author: KENNETH L. BUETTNER, Judge:

text:
    2003 OK CIV APP 84
    Jeffrey M. TOