author: PARK, District Judge. GOLDEN, Justice,

text:
    2003 WY 153
    Timothy Daniel MOORE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-250.
    Supreme Court of Wyoming.
    Nov. 25, 2003.

      Representing Appellant: Kenneth M. Ko-ski, State Public Defender; Donna D. Do-monkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Daniel M. Fetsco, Assistant Attorney General. Argument by Mr. Fetsco.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and PARK, D.J.
   PARK, District Judge.

[¶ 1] The Appellant, Timothy Daniel Moore (Moore), was originally charged with one count of aggravated burglary, two counts of aggravated assault, two counts of aggravated kidnapping, and one count of blackmail. A jury found him guilty of one count of aggravated burglary, two counts of battery, two counts of kidnapping, and one count of blackmail. He was sentenced to 180 days of imprisonment on the battery convictions, concurrent; five to ten years on the aggravated burglary, consecutive to the battery; five to ten years on the kidnappings, concurrent to each other but consecutive to the aggravated burglary; and two to five years on the blackmail, concurrent to the kidnapping convictions but consecutive to the aggravated burglary conviction. In this appeal, Moore presents questions of insufficient evidence, an inconsistent verdict, improperly admitted misconduct and victim impact evidence, and prosecutorial misconduct.

[¶ 2] We affirm.

ISSUES
1. Was there sufficient evidence to support the two kidnapping convictions?
2. Does a conviction of the lesser charge of battery, instead of aggravated assault, result in an inconsistent jury verdict?
3. Did the trial court err in allowing evidence of previous assaults by Moore on one of the victims?
4. Did testimony of one of the witnesses to the events in question constitute impermissible victim impact testimony?
5. Did the fact or manner of the prosecutor’s argument regarding the uncharged misconduct evidence constitute prosecuto-rial misconduct?

FACTS

[¶ 3] Moore and Ms. Terri James (Ms. James) had a fifteen-year relationship and had four children: Jennifer, Janeil, Jesse, and Janitta. The Moore/James relationship was rocky at best. Moore had been abusive and threatening to Ms. James and, at times, Ms. James responded by attacking Moore. In July 2001, Moore’s brother, David Brian Moore (Brian), moved to Rawlins to look for work and began to live in the same residence with the parties and their children.

[¶ 4] By September 2001, the Moore/ James relationship had deteriorated to the point that Ms. James asked Moore to leave, so he went to Texas with his nephew. During his absence, Ms. James and Brian leased another house and moved, abandoning the trailer where all parties had previously resided. The absent Moore was not informed of the move or of the new address. Moore returned to Rawlins in early October.

[¶ 5] After returning to Rawlins, Moore was able to locate Ms. James and Brian and came to their house on the evening of October 14, 2001. A Mr. Eckstrom accompanied Moore. Eckstrom was charged with similar crimes, but he was acquitted by the same jury that convicted Moore. Moore forced his way into the house, shoved Brian, threatened him, hit him with a handgun, and taped his hands together with duct tape. Moore’s 14-year-old daughter, Jennifer, testified that Moore beat Brian for several hours. Moore also took Brian’s wallet and gave Eckstrom some money from it. At one point, Brian made an unsuccessful attempt to escape by trying to jump through a window. Moore then threw Brian on a couch and ordered him not to make any further escape attempts.

[¶ 6] Ms. James was gone when Moore entered the house, because she worked nightshifts at the Wyoming State Penitentiary. She returned home from work early the following morning. Moore attacked her as she entered the house, hit her in the face with a handgun, and threatened her and the children. Eventually, Moore tired, the beatings subsided, and everyone retired to rest from the ordeal. During the next three days, Moore, Ms. James, and Brian, together and individually, left the residence. Brian left to renew a job search, to shop, and to feed a dog that had been left at the former residence. Moore emphasizes that Brian was present when a Wyoming State trooper gave Moore a citation for the accident in which he was involved while returning from Texas, and that he gave no sign to the trooper that he was being held against his will. Moore also points out that Ms. James returned to work each evening during the alleged confinement, and that Ms. James, her brother (who was unaware of the situation), and Moore went to the Carbon County Courthouse to obtain a vehicle title.

[¶ 7] Both Brian and Ms. James testified that they did not report the kidnappings because of their fear for the safety of the children and each other. Moore had threatened them, reminding them that he had a gun. Eventually, Ms. James told her brother, who also worked at the prison with her. Her brother insisted that Ms. James report the matter, and he drove her to the Rawlins police station. As a result of this report, various law enforcement officers went to the residence, questioned all participants, and eventually arrested Moore.

DISCUSSION

I. INSUFFICIENT EVIDENCE

[¶ 8] In his first issue, Moore contends that the evidence was insufficient to convict him of kidnapping Ms. James and Brian. He points out that the victims were, at various times, out in the community and therefore not confined; and that in post-trial motions, the prosecutor conceded that the victims were not confined during the entire time frame charged in the Information, viz October 14 through October 17, 2001.

[¶ 9] When reviewing an appeal based on sufficiency of the evidence, we view the evidence, and any reasonable inferences based thereon, in a light most favorable to the State. Allen v. State, 2002 WY 48, ¶ 58, 43 P.3d 551, ¶ 58 (Wyo.2002). In such a review, we do not substitute our judgment for that of the jury; instead, we determine whether reasonable and rational jurors could have found that the essential elements of the crime were proven beyond a reasonable doubt. Id. Moore’s contention is that the evidence was insufficient to support a finding that he unlawfully confined the victims within the meaning of Wyo. Stat. Ann. § 6-2-201 (LexisNexis 2003). This statute provides that:

(a) A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business or from the vicinity where he was at the time of the removal, or if he unlawfully confines another person, with the intent to:
(iii) Inflict bodily injury on or to terrorize the victim or another.

[¶ 10] Kidnapping requires confinement with the intent to inflict bodily injury or terrorize the victim or another. Doud v. State, 845 P.2d 402, 406 (Wyo.1993). Moore’s confinement of Brian and Ms. James, with the intent to either inflict bodily injury or to terrorize them, is sufficient for a conviction under the statute. Subsection (a)(iii) uses both “inflict bodily injury” and “terrorize” as the basis for a charge of kidnapping. Moore has not raised any alternative charging problem, so this Court will not discuss it as an issue. Sufficient evidence existed for the jury to find that Moore unlawfully confined the victims within the meaning of Wyo. Stat. Ann. § 6 — 2—201(a) (iii). There is evidence that Brian was terrorized with beatings and threats while being held against his will. There is also evidence that Ms. James was threatened, ordered to keep quiet or others at the residence would be harmed, not allowed free run of the house, and not allowed to check on her children.

[¶ 11] Moore argues that the verdict is not proper because there is no evidence that the confinement extended for the entire period charged in the Information. Moore provides no support or cogent authority for the proposition that he should have been acquitted because the victims may not have been confined for the entire time from October 14 through October 17. Although this same argument was presented to the trial court, it was as lacking in authority and support then as it is on appeal. We will not consider nonjurisdictional issues unless they have been presented with at least a minimum effort to provide a cogent legal argument. Bailey v. State, 12 P.3d 173, 178 (Wyo.2000).

[¶ 12] Further, this argument is not supported by logic. Moore’s contention, were it to prevail, would force a jury to acquit him even if the jury were to find that the victims were confined for most, but not all, of the times alleged in the Information. Under the constitutional requirements and the Wyoming Rules of Criminal Procedure, an information is sufficient if it: 1) contains the elements of the offense charged; 2) fairly informs a defendant of the charge against which he must defend; and 3) enables a defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. Estrada-Sanchez v. State, 2003 WY 45, ¶ 13, 66 P.3d 703, ¶ 13 (Wyo.2003). The Information in this case alleged that the allegations of kidnapping occurred in the time period of October 14 through October 17. This does not require that the State prove that the confinement was for this entire period, only that the victims were confined during some part of this time. No specific time period is required to satisfy the element of confinement. Doud, 845 P.2d at 406. The record supports the jury’s finding that Ms. James and Brian were confined.

II. THE JURY VERDICT WAS INCONSISTENT

[¶ 13] The jury convicted Moore of the charge of aggravated burglary; it acquitted Moore of the charges of aggravated assault, Wyo. Stat. Ann. § 6-2-502 (LexisNexis 2003), but found him guilty of the lesser misdemeanor charges of battery, Wyo. Stat. Ann. § 6-2-501 (LexisNexis 2003).

