author: GREENWOOD, Judge:

text:
    2004 UT App 8
    STATE of Utah, Plaintiff and Appellee, v. German Cruz REYES, Defendant and Appellant.
    No. 20030051-CA.
    Court of Appeals of Utah.
    Jan. 15, 2004.

      Kent R. Hart, Lisa J. Remal, Salt Lake City, for Appellant.
    Mark L. Shurtleff, atty. gen., and J. Frederic Voros Jr., asst. atty. gen., Salt Lake City, for Appellee.
    Before BENCH, Associate P.J., DAVIS and GREENWOOD, JJ.
   OPINION

GREENWOOD, Judge:

¶ 1 Defendant, German Cruz Reyes, appeals his conviction of two counts of aggravated sexual assault, first degree felonies, in violation of Utah Code Annotated section 76-5-405 (Supp.2002). Specifically, Defendant argues that this court should reverse and remand for a new trial because (1) the trial court violated Defendant’s due process and jury trial rights when it misstated the law in the jury instruction defining reasonable doubt, and (2) the trial court violated Utah law and Defendant’s due process right to a fair trial when it failed to instruct the jury on the law at the close of evidence. We reverse and remand.

BACKGROUND

¶ 2 On the evening of February 14, 2002, the victim, an eighteen-year-old female, went to Bricks nightclub in Salt Lake City, Utah, to go dancing. At approximately midnight, she went outside the club to wait for her boyfriend to call her on her cellular phone. Because the victim had consumed a few shots of tequila, she was feeling “kind of tipsy” at the time.

¶ 3 While the victim was waiting for her boyfriend’s call, Defendant drove up to the front of the nightclub and motioned for the victim to approach his car. The victim walked over to Defendant and asked him for a cigarette. Defendant instructed the victim to walk around to the passenger side of his car. The victim got into Defendant’s car but left the passenger door open with her feet hanging outside the ear. Defendant then started to drive away and the victim put her feet inside the car and closed the door.

¶ 4 Defendant told the victim that he was taking her to a gas station to buy cigarettes. On the way to buy the cigarettes, Defendant and the victim spoke very little because Defendant did not speak English very well. Their conversation was limited to exchanging their names and ages. According to the victim, Defendant told her he was twenty-six. In fact, Defendant was approximately forty-years-old at the time.

¶ 5 When they were about halfway to a nearby 7-Eleven convenience store, the victim’s boyfriend called her on her cellular phone. When Defendant and the victim arrived at the 7-Eleven, Defendant bought cigarettes while the victim continued to speak on the phone with her boyfriend. However, the victim never informed her boyfriend that she was in Defendant’s car.

¶ 6 When Defendant got back in the car, the victim, who was starting to feel nervous, asked Defendant if they were going back to the nightclub. Defendant told her that they were. On the way back, Defendant stopped the car in an alley located in an industrial area several blocks from Bricks nightclub. While the victim was still on the phone to her boyfriend, Defendant got out of the car and opened the rear passenger door and started to look for something on the floor behind the victim’s seat. Defendant then opened the front passenger door and started to search the area around the victim’s feet. The victim shut the passenger door and Defendant continued his search in the back seat. According to the victim, Defendant then opened her door again, held a knife to her stomach, and threw her phone to the ground, causing it to break into pieces. Next, Defendant made the victim get out of the car and forced her to pull her pants down. The victim started to cry and asked Defendant to stop. Moments later, Defendant pulled his own pants down and proceeded to penetrate the victim’s vagina with his fingers. Defendant then turned the victim around and slightly penetrated the victim’s vagina with his penis. The entire incident lasted about three or four minutes. Defendant then got back in his car and drove away.

¶ 7 After Defendant left, the victim dressed, put her phone back together, and called her boyfriend and informed him that she had just been raped. She then walked back to the nightclub and told a friend what had happened. The friend located a security guard who observed that the victim appeared to have been recently involved “in a scuffle.” According to the security guard, the victim’s clothes appeared “tattered,” her hair was “messed up,” and she was crying and very emotional. When the security guard asked the victim if she had been raped, she answered “yes.”

¶ 8 During Defendant’s trial, he admitted he had engaged in sexual relations with the victim, but claimed she had consented. According to Defendant, he asked the victim if she liked “sexo,” and while she initially answered “no,” the second time he asked the question, she said “yes.” Defendant further claimed the victim exited his car of her own accord and he and the victim then “tried to have sex.” Defendant denied using a knife to force Defendant to have sex with him.

¶ 9 On March 21, 2002, the State filed an information charging Defendant with one count of aggravated assault. During Defendant’s preliminary hearing, the victim testified that Defendant had penetrated her vagina using his fingers, an allegation that the State had not known previously. Based on this new allegation, the trial court allowed the State to add a second count of aggravated sexual assault to the information.

¶ 10 Defendant’s trial began on October 31, 2002. Prior to opening statements, the trial court proposed reading the jury eighteen preliminary instructions. These instructions included instructions on the presumption of innocence and on the definition of proof beyond a reasonable doubt. Defense counsel objected to the trial court giving the jury these preliminary instructions without also rereading the instructions at the end of the trial. The basis for the objection was that instructing the jury in this manner violated Utah law and Defendant’s due process rights.

¶ 11 Defense counsel also objected to the wording of the trial court’s proposed jury instruction defining reasonable doubt. That instruction read as follows:

All presumptions of law, independent of evidence, are in favor of innocence. A defendant is presumed innocent until proven guilty beyond a reasonable doubt. Where you are satisfied that a reasonable doubt exists as to a defendant’s guilt, he/ she is entitled to acquittal.
The burden is upon the prosecution to prove the defendant guilty beyond a reasonable doubt. Proof beyond a reasonable doubt does not require proof to an absolute certainty. Reasonable doubt is required, not doubt which is merely possible, since everything in human affairs is open to some possible or imaginary doubt. Proof beyond a reasonable doubt is a degree of proof that satisfies your mind and convinces your conscientious understanding. Reasonable doubt is doubt entertained by reasonable men and women and arises from the evidence, or lack of evidence, in the case.

Defense counsel claimed that this instruction was improper because it did not meet the requirements of the three-part test announced by the Utah Supreme Court in State v. Robertson, 932 P.2d 1219 (Utah 1997), overruled, on other grounds by State v. Weeks, 2002 UT 98,¶ 25 n. 11, 61 P.3d 1000. Specifically, defense counsel argued that under Robertson, the instruction was required to contain the phrase “proof beyond reasonable doubt obviates all reasonable doubt” and could not contain the phrase “reasonable doubt cannot merely be a possibility.”

¶ 12 The trial court overruled both of defense counsel’s objections and proceeded to read the jury eighteen preliminary instructions. Each juror was given a written copy of these preliminary instructions. The following day, immediately prior to closing arguments, the trial court read the jury the remaining fourteen instructions. Again, each juror was provided with a written copy of these additional instructions.

¶ 13 After deliberating for approximately four hours, the jury found Defendant guilty on both counts. The trial court sentenced Defendant to two concurrent terms of fifteen years to life. Defendant timely filed his notice of appeal.

ISSUES AND STANDARDS OF REVIEW

¶ 14 Defendant argues that the trial court violated his “due process and jury trial rights” under the United States Constitution because the trial court’s jury instruction defining reasonable doubt did not require the State to “ ‘obviate’ all reasonable doubt” and erroneously stated that “reasonable doubt is ... not doubt which is merely possible.” “Whether [a jury] instruction correctly states the law is reviewable under a correction of error standard, with no particular deference given to the trial court’s ruling.” State v. Archuleta, 860 P.2d 1232, 1244 (Utah 1993) (footnote omitted).

¶ 15 Defendant further argues that when the trial court failed to reread the preliminary jury instructions at the close of evidence, it violated Utah law and his due process right to a fair trial. Determining the propriety of the instructions submitted to the jury presents a question of law, which we review for correctness. See Ames v. Maas, 846 P.2d 468, 471 (Utah Ct.App.1993).

ANALYSIS

I. Jury Instruction Defining Reasonable Doubt

¶ 16 Defendant argues that the trial court violated his due process and jury trial rights because it failed to adequately instruct the jury on the definition of reasonable doubt. Specifically, Defendant claims that the trial court’s jury instruction on reasonable doubt was unconstitutional because the instruction failed to require the State to “ ‘obviate’ all reasonable doubt” and incorrectly stated that “reasonable doubt is ... not doubt which is merely possible.” “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970) (emphasis added). “This beyond-a-reasonable-doubt requirement ... applies in state as well as federal proceedings.” Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 2080-81, 124 L.Ed.2d 182 (1993) (citation omitted). In addition, “the Fifth Amendment [due process] requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated” so that “the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.” Id. at 278, 113 S.Ct. at 2081. “Denial of the right to a jury verdict of guilt beyond a reasonable doubt” qualifies as “structural error,” thereby requiring reversal. Id. at 281-82, 113 S.Ct. at 2083.

¶ 17 Although “[t]he beyond a reasonable doubt standard is a requirement of due process, ... the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994) (citation omitted). “[S]o long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.” Id., 114 S.Ct. at 1243 (citations omitted).

¶ 18 In Victor, the United States Supreme Court considered the constitutionality of two reasonable doubt jury instructions. One of these instructions defined reasonable doubt in part as follows: “ ‘It is not a mere possible doubt; because everything relating to human affairs ... is open to some possible or imaginary, doubt.’ ” Id. at 7, 114 S.Ct. at 1244. The Court concluded that this definition of reasonable doubt was constitutional. See id. at 17, 114 S.Ct. at 1248^9.

