source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    2000 OK CIV APP 74
    Lester LaRUE, Appellant, v. ONEOK, INC., d/b/a Oklahoma Natural Gas Company, Appellee.
    No. 93,679.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    March 14, 2000.
    Certiorari Denied May 16, 2000.

      Louis P. Falsetti, Brady, Schaulat & Fal-setti, Oklahoma City, Oklahoma, for Appellant.
    Larry D. Henry, Patrick W. Cipolla, Gable & Gotwals, Tulsa, Oklahoma, for Appellee.
   OPINION

TAYLOR, J.

{1 Plaintiff, Lester LaRue, appeals summary judgment granted to Defendant, Oklahoma Natural Gas, on Plaintiff's claim for wrongful discharge. The issue on appeal is whether Defendant violated clearly articulated public policy in discharging Plaintiff from his employment. Having reviewed the record and applicable law, we answer in the negative and affirm the summary judgment granted to Defendant.

2 On April 19, 1995, the day of the bombing of the Alfred P. Murrah Building in Oklahoma City, Plaintiff was employed by Defendant as the Safety Coordinator for its Oklahoma City District. Shortly after hearing the explosion at the Murrah Building, Plaintiff proceeded to the scene to investigate the possibility of a natural gas explosion. While at the seene of the explosion, Plaintiff took a series of 44 photographs using Defendant's camera and Defendant's film. The 44 photographs included one of a fireman cradling a deceased infant and photographs of the building shortly after the explosion. Plaintiff took the photographs during his regularly scheduled working hours for Defendant. After he took the photographs, Plaintiff had the film developed at Defendant's expense.

138 Within days after the bombing, Plaintiff began to enter into rights agreements with third parties to market, sell, and publicly display the firefighter/baby image in photographic form and as a statuette. Plaintiff received approximately $40,000 from the various agreements.

14 Because Defendant desired any proceeds from the pictures to be contributed to the bombing victims and their families, a dispute arose as to ownership of the photographs. On September 6, 1995, Defendant's representatives met with Plaintiff and advised him that he had two days to agree to acknowledge Defendant's ownership of the photographs, drop any claims which Plaintiff was asserting to the photographs, and pay to Defendant all proceeds which Plaintiff had received from the photographs. Defendant advised Plaintiff that if he did not agree to these terms, his employment would be terminated. After receiving a letter from Plaintiff's attorney dated September 7, 1995, reiterating Plaintiffs intent to retain the photographs and proceeds, Defendant notified Plaintiff, by letter dated September 8, 1995, of its decision to terminate his employment.

[5 Following his termination from employment, Plaintiff filed this action in Oklahoma County District Court, asserting that he was wrongfully discharged in violation of Oklahoma's public policy. Upon Defendant's motion, the case was transferred to the United States District Court for the Western District of Oklahoma. Also pending in the United States District Court was Defendant's copyright infringement action against Plaintiff. The United States District court eventually entered judgments for Defendant in both the copyright infringement action and the wrongful discharge action. Plaintiff appealed the judgments to the Tenth Circuit Court of Appeals, which affirmed the judgment on the copyright infringement claim. However, with regard to the wrongful discharge claim, the Tenth Circuit Court of Appeals remanded the action to the Oklahoma County District Court finding that the wrongful termination claims did not "arise under" the Copyright Act.

T6 Defendant moved for summary judgment in the Oklahoma County District Court action, arguing that (1) Plaintiff had failed to specify an articulated public policy which Defendant had violated in terminating his employment; and (2) Defendant did not wrongfully terminate Plaintiff because it based the termination on Plaintiff's breach of Defendant's conflict-of-interest policy. The district court granted summary judgment to Defendant and Plaintiff appeals.

T7 Plaintiff and Defendant agree that Plaintiff was an at-will employee. As such, Plaintiffs employment was subject to termination by Defendant without cause at any time. Burk v. K-Mart, 1989 OK 22, 15, TIO P.2d 24, 26. However, Plaintiff claims that Defendant is Hable for wrongful termination under the public-policy exception to the terminable-at-will rule. This exception exposes employers to potential liability "in a narrow class of cases in which the discharge is contrary to a clear mandate of public policy as articulated by constitutional, statutory or decisional law." Id. at T 17, 770 P.2d at 28. This exception is "tightly circumscribed" due to "the vague meaning of the term public policy." Id. at 118, 770 P.2d at 28.

18 "[The initial determination of public policy is a question of law to be resolved by the court...." Hayes v. Eateries, Inc., 1995 OK 108, €19, 905 P.2d 778, 785 (citing Pearson v. Hope Lumber & Supply Co., Inc., 1991 OK 112, 14, 820 P.2d 443, 444). Therefore, we must determine "whether a sufficient discernable public policy is implicated by the discharge of an otherwise at-will employee to allow the employee to go forward with the Burk tort framework or whether, instead, the case may be resolved as a matter of law against the discharged employee." Id.

T9 The public-policy exception applies "where an employee is discharged for refusing to act in violation of an established and well-defined public policy or for performing an act consistent with a clear and compelling public policy." Burk, 1989 OK 22, 119, 770 P.2d at 29. Claims that have been recognized under the rubric of the public policy exception are those where employees are dismissed for "(a) refusing to participate in an illegal activity; (b) performing an important public obligation; (c) exercising a legal right or interest; (d) exposing some wrongdoing by the employer; and (e) performing an act that public policy would encourage or, for refusing to do something that public policy would condemn, when the discharge is coupled with a showing of bad faith, malice or retaliation." Hinson v. Cameron, 1987 OK 49, T 10, 742 P.2d 549, 552-58.

110 Thus, under the public-policy exception as recognized in Burk, Plaintiff must show that the termination of his employment was "contrary to a clear mandate of public policy as articulated by constitutional, statutory or decisional law." - Burk, 1989 OK 22, 117, 770 P.2d at 28 (emphasis added). Defendant argues that Plaintiff has failed to identify any public policy that was violated. Plaintiff relies on the third example from Hinson and argues that Defendant violated public policy by terminating his employment for "asserting his claim of a legal right to assert ownership." Plaintiff, however, stops at this point-he does not give any source for this public policy.

11 It is not enough to expound a public policy; Plaintiff must also show that the public policy is "articulated by constitutional, statutory or decisional law." Plaintiff has failed to do this. He has not cited this court to any authority from which we may derive a public policy that protects an individual from termination from employment for asserting a claim of ownership to property which his employer also claims to own. Thus, we cannot say that termination of Plaintiff's employment was "contrary to a clear mandate of public policy as articulated by constitutional, statutory or decisional law."

1 12 In the instant case, a controversy over ownership rights to the photographs arose between Plaintiff and Defendant. In analogous cases from other jurisdictions, courts have determined that employers did not violate public policy by terminating employees where controversies arose between the employees and employers. The decisions are based on a balancing of the interests of the employees, the employers, and the public. In Alexander v. Kay Finlay Jewelers, Inc., 208 N.J.Super. 508, 506 A.2d 379, 881 (1986), the court reasoned as follows:

While plaintiff had a legal right to sue his employer for monies considered to be due him as salary, there can be no question that the company also had a compelling interest to operate its business without the harassment of suits by employees dissatisfied with their wages or disgruntled because of a reduction in their salary.... It is evident to us that such an adversarial attitude between an employee and employer could be inimical to the operation of the company and that imposing any limitation upon the firing of a discontented employee would severely impact upon the employer's right to discharge those whose conduct could be harmful to the employer's business. Under these cireumstances a balancing of the competing interests favors the employer.

The court further concluded that "the dispute giving rise to the termination of plaintiffs employment involved a matter having no significance beyond the private interests of plaintiff and defendant;" thus, the defendant did not violate any clear mandate of public policy. Id.

113 The court in Deiters v. Home Depot U.S.A., Inc., 842 F.Supp. 1028, 1029 (M.D.Tenn.1998), reasoned that "(litigation between an employer and employee tends to result in an acrimonious and noncooperative working relationship [and when] such a relationship threatens the effectiveness of an organization, an employer must be free to remedy the situation through termination." The court also implied that a company should not be penalized for "discharging an at-will employee when the employment relationship has completely soured." Id. at 1028 (quoting Kavanagh v. KLM Royal Dutch Airlines, 566 F.Supp. 242, 244 (N.D.Ill.1983)). Inherent in the employment-at-will relationship is "an understanding that the organization and its managers function more effectively in an atmosphere of trust and cooperation; when this harmony is destroyed, regardless of who is at fault, it is in the interest of all concerned to terminate their relationship." Id.

14 As in Alexander and Deiters, an adversarial relationship arose between Plaintiff and Defendant. Defendant had a compelling interest in operating its business without the threat of a dispute over the ownership of the photographs. Defendant should not be penalized for remedying the acrimonious situation that had arisen. Furthermore, the dispute between Plaintiff and Defendant was a private dispute that did not impact the public.

1 15 Plaintiff has failed to show that Defendant violated a clearly articulated public policy when it terminated his employment. Thus, the summary judgment in favor of Defendant is AFFIRMED.

16 RAPP, P.J., and STUBBLEFIELD, J. (sitting by designation), concur.

      . Because we agree with Defendant regarding the first of these arguments, we decline to address the issue of Defendant's conflict-of-interest policy.


author: JOPLIN, Judge:

text:
    2000 OK CIV APP 75
    In the Matter of M.J. and J.J., Deprived Minor Children. Carol Johnson, Appellant, v. State of Oklahoma, Appellee.
    No. 93,766.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 1, 2000.

      Jeff McGrew, Tulsa, Oklahoma, for Appellant,
    Tim Harris, District Attorney, Tracy L. Cain, Assistant District Attorney, Tulsa, Oklahoma, for Appellee.
    David H. Herrold, Conner & Winters, Tulsa, Oklahoma, for the Minor Children.
   Opinion by

JOPLIN, Judge:

«I 1 Appellant Carol Johnson, natural mother of the minor children, M.J. and J.J., seeks review of the trial court's order granting judgment on jury verdict terminating Mother's parental rights. In this appeal, Mother challenges the trial court's instructions to the jury as confusing, contrary to law and viola-tive of constitutional protections,. However, we find no error as alleged and hold the order of the trial court should be affirmed.

