author: GREENWOOD, Judge:

text:
    2003 UT App 286
    OREM CITY, Plaintiff and Appellee, v. Todd BOVO, Defendant and Appellant.
    No. 20020673-CA.
    Court of Appeals of Utah.
    Aug. 14, 2003.
    Todd Bovo, Orem, Appellant Pro Se.
    Robert J. Church, Orem City Attorney's Office, Orem, for Appellee.
    Before BILLINGS, Associate P.J., and GREENWOOD and ORME, JJ.
   OPINION

GREENWOOD, Judge:

1 1 Todd Bovo (Defendant), proceeding pro se, appeals his conviction of reckless driving, in violation of Utah Code Ann. § 41-6-45 (Supp.2002), and disorderly conduct, in violation of Utah Code Ann. § 76-9-102 (1999). Defendant contends that (1) the trial court erred in denying him a jury trial, and (2) the officers did not have probable cause to arrest him. Because we conclude Defendant was improperly denied a trial by jury, we reverse.

BACKGROUND

T2 On April 6, 2002, M.C. and her mother 'Ceollectively, the Complainants) were traveling in their car eastbound on 800 South in Orem, Utah. Defendant pulled behind the Complainants' car and began tailgating, honking, and flashing his lights. He attempted unsuccessfully to pass on the left over a double yellow line and then again tried to pass by driving on the right shoulder of the road. M.C. called 911 and reported Defendant's erratic driving. Dispatch directed M.C. to follow Defendant's vehicle until a police officer could pull Defendant over. Shortly thereafter, Defendant was stopped by Officer Bingham of the Orem Police Department.

{3 While Bingham ran a check on Defendant's license, registration, and insurance, Officer Healy arrived and the Complainants pulled behind the patrol cars. During the traffic stop, Defendant's behavior was belligerent and aggressive and he grudgingly complied with the officers' requests. While the officers' backs were turned, Defendant made an obscene gesture toward the Complainants and mouthed the threat, "You'll pay for this." Bingham and Healy did not hear or see Defendant make the gesture or the threat. The officers arrested Defendant and charged him with reckless driving, a class B misdemeanor, and disorderly conduct, an infraction.

€ 4 At his June 13, 2002 arraignment, Defendant made an oral request for a jury trial. The trial judge denied the request and informed Defendant that he was not entitled to a jury trial because he was "not in any jeopardy of going to jail ... even if convicted." The trial judge then asked the City, "So this would be tried as if they were both infractions, then?" Neither the trial judge nor the City clearly answered this question.

T5 A bench trial was held on July 19, 2002. Defendant again requested a jury trial. The trial court denied the request, stating that "no one has ever requested a jury in this case." Defendant represented himself at trial and was found guilty of disorderly conduct, an infraction, and reckless driving, a class B misdemeanor. Defendant was fined for the infraction and sentenced to six months in jail and fined for the class B misdemeanor. Although the jail sentence was suspended, Defendant was also sentenced to one year probation. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

T6 Defendant argues the trial court erred when it denied him a jury trial for reckless driving, a class B misdemeanor. The trial court's legal determinations are reviewed "non-deferentially for correctness." Salt Lake City v. Roseto, 2002 UT App 66, ¶ 7, 44 P.3d 835.

T7 Defendant also argues his arrest was improper because the arresting officers lacked probable cause to make the arrest. This court reviews a trial court's legal determination of probable cause for correctness, affording some discretion to the trial court. See State v. Poole, 871 P.2d 531, 533 (Utah 1994) (explaining standard of review for both reasonable suspicion and probable cause is the same).

ANALYSIS

I. Right to a Jury Trial

T8 Defendant contends the trial court erred in refusing to permit him a jury trial for reckless driving, a class B misdemeanor. Defendant argues that the Sixth Amendment of the United States Constitution and Utah Code Ann. § 77-1-6 (1999) guarantee him the right to a trial by jury. Defendant further contends he should have been afforded a jury trial even though he did not comply with rule 17(d) of the Utah Rules of Criminal Procedure, because he reasonably believed the charge would be amended to an infraction.

T9 Section 77-1-6(1)(f) of the Utah Code states that a criminal defendant is entitled "[tlo a speedy public trial by an impartial jury." Id. The statute also provides that "Inlo person shall be convicted unless by verdict of a jury, or upon a plea of guilty or no contest, or upon a judgement of a court when trial by jury has been waived or, in case of an infraction, upon a judgment by a magistrate." - Utah Code Ann. § 77-l-6(2)(e). A jury trial is provided in misdemeanor cases if "the defendant makes written demand at least ten days prior to trial, or the court orders otherwise." Utah R.Crim. P. 17(d). The City argues the trial court did not err in refusing a trial by jury because Defendant did not comply with rule 17(d) by filing a written demand for a jury trial with the trial court. See Salt Lake City v. Roseto, 2002 UT App 66,¶¶ 11,14, 44 P.3d 835 (holding defendant entitled to jury trial for class C misdemeanor because she filed written demand with trial court).

T 10 In Roseto, this court determined that under Utah Code Ann. § 77-1-6,

the trial court need only determine (1) that the defendant is charged with a crime other than an infraction; (2) that the defendant has complied with Rule 17(d) by making a written demand for a jury trial; and (3) that the defendant has not waived the right to a jury trial.

Roseto, 2002 UT App 66 at ¶ 11, 44 P.3d 835. In this case, Defendant was charged with a misdemeanor. However, after Defendant requested a jury trial at his arraignment, the following dialogue took place:

The Court: This isn't going to be tried to a Jury, because you're not in any jeopardy of going to jail even if convicted, Mr. Bovo.
The Court: I know [jail time is] a possibility, but I haven't put anybody in jail for reckless driving in 18 years.
Defendant: Right.
The Court: You're not in any jeopardy of going to jail. If the City wants to-do you want to put any statement on about the possibility of seeking any jail time?
[Prosecutor]: (inaudible) I don't think that that's (inaudible).
The Court: So this would be tried as if they were both infractions, then?
The Court: Case law has held in interpreting the Sixth Amendment that if there's no jeopardy of going to jail, even if convicted, then the right to a jury trial does not apply.

111 Defendant argues the above colloquy misled him into believing the misdemeanor charge would be reduced to an infraction. Defendant claims that had he known the reckless driving charge would remain classified as a class B misdemeanor, he would have made a written demand for a jury trial under rule 17(d).

