source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2002 WY 134
    Marcos ORONA-RANGAL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-62.
    Supreme Court of Wyoming.
    Sept. 11, 2002.

      Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Assistant Appellate Counsel, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and T. Alan Elrod, Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument

   KITE, Justice.

[¶1] Marcos Orona-Rangal drove his vehicle at a high speed through a stop light, killing one person and injuring two others. A jury convicted him on one count of aggravated homicide by vehicle under Wyo. Stat. Ann. § 6-2-106(b)@Gi) (LexisNexis 2001) and two counts of reckless endangerment under Wyo. Stat. Ann. § 6-2-504(a) (LexisNexis 2001). He appeals, claiming the trial court erred in admitting testimony regarding the deceased's pregnancy and insufficient evidence existed to convict him on each count. Finding no reversible error, we affirm.

ISSUES

[¶2] Mr. Orona-Rangal presents these issues for our review:

I. Did the trial court err in allowing irrelevant evidence of the deceased's pregnancy; and in the alternative, if relevant, was such evidence unduly prejudicial to Appellant?
II. Was there insufficient evidence to convict Appellant of the charges of reckless endangerment?
IIL Was there insufficient evidence to convict Appellant of the crime of aggravated homicide by vehicle, as the evidence indicated that the proximate cause of death was the action of Mr. Gomez, the individual who pursued Appellant?

The State of Wyoming phrases the issues as:

I. Did the district court err in admitting relevant evidence of the pregnancy of Appellant's victim?
II. Does the record contain sufficient evidence to support Appellant's convictions?

FACTS

[¶3] Mr. Orona-Rangal, age twenty-nine, and Christina Gomez, age eighteen, were engaged in a romantic relationship. The ree-ord is unclear as to whether Ms. Gomez's parents were aware of the relationship. On February 29, 2000, Ms. Gomez met Mr. Oro-na-Rangal after school at a nearby convenience store. He then drove her to work where they noticed her father, Rufujio Gomez, waiting in the parking lot. Mr. Orona-Rangal sped out of the parking lot. Mr. Gomez followed, and a high-speed chase ensued. Several witnesses recounted that both Mr. Orona-Rangal and Mr. Gomez traveled at high rates of speed, passed through multiple red lights, and wove through traffic, barely missing other vehicles.

[¶4] Two accident reconstruction experts testified that Mr. Orona-Rangal was traveling at a minimum speed of seventy to seventy-two miles per hour in a forty-miles-per-hour zone when he reached the intersection where the accident occurred. Leona Moon was waiting at the intersection for her light to change. When her light turned green, she entered the intersection to make a left-hand turn. Mr. Orona-Rangal drove through his red light, attempted to brake, and crashed into the driver's side of Ms. Moon's vehicle. The vehicle was propelled across the intersection where it collided with Joan Subr's vehicle. Ms. Subr and Ms. Gomez were injured, and Ms. Moon died at the seene of the accident.

[¶5] After a three-day trial, the jury found Mr. Orona Rangal guilty on one count of aggravated homicide by vehicle and two counts of reckless endangerment. The trial court sentenced him to serve two consecutive one-year terms in the Natrona County Detention Center on the reckless endangerment counts plus a consecutive term of twelve to seventeen years in the Wyoming State Penitentiary on the aggravated homicide count. Mr. Orona Rangal appeals.

DISCUSSION

A. Admission of Evidence

[¶6] Ms. Moon was seven months' pregnant at the time of the fatal accident. Prior to trial, Mr. Orona-Rangal filed a motion, seeking to exclude any reference to her pregnancy. The trial court denied the motion while cautioning the prosecution to refrain from dwelling upon the pregnancy any more than necessary. Mr. Orona-Rangal filed a motion to reconsider the denial and additionally offered to stipulate that Ms. Moon's death was a direct result of the collision with his vehicle. The state rejected the stipulation, and the trial court denied the motion to reconsider but proposed the defense submit a cautionary instruction concerning Ms. Moon's pregnancy. The defense did not submit a cautionary instruction on this issue.

[¶7] At trial, evidence of Ms. Moon's pregnancy arose in four contexts. In the prosecution's opening statement, the prosecutor explained to the jury that Ms. Moon was twenty-one years old, seven months' pregnant, and engaged to be married. The prosecution's first witness was Ms. Moon's fiancé. The prosecutor asked him, "[What was her physical condition at the time that you resided with her," and he responded that she was seven months' pregnant. Next, the prosecution asked James Thorpen, M.D., the Natrona County coroner, to describe Ms. Moon's injuries. In addition to his testimony that the cause of her death was "[mJassive recent chest, abdominal, and pelvic injuries," Dr. Thorpen told the jury the force of the impact caused extensive hemorrhaging of the placenta from the uterus which led to the fetus' death. In closing argument, the prosecutor alluded to the pregnancy stating Ms. Moon was "about to engage in the most important aspect of her life. She was about ready to start a family, and she was about ready to get married."

[¶8] Mr. Orona-Rangal argues the evidence of Ms. Moon's pregnancy was irrelevant and inadmissible or, in the alternative, if the evidence was relevant, it should have been excluded as highly prejudicial because it appealed to the jurors' sympathy for Ms. Moon and created a sense of outrage against him. In response, the state contends the evidence was relevant for three reasons. First, it tended to prove Ms. Moon's identity. Second, it showed she was more likely to exercise caution while driving and, thus, her actions did not contribute to the accident which caused her death. And, finally, evidence of her physical condition at the time of the accident was relevant to determine the cause of her death.

[19] Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." W.R.E. 401. Generally, all relevant evidence is admissible; however, irrelevant evidence is not admissible. W.R.E. 402. In criminal cases, "[elvidence is always relevant if it tends to prove or disprove one of the elements of the crime charged." Grabill v. State, 621 P.2d 802, 809 (Wyo.1980); see also Lancaster v. State, 2002 WY 45, ¶ 42, 43 P.3d 80, ¶ 42 (Wyo.2002); Geiger v. State, 859 P.2d 665, 667 (Wyo.1993). Relevant evidence may be excluded, however, if "its probative value is substantially outweighed by the danger of unfair prejudice." W.R.E. 403. For this court to conclude that the trial court admitted unduly prejudicial evidence in violation of W.R.E. 403, the appellant must demonstrate "that the evidence had little or no probative value and that it was extremely inflammatory or introduced for the purpose of inflaming the jury." Apodaca v. State, 627 P.2d 1023, 1027 (Wyo.1981). The trial court is given broad discretion in ruling on questions concerning the relevancy of evidence, and we will reverse its decision only when there is a clear abuse of discretion.

[¶ 10] We have said:

"Evidentiary rulings are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency, materiality, and remoteness of the evidence. This court will generally accede to the trial court's determination of the admissibility of evidence unless that court clearly abused its discretion." Solis v. State, 981 P.2d 34, 36 (Wyo.1999) (citation omitted). We have described the standard of an abuse of discretion as reaching the question of the reasonableness of the trial court's choice. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously. "In the absence of an abuse of discretion, we will not disturb the trial court's determination." [Griswold v. State, 2001 WY 14, 17, 17 P.3d 728, 17 (Wyo.2001).] The burden is on the defendant to establish such abuse.

Skinner v. State, 2001 WY 102, ¶25, 33 P.3d 758, ¶25 (Wyo.2001), cert denied, - U.S. -, 122 8.Ct. 1554, 152 L.Ed.2d 477 (2002) (some citations omitted).

[111] To determine whether the trial court erred by allowing evidence of Ms. Moon's pregnancy at the time of the accident, we must inquire as to whether the evidence was relevant to the charges and, if it was relevant, whether its possible prejudicial effect on the jury outweighed its probative value. The state asserts evidence of Ms. Moon's pregnancy was relevant because it tended to prove her identity. Although her identity was not in dispute, in every homicide case the state must establish the identity of the person killed. Wilks v. State, 2002 WY 100, ¶ 13, 49 P.3d 975, ¶13 (Wyo.2002); State v. Broberg, 342 Md. 544, 677 A.2d 602, 610-12 (1996); State v. Frederick, 554 So.2d 1288, 1292 (La.Ct.App.1989) ("Defendant's contention that he did not put the identity of the victim in dispute did not relieve the state of the burden of establishing the identity of the victim beyond a reasonable doubt. Identification is a material issue in any criminal case." (Citation omitted.)). "The ultimate test, however, is whether or not the probative value of the description outweighs its probable inflammatory effect." Frederick, 554 So.2d at 1292. This case is not an example of an instance where there were any lingering doubts about the victim's identity. See Frederick, 554 So.2d 1288 (holding vie-tim's pregnant condition was pertinent for identification purposes because she was murdered and thrown off a bridge into a body of water. Law enforcement subsequently required dental records and the aid of family and friends to prove her identity). Ms. Moon's identity was not a consequential fact at trial; thus, presentation of evidence regarding her pregnant condition to prove her identity was not necessary or relevant.

