text:
    2002 UT 118
    STATE of Utah, Plaintiff and Appellee, v. [ S.H. ], Defendant and Appellant.
    Nos. 20000059, 20010314.
    Supreme Court of Utah.
    Dec. 10, 2002.

      Mark L. Shurtleff, Att’y Gen., Laura B. Dupaix, Asst. Att’y Gen., Salt Lake City, Sherry Ragan, Provo, for plaintiff.
    Michael D. Esplín, Margaret P. Lindsay, Provo, for defendant.
   WILKINS, Justice:

¶ 1 Defendant, a minor, was charged in juvenile court with aggravated sexual assault and forcible sodomy. The case was transferred to the district court pursuant to section 78-3a-602 of the Utah Code, the “Serious Youth Offender Statute,” where the defendant was convicted of attempted rape. On appeal, defendant contends that (1) the district court erred in instructing the jury on rape and attempted rape as lesser included offenses of aggravated sexual assault, (2) the ease should have been remanded to the juvenile court for sentencing, (3) the juvenile court erred in binding the case over to district court initially, and (4) the district court admitted evidence of other bad acts contrary to rule 404(b) of the Utah Rules of Evidence. We affirm.

BACKGROUND

¶ 2 We present the facts in the light most favorable to the jury’s verdict. See, e.g., State v. Evans, 2001 UT 22, ¶ 2, 20 P.3d 888. On November 8, 1997, defendant, [ S.H. ], and the victim, J.S., were among a group of teenagers who gathered at the home of A.B. to “hang out.” Several of the teenagers took controlled pain medication and muscle relaxants for recreational purposes. Spencer and the victim spoke with each other and later engaged in some kissing in the bathroom. Later, the two left A.B.’s home together and drove a short distance to a church parking lot where they engaged in sexual activity. The encounter included a number of sexual acts including an attempt by defendant to have intercourse with the victim without her consent. The incident resulted in charges of aggravated sexual assault and forcible sodomy in the juvenile court.

¶ 3 After a preliminary hearing, the juvenile court concluded that there was probable cause to believe that defendant had committed the crimes. The juvenile court also concluded that defendant failed to prove one of the three statutory requirements necessary for the juvenile court to retain jurisdiction under the Serious Youth Offender Statute, specifically section 78-3a-602(3)(b). According to the statute, in order to be retained in juvenile court, the defendant must prove by clear and convincing evidence that:

(i) the minor has not been previously adjudicated delinquent for an offense involving the use of a dangerous weapon which would be a felony if committed by an adult;
(ii) that if the offense was committed with one or more other persons, the minor appears to have a lesser degree of culpability than the codefendants; and
(iii) that the minor’s role in the offense was not committed in a violent, aggressive, or premeditated manner.

Utah Code Ann. § 78-3a-602(3)(b)(1996). The State and defendant stipulated that the first two subsections were not applicable in this case. The court concluded that defendant failed to prove that the offense was not committed violently or aggressively as evidenced by the injuries sustained by the victim. Accordingly, the case was bound over to the district court for trial. Defendant appealed the bind-over order to the court of appeals, but later filed a motion to voluntarily dismiss the appeal, which the court of appeals granted.

¶4 Subsequently, in district court, defendant filed a motion to quash the bind-over order. Defendant asserted that the state had failed to establish the elements of aggravated sexual assault and that Utah’s Serious Youth Offender Statute was unconstitutional. The district court denied his motion. Defendant petitioned this court for interlocutory review of that decision. That petition was denied.

¶ 5 Prior to trial, defendant filed a motion in limine to exclude evidence of prior bad acts and a stipulation was entered regarding the motion. Although no written stipulation appears in the record, both parties appear to have agreed that the evidence would not be introduced unless defendant first “opened the door” in his testimony. During her testimony, the victim recounted statements made by her friend, A.D., implying prior sexual misconduct by the defendant with A.D. Pursuant to the stipulation, counsel for the defendant moved for a mistrial. The court denied the motion but instructed the jury that the evidence was inadmissible.

¶ 6 Defendant testified that he had never had sexual intercourse before. During cross-examination, the prosecution asked if defendant had ever engaged in oral sex. Defendant objected. The court found that, despite defendant’s testimony that he had never had sexual intercourse before, prior acts of oral sex were inadmissible because they were more prejudicial than probative.

¶7 During cross-examination, defendant admitted to a phone conversation with A.D. After defendant’s testimony, the prosecution called A.D. as a rebuttal witness. The defense objected to her testimony regarding the substance of the phone conversation between her and the defendant. The judge indicated that he was inclined to allow the evidence on the basis that defendant had opened the door in his testimony. The defense conceded that testimony regarding defendant’s attempt to influence the witness went to credibility, but objected to testimony from A.D. concerning any prior sexual misconduct of the defendant. The court allowed the evidence.

¶8 Defendant’s counsel also objected to the testimony implicating the defendant in soliciting drugs from A.B. six weeks prior to the incident. The objection was apparently overruled in a bench conference. Defendant’s counsel later entered an objection on the record.

¶ 9 Prior to deliberations, the district court, over defendant’s objection, instructed the jury on rape and attempted rape as lesser included offenses of aggravated sexual assault. ‘ The jury convicted defendant of attempted rape.

¶ 10 Subsequently, defendant filed a motion to arrest judgment, arguing, inter alia, that the jury instructions on rape and attempted rape were improper. That motion was denied. Defendant appeals.

ANALYSIS

I. LESSER INCLUDED OFFENSES

¶ 11 Defendant first contends that the jury was improperly instructed on the crimes of rape and attempted rape as lesser included offenses of the crime of aggravated sexual assault. He argues that rape and attempted rape are not necessarily included in the offense of aggravated sexual assault. Whether a jury instruction correctly states the law presents a question of law which we review for correctness. State v. Archuleta, 850 P.2d 1232,1244 (Utah 1993).

¶ 12 Section 76-1-402(3) of the Utah Code specifies that an offense is included in the charged offense if “[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense.” Defendant relies on our statement in State v. Baker, 671 P.2d 152 (Utah 1983), that in order to qualify as a lesser included offense, “the offense[ ] must be such that the greater cannot be committed without necessarily having committed the lesser.” Id. at 156. Defendant argues that, since aggravated sexual assault can be committed during the course of a number of crimes not limited to rape and attempted rape, the crimes of rape and attempted rape are not necessarily included in the crime of aggravated sexual assault.

¶ 13 It is true that the relationship between a lesser included offense and the charged offense will generally be such that the greater cannot be committed without committing the lesser. However, in State v. Hill, 674 P.2d 96 (Utah 1983), we noted that offenses similar to aggravated sexual assault, which can be committed in the course of a variety of lesser offenses, are an exception. Id. at 97. In those cases, the court must determine whether the lesser offense is necessarily included in the specific variation of the greater offense proved by the evidence at trial. Id. Thus, in Hill, while theft was not necessarily included in all variations of aggravated robbery, it was held to be necessarily included in, and thus a lesser included offense of, the variation of aggravated robbery which had been proved in that case. Id. at 97-98.

¶ 14 Furthermore, the interpretation defendant urges us to adopt is contrary to the policy justifications underlying the legal doctrine of lesser included offenses. Originally, the doctrine existed at common law to allow the prosecution to seek a conviction in circumstances where the evidence proved criminal activity but failed to establish one of the elements of the charged crime. See Beck v. Alabama, 447 U.S. 625, 633, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). As this court has stated, “when evidence of a defendant’s criminal conduct has been placed before a court of justice, even though that conduct has not been specifically charged, it would be a mockery of our criminal laws for a court to ignore a proved crime and acquit on the charged crime.” State v. Howell, 649 P.2d 91, 95 (Utah 1982).

¶ 15 At the same time, the accused has a constitutional right to be informed of the charges against him and to have an adequate opportunity to prepare a defense. See Baker, 671 P.2d at 155-56; Howell, 649 P.2d at 95. Allowing the prosecution to introduce a new and unrelated charge at the jury instruction phase of trial would effectively abrogate those rights. Therefore, the critical inquiry for determining the propriety of an instruction submitted by the prosecution was correctly stated in Howell: “[A] trial court may properly give a lesser included offense instruction, even over a defendant’s objection, if there is clearly no risk that the defendant will be prejudiced by lack of notice and preparation so as to deprive him of a full and fair .opportunity to defend himself.” Howell, 649 P.2d at 95.

¶ 16 In the instant case, the information clearly stated that the aggravated sexual assault with which the defendant was charged took place during the commission of a rape or attempted rape. Further, the evidence introduced by the defendant at trial demonstrates that he was aware of these lesser included offenses, and had a full and fair opportunity to defend against them. Accordingly, we find no error in the jury instruction on rape and attempted rape.

II. TUNZI AS PRECEDENT

¶ 17 Alternatively, defendant contends that even if the instructions on lesser included offenses were proper, it was improper to sentence defendant in district court upon a conviction for one of those offenses. Defendant relies on State v. Tunzi, 2001 UT App 224, 31 P.3d 588. In that case, the court of appeals held that the Serious Youth Offender Statute requires that the juvenile court regain jurisdiction of a defendant if he is not convicted of the offense which qualified him for adult jurisdiction. We review the district court’s interpretation of the Serious Youth Offender Statute for correctness, see State v. Galli, 967 P.2d 930, 933 (Utah 1998), and conclude that the Tumi case is incorrect on this issue.

¶ 18 We acknowledge that the statutory language defining the jurisdiction of the district court over a serious youth offender is not a model of clarity. Under section 78-3a-603(12), once a minor has been bound over to the district court under the Serious Youth Offender Statute, the jurisdiction of the juvenile court over that individual is terminated regarding “that offense, any other offenses arising from the same criminal episode, and any subsequent misdemeanors or felonies charged against him.” Section 78-3a-602(7) provides for the trying of all such offenses in district court upon a finding of probable cause. Taken by themselves, these subsections would indicate that once a juvenile has been bound over to district court to answer a serious youth offender charge, that juvenile has lost the benefits of the juvenile system for all time. However, section 78-3a-602(10) clearly indicates the intent of the legislature that if there is a favorable disposition of all charges against him in district court, the juvenile offender should once again be eligible for the benefits of the juvenile system.