112 Defendant acted pro se in the trial court proceedings. Although a pro se defendant is required to adhere to procedural rules and the law, leniency may be appropriate in limited cireumstances. A pro se defendant's "'lack of technical knowledge of law and procedure ... should be accorded every consideration that may reasonably be indulged." Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983) (quoting Heathman v. Hatch, 13 Utah 2d 266, 372 P.2d 990, 991 (1962)). In some instances, lack of accurate advice by the trial court may be "fundamentally unfair" to a pro se party. Id. at 1214. Indeed, in State v. Stevens, 718 P.2d 398 (Utah 1986), the Utah Supreme Court stated that despite defendant's "failure to follow our rules on appeal, ... we cannot ignore the facts that [the defendant] had a right to a Jury trial, that he asked for one, and that it was denied. This is particularly true because defendant is proceeding without counsel." Id. at 400.

113 Given the facts of this case, we conclude Defendant reasonably believed the misdemeanor charge would be reduced to an infraction and/or that jail time would not be imposed. Defendant's belief was based on the court's statements and the failure of the City to provide any refutation or clarification. Under the impression that the charge would be amended to an infraction it would have been futile for Defendant to file a written jury demand pursuant to rule 17(d). At the time trial occurred the City had not amended the charge to an infraction and it was too late to file a written demand. The trial court then imposed a jail sentence, albeit one it suspended pending successful completion of probation. If Defendant violated probation he would be subject to imposition of the jail sentence. We therefore conclude Defendant was misled by the trial court and the City and consequently, Defendant was unfairly deprived of a jury trial.

II. Probable Cause to Arrest

T14 Defendant also argues the officers lacked probable cause to arrest him because the officers did not witness the offenses being committed. Defendant asserts that Utah Code Ann. § 77-7-2 (1999) requires an offense to be committed in the officer's presence for an arrest to be made. In State v. Trane, 2002 UT 97, 57 P.3d 1052, the Utah Supreme Court stated that the determination of whether an officer can make a warrantless arrest "'"should be made on an objective standard: whether from the facts known to the officer, and the inferences [that can] fairly ... be drawn therefrom, a reasonable and prudent person in [the officer's] position would be justified in believing that the suspect had committed the offense.""'" Id. at ¶ 27 (alterations in original) (citations omitted).

115 Here, the officers acted upon statements from credible witnesses that Defendant committed reckless driving and disorderly conduct. Thus, the officers acted reasonably and Defendant's arrest was proper.

CONCLUSION

T16 Although Defendant's arrest was proper, we determine that the trial court erred by denying Defendant a jury trial. The trial court's statements that jail time would not be imposed and suggesting that charges would be amended to infractions provided a sufficient basis for Defendant to reasonably believe that it would have been futile to file a written demand for a jury trial pursuant to rule 17(d) of the Utah Rules of Criminal Procedure. In light of the court's statements, Defendant's two oral requests for a jury trial, and his pro se status, he was entitled to a jury trial in spite of noncompliance with rule 17(d). Thus, we reverse and remand for proceedings consistent with this opinion.

T 17 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and GREGORY K. ORME, Judge.

      . Rule 17(d) of the Utah Rules of Criminal Procedure precludes jury trials for infractions. See Utah R.Crim. P. 17(d) ("No jury shall be allowed in the trial of an infraction."); see also West Valley City v. McDonald, 948 P.2d 371, 374 (Utah Ct.App.1997) (holding defendant not entitled to jury trial when class C misdemeanor was amended to infraction}.

      . - In Asperwood, L.L.C. v. C.A.T., L.L.C., 2003 UT App 28, 73 P.3d 947, this court held that the plaintiff had waived the "right to a jury trial because, after having notice that the trial was set before the bench, [the plaintiff] failed to object until the eve of trial." Id. at ¶ 42. This case presents the opposite situation to Asperwood. In this case, Defendant contends the trial court assured him he would be tried and/or sentenced for an infraction with no possibility of a jail sentence. In Asperwood, the trial court notified the plaintiff the case was set for a bench trial. See id. at 1 9. Thus, Asperwood is inapplicable.

      . Defendant also contends his statements and evidence against him should be suppressed because he was never given a Miranda warning. However, Defendant fails to clearly identify which statements he believes should be suppressed. Further, Defendant's statements were made spontaneously and voluntarily and not in response to a custodial interrogation. See State v. Guerrero, 29 Utah 24 243, 507 P.2d 1029, 1030 (1973) (holding Miranda "does not proscribe the admission of a statement of a criminal defendant in custody which was not made in response to any process of interrogation initiated by the police").

      . Utah Code Ann. § 77-7-2 (1999) states:
      A peace officer may make an arrest under authority of a warrant or may, without warrant, arrest a person:
      (1) for any public offense committed or attempted in the presence of any peace officer;
      (2) when he has reasonable cause to believe a felony or a class A misdemeanor has been committed and has reasonable cause to believe that the person arrested has committed it;
      (3) when he has reasonable cause to believe the person has committed a public offense, and there is reasonable cause for believing the person may:
      (a) flee or conceal himself to avoid arrest;
      (b) destroy or conceal evidence of the commission of the offense; or
      (c) injure another person or damage property belonging to another person.

      . We do not address other issues raised by Defendant because of our resolution of the jury trial issue.


source: Caselaw Access Project

license: Public Domain

text:
    2003 UT App 287
    STATE of Utah, Plaintiff and Appellee, v. Richard Anthony NICHOLS, Defendant and Appellant.
    No. 20020686-CA.
    Court of Appeals of Utah.
    Aug. 14, 2003.

      Samuel D. MeVey, Kirton & MceConkie, and Lori J. Seppi, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., Jeffrey S. Gray, and Mark W. Baer, Asst. Attys. Gen., Salt Lake City, for Appellee.
    Before JACKSON, P.J., GREENWOOD, and THORNE, JJ.
   OPINION

GREENWOOD, Judge:

T1 Richard Nichols (Defendant) argues that the evidence was insufficient to sustain his convictions for five counts of communications fraud, second degree felonies, in violation of Utah Code Ann. § 76-10-1801(1)(d) (1999), and one count of racketeering, a see-ond degree felony, in violation of Utah Code Ann. § 76-10-1603(8) (1999). Defendant also argues that the trial judge committed plain error by improperly questioning a witness. We affirm.

BACKGROUND

%2 Defendant was charged with making false statements or withholding material information while he was employed by the consignment automobile dealership Remember When (the Dealership). Three separate transactions form the basis of Defendant's convictions. Conflicting evidence was presented at trial about Defendant's knowledge of the Dealership's financial problems. Defendant testified that he was not aware of the problems until April 1999, when he started receiving phone calls from customers complaining that they either were not paid for the sales of their cars or that they had not received title to the cars they had purchased. Despite these problems, Defendant testified that he continued to work at the Dealership because the owner, John Douglas, told him everything was being taken care of.

T3 In contrast to Defendant's testimony, Douglas testified that the Dealership was having problems as early as December 1998, and that he was interested in selling the Dealership to Michael Gent, who was operating the business. Douglas also testified that he had several meetings with Defendant and Gent about consigners not being paid and buyers not receiving titles. According to Douglas, in June 1999, "We had ongoing discussions from the first of December when the business was just at a total break even right through to when the lock was changed." Douglas stated that when Defendant spoke to him in April about the Dealership's financial problems, he told Defendant that he was working to get everyone paid.

