text:
    Hannah Dawn PAUGH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 98-358.
    Supreme Court of Wyoming.
    Aug. 2, 2000.

      Representing Appellant: Sylvia L. Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; T. Alan Elrod, Assistant Appellate Counsel; and Diane Lozano, Assistant Public Defender.
    Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   THOMAS, Justice.

Hanngh Dawn Paugh (Paugh) presents this Court with a definitional question concerning the burglary statute. Her assertion is that a locked three-foot fishing reel display case in a department store is not a "separate ly secured or occupied portion" of a "building" within the meaning of Wyoming's burglary statute, Wyo. Stat, Ann. § 6-3-8301 (Lexis 1999). Paugh contends that the display case does not satisfy the statutory definition because it is not a "portion" of a "building," and her conviction of attempted burglary should be reversed. Other jurisdictions, which have addressed the "separately secured or occupied portion" language, have held that a display case of this nature does not fall within the burglary statute, and their view is supported by commentators and reason. We adopt the rationale of those authorities, based on the common law and statutory development of the crime of burglary, and we hold that to qualify as "separately secured or occupied," a room or container must be large enough to be occupied by a human being. It was impossible for the fishing reel display case to be the object of an attempted burglary by Paugh, and we reverse her conviction.

This statement of the issues is found in the Brief of Appellant, filed for Paugh:

Is a display case sitting on a counter, not attached to the building in any way, a portion of the building for the purposes of Wyoming's burglary statute?
a) Was the evidence that the State presented at trial insufficient, as a matter of law, to show Appellant aided and abetted an attempted burglary, because the State failed to show a burglary was attempted?
b) Did the district court improperly instruct the jury on the meaning of a "separately secured portion" of a building within the meaning of Wyoming's burglary statute?

This Statement of the Issue is found in the Brief of Appellee, filed on behalf of the State:

Does a locked storage and display case lose its character as a "separately secured portion of a building," for purposes of Wyoming's burglary statute, by virtue of its not being fastened to the building?

In February of 1998, Paugh and three other individuals went to the K-Mart store in Gillette. One of them, Kenneth Watson, intended to steal some fishing reels, but he needed assistance to help him avoid detection. Paugh agreed to be Watson's lookout. The fishing reels, with a retail price of $144.00 each, were in a locked, freestanding case, about three feet long, which sat on a counter in the sporting goods section of the store. Watson went to the hardware section of the store; took a pair of pliers from a package; and then returned to the sporting goods section intending to "pop the lock off" the fishing reel case. He attempted to "Jimmy the lock" intermittently for about ten minutes. After Paugh told Watson that he was being observed by store security personnel, he abandoned his attempts to break into the case, left the pliers in the linen section, and walked toward the front doors of the store. Watson was detained by store security personnel for stealing the pliers, but when Watson showed the security personnel where the pliers were, they released him. Paugh and another woman also walked out of the store at that time.

After releasing Watson, a security guard examined the lock on the fishing reel case. The lock was mangled and bent, and the guard called the sheriff's department. In the parking lot, a store security guard identified Watson, and the sheriff's office asked Watson to come back into the store where, after further interrogation, he was arrested. The investigating officer later located Paugh in Mooreroft with the other two individuals who were involved in the scheme. Paugh confessed to her role in the attempted theft, and she was charged with aiding and abetting in the commission of attempted burglary, by acting as a lookout, in violation of Wyo. Stat. Ann § 6-3-301(a) and (b) and Wyo. Stat. Ann § 6-1-201(Lexis 1999).

Following a two-day trial in August of 1998, Paugh's attorney filed a Motion for Judgment of Acquittal. Her attorney also challenged a jury instruction on the ground that unless affixed to the building, the display case could not be deemed a "separately secured" portion of a building and could not be the object of an attempted burglary. The challenged jury instruction stated:

An enclosure within a building which is open to the public is a "separately secured portion" of the building within the meaning of the burglary statute if, from all of the attendant facts and circumstances, a reasonable person would conclude that the building owner or occupant sought to restrict the public's access to items within it.

The jury returned its verdict finding Paugh "guilty" on August 18, 1998. The district court imposed a split sentence under Wyo. Stat. Ann. § 7-18-107 (Lexis 1999), pursuant to which Paugh was to serve ninety days in the Campbell County Detention Center and then be subject to supervised probation for sixty months. The district court stayed Paugh's ninety-day incarceration pending the outcome of this appeal, but ordered the execution of the supervised probation period. Paugh timely appealed her conviction.

We have defined the obligation of a district court with respect to jury instructions in a criminal case in this way:

The duty of the trial court is to present in the instructions to the jury the law applicable to the issues actually raised by the evidence. Hatheway v. State, 623 P.2d 741, 748 (Wyo.1981). It is well settled that a trial court is given wide latitude in instructing the jury; and as long as the instructions correctly state the law and the entire charge to the jury adequately covers the issues, reversible error will not be found. Scadden v. State, 732 P.2d 1036, 1053 (Wyo.1987). The instructions are to be viewed in their entirety and read together to determine if this obligation is met. Ostrowski v. State, 665 P.2d 471, 487 (Wyo.1983).

Baier v. State, 891 P.2d 754, 756 (Wyo.1995). The standard that requires a jury instruction to be a correct statement of the law had endured for almost seventy-five years. Richey v. State, 28 Wyo. 117, 205 P. 304, 309 (1922).

The accuracy of an instruction to the jury is purely a question of law which we review de novo. If the instruction fails to correctly state the law, reversible error exists. Baier, 891 P.2d at 756. In this case, to determine whether the jury was properly instructed, it is necessary to interpret the meaning of the phrase "separately secured or occupied portion thereof" found in the burglary statute. This is a question of law, and we review it de novo. Ryan v. State, 988 P.2d 46, 63 (Wyo.1999); French v. Amax Coal West, 960 P.2d 1023, 1027 (Wyo.1998).

Paugh argues that the word "portion" in the phrase "separately secured or occupied portion thereof" refers to a part of the whole. She contends this language requires that the enclosure referred to in the challenged jury instruction must be attached to the building or occupied structure, in essence a fixture. Because the display case was moveable and not attached to the building in any way, she insists the display case was not a "portion" of the building. In response, the State asserts that the language should be broadly interpreted. The State argues for rejection of the "fixture rule," asserted by Paugh, and urges instead a broad, functional approach under which the burglary statute would encompass a range of enclosures. See Smith v. State, 902 P.2d 712, 714-15 (Wyo.1995) and Ash v. State, 555 P.2d 221, 227 (Wyo.1976), cert. denied 434 U.S. 842, 98 S.Ct. 139, 54 L.Ed.2d 106 (1977). We conclude that neither argument is persuasive in light of the evolution of the burglary statute from its common law inception.