¶ 19 Despite the Supreme Court’s holding in Victor and its initial determination that no particular words are required when instructing the jury on the government’s burden of proof, the Utah Supreme Court in State v. Robertson, 932 P.2d 1219 (Utah 1997), overruled on other grounds by State v. Weeks, 2002 UT 98, ¶ 25 n. 11, 61 P.3d 1000, without mentioning Victor, explained that it had “essentially adopted the analysis of Justice Stewart’s dissent in State v. Ireland, 773 P.2d 1375, 1380-82 (Utah 1989), for reviewing the appropriateness of a reasonable doubt instruction.” Robertson, 932 P.2d at 1232. According to our supreme court, this analysis required the following three-part test:

First, “the instruction should specifically •state that the State’s proof must obviate all reasonable doubt.” Second, the instruction should not state that a reasonable doubt is one which “would govern or control a person in the more weighty affairs of life,” as such instruction tends to trivialize the decision of whether to convict. Third, “it is inappropriate to instruct that a reasonable doubt is not merely a possibility,” although it is permissible to instruct that a “fanciful or wholly speculative possibility ought not to defeat proof beyond a reasonable doubt.”

Id. (citations omitted). Therefore, under Robertson, the trial court’s jury instruction on reasonable doubt was improper because it stated that “reasonable doubt is required, not doubt which is merely possible” and it failed to mention that the State’s burden of proof “must obviate all reasonable doubt.” Id. (citations omitted).

¶ 20 The State attempts to diminish the significance of the three-part test in Robertson by arguing that the test is not based on any constitutional authority. First, the State claims that the first prong of the test is inconsistent with the United States Supreme Court’s determination that a reasonable doubt instruction does not require any particular form of words. See Victor, 511 U.S. at 5, 114 S.Ct. at 1243. Second, the State claims that the third prong of the test misstates the standard for analyzing the constitutionality of a reasonable doubt instruction because “mere possibility” language was approved by the United States Supreme Court, see id. at 17, 114 S.Ct. at 1248-49, and by the Utah Supreme Court. See Carter v. Galetka, 2001 UT 96, ¶ 51, 44 P.3d 626. Accordingly, in its brief, the State asks this court to overrule Robertson, and during oral argument, the State went so far as to suggest that Carter had effectively overruled Robertson.

¶ 21 Although we agree that Victor cannot be reconciled with the three-part test in Robertson, we simply do not have the authority to overrule Robertson. Only the Utah Supreme Court can correct any deficiencies in Robertson. See Sentry Investigations v. Davis, 841 P.2d 732, 735 (Utah Ct.App.1992) (“The Court of Appeals simply cannot overrule the law as announced by the highest court in the state_”). Moreover, while it is true that in Carter the Utah Supreme Court found “no constitutional deficiency” in a reasonable doubt jury instruction that stated “a reasonable doubt must be a real, substantial doubt and not one that is merely possible or imaginary,” Carter, 2001 UT 96 at ¶ 51, 44 P.3d 626, we do not agree with the State’s claim that this meant that Robertson had been effectively overruled. The reason that the Carter court upheld the reasonable doubt instruction at issue was because a similar jury instruction that contained the term “substantial doubt” had been previously deemed constitutional by the United States Supreme Court. See id. at ¶ 51 n. 4. More importantly, when analyzing the reasonable doubt instruction in Carter, the court did not reference Robertson or its three-part test. Therefore, we may not infer that when the court held that the challenged reasonable doubt jury instruction was constitutional, it was overruling Robertson. See State v. Menzies, 889 P.2d 393, 398-99 (Utah 1994) (noting that under the principle of stare decisis, a court of last resort “ ‘will follow the rule of law which it has established in earlier eases, unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent’ ” (citation omitted)).

¶ 22 In this case, it is clear that the trial court’s reasonable doubt jury instruction failed to comport with the requirements of the three-part test set forth in Robertson and constituted a structural error requiring reversal. Although this test may be constitutionally flawed, it is not within our power to overrule it. Accordingly, on this issue, we reverse and remand for a new trial.

II.' Failure To Reinstruct The Jury

¶ 23 Defendant also argues that when the trial court failed to reread all of the preliminary jury instructions at the close of evidence, it violated rule 17(g)(6) of the Utah Rules of Criminal Procedure and his due process right to a fair trial. “We interpret a [court] rule by examining the rule’s plain language and resort[ ] to other methods ... only if the language is ambiguous.” State v. Quinonez-Gaiton, 2002 UT App 273, ¶ 11, 54 P.3d 139 (second and third alterations in original) (quotations and citation omitted). Rule 17(g) provides in relevant part as follows:

After the jury has been impaneled and sworn, the trial shall proceed in the following order:
(g)(6) When the evidence is concluded and at any other appropriate time, the court shall instruct the jury;

Utah R.Crim. P. 17(g)(6) (emphasis added).

¶ 24 The plain language of this rule indicates that a trial court must instruct the jury at the close of evidence. Although the trial court is also required to instruct the jury at “any other appropriate time,” we do not construe this to mean, as the State contends, that a trial court can adhere to the rule by giving the jury some of its instructions before opening statements (an “appropriate time”) and the rest of its instructions before closing arguments (“[w]hen the evidence is concluded”). Utah R.Crim. P. 17(g)(6). The use of the mandatory word “shall” along with the conjunction “and” demonstrates that such an interpretation is-not plausible. Id. Were we to accept the State’s argument, a trial court could comply with rule 17(g)(6) by reading all but one of the jury instructions at the beginning of the trial and save one remaining instruction for after the close of evidence; a result clearly not allowed by the drafters of the rule.

¶25 The State also argues that because rule 19(a) of the Utah Rules of Criminal Procedure expressly allows a trial court to provide the jury with preliminary instructions prior to opening statements, the trial court in this case was not required to repeat these instructions to the jury after the close of evidence. Again, we find the State’s argument unpersuasive. In State v. Marquez, 135 Ariz. 316, 660 P.2d 1243 (Ct.App.1983), the court considered whether the trial court erred when it instructed the jury on the State’s burden of proof at the opening of the trial but failed to do so after the close of evidence. See id. at 1247. As part of its analysis, the court examined Arizona Rule of Criminal Procedure 18.6(c), which contains language similar to Utah Rule of Criminal Procedure 19(a). Rule 18.6(c) states: “ ‘Immediately after the jury is sworn, the court shall instruct the jury concerning its duties, its conduct, the order of proceedings, and the elementary legal principles that will govern proceedings.’ ” Marquez, 660 P.2d at 1248 (citation omitted). The court interpreted this rule as follows:

In order that there be no further confusion, we hold that the preliminary instruction of the jury, authorized by Rule 18.6(c), Rules of Criminal Procedure, is for the purpose of preparing the jury for the trial and constitutes an orientation process by which the jury is made to understand its duties and responsibilities. Where elementary legal principles that will govern the proceedings are given to the jury as a part of the orientation, the trial judge must repeat all such legal principles in its charge to the jury, where such legal principles include matters of law vital to the rights of a defendant.

Id. at 1249; see also State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640, 644 (1990) (noting that “[i]f the preliminary or cautionary instructions include matters of law vital to- the rights of a defendant, the trial court is not excused from including or repeating all such instructions after the arguments are completed”).

¶26 Like Arizona’s rule 18.6(c), Utah’s rule 19(a) permits a trial court to provide jurors, as part of their orientation, with preliminary instructions on matters that the court “believes will assist the jurors in comprehending the case.” Utah R.Crim. P. 19(a). Although the rule authorizes a trial court to instruct the jury not only on procedural matters but also on matters relating to the fundamental rights of a defendant, such as “the elements and burden of proof for the alleged crime,” id., it does not supercede the plain and unambiguous mandate contained in rule 17(g)(6) that the jury be instructed at the close of evidence. In other words, while it is permissible, and we believe appropriate, for a trial court to provide the jury with preliminary instructions on “matters of law vital to the rights of a defendant,” Marquez, 660 P.2d at 1249, such as the presumption of innocence and the State’s burden of proof, in order to fully comply with rule 17(g)(6), the court must repeat these instructions at the close of evidence. Id. Accordingly, we hold that the trial court erred when, at the end of the trial, it failed to reinstruct the jury on the law as it related to Defendant’s fundamental rights.

¶ 27 Having determined that the trial court erred when it failed to repeat its preliminary jury instructions at the close of evidence, we must ascertain whether this error was harmful. In order for an error to be harmful, “the likelihood of a different outcome must be sufficiently high to undermine confidence in the verdict.” State v. Knight, 734 P.2d 913, 920 (Utah 1987); see also Utah R.Crim. P. 30(a) (“Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded.”).

¶ 28 Based on our review of the record, we cannot say that had the trial court repeated the preliminary jury instructions at the close of evidence, the verdict in this case would have been any different. The time period separating the trial court’s reading of the preliminary instructions from the close of evidence was less than twenty-four hours. Moreover, when the jurors retired to deliberate, they were provided with a written copy of every preliminary and final jury instruction. Finally, despite Defendant’s assertions to the contrary, this case was not a close credibility contest over the issue of consent. Other than Defendant’s testimony, all of the relevant evidence demonstrates that the victim engaged in sex against her will. The victim had known Defendant for less than half-an-hour. She immediately reported the incident to her boyfriend and told him and the security guard at Bricks nightclub that she had just been raped. Finally, the security guard confirmed that it appeared that the victim had recently been in “a scuffle” when he saw her and that she appeared to him to be extremely upset and emotional.

¶ 29 Therefore, we conclude that although the trial court erred when it failed to rein-struct the jury at the close of evidence, this did not affect the jury’s verdict. Accordingly, the trial court’s error was harmless.

CONCLUSION

¶ 30 The reasonable doubt instruction that the trial court gave to the jury clearly did not comport with the first and third prongs of the three-part test as announced in State v. Robertson, 932 P.2d 1219, 1232 (Utah 1997), overruled on other grounds by State v. Weeks, 2002 UT 98,¶ 25 n. 11, 61 P.3d 1000. Although Robertson is not consistent with United States Supreme Court precedent, this court does not have the authority to overrule Robertson. Therefore, we reverse and remand for a new trial.

