. National Bank of Commerce of Tulsa, 1972 OK 112, 504 P.2d 424 (bank's president, board chairman and principal stockholder in "family-controlled corporation" held to be the bank's alter ego at the time agreement made to pay a pension); and Sautbine v. Keller, 1966 OK 209, 423 P.2d 447, (doctrine applied not only for fraud or wrong but also to protect rights of third persons and accomplish justice).

118 LDNG admitted it realized in 1996 that it was in danger of losing its status as operator when it became aware that the interest of another party was for sale. Because of the way the Unit Agreement was worded, it would be against its interest to purchase additional rights in the unit. LDNG also decided that it was better to reduce its ownership percentage, and it decided to transfer some of its interest to LTH (then Stonewater). However, this business motivation, standing alone, does not require that the corporate veil be pierced.

119 Control following the transfer, as reflected in the factors cited in Frazier and Oliver, is the essential issue. We therefore compare those factors with the evidence adduced, not to weigh the evidence or compare it, but to: determine if the evidence supporting the order of the Commission furnishes a substantial basis of facts from which the issue could be reasonably resolved. We conclude that it does not.

120 According to the evidence, LTH is a wholly owned subsidiary of LDNG and the entities have a commonality of purpose (4e. control of liability arising from unit operations, increasing unit production, limiting environmental problems). These factors would not alone be sufficient to establish alter ego status. However, the evidence also shows that a director of LDNG, who was also its president and chief executive officer, was the president and sole director of LTH., All of LTH's other corporate officers were also officers and/or directors of LDNG. A prior officer of LTH left its service when he ended employment with LDNG. LDNG's witness acknowledged that the same people who controlled LDNG controlled LTH and that the people making LDNG's business decisions are exactly the same people as those making decisions about LTH's business.

121 The Commission found Pennmark failed to produce sufficient evidence to establish that the parent/subsidiary corporations were so closely linked and so inextricably intertwined as to be effectively one entity. LTH may not have been "intertwined" in LDNG, but via its control, LDNG clearly was intertwined in the management and direction of LTH. Other indicia of control listed in Frazier and Oliver are unaddressed by this record, primarily issues of the subsidiary's financial independence. However, financial interdependence was not at issue and, while such evidence may tend to show control where other evidence of control is lacking, here the element of control was well established by other factors. LTH had no employees and paid LDNG a monthly fee for using LDNG employees. The LDNG employees working for LTH were paid directly by LDNG and remained subject to its control no matter which entity they were performing services for at any given moment.

€ 22 The record does show that legal formalities were observed in that separate tax numbers and tax payments were made, although LTH and LDNG shared a common street address. However, there was no allegation here, as there often is when an individual is the sole shareholder and management of a corporation, that the corporate nature of LTH was ignored. Rather, that corporate structure was preserved and controlled by LDNG. As to the factors relevant to the situation presented, i.e., deciding how to cast the vote on the operator ballot, there was overwhelming evidence that LTH was an instrumentality of LDNG and no evidence that it was not.

123 The order of the Commission lacks support in substantial evidence and is reversed. The matter is remanded for entry of an order consistent with the views expressed.

REVERSED AND REMANDED

1 24 HANSEN, V.C.J., and JOPLIN, J., concur.

      . The unit also was the subject of proceedings in Kansas. The evidence adduced indicated that LDNG had a larger interest in the Oklahoma portion of the unit than in the Kansas portion, and that Pennmark had a larger interest in the Kansas portion than in the Oklahoma portion. The record contains a copy of the 1979 Kansas order for unitization and unit operation (which designates one of LDNG's successors as the unit operator), but does not contain any subsequent orders from Kansas concerning either the unit or the unit's operator. The jurisdiction of the Commission to issue orders affecting the portion of the unit lying in Kansas was challenged by LDNG at the hearings, but is not resolved by the order under review or addressed by either party in this appeal. A witness testified that the parties planned to file "an affiliated or associated" proceeding in Kansas after the conclusion of the Oklahoma proceedings on the application.

      . The Commission waived its right to file an Answer Brief on the basic appeal but filed a brief on the jurisdictional issue.

      . Samson Resources Company v. Corporation Commission, 1985 OK 31, 702 P.2d 19, does not require a different result. The parties in that matter entered into a voluntary joint operating agreement, not an agreement which was incorporated into, and thereby superseded by, a uniti-zation order of the Commission.

      . Although Pennmark occasionally cast its contentions as suggesting the assignment was invalid, such as arguing the absence of consideration, the record makes it clear that Pennmark's arguments were not based on the validity of the assignment but on whether Stonewater(later LTH) and LDNG should be treated as one and the same under the Unit Agreement.

      . Oliver v. Farmers Insurance Group of Companies, 1997 OK 71, 941 P.2d 985; Frazier v. Bryan Memorial Hospital Authority, 1989 OK 73, 775 P.2d 281; Mid-Continent Life Insurance Company v. Goforth, 1943 OK 244, 193 Okl. 314, 143 P.2d 154; Warner v. Hillcrest Medical Center, 1995 OK CIV APP 123, 914 P.2d 1060; Thomas v. Vertigo, Inc., 1995 OK CIV APP 45, 900 P.2d 458; Oklahoma Oil & Gas Exploration Drilling Program 1983-A v. W.M.A. Corporation, 1994 OK CIV APP 11, 877 P.2d 605.


author: BUETTNER, J. GARRETT, J.,

text:
    2000 OK CIV APP 51
    Dora Carlene TUCKER, Special Personal Representative of the Estate of Marion E. Tucker, Plaintiff/Appellant v. BENEVOLENT AND PROTECTIVE ORDER OF ELKS LODGE # 417, an Oklahoma Non-Profit Corporation, Defendant/Appellee
    No. 92,508.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    April 14, 2000.

      Bradley K. Donnell, Burton J. Johnson, Looney, Nichols & Johnson, Oklahoma City, Oklahoma, For Plaintiff/Appellant.
    Hugh A. Baysinger, Rachel K. Jackson, Pierce, Couch, Hendrickson, Baysinger & Green, LLP., Oklahoma City, Oklahoma, For Defendant/Appellee.
   BUETTNER, J.

T1 Plaintiff/Appellant Dora Carlene Tucker appeals from the trial court's order denying Tucker's Motion to Enforce Offer to Confess Judgment. Tucker's husband, Marion E. Tucker, sued Defendant/Appellee Benevolent and Protective Order of Elks Lodge #4lT (Elks Lodge) alleging negligence resulting in a slip and fall accident. After Tucker's husband's death (unrelated to the injuries which were the subject of the instant suit), Tucker succeeded him as plaintiff in her capacity as special personal representative. On Thursday before a Monday trial, Elks Lodge served Tucker an offer to confess judgment. The record indicates Tucker rejected the offer and counter-offered on Friday before the Monday trial. The counteroffer was rejected. Trial proceeded on Monday, and the jury rendered its verdict in favor of Elks Lodge on Wednesday morning. Later that day, and within the statutory five day acceptance period for offers of judgment, Tucker filed an acceptance of Elks Lodge's offer of judgment. Elks Lodge objected to the acceptance, and the trial court entered judgment on the jury verdiet. Tucker then filed her Motion to Enforce Offer to Confess Judgment. The trial court held that the offer of judgment terminated 1 on Tucker's rejection and counteroffer prior to trial; 2) upon commencement of trial; 3) upon submission of the case to the jury; or 4) upon the court's acceptance of the jury verdict. It is from this order which Tucker appeals. We hold that an offer of judgment terminates at the start of trial, and affirm the order.