12 In June 1996, State filed a petition alleging, inter alia, Mother's physical abuse of M.J., on account of which State sought an adjudication of M.J. as deprived, and in August 1996, the trial court placed M.J. in foster care. After a jury trial in October 1996, and pursuant to the jury's verdict, the trial court entered an order adjudicating M.J. deprived.

T3 On November 27, 1996, the trial court entered an order adopting a treatment plan for correction of the conditions leading to M.J.'s adjudication, to which Mother agreed to abide. Mother made some initial progress toward fulfillment of the plan requirements, but a year later, had not completed the plan.

T4 In November 1997, Mother gave birth to J.J., but shortly, J.J. was hospitalized in respiratory distress. In December 1997, State filed a petition alleging J.J. as deprived, and in February 1998, the trial court placed J.J. in foster care. In January 1999, pursuant to Mother's stipulation, the trial court adjudicated J.J. deprived. In March 1999, the trial court entered an order adopting a treatment plan for correction of the conditions leading to J.J.'s adjudication, and again Mother agreed to abide.

15 In July 1999, after Mother allegedly failed to correct the conditions leading to the deprived adjudications, State filed its petition seeking termination of Mother's parental rights as to both M.J. and J.J. After a three-day jury trial in September 1999, the jury returned a verdict against Mother, specifically finding, inter alia, Mother's children had been in the State's custody fifteen of the most recent twenty-two months. Pursuant to the jury verdict, the trial court entered its order terminating Mother's parental rights. Mother appeals.

T6 Mother asserts the trial court's Instruction No. 8, pursuant to 10 0.9.1998 Supp. 7006-1.1(A)(15) permitting termination of parental rights where "[al child has been placed in foster care by the Department of Human Services for fifteen (fifteen) of the most recent twenty-two (22) months," violates Article V, § 52 of the Oklahoma Constitution proscribing legislative destruction of existing causes of action or defenses. Mother argues that while 10 0.8. Supp.1999 70083-4.7(B) permits non-prosecution of termination cases under certain other cireum-stances, § and § 7006-1.1(A) require commencement of termination proceedings - in - fifteen-of-twenty-two-month cases. So, says Mother, by force of Article V, § 52, the Legislature could not validly deprive Mother of the § 7008-4.7(B) defenses in this § 7006-1.1(A)(15) fifteen-of-twenty-two-month case. Mother also challenges § 7006-1.1 as a strict liability statute violating her right to jury trial guaranteed by the Oklahoma Constitution, Article II, § 19.

17 Section 7006-1.1(A)(15) indeed permits termination of parental rights where "[a] child has been placed in foster care by the Department of Human Services for fifteen (fifteen) of the most recent twenty-two (22) months." Further, the Oklahoma Legislature directed commencement of parental-rights-termination actions as to "adjudicated deprived children who have been in [DHS] custody for fifteen (15) of the most recent twenty-two (22) months, and who were in out-of-home placement in [DHS] custody as of November 17, 1997," with priority given to those case of adjudicated children in custody the longest. 10 0.8. 7006-1.6(A), (B), (D).

T8 In the present case, the trial court placed M.J. in foster care in August 1996, and J.J. in December 1997. State filed its petition for termination of Mother's parental rights in July 1999, alleging inter alia, State's custody of M.J. and J.J. for the requisite period under § 7006-1.6 and § 7006-1.1(A)(15) This fact was not controverted by Mother at trial.

[ 9 As a preliminary matter, we find Mother's reliance on § 7008-4.7 misplaced. That is, § 7003-4.7(B) delineates cireumstances in which State may decline to seek termination of parental rights without regard to the period of foster care, as, for instance, when the State has failed to provide the necessary services in order for the parent to complete the treatment plan. See also, 10 O.S. 7006. We read § 7003-4.7(B) and $ 7006-

1.6(B) to provide safeguards for the parent prior to initiation of termination proceedings, and inasmuch as see nothing in either of these sections depriving Mother of any defense, we find no violation of Article V, § 52.

T 10 Moreover, it is apparent to this Court that, reading § 7006-1.1(A) together with § 7008-4.7(B) and §$ 7006-1.6(B), where reasonable efforts to return the adjudicated deprived child(ren) to the parent(s) have proved fruitless as to result in prolonged foster care placement of the child(ren), the Legislature clearly viewed extended placement in foster care, without progress toward reunification of the family, to be so detrimental to those children's best interests as to justify termination of parental rights. The Court of Civil Appeals has recognized this provision as reasonably related to valid state interests and not unconstitutional per se. Matter of M.C. and N.C., 1999 OK CIV APP 128, 993 P.2d 187.

T11 We see nothing in the cited sections or anywhere else in the Oklahoma Children's Code, 10 0.8. 7001-1.1, et seq., proscribing a parent's presentation of defensive matters otherwise available in proceedings under provisions other than the fifteen-of-twenty-two-month section. These include, but are not limited to, adequacy of notice of either commencement of proceedings, or the conditions in need of remediation, or the terms of the service plan, or the consequences of failure to correct the conditions leading to the deprived adjudication. See, eg., Matter of M.C. and N.C., 1999 OK CIV APP 128, 1 9, 998 P.2d at 140 (where father given inadequate notice of State's intent to seek termination on (A)(15) grounds, judgment terminating parental rights reversed for unconstitutional, retroactive application.) Having so observed, and further finding § 7006-1.1 recognizes the health, safety, and best interests of the child as paramount, we therefore reject Mother's Article V, § 52 challenge.

12 In the present case, and at the time of commencement of termination proceedings, M.J. and J.J. had been in foster care for 34 months and 18 months respectively. State sought to terminate Mother's parental rights in July 1999 on multiple grounds, including, inter alia, the children's placement in foster care for a period exceeding fifteen of the most recent twenty-two months under § 7006-1.1(A)(15). At jury trial, Mother was afforded every opportunity to present whatever defensive matters she had. See, e.g., Lebus v. Carden, 1978 OK 91, ¶ 5, 583 P.2d 503, 504. On consideration of the evidence, the jury found against Mother on (A)(15) grounds, and specifically determined termination of parental rights in M.J.'s and J.J.'s best interests. Under these circumstances, and inasmuch we have construed the Oklahoma Children's Code as posing no bar to presentation of any defensive matters otherwise available in termination cases, Mother can hardly assert a denial to her right to trial by jury guaranteed by Article II, § 19.

113 Having so held, we have reviewed the (A)(15) instructions requested and refused, and the instructions given. We hold the challenged instructions sufficiently set forth the elements for termination of parental rights under § 7006-1.1(A)(15) with adequate clarity as to provide the jury with guidance for proper evaluation of evidence offered in support of State's claims and Mother's defenses. See, e.g., Kimery v. Public Svc. Co. of Okla., 1980 OK 187, ¶ 20, 622 P.2d 1066, 1072.

1 14 The order of the trial court granting judgment on jury verdict terminating Mother's parental rights is therefore AFFIRMED.

1 15 ADAMS, J., concurs; HANSEN, V.C.J., dissents.

3. The state has not provided to the family of the child, consistent with the time period in the state case plan, such services as the state may deem necessary for the safe return of the child to the child's home, if reasonable efforts are required to be made with respect to the child.

      . During the interim, in March 1998, State filed, then withdrew, a petition to terminate Mother's parental rights to M.J.

      . The trial court's Instruction No. 8 provided: You are further instructed that the State seeks termination of parental rights on the alternative ground of the length of time the children have lived in foster care. The law provides that in order to terminate parental rights due to the length of time a child has spent in foster care you must find that the child has been placed in foster care by the Department of Human Services for fifteen (15) of the most recent twenty-two (22) months and that termination of parental rights is required for the health, safety, and best interests of the child(ren).
      For purposes of this finding, you are instructed that the child [M.J.] entered foster care August 18, 1996 and the child [J.J.] entered foster care February 20, 1998.

      . This section provides:
      B. If any of the following conditions exist, the district attorney is not required to file a petition as provided in subsection A of this section for a deprived child:
      1. At the option of the Department of Human Services or by order of the court, the child is properly being cared for by a relative;
      2. The Department of Human Services has documented in the child's case plan that is provided or available to the court a compelling reason for determining that filing the petition would not be in the best interests of the child; or
      3. The state has not provided to the family of the child, consistent with the time period in the state case plan, such services as the state deems necessary for the safe return of the child to the child's home, if reasonable efforts are required to be made with respect to the child.

      . - This section provides in relevant particular:
      A. Except as otherwise provided by this section, the district attorney shall file a petition for termination of the parent-child relationship and parental rights with respect to a child or, if a petition has been filed, shall join in the petition filed by the child's attorney, pursuant to any of the following circumstances: .
      1. The child has been placed in foster care by the Department of Human Services for fifteen (15) of the most recent twenty-two (22) months .... [or]
      2. The child has been placed in foster care by the Department of Juvenile Justice or in a child-care institution, as defined in Section 472(c)(2) of the Social Security Act, by the Department of Juvenile Justice for fifteen (15) of the most recent twenty-two (22) months....

      . Indeed, the record bears out State's custody of M.J. and J.J. for a period much longer: M.J. for about 36 months, and J.J. for about 18 months.

      . That section provides:
      ... [A] petition to terminate parental rights is not required based upon the following: 1. The child is being cared for by a relative; 2. The Department has compelling reasons for determining such a filing of termination of parental rights would not be in the best interests of the child; or

      . "[NJotice and an opportunity to be heard are two of the essential elements of due process of law."