¶ 31 In addition, we conclude that the trial court violated rule 17(g)(6) of the Utah Rules of Criminal Procedure when it failed to repeat those preliminary jury instructions that related to Defendant’s fundamental rights. However, in light of the evidence in this case, the short time between the preliminary instructions and the close of evidence, and the fact that the jurors were provided with written copies of all of the jury instructions, we are confident that the trial court’s error did not influence the jury vérdict. Therefore, the trial court’s error was harmless.

¶ 32 WE CONCUR: RUSSELL W. BENCH, Associate Presiding Judge and JAMES Z. DAVIS, Judge.

      . These fourteen instructions did not include an instruction on Defendant’s presumption of innocence or on the definition of reasonable doubt.

      . Although at the beginning of his brief Defendant cites to Article I, Section 7 of the Utah Constitution (guaranteeing that "[n]o person shall be deprived of life, liberty or property, without due process of law’’) and Article I, Section 12 of the Utah Constitution (guaranteeing criminal defendants "the right to a speedy and public trial, by an impartial jury”). Defendant never argued, either at trial or on appeal, that his rights under the Utah Constitution had been violated. Therefore, we only address Defendant's constitutional claims that arise under the United States Constitution. See State v. Seale, 853 P.2d 862, 873 n. 6 (Utah 1993) (noting that when party fails to make separate argument under state constitutional provision, his or her claim will only be addressed under federal constitution).

      . The definition of reasonable doubt at issue in this case used almost identical language. It stated: "Reasonable doubt is required, not doubt which is merely possible, since everything in human affairs is open to some possible or imaginary doubt.”

      . As noted earlier, the Supreme Court reviewed two sets of reasonable doubt jury instructions in Victor v. Nebraska, 511 U.S. 1, 114 S.Ct 1239, 127 L.Ed.2d 583 (1994). One instruction was challenged based on reasonable doubt being defined in part as " 'not a mere possible doubt.’ See id. at 7, 114 S.Ct. at 1244. The other instruction was challenged based on reasonable doubt being defined in part as an " 'actual and substantial doubt.' " See id. at 18, 114 S.Ct. at 1249. It was the latter instruction which provided the basis for the court’s decision to uphold the reasonable doubt instruction at issue in Carter v. Galetka, 2001 UT 96, 44 P.3d 626. See id. at V 51 n. 4.

      . Rule 19(a) of the Utah Rules of Criminal Procedure provides in relevant part as follows:
      After the jury is sworn and before opening statements, the court may instruct the jury concerning the jurors' duties and conduct, the order of proceedings, the elements and burden of proof for the alleged crime, and the definition of terms. The court may instruct the jury concerning any matter ... the court in its discretion believes will assist the jurors in comprehending the case.

      . We note that requiring a trial court to rein-struct the jury at the end of the trial is consistent with the approach taken by courts in other jurisdictions that have interpreted rules similar to rule 17(g)(6) of the Utah Rules of Criminal Procedure. See e.g., State v. Jackson, 144 Ariz. 53, 695 P.2d 742, 743 (1985) (concluding that trial court is required, under Arizona Rules of Criminal Procedure, to "instruct the jury at end of evidence and oral argument"); Bennett v. State, 302 Ark. 179, 789 S.W.2d 436, 438 (1990) (concluding that statute, which read: " ‘When the evidence is concluded, the court shall, on motion of either party, instruct the jury on the law applicable to the case,’ " was "so clear that it did not need interpretation” (citation omitted)); Little v. State, 230 Ga.App. 803, 498 S.E.2d 284, 287 (1998) (noting that in light of statute that provided that "the trial court shall instruct the jury in the law after the closing arguments are completed,” preliminary instructions could not "serve as a substitute for a complete juiy charge, as the statute requires, after the evidence is closed and arguments concluded” (quotations and citations omitted)); State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640, 644 (1990) (holding, under Ohio Rules of Criminal Procedure, that although trial court may give juiy preliminaiy instructions, "[ajfter arguments are completed, [the] trial court must fully and completely give the jury all instructions which are relevant and necessary for the juiy to weigh the evidence and discharge its duty as fact finder”); State v. Nelson, 587 N.W.2d 439, 444 (S.D.1998) (construing word "shall” as "a mandatory directive” in a statute that read: " 'The court shall read its instructions to the juiy’ at the close of the evidence and before final argument.” (citation omitted)).

      . Because we hold that the trial court's failure to reinstruct the jury violated rule 17(g)(6) of the Utah Rules of Criminal Procedure, we do not address Defendant's argument that the trial court’s failure to reinstruct the jury also violated his due process right to a fair trial.


source: Caselaw Access Project

author: BENCH, Associate Presiding Judge:

license: Public Domain

text:
    2004 UT App 7
    STATE of Utah, Plaintiff and Appellee, v. Anastasia C. PIEP, Defendant and Appellant.
    No. 20030059-CA.
    Court of Appeals of Utah.
    Jan. 15, 2004.

      Aric Cramer and Alisha Giles, Cramer Cramer & Adair LLC, Bountiful, for Appellant.
    Troy S. Rawlings, Farmington, for Appel-lee.
    Before BENCH, Associate P.J., DAVIS and GREENWOOD, JJ.
   OPINION

BENCH, Associate Presiding Judge:

¶ 1 Defendant Piep appeals her convictions for lewdness involving a child, a class A misdemeanor, in violation of Utah Code Annotated section 76-9-702.5(l)(e) (2003), and child abuse, a class B misdemeanor, in violation of Utah Code Annotated section 76-5-109(l)(c)(iv) (2003). We affirm in part and reverse in part.

BACKGROUND

¶2 Piep’s husband, Norman, purchased a book entitled “Sex Q & A” (the book) at the Barnes & Noble store in Bountiful, Utah. Piep admitted to showing her twelve-year-old daughter, J.W., a portion of the book related to dating. Norman showed J.W. part of the chapter entitled “Questions Women Ask,” which discusses sexual self-esteem and masturbation.

¶3 Amy Graham from Child Protective Services contacted Detective Feigleson about investigating alleged inappropriate behavior at J.W.’s house. J.W. gave a general description of the book to Detective Feigleson and told the detective that the book had photographs of “naked people doing bad things.” Detective Feigleson visited Piep’s home and asked Piep if she could have the book. Piep retrieved the book and gave it to the detective.

¶ 4 While in Piep’s home, Detective Feigle-son noticed a “very foul odor.” Throughout the home, the detective saw garbage, clothing, and food on the floor. The cupboards were all open and dirty dishes were piled all over the countertops and in the sink. One bowl appeared to have something moldy in it and quite a few of the containers in the refrigerator appeared to contain moldy and rotten food. There was a green substance running out of the refrigerator onto the floor. In the bedroom of. J.W.’s younger brother, Detective Feigleson noticed a pair of pants with a large brown stain on the seat of them and what appeared to be human feces next to them. The room smelled of human waste. There were brown stains on the walls next to the door of the bedroom.

. ¶ 5 Piep was originally charged by information with dealing in material harmful to a minor, in addition to the lewdness involving a child and child abuse charges. On the day set for preliminary hearing, the State moved to dismiss the material" harmful to a minor charge. At a bench trial held on the remaining charges, after the State presented its case, Piep made a motion to dismiss. As to the lewdness charge, the State argued that Piep performed a lewd act when she showed the book to J.W. Piep countered that the crime, if any, came under the dealing in material harmful to a minor statute. See Utah Code Ann. § 76-10-1206 (2003). As to the child abuse charge, Piep claimed that there was no evidence of infestation or a specific act that imperiled the children. The State responded that the home created a condition that imperiled the children’s health or welfare, and that an actual physical impact on the children was not required. The court took a recess to review its notes, the exhibits, the statutes, and Provo City v. Cannon, 1999 UT App 344, 994 P.2d 206, before denying Piep’s motion to dismiss. After closing arguments, the court found Piep guilty on both charges. Piep appeals.

ISSUES AND STANDARD OF REVIEW

¶ 6 Piep challenges the sufficiency of the evidence to support her conviction for lewdness involving a child. Piep also raises a number of constitutional challenges to the lewdness involving a child statute. Because we reverse her lewdness involving a child conviction based upon insufficient evidence, we do not reach the merits of her constitutional claims. Additionally, Piep argues that the evidence was insufficient to sustain her conviction for child abuse.

¶ 7 “ ‘When reviewing a bench trial for sufficiency of evidence, we must sustain the trial court’s judgment unless it is against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made.’ ” Spanish Fork City v. Bryan, 1999 UT App 61, ¶ 5, 975 P.2d 501 (citation omitted). “However, ‘before we can uphold a conviction it must be supported by a quantum of evidence concerning each element of the crime as charged from which the [factfin-der] may base its conclusion of guilt beyond a reasonable doubt.’ ” State v. Larsen, 2000 UT App 106, ¶ 10, 999 P.2d 1252 (quoting Bryan, 1999 UT App 61 at ¶ 5, 975 P.2d 501) (other citation omitted).

ANALYSIS

I. Lewdness

¶8 The statute on lewdness involving a child states, in pertinent part:

(1) A person is guilty of lewdness involving a child if the person ... intentionally or knowingly does any of the following to, or in the presence of a child who is under 14 years of age:
(a) performs an act of sexual intercourse or sodomy;
(b) exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area
(c) masturbates;
(d) under circumstances not amounting to sexual exploitation of a child under Section 76-5a-3, causes a child under the age of 14 years to expose his or her genitals, anus, or breast, if female, to the actor, with the intent to arouse or gratify the sexual desire of the actor or the child; or
(e) performs any other act of lewdness.

