text:
    Damian L. BEARTUSK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 98-243.
    Supreme Court of Wyoming.
    May 10, 2000.

      Representing Appellant; Sylvia Lee Hackl, State Public Defender; Donna Do-monkos, Appellate Counsel; Diane Courselle, Director, Defender Aid Program; Matt Robinson, Student Intern; and Kyndra K. Miller, Student Intern. Argument by Ms. Miller.
    Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Kimberly A. Baker, Senior Assistant Attorney -General; Theodore E. Lauer, Director, Prosecution Assistance Program; Martina D. Miller, Student Intern; and Clay Mahaffey, Student Intern. Argument by Ms. Miller and Mr. Mahaffey.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   LEHMAN, Chief Justice.

Damian Beartusk appeals his conviction of sexual assault in the third degree. He argues that the jury selection process was unconstitutional, that the prosecutor tried the case during voir dire, that the State imper-missibly commented upon his exercise of his constitutional right to remain silent, and that hearsay was improperly admitted at trial. Finding no reversible error, we affirm.

ISSUES

Appellant challenges the fairness of his trial, presenting four issues for review:

I. The trial court denied Damian Bear-tusk's constitutional right to a fair jury trial by dismissing veniremen based on gender in violation of Batson, expanded to gender in J.K.B. e
II. The prosecutor violated essential demands of fairness when she began typing the case during voir dire by referring to specific factors of the case, and preconditioning the jury to the State's theory of the case.
III, At trial, the prosecutor impermissi-bly commented on Damian Beartusk's silence, implying guilt in violation of his constitutional right to remain silent.
IV. The trial court erred when it allowed the State to admit testimony of seven witnesses to repeat what the alleged victim had told them. The statements were inadmissible as substantive evidence because, according to the defense, the victim had a motive to fabricate from the outset and all these statements were made after the vie-tim changed her story., Furthermore, the statements did not fit under any hearsay exception, and therefore the court erred when it allowed them to be admitted to prove the truth of the matter asserted.

The State responded, rephrasing the issues only slightly.

FACTS

Evidence presented to the jury reveals that the victim was a troubled 15-year-old girl from California who, on October 2, 1997, arrived at the Thunder Child Treatment Center near Sheridan to receive extended inpatient treatment for addiction to methamphetamine and marijuana. During her first week at the center, the victim met the appellant, Damian Beartusk, who was a unit technician responsible for supervising adolescent patients. Beartusk knew the victim was just 15 years of age as he developed a friendly relationship with her, confiding that he was having marital difficulties.

(On or about October 11, 1997, Beartusk awoke the victim at 8:00 a.m. and persuaded her to accompany him outside. After smoking marijuana in a parked car, they returned to the adolescent wing, where the victim returned to her room. After checking the other children, Beartusk proceeded to the victim's room, whereupon they had sexual intercourse.

A few days later, Beartusk told the victim that he could get into trouble if she told anyone about their tryst and instructed her to keep quiet. His instruction, however, was belated; she had already told her roommate. When officials from the Department of Family Services confronted the victim with the allegations, she initially denied them. Unable to follow his own instruction, Beartusk in the meantime boasted of his conquest to a coworker. When confronted again with the allegations, the victim changed her story and admitted to having sex with Beartusk. The victim was then interviewed by a series of officials, to whom she repeated her story. Beartusk was arrested on December 17, 1997.

On May 7, 1998, a Sheridan County jury found Beartusk guilty of third degree sexual assault. Wyo. Stat, Ann. § 6-2-304(a)(%) (Lexis 1999). He was sentenced to a term of three to six years imprisonment and ordered to pay $4,681.33 in court costs. This appeal timely followed.

DISCUSSION

I. Jury Selection

Appellant argues that his constitutional right to a fair jury trial was denied when the prosecutor exercised eight peremptory challenges against men and only one against a woman. This issue was preserved when defense counsel objected that the State violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Batson established that the Equal Protection Clause forbids prosecutors from exercising peremptory challenges to strike prospective jurors because of their race. In Batson, the U.S. Supreme Court held that although a defendant has no right to a petit jury composed in whole or in part of persons of his own race, the State may not purposefully exclude members of the defendant's race solely because of race. The Batson doctrine was extended from racial discrimination to include gender discrimination by J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

A prosecutor is free to exercise peremptory challenges until the defendant objects on the ground that the prosecutor has engaged in intentional discrimination on the basis of race or gender. When challenging the jury selection process, the burden is on the defendant to prove the existence of purposeful racial discrimination.

[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury [by showing first] that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact ... that perempto-xy challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Finally, the defendant must show that these facts and any other relevant cireum-stances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors . raises the necessary inference of purposeful discrimination.

Bueno-Hernandez v. State, 724 P.2d 1132, 1134 (Wyo.1986) (quoting Batson, 476 U.S. at 96, 106 S.Ct. at 1723); see also Espinoza v. State, 969 P.2d 542, 547 (Wyo.1998). If the court finds that the defendant has made a prima facie showing of discrimination, the burden then shifts to the prosecutor to present a neutral explanation for the strike. If the court discredits that explanation, or if the defendant can show the neutral explanation to be pretextual, then a Batson violation has occurred.