T4 Gent testified that he "believe[s1" he spoke to Defendant a few times about the Dealership's problems. He also testified that he attended a meeting in January 1999 with Douglas and Defendant, where they specifically discussed the Dealership's problems. They discussed paying the consigners by selling "more cars and then us[ing] the funds to pay those people." Defendant testified that he did not remember such a meeting.

A. Dinter Corvette sold to Sanchez (Counts 6 & 7)

T5 In counts 6 and 7 Defendant was charged with making misrepresentations or material omissions by reducing the selling price of Warren Dinter's 1975 Corvette without Dinter's knowledge, and by selling it to Albert Sanchez. Dinter testified that in September 1998, he arranged with Defendant to leave his 1975 Corvette Roadster on the lot, giving Defendant permission to sell the car for no less than $14,500. However, Defendant testified that Douglas told him the car was to be sold for $13,500. Dinter faxed a copy of the car title to the Dealership in April 1999 because Defendant said there was an interested buyer.

T6 Albert Sanchez testified that he called the Dealership about the Corvette near the end of April 1999, and spoke with Defendant. Sanchez testified that during their second conversation, Defendant told him that the car could be purchased for $12,000 cash. Based on these conversations, Sanchez flew from his home in Colorado to Salt Lake City on April 30 with a cashier's check for $12,000. When he arrived at the Dealership, Defendant was out of town. Therefore, he dealt with Gent, who accepted Sanchez's check. When Sanchez was asked at trial how he knew it was Defendant he spoke with on the phone, Sanchez responded that while he could not describe Defendant's voice, he spoke to the same person on both occasions, and the person identified himself as "Richard Nichols, the sales manager."

T7 Gent testified that although he spoke with Sanchez about the Corvette, he did not offer to sell the car for $12,000. Gent stated that Defendant prepared the paperwork for the Sanchez sale and that he completed the sale because Defendant was out of town. Gent also testified that before accepting Sanchez's check, he rewrote Defendant's paperwork because Sanchez said he should be exempt from sales tax as an out-of-state resident.

T 8 In contrast, Defendant testified that he never spoke to Sanchez about the Corvette or offered to sell the car for $12,000. Defendant stated that he spoke to Sanchez once, after the purchase was complete. Additionally, Defendant testified that he did not fill out the paperwork for the transaction; although the paperwork was filled out with his name, the handwriting was not his.

19 Dinter, the customer selling the Corvette, testified that shortly after April 30, the date of the sale, he called Defendant to follow up on the potential sale Defendant mentioned in his April call. He also wanted to inform Defendant that he would be out of town for several weeks. Dinter testified that during this conversation, Defendant said the car had not sold. When Dinter returned on June 7, he called Defendant, who had left several messages for Dinter. When the two spoke several days later, Defendant told Dinter that the car had sold, but that he did not know the particulars of the sale.

110 Sanchez testified that he eventually called Defendant about the title to the car, and was told that they were working on getting the title. After hearing nothing further, and not receiving the title, Sanchez filed a complaint with the Motor Vehicle Enforcement Division on June 18, 1999.

B. Neeway Mustang sold to McLelland (Count 10)

111 Defendant was charged with misrepresenting or omitting to inform John Neeway of the date his car sold. Neeway took his 1966 Ford Mustang to the Dealership on May 28, 1998, and signed a contract to consign the car. In the following weeks, Nee-way called Defendant several times to check on the car, and according to his testimony, he spoke with Defendant each time. Neeway testified that Defendant's voice is very distinctive, and that "he sounds just like a friend of mine."

{12 Dennis McLelland testified that he visited the Dealership May 1, 1999, because he was interested in buying the Mustang. He returned the next day and spoke with Defendant. MecLelland testified that they agreed on the price of $8,400 and he paid Defendant McLelland was told he would receive the title in a few days.

{13 Neeway testified that on May 17, 1999, Defendant called Neeway to ask for a copy of the title because he had an interested buyer. A copy of the title was faxed to the dealership sometime between May 12 and May 17, 1999.

T 14 Although McLelland testified that Defendant sold him the car, Defendant testified that Mark Daley, a new sales person hired by Gent, sold the Mustang. Defendant stated that he called Neeway on May 8, after the sale, to ask for a copy of the title, which was faxed four days later, on May 12. Defendant also testified that because Gent and Daley arranged to sell the car for less than the consignment deal, he called Neeway about the sale.

T15 Neeway testified that after the mid-May title conversation he did not speak to Defendant, although he testified that he unsuccessfully tried to contact someone at the Dealership one or two times. On June 13 Neeway went to the Dealership where signs were posted indicating that the business was closed. He then learned from Gent and Defendant that his car had sold. Gent suggested that he fill out a stolen vehicle report with the Division of Motor Vehicles, as they could not pay him because the purchase money was in Douglas's account and neither Defendant nor Gent had access.

C. Nipper Chevy sold to Ludwig (Counts 12 & 18)

T 16 Count 12 charged Defendant with misrepresenting the date of the sale of Paul Nipper's 1957 Chevy Bel Air, and count 13 charged Defendant with misrepresenting to the Ludwigs, the purchasers, that the Dealership owned the Chevy. Nipper testified that he went to the Dealership on October 14, 1998, and consigned his 1957 Chevy Bel Air through Defendant. Nipper testified that he called Defendant weekly or bi-weekly from October through mid-February 1999. On February 17, Nipper drove by the Dealership and noticed that, although he had not been told of a sale, his car was not on the lot. He spoke with Defendant, who, according to Nipper, said that his car sold "this past week." When Nipper requested payment, Defendant sent him to Gent.

{17 Defendant testified that he sold the car to the Ludwigs on January 16, 1999, but did not notify Nipper about the sale because, according to their business practice, that was the responsibility of Douglas or Gent. Defendant stated that when Nipper came to the Dealership he told Nipper the car had sold several months ago.

T 18 In contrast, Nipper testified that Gent told him the car was actually sold January 26. Based on that date, Nipper asked for payment on February 17, according to the terms in his consignment contract. At some point during this conversation, Defendant told Nipper that he was shocked that he had not been paid.

{19 According to Nipper, between February 17 and March 22 he had several conversations with Gent. Nipper testified that Gent claimed that he had not paid Nipper because of a defect in the title. Eventually, Gent gave Nipper a check for $22,000, which bounced. In contrast, Gent testified that he first spoke with Nipper a few months after-or at least significantly after-the car sold. Gent did not recall Nipper ever asking the date of the sale. Gent also testified that he did not give the check to Nipper, and that he specifically told Defendant that the check Defendant gave Nipper would bounce. Defendant testified that Gent handed Nipper the check, and that he personally never touched it.