Utah Code Ann. § 76-9-702.5(1) (2003) (emphasis added).

¶ 9 The trial court found that Piep performed “any other act of lewdness” by showing J.W. a book that contained lewd material. Utah Code Ann. § 76-9-702.5(l)(e). The court reasoned that the material was lewd because it was salacious which, according to the dictionary definition, means “arousing or appealing to sexual desire or imagination.” Essentially, the court determined that showing the book to J.W. was an act of lewdness because the book portrayed acts listed in the lewdness statute. By its plain language, taken in context with the other acts listed in the statute, subsection (e) requires the performance by the defendant of a sexual act. We fail to see how showing J.W. a book is a sexual act covered by the statute. The contents of the book may well appeal to sexual desire or imagination; but Piep did not dramatize, gesticulate, imitate, or even simulate the acts covered in the book.

¶ 10 The Utah Supreme Court has carefully examined the lewdness statute, Utah Code Ann. § 76-9-702(1), which is strikingly similar to the lewdness involving a child statute. The supreme court explained that, “in instances where an inexhaustive enumeration of particular or specific terms is followed by a general term or terms that suggest a class,” the doctrine of ejusdem generis applies. In re A.T., 2001 UT 82, ¶ 12, 34 P.3d 228; see also State v. Serpente, 768 P.2d 994, 997 (Utah Ct.App.1989) (applying the doctrine of ejusdem generis to the phrase “any other act of gross lewdness” because the phrase “derive[s] its definition from the context in which it appears”). The doctrine restricts that general term, or “catchall phrase at the end of a statutory list of more specific proscribed acts,” AT., 2001 UT 82 at ¶ 8, 34 P.3d 228, to “include things of the same kind, class, character, or nature as those specifically enumerated, unless there is something to show a contrary intent.” Id. at ¶ 12. Here, there is nothing in the statute to show a contrary intent so we restrict “any other act of lewdness,” Utah Code Ann. § 76-9-702.5(l)(e), to include only those acts of the “same kind, class, character, or nature as” sexual intercourse or sodomy, exposure of private parts, or masturbation. AT., 2001 UT 82 at ¶ 12, 34 P.3d 228.

¶ 11 In re AT. addressed the situation of a juvenile, A.T., charged with lewdness, “specifically, masturbating in the presence of another in a lewd and offensive manner.” Id. at ¶ 1. The court applied the doctrine of ejusdem generis to answer the question of whether A.T.’s conduct — “a deliberate simulation of masturbation” — could be considered “an ‘other act of lewdness.’ ” Id. at ¶ 11. The court held that the simulation of any of the acts enumerated in the statute, is of the “same general kind, class, character, or nature” as any of those acts. Id. at ¶ 13. Here, while the book may discuss sexual activities and contain explicit pictures, Piep never performed any of those acts, or simulated any of those acts, in front of a child. Thus, there is no “ ‘quantum of evidence concerning [an] element of the crime.’ ” State v. Larsen, 2000 UT App 106, ¶ 10, 999 P.2d 1252 (quoting Spanish Fork City v. Bryan, 1999 UT App 61, ¶ 5, 975 P.2d 501) (other citation omitted).

II. Child Abuse

¶ 12 The child abuse statute defines physical injury as “an injury to or condition of a child which impairs the physical condition of the child, including: ... (iv) any other condition which imperils the child’s health or welfare .... ” Utah Code Ann. § 76-5-109(l)(e) (2003).

¶ 13 Piep argues that a filthy house with a very foul odor, rotten and moldy food in and out of the refrigerator, a green substance running out of the refrigerator onto the floor, garbage and food on the floor, clothes everywhere, brown stains on the wall, and what appeared to be human feces lying next to a pair of pants with a brown stain on the seat, does not create a condition that imperils a child’s health or welfare. We disagree. “We do not read the statutory definition as requiring some physical impact in order to imperil the child’s health or welfare.” Provo City v. Cannon, 1999 UT App 344, ¶ 11, 994 P.2d 206. “[U]nder Utah’s child abuse act, physical injury can include acts that imperil or threaten a child’s health or welfare without an actual physical impact on the child.” Id. at ¶ 14. In Cannon, we upheld Cannon’s conviction for child abuse after he held a nine-month-old infant over the railing of a third-story apartment balcony. See id. at ¶¶ 1-2. Although the infant suffered no injury and there was no physical impact, the infant was imperiled or endangered when he was suspended by his arms, many feet above the ground, for several minutes. See id. at ¶ 13. Similarly here, the filthiness of the home created a condition that endangered the health and welfare of the children who live there. We therefore cannot say that the trial court’s adjudication was “ ‘against the clear weight of the evidence.’ ” Spanish Fork City v. Bryan, 1999 UT App 61, ¶ 5, 975 P.2d 501 (citation omitted).

CONCLUSION

¶ 14 The trial court mistakenly determined that showing J.W. a book containing what it considered “salacious” material qualified as performing “any other act of lewdness” under the lewdness involving a child statute. The trial court’s adjudication that the filthiness of the home created a condition that imperiled the health or welfare of the children was not against the clear weight of the evidence.

¶ 15 We therefore reverse Piep’s lewdness involving a child conviction and affirm her child abuse conviction.

¶ 16 WE CONCUR: JAMES Z. DAVIS, Judge and PAMELA T. GREENWOOD, Judge.

      . Both parties cite to subsection (f) of an earlier version of the lewdness involving a child statute. The 2003 amendment deleted a subsection, causing subsection (f) to become subsection (e) in the most recent version of the statute. Because no other relevant changes have been made to the statute, we cite to the 2003 version.

      . Because no pertinent changes have been made to the child abuse statute, we cite to the most recent version.

      . On both of these claims, Piep has notably complied with the marshaling requirement of rule 24.

        See Utah R.App. P. 24(a)(9).


author: ’ BENCH, Associate Presiding Judge:

text:
    2004 UT App 9
    STATE of Utah, Plaintiff and Appellee, v. Jason THORKELSON, Defendant and Appellant.
    No. 20020822-CA.
    Court of Appeals of Utah.
    Jan. 15, 2004.

      Michael D. Esplín, Aldrich Nelson Weight & Esplín, Provo, for Appellant.
    Mark L. Shurtleff, atty. gen., and Christine Soltis, asst. atty. gen., Salt Lake City, for Appellee.
    Before BENCH, Associate P.J., JACKSON and ORME, JJ.
   OPINION

’ BENCH, Associate Presiding Judge:

¶ 1 Thorkelson appeals from the trial court’s denial of a motion to correct illegal sentences pursuant to his guilty pleas to two counts of second degree felony forcible sexual abuse, in violation of Utah Code Annotated section 76-5-404 (1999), and to two counts of third degree felony unlawful sexual activity with a minor, in violation of Utah Code Annotated section 76-5-401 (1999). We dismiss the appeal for lack of subject matter jurisdiction.

BACKGROUND

¶ 2 The facts of this ease are largely uncontested.. In April 2001, Thorkelson was charged with two counts' of forcible sexual abuse, based on separate incidents with a seventeen-year-old girl and a fourteen-year-old girl, both of whom were patients at the Utah State Hospital where Thorkelson was employed. A preliminary hearing was scheduled for October 2001. In the interim, Thorkelson committed three additional crimes and, in September 2001, was charged with forcible sodomy of a sixteen-year-old girl and rape and forcible sodomy on a fifteen-year-old girl.

¶ 3 A plea bargain was reached involving all of the charges. Thorkelson pleaded guilty as charged to two counts of forcible sexual abuse, each a second degree felony. In exchange, the charges in the second case were reduced to two counts of unlawful sexual activity with a minor, third degree felonies. The trial court ordered Adult Probation and Parole (APP) to prepare a presentence investigation report (PSI), and scheduled sentencing for March 15, 2002.

¶ 4 In its PSI, APP recommended that Thorkelson be sentenced to prison. On the day before the scheduled sentencing, Thork-elson moved for a continuance because defense counsel was on maternity leave, and also because defense counsel believed that a psychosexual evaluation would help in determining Thorkelson’s rehabilitative needs. The court granted the continuance and ordered defense counsel to contact APP to arrange for the psychosexual evaluation.

¶ 5 On April 16, 2002, the trial court received an updated PSI in which APP continued to recommend prison. APP also noted that it had only been notified of the order for a psychosexual evaluation on April 11, 2002, and had immediately arranged for an April 12, 2002 evaluation of Thorkelson with Dr. Larry Fox. Dr. Fox conducted a diagnostic interview and nine separate psychological tests on Thorkelson; however, Dr. Fox said he could not complete his written report before sentencing.

¶ 6 On April 23, 2002, Thorkelson appeared for sentencing before Judge Ray M. Harding Jr. While aware of Dr. Fox’s general findings, Thorkelson moved for another continuance because Dr. Fox’s written report had not yet been completed. The court denied the continuance and stated that even if Dr. Fox recommended probation, the court had already determined that probation was not appropriate based on the PSIs. Defense counsel objected, claiming that the court had to consider Dr. Fox’s written report regarding Thorkelson’s rehabilitative needs before it sentenced him. The court responded that Thorkelson’s rehabilitative needs and treatment options were secondary to the safety of the community. Consequently, Dr. Fox’s recommendations would be more valuable to the prison staff than to the court and, once the report was completed, the court would forward it to the prison.

¶ 7 Before imposing sentence, the court heard from Thorkelson and his father. The court also considered sixteen letters submitted on Thorkelson’s behalf. Defense counsel requested that Thorkelson be given one chance with probation and suggested that if probation was ordered, then APP could find an appropriate halfway house for Thorkelson. The court responded that a halfway house was not an option. The court then imposed two consecutive sentences of one-to-fifteen years of imprisonment in the fust case and two consecutive sentences of zero-to-five years imprisonment in the second case. Each set of consecutive sentences was ordered to run consecutively to each other. Thorkelson did not appeal his sentences pursuant to rule 4(a) of the Utah Rules of Appellate Procedure.

