author: DAVIS, Chief Justice.

text:
    Justin Wade BITTLESTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0233
    Supreme Court of Wyoming.
    June 20, 2019
    Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Professor Lauren McLane, Faculty Director, and Dami R. Metzler, Student Intern, of the Defender Aid Clinic, University of Wyoming College of Law. Argument by Ms. Metzler.
    Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Katherine A. Adams, Senior Assistant Attorney General; Kelly D. Mullen, Assistant Attorney General. Argument by Ms. Mullen.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

      Order Allowing Withdrawal of Counsel entered April 9, 2019.

   DAVIS, Chief Justice.

[¶1] Justin Bittleston appeals his convictions of one count each of felony stalking and burglary. He claims that statements he made during a traffic stop should have been suppressed because he was not given a Miranda warning, and that his counsel was ineffective for having failed to move for their suppression. He further contends that the district court abused its discretion under W.R.E. 403 by admitting body camera footage of the stop. Lastly, he contends that the evidence was insufficient to support his convictions. We affirm.

ISSUES

[¶2] Mr. Bittleston presents five issues on appeal, which we summarize and restate as follows:

1) Was Mr. Bittleston denied effective assistance of counsel when his counsel failed to move to suppress statements he made without a Miranda warning?
2) Should the district court have suppressed the statements Mr. Bittleston made without a Miranda warning sua sponte?
3) Did the district court abuse its discretion in admitting body camera footage of Mr. Bittleston's traffic stop?
4) Were Mr. Bittleston's convictions supported by sufficient evidence?

[¶3] The State responds to those issues and presents an additional question of whether Mr. Bittleston waived his Miranda claim by failing to raise it before the district court.

FACTS

[¶4] Justin Bittleston and Kelley Skinner met on January 11, 2017 at the Beacon Club in Natrona County, where Ms. Skinner worked as a night manager and bartender. The two immediately began an intimate relationship, and he lived in her home for the next month and a half, aside from a week during that period when they were separated. On February 26, 2017, Ms. Skinner ended the relationship and removed Mr. Bittleston's belongings from her home. She broke the news to him while they were in her car, and he threw her house keys to the vehicle floor.

[¶5] Within an hour, Mr. Bittleston began sending Ms. Skinner text messages, and over the next two weeks, he sent hundreds of those messages and also left numerous voicemails. Ms. Skinner described the text messages as follows:

Q. Was he texting you the same kind of things after you broke up that he was before?
A. No.
Q. How were they different?
A. Threatening, derogatory, disrespectful, mean.
Q. Do you remember any specific language of these texts that were happening early on?
A. "Language" as in?
Q. The contents of the texts.
A. Yeah. Just asking me if this is what I wanted to do. You're going to be sorry. You better make sure that this is what you want. Calling me names.
Q. What names?
A. Cunt, whore, slut, you know, bitch, whatever, you know.
And then he would turn around and say, I love you. I don't want to do this. And then he would say, you - you know, You fucking whore. And it just would go from one - from nice to not nice, you know, back and forth.
Q. Now, when this was happening, were you responding to these texts?
A. At first, I was, because I told - I didn't want him bothering me anymore.
Q. So what would you say in your response?
A. I was just, like, You need to leave me alone. This is crazy. Stop texting me. You know, I can't sleep. You're affecting my work. You're affecting my job. Everything. It was affecting everything.

[¶6] On March 4, 2017, Mr. Bittleston sent Ms. Skinner a text message in which he told her he knew about "Ryan," and who he was. Ryan was a man Ms. Skinner had met on Facebook after her breakup with Mr. Bittleston. Ms. Skinner then became concerned that Mr. Bittleston had been in her home, because the only place he could have seen the name was in her personal journal, which was kept there, and she had not made the journal entry until after her breakup with him. Because Ms. Skinner was at work when she received the text message, she contacted her best friend, Shawn McMillan, and asked her to call the police and check her home. Ms. McMillan did so, and the responding officers found no signs of forced entry but offered to walk Ms. Skinner through her home when she got off work.

[¶7] As promised, the officers met Ms. Skinner at her home after she completed her shift, and she walked through it with them. She did not notice anything out of place, and the officers left and she went to bed. After she went to bed, it occurred to her that she should check her journal. When she did so, she found that the page of which Mr. Bittleston had sent her a photo had been torn from the journal. On looking further, she also discovered that tip money and a key fob for her vehicle were also missing.

[¶8] The next day, Ms. Skinner had a friend change the locks on her home. While that was being done, Mr. Bittleston drove by Ms. Skinner's home twice, went around the block, and then pulled up and parked behind the friend's vehicle on the street. Mr. Bittleston stayed there for a couple of minutes, and Shawn McMillan, who was also present, contacted the Evansville Police Department. Sergeant Norman Newsome responded, took Ms. Skinner's report, and reviewed some of the text messages Mr. Bittleston had sent her. The text message he later recalled was one in which Mr. Bittleston called Ms. Skinner a whore and told her she would be sorry. Sergeant Newsome advised Ms. Skinner where she could go to obtain a restraining order and then patrolled the immediate area.

[¶9] On March 10, 2017, Mr. Bittleston sent Ms. Skinner numerous text messages, with the last two of the night stating, "You laough all you want my turn now," and "The last mother fucker about died so laough all you want." On March 11, 2017, he again sent her numerous text messages, with the first of the morning stating, "What not so funny now." Other messages on the 11th included: "I got a new toy just for the occasion to;" "I can not wait;" "Peak a boo I see you;" "That's the question were am I at and when;" "I like my new toy;" "Bad mother fucker it is it is;" "Your loss and my gain maybe ill find a loyal woman;" "Cant wait to use my new toy oh boy oh boy this is gonna rock;" "That's right i am going to do just as i said watch its coming your a liar and now I know;" "I will do just as i said;" "Just time now;" "Unfaithful no loyalty bitch;" "My turn no;" and "Watch."

[¶10] On March 12, 2017, Mr. Bittleston sent his first text to Ms. Skinner at 7:43 a.m. It stated, "Good morning is it today." This was followed by, "its ok if not im not going a damn place tell its done," which was sent at 8:34 a.m., and "It will be done to," which was sent at 8:50 a.m. That same morning, Ms. McMillan was on her way to see Ms. Skinner and saw Mr. Bittleston drive by Ms. Skinner's home. Ms. McMillan contacted the Evansville Police Department and reported the sighting.

[¶11] Officer Brandy Parmely took the call, which she considered a suspicious activity call, at about 8:30 that morning, and she patrolled the area for the gold Nissan Mr. Bittleston was reported to be driving. She did not see the vehicle, and she then contacted Ms. McMillan, who gave her a general idea of what had gone on between Ms. Skinner and Mr. Bittleston. She then contacted Ms. Skinner and asked her to come in for an interview, and she attempted to contact Mr. Bittleston but was unable to reach him by phone.

[¶12] Later that same morning, Officer Parmely reopened the suspicious activity call when she saw Mr. Bittleston's gold Nissan in a store parking lot in Evansville. Because she was stopped on a nearby highway and not able to immediately reach the location of Mr. Bittleston's vehicle, she asked Natrona County Sheriff's Deputy Melanie Hoffman, who was patrolling in the area, to stop the vehicle so she could talk to Mr. Bittleston. At that point, Mr. Bittleston was on a side road traveling southbound, and Deputy Hoffman was traveling northbound. To stop Mr. Bittleston's vehicle, Deputy Hoffman pulled into his lane with her hood and rear lights activated.

[¶13] When Officer Parmely arrived, she activated her body camera. She then approached Mr. Bittleston's vehicle and spoke with him while he remained in the vehicle. From the time she activated the camera to the time she ended the contact with Mr. Bittleston, a total of two minutes and thirty-two seconds passed. During that time, Officer Parmely asked him if he had sent Ms. Skinner a thousand text messages in the last couple of weeks, and he nodded and responded, "Yeah." She stated that he had threatened to kill Ms. Skinner, and he denied that and said he would not hurt her, but he found a love letter on her kitchen table and it was the other guy he wanted to hurt. Officer Parmely told Mr. Bittleston that the text messages were not appropriate, and she warned him to have no further contact with Ms. Skinner and not to drive by her home or Ms. McMillan's home. He agreed that he would not. Nonetheless, at 5:58 that evening, Mr. Bittleston sent Ms. Skinner a text message that stated, "It wont be long at all."

[¶14] On July 31, 2017, the State filed an information charging Mr. Bittleston with one count of felony stalking and one count of burglary. The defense filed a motion in limine arguing that the body camera footage of Mr. Bittleston's traffic stop should be excluded pursuant to W.R.E. 403. The district court found that the video was not unnecessarily cumulative, and that its probative value was not outweighed by its potential for unfair prejudice.