T20 According to Defendant's testimony, after learning about Nipper's difficulty getting paid, he began to realize that sellers were not being paid upon the sale of their cars. When customers called asking to be paid, Defendant would send them to Gent or Douglas because they controlled the business's finances. Defendant testified that Douglas told him that "it was all taken care of."

121 Both Jim and Ruth Ludwig testified concerning the allegation in count 18, Defendant's alleged misrepresentation that the Dealership rather than the consigner owned the car. Jim Ludwig testified that on January 16 Defendant stated "we" own the car, which came from Florida Ruth Ludwig also testified that Defendant said the car was from Florida and it is "ours," or "this is our car." Jim Ludwig testified that, based on Defendant's statements, he understood that the Dealership owned the car. The couple returned to the Dealership that day after securing financing, and purchased the car through Defendant. Jim Ludwig testified that he assumed he would get the title to the car when the loan was paid off, but that he did not discuss the title with Defendant.

22 Despite paying the loan off, the Lud-wigs never received the title. Jim Ludwig testified that Defendant told him they were having trouble because the title was in Florida. Around March 30, Jim Ludwig called Defendant about the title and was told to talk to Gent. Ruth Ludwig testified that when she called Defendant on April 9, he still had no explanation for the title problems.

128 Finally, Gent testified that he never had a conversation with the Ludwigs until the title and license plate concerns arose. Gent stated that he then discussed the title problems with the Ludwigs and that he never told them the title was clear, although he did tell Defendant that the title was clear.

ISSUES AND STANDARDS OF REVIEW

T24 Defendant argues that the evidence is insufficient to support his convie-tions for communications fraud and racketeering. "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." State v. Larsen, 2000 UT App 106, ¶ 10, 999 P.2d 1252 (quotations and citation omitted).

1 25 Defendant also maintains that the trial court committed error when it questioned a witness and ignored defense counsel's evi-dentiary objections. Because Defendant did not object to the court's questioning, he must demonstrate plain error on appeal. See State v. Kell, 2002 UT 106,¶ 45, 61 P.3d 1019 ("Because defendant did not object to the comments during the trial, we review this issue for plain error.").

ANALYSIS

I. Sufficiency of the Evidence

126 Defendant argues that the evidence was insufficient to sustain his convictions. According to the communications fraud statute,

Any person who has devised any scheme or artifice to defraud another or to obtain from another money, property, or anything of value by means of false or fraudulent pretenses, representations, promises, or material omissions, and who communicates directly or indirectly with any person by any means for the purpose of executing or concealing the scheme or artifice is guilty of;
(d) a second degree felony when the value of the property, money, or thing obtained or sought to be obtained is or exceeds $5,000. ...

Utah Code Ann. § 76-10-1801(1) (1999). In this case, the trial court found that Defendant had devised a scheme or artifice to defraud the Dealership's customers. The court also found that Defendant made misrepresentations or material omissions related to all the counts on which Defendant was convicted.

127 In many of Defendant's arguments on appeal, he takes issue with the trial court's credibility determinations. - However, this court has held, "[blecause the trial court had the opportunity to view these witnesses and weigh their credibility, we defer to its findings unless the record demonstrates clear error." State v. Reed, 839 P.2d 878, 880 (Utah Ct.App.1992); accord Utah R. Civ. P. 52(a). The Utah Supreme Court has stated "that it is not the function of appellate courts 'to determine the credibility of conflicting evidence or the reasonable inferences to be drawn therefrom. " Reed, 839 P.2d at 880 (quoting State v. Bagley, 681 P.2d 1242, 1244 (Utah 1984)). In this case, the trial court assessed the credibility of the witnesses, stating, "[Als I make a decision regarding the issue of whether or not the defendant is guilty of communications fraud, it becomes a credibility issue."

28 The trial court found that Defendant's testimony was not credible, in part because of the numerous inaccuracies in his testimony. The court noted, "There is also testimony from almost every victim in this case that directly contradicts [Defendant]." Discussing the testimony of the victims and other witnesses, the court stated that they had little motivation to fabricate testimony. It found that while it "didn't place much eredi-bility on Mr. Gent's testimony unless it was corroborated. ... [HJlis reason for fabrication at this point seems not to be extremely high." Finally, the court specifically found that Douglas was credible....

T 29 Because the court "had the opportunity to view these witnesses and weigh their credibility, we defer to its findings." Id. Therefore, we do not specifically address Defendant's arguments claiming error in the trial court's credibility determinations.

A. Dinter Corvette sold to Sanchez (Counts 6 & 7)

130 The trial court acknowledged the conflicting testimony about Defendant's interactions with Dinter and Sanchez. Accordingly, the court made a credibility determination that Sanchez, the victim, had little basis to fabricate testimony, and Defendant's testimony was inaccurate "on numerous occasions." Specifically, the court found that Defendant "reduced the price without the consent of Mr. Dinter and told Mr. Sanchez that if he brought the $12,000 cash by the end of the week that he could purchase the vehicle." Based on these misrepresentations and omissions, communicated directly or indirectly with Dinter and Sanchez for the purpose of executing or concealing the scheme, the trial court found Defendant guilty on counts 6 and 7.

T 31 Defendant argues that the evidence is not sufficient to show that he sold Dinter's car or that he reduced the asking price for Sanchez. However, to prevail on his sufficiency of the evidence claim, Defendant must show the trial court's judgment is "against the clear weight of the evidence." State v. Reed, 839 P.2d 878, 879 (Utah Ct.App.1992) (quotations and citations omitted).

€ 32 Dinter testified that he did not authorize Defendant or the Dealership to sell the Corvette for less than the agreed upon amount. Sanchez testified that on two occasions he and Defendant spoke on the phone, and on the second occasion Defendant agreed to sell the car for $12,000 cash. Sanchez testified that he worked with Gent on the sale because Defendant was out of town. Further, Gent testified that Defendant prepared the paperwork for the sale of the Corvette and that he completed the sale because of Defendant's absence. In contrast, Defendant testified that he only spoke with Sanchez after he bought the Corvette, he never offered to sell the car for $12,000, and he did not complete the paperwork for the sale.

T33 Based on the weight of the evidence and the credibility of the witnesses, we affirm Defendant's conviction on counts 6 and 7.

B. Neeway Mustang sold to McClelland (Count 10)

The trial court found that McClelland bought Neeway's Mustang the first week of May 1999 and that Neeway first learned of the sale when he visited the Dealership on June 13, 1999. Based on this finding the trial court concluded that Defendant misrepresented the date of sale and thus was guilty of a material omission, as more than one month passed before Neeway learned of the sale. Testimony about Defendant's phone call to Neeway and about the date of the sale was conflicting.