      . Mother's challenges to the (A)(5) "failure to correct" instructions may, indeed, have some merit. See, In re F.B., 1999 OK CIV APP 96, 990 P.2d 309; In re L.G., 1993 OK CIV APP 162, 864 P.2d 1301; Matter of J.M., 1993 OK CIV APP 121, 858 P.2d 118. But see, In the Matter of A.G. and E.G., 2000 OK CIV APP 12, 996 P.2d 494. However, having found the trial court's (A)(15) instructions unaffected by error, and competent evidence to support the jury's determination of existence of the (A)(15) ground for termination, we find it unnecessary to address Mother's (A)(3) argument. j


text:
    2000 OK CIV APP 80
    In the Matter of the GUARDIANSHIP OF Ralph C. LOHSE, a partially incapacitated person. Deborah Ann Goodman, Petitioner/Appellee, v. Fred Whisenand, Contestant/Appellant.
    No. 93,683.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 26, 2000.

      Ernest F. Godlove, Godlove, Mayhall, Dzialo, Dutcher & Erwin, Lawton, Oklahoma, for Appellant.
    John Munkaesy, Ashton, Wisener & Mun-kacsy, P.C., Lawton, Oklahoma, for Appellee.
   JOPLIN, Judge:

1 Fred Whisenand (Contestant) seeks review of the trial court's order approving the Amended Guardianship Plan offered by Debra Goodman, (Goodman) guardian of the person of Ralph C. Lohse (Ward), for Ward's proposed care and maintenance, and denying Contestant's prayer for Goodman's removal as guardian. In this appeal, Contestant asserts the trial court erred as a matter of both fact and law in approving the proposed guardianship plan, and in failing to remove Goodman as Ward's guardian. Having reviewed the record, however, we find the order of the trial court unaffected by pure error of law or abuse of discretion. Accordingly, we hold the order of the trial court should be affirmed.

T2 Ward was born and raised in Williston, North Dakota. He married but had no biological children. However, Ward gave some assistance to his nephew-by-marriage (Chandler) while Chandler was in highschool. Although never formalized, Ward - also "adopted" Goodman when she was eight, changed her surname to his own, and with his wife, represented Goodman as his daughter to others.

"T3 Sometime after she attained majority, Goodman moved to Oklahoma and, in the early 1980s, married after her "adoptive" mother, Ward's spouse, died. At about the same time, Ward remarried and moved to California with his new spouse, but Goodman and Ward remained in contact, and Ward returned to Williston for visits approximately twice a year, maintaining a vacation apartment there. Sometime in the early 1990s, Ward consulted Contestant, who prepared Ward's Last Will and other documents placing Ward's rather considerable estate into a trust, and Ward appointed Contestant as his attorney in fact.

1 4 In 1997, Ward's second spouse suffered a stroke, and Ward granted Chandler a limited power of attorney to make decisions for Ward's healthcare. In 1998, Ward and his spouse returned to Williston, Ward's spouse apparently in need of full time hospitalization and/or nursing home care. During this same period, and with his mental health deteriorating, Ward, with Chandler's knowledge and consent, was moved to a nursing home in Williston.

15 Shortly thereafter, Goodman traveled to California to retrieve some of Ward's personal property, apparently at Ward's request. In December 1998, Goodman, with her husband and children, went to Williston, removed Ward from his nursing home, and returned to Oklahoma with Ward. Ward's second wife of 18 years died in early 1999.

16 Goodman subsequently applied for appointment as guardian of Ward's person. In March 1999, without objection by Ward, and upon Ward's nomination, the trial court appointed Goodman as guardian of Ward's per-

son. The trial court subsequently appointed an independent guardian of Ward's estate.

T7 Goodman consequently submitted a proposed Plan and Amended Plan for the care and maintenance of Ward. Contestant objected to the proposed guardianship plan as "not adequately address[ing] the needs of the Ward[,] lacking in detail and requestfing] unreasonable compensation and reimbursement." Contestant also requested the removal of Goodman as guardian of the Ward's person, alleging Goodman's "defalcation of the funds that belong to the Ward," "misuse of [Ward's] funds," "unduly influencing" the Ward in the expenditure of his funds, and "other actions" allegedly intended to benefit Goodman and her family without a "corresponding benefit to the Ward or his estate."

T8 Upon consideration of the parties' evidence and argument, the trial court denied Contestant's challenge to the guardianship plan and request for Goodman's removal as Ward's guardian. Contestant now seeks review in this Court.

19 Contestant first challenges the trial court's judgment as contrary to law. Here, Contestant argues that Oklahoma statute, 63 0.S$.1991 1-820, requires one providing a "residential care home" for "persons not related by blood or marriage to the owner ... of the home" to obtain Heensure from the state. So, says Contestant, inasmuch as Goodman is not legally related to Ward by blood or marriage, and cares for Ward in her home, but has obtained no appropriate license for that purpose, Goodman's plan should have been rejected and Goodman removed as guardian.

{10 As a matter of statutory construction, "Itlhe primary goal of statutory construction is, of course, to ascertain and follow the intent of the Legislature." Bruner v. Sobel, 1998 OK 60, ¶ 9, 961 P.2d 815, 817. And, "where the Legislature has clearly expressed its intent, the use of additional rules of construction are unnecessary and a statute will be applied as written." Id.

111 So guided, we find Contestant's reliance on § 1-820 misplaced. That definitional section contains the terms for application of the Oklahoma Residential Care Act, 68 0.8. 1991 1-819 et seq., to "any establishment or institution ... which offers or provides residential accommodations, food service, and supportive assistance to any of its residents or houses any residents requiring supportive assistance ..." The plain language of the statutory scheme, in our mind, clearly evinces our Legislature's intent to regulate only those businesses operated for the sole and exclusive purpose of providing room, board and other "supportive assistance" to the elderly or infirm for remuneration. In this respect, we discern no suggestion of legislative intent to regulate the provision of intra-familial care to elderly or infirm family members, particularly where the more expensive emotional and financial costs of institutionalized geriatric care are avoided.

[12 In this same vein, Contestant nevertheless challenges the guardianship plan for further violation of the Oklahoma Adult Day Care Act, 68 O.S. Supp.1998 1-870, et seq. Here, Contestant points out that Goodman's guardianship plan proposed care of Ward several days a week by a neighbor in the neighbor's home while Goodman attended to other family matters. However, says Contestant, § 1-872 of the Adult Day Care Act requires licensing of any "facility which provides basic day care services to unrelated impaired adults for more than four (4) hours" per day. Thus, concludes Contestant, inasmuch as the Ward is not related to the neighbor, and the neighbor, although providing "basic day care services," has obtained no license for that purpose, Goodman's plan should have been rejected and Goodman removed as guardian.

113 However, and as before, we construe the plain language of the Oklahoma Adult Day Care Act as imposing no requirement for licensure of intra-familial care-givers to elderly or infirm family members. As Contestant would construe the statutes, the fact that Goodman was not formally adopted is immaterial, for under Contestant's construction neither an adopted child, a foster child, nor anyone else otherwise unrelated by blood or marriage, but in a familial relationship with an elderly or infirm adult, could ever attend to the aged family member's needs without licensure, a result surely not within legislative contemplation.

T14 Contestant's remaining attacks, without citation of authority, merely outline Contestant's view of the evidence. Contestant complains the record amply shows inadequacy of Goodman's home to accommodate Ward's needs; Goodman's inability to provide a nourishing diet responsive to Ward's tastes; Goodman's inappropriate and undue influence and control of Ward's expenditures; and Goodman's insufficient training and assistance to attend to Ward's medical needs. However, the record also bears out Goodman's investment of considerable effort, time and expense-without meaningful assistance from Ward's trust-to ensure that Ward did not spend his remaining years institutionalized and bed-ridden in the throws of age-related dementia, including Ward in numerous activities such as Ward's grandchildren's sporting events, farming, local festivals and events, church activities, birthday celebrations and other outings, while also taking care of Ward's physical needs. Indeed, the trial court and most witnesses, including Ward's independent court-appointed attorney, noted Ward appeared clean, well-dressed, well-fed, and happy.

115 In reviewing this case, this Court presumes the trial court's decision to be correct and will not disturb that decision unless clearly contrary to the weight of the evidence. Matter of Estate of Eversole, 1994 OK 114, 17, 885 P.2d 657, 661. In the present case, Goodman properly filed and presented her Amended Plan for Ward's care pursuant to 30 0.8.1991 3-120 (B), and explained in detail expenditures past, present, and future, as well as plans for the on-going care of Ward. The trial court, unlike this Court, observed first-hand the demeanor of the witnesses and parties, including Ward, and considered the evidence presented sufficient to warrant denial of both Contestant's objection to the guardianship plan and Contestant's prayer for removal of Goodman as guardian. - Having independently reviewed the record, we find the trial court's judgment unaffected by legal error or abuse of discretion, and not clearly against the weight of the evidence.

' 16 The orders of the trial court should be and are therefore AFFIRMED.

€ 17 HANSEN, V.C.J., and ADAMS, J., concur. -

      . All parties agree that it was "common knowledge" that Goodman was the adopted daughter of Ward and his spouse. However, and although Ward held Goodman out as his daughter-even to his attorney-in-fact, Whisenand,-Ward never initiated any formal adoption proceeding, a fact unknown to any of the parties except Ward. In this respect, Goodman adduced evidence below tending to show that upon the death of Goodman's biological parents, Ward and his spouse assumed Goodman's care and custody, but did not initiate adoption proceedings in order to collect payments from Goodman's father's estate to which Goodman was entitled, but which would have ceased if formal adoption proceedings had been finalized.

      . Indeed, Contestant, the trustee of Ward's trust, and Goodman all agreed Ward should remain in Goodman's custody with the issue of appointment of a guardian of Ward's estate to be later determined.

      . The initial challenge was filed by Donald Arn-son, apparently related by marriage to Ward's second wife. Thereafter, Contestant entered his appearance, adopting the filings and arguments of Arnson. -It appears from the record that Arn-son was subsequently not active in the case.