¶ 8 Following Thorkelson’s sentencing, Judge Harding was arrested for possession of a controlled substance and subsequently left the bench. Then, on August 21, 2002, Thorkelson moved to correct his sentences pursuant to rule 22(e) of the Utah Rules of Criminal Procedure. Thorkelson alleged that his sentences were illegal because the court failed to review Dr. Fox’s written report, failed to consider all statutory factors before imposing consecutive sentences, and was biased against Thorkelson. Judge Gary D. Stott, substituting for Judge Harding, denied Thorkelson’s motion. This appeal followed.

ISSUES AND STANDARD OF REVIEW

¶ 9 Thorkelson argues that Judge Harding imposed an illegal sentence because (1) he deprived Thorkelson of due process by failing to review Dr. Fox’s report, (2) he failed to properly apply the factors found in Utah Code Annotated section 76-3-401(2) (2002) in imposing consecutive sentences, and (3) he was biased against Thorkelson. The State contends that we lack subject matter jurisdiction to decide these issues because Thork-elson did not appeal his sentence within thirty days under rule 4(a), and that rule 22(e) is not applicable because his sentences were not illegal. We review this issue for correctness. See State v. Telford, 2002 UT 51, ¶¶ 3-4, 48 P.3d 228 (holding that whether an illegal sentence is imposed is a question of law reviewed on appeal without deference to the lower court ruling).

ANALYSIS

¶ 10 The State argues that this court lacks subject matter jurisdiction because the sentencing errors raised by Thorkelson are not errors reviewable under rule 22(e). Under rule 22(e), a court can correct an illegal sentence at any time. See Utah R.Crim. P. 22(e). If an illegal sentence has been imposed, “the court does not lose jurisdiction over the sentence until that sentence has been corrected.” State v. Montoya, 825 P.2d 676, 679 (Utah Ct.App.1991). However, “once a court imposes a valid sentence, it loses subject matter jurisdiction over the ease.” Id. “Likewise, this court would have no jurisdiction to hear the appeal.” Id. Therefore, “to determine whether [Thorkelsonj’s appeal of his sentencing is properly before this court, we must determine whether the initial sentence was valid.” Id. We do so by addressing each of Thorkelson’s claims.

¶ 11 Thorkelson first argues that he was denied due process when the court failed to adequately consider relevant mitigating evidence contained in Dr. Fox’s report. Due process “requires that a sentencing judge act on reasonably reliable and relevant information in exercising discretion in fixing a sentence.” State v. Howell, 707 P.2d 115, 118 (Utah 1985). Furthermore, it is within the discretion of the court to determine whether it has sufficient information to impose sentence. See State v. Brown, 771 P.2d 1067, 1067-68 (Utah 1989). In this case, the court exercised its discretion in refusing to wait for Dr. Fox’s report. The record indicates that both defense counsel and the court agreed that Dr. Fox’s report would address Thorkel-son’s rehabilitative needs, not the punishment that should be imposed. Furthermore, while a psychosexual evaluation may be useful in sentencing, it is not mandatory. See State v. Gentlewind, 844 P.2d 372, 375 (Utah Ct.App.1992) (recognizing that a court is not compelled to consider additional psychological information, even if relevant and helpful, if the court otherwise has sufficient information to impose sentence). Relying on the PSIs, the court “was sufficiently apprised of the pertinent background facts concerning the defendant to impose sentence,” Brown, 771 P.2d at 1068, and, thus, there was nothing illegal about foregoing Dr. Fox’s report.

¶ 12 Next, Thorkelson argues that, by not reviewing Dr. Fox’s report, the court failed to consider requisite statutory factors before imposing consecutive sentences. We review this issue under an abuse of discretion standard. See State v. Helms, 2002 UT 12,- ¶¶ 8-9, 40 P.3d 626. A court abuses its discretion in imposing consecutive sentences only if “no reasonable [person] would take the view by the [sentencing] court.” State v. Gerrard, 584 P.2d 885, 887 (Utah 1978). Section 76-3-401(2) of Utah Code Annotated provides:

In determining whether state offenses are to run concurrently or consecutively, the court shall consider the gravity and circumstances of the offenses, the number of victims, and the history, character, and rehabilitative needs of the defendant.

Utah Code Ann. § 76-3-401(2) (Supp.2002).

¶ 13 A review of the record confirms that the court did what the statute requires. While the court did not specifically refer to the above factors in its ruling, it relied on the PSIs which explicitly outlined the facts surrounding the offenses, the number of victims, and the. history, character, and rehabilitative needs of Thorkelson. Thorkelson points to no relevant fact that was not properly included in the PSIs. Instead, he argues merely that the court could not have fully considered his rehabilitative needs absent Dr. Fox’s report. As noted earlier, Dr. Fox’s report was not mandatory. Therefore, there is nothing illegal about imposing consecutive sentences.

¶ 14 Finally, Thorkelson alleges that Judge Harding demonstrated improper bias against him when, for instance, Judge Harding expressed his view that probation was not an option. However, Thorkelson ignores that a court necessarily makes a personal determination whenever it imposes sentence. See State v. Bluff, 2002 UT 66, ¶ 66, 52 P.3d 1210, cert. denied, 537 U.S. 1172, 123 S.Ct. 999, 154 L.Ed.2d 914 (2003) (recognizing that “ ‘sentencing reflects the personal judgment of the court’ ” (citation omitted)). Furthermore, “ ‘neither bias nor prejudice refers to an attitude that a judge may hold about the subject matter of a lawsuit.’ ” In re Young, 1999 UT 81, ¶ 35, 984 P.2d 997 (citation omitted). Here, Judge Harding found that the crimes Thorkelson committed and their circumstances warranted the maximum penalty allowed under the law. Hence, there was nothing illegal about the sentences.

¶ 15 While rule 22(e) allows a court to review an illegal sentence at any time, it must be “narrowly circumscribed” to prevent abuse. State v. Telford, 2002 UT 51, ¶ 5, 48 P.3d 228. The Utah Supreme Court has held that a rule 22(e) illegal sentence is a “patently” illegal sentence, State v. Brooks, 908 P.2d 856, 860 (Utah 1995), or a “manifestly” illegal sentence, Telford, 2002 UT 51 at ¶ 5, 48 P.3d 228. A “patently” or “manifestly” illegal sentence generally occurs in one of two situations: (1) where the sentencing court has no jurisdiction, or (2) where the sentence is beyond the authorized statutory range. See id. at n. 1. Thorkelson’s challenges to his sentences involve neither situation. Rather, the errors raised by Thorkelson can be described as ordinary or “run-of-the-mill” errors regularly reviewed on appeal under rule 4(a) of the Utah Rules of Appellate Procedure.

¶ 16 Under rule 4(a), Thorkelson had just thirty days following his sentencing to appeal the errors he claims here. Sentencing occurred on April 23, 2002, and Defendant filed his notice of appeal on October 5, 2002. Thorkelson therefore significantly exceeded the thirty-day period allowed for review under rule 4(a). The failure to timely appeal under rule 4(a) does not permit Thorkelson to raise his claims under a rule 22(e) motion. Allowing him to do so would undermine the purpose of rule 4(a) and negate the narrow scope of rule 22(e).

CONCLUSION

¶ 17 Jurisdiction to correct Thorkelson’s sentence must be “based on an illegality or voidness in the initial sentence, and because the initial sentence was legal, the sentencing court lost subject matter jurisdiction over Thorkelson’s sentence.” State v. Montoya, 825 P.2d 676, 680 (Utah Ct.App.1991). Moreover, because Thorkelson’s claims are sentencing errors not reviewable under rule 22(e), we have no jurisdiction to hear this appeal.

We therefore dismiss the appeal.

¶ 18 WE CONCUR: NORMAN H. JACKSON, Judge and GREGORY K. ORME, Judge.

      . The court received Dr. Fox's report shortly after sentencing. Dr. Fox found that Thorkelson did not suffer from any mental disease, and recommended that Thorkelson be deprived of any contact with teenage girls until he had made sufficient therapeutic change. Dr. Fox stated that if therapy was provided, it must occur in a setting no less secure than a residential correctional center.

      . Rule 22(e) allows courts, at any time, to review two types of sentences: (1) an illegal sentence, and (2) a sentence imposed in an illegal manner. See Utah R.Crim. P. 22(e). The issue of whether or not a notable distinction exists between "an illegal sentence” and "a sentence imposed in an illegal manner” is currently pending before the Utah Supreme Court. See State v. Samora, 2002 UT 384, 59 P.3d 604 (Ct.App.2002), cert. granted, 65 P.3d 1190 (Utah 2003).


author: LEHMAN, Justice.

text:
    2004 WY 9
    Kenneth KITZKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 03-83.
    Supreme Court of Wyoming.
    Feb. 17, 2004.
    Representing Appellant: Kenneth M. Ko-ski, State Public Defender; Donna D. Do-monkos, Appellate Counsel; and Tina N. Ke-rin, Senior Assistant Appellate Counsel; and James Worthen, Student Intern. Argument by Mr. Worthen.
    Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Ryan M. Lance, Assistant Attorney General. Argument by Mr. Lance.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] This is an appeal from an order of the district court denying appellant Kenneth Ray Kitzke’s motion for credit for time served. The solitary issue raised in this appeal is whether the district court abused its discretion in denying the motion. We. affirm.