In the case at bar, the State exercised seven of its peremptory challenges against men and exercised its challenge to the alternate juror against a man. Also, the prosecutor apparently struck a female juror with a gender-ambiguous first name, mistakenly believing the female venireman to be a man; the prosecutor did not tender a gender-neutral explanation for the strike of the female juror. Defense counsel objected, asserting that the State had struck eight men and one woman. On appeal, the State concedes that defense counsel met his initial burden in raising the specter of a potential Batson violation and making a prima facie showing of an equal protection violation by showing that the prosecutor exercised her perempto-ries to remove men from the jury.

The trial court then gave the prosecutor an opportunity to explain her strikes. The prosecutor disclaimed any intention to strike men and proffered the following gender-neutral reasons for five challenges against male veniremen: one juror had impaired hearing; a second was the father of a criminal defendant; a third "didn't seem interested in being a juror"; a fourth was not paying attention to the prosecutor's questions; and a fifth had prior involvement with law enforcement concerning a domestic battery investigation.

The prosecutor offered no explanation for the other three challenges to men, and neither the court nor defense counsel requested further explanation. The court ruled that "[blased on that explanation from the State, the Court does not find that the State has purposefully excluded males without cause. So, the Court accepts the selection previously noted." No further objection was raised to the composition of the jury.

Inability to hear testimony and bias against law enforcement are reasonable bases for exercising peremptories. Indeed, the failure of a juror to hear testimony, coupled with a showing of prejudice, could itself form the basis for reversal. See Belondon v. City of Casper, 456 P.2d 238, 242 (Wyo.1969). Reasons three and four, lack of interest and failure to pay attention, are subjective explanations that do not readily reveal themselves upon reviewing a cold appellate record. Purely subjective impressions of a juror's qualities alone without objective support cannot suffice; such rationales could too easily be used to mask discrimination. See, e.g., State v. Cruz, 175 Ariz. 395, 857 P.2d 1249, 1253 (1993). Juror inattention could reflect some defect in advocacy skills rather than in a venireman's jury potential.

Be that as it may, these are questions best left to the discretion of the trial judge, who can gauge the venire's demeanor and more reliably determine whether a juror is actually inattentive or whether a lawyer is manufacturing pretextual exeuses to conceal discrimination. The trial judge has wide discretion in ruling upon the qualification of jurors, and his determination is not subject to review except upon a clear showing of abuse of such discretion. Belondon, 456 P.2d at 242. On appeal, a trial court's findings of fact after a Batson hearing on whether the State's strikes were taken for discriminatory reasons will be reversed only if clearly erroneous. Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 1871, 114 L.Ed.2d 395 (1991); U.S. v. Johnson, 941 F.2d 1102, 1108-09 (10th Cir.1991). When the trial judge accepted the explanations offered by the prosecution, he ratified the reasonability of those proffered explanations. We will not second guess the trial court's findings of fact in a Batson ruling absent clear error.

Appellant next argues that the prosecution's failure to provide any reasons for three other male peremptories violates Bat-son. The State responds that no explanation was offered because the trial court was satisfied with the explanations for the other strikes and found that no purposeful discriminatory action had taken place. "Because the right to nondiscriminatory jury selection procedures belongs to the potential jurors, as well as to the litigants ... [tThe exclusion of even one juror for impermissible reasons harms that juror and undermines public confidence in the fairness. of the system." J.E.B., 511 U.S. at 142 n. 13, 114 S.Ct. at 1428 n. 13. For us to review the trial court's findings, there must be some indication in the record revealing the basis for his decision. After hearing the State's explanations, the trial court noted that the prosecutor had joined defense counsel in challenging two women for cause and found that the State did not purposefully discriminate against male veniremen.

In formulating the clear error standard of review for Batson hearings, the U.S. Supreme Court noted that the finding of dis-eriminatory intent will often hinge on judicial assessment of an attorney's demeanor:

In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province."

Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869.

In this case, the trial judge properly required the prosecutor to explain her jury selection strategy. While we would prefer that judges conducting Batson hearings require counsel to justify all their suspect strikes on the record, we will not find that the trial judge's findings of fact here were clearly erroneous.

TII. Voir Dire

Appellant contends that the prosecutor improperly argued her case to the jury during voir dire. Specifically, appellant complains that the prosecutor queried the venire whether a young girl undergoing drug treatment might be more vulnerable, more accessible to the defendant, or more deserving of protection. The prosecutor characterized the victim as "easier prey." After an objection was lodged, the court admonished the prosecutor to avoid discussing particular facts of the case. Despite this admonishment, the prosecutor later asked the venire if they could "understand the reasons why a 15-year-old child might deny that she had had sexual intercourse with a married adult."