[¶15] Following a three-day trial, a jury found Mr. Bittleston guilty of both the felony stalking and burglary counts, and the district court thereafter sentenced him to concurrent prison terms of three to six years on each count. Mr. Bittleston filed a timely notice of appeal to this Court.

DISCUSSION

[¶16] Because Mr. Bittleston's sufficiency of the evidence claims provide background that is helpful to our discussion of his other claims, we begin there. We will then address his ineffective assistance, suppression, and abuse of discretion claims.

A. Sufficiency of the Evidence

[¶17] In reviewing a sufficiency of the evidence claim, we

decide whether any rational trier of fact could have found that the essential elements of a charged crime were proven beyond a reasonable doubt on the evidence presented. In doing so, we assume that the State's evidence is true, disregard any evidence favoring the defendant, and give the State the benefit of every favorable inference that may reasonably be drawn from the evidence. We will not reweigh the evidence or re-examine witness credibility. Because direct evidence of intent is rare, and circumstantial evidence is most often the only proof available, we have held that intent may be proven by circumstantial evidence alone.

Jones v. State , 2019 WY 45, ¶ 28, 439 P.3d 753, 762 (Wyo. 2019) (quoting Jones v. State , 2017 WY 44, ¶ 34, 393 P.3d 1257, 1264-65 (Wyo. 2017) ).

1. Burglary Conviction

[¶18] "A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle ... with intent to commit theft or a felony therein." Wyo. Stat. Ann. § 6-3-301(a) (LexisNexis 2017). Concerning the evidence required to sustain a burglary conviction, we have said:

The possession of stolen goods alone is not sufficient evidence to convict for burglary. King v. State , 718 P.2d 452, 453 (Wyo.1986) (quoting Newell v. State , 548 P.2d 8, 13 (Wyo. 1976) ). However, we have also concluded with regard to burglary that, " 'the most significant and material evidence of defendant's guilt is his possession of the stolen property. Possession is a strong circumstance tending to show guilt and only slight corroborative evidence of other inculpatory circumstances is required' " to convict. Sutherland v. State , 944 P.2d 1157, 1161 (Wyo. 1997) (quoting Newell , 548 P.2d at 13 ).

Pena v. State , 2015 WY 149, ¶ 12, 361 P.3d 862, 865-66 (Wyo. 2015) (brackets omitted) (quoting McGarvey v. State , 2002 WY 149, ¶ 14, 55 P.3d 703, 706 (Wyo. 2002) ).

[¶19] As to the showing that Mr. Bittleston had possession of an item stolen from Ms. Skinner's home, the evidence was sufficient. One of the items Ms. Skinner found missing was a page from her personal journal, and Mr. Bittleston sent her a text message containing what Ms. Skinner identified as a photo of the missing page. Additionally, he sent her a text message stating, "i got your love note." A rational trier of fact could certainly have found that possession was proved beyond a reasonable doubt.

[¶20] The record also contains sufficient evidence to satisfy the requirement of slight corroboration. First, the journal page was an unusual item for someone to take, and Mr. Bittleston had a unique motive to do so. The record is replete with evidence that he was angry about Ms. Skinner's decision to end their relationship, and that he immediately began sending her text messages in which he alternately called her names and asked her to reconsider the breakup. His continuing focus on her and pursuit of a romantic relationship was evidence of his motive to take the journal page, and a rational trier of fact could have viewed that motive as corroborative. See Mraz v. State , 2016 WY 85, ¶ 21, 378 P.3d 280, 286 (Wyo. 2016) (citing motive as type of corroborating evidence); Newell v. State , 548 P.2d 8, 13-14 (Wyo. 1976) (citing defendant's drug-seeking motive as corroborating evidence of his burglary of pharmacy).

[¶21] Additional corroboration is found in Ms. Skinner's testimony that she did not make the entry that was torn from her journal until one or two days after the couple's breakup. This precludes the possibility that Mr. Bittleston could have obtained the note at a time when he was authorized to be in the home. Also, although Ms. Skinner testified that Mr. Bittleston threw his copy of her housekey to the floor of her vehicle, she also testified that when she went to retrieve the key, it was not there. A rational trier of fact could infer from the key's absence that Mr. Bittleston recovered it and thus was able to unlawfully enter Ms. Skinner's home. Finally, in response to Mr. Bittleston's text message that he had her love note, Ms. Skinner responded that he had just admitted to breaking into her home. In response, he did not deny the accusation but instead stated, "You we[r]e told day one so fuck you." A rational trier of fact could reasonably expect that Mr. Bittleston would deny the accusation, if it were untrue, rather than respond in a way that suggests the victim got what she deserved.

[¶22] We have explained that corroborating evidence need not be conclusive to sustain a burglary conviction.

Our review of the record revealed that the State also provided testimony that a shoe print found at one burglary site had a sole design similar to a shoe known to belong to Mr. Ferguson. The expert witness conceded he "could not come to a definitive conclusion" that the impression was Mr. Ferguson's footprint. A definitive conclusion was not required, however, only slight corroborative evidence. The State also points out that Mr. Ferguson came to Cheyenne and started staying at Mr. Soriano's house at the same time the burglaries began. It also asserts that the sheer number of stolen items in Mr. Ferguson's possession indicates that he did not come by them coincidentally, and the odd nature and minimal value of the items made it unlikely that anyone but the burglar would have found them desirable enough to steal and collect. Taken separately, each of these bits of evidence fails to prove that it was Mr. Ferguson who committed the burglaries. Taken together, the evidence amounted to at least slight corroboration that Mr. Ferguson had burgled the many stolen items in his possession.

Ferguson v. State , 2007 WY 157, ¶ 12, 168 P.3d 476, 480 (Wyo. 2007).

[¶23] We reach the same conclusion in this case. The corroborating evidence did not conclusively establish that Mr. Bittleston unlawfully entered Ms. Skinner's home, but taken together, it amounted to at least slight corroboration. Taken together, there was sufficient evidence for a reasonable jury to find him guilty of the charge of burglary beyond a reasonable doubt.

2. Stalking Conviction

[¶24] The statute Mr. Bittleston was charged with violating provides, in relevant part:

(a) As used in this section:
(i) "Course of conduct" means a pattern of conduct composed of a series of acts over any period of time evidencing a continuity of purpose;
(ii) "Harass" means to engage in a course of conduct, including but not limited to verbal threats, written threats, lewd or obscene statements or images, vandalism or nonconsensual physical contact, directed at a specific person that the defendant knew or should have known would cause:
(A) A reasonable person to suffer substantial emotional distress;
(B) A reasonable person to suffer substantial fear for their safety or the safety of another person; or
(C) A reasonable person to suffer substantial fear for the destruction of their property.
(b) Unless otherwise provided by law, a person commits the crime of stalking if, with intent to harass another person, the person engages in a course of conduct reasonably likely to harass that person, including but not limited to any combination of the following:
(i) Communicating, anonymously or otherwise, or causing a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses;
(ii) Following a person, other than within the residence of the defendant;
(iii) Placing a person under surveillance by remaining present outside his or her school, place of employment, vehicle, other place occupied by the person, or residence other than the residence of the defendant; or
(iv) Otherwise engaging in a course of conduct that harasses another person.

Wyo. Stat. Ann. § 6-2-506 (LexisNexis 2018 Supp.).

[¶25] Stalking is a specific intent crime. Dean v. State , 2014 WY 158, ¶ 10, 339 P.3d 509, 512 (Wyo. 2014) (citing Luplow v. State , 897 P.2d 463, 468 (Wyo. 1995) ). That means the prosecution must prove that a defendant, with the intent to harass, engaged in a course of conduct reasonably likely to harass. Dean , ¶ 10, 339 P.3d at 512. "Specific intent to cause the particular harm may be proven by reasonable inferences from the character of the conduct and surrounding circumstances." Id . (citing Leavitt v. State , 2011 WY 11, ¶ 10, 245 P.3d 831, 833 (Wyo. 2011) ).

The mind of an alleged offender may be read from his acts, his conduct, his words and the reasonable inferences which may be drawn from the circumstances of the case. To hold otherwise would create an impossible burden in a case requiring a finding of specific intent.

Jones v. State , 2012 WY 82, ¶ 27, 278 P.3d 729, 736 (Wyo. 2012) (quoting Schiefer v. State , 774 P.2d 133, 135 (Wyo. 1989) ).

[¶26] Mr. Bittleston does not dispute that the State proved that Ms. Skinner felt threatened by his actions. He instead contends that the State failed to prove specific intent; that is, that he intended to harass Ms. Skinner and cause her substantial emotional distress or substantial fear. We disagree.