At common law, burglary had as its essential purpose the protection of the habitation of an individual. In a remarkable article, Professor Lauer has traced the history of the common law offense of burglary through the several legislative enactments in Wyoming. Theodore E. Lauer, Burglary in Wyoming, 32 Land & Water L.Rev. 721 (1997). In England, the essence of the offense was an invasion of the dwelling, both at common law and in subsequent legislative enactments. Id. at 728-830. This same concept was imported to America with later statutes expanding the protection from dwelling house to other kinds of structures, including business buildings. Id. at 780-82. In 1962, the Model Penal Code was promulgated by the American Law Institute as a summarization of prevailing notions regarding criminal offenses. Lauer, swpro, 32 Land & Water L.Rev. at 782. Article 221 of the Model Penal Code addresses the crime of burglary, and it is defined in Section 221.1(1):

"A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. It is an affirmative defense to prosecution for burglary that the building or structure was abandoned."

Lauer, supra, 32 Land & Water L.Rev. at 782.

A parallel statement of the propositions is found in C.S. Parnell, Annotation, Burglary: Outbuildings or the Like as Part of "Duwelling House," 43 A.L.R.2d 831, 834-35 (1955):

It is evident that the offense of burglary at common law was considered one aimed at the security of the habitation rather than against property. That is to say, it was the circumstance of midnight terror aimed toward a man or his family who were in rightful repose in the sanctuary of the home, that was punished, and not the fact that the intended felony was successful. Such attempted immunity extended to a man's dwelling or mansion house has been said to be attributable to the early common-law principle that a man's home is his castle. The jealousy with which the law guarded against any infringement of this ancient right of peaceful habitation is best illustrated by the severe penalties which at common law were assessed against a person convicted of burglary, even though the enterprise, except for the essential elements of breaking and entering a mansion house or dwelling house at night with intent to commit a felony therein, was unsuccessful.

(Footnotes omitted.) Rollin M. Perkins and Ronald N. Boyce, Criminal Law 255-56 (3d ed.1982) states:

That every man's house is "his castle" is a concept that has been echoed down through the ages and the social interest in the security of the "castle" has its origin in antiquity; for just as an animal or a bird resents any intrusion into its place of abode, so no doubt did primitive man. The terms commonly used to indicate the place are "dwelling" or "dwelling house," but the "word 'dwelling' imports a human habitation," and as a matter of common law, burglary is strictly an offense against the habitation.

(Footnotes omitted.) See Kanaras v. State, 54 Md.App. 568, 460 A.2d 61, 69 (1983), cert. granted, 350 Md. 280, 711 A.2d 871 (1998), reversed on other grounds, 357 Md. 170, 742 A.2d 508 (1999).

Beginning in territorial days, Wyoming recognized not only the importance of protecting people in their homes, but in their businesses as well. The earliest reported Wyoming burglary case, Territory of Wyoming v. Conley, 2 Wyo. 331, 333 (1880), involved a railroad handear house. The majority agreed a handear house fell within the definition of "any other closed enclosure." Id. at 334-35.

In Wyoming, as in many states, the development of case law addressed the meaning of the term "building." Seventy years later, this Court again considered the "building" portion of the burglary statute. In State v. Crouse, 69 Wyo. 85, 237 P.2d 481, 484-85 (1951), we held that a nearly collapsed powerhouse with no roof, one end and two sides absent, did not qualify as a building. Justice Blume concluded that although a functioning powerhouse may be a building, the destroyed powerhouse in this case was not a building. Id. at 485. This Court espoused the view that a house or building must have walls on all sides and a roof. Id. at 484. Thus, the common law concern with burglary as relating to human habitation continued.

By 1957, the burglary statute, Wyo. Stat. Ann. § 6-129 (1957), had been amended to read:

(A) Whoever, intentionally enters, or attempts to enter, any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony therein may be imprisoned not more than fourteen (14) years:
(1) Any building or dwelling; or (2) An enclosed railroad car; or
(3) An enclosed portion of any automobile, vehicle, or aircraft; or
(4) A locked enclosed cargo portion of a truck or trailer; or
(5) A room within any of the above.
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(C) For the purpose of this section, entry into a place during the time when it is open to the general public is with consent.

Under this version of the statute, this Court addressed the term "building" in Ash, 555 P.2d at 226-27. Ash involved entry of an enclosure attached to a liquor store, which consisted of a temporary wooden frame covered by plastic sheeting and a cement floor. Id. at 226. The enclosure had room for a person to move around. This satisfied the - term "any building" because it served the basic purpose of an enclosure. Id. at 227. The distinction whether something qualifies as a building is not on the materials or methods of construction, but whether the building is "'protected from intrusion or trespass by some sort of material'" Id. (quoting McCabe v. State, 1 Ga.App. 719, 58 S.E. 277, 278 (1907)).

In 1978, the law was amended to include a locked or sealed building:

Whoever, at any time, unlawfully breaks and enters, or attempts to unlawfully break and enter, into any locked or sealed dwelling house, office, storehouse, warehouse, church, meeting house, or building used for the purpose of religious worship, car factory, tool house, freight house, station house, depot, railroad car, cave or cavern, courthouse or other public building, or other building whatsoever, is guilty of a misdemeanor, and shall be imprisoned in the county jail not more than one year or [fined] a fine of not more than $500 or both.

Wyo. Stat. Ann. § 6-180 (Michie Cum.Supp. 1975). The following year, this Court struck as unconstitutional Wyo. Stat. Ann. § 6-180 for vagueness because it failed to distinguish between essentially innocent conduct, breaking and entry for legal excuse, and eriminally culpable conduct, criminal breaking and entry. State v. Stern, 526 P.2d 344, 348 (Wyo.1974).

In amending the burglary statute by the enactment of the Wyoming Criminal Code of 1982, the legislature enacted the "separately secured or occupied portion" language. Effective July 1, 1983, the statute provided:

6-3-301. Burglary.
(a) A person is guilty of burglary if, without authority, he enters or surreptitiously remains in a building, occupied structure or motorized vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein.
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(c) A person may not be convicted both for burglary and for the offense which it was his purpose to commit after the entry or for an attempt to commit that offense, unless the additional offense is a violent felony.

Wyo. Sess. Laws ch. 75, § 8 (1982). Prior to its effective date, the legislature further amended Wyo. Stat. Ann. § 6-8-301(a), so that it read:

(a) A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or felony therein.

Wyo. Sess. Laws ch. 171, § 8 (1983). The parallel nature of some phrases with the Model Penal Code is obvious.

In 1985, Wyo. Stat. Ann. § 6-3-8301 was amended to read as it currently does. We decided Smith, 902 P.2d at 713 under this version of the statute. Smith involved a semi-trailer, without wheels and without back doors, used for storage at a construction site. Id. at 712. Even though it was not completely enclosed by four walls and a roof, we held the semi-trailer was a building and therefore could be burglarized. Id. at 715. In Smith, we' adopted the functional analysis from Ash that since the semi-trailer was planted firmly on the ground and was designed to shelter property, this Court held it qualified as a building under the statute. Id. at 715.