1 2 Trial in the instant case was scheduled for Monday, October 19, 1998. The Thursday evening prior to trial, October 15, 1998, Elks Lodge faxed to counsel for Tucker an offer of judgment in the amount of $25,001. The evidence indicates that Tucker responded with a demand of $50,000. The counteroffer was rejected. Trial began October 19, 1998 and concluded Wednesday, October 21, 1998 with a jury verdict in favor of Elks Lodge. After the jury's verdict was announced, Tucker filed an acceptance of the offer of judgment with the Oklahoma County District Court Clerk, When Elks Lodge rejected the acceptance of the offer of judgment, Tucker filed her Motion to Enforce the Offer to Confess Judgment which was denied by the trial court.

13 We first note that Elks Lodge seeks to have the instant appeal dismissed as untimely. The journal entry of judgment on the jury verdict was filed October 21, 1998. The order denying the Motion to Enforce Offer to Confess Judgment was filed December 30, 1998. Tucker filed her petition in error January 25, 1999. A petition in error must be filed "within thirty days from the date the judgment, decree, or appealable order" is filed with the clerk of the district court. Rule 1.21(a), Supreme Court Rules, 12 0.8.8upp.1997 Ch. 15, App. Elks Lodge asserts that Tucker filed her petition in error more than thirty days following the entry of judgment on the jury verdict. However, Tucker is appealing not the jury verdict, but the order denying her Motion to Enforce Offer to Confess Judgment. "A final order is an order affecting a substantial right in an action ... made in a special proceeding or upon a summary application in an action after judgment." Rule 1.20(b), Supreme Court Rules, 12 0.8.8upp.1997 Ch. 15, App. A final order includes an order disposing of a motion to vacate a judgment. In essence, Tucker's Motion to Enforce Offer to Confess Judgment amounted to a motion to vacate the judgment entered on the jury verdict and grant judgment based on the offer of judgment. We therefore hold that the order denying Tucker's motion is a final appealable order and accordingly, this appeal is timely because it was filed within thirty days of the order denying Tucker's motion.

14 On appeal, Tucker argues that the trial court erred in denying her motion because, she asserts, an offer of judgment made pursuant to 12 0.8.1991 § 1101, is irrevocable and may only be terminated by the expiration of the five day statutory period or by acceptance by the plaintiff. The instant dispute involves a question of law and is therefore subject to de novo review. Hernandez v. United Supermarkets of Oklahoma, Inc., 1994 OK CIV APP 122, 882 P.2d 84.

T 5 Section 1101 provides:

The defendant, in an action for the recovery of money only, may, at any time before the trial, serve upon the plaintiff or his attorney an offer, in writing, to allow judgment to be taken against him for the sum specified therein. If the plaintiff accept the offer and give notice thereof to the defendant or his attorney, within five days after the offer was served, the offer, and an affidavit that the notice of acceptance was delivered within the time limited, may be filed by the plaintiff, or the defendant may file the acceptance, with a copy of the offer, verified by affidavit; and in either case, the offer and acceptance shall be noted in the journal, and judgment shall be rendered accordingly. If the notice of acceptance be not given in the period limited, the offer shall be deemed withdrawn, and shall not be given in evidence or mentioned on the trial. If the plaintiff fails to obtain judgment for more than was offered by the defendant, he shall pay the defendant's costs from the time of the offer.

In Allison v. City of El Reno, 1994 OK CIV APP 170, 894 P.2d 1133, the court held as follows: "A § 1101 offer terminates only upon two events: acceptance by the plaintiff, or expiration of five days." However, the court specifically declined to consider the effect of intervening judgments, stating that the single concurring judge disagreed with Hernandez, supra (which held that summary judgment granted during the statutory acceptance period did not terminate an offer of judgment). In Allison, defendant presented plaintiff with a § 1101 offer moments before trial. Plaintiff accepted the offer. Afterward, plaintiff moved for attorneys fees as prevailing party. Defendant objected and requested the trial court for permission to modify the offer to include attorneys fees. The appellate court held that a party could not modify or revoke an accepted offer. In dissent, Judge Taylor foreshadowed the issue before us:

"The interpretation of § 1101 offered by the majority would preclude withdrawal of an offer containing a misplaced decimal point. That interpretation would also allow a party who receives an offer the day before trial, then loses at trial, to nonetheless accept the offer before the expiration of five days. Further, it would allow one who receives an offer two days before trial to accept the offer two days into a trial that is not going as well as expected. Such results clearly could not have been intended by the legislature in drafting § 1101, but the majority's interpretation of the statute in today's opinion would appear to condone just such results. 894 P.2d at 1138.

T6 Thus, the question here is to decide whether a third event, the commencement of trial, operates to terminate or revoke an offer of judgment. In support of her contention that an offer to confess judgment is irrevocable during the five day acceptance period, Tucker relies on Hernandez, supra. In Hernandes, the plaintiff filed a negligence action following a slip and fall, The defendant filed a motion for summary judgment and, while the motion was pending, the defendant submitted to the plaintiff an offer of judgment pursuant to § 1101. The trial court issued its order granting summary judgment to the defendant within the five day acceptance period for the offer of judgment. The plaintiff then filed her acceptance of the offer of judgment within the five day period, but after summary judgment had been granted to the defendant. The trial court held that the grant of summary judgment caused the offer of judgment to be withdrawn. The trial court accordingly refused to enter judgment in favor of the plaintiff as provided for in § 1101.

17 This court reversed, finding that the purpose of §1101 is to encourage pretrial settlement. The Hernandes court further determined that offers of judgment are irre-voeable during the statutory period because the statute does not provide for revocation of an offer. The court further held that the statute requires entry of judgment for the plaintiff upon acceptance of the offer within the five day period. In deciding what effect the interviewing grant of summary judgment had, the court, relying primarily on Centric-Jones Co. v. Hufnagel, 848 P.2d 942 (Colo.1993), held that an interviewing judgment has no effect on a pending offer of judgment. The court quoted the following from a concurring opinion in Centric-Jones:

While the offer of judgment remains outstanding, the trial court is not stripped of the power to issue summary judgment ... or from issuing any other ruling affecting the rights of the parties. The statute provides no vehicle or requirement for notifying the trial court that an offer of judgment is outstanding, nor does it provide that the trial court lacks power to decide issues relating to the substantive rights of the parties while an offer is outstanding.
Any trial court ruling made during the period of time the offer is outstanding is effective and valid, subject only to a possibility that the ruling will be of no consequence if the offer of judgment is accepted.