[¶27] Ms. Skinner and Ms. McMillan both testified that over the course of about two weeks, Mr. Bittleston sent Ms. Skinner more than seven hundred text messages. In the small percentage of messages admitted into evidence, those sent between March 9, 2017 and March 12, 2017, Mr. Bittleston called Ms. Skinner a pathetic slut, a dumb bitch, a lying cunt, a whore, and an unfaithful no loyalty bitch.

[¶28] In addition to the malicious name-calling, Mr. Bittleston sent messages stating, from earliest to last (typos in original): "Tic toc mother fucker;" "Your fucked;" "I got big plans;" "watch this shit i dont lie;" "Watch and learn a hard lesson;" "Hope you understand what i said day fucking one;" "Tic toc;" "Ill get it done don't you worry;" "Just a matter of time;" "I was real about it;" "You were told;" "No just watch and see;" "Matter of time;" "Your on my time now not a good place to be;" "Tic toc tic toc;" "Bye bitch;" "Its my turn now;" "Watch;" "You did it now like i said my turn bye im done talking;" "Can't say i didn't tell you i did strongly even repeated it to you so now it is what it is;" "The last mother fucker about died so laough all you want;" "I got a new toy just for the occasion to;" "I can not wait;" "Peak a boo i see you;" "Thats the question were am i at and when;" "No you were just flat out told you dumb bitch;" "I like my new toy;" "Bad mother fucker it is it is;" "Cant wait to use my new toy oh boy oh boy this is gonna rock;" "Thats right i am going to do just as i said watch its coming your a liar and now i know;" "I will do just as I said;" "Poor baby starts the shit then she don't wanna play well to late now you know i didn't say nothing about it cause i thought you might get smart and do me right but no your not that bright you think your cool but your not;" "My turn thow;" "Watch;" "Good morning is it today;" "its ok if not im not going a damn place tell its done;" "It will be done to;" and "It wont be long at all."

[¶29] The State also presented evidence that Mr. Bittleston came to Ms. Skinner's home and workplace, and he followed her while she was driving. We need not delve into that evidence, however, because from the menacing content of the text messages admitted into evidence alone, a rational trier of fact could reasonably infer that Mr. Bittleston intended to cause Ms. Skinner substantial emotional distress and substantial fear. The evidence was thus sufficient to show Mr. Bittleston's specific intent and to sustain his conviction.

B. Ineffective Assistance of Counsel

[¶30] We turn next to Mr. Bittleston's claim that trial counsel was ineffective for failing to file a motion to suppress statements he made to Officer Parmely and Deputy Hoffman during the March 12 traffic stop. Mr. Bittleston contends the questioning was a custodial interrogation and that he therefore should have been given a Miranda warning. We reject the ineffectiveness claim.

[¶31] An ineffective assistance of counsel claim presents mixed questions of law and fact and is reviewed de novo. Dixon v. State , 2019 WY 37, ¶ 56, 438 P.3d 216, 236 (Wyo. 2019) (quoting Castellanos v. State , 2016 WY 11, ¶ 95, 366 P.3d 1279, 1304 (Wyo. 2016) ). "To prevail on an ineffective assistance claim, a defendant must show that his trial counsel rendered constitutionally deficient performance and that absent that deficiency, a reasonable probability exists that he would have enjoyed a more favorable verdict." Wall v. State , 2019 WY 2, ¶ 39, 432 P.3d 516, 527 (Wyo. 2019) (citing Larkins v. State , 2018 WY 122, ¶ 62, 429 P.3d 28, 43 (Wyo. 2018) ). "Where a claim of ineffectiveness rests on counsel's failure to file a suppression motion, prejudice can be shown only by demonstrating that the motion would have been granted, thereby leaving the prosecution with little unsuppressed evidence to support a conviction." Lemley v. State , 2016 WY 65, ¶ 14, 375 P.3d 760, 764 (Wyo. 2016) (citing Grissom v. State , 2005 WY 132, ¶ 12, 121 P.3d 127, 132-33 (Wyo. 2005) ). We may decide an ineffectiveness claim on either the performance or prejudice prong. Wall , ¶ 39, 432 P.3d at 527.

A failure to "make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim."
Strickland v. Washington , 466 U.S. 668, 700, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Indeed, if "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id . at 697, 104 S.Ct. 2052.

Grissom , ¶ 13, 121 P.3d at 133. Mr. Bittleston's claim is one that is properly decided on the prejudice prong.

[¶32] With respect to the burglary charge, Mr. Bittleston claims prejudice from his statement during the traffic stop that he found the journal page that was taken from Ms. Skinner's home on her table, thereby admitting that he had unlawfully entered her home. Had a motion to suppress been filed and granted, however, the prosecution would not have been left without evidence to support his burglary conviction. As we discussed above, the evidence, even without Mr. Bittleston's statement during the traffic stop, was sufficient to show that he had possession of the journal page taken from Ms. Skinner's home, and to provide the required slight corroboration. We therefore find counsel's failure to file a motion to suppress did not prejudice Mr. Bittleston's defense of the burglary charge.

[¶33] The same is true with respect to the stalking charge. Mr. Bittleston claims his statements during the traffic stop prejudiced his defense to this charge because he admitted sending Ms. Skinner a thousand text messages over a two-week period. As with the burglary charge, however, even if a motion to suppress had been granted, the prosecution had ample evidence to support his conviction. First, Ms. Skinner and Ms. McMillan testified without objection that he sent Ms. Skinner more than seven hundred text messages, so the excessive quantity was in evidence regardless of Mr. Bittleston's statement. Additionally, as we also discussed above, even just the one hundred plus text messages admitted at trial were sufficient evidence of Mr. Bittleston's course of conduct and intent to harass Ms. Skinner.

[¶34] Because the evidence was sufficient to sustain Mr. Bittleston's burglary and stalking convictions without the statements Mr. Bittleston argues should have been excluded, we find no prejudice from counsel's failure to file a motion to suppress. We therefore need not address whether trial counsel's performance was deficient.

C. Miranda Claim

[¶35] Mr. Bittleston next asks this Court to address the merits of his Miranda claim for the first time on appeal. We decline.

[¶36] W.R.Cr.P. 12(b)(3) requires that a motion to suppress be made before trial, and if a pretrial motion is not made, appellate review is precluded. Rodriguez v. State , 2019 WY 25, ¶ 33, 435 P.3d 399, 409 (Wyo. 2019). The only exception to this bar is a showing of good cause for the failure to file the required pretrial motion. Id . ¶ 38, 435 P.3d at 411. "If 'the record reveals no impediment to the defendant's ability to have raised the issue prior to appeal,' good cause for failing to raise the issue in a timely manner cannot be found." Id. ¶ 40, 435 P.3d at 411 (quoting United States v. Augustine , 742 F.3d 1258, 1266 (10th Cir. 2014) ); see also United States v. Baker , 713 F.3d 558, 561 (10th Cir. 2013) (good cause will be found lacking if record shows that sufficient information was available to defense counsel before trial to enable him to frame suppression argument).

[¶37] The video recording of Mr. Bittleston's traffic stop was made available to him early in the case when the State made its initial disclosures, and the record contains nothing to suggest an impediment to filing a motion to suppress and conducting an evidentiary hearing on the Miranda claim. We thus conclude that there was no good cause for Mr. Bittleston's counsel's failure to file a pretrial motion, and that appellate review of his claim is precluded by the rule.

D. Admission of the Video Recording under Rule 403

[¶38] In his final claim of error, Mr. Bittleston contends the district court erred in denying his motion in limine to exclude the body camera footage of his traffic stop. He argues that the evidence should have been excluded pursuant to W.R.E. 403 because it had little or no probative value and that value was outweighed by its potential for unfair prejudice.

[¶39] We review rulings on the admissibility of evidence for an abuse of discretion. Farrow v. State , 2019 WY 30, ¶ 52, 437 P.3d 809, 823 (Wyo. 2019). "We afford considerable deference to a trial court's rulings on the admissibility of evidence, and we will not disturb the trial court's ruling if there is a legitimate basis for it." Id ."Determining whether the trial court abused its discretion involves the consideration of whether the court could reasonably conclude as it did, and whether it acted in an arbitrary and capricious manner." Moser v. State , 2018 WY 12, ¶ 40, 409 P.3d 1236, 1248 (Wyo. 2018) (quoting Triplett v. State , 2017 WY 148, ¶ 23, 406 P.3d 1257, 1262 (Wyo. 2017) ). "For us to conclude that a trial court abused its discretion in weighing evidence under W.R.E. 403, 'the appellant must show that the testimony has little or no value and that it was extremely inflammatory or introduced solely for the purpose of inflaming the jury.' " Hill v. State , 2016 WY 27, ¶ 37, 371 P.3d 553, 564 (Wyo. 2016).