The Wyoming legislature has not defined the term "separately secured or occupied portion thereof," and we look to other sources to consider what this phrase means. Our statute adopted this language from the Model Penal Code § 221.1(1). The Model Penal Code defines "occupied structure" as "any structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present." Model Penal Code § 221.0 at 60. The comments to the Model Penal Code § 221.1 explain that the premises protected by the burglary statute include "a building or occupied structure, or separately secured or occupied portion thereof." Model Penal Code § 221.1 emt. 8(b) at 71. The Model Penal Code comment explains that this language "takes care of the situation of apartment houses, office buildings, hotels, steamships with a series of private cabins, etc., where occupancy is by unit." Model Penal Code § 221.1 emt. 8(b) at 73. Implicit from this listing of examples is the proposition that a separately secured portion of a building be able to accommodate the presence of a human being.

Although Wyo. Stat. Ann. § 6-8-801 also does not define "occupied structure," it is defined elsewhere in the statutes to mean a structure or vehicle whether or not a person is actually present: '

(A) Where any person lives or carries on business or other calling;
(B) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation;
(C) Which is used for overnight accommodation of persons; or
(D) In which a person may reasonably be expected to be present.

Wyo. Stat. Ann. § 6-1-10M4(a)(v) (Michie 1997). In our view, there is very little reason to believe that the phrase "separately secured" would be intended to describe any different portion than the phrase "separately * * * occupied * * *."

This common law concern for protecting places occupied by people has also been recognized by several states. We consider, for example, the treatment of this issue in Washington, Iowa, Montana, and New Mexico. In State v. Deitchler, 75 Wash.App. 134, 876 P.2d 970, 971-72 (1994), the Washington Court of Appeals held that a container similar to the fishing reel display case at issue here did not qualify as a building. In Deitch ler, the defendant placed his hand inside an evidence locker located at a police station. The locker was ten inches high, ten inches wide, and perhaps two feet deep with a six-inch long and one-inch wide slot. Id. at 970. The trial court ruled the evidence locker was a unit separately secured, thus a separate building under Wash. Rev.Code § 9A.04.110(5). Deitchler, 876 P.2d at 971. On appeal, the court determined "[bly negative implication, [that] a structure or space within a larger building will not be a 'separate building' unless the larger building has 'two or more units separately secured or occupied[,]' and the structure or space being considered is one of those 'units[.] " Id. The court concluded the evidence locker was neither a unit of the police station nor separate building, therefore the burglary charge could not be sustained. Id. at 971-72. In the recent case of State v. Miller, 90 Wash.App. 720, 954 P.2d 925, 980 (1998), the Washington Court of Appeals held that a structure too small for a human being to live in or do business in was not a "building" or a "structure" under the burglary statute. Miller entered a 24-hour self-service car wash and broke several coin boxes and took the money. Id. at 927. Because the car wash was open to the public, his entry and remaining was lawful, therefore he could not be charged for burglary. Id. Although the state maintained Miller remained unlawfully when he formed the intent to commit a erime, the court rejected this reasoning because it was unsupported by case law or statute. Id. at 928. Intent was irrelevant and did not establish unlawful entry. To support the holding, the court cited to Deitchler where the judge "concluded that a structure or space within a large building is not a separate building unless the large building has 'two or more units separately secured or occupied and the structure or space being considered is one of those 'units.' " Miller, 954 P.2d at 980 (quoting Deitchler, 876 P.2d at 971). Under this interpretation, the separate stalls and coin boxes in Miller occupied by a single tenant and not consisting of two or more units separately secured or occupied, did not substantiate the burglary charge. Miller, 954 P.2d at 930. Finally, we note "burglary is ordinarily considered only in the context of a structure large enough to accommodate a human being." Miller, 954 P.2d at 980; Deitchler, 876 P.2d at 970. "A structure too small for a human being to live in or do business in is not a 'building' or 'structure' for the purpose of burglary." Miller, 954 P.2d at 930; Deitchler, 876 P.2d at 971.

By statute, Iowa specifically addresses the storage and safekeeping of anything of value. Iowa Code Ann. § 702.12 (West 1998) includes within the phrase in the burglary statute "occupied structure" overnight accommodation, storage or safekeeping for anything of value, whether or not a person is actually present. This section continues:

However, for purposes of Chapter 718, a box, chest, safe, changer, or other object or device which is adapted or used for the deposit or storage of anything of value but which is too small or not designed to allow a person to physically enter or occupy it is not an "occupied structure."

Towa Code Ann. § 70212. In State v. Williams, 409 NW.2d 187, 187 (Iowa 1987), the defendant was convicted of burglary of a topper-enclosed pickup truck because it qualified as an occupied structure under the burglary statute. The camper shell was three feet high, with side windows and a rear door. Id. at 187. Williams entered the shell through the back door and handed two tires to a co-defendant outside. That constituted burglary. Id. Williams readily conceded the enclosed pickup truck bed was sufficiently large enough to allow a person to enter or occupy it, thus he could not qualify under the size exception in Iowa Code Ann. § 702.12. Williams, 409 N.W.2d at 188-89. Based on the plain language of the statute and the defendant's concession, the court affirmed the burglary conviction. Id. at 189.

Under the Montana burglary statute, "(al person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein." Mont.Code Ann. § 45-6-204(1) (1999). Previous statutes established that to constitute burglary, an act must have been directed against an occupied structure. The new code is not as technically restrictive, but it does require the structure entered to be occupied, suited for human occupancy or night lodging of persons or for carrying on business. This in effect limits the burglary statute's application to those situations where human life is at the greatest risk. Recently, the Montana Supreme Court affirmed a conviction because a prison's maximum-security cellblock satisfied the definition of "occupied structure" under the Montana statute. State v. Gollehon, 262 Mont. 293, 864 P.2d 1257, 1260-61 (1993). Gollehon maintained the unit was "one single building, and that no sections of the building constitute a separate occupied structure apart from the remainder of the unit." Id. at 1261. Therefore, he contended, he could not be charged with burglary. The Montana Supreme Court emphasized that each separately secured block was intended for human occupancy and although no prisoners were previously con-viected for burglary within the prison, the plain and clear language contemplates that burglary can occur if there is unauthorized entry within the block. Id.

New Mexico has extensively addressed burglary, specifically defining the term "structure." In State v. Sanches, 105 N.M. 619, 735 P.2d 536, 537, cert. denied, 105 N.M. 618, 735 P.2d 535 (1987), two defendants, Landlee and Sanchez, challenged their burglary convictions, arguing entry into separately secured portions of buildings otherwise open to the public did not qualify as unauthorized entry. Landlee entered the loading dock area of an auto parts retail store without authorization. Sanchez entered a hospital office where he stole a purse containing cash, credit cards and other valuables. Id. at 537. The New Mexico Court of Appeals upheld the convictions applying a more liberal and broader interpretation, securing property and protecting possessory rights. Id. at 537-89.