Counsel are prohibited from trying a case during voir dire. Jahnke v. State, 682 P.2d 991, 1000 (Wyo.1984). Counsel may not "attempt to precondition prospective jurors to a particular result ... nor question jurors concerning the pleadings, the law, the meaning of words, or the comfort of the jurors." W.R.Cr.P. 24(c)(2). Moreover, counsel may not "[iustruct the jury on the law or argue the case." W.R.Cz.P. 24(c)(8)(D). The latitude allowed counsel during voir dire is within the sound diseretion of the trial court. Gerard v. State, 511 P.2d 99, 100 (Wyo.1978), cert denied 414 U.S. 1072, 94 S.Ct. 585, 38 L.Ed.2d 478 (1978). On appellate review of voir dire, deference is given to the trial court's judgment under the abuse of discretion standard. Swmmers v. State, 725 P.2d 10383, 1041 (Wyo. 1986), affd 781 P.2d 558 (Wyo.1987);, Miller v. State, 904 P.2d 344, 352 (Wyo.1995).

Defense counsel properly objected to the initial comments made by the prosecutor, and the trial court properly sustained the objection, along with an appropriate admonition directed at the prosecutor. As for the prosecutor's subsequent question concerning why a victim might deny the sexual abuse, there is a fine line between arguing the facts of a case and exploring possible prejudices among the venire. We find the trial court did not abuse its discretion in giving counsel some latitude during voir dire.

III. Constitutional Right to Silence

Appellant contends that the State improperly commented on Beartusk's silence in violation of Tortolito v. State, 901 P.2d 887 (Wyo.1995). The alleged violations occurred during direct examination of a police investigator who testified that he interviewed the defendant, that the defendant answered some innocuous questions, and that when the interview became accusatory, Beartusk terminated the interview: "He didn't want to answer any more questions." Also, the investigator testified that Beartusk called him and said he would come into the sheriff's office when he got back into town, .but that Beartusk never came in and "never contacted" the police after that time.

Any comment upon an accused's invocation of his constitutional right to remain silent is prejudicial error per se entitling the accused to an automatic reversal of the conviction. Tortolito, 901 P.2d at 390-91. The question then is whether there was such a comment in this case. "A comment upon an accused's silence occurs when used to the state's advantage either as substantive evi-denee of guilt or to suggest to the jury that the silence was an admission of guilt." Id. at 391. "Merely observing that the defendants had not said much is not comment." Park-hurst v. State, 628 P.2d 1369, 18382 (Wyo. 1981). In deciding whether there was an impermissible comment upon the defendant's exercise of his right of silence, we will not take sentences and phrases out of context. Cheatham v. State, 719 P.2d 612, 621 (Wyo. 1986).

Considering their entire context, the two statements singled out here are relatively benign and do not rise to the level of commentary upon silence. Neither statement by itself constitutes commentary on the invocation of the right to remain silent. The prosecutor did not ask improper questions, did not emphasize the two statements, did not follow up on them, did not refer to them during closing arguments, and did not attempt to exploit them in any way. We find no error.

IV. Hearsay

Finally, appellant complains that he was convicted on the testimony of one witness, the victim, whose story was repeated numerous times at trial. Several Thunder Child Treatment Center employees, the victim's roommate, two police officers, and a nurse were all permitted to testify to what the victim told them about the crime. These hearsay statements were admitted without objection.

Since defense counsel chose not to object at trial, we review the admissibility of these hearsay statements under the plain error standard. For an error to rise to plain error, three requirements must be met: the record must clearly describe the facts alleged as error; the error must violate a clear and unequivocal rule of law; and the error must affect a substantial right resulting in material prejudice. Mitchell v. State, 982 P.2d 717, 723-24 (Wyo.1999). Appellant urges that plain error exists due to the sheer volume of hearsay testimony admitted. However, before we look at prejudice, we must first analyze whether a clear and unequivocal rule of law has been violated.

This court recently summarized the state of the law regarding prior consistent hearsay statements in Dike v. State, 990 P.2d 1012, 1024 (Wyo.1999). In that divided opinion, this court declined to adopt the United States Supreme Court's interpretation of Rule 801(d)(1)(B). In the federal system, the admissibility of prior consistent hearsay statements depends on a premotive temporal requirement, that is, the prior consistent statements must precede the motive to fabricate in order to rebut a charge of recent fabrication. Tome v. United States, 513 U.S. 150, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995). Wyoming does not have such a rigid requirement and will sometimes allow statements failing the temporal test to be admitted for rehabilitative purposes. In these cases, the party seeking exclusion of the hearsay is entitled to a limiting instruction.

In the case at bar, defense counsel neither objected to the hearsay nor sought a limiting instruction. Instead, he chose to make the best of the situation by arguing to the jury that the repetition of the same story merely illustrates the weakness of the prosecution's case. We cannot find plain error under these circumstances because the alleged error does not violate a clear and unequivocal rule of law; under Dike, such hearsay may enjoy some limited admissibility. There was no plain error.

Affirmed.


source: Caselaw Access Project

author: GOLDEN, Justice.

license: Public Domain

text:
    Marvin COLEMAN and Rosalie Coleman, Husband and Wife, Appellants (Plaintiffs), v. William KEITH and Jo Keith, Husband and Wife, Appellees (Defendants).
    No. 99-156.
    Supreme Court of Wyoming.
    May 16, 2000.
    Rehearing Denied June 6, 2000.

      Representing Appellants: Jeffrey C. Gos-man, Casper, Wyoming.
    Representing Appellees: Keith R. Nach-bar, Casper, Wyoming.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and HILL, JJ.
   GOLDEN, Justice.