[¶40] Mr. Bittleston contends the body camera footage had no probative value because it was cumulative, and because it contained statements by Officer Parmely about the text messages that were untrue. As to the cumulative nature of the video, Mr. Bittleston argues that Officer Parmely was available to testify concerning his statements during the stop, and since the video added nothing to that testimony, it had no probative value. As to Officer Parmely's statements on the video concerning the text messages, he argues that because she had not seen the text messages when she questioned him, her statements to him that he threatened to kill Ms. Skinner, that what she read was different from what he was saying, and that the text messages were inappropriate, were all untrue and therefore had no probative value. Mr. Bittleston further argues that the footage was unfairly prejudicial because Officer Parmely's accusation that he threatened to kill Ms. Skinner made his actions seem more egregious than the evidence at trial supported and her accusation that what he was saying was different than what she read in the text messages made him seem dishonest.

[¶41] The district court rejected Mr. Bittleston's arguments as a basis for excluding the traffic stop footage. It reasoned:

First, it would seem, even under [defense counsel's] argument, that the officer or officers would be able to testify to their interaction with the defendant in relation to the stop in the absence of the video. If that's the case, I don't see much in the way of additional prejudice by playing the video if the State seeks to do so. I don't think it's unnecessarily cumulative. And, obviously, it's very brief.
[Defense counsel] would no doubt cross-examine the officer or officers about their interaction and statements made in that regard in relation to their direct testimony. That same cross-examination would obviously also address the issues that were raised with respect to comments that were made during the video; for example, alleged misstatements of evidence, things like that. I think that would happen either way and could certainly happen if the video were played very specifically with the witnesses.

[¶42] While we do not entirely agree with the district court's reasoning, we find no abuse of discretion in the admission of the body camera footage. We part with the court's reasoning to some extent, because in the absence of the video's admission, we do not believe Officer Parmely's statement that the text messages were inappropriate or her statement that Mr. Bittleston was telling her something different from what she read in the text messages would have been admitted. She might have been permitted to testify that she asked Mr. Bittleston if he threatened to kill Ms. Skinner and that he denied the accusation, but she would not have been able to testify that his response was inconsistent with the text messages. Still, we conclude the video had at least marginal probative value and that its value was not outweighed by its potential for unfair prejudice.

[¶43] The video contained Mr. Bittleston's agreement that he had sent around a thousand text messages in a two-week period, which corroborated Ms. Skinner's testimony that he sent 800 to 900 messages, and Ms. McMillan's testimony that she had seen in excess of 700 messages from him on Ms. Skinner's phone. It therefore had probative value. See 1 McCormick on Evidence § 185 (7th ed. June 2016 update) (footnote omitted) ("A fact that is 'of consequence' is material, and evidence that affects the probability that a fact is as a party claims it to be has probative force."). As to the cumulative nature of the evidence, we have said:

There is no rule limiting the number of witnesses a party may call on a particular fact or issue. W.R.E. 403 permits a trial court to exclude relevant evidence for "considerations of undue delay, waste of time, or needless presentation of cumulative evidence." This rule is to be used sparingly, because it excludes evidence which is concededly relevant and probative. Towner v. State , 685 P.2d 45, 49 (Wyo. 1984).

Strickland v. State , 2004 WY 91, ¶ 24, 94 P.3d 1034, 1046 (Wyo. 2004) (quoting Mintun v. State , 966 P.2d 954, 959 (Wyo. 1998) ).

[¶44] The video lasted two and a half minutes, and thus did not unduly delay the trial or waste time. Additionally, we cannot say that hearing Officer Parmely testify to Mr. Bittleston's responses is the same for a jury as watching and hearing the responses from him. See Christopher B. Mueller and Laird C. Kirkpatrick, 1 Federal Evidence § 4:15 (4th ed. July 2018 update) ("When proof offered on a point is different in character or persuasive impact from other proof, the former is not merely cumulative of the latter."). We therefore agree with the district court that the evidence was not unnecessarily cumulative.

[¶45] The next question is whether the evidence's potential for unfair prejudice outweighed its probative value. We again agree with the district court that it did not.

[¶46] First, the video was only a couple of minutes in length, contained no displays of emotion, and ended with Officer Parmely letting Mr. Bittleston go. Against the entirety of the record, it had a limited impact, particularly in light of the tone and content of the one hundred-plus text messages admitted into evidence. As to Officer Parmely's misstatements about having read the text messages and about what they said, defense counsel had the opportunity, which he used, to show that she had not read the text messages, and that none of the text messages she eventually did read contained a direct threat to kill Ms. Skinner. Finally, we note that the video shows Mr. Bittleston denying the accusation that he threatened to kill Ms. Skinner and adding that he would not hurt her-statements he was able to have the jury hear without subjecting himself to cross-examination.

[¶47] Because the body camera footage had probative value and that value was not outweighed by its potential for unfair prejudice, we find no abuse of discretion in the district court's ruling on Mr. Bittleston's motion in limine.

[¶48] Affirmed.

      The Facebook contact turned out to be a scam, and no such individual actually exists.

      Ms. Skinner lived in Evansville, a town in Natrona County northeast of Casper.

      The text messages contain numerous typographical errors, and we have quoted them verbatim without correcting those errors.

      Mr. Bittleston focused his argument on the types of corroborative evidence discussed in McGarvey v. State , 2002 WY 149, 55 P.3d 703 (Wyo. 2002), such as a defendant's use of stolen property as his own, opportunity, and proximity to the property unlawfully entered. McGarvey did not, however, suggest that such evidence was either the exclusive or the required way of proving corroboration. The slight corroboration showing we have upheld here is thus not undermined by the State's failure to show that Mr. Bittleston was in proximity of Ms. Skinner's home when her property was taken or by the State's failure to show that Mr. Bittleston used her property as his own.

      This statute was amended in 2018, but the relevant provisions quoted herein were not changed.

      At one point after her breakup with Mr. Bittleston, Ms. Skinner contacted the Evansville Police Department about the text messages she was receiving, and she was instructed to preserve them. In her attempt to do so by downloading them, she accidentally deleted several hundred of the messages. She did not again attempt a download and instead retained the text messages that Mr. Bittleston continued to send on her phone. Those were the text messages admitted into evidence.

      The phrase "Miranda warning" refers to the right to be advised of the constitutional rights to remain silent and have counsel before being subjected to a custodial interrogation. Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Because a W.R.A.P. 21 hearing was not requested below, the facts surrounding the traffic stop and interrogation, and counsel's decision to forego a suppression motion, were not fully fleshed out. We therefore would have been somewhat constrained in our ability to evaluate Mr. Bittleston's claim of deficient performance if that were necessary.

      There is a practical reason for this rule. As we observed in Rodriguez , it is unfair to the State to rule on a suppression claim first raised on appeal, at a point when the State has no opportunity to make a record to defend against the claim. Rodriguez , ¶ 36, 435 P.3d at 409. This case illustrates the difficulty created by the resulting sparse record. While a traffic stop supported by a reasonable suspicion of criminal activity is generally considered an investigative detention, we recognize that there may come a point in a stop when questioning shifts from an investigative detention to a custodial interrogation. Rodriguez v. State , 2018 WY 134, ¶ 27, 430 P.3d 766, 772 (Wyo. 2018). Our primary consideration in making that determination is the coercive nature of circumstances surrounding the questioning. Id. ¶ 28, 430 P.3d at 772-73. It is also helpful, however, to know the reasons for the traffic stop itself so as to better assess whether the questioning shifted from an investigative detention to a custodial interrogation. This is where we find the record lacking. We do not know why Officer Parmely reopened the earlier suspicious activity call. We know from her testimony that she spotted Mr. Bittleston's vehicle in a store parking lot, though not parked in a parking space. We do not know if she saw this as an opportunity to question Mr. Bittleston or if his location made her suspicious that he was engaged in stalking activities. Her first question of Mr. Bittleston, "So what are you doing in Evansville," suggests a suspicion as to his activities at the time of the stop, but that was not fleshed out in the record. We think it reasonable to assume that had the State been defending against a suppression motion, the nature of the stop and questioning would have been carefully explored. In short, a timely filed suppression motion would have given both parties an opportunity to fully develop the record we would require to assess the Miranda claim, and in the absence of good cause for the failure to file the required pretrial motion, we will not consider the claim.