FACTS

[¶ 2] On February 28, 2000, Kitzke was sentenced to 51 months in prison in the state of Washington for the unlawful manufacture of a controlled substance, marijuana. On May 31, 2000, pursuant to the Interstate Agreement on Detainers, proceedings were initiated to transfer Kitzke from Washington to Wyoming to stand trial on seven alleged drug violations. Pursuant to a plea agreement, Kitzke then pled guilty to one count of possession of marijuana and was sentenced to a term of not less than 96 months nor more than 120 months in the Wyoming State Penitentiary. This sentence was ordered to be served consecutively to any sentence Kitz-ke was presently serving in Washington.

[¶3] Subsequently Kitzke was returned to Washington to serve his pending sentence in that state. On July 29, 2002, Kitzke’s Washington sentence was reduced from 51 months to 8 months, apparently because several of Kitzke’s prior convictions originally used to calculate his Washington sentence were “washed.” In addition, the Washington court noted that Kitzke’s 8-month sentence had “already been served.” Evidently, on August 11, 2002, Kitzke was then transported to Wyoming to begin serving his Wyoming sentence.

[¶ 4] On October 7, 2002, Kitzke filed his Motion for Credit for Time Served. Therein Kitzke sought credit for the time he served in Washington in excess of 8 months. After hearing, the district court denied such motion. This appeal followed.

STANDARD OF REVIEW

[¶ 5] A motion for credit for time served is subject to the sound discretion of the sentencing court. Halbleib v. State, 7 P.3d 45, 47 (Wyo.2000). We have a well-established standard for analyzing claims for abuse of discretion:

Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. [Griswold v. State, 2001 WY 14, ¶ 7,17 P.3d 728, ¶7 (Wyo.2001)]. “In the absence of an abuse of discretion, we will not disturb the trial court’s determination.” Id. The burden is on the defendant to establish such abuse. Trujillo [v. State ], 2 P.3d [567] at 571 [(Wyo.2000) ].

Huff v. State, 2003 WY 63, ¶ 8, 69 P.3d 400, ¶ 8 (Wyo.2003) (quoting Skinner v. State, 2001 WY 102, ¶ 25, 33 P.3d 758, ¶ 25 (Wyo.2001)).

DISCUSSION

[¶ 6] Kitzke argues that the district court abused its discretion by denying credit for the extra 762 days he served in Washington. According to Kitzke, it is apparent that this situation was caused because the district court’s judgment and sentence did not specify the time to be served in Washington, a lack of communication between Washington and Wyoming, and Washington’s computation error on his Washington sentence. Therefore, since none of these causes can be personally attributed to Kitzke, he asserts that he should be given credit for this “dead time” on his Wyoming sentence. Additionally, Kitzke contends that because his return to Wyoming was not conducted pursuant to any statutorily mandated method, but instead the “comity” between the states, he should not be forced to bear the burden of the mistake of the sovereigns, Washington and Wyoming. Hence, Kitzke proffers that the rule of lenity should be applied.

[¶ 7] In response, the State argues that Kitzke’s motion was properly denied by the district court given the fact that Kitzke did not meet the requisite burden of proof because he submitted only hearsay and unauthenticated documents in support of his motion. Additionally, the State contends that under Wyoming law the district court is not required to credit Kitzke’s sentence under the circumstances. Finally, the State asserts that Kitzke’s position rests on the notion that Wyoming was obliged to exercise powers in Washington which it did not possess, that Wyoming had nothing to do with the miscalculation of Kitzke’s Washington sentence, and requiring the district court to reduce Kitzke’s Wyoming sentence would be wholly unreasonable.

[¶ 8] Review of the record on appeal discloses that the district court had valid concerns regarding the reliability of the evidence submitted by Kitzke in support of his motion. The Washington amended warrant of commitment simply stated that Kitzke’s sentence in Washington for the unlawful manufacture of marijuana had been reduced to a term of 8 months which had “already been served.” This document provided no information that would have allowed the district court to arrive at the amount of credit Kitzke was requesting. Similarly, the Washington amended judgment and sentence indicated that several prior convictions used to determine Kitzke’s original Washington sentence were “washed,” but gave no thorough explanation for the sentence reduction. The Washington court documents were not in any way verified, certified, or authenticated. Instead, these documents were merely supported by a letter of a Washington attorney, which clearly constituted hearsay. Finally, nothing was presented by Kitzke in support of his motion from the Washington Department of Corrections that established that Kitzke had been held for 762 days too long on his Washington sentence. Thus, we find that Kitzke failed to present sufficient proof to establish that he was entitled to credit for time served.

[¶ 9] Moreover, and perhaps more significantly, Wyoming law does not require credit for time served under the circumstances in this case. In Jennings v. State, 4 P.3d 915, 923 (Wyo.2000), we held that in relation to presentence confinement, a defendant was entitled to credit against a particular sentence only if that confinement was due to the failure to post bond on the charges for which that sentence was imposed and that there was no entitlement to credit foi pre-sentence confinement that would continue despite the ability to post bond on such charges. We stated:

Under Wyoming law, as established in these cases, Jennings is entitled to credit for presentence time served in the state of Washington if he was being held solely because of his financial inability to post bond on the Wyoming escape charge. He is not entitled to credit for time served if he would have remained in custody regardless of his ability to post bond on the Wyoming escape charge.
Looking first to Jennings’ claim that he is entitled to credit from October 3, 1995, we find nothing in the record to indicate that his confinement in Washington as of that date was in any way related to the Wyoming escape charge. The document which Jennings cites as support for his claim, the King County booking sheet, indicates that Jennings was arrested in the state of Washington on October 3, 1995, on charges unrelated to the Wyoming escape charge. In fact, the booking sheet makes no reference to Wyoming in any respect. The presentence investigation report confirms that Jennings was charged with burglary in Seattle, Washington, on October 3, 1995, an offense wholly unrelated to the escape charge in Wyoming. Because from the record before us it appears that Jennings’ confinement in Washington beginning on October 3, 1995, was not for the charge of escape, we conclude that he is not entitled to credit on his escape sentence from that date.

[¶ 10] We clarified our holding in Jennings in relationship to postsentence confinement in Halbleib, 7 P.3d 45. In that case, this court held that a defendant was entitled to credit against a particular sentence if: (1) the reason for presentence confinement was his failure to post bond on the charges to which the sentence pertained; (2) postsen-tencing confinement was ordered as a condition of probation granted in relation to these charges and an escape charge would lie for leaving that confinement without authorization; or (3) time had been served on those underlying charges, following the revocation of probation and prior to reinstatement of that probation. Thus, a defendant is not entitled to credit against a particular sentence if the confinement for which he seeks credit is attributable to something other than the charges for which that sentence was imposed.

[¶ 11] Both before and after the imposition of his Wyoming sentence, Kitzke was incarcerated by the state of Washington on his Washington sentence, which remained in effect until altered by the state of Washington. That confinement cannot in any way be attributed to the Wyoming sentence for which Kitzke seeks credit. Kitzke would have continued to serve his Washington sentence until it was modified regardless of the existence of his Wyoming sentence. Accordingly, applying our holdings in Jennings and Halbleib, the district court was not required to credit the Wyoming sentence because the confinement for which he seeks credit is purely attributable to the miscalculation of his Washington sentence by the state of Washington. That period of confinement has absolutely nothing to do with his imposed Wyoming sentence.

[¶ 12] Finally, Kitzke argues that wé should adopt language found in a Massachusetts case. Kitkze contends that ease sets forth a bright-line rule of law that, as a matter of fundamental fairness, a prisoner is entitled to credit for time served under an erroneous conviction when the prisoner would otherwise face dead time and where such an award would not clearly result in double credit nor allow the prisoner to “bank time” against future offenses. See Gardner v. Commissioner of Correction, 56 Mass.App. Ct. 31, 775 N.E.2d 426 (2002) (discussing Manning v. Superintendent, Mass. Correctional Inst., Norfolk, 372 Mass. 387, 361 N.E.2d 1299 (1977) and Brown v. Commissioner of Correction, 336 Mass. 718, 147 N.E.2d 782 (1958)).

[¶ 13] Initially, we note that this argument is raised by Kitzke for the first time on appeal. This court has long held that issues not brought before the district court may not be reviewed by this court upon first impression on appeal. “We ‘strongly adhere to the rule forbidding us to “consider for the first time on appeal issues that were neither raised in, nor argued to, the trial court,” except for those issues which are jurisdictional or are fundamental in nature/ ” Donaghy v. Board of Adjustment of City of Green River, 2002 WY 150, ¶ 11, 55 P.3d 707, ¶ 11 (Wyo.2002) (quoting Bredthauer v. TSP, 864 P.2d 442, 446 (Wyo.1993) and Oatts v. Jorgenson, 821 P.2d 108, 111 (Wyo.1991)). We will not abrogate this rule now. In any event, even if the statements found in Gardner stand for the rule of law proffered by Kitzke, we reject any such holding as it is in direct opposition to established Wyoming law and our own expressed reasoning in this case.

CONCLUSION

[¶ 14] We find no abuse of discretion. We, therefore, affirm the decision of the district court on Kitzke’s motion for credit for time served.

      . Kitzke previously raised on appeal claims of ineffective assistance of counsel regarding his original plea and sentence. See Kitzke v. State, 2002 WY 147, 55 P.3d 696 (Wyo.2002).

      . It should be noted that the court in Gardner ultimately held that because his Massachusetts sentences did not commence as a result of the 1992 reversal of his Rhode Island sentence, Gardner was not entitled to the relief sought.


text:
    2004 WY 11
    Justin P. COATES, Rachel L. Coates, and Rak Holmes Coates, a minor, by and through his next friend, Justin P. Coates, Appellants (Plaintiffs), v. Ron ANDERSON, as successor trustee of Dixie Anderson Trust, Appellee (Defendant).
    No. 03-84.
    Supreme Court of Wyoming.
    Feb. 19, 2004.