Appellants, Marvin and Rosalie Coleman (Colemans), bring this appeal from the district court's decision granting summary judgment in favor of William and Jo Keith (Keiths) on the Colemans' claim for a prescriptive easement against the Keiths' property. Although the Colemans, and their predecessors in interest, used a road which crosses the Keiths' property for several years and made improvements to that road, the Cole-mans failed to present evidence to the district court rebutting the presumption that the use was permissive. The district court's decision properly applied A.B. Cattle Co. v. Forgey Ranches, Inc., 943 P.2d 1184 (Wyo.1997), to the undisputed facts of this case. Because the Colemans' use of the land was permissive, we affirm the order granting summary judgment in favor of the Keiths.

ISSUES

The Colemans present this statement of the issues in their brief:

1. Were there material issues of fact that precluded entry of summary judgment against the Appellants?
2. Did the District Court err as a matter of law in granting summary judgment against the Appellants?
3. Did the District Court err as a matter of law in not granting summary judgment in favor of the Appellants?

The Keiths present only one issue for review:

Whether the trial court properly granted summary judgment to Keiths because there was no genuine issue of material fact and Colemans' use of the government maintenance roadway was permissive as a matter of law.

FACTS

The facts in this case are essentially undisputed. The challenge concerns the district court's application of the law to those facts. The Colemans filed affidavits, and the district court made the following findings based on an examination of the record in a light most favorable to the Colemans:

A. The [Colemans] reached their property by a road which crossed land now owned by the [Keiths]. The road that the [Colemans] used is within an easement owned by the federal government and operated and maintained by the Casper Alco-va Irrigation District.
B. The [Colemans] never asked nor obtained permission from anyone, and were never denied permission to use the road by anyone.
C. The [Colemans] believed that they had the right to use the road.
D. The [Colemans] made some improvements on the road.
E. In the 1960's, the [Colemans] or their predecessors were asked by predecessors to the [Keiths] to refrain from traveling across an adjacent pasture, and instead asked to travel on the road within the ditch maintenance easement.

Other facts brought to the Court's attention in the Colemang' brief include the fact that their property is landlocked and all the predecessors in interest, of both the alleged servient and dominant estates, believed they acquired a right to use the ditch road when they bought the property, although no easement was ever recorded. The Colemans also relate their extensive use of the ditch and the many improvements they made to the road. The major improvements to the road began in 1985.

DISCUSSION

The Colemans contend the improvements to the road negate the presumption of permissive use this Court applied in A.B. Cattle Co. v. Forgey Ranches, Inc., 948 P.2d 1184 (Wyo.1997), because that case applied to an "unimproved road crossing the lands of his neighbor." Instead, the Colemans claim the presumption of adverse use-which arises out of the open, visible, continuous use of the land for a time period sufficient to aequire an easement by preseription-applies in this case. In addition, the Colemans contend that, even if the presumption of permissive use applies, their use of the road and the improvements they made to the road rebut that presumption.

"The determination of the facts which lead to either the presumption of adverse and hostile use or the presumption of permission [is] within the prerogative of the trial court." A.B. Cattle Co., 948 P.2d at 1188. On review of a summary judgment, we consider the facts in a light most favorable to the non-movant. However, in this case, both parties agree that the material facts are not in dispute, and we concur with that assessment. Therefore, the matter becomes a question of the application of the law to those facts. We review the district court's decision on questions of law de novo.

The Colemans, in claiming a prescriptive easement, bear the burden of proving four elements:

1) Proof of adverse use;
2) Claim of right under color of title or claim of right;
3) Use of a kind as to put the owner of the subservient estate on notice of the claim; and
4) Use which is continuous and uninterrupted adverse use for at least ten years.

AB. Cattle Co., 948 P.2d at 1188 (citing Prazma v. Kachne, 768 P.2d 586, 589 (Wyo. 1989)). This burden includes "establishing that his intention to make a hostile use of the road adverse to the interests of his neighbor was brought home to the neighbor in a clear and unequivocal way." A.B. Cattle Co., 948 P.2d at 1188 (quoting Weiss v. Pedersen, 983 P.2d 495, 501 (Wyo.1997), which quoted Shumway v. Tom Sanford, Inc., 6837 P.2d 666, 670 (Wyo.1981)).

In Wyoming, the law requires a manifestation of hostile and adverse intent to use a road, even though it will likely result in revocation of permission to use the road across the neighbor's land. Id. A person claiming a prescriptive easement may not rely on a presumption of adverse use or his subjective intent. Id. Rather, the use is presumed to have been with permission. Id. "To rebut this presumption the claimant must introduce evidence of the facts which demonstrate the manner in which the hostile and adverse nature of his use was brought home to the owner of the adjacent land." Id. Finally, the use must be inconsistent with the rights of the owner, such that the use would entitle the owner to a cause of action against the claimant, without permission asked or given. A.B. Cattle Co., 948 P2d at 1188 (citing Koontz v. Town of Superior, 746 P.2d 1264, 1268 (Wyo.1987)).