1 35 Defendant first argues that he did not misrepresent or omit to inform Nipper that McLelland bought his car. Defendant relies on Neeway's trial testimony that Defendant told him in mid-May that "there was a sale-that somebody was interested in purchasing the vehicle.... Something along that line." He argues that Neeway's statement-"there was a sale"-demonstrates that the trial court's finding that he omitted to inform Neeway of the sale is against the clear weight of the evidence. However, Neeway also testified that he was not told of a sale until June 18, and that during the mid-May conversation with Defendant, Defendant said that someone was looking at the vehicle, not that it had been sold.

1186 We review this evidence to determine whether it is sufficient to uphold the convietion, and "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 conviection that a mistake has been made." State v. Larsen, 2000 UT App 106,¶ 10, 999 P.2d 1252 (quotations and citation omitted). This conviction is not against the clear weight of the evidence: McLelland testified that Defendant sold him the car on May 2, and Neeway testified that he first learned of the sale on June 18. Thus, the evidence was sufficient for the court to find a misrepresentation or material omission regarding the date of sale.

C. Nipper Chevy sold to Ludwig (Count 12 & 18) -

- T37 On count 12, the trial court found Defendant made misrepresentations and material omissions to Nipper about the date his vehicle sold. On count 18, the court found that Defendant misrepresented to the Lud-wigs that the Dealership, rather than Nipper, owned the vehicle.

138 Defendant argues that Nipper's testimony at trial was inconsistent with statements he made in an affidavit. In the affidavit, Nipper stated that it was early March 1999 when he discovered that his Chevy was not at the Dealership. The affidavit also states that no one at the Dealership could tell Nipper whether the car had been sold, and that he only learned the date of sale several days later. Defendant emphasizes that these statements are inconsistent with Nipper's trial testimony stating that he first discovered his car was not at the Dealership on February 17. Defendant also argues that statements in Nipper's affidavit corroborate Defendant's testimony that Nipper visited the Dealership on March 22, at which time Defendant told Nipper that the car sold several months earlier.

139 At trial, Nipper testified that Defendant told him on February 17 that the car sold "this past week," and Gent told him the car sold on January 26. Defendant testified that the car sold on January 16, and that when Nipper came to the Dealership he said it sold a couple of months earlier. Defendant also argues that he did not omit to inform Nipper of the sale, as that was the responsibility of Gent or Douglas.

40 On the count of misrepresenting ownership of the car to the Ludwigs, the court found that Defendant made statements to both of the Ludwigs that the Dealership owned the car. The Ludwigs both testified that Defendant said "we" own the car and "this is our car." The court also found that there were no title problems, despite Defendant's statements to the contrary. Based on these misrepresentations, the trial court con-vieted Defendant on this count.

T41 Again, we will not overturn a trial court's judgment on a bench trial "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." State v. Larsen, 2000 UT App 106,¶ 10, 999 P.2d 1252 (quotations and citation omitted). Here, the trial court's judgment is not against the clear weight of the evidence, and we therefore affirm Defendant's convictions.

D. Racketeering

142 Defendant argues that his racketeering conviction under Utah Code Ann. § 76-10-1608(8) (1999) also should be reversed based on insufficiency of the evidence. Under section 76-2-16088), "(ilt is unlawful for any person employed by or associated with any enterprise to conduct or participate, whether directly or indirectly, in the conduct of that enterprise's affairs through a pattern of unlawful activity." Utah Code Ann. § 76-10-1602(2) (1999) defines "pattern of unlawful activity" as "engaging in conduct which constitutes the commission of at least three episodes of unlawful activity, which episodes are not isolated, but have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics."

43 Defendant maintains that the evidence was not sufficient to show "the business intended to defraud" the consigners, as it only showed that he "knew that the consignors had not yet been paid." In response, the State maintains that the evidence was sufficient to show that Defendant had more than a general knowledge of the Dealership's financial problems, and that Defendant participated in a scheme to defraud through a pattern of unlawful activity. The trial court stated,

There is no question from the multitude of testimony that was heard by this court that there were misrepresentations and omissions as it relates to vehicles that were consigned and vehicles that were purchased at that particular enterprise. There's no question in this Court's mind ... that the defendant was involved in that to the extent that he knew of the problems.... He did nothing to stop those but in fact participated....

- T 44 In this case, the evidence is sufficient to convict Defendant of engaging in a pattern of unlawful activity. His convictions for five counts of communications fraud consist of more than three episodes of unlawful activity, as required by the statute. Therefore, we uphold Defendant's conviction for racketeering.

II. Questioning by Trial Court

T 45 Defendant argues that the trial judge abandoned its role as an impartial adjudicator by questioning John Douglas, one of the State's witnesses. Because Defendant did not object to the court's questioning, he must demonstrate plain error on appeal. See State v. Kell, 2002 UT 106,¶ 45, 61 P.3d 1019 ("Because defendant did not object to the comments during the trial, we review this issue for plain error."); see also State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993) (stating to establish plain error a defendant must show: "G) [aln error exists; (i) the error should have been obvious to the trial court; and (ii) the error is harmful").

146 Under rule 614(b) of the Utah Rules of Evidence, "(tlhe court may interrogate witnesses, whether called by itself or by a party." In this case, the trial court questioned Douglas about Defendant's position at the Dealership and his possible partnership with Gent in a business called Cruisin' Clas-siecs. Defendant argues that these questions were improper because the judge had previously stated, "unless counsel in closing arguments can tell me how Cruisin' Classics and Customs has any bearing on this case, I won't consider it at all to make my decision." Later, in its Findings of Fact, the trial court referred to testimony from the colloquy. Defendant also argues that it was plain error because the trial judge failed to rule on his objections during the questioning.

147 In this case, the court questioned Douglas to help clarify whether Defendant's earlier testimony was eredible. "It is within the judge's prerogative to 'ask whatever questions of witnesses as in his judgment is necessary or desirable to clarify, explain or add to the evidence as it relates to the disputed issues' " State v. Boyatt, 854 P.2d 550, 553 (Utah Ct.App.1993) (quoting State v. Mellen, 583 P.2d 46, 48 (Utah 1978)). The trial court precluded testimony about Crui-sin' Classics before Douglas testified. Only after Douglas stated that Gent and Defendant became partners, contradicting Defendant's earlier testimony that he and Gent did not get along, did the court seek clarification by questioning Douglas about Defendant's relationship with Gent. Defendant's argument that the trial court's action amounts to plain error therefore fails. It was "within the judge's prerogative to ask whatever questions of witness as in his judgment is necessary or desirable." Id. (quotations and citations omitted).