¶ 19 In Tumi the court of appeals asserted that the charges spoken of in section 78-3a-602(10) must only indicate the charges for which the juvenile was originally required to be bound over to district court. 2001 UT App 224 at ¶ 18, 31 P.3d 588. The court reasoned that allowing a defendant to be convicted and sentenced in the adult system for a lesser offense would be contrary to the purpose of the Serious Youth Offender Statute, which the court interpreted to be the identification of certain crimes indicating a juvenile to be “just as dangerous as adult criminals,” from whom the public needs special protection. Id. (quoting In re A.B., 936 P.2d 1091,1098 (Utah Ct.App.1997)).

¶20 The Serious Youth Offender Statute, however, is not intended to absolutely delimit the types of crimes for which a juvenile may be held to answer in district court. Indeed, the Serious Youth Offender Statute limits the discretion of the juvenile court over certain enumerated offenses for which it “shall order that the defendant be bound over.” § 78-3a-602(3)(b). A juvenile may also be certified to stand trial in district court at the discretion of the juvenile judge under section 78-3a-603. Thus, the purpose of the statute is simply to define the manner in which such charges will be disposed. If the legislature had intended to protect a juvenile from being convicted of a lesser crime, there is no reason for the language in section 78-3a-602(7) and section 78-3a-603(12) transferring jurisdiction of all episodic and future crimes to the district court. This language instead denotes the usual concern for judicial economy in disposing of the charges against a defendant.

¶ 21 Moreover, as Judge Orme pointed out in his concurring opinion in Tun-zi, adopting the interpretation of the court of appeals requires the transfer of the case back to the juvenile court with no procedural guidelines, and sentencing by a judge who did not preside over the ease. 2001 UT App 224 at ¶24, 31 P.3d 588 (Orme, J., concurring). We find no evidence supporting such an “aberrational approach to criminal jurisprudence,” id., in the plain language of the Serious Youth Offender Statute prior to its recent amendment by the Utah State Legislature. Indeed, we note that the amendment to section 78-3a-602, intended to clarify the meaning of the original language, confirms this interpretation.

¶ 22 We conclude that a plain reading of the original language of the Serious Youth Offender Statute requires that once a juvenile has been bound over to district court for an offense enumerated in that statute, the district court has jurisdiction to try that offense, any offense arising out of the same episode, or any subsequent offense. The juvenile court potentially regains jurisdiction over the individual only after the juvenile has been acquitted of, found not guilty of, or has had all such charges against him dismissed. To the extent that Tunzi is to the contrary, it is incorrect.

III. JUVENILE COURT’S BIND-OVER ORDER

¶23 The defendant next alleges error in the juvenile court’s original bind-over order. Because the bind-over order was not timely appealed, we have no jurisdiction to hear challenges to the order. Bind-over orders are final, appealable orders. See M.C. v. State, 916 P.2d 914, 916 (Utah Ct.App.1996) (holding that a bind-over order is a final, appealable order because it terminates the jurisdiction of the juvenile court); see also State v. Bell, 785 P.2d 390, 406 (Utah 1989) (stating that where an order terminates jurisdiction of juvenile court, such order is final and appealable); In re Atcheson, 575 P.2d 181, 183 (Utah 1978) (stating that where an order terminates jurisdiction of juvenile court, such order is final). Pursuant to rule 4 of the Utah Rules of Appellate Procedure, a notice of appeal must be “filed with the clerk of the trial court within thirty days after the date of entry of the judgment or order appealed from.” Utah R.App. 4(a). Failure to timely file an appeal pursuant to rule 4 constitutes a waiver of the right to appeal. Additionally, failure to timely file deprives an appellate court of jurisdiction over the appeal. Reisbeck v. HCA Health Servs. of Utah, Inc., 2000 UT 48, ¶ 5, 2 P.3d 447; see also Bell, 785 P.2d at 406 (“[Because no appeal was taken from this final order ... we do not reach the merits of defendant’s present contentions.”). Here, while defendant timely filed a notice of appeal of the bind-over order with the court of appeals, he voluntarily withdrew the appeal, which was ordered dismissed by the court of appeals. Consequently, defendant waived his right to appeal the bind-over order, and we have no jurisdiction to consider his contentions.

IV. ADMISSION OF PRIOR BAD ACT EVIDENCE

¶24 Defendant’s final contention is that the trial court erred in admitting evidence of his prior bad acts, thereby prejudicing the finder of fact against him. Rule 404(b) of the Utah Rules of Evidence precludes evidence of other bad acts by the defendant if its sole purpose is to imply that the defendant has bad character and a disposition to commit the charged offense. This rule works in conjunction with rules 402 and 403 to ensure that a defendant is only convicted because he committed the charged offense and not because the jury is convinced of his cumulative bad behavior. Under these rules, defendant challenges the admission of evidence implicating him in soliciting drugs from A.B. several weeks prior to the incident and the admission of A.D.’s testimony regarding a prior non-consensual sexual encounter. In conjunction with the second challenge, defendant charges counsel for the state with pros-ecutorial misconduct in her characterization of A.D.’s testimony in her summation. We treat these challenges separately.

¶ 25 Defendant asserts that there could be no probative value to the drug solicitation evidence because it was irrelevant to the sexual encounter between himself and the victim. He argues that the only possible purpose for admitting the evidence would be to convince the jury of his bad character. However, there is ample evidence properly in the record both that the defendant had taken drugs the night of the incident and that the defendant had brought his own supply. If the drugs defendant was attempting to obtain from A.B. were commonly associated with the commission of rape, that evidence might have been quite probative. When the witness testified that he did not recall the type of drugs the defendant had solicited, the judge promptly ended that line of questioning, indicating that he was aware of and sensitive to both the potential probative and prejudicial effects of the testimony.

¶26 Moreover, even if we assume that the evidence was improper, an appellate court will not overturn a jury verdict for the admission of improper evidence if the admission of the evidence did not reasonably effect the likelihood of a different verdict. See State v. Hamilton, 827 P.2d 232, 240 (Utah 1992); State v. Featherstone, 781 P.2d 424, 431 (Utah 1989). Considering the evidence of drug use and possession already properly in the record, the suggestion that defendant had attempted to obtain drugs, once upon a time, would come as little surprise to the jury, and would do little to prejudice the jury against him. We therefore find that admission of the drug solicitation evidence was, at most, harmless error.

¶27 The second challenge involves the admission of A.D.’s testimony regarding a prior non-eonsensual sexual encounter between herself and the defendant. Rule 404(b) does not, however, categorically preclude the admission of other bad acts evidence. Rather, it stands for the principle that such evidence is only admissible “if it is relevant for a non-character purpose and meets the requirement of Rules 402 and 403.” Utah R. Evid. 404 advisory committee note; see also State v. Fedorowicz, 2002 UT 67, ¶ 25, 52 P.3d 1194.

¶ 28 A.D.’s testimony was admitted for the legitimate purpose of impeaching defendant’s credibility. While rule 404(b) lists examples of some of the legitimate purposes for which other bad acts evidence may be admitted, the list is not exhaustive. See State v. Ramirez, 924 P.2d 366, 369 (Utah 1996). It is well settled that when a defendant waives his right not to testify, his testimony, like that of any other witness, is subject to being impeached by cross-examination or by rebuttal evidence. State v. Wells, 603 P.2d 810, 812 (Utah 1979). Evidence for the purpose of impeaching credibility may be admissible even if it introduces evidence of a prior bad act. State v. Tucker, 800 P.2d 819, 824 (Utah Ct.App.1990). In this case, defendant had spoken with A.D. outside of court during the course of the trial about her testimony. When asked about this conversation, defendant characterized it as an innocent inquiry about A.D.’s testimony if she were called, and claimed not to know that she had been subpoenaed to testify as a witness. By so testifying, defendant opened the door, and A.D.’s testimony was intended for the legitimate purpose of impeaching defendant’s characterization of their conversation.

¶ 29 Even if evidence is intended for a proper purpose, it must also meet the requirements of rules 402 and 403. Rule 402 requires that evidence be relevant. Evidence is relevant if it tends “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.” Fedorowicz, 2002 UT 67 at ¶ 32, 52 P.3d 1194. The state’s questioning of [ S.H. ] on cross-examination about his conversation with A.D., and A.D.’s rebuttal testimony, were relevant to establishing the defendant’s credibility.

¶ 30 Rule 403 requires that evidence be excluded, even if relevant, if “its probative value is substantially outweighed by the danger of unfair prejudice.” Utah R. Evid. 403. A.D.’s testimony focused on her characterization of the conversation which took place between herself and the defendant. The prosecution refrained from questioning A.D. about the prior incident beyond those facts pertinent to her characterization of that conversation. Thus, the potential prejudicial effect of the testimony was minimized and certainly did not “substantially outweigh” the importance of the testimony to the probative question of credibility. The treatment of the evidence by the prosecution in summation was also directed to the issue of defendant’s credibility. We therefore find no error in the district court’s decision to admit A.D.’s testimony, and no prosecutorial misconduct in the prosecutor’s treatment of the evidence in summation.

CONCLUSION

¶ 31 The trial court properly instructed the jury on the crimes of rape and attempted rape as lesser included offenses of the crime of aggravated sexual assault. The trial court had jurisdiction to try the defendant on any offenses arising out of the original criminal episode. Defendant waived his right to appeal the bind-over order by not appealing it within thirty days. Lastly, the trial court did not err in admitting testimony from A.D. or from A.B. and we find no misconduct in the prosecutor’s treatment of testimony. We therefore affirm the trial court.

¶ 32 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice RUSSON concur in Justice WILKINS’ opinion.

      . This court has described this standard, often referred to as the "necessarily included offense" standard in the following ways: "The lesser offense must be a necessary element of the greater offense and must of necessity be embraced within the legal definition of the greater offense and be a part thereof," State v. Woolman, 84 Utah 23, 36, 33 P.2d 640, 645 (1934), "no element may be included in the lesser offense that is not included in the greater offense,” State v. Howell, 649 P.2d 91, 95 (Utah 1982), and "both the legal elements and the actual evidence or inferences needed to demonstrate those elements must necessarily be included within the original charged offense.” State v. Baker, 671 P.2d 152, 156 (Utah 1983).