Id. at 949. The court held that a grant of summary judgment remains interlocutory during the statutory acceptance period for an offer of judgment. The court noted that other jurisdictions have held that a grant of summary judgment makes a later acceptance of an offer of judgment ineffectual, but this court concluded that the offer to confess judgment "was not affected by the intervening judgment of the court, ..."

18 Tucker also relies on Allison, supra. In Allison, the city made an oral offer to settle the case for $25,000, inclusive of attorney fees and costs. The plaintiffs rejected the offer based on their contention that the $25,000 should be exclusive of attorney fees and costs. On the day of trial, the city submitted a written offer of judgment for $15,000, with no mention of attorney fees. The plaintiffs accepted the offer and trial was not held. The plaintiffs then sought prevailing party attorney fees and the city objected to the acceptance of the offer, contending that it included attorney fees. The trial court refused to allow the city to withdraw or modify the offer of judgment and the city appealed. This court held that an offer of judgment made pursuant to § 1101 is irrevocable during the five day acceptance period and during that time may not be withdrawn, modified or revoked by a party or the court. This court noted that traditional contract principles of offer, counteroffer and revocation are inapplicable to § 1101 offers of judgment, so that the plaintiff's counteroffer did not affect the city's offer during the five day acceptance period. This court affirmed the trial court's decision based in part on the holding in Hernandez, that offers of judgment are irrevocable during the statutory five day period.

19 Tucker also relies on Perkins v. U.S. West Communications, 188 F.3d 336 (8th Cir.1998). Perkins, like Hernandes, involved an offer of judgment followed by a grant of summary judgment during the acceptance period and then a later, timely acceptance of the offer. In Perkins, the offer was made pursuant to Rule 68 of the Federal Rules of Civil Procedure. That rule provides that more than ten days before the start of trial, an offer of judgment may be made, at which time the plaintiff has ten days in which to accept the offer. See note 8, supra. The Eighth Cireuit Court of Appeals held that the district court has no discretion under the rule to do anything but enter judgment for the plaintiff when an offer has been accepted within the statutory period. As in Hernandez, the court held that an offer of judgment remains open for the statutory period regardless of whether summary judgment has been entered during that time.

110 Tucker relies on these cases for her position that the offer of judgment made by Elks Lodge was irrevocable during the five day period, and that the intervening trial and jury verdict did not impact the acceptance period. However, the key distinction between the cases Tucker relies on, and the instant case, is that Hernandes and Perkins, involved summary judgment, and in Allison, the offer of judgment was accepted and there was no trial. Further, the Perkins court distinguished cases involving summary judgment, which is necessarily granted before trial, from cases in which

offers of judgment were determined by the courts to be unenforceable under Rule 68 or its state equivalent as a result of the start or conclusion of trial,.... See Stoebe v. Merastar Ins. Co., 554 NW.2d 783, 736 (Minn.1996) (refusing to enforce offer of settlement not accepted prior to trial); Larson v. A.TSI, 859 P.2d 273, 274-15 (Colo. (refusing to apply Centric-Jones to allow plaintiff to accept offer after entry of jury verdict); Hanzelik v. Grottoli and Hudon Inv. Of America, Inc., 687 So.2d 1363, 1366 (Fla.App.1997) (holding party may not accept offer of judgment after trial has commenced); O'Brien v. Russell, 698 So.2d 642, 643 (Fla.App.1997) (rejecting plaintiff's attempt to accept offer of judgment after trial); Braham v. Carncross, 514 So.2d 71, 73 (Fla.App.1987) (refusing to allow acceptance of offer after jury verdict rendered).

Perkins at 339. We agree that this an important distinction. In Stoebe, the court held that an offer of judgment loses viability upon the commencement of trial, whether or not the statutory acceptance period has expired. 554 N.W.2d at 736. In Larson, the Colorado Court of Appeals determined that, to allow acceptance of an offer of judgment after a jury verdict in favor of the defendant would not support the purpose of the offer of judgment rule which is to encourage pre-trial settlement. 859 P.2d at 275. In O'Brien, the state statute afforded thirty days in which to accept offers of judgment. As in the instant case, the plaintiff in O'Brien attempted to accept a judgment offer within the statutory time period, but after a jury verdiet in favor of the defendants. In rejecting the plaintiff's attempted acceptance, the Florida Court of Appeals noted that statutes are not to be interpreted so as to yield an absurd result and cited Brakam, supra, for the holding that to allow a party to accept an offer contrary to the jury's verdiet "would totally defeat the ends of justice." 698 So.2d at 643. Also see Brader v. Minute Muffler, 81 Wash.App. 532, 914 P.2d 1220 (Wash.App.1996) (offer cannot remain open after trial has begun).

«11 We agree that the purpose of the statute, to encourage pre-trial settlement, would not be served by allowing plaintiffs to accept an offer of judgment after a jury verdict has been rendered. We accordingly affirm the trial court's determination, and hold that an offer of judgment under § 1101 terminates upon the commencement of trial. We note, without deciding, that other courts have determined that where offers of judgment are terminated because a trial begins before the statutory response time expires (here five days), that the resulting judgment may. not be used to shift costs and attorneys fees to the offeror under the statute or rule. See Stoebe v. Merastar Ins. Co., 554 N.W.2d 733 (Minn.1996); Hudon Investment, 687 So.2d 1363 (Fla.App.1997), rev. denied. 697 So.2d 510 (Fla.1997).

AFFIRMED.

1 12 JONES, P.J., concurs.

1 13 GARRETT, J., specially concurring.

GARRETT, J.,

specially concurring:

T 1 I concur. In my view, any other result in this case would be absurd.

1 2 However, I feel that I should say that I disagree with the decisions of other divisions of this court in Hernandez v. United Supermarkets of Oklahoma, Inc., 1994 OK CIV APP 122, 882 P.2d 84, and Allison v. City of El Reno, 1994 OK CIV APP 170, 894 P.2d 1133. I agree with the dissenting opinion of Judge Taylor in Allison.

T3 Also, I would hold that an offer to confess judgment is terminated when the other party rejects it. This court should not attempt to legislate an enlargement of matters covered by the statute by issuing a Judicial Decree.

      . We will assume, without deciding, that transmitting the offer of judgment by facsimile after 5:00 p.m. constitutes service under 12 0.$.1991 § 2005. The question in this case would be whether transmitting by facsimile is the equivalent of "Leaving it at his [attorney's] office with his clerk or other person in charge thereof." See § 2005(B)(2). While Tucker argues that her attorney's office closed at 5:00 p.m., there was no evidence that there was no clerk or person in charge of the office present when the offer of judgment was received.

      . The parties dispute whether 12 0.$.1991 § 2006 applies to extend the five day period by not counting intervening Saturdays, Sundays, and holidays. Because we see no good reason to creale an exception as to how days are counted in accordance with § 2006 ("In computing any period of time prescribed or allowed by this title ...."), we hold that the five days allowed in § 1101 should be counted as prescribed in § 2006.