      . As an example, 63 O.S.1991 1-820 (16) presumes that the owner of such a facility is "the person or entity that stands to profit or lose as a result of the financial success or failure of the operation." (Emphasis added).

      . Although Goodman did use some of Ward's personal funds to facilitate the move from both California and North Dakota which the trustee and Contestant refused to pay, the trial court adjusted the finances after hearing allowing Goodman to retain some of the funds as reimbursement and ordering Goodman to repay the trust the excess.


text:
    2000 OK JUD 1
    William H. MATTINGLY, Associate District Judge, Osage County, Oklahoma, Petitioner, v. The COURT ON the JUDICIARY, TRIAL DIVISION, Respondent.
    No. CJAD-2000-1.
    Courﬁ on the Judiciary of Oklahoma, Appellate Division.
    July 5, 2000.

      W. Robert Wilson, Wilson & Payne, Pa-whuska, Oklahoma, for Petitioner, William H. Mattingly, Associate District Judge, Osage County, Oklahoma.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Oklahoma City, Oklahoma and Cynthia L. Sparling, Short, Wiggins Margo & Adler, Oklahoma City, Oklahoma, for Respondent, Court on the Judiciary, Trial Division.
   PER CURIAM.

FACTS AND PROCEDURAL BACKGROUND

T1 On February 10, 2000 the State of Oklahoma ex rel. W.A. Drew Edmondson, Attorney General of the State of Oklahoma, filed a petition in the Court on the Judiciary, Trial Division, against Petitioner here, William H. Mattingly. Judge Mattingly is the Associate District Judge in Osage County, Oklahoma. The Attorney General filed his petition on the basis of allegations supplied to him by the Council on Judicial Complaints and alleged that Judge Mattingly had delayed filing an order disposing of a divorce case for 115 days following the time the case became at issue. The Attorney General alleged that the Court on the Judiciary's jurisdiction was based on Okla. Const. Art. 7-A § 4. Section 4 mandates that any petition invoking the jurisdiction of the Court on the Judiciary "shall state ... the grounds upon which his removal from office or compulsory retirement from office is sought." Neverthe-legs, the Attorney General did not allege that Judge Mattingly should either be removed from office or required to retire. Instead, the Attorney General alleged "that the above-enumerated acts by - Respondent [Judge Mattingly] warrant discipline."

12 The Attorney General alleged that Judge Mattingly had violated Rule 27, Rules for District Courts, which provides, "In any matter taken under advisement, a decision shall be rendered within sixty (60) days of the date on which the matter was taken under advisement or, if briefs are to be submitted, within sixty (60) days of the date of the filing of the final brief...." It is undisputed that Judge Mattingly had filed his order about which the Council on Judicial Complaints and the Attorney General complain before the investigation of his conduct was begun.

T3 The Attorney General also alleged as misconduct against Judge Mattingly the filing of other delinquent orders. One of these delinquent orders had been the subject of a request by the Council on Judicial Complaints, in 1998, to the Chief Justice of the Supreme Court to approve a private reprimand of Judge Mattingly. The Council on Judicial Complaints, however, dismissed its complaint when the Supreme Court called for briefs on the constitutionality of 20 O.S. Supp.1997 § 1658. The 1997 amendment to § 1658 purported to invest the Council on Judicial Complaints, subject to the approval of the Chief Justice, with jurisdiction to "issue reprimands and admonitions. According to the Attorney General's petition in the current action, although the Council on Judi-clal Complaints dismissed the complaint it had filed with the Chief Justice, the Council advised Judge Mattingly that, despite its having been dismissed, the Council's complaint against him would "become a part of the permanent record of the Judge."

T4 On March 8, 2000, Judge Mattingly filed an answer, a motion to dismiss, alternative motion to strike or for summary judgment, and a supporting brief before the Court on the Judiciary, Trial Division. In his motion to dismiss, Judge Mattingly contended that the Council on Judicial Complaints and the Court on the Judiciary were without jurisdiction in the matter. The presiding judge of the Trial Division notified Judge Mattingly's counsel that Judge Mat-tingly's motions would not be specially set for hearing but instead would be considered by the court as a preliminary matter on the morning the matter was set for trial on the merits, April 24, 2000.

T5 Judge Mattingly then filed this original action, contending that the Trial Division's refusal to consider his motions questioning the jurisdiction of the Council on Judicial Complaints and the Court on the Judiciary before the morning the matter was set for trial on its merits deprived him of a remedy to seek relief from this Court. Judge Mat-tingly contended that if his motions were either denied or taken under advisement by the Trial Division he would be deprived of the right to seek an extraordinary writ from this Court. Judge Mattingly argued that a remedy by appeal after a trial on the merits would have been inadequate because the Trial Division would have proceeded to trial on the matter, although it lacked jurisdiction to do so. ‘

T6 On March 30, 2000, Judge Mattingly filed in this Court an application to assume original jurisdiction, a petition for writ of prohibition, and for an order staying proceedings in the Trial Division. On April 18, 2000, we entered an order assuming original jurisdiction and staying all proceedings in the Trial Division until further order of the Court.

ISSUE

T7 Do the Council on Judicial Complaints and the Court on the Judiciary have jurisdiction to consider matters concerning the conduct of judges that, even if proven to be true, would not be so serious as to warrant the judge's removal from office or compulsory retirement?

We answer the question no.

DISCUSSION

I.

This Court has jurisdiction to hear and act on Judge Mattingly's petition for extraordinary relief.

%8 This Court has power to hear and consider original actions and issue extraordinary writs where the claim is made that the Court on the Judiciary, Trial Division, has exceeded its jurisdiction. Okla. Const. Article 7-A § 8(c) provides:

In the exercise of its jurisdiction, the Court [on the Judiciary] is vested with full judicial power and authority, including the power to ... issue all manner of judicial and remedial process and writs, legal or equitable. ... The specific enumeration of powers herein shall not derogate from the existence of other judicial power and authority in the Court, or from the exercise thereof in aid of its jurisdiction.

F9 In Haworth v. Court on the Judiciary, Trial Division, 1975 OK JUD 1, 684 P.2d 1217, we assumed original jurisdiction and issued a writ prohibiting the Trial Division from proceeding further in a matter filed against a judge. There, we held that 20 § 1659 was unconstitutional to the extent that it purported to impose a mandatory duty upon the Attorney General to file an action against a judge at the direction of the Council on Judicial Complaints without the Attorney General's independent exercise of discretion. We said in Haworth,

We find that the Oklahoma Constitution, which created the Court on the Judiciary, by naming the officers and bodies who can invoke the jurisdiction of the Court on the Judiciary, has purposely limited this group and that it cannot be enlarged nor can the discretion of said group be limited by legislative action.

684 P.2d at 1218. The teaching of Haworth is that the Council on Judicial Complaints lacks jurisdiction "to invoke the jurisdiction of the Court on the Judiciary" or to substitute its own discretion for that of the officers charged with that duty by the constitution.

We held in Haworth, and reaffirm now, that this Court has authority to assume original jurisdiction in an appropriate case. We hold, therefore, that we have jurisdiction in this matter to issue any writ that may be necessary in aid of our jurisdiction.

{10 We hold that the Trial Division should have set Judge Mattingly's motions, which if granted would have disposed of the matter, sufficiently in advance of the trial date to have allowed Judge Mattingly time to seek relief from this Court in the event of an adverse ruling. The jurisdictional questions raised by Judge Mattingly's motions raised serious questions as to the Trial Division's jurisdiction and were unmixed questions of law. The failure of the Trial Division to dispose of them sufficiently in advance of the trial date to afford Judge Mattingly an opportunity to seek relief from this Court before trial deprived Judge Mattingly of his due process right to test the Trial Division's jurisdiction and to avoid expending the time and money required by a trial.

IL

The Council on Judicial Complaints and the Court on the Judiciary are without jurisdiction to consider allegations of misconduct by a judge that, even if true, would not call for the judge's removal from office or compulsory retirement. >

1 11 The Court on the Judiciary was created by a series of amendments to the constitution, Okla. Const. Art. 7-A §§ 1 et seq., passed by a vote of the people in 1966. Okla. Const. Art. 7-A § 1 provides that judges

. shall be subject to removal from office, or to compulsory retirement from office, for causes herein specified, by the Court on the Judiciary.

Okla. Const. Art. 7-A § 1(a). are: Those causes

... Gross neglect of duty; corruption in office; habitual drunkenness; commission while in office of any offense involving moral turpitude; gross partiality in office; oppression in office; or other grounds as may be specified hereafter by the legislature."

Okla. Const. Art. -A § 1(b).

1 12 Okla. Const. Art. 7-A § 4 provides:

The petition [invoking the jurisdiction of the Court on the Judiciary] shall state ... the grounds upon which his removal from office or compulsory retirement from office is sought.

[Emphasis added.] Okla. Const. Art. 7-A § 4(a). Under §§ 1 and 4, then, proceedings properly brought under Art. 7-A must be for no other purpose than that of removing or retiring the judge who is the subject of the proceeding.

113 The quoted portions of §§ 1 and 4 expressly limit the Court on the Judiciary's jurisdiction to those matters where the respondent judge's "removal from office or compulsory retirement" is sought. Here, however the Attorney General's petition against Judge Mattingly on the relation of the Council on Judicial Complaints does not seek Judge Mattingly's removal. Instead, the Attorney General alleges only that Judge Mattingly's acts "warrant discipline."

The Council on Judicial Complaints was created in 1974 by 20 O.8. §§ 1651, et seq. and remained largely unchanged until 1997. In 1997, 98, and 99, the Legislature passed a series of amendments to 20 0.8.1991 §§ 1651, et seq., which purported to significantly broaden the power and influence of the Council on Judicial Complaints. The jurisdictional issue presented here requires us to interpret and pass on the constitutionality of some of those changes.