      Officer Parmely had not read the text messages, and the evidence shows that no such express threat can be found in them.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE: SKY HARBOR HOTEL PROPERTIES, LLC, Debtor.
    Sky Harbor Hotel Properties, LLC, Plaintiff, v. Patel Properties, LLC, Defendant.
    In re: Swift Air, LLC, Reorganized Debtor,
    MorrisAnderson & Associates, Ltd., Litigation Trustee for the Reorganized Debtor, Plaintiff, v. Redeye II, LLC, et al., Defendants.
    Nos. CV-19-0033-CQ CV-19-0034-CQ
    Supreme Court of Arizona.
    Filed June 25, 2019
    John R. Clemency (argued), Lindsi M. Weber, Maria F. Hubbard, Polsinelli PC, Phoenix, Attorneys for Sky Harbor Hotel Properties, LLC
    Paul M. Levine (argued), Paul M. Levine, P.C., Scottsdale, Attorneys for Patel Properties, LLC
    Dale C. Schian (argued), Scott R. Goldberg, Schian Walker, P.L.C., Phoenix; Kim. R. Maerowitz, The Maerowitz Law Firm, Scottsdale, Counsel for MorrisAnderson & Associates, Ltd. Litigation Trustee
    Thomas J. Salerno, Alisa C. Lacey, Christopher C. Simpson, Anthony P. Cali (argued), Stinson Leonard Street LLP, Phoenix, Attorneys for Redeye II, LLC, et al.
    CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL and JUSTICES TIMMER, BOLICK, GOULD, LOPEZ and PELANDER (Retired) joined.
   CHIEF JUSTICE BALES, opinion of the Court:

¶1 These consolidated cases involve alleged breaches of fiduciary duties. To address these claims, the United States Bankruptcy Court for the District of Arizona certified the following questions to this Court:

1. Does a manager of an Arizona limited liability company ("LLC") owe common law fiduciary duties to the company?

2. Does a member of an Arizona LLC owe common law fiduciary duties to the company?

3. Can an Arizona LLC's operating agreement lawfully limit or eliminate those fiduciary duties?

¶2 We answer the first question in the affirmative. We answer the second question in the affirmative, provided that the member is an agent of the LLC. We answer the third question in the affirmative but note that the operating agreement may not eliminate the implied contractual duty of good faith and fair dealing.

I.

A.

¶3 Arizona enacted its first limited liability company act ("LLC Act") in 1992. See 1992 Sess. Laws 395 (2d Reg. Sess.). The statutory scheme is codified at A.R.S. § 29-601 et seq. Last year, Arizona's legislature enacted a new Arizona Limited Liability Company Act ("ALLCA") to eventually replace the LLC Act. See 2018 Ariz. Sess. Laws 833 (2d Reg. Sess.) (to be codified at A.R.S. § 29-3101 et seq. ). ALLCA will first apply only to LLCs formed on or after September 1, 2019, but will apply to all LLCs starting September 1, 2020. Id. Thus, to address the certified questions, we analyze only the LLC Act.

¶4 The LLC Act does not expressly impose any fiduciary duties on members or managers. See generally Scott DeWald, James Reynolds & Matthew Engle, Fiduciary Duties and Indemnification , Ariz. Att'y, Mar. 2019, at 18-19 (contrasting the LLC Act with ALLCA, which recognizes fiduciary duties). By statute, however, "the law of agency" applies to the entire LLC Act. See A.R.S. § 29-854(B). We thus apply common law agency principles to answer the certified questions.

¶5 Arizona case law has not addressed these issues directly. This Court has observed that "unlike both corporations and partnerships, LLC members do not owe each other fiduciary duties unless they are expressly included in the LLC operating agreement." Butler Law Firm, PLC v. Higgins , 243 Ariz. 456, 462 ¶ 23, 410 P.3d 1223, 1229 (2018). As support for this proposition, Butler cited TM2008 Investments, Inc. v. Procon Capital Corp. , 234 Ariz. 421, 424-25 ¶ 15, 323 P.3d 704, 707-08 (App. 2014), which declined to "mechanically apply fiduciary duty principles from the law of closely-held corporations or partnerships to a limited liability company created under Arizona law." TM2008 Investments involved an action for breach of fiduciary duty filed by one member of an LLC against another, and the court of appeals found that the operating agreement itself established certain duties. Id. at 422 ¶ 1, 425-26 ¶¶ 16-17, 323 P.3d at 705, 708-09. Butler concerned whether an LLC is an "other corporation" for purposes of Arizona's venue statute. 243 Ariz. at 459 ¶ 6, 410 P.3d at 1226. Neither case considered whether, based on the common law of agency, managers or members owe fiduciary duties to the LLC.

¶6 "Absent controlling authority to the contrary, we generally follow the Restatement when it sets forth sound legal policy." CSA 13-101 Loop, LLC v. Loop 101, LLC , 236 Ariz. 410, 414 ¶ 18, 341 P.3d 452, 456 (2014). Under traditional agency rules, agency is the "fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Restatement (Second) of Agency § 1 (Am. Law. Inst. 1958). The agent is the one who acts on behalf of another, the principal. Id. Agents are characterized by their "power to alter the legal relation between the principal and third persons and between the principal and" themselves. Id. § 12. Importantly, "[a]n agent is a fiduciary with respect to matters within the scope of his agency." Id. § 13.

¶7 We have characterized a fiduciary duty as imposing "the obligation of loyalty," Ghiz v. Millett , 71 Ariz. 4, 8, 222 P.2d 982 (1950), "the obligation of the utmost good faith in their dealings," DeSantis v. Dixon , 72 Ariz. 345, 350, 236 P.2d 38 (1951), and "requiring a high degree of care," Master Records , Inc. v. Backman , 133 Ariz. 494, 497, 652 P.2d 1017, 1020 (1982) (quotations omitted). Thus, the nature of the fiduciary relationship for agents includes a duty of loyalty, a duty of good faith, and a duty of care. Partnerships, joint ventures, and corporations are all owed fiduciary duties by those empowered to act on behalf of such businesses. See DeSantis , 72 Ariz. at 350, 236 P.2d 38 (describing the fiduciary nature of duties owed by partners to a partnership); Ghiz , 71 Ariz. at 8-9, 222 P.2d 982 (describing the fiduciary nature of those involved in a joint venture); Monterey Water Co. v. Voorhees , 45 Ariz. 338, 347, 43 P.2d 196 (1935) (describing the fiduciary duties owed by officers to a corporation).

B.

¶8 By default, the members of an LLC are agents of the LLC "for the purpose of carrying on its business in the usual way." A.R.S. § 29-654(A)(1). However, if an LLC's management is vested in one or more managers, members are not automatically agents "solely by reason of being a member except to the extent that authority has been delegated to the member by" the manager or the operating agreement. § 29-654(B)(1). If management is vested in one or more managers, by law they are deemed agents of the LLC "for the purpose of carrying on its business in the usual way." § 29-654(B)(2). Thus, if an LLC is managed by one or more managers, such managers are agents, and under § 29-854 and agency law, they would owe common law fiduciary duties to the LLC.

¶9 The answer to the second question depends on whether management has been vested in one or more managers. If not, then all members are deemed agents of the LLC and thus would owe common law fiduciary duties to the LLC. If, however, the LLC is managed by one or more managers, members are considered its agents to the extent they have been delegated authority by the managers or the operating agreement under § 29-654(B)(1). Thus, a member owes common law fiduciary duties to the LLC if the member acts as an agent of the LLC.

C.

¶10 Although the common law recognizes that an LLC's managers or members, when acting as agents of the LLC, owe fiduciary duties to the company, these duties may be lawfully limited by a valid operating agreement.

¶11 The LLC Act provides for an operating agreement to govern relationships between members and managers and between managers, members, and the LLC itself. See A.R.S. § 29-682(B). The agreement "may contain any provision that is not contrary to law and that relates to ... the rights, duties or powers of its members, managers, officers, employees or agents." Id. However, an LLC is not required to adopt an operating agreement. § 29-682(A) (stating that an LLC "may" adopt an agreement). Neither the LLC Act nor any other applicable law broadly prohibits an operating agreement from altering or limiting fiduciary duties that otherwise would be owed to the LLC by its managers or members.

¶12 The defendants in both certified cases concede that, regardless of their arguments relating to common law fiduciary duties, the implied covenant of good faith and fair dealing cannot be eliminated by an operating agreement. Based on public policy and case law, this is a well-supported concession. See Rawlings v. Apodaca , 151 Ariz. 149, 163, 726 P.2d 565, 579 (1986) ("A covenant of good faith and fair dealing is implied in every contract ....The covenant ... may be breached even though the express covenants of the contract are fully performed").

¶13 Thus, we answer the third question in the affirmative. Under the LLC Act, an operating agreement may lawfully limit or eliminate common law fiduciary duties owed to the LLC by its members or managers, although it may not erase the covenant of good faith and fair dealing implied in every contract. We have no occasion here to address whether the provisions of any particular operating agreement are contrary to law in this respect or otherwise.

II.