[¶12] Next, the state argues the evidence was relevant to show Ms. Moon was more likely driving with great caution and was, therefore, not the cause of the accident, presumably relying on a theory that pregnant women tend to be more cautious drivers. This argument is less than compelling since the defense did not contend Ms. Moon's driving was responsible for the accident. The state asserts the defense's accident reconstruction expert attempted to undermine eyewitness testimony that Ms. Moon entered the intersection with great caution and legally. A review of the record disproves the state's contention. The state's expert concluded Mr. Orona Rangal was traveling at seventy-two miles per hour, the defense's experts concluded his speed was seventy miles per hour, and neither suggested Ms. Moon was in any way at fault.

[¶13] Finally, the state maintains the evidence was relevant to explore whether Ms. Moon's pregnancy was a factor, apart from Mr. Orona-Rangal's actions, in her death. However, Mr. Orona-Rangal did not argue her pregnancy was the proximate cause of her death. In fact, he tried to stipulate that the collision was the proximate cause of her death. In its brief, the state asserts Mr. Orona-Rangal conceded in his appellate brief that Dr. Thorpen's testimony revealed the pregnancy played a part in her death. Upon a careful review of Mr. Orona Rangal's brief, it is apparent the state's assertion regarding the "concession" is unsupported and misleading. Moreover, at no time did Dr. Thorpen even insinuate Ms. Moon's pregnancy contributed to her death,. The pertinent part of his testimony is as follows:

She was also pregnant, in her third trimester, approximately seven months. There was extensive hemorrhage to the placenta, which was attached inside of the uterus. The fetus was also dead but exhibited no particular traumatic injuries. The ... cause of the fetal death would be because-the fetus died because the placenta was separated and was dug to the high-energy impact. The fetus is protected within the uterus-
[Objection lodged.]

The trial court overruled the defense's objection stating the pregnancy evidence was an integral part of the medical evidence and it would have been difficult for Dr. Thorpen to edit his testimony to exclude it. Even if it was somehow necessary for Dr. Thorpen to reference Ms. Moon's pregnancy to assure a complete evaluation of her injuries, the prosecution took undue advantage of that necessity by referring to the pregnancy in opening argument, closing argument, and Ms. Moon's fiance's direct testimony. Any probative value of presenting the evidence in those instances was substantially outweighed by the danger of unfair prejudice.

[¶14] In Lewek v. State, 702 So.2d 527, 534 (Fla.Dist.Ct.App.1997), a vehicular homicide case, the court held similar testimony was unduly prejudicial and could only be calculated to play upon the jury's passions and invoke sympathy for the victims of the accident. In that case, three witnesses testified the victim was pregnant, and one witness mentioned the baby was due to be born three days after the accident. 702 So.2d at 538-84. Similarly, in People v. Lewis, 165 Ill.2d 305, 209 Ill.Dec. 144, 651 N.E.2d 72 (1995), the Illinois Supreme Court held the evidence of the victim's pregnancy bore no relationship to the appellant's guilt or innocence and was, therefore, inadmissible. The court stated, "[Elvidence that a murder victim was preg-pant at the time of her murder is no more welcome than evidence that the victim left behind a family." 209 IILDece. 144, 651 N.E.2d at 84.

[115] We are persuaded by this reasoning and conclude evidence of Ms. Moon's pregnant condition was irrelevant. Furthermore, the evidence does not satisfy this court's W.R.E. 408 balancing test. Had the evidence been properly exeluded, the prosecution's case would not have suffered any significant damage. Trial courts must exercise great caution so defendants will be convicted on the basis of the evidence pertinent to the crimes charged and not on the basis of evidence calculated to appeal to the jury's passions or prejudices. After reviewing the record, we conclude evidence of Ms. Moon's pregnancy was irrelevant because it did not make any fact that was of consequence to the determination of Mr. Orona-Rangal's guilt more probable or less probable and should have been excluded.

[116] Having determined the trial court committed error, we must ascertain whether the error affected any substantial rights of the accused, providing grounds for reversal, or whether it was harmless. The harmless error standard is set out in W.R.AP. 9.04: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court." See also W.R.Cr.P. 52(a). An error is harmful if there is a reasonable possibility that the verdict might have been more favorable to the defendant had the error never occurred. To demonstrate harmful error, the defendant must show prejudice under "cireamstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play." Johnson v. State, 790 P.2d 231, 232 (Wyo. 1990); see T5A Am.Jur.2d Trial § 666 (1991). The evidence against Mr. Orona-Rangal was overwhelming and was strongly supported by multiple eyewitnesses. There is not a reasonable possibility that, but for the evidence of Ms. Moon's pregnancy, the verdict might have been more favorable. We conclude the evidence, although prejudicial, was harmless. However, we want to make it clear that we foresee only rare cireumstances where the evidence of the victim's pregnancy would be relevant in a criminal prosecution. If the state's evidence is not as compelling as in the case before us, the introduction of such evi-denee may necessitate reversal.

B. Sufficiency of the Evidence on the Reckless Endangerment Charges

[¶17]) Mr. Orona-Rangal argues there was insufficient evidence to support his convictions for reckless endangerment because the victims were not seriously injured. The reckless endangerment statute, § 6-2-504(a), provides, "A person is guilty of reckless endangering if he recklessly engages in conduct which places another person in danger of death or serious bodily injury." He contends evidence of actual serious bodily injury is required because Wyo. Stat. Ann. § 6-1-104(a)(ix) (LexisNexis 2001) defines "recklessly" as the following conduct: "A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that the harm he is accused of causing will occur, and the harm results." Mr. Orona-Rangal claims that, when these two provisions are read together, the "harm" contemplated in the definition of "recklessly" is death or serious bodily injury. Thus, he contends death or serious bodily injury must result before a person can be convicted of reckless endangerment and neither Ms. Gomez nor Ms. Suhr incurred serious bodily injury.

[T18] In deciding this issue, we must apply our well established standard for construing statutes.

We attempt to interpret statutes in accordance with the legislature's intent. We begin by making an " 'inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection" " Parker Land and Cattle Company v. Wyoming Game and Fish Commussion, 845 P.2d 1040, 1042 (Wyo.1993) (quoting Rasmussen v. Baker, 7 Wyo. 117, 133, 50 P. 819, 823 (1897)). We construe statutes as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statutes on the same subject. We give effect to the plain language of unambiguous statutes. We resort to extrinsic aids of statutory interpretation, such as legislative history or intent, only when statutes are ambiguous.

Dike v. State, 990 P.2d 1012, 1018 (Wyo.1999) (some citations omitted). Although the legislature could have written § 6-2-504(a) and § 6-1-104(a)(ix) so the two provisions would dovetail more seamlessly, we believe the definition of "recklessly" does not require "death or serious bodily injury." Rather, the term "harm" in the definition of "recklessly" refers to engaging "in conduct which places another person in danger of death or serious bodily injury." It logically follows that the harm which must result is actually placing another person in danger of death or serious bodily injury. This interpretation gives effect to the plain language of § 6-2-504(a). Mr. Oro-na Rangal's interpretation of the statute is simply incorrect.

[119] Using the appropriate interpretation of the statutes, we address the claim that the evidence was insufficient to sustain the convictions for reckless endangerment by examining the evidence concerning whether Mr. Orona-Rangal's actions actually put the injured victims in danger of death or serious bodily injury, and we apply the following standard:

This Court assesses whether all the evidence which was presented is adequate enough to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State. We will not substitute our judgment for that of the jury when we are applying this rule; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did. State, 11 P.3d 361, 368 (Wyo.2000), cert. denied, 582 U.S. 980, 121 S.Ct. 1620, 149 L.Ed.2d 488 (2001). In this instance, there was ample evidence for the jury to conclude as it did. Mr. Orona-Rangal's excessive speed, disregard for traffic laws, and erratic driving resulted in a collision of such force that Ms. Moon's vehicle was propelled across the intersection and collided with Ms. Subr's vehicle. That collision injured both Ms. Gomez and Ms. Suhr, and only good fortune prevented those injuries from being much more serious. More than sufficient evidence existed to prove Mr. Orona-Rangal placed his passenger-Ms. Gomez-and an unsuspecting third party-Ms. Subhr-in danger of death or serious bodily injury.