The Colemans do not dispute that they were never denied permission to use the easement. The predecessors in interest to the Keiths did not act to stop the Colemans from using the road, which supports a presumption of permissive use. A.B. Cattle Co., 943 P.2d at 1189. In the 1960's, a predecessor in interest asked the Colemans to confine their travel to the easement, rather than continuing to use a short-cut which traveled across their pasture. The Colemans complied with that request. This recognition of the landowner's authority is evidence of permissive use. Yeckel v. Commell, 508 P.2d 1200, 1204-05 (Wyo.1973).

Finally, somewhat disingenuously, the Colemans' brief fails to mention or address the fact that the Federal government established a valid and enforceable easement for the Casper Alcova Irrigation District (District). The road was originally built, maintained, and used by the District to maintain and operate its irrigation ditch system. The Keiths' predecessors in interest had no right to eliminate the road within the easement, or to stop the Colemans from using the easement. That right belonged to the District. The Colemans' use and maintenance of this road within the existing easement in favor of the District was as much a benefit to the District as it was to the Colemans and did not manifest hostile and adverse intent. The Colemans rode the coattails of the District's pre-existing legal rights to use and maintain the road without bothering to establish any rights of their own.

In its decision letter, the district court determined the Colemans failed to provide evidence demonstrating hostile and adverse use of the easement. In fact, the record demonstrates that the Coleman's use of the easement was permissive. We agree. Therefore, we affirm the decision of the district court.


author: CARPENETI, Justice.

text:
    In the Matter of the ESTATE OF Joel W. KOTTKE, Iris Enders and Ralph Kottke, Appellants, v. Connie Parker, Personal Representative of the Estate of Joel W. Kottke, Appellee.
    No. S-8932.
    Supreme Court of Alaska.
    July 28, 2000.

      Timothy R. Byrnes, Hughes Thorsness - Powell Huddleston & Bauman LLC, Anchorage, for Appellants.
    C. James Mathis, Davis & Davis, P.C., Anchorage, for Appellee.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Joel Kottke's deceased wife's adult children and his sibling challenge his will, which left the vast majority of his present estate to the woman who cared for him and with whom he lived as he died of cancer. They challenge the will under theories of undue influence and insane delusions. The superior court denied both theories after a seven-day trial. Because the superior court did not err in its findings of fact or in its conclusions of law, we affirm the judgment admitting the will to formal probate.

II, FACTS AND PROCEEDINGS

Joel Kottke married late and outlived his first wife, Martha. She already had adult children by a deceased first husband when they married in 1958. Joel treated her children much as he would have if they were his own.

Throughout their lives together, Joel and Martha managed to accumulate a modest estate. In 1988 they had wills drawn up contemporaneously, each leaving the entire estate to the surviving spouse. The residual estate was to pass one-half to Martha's children and one-half to Joel's siblings upon the death of the surviving spouse.

Martha died in 1991. Martha's children, particularly Iris Enders, divided some of the personal effects of their mother immediately after her death. This division of Martha's possessions during the grieving period upset Joel. Additionally, Joel later concluded that the original copy of the 1983 will had disappeared from a fire-proof box or safe he kept hidden in his basement. Joel was apparently wrong in his belief that the will was stolen because it was later found in the house; it was probable that Iris did not take it. Despite these events and the suspicions connected with them, Joel's relations with Martha's children remained fair for some time.

In 1992 or 1998, following Martha's death, Joel started spending more time with Connie Parker, a long-time acquaintance. By all accounts, Martha's children and Connie did not get along; familial relations between Joel and Martha's children became strained as Joel and Connie spent more time together.

Joel and Connie had been living together for three years by the time he was diagnosed with prostate cancer in September 1996. The day after the diagnosis, Joel started pursuing a reworking of his will with a visit to Connie's friend, attorney Max Gruenberg. Gruenberg referred Joel to his own estate planner, attorney Trigg Davis. Over the course of nine months, Joel carefully reworked his will through the law offices of Davis & Davis.

Connie was present at some of the will-planning sessions, but her exact role was unclear. She also performed administrative functions of the will-making process, such as writing checks for the legal fees and dropping off requested documents at the Davis & Davis office. She did not actively participate in substantive aspects of the will planning or execution. Iris and the other beneficiaries under Joel's 1983 will were not aware that he was changing his will in a manner that effectively cut them out. Joel executed a new will on June 10, 1997, in a ceremony at which Connie was absent.

Joel was receiving medical treatment throughout this period. Connie was the primary care giver and was present for all of his medical procedures. She also provided his necessary home health care.

Relations with Iris and Martha's other relatives continued to sour. In August 1997 Iris learned that Joel had changed his will. In September Iris reported to the State Division of Senior Services that Joel was receiving substandard care from Connie and that Connie was taking his money and had coerced him to change his will. The state investigation revealed no evidence to support the allegations. Joel died on October 1, 1997.

Connie was nominated as the personal representative under the 1997 will and filed to have it formally admitted to probate. The 1997 will left Iris an interest in Joel's property in Kenai and left the remaining estate to Connie under a trust system that was effectively a life estate.

Iris and the other beneficiaries under the 1983 will filed a petition to set aside the 1997 will on October 29, 1997. The primary theories they advanced were that Connie had an undue influence on Joel in his waning days and that Joel was suffering from insane delusions when he redrafted his will. On September 24, 1998, the superior court made extensive findings of fact and conclusions of law. The court held that the facts were inadequate to justify invalidating Joel's 1997 will under either the doctrine of undue influence or the doctrine of insane delusions. This appeal followed.