      . We note that Federal Rule of Civil Procedure 68 resolves this issue by requiring offers of judgment to be made more than 10 days before trial, then allowing 10 days to accept the offer. Title 12 0.$.1995 § 1101.1 also includes a provision for offers of judgment to be made more than 10 days before trial with a 10 day response time. However, because § 1101.1 specifically allows for counter-offers, with a concomitant 10 day response time, the counteroffer procedure may impinge a trial date. We read these provisions to express the purpose of offers of judgment statutes and rules to encourage settlements and avoid trials.

      . But see Preuss v. Stevens, 150 Ariz. 6, 721 P.2d 664, 665 (Ariz.App.1986) (offer of judgment is ineffectual for any purpose after district court has ruled on motion for summary judgments).


author: BUETTNER, Judge: €28 GARRETT, J.,

text:
    2000 OK CIV APP 65.
    In the Matter of T.M., A.M., and A.M., Children Under 18 Years of Age. Tammy McElroy, Appellant, v. State of Oklahoma, Appellee.
    No. 93,412.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    April 21, 2000.

      Cliff A. Stark, Tulsa, Oklahoma, For Appellant,
    Tim Harris, District Attorney, Yvonne Fisher Glick, Assistant District Attorney, Tulsa, Oklahoma, For Appellee.
    Julie K. McMahon, Assistant Public Defender, Tulsa, Oklahoma, For TM., AM., and A.M.
   BUETTNER, Judge:

T1 Appellant Tammy McElroy (Mother) appeals from judgment entered on a jury verdict which terminated Mother's parental rights in her children TM., A.M. and A.M. (children). Appellee State of Oklahoma (State) filed its petition seeking to have the children adjudicated deprived June 18, 1997. The petition was based on allegations that the father had sexually abused the oldest child, T.M. Mother stipulated to the deprived adjudication. Father was prosecuted for sexual abuse of TM. and is now serving a life sentence. The State then filed its Motion to Terminate Parental Rights as to Mother and a jury trial was held. Mother asserts as errors in the trial on the motion to terminate: 1) the addition of a ground for termination not included in the petition to adjudicate deprived; 2) the statutory provision allowing termination of parental rights upon the children being in foster care for 15 of the preceding 22 months is unconstitutional as an ex post facto law; 3) lack of competent evidence to support a finding that Mother failed to correct the conditions leading to the deprived adjudication, and 4) fundamental error in the failure to file an individual treatment and service plan. Finding no error, we affirm the order of termination of parental rights.

[ 2 Children were removed from their parents' home and placed in foster care following an allegation that the father sexually abused the oldest child, T.M., then 8 years old. T.M. alleged that Father foreed her to submit to sexual intercourse over the course of several months. T.M. also alleged that Mother knew of this abuse and did nothing to stop it. The petition to adjudicate Children deprived was filed June 13, 1997. It alleged that Children were deprived based on: 1) sexual abuse of T.M. by Father dating back to November 1996; 2) Mother's denial of the sexual abuse; 3) Mother's report that she was sexually abused by her step-father coupled with Mother allowing her step-father access to Children; and 4) a family history of domestic violence. Specifically, the petition charged Mother with failure to protect Children from abuse. Mother stipulated to the deprived adjudication September 4, 1997.

8 The first court report from a disposi-tional hearing was filed October 16, 1997. In that report, Mother was first warned that failure to complete the standards of conduct may result in the termination of her parental rights. Additionally, a similar warning was placed at the end of the standards which were attached to the court report.

14 The same warning is included in the treatment plan, also attached to the court report. The first document in the record indicating Mother witnessed at least one occasion of sexual abuse of TM. is the court report filed January 16, 1998, following a court review held January 14, 1998. That document noted that TM. had reported that Mother entered the room while Father was sexually abusing TM. and Mother turned around and walked out.

1 5 A report filed by the Oklahoma Center for Play Therapy, filed January 80, 1998, indicates that A.M. reported that Mother knew that Father was sexually abusing TM. but "didn't want her to tell." A full disposition order following the October 15, 1997 disposition hearing was filed March 11, 1998. It included the standards of conduct agreed to by Mother. These standards included payment of child support, maintaining employment, completion of a parenting skills program, providing a safe, stable home free from fear of sexual abuse, visitation with Children, maintaining contact with the assigned social worker, completion of the non-perpetrator specific counseling program Phases I and II at Family and Children's Services, submission to a psychological evaluation, and completion of counseling for codependency, domestic violence and sexual abuse issues. This document also contained the warning that failure to correct the conditions could result in termination of parental rights.

T6 Another court review hearing was held September 9, 1998. The hearing report filed September 17, 1998 again notes T.M.'s allegation that Mother witnessed the sexual abuse by Father. A court report made by the Oklahoma Center for Play Therapy filed January 15, 1999, includes the first mention of Mother leaving a stick of gum for TM. upon witnessing the sexual abuse. A psychological evaluation of TM. made in November 1998 and filed January 25, 1999 also mentions the stick of gum episode. A letter written by TM. after the adjudication of deprived status includes T.M.'s statement that Mother walked into T.M.'s bedroom while the father was sexually abusing TM. and left a stick of gum for T.M. and walked out,. Mother raises the issue of the "stick of gum" allegation in her appeal and that objection will be discussed below.

T 7 The State filed its Motion to Terminate Parental Rights March 11, 1999. The Motion alleged that Children had been adjudicated deprived September 83, 1997 and that Mother had failed to correct the conditions leading to the deprived adjudication after being given at least three months in which to correct the conditions, citing 10 O.8.Supp. 1998 § 7006-1.1(A)(5). The motion further alleged that Mother had failed to support Children, citing 10 O.S8.Supp.1998 § 7006-1.1(A)(7). The motion next asserted that Mother failed to protect Children from physical or sexual abuse which is heinous and shocking or which has caused Children to suffer severe harm or injury, citing 10 O.S.8upp.1998 § 7006-1.1(A)(10)(b). Finally, the State alleged that it is in Children's best interest to terminate Mother's parental rights.

18 Jury trial was held June 15 and 16, 1999, resulting in a verdict terminating Mother's parental rights. On appeal, Mother first argues that the addition of the ground that she failed to protect Children from abuse that is shocking and heinous in the Motion to Terminate essentially effected a readjudication of the deprived status on a new ground because that ground was not included in the original petition to adjudicate deprived. Mother also challenges the admission of the "stick of gum" letter to prove Mother knew of the sexual abuse and failed to protect Children. Mother asserts that this "new" evidence was not before the court at the time of the adjudication of deprived status. However, Mother has failed to present authority that evidence gained between the time of the deprived adjudication and the trial on the motion to terminate may not be admitted. TM. testified at trial about the incident in which Mother walked into her bedroom while the father was sexually abusing TM. Additionally, we note that failure to protect from abuse was listed as a ground in the petition to adjudicate deprived. Finally, the statutory provision for termination of parental rights based on failure to protect from physical or sexual abuse which is heinous or shocking does not require a prior adjudication of deprived status. See 10 ©.8.Supp.1998 § 7006-1.1(A)(10). That seetion provides:

A. Pursuant to the provisions of the Oklahoma Children's Code, the finding that a child is delinquent, in need of supervision or deprived shall not deprive the parents of the child of their parental rights, but a court may terminate the rights of a parent to a child in the following situations. The paramount consideration in proceedings concerning termination of parental rights shall be the health, safety and best interests of the child:
10. A finding in a deprived child action either that:
a. the parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or a sibling of such child from physical or sexual abuse that is heinous or shocking to the court,
b. the child or sibling of such child has suffered severe harm or injury as a result of such physical or sexual abuse,
c. the parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or a sibling of such child from physical or sexual abuse subsequent to a previous finding that such parent has physically or sexually abused the child or a sibling or such child or failed to protect the child or a sibling of such child from physical or sexual abuse,
d. the child has been adjudicated a deprived child, pursuant to the provisions of the Oklahoma Children's Code, as a result of a single incident of severe sexual abuse, severe neglect or the infliction of serious bodily injury or torture to the child, a sibling of the child, or a child within the household where the child resides, by the parent of the child, or
e. the parent has inflicted chronic abuse, chronic neglect or torture on the child, a sibling of the child or another child within the household where the child resides; * * *. (Emphasis added).

T 9 The parties and the trial court conducted a lengthy debate at trial over whether the allegation of failure to protect from sexual abuse which is heinous and shocking must have been included in the original petition to adjudicate deprived status in order to be included in the grounds alleged in the motion to terminate parental rights. The State argued, and the trial court agreed, that § 7006-1.1(A)(10) does not require a prior adjudication of deprived status in order to terminate parental rights. Rather, that subsection requires only that termination may be effected under that subsection "in a deprived action," whereas § 7006-1.1(A)(5), the other subsection asserted in the instant case, specifically requires a prior adjudication of deprived status, along with at least three months in order to correct the conditions, before parental rights may be terminated.

110 Indeed, this court has explained that § 7006-1.1(A)(10) provides for immediate termination of parental rights upon a finding of sexual or physical abuse which is heinous or shocking, without a prior adjudication of deprived status or an opportunity to correct conditions. Matter of L.C., 1998 OK CIV APP 96, 962 P.2d 29, 83. In that case, this court held that "(o)nee the trier of fact determines that a child is deprived by reason of physical or sexual abuse, [§ 7006-1.1(A)(10) ] authorizes immediate termination of parental rights only if the abuse is heinous or shocking." In other words, as § 7006-1.1(A)(10) provides, the finding that the child is deprived as a result of heinous or shocking abuse and therefore subject to immediate termination must be made as part of a deprived action. The State urged at trial that a termination proceeding is part of a "deprived action."

111 We agree that the entire proceeding, from the time a petition to adjudicate deprived has been filed until the matter has been completed, either by termination of parental rights or by dismissal of the action, constitutes a "deprived action." Supporting this determination is the fact that other portions of § 7006-1.1(A) specifically require a prior deprived adjudication, while certain other subsections, particularly § 7006-1.1(A)(10)(a) do not require a prior deprived adjudication. The fact that Children, in the instant case, were previously adjudicated deprived does not preclude the State from proceeding under § 7006-1.1(A)(10)(a) to terminate parental rights for failure to protect from abuse which is heinous or shocking. Such process does not constitute a "readjudi-cation" of the deprived status as urged by Mother because the deprived adjudication under § 7006-1.1(A)(5) provides the parent with 90 days in which to correct conditions leading to the deprived adjudication. Section 7006-1.1(A)(10) requires no prior adjudication and termination may be immediate. If the State develops evidence after the deprived adjudication that would support termination under § 7006-1.1(A)(10), we see no prohibition against proceeding under both § 7006-1.1(A)(5) and § 7006-1.1(A)(10) in a single termination proceeding.

112 We also look to the definition of "deprived child" in the Oklahoma Children's Code. Title 10 0.8.8upp.1996 § 7001-1.8(10)(a)(2) includes in the definition of deprived child one "who does not have the proper parental care or guardianship or whose home is an unfit place for the child by reason of neglect, abuse, eruelty, or depravity on the part of the child's parents, legal guardian, or other person responsible for the child's health or welfare." This definition indicates that as long as a child is removed from the parents' home because the home is unfit, the child may be considered deprived. Accordingly, the action remains a "deprived action" for the duration of the proceedings. The trial court obtains jurisdiction in a deprived action upon the filing of a petition or upon the assumption of custody and may retain jurisdiction until the child reaches 18 years. 10 O0.S8.S8upp.1996 § 7002-1.1(A). Further, the Oklahoma Children's Code provides for the court to conduct disposition hearings after the deprived status adjudication, indicating that the trial court's jurisdiction in the deprived action continues until either termination of parental rights or dismissal or the child's attaining majority. See 10 0.S$.S8upp.1998 §§ 7008-5.1 through 7008-5.6b.

113 We find that Mother had notice at the time the petition to adjudicate deprived status was filed that failure to protect from sexual abuse had been alleged. We also note that the heinous and shocking ground was included in the motion to terminate parental rights filed three months before trial so that Mother was on notice at that time. Further, we find that the "deprived action" continued through the trial on the motion to terminate so that the State could allege in its motion to terminate a failure to protect from abuse which is heinous or shocking, without prejudicing Mother based on the statutory provision allowing immediate termination on that ground.

114 Mother's next assertion of error is that 10 O.8.S8upp.1998 § 7006-1.1(A)(15) and 10 0.S$.8upp.1998 § 7003-4.7 are unconstitutional because they deny Mother's right to a jury trial and because they constitute ex post facto laws. Section 7003-4.7 provides:

A. Except as otherwise provided by this section, the district attorney shall file a petition for termination of the parent-child relationship and parental rights with respect to a child or, if a petition has been filed, shall join in the petition filed by the child's attorney, pursuant to any of the following cireumstances:
1. The child has been placed in foster care by the Department of Human Services for fifteen (15) of the most recent twenty-two (22) months.... goth ock
B. -If any of the following conditions exist, the district attorney is not required to file a petition as provided in subsection A of this section for a deprived child:
1. At the option of the Department of Human Services or by order of the court, the child is properly being cared for by a relative;
2. The Department of Human Services has documented in the child's case plan that is provided or available to the court a compelling reason for determining that filing the petition would not be in the best interests of the child; or
3. The state has not provided to the family of the child, consistent with the time period in the state case plan, such services as the state deems necessary for the safe return of the child to the child's home, if reasonable efforts are required to be made with respect to the child.

Section § 7006-1.1(A)(15) provides:

A. Pursuant to the provisions of the Oklahoma Children's Code, the finding that a child is delinquent, in need of supervision or deprived shall not deprive the parents of the child of their parental rights, but a court may terminate the rights of a parent to a child in the following situations. The paramount consideration in proceedings concerning the termination of parental rights shall be the health, safety and best interests of the child:
15. A child has been placed in foster care by the Department of Human Services for fifteen (15) of the most recent twenty-two (22) months....