148 Further, even if it was error for the trial court to solicit testimony about the partnership arrangement of Cruisin' Classics after ruling that Cruisin' Classics testimony was inadmissible, the error was harmless. " 'If the error was harmless, that is, if the error was sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the case, then a reversal is not in order' " Armed Forces Ins. Exch. v. Harrison, 2003 UT 14,¶ 22, 70 P.3d 35 (citations omitted). In this case, the trial court's questioning of Douglas is "sufficiently inconsequential," id., and does not warrant reversal. Defendant argues that, because the trial court mentions testimony from the colloquy in its findings, the testimony amounts to plain error. However, the court relied on numerous grounds for its credibility determination about Defendant. Indeed, the court weighed the evidence and noted Defendant's inconsistencies. - The court also found that "testimony from almost every victim in this case ... directly contradicts [Defendant]." Because evidence for the court's credibility determination was ample and the court did not rely only on the disputed portion of Douglas's testimony, Defendant's plain error argument fails.

$49 Defendant also argues that it was error for the trial court to ignore his objections and continue questioning Douglas. A trial court should clearly rule on objections made during trial. The court in this case was remiss when it failed to do so. While this failure may have been error, it was harmless error and does not warrant reversal. See id. Further, we note that a trial court should avoid assuming the role of the prosecutor. In State v. Gleason, 86 Utah 26, 40 P.2d 222 (1935), the supreme court stated, "It is generally held that in the exercise of his right to question a witness, the judge should not indulge in extensive examination or usurp the function of counsel." Id. at 227; see also State v. Mellen, 583 P.2d 46, 48 (Utah 1978) ("[The judge should and normally does exercise restraint in examining witnesses, so that he does not unduly intrude into the trial or encroach upon the functions of counsel.").

150 In this case, questioning by the trial court was not plain error, and Defendant's argument therefore fails.

CONCLUSION

T51 The evidence in this case was sufficient for the trial court to convict Defendant of five counts of communications fraud and one count of racketeering. The trial court's judgment was based on ample testimony and was not against the clear weight of the evidence. Further, we defer to the trial court's credibility determinations in this case. Finally, we conclude that the trial court did not commit plain error, as Defendant argues, when it questioned a witness. We therefore affirm Defendant's convictions.

52 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and WILLIAM A. THORNE JR., Judge.

      . "" 'On appeal from a bench trial, we view the evidence in a light most favorable to the trial court's findings, and therefore recite the facts consistent with that standard.' However, we 'present conflicting evidence to the extent necessary to clarify the issues raised on appeal.' " ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 250 n. 1 (Utah Ct.App.1997) (citations omitted). "Because the trial court had the opportunity to view these witnesses and weigh their credibility, we defer to its findings unless the record demonstrates clear error." - State v. Reed, 839 P.2d 878, 880 (Utah Ct.App.1992); accord Utah R. Civ. P. 52(a).

      . The trial court's findings of fact state that the car was sold May 7, 1999. However, McLelland testified that he first visited the Dealership on May 1, and that he returned the next day, May 2, and negotiated the sale. There is no evidence in the record indicating another date.

      . Defendant marshals the evidence in his brief, recognizing that he " 'must marshal all of the evidence in support of the trial court's findings of fact and then demonstrate that the evidence, including all reasonable inferences drawn therefrom, is insufficient to support the findings against an altack.' " State v. Larsen, 2000 UT App 106, ¶ 11, 999 P.2d 1252 (citation omitted). The State does not challenge the adequacy of Defendant's marshaling.

      . - The questioning at issue was as follows:
      Court: What was Mr. Nichols' position after January of 1999 at Remember When?
      Witness: It is my understanding that first of all he was the sales manager for Mr. Gent and then became a partner with Mr. Gent.
      Defense: Objection, lack of foundation and hearsay.
      Court: How did you determine that?
      Witness: I was told by several people that were involved with the business and by the landlord that Mr. Nichols and Mr. Gent were forming some type of partnership.
      Defense: Objection, same objection, Your Hon- or.
      Court: I'm talking before June 13th of 1999.
      Witness: That's correct.


author: HILL, Chief Justice.

text:
    2003 WY 108
    Vincent A. GOULART, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-100.
    Supreme Court of Wyoming.
    Sept. 5, 2003.

      Representing Appellant: James A. Eddington of Torrington.
    Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Richard Rideout, Special Assistant Attorney General. Argument by Mr. Rideout.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[T1] Appellant, Vincent A. Goulart (Gou-lart), entered a conditional plea of nolo con-tendere to the crime of committing an immoral or indecent act with a child who was his step-daughter (victim) The conditions that Goulart wanted to appeal were that the district court erred in denying Goulart's motion to suppress statements made to the police, that a police officer "tainted" the victim's testimony by suggesting language to her during an interview, and that the district court erred in refusing to allow Goulart to introduce the testimony of the victim's sister (AG).

[T 2] We will affirm.

[13] Goulart poses the issues in these terms:

1. Were the defendant's rights pursa-ant to the Fifth and Fourteenth Amendments of the United States Constitution and Article 1, Section 6 of the Wyoming Constitution violated by the District Court's denial of the defendant's Motion to Suppress Tape recording?
2. When a police officer provides the terms "skin-to-skin," "vagina" and "pelvis" to a minor child making accusations of indecent liberties, is a competency hearing required under Wyoming Law?
8. Did the trial court commit reversible error] by denying the defendant the right to call [AG] as a witness?

The State, in turn, states these issues:

1. Whether the district court committed reversible error in denying [Goulart's] motion to suppress his statement made to officer Curtis?
2. Whether the district court committed reversible error in denying [Goulart's] motion to conduct a "competency hearing" on the victim's ability to testify?
3. Whether the district court committed reversible error in granting the State's motion to preclude [Goulart] from calling the victim's sister as a witness?

FACTS

[14] Goulart was charged with one count of committing an immoral or indecent act with the vietim. The gravamen of the charge was that on or about October 4, 2000, Goulart touched the victim with his hand on her bare buttocks and that, later that same night, he touched her on her vaginal area, which was covered with clothing at the time. According to the victim, she and her younger brother were lying on their parents' bed watching TV when Goulart returned home at about midnight, after a night of drinking. The children's mother was away for the weekend. Goulart got in bed with the two children. The victim was wearing shorts and a T-shirt. The victim related that Goulart first rubbed her buttocks with his hand, placing his hand underneath her shorts. The victim then left that bedroom and went to her own room and got into the top bunk of a set of bunk beds. Goulart came downstairs and said she should come back to bed. She followed Goulart back to the parents' bed, whereupon Goulart used his hand to rub her vagina, placing his hand on top of her shorts. The victim said, "Daddy, please stop," and then lay down on the floor by the bed to sleep. The report of this incident to the police did not occur until several months later in February of 2001.

[T5] On June 20, 2001, Goulart entered a plea of not guilty. On October 2, 2001, Gou-lart changed his plea to a plea of nolo conten-dere, reserving for appeal the issues we now have before us.

DISCUSSION

Motion to Suppress Statement to Police

[T6] A trial court's ruling on a defendant's motion to suppress a statement on the grounds that it was made involuntarily is reviewed de novo. In conducting such a review, we defer to the trial court's findings of fact unless those findings are clearly erroneous. This Court considers all the evidence in the light most favorable to the trial court's determination because the trial court has the opportunity to hear the evidence and to assess the credibility of witnesses. The Fifth and Fourteenth Amendments to the United States Constitution, and Wyoming Constitution Article 1, §§ 6 and 11, require that confessions be voluntary. A statement that is obtained by coercion is not trustworthy and may not be used at trial against the person who made it A defendant is deprived of the right to due process of law if an involuntary statement is admitted at his trial, A statement is considered to be voluntary if the defendant makes it of his own free and deliberate choice, and not because of intimidation, coercion or deception. The prosecution has the burden to prove, by a preponderance of the evidence, that a defendant's statement is voluntary. Lara v. State, 2001 WY 53, ¶ 9, 25 P.3d 507, ¶ 9 (Wyo.2001); also see Hadden v. State, 2002 WY 41, ¶ 17, 42 P.3d 495, ¶ 17 (Wyo.2002); and Meek v. State, 2002 WY 1, ¶ 13, 37 P.3d 1279, ¶ 13 (Wyo.2002).

[T7] A capsule statement of Goulart's contentions in this regard is this: "The only issue is whether the degree of trickery, psychological pressure, threats, implied promises and inducements applied by the police officer in this case equate to involuntariness."

[T8] The record shows that Goulart was asked to come to the police station in Torrington on February 20, 2001. The interview began at 10:00 am., and it lasted for about 90 minutes. Goulart came to the police station at the request of Police Officer Curtis, but Goulart was not under arrest, nor was he arrested the day of the interview. Goulart was given Miranda warnings before the interview commenced, and Officer Curtis testified that Goulart waived those rights and agreed to talk with him about the alleged crime. Goulart was not informed of the subject of the interview until after the interview was underway. Officer Curtis did not obtain a written Miranda waiver because he "had this on tape." We note that the transcript of the tape does not include Goulart's responses indicating that he understood the Miranda warnings, though it does include bis agreement to talk after the Miranda warnings were read to him. The tape itself is barely audible in this regard, but what sounds like "uh-hum" can be heard to most of the inquiries as to Goulart's understanding of his rights.

[19] Goulart relies principally upon our decision in State v. Evans, 944 P.2d 1120 (Wyo.1997), in structuring his argument. Indeed, that case is directly in point, although it is to the opposite effect. That is, in the Evans case a district court ordered that a statement given to the police be suppressed and, thus, our analysis focused on the evidence favorable to the district court's ruling that the prosecution had failed to meet its burden of demonstrating the voluntariness of the statement. Id., at 1126-28. That same sort of analysis, of course, applies equally here. However, in this instance the district court concluded that the State did meet its burden of demonstrating that the statements obtained from Goulart were voluntary, as well as that the evidence presented by Gou-lart did not seriously refute the State's evidence.

[T 10] The district court found that Goulart was asked to come to the police department for an interview. - Before the interview, Gou-lart was informed that the police were investigating an allegation that he had molested the victim. The police informed Goulart of his Miranda rights and, in light of those warnings, Goulart agreed to answer questions. Goulart took a cell phone to the interview with him and took a call on it during the interview process. In addition, at one point Goulart indicated that he was going to leave but was persuaded by Officer Curtis to stay and complete the interview. Although Officer Curtis was insistent and persistent in his questioning, he did not force Goulart to answer questions. Indeed, Officer Curtis told Goulart he should not confess to something he did not do. During the course of the interview, including one time after only a few minutes of questioning, Goulart conceded on several occasions that he might have touched his daughter accidentally, though he had no specific recollection of it. The district court concluded that Goulart had made his statements voluntarily after being given Miranda warnings. Further, Goulart was not in custody, and a reasonable person, given the cireumstances, would have known that he was free to leave and free not to answer any questions.

[T 11] We have carefully reviewed the same materials that were available to the district court and, of course, we have done so considering all of the evidence in the light most favorable to the trial court's determination, because the trial court had the opportunity to hear the evidence and to assess the credibility of witnesses. We conclude that Goulart's statements were not the product of trickery, psychological pressure, threats, implied promises, and/or inducements used by the police officer. Thus, we also conclude that the trial court findings in this regard are not clearly erroneous, and we hold that the trial court did not err in denying the motion to suppress the statements at issue.

Did the Trial Court Fail to Conduct a Required Competency Hearing

[112] The standard of review applicable to a competency hearing is clearly established:

We have held that when a child is called into the courtroom to testify, and the child's competency is called into question by either party, it is the duty of the trial court to make an independent examination of the child to determine competency, and that determination will not be disturbed unless shown to be clearly erroneous. English v. State, 982 P.2d 139, 145 (Wyo.1999). In English, we also held that an assertion that a child's testimony was tainted could best be comprehended as a part of the competency hearing and that a separate taint hearing is not required. 982 P.2d at 146. In Emglish, we established that the requirement that a competency hearing on the issue of "taint," based on an assertion that the child's statements were the product of suggestive or coercive interview techniques, or some other potentially improper influence, is triggered whenever a party presents the court with "some evidence" that a child witness is incompetent. 982 P.2d at 146-47; Ryan v. State, 988 P.2d 46, 58 (Wyo.1999).

Alicea v. State, 18 P.3d 693, 697 (Wyo.2000) (footnote omitted); also see Billingsley v. State, 2003 WY 61, ¶¶ 9-10, 69 P.3d 390, ¶¶ 9-10 (Wyo.2003); and Wilde v. State 2003 WY 93, ¶ 7, 74 P.3d 699, ¶ 7 (Wyo.2003).

[1 13] At its September 14, 2001 hearing on motions, the district court heard Goulart's motion concerning the competency of the victim. That motion was based on the theory that Officer Curtis "tainted" her testimony by suggesting the words she should use to describe what had happened to her, in particular, the words "skin-on-skin" with reference to Goulart rubbing his hand on the victim's bare buttocks, and the words "vagina" and "pelvis." At the preliminary hearing, defense counsel cross-examined the victim about the interview process used by Officer Curtis, and the victim admitted that Curtis helped her find words to express what she was trying to say. That testimony was tape-recorded and a transcript of it is a part of the record on appeal, as well as a part of the evidence the district court utilized in deciding the instant motion. At the hearing, Goulart's attorney called Officer Curtis as a witness and examined him about the interview with the victim. As a prefatory matter, Curtis was asked if the interview was recorded and he answered that the interview was neither tape-recorded nor video recorded because two officers were present to observe the interview. When the examination of Officer Curtis was complete, Goulart's attorney announced to the district court, "I have no more evidence, just argument." The argument presented by defense counsel was based on the case English v. State, 982 P.2d 139 (Wyo.1999), and, at the conclusion of that argument, defense counsel asked "that the written statement of [the victim] and the testimony [of the victim at the preliminary hearing] be excluded."