      Representing Appellants: James K. Lubing of James K. Lubing Law Office, Jackson, WY.
    Representing Appellee: James E. Phillips and Geoffrey J. Phillips of James E. Phillips, P.C., Evanston, WY.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] In this action, appellants Justin P. Coates, Rachel L. Coates, and Rak Holmes Coates, a minor, appeal the partial summary judgment entered by the district court in favor of appellee Ron Anderson, as successor trustee of the Dixie Anderson Trust (Trust). Appellants assert the district court erred in ruling that Ron Anderson, individually, was acting as an independent contractor when he parked a tractor in an allegedly negligent manner which caused an accident resulting in appellants’ injuries. Appellants further contend the district court erred when it found Ron Anderson was not acting as the successor trustee of the Trust when the accident occurred. We affirm.

ISSUES

[¶ 2] Appellants set forth the following issues on appeal:

1. Did the district court err in finding that no genuine issues of material fact existed and in ruling as a matter of law that Dixie Anderson as Trustee of the Dixie Anderson Trust was not vicariously liable for the acts or omissions of Ron Anderson?
2. Did the district court err in refusing to find that a genuine issue of material fact existed as to whether, under the terms of the Ilia Dixie Anderson Trust Agreement, Dixie Anderson had failed to serve as Trustee so that Ron Anderson had become successor Trustee of the Dixie Anderson Trust?

FACTS AND PROCEDURAL HISTORY

[¶ 3] On February 8, 2000, around 6:30 p.m., Rachel L. Coates was driving on Wyoming State Highway 237 in Lincoln County, Wyoming, with passengers Justin P. Coates, her husband, and Rak Holmes Coates, her son, when their vehicle collided with a parked tractor owned by Ron Anderson. This accident caused appellants to incur substantial injuries. Subsequently appellants filed a complaint against Ron Anderson, individually, but then later amended their complaint to also include the Trust. The amended complaint alleged that the Trust was vicariously liable for appellants’ damages because Ron Anderson was acting as an agent of the Trust under the doctrine of respondent superior or, alternatively, under a de facto partnership with the Trust.

[¶ 4] After discovery was conducted, the Trust filed a motion for summary judgment that was opposed by appellants. The district court granted this motion stating:

Viewing the evidence most favorably to the Plaintiff[s], the Court finds no evidence which would create an inference to support the Plaintiffs’] respondeat superior claim that the Defendant, Ron Anderson, was acting on behalf of Dixie Anderson or the Trust as trustee or manager or that Ron Anderson was a partner with Dixie Anderson or the Trust when the collision occurred involving Mr. Anderson’s tractor and the Plaintiffs’ vehicle.
The undisputed facts ■ are that Defendant’s mother, Dixie Anderson as trustee, allowed him to use. the trust property as part of his ranching operation and received, in return, care taken of the property and sporadic payment depending on the crops. There is no evidence of Mrs. Anderson exercising control over the Defendant Ron Anderson’s conduct of the operations, or of her assuming duties with respect to safety or of them having an employment contract. Mr. Anderson’s payment to Mrs. Anderson for the use of the land and taking care of the property is more like a lease or license than a partnership because there is no showing of an agreement to share profits and losses. Mr. Anderson was driving the tractor for his own purposes of feeding his livestock and had parked it on the highway where the collision occurred.

This appeal followed.

STANDARD OF REVIEW

[¶5] We recently reiterated our long-standing standard of review in summary judgment cases in Polo Ranch Co. v. City of Cheyenne, 2003 WY 15, ¶ 8, 61 P.3d 1255, ¶ 8 (Wyo.2003) (citing Amoco Prod. Co. v. Board of County Comm’rs, 2002 WY 154, ¶ 10, 55 P.3d 1246, ¶ 10 (Wyo.2002) and Bevan v. Fix, 2002 WY 43, ¶ 13, 42 P.3d 1013, ¶ 13 (Wyo.2002)):

Summary judgment is appropriate if the record, viewed in the light most favorable to the non-moving party, reveals that no genuine issues of material fact exist and the prevailing party is entitled to judgment as a matter of law. Worley v. Wyoming Bottling Co., Inc., 1 P.3d 615, 620 (Wyo.2000); Terry v. Pioneer Press, Inc., 947 P.2d 273, 275 (Wyo.1997); Davis v. Wyoming Medical Center, Inc., 934 P.2d 1246, 1250 (Wyo.1997); W.R.C.P. 56(c). A fact is material if it establishes or refutes an essential element of a claim or defense. Tidwell v. HOM, Inc., 896 P.2d 1322, 1324 (Wyo.1995). In evaluating summary judgment, we apply the same standards as the trial court, without affording any deference to the trial court’s decisions on issues of law. Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216 (Wyo.1994).

We may uphold the grant of summary judgment upon any proper legal ground finding support in the record. Polo Ranch Co., at ¶ 8; Bevan, at ¶ 26.

Little mystery remains concerning our willingness to affirm summary judgments, provided there is no genuine issue of material fact and the law clearly entitles the moving party to prevail. Martin v. Farmers Ins. Exchange, 894 P.2d 618, 620 (Wyo.1995)....
The moving party bears the initial burden of establishing a prima facie case for summary judgment. Thereafter, the party opposing summary judgment becomes obliged to marshal specific facts, as contrasted with general or conclusory allegations, which establish a genuine issue of material fact. Tidwell v. HOM, Inc., 896 P.2d 1322, 1324-25 (Wyo.1995).
A material fact has been defined as one having some legal significance, that is, under the law applicable to a given case, it would control in some way the legal relations of the parties; as one upon which the outcome of litigation depends in whole or in part; as one on which the controversy may be determined; as one which will affect the result or outcome of the case depending upon its resolution; and one which constitutes a part of the plaintiffs cause of action or of the defendant’s defense.

Mize v. North Big Horn Hosp. Dist., 931 P.2d 229, 232 (Wyo.1997) (quoting Johnson v. Soulis, 542 P.2d 867, 871-72 (Wyo.1975) (footnotes omitted)).

DISCUSSION

Independent Contractor

[¶ 6] Initially, appellants argue the Trust did not establish the lack of genuine issues of material fact as to whether an independent contractor relationship existed between Ron Anderson and the Trust. Citing our holding in Combined Ins. Co. of America v. Sinclair, 584 P.2d 1034, 1042-43 (Wyo.1978) as authority, appellants contend that the Trust failed to present sufficient evidence proving that 1) the Trust did not have the right to control the details of Ron Anderson’s work, and 2) the Trust did not retain the right to terminate Ron Anderson without incurring liability. Therefore, appellants assert that the district court incorrectly granted summary judgment in favor of the Trust.

[¶ 7] In Natural Gas Processing Co. v. Hull, 886 P.2d 1181, 1184 (Wyo.1994), this court clearly adopted the general proposition set forth in the Restatement, Second, Torts § 409 (1965), that an employer of an independent contractor is not liable for physical harm to another caused by an act or omission of the contractor or his servants. See also Hill v. Pacific Power & Light Co., 765 P.2d 1348, 1349 (Wyo.1988); Stephenson v. Pacific Power & Light Co., 779 P.2d 1169, 1176 (Wyo.1989); Jones v. Chevron U.S.A., Inc., 718 P.2d 890, 898 (Wyo.1986); Noonan v. Texaco, Inc., 713 P.2d 160, 164-67 (Wyo.1986); and 41 Am.Jur.2d, Independent Contractors § 24 (1968). Thus, with respect to vicarious liability, the controlling question is whether or not Ron Anderson was an independent contractor of the Trust. See Stephenson, at 1176; Noonan, at 165. We stated in Noonan, at 166 (quoting Simpson v. Home Petroleum Corp., 770 F.2d 499, 506-7 (5th Cir.1985)):

[T]he existence of a master-servant relationship is a necessary part of the plaintiffs case when recovery is sought on a respondeat superior theory, and in that regard “the essential inquiry is whether or not the employer has the contract right to control the opposite contracting party in the details of the work to be performed.” [Citation.] Such a right to control is a prerequisite of the master-servant relationship. Conversely, the absence of such a right of control is a prerequisite of an independent contractor relationship. Master-servant and independent contractor are thus opposite sides of the same coin; one cannot be both at the same time with respect to the same activity; the one necessarily negatives the other, each depending on opposite answers to the same right of control inquiry.

[¶ 8] In determining whether an independent contractor relationship exists, this court has recognized two primary areas for consideration. The premier consideration is whether the employer has the right to control the details of the work wherein liability is sought to be established. Ordinarily this is a question of fact for the jury but becomes one of law when only one inference can be drawn. Combined Ins., at 1042; Noonan, at 165-67.

In addition to the right of control, another test (or perhaps an indicia of the right-of-control test) is said to be whether the right to terminate the employment is retained and can be exercised without incurring liability. In Fox Park Timber Company v. Baker, [53 Wyo. 467, 84 P.2d 736 (1938) ], and repeated in Brubaker v. Glenrock Lodge [Int’l Order of Odd Fellows, 526 P.2d 52 (Wyo.1974) ], we said:

... Another test is whether either of the parties possesses the right to terminate the services at will without incurring liability to the other, this embracing, of course, the right of the employer at any time to discharge the party performing the work, an affirmative answer establishing the status of master and servant.

Combined Ins., at 1042-43.

[¶ 9] The evidence reviewed by the district court was that contained within the affidavit and deposition testimony of Dixie Anderson and the deposition testimony of Ron Anderson. This testimony established that, in 1997, the Trust was established and acreage with a house and approximately 300 acres of ranch land were deeded to the Trust. Dixie Anderson was appointed as the trustee for the Trust. Dixie Anderson’s five children, including Ron Anderson, were named beneficiaries of the Trust and were to share equally in the Trust property after Dixie Anderson’s death. At the time of the accident, Dixie Anderson lived by herself and worked part time for a meat packing plant. She also received social security. Further, the Trust owned no livestock and did not utilize the Trust property for income production purposes.