[¶ 14] Wyo. Stat. Ann. § 6-3-301 (Lexis-Nexis) provides that “[a] person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein.” Pursuant to § 6-3-301(c), a person is guilty of aggravated burglary, if, in the course of committing the crime of burglary, the person:

(i) Is or becomes armed with or uses a deadly weapon or a simulated deadly weapon;
(ii) Knowingly or recklessly inflicts bodily injury on anyone; or
(iii) Attempts to inflict bodily injury on anyone.

[¶ 15] The State’s theory of the charge of aggravated burglary was that Moore, while armed, entered into the James/Brian residence with the intent to feloniously assault Ms. James and Brian. Moore argues that since the jury did not convict him of the felony, but instead convicted him of the lesser misdemeanor charge of battery, there is no basis for the burglary conviction. Moore’s contention is that since the jury did not believe he committed felonious assault, it could not have convicted him of entering into a residence with the intent to commit a felony.

[¶ 16] This Court has previously noted several times that consistency in a jury’s verdict is not necessary. Hankinson v. State, 2002 WY 86, ¶ 11, 47 P.3d 623, ¶ 11 (Wyo.2002). In Hankinson, the Court has specifically adopted the logic of Professor Wright:

In a case in which there are multiple counts, each one is treated as if it were a separate indictment. The verdict on the various counts need not be consistent. An acquittal on one count does not prevent conviction on another, even though the evidence is the same and defendant could not have committed one crime without committing both, so long as the evidence is sufficient to support conviction on the count on which a guilty verdict was reached.

[¶ 17] The jury only had to determine that Moore entered the residence with the intent to commit a felony, in this case, aggravated assault. It was not necessary that they find that an aggravated assault actually occurred. The evidence is sufficient to support the jury’s verdict that he had the intent to commit the assault, and the evidence is equally sufficient to support the finding as to the lesser charge of battery. The verdict is not inconsistent.

III. UNCHARGED MISCONDUCT EVIDENCE

[¶ 18] The disputed evidence consisted of testimony about the history of abusive behavior of Moore toward Ms. James. Ms. James testified that for about six years preceding the events in question, Moore’s relationship with her had become increasingly violent. There was testimony that Moore had a confrontation with Ms. James in a bar, following which she moved to Montana for a period to get away from him. She testified that Moore hit her “probably every week;” that the couple had a fight in a restaurant in Rawlins, after which Moore pulled her into a ear, drove her out of town, hit and kicked her, and threatened to bury her. There was additional similar testimony of threats and abuse. The trial court conducted the proper hearings and admitted the evidence under W.R.E. 404(b).

[¶ 19] The structure and purpose of W.R.E. 404 is thoroughly discussed in several cases, most recently Gleason v. State, 2002 WY 161, ¶ 16, 57 P.3d 332, ¶ 16 (Wyo.2002). W.R.E. 404(b) maintains the general principle that character evidence may not be admitted to prove conduct remains intact in the first sentence. Id. But “[e]vidence of other crimes, wrongs, or acts,” which logically may or may not be character evidence, is admissible to prove things other than character. Consequently, the exceptions to the rule found in subsection (a) of the rule are not of the same nature as those found in subsection (b). The former allows evidence of character to prove conduct; the latter allows evidence of specific instances of conduct to prove “consequential facts,” such as intent or knowledge. Gleason, ¶ 17.

[¶ 20] In Gleason, this Court established a protocol that trial courts were to follow both to determine whether the prior bad acts might properly be presented to the jury and to provide a record so that this Court could determine whether the trial judges had properly exercised their discretion. Gleason, ¶ 27. Moore concedes that the trial court “scrupulously” followed the proper procedures in determining whether the proffered bad acts could properly be admitted; therefore, the procedures established in Gleason will not be set forth in this opinion. Moore’s contention is that the trial court improperly admitted the evidence as to certain acts involving him and Ms. James to prove an essential element of the crime, specifically, intent.

[¶ 21] Initially, Moore complains that the evidence presented by Ms. James was not corroborated. This is an issue that goes to the weight of the evidence, not to its admissibility. The general rule in criminal cases when the issue of the sufficiency of the evidence is raised on appeal is well settled. The appellate courts view the evidence in the light most favorable to the prosecution, and all reasonable inferences are resolved in favor of the State, leaving out of consideration any evidence in conflict therewith. Ostrowski v. State, 665 P.2d 471, 481 (Wyo.1983). The Court will not second-guess the jury decision as to whether these acts occurred.

[¶ 22] The trial court ruled that the evidence was admissible to establish a course of conduct between the parties and to show intent. Additionally, the court found that the evidence could be used by the jury to evaluate the credibility of Ms. James, an apparent reference to whether she was believable when she testified that she did not report the confinement because of her fear of Moore. Decisions regarding the admission of evidence are within the discretion of the trial court, and we will not disturb them absent an abuse of that discretion. Wilson v. State, 14 P.3d 912, 918 (Wyo.2000). When evidence is offered under the provisions of W.R.E. 404(b), there is no abuse of discretion so long as there is a legitimate basis for the trial court’s ruling. Id.

[¶ 23] W.R.E. 404(b) provides that evidence of other crimes, wrongs, or acts may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Admissibility under W.R.E. 404(b) is not limited to the purposes set forth in the rule, and we have adopted a liberal approach toward admitting uncharged misconduct evidence. Gleason, ¶ 18. We have held that evidence of prior similar assaults is admissible to show intent. Wilson, 14 P.3d at 918. Evidence of prior assaults was also relevant to support the credibility and corroborate the testimony of the victims. The evidence was admissible to show that Moore intended to control the actions of Ms. James and Brian, and that his past conduct established that he was capable of carrying out the threats that he made to his victims in order to keep them from escaping. We hold that no abuse of the district court’s discretion occurred when the district court determined that the probative value of the prior bad acts evidence admitted here was not outweighed by the danger of unfair prejudice.

IV. IMPROPER VICTIM IMPACT TESTIMONY

[¶ 24] Moore argues that victim impact testimony was improperly allowed during the evidentiary part of the trial. Specifically, the 14-year-old daughter of Moore and Ms. James, Jennifer James, testified that she was “really scared” during the events in question and that her fear was such that she “kept throwing up.” During closing argument, the prosecutor stated: “I would submit to terrorize someone is to make them afraid. And consider the testimony of Jennifer James, who witnessed these incidents. She was so upset, so afraid, she threw up, and she was a witness. How do you think the victims felt?” During rebuttal, the prosecutor again commented on Jennifer’s fear. The defense counsel did not object to the testimony or the prosecutor’s comments.

[¶ 25] Because there was no objection, Moore must demonstrate that the presentation of the statements of the witness were plain error. “Plain error exists when 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him.” Mazurek v. State, 10 P.3d 531, 535 (Wyo.2000) (citing Yetter v. State, 987 P.2d 666, 668 (Wyo.1999)).

[¶ 26] We have applied the following principles to the consideration of the admissibility of victim impact evidence. The evidence must be relevant to be admissible. W.R.E. 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” W.R.E. 401. In criminal cases, “[e]vidence is always relevant if it tends to prove or disprove one of the elements of the crime charged.” Gomez v. State, 2003 WY 58, ¶ 6, 68 P.3d 1177, ¶ 6 (Wyo.2003) (quoting Geiger v. State, 859 P.2d 665, 667 (Wyo.1993)). Relevant evidence may be excluded, however, if “its probative value is substantially outweighed by the danger of unfair prejudice.” W.R.E. 403.

[¶ 27] Testimony of the victims of a crime showing how it affected their lives after the crime is irrelevant with respect to the issues before the jury. Justice v. State, 775 P.2d 1002, 1010-11 (Wyo.1989). In the instant ease, Jennifer’s testimony was relevant. It helped to show Moore’s control over the victims thus proving an element of the kidnapping. The evidence was not offered for nor did it go to establish the impact on this young girl’s life after the crime. Further, Moore cannot demonstrate any violation of a clear and unequivocal rule of law, that he was denied a substantial right, or that he was materially prejudiced by the presentation of this testimony. The testimony was properly received, and no plain error occurred.

V. PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT

[¶ 28] Finally, Moore contends that the prosecutor committed misconduct by making improper argument during closing. Specifically, Moore argues that it was improper for the prosecutor to argue the victim impact statements just discussed. Moore also asserts that it was improper for the prosecutor to state or at least imply that Moore’s actions were gauged to force Ms. James to give him money when, in fact, he had a substantial sum of money in his possession at the time of his arrest. Finally, Moore insists that it was improper for the prosecution to argue to the jury that he was “undercharged” as a result of his actions. Moore did not object to any of these arguments, so this issue must also be reviewed under a plain error standard.

[¶ 29] Allegations of prosecuto-rial misconduct are reviewed by referring to the entire record to determine whether a defendant’s case has been so prejudiced that he has been denied a fair trial. Dysthe v. State, 2003 WY 20, ¶ 22, 63 P.3d 875, ¶ 22 (Wyo.2003). Whether or not any comment within a closing argument is improper is measured in the context of the entire argument. Id. Reversal is warranted only if a reasonable probability exists that without the error the appellant may have enjoyed a more favorable verdict. Id. The defendant has the burden of proof to prove this issue. Id.

[¶ 30] Closing arguments must be based upon the evidence submitted to the jury. Trujillo v. State, 2002 WY 51, ¶ 5, n. 2, 44 P.3d 22, ¶ 5, n. 2 (Wyo.2002). A closing argument provides to counsel ways of viewing the significance of the evidence. Id. Both prosecutors and defense counsel may review the evidence and suggest reasonable inferences based upon this evidence to the jury. Id. This Court recently adopted the broad guidelines found in I A.B.A., Standards for Criminal Justice 3-5.8 at 3.87 to 3.88 (2d ed.1980):

(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.

Dysthe, ¶ 24 (citing Wilks v. State, 2002 WY 100, ¶ 27, 49 P.3d 975 [¶ 27] (Wyo.2002)).

[¶ 31] The victim impact statement argument has already been considered and rejected. The prosecutor did indicate that Moore was motivated by money, and the record is such that this is a reasonable inference. However, after objection was made in chambers, the prosecutor returned to the courtroom and informed the jury that Moore had between $1800 and $2000 in cash on his person when he was arrested. None of this is contained in the record, and the significance of the prosecutor’s argument is minimal and does not rise to the level of plain error.

[¶ 32] Last, the prosecutor did argue that Moore was undercharged. This was in response to argument made by defense counsel that the charges were not reasonable in light of the circumstances and that Moore was overcharged. It was appropriate for the prosecutor to respond to the defense’s argument. Since Moore opened the door and raised this issue, he cannot now be heard to object when the State properly responds. Nothing in the closing argument of the prosecutor violated the standards set by this Court. Prosecutorial misconduct was not present during closing argument, and nothing in these comments can be said to have adversely affected Moore’s right to a fair trial.

[¶ 33] Affirmed.

GOLDEN, Justice,

specially concurring.

[¶ 34] I write separately to comment on Moore’s complaint that the prosecutor erred when in rebuttal closing he told the jury that the prosecutor had undercharged Moore, that Moore’s threatening Brian Moore with death using the gun was an aggravated assault that wasn’t charged, and that Moore’s confining the four children could have been charged as kidnapping. Moore acknowledges that trial defense counsel did not object to the prosecutor’s argument and, therefore, he must demonstrate plain error on appeal. Moore contends that at a minimum the prosecutor’s “undercharged” argument violates one of the guidelines found in I A.B.A. Standards for Criminal Justice 3-5.8 at 3.87 to 3.88 (2d ed.1980) as referred to in Dysthe v. State, 2003 WY 20, ¶ 24, 63 P.3d 875, 885 (Wyo.2003) (citing Wilks v. State, 2002 WY 100, ¶ 27, 49 P.3d 975, 986-87 (Wyo.2002)):

(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.

Moore claims the prosecutor’s “undercharged” argument injected into the trial issues that were not in evidence and were broader than the charges the jury was to decide. Moore has not cited, however, any specific case directly on point.

[¶ 35] Responding to Moore’s complaint, the State tells us the “rest of the story,” namely, that the prosecutor’s “undercharged” comment was a reasonable antidote to trial defense counsel’s closing argument statement to the jury that Moore “has been overcharged in this situation and that his conduct does not rise to the level of those six felony charges.” The State has not cited, however, any specific case directly on point.

[¶ 36] The Court holds that because Moore “opened the door,” the prosecutor’s antidote was proper. I respectfully disagree. Trial defense counsel’s “overcharged” comment properly directs the jury’s attention to that conduct of Moore’s which the prosecution has used to support the official charges filed against him. In contrast, the prosecutor’s “undercharged” comment improperly diverts the jury’s attention to conduct of Moore’s that the prosecution consciously chose not to use as. support for additional charges. I would hold that the prosecutor’s “undercharged” comments stepped 'over the line and were not a reasonable antidote; but I would further hold that Moore has not proved that a substantial right has been denied him and, as a result, he has been materially prejudiced. By reference to the entire record, I am not convinced that the prosecutor’s comments had a deleterious effect on the jury’s verdict.


source: Caselaw Access Project

author: FABE, Chief Justice.

license: Public Domain

text:
    Julia SAMANIEGO, Appellant, v. CITY OF KODIAK, Kodiak Police Department, Sergeant William D. Marsh, and Officer Milton Bohac, Appellees.
    No. S-10378.
    Supreme Court of Alaska.
    Nov. 14, 2003.
    As Amended on Denial of Rehearing Dec. 12, 2003.

      Jeffrey A. Friedman and Kenneth R. Friedman, Friedman, Rubin & White, Anchorage, for Appellant.
    Frank S. Koziol, Law Office of Frank S. Koziol, Anchorage, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

Julia Samaniego sued the City of Kodiak, Kodiak Police Sergeant William D. Marsh, and Officer Milton Bohac, alleging that Sergeant Marsh and Officer Bohac used excessive force in arresting her. At trial, one of Kodiak’s psychiatric experts, Dr. Stephen M. Raffle, was permitted to testify about his diagnosis of Samaniego. The superior court prohibited Samaniego from questioning Sergeant Marsh about a possible bias stemming from a settled employment dispute with the City of Kodiak. Samaniego appeals from the judgment entered on the jury verdict in favor of Kodiak, Sergeant Marsh, and Officer Bo-hac, claiming that the trial court erred in its evidentiary rulings concerning Dr. Raffle’s testimony and Sergeant Marsh’s settled employment dispute. We affirm the trial court’s evidentiary rulings.

II. FACTS AND PROCEEDINGS

A. Factual History

This appeal arises out of an excessive force claim brought by Julia Samaniego against the City of Kodiak, Kodiak Police Sergeant William Marsh, and Officer Milton Bohac. In April 1994 Marsh responded as back-up to a traffic stop conducted by Officer Bohac and two Immigration and Naturalization Service (INS) agents. Bohac and the INS agents were investigating whether the individuals in the car had documentation proving that they were in the United States legally. While the INS agents and Bohac questioned the individuals, Julia Samaniego drove up and stopped at the scene because she knew the individuals under investigation. She was driving with four of her children and a friend. One of the INS officers approached Samanie-go’s car and asked her for identification, which Samaniego did not have. Sergeant Marsh followed the INS agent to Samanie-go’s car. At this point, Sergeant Marsh’s and Samaniego’s accounts of what happened diverge.

According to Samaniego, Sergeant Marsh told her “get out of the car or I do it for you” and proceeded to pull her by the arm out of the car. According to Sergeant Marsh, he asked Samaniego to step out of her car and offered his arm to her to help her. Samanie-go exited the car and had a conversation with Marsh. While they were talking, Martha Samaniego, Samaniego’s daughter, started to walk away. It is uncontested that Marsh grabbed Martha. Samaniego then pulled Martha behind her and stood between Martha and Sergeant Marsh. According to Sa-maniego, Marsh tried to grab her hands, told her she was under arrest, and then shocked her repeatedly with a stun gun. Sergeant Marsh tells a different story. According to Marsh, Julia Samaniego repeatedly hit him in the chest after he grabbed Martha. He alleges that Samaniego resisted arrest and he employed restraining techniques on her so that he could handcuff her. Also according to Sergeant Marsh, Samaniego grabbed, squeezed, and pulled his testicles. Samanie-go maintains that she never grabbed Sergeant Marsh during the incident.