1 15 Mother argues that these sections arbitrarily require termination based on time and that these sections therefore are strict liability statutes which have denied Mother her right to a jury trial. Mother further argues that the three exceptions listed in § 7003-4.7(B) should be available to her as defenses under § 7006-1.1(A)(15). The answer to these contentions is that § 7006-1.1(A) states that termination is permissive, not mandatory, and includes the provision that the paramount consideration in any termination case is the best interests of the child. Accordingly, $ 7006-1.1(A)(15) is not a strict liability statute, and Mother had the "defense" of best interests available to her.

116 Mother also argues that § 7006-1.1(A)(15) is unconstitutional as an ex post facto law. Mother asserts that, because the law became effective eleven months before trial in the instant case, the fifteen month time period embraced by the statute began before the statute became effective. This court has determined that § 7006-1.1(A)(15) may be an ex post facto law in certain cireumstances. See In re M.C. and N.C., 1999 OK CIV APP 128, 993 P.2d 137. In In re M.C. and N.C., the only ground alleged for termination originally was failure to correct conditions. However, a mistrial was declared and two weeks before the retrial, the State added the ground that the children had been in foster care for 15 of the previous 22 months. The jury found that the father had corrected the conditions, but recommended termination based on the length of time in foster care. In In re M.C. and N.C., the motion to terminate had been pending since April 1997, while § 7006-1.1(A)(15) became effective June 11, 1998. This court noted that § 7006-1.6(A) indicates that § 7006-1L.1(A)(15) applies to children who were in out-of-home placement as of November 17, 1997, so that the Legislature intended for the statute to be applied retroactively. This court concluded however, in In re M.C. and N.C., that the children had been in foster care during the pendency of termination proceedings, that the termination proceedings were initially filed before the effective date of § 7006-1.1(A)(15) and therefore could not have been included as a ground for termination. The court held that the father was being penalized for asserting his right to a jury trial, because the time included in the father's wait for a jury trial was included in the 15 month statutory period. The final factor considered by court was the fact that the § 7006-1.1(A)(15) ground was added only two weeks prior to trial, As a result, the court held that application of § 7006-1.1(A)(15) had the type of ex post facto effect forbidden by the Oklahoma Constitution.

117 The instant case is distinguishable. In the instant case Children were placed in foster care in June 1997. The Motion to Terminate Parental Rights was not filed until March 11, 1999, well after § 7006-1.1(A)(15) became effective. Further, Children were in foster care for fifteen months prior to the filing of the Motion to Terminate, so that Mother's assertion of her right to a jury trial did not contribute to the statutory period in foster care. Lastly, Mother had three months notice of this ground for termination. We therefore find no ex post facto application of law in the instant case.

118 Mother next argues that the jury's determination that she failed to correct the conditions leading to the deprived adjudication is not supported by competent evidence. Mother correctly notes that failure to complete every requirement of the service plan is not alone grounds for termination of parental rights. See Matter of J.M., 1993 OK CIV APP 121, 858 P.2d 118. The State must prove that termination is in the best interests of Children by clear and convincing evidence and the burden then shifts to Mother to show that she has corrected the conditions leading to the deprived adjudication. Id. at 120, 858 P.2d 118. Deborah Harding, the social worker assigned to the case during the last six months of 1998, testified that while she was assigned to the case, she received no documentation that Mother met her child support obligation, became employed, completed parenting classes or signed releases of information. Further, Harding testified that Mother was living with her mother and step-father during the pen-dency of the case, despite Mother's reports that her step-father had sexually abused Mother as a child. Mother later moved in with her in-laws, the father's parents who continued to deny that their son had sexually abused T.M. One of the conditions which Mother was required to meet was providing a stable home free from the threat of sexual abuse. Harding opined that, although Mother completed some of the standards of conduct, Mother had not corrected the conditions leading to the deprived adjudication.

119 Patricia Miller, a child welfare treatment worker for DHS testified that Mother had made one child support payment and had not completed a parenting skills program. Miller testified further that Mother was living with her in-laws and that Children's grandmother (Mother's mother-in-law) had been denied visitation with Children because she had tried to coach them to change their testimony. Miller concluded that the in-laws' home was not a safe and stable environment for Children. Miller further testified that Mother had visited A.M. and A.M., but had not had regular visitation with TM. Miller also testified that she had not received documentation that Mother received counseling at Domestic Violence Intervention Services.

T20 Francey Bates, a therapist with the Parent/Child Center of Tulsa, testified that Mother attended a ten week session of counseling, but continued to deny that the father had sexually abused TM. Bates opined that, although the father is out of the home and in prison, Children would continue to be at risk because Mother has refused to accept that the father abused TM.

{21 Lorie Oliver, a therapist with Oklahoma Center for Play Therapy testified that T.M. and A.M., the two older children in the family, became her clients in September 1998. Oliver testified that A.M. suffered sexual abuse from her sister TM. Oliver testified that T.M.'s issues in therapy included lying, stealing, perpetrating sexual abuse, and not knowing right from wrong. Oliver reported TM. was sexually abused by her father. Oliver reported that Children and Mother conducted a session together in which Children reported what changes they needed at home and Mother reacted flatly with no indication she would change. Oliver opined that termination of Mother's parental rights is in the best interests of A.M. and AM.

122 C.T. Hurd, an employee of the Mack Alford Correctional Center where the father is incarcerated, testified that Mother visited the father in prison at least twice a month beginning in October 1998 through the time of trial. Mother testified that she had informed her. prior counsel in a letter that she did not plan to divorce her husband. Mother testified that she is unsure whether she believes that TM. was sexually abused by the father.

23 Jeff Riggenbach, a therapist with the bair foundation, testified that he became T.M.'s therapist after she was transferred to therapeutic foster care as a result of her sexual abuse of her siblings. Riggenbach testified that TM. suffers from severe anxiety associated with her parents: Riggenbach testified that TM. hates Mother and is afraid Mother will bring another sexual abuser into the home. Riggenbach concluded that it is in T.M.'s best interests to terminate Mother's parental rights.

124. This summary of the evidence indicates that the State met its burden of proving by clear and convincing evidence that termination of parental rights was in the best interests of Children. Mother then had the burden of proving that she had corrected the conditions leading to the deprived adjudication. Matter of J.M., supra. Mother presented no evidence at trial. Accordingly, Mother did not satisfy her burden of proving that she had corrected the conditions.

125 Mother's final allegation of error on appeal is that fundamental error occurred because no individual treatment and service plan was filed. Mother argues that the only treatment plan filed in the instant case was filed April 29, 1999, a month after the Motion to Terminate Parental Rights was filed, despite 10 O.8.Supp.1998 § 70083-5.3(A), which requires a treatment plan to be filed within thirty days of the deprived adjudication. Mother further argues that the treatment plan failed to contain the statutory warning that failure to provide a safe home could result in termination of parental rights as required by 10 O.S$.S8upp.1998 § 70083-5.3(F). Mother failed to raise this issue at trial, but on appeal argues that it is fundamental error. However, as explained above, Mother's Stipulated Adjudication Order was filed September 4, 1997. A court report filed October 16, 1997 included court ordered standards for Mother to correct the conditions, and also included a warning to Mother that failure to complete the standards could result in termination of parental rights. Also attached to that October 1997 court report is a document titled "treatment plan" and signed by two social workers in October 1997. The treatment plan contains the statutory warning provided by § 7008-5.8(F). The record demonstrates that Mother was given statutory notice in the form of a treatment PAM; along with court ordered standards well over a year before the Motion to Terminate WaS filed. We find no fundamental error.