¶14 For the reasons noted, the LLC Act imposes common law fiduciary duties on managers and members serving as agents of the LLC. The LLC Act permits an LLC to limit or eliminate such common law duties through an operating agreement, except for the implied covenant of good faith and fair dealing.


author: CATTANI, Judge:

text:
    ARIZONA ELECTRIC POWER COOPERATIVE, INC., Plaintiff/Appellee/Cross-Appellant, v. DJL 2007 LLC, an Arizona limited liability company; DJL Enterprises, LLC, an Arizona limited liability company; East Coast Investor Group 535, LLC, a Delaware limited liability company; Mark G. Knorr and Carol A. Knorr, husband and wife; Silver Creek Land Co., LLC, an Arizona limited liability company; and Michael Suda, a married man as his sole and separate property; Donald Suda, a married man as his sole and separate property, Defendants/Appellants/Cross-Appellees.
    Mohave Electric Cooperative, Incorporated, an Arizona Electric Cooperative Non-Profit Membership Corporation, Intervenor/Appellee/Cross-Appellant.
    No. 1 CA-CV 16-0097
    Court of Appeals of Arizona, Division 1.
    FILED May 9, 2019
    Gust Rosenfeld, PLC, Phoenix, By Charles W. Wirken, Jennings Strouss & Salmon, PLC, Phoenix, By Christopher W. Kramer, Co-Counsel for Plaintiff/Appellee/Cross-Appellant
    Zeitlin & Zeitlin, PC, Phoenix, By Dale S. Zeitlin, Counsel for Defendants/Appellants/Cross-Appellees
    The Law Offices of Larry K. Udall, PLLC, Chandler, By Larry K. Udall, Counsel for Intervenor/Appellee/Cross-Appellant
    Presiding Judge Kent E. Cattani delivered the opinion of the Court, in which Judge Jon W. Thompson and Judge Paul J. McMurdie joined.
   CATTANI, Judge:

¶1 Both sides in these consolidated condemnation cases appeal from the superior court's rulings (1) fixing a valuation date for purposes of calculating just compensation for a right of way for electric transmission lines and (2) determining the ownership of existing support structures and transmission lines within the right of way. We affirm the court's ruling as to ownership of the existing structures and transmission lines, but we reverse the ruling as to valuation date. Under the right-of-way clause of Article 2, Section 17 of the Arizona Constitution, a private corporation with statutory eminent domain authority cannot effect a taking (which establishes the valuation date) by simply occupying property. Instead, the taking occurs only after the jury determines damages and the private corporation pays full compensation. Because the superior court chose a pre-taking valuation date, we reverse and remand for further proceedings consistent with this decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 On May 15, 1981, the United States Department of the Interior, Bureau of Land Management ("BLM"), granted a 30-year right of way to Arizona Electric Power Cooperative, Inc., across public lands in Mohave County for use as an easement for 69kV electric transmission lines. Both 69kV and 230kV transmission lines were built within the right of way.

¶3 By 1990, the BLM had transferred title to the property subject to the right of way into private hands. DJL 2007 LLC, DJL Enterprises LLC, East Coast Investor Group 535, LLC, Mark and Carol Knorr, Silver Creek Land Co., Michael Suda, and Donald Suda (collectively, "Landowners") are the current owners of the relevant parcels. Southwest Transmission Cooperative, Inc., as a successor in interest, obtained Arizona Electric Power's interest in the right of way in the early 2000s, and Southwest Transmission sold the 69kV line to Mohave Electric Cooperative, Inc., a few years later.

¶4 The BLM right-of-way grant expired on May 14, 2011. But Southwest Transmission and Mohave Electric continued to operate the transmission lines thereafter, and in January 2013, Landowners sent Southwest Transmission a letter alleging that it was trespassing.

¶5 Southwest Transmission is a nonprofit electric generation and transmission cooperative corporation under Title 10, Chapter 19, Article 4 of the Arizona Revised Statutes ("A.R.S.") and, as such, has statutory authority to exercise the power of eminent domain for purposes of maintaining or operating electric transmission lines. See A.R.S. § 10-2127(A)(11) ; see also A.R.S. § 12-1111(10). Accordingly, in January 2014, Southwest Transmission filed these eminent domain actions to condemn rights of way for the transmission lines. Mohave Electric intervened as the owner of one of the transmission lines.

¶6 The superior court ruled that Southwest Transmission was not entitled to an order of immediate possession under A.R.S. § 12-1116. Instead, recognizing the practical reality that Southwest Transmission would need to continue to operate, maintain, and repair the lines during the pendency of the condemnation proceedings, the court entered a preliminary injunction allowing ongoing access to and operation of the lines.

¶7 Landowners then moved the court to determine the valuation date for purposes of calculating just compensation to be paid for the property subject to condemnation. Landowners argued that the land should be valued as of the date the court eventually enters the final order of condemnation. Southwest Transmission countered that the land should be valued as of May 15, 2011, the date it remained in possession immediately following expiration of the BLM right-of-way grant. After briefing and oral argument, the court adopted a middle ground, ruling that the valuation date would be January 15, 2014: the date the summons issued in the condemnation suit. The court further ruled that Landowners would be entitled to rental damages from expiration of the grant to the summons date, and that interest would accrue from the valuation date on the amount of compensation ultimately awarded. The court denied Landowners' subsequent motion for reconsideration.

¶8 The parties then filed cross-motions for partial summary judgment concerning ownership of the transmission lines and support structures, which would determine whether just compensation for the taking includes the value of those improvements or just of the underlying real property interest. The superior court ruled in favor of Southwest Transmission, finding no indication that title to the improvements had passed to Landowners.

¶9 At the parties' request, the superior court then entered a partial final judgment related to the two issues (valuation date and ownership of the improvements). See Ariz. R. Civ. P. 54(b). Landowners timely appealed, and Southwest Transmission and Mohave Electric timely cross-appealed.

¶10 This court initially dismissed the appeal for lack of appellate jurisdiction under A.R.S. § 12-2101(A)(1) (appeal from final judgment), noting that the judgment was not subject to Rule 54(b) certification because it did not resolve any claims of any of the parties. See Ariz. R. Civ. P. 54(b) ; Musa v. Adrian , 130 Ariz. 311, 313, 636 P.2d 89, 91 (1981). The Arizona Supreme Court then granted Landowners' petition for review and remanded to this court to consider whether appellate jurisdiction existed under A.R.S. § 12-2101(A)(6). See Bilke v. State , 206 Ariz. 462, 466, ¶ 16, 80 P.3d 269, 273 (2003).

¶11 A.R.S. § 12-2101(A)(6) authorizes appeal "[f]rom an interlocutory judgment that determines the rights of the parties and directs an accounting or other proceeding to determine the amount of the recovery." But a right to appeal from such an interlocutory judgment is not automatic; instead, the superior court has discretion to determine whether an immediate appeal should be available. See Bilke , 206 Ariz. at 466-67, ¶¶ 20-21, 80 P.3d at 273-74. To do so, the superior court must make two distinct findings: first, whether the ruling as to the rights of the parties is final, and second, whether amount of recovery is indeed the only issue remaining. See id. at 467-68, ¶¶ 21, 23, 28, 80 P.3d at 274-75 ; see also Ciena Capital Funding, LLC v. Krieg's, Inc. , 242 Ariz. 212, 215-16, ¶ 7, 394 P.3d 39, 42-43 (App. 2017). Although the superior court's Rule 54(b) certification satisfied the finality prong, see Bilke , 206 Ariz. at 467, ¶ 23, 80 P.3d at 274, the parties had not requested and the superior court had not made the requisite discretionary finding "expressly direct[ing] that the only issue remaining is the amount of recovery." See id. at 468, ¶ 28, 80 P.3d at 275. Accordingly, we stayed the appeal and revested the superior court with jurisdiction to determine whether (A)(6) certification was appropriate. The superior court did so, and we now have jurisdiction under A.R.S. § 12-2101(A)(6).

DISCUSSION

I. Valuation Date.

¶12 The superior court ruled that Southwest Transmission lacked authority to condemn property simply by occupying it (a "taking by occupation"), so Southwest Transmission and Mohave Electric were holdover tenants between expiration of the BLM right-of-way grant and the date of the taking, and Landowners would be entitled to rental damages for that period. The court further reasoned that Southwest Transmission became an agent of the state for condemnation purposes when it filed the direct condemnation action, see A.R.S. § 12-1115(C), at which point the taking occurred because the government (through Southwest Transmission) was in actual physical possession of the property.