B. Procedural History

Samaniego sued Officer Bohac, Sergeant Marsh, the Kodiak Police Department, and the City of Kodiak, alleging that the officers used excessive force when they arrested her. In their answer the defendants alleged, among other defenses, that the force used to arrest Samaniego was justified. Sergeant Marsh counterclaimed that Samaniego committed an assault and battery on him when she allegedly grabbed and pulled his testi-cíes. He also counterclaimed for intentional infliction of emotional distress.

The defendants moved for summary judgment on a qualified immunity theory and Superior Court Judge Donald D. Hopwood granted their motion. This court, however, reversed Judge Hopwood’s ruling and remanded the ease for trial. We reasoned that the superior court did not portray the facts in the light most favorable to Samanie-go and that the court based its analysis of the officers’ conduct upon the officers’ subjective, rather than objective, beliefs as to the reasonableness of the force used. On remand, the superior court consolidated this case with Martha Samaniego v. City of Kodiak because the cases involve common issues of law and fact.

Before trial, Samaniego filed a motion in limine to prevent and limit the use at trial of psychiatric and psychological testing results that Kodiak wanted to introduce. The newly assigned superior court judge, Judge Sharon L. Gleason, denied the motion. Samaniego also filed a request to question Marsh at trial about possible emotional distress or bias stemming from settlement of an employment dispute with the City of Kodiak. The trial court denied this request.

The case was tried in July and August 2001, and the jury returned a verdict in favor of the City of Kodiak, Sergeant Marsh, and Officer Bohac. The court entered final judgment against Samaniego for $82,475.99 in attorney’s fees and costs. Samaniego appeals the superior court’s pretrial evidentiary determinations.

III. STANDARD OF REVIEW

We review a trial court’s evidentia-ry decisions for abuse of discretion. “We will find that a trial court abused its discretion only when we are left with the definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling.”

IV. DISCUSSION

A. The Trial Court Did Not Err in Declining To Apply the Daubert/Coon Reliability Factors to Dr. Raffle’s Testimony.

Before trial, Samaniego filed a motion in limine seeking to limit the proposed psychological and psychiatric testimony that defendants wished to introduce at trial to show that Samaniego was malingering with regard to the effects that she allegedly experienced from the April 1994 incident. Samaniego argued that under the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., our decision in State v. Coon, and Alaska Rule of Evidence 702, the City of Kodiak had not demonstrated the reliability of Dr. Stephen M. Raffle’s expert testimony and that it should therefore be excluded. Specifically, she asserted that Dr. Raffle should not be able to present evidence of medical or psychiatric diagnoses.

Rejecting Samaniego’s Daubert/Coon challenge to Dr. Raffle’s testimony, the trial court took judicial notice “that psychological and psychiatric evaluations, including clinical interviews ... are long-recognized techniques that have been empirically tested, subject[ed] to extensive peer review and publication, and generally accepted in the psychological community.” Consequently, the court permitted Dr. Raffle to testify, subject to appropriate objections at trial, as to whether Samaniego suffers from a personality disorder and to the cause of her depression and her loss of self-esteem.

On appeal, Samaniego argues that the trial court erred in admitting Dr. Raffle’s testimony because Kodiak had not established its reliability. Samaniego asserts that Kodiak should have subjected Raffle’s testimony to the four reliability factors outlined in Daubert and mentioned by this court in Coon. Samaniego concludes that without proof of reliability, the trial court should have excluded Dr. Raffle’s testimony under Alaska Rule of Evidence 702. Before Dr. Raffle testified, Samaniego made a standing objection to Dr. Raffle’s testimony on this basis.

Dr. Raffle is a psychiatrist who specializes in forensic psychiatry. He graduated from the University of Chicago medical school and has treated patients for thirty years. He has testified in civil and criminal proceedings. Dr. Raffle conducted two clinical interviews with Samaniego, one in 1997 and the other in 2001. The defense offered Dr. Raffle as an expert in psychiatry without objection from Samaniego. The court accepted Dr. Raffle as an expert.

In State v. Coon, we adopted the Daubert standard to determine the admissibility of scientific evidence. Daubert requires trial courts to determine “that scientific evidence is both relevant and reliable.” We noted that the factors identified in Dau-bert provide useful guidance in assessing whether proffered scientific evidence is relevant and reliable. These factors are:

(1) whether the proffered scientific theory or technique can be (and has been) empirically tested ...; (2) whether the theory or technique has been subject to. peer review and publication; (3) whether the known or potential error rate of the theory or technique is acceptable, and whether the existence and maintenance of standards controls the technique’s operation; and (4) whether the theory or technique has attained general acceptance.[]

These factors are flexible, and as the United States Supreme Court has noted, they “may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” The Court concluded that “we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Dau-bert.” In the same vein, we noted in Coon that trial courts may take judicial notice of the admissibility of expert testimony when “an area of expertise is well-known and has been fully considered by the courts.”

Psychiatric testimony need not be subjected to analysis under the Coon factors when the testimony is simply a diagnosis stemming from a typical psychiatric examination. A bare claim that psychiatric evidence is unreliable does not subject forensic psychiatry to a mini-trial in every case. We have repeatedly recognized the validity of independent psychological and psychiatric exams and forensic psychological and psychiatric exams in civil and criminal contexts. Additionally, Alaska’s statutes and court rules recognize the legitimacy of this type of testimony.

It was not an abuse of discretion for the trial court to take judicial notice of the admissibility of Dr. Raffle’s psychiatric testimony. Because the DaubeH/Coon factors are not mandatory, and because we have endorsed the trial court’s ability to take judicial notice of the admissibility of expert testimony in well-known areas of expertise, we affirm the trial court’s decision to admit Dr. Raffle’s testimony concerning his diagnosis of Samaniego.

B. The Trial Court Did Not Err in Admitting Dr. Raffle’s Testimony that Samaniego Was Malingering.

Before trial, Samaniego filed a motion in limine seeking to limit Dr. Raffle’s testimony, arguing that he should not be permitted to testify that Samaniego feigned, falsified, or exaggerated her symptoms. Sa-maniego contended that Raffle’s testimony to that effect amounted to an attack on her credibility. She argued that under Alaska law, expert witnesses may not give opinions as to whether a witness is being honest. Samaniego concluded that the court “should exclude any and all evidence from expert witnesses that states or suggests that [her] statements are false or exaggerations.” The superior court partially denied Samaniego’s motion. Judge Gleason ruled that Dr. Raffle could testify “as to whether he believes Mrs. Samaniego has accurately described to him her mental health status and her symptoms.” However, the trial judge proceeded to prohibit Dr. Raffle from testifying about any party’s credibility regarding the events of April 1994. The trial court explicitly stated that the parameters of the ruling would have to be further delineated with specific objections to specific questions at trial: “The plaintiffs can raise objections to specific questions in this regard at trial as warranted.”

Samaniego renews her objections to Dr. Raffle’s testimony on appeal. In response, the City of Kodiak argues that Dr. Raffle’s attack on Samaniego’s credibility came as a diagnosis of malingering. “To malinger is ‘to pretend to be ill or otherwise physically or mentally incapacitated so as to avoid duty or work’ or ‘to deliberately induce, protract, or exaggerate actual illness or other incapacity so as to avoid duty or work.’ ”

We conclude that Dr. Raffle testified within the bounds of the trial court’s order when he gave his opinion that Samaniego was malingering. Dr. Raffle’s diagnosis of malingering stemmed in part from his analysis of conversion disorders that Samaniego allegedly experienced after her arrest in April 1994. After the arrest, Samaniego complained of spells that involved disorientation and fluctuating consciousness. Dr. Raffle gave the opinion that the first spell suffered by Sa-maniego was authentic. However, he stated his belief that Samaniego fabricated all subsequent spells, noting that the symptoms were different and that Samaniego appeared to have control over the later spells, a trait which is inconsistent with a conversion disorder. Specifically, Dr. Raffle testified:

At a later time, she has a series of symptoms which do not resemble the first [episode]. They’re marked with a rather sudden onset of impaired consciousness, staring, tearfulness, ... all of which lasts for a minute or two, abruptly subsides and then her consciousness is clear. There’s no paralysis, there’s no numbing as [there] was in the first incident, there’s no confusion afterwards. In the subsequent events, she is able to control their onset, as she says, by withdrawing from certain stimuli, certain external events.

Dr. Raffle gave the opinion that Samaniego intentionally faked these later lapses in consciousness. He testified that all neurological and psychological explanations for this behavior had been ruled out, leaving him to conclude that Samaniego was malingering.

Although this testimony was appropriately within the scope of the trial court’s ruling, other aspects of Dr. Raffle’s testimony were less so. Dr. Raffle also testified at some length about inconsistencies in Samaniego’s recounting of the history of the arrest. He gave the opinion, for example, that “[h]er story about touching Officer Marsh changes over time. In the criminal court ... she swore under oath that she hadn’t touched Officer Marsh. In my re-exam, she says [she did push him].” Similarly, Dr. Raffle gave an opinion about Samaniego’s truthfulness concerning the bruises she received from Officer Marsh’s stun gun. Dr. Raffle testified that although Samaniego told him that the bruises remained for over six months, “[a]s a physician, I know that bruises resolve in two weeks.” This testimony was inadmissible under the trial court’s ruling because it reached the validity of Samaniego’s story regarding the facts of her arrest. The superior court’s ruling concerning Dr. Raffle’s testimony explicitly prohibited testimony about any party’s credibility with regard to these events. Yet despite Judge Gleason’s invitation to “raise objections to specific questions ... at trial as warranted,” Saman-iego did not object to this testimony as beyond the scope of the court’s ruling at trial, nor did Samaniego move to strike the testimony.

We conclude that Judge Gleason’s ruling was appropriate. It drew the line in the proper place- — Dr. Raffle could testify as to whether he believed that Samaniego accurately described her mental health status and symptoms to him but could not testify about any party’s credibility regarding the arrest. The ruling left it up to Samaniego to object at trial to specific questions that went beyond the limits of the ruling. Samaniego did not object, and therefore failed to preserve the issue for appeal. We hold that the superior court did not err in its ruling on the scope of Dr. Raffle’s testimony.

C. The Trial Court Did Not Err in Excluding Testimony of Sergeant Marsh’s Alleged Bias in Favor of the City of Kodiak.

In 1998 allegations of wrongful conduct culminated in Officer Marsh’s separation from the Kodiak Police Department. Following administrative and superior court proceedings, Marsh and the City of Kodiak reached a settlement agreement whereby Marsh left the Kodiak Police Department. Samaniego filed a motion to introduce evidence of the allegations against Marsh and of the settlement. She put forth two arguments in her motion.

Samaniego asserted that the facts surrounding these events were relevant to Marsh’s counterclaim against Samaniego for intentional infliction of emotional distress. Samaniego argued that because the jury would have to decide whether she caused Marsh distress, the issue of other competing stressors in his life was relevant. The trial court agreed, ruling: “To the extent that Mr. Marsh would be asserting that the emotional distress from the incident in 1994 continued in 1998, then I will allow inquiry into the 1998 event, but it’s going to be limited.”

Samaniego also argued that cross-examining Marsh about these events was “essential to probe any potential bias Marsh might have to testify [favorably] to the City.... ” According to Samaniego, Marsh might have felt compelled to testify favorably for the City because the terms of the settlement were favorable to him. In response to this argument, the City pointed to the fact that by the time the allegations were made against Marsh, Marsh had already provided testimony about the incident with Samaniego a number of times. The City asserted that it was “ludicrous to think there was anything to buy,” because Marsh’s testimony had crystallized before his later issues with the police department arose. The City also argued that introduction of these issues would prolong the trial and possibly confuse the jury.

The superior court analyzed the evidence under Alaska Rule of Evidence 403 and ultimately prohibited any reference to these issues for the purpose of showing bias. The court reasoned that although the alleged wrongful conduct and the issues surrounding the allegations might have some marginal relevance to whether Marsh would be biased in Kodiak’s favor, the “very low probative value” of the testimony would be outweighed by a “substantial degree of prejudice.”

On appeal, Samaniego argues that the trial court erred in precluding questioning about the allegations against Marsh and his settlement with the Kodiak Police Department to show his potential bias in favor of Kodiak. Specifically, she contends that “Marsh obtained a significant benefit from ... Kodiak at a time when Kodiak needed his favorable testimony. Jurors could reasonably view this favorable treatment as a quid pro quo for his favorable trial testimony.”

Samaniego’s argument is not persuasive. Marsh is a named defendant in this case and brought a counterclaim of his own against Samaniego. His status as a party gave him ample incentive to testify favorably for himself and for his co-defendant, the City of Kodiak. Marsh’s involvement in an employment dispute with the City of Kodiak, and the subsequent settlement of that dispute years after Marsh first testified about the incident with Samaniego, cannot be viewed as critical to the issue of bias. The superior court’s determination whether to admit evidence under Rule 403 is discretionary, and we hold that the court did not abuse its discretion in this instance.

Douglas v. Oivens, a Third Circuit case that Samaniego cites to support her argument, is inapposite. Douglas, a state prisoner, alleged that prison guards beat him in the aftermath of a riot. An Islamic chaplain at the pi’ison testified on Douglas’s behalf that he observed abrasions or bruises on Douglas around the time of the riot. On cross-examination, the prison guards sought to show the chaplain’s potential bias by establishing that the department of corrections had terminated the chaplain for his involvement with rioting inmates and his failure to cooperate with an investigation of the riots. The district court prevented this line of questioning, allowing the jury to learn only that the department of corrections had terminated the chaplain. The Third Circuit held that it was an abuse of discretion to prevent the guards from questioning the chaplain about the circumstances of his termination. To convey effectively that the chaplain was potentially biased against the guards and in favor of Douglas, the court reasoned that the inquiry had to go beyond the fact that the chaplain was simply “terminated” to inquire about the circumstances of that termination.

Douglas is distinguishable from the instant case because in Douglas the chaplain could have appeared to the jury as a disinterested witness had the guards not been able to cross-examine him about the circumstances of his termination. In contrast, in this case there was no danger that the jury would view Marsh as disinterested because he was not simply a witness; he was a named defendant and was also pursuing his own counterclaim. Therefore, his status as a party whose interests were aligned with the City’s was not in dispute.

We hold that the superior court performed the appropriate balancing test under Alaska Rule of Evidence 403 and did not err in precluding questioning of Marsh regarding the allegations against him or his employment dispute with the City of Kodiak. Accordingly, we affirm the trial court’s ruling on this issue.

Y. CONCLUSION

Because the trial court did not err in declining to apply the Daubert/Coon reliability factors to Dr. Raffle’s testimony, we AFFIRM the trial court’s admission of the testimony. Also, because the trial court did not err in its ruling concerning the admissibility of Dr. Raffle’s testimony about Samaniego’s alleged malingering, we AFFIRM that ruling. Finally, we AFFIRM the trial court’s decision to exclude testimony concerning allegations against Sergeant Marsh and the settlement of his employment dispute with the City of Kodiak.

      .In a related criminal proceeding, the police charged Samaniego with assault, disorderly conduct, and forcibly resisting or interfering with an arrest. Samaniego v. City of Kodiak, 2 P.3d 78, 82 (Alaska 2000). A jury convicted her of resisting or interfering with an arrest but acquitted her of assault and disorderly conduct. Id.

      . Id. at 88.

      . Id. at 85 & 88.

      . Buster v. Gale, 866 P.2d 837, 841 n. 9 (Alaska 1994).

      . Id., (internal quotations and alteration omitted).

      . 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . 974 P.2d 386 (Alaska 1999).

      . The relevant text of Alaska Rule of Evidence 702 states:
      (a) If scientific, technical, or specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, expertise, training, or education, may testify thereto in the form of an opinion or otherwise.

      . Samaniego asserted in the heading of her first argument that the trial court erred in not holding an evidentiary hearing to determine whether psychiatric evidence was admissible. She does not discuss this argument in the text of her first argument. Because Daubert hearings are not mandatory, because Samaniego did not request a hearing, and because our case law does not mandate an evidentiary hearing in every instance, see State v. Coon, 974 P.2d 386 (Alaska 1999), it was not error for the trial court not to hold one.

      . 974 P.2d at 402.

      . Id. at 390

      . Id. at 395.