126 Having found no errors at trial, the order terminating Mother's parental rights in TM., A.M. and A.M. is AFFIRMED.

T 27 JONES, P.J., concurs.

€28 GARRETT, J.,

concurring in result:

{29 While I agree with Appellant's ex post yoyo argument, there were alternative grounds to uphold the judgment of the trial court,

      . Father stipulated to termination of his rights after his conviction.

      . A dispositional hearing shall be held and a report filed within 40 days of the deprived adjudication. 10 0.S.Supp.1997 § 7003-5.5(A).

      . See 10 O.S$.$upp.1995 § 7003-4.4 ("If the court finds that the allegations of the petition are not supported by the evidence, the court shall order the petition dismissed and shall order the child discharged from any custody. ...")

      . Also see In the Matter of A.G. and E.G., 2000 OK CIV APP 12, 996 P.2d 494, n. 2, (approving the retroactive application of § 7006-1.1(A)(15)).

      . TM. had been moved to a foster home in another county and Oliver's sessions with her were discontinued.


author: HOWE, Chief Justice:

text:
    2000 UT 60
    STATE of Utah, Plaintiff and Appellee, v. Justin R. KRUGER, Defendant and Appellant.
    No. 981517.
    Supreme Court of Utah.
    July 11, 2000.

      Jan Graham, Att'y Gen., Laura B. Dupaix, Asst. Att'y Gen., Salt Lake City, for plaintiff.
    Linda M. Jones, Heidi A. Buchi, Salt Lake City, for defendant.
   HOWE, Chief Justice:

INTRODUCTION

T1 Defendant Justin R. Kruger appeals from his jury conviction of murder, a first degree felony in violation of Utah Code Ann. § 76-5-203 (1995), contending that the trial court erred in denying his request for a jury instruction on the lesser included offense of manslaughter because there was evidence that he committed the offense recklessly or under extreme emotional disturbance. See § 76-5-205(1)(a), (1)(b) (1995).

BACKGROUND

12 When reviewing a jury verdict, we examine the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict, and we recite the facts accordingly. See State v. Gordon, 913 P.2d 350, 351 (Utah 1996). We present conflicting evidence only when necessary to understand issues raised on appeal. See State v. Dunn, 850 P.2d 1201, 1206 (Utah 1993).

T3 On Friday, September 12, 1997, Kruger went to a local mall to play video games with his friends, Shane Nielson and Richard Nelson. While there, Kruger asked Shane if he would lend him his .82 caliber pistol in exchange for seven dollars. Shane agreed to the exchange and gave Kruger the pistol later that day.

{4 Sometime later that night, Kruger came upon Soloman Garcia Vasquez (Garcia), who was sitting in a car stopped near 1000 West and 600 North in Salt Lake City, Utah. Kruger put the borrowed pistol, which he held in his right hand, through the partially open passenger-side window of Garcia's car and allegedly told Garcia to give him all his money. Garcia replied that he did not speak English and began to drive away. Kruger then fired the pistol. Kruger contends that his hand hit the car as Garcia was pulling away, causing him to fire the gun accidentally. Garcia grabbed his chest, screamed, and drove off, He was found a short time after midnight, still sitting in his car, unconscious and slumped over the steering wheel. He died from a gunshot wound to the chest.

15 Kruger later confessed his involvement in the attempted robbery and the shooting to at least five people: his friends, Richard Nelson and Shane Nielson (from whom he had borrowed the pistol); his sister, Anne Kruger; and Detectives James W. Prior and Steve Cheever of the Salt Lake City Police Department Homicide Squad. Four of those persons testified at trial. '

T6 Richard Nelson testified that during a conversation he had with Kruger on the day after the shooting, Kruger told him that he had "tried to rob somebody"; that "he went to a car and tried to get his wallet and he didn't-he shot him"; and that Kruger shot Garcia when he failed to heed Kruger's warning, "if you move I'll shoot you." According to Richard, Kruger did not tell him that the gun went off accidentally.

17 Shane Nielson spoke with Kruger about the shooting when he asked Kruger to return his gun. Shane testified that Kruger told him the shooting occurred near 600 North during Kruger's attempt to get money from Garcia: "He said he went to rob somebody for money, and I guess the guy took off and somehow he shot him or something."

18 Kruger's sister, Anne, also testified that the shooting occurred during his attempt to rob Garcia:

[Kruger] said that he went to rob somebody, and he had a gun and he stuck it in the window and he told the guy to "give me all your money," because he had some money sitting on the seat,. And he said, "No comprende English, only Espanol," and he stepped on the gas and drove off.... [The guy drove off and he moved and [Kruger] shot him.

19 Detective Prior testified that during questioning at the police station, Kruger confessed to shooting Garcia during an attempt to rob him. Prior testified that his colleague, Detective Cheever, said to Kruger:

We believe ... that someone was getting robbed! And that the robbery occurred, and then for some reason ... there was a shot that was fired. We've been talking to other people! We believe that we can prove you did that! Justin, you need to tell us about it. Justin, tell me about it.

And that Kruger responded:

I was sitting out there, and I was doing it-and he took off-was taken [sic] off.

T10 Kruger was charged with murder under the alternative theories of felony murder and depraved indifference murder in violation of section 76-5-203. At trial, Kruger requested a jury instruction on the lesser included offense of manslaughter, contending that the shooting was the result of extreme emotional disturbance, or in the alternative, recklessness pursuant to subsections 76-5 205(1)(a) and (1)(b) of section 76-5-205. The trial court denied defendant's request, stating that "there is no evidence to support giving the manslaughter instruction in this case given the manner in which this case is charged and the totality of the evidence." The jury returned a verdict convicting Kruger of criminal homicide, murder. Kruger now appeals, contending that the jury should have been given the opportunity to consider the lesser offense of manslaughter.

ANALYSIS

I. INSTRUCTIONS ON A LESSER INCLUDED OFFENSE

T11 Whether a trial court committed error in refusing to give a requested jury instruction is a question of law, which we review for correctness. See State v. Hamilton, 827 P.2d 232, 238 (Utah 1992).

112 When a lesser included instruction is requested by the defendant, the trial court must apply an "evidence-based" standard to decide whether the instruction is appropriate. See State v. Piansiaksone, 954 P.2d 861, 869 (Utah 1998) (citing State v. Baker, 671 P.2d 152, 157 (Utah 1983)). This standard, clearly outlined by this court in Baker, provides a two-pronged analysis that mirrors the statutory framework set out in section 76-1-402. First, the court must determine whether the claimed lesser offense is an offense "included" in the charged offense. See State v. Crick, 675 P.2d 527, 529 (Utah 1983); Baker, 671 P.2d at 158-59. An offense. is included when it falls within one of the definitions of section 76-1-402(8), as interpreted by our case law. See Crick, 675 P.2d at 529; Baker, 671 P.2d at 158. Section 76-1-402(8) states that a lesser offense is included when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) It constitutes an attempt, solicitation, conspiracy, or form of preparation to commit the offense charged or an offense otherwise included therein; or
(c) It is specifically designated by a statute as a lesser included offense.