¶13 Although the parties agree that the valuation date must reflect the date of the taking, both sides challenge the court's determination of the valuation date. Southwest Transmission (joined by Mohave Electric) asserts that the taking occurred by occupation immediately following expiration of the BLM right-of-way grant. Landowners counter that, because Southwest Transmission is exercising eminent domain power as a non-municipal corporation, the taking cannot occur until a jury determines and Southwest Transmission tenders payment of just compensation. Neither side challenges the superior court's ruling as to holdover tenancy pending the date of taking (regardless of when it occurred) or Landowners' entitlement to rental damages, although accepting Southwest Transmission's proposed taking date would in effect moot these issues. We review the superior court's ruling de novo as a pure question of law. See League of Ariz. Cities & Towns v. Brewer , 213 Ariz. 557, 559, ¶ 7, 146 P.3d 58, 60 (2006).

¶14 Both the United States and the Arizona Constitutions proscribe the taking of private property without payment of just compensation. U.S. Const. amend. V ; Ariz. Const. art. 2, § 17 ("No private property shall be taken or damaged for public or private use without just compensation having first been made...."). To satisfy the constitutional requirement of providing "just compensation," the property condemned must be valued as of the date of the constitutional taking. See Kirby Forest Indus., Inc. v. United States , 467 U.S. 1, 9-10, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984) ; Calmat of Ariz. v. State ex rel. Miller , 176 Ariz. 190, 193-95, 859 P.2d 1323, 1326-28 (1993).

¶15 By statute, Arizona has designated the date of the summons in a condemnation action as the presumptive valuation date. A.R.S. § 12-1123(A). When the summons and the taking occur close in time, the summons date "establishes a practical and uniform date for valuation purposes that is presumptively reasonable." City of Scottsdale v. CGP-Aberdeen, L.L.C. , 217 Ariz. 626, 634, ¶ 36, 177 P.3d 1198, 1206 (App. 2008) ; see also Calmat , 176 Ariz. at 193-94, 859 P.2d at 1326-27. But if the summons is remote in time from the taking and the value of the property has changed in the interim, the value of the property on the date of the taking must control. CGP-Aberdeen , 217 Ariz. at 629, 634, ¶¶ 10, 36, 177 P.3d at 1201, 1206.

¶16 Here, Southwest Transmission continued to occupy the property after the expiration of its right to do so under the BLM right-of-way grant in May 2011. If a governmental entity had so occupied Landowners' property, that occupation would have constituted a taking, subject to an owner's claim for inverse condemnation. See In re Forsstrom , 44 Ariz. 472, 481, 488, 38 P.2d 878 (1934) (describing a "taking" as "[a]ny substantial interference" with an owner's property rights), overruled in part on other grounds by Mohave County v. Chamberlin , 78 Ariz. 422, 430, 281 P.2d 128 (1955), and State ex rel. Morrison v. Thelberg , 87 Ariz. 318, 324, 350 P.2d 988 (1960) ; see also A Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cty. , 222 Ariz. 515, 525, ¶ 18, 217 P.3d 1220, 1230 (App. 2009). But the Arizona Constitution imposes additional limitations on the exercise of eminent domain by a private corporation (like Southwest Transmission) that preclude a taking by occupation. In particular, as explained below, a private corporation may not effect a taking until there has been a jury determination of damages and full compensation has been paid to the property owner.

¶17 As relevant here, the Arizona Constitution's eminent domain provision includes two operative clauses:

[ (1) ] No private property shall be taken or damaged for public or private use without just compensation having first been made, paid into court for the owner ...,
[ (2) ] and no right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefor be first made in money, or ascertained and paid into court for the owner, ... which compensation shall be ascertained by a jury, unless a jury be waived....

Ariz. Const. art. 2, § 17 (line break added). The Arizona Supreme Court described the interplay of these two clauses in Hughes Tool Co. v. Superior Court : the first-the general clause-requires just compensation in all takings, whereas the second-the right-of-way clause-"imposes further limitations and conditions on the acquisition of rights of way by private corporations through the exercise of powers of eminent domain." 91 Ariz. 154, 156, 370 P.2d 646 (1962).

¶18 In Hughes Tool , a private corporation with eminent domain authority filed a direct condemnation action to condemn power line rights of way. Id. at 155, 370 P.2d 646. The superior court issued an order under A.R.S. § 12-1116 permitting immediate possession and use before conclusion of the condemnation proceedings, and the property owner sought review. Id. at 155-56, 370 P.2d 646. The Arizona Supreme Court directed the superior court to vacate the order for immediate possession. Id. at 160, 370 P.2d 646. The court highlighted the distinction between the requirements of the general clause, which authorizes a taking once just compensation is "paid into court for the owner," as compared to the right-of-way clause, which requires compensation first be "ascertained and paid into court for the owner." Ariz. Const. art. 2, § 17 (emphasis added); Hughes Tool , 91 Ariz. at 158, 370 P.2d 646. The supreme court thus held that the right-of-way clause required "an advance jury determination of damages (unless the jury be waived) before a corporation other than municipal takes possession of property through exercise of the power of eminent domain." Hughes Tool , 91 Ariz. at 160, 370 P.2d 646.

¶19 In Hughes Tool , that meant that a private corporation could not receive a § 12-1116 order for immediate possession, because that would allow a private corporation to take possession before a jury determined damages. Id. Here, the Hughes Tool holding means that a private corporation exercising statutory eminent domain authority is not constitutionally authorized to effect a taking until after trial and payment; it cannot take property in a constitutional sense simply by occupation. Thus, Southwest Transmission's ongoing use of the property was as a holdover tenant and not as a condemnor in possession.

¶20 Southwest Transmission argues, however, that Hughes Tool only applies to § 12-1116 orders for immediate possession and does not apply where, as here, the private condemnor is already occupying the property subject to condemnation. Although Hughes Tool arose from an order for immediate possession, its reasoning and holding apply generally to a private corporation seeking to "take[ ] possession of property through exercise of the power of eminent domain," not just to a single manner in which a private corporation might do so. See id. at 156, 160, 370 P.2d 646. More importantly, the constitutional right-of-way clause itself draws no such distinction. See Ariz. Const. art. 2, § 17.

¶21 The authority on which Southwest Transmission relies does not support the premise that a private corporation with the power of eminent domain can effect a taking by occupation. All of the Arizona case law on which Southwest Transmission relies for general principles of taking by occupation involve takings by governmental entities, not private corporations. See, e.g. , Calmat , 176 Ariz. 190, 859 P.2d 1323 ; Gardiner v. Henderson , 103 Ariz. 420, 443 P.2d 416 (1968) ; State v. Leeson , 84 Ariz. 44, 323 P.2d 692 (1958) ; In re Forsstrom , 44 Ariz. 472, 38 P.2d 878 ; A Tumbling-T Ranches , 222 Ariz. 515, 217 P.3d 1220. And all the out-of-jurisdiction cases specific to condemnation by private entities on which Southwest Transmission relies arose in jurisdictions that do not have constitutional limitations analogous to Arizona's Article 2, § 17 right-of-way clause. See, e.g. , Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) ( U.S. Const. amend. V ; N.Y. Const. art. 1, § 7 ); Windrow v. Middle Tenn. Elec. Membership Corp. , 376 S.W.3d 733, 737-38 (Tenn. Ct. App. 2012) ( Tenn. Const. art. 1, § 21 ); see also, e.g. , Cantu v. Pac. Gas & Elec. Co. , 189 Cal.App.3d 160, 234 Cal. Rptr. 365 (1987) ( Cal. Const. art. 1, § 19 ).

¶22 The closest thing to contrary authority in Arizona case law cited by Southwest Transmission appears in a single reference in Gardiner :

The immediate taking of possession of property by a municipality is a taking of property. Possession is certainly one of the greatest attributes of ownership of property. The possessor exercises dominion over the property, and a condemnor, be it municipality or private corporation thereafter denies the owner of its usage, its rental value, and its enjoyment.

103 Ariz. at 424, 443 P.2d at 420 (emphasis added). But Gardiner itself involved a taking by a municipality, not a private corporation. Id. at 421, 443 P.2d at 417. And Gardiner construed the requirements for taking by means of an order for immediate possession under § 12-1116, which Hughes Tool had already ruled was not available to a private corporation. See 103 Ariz. at 423, 425, 443 P.2d at 419. In short, Gardiner did not consider the right-of-way clause's restrictions on taking by a private corporation. Although this language would support Southwest Transmission's position if read broadly, Gardiner 's dicta cannot override the express language of the constitutional right-of-way clause or the express holding of Hughes Tool .

¶23 For the same reasons, the superior court's ruling that the taking occurred on the date of the summons also fails. That conclusion made practical sense under the circumstances of this case: it recognized that Southwest Transmission could not unilaterally exercise eminent domain by occupation, but also that Southwest Transmission was in fact in possession when it began to exercise its eminent domain power properly by filing the direct condemnation action. But the right-of-way clause as construed in Hughes Tool forecloses this result. As a private corporation, Southwest Transmission cannot take possession of property as a condemnor until after trial and payment of just compensation. See Hughes Tool , 91 Ariz. at 160, 370 P.2d 646. To hold otherwise would, in effect, allow the result that Hughes Tool reversed: a private corporation could achieve the same result as an order for immediate possession (even though § 12-1116 is unavailable) by simply entering the property during the pendency of the condemnation action.