      . id.

      . Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (quotations omitted).

      . Id.

      . Coon, 974 P.2d at 398.

      . See, e.g., Fardig v. Fardig, 56 P.3d 9, 14 (Alaska 2002) (recognizing that psychologist’s testimony that children would be best served by supervised contact with mother provided support for superior court's decision to require supervised visitation); J.S. v. State, 50 P.3d 388, 392 (Alaska 2002) (recognizing expert therapists' testimony concerning whether children would be harmed if transitioned back into father’s custody in parental termination case); In re S.H., 987 P.2d 735, 740-41 (Alaska 1999) (recognizing psychiatric . testimony in affirming superior court’s determination of conservatee’s inability to manage his property and affairs effectively under AS 13.26.165); Nelson v. State, 874 P.2d 298, 303 (Alaska App.1994) (ruling under AS 12.47.070 that trial judge has authority to order criminal defendant to submit to independent psychiatric evaluation).

        .See AS 12.47.070 (requiring psychiatric or psychological exam and report if criminal defendant files notice of intent to rely upon insanity defense); AS 12.47.100 (requiring psychiatric or psychological examination and report concerning criminal defendant's competency to understand proceedings or assist in own defense); Alaska R. Civ. P. 35 (authorizing court to order party whose mental condition is in controversy to submit to examination).

      . Glamann v. Kirk, 29 P.3d 255, 258 n. 4 (Alaska 2001) (quoting Webster's Third New International Dictionary of the English Language Unabridged 1367 (1993)).

      . See Alaska R. Evid. 103(a)(1) providing:
      (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and
      (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.

      . Id.; Laidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d 1093, 1102 (Alaska 2002).

      . The factual information pertinent to this claim was filed under seal.

      . Alaska Rule of Evidence 403 provides:
      Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

      . Buster v. Gale, 866 P.2d 837, 841 n. 9 (Alaska 1994).

      . 50 F.3d 1226 (3d Cir.1995).

      . Id. at 1228.

      . Id. at 1229.

      . id.

      . Id. at 1231.

      . Id. at 1231-32.


author: MATTHEWS, Justice.

text:
    Kelvin Lee GURNEY, Appellant, v. Connie Diane GURNEY, a/k/a Connie Diane Franks, Appellee.
    No. S-10744.
    Supreme Court of Alaska.
    Nov. 21, 2003.

      Terri-Lynn Coleman, Law Office of Rita Allee, P.C., Fairbanks, for Appellant.
    Thomas R. Wickwire, Law Office of Thomas Wickwire, Fairbanks, for Appellee.
    Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

Kelvin Lee Gurney and Connie Diane Gurney were married in July 1992. Kelvin filed the current complaint for divorce in May 2001. Kelvin’s divorce complaint contained a second count alleging that the marriage was void because Connie had previously been married and that her prior marriage had not been annulled or dissolved. Connie was married to Angelo Melito in a ceremony performed March 18, 1978. After six months the couple separated. In 1979 Connie discovered that Angelo was in jail in Florida. This was the last that she heard of him. She is not aware of any divorce proceedings or whether Angelo is dead or alive. After a hearing, the superior court ruled that the marriage between Kelvin and Connie is void. The court ruled that Kelvin “did not know that [Connie] was still married to her former husband at the time of the parties’ marriage on July 11, 1992”; that Connie “does not know whether her marriage to Mr. Melito was terminated prior to her marriage to [Kelvin] either through a divorce or through the death of Mr. Melito”; and that “[t]here-fore, this court finds that the marriage between the parties in this case is void.”

Subsequently the court held a trial concerning issues of child custody, child support, and property division. Only property division is relevant to this appeal. The court ruled, in reliance on Tolan v. Kimball, that the standard for division of property accumulated during the period of the parties’ cohabitation was based on the parties’ intent, either express or implied. The court found that the parties intended to have equal ownership shares in much of the property that was accumulated during the marriage and divided it equally. But the court did not rule exactly as would have been appropriate if the parties had been validly married, for the court declined to divide that portion of Kelvin’s pension that was earned during the period of cohabitation.

Only Kelvin appeals. He argues that the trial court’s findings concerning the parties’ intent are erroneous. He also argues that the court erred in failing to find that Connie committed a fraud, and therefore that she had unclean hands and was ineligible for equitable relief.

In our view the trial court’s findings as to intent and the trial court’s refusal to find fraud are sufficiently supported by the evidence and are not clearly erroneous. We conclude that the division of property ordered by the court is not an abuse of discretion. We therefore affirm the judgment.

AFFIRMED.

      . 33 P.3d 1152 (Alaska 2001).

      . The standard of review for claims involving a trial court’s findings that parties intended to treat property as marital is the clearly erroneous standard. Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994). The trial court's refusal to find fraud and unclean hands is also reviewed under the clearly erroneous standard. Wood v. Collins, 812 P.2d 951, 954 n. 2 (Alaska 1991). The equitable division of property “is reviewable under an abuse of discretion standard and will not be reversed unless it is clearly unjust.” Harrelson v. Harrelson, 932 P.2d 247, 250 (Alaska 1997) (citations omitted).

      . Connie did not argue before the superior court or before this court that her marriage with Kelvin should be presumed to be valid. Many jurisdictions recognize that there is a presumption favoring the validity of a second marriage. According to the American Law Reports, "[i]t is well established that when a person has entered into two successive marriages, a presumption arises in favor of the validity of the second marriage.” Annotation, Presumption as to Validity of Second Marriage, 14 A.L.R.2d 7 (1950). "[0]n proof of a second marriage, a presumption arises that the prior marriage was terminated by death ... or divorce.” Id. at 11 n. 19. A few slates have rejected this presumption. See, e.g., Bajurczak v. Estate of Bajurczak, 139 Ohio App.3d 78, 742 N.E.2d 1191 (2000); Liberty Mut. Ins. Co. v. Ellis, 99 Ga.App. 486, 109 S.E.2d 70 (1959); Application of Carr, 134 N.Y.S.2d 513 (N.Y.Sur.1953), aff'd without op., In re Carr's Estate, 284 A.D. 930, 134 N.Y.S.2d 280 (N.Y.App.Div.1954). Alaska has no published case law concerning the presumption.


author: BRYNER, Justice.

text:
    Autumn DOXSEE, Appellant, v. Adrian DOXSEE and Progressive Insurance Co., Appellees.
    No. S-10424.
    Supreme Court of Alaska.
    Nov. 21, 2003.

      Michael W. Flanigan, Walther & Flanigan, Anchorage, for Appellant.
    Michael P. McConahy, MeConahy, Zimmerman & Wallace, Fairbanks, for Appellee Progressive Insurance Company.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Autumn Doxsee sued her husband, Adrian, for injuries she sustained as a passenger in his vehicle. Adrian’s insurance company provided him with an independent attorney to represent his interests and retained separate counsel to defend the case. A jury returned an award substantially lower than the defense’s offer of judgment, and the trial court awarded attorney’s fees to the defense as the prevailing party. Doxsee appeals, claiming that the trial court’s jury instructions were insufficient and that the court abused its discretion in denying her motion for a new trial and in awarding attorney’s fees for both the attorney who defended the case and her husband’s independent attorney. We affirm.

II. FACTS AND PROCEEDINGS

In July 1996 Autumn Doxsee had cervical fusion surgery to alleviate her chronic neck pain. Thirteen days later, in early August 1996, Doxsee and her husband, Adrian, were traveling to a doctor’s appointment in Kenai when Adrian rear-ended the vehicle in front of them. Doxsee was wearing a neck brace to prevent motion.

An ambulance took Doxsee to the emergency room, where Dr. Stephen Hileman examined her. Doxsee complained of generalized pain in her neck, but her examinations were normal considering her recent surgery. Dr. Hileman took an x-ray to look for injury to her neck and did not find any. According to Dr. Hileman, Doxsee told him that her pain had not worsened after the accident. Dr. Hileman gave Doxsee some pain medication and sent her home.

Doxsee saw a doctor in Kenai the following day, complaining of leg, arm, neck, and back pain. A week or so later she consulted Dr. David Spindle, who had performed her neck fusion surgery. Dr. Spindle thought that the accident was a minor incident and that she was recovering well from the surgery. He released her from his care in October 1996.