[¥ 14] The district court then made these oral findings:

With respect to the competence or any taint, Rule [WRE] 601 provides that all witnesses are competent unless the rules provide otherwise; and the Court then starts with the presumption, or at least with the suggestion under the rule, that this witness is competent.
Her competence and the lack of any taint of suggestion or ideas planted in her mind by Officer Curtis are also found in the fact that there were not leading questions asked, that she was in the fifth grade, 11 years old, that she seemed intelligent, that she responded appropriately to many questions, that she wrote out a story from beginning to end without pausing and without any input from the interviewer.
The Court finds that the consistency in her story between the verbal story and her written story and her testimony at preliminary hearing is an indication of its being independent and voluntary and being not suggested to by Mr. Curtis at the particular interview that he was.
The Court does note that this individual, this witness, used two or three terms that may have been beyond her years and may have not, but the court finds the testimony here today is very specific, that the witness had a difficult time of getting from her vocabulary the correct anatomical word or way to describe-method to describe something, and so she was supplementing that description with physical demonstration, or showing or pointing at something.
And it was entirely reasonable and appropriate for the officer to provide that word onee she identified the body part or the location of wherever she is talking about.
It would be quite a different thing if the officer started out suggesting to her that she was touched in a certain place or that it went some way, and then gave her the anatomical word for that place; but that's not what happened here. Instead, the witness described what happened, struggled for a word, and Officer Curtis simply gave it to her.
That's not a taint.

[1 15] The district court asked counsel if there was anything further and both sides indicated that there was not.

[J 16] The record on appeal supports only one conclusion and that is that the district court held a competency hearing as contemplated by English, and that the district court's conclusion that the victim was competent, and that her testimony was not tainted, is not clearly erroneous. Indeed, such a conclusion is wholly consistent with the evi-dentiary material brought to the district court's attention by Goulart. We hold that the district court did not err with respect to this matter.

Did the District Court Err by Denying Goulart the Right to Call AG as a Witness

[117] We have repeatedly articulated the standard of review for evidentiary rulings:

Evidentiary rulings are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency, materiality, and remoteness of the evidence. This court will generally accede to the trial court's determination of the admissibility of evidence unless that court clearly abused its discretion.
Solis v. State, 981 P.2d 34, 36 (Wyo.1999) (citation omitted). We have described the standard of an abuse of discretion as reaching the question of the reasonableness of the trial court's choice. 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 capri-clously. "In the absence of an abuse of discretion, we will not disturb the trial court's determination." - [Griswold v. State, 2001 WY 14, ¶ 7, 17 P.3d 728, ¶ 7 (Wyo.2001).] The burden is on the defendant to establish such abuse.
Skinner v. State, 2001 WY 102, ¶ 25, 33 P.3d 758, ¶ 25 (Wyo.2001), cert. denied, 535 U.S. 994, 122 S.Ct. 1554, 152 L.Ed.2d 477 (2002) (some citations omitted).

Willis v. State, 2002 WY 79, ¶ 16, 46 P.3d 890, ¶ 16 (Wyo.2002).

[118] Goulart proposed to call his older step-daughter, AG, as a witness. We will not set out in detail the reasoning behind this argument because the district court left open the possibility that he would admit the testimony at trial. The gist of the offer of proof was that AG would testify about the good and continuing relationship she had with Goulart both before and after the incident of indecency with the victim, as well as that she did not believe the victim. The district court's oral ruling on this issue makes clear that although it deemed that the proposed testimony "would not make the determination of any fact at issue in this case more or less probable":

There are many opportunities, however, when her testimony might be or could be-anyhow, her testimony might be appropriate rebuttal, certainly might happen, if there was something particularly said that she knew about.

[T19] We conclude that Goulart has not carried his burden of establishing that the district court abused its discretion in making the pretrial determination it made with respect to this proffered evidence.

CONCLUSION

[120] For the reasons set out above, the judgment and sentence of the district court are affirmed.

      . W.R.Cr.P. ii(a){1)(A)(B)(2) (emphasis added) provides:
      Rule 11. Pleas.
      (a) Alternatives.-
      (1) In General.-A defendant may plead not guilty, not guilty by reason of mental illness or deficiency, guilty, or nolo contendere. If a defendant refuses to plead or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.
      (A) Nolo Contendere.-A defendant may plead nolo contendere only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice.
      (B) Mental Illness or Deficiency.-A plea of "not guilty by reason of mental illness or deficiency" may be pleaded orally or in writing by the defendant or the defendant's counsel at the time of the defendant's arraignment or at such later time as the court may for good cause permit. Such a plea does not deprive the defendant of other defenses and may be coupled with a plea of not guilty.
      (2) Conditional Pleas.-With the approval of the court and the consent of the attorney for the state, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to seek review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.

      . Wyo. Stat,. Ann. § 14-3-105 (LexisNexis 2003) provides:
      § 14-3-105. Immoral or indecent acts; penalty. |
      (a) Except under circumstance constituting sexual assault in the first, second or third degree as defined by W.S. 6-2-3022 through 6-2-304, any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony. Except as provided by subsection (b) of this section, a person convicted under this section shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both.
      (b) An actor convicted under subsection (a) of this section shall be punished by life imprisonment without parole if:
      (i) The circumstances of the crime involve a victim who was under the age of sixteen (16) at the time of the offense and an actor who was at least four (4) years older than the victim; and

        (ii) The actor has two (2) or more previous convictions for any of the following designated offenses, which convictions resulted from charges separately brought and which arose out of separate occurrences in this state or elsewhere:
      (A) A conviction under W.S. 6-2-302 through 6~2-304 or a criminal statute containing the same or similar elements as a crime defined by W.S. 6-2-302 through 6-2-304;
      (B) Repealed by Laws 1997, ch. 135, § 2, eff. July 1, 1997.
      (C) A conviction under W.S. 14-3-105(a), or a criminal statute containing the same or similar elements as the crime defined by W.S. 14-3-105(a), if the circumstances of the crime involved a victim who was under the age of sixteen (16) at the time of the offense and an actor who was at least four (4) years older than the victim.
      (c) As used in this section, "child" means a person under the age of eighteen (18) years.

      . A written Miranda waiver constitutes "better" evidence than the tape-recorded waiver, and that is especially so in an instance such as this where the transcript does not clearly demonstrate the waiver, although the police officer's recollection was certain that it would.