III. DISCUSSION

A. Standard of Review

This appeal involves issues of both law and fact. In reviewing questions of law, we "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." We will not set aside the trial court's findings of fact unless they are clearly erroneous. A finding of fact is clearly erroneous if we are left with "a definite and firm conviction on the entire record that a mistake has been made, although there may be evi-denee to support the finding." In making this determination, we view the evidence in the light most favorable to the prevailing party below.

B. Conmie Parker Did Not Exert Influence on Joel Kottke Sufficient to Justify Invalidating the Will.

The superior court made extensive findings of fact after a seven-day trial regarding whether Connie unduly influenced Joel in the making of his 1997 will, We have reviewed those findings and detect no error. In fact, the trial court made an exemplary inquiry and specifically addressed each factual contention raised by Iris. The trial court's findings and conclusions on this issue are more than sufficient and we will not disturb them here.

C. Joel Koltke Was Not Suffering from Insame Delusions When He Drafted and Executed His Will.

We have not previously addressed the question of insane delusions in the context of a contested will. Therefore, we apply our independent judgment in adopting the most prudent rule of law by considering precedent, reason, and policy.

1. The test for insame delusions incorporates the test for testamentary capacity.

A claim of insane delusions challenges the testamentary capacity of the testator. Therefore, a test for insane delusions should incorporate the existing framework that applies to testamentary capacity.

We addressed the issue of testamentary capacity in Paskvan v. Mesich. The test asks whether the testator understood the nature and extent of his or her property, the natural or proper objects of his or her bounty, and the nature of his or her testamentary act. Any challenge under the umbrella of testamentary capacity necessarily attacks one or more of these elements; finding a deficiency on any one of the three elements invalidates the will.

A challenge of insane delusions does not differ from other challenges to testamentary capacity. Thus, a simple extension of the testamentary capacity framework to account for claims of insane delusions provides the best approach. First, there must be an insane delusion: "An insane delusion is a belief which has absolutely no foundation in fact, and even slight evidence which provides a basis for the belief negates the existence of a delusion." Beliefs based on fact but derived from faulty logic or distorted by emotion will rot support a claim of insane delusions. Thus, the belief must be totally devoid of reason and must lack even a glimmer of a factual basis. Second, the will must be the product of an insane delusion. This requires that the will must be "the product or offspring of [a] delusion" or it must be materially affected by a delusion. Accordingly, the party contesting the will must show that but for the delusion, the will would be materially different. Thus, the test is whether the testator suffered from an insane delusion that gave rise to the will, or materially affected the will, by rendering the testator incapable of understanding the extent of his or her property, the natural or proper objects of his or her bounty, or the nature of his or her testamentary act.

2. Joel Kottke was not suffering from imsame delusions that undermined his testamentary capacity.

Iris challenges the will based on the theory that Joel suffered from paranoid delusions that Iris rifled through his safe and stole his original will, and that she took Martha's jewelry and other belongings. Iris maintains that these delusional beliefs drove Joel to cut her and Joel's siblings out of the will. Iris's theory fails.

As the superior court found, there is evidence in the record that the will was missing from the safe. There was also evidence that Iris had participated in dividing some of Martha's property immediately after Martha's death. Regardless of who took the will or how it disappeared, and regardless of the cireumstances surrounding the division of property, these events gave Joel a factual basis for his beliefs that Iris rifled through his safe and improperly took Martha's property following her death. The superior court also found that the evidence regarding whether Martha's jewelry was missing was inconclusive, but that Joel at least had a factual basis for his belief that it was taken. Thus, Joel had factual bases for his beliefs. This is sufficient to refute both theories of insane delusions. Since Joel had at least some slight factual basis for his beliefs, they were not delusions (even if they were incorrect). Because appellants failed to show that Joel suffered from insane delusions, and because appellants raised no other challenge to Joel's testamentary capacity, the superior court correctly rejected their challenge to the 1997 will.

v. CONCLUSION

The superior court properly found that the facts urged by Iris did not support theories of undue influence or insane delusions. Because the superior court did not err in its findings of fact or in its conclusions of law, we AFFIRM the judgment.

APPENDIX

1) In determining the issue of undue influence, the court has considered numerous factors.

2) The court finds that Connie Parker and Joel Kottke were in a confidential relationship.

3) Connie Parker is not the sole beneficiary of Joel Kottke's June 10, 1997 will Under the will, Connie Parker was to receive Joel Kottke's interest in the Anchorage condominium she co-owned with him, and Iris Enders was to receive Joel Kottke's interest in a piece of Kenai Peninsula property. Under the Trust provisions of the will, Connie Parker also received what essentially amounts to a life estate in Joel Kottke's Wasilla, Alaska property, with the remainder given to two charities.

4) As Trustee and Beneficiary of the Trust set up in Joel Kottke's will, Connie Parker has broad powers, but the powers are not unlimited. There are also obligations. The Court is not willing to conclude that Connie Parker would break her fiduciary duties as Trustee in order to use the trust estate.