115 Title 20 0.8.1999 § 1651 purports to make it the public policy of the state to invest the Council on Judicial Complaints with jurisdiction to determine whether complaints should "be made the subject of action before the Court on the Judiciary for the purpose of removal, reprimand or admonition...." [Emphasis added.] Title 20 0.8. 1999 § 1651(2)(a). The words "reprimand or admonition" did not appear in the original 1974 version of § 1651. The words "reprimand or admonition" did not appear in § 1651 until the 1998 amendment to its terms.

16 A comparison of Art. 7-A §§ 2 and 4 to the current version of 20 O.S. § 1651 shows that § 1651, by purporting to give the Council on Judicial Complaints and the Court on the Judiciary jurisdiction to act for the purpose of "reprimand or admonition," would grant jurisdiction to the Council on Judicial Complaints and the Court on the Judiciary beyond that given to the Court on the Judi-clary by Okla. Const. Art. 7-A and contrary to powers vested in the Supreme Court by Okla. Const. Art. 7. Okla. Const. Art. 7 §§ 4 and 6 grant certain exclusive supervisory and administrative powers over inferior courts to the Supreme Court. Art. 7 § 4 provides:

... The original jurisdiction of the Supreme Court shall extend to a general superintendent control over all inferior courts ...

Okla. Const. Art. 7 § 4.

Section 6 provides:

Except with reference to the Senate sitting as a Court of Impeachment and the Court on the Judiciary, general administrative authority over all courts in this State ... is hereby vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules.

[Emphasis added.] Okla. Const. Art. 7 § 6. Thus, to interpret the powers of the Court on the Judiciary as the Attorney General would do here, seeking to merely discipline rather than remove a judge, would both grant the Court on the Judiciary powers not given by Okla. Const. Art. 7-A §§ 1 and 4 and deprive the Supreme Court of its responsibility to exercise "superintendent control" and "administrative authority" over the courts of the state mandated by Okla. Const. Art. 7 §§ 4 and 6.

117 The Supreme Court discussed whether jurisdiction of a matter before it lay in the Supreme Court or before the Council on Judicial Complaints and of this Court in Council on Judicial Complaints v. Maley, 1980 OK 32, 607 P.2d 1180. In holding that jurisdiction lay in the Supreme Court, the court described the limitations on the Court on the Judiciary's jurisdiction:

We must first be satisfied that jurisdiction over this proceeding rests with this Court rather than the Court on the Judi-clary. Although the general subject matter concerns a complaint against a judge, the trial court's order under attack was entered in a libel action. The Court on the Judiciary is without authority to control the actions of a trial judge in any civil action. - Its jurisdiction is invoked only when a complaint has been filed with it against a judicial officer alleging one of the causes for removal or compulsory retirement specified in Article ?7-A, Okla. Const., or, 20 0.8. Supp.1979 1404. Superintending control of inferior courts is vested in the Supreme Court by Article 7, Section 4, of the Oklahoma Constitution, and we therefore find that we have jurisdiction in this matter.

[Emphasis added.] 1980 OK 832 at 17, 607 P.2d 1180. The court also observed, "The Council on Judicial Complaints is only an investigatory body. It may not adjudicate any matter ror impose any sanction." [Emphasis added.] 1980 OK 32 at T 11, 607 P.2d 1180.

$18 In his petition, the Attorney General cites to 20 O.S8. Supp.1997 § 1404(B)(2), which legislatively adds to the grounds for removal found in Okla. Const. Art. 7-A § 1(b), "Continued willful failure of a judicial officer to comply with rules and directives of the Supreme Court, the presiding judge of his administrative district, or the chief judge of the judicial district." Okla. Const. Art. 7-A § 1(b) includes "other grounds as may be specified hereafter by the legislature" as grounds for removal from office. Nevertheless, in order to pass constitutional muster any additional ground for removal set out in 20 O.S. Supp.1997 § 1404(B) must define misconduct so serious that, if proved, would call for a judge's removal.

119 The Legislature was authorized by Okla. Const. Art. 7-A § 1(b) to specify "other grounds" for the removal of judges from office but the grounds included by § 1(b)'s framers were "Gross neglect of duty; corruption in office; habitual drunkenness; commission while in office of any offense involving moral turpitude; gross partiality in office; [and] oppression in office ..." We hold, therefore, that discipline for any misconduct of a judge not serious enough to require removal or compulsory retirement is within the exclusive jurisdiction of the Supreme Court under its powers to superintend and administer the courts. The Council on Judicial Complaints and the Court on the Judiciary lack jurisdiction to reprimand, or discipline in any other way, judges whose claimed misconduct is not so serious that, if proved, would call for the judge's removal from office.

20 In State ex rel. Simms v. McCallister, 1986 OK JUD 1, 721 P.2d 427, we affirmed the imposition of a four-month suspension on a judge by the Trial Division. The Attorney General argued before the Trial Division in this matter that McCallister stands for the proposition that the Court on the Judiciary has jurisdiction to impose sanctions other than removal or compulsory retirement. McCallister, however, is inapposite here as the Trial Division in that case found, with ample record support, that the judge's conduct "constitute(s] oppression in office." Further, the petitioner in McCallister had sought the judge's removal from office. Thus, in McCallister, unlike this matter, the Court on the Judiciary's jurisdiction was properly invoked because the petitioner sought the judge's removal and alleged facts to support its allegations.

121 Judge Mattingly suggests with some credibility that the complaint lodged against him by the unsuccessful litigant in the divoree case was based not on dissatisfaction with the time in which the decision was rendered but on the results of the decision. Judge Mattingly claims, without contradiction, that in the course of his eleven year career as an Associate District Judge he has seldom been reversed on appeal.

1[ 22 We hold that the violations of Rule 27 by Judge Mattingly, which caused no complaint by any litigant or lawyer who appeared before the judge until after he had rendered his decision, were not "Continued wilful failure .,. to comply with rules and directives." 20 0.8. Supp.1997 § 1404(B)(2). The only complaints giving rise to the Council on Judicial Complaints's investigation of Judge Mat-tingly's conduct were that of the losing party in a complex and hotly contested divorce action and, tangentially, that of the Council on Judicial Complaints from the late filing of other orders, which had been the subject of a proceeding the Council on Judicial Complaints had previously dismissed.

I 23 Obvious problems would be created by allowing the Council on Judicial Complaints to institute proceedings that sought only to reprimand or admonish judges for conduct not claimed to be so serious that the conduct required removal or retirement from office. Such problems as filing an order late, as has been alleged against Judge Mattingly, should be corrected within the traditional constitutional court system, by seeking a writ of mandamus against the tardy judge from the Supreme Court or seeking reassignment of the case from the presiding judge of the judicial district in which the tardy judge sits. The initiation of formal proceedings arising from complaints about conduct not serious enough to call for removal from the bench must not be left to a legislatively created administrative council.

T24 The 1999 amendment to 20 O.S. § 1652 provides, "The Council on Judicial Complaints is an agency in the Executive Department." - Title 20 O.S8. Supp.1999 § 1652(A). To allow the Council on Judicial Complaints, "an agency in the Executive Branch," to institute actions against a judge, for conduct that obviously falls short of the sort of conduct that would call for removal and where removal is not sought is prohibited by the constitution. Okla. Const. Art. 7-A §§ 1, et seq. creates an extraordinary procedure meant to address an extraordinary problem: performance by a judge so substandard that his removal or forced retirement is thought to be required. We hold that the proceeding against Judge Mattingly does not rise to the level of misconduct envisioned by the framers of Okla. Const. Art. 7-A §§ 1, et seq. to invoke the jurisdiction of the Court on the Judiciary. Our conclusion is buttressed by the fact that the conduct complained of against Judge Mattingly was moot before the complaint against him was filed with the Council on Judicial Complaints.

1 25 To the extent that 20 O.S. Supp.1999 §§ 1651, et seq. could be construed to allow the Council on Judicial Complaints to seek invocation of the jurisdiction of the Court on the Judiciary from any of the officials mentioned in Okla. Const. Art. 7-A § 4(a) for any purpose other than the removal or compulsory retirement of judges, we hold that those sections are unconstitutional.

1 26 We hold, for the reasons stated in this opinion, that the Council on Judicial Complaints lacked jurisdiction to institute, and the Court on the Judiciary lacks jurisdiction to consider, the allegations contained in the Attorney General's petition against judge Mattingly. It is the order of the Court, therefore, that the Attorney General's petition against Judge Mattingly should be and is hereby dismissed.

ORIGINAL JURISDICTION PREVLI-OUSLY ASSUMED, WRIT OF PROHIBITION GRANTED, PETITIONERS PETITION DISMISSED.

27 ALL JUDGES CONCUR.

      . Title 20 O.S. Supp.1997 § 1658 provided in full as follows:
      The Council shall promptly investigate all complaints received by it, and shall determine the proper disposition thereof, as provided in Sections 1651 through 1661 of this title. To that end, it shall have power to hold hearings, administer oaths or affirmations, receive testimony and other evidence, issue and serve or cause to be served subpoenas requiring testimony or the production of books, records, papers or other tangible evidence and, if approved by the Chief Justice of the Supreme Court, issue reprimands and admonitions. The Council is hereby authorized to require in aid of its investigatory functions the services of the Oklahoma Bureau of Investigation or of any governmentally supported investigatory agency or, upon authorization of the Board of Governors of the Oklahoma Bar Association, of the services of the Oklahoma Bar Association. In the event of contemptuous refusal to obey its lawful orders, it may take such steps as are necessary to maintain order in its session; as to contempts not affecting the maintenance of order, it shall certify the matter to the Chief Justice of the Supreme Court, who shall assign the case for trial and appropriate disposition to a judge of a district court. In such proceeding, the General Counsel of the Oklahoma Bar Association shall act as prosecutor against the alleged contemnor. All proceedings under this section shall be held in secrecy to the same extent as proceedings before a grand jury; provided however, a reprimand or admonition to a judge who shall have previously received a reprimand or admonition shall, at the discretion of the Council, be made public.
      [Emphasis added.]