      . The crime of aggravated sexual assault is set forth in Utah Code section 76-5-405(1), which reads:
      A person commits aggravated sexual assault if in the course of a rape or attempted rape, object rape or attempted object rape, forcible sodomy or attempted forcible sodomy, or forcible sexual abuse or attempted forcible sexual abuse the actor:
      (a)causes bodily injury to the victim;
      (b) uses or threatens the victim with use of a dangerous weapon as defined in Section 76 — 1— 601;
      (c) compels, or attempts to compel, the victim to submit to rape, object rape, forcible sodomy, or forcible sexual abuse, by threat of kidnaping, death, or serious bodily injury to be inflicted imminently on any person; or
      (d) is aided or abetted by one or more persons.

      . Language defining the jurisdiction of the district court in the case of a serious youth offender is found in the Utah Code in sections 78-3a-602(7), 78-3a-602(10) (renumbered 78-3a-602(11X2002)), and 78-3a-603(12) and (14).

      . Section 78-3a-602(10) (1996) is not superfluous language as was suggested by the Tunzi court. 2001 UT App 224 at ¶25, 31 P.3d 588, (Orme, J., concurring).

      .The legislature amended section 78-3a-602 effective February 27, 2002, adding another subsection to include the following language: "If a minor enters a plea to, or is found guilty of, any of the charges filed or any other offenses arising from the same criminal episode, the district court retains jurisdiction over the minor for all purposes, including sentencing.” Utah Code Ann. § 78-3a-602(10) (Supp.2002).


source: Caselaw Access Project

author: THORNE, Judge:

license: Public Domain

text:
    2002 UT App 433
    STATE of Utah, Plaintiff and Appellant, v. Randy Peter KRUKOWSKI, Defendant and Appellee.
    No. 20010585-CA.
    Court of Appeals of Utah.
    Dec. 27, 2002.

      Mark L. Shurtleff, Attorney General, Brenda J. Beaton, and Jeffrey S. Gray, Asst. Attorneys General, Salt Lake City, for Appellant.
    Stephen R. McCaughey, McCaughey & Metos, Salt Lake City, for Appellee.
    Before Judges JACKSON, BILLINGS, and THORNE.
   OPINION

THORNE, Judge:

¶ 1 The State appeals the trial court’s grant of Randy Krukowski’s motion to suppress. We affirm.

FACTUAL BACKGROUND

¶ 2 In March 1999, two confidential informants informed Detective Mike McNaughton that someone named “Randy Kawalski” was manufacturing methamphetamine inside unit 16 of the Midvale Self Storage Facility. Based on MeNaughton’s history with these same informants, who had guided police to several other methamphetamine labs in the recent past, he went to the storage facility and observed a truck registered to a Randy Peter Krukowski parked near unit 16. McNaughton then summoned a K-9 unit and several narcotics task force officers for assistance. Upon arrival, McNaughton asked the dog handler to walk the entire facility. After the dog handler rejected this suggestion, McNaughton guided the dog and its handler to units 15 through 18, and the dog alerted in front of unit 15. The dog handler surmised, based upon the way the wind was blowing and because a door to unit 16 was slightly open, that there were narcotics in unit 16. Thereafter, McNaughton and another officer knocked on the door to unit 16. Krukowski answered the door and came outside to speak with the officers, shutting the door behind him. The officers told Krukowski that they suspected him of involvement with drugs and requested entry into the unit. Krukowski refused. Over Krukowski’s objection, and without a warrant, the officers entered and quickly searched the unit, observing what appeared to be equipment consistent with a clandestine methamphetamine lab. The officers left, disconnected the electricity to the unit, and detained Krukowski while McNaughton sought a search warrant. The State concedes on appeal that this first search was illegal.

¶ 3 McNaughton presented his warrant affidavit to the magistrate, but he did not reveal, either in the affidavit or in his discussion with the magistrate, that the officers had already entered the unit prior to seeking the warrant. Based upon the incomplete-affidavit, McNaughton obtained the warrant, returned to the storage facility, conducted a search, seized the contents as elements of a clandestine methamphetamine lab, and arrested Krukowski.

¶ 4 The State charged Krukowski with operation of a clandestine lab, a first degree felony, and unlawful possession of a controlled or counterfeit substance with intent to distribute, a second degree felony. Relying upon Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and State v. Nielsen, 727 P.2d 188, 190 (Utah 1986), Krukowski filed a motion to suppress all evidence obtained from the search. Krukow-ski argued that the search warrant was invalid because McNaughton had knowingly or recklessly omitted the material fact of his prior illegal entry from the warrant affidavit. In his memorandum, Krukowski stated:

Had McNaughton included these details concerning his pre-warrant investigation, this would have undermined probable cause for the warrant.... Had the magistrate been informed of this conduct, he would have viewed the entire search warrant affidavit with skepticism, because the whole application hinges on the credibility of the police and affiant, McNaughton.

In response, the State asserted that the independent source doctrine applied, arguing that the search warrant was based only on information available to McNaughton prior to his illegal entry.

¶ 5 After a hearing on the merits, the trial court granted Krukowski’s motion to suppress and directed him to file proposed conclusions of law and findings of fact. The State objected to the proposed conclusions of law and findings of fact proffered by the defense. Most relevant, the State objected to the proposed finding that McNaughton would not have sought a search warrant but for the prior illegal entry and search of unit 16. The trial court overruled the State’s objection and stated:

[T]he court is satisfied that the State has not shown that the search warrant would have been obtained but for the fact that Detective McNaughton performed a constitutionally invalid search of the premises before obtaining the warrant_ Detective McNaughton apparently chose to violate the defendant’s Fourth Amendment rights by conducting an illegal search to satisfy himself that there was a basis to go to the effort to obtain a search warrant. Based upon the fact that Detective McNaughton did not advise [the magistrate] of the fact that he had made an illegal entry into the defendant’s premises ... this Court has little confidence in the testimony of Detective McNaughton on this issue.

(Emphasis added.)

¶ 6 In its final order, the trial court explained that “[t]he record does not persuade the Court that Detective McNaughton would have sought a warrant without first entering the storage shed, but demonstrates that the reason that Detective McNaughton entered the storage shed initially was to investigate the case further before deciding whether to seek a warrant.”

¶ 7 Following the court’s ruling, the State dismissed all charges against Krukowski and now appeals.

ISSUE AND STANDARD OF REVIEW

¶ 8 The State argues that the trial court incorrectly granted Krukowski’s motion to suppress.

The factual findings underlying a trial court’s decision to grant or deny a motion to suppress evidence are reviewed under the deferential clearly-erroneous standard, and the legal conclusions are reviewed for correctness, with a measure of discretion given to the trial judge’s application of the legal standard to the facts.

State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App.1996) (citing State v. Pena, 869 P.2d 932, 935, 940 (Utah 1994)).

ANALYSIS

¶ 9 The State first argues that the trial court granted Krukowski’s motion to suppress because it misinterpreted Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), as requiring an officer seeking a warrant to inform the issuing magistrate of any prior illegal entries. In Murray, federal agents stopped two automobiles after observing them enter and leave a warehouse under surveillance for drug trafficking. See Murray, 487 U.S. at 535, 108 S.Ct. at 2532. After finding marijuana in both automobiles, the agents entered the warehouse without a warrant and discovered several bales that were later confirmed to be marijuana. See id. Without disturbing any evidence, the agents returned to their surveillance while they waited for another agent to secure a search warrant. See id. However, “[i]n applying for the warrant, the agents did not mention the prior [warrantless] entry, and did not rely on any observations made during that entry.” 487 U.S. at 535-36, 108 S.Ct. at 2532. After obtaining the warrant, the agents returned to the warehouse and seized the marijuana. See id. On appeal, the Supreme Court applied the “independent source doctrine.” 487 U.S. at 542, 108 S.Ct. at 2535-36.

¶ 10 The Court explained that under the independent source doctrine, evidence discovered during an unlawful search should not be suppressed if the evidence is “later obtained independently from activities untainted by the initial illegality.” 487 U.S. at 537, 108 S.Ct. at 2533. The Court also stated that to apply the independent source doctrine to situations involving a prior illegal entry followed by a search executed pursuant to a warrant, the “[trial] court must be satisfied that a warrant would have been sought without the illegal entry.” 487 U.S. at 540 n. 2, 108 S.Ct. at 2535 n. 2.

¶ 11 The Court further held that a police officer’s assurances that he would have sought a search warrant absent the results of a prior illegal search are not necessarily “given dispositive effect.” Id. “Where the facts render [the officer’s] assurances implausible, the independent source doctrine will not apply.” Id.

¶ 12 In ruling on the State’s objections to Rrukowski’s proposed conclusions of law and findings of fact the trial court stated that Murray

requires an officer to inform a magistrate of the prior illegal entry in order to meet the heightened burden of convincing the magistrate that whatever was found during the initial illegal entry was not used to establish probable cause. In other words, ... the magistrate is placed in the position of making a neutral and objective assessment of whether the officers truly did not rely on the evidence found during the illegal entry and whether they have proven this point under the heightened burden imposed because of the illegal entry. A magistrate who is not informed of the illegal entry would have no way of making this assessment and would, in fact, be applying a lesser burden than required under Murray.

The State seizes upon this language as evidence that the trial court misinterpreted Murray. The State correctly reads Murray as not explicitly requiring officers to inform a magistrate of a prior illegal entry. However, the State fails to mention that the trial court, in its final order, correctly explained that

[u]nder Murray, the government bears the burden to establish that the police were not prompted to obtain a warrant by what they found in the unlawful search, but would have sought a warrant on the basis of what they knew prior to entering the shed. By doing so [conducting an unlawful search], he would risk suppression of all evidence on the premises, both seen and unseen, since his action would add to the normal burden of convincing a magistrate that there is probable cause the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it.

(Quotations and citations omitted) (alterations in original.) After reviewing Murray, we conclude that, here, the trial court correctly set forth an officer’s obligation of candor before a magistrate. We also conclude that the trial court correctly set forth the very real risk that evidence may be suppressed if an officer’s lack of candor comes to light at tidal.

¶ 13 Moreover, had the trial court, as argued by the State, actually imposed a heightened burden on officers to convince the magistrate that the prior illegal entry did not motivate their seeking the search warrant, we would find no error. We find support for an officer’s obligation of candor within our existing case law.