5) The court finds that Connie Parker received a life estate in the Trust set up by the June 10, 1997 will, with the residual going to charities.

6) Connie Parker is not young, and the amount left over for charities depends on how long she lives and her health conditions.

7) The court finds that Connie Parker is not the principal beneficiary, but that she is one of the principal beneficiaries of the estate.

8) There is no direct evidence that Connie "Parker participated in the will-making process. She sat in on some, but not all, meetings between Trigg Davis, Esq., the attorney who drafted Joel Kottke's will, and Joel Kott-ke. And she provided some information to Attorney Davis relative to the Anchorage condominium she co-owned with Mr. Kottke and relative to her social security benefits.

9) However, Trigg Davis, Esq., testified that Connie Parker did not participate substantively in the will preparation process. The thoughts as to what his will would provide were Joel Kottke's alone, developed independently by him in collaboration with his attorney, Trigg T. Davis. The intent reflected in the June 10, 1997 will is Joel Kottke's intent. He wanted to take care of Connie Parker and the charities specified. The choice of charities came from Mr. Kott-ke, not Connie Parker. |

10) The court finds that Connie Parker did not participate substantively in the will preparation process, and what little involvement Connie Parker had in the process carries little, if any, weight as to the existence of any undue influence.

11) Joel Kottke obtained independent legal advice in connection with his June 10, 1997 will, That independent advice was thorough. Joel Kottke considered his options, including the option of leaving part of his property to charities, and part to Connie Parker.

12) It took Mr. Kottke a long time to make his will. When he was diagnosed with cancer he contacted an attorney about preparing a new will. Mr. Kottke did not sign any will until over six months after his first meeting with his attorney about the will. The Court finds that there was no haste involved in Mr. Kottke's will-making process.

13) In January 1997, Joel Kottke wrote to his brother, Ralph, and communicated his intent regarding his will. Joel Kottke shared his thoughts on Connie Parker needing to be taken care of, and his beliefs that his property should not pass to his step-children. There was not any secrecy involved in Joel Kottke's will-making process.

14) The court finds that there was a change in attitude by Joel Kottke towards others. The court also finds reasons for that change that have nothing to do with undue influence as follows:

(a) Relationships change over time, with relationships that were important at one time, sometimes fading. Relationships need to be nurtured.
(b) Joel Kottke had a relationship with his siblings, then time and distance came into play. Joel Kottke met with his siblings a total of about a half dozen times in the 1990s.
(c) Joel Kottke and Martha Kottke had a wonderful relationship and a wonderful life. When Martha Kottke was at the center of Joel Kottke's life, her family also took center stage. After Martha Kottke's death, the significance of the relationship between Joel Kottke and Martha Kottke's family diminished.
The relationships faded, and former bonds were weakened and stretched.
(d) Then Joel Kottke got together with Connie Parker. Their relationship started in 1992 to 1998, with a period of courtship, and the relationship developed from there. Joel Kottke and Connie Parker shared common interests and they developed a close, tight, intimate relationship with each other.

15) Based on the testimony presented at trial, the court finds that Connie Parker took care of Joel Kottke in the last months of his life, and that in doing so, she did a good job. This finding is based on the testimony of third-party observers, including Sharon Lind-Charron, Hannah Smith, Dr. Wrigley, and Dr. Webb.

16) The court finds that there was no indication of any physical abuse of Joel Kottke by Connie Parker.

17) Connie Parker was the main and primary person who gave care and comfort to Joel Kottke in the last months of his life. Joel Kottke and Connie Parker shared a life. They were not married, but they were significant others to each other. They were intimately involved in each other's lives.

18) As to the relationship between Martha Kottke's family and Connie Parker, it is clear that:

(a) The family was involved in Joel Kott-ke's life, However, they never took to Connie Parker, based largely on the differences between Martha Kottke and Connie Parker. The real crux is the alienation of affection in the relationship between Connie Parker and Martha Kottke's family. Joel Kottke was right in the middle of things.
(b) The Enders family did not accept Connie Parker, and there is some testimony that Martha Kottke did not like Connie Parker.
(c) The Enders family was outspoken in its animosity towards Connie Parker as early as 1998, with the most favorable testimony from the Enders family being that Connie Parker was "tolerable."
(d) Some of the worst words in the case were spoken by Greg Enders in his testimony, where he described Connie Parker as a "decrepit old woman."
(e) Connie Parker likes to express ideas, she is chatty, and she can be loud.

19) The court also finds that Connie Parker, in response to the Enders' feelings towards her, had some distaste for the Enders family. She therefore put up some obstacles to them.

20) The court finds that there was a change in Joel Kottke's attitudes towards others, but that it was an understandable change since his significant other was in a feud with other family members.

21) The family feud culminated in the events of August 1997. Until August 1997, Martha Kottke's family's assumption was that Joel Kottke's original will was in existence and in full force. This was a reasonable assumption. When Iris Enders found out that Joel Kottke had changed his will, she laid claim to certain property. On August 3, 1997, she "set about to collect items that she thought were her mother's." Iris Enders felt some antagonism, but she failed to appreciate Joel Kottke's point of view. Joel Kottke was dying, but he refused to believe he was dying, as of August 1997.