¶24 Southwest Transmission's other arguments are similarly unavailing. It suggests that Landowners could have formalized the taking by filing an inverse condemnation action immediately after expiration of the BLM right-of-way grant (locking in that date as the date of the taking), so the date of the taking should not be controlled by Landowners' decision not to do so. But this argument assumes that the taking occurred when Southwest Transmission outstayed the BLM right-of-way grant, which the right-of-way clause forbids. Moreover, Southwest Transmission itself could have eliminated this delay by pursuing a direct condemnation claim years earlier.

¶25 Southwest Transmission further argues that using the end of the condemnation action as the valuation date provides an incentive for delay, as one party or the other (depending on whether property values were rising or falling) would wish to delay resolution for economic gain. But such policy concerns cannot override the constitutional limitations on a private corporation's condemnation authority. And the argument ignores that, in straight-condemnation proceedings under federal law, the date of the taking is similarly the date the government tenders payment after final judgment on just compensation. See, e.g. , Kirby Forest , 467 U.S. at 3-4, 11-12, 104 S.Ct. 2187. In any event, the superior court has other tools to ensure the efficient processing of cases before it and, in appropriate circumstances, to sanction a party that unreasonably delays the proceeding. See, e.g. , A.R.S. § 12-349(A)(3) ; Fenton v. Howard , 118 Ariz. 119, 121, 575 P.2d 318, 320 (1978) ("Every court has inherent power to do those things which are necessary for the efficient exercise of its jurisdiction."); State v. Superior Court , 39 Ariz. 242, 247-48, 5 P.2d 192, 197-98 (1931) (same); see also Ariz. R. Civ. P. 1 (directing that the civil rules "be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding").

¶26 Although Southwest Transmission continued to possess and use the transmission lines after the BLM right-of-way grant expired, it did not-and it constitutionally could not -do so in the capacity of a condemnor. Instead, Southwest Transmission simply became a hold-over tenant on that date, and under the right-of-way clause of Article 2, § 17, could not take Landowners' property in a constitutional sense until after trial and payment. Accordingly, the value of just compensation must reflect the value at that time.

¶27 We thus reverse the superior court's ruling as to valuation date as described in this decision. As neither side challenged the court's ruling as to the status of Southwest Transmission and Mohave Electric as holdover tenants from expiration of the BLM right-of-way grant through the date of the taking and Landowners' entitlement to rental damages as compensation for the period, the balance of the ruling stands.

II. Ownership of the Electric Transmission Lines and Structures.

¶28 The superior court granted Southwest Transmission's motion for partial summary judgment (joined by Mohave Electric) on ownership of the electric transmission lines and structures. The court ruled as a matter of law that Southwest Transmission and Mohave Electric originally owned the improvements and, under the undisputed factual circumstances presented, title had never passed to Landowners. Accordingly, the value of the improvements would not be included when calculating just compensation for the taking. Landowners challenge this ruling, urging that Southwest Transmission and Mohave Electric became trespassers and thus forfeited the improvements when they neither paid rent nor removed the lines after expiration of the BLM right-of-way grant, or alternatively, that disputed facts as to the reasonableness of Southwest Transmission's conduct preclude summary judgment.

¶29 Summary judgment is appropriate if there are no genuine issues of material fact and, based on those undisputed facts, the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a) ;

Orme Sch. v. Reeves , 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). We review the grant of summary judgment de novo, viewing the facts in the light most favorable to the party against whom judgment was entered. Wells Fargo Bank, N.A. v. Allen , 231 Ariz. 209, 213, ¶ 14, 292 P.3d 195, 199 (App. 2012).

¶30 The undisputed facts establish that Southwest Transmission and Mohave Electric own the transmission lines and structures. Southwest Transmission built the lines and structures while lawfully occupying the property pursuant to the BLM right-of-way grant. And the terms of that grant contemplated that Southwest Transmission would retain these improvements. The grant incorporated regulations including 43 C.F.R. § 2807.19(a), which required the grantee to remove all facilities (defined as improvements or structures) after the grant expired. See also 43 C.F.R. § 2801.5(b) (defining "Facility"). By requiring removal, the agreement made clear the parties' intent that Southwest Transmission, not the property owner, owned the improvements.

¶31 Because Southwest Transmission retained ownership of the lines and structures, even the authorities on which Landowners rely support the notion that Southwest Transmission need not pay compensation for these pre-condemnation improvements. In State v. Teller Native Corp. , for instance, the Supreme Court of Alaska acknowledged the general rule that a condemnor need not pay for its own pre-condemnation improvements unless those improvements were made under a contract giving the landowner the right to keep them. 904 P.2d 847, 850 (Alaska 1995). Because the condemnor in that case had specifically agreed to build certain improvements (an airport, taxiway and runway, roadway, and parking area) as partial consideration for the lease and to leave them for the landowner's benefit after termination of the lease, the condemnor would have to pay the landowner compensation for the improvements. Id. at 849-50, 850-51 ; see also United States v. Five Parcels of Land , 180 F.2d 75, 76-77 (5th Cir. 1950) (distinguishing improvements the condemnor/prior-lessee had a right to remove (no compensation owed) from those improvements the lease contemplated would revert to the landowners after termination (compensation required)). Here, in contrast, the fact that the grant allowed and required Southwest Transmission to remove the improvements means it owned the improvements and need not pay compensation for those improvements upon condemnation.

¶32 Landowners contend, however, that Southwest Transmission and Mohave Electric became trespassers after expiration of the BLM right-of-way grant and, by failing to pay rent or promptly remove the improvements, forfeited their ownership of the transmission lines and structures. See Russell v. Golden Rule Min. Co. , 63 Ariz. 11, 29-30, 159 P.2d 776 (1945) (noting common law rule regarding abandonment of right to remove fixtures by failing to remove such fixtures within a reasonable time). But Landowners did not demand that Southwest Transmission remove the improvements after the right-of-way grant expired. And the rule Landowners propose simply does not apply in the same way to an entity with eminent domain authority that constructs improvements to facilitate the public use for which it has the authority to condemn the land, and then in fact exercises its power to condemn the property. See, e.g. , Anderson-Tully Co. v. United States , 189 F.2d 192, 197 (5th Cir. 1951) ; see also, e.g. , Etalook v. Exxon Pipeline Co. , 831 F.2d 1440, 1444 (9th Cir. 1987) ; Ill. Cent. R.R. v. Le Blanc , 74 Miss. 650, 21 So. 760, 762 (1897) (collecting cases); Seattle & Mont. Ry. v. Corbett , 22 Wash. 189, 60 P. 127, 128 (1900). Moreover, the superior court's prior ruling that Southwest Transmission and Mohave Electric were holdover tenants between expiration of the BLM right-of-way grant and the date of the taking and that Landowners are entitled to rental damages for that period ensures that Landowners will receive full compensation for the period over which they now fault Southwest Transmission for failing to pay rent. See Etalook , 831 F.2d at 1444.

¶33 In short, Southwest Transmission and Mohave Electric retained ownership of the improvements after expiration of the grant, and we thus affirm the superior court's ruling as to ownership of the transmission lines and structures.

III. Attorney's Fees on Appeal.

¶34 Landowners request an award of attorney's fees on appeal under A.R.S. § 12-341.01. Without addressing whether Landowners' counterclaim for rental damages renders this condemnation case an "action arising out of a contract" for purposes of § 12-341.01, we decline to award attorney's fees at this time, without prejudice to a request for fees in the superior court if appropriate on remand.

CONCLUSION

¶35 We reverse the superior court's ruling as to valuation date, affirm as to holdover tenancy from expiration of the BLM right-of-way grant through valuation date and Landowners' right to rental damages for that period, affirm as to ownership of improvements, and remand for valuation proceedings consistent with this decision.

      Southwest Transmission merged into Arizona Electric Power after this appeal was filed, and Arizona Electric Power was substituted as appellee/cross-appellant. Given Southwest Transmission's participation throughout the superior court proceedings and adopting the convention employed by the parties, we refer to Southwest Transmission rather than Arizona Electric Power as prospective condemnor throughout this decision.

      In full, the general and right-of-way clauses read:
      No private property shall be taken or damaged for public or private use without just compensation having first been made, paid into court for the owner, secured by bond as may be fixed by the court, or paid into the state treasury for the owner on such terms and conditions as the legislature may provide, and no right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived as in other civil cases in courts of record, in the manner prescribed by law.
      Ariz. Const. art. 2, § 17.