Two years later, the New Mexico Court of Appeals held a soft drink vending machine did not satisfy the definition of a structure in the burglary statute. State v. Bybee, 109 N.M. 44, 781 P.2d 316, 318 (1989). Three vending machines, each with a locked door and money change box, were outside a grocery store and not anchored or attached to the building. Id. at 316. Looking to common law and the expansion of the term "structure" to include possessory rights and define prohibited space, the court determined the legislature did not intend a soft drink machine to fall within the burglary statute. Id. at 818. "Although the legislature may include specific objects or places under the proscription of the burglary statute, the court may not enlarge or amend the statute by judicial fiat." Id. at 319. Absent specific language in the statute evinceing the intent to include such structures under the statute, the court was unable to affirm the conviction. Id. at 318.

In State v. Gregory, 117 NM. 104, 869 P.2d 292, 292 (1993), cert. denied, 117 N.M. 215, 870 P.2d 753 (1994), Gregory entered a post office lobby open to the public and removed mail from a mailbox. The back of each box opened into the post office mail sorting room, which was not open to the public. Id. at 292. The court held that removing mail from a post office box constituted burglary because the box opened into the sorting room for the mail, which the court held was a separately secured area. Id. at 298. The court also rejected the defendant's argument that it was physically impossible to enter the sorting room through the mailbox opening, therefore burglary was impossible. Id. Under New Mexico law, the size of the box is irrelevant. Id. See State v. Jacobs, 102 N.M. 801, 701 P.2d 400, 401-04 (1985) (burglary accomplished by lowering bomb through roof of vent). Unlike the vending machine in Bybee, the post office box was not an isolated structure and encompassed both the boxes and the sorting area, thus the burglary occurred when Gregory entered the separately secured area. Gregory, 869 P.2d at 293.

Based on the similar language and intent of the four states discussed above, we conclude that the "separately secured" language is considered in conjunction with the "occupied portion," and to be susceptible to burglary the "separately secured" portion must be large enough to be occupied by a human being. This is consistent with the original purpose of the common law to protect people.

We are urged by Paugh to adopt the "fixture rule" espoused by Professor Lauer in his article. Lauer, supra, 32 Land & Water L.Rev. at 758, We are satisfied that the adoption of the fixture rule would afford disparate treatment to similar containers depending upon the fortuity of attachment to the structure. This would result in disparate treatment of individuals who were involved in essentially the same misconduct. This we are loath to do.

Based on the common law origins of the burglary statute, both in Wyoming and other jurisdictions, we hold the burglary statute was designed primarily to protect not only those places where people sleep, but also those places that a person could occupy. If the purpose of the burglary statute was to protect people within dwellings or places of business, then the area in which the crime can be committed must be large enough to admit a human being. It is clear that the display case, even though secured with a lock, was not large enough to accommodate a human being. We will not extend the burglary statute to include those situations in which a person enters a building open to the public and then enters a container that is too small to accommodate a human being. We hold the display case is not a "separately secured or occupied portion" of a building, and we reverse Paugh's conviction.

      . Wyo. Stat. Ann. § 6-3-301 provides, in pertinent part:
      (a) A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein.
      (b) Except as provided in subsection (c) of this section, burglary is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both.

      . Wyo. Stat. Ann. § 6-1-201 provides:
      (a) A person who knowingly aids or abets in the commission of a felony, or who counsels, encourages, hires, commands or procures a felony to be committed, is an accessory before the fact.
      (b) An accessory before the fact:
      (i) May be indicted, informed against, tried and convicted as if he were a principal;
      (ii) May be indicted, informed against, tried and convicted either before or after and whether or not the principal offender is indicted, informed against, tried or convicted; and
      (iii) Upon conviction, is subject to the same punishment and penalties as are prescribed by law for the punishment of the principal.

      . Several states have recognized the increased seriousness of burglary when it is a dwelling of habitation versus a building or a business. This is based on the concept that the more serious burglary charge is intended to protect people while in places where they are likely to be living and sleeping overnight as opposed to protecting property in buildings such as stores, businesses offices or garages. See State v. Cox, 826 P.2d 656, 662 (Utah App.1992); N.M. Stat. Ann. § 30-16-3 (Michie 1994) (burglary in third degree involves dwelling house whereas burglary in fourth degree involves any other structure); N.Y. Penal Law § 140.20 (McKinney 1999) (burglary in third degree involves building whereas burglary in second degree involves dwelling); Tex.Code Ann. 30.01 (West 1994) (habitation versus building); and Utah Code Ann. § 76-6-202 (1998) (burglary in third degree unless involves dwelling, in which event the felony is second degree).

      . Section 38 at 254 of the Criminal Laws of Wyoming (1876) defined burglary:
      Every person who shall willfully and maliciously and forcibly break and enter, or willfully and maliciously without force (the door or any window being open), enter into any dwell» ing house, kitchen, office, shop, storehouse, warehouse, malt house, stilling house, banking house, hotel, saloon, mill, pottery, factory, water craft, church or meeting house, railroad car, or any other close enclosure * * * shall be deemed guilty of burglary * * *.

      . At that time, Wyo. Comp. St. § 9-309 (1945) read:
      Whoever, at any time, breaks and enters, or attempts to break and enter, into any dwelling house, automobile or other motor vehicle, kitchen, smokehouse, outhouse, shop, office, storehouse, warehouse, mill, distillery, brewery, pottery, factory, barn, stable, schoolhouse, church, meeting-house, or building used for the purpose of religious worship, car-factory, tool house, freight house, station house, depot, railroad car, sheep wagon, tent, court house, or other public building, or other buildings whatsoever, with intent to commit a felony, or with intent to steal property of any value, is guilty of burglary.

      . " [If, with intent to commit a crime against a person or property therein, [one] enters or remains unlawfully in a building other than a vehicle {or a dwelling,]'" "'[al person is guilty of burglary in the second degree'" under Wash. Rev.Code § 9A.52.030(1) (West 1998). Deitchler, 876 P.2d at 971. Aside from its ordinary meaning, a "building" " "includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building. " Deitchler, 876 P.2d at 971 (quoting Wash. Rev.Code § 9A.04.110(5) (West 1998)) (emphasis added).

      . The New Mexico burglary statute provides:
      Burglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein.
      A. Any person who, without authorization, enters a dwelling house with intent to commit any felony or theft therein is guilty of a third degree felony.
      B. Any person who, without authorization, enters any vehicle, watercraft, aircraft or other structure, movable or immovable, with intent to commit any felony or theft therein is guilty of a fourth degree felony.
      NM. Stat. Ann. § 30-16-3 (Michie 1994)


source: Caselaw Access Project

author: THOMAS, Justice.

license: Public Domain

text:
    VERNON T. DELGADO FAMILY LIMITED PARTNERSHIP; and The Carollo Company, a Partnership, Appellants (Plaintiffs), v. James M. SHAW and Marilyn M. Shaw, Appellees (Defendants), and Board of County Commissioners of Sublette County, Wyoming, Appellee (Intervenor).
    No. 99-273.
    Supreme Court of Wyoming.
    Aug. 2, 2000.
    Representing Appellants: Elizabeth Greenwood and Robert A. Bundy, Pinedale, Wyoming. .
    Representing Appellees: James M. and Marilyn M. Shaw: Larry L. Jorgenson, Jackson, Wyoming. -
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   THOMAS, Justice.

The question is: "What is a fairway?" The answer is: "That expanse of closely mown [grass] * * * between the tee and the putting green on a golf course." This is the definition that was invoked by the district court to decide an action for declaratory and injunctive relief brought by the Vernon T. Delgado Family Limited Partnership and The Carollo Company (collectively Delgado) against James and Marilyn Shaw (the Shaws), in which Delgado sought to enforce a restrictive covenant relating to fencing adjacent to a golf course. The district court granted summary judgment in favor of the Shaws, and Delgado appeals from that judgment, contending that the district court erred when it determined the Shaws' fence did not violate the restrictive covenants of the Sub-lette Golf Course Subdivision. There is no genuine issue as to any material fact, and the Shaws are entitled to judgment as a matter of law. We shall affirm the Order Granting Summary Judgment for Defendants.

Delgado presents a single issue for review:
I. Did the District Court properly grant summary judgment for the Defendants in this case?

The Shaws present this statement of the issues:

1. Is the Statement of Reservations and Restrictive Covenants at issue in this lawsuit ambiguous with respect to the meaning of the word "fairway" and the location by which a fence may be erected in relation to the "fairway"?
2. If the meaning of the word "fairway" is ambiguous, have the Appellants presented a genuine issue of material fact with respect to the intent of the drafters of the Statement of Reservations and Restrictive Covenants as to the permitted location of fencing within the subdivision?

The Sublette Golf Course Subdivision (the Subdivision) was established in 1981. That year, a Statement of Reservations and Restrictive Covenants (Covenants) for the Subdivision was adopted and filed in the county records. The Covenants include the following paragraph relevant to this appeal:

8. FENCING: No fences are to be permitted within 25 feet of the perimeter of the fairways. If fences are built they must be built within property lines and in harmony with existing structures. The Recreation Board may elect to install uniform fencing between homesites and fairways on those lots adjoining the course. Any fences along the road right-of-way shall in no way be built upon the right-of-way.

In July of 1997, the Shaws purchased a home and lot in the Subdivision and adjacent to the golf course. The warranty deed to the Shaws specifically incorporated the Covenants. In the fall of 1997, the Shaws built a fence inside their property line, between their house and the golf course. Delgado objected to the fence, and asked the Shaws to remove it. When that request was unavailing, Delgado filed a Complaint for Declaratory and Injunctive Relief.

Both parties filed motions for summary judgment, along with supporting briefs and documentation. The district court granted summary judgment in favor of the Shaws. The district court's order included the following findings of fact:

10. Prior to 1989, the golf course was in the process of developing and maturing. Prior to 1989, the entire golf course was not mowed to differing lengths due in part to the maturity of the course and due in part to the fact that the golf course had only one mower.
11. The term "fairway" refers to the closely mown area of a golf course between the tee and the putting green.
13. Defendant's fence is located more than 25 feet from the perimeter of the fairway as depicted on Exhibit "W" and 'as the fairway actually existed at the time the fence was constructed.

Our standard for reviewing grants of summary judgment is well established, and we recently summarized it:

Summary judgment is appropriate only when no genuine issues of material fact exist and the prevailing party is entitled to judgment as a matter of law. W.R.C.P. 56, Century Ready-Mix v. Campbell County School District, 816 P.2d 795, 798 (Wyo.1991). A material fact is any fact that, if proved, would establish or refute an essential element of a claim or defense asserted by a party. Century Ready-Mix, 816 P.2d at 799. When reviewing a grant of summary judgment, we will consider the record in the light most favorable to the party opposing the motion and give that party the benefit of all favorable inferences we may fairly draw from the record. Id. (citing Doud v. First Interstate Bank of Gillette, 769 P.2d 927, 928 (Wyo.1989)). If we can uphold summary judgment on the record presented, under any proper legal theory, we will. Id. (citing Reeves v. Boatman, 769 P.2d 917, 918 (Wyo.1989)).

Hulse v. First Interstate Bank of Commerce, Gillette, 994 P.2d 957, 958-59 (Wyo.2000).

Delgado contests the district court's ruling that "[the term 'fairway' refers to the closely mown area of a golf course between the tee and the putting green." Delgado further contends that, although the fence may have been twenty-five feet from the fairway perimeter when the fence was built, the configuration of fairways is subject to change, which could bring the fairway within twenty-five feet of the fence in the future. As an alternative interpretation, Delgado asserts the proposition that the Covenants were intended to prohibit fences within twenty-five feet of the course boundary.

In support of its definition of "fairway," the district court cited two dictionaries. We have found consistent definitions in sources even more authoritative on the subject of golf. Robert Gensemer, Beginning Golf 2, 103 (1986); Ian Morrison, The Hamlyn Encyclopedia of Golf 51 (1986). Our search has turned up no suggestion that, in connection with golf, particularly a golf course, the word "fairway" has any meaning other than that ascribed to it by the district court.

The district court held that since the Shaws' fence was at least twenty-five feet from the fairway, there was no violation of the Covenants. In this Court, Delgado has presented nothing that refutes that ruling, and nothing to support the contention that the phrase "perimeter of the fairways" in the Covenants actually means "course boundary." Since there is no genuine issue of material fact with respect to the Shaws' fence being located at least twenty-five feet from the fairway, we hold that the district court properly granted summary judgment.

The Order Granting Summary Judgment for Defendants that was entered in the district court is affirmed.


author: GOLDEN, Justice.

text:
    In re MS: RDS, II, Appellant (Plaintiff), v. GEMN, Appellee (Defendant).
    No. C-99-10.
    Supreme Court of Wyoming.
    Aug. 4, 2000.
    Representing Appellant: Fred R. Dollison, Sheridan, Wyoming.
    Representing Appellee: Lynn Boak, Cheyenne, Wyoming.
    Before LEHMAN, C.J., and THOMAS, GOLDEN, HILL, and KITE, JJ.
   GOLDEN, Justice.

Appellant RDS II (Father) sought custody of his minor child, MS, and appeals the trial court's order awarding joint legal custody and placing primary care with Appellee GEMN (Mother). Father was granted liberal visitation and ordered to pay child support. He contends that the child's preference was the sole basis of the award and the order is contrary to the evidence. After examining the record, we find that the evidence supports the decision, and the district court properly used its discretionary power when it determined it was in the best interest of the child to remain in Mother's physical custody. We affirm.

ISSUES

Father presents this issue on appeal:
Did the trial court abuse its discretion in awarding custody of a minor child to the mother solely on the basis of the child's preference and contrary to the recommendation of the court's appointed expert and contrary to the evidence?

Mother rephrases the issue as:

Was the weight of the evidence sufficient to support the trial court's decision to order custody of the minor child to remain with the mother?

FACTS

MS was born on May 28, 1998, to unmarried parents and cared for solely by Mother. Father refused to place his name on the birth certificate and did not begin paying child support until MS was three years old. In 1997, Mother married and later had a second child. In August of 1997, Father acknowledged paternity, a new birth certificate issued, and he began paying an increased amount of child support.

The parents' relationship was contentious, and in May of 1998, when MS was almost five years old, Father petitioned for custody. Mother counterclaimed to declare Father's paternity and for eustody and support. Mother was granted temporary custody, support and attorney fees, and the parties stipulated to appointment of a guardian ad litem (GAL). Additionally, a court-appointed special advocate (CASA) was engaged to investigate abuse reports made against each parent. At Father's request, an expert witness, Dr. Ray Leugers, was appointed by the court to evaluate both parents and the child. During discovery, the district court compelled Father to provide financial information to Mother or be subject to sanctions.

The CASA and GAL submitted reports indicating that neither parent was abusive to MS and both recommending that custody remain with Mother. The matter went to trial, and Dr. Leugers testified that based on the results of various psychological tests, custody should be changed to Father because MS was fearful of her Mother's temper. Dr. Mary Bowers, MS pediatrician since birth, testified for Mother and described her as a good mother who had provided good medical care for the child since her birth, and had timely accomplished all recommended well-care treatment. In contrast, she described the few instances when Father had brought in the child as disruptive and involved accusing Mother of abuse and other inappropriate behavior in front of MS. On one occasion when Father brought MS in for bruising that he believed Mother had abusively inflicted, it was determined the child had received her bruises at Scotty's Skate Castle. Dr. Bowers acknowledged that Mother had difficulties with MS, but contended that she was a good mother who behaved appropriately with and in front of the child.

In its decision letter and order, the district court found that it was in MS' best interests to be in the primary care and custody of Mother subject to reasonable and liberal visitation with Father. Neither the decision letter nor the order articulates any findings of facts except that, noting that the parties' stipulation for the GAL specifically required it to reveal the child's preference, the court stated that the GAL had expressed MS preference to Mother's primary custody. Father appeals.

DISCUSSION

Father contends that the district court abused its discretion because the absence of findings on the issues of custody and best interests indicates that the court based its decision solely on the child's stated preference and ignored the great weight of the evidence presented by Dr. Leugers and his recommendation that Father should have custody. As we observed in Resor v. Resor, 987 P.2d 146, 148 (Wyo.1999), our standard of review, was succinctly stated in Reavis v. Reavis, 955 P.2d 428 (Wyo.1998):

Custody, visitation, child support, and alimony are all committed to the sound discretion 'of the district court. It has been our consistent principle that in custody matters, the welfare and needs of the children are to be given paramount consideration. The determination of the best interests of the child is a question for the trier of fact. We do not overturn the decision of the trial court unless we are persuaded of an abuse of discretion or the presence of a violation of some legal principle.
A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. Our review entails evaluation of the sufficiency of the evidence to support the district court's decision, and we afford to the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party. Findings of fact not supported by the evidence, contrary to the evidence, or against the great weight of the evidence cannot be sustained. Similarly, an abuse of discretion is present when a material factor deserving significant weight is ignored.

Id. at 431 (citations omitted).

A trial court relying on discretionary power is not required to place on record the circumstances and factors that were crucial to its determination unless one of the parties requests it under W.R.C.P. 52(a). Resor, 987 P.2d at 148. Our review of the record affording Mother every favorable inference while omitting any consideration of Father's evidence reveals that MS has spent her entire life in her mother's custody and is attached to her new baby sister. Every case, however, requires careful weighing of relevant factors, looking to the unique and individual family relationships, in order to reach a resolution in the best interests of the children in that family. Reavis, 955 P.2d at 481. Stability in a child's environment is of utmost importance to the child's well-being. Id. at 482. In this case, Mother ably demonstrated that she has provided a nurturing, stable environment, has the ability to continue to do so, and has encouraged her daughter's relationship with her Father since birth. In contrast, Father's emotional and financial support of his daughter has been sporadic and contentious, and although MS loves her Father, his relationship with her has been far less stable than Mother's.

During her pregnancy, Father put Mother out of his home, and although he was present at the child's birth, the hospital required Mother to change the child's name from his to her name after Father refused to sign the birth certificate. His stated reason to her for not signing was to avoid paying the hospital bill. Father initially failed to provide any financial support, and Mother supported herself and daughter by cleaning houses and receiving welfare. The GAL determined that Father's 1997 tax return showed taxes were paid on an income of over $183,000.00. Father's CPA testified that the majority of Father's income derives from trust interest and royalty income from an inheritance, but that he has suffered substantial losses because of a new business venture. In MS third year, Father began paying $200 per month in child support in order for Mother to stop receiving welfare. Those payments were raised to $400 per month, Father acknowledged paternity, and a new birth certificate was issued..

Mother married, and the relationship between her and Father, contentious since before the child's birth, deteriorated further. Father filed a complaint with the Department of Family Services (DFS) alleging that Mother had abused the child. Both DFS and Dr. Bowers found the allegations to be unsubstantiated. Father has always had visitation with MS, took her to daycare one day per week, which Mother paid for, and has demonstrated adequate parenting skills, although he behaves inappropriately in front of the child by criticizing her mother and failing to take responsibility for disciplining the child when required. Father also failed to timely provide income information for the trial, and the trial court had to impute income to him. The district court determined that his evasiveness had caused Mother to incur additional attorney fees and ordered Father to pay part of those fees.

Mother has provided a stable, loving home environment for MS since her birth. MS is bright, gregarious, and sometimes difficult to control; however, Dr. Bowers indicated that Mother has handled MS' behavior difficulties very well and appropriately sought assistance and counseling. To the extent that Dr. Leu-gers disagreed that Mother was providing an appropriate living environment for MS, the trier of fact determines factual and eredibility issues.

The record indicates sufficient facts to support the trial court's decision, and we affirm.


author: MACY, Justice.

text:
    WYODAK RESOURCES DEVELOPMENT CORP., Appellant (Petitioner), v. The STATE BOARD OF EQUALIZATION, for the State of Wyoming, and the Wyoming Department of Revenue, Appellees (Respondents).
    No. 99-251.
    Supreme Court of Wyoming.
    Aug. 14, 2000.

      Representing Appellant: Timothy L. Thomas of Morrill Thomas Nooney & Braun, LLP, Rapid City, South Dakota.
    Representing Appellee: Viect Colgan, Chief Deputy Attorney General; Rowena L. Heckert, Deputy Attorney General; and Karl D. Anderson, Assistant Attorney General.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and HILL, JJ.

       Retired June 2, 2000.

   MACY, Justice.

Appellant Wyodak Resources Development Corp. (Wyodak) appealed to the State Board of Equalization from the Department of Audit's findings that were adopted by Appellee Wyoming Department of Revenue. The audit involved Wyodak's coal mining operations at its Campbell County mine from 1990 through 1992 and resulted in an increased taxable value of coal production for ad valo-rem tax purposes for the period. The State Board of Equalization affirmed, and Wyodak appealed to the district court. The district court certified the case to the Wyoming Supreme Court pursuant to W.R.A.P. 12.09(b).

We affirm.

ISSUES

Wyodak presents a single issue for our review:

I. Did the Wyoming State Board of Equalization err in affirming the Department of Revenue determination that Petitioner's road move expenses incurred during coal production years 1990-1992 were direct mining costs rather than indirect costs for purposes of valuing Petitioner's coal production during those same years under Wyo. Stat. § 39-2-209(d)?

FACTS

Wyodak operated a surface coal mine near Gillette. In 1951, it granted a right-of-way to the State of Wyoming across a portion of its property to be used as a section of State Highway 51. Under the terms of the agreement, Wyodak reserved the right to mine the coal located under and around the right-of-way so long as it provided an adequate detour satisfactory to the state at its own expense.

In 1988, Wyodak became interested in mining the coal under and around the right-of-way, and it entered into an agreement with the State Highway Commission of Wyoming to relocate the highway. The highway was moved, and, in 1989, Wyodak reported $687,975 of indirect costs associated with this relocation in valuing its coal production for tax purposes.

In its 1990 production year, Wyodak reported an additional $54,525 of expenses that were associated with this relocation and again classified them as indirect costs. In 1991, Wyodak accrued $750,839 in expenses that it intended to use to fund and construct the permanent replacement of the highway, which actually would not occur until sometime in the future. Wyodak classified these acerued amounts as indirect costs.

In December of 1991, Wyodak sent a letter to the Wyoming Highway 'Department wherein it explained that it planned to begin hauling overburden on State Highway 51 across the first temporary relocation. Wyo-dak requested approval for a second temporary relocation of the highway so that it could "maximize the removal of coal affected by State Highway 51" pursuant to the 1988 agreement. The Wyoming Transportation Commission denied Wyodak's proposed temporary detour but suggested an alternative detour, which Wyodak accepted and constructed in 1992. In 1992, Wyodak reported $586,026 in indirect mining costs for the expenses related to this second temporary relocation. -

In 1995, the Department of Audit audited Wyodak's operations for the period of 1990 through 1992. On the basis of Wyo. Stat. Ann. § 839-2-209(d)(ii) (Michie 1997) (repealed & recreated at § 89-14-108(b)(vil)(B) in 1998), the Department of Audit disagreed with Wyodak's classification of the 1990, 1991, and 1992 costs associated with the relocation of State Highway 51 as indirect mining costs and reclassified them as direct costs for the purpose of production tax valuation. The Department of Audit's findings resulted in increased severance taxes for the years 1990 through 1992, and the Department of Revenue issued a final assessment notice for the severance tax underpayments.

Wyodak appealed from this assessment to the State Board of Equalization, arguing that the costs should be classified as indirect mining costs. The State Board of Equalization affirmed the classification of the costs as direct mining costs, and Wyodak appealed to the district court. The district court certified the case to the Wyoming Supreme Court pursuant to W.R.A.P. 12.09(b).

STANDARD OF REVIEW

When an administrative decision is certified to the Wyoming Supreme Court pursuant to W.R.A.P. 12.09(b), we apply the appellate standards which are applicable to the court of the first instance. Petroleum Inc. v. State ex rel. State Board of Equalization, 983 P.2d 1237, 1239 (Wyo.1999). Wyo. Stat. Ann. § 16-3-114(c) (LEXIS 1999) governs judicial review of administrative decisions. WRAP. 12.09(a); Everheart v. S & L Industrial, 957 P.2d 847, 851 (Wyo.1998). If substantial evidence supports an agency's findings, we will not substitute our judgment for that of the agency. Peter Kiewit Sons' Co. v. Sheridan County Board of Commissioners (In re Dunning), 982 P.2d 704, 707 (Wyo.1999). If the agency's conclusions of law are in accordance with the law, this Court will affirm them. Corman v. State ex rel. Wyoming Workers' Compensation Division, 909 P.2d 966, 970 (Wyo.1996). When an agency has not invoked or properly applied the correct rule of law, we will correct the error. Petroleum Inc., 983 P.2d at 1239.

DISCUSSION

The single issue to be resolved in this case is whether the expenses associated with the movement of State Highway 51 should be classified as direct or indirect costs in the computation of the taxable value of Wyodak's coal production. Of significant impact on our analysis of this case is the 1988 agreement Wyodak entered into with the State Highway Commission regarding the extraction of the coal beneath and surrounding the right-of-way. That agreement provided in pertinent part:

Under the terms of the right-of-way easement the grant is subject to a condition 'and reservation of the grantor, the successor in interest of which is the Company, wherein the grantor reserved the right to own and mine the coal by either underground or surface operations as located under and around State Highway 51 and right-of-way; provided, the right to mine is on the condition that the grantor at its own cost and expense shall first provide a detour satisfactory to the State for use by the public as a highway in lieu of the portion of said right-of-way which would be rendered unsafe or unfair for public highway purposes because of the mining operations, and that upon completion of such operations, the grantor is to replace the highway at a similar or same location.

The legislature provided significant guidance for the determination of whether costs incurred by a coal producer are direct or indirect mining costs when it enacted Wyo. Stat. Ann. § 89-2-209(d) (Michie 1997) (repealed & recreated at § 39-14-108(b)(vii)(A-D) & § 39-14-10l(a)viil) in 1998). Under this statute, which applied to all mineral production on or after January 1, 1990, the terms "direct costs" and "indirect costs" were specifically defined. Before its repeal and recreation in 1998, § 89-2-209(d) provided in pertinent part: .

(d) For coal sold away from the mout of the mine pursuant to a bona fide arms-length sale, the department shall calculate the fair cash market value of coal by multi--plying the sales value of extracted coal, less transportation to market provided by a third party to the extent included in sales value, all royalties, ad valorem production taxes, severance taxes, black lung excise taxes and abandoned mine lands fees, by the ratioof direct mining costs to total direct costs. Nonexempt royalties, ad va-lorem production taxes, severance taxes, black lung excise taxes and abandoned mine lands fees shall then be added to determine fair market value. poses of this subsection: For pur-,
(ii) Direct mining costs include mining labor including mine foremen and supervisory personnel whose primary responsibility is extraction of coal, supplies used for mining, mining equipment depreciation, fuel, power and other utilities used for mining, maintenance of mining equipment, coal transportation from the 'point of severance to the mouth of the mine, and any other direct costs incurred prior to the mouth of the mine that are specifically attributable to the mining operation;
(iii) Total direct costs include direct mining costs determined under paragraph (ii) of this subsection plus mineral processing labor including plant foremen and supervisory personnel whose primary responsibility is processing coal, supplies used for processing, processing plant and equipment depreciation, fuel, power and other utilities used for processing, . maintenance of processing equipment, coal transportation from the mouth of the mine to the point of shipment, coal transportation to market to the extent included in the price and provided by the producer, and any other direct costs incurred that are specifically attributable to the mining, processing or transportation of coal up to the point of loading for shipment to market;
(iv) Indirect costs, royalties, ad valo-rem production taxes, severance taxes, black lung excise taxes and abandoned mine lands fees shall not be included in the computation of the ratio set forth in this subsection. Indirect costs include: but are not limited to allocations of corporate overhead, data processing costs, accounting, legal and clerical costs, and other general and administrative costs which cannot be specifically attributed to an operational function without allocation[.]