      . In 1999 the Legislature again amended 20 O.S. § 1658 and eliminated the power of the Council on Judicial Complaints to issue reprimands and admonitions under any circumstances. Title 20 O.S. Supp.1999 § 1658.

      . Title 20 0.$.1981 § 1659 provided:
      In the event the Council finds that the complaint should be made the subject of proceedings before the Court on the Judiciary, it shall forward all papers concerning the same, together with its findings, to the Attorney General, who shall promptly file a petition invoking the jurisdiction of the trial division of the Court on the Judiciary in accordance with Section 4(a) of Article 7-A of the Constitution of Oklahoma. Thereafter, the matter shall proceed in accordance with the applicable constitutional provisions, statutes and rules of the said Court on the Judi-clary.

      . Okla. Const. Art. 7-A § 4(a) provides:
      The jurisdiction of the Trial Division of the Court may be invoked by a petition, filed either by the Supreme Court or the Chief Justice thereof; by the Governor; by the Attorney General; or by the Executive Secretary of the Oklahoma Bar Association when directed so to do by a vote of a majority of all members of its Executive Council; or by Resolution of the House of Delegates or by Resolution of the House of Representatives of the State of Oklahoma. The petition shall state the name of the respondent; the grounds upon which his removal from office or compulsory retirement from office is sought; and such other matters as may be specified by the rules of the Trial Division. It shall be subject to amendment by order of either division of the Court.

      . Title 20 O.S. Supp. 1997 § 1404 provides in its entirety as follows:
      A. As used in this section, the term "judicial officer" includes the judges of all courts created by the state or municipalities of the state. B. In addition to the causes specified in Article 7-A, Section 1 of the Oklahoma Constitution, the acts and omissions enumerated below shall constitute grounds for the removal by the Court on the Judiciary of a judicial officer from his office, with or without disqualification to hold a judicial office in the future:
      1. The acceptance of a fee, or gratuity, other than that specifically provided by law, for performing any act in a judicial officer's capacity as a judge.
      2. Continued willful failure of a judicial officer to comply with rules and directives of the Supreme Court, the presiding judge of his administrative district, or the chief judge of the judicial district.
      3. - Participation by a judicial officer, while serving as such officer or while a candidate for judicial office, in any partisan political activity. But the term "partisan political activity," as used herein, shall not include the attendance by a judicial officer or by a candidate for a judicial office at a political gathering, upon payment of a nominal admission fee, for the sole purpose of campaigning in his own behalf for a judicial office.
      4. Participation by a judicial officer, while serving as such officer or while a candidate for a judicial office, in any election campaign other than that for his own election to a judicial office.
      5. A judicial officer becoming a candidate for any nonjudicial office or for another judicial office whose term is to commence before the expiration of his present term of office; provided that no judge holding a nonelective judgeship shall become a candidate in a race in which the incumbent seeks to retain an elective judicial office unless he first resign his appointive judgeship. 6. A judicial officer, while serving as such officer or while a candidate for a judicial office, making publicly known in his campaign material or speeches, or knowingly permitting others to make publicly known, either directly or by implication, his political party affiliation.
      C. Violation by a judicial officer of the Code of Judicial Conduct as adopted by the Supreme Court of Oklahoma on July 15, 1974, or as may be thereafter amended, may constitute grounds for the removal by the court on the judiciary of a judicial officer from office, with or without disqualification to hold a judicial office in the future.
      [Emphasis added.]


author: PER CURIAM.

text:
    2000 OK JUD 2
    Gregory K. FRIZZELL, District Judge, Tulsa County, Oklahoma, Petitioner, v. The COURT ON The JUDICIARY, TRIAL DIVISION, Respondent.
    No. CJAD-2000-2.
    Court on the Judiciary of Oklahoma, Appellate Division.
    July 19, 2000.

      James M. Sturdivant, Gable & Gotwals, Tulsa, Oklahoma, James W. Connor, Jr. & Thomas D. Hird, Richards & Connor, Tulsa, Oklahoma, and John M. Imel, Moyers, Martin, Santee, Imel & Tetrick, Tulsa, Oklahoma, for Petitioner, Gregory K. Frizzell.
    Cynthia L. Sparling, Short, Wiggins Margo & Adler, Oklahoma City, Oklahoma, for Respondent, The Court on the Judiciary, Trial Division.
   PER CURIAM.

T1 The issue presented here is the same issue presented to us in Mattingly v. The Court on the Judiciary, Trial Division, No. CJAD-2000-1, and is as follows:

Do the Council on Judicial Complaints and The Court on the Judiciary have jurisdiction to consider matters concerning the conduct of judges that, even if proven to be true, would not be so serious as to warrant the' judge's removal from office or compulsory retirement?

12 This Court handed down its decision in Mattingly on the 5th day of July, 2000, and we find that the issue involved here is the same as that in Mattingly and is controlled by that case. Accordingly, we hold that the Council on Judicial Complaints lacked jurisdiction to institute, and the Court on the Judiciary lacks jurisdiction to consider, the allegations contained in the Attorney General's petition against Judge Frizzell. It is the order of this Court, therefore, that the Attorney General's petition against Judge Frizzell should be and is hereby dismissed.

ORIGINAL JURISDICTION PREVIOUSLY ASSUMED, WRIT OF PROHIBITION GRANTED, PETITIONER§ PETITION DISMISSED.

LINDLEY, P.J., LAVENDER, WATT, STRUBHAR, ELLIS, MeBEE, LINDER, and LANNING, JJ.-eoneur.

WINSLOW, J. -disqualified.


author: DURHAM, Justice:

text:
    2000 UT 68
    STATE of Utah, Plaintiff and Appellee, v. Gary Owen REED, Defendant and Appellant.
    No. 990289.
    Supreme Court of Utah.
    Aug. 18, 2000.

      Jan Graham, Att'y Gen., Christine F. Sol-tis, Asst. Att'y Gen., Susan Hunt, Margaret Olson, Salt Lake City, for plaintiff.
    Patrick L. Anderson, Salt Lake City, for defendant.
   DURHAM, Justice:

{1 Gary Owen Reed appeals from a final order denying a motion for a new trial and from convictions of two counts of sodomy on a child, a first degree felony, and one count of aggravated sexual abuse of a child, also a first degree felony. Reed raises four claims of error: (1) inadequate jury voir dire; (2) prosecutorial misconduct; (8) failure to bifurcate the trial proceedings; and (4) an improper elements instruction to the jury. We affirm.

BACKGROUND

1 2 Beginning in the fall of 1992, Reed, who was in his late twenties, befriended the victim, a ten-year-old child in the fifth grade. Reed quickly developed an unusually close attachment to the victim and began visiting him frequently at his home and taking him on outings. The victim's mother objected to Reed's relationship with her son, and confronted Reed on numerous occasions-some one hundred times-which often resulted in shouting matches, shoving bouts, and mutual threats. These confrontations on one occasion led the mother to drive her car into Reed's motorcycle, and on another led the victim's stepfather to punch Reed in the face, breaking his nose. After each confrontation, however, Reed insisted that he would continue seeing the victim because the victim was his "best friend" and they had "a great time together."

13 As the mother's opposition grew, Reed began visiting the victim when she was not at home. Reed also took the victim away from the home, to such places as Lagoon, the 49th Street Galleria, the Sports Park, parking lots, Reed's house, and the private apartment of a friend. Reed also took the victim to such places during school hours. This was all done without the mother's knowledge or permission. During this period, Reed gave the victim gifts, money, and even marijuana, and also let the victim drive his van on many occasions. When the victim's family moved from Salt Lake City to Magna, Reed continued to pursue the victim and visited him often.

{4 Throughout this period, the victim's mother continuously tried to end Reed's relationship with her son. She spoke to all of her son's teachers and to the police detective assigned to the school, who would call her if they saw Reed's van at the school. She also talked to Reed's roommates and his employer, and even tried to talk to his mother.

1 5 Reed displayed an obsessive disposition toward the victim, often saying that he loved him and would always be with him, and that he always wanted to be able to see him and never wanted to be unable to talk to him. Reed even devised a system of communication in which he would use a walkie-talkie to contact the victim.

T6 From very early in the relationship, Reed began having sexual contact with the victim, the first incident occurring in the fall of 1992. These acts consisted of Reed's fondling the victim's genitalia and anal area, performing fellatio on the victim, and engaging in sodomy. The sex acts, some twenty to thirty incidents, began when the victim was ten years old and in the fifth grade and continued over three and one-half years, ending when the victim was thirteen years old and in the seventh grade. The victim testified that these sex acts made him feel "weird," "uncomfortable," and "gross."

T7 During the first year after this relationship began, the victim started to get into trouble with the authorities. He was referred to juvenile court and placed on probation for such things as stealing, running away, and other unruly behavior. As a condition of his probation, the victim was barred from seeing Reed. Despite this, Reed continued to pursue a relationship with the victim. Finally, in May of 1995, the victim was placed in detention after being caught with Reed during school hours. It was during this detention that the victim first disclosed the sexual nature of Reed's three-and-a-half-year relationship with him.

ANALYSIS

I. ADEQUACY OF VOIR DIRE PROCEEDINGS

T8 Reed's first point on appeal is that the trial court abused its discretion by failing to conduct adequate voir dire examination of the jury. Specifically, Reed argues that the trial court failed to ask a requested follow-up question to particular jurors who had personally known a victim of sexual abuse. The exact question defense counsel requested was:

[Whether they [the jurors] would tend to believe the victim over the person accused of the crime, simply because of their association with people that they know that have been accused [sic] in the past.

T9 According to Reed, this question was necessary because jurors who knew abuse victims might be predisposed to believe the alleged victim rather than the accused. Reed argues that not asking the requested follow-up question was an abuse of discretion because no other question during voir dire adequately addressed this issue.