T 13 After determining that the offense is "included" under section 76-1-4028), the court must decide whether "there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." § 76-1-402(4); see also State v. Pearson, 943 P.2d 1347, 1350 (Utah 1997); State v. Hansen, 734 P.2d 421, 424 (Utah 1986); Crick, 675 P.2d at 530-31 (holding that it is not enough to find that the evidence would support a conviction of the lesser offense, but that "the evidence must provide a rational basis for both acquitting of the charged offense and convicting of the lesser included offense"); Baker, 671 P.2d at 159.

{14 In determining whether there is a "rational basis" in the evidence to support both acquittal of the greater and conviction of the lesser offense, a trial judge, though he or she cannot weigh the credibility of the evidence, must nevertheless decide whether there is "a sufficient quantum of evidence" to send this issue to the jury. Baker, 671 P.2d at 159. To make this determination, the trial court must "view the evidence and the inferences that can be drawn from it in the light most favorable to the defense." Crick, 675 P.2d at 532 (citing State v. Gillian, 28 Utah 2d 372, 376, 463 P.2d 811, 814 (1970).

115 In sum, when a defendant requests a jury instruction on a lesser included offense, the evidence-based standard requires that the instruction be given when the trial court determines that (1) the lesser offense is "included" in the offense charged, and (2) there is evidence to justify acquittal of the greater offense and conviction of the lesser offense.

116 Though we have determined that manslaughter can be a lesser included offense of depraved indifference murder, see generally Piansiaksone, 954 P.2d 861, we need not determine now whether manslaughter is a lesser included offense of felony murder under the first prong of Baker. Even were we to assume that it is, defen-

17 Viewing the facts and reasonable inferences in a light most favorable to defendant, we conclude that Kruger did not adduce, as is required under the second prong of Baker, a "sufficient quantum of evidence" to create a jury question as to whether the shooting occurred while Kruger was in the act of doing something other than committing a robbery. The only evidence Kruger presented to support his argument that he was not attempting to rob Garcia was the testimony of his sister, Anne. She testified that Kruger told her he had shot somebody while attempting to commit robbery. Anne stated, however, that she did not believe Kruger's story because he often fantasized or exaggerated. Anne testified as follows: Mr. Seoweroft: You told the police that when you talked to Justin about this event, the shooting, you didn't believe Justin was telling you the truth. Anne: That's right. Mr. Scowcroft: And you told the police that Justin has a way of fantasizing? Anne: Fantasizing isn't the right word. It's his way of getting attention. Mr. Scoweroft: You used the word "fantasizing," didn't you? Anne: I don't remember. Mr. Scoweroft: Okay. Let me try to refresh your memory in that regard. Let me direct your attention to page 8 lines 17 and 19.... Let me just have you read that to yourself. ... Have you had an opportunity to read that, Ms. Kruger? Anne: Um-hum. Mr. Scoweroft: Didn't you tell the police that Justin has a way of fantasizing about things? Anne: I did. Mr. Scoweroft: You did say that? Anne: Uh-huh. Mr. Scoweroft: Do you think there is some truth to that? ~ Anne: Yeah.

Mr. Seoweroft: You told the police that when you talked to Justin about this event, the shooting, you didn't believe Justin was telling you the truth.
Anne: That's right.
Mr. Scowcroft: And you told the police that Justin has a way of fantasizing?
Anne: Fantasizing isn't the right word. It's his way of getting attention.
Mr. Scoweroft: You used the word "fantasizing," didn't you?
Anne: I don't remember.
Mr. Scoweroft: Okay. Let me try to refresh your memory in that regard. Let me direct your attention to page 8 lines 17 and 19.... Let me just have you read that to yourself. ... Have you had an opportunity to read that, Ms. Kruger?
Anne: Um-hum.
Mr. Scoweroft: Didn't you tell the police that Justin has a way of fantasizing about things?
Anne: I did.
Mr. Scoweroft: You did say that?
Anne: Uh-huh.
Mr. Scoweroft: Do you think there is some truth to that? ~
Anne: Yeah.

18 Kruger argues that Anne's testimony regarding his tendency to exaggerate and

1 19 We disagree. Anne's testimony about Kruger's habit of exaggerating does not constitute a sufficient quantum of evidence to provide a rational basis to acquit Kruger of attempting to rob Garcia and thus acquit him of felony murder. Given the totality of the evidence and facts of this case, no reasonable jury could disregard the testimony of four witnesses to whom Kruger confessed that he attempted to rob Garcia, just because Anne testified that Kruger often fantasized and exaggerated generally. Thus, there is not a rational basis in the evidence to acquit Kruger of felony murder.

II,. JURY UNANIMITY

120 In his reply brief, Kruger raises the issue of whether he was entitled to a unanimous verdict as to whether he killed Garcia under the theory of depraved indifference or the theory of felony murder. He attempts to justify raising the issue belatedly in his reply brief by asserting that the State raised the issue in its brief. The State denies raising the issue and has moved to strike the portion of Kruger's reply brief that raises the issue.

«I 21 We grant the motion to strike. Under rule 24(c) of the Utah Rules of Appellate Procedure, a reply brief is "limited to answering any new matter set forth in the opposing brief." The State did not raise the issue in its brief, but only pointed out in a footnote that Kruger had not raised the issue in the trial court or in his opening brief on appeal. That observation by the State did not constitute a "new matter" entitling Kruger to brief the issue in his reply brief.

CONCLUSION

22 In conclusion, we hold that because there was not a rational basis in the evidence for a jury to acquit Kruger of felony murder, he cannot be acquitted of the offense charged, and thus he was not entitled to a jury instruction on manslaughter. Moreover, we grant the State's motion to strike that portion of defendant's reply brief that raises a new issue.

1 23 Judgment affirmed.

11 24 Associate Chief Justice RUSSON, Justice DURHAM, Justice DURRANT, and Justice WILKINS concur in Chief Justice HOWE's opinion.

      . (1) Criminal homicide constitutes murder if the actor:

      (c) acting under circumstances evidencing a depraved indifference to human life engages in conduct which creates a grave risk of death to another and thereby causes the death of another;
      (d) while in the commission, attempted commission, or immediate flight from the commission or attempted commission of aggravated robbery ... [or] robbery ... causes the death of another person....

      . The Baker court construed only subsection (a) of section 76-1-402(3) because that was the only definition at issue in the case. Many of the cases following Baker seem to replace the first prong of the standard with the construction of subsection (3)(a). However, as Crick subsequently iDlustrat-ed, an included offense can be defined under any of the subsections of section 76-1-402(3). We affirm that under the first prong of the Baker standard, an included offense is one that falls under any of the subsections of section 76-1-402(3).