[¶ 10] From the time of his father’s death, Ron Anderson, under an oral agreement, helped his-mother Dixie Anderson with the ranch land as a “caretaker.” This work entailed primarily the fixing of fences, minor repairs, tearing down structures, some irrigation work, and generally looking out for the security of the land. In performing these tasks, Ron Anderson used his own tools. Ron Anderson was not paid by the Trust for his services nor did the Trust instruct him on safety or control his activities. Rather, Ron Anderson acted independently and ran his own cattle on the ranch land. From time to time, Ron Anderson paid the Trust for feed and hay depending on the hay yield on the ranch land.

[¶ 11] The tractor involved in the accident was the sole property of Ron Anderson. The accident did not occur on Trust property. At the time of the accident, Ron Anderson was tending to his own business affairs regarding his cattle. The Trust was not involved with Ron Anderson’s cattle business and did not share in any profits made on his cattle operation. Finally, Dixie Anderson testified that the Trust did not have any employees.

[¶ 12] Given this testimony, the Trust met its burden of proof that, at a minimum, an independent contractor relationship existed between Ron Anderson and the Trust. The burden then shifted to appellants to present the district court with established facts refuting the Trust’s initial summary judgment showing. However, appellants did not submit any facts to the district court showing that the Trust retained control over Ron Anderson concerning the work he performed for the Trust. Appellants, therefore, failed to refute the Trust’s summary judgment showing, and no genuine issue of material fact existed making summary judgment in favor of the Trust proper.

[¶ 13] Appellants merely argue that the true issue is not whether the Trust actually exhibited control over Ron Anderson, but whether the Trust could have exhibited control over him. Thus, appellants proffer that all the Trust was able to establish was that the Trust never exercised control over Ron Anderson’s activities, not that the Trust did not have any such right. However, we recognized long ago in Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189, 194 (1933):

In this view, then, that the right of control of the physical movements — the automobile — is the decisive inquiry, it becomes important what the record discloses in that regard. The evidence shows that the Maytag Company furnished Morris no rules or regulations to govern him in the performance of the work but that the means and manner thereof was left to him. That, perhaps, does not definitely show that the right of control was not in the company. The fact that the company did not exercise control does not show that it did not have the right of control, though it may be some evidence thereof. It has been held that in the absence of a stipulation the existence or nonexistence of the right must be determined by reasonable inferences shown by the evidence. Press Pub. Co. v. Acc. Comm., 190 Cal. 114, 210 P. 820; May v. Farrell, 94 Cal.App. 703, 271 P. 789. Among the points frequently taken into consideration is the fact of the right of discharge. 14 R.C.L. 72. But we take it that that right exists in the vast majority of cases of the character under consideration. And it has been said that it is not, by the later cases, considered any decisive test. Leech v. Timber Company, [161 Wash. 426, 297 P. 203 (1931) ]. In the case just cited the court said that “there is no evidence showing nor evidence from which it may be reasonably inferred that appellant had any control or supervision of Jones in the operation of the car or the manner in which delivery of the tools was to be effected,” and therefore held Jones to be an independent contractor. In General Exchange Ins. Co. v. Findlay, 219 Ala. 193, 121 So. 710, the court seems to hold that unless an express reservation of the right of control may be inferred from the evidence, none can be held to exist. And in McCarthy v. Souther, [83 N.H. 29, 137 A. 445 (1927) ], in which there was no evidence as to the right of control, the New Hampshire court holds that the mere fact that the service performed by a salesman is in the furtherance of the employer’s business is not enough, and that when no right of control may be implied from the situation, and none has been expressly reserved, the mere fact that the relationship is of agency or service is not enough to subject the employer to liability.

We find no reason to depart from this well expressed legal analysis of Justice Blume, especially in this case where the undisputed facts establish that 1) the tractor was personally owned by Ron Anderson, 2) Ron Anderson was tending to his business concerning his cattle at the time of the accident, and 3) no employer/employee relationship can be shown to exist between the Trust and Ron Anderson. There is no evidence showing nor evidence from which it may be reasonably inferred that the Trust could have controlled or supervised Ron Anderson in the operation of the tractor or the manner in which he performed services for the Trust. Accordingly, it was proper as a matter of law for the district court to conclude that Ron Anderson was an independent contractor. Unless an express reservation of the right of control may be inferred from the evidence, none can be held to exist.

14] Appellants further argue that the Trust did not satisfactorily establish the existence of any contract or the terms of that contract defining the relationship between Ron Anderson and the Trust. Accordingly, appellants contend that it is impossible for the district court to have been able to characterize whether Ron Anderson was acting as an independent contractor or employee of the Trust. Appellants wrongfully conclude that only a written contract can provide evidence of the relationship between the Trust and Ron Anderson. Obviously, such is not the case. Indeed, this court has often utilized both the terms of a contract, whether written or oral, and other evidence of the control exercised to determine the relationship that existed between parties. As stated in Natural Gas Processing Co. v. Hull, at 1184-85:

Our first area of inquiry would ordinarily be to the written contract between NGP and TWS. Although the contract is not conclusive evidence of the status of the relationship between parties, it is a strong indication of the association intended. See Noonan, 713 P.2d at 165. In this case, however, no written contract exists. Duane Winkler testified that NGP does not normally enter into written agreements with workover companies, and did not enter into a written contract with TWS. We, therefore, must look to the record to determine whether NGP controlled, or had a right to control, TWS’ performance sufficient to establish a duty to TWS’ (an independent contractor’s) employees.

In a like manner, because there was no written contract in this case, it became necessary for the district court to look at the undisputed evidence to determine whether the Trust controlled or had the right to control Ron Anderson’s performance of services for the Trust.

Agency

[¶ 15] Appellants very summarily proffer that the evidence presented creates a genuine issue of material fact as to whether Ron Anderson was acting as an agent of the Trust at the time of the accident. We do not find appellants’ argument persuasive. The undisputed evidence established that Ron Anderson acted as an independent contractor for the Trust. At the time of the accident, Dixie Anderson was the appointed trustee for the Trust and in such capacity was the sole person responsible for any formal actions taken by the Trust. Moreover, the tractor involved in the accident was the sole property of Ron Anderson and, at the time of the accident, Ron Anderson was tending his own business affairs regarding his cattle. Therefore, the undisputed facts establish that Ron Anderson was not acting as an agent for the Trust when the accident occurred.

[¶ 16] Similarly, no de facto partnership existed between the Trust and Ron Anderson. As recognized by the district court, the evidence presented established that Ron Anderson’s sporadic payments to the Trust for the use of the land and taking care of the Trust property is more like a lease or license than a partnership because there is no showing of an agreement to share profits and losses. The Trust was not involved with Ron Anderson’s cattle business and did not share in any profits made on his cattle operation.

Successor Trustee

[¶ 17] Appellants briefly contend that genuine issues of material fact remain as to whether Dixie Anderson had failed to serve as trustee of the Trust, so that Ron Anderson had become successor trustee of the Trust and was acting in such official capacity at the time of the accident. Again, we find this argument unpersuasive. The only evidence before the district court established that, in 1997, the Trust was established by Dixie Anderson, and acreage with a house and approximately 300 acres of ranch land ■ were deeded to the Trust. Dixie Anderson was then appointed as the trustee for the Trust. Dixie Anderson’s five children, including Ron Anderson, were named beneficiaries of the Trust and were to share equally in the Trust property after Dixie Anderson’s death.

[¶ 18] At the time of the accident, Dixie Anderson was the appointed trustee of the Trust and in such capacity was the sole person responsible for any formal actions taken by the Trust. As trustee of the Trust, Dixie Anderson had the power to “hold, manage, invest and reinvest the trust estate.” She also had the express powers to retain, sell, transfer, exchange, convert or otherwise dispose of, invest and reinvest, insure or not insure, lease, possess, manage, develop, subdivide, control, partition, mortgage, or otherwise deal with any and all property held within the Trust. Indeed, the Trust gave Dixie Anderson, as trustee, the power to make repairs, replacements and improvements, structural or otherwise, or abandon the property of the Trust if deemed to be worthless or not of sufficient value to wai“-rant keeping or protecting it. These powers further included the right to fail to pay taxes, water rents, assessments, repairs, maintenance and upkeep on the Trust property and to even convey the property for nominal consideration or without any consideration. Thus, Dixie Anderson, as the appointed trustee of the Trust, had broadly enumerated powers to administer the Trust within her discretion. Furthermore, the Trust iterated that in the event that Dixie Anderson, as the appointed trustee of the Trust, resigned or failed to serve for any reason, Ron Anderson would be appointed successor trustee of the Trust. For such purposes, failure to serve included, without limitation, death or incapacity.

[¶ 19] Appellants failed to marshal any specific facts, as contrasted with general or conclusory allegations, to raise a genuine issue of material fact which established that Dixie Anderson, as trustee of the Trust, failed to serve in such capacity requiring Ron Anderson to be appointed a successor trustee at the time that the accident occurred. Appellants merely proffer accusations of Dixie Anderson’s failure to properly act as trustee for the Trust with no basis in fact and then summarily conclude that Ron Anderson therefore must be assumed to have succeeded his mother as trustee of the Trust. Such allegations alone are insufficient to raise a material question of fact.

CONCLUSION

[¶ 20] For those reasons indicated above, we hold that no material questions of fact existed in this case and that the Trust, as a matter of law, was entitled to summary judgment. We, therefore, affirm the district court’s ruling granting summary judgment in favor of the Trust.

      . On April 26, 2003, during this appeal, Dixie Anderson died. Ron Anderson, as successor trustee of the Trust, was substituted as a party in this case. . ,