22) Implicit in Iris Emders' attempts to collect property in August 1997 was the thought that Joel Kottke was going to die, and die soon.

23) The court finds that Robert Dixon's testimony was key. Mr. Dixon testified that Mr. Kottke did not understand and did not like Iris Enders' attempts to collect property. The August 1997 incident evidences a failing relationship.

24) The court further finds that even at the time of Joel Kottke's death, there was a dispute as to who was and was not family, rather than an acceptance that Joel Kottke had many families.

25) The court finds that there was a change in Joel Kottke's plan of disposing of his property. That is, his June 10, 1997 will provides for a different disposition than his 1988 will.

. 26) The court finds that the gifts made in Joel Kottke's June 10, 1997 will are not unnatural or unjust. Petitioners believe they are entitled to some of Joel Kottke's estate, and they have filed an Irrevocable Representation by Petitioners, in which they would purport to grant Connie Parker the condominium, a car transferred before Joel Kott-ke's death, and bank accounts. But under petitioner's Irrevocable Representation, Connie Parker would have no interest in Joel Kottke's Wasilla house.

27) The court appreciates Martha's family's position. However, Martha Kottke left everything to Joel Kottke in her 1988 will. In his June 1997 will he left essentially a life estate to Connie Parker, along with his interest in the condominium. The court finds that such a disposition is not unnatural or unjust.

28) Moreover, the court finds that Joel Kottke's gift of the residual to charity is not unjust or unnatural.

29) The court further finds that Joel Kott-ke's omission of siblings and step-children from his will is not unnatural or unjust. After careful deliberation, Joel Kottke's decision was that his siblings did not need his money, and he decided he wanted to use his money in a different way. Given the court's finding that Joel Kottke was in the middle of a strained relationship between Martha Kott-ke's family and his chosen companion, Connie Parker, it was not unnatural or unjust for him to make the choices he did with respect to his step-children.

30) The court finds that Joel Kottke was a quiet man who did not like confrontation, and would step away from it when he could.

31) However, the court also finds that although Mr. Kottke was a quiet man, he was an independent man, with his own ideas, his own thoughts, and his own lifestyle He lived the life he wanted to live.

32) As evidence of this, Mr. Kottke chose charities that were not in the mainstream. Such choice reflects a person with strong beliefs.

33) Mr. Kottke was competent. All third party witnesses in this case testified that he was possessed of his faculties. The court finds it particularly telling that Mr. Kottke had a sense of humor right up to the end of his life.

34) Mr. Kottke was not a vulnerable man. Even at the end of his life, with a lot of pressure being applied to him to do something different, he did not yield to that pressure. Martha Kottke's family questioned his competency, and he resisted it.

35) Joel Kottke was not isolated. During the period in dispute in this case, he had many friends, such as Robert Dixon, Roxanne Olson, and Linda Plettner. He had a strong support network.

36) In making the decisions he made for his property, Mr. Kottke engaged in a deliberate process, reviewed and looked at competing interests carefully, and made the decisions he did. He wanted to take care of Connie Parker, and he wanted to leave a legacy.

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . Alaska R. Civ. P. 52(a), see also Paskvan v. Mesich, 455 P.2d 229, 232 (Alaska 1969) (stating that under Civil Rule 52(a), "we may not set aside ... findings unless we determine them to be clearly erroneous" (footnote omitted)).

      . Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978) (citations and internal quotation marks omitted). .

      . See id.

      . Judge Tan's findings of fact relevant to this issue are appended to this opinion.

      . See Guin, 591 P.2d at 1284 n. 6.

      . See generally In re Estate of Kesler, 702 P.2d 86, 88 (Utah 1985) (suggesting that insane delusions can result in testamentary incapacity); 79 Am. Jur.2d Wills § 87, at 339-40 (1975) ("A will which is the product of an insane delusion ... is invalid for want of testamentary capacity ...") (footnote omitted).

      . 455 P.2d 229, 234 (Alaska 1969).

      . See id. (citation omitted).

      . See Estate of Kesler, 702 P.2d at 88.

      . This was precisely the approach used by the Utah Supreme Court in Estate of Kesler, 702 P.2d at 88. See also In re Estate of Meagher, 60 Wash.2d 691, 375 P.2d 148, 149 (1962); 79 Am.Jur.2d Wills § 88, at 341-42 (1975).

      . Dillon v. Phillips, 92 Or.App. 65, 756 P.2d 1278, 1279 (1988) (citation omitted).

      . See id. at 1279; Estate of Meagher, 375 P.2d at 149.

      . 79 Am.Jur2d Wills § 88, at 341; see also Estate of Kesler, 702 P.2d at 88-89 ("[There was substantial evidence adduced at trial ... to support the jury verdict that Mrs. Kesler suffered from insane delusions that materially affected the contested will and trust, and thus was mentally incompetent at the time she made the will and trust.").

      . See Estate of Kesler, 702 P.2d at 88.

      . This Appendix consists of the findings of fact made by the superior court relevant to the issue of undue influence and in response to arguments raised by Iris Enders on that issue. The findings have been edited to conform to the appellate court rules and for technical form, but not for substantive content.