110 Our analysis is governed by State v. Piansiaksone, 954 P.2d 861 (Utah 1998), in which we held: "''Whether the trial court abused its discretion [in determining the scope of voir dire] turns on whether, considering the totality of the questioning, counsel was afforded an adequate opportunity to gain the information necessary to evaluate jurors?" Id. at 868 (quoting State v. Bishop, 753 P.2d 439, 448 (Utah 1988)); see also State v. Worthen, 765 P.2d 889, 844-45 (Utah 1988).

T11 We further stated in Piansiaksone that trial courts should Hiberally conduct voir dire proceedings " 'in a way which not only meets constitutional requirements, but also enables litigants and their counsel to intelligently exercise peremptory challenges and which attempts, as much as possible, to eliminate bias and prejudice from the trial proceedings." Piansiaksone, 954 P.2d at 867 (quoting State v. James, 819 P.2d 781, 798 (Utah 1991)); see also State v. Taylor, 664 P.2d 439, 447 (Utah 1988) ("[Vjoir dire examination has as its proper purposes both the detection of actual bias and the collection of data to permit informed exercise of the peremptory challenge." (citations omitted)). We also indicated that " 'failure to question jurors concerning issues in any certain way desired by counsel or to ask any specific question desired by counsel does not rise to the level of a constitutional violation so long as the relevant areas of bias have been covered." " - Piansiaksone, 954 P.2d at 867 (quoting James, 819 P.2d at 798).

{ 12 Viewing the totality of the questioning in this case, we conclude that the trial court adequately covered, either directly or indirectly, the area of potential bias identified by Reed. The trial court's first pre-trial instruction to the prospective jurors informed them that this case involved two counts of sodomy upon a child and one count of aggravated sexual abuse of a child. Thus, the prospective jurors knew at the outset that the victim in this case was a child. The trial court subsequently asked the prospective jurors whether they would automatically believe a child witness over an adult, or vice versa. The trial court also asked the prospective jurors whether they would accord proper credibility to the testimony of a witness, without regard to employment, age, or circumstances.

113 Furthermore, the trial court, in response to defense counsel's request, asked again whether the jurors would believe the testimony of a child simply because he or she was a child. Although the trial court did not use the exact terms defense counsel proposed, namely the "victim" and the "person accused," in the context of this case the trial court's questioning clearly addressed Reed's concerns for potential bias. As was plainly known to all, the alleged victim was a child; therefore, asking the questions as the trial court did was sufficient to reveal any bias the jurors would have had in believing a "victim" rather than the "person accused."

1 14 Additionally, Reed's reliance on State v. Saunders, 1999 UT 59, 992 P.2d 951, is misplaced. In Saunders, we noted that a problem in some child sex abuse cases is that "[slome are inclined to accept without any hesitation a child's accusation of abuse, even in circumstances where false charges of abuse are known to occur." Id. at 146. In the instant case, the trial court thoroughly questioned the potential jurors regarding the issue of whether they would be inclined to believe the alleged child victim over the alleged adult perpetrator. Therefore, the concerns noted in Saunders were adequately addressed during the examination of the potential jurors.

115 We are satisfied that the trial court properly probed the jurors for potential bias, allowing counsel to exercise informed peremptory challenges. The trial court did not restrict counsel in pursuing further questioning, and indeed invited counsel to submit additional questions. Defense counsel, therefore, had ample opportunity to engage in follow-up questions. Instead, defense counsel passed the jury panel for cause and was apparently satisfied with the voir dire and the trial court's management of it.

II. PROSECUTORIAL MISCONDUCT

116 Reed contends that the prosecutor elicited inadmissable testimony that improperly influenced the jury's verdict. The exchange in question occurred during the prosecutor's examination of the detective who originally questioned Reed:

Q: [prosecutor] Where did you contact [the appellant]?
A: [detective] He was contacted by phone, and then he met me for an interview.
Where did you meet him?
What building?
Yes. Physically where did you and-
In the Office of Adult Parole and Probation.

(Emphasis added.)

117 Reed argues that the detective's reference to the Office of Adult Parole and Probation likely caused the jurors to infer that Reed was on probation or parole, thus improperly tainting the trial with inadmissa-ble evidence of Reed's criminal background.

118 We review rulings on motions for a mistrial based on prosecutorial misconduct for abuse of discretion. See State v. Hay, 859 P.2d 1, 6 (Utah 1998). Prosecutorial misconduct occurs when the prosecutor's comments

call the jurors' attention to matters not proper for their consideration and when the comments have a reasonable likelihood of prejudicing the jury by significantly influencing its verdict. If the prejudice is such that there is a reasonable likelihood the jury would have reached a more favorable result absent the comments, we will reverse.

State v. Pearson, 943 P.2d 1347, 1352 (Utah 1997); see also State v. Harmon, 956 P.2d 262, 276 (Utah 1998) (stating that the standard is met only if the error is "substantial and prejudicial" (internal quotation marks and citations omitted)).

119 In this case, it is extremely unlikely that the jury drew the inference Reed describes. The jury heard merely that Reed was called to come to the Office of Adult Parole and Probation for the purpose of an interview, not because he was on parole or probation. As the trial court observed, this was "simply a reference to an office where the meeting was conducted, just like the sheriffs office," and did not supply "any basis upon which the jury [could] conclude that Mr. Reed was a convicted felon, or something such as that." Furthermore, a review of the record reveals that nothing was said during the trial that could have in any way suggested that Reed had participated in criminal activity or had a criminal record unrelated to the charges in this case. We agree with the trial court and conclude that the isolated reference was insufficient to constitute prose-cutorial misconduct.

III. BIFURCATION

T20 Reed's third point on appeal is that the charge of aggravated sexual abuse under Utah Code Ann. § 76-5-404.1(8)(g) (1999) required a bifurcated trial proceeding, in which the underlying offense should have been proved first before evidence of the aggravating offenses was presented to the jury. Because trial counsel did not request bifurcation below, Reed seeks review of this issue under the plain error and ineffective assistance of counsel standards.

{21 Section 76-5-404.1(8)(g) states:

(8) A person commits aggravated sexual abuse of a child when in conjunction with the offense described in Subsection (1) any of the following cireumstances have been charged and admitted or found true in the action for the offense:
(g) the accused committed, in Utah or elsewhere, more than five separate acts, which if committed in Utah would constitute an offense described in this chapter, and were committed at the same time, or during the same course of conduct, or before or after the instant offense.

Utah Code Ann. § 76-5-404.1(8)(g).

T 22 Applying this statute in State v. Wareham, 772 P.2d 960 (Utah 1989), we held that

a defendant's guilt or innocence on the primary charge of sexual abuse should first be determined by the trier of fact before evidence of the aggravating acts are adduced under subsection (8)(g) of [section 76-5-404.1]. If the jury convicts on the primary charge, then evidence of the additional acts charged should be adduced and a second verdict returned determining whether the defendant is guilty of aggravated sexual abuse or simple sexual abuse.

Id. at 965.

T23 This bifurcated procedure, as first articulated by Justice Zimmerman in State v. Bishop, 758 P.2d 439, 498 (Utah 1988) (Zimmerman, J., concurring in result, and Stewart, A.C.J., and Durham, J., concurring in the opinion of Zimmerman, JJ), is based on "fundamental notions of fairness deeply embedded in the law" and on the principle that evidence of "bad character" or unrelated prior crimes is prejudicial because of " 'the tendency of a fact finder to convict the accused because of bad character rather than because he {or shel is shown to be guilty of the offenses charged." Id. at 495, 496 (quoting State v. Saunders, 699 P.2d 738, 741 (Utah 1985)). It is of course fundamental in our law that a person can be convicted only for acts committed, and not because of general character or a proclivity to commit bad acts. See Saunders, 1999 UT 59 at T 15, 992 P.2d 951.

124 Notwithstanding the law's concern with "bad character" evidence, there are times when evidence of uncharged, related criminal acts is admissible, so long as it is not introduced for an improper purpose. "Evidence of other crimes, wrongs, or acts may be admitted if it has 'a special relevance to a controverted issue and is introduced for a purpose other than to show the defendant's predisposition to criminality'" - State v. Featherson, 781 P.2d 424, 426 (Utah 1989) (quoting State v. Shickles, 760 P.2d 291, 295 (Utah 1988). Thus, to be admissible, evidence must have probative value other than to show an evil propensity or criminal temperament.

125 This principle is formalized in rule 404(b) of the Utah Rules of Evidence, which states:

| Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In other words, evidence offered under this rule is admissible if it is relevant for a non-character purpose and meets the requirements of Rules 402 and 408.

The rule's analysis has direct application to the question of evidence of aggravating acts in the guilt phase of this case. In order to avoid the usual requirement of bifurcation, it must be shown that: (1) the evidence of the aggravating factors is offered for a nonchar-acter purpose under rule 404(b); (2) the evidence is relevant under rule 402; and (8) the evidence has probative value that significantly outweighs the danger it poses of unfair prejudice, as required by rule 408. See State v. Decorso, 1999 UT 57, 120, 993 P.2d 837.

A. Noncharacter Purpose

126 In State v. Tanmer, 675 P.2d 589 (Utah 1983), we held that in cases of child abuse, including child sexual abuse, "evidence of specific instances of the defendant's treatment of the child is relevant to establish not merely a general disposition for violence or ill-will towards all children, but to establish a specific pattern of behavior by the defendant toward one particular child, the victim." Id. at 546. Likewise, the evidence of multiple instances of sexual contact with the victim in this case does not merely demonstrate Reed's general character or disposition, but instead demonstrates an ongoing behavior pattern which included Reed's abuse of the victim. Specifically, the evidence demonstrated the manner in which Reed intensely pursued the victim over a three-and-a-half-year period in order to gain opportunity to commit the unlawful sexual acts. This pattern also revealed the extensive preparation and planning in which Reed engaged to create opportunities for sexual contact with the victim.