¶ 14 In State v. Nielsen, 727 P.2d 188 (Utah 1986), the Utah Supreme Court noted that “law enforcement officer[s] must be aware not only of the need for accuracy in the information provided to a magistrate in support of an application for a search warrant, but also of the importance of absolute truthfulness in any statement made under oath.” Id. at 191; see also id. at 194 (Stewart, J. dissenting) (“The integrity of the process is dependent upon truthful affidavits that establish probable cause.”). Thus, we conclude that an officer must be forthcoming about any conduct related to the search warrant request so that a magistrate can determine, independently, how, or if, the prior conduct impacts a probable cause determination.

¶ 15 The State next attacks the trial court’s factual finding that McNaughton would not have sought the search warrant but for his prior illegal entry into unit 16. This particular finding was predicated upon a determination that McNaughton was not a credible witness. When challenging a trial court’s factual findings, the appellant “ ‘must show that, even when viewing the evidence in a light most favorable to the trial court’s ruling, the evidence is insufficient to support the trial court’s findings.’ ” State v. Gamblin, 2000 UT 44, ¶ 17 n. 2, 1 P.3d 1108 (citations omitted) (emphasis omitted). Furthermore, we do not disturb credibility determinations unless the trial court exceeded its permitted range of discretion. See Bruner v. Carver, 920 P.2d 1153, 1158 (Utah 1996) (noting that because trial courts are “in the best position to assess the credibility of witnesses and to derive a sense of the proceeding as a whole,” appellate courts grant broad discretion to trial courts on such matters).

¶ 16 At trial, McNaughton denied that he had entered the storage shed for the purpose of seeing what was inside prior to obtaining a warrant. He also denied that the prior illegal entry motivated his decision to seek a search warrant because he believed that he already had probable cause to obtain a search warrant before the illegal entry. In ruling on the State’s objections to the proposed conclusions of law and facts, the trial court explained that it did not find McNaughton’s testimony, that he would have sought the warrant absent the prior illegal entry, to be believable. The trial court stated:

Based upon the fact that Detective McNaughton did not advise [the magistrate] of the fact that he had made an illegal entry into the defendant’s premises, and did in fact ascertain that there was drug manufacturing in the defendant’s premises when he was presenting information to [the magistrate] for issuance of a warrant, this Court has little confidence in the testimony of Detective McNaughton on this issue.

(Emphasis added.) The trial court further did not believe McNaughton’s attempt to justify his prior illegal entry as a protective sweep. The trial court stated that there was “nothing in the testimony or documents that would suggest ... a ‘protective sweep’_ Rather, the conclusion was reached as an attempt to justify the search after it was called into question.” Thus, the trial court found both McNaughton’s failure to inform the magistrate of the prior illegal entry, as well as his attempt to justify, after-the-fact, the prior illegal entry and search at the suppression hearing, to be indicative of McNaughton’s lack of credibility. The trial court disbelieved McNaughton’s assurances that the prior illegal entry did not motivate him to seek the warrant. In light of McNaughton’s conduct, the trial court did not exceed its permitted range of discretion in disbelieving his testimony nor was the trial court’s conclusion that the prior illegal entry was the motivation for seeking the warrant clearly erroneous.

CONCLUSION

¶ 17 Police officers are obligated to demonstrate candor when seeking search warrants and failure to reveal a prior illegal entry to a magistrate may legitimately call into question an officer’s credibility. Furthermore, the trial court did not exceed its permitted range of discretion in disbelieving MeNaughton’s testimony, nor was the trial court’s conclusion that the prior illegal entry motivated seeking the warrant clearly erroneous. Accordingly, we affirm the trial court’s grant of Krukowski’s motion to suppress.

¶ 18 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and JUDITH M. BILLINGS, Associate Presiding Judge.

      . Krukowski also asserted that the affidavit was inherently misleading and did not establish probable cause, that the warrant was unconstitutionally general, and the magistrate abandoned his detached and neutral role. Because the State appeals the grant of Krukowski’s motion to suppress, and thereby focuses the issues on appeal, we address only the affect of the officer's failure to inform the magistrate of his prior illegal entry.

      . We also conclude that Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), provides a separate and independent basis to affirm the trial court’s decision. However, because we affirm under Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), we do not address the State's arguments under Franks.


text:
    2002 UT App 434
    STATE of Utah, Plaintiff and Appellee, v. Andrew WEISBERG, Defendant and Appellant.
    No. 20001056-CA.
    Court of Appeals of Utah.
    Dec. 27, 2002.

      Ronald J. Yengich and Vanessa Ramos-Smith, Yengich Rich & Xaiz, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Marian Decker, Assistant Attorney General, for Appellee.
    Before Judges DAVIS, GREENWOOD, and THORNE.
   OPINION

THORNE, Judge:

¶ 1 Andrew Weisberg appeals his conviction for stalking, a second degree felony. We affirm.

BACKGROUND

¶ 2 In 1997, Andrew Weisberg entered into a transaction that required the services of Avis and Archibald Title Company (AATC), where Robin Archibald was a partner. The business deal was unsuccessful and Weisberg blamed the failure on Archibald. Weisberg subsequently sued AATC and Archibald, alleging that each breached a duty of care to him. The parties eventually reached a settlement, but Weisberg’s animosity toward Archibald did not subside.

¶ 3 In August 1997, Archibald received a fax from Weisberg’s company that read: “Liar, Liar, pants on fire.” At the same time, Archibald started receiving harassing phone calls at her business, at least one of which included a threat on her life. Around this time, Archibald also noticed that Weis-berg would drive into AATC’s parking lot on a regular basis, slow down, stare into her glass-fronted office, and then drive away.

¶ 4 In October 1997, while Archibald was working late, she looked out of her office window and noticed Weisberg sitting in his truck watching her from the parking lot. Archibald called the police, but Weisberg left before the police arrived.

¶ 5 Soon thereafter, the police contacted Weisberg and informed him that he was being watched and that he should change his behavior or stalking charges would be filed. Weisberg, however, continued to frequent the AATC parking lot. At times, Weisberg would patronize the businesses located around AATC, but at other times he would simply sit in his car and stare into AATC’s front window, or would walk the sidewalk in front of AATC and stare inside.

¶ 6 In April 1998, Archibald encountered Weisberg outside a local restaurant. Before entering, Archibald noticed Weisberg pull his cell phone out of his breast pocket in such a manner that Archibald suspected he might have a gun. Frightened, Archibald hurriedly entered the restaurant. Weisberg followed closely behind and, upon entering the restaurant, hit his hand on the door making a startling noise. Once inside the restaurant, Weisberg briefly sat down with Dennis Porter, who was also eating in the restaurant. Weisberg then stood up abruptly, walked past Archibald making an offensive gesture, and exited the restaurant. After Weisberg left, Porter approached Archibald and asked her what she had done to so anger Weisberg. Later, Porter told police Weisberg had told him that he wanted to hire some men to rape Archibald, that if Archibald were alone he would run her over with his truck and then back over her to make sure she was dead, and that he would like to see Archibald’s head on a platter.

¶ 7 In June 1999, while driving on Highway 89, Archibald again encountered Weis-berg as he drove parallel to her car and stared at her. Frightened, Archibald pulled into a parking lot and called the police. A police officer responded to the call and, upon arrival, observed Weisberg standing in a nearby store staring at Archibald. The officer approached Weisberg and questioned his behavior. Weisberg denied that he was following Archibald.

¶8 In August 1999, Weisberg’s appearances in the AATC parking lot increased, until, finally, on August 25th, Weisberg signed a diversion agreement, agreeing that he would have no more contact with Archibald. However, in December 1999, employees at AATC called the police to again report that Weisberg was in the parking lot. They reported that he had been approaching AATC’s front window and staring inside. The police approached Weisberg and asked him to leave. Weisberg became angry and then insisted that he was in the parking lot solely to protest AATC’s business practices. He then picked up a picket sign and began to picket. The police did not interfere with his protest.

¶ 9 Three days later, Weisberg again entered the AATC parking lot. Weisberg stopped his car directly behind Archibald’s car, which was parked in front of AATC, in a fashion that would have prevented Archibald from moving her car. His car was facing away from the building, with the trunk facing AATC. Weisberg got out of his car and briefly walked into the dry cleaner next door to AATC. However, he neither dropped off nor received any clothing.

¶ 10 Weisberg soon returned to his car and, using the driver-side release button, opened his trunk. He then opened the passenger door of his car and removed a pistol-grip shotgun from the passenger compartment. He lifted the shotgun from the car with the pistol-grip in his right hand and the barrel in his left hand. With the shotgun in his hands, Weisberg looked toward AATC and walked both toward the rear of his car and directly toward AATC’s front window. Weisberg then placed the shotgun in the trunk, closed the trunk, and drove away. AATC employees called the police. Later that day, while picketing in front of AATC,

Weisberg was arrested and charged with stalking.

¶ 11 Following a jury trial, Weisberg was convicted of stalking, a second degree felony, in violation of Utah Code Ann. § 76-5-106.5(2) (1996). The trial court then sentenced Weisberg to an indeterminate term of not less than one year and not more than fifteen years. Weisberg filed a motion to arrest judgment, which was denied. Weis-berg now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 12 Weisberg first argues that the trial court improperly instructed the jury concerning the definition of “use of a weapon.” “A challenge to a jury instruction as incorrectly stating the law presents a question of law, which we review for correctness.” State v. Lucero, 866 P.2d 1; 3 (Utah Ct.App.1993).

¶ 13 Weisberg also argues that the trial court improperly denied his request to arrest judgment pursuant to rule 23 of the Utah Rules of Criminal Procedure.

When reviewing any challenge to a trial court’s denial of arrest of judgment, we review the evidence and all reasonable inferences that may fairly be drawn therefrom in the light most favorable to the jury verdict. We will sustain the trial court’s decision unless the jury verdict is so inconclusive or so inherently improbable as to an element of the crime that all reasonable minds must entertain a reasonable doubt.

State v. Colwell, 2000 UT 8,¶ 11, 994 P.2d 177.

¶ 14 Weisberg next argues that Utah Code Ann. § 76-5-106.5(2) (2000) is unconstitutional. “The challenge to the constitutionality of a statute presents a question of law, which we review for correctness.” Salt Lake City v. Lopez, 935 P.2d 1259, 1262 (Utah Ct.App.1997).

ANALYSIS

¶ 15 Weisberg first argues that the trial court improperly instructed the jury on “use of a dangerous weapon” when it stated:

Use of a dangerous weapon is defined as bringing or putting it into service or action or to put it to some purpose. If you find that a firearm is a dangerous weapon in this case, then its use may include, but is not limited to the following: pointing it at a person, shooting it, or exhibiting it in such a manner that it creates fear in a reasonable person.