Hodges v. State, 904 P.2d 334, 339 (Wyo. 1995) (citation omitted); see also Robinson v.

C. Sufficiency of the Evidence on the Aggravated Homicide by Vehicle Charge

[¶20] Mr. Orona-Rangal contends insufficient evidence existed to support a required element of aggravated homicide by vehicle that he was the proximate cause of Ms. Moon's death. See § 6-2-106(b)@i). Instead, he asserts Mr. Gomez's chase was the proximate cause of the collision with Ms. Moon because, if Mr. Gomez had not chased him, the collision would not have occurred. We apply the same sufficiency-of-the-evidence standard as set forth in the previous section.

[¶21] The state argues that, at trial, Mr. Orona-Rangal specifically disclaimed the defense that Mr. Gomez was the proximate cause. It points to the following colloquy:

THE COURT: It looks like, [Defense me if I'm wrong-that you're going to defend this on the grounds he was being chased by Mr. Gomez.
[DEFENSE COUNSEL]: Obvious-well, I won't say obvious. I'm not-I do think that could account for lack of attention on his part at-during different parts of the chase, as it were. Perhaps what I'm getting at will become clearer during Mr. Orona Rang[all's testimony and closing argument.
THE COURT: If you're going to assert that as a defense, you probably want to have some authority prepared for that.
[DEFENSE COUNSEL]: I'm not going to assert it as a defense.
[PROSECUTOR]: He's not?
THE COURT: That's what he indicated. He said that would not be an affirmative defense.

Irrespective of the disclaimer, the burden is on the state to prove, beyond a reasonable doubt,; each element of the crime charged. Section 6-2-106(b)(ii) (emphasis added) is explicit and provides:

(b) A person is guilty of aggravated homicide by vehicle and shall be punished by imprisonment in the penitentiary for not more than twenty (20) years, if:
(ii) He operates or drives a vehicle in a reckless manner, and his conduct is the proximate cause of the death of another person.

Therefore, whether or not Mr. Orona-Rangal disclaimed the "defense" that Mr. Gomez was the proximate cause of the accident, the state still bears the burden of proving proximate cause. See McLaughlin v. State, 780 P.2d 964, 965 (Wyo.1989) (holding aggravated homicide by vehicle requires the state to prove the defendant's conduct was the proximate cause of the death of another person). The state also maintains Mr. Orona-Rangal cannot raise the issue for the first time on appeal. We find this argument unpersuasive since insufficiency of the evidence is generally raised for the first time on appeal.

[122) When the evidence is viewed in the light most favorable to the prosecution, any rational trier of fact could find the essential element of proximate cause beyond a reasonable doubt. Broom v. State, 695 P.2d 640, 642 (Wyo.1985). "Proximate cause" was defined for the jury as "a cause which, in continuous sequence, unbroken by an independent, intervening cause, produces the injury. It is one without which the injury would not have occurred. It brings about the injury either immediately or through happenings which follow one after another." "Proximate cause is a question of fact in the usual case, reserved for ... determination by the trier of fact, unless the evidence is such that reasonable minds could not disagree." Turcq v. Shanahan, 950 P.2d 47, 52 (Wyo. 1997).

[¶23] Mr. Gomez's actions were not the proximate cause of the victim's death because they did not, in a continuous sequence, produce the injury. When Mr. Gomez began to pursue Mr. Orona-Rangal, the latter had many choices other than to drive at a high speed on the route he chose, ultimately smashing into Ms. Moon's vehicle. Instead, Mr. Orona-Rangal's actions became the intervening cause which ultimately produced the injury. Mr. Orona-Rangal's cited authority fails to support his theory. In Parrish v. State, 97 So.2d 356 (Fla.Dist.Ct.App. 1957), a passenger armed with a bayonet forced the driver to pursue the victim, the passenger's former wife. The victim attempted to flee by increasing her speed and ultimately disregarded a stop sign, struck another vehicle, and died. 97 at 358. A jury convicted the passenger of second-degree murder. Id. at 357. The Florida District Court of Appeal held the trial court correctly stated the law in its charge to the jury when it- stated: "[A] person who by actual assault or threat of violence causes another person to do an act resulting in physical or corporal injury causing such other person's death is criminally responsible for the homicide." Id. at 359. This case is factually distinguishable because no evidence was presented that Mr. Gomez brandished a weapon or, in any other way, forced Mr. Orona Rangal to flee.. Mr. Orona-Rangal simply saw Mr. Gomez and chose to speed away, thereby causing Ms. Moon's death. Under these circumstances, the Parrish decision is not applicable. f

[¶24] Mr. Orona-Rangal also asks this court to consider Wyoming decisions involy-ing pursuits of suspects by law enforcement which, hold an officer's conduct can be a proximate cause of a third person's injuries where circumstances indicate an officer's conduct was extreme or outrageous. See Board of County Commissioners of Teton County ex rel. Teton County Sheriff's Department v. Bassett, 8 P.3d 1079, 1086 (Wyo. 2000); DeWald v. State, 719 P.2d 643, 650 (Wyo.1986). These cases are analyzed under the civil concept of comparative fault; therefore, we do not find them persuasive.

[125] The state was required to present sufficient evidence so a jury could form a reasonable inference that Mr. Orona-Rangal's conduct was the cause which, in continuous sequence, unbroken by an independent, intervening cause, caused Ms. Moon's death. Considerable evidence was introduced through eyewitness testimony to demonstrate that Mr. Orona-Rangal drove at excessive speeds, deliberately disregarded multiple stop lights, remained steadfast in his attempt to elude Mr. Gomez despite several near-misses with other vehicles, and made numerous illegal and dangerous lane changes. The jury clearly rejected Mr. Oro-na-Rangal's attempts to shift responsibility for his actions to Mr. Gomez. These facts are sufficient to support a reasonable inference of proof beyond a reasonable doubt that Mr. Orona-Rangal was indeed the proximate cause of Ms. Moon's death. We will not second-guess the jury's determination and will defer to its ability to fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the facts. Willis v. State, 2002 WY 79, ¶8, 46 P.3d 890, 18 (Wyo.2002). Based on the foregoing reasons, we conclude there was sufficient evidence to sustain Mr. Orona Rangal's conviction.

[¶26] Affirmed.

      . The defense's expert criticized the state's data suggesting reliance upon it would result in a conclusion that Ms. Moon was traveling twenty-eight miles per hour which was inconsistent with an eyewitness' testimony that she was at a complete stop at the intersection and, after the light turned green, she waited three seconds before proceeding slowly into the intersection.

      . In its brief, the state specifically states: "Indeed, in his brief, [Mr. Orona-Rangal] concedes that testimony showed that the pregnancy played a part in her death." The state even directs this court to a specific page number in Mr. Orona Rangal's appellate brief, yet we cannot find such a concession.

      . The state repeatedly argues that references to the testimony regarding the victim's pregnancy were limited and, therefore, not prejudicial. It bolsters that theory by offering statistics as to the number of pages or lines in the transcript that arguably constitute error. Apparently, the state erroneously assumes this court undertakes a quantitative rather than a qualitative analysis when reviewing whether the admission of certain testimony results in prejudicial error. We remind the state of Miller v. State, 904 P.2d 344, 354 (Wyo.1995), wherein we held the exposure of a jury panel to a single statement by a prospective juror that the accused was a horse thief required reversal of the conviction.


author: VOIGT, Justice.

text:
    2002 WY 135
    BP AMERICA PRODUCTION COMPANY, a foreign corporation; and Marathon Oil Company, a foreign corporation, Appellants (Defendants), v. Larry MADSEN as Special Trustee of the H.M. Klaenhammer Revocable Trust Dated May 9, 1996, Successor to H.M. Klaenhammer; and Robert W. Scott, Individually and as Managing Member of R.W. Scott Investments, LLC, Suing on Behalf of Themselves and All Other Similarly Situated Royalty Owners, Appellees (Plaintiffs).
    No. 01-238.
    Supreme Court of Wyoming.
    Sept. 19, 2002.

      Frank D. Neville, Richard E. Day and Scott W. Skavdahl of Williams, Porter, Day & Neville, P.C., Casper, Wyoming; Kirby J. ler of Marathon Oil Company, Cody, Wyoming; Michael Homeyer of BP Amoco Corporation, Houston Texas; Harrell Feldt and Richard H. Page of Vinson & Elkins, LLP, Houston, Texas; and Sheryl L. Hopkins of Vinson & Elkins, LLP, Dallas, Texas, Representing Appellants.
    J. Nicholas Murdock, Cody L. Balzer, Mark L. Carman and Seott J. Olheiser of Balzer Carman Murdock, P.C., Casper, Wyoming; Robert P. Schuster and Gary L. Shockey of Spence, Moriarity & Schuster, LLC, Jackson, Wyoming; Charles Carpenter, Denver, Colorado; and Samuel Issacha-roff, New York, New York, Representing Appellees.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and KALOKATHIS, D.J.

       Chief Justice at time of oral argument.

   VOIGT, Justice.

[¶1] The Third Judicial District Court has presented two certified questions concerning the jurisdictional provision contained in the Wyoming Royalty Payment Act (the WRPA), which is found at Wyo. Stat. Ann. § 30-5-803(b) (LexisNexis 2001). We conclude that the WRPA does not confer exclusive jurisdiction over claims brought under it in the district court for the county in which a particular well is located; rather, the intent of the WRPA is to allow such claims to be brought in the district court of any county in which a well is located.

FACTS

[¶2] The appellees are the Plaintiffs and the appellants are the Defendants in a civil action in the district court in Lincoln County. The Plaintiffs, as holders of overriding royalty interests, seek additional royalties under the WRPA from the Defendants, who are the oil and gas producers. The lawsuit covers claims for wells located in Lincoln County and in other Wyoming counties. An issue has been raised whether the district court for Lincoln County has jurisdiction over the claims arising from wells not located in that county. In that regard, Wyo. Stat. Ann. § 30-5-808(b) provides:

The district court for the county in which a well producing oil, gas or related hydrocarbons is located has jurisdiction over all proceedings brought pursuant to this article and the prevailing party in any proceedings brought pursuant to this article shall be entitled to recover all court costs and reasonable attorney's fees.

(Emphasis added.)

CERTIFIED QUESTIONS

[¶3] In a Notice of Agreement to Answer Certified Questions dated December 4, 2001, we informed the district court and the parties that we would answer the following certified questions:

1. Does Wyo.Stat. § 80-5-808(b) confer exclusive jurisdiction over claims under the Wyoming Royalty Payment Act in the district court for the county in which a well producing oil, gas, or related hydrocarbons is located?
2. If so, may the provisions of Wyo. R.Civ.P. 23 override the grant of exelu-sive jurisdiction such that a district court may, in the context of a class action, adjudicate WRPA claims relating to wells not located in the county in which the class action is pending?

STANDARD OF REVIEW

[T4] In a W.RAP. 11 certification of questions of law, we rely entirely upon the factual determinations made in the trial court. Wexpro Co. v. Brimhall, 7 P.3d 42, 43 (Wyo.2000) (citing Allhusen v. State By and Through Wyoming Mental Health Professions Licensing Bd., 898 P.2d 878, 881 (Wyo. 1995)). The following rules apply when the question is one of statutory intent:

"[We look first to the plain and ordinary meaning of the words to determine if the statute is ambiguous. Olheiser v. State ex rel. Worker's Compensation Div., 866 P.2d 768, 770 (Wyo.1994), citing Parker Land & Cattle Co. v. Game & Fish Comm'n, 845 P.2d 1040, 1042-483 (Wyo.1993). A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Parker Land & Cattle, at 1043. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. Id. ... Ultimately, whether a statute is ambiguous is a matter of law to be determined by the court. Id.
When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. Tietema v. State, 926 P.2d 952, 954 (Wyo.1996); Butts v. State Board of Architects, 911 P.2d 1062, 1065 (Wyo.1996). Instead, our inquiry revolves around the ordinary and obvious meaning of the words employed according to their arrangement and connection. In doing so, we view the statute as a whole in order to ascertain its intent and general purpose and also the meaning of each part. 'We give effect to every word, clause and sentence and construe all components of a statute in pari materia.' Parker, 845 P.2d at 1042."

Murphy v. State Canvassing Bd., 12 P.3d 677, 679 (Wyo.2000) (quoting Campbell County School Dist. v. Catchpole, 6 P.3d 1275, 1284 (Wyo.2000)).

DISCUSSION

[15] The position of the Defendants is simple and straightforward. They contend that the statute contains an unambiguous geographic limitation that allows claims to be brought under the WRPA only in the district court for the county in which the well is located. They further argue that the legislature is empowered to set the jurisdictional limits of the state's courts. See Wyo. Const. art. 5, § 10; Mutual of Omaha Ins. Co. v. Blury-Losolla, 952 P.2d 1117, 1121 (Wyo. 1998) (legislature sets jurisdictional limits of county courts); Glandt v. Taylor, 920 P.2d 647, 649 (Wyo.1996) (superseded by statute) (district court granting divorce to retain jurisdiction); Stalkup v. State Dept. of Environmental Quality (DEQ), 838 P.2d 705, 714 (Wyo.1992) (actions brought against DEQ to be brought in Laramie County); and Nicholaus v. Nicholaus, 756 P.2d 1338, 1340 (Wyo. 1988) (superseded by statute) (district court granting divorce to retain jurisdiction). Because oil and gas royalty interests are real property interests, the Defendants also find the geographic limitation of Wyo. Stat. Ann. § 30-5-308(b) to be consistent with the general rule that real property disputes are handled where the real property is located.

[¶6] The position of the Plaintiffs is equally simple and straightforward. While they do not specifically state that the statute is unambiguous, they do contend that the statute clearly allows for suits to be brought where a (meaning "any") well is located, not just where the well is located. They stress the fact that the WRPA, as a remedial statute, is to be liberally construed to achieve its goal of preventing underpayment by producers. See Moncrief v. Harvey, 816 P.2d 97, 105 (Wyo.1991); State v. BHP Petroleum Co., Inc., 804 P.2d 671, 672 (Wyo.1991); and Wold v. Hunt Oil Co., 52 F.Supp.2d 1330, 1335 (D.Wyo.1999). Finally, despite the legislature's use of the word "jurisdiction," the Plaintiffs contend that this is actually a venue issue. See Stalkup, 838 P.2d at 714 (statute requiring suits against DEQ to be in Laramie County is a venue statute); Matter of Larsen, 770 P.2d 1089, 1091 (Wyo.1989) (geographic filing limitation in worker's compensation statute referred to venue, not jurisdiction); and Myuskovich v. State ex rel. Osborn, 59 Wyo. 406, 141 P.2d 540, 543 (1943) (word "jurisdiction" in paternity statute referred to venue rather than to subject matter jurisdiction).

[¶7] To the extent necessary to answer the certified questions before us, we find Wyo. Stat. Ann. § 80-5-808(b) to be unambiguous. Further, we agree with the Plaintiffs that the statute allows WRPA claims to be brought in the district court of any county where a well at issue is located. From high school English class, we know that the word "a" is an indefinite article, while the word "the" is a definite article. Beyond that, the dictionary definitions are not very helpful in allowing us to understand the common meanings of the words. According to Merriam-Webster's Collegiate Dictionary 1 (10th ed.1999), "a" may be "used as a function word before a singular noun followed by a restrictive modifier <a man who was here yesterday>." According to the same source, "a" may also mean "any." Id. On the other hand, "the" is "used as a function word to indicate that a following noun or noun equivalent is definite or has been previously specified by context or by cireumstance <put [the] cat out>." Id. at 1221. Simply put, it is the difference between "bring me a book" and "bring me the book." In the first instance, any book will do; in the second instance, a particular book is expected.

[18] This Court has previously looked at the meanings of "a" and "the." In McClanahan v. Woodward Const. Co., 77 Wyo. 362, 316 P.2d 337, 341 (1957) (quoting Webster's New International Dictionary 2617 (2d ed.1985)), we said that " '[tlhe fis al demonstrative adjective used chiefly before a noun to individualize, specialize, or generalize its meaning, having a force thus distinguished from the indefinite distributive force of a, an and from the abstract foree of an unqualified noun.'" Other courts agree that, in construing statutes, the definite article "the" is a word of limitation as opposed to the indefinite or generalizing force of "a" or "an." Brooks v. Zabka, 168 Colo. 265, 450 P.2d 653, 655 (1969); United States v. Hudson, 65 F. 68, 71 (W.D.Ark.1894). The ordinary meaning of "a" is "any." Castillo-Plaza v. Green, 655 So.2d 197, 200 (Fla.App.), review dismissed by Giron v. Noy, 661 So.2d 824 (Fla.), review granted by Pierre v. North Shore Medical Center, Inc., 663 So.2d 631 (F1a.1995), quashed, 671 So.2d 157 (F1a.1996). In a statute, "a" usually means "any." Application of Hotel St. George Corp., 207 N.Y.S.2d 529, 531 (1960) (quoting Lindley v. Murphy, 387 Ill. 506, 56 N.E.2d 832, 837 (1944)). See also Chavira v. State, 167 Tex.Crim. 197, 319 S.W.2d 115, 120 (1958) ("a" is synonymous with "any").

[¶9] If we apply this reasoning to Wyo. Stat. Ann. § 80-5-803(b), the pertinent portion reads "(tlhe district court for the county in which any well producing oil, gas or related hydrocarbons is located has jurisdiction over all proceedings brought pursuant to this article. ..." Clearly, the legislature intended that cases under the WRPA may be brought in any of the counties where one of the wells at issue is located. This reading of the statute is much more reasonable than the alternative-that multiple suits involving the same issues and between the same parties must be brought in all the counties where a well is located. Had the legislature intended that effect, it would have provided that "the district court for the county in which the well producing oil, gas or related hydrocarbons is located has jurisdiction over all proceedings related to that well brought pursuant to this article. ..."

CONCLUSION

[¶10] Wyo. Stat. Ann. § 30-5-308(b) is unambiguous. It provides that claims under the WRPA may be brought in the district court of any county where any of the wells at issue is located. Therefore, we answer the first certified question, "No." That answer renders the second certified question moot. Furthermore, because we have not accepted the Defendants' argument that the statute contemplates a geographical limitation on district court jurisdiction, we need not address the Plaintiffs' response that such limitation is unconstitutional. And finally, neither is it necessary to determine whether, despite use of the word "jurisdiction," the legislative intent was to create a venue provision.

[¶11] This case is remanded to the district court for further proceedings consonant herewith.

      . BP America Production Company has been substituted for Amoco Production Company.

      . In Myuskovich, 141 P.2d at 543, Justice Blume reached just that conclusion in construing a statute with similar language, including the word "Jurisdiction."


author: BRYNER, Justice.

text:
    LAIDLAW TRANSIT, INC., Appellant and Cross-Appellee, v. Gail CROUSE, for and on behalf of her daughter, Shawn CROUSE, a minor, Appellee and Cross-Appellant.
    Nos. S-9850, S-9869.
    Supreme Court of Alaska.
    Aug. 30, 2002.
    Rehearing Denied Sept. 27, 2002.

      Thomas A. Matthews, Thomas L. Hause, Matthews & Zahare, P.C., Anchorage, for Appellant/Cross-Appellee.
    Don C. Bauermeister, Burke & Bauermeis-ter, PLLC., Anchorage, for Appel-lee/Cross-Appellant.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETLI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

A school bus ran off the roadway and rolled over, injuring passenger Shawn Crouse. Shawn's mother sued the bus driver and the driver's employer, Laidlaw Transit, Inc.; a jury awarded Crouse $19,259 in compensatory damages and $3.5 million i in punitive damages. The trial court remitted the punitive award to $500,000 and entered judgment for Crouse. Laidlaw appeals, challenging the punitive award and disputing several evidentiary rulings. Crouse cross-appeals, questioning the trial court's remittitur. We affirm, concluding that the trial court correctly found Laidlaw vicariously liable for punitive damages, did not err in its evidentia-ry rulings, and did not abuse its discretion in its remittitur.

II. FACTS AND PROCEEDINGS

On November 24, 1992, a school bus driven by Dawn Finitz, a Laidlaw employee, slid off an icy road and rolled over. Shawn Crouse, a bus passenger, suffered minor injuries. In keeping with its drug policy, Laidlaw gave Finitz a post-accident drug test, which revealed that Finitz's blood contained trace amounts of marijuana.

Shawn's mother, Gail Crouse, filed a complaint on behalf of her daughter against Fin-itz and Laidlaw for compensatory and punitive damages, alleging that Finitz recklessly caused the accident. Crouse claimed that Laidlaw was both vicariously liable for Fin-itz's conduct because the conduct occurred within the course and scope of Finitz's employment and directly liable because Laidlaw negligently or recklessly hired and/or supervised Finitz-that it knew or should have known that Finitz was likely to drive while under the influence of drugs or aleohol.

In its answer, Laidlaw admitted liability for the accident and confirmed that Finitz tested positive for marijuana. As a result, the only issues for trial were the amount of compensatory damages, whether Finitz's or Laidlaw's conduct was sufficiently outrageous to warrant a punitive damages award, and If so, the amount of that award.

Laidlaw subsequently filed a motion for summary judgment on its liability for punitive damages. The superior court concluded that Laidlaw could not be held directly liable for punitive damages because it had not acted outrageously in hiring and supervising Finitz. But the court ruled that Laidlaw could be held vicariously liable for Finitz's conduct because her actions fell within the course and scope of her employment.

Laidlaw also filed several pretrial motions seeking to exclude certain evidence, including all reference to Finitz's drug use; all evidence of Laidlaw's financial resources; the testimony of Crouse's expert witness, Forest S. Tennant, Jr., M.D.; and all evidence of Laidlaw's conduct. The trial court partially granted the motion to exclude evidence of Laidlaw's conduct, precluding evidence of alcohol and controlled substance abuse by Laidlaw drivers other than Finitz. The court denied Laidlaw's other pretrial motions.

The trial consisted of two phases: the first addressed liability and compensatory damages; the second addressed punitive damages. In the first phase, the jury awarded Crouse $19,259 in compensatory damages and found that Finitz acted sufficiently outrageously to justify an award of punitive damages; in the second phase it awarded $8.5 million in punitive damages.

Laidlaw filed a motion for remittitur, which the trial court granted. Analyzing the punitive damages award in light of the factors in Noreon, Inc. v. Kotowski, the trial court concluded that the maximum justifiable award was only $375,000. Crouse moved to reconsider; the trial court granted the motion and increased the punitive damages award to $500,000.

Laidlaw appeals; Crouse eross-appeals.

III. DISCUSSION

A. Standard of Review

On appeal, Laidlaw challenges the trial court's summary judgment ruling that it was vicariously liable for punitive damages and also disputes a number of the court's evidentiary rulings. "We review grants of summary judgment de novo and will affirm if there are no genuine issues of material fact...." A trial court's decision regarding the admissibility of evidence, including expert testimony, is generally reviewed for abuse of discretion; but when admissibility turns on a question of law, we apply our independent judgment.

On cross-appeal, Crouse challenges the trial court's remittitur of the punitive damages award from $3.5 million to $500,000. We review a trial court's grant of remittitur for abuse of discretion. To reverse, we must be left with a definite and firm conviction that the trial court erred in granting the remittitur.

B. Laidlaw's Vicarious Liability for Punitive Damages

In partially denying Laidlaw's summary judgment motion, the trial court ruled that Finitz acted within the course and scope of her employment and, so, if the jury found her conduct sufficiently outrageous to justify an award of punitive damages against Finitz, Laidlaw would be vicariously liable. Laidlaw challenges that ruling.

1. Laidlaw failed to preserve its argument that this court should adopt the complicity rule.

In Alaskan Village, Inc. v. Smalley, we adopted the so-called "course of employment rule" for determining when an employer is vicariously liable for punitive damages arising out of its employees' conduct. Under this rule, an employer is vicariously liable, regardless of the employee's rank, so long as the employee was acting within the course and scope of employment.

On appeal, Laidlaw urges us to follow a different standard, "the complicity rule," which requires at least some degree of employer complicity before vicarious liability attaches for punitive damages arising from the conduct of a non-supervisory employees. But Laidlaw did not raise this argument at the trial court level. Because Laidlaw failed to preserve the argument for appeal, we decline to consider overruling Alaskan Village or adopting the complicity rule.

2. The trial court did not err in applying the course of employment rule.

Laidlaw next argues that the trial court erred in applying the course of employment rule by deciding as a matter of law that Finitz had acted within the course and scope of her employment. Because Finitz did not smoke marijuana to serve Laidlaw and because Laidlaw's drug policy "specifically prohibited" drug use, Laidlaw contends, Finitz's conduct "could not have been within the seope of her employment."

But the conduct giving rise to the punitive damages award was not Finitz's act of smoking marijuana; it was her act of driving children in a school bus while she was impaired by marijuana. The issue, then, is whether the trial court erred by concluding that Finitz's act of driving the school bus while under the influence of marijuana fell within the course and scope of her employment.

This court does not follow a rigid rule for determining when tortious conduct occurs within the seope of employment; rather, we apply "a flexible, multi-factored test." We have generally looked to the various factors in the Restatement (Second) of Agency § 228 as "relevant considerations," though not prerequisites, to determine whether an employer should be held responsible for an employee's acts. The Restatement (Second) of Ageney § 228 provides:

(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpected by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Applying these factors to this case, we conclude that the trial court properly found as a matter of law that Finitz's outrageous conduct occurred in the course and scope of her employment.

First, Finitz had specifically been employed to drive a school bus. That she performed this activity while under the ef-feets of marijuana does not mean that she acted outside the scope of her employment; instead, it demonstrates the recklessness with which she performed her assigned task. Moreover, the fact that Laidlaw policy explicitly prohibits smoking marijuana does not insulate the company from liability: "A wrongful act committed by an employee while acting in his employer's business does not take the employee out of the scope of employment, even if the employer has expressly forbidden the act."

Second, the disputed conduct occurred within the time and space limits of Finitz's employment. Finitz drove under the influence of marijuana while on her usual morning route.

Finally, even though Finitz acted recklessly in driving the bus, she nonetheless acted, at least in part, to serve Laidlaw. In Doe v. Samaritan Counseling Center, we held that "where tortious conduct arises out of and is reasonably incidental to the employee's legitimate work activities, the 'motivation to serve' test will have been satisfied. "* Here the conduct at issue-driving while impaired by marijuana-both arose out of and was incidental to Finitz's legitimate work activities because it carried out the very function that Finitz was hired to perform-driving a school bus. We thus affirm the superior court's decision.

C. Evidentiary Issues

1. The trial court did not err by admitting evidence regarding Laid-law's failure to locate a driver named "Mike."

During the trial's liability phase, Crouse introduced evidence over Laidlaw's objection that Laidlaw had failed to identify and locate a Laidlaw driver who was known to Finitz only as "Mike." Finitz asserted that she and Mike had previously smoked marijuana together. On appeal, Laidlaw claims that whether it ever found Mike was irrelevant to whether Finitz's marijuana use impaired her driving on the day of the accident. Moreover, Laidlaw points out, the trial court had previously ruled that evidence concerning drug and alcohol use by Laidlaw drivers other than Finitz was irrelevant and thus inadmissable.

Laidlaw adopted the theory at trial that Finitz was merely an occasional, "recreational" marijuana user and that the jury could therefore believe her assertion that she had not smoked marijuana on the day of the accident. This theory was based in large part on Finitz's testimony that while she was working for Laidlaw she smoked marijuana "Ivlery irregularly, very seldom." Given Laidlaw's affirmative reliance on the theory that Finitz was a recreational user, Crouse obviously had a legitimate interest in locating witnesses who were familiar with Finitz's drug use and might be able to shed light on the credibility of her testimony.

During pretrial discovery and at trial, Fin-itz named only two people with whom she had smoked marijuana in the past: Cora, a resident in Finitz's apartment complex, and Mike. She could not recall either Cora's or Mike's last names. As Crouse points out, "[pllaintiff repeatedly sought through discovery identifying information about Cora and Mike because these were the only witnesses [Finitz] could even recall the first name of who had knowledge of her claimed 'reere-ational marijuana use." Because Cora had moved and was no longer in contact with Finitz, the only way Crouse could verify Fin-itz's testimony on this point was through Mike. But Laidlaw failed to locate Mike, claiming that, despite an "extensive inquiry," it had failed to find anyone named Mike who worked as a Laidlaw driver in Eagle River at the time of the accident.

By establishing Laidlaw's failure to locate Mike and questioning the reasonableness of Laidlaw's efforts, Crouse legitimately sought to demonstrate not only the absence of anyone who could corroborate Finitz's claim of merely occasional drug use, but also that Laidlaw might have been less than diligent in uncovering evidence that could contradict its "recreational" user theory. Because the disputed evidence had at least some legitimate tendency to refute Laidlaw's theory of defense, we reject Laidlaw's claim of irrelevance and conclude that the trial court did not abuse its discretion in admitting the evidence.

2. The trial court did not err by refusing to give a cautionary instruction after Crouse's closing argument.

Laidlaw claims that even if we find that the trial court properly admitted the evidence concerning Mike, it nonetheless erred by failing to give a cautionary instruction after. Crouse referred to this evidence during closing arguments. In closing argument, Crouse's attorney stated,

But Laidlaw not finding out who Mike was is detestable. It's one of their drivers, he's smoking marijuana with this driver.
We're going to ask you to say Laidlaw shouldn't be using drivers like Mike. Now you've never seen Mike and I've never seen Mike, and Mike might still be driving, for all of us know. If you do nothing in this case, you do nothing, then tomorrow morning, when that bus pulls up and those doors open, and a child looks up those big stairs and climbs into the bus, Mike may well be behind that steering wheel. And that's who you're going to leave there. And if you think this is okay, then you say no to these questions. But if you're worried about that child and you're worried about this type of conduct, then your answers have to be yes in this action. And that's the biggest decision you're going to make in this case.

Following these statements, Laidlaw requested a cautionary instruction to explain that Laidlaw's conduct was irrelevant. The trial court denied this request, reasoning that the argument was relevant to the issue of deterrence. We agree with the trial court's conclusion. Jury instruction 18 stated: "The Plaintiff has also requested that you find Defendant, Dawn Finitz, liable for punitive damages in order to punish her and to deter her and others from repeating similar acts." Laidlaw did not object to this instruction. As we have stated on other occasions, "the purpose of punitive damages is to punish the wrongdoer and prevent similar conduct in the future." The argument at issue was based on evidence presented at trial, conformed to the jury instructions, and was aimed at convincing the jury of the need to deter other drivers and employers who were similarly situated to Finitz and Laidlaw. We conclude that the trial court did not err in refusing Laidlaw's request for a cautionary instruction.

3. The trial court did not err by admitting evidence of Laidlaw's wealth.

The trial court denied Laidlaw's pretrial motion to exclude all evidence of the company's financial resources, reasoning that Laidlaw's financial wealth was relevant to the punitive damages question. Laidlaw challenges this ruling, arguing that evidence of corporate wealth is irrelevant when, as here, a company commits no direct wrong but is subject to punitive damages solely on the theory that it is vicariously liable for acts of a non-managerial employee. Exeept perhaps in situations involving managerial employees, Laidlaw reasons, a vicariously liable employer is not a wrongdoer, and financial evidence therefore must be limited to the employee's resources.

We have previously recognized that a defendant's wealth is usually relevant to the issue of punitive damages. But we have not yet considered the narrower issue raised here: whether a corporate employer's financial resources are relevant to punitive damages when the employer is only viecari-ously liable for an employee's conduct. The rationale behind the course of employment rule we adopted in Alaskan Village v. Smailley requires an affirmative answer.

The course of employment rule holds corporate employers vicariously liable for punitive damages on the theory that corporations can act only through their employees and agents; hence, when employees act in the course of employment, their acts are indistinguishable from corporate actions. An early opinion of the Maine Supreme Court exemplifies this theory:

A corporation is an imaginary being. It has no mind but the mind of its servants; it has no voice but the voice of its servants; and it has no hands with which to act but the hands of its servants. All its schemes of mischief, as well as its schemes of public enterprise, are conceived by human minds and executed by human hands; and these minds and hands are its servants' minds and hands. All attempts, therefore, to distinguish between the guilt of the servant and the guilt of the corporation; or the malice of the servant and the malice of the corporation; or the punishment of the servant and the punishment of the corporation, is sheer nonsense.

Under the course of employment rule, then, an employee acting within the course and scope of employment essentially is a corporate actor; and when the employee acts wrongfully, the corporation becomes the wrongdoer: "[The tortious act of the servant done in the course of his employment is ordinarily the legal act of the master, and in this sense, the employer is not free of 'fault'" Because the law treats the employer and employee alike as wrongdoers, it is proper for the jury to consider what amount of punitive damages will suffice to punish and motivate the vicariously liable employer; as other jurisdictions have held in applying the course of employment rule, evidence of the employer's financial wealth is relevant and admissible in these circumstances. The trial court did not abuse its discretion in admitting evidence of Laidlaw's financial wealth.

4. The trial court did not err by admitting the testimony of Dr. Ten-nant.

Laidlaw next contends that the trial court erred in allowing Crouse's medical expert witness, Dr. Forest Tennant, to state his opinion that, at the time of the accident, Finitz was under the influence of marijuana she had smoked earlier the same morning. But Laidlaw did not object to the challenged testimony and therefore failed to preserve this issue for appeal.

Laidlaw did file a pretrial motion to prevent Dr. Tennant from expressing his expert opinion concerning a different theory of impairment: that Finitz was a long-term, heavy user of marijuana; that such use can cause residual physiological effects; and that Fin-itz's driving was probably impaired by these residual effects on the morning of the accident. But despite the trial court's pretrial ruling allowing testimony on this theory of impairment, Dr. Tennant did not rely on the theory at trial. He testified instead that, in his opinion, Finitz had likely smoked marijuana on the morning of the accident and was impaired by the effects of that morning's consumption.

Laidlaw voiced no objection to this testimony, instead choosing to cross-examine Dr. Tennant about his reasons for failing to mention this theory earlier. The doctor had acknowledged that he had just reached his conclusion the night before testifying, after examining emergency room records that he had not previously reviewed and that dis-cloged Finitz's post-accident pulse rate and blood pressure. According to Dr. Tennant, this information enabled him to form his new opinion; before seeing the emergency room records, he had relied on information indicating that Finitz's most recent marijuana use had occurred at least several days before the accident.

As can be seen, Dr. Tennant's trial testimony addressed a different theory than the theory he developed during pretrial discovery, and the new testimony obviously fell outside the scope of both Laidlaw's pretrial motion to preclude Dr. Tennant's expert testimony concerning residual effects and the superior court's pretrial order denying that motion. The record provides no basis, then, for concluding that the court had already ruled the new line of testimony admissible or that a contemporaneous objection would have been futile. Given these circumstances, Laidlaw cannot reasonably rely on its pretrial motion as a timely objection; nor can it plausibly invoke the superior court's pretrial ruling as an excuse for failing to make a contemporaneous objection.

5. The trial court did not err by admitting evidence of Finitz's general drug habit.

Laidlaw argues that the trial court erred in admitting evidence of Finitz's general drug use, particularly certain post-accident treatment records from the Alaska Women's Resource Center indicating that Finitz had used marijuana on a daily basis. Laidlaw insists that evidence of Finitz's general drug use was inadmissible because Crouse presented no admissible evidence tending to prove that Finitz was actually impaired by drugs at the time of the accident.

But as explained above, Dr. Tennant testified that Finitz was impaired by marijuana when the accident occurred. The challenged treatment records directly supported this testimony: they reflected Finitz's own admissions that she engaged in daily marijuana use around the time the accident occurred. The Center's client intake form states that Finitz had been taking "6 hits" of marijuana twice a day. Because Finitz's admission of daily use had case-specific relevance by discrediting her claim of occasional recreational use and by indicating that she smoked marijuana on the day she drove the school bus off the road, we find no error in failing to exclude the records as general propensity evidence.

D. The Trial Court Did Not Abuse Its Discretion by Ordering a Remittitur of the Punitive Damages Award.

On cross-appeal, Crouse challenges the trial court's remittitur of the punitive damages award from $3.5 million to $500,000. A trial court may remit a jury's punitive damages award as excessive when the court determines that the award is "manifestly unreasonable"; factors relevant to this determination "include the compensatory damage amount, magnitude of the offense, importance of the policy violated, and the defendant's wealth." Also relevant are the nine factors listed in the Model Punitive Damages Act:

(1) the nature of the defendant's wrongful conduct and its effect on the claimant and others;
(2) the amount of compensatory damages;
(3) any fines, penalties, damages, or restitution paid or to be paid by the defendant arising from the wrongful conduct;
(4) the defendant's present and future financial condition and the effect of an award on each condition;
(5) any profit or gain, obtained by the defendant through the wrongful conduct, in excess of that likely to be divested by this and any other actions against the defendant for compensatory damages or restitution; (6) any adverse effect of the award on innocent persons;
(7) any remedial measures taken or not taken by the defendant since the wrongful conduct;
(8) compliance or noncompliance with any applicable standard promulgated by a governmental or 'other generally recognized agency or organization whose function is to establish standards; and
(9) any other aggravating or mitigating factors relevant to the amount of the award.

When a trial court applies these factors and concludes that an award is excessive, the amount remitted should reflect the maximum that the jury could have awarded without being excessive.

The offensive conduct in this case was Finitz's act of driving a school bus off the road while Finitz was impaired by marijuana. In its original order of remittitur, the trial court focused on several relevant factors: (1) the relationship between the punitive and compensatory damages awards; (2) the offense's magnitude; (8) the importance of the policy violated; (4) the defendant's wealth; and (5) any fines, penalties, damages, or restitution paid or to be paid by Laidlaw. While recognizing that Laidlaw had over $1 billion in annual revenues nationwide, the court emphasized that the jury's award of punitive damages exceeded its award of compensatory damages by 182 times; moreover, the court noted, although Finitz violated a serious policy by driving under the influence of a controlled substance, her wrongful conduct was not especially egregious, consisting of an isolated act that caused only minor injuries. This analysis initially led the court to reduce the jury's $8.5 million punitive damages award to $375,000, a figure that, in the court's view, represented the maximum punitive damages award supported by the evidence.

After Crouse moved for reconsideration, the trial court increased the remitted award to $500,000 based on a reevaluation of two factors: the offense's magnitude and Laid-law's wealth. In reassessing these factors, the court found Finitz's conduct to be more serious than it originally believed, noting that, despite Shawn Crouse's relatively minor injuries, "an out of control school bus, full of school children on an icy road, with an impaired driver posed a very high degree of hazard to the occupants of the school bus and to the public." At the same time, however, the court tempered its original estimate of Laidlaw's corporate wealth, pointing out that, although the company's nationwide annual revenues exceeded $1 billion, its annual revenues in Alaska totaled only $5 million. Finding statewide revenues relevant, the court reasoned that a $3.5 million award might seem de minimis compared to Laidlaw's nationwide revenues but was obviously excessive in relation to the company's Alaska revenues. Because this second factor largely offset the first, the court decided on reconsideration to raise the original remitted award by only a modest amount, to $500,000.

In challenging the remittitur, Crouse's cross-appeal advances three arguments. First, Crouse argues, the remittitur is inconsistent with the trial court's finding on reconsideration that the jury's punitive damages award is de minimis compared to Laidlaw's nationwide revenues. But this argument misreads the court's reconsideration decision, which acknowledged Laidlaw's nationwide earnings but essentially found the company's much smaller Alaska revenues to be a more realistic point of reference for assessing the excessiveness of the punitive damages verdict. Punitive damages are meant to punish the wrongdoer and to deter similar conduct. Given the localized nature of the misconduct at issue, the limited seope of the resulting harm, and the absence of any direct liability, the trial court did not abuse its discretion in selecting Laidlaw's statewide operations as the most appropriate measure to use in determining the need for deterrence and

Second, Crouse argues that, given the court's findings on reconsideration concerning the magnitude of Finitz's misconduct, its ultimate decision overemphasized the mathematical ratio of punitive damages to compensatory damages-a measure that should not alone be dispositive. But again, Crouse misreads the trial court's order on reconsideration. Although the trial court's findings on reconsideration acknowledged that Finitz's misconduct was more serious than the court originally thought, these findings neither said nor suggested that the misconduct was so serious as to support the original $8.5 million punitive damages verdict. Instead, the court's reconsideration decision simply recognized that the enhanced seriousness of the misconduct supported an award larger than the $375,000 total that the court had awarded in its original remittitur order. As the trial court specifically noted, even though it originally underestimated the potential hazard posed by Finitz's conduct, the overall seriousness of the misconduct continued to be mitigated by several significant considerations: to a large extent the potential harm from Finitz's conduct did not materialize; Shawn Crouse suffered only minor injuries; and Laidlaw itself neither contributed to Fin-itz's misconduct nor directly engaged in any other wrongdoing. Moreover, Crouse's argument on this point mistakenly posits that the trial court's order on reconsideration found the ratio of punitive to compensatory damages to be the only mitigating factor calling for a remittitur. As already indicated, the court independently emphasized that "the income and size of [Laidlaw's] Alaska operations must temper [the amount awarded]."

Last, Crouse attempts to establish the appropriateness of the jury's punitive damages verdict through a detailed discussion of economic efficiency theory. But Crouse failed to present any evidence at trial supporting this theory, failed to argue the point to the jury or to request supporting instructions, and failed to argue this point before the superior court-either in its opposition to Laidlaw's motion for remittitur or in its motion for reconsideration. Because a party may not present new issues or advance new theories to secure a reversal of a trial court decision, we decline to consider Crouse's economic efficiency theory.

We thus reject Crouse's principal claim on cross-appeal, holding that the trial court did not abuse its discretion in ordering a remitti-tur of the punitive damages award from $3 5 million to $500,000.

IV. CONCLUSION

We AFFIRM the superior court's final judgment.

      . 971 P.2d 158 (Alaska 1999).

      . Municipality of Anchorage v. Repasky, 34 P.3d 302, 305 (Alaska 2001).

      . Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000) (admissibility of evidence); State v. Coon, 974 P.2d 386, 398 (Alaska 1999) (expert testimony).

      . See Landers v. Municipality of Anchorage, 915 P.2d 614, 616 n. 1 (Alaska 1996).

      . Int'l Bhd. of Elec. Workers, Local 1547 v. Alaska Util. Constr., Inc., 976 P.2d 852, 857 (Alaska 1999).

      . 720 P.2d 945, 948-49 (Alaska 1986) ("[Ilf a tort by an employee renders the employer liable for compensatory damages and the employee's actions justify a punitive damage award, then the employer is liable for punitive damages, whether or not the employer authorized or ratified the tortious conduct.") (citing with approval the rule adopted by the Oregon Supreme Court in Stroud v. Denny's Rest., Inc., 271 Or. 430, 532 P.2d 790, 793 (1975)); see also VECO, Inc. v. Rosebrock, 970 P.2d 906, 911 (Alaska 1999) (noting that Alaska case law generally follows the Restatement (Second) of Agency but has eliminated the requirement in subsection (c) that the employee be managerial).

      . See Stroud v. Denny's Rest., Inc., 271 Or. 430, 532 P.2d 790, 792-93 (1975).

      . The complicity rule is expressed by the Restatement (Second) of Torts § 909 (1979) and the nearly identical Restatement (Second) of Agency § 217C (1958), which states:
      Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if:
      (a) the principal authorized the doing and the manner of the act, or
      (b) the agent was unfit and the principal was reckless in employing him, or
      (c) the agent was employed in a managerial capacity and was acting within the scope of employment, or
      (d) the principal or a managerial agent of the principal ratified or approved the act.

      . See, e.g., Nenana City Sch. Dist. v. Coghill, 898 P.2d 929, 934 (Alaska 1995) (declining to consider an argument raised for the first time on appeal). Laidlaw suggests that this court recently adopted the complicity rule in VECO, Inc. v. Rosebrock, 970 P.2d 906 (Alaska 1999)-a case decided after trial ended in the present case- and that the newly created conflict between VECO and Alaskan Village must be resolved. But Laidlaw misreads VECO, which expressly reaffirmed Alaskan Village as establishing the appropriate vicarious liability test for cases involving conduct within the course and scope of employment but adopted the complicity rule for cases involving employee conduct outside the course and scope of employment. VECO, 970 P.2d at 923 & n. 34. After our decision in Alaskan Village, the legislature undertook to regulate and narrow the circumstances in which punitive damages may be awarded and to limit the amount of such awards. See AS 09.17.020. Further, the Supreme Court of the United States has indicated that punitive damages are subject to review for excessiveness under the due process clause of the fourteenth amendment to the United States Constitution. Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). In light of these developments, the Alaskan Village rule may be anachronistic. If and when the point is properly preserved and raised, this court may consider adopting the narrower complicity rule.

      . See Stephenson v. United States, 711 F.2d 1105, 1107 (7th Cir.1985) (relying on Wisconsin law to say that "it is the employee's conduct at the time of the accident that determines whether he is acting within the scope of his employment").

      . Doe v. Samaritan Counseling Ctr., 791 P.2d 344, 346 (Alaska 1990).

      . Id. at 347; accord Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343, 349 (Alaska 1982); Luth v. Rogers & Babler Constr. Co., 507 P.2d 761, 764 & n. 14 (Alaska 1973) (rejecting proposition that must satisfy each factor).

      . See Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1158 (4th Cir. 1997) (applying Virginia law and concluding that "drinking alcohol by itself does not remove the employee from the scope of his employment"); Stephenson, 771 F.2d at 1107-08 ("[The fact that [the employee] was intoxicated when driving does not mean that he was acting outside the scope of his employment, but only that he failed to use reasonable care under the circumstances.").

      . Ortiz v. Clinton, 187 Ariz. 294, 928 P.2d 718, 723 (App.1996); accord Stephenson, 771 F.2d at 1108 ("The [employer] cannot insulate itself from. lability ... by promulgating regulations prohibiting employees from drinking and driving."); Pyne v. Witmer, 159 Ill.App.3d 254, 111 Ill.Dec. 452, 512 N.E.2d 993, 999 (1987) (holding that employee's violation of his employer's policy against drinking on the job does not preclude liability under respondeat superior).

      . 791 P.2d 344, 348 (Alaska 1990), clarified by VECO, Inc. v. Rosebrock, 970 P.2d 906, 924 n. 36 (Alaska 1999) (disapproving of possible broad interpretation and requiring employee's act to have at least some motivation to serve corporation}.

      . Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 948 (Alaska 1986).

      . Norcon, Inc. v. Kotowski, 971 P.2d 158, 175 (Alaska 1999).

      . 720 P.2d at 948-49.

      . Goddard v. Grand Trunk Rwy., 57 Me. 202, 222-23 (1869), as quoted in Embrey v. Holly, 293 Md. 128, 442 A.2d 966, 970 (1982) (quoting this language as justification for following the course of employment approach); see also Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293, 297 (1948) ("Having, by the constitution of their being, to act solely by agents or servants, [corporations] must, as matter of sound public policy, be held liable for all the acts of their agents and servants who commit wrongs while performing the master's business, and in the scope of their employment; and this to the extent of liability for punitive damages in proper cases.").

      . Embrey, 442 A.2d at 970; see also, eg., Goddard, 57 Me. at 222-23; Thorne v. Contee, 80 Md.App. 481, 565 A.2d 102, 110 (1989) ("[The tortious act of the servant done in the course of his employment is ordinarily the legal act of the master."); Gifford v. Evans, 35 Mich. App. 559, 192 NW.2d 525, 529 (1971) ("Respondeat superior provides in essence that the act of an employee during the course of his employment is legally the act of the employer.").

      . See Embrey, 442 A.2d at 973 (holding that it was appropriate for trial court to award separate punitive damages awards against an employee and his vicariously liable employer because this would enable each award to be based on the two defendants' differing financial status); see also Hyatt Regency Phoenix Hotel Co. v. Winston & Strawn, 184 Ariz. 120, 907 P.2d 506, 521 (App. 1995) (holding that punitive damages award against vicariously liable law firm was not excessive in part because "[the award is proportionate to [the law firm's] financial position").

      . See Alaska Evidence Rule 103(a)(1); see also Norcon, Inc., 971 P.2d at 170 (holding that employer waived issue on appeal of whether employee's testimony was unduly prejudicial by failing to object when testimony was offered at trial).

      . At trial Laidlaw did not object to Dr. Ten-nant's new theory as beyond the scope of the expert disclosures or report and Laidlaw does not complain of such a discovery violation on appeal.

      . Laidlaw cites other courts for support. See, eg., Coleman v. Williams, 42 Ill.App.3d 612, 1 Ill.Dec. 268, 356 N.E.2d 394, 397 (1976) (denying reference to party's alcohol consumption earlier in day when no evidence existed that at time of accident party was actually intoxicated); Gustavson v. Gaynor, 206 N.J.Super. 540, 503 A.2d 340, 342-43 (1985) (same).

      . Norcon, Inc., 971 P.2d at 175 (internal quotations omitted) (quoting Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 949 (Alaska 1986)).

      . Id. at 176.

      . Model Punitive Damages Act (U.L.A.) § 7(a), quoted in Norcon, Inc., 971 P.2d at 176.

      . Norcon, Inc., 971 P.2d at 175.

      . Alaskan Village, 720 P.2d at 948.

      . See Nenana City Sch. Dist. v. Coghill, 898 P.2d 929, 934 (Alaska 1995) ("[An argument not raised in a suit before the trial court will not be considered on appeal."); see also Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985) (noting that court may review an issue if new argument is closely related to trial - court arguments so that they "could have been gleaned" from the pleadings).

      . Crouse also raises several other cross-appeal issues for consideration only if we grant Laid-law's request for a new trial. Our decision rejecting Laidlaw's arguments on appeal makes it unnecessary to consider Crouse's contingent cross-appeal issues.