B. Rule 402 Relevance

T27 The second step in the analysis requires that evidence of the aggravating factors be relevant to the crime charged. Utah Rule of Evidence 401 defines relevant evidence as evidence "having 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." We have further stated that evidence is relevant not "'merely because it shows a common plan, scheme, or manner of operation. Instead, evidence of a common plan, scheme, or manner of operation is admitted where it tends to prove some fact material to the crime charged" Featherson, 78l P2d at 426 (quoting State v. Forsyth 641 P.2d 1172, 1176-77 (Utah 1982)).

128 Generally speaking, this court has been highly skeptical in sexual assault cases of evidence of other unrelated sex crimes by a defendant on trial for a separate offense. Here, however, the evidence of which Reed complains is not unrelated; it all concerns this victim and these charges. The evidence on which the State relied for aggravation was specifically relevant to Reed's persistent stalking and sexual abuse of this particular victim. Additionally, all of these acts were essentially interchangeable, occurred over a defined period of time and in the same uninterrupted course of conduct, and cannot be said to be unrelated for purposes of this case. Therefore, the relevance requirement of rule 402 was satisfied.

C. Rule 408 Probative Value

29 Finally, we weigh the probative value of the evidence with the potential for creating prejudice in the minds of the jurors. The relevant rule provides:

Although relevant, evidence may be excluded if its probative value is substantially 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.

Utah R. Evid. 408. In State v. Shoffer, we stated that "the trial court has discretion to exclude evidence if the court finds that the probative value of the evidence is 'substantially outweighed by the risk that its admission would consume unnecessary time, cause undue prejudice, or unfairly surprise a party.'" 725 P.2d 1801, 1309 (Utah 1986) (quoting Tanner, 675 P.2d at 547). Recently, we have reaffirmed that in determining whether evidence of prior crimes satisfies the requirements of rule 403,

a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.

State v. Nelson-Waggoner, 2000 UT 59, 1 20, 6 P.3d 1120 (quoting Decorso, 1999 UT 57 at 129, 998 P.2d 8387) (internal quotation marks and additional citations omitted).

130 Reed argues that introduction of the aggravating factors in the guilt phase of the trial was unduly prejudicial because the evidence presented to the jury consisted primarily of the victim's testimony. Specifically, he argues that the victim's testimony contained significant inconsistencies and that his conviction "rest[ed] upon the avalanche of allegations of aggravating offenses, and the resultant conclusion that [he] must be guilty of the charged offenses, by virtue of the volume of horrific allegations made against him."

{31 This case did depend largely on the credibility of the victim's testimony, as is frequently true of child sex abuse cases. Testimony about the aggravating offenses, however, allowed the victim to describe the full scope of the context in which Reed abused him over three and one-half years. Contrary to Reed's assertion that the aggravating offenses were "discrete and separate from the primary" offense, we observe that they were essentially interchangeable, were of the same nature and character as the primary offense, and were carried out on the same victim during the same uninterrupted course of conduct. Such evidence of multiple acts of similar or identical abuse is unlikely to prejudice a jury; jurors will either believe or disbelieve the testimony based on the witness's credibility, not whether the witness asserts an act occurred three times or six. This evidence simply does not have the prejudicial effect that may result from introduction of prior criminal acts committed against a number of unrelated victims, and therefore does not raise the kinds of due process concerns we have expressed in Bishop and Wareham. In any case, defense counsel had every opportunity at trial to challenge the victim's credibility and his testimony regarding the aggravating offenses. Therefore, we hold that there was no error in not bifurcating the trial in the instant case, under either the plain error or ineffective assistance of counsel standards.

IV. THE ELEMENTS INSTRUCTION TO THE JURY

132 Reed's last point on appeal depends on the statutory language of Utah Code Ann. § 76-5-404.1, which reads, in relevant part:

(1) A person commits sexual abuse of a child if, under circumstances not amounting to rape of a child, object rape of a child, sodomy upon a child, or an attempt to commit any of these offenses, the actor touches ....

(Emphasis added.) Reed argues that the "not amounting to" language of the statute obligated the State to establish a primary offense that did not amount to sodomy, or attempted sodomy, in order to convict him of aggravated sexual abuse. In other words, Reed asserts that the State must affirmatively establish lack of sodomy as an element of the aggravated sexual abuse offense. Following this premise, Reed contends that the trial court gave the jury an improper elements instruction regarding the aggravated sexual abuse charge by omitting the clement that the primary offense could not amount to sodomy.

{33 In State v. Peters, 550 P.2d 199 (Utah 1976), we spoke directly to this issue. Ansa-lyzing the language of a forcible sexual abuse statute in effect at the time, which contained the same "not amounting to" expression as the current statute, we addressed the identical argument Reed presents to us today:

Counsel would have us require the State to prove there was no rape,-a greater crime,-in order to prove a lesser crime. Such a course, in logic, obviously is inimical to the interests of the accused.
It is our belief and conclusion that the only rule that is realistic and makes sense is that the State need prove only that which it has charged and should be able to ignore proof as to lack of any greater offense to which the accused just may be required to respond.

Id. at 199-200; see also State v. Montoya, 910 P.2d 441, 445 (Utah Ct.App.1996) (stating that "[the primary purpose of the 'under the circumstances not amounting to' language was likely to encourage criminal punishment under those greater crimes when the evidence in a particular case warrants it"), cert. denied, 919 P.2d 1208 (Utah 1996). The Peters rationale is dispositive of this argument and Reed's challenge is without merit.

CONCLUSION

134 Pursuant to the foregoing review, we hold that the trial court's voir dire examination of the jury was adequate; the testifying detective's single reference to the Office of Adult Parole and Probation did not amount to prosecutorial misconduct; the trial court did not abuse its discretion in failing to bifurcate the trial proceedings; and the trial court properly instructed the jury as to the elements of the aggravated sexual abuse charge. Therefore, we affirm.

" 35 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURRANT, and Justice WILKINS concur in Justice DURHAM's opinion.

      . Justice Zimmerman described this procedure as follows:
      First, evidence regarding the underlying crime should be admitted, and the jury should be asked to determine guilt or innocence based on that evidence alone. Second, if a guilty verdict is returned on the underlying charge, then evidence regarding the enhancing circumstances should be heard by the same jury for the purpose of determining whether those circumstances have been proven beyond a reasonable doubt. Only if the jury finds that the circumstances have been proven would the "convicted person" [subsequently amended to read "the accused"] receive the enhanced penalty.
      Bishop, 753 P.2d at 498 (Zimmerman, J., concurring in result, and Stewart, A.C.J., and Durham, J., concurring in the opinion of Zimmerman, J.) (footnotes omitted).

      . The admission of such evidence is left to the trial court's discretion in particular cases:
      If the facts that support the enhancing charge are part of the criminal episode out of which the basic charge arose, whether measures should be taken to separate proof of the underlying charge from proof of the enhancing facts is a matter left to the trial court's discretion. Of course, the trial court should exercise its discretion in a manner consistent with our strong concerns about unnecessarily tainting the finder of fact with evidence of other bad acts.
      ° Bishop, 753 P.2d at 498 n. 7 (Zimmerman, J., concurring in result, and Stewart, A.C.J., and Durham, J., concurring in the opinion of Zimmerman, J.).

      . See, eg., Wareham, 772 P.2d at 964. We stated in Wareham that "[when a person stands accused of a sex crime, this Court has uniformly rejected the admission of evidence that the defendant committed other sex crimes against persons other than the complaining witness." Id. (emphasis added). Subsequently, however, this principle has not proved to be as absolute as Wareham suggested; we have since allowed such evidence under extremely narrow circumstances and where it was indispensable to deciding the case. See State v. Nelson-Waggoner, 2000 UT 59, 6 P.3d 1120, discussed infra at note 4. Nevertheless, we note that the circumstances that would allow such evidence to be admitted are rare and require the highest scrutiny of the trial judge.

      . We upheld the trial court's decision in Nelson-Waggoner to allow testimony of other rape victims who alleged the defendant had raped them using methods nearly identical to that used against the victim in that case. We noted that some courts had admitted such evidence for the noncharacter purpose of establishing lack of consent in rape trials, "especially ... when a defendant allegedly obviates the victim's consent in a strikingly similar manner in several alleged rapes." - Nelson-Waggoner, 2000 UT 59 at T 24, 6 P.3d 1120. The trial court in Nelson-Waggoner identified ten characteristics that constituted a "signature" in the means the defendant allegedly used to commit the rape in that case, and after "conducting a scrupulous examination of this evidence ... determined that the other victims could testify to the circumstances of the other alleged rapes only if the prosecution could demonstrate that each rape about which testimony would be offered included at least six of the ten characteristics." Id. at 123. Despite the language in Wareham, see supra note 3, the facts in Nelson-Waggoner were sufficiently compelling and narrow for us to agree with the trial judge and allow the evidence of other sex crimes to be offered by the prosecution to establish lack of consent.

      . Defendant's specific reliance on Wareham is unavailing, as it is clearly distinguishable. Ware-ham involved a defendant who was charged with aggravated sexual abuse based on allegations that he had molested his youngest daughter (the primary offense), as well as his two older daughters (the aggravating offenses). Although all of the victims were sisters, the acts of abuse occurred several years apart and cannot be said to be related except in tending to show a general pattern of the defendant's abusive propensity toward children. In other words, such evidence could inappropriately lead jurors to conclude that if the defendant abused the older daughters, then he likely also abused the younger daughter. This is clearly different from the situation in which a defendant commits essentially interchangeable acts of abuse against a specific victim through a specific course of conduct.

      . See also, e.g., State v. Tarafa, 720 P.2d 1368, 1369-70 (Utah 1986); State v. Saunders, 699 P.2d 738, 741-42 (Utah 1985); State v. McCumber, 622 P.2d 353, 356 (Utah 1980).