Weisberg objected to the portion of the instruction that equated “use” to “exhibiting [a weapon] in such a manner that it creates fear in a reasonable person.” Weisberg argues that this portion of the instruction incorrectly stated the law, because it did not require an “active employment” of the weapon as described in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).

¶ 16 We are unpersuaded by Weis-berg’s argument that the “use of a weapon” instruction misstates the law. In In re R.G.B., 597 P.2d 1333 (Utah 1979), the Utah Supreme Court addressed the sufficiency of the evidence to support a conviction for use of a weapon in the commission of a robbery. See id. at 1334. There, the defendant entered a store and demanded money, “while revealing a gun stuck into the front of his jeans.” Id. The defendant argued that the State had not proven that he used a deadly weapon “since the [defendant] did not handle the gun or point it at the victim.” Id. at 1335. The Utah Supreme Court disagreed, stating “it is not necessary that the State prove that the robber actually pointed a gun at the victim .... If merely exhibiting the gun creates fear in the victim, it constitutes ‘use of a firearm’ for that purpose.” Id. (footnote omitted).

¶ 17 Thus, according to R.G.B., a weapon is used even if it is never actually pointed at a victim, so long as “exhibiting the [weapon] creates fear in the victim.” Id. Because the instruction at issue in this case incorporated this principle, we conclude that it correctly stated the law in the context of this ease.

¶ 18 In a variation on his first argument, Weisberg next claims that there was insufficient evidence presented at trial to warrant the second degree felony conviction because he did not actively employ or use a weapon in connection with the stalking offense. On these grounds, Weisberg filed a rule 23 motion to arrest judgment, which the trial court denied.

¶ 19 In his rule 23 motion, Weisberg argued that his one-time conduct of moving the shotgun from the passenger compartment to the trunk of his car did not amount to use of a weapon for purposes of stalking. As already discussed, in R.G.B., the Utah Supreme Court concluded that a defendant “uses” a dangerous weapon when he or she exhibits the weapon for the purpose of creating fear in the victim. See R.G.B., 597 P.2d at 1335.

¶ 20 In the instant case, the State presented sufficient evidence from which the jury could conclude that, over a period of two years, Weisberg followed Archibald, made threatening comments about her, and frequented her business parking lot to frighten and intimidate her. The State also presented evidence that Weisberg entered the parking lot of Archibald’s office and took deliberate steps to demonstrate that he was in possession and control of a shotgun. Weis-berg parked his car directly behind Archibald’s car, opened the passenger-side door, and moved a shotgun to the trunk of the car while directly in front of Archibald’s office. Based on the evidence submitted, the jury could reasonably infer that Weisberg stalked Archibald and exhibited the shotgun for the purpose of creating fear in her. Thus, the evidence presented was sufficient for the jury to convict Weisberg of stalking in the second degree, and we affirm the trial court’s denial of Weisberg’s motion to arrest judgment.

¶21 Finally, Weisberg argues that Utah Code Ann. § 76-5-106.5 (2000) is unconstitutional as applied to him under the United States and Utah Constitutions. “ ‘[W]hen reviewing statutes for constitutionality, a statute is presumed constitutional, and “we resolve any reasonable doubts in favor of constitutionality.” ’ ” Lopez, 935 P.2d at 1262 (citations omitted) (alteration in original).

¶22 Weisberg argues that section 76-5-106.5 is unconstitutional as applied to him because it prohibits him from frequenting the shopping center where AATC is located and, thus, punishes him for merely being at a place where Archibald frequents. He also argues that the statute violates his free speech rights because he was prevented from picketing at AATC. We disagree.

¶ 23 Unlike a facial challenge, “a person ‘ “who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant’s conduct before analyzing other hypothetical applications of the law.” ’ ” Lopez, 935 P.2d at 1265 (citations omitted). Here, Weisberg had been told by the police on several occasions that he was to have no contact with Archibald, and he even signed a diversion agreement to this effect. Still, Weisberg made threatening statements about Archibald, entered the AATC parking with a pistol-grip shotgun, and engaged in other conduct intended to intimidate Archibald. Given Weisberg’s knowledge and conduct, he cannot claim the statute is vague as applied to him. See id.

¶ 24 Moreover, Weisberg was not prosecuted for merely frequenting the AATC parking lot, picketing AATC, or for running into Archibald at several locations as he claims. Weisberg was prosecuted for “causing emotional distress to [Archibald] and engaging in behavior directed at her that could reasonably be understood as threatening.” Id. at 1264-65. Thus, the claim that section 76-5-106.5 is either over-broad or vague as applied to Weisberg is without merit.

CONCLUSION

¶ 25 The jury instruction addressing use of a weapon properly set forth the law. Moreover, the State presented sufficient evidence from which the jury could have convicted Weisberg for stalking in the second degree, and section 76-5-106.5 is constitutional. Accordingly, we affirm.

¶ 26 WE CONCUR: JAMES Z. DAVIS and PAMELA T. GREENWOOD, Judges.

      . We present the facts and all reasonable inferences drawn therefrom "in the light most favorable to the jury verdict and present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Bluff, 2002 UT 66,- ¶ 2, 52 P.3d 1210.

      . In Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the Court held "that § 924(c)(1) require[d] evidence sufficient to show an active employnwnt of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.” 516 U.S. at 143, 116 S.Ct. 501, 505, 133 L.Ed.2d 472. The Court concluded that " use' must connote more than mere possession of a firearm by a person.” 516 U.S. at 143, 116 S.Ct. at 506.
      Weisberg's reliance on Bailey is misplaced, for that definition of "use” is specific to 18 U.S.C. § 924(c)(1). 516 U.S. at 143, 116 S.Ct. at 505. Furthermore, even if we were to apply Bailey's definition, the instruction Weisberg attacks is correct. Bailey states, "The word 'use' in the statute must be given its 'ordinary or natural' meaning, a meaning variously defined as 'to convert to one's service,’ ‘to employ,’ ‘to avail oneself of,' and 'to carry out a purpose or action by means of.'” 516 U.S. at 145, 116 S.Ct. at 506 (citations omitted). Here, the State presented sufficient evidence from which the jury could have found that Weisberg "employed” the shotgun in his stalking of Archibald.

      . Rule 23 provides that "[a]t any time prior to the imposition of a sentence the court ... may ... arrest judgment if the facts proved or admitted do not constitute a public offense ... or there is other good cause for the arrest of judgment.” Utah R.Crim. P. 23. "The standard for determining whether a trial court correctly granted or denied a motion for arrest of judgment is the same standard appellate courts apply in determining whether a jury verdict should be set aside for insufficient evidence.” State v. Hoffhine, 2001 UT 4,V 20, 20 P.3d 265.

      . Weisberg also argues that the evidence is insufficient to convict on second degree stalking because Archibald did not see him move the shotgun to the trunk of his car. Pursuant to R.G.B., the State need only present evidence from which the jury can reasonably conclude that Weisberg intended to frighten Archibald by displaying the shotgun. See In re R.G.B., 597 P.2d 1333, 1335 (Utah 1979). It is not necessary that the State prove that Archibald saw the shotgun, as long as a reasonable person in Archibald’s position would have been frightened once she learned that Weisberg had been in her office parking lot with a shotgun. See Salt Lake City v. Lopez, 935 P.2d 1259, 1263-64 (Utah Ct.App.1997) (noting that element of offense of stalking is that reasonable person would have suffered emotional distress).

      . Weisberg also argues that section 76-5-106.5 is unconstitutional on its face. See § 76-5-106.5 , (2000). This court found the statute facially sound in Lopez, 935 P.2d at 1264; thus, we address only Weisberg’s claim that the statute is unconstitutional as applied to him.


author: VOIGT, Justice.

text:
    2003 WY 11
    Kenneth Wayland DANIELS, individually and by and through his parent and guardian, Cynthia Rice, Appellants (Plaintiffs), v. Marilyn and David CARPENTER, Appellees (Defendants).
    No. 01-224.
    Supreme Court of Wyoming.
    Jan. 28, 2003.

      Richard K. Blundell of the Law Office of Richard K. Blundell, Greeley, Colorado; and Tom Sedar, Casper, Wyoming, Representing Appellants.
    S.B. Freeman, III of Bormuth & Freeman, LC, Cody, Wyoming, Representing Appel-lees.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference.

   VOIGT, Justice.

[¶ 1] This is an appeal from the district court’s dismissal of the appellant’s complaint for failure to state a claim upon which relief can be granted and its denial of appellant’s motion for leave to amend the complaint. We affirm the dismissal because the complaint did not allege facts that would entitle the appellant to relief. We affirm the denial because the appellant did not support his oral motion with facts justifying amendment.

ISSUES

[¶ 2] The issues presented by the parties can conveniently be restated as follows:

1. Whether Wyoming law imposes a duty upon the appellees, under the circumstances of this case, to protect the appellant from harm caused by an intoxicated minor social guest?

2. Whether the district court abused its discretion in denying the appellant’s motion for leave to amend the complaint?

FACTS

[¶ 3] Since this appeal results from the granting of a W.R.C.P. 12(b)(6) motion, we will accept the facts set forth in the complaint as true and will view those facts in the light most favorable to the appellant. Feltner v. Casey Family Program, 902 P.2d 206, 207 (Wyo.1995). On May 10,1997, Kenneth Daniels (the appellant), Michael T. Jefferson (Jefferson) and other teenaged boys spent the night in a trailer or camper “on land owned by, in the control of, and resided upon by” David and Marilyn Carpenter (the appellees). During the night, Jefferson became highly intoxicated. At about 5:00 a.m., some of the boys, including the appellant, Jefferson, and Ryan Carpenter (Carpenter), left the appellees’ property. After leaving the property, the boys borrowed a car from Anthony Pacino. At about 6:58 a.m., with Jefferson driving, the car left the road at a high rate of speed and wrecked. Jefferson and Carpenter were killed and the appellant was injured. Jefferson’s blood alcohol content at the time of the accident was 0.09%.