However, Doxsee’s physical pain continued, and she began to have weakness in her grip. She returned to Dr. Spindle, who took x-rays and an MRI that revealed that one of the two bone grafts in her neck had not fused. Dr. Spindle performed a second neck fusion surgery in March 1997. Doxsee’s total medical costs at the Alaska Native Medical Center after the August 1996 accident were $10,136. She has had difficulty swallowing as a complication of the second surgery.

Meanwhile, Doxsee had sued Adrian’s ex-wife, Wanda Delane, for injuries that Doxsee sustained in an auto accident with Delane in 1994. As part of her alleged damages in that suit, Doxsee claimed the expenses of her first neck fusion surgery in July 1996. Doxsee’s suit against Delane was tried in December 1997. The jury awarded no damages.

In March 1998 Doxsee sued Adrian for negligently injuring her in the August 1996 accident — the accident that occurred thirteen days after Doxsee’s first neck fusion surgery. Doxsee sought past and future medical expenses and past and future non-economic damages.

Adrian’s insurer, Progressive Insurance Company, retained an attorney to represent Adrian in this litigation. Adrian and his insurance-appointed attorney, Robert L. Griffin, filed a “Motion ... to Define his Counsel’s Status and Role.” Griffin asserted that Adrian had an interest in maximizing Doxsee’s recovery and that Progressive’s interest in defending the claim conflicted with Adrian’s instructions to Griffin. Griffin asked the court to decide whether he should take direction from Adrian or from Progressive, arguing that the court should require Progressive, to appoint independent counsel to represent Adrian’s interests under this court’s decision in Myers v. Robertson. Doxsee filed a limited opposition to Griffin’s motion, correcting some of the asserted facts but agreeing that Myers required Adrian to be represented by an independent counsel. The court ruled that Adrian was entitled to independent counsel at Progressive’s expense, that the independent counsel was not required to report to Progressive “except to the extent required by AS 21.89.100(e) and (g),” and that Progressive was entitled to retain separate counsel to represent its own interests by presenting a “classic” defense.

Griffin continued as Adrian’s independent attorney, and Progressive retained separate counsel to present Adrian’s “classic” defense. After being designated Adrian’s independent counsel, Griffin played a background role in the litigation, and Progressive’s new attorney took charge of the defense.

In January 2000 the defense made an offer of judgment for $12,500 plus prejudgment interest, attorney’s fees and costs, and waiver of a lien for medical payments of $1,083.71. Doxsee rejected the offer.

Adrian admitted negligence before trial. The case proceeded to a jury trial on causation and damages in February 2001. Adrian’s independent attorney, Griffin, participated minimally in the trial.

Doxsee called Dr. Spindle to testify at trial. He testified that he believed the August 1996 accident had caused Doxsee’s first neck fusion to fail, creating a need for the second surgery. The defense introduced expert testimony by Dr. John Ballard, who had performed an independent medical evaluation based on Doxsee’s medical records and concluded that the accident did not cause the first surgery to fail.

At the end of the trial, the jury returned a verdict finding Adrian liable for Doxsee’s injury but awarding damages totaling only $9,358. After the superior court denied Dox-see’s motions for additur or a new trial, Progressive moved for an award of attorney’s fees and costs under Alaska Civil Rule 68, alleging that its pretrial offer of judgment exceeded the jury’s verdict. In advancing this motion, Progressive sought reimbursement for fees it had paid to its own counsel, Michael P. McConahy, and to Adrian’s independent counsel, Griffin. The superior court granted Progressive’s motion and entered judgment for the defense in the amount of $24,763.53 after subtracting Doxsee’s jury award.

Doxsee appeals.

III. DISCUSSION

A. Jury Instruction

Doxsee first argues that the trial court erroneously failed to instruct the jury on the standard of proof that applies when the plaintiff claims aggravation of a preexisting injury.

The trial court instructed the jury according to Alaska Pattern Civil Jury Instruction 20.11, which addresses aggravation of a preexisting injury. We approved a substantially identical instruction in LaMoureaux v. Totem Ocean Trailer Express, Inc.

Doxsee proposed an additional jury instruction that would have addressed her burden of proof more specifically. Our case law establishes that when it is “difficult to determine how much of a plaintiffs injury is due to the preexisting condition and how much to the aggravation caused by the defendant,” a plaintiff seeking to establish causation need not “prov[e] with great exactitude the amount of aggravation.”

Focusing on this case law, Doxsee proposed the following jury instruction:

In calculating the amount of damages to be awarded for the aggravation of a preexisting injury or condition, you should attempt to reasonably estimate the amount of damages that reflects the additional damages plaintiff suffers beyond her preexisting injury or condition, based on the evidence presented to you even if such an amount cannot be fixed with mathematical precision. Due to the difficulty in determining the amount of damages to be awarded in aggravation type cases, the Plaintiff is not required to prove a specific amount of damages in order to recover an award in such a case.

Doxsee argues that the trial court erred in rejecting this proposed instruction. She contends that the proposed instruction was required under our decision in Tolan v. ERA Helicopters, Inc. But Doxsee’s reliance on Tolan is misplaced. The trial court in Tolan inserted additional language into the pattern jury instruction on aggravation — the instruction actually given here — providing that “[i]t is necessary for the plaintiffs to prove ... that it is more likely than not that [plaintiffs] pre-existing condition or disability has been aggravated by the defendant’s conduct and the extent to which it has been aggravated.” We disapproved of this additional language in Tolan, noting that, in context, its emphasis on the plaintiffs general burden of proof by a preponderance of evidence would have been inappropriate “without qualification as to the relaxed requirement of proof on [the issue of aggravation].”

Thus, far from modifying the pattern instruction we approved in LaMoureaux, To-lan simply pointed out the hazards of adding to the pattern instruction. Tolan thus implicitly recognized the pattern instruction to be a sufficient statement of the law relating to aggravation of a pre-existing injury. Since Tolan, we have explicitly reiterated our approval of the pattern instruction’s language in Glamann v. Kirk Thus, the instruction that was given to the jury correctly stated the applicable law.

Moreover, Doxsee has failed to establish that her proposed instruction would have had any appreciable effect on the jury’s verdict. By its own language, the proposed instruction described how the jury should “estimate the amount of damages” Doxsee suffered, not how it should determine whether Adrian’s negligence caused a particular item of damages. Yet as Doxsee acknowledges on appeal, the jury’s minimal verdict evidently reflects its belief that the accident did not cause the need for the second surgery. Hence, the jury apparently never reached the issue of estimating the amount of damages attributable to the second surgery — the issue that Doxsee’s proposed instruction would have addressed. In summary, the superior court’s jury instruction on causation was legally sufficient, and Doxsee’s proposed instruction would have had no likely effect on the jury’s verdict, even if the instruction had been given.

B. Additur or New Trial

Doxsee next argues that the trial court erred in rejecting her alternative post-trial motions for additur or a new trial. In these motions, Doxsee argued that, under the factors set out in the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc and adopted by this court in State v. Coon, the superior court erred in admitting the testimony of Progressive’s expert, Dr. Ballard. Doxsee additionally pointed to three occasions when, according to Doxsee, the court admitted evidence that was more prejudicial than probative, in violation of Alaska Evidence Rule 403. Dox-see contended that the combined effect of these errors and the jury’s allegedly unreasonable verdict entitled her to additional damages of $21,766 ($10,136 for the cost of her second surgery and $11,630 for pain and suffering) or, in the alternative, to a new trial. The superior court denied Doxsee’s motions. On appeal, Doxsee argues that in light of all the errors she has claimed, the evidence was “so slight and unconvincing as to make the verdict unreasonable and unjust.”

Doxsee’s argument is premised on her claims of evidentiary error. But Doxsee waived her claim as to Dr. Ballard’s expert testimony by agreeing not to object to its admission if Dr. Ballard would “restrain his testimony to review of the medical evidence without relying on any opinions as to the ‘force of the collision.’ ” When Dr. Ballard testified at trial, Doxsee’s counsel stated that he had “no objection.” Having agreed to Dr. Ballard’s testimony, Doxsee cannot now assert that its admission was error justifying additur or a new trial.

Doxsee’s remaining claims are based on three instances when the superior court admitted evidence that Doxsee claims was “highly prejudicial.” First, the trial court allowed the defense to question Doxsee about cursing at the driver who collided with Adrian in the accident. Second, the court allowed the defense to question Doxsee about her earlier lawsuit against Adrian’s ex-wife, Wanda Delane. And finally, the court allowed the defense to question Dr. Spindle about his use of a surgical tool in the course of Dox-see’s second surgery that he had constructed from the camshaft of a Chevrolet.

But Doxsee’s argument improperly assumes its own premise — that the trial court erred in admitting this evidence. Doxsee has not challenged the court’s evidentiary rulings in independent points on appeal. In connection with her additur/new-trial claim, she advances conclusory assertions concerning the prejudicial impact of the disputed evidence but offers no discussion of its potential probative value and sets forth no meaningful legal analysis to establish that the court erred in its evidentiary rulings. Our own review of the record reveals no abuse of discretion. Accordingly, we find no merit in Doxsee’s allegations that evidentiary error required the trial court to grant her motion for additur or a new trial.

C. Attorney’s Fees

The superior court found that Progressive was the prevailing party under Civil Rule 68 because its offer of judgment, which Doxsee rejected, exceeded the jury’s award by more than five percent. The court therefore awarded attorney’s fees to Progressive for fees that it paid to both its own counsel, McConahy, and to Adrian’s independent counsel, Griffin. Doxsee argues that the award of fees for work performed by Progressive’s counsel following Griffin’s appointment as Adrian’s independent attorney amounted to error.

But under the specific facts presented here, we find Doxsee’s argument unpersuasive. In response to Adrian’s pre-trial motion to define his counsel’s role, Doxsee expressly indicated that she did not oppose an order requiring Progressive to retain an independent attorney to represent Adrian’s interests. In fact, she actively advocated the appointment, relying on Myers and CHI of Alaska v. Employers Reinsurance Corp., by arguing that

Plaintiffs believe this [is] a Myers [ ] case and that independent CHI counsel is appropriate. ... [I]t is respectfully requested that this honorable court enter an order holding that this is a Myers type case and that Mr. Griffin is independent CHI counsel with no duty to report to the insurance company, nor any duty to present a classic defense.

After Griffin undertook the role of Adrian’s independent attorney, Progressive’s new attorney took control of the case and tried it to completion, with Griffin playing only a minor role.

On appeal, Doxsee does not challenge the reasonableness of any of the legal billings paid by Progressive. Nor does she contend that there was double billing or unnecessary work in the course of the dual representation. Without citation to any persuasive authority, Doxsee simply reasons that, because she sued Adrian rather than Progressive, she should only be held accountable for fees incurred by Adrian’s independent attorney. Because Doxsee’s argument is fundamentally inconsistent with her position below that dual representation was warranted in defense of her claim, we reject the argument as unpersuasive.

IV. CONCLUSION

We AFFIRM the superior court’s jury instructions, its denial of Doxsee’s motion for additur or a new trial, and its attorney’s fees award.

      . Although Autumn and Adrian apparently were not formally married, their common-law marriage was treated as a spousal relationship throughout the course of these proceedings.

      . 891 P.2d 199 (Alaska 1995).

      . AS 21.89.100(e) and (g) provide:
      (e) If the insured selects independent counsel at the insurer's expense, the independent counsel and the insured shall consult with the insurer on all matters relating to the civil action and shall disclose to the insurer in a timely manner all information relevant to the civil action, except information that is privileged and relevant to disputed coverage....

      (g) If an insured selects independent counsel under this section, both the counsel representing the insurer and independent counsel representing the insured shall be allowed to participate in all aspects of the civil action. Counsel for the insurer and insured shall cooperate fully in exchanging information that is consistent with ethical and legal obligations to the insured. Nothing in this section relieves the insured of the duty to cooperate fully with the insurer as required by the terms of the insurance policy.

      . We review jury instructions de novo. Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001). "In reviewing jury instructions, the relevant inquiry is whether the instructions inform the jury of the applicable law.” Lynden, Inc. v. Walker, 30 P.3d 609, 617 (Alaska 2001).

      . Jury Instruction 20 provided:
      A person who has a condition or disability at the time of an injury cannot recover damages for that condition or disability. However, she is entitled to recover damages for an aggravation of such pre-existing condition or disability if the aggravation is the legal result of the injury.
      This is true even if the person's condition or disability made her more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury. In other words, the law provides that a defendant takes the plaintiff as he finds her.
      Where a pre-existing condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional damages caused by the aggravation.

      . 632 P.2d 539, 543-45 (Alaska 1981).

      . Id. at 544.

      . 699 P.2d 1265 (Alaska 1985).

      . Id. at 1271.

      . Id. at 1272.

      . 29 P.3d 255, 261 (Alaska 2001).

      . Notably, our case law distinguishes between the burdens of proof that govern causation of aggravated injury and estimation of the amount of damages. In Pluid v. B.K., 948 P.2d 981 (Alaska 1997), on which Doxsee based her proposed instruction, we described the burden that attaches with respect to the value of damages once causation of damages is proved. Id. at 984. In contrast, the LaMoureaux, Tolan, and Glamann line of cases addresses the relaxed standard of proof that governs on proving causation of aggravated injury.

      . 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . 974 P.2d 386, 395 (Alaska 1999).

      . Hutchins v. Schwartz, 724 P.2d 1194, 1199 (Alaska 1986). "In reviewing a ruling on a motion for new trial, this court will not interfere with the trial court's decision except in the most exceptional circumstances and to prevent a miscarriage of justice.” Id. "The trial court has broad discretion in deciding whether to grant or deny a motion for a new trial.” Cizek v. Concerned Citizens of Eagle River Valley, Inc., 49 P.3d 228, 234 n. 23 (Alaska 2002). We will affirm a trial court's decision to deny a new trial unless the evidence is "so slight and unconvincing as to make the verdict unreasonable and unjust." Hutchins, 724 P.2d at 1199.

        .See Walden v. Dep’t of Transp., 27 P.3d 297, 304 (Alaska 2001) ("It is well-settled that a party must object to evidence at the time it is offered in order to preserve the issue on appeal.”).
      Doxsee additionally argues that because she did not know about Dr. Ballard’s alleged lack of qualifications until trial, her failure to bring a pre-trial Daubert challenge does not amount to a waiver of her objection to his testimony. She attempts to support this argument by citing Licciardi v. TIG Insurance Group, 140 F.3d 357 (1st Cir.1998). But Licciardi vacated a defense verdict where the defense expert's trial testimony contradicted and went beyond the scope of the report the plaintiff had received before the trial. Id. at 359. Here, Doxsee has admitted that "Dr. Ballard's opinion at trial was essentially a verbatim restatement” of his expert report. And unlike the plaintiff in Licciardi, Doxsee did not object to Dr. Ballard’s expert testimony at any point during the trial. See id. at 359.

      . Alaska Evidence Rule 403 provides:
      Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

      . Alaska Civil Rule 68 provides, in relevant part:
      (a) At any time more than 10 days before the trial begins, either the party making a claim or the party defending against a claim may serve upon the adverse party an offer to allow judgment to be entered in complete satisfaction of the claim for the money or property or to the effect specified in the offer, with costs then accrued....
      (b) If the judgment finally rendered by the court is at least 5 percent less favorable to the offeree than the offer, or, if there are multiple defendants, at least 10 percent less favorable to the offeree than the offer, the offeree, whether the party making the claim or defending against the claim, shall pay all costs as allowed under the Civil Rules and shall pay reasonable actual attorney fees incurred by the offeror from the date the offer was made....

      .We review a trial court's award of attorney’s fees for abuse of discretion. United Servs. Auto. Ass’n v. Pruitt ex rel. Pruitt, 38 P.3d 528, 531 (Alaska 2001). We will not overturn a trial court's determination of attorney's fees unless it is "manifestly unreasonable.” D.H. Blattner & Sons, Inc. v. N.M. Rothschild & Sons, Ltd., 55 P.3d 37, 56 (Alaska 2002).

      . 844 P.2d 1113 (Alaska 1993) (holding insured has unilateral right to select independent counsel, subject to implied covenant of good faith and fair dealing).

      . Had Doxsee believed there was duplication of effort in the roles of the two defense counsel, she could have been entitled to a reduction in fees under Alaska Civil Rule 82(b)(3)(C), (D), and (E).