, This. method attempted to value coal production at the "mouth of the mine" in order to establish the value of the coal that was solely attributable to the mining operations. Amax Coal Company v. Wyoming State Board of Equalization, 819 P.2d 825, 827 (Wyo.1991).

Wyodak asserts that the road relocation costs were better classified as indirect costs which "cannot be specifically attributed to an operational function without allocation." We disagree. The agreement dictates that, before Wyodak could mine the coal under and around the right-of-way, it had to incur relocation and replacement expenses. They were necessary expenses of extracting the coal and were, therefore, specifically attributable to Wyodak's mining operation.

Wyodak also contends that the relocation costs should not be considered direct: costs because they were extraordinary, amounting to "almost half of the total overburden removal costs for the entire 1990 production year." The term "extraordinary expenses" has not been defined, nor have extraordinary expenses been specifically exempted from the definition of direct costs. We are not convinced that Hillard v. Big Horn Coal Company, 549 P.2d 293, 298 (Wyo.1976), supports Wyodak's argument that. extraordinary expenses should be treated as indirect costs. As the Department of Revenue points out, although the opinion does acknowledge that coal producers do incur indirect costs not attributable to their mining, the case does not declare extraordinary costs as indirect costs in nature. We conclude that the fact that the relocation costs were substantial is inconsequential to whether they were proper-ly classified as direct or indirect costs.

Wyodak complains that the reclassification of these costs from indirect to direct was inconsistent with how they were treated in 1989 when most of the costs associated with the first relocation were categorized as indirect costs. Any concern we had about this inconsistency was resolved once we realized that § 39-2-209(d), which specifically defined the two types of costs, did not go into effect until the 1990 production year.

Wyodak next asserts that the 1991 expenses were actually aceruals of expenses that will be incurred to move State Highway 51 back to its original location, which will not occur until sometime in the future. It insists that these accruals should not be classified as direct costs because they could not have been incurred prior to the mouth of the mine. The Department of Revenue counters that the accrued costs were, by virtue of the agreement, specifically attributable to the mining operations to extract the coal under and around the right-of-way.

Wyodak relies on a State Board of Equalization opinion in In re Appeal of Exxon Coal U.S.A., Inc., No. 98-107, 1994 WL 569436 (Wyo.St.Bd.Eq. Oct. 6, 1994), to support its argument that accrued costs should not be classified as direct costs. In that case, the issue presented was whether Exxon Coal's final reclamation aceruals should have been classified as indirect costs pursuant to § 39-2-209(d)(iv). The State Board of Equalization concluded:

7. The erux of the issue presented concerns interpretation of whether final reclamation accruals by Petitioner "are specifically attributable" to mining, processing or transportation of coal" [W.S. 89-2-209(d)(ii), 209(d)(iii) ], or "cannot be specifically attributed to an operational function without allocation," W.S. 39-2-209(d)(iv). If the accruals are "specifically attributable" to one of the three described functions, they are considered "direct" costs and are utilized in deriving a direct cost ratio. On the other hand, if the accruals "cannot be specifically attributed ... without allocation," the same are indirect costs and are allocated by the direct cost ratio. It is our conclusion these reclamation accruals cannot be attributed to an operational function without allocation, and therefore are indirect costs to be allocated to taxable value by the direct cost ratio.
8. Initially we should emphasize the costs at issue are "final reclamation aceru-als," as opposed to the costs of annual, ongoing reclamation, which both the Department and Petitioner agree are direct costs, and thus utilized in the direct cost ratio. Final reclamation accruals differ however in that they are not current, out-of-pocket expenses, but rather estimates of the final costs for reclaiming the entire mine site . upon the secession of mining operations....

In re Appeal of Exxon Coal U.S.A., Inc., 1994 WL 569436, at *2-*3.

In that case, Exxon Coal made yearly accruals for its final reclamation costs. In re Appeal of ExXon Coal, U.S.A., Inc., 1994 WL 569436, at *2. In the case at bar, the accrued expenses were not an estimate for reclaiming the entire mine site. As the State Board of Equalization pointed out in its order in this case, "reclamation by definition indicates the process of returning something to a natural state. ... [Slince Petitioner was returning a man-made object, specifically State Highway 51, to a prior location, a reclamation argument is inapposite." We concur and add that the 1988 agreement forces the conclusion that the relocation and replacement expenses were direct costs because they were or will be incurred as a condition of mining the specific coal under and around the right-of-way. Wyodak moved the highway so that it could mine the coal. The fact that ongoing mining operations precluded the highway's immediate and permanent replacement, resulting in the accrual of the final replacement costs, does not change the logical conclusion that the costs were specifically attributable to the mining operations.

Wyodak contends that the costs associated with the second relocation occurred over a previously mined and reclaimed area and, therefore, could not have been incurred prior to the mouth of the mine. It also insists that these costs were incurred because of the Wyoming Transportation Commission's safety and convenience concerns. The Department of Revenue replies that this second relocation was in no way different from the first and that the costs associated therewith should be treated accordingly.

The relevant provision of the 1988 agreement stated:

22 Second Temporary Relocation. The State acknowledges that in order for the Company to maximize the removal of coal affected by State Highway 51 ... it - will be necessary to cause the State to relocate State Highway 51 to the Second Temporary Relocation in approximately 5 years after State Highway 51 is relocated to the First Temporary Relocation. The State does not at this time approve the relocation of State Highway 51 to the Second Temporary Relocation, but does agree to seriously consider giving such permission at a later time when required by the Company to continue its mining operations.

Although the Wyoming Transportation Commission denied Wyodak's proposed relocation site, it proposed an alternative route to the south, which Wyodak accepted. Wyodak would have incurred the expenses regardless of which route was utilized. This relocation was, by agreement, for the purpose of allowing Wyodak to maximize the removal of the coal, and it necessarily follows that the asso-clated expenses were properly classified as direct costs.

CONCLUSION

The expenses at issue in this case were, by agreement, specifically attributable to the mining operation rather than general and administrative costs which could not be specifically attributed to an operational function without allocation. They were, therefore, properly classified as direct costs and correctly considered in determining the taxable value of the coal production from this mine.

Affirmed.

      . Although the State Board of Equalization is listed as a party in the caption of this case, it properly did not file a brief or appear at oral arguments in accordance with our directives in Antelope Valley Improvement v. State Board of Equalization for State of Wyoming, 992 P.2d 563 (Wyo.1999), and our opinion on the petition for clarification, 4 P.3d 876 (Wyo. 2000).