[¶ 4] Based on these facts, the appellant sued the appellees, alleging (1) the appellees had a duty to control and supervise the actions of the teenagers; (2) the appellees knew or should have known that Jefferson was intoxicated; (3) the appellees breached their duty to control and supervise Jefferson by allowing him to drink alcoholic beverages and then allowing him to leave their home and drive a vehicle while he was intoxicated; and (4) the appellees’ negligent control and supervision of Jefferson was a direct and proximate cause of the appellant’s injuries.

[¶ 5] The appellees separately filed motions to dismiss the complaint under W.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The motions, which are identical, contend that (1) the accident did not occur on the appellees’ property; (2) the appellees did not own the vehicle that wrecked; (3) Jefferson was not the appellees’ son; (4) Jefferson was driving the car for his own purposes and was not on a mission for the appellees; (5) Jefferson and the other teenagers were acting without the appellees’ consent or knowledge; and (6) therefore, the appellees owed no statutory or common law duty to the appellant to protect him from the accident that caused his injuries.

[¶ 6] The district court granted the appel-lees’ motions to dismiss, finding that the facts set forth in the complaint did not establish circumstances that would create a duty owed by the appellees to the appellant. The district court also denied the appellant’s motion for leave to amend the complaint. This appeal followed.

DISCUSSION

W.R.C.P. 12(b)(6) Dismissal

In pursuing review of an order dismissing a complaint, we accept all facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Gillis v. F & A Enterprises, 934 P.2d 1253, 1254-55 (Wyo.1997). In Gillis, we reiterated that dismissal is a drastic remedy which should be granted sparingly. We sustain a dismissal pursuant to W.R.C.P. 12(b)(6) only when it is certain from the face of the complaint that the plaintiff cannot allege any facts that would entitle him to relief.

Garnett v. Brock, 2 P.3d 558, 562 (Wyo.2000). See also Duncan v. Afton, Inc., 991 P.2d 739, 741-42 (Wyo.1999) and Johnson v. Aetna Cas. & Sur. Co. of Hartford, Conn., 608 P.2d 1299,1302 (Wyo.1980).

[¶ 7] The appellant begins his argument that the appellees owed him a duty in this case by turning to this Court’s statement that “[t]he Wyoming common law of negligence imposes a duty on the defendant to exercise the degree of care required of a reasonable person in light of all the circumstances.” McClellan v. Tottenhoff, 666 P.2d 408, 411 (Wyo.1983). He then cites the same case for a further explication of the same principle:

“ ‘ * * * One owes the duty to every person in our society to use reasonable care to avoid injury to the other person in any situation in which it could be reasonably anticipated or foreseen that a failure to use such care might result in such injury.’ Kirby v. Sonville, 286 Or. 339, 594 P.2d 818, 821 (1979). ⅜ ⅜ ⅜ ”

McClellan, 666 P.2d at 412 (quoting Alegría v. Payonk, 101 Idaho 617, 619 P.2d 135, 137 (1980)).

[¶ 8] The appellant bolsters his position by referring to various sections of the Restatement (Second) of Torts. Restatement (Second) of Torts § 314A (1965), for example, describes several non-exclusive special relationships that may give rise to a duty to aid or protect a third person, including common carrier and passenger, innkeeper and guest, and possessor of land held open to the public and invited guest. More pertinent to the instant case is Restatement (Second) of Torts, supra, § 315, which describes a duty to control the actions of a third person to prevent harm to another:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.

[¶ 9] The sections that follow Restatement (Second) of Torts, supra, § 315 describe situations where an actor has a duty to control the conduct of a third person. Two of those sections describe situations that bear some resemblance to the case at hand. Restatement (Second) of Torts, supra, § 316 provides:

A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to . create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.

Restatement (Second) of Torts, supra, § 318 provides:

If the actor permits a third person to use lands or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor
(a) knows or has reason to know that he has the ability to control the third person, and
(b) knows or should know of the necessity and opportunity for exercising such control.

And finally, Restatement (Second) of Torts, supra, § 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

[¶ 10] One example of a case wherein a duty was based upon these Restatement principles is Gritzner v. Michael R, 228 Wis.2d 541, 598 N.W.2d 282 (1999). In Gritzner, a minor was sexually molested by another minor while playing at the latter’s home. The Wisconsin Court of Appeals found “it self-evident that an adult who voluntarily takes on the supervision, custody or control, even on a temporary basis, of a visiting child ..., stands in a special relationship to such child for purposes of the child’s ‘protection’ under § 314A of the Restatement.” Gritzner, 598 N.W.2d at 287-88. In reversing the dismissal of the victim’s negligence action against the parent of the perpetrator, the court also found that a duty of protection existed under Restatement (Second) of Torts, supra, § 324A. Gritzner, 598 N.W.2d at 289. It is noteworthy that the potential liability of the homeowner in Gritz-ner did not arise from the concept of premises liability, but from the special relationship. Id. at 288.

[¶ 11] Under different facts, a similar result was reached in Morgan v. Perlowski, 508 N.W.2d 724 (Iowa 1993). While attending a “beer party” at Perlowski’s mother’s house, Morgan was assaulted by another guest. Id. at 725-26. In Morgan’s negligence action against Perlowski, a question arose as to the proper source of any duty Perlowski owed Morgan. Rejecting a premises liability theory, the Iowa Supreme Court held that the duty arose out of the special relationship concepts of Restatement (Second) of Torts, supra, §§ 315 and 318. Morgan, 508 N.W.2d at 726-28. In adopting the principles of Restatement (Second) of Torts, supra, § 318, the court held that “[a]s a matter of public policy, it is reasonable to impose a limited duty upon a possessor of land, who is present on the land, to control the conduct of social guests.” Morgan, 508 N.W.2d at 728. The court then concluded that it was a jury question whether Perlow-ski knew or should have known he had the ability to control the assaulting guest and whether he knew or should have known of the necessity and opportunity to exercise such control. Id. See also Chavez v. Torres, 128 N.M. 171, 991 P.2d 1, 5-6 (1999). For a duty to arise under Restatement (Second) of Torts, supra, § 318, harm must have been reasonably foreseeable by the homeowner. Anthony H. v. John G., 415 Mass. 196, 612 N.E.2d 663, 666 (1993).

[¶ 12] As an alternative theory of liability, the appellant also contends that the appellees stood in loco parentis and had assumed the parental duty to control the teenagers who were staying overnight on their property. Without citation to any particular authority, the appellant simply argues that this theory supports a finding that the appellees had a duty to the minors.

[¶ 13] This Court, and the Wyoming State Legislature, have both previously dealt with the tort of social host or vendor liability for harm caused by an intoxicated person. In Parsons v. Jow, 480 P.2d 396, 397 (Wyo.1971), this Court stated that there was no common law cause of action against a liquor vendor in favor of one injured by an intoxicated vendee because proximate cause was deemed to be the vendee’s consumption, not the vendor’s sale. We also said that any change in that rule was up to the legislature. Id. at 398. Twelve years later, in McClellan, 666 P.2d at 410-12, we reversed ourselves and acknowledged a cause of action based on common law negligence. We further held that statutes forbidding the sale of alcohol to minors were meant not only to protect minors, but also to protect the general public, and that violation of such statutes is evidence of negligence. Id. at 413.

[¶ 14] The primary holding of McClellan was legislatively abrogated in 1985 with passage of a statute specifically limiting the liability of alcohol providers. 1985 Wyo. Sess. Laws ch. 205, § 1. The statute was modified in 1986. 1986 Wyo. Sess. Laws ch. 6, § 1. In pertinent part, it provides that “[n]o person who has legally provided alcoholic liquor or malt beverage to any other person is liable for damages caused by the intoxication of the other person.” Wyo. Stat. Ann. § 12-8-301 (LexisNexis 2001). The clear intent of the act is to immunize both vendors and social hosts from liability for damages caused by persons to whom alcohol has legally been provided. In that regard, it is not legal for a person to provide alcohol to a minor who is not his “legal ward, medical patient or member of his own immediate family....” Wyo. Stat. Ann. § 12-6-101(a) (Lexis 1999).

[¶ 15] In the context of the present case, the effect of this statute is to allow the appellant to pursue a cause of action against the appellees if it can be shown that they provided alcohol to the teenaged boys. So, without the statute, there is certainly no legislative bar to such an action. The question remains, however, where there is no allegation that the appellees, themselves, provided the alcohol, what facts might sustain a cause of action against them? In other words, under what circumstances should the appellees be seen to have had a duty to protect the appellant?

[¶ 16] Broadly speaking, “[a] duty may arise by contract, statute, common law, or when the relationship of the parties is such that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff.” Hamilton v. Natrona County Educ. Ass’n, 901 P.2d 381, 384 (Wyo.1995). One such relationship is the parent/child relationship. In Sare v. Stetz, 67 Wyo. 55, 214 P.2d 486, 487 (1950), we rejected the family purpose doctrine, under which a parent, as owner of a car, may be held liable for the negligence of a child who drives the car. In doing so, we held that “ ‘[a] parent is not liable for the tort of his minor child merely from the relationship.’ ” Id. at 488 (quoting Arkin v. Page, 287 Ill. 420, 123 N.E. 30, 31 (1919)). We reached a similar conclusion in Kimble v. Muller, 417 P.2d 178, 180 (Wyo.1966), where we said:

For us to hold the father in this instance liable for his son’s negligence, because the father permitted the son to use the car, would be equivalent to holding that every parent is liable for every tort of a child.

See also Hatch v. O’Neill, 133 Ga.App. 624, 212 S.E.2d 11, 13 (1974) (“[a] mother is not negligent in simply failing to keep a constant and unremitting watch and restraint over her children”) and Paige v. Bing Const. Co., 61 Mich.App. 480, 233 N.W.2d 46, 49 (1975) (“impossibility of a parent knowing what a child is doing at all times — despite utmost vigilance”).

[¶ 17] Clearly, the parental relationship, without more, is not sufficient to make a parent liable in tort for the conduct of his or her child. That is analogous to the principle that a social host, even when acting in loco parentis, is not necessarily liable in tort for the conduct of his or her minor social guests. The question that must be answered is this — what is the “something more” that must exist in circumstances such as those in the instant case before a duty arises on the part of a social host to protect third parties from harm caused by an intoxicated minor guest? Some courts have said the answer lies in the host’s knowledge of the minor’s propensity to engage in the specific dangerous activity:

When a person has not furnished the instrumentality but through negligence allowed access thereto to a child, the standard for imposing liability upon the person is whether the person knew of the child’s proclivity or propensity for the specific dangerous activity which caused the harm.... If such knowledge cannot be shown on the part of the parent, then liability cannot attach....
... We hold that the [parents] were not negligent in simply failing to keep a constant and unremitting watch and restraint over their children, or over other children with whom their children were playing.

Dennis by Evans v. Timmons, 313 S.C. 338, 437 S.E.2d 138, 141 (1993). Similarly, in Manuel v. Koonce, 206 Ga.App. 582, 425 S.E.2d 921, 923-24 (1992), parents who did not furnish alcohol to their son and his minor guests, who were absent from their home, and who had no reason to anticipate that their son and his minor guests would obtain alcohol, were not hable for personal injuries and deaths caused by a minor driver to whom their son had provided alcohol. Specifically, the Georgia Court of Appeals found no evidence that the parents “knew or should have known” that their son had a propensity to provide alcohol to underage guests at their home. Id. at 923. See also Gritzner, 598 N.W.2d at 289 (duty arose under Restatement (Second) of Torts, supra, § 324A where parent had prior knowledge of son’s propensity to sexually abuse other children) and Garrison Retirement Home Corp. v. Hancock, 484 So.2d 1257, 1262 (Fla.App.1985) (defendant, who had knowledge of resident’s poor driving capabilities, had duty to protect others).

[¶ 18] In Austin v. Kaness, 950 P.2d 561 (Wyo.1997), we considered the specific question of the liability of homeowner parents to a third party injured by an intoxicated social guest who had obtained alcohol in the parents’ home, not from them, but from their adult son. Because the son was not a minor, and because he did not reside in his parents’ home, the question of the parents’ liability was presented under theories of agency and respondeat superior. Id. at 563-64. We found that the parents were not hable for their son’s conduct because, even if he were considered an employee or agent, the act of throwing a “beer party” was clearly outside the scope of his duties. Id. at 564.

[¶ 19] Several courts have recognized a limited cause of action where an intoxicated social guest harms a third party. For example, in Cravens v. Inman, 223 Ill.App.3d 1059,166 Ill.Dec. 409, 586 N.E.2d 367, 377-78 (1991), the court stated:

We agree with plaintiffs assertion that this court should, under the precise facts of the instant cause, adopt the view of other states that have recognized social host negligence liability for automobile accident injuries caused by an intoxicated minor driver. We emphasize that our holding is limited to the facts alleged in plaintiffs pleading, ie., where (1) a social host has knowingly served alcohol, and permits the liquor to be served, to youths under 18 years of age at the social host’s residence, (2) the social host permits the minors’ consumption to continue to the point of intoxication, and (3) the social host allows the inebriated minors to depart from the residence in a motor vehicle. We express no opinion with respect to factual scenarios other than the one presented herein.[]

These same factors, described somewhat differently, were also adopted in Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716, 719 (1985):

We therefore find that the defendant hostess and her daughter owed a duty to those using the highways not to subject them to an unreasonable risk of harm by furnishing alcohol to a person under 19 who was noticeably intoxicated and who these defendants knew would soon be driving his car.[]

[¶ 20] It should be recalled that, in Parsons, 480 P.2d at 397, this Court stated that there was no common law cause of action against a liquor vendor for negligence because the consumption, rather than the sale, of the alcohol was the proximate cause of any harm to third parties. With the coming of comparative negligence, however, some courts see this as a question for the jury:

We hold that, where there is sufficient proof at trial, a social host who negligently serves or furnishes intoxicating beverages to a minor guest, and the intoxicants so furnished cause the minor to be intoxicated or cause the minor’s driving ability to be impaired, shall be liable to third persons in the proportion that the negligence in furnishing the beverage to the minor was a substantial factor in causing the accident or injuries, as may be determined under the rules of comparative negligence.

Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857, 865 (1985). The key element in this analysis of causation is foreseeability.

We turn now to the question of proximate cause. Under many circumstances the act which is the proximate cause of the damage resulting from a breach of duty relating to alcohol is the act of the consumer of the alcohol. Under such circumstances, the consumer is solely liable because the act of furnishing the alcohol is too remote to be the proximate cause of the negligence of the consumer.... That is to say, the subsequent act of the consumer is not foreseeable to the provider, or the consumption of an excessive amount of alcohol is the intervening (unforeseeable) cause of the damage.
However, where one provides alcohol to a noticeably intoxicated 17-year-old knowing that he will soon be driving his car, it is foreseeable to the provider that the consumer will drive while intoxicated and a jury would be authorized to find that it is foreseeable to the provider that the intoxicated driver may injure someone. That is to say, a jury would be authorized to find that providing alcohol to a noticeably intoxicated 17-year-old automobile driver was one of the proximate causes of the negligence of the driver and of the injuries to the deceased.

Sutter, 327 S.E.2d at 719 (emphasis in original and footnote omitted). Furthermore, for such a duty to arise, the foreseeable harm need not be known with specificity:

“ ‘... The duty of any person is the obligation of due care to refrain from any act which will- cause foreseeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest is unknown at the time of the act....
“ ‘A defendant’s duty is established when it can be said that it was foreseeable that his act or omission to act may cause harm to someone. A party is negligent when he commits an act when some harm to someone is foreseeable. Once negligence is established, the defendant is liable for unforeseeable consequences as well as foreseeable ones. In addition, he is liable to unforeseeable plaintiffs.’ ”

Koback, 366 N.W.2d at 863 (quoting Olsen v. Copeland, 90 Wis.2d 483, 280 N.W.2d 178, 184 (1979) (Day, J., dissenting)).

[¶ 21] The sampling of opinions cited herein reveals the extent to which courts have gone to establish liability on the part of social hosts for harm caused by their intoxicated guests. Premises liability, parental liability, respondeat superior, agency, special relationships, gratuitous undertaking, and common law negligence — these theories have all been advanced to provide the underpinnings for such a tort. In truth, the answer lies in a principle to which we have turned in the past in determining the existence of a duty in a negligence case — duty exists where society says it ought to exist.

“Essential to any negligence cause of action is proof of facts which impose a duty upon defendant. See, ABC Builders, Inc. v. Phillips, 632 P.2d 925, 931 (Wyo.1981). The question of the existence of a duty is a matter of law for the court to decide. Id., at 932. A duty exists where, ‘upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other — or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant.’ Prosser and Keeton on Torts § 37 at 236 (5th ed.1984).”

Duncan, 991 P.2d at 742 (quoting Goodrich v. Seamands, 870 P.2d 1061, 1064 (Wyo.1994)). Deciding whether a legal obligation should be imposed involves a balancing of certain identified factors:

When this Court has considered whether a duty should be imposed based on a particular relationship, we have balanced numerous factors to aid in that determination:

“(1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant’s conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved.”

Duncan, 991 P.2d at 744 (quoting Ortega v. Flaim, 902 P.2d 199, 203, 206 (Wyo.1995)) (footnote omitted). This is a test for the imposition of a duty under the general theory of common law negligence and it does not require the existence of a relationship recognized under some specialized theory such as premises liability or agency. Instead, it is the same theory set forth in McClellan, 666 P.2d at 412 (quoting Alegría, 619 P.2d at 137), whereby a duty of reasonable care exists to avoid injury to another person where it “ ‘could be reasonably anticipated or foreseen that a failure to use such care might result in such injury.’ ”

[¶22] People who legally provide alcoholic liquor or malt beverages to another person are immunized under Wyo. Stat. Ann. § 12-8-301(a) against liability for damages that may be caused by the intoxication of that other person. Under Wyo. Stat. Ann. § 12-6-101(a), it is illegal to provide alcoholic liquor or malt beverages to minors, except in certain limited circumstances not pertinent here. Wyo. Stat. Ann. § 12-8-301(c) makes it clear that the immunity provision does not affect liability where the alcoholic liquor or malt beverage is provided in violation of Title 12. Taken together, these statutory sections reflect the legislature’s recognition that, where alcohol is illegally provided to a minor, the person providing the alcohol may become liable for injuries resulting from that minor’s resulting intoxication. Consequently, there is no statutory deterrent to a finding by this Court that a common law cause of action for social host liability exists under the appropriate circumstances.

[¶ 23] This is not the case in which to make that determination. Neither party applied the Duncan factors to the facts of this case. We are not inclined to pursue that task on our own initiative. Furthermore, the appellant’s complaint lacked several allegations that seem to be universally required where a tort duty has been recognized in such circumstances. First, there is no liability unless the defendant parents/homeowners provided the alcohol to the minor guests or, at least, they knew or should have known alcohol was being provided to the minor guest. Second, there is no liability unless the , parents/homeowners knew or should have known that the minor guest was drinking to the point of intoxication. And third, there is no liability unless the parents/homeowners knew or should have known that the minor guest would soon be driving an automobile. In other words, the mere failure of parents/homeowners to supervise the minors does not, without more, create a duty to protect third parties from harm caused by an intoxicated minor driver under these circumstances. See Sutter, 327 S.E.2d at 719; Charles v. Seigfried, 251 Ill.App.3d 1059, 191 Ill.Dec. 431, 623 N.E.2d 1021, 1024 (1993), rev’d, 165 Ill.2d 482, 209 Ill.Dec. 226, 651 N.E.2d 154, 159 (1995) (reversed on ground that state’s dramshop act had pre-empted the field); Cravens, 166 Ill.Dec. 409, 586 N.E.2d at 378; Bowling v. Popp, 536 N.E.2d 511, 514 (Ind.App.1989); Fullmer v. Tague, 500 N.W.2d 432, 435 (Iowa 1993); Spears v. Bradford, 652 So.2d 628, 632 (La.App.1995); O’Flynn v. Powers, 38 Mass.App.Ct. 936, 646 N.E.2d 1091, 1092 (1995); Hart v. Ivey, 332 N.C. 299, 420 S.E.2d 174, 178 (1992); Daniel v. Reeder, 16 S.W.3d 491, 495 (Tex.App.2000); and Edward L. Raymond, Jr., Annotation, Social Host’s Liability for Injuries Incurred by Third Parties as a Result of Intoxicated Guest’s Negligence, 62 A.L.R.4th 16, §§ 8-9, 13,17-19 (1988).

[¶ 24] It was not an abuse of discretion for the district court to dismiss the appellant’s complaint for failure to state a claim upon which relief can be granted. The complaint failed to allege the minimal facts that would support a cause of action under these circumstances. Perhaps the most noticeable deficiency is any allegation that the appellees knew or should have known that Jefferson would soon be driving a car. Nowhere in the record is there even a suggestion, let alone any evidence, to contradict the complaint’s own implication that the boys left the appellees’ premises on foot. Consequently, there is likewise nothing in the record to support any inference that the appellees knew or should have known that Jefferson would later be driving a vehicle. Similarly, there is not a hint in the complaint as to the source of the alcohol that Jefferson drank that night. An allegation of failure to supervise minors, without more, is not sufficient.

Motion for Leave to Amend Complaint

[¶ 25] W.R.C.P. 15(a) provides, in pertinent part:

A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served, or if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

(Emphasis added.) The decision whether to allow a pleading to be amended is left to the sound discretion of the district court and is subject to reversal only for an abuse of that discretion. Rose v. Rose, 576 P.2d 458, 459 (Wyo.1978). “Judicial discretion is ‘a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.’ ” Herbel v. S.K Wood Co., 897 P.2d 478, 480 (Wyo.1995) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)). The basic guideline for the exercise of discretion in ruling on a W.R.C.P. 15(a) motion is whether the amendment will prejudice the other party. Rose, 576 P.2d at 459.

[¶ 26] In the absence of undue delay, bad faith, dilatory motive, or undue prejudice to the opposing party, leave to amend a pleading should liberally be granted. Beaudoin v. Taylor, 492 P.2d 966, 970 (Wyo.1972) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)). The movant has the responsibility to produce the evidence that clearly shows an abuse of discretion. Dynan v. Rocky Mountain Federal Sav. and Loan, 792 P.2d 631, 640 (Wyo.1990).

[¶ 27] Upon hearing that the district court intended to grant the appellees’ motion to dismiss, appellant’s counsel orally moved for leave to amend the complaint. As justification for such an amendment, counsel presented the following arguments:

[APPELLANT’S COUNSEL]: Yes, sir. Your Honor, the problem that exists is: When we got this case, it had been with an attorney up there in Powell for about four years, and it was — the statute of limitations has now run. So if we’re not allowed to amend, this case would be, for all intent and purpose, over.
[APPELLANT’S COUNSEL]: ... It would be our contention that they knew or should have known that alcohol was being consumed by those children. And what I will do and what I intend [to] do is go back to my client, who was one of the few people who survived that party that night, and I will very specifically ask him where — what’s going on with the alcohol. When we have talked to him about it in the past, he’s been unable to tell us, probably because he’s trying to protect someone.
But I would not refile this with the facts that we have. I would not even amend. But if we have facts that support — now that I understand the Court’s ruling — that the Carpenters were either privy to alcohol being given out, or, consistent with some of the case law I’ve given you, had alcohol available to the children, then we would most certainly come back and amend the complaint in that situation.
And, Your Honor, I think that time their duty would arise out of the fact that they knew or should have known that those children were drinking, and I think they do have a duty to control that if they have guests at their house that are minors.

[¶ 28] The district court considered these arguments, and the appellees’ response thereto, and then orally denied the motion for leave to amend. First, the district court concluded that the appellees’ contentions as to a lack of duty continued to be correct. Second, the district court found that the motion was not timely. The district court noted that the complaint had been filed on June 28, 2001, and the motion to dismiss had been filed on August 22, 2001. The hearing took place on September 24, 2001. The appellant had three months after the filing of the complaint, and one month after the filing of the motion, during which he could have made some attempt to correct any deficiencies in the filed complaint. Apparently, no effort was made to do so. The district court noted that, normally, a motion for leave to amend is accompanied by a copy of the proposed amended pleading.

[¶ 29] There is little guidance within W.R.C.P. 15(a), itself, to aid the district court in its exercise of discretion when a motion to amend the pleadings is made. In interpreting the phrase, “when justice so requires,” this Court has focused on two concepts: first, whether the movant has been guilty of bad faith or dilatory motive, or similar conduct, and, second, whether the amendment will unduly prejudice the opposing party. In re Paternity of IC, 941 P.2d 46, 60 (Wyo.1997) (iquoting Hernandez v. Gilveli, 626 P.2d 74, 77 (Wyo.1981)); Johnson, 608 P.2d at 1303; Beaudoin, 492 P.2d at 970. We have also said that amendment should be allowed when it “ ‘will serve a good purpose....’ ” Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 226 (Wyo.1994) (quoting Herrig v. Herrig, 844 P.2d 487, 490 (Wyo.1992)).

[¶ 30] We cannot say that the district court abused its discretion in denying the appellant’s motion to amend. While we may not have characterized the deficiencies in the motion exactly as the district court did, we may affirm the decision on any legal ground appearing in the record. Litzenberger v. Merge, 698 P.2d 1152,1153 (Wyo.1985); Mentock v, Mentock, 638 P.2d 156,159 (Wyo.1981). We affirm here because the motion to amend the complaint was not so much a legitimate request to add allegations that might establish a cause of action as it was an attempt to avoid the statute of limitations while the appellant belatedly commenced a basic investigation of his own case. The accident happened in May of 1997. The complaint was not filed until four years later. The motion was not heard for a month after it was filed. During the interim, the appellant or his attorneys apparently failed to discover the operative facts necessary to state a cause of action.

[¶ 31] In moving to amend the complaint, counsel did not inform the district court of the proposed particulars of the amendment. All that was offered was the hope that, if facts could be developed to support a cause of action, an amended complaint would be filed. Ironically, counsel’s statements suggest that the failure to obtain the necessary information was partly the fault of the appellant, himself, who refused to divulge the source of the alcohol. This simply is not a sufficient basis for amending a complaint.

[¶ 32] Finally, we note that the motion for leave to amend the complaint drew from the appellant but one sentence in his brief: “At a minimum, Appellants should be given an opportunity to amend their Complaint so as to more specifically allege breaches of the foregoing ‘special relation’ duties of care by Appellees, pursuant to this Court’s liberal amendments policies.” This type of perfunctory argument usually results in our refusal to consider the issue. Mt. Rushmore Broadcasting, Inc. v. Statewide Collections, 2002 WY 39, ¶ 12, 42 P.3d 478, 482 (Wyo.2002); 10 North Corp. v. Morrell, 964 P.2d 423, 427 (Wyo.1998); Scherling v. Kilgore, 599 P.2d 1352, 1359 (Wyo.1979). However, because dismissal of a complaint for failure to state a cause of action is such a drastic remedy, and because the denial of a motion for leave to amend the complaint is, in effect, the death knell for the case, we have considered the latter issue despite the fact that the appellant presented no legal authority or cogent argument.

CONCLUSION

[¶ 33] It was not error for the district court to grant the appellees’ motions to dismiss because the complaint did not contain the minimal factual allegations to state a cause of action. It was also not error by the district court to deny the appellant’s motion for leave to amend the complaint because the motion resulted from the appellant’s own dilatory conduct and was not made for a proper purpose.

[¶ 34] Affirmed.

      . In the record, the appellant’s last name is spelled both "Daniel" and "Daniels.” We will use "Daniels” since that is the spelling used in the Notice of Appeal.

      . The complaint names one of the teenaged boys as Ryan Carpenter. Although it is not made clear in the complaint, Ryan is referred to in the briefs as the appellees' son.

      .Statements within the motions suggest that separate motions were filed because the appel-lees no longer are husband and wife.

      . In a subsequent appeal, the Wisconsin Supreme Court said the focus in analyzing special relationship cases should not be upon duty, inasmuch as "every person is subject to a duty to exercise ordinary care in all of his or her activities.” Gritzner v. Michael R., 235 Wis.2d 781, 611 N.W.2d 906, 912 (2000). Instead, the focus should be upon the question of whether public policy considerations preclude liability under the circumstances. Id. at 914.

      . The holding in Morgan was abrogated five years later to the extent that the distinction in premises liability cases between invitees and licensees was abrogated. Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602, 606 (Iowa 1998).

      . In loco parentis is a Latin phrase meaning "in the place of a parent” or "[a]cting as a temporary guardian of a child.” Black's Law Dictionary 791 (7th ed.1999).

      . The parameters of such a tort are greatly debated. See Edward L. Raymond, Jr., Annotation, Social Host's Liability for Injuries Incurred, by Third Parties as a Result of Intoxicated Guest's Negligence, 62 A.L.R.4th 16 (1988).

      .The specific holding was that "a vendor of liquor owes a duty to exercise the degree of care required of a reasonable person in light of all the circumstances.” McClellan, 666 P.2d at 412.

      . In Riley v. H & H Operations, Inc., 263 Ga. 652, 436 S.E.2d 659, 661 (1993), the Georgia Supreme Court underscored the fact that actual knowledge is not the test, and disapproved any suggestion in Manuel to the contrary.

      . Cravens was overturned in Charles v. Seigfried, 165 Ill.2d 482, 209 Ill.Dec. 226, 651 N.E.2d 154, 164 (1995), because the Illinois Supreme Court concluded that the entire field of liability for providing alcohol had been pre-empted by the legislature.

      . Sutter has been abrogated on other grounds. See Riley, 436 S.E.2d at 660-61.

      . For purposes of this discussion, we see no distinction between vendors and social hosts.

      . The Koback decision was soon thereafter legislatively abrogated. Kwiatkowski v. Capitol Indent. Corp., 157 Wis.2d 768, 461 N.W.2d 150, 152-53 (1990).

      . The complaint does contain the unsupported allegations that the appellees knew or should have known that Jefferson was intoxicated, that the appellees allowed Jefferson to drink alcoholic beverages, that the appellees allowed Jefferson to leave and drive a vehicle while intoxicated, and that the appellees negligently supervised the teenagers. Glaringly absent from the complaint, however, are any factual allegations, as opposed to conclusions and speculation, suggesting that the appellees, themselves, supplied the alcohol, or that they knew or should have known that the boys had obtained alcohol, or that they had any reason to anticipate that their son or the other minors would obtain alcohol, or that they knew or should have known that the boys would leave the premises by foot and borrow someone else's car while intoxicated.

      . There is some authority for the proposition that the proposed amended pleading must accompany a motion to amend. See Bownes v. City of Gary, Ind., 112 F.R.D. 424, 425 (N.D.Ind. 1986). The appellees mentioned, but did not develop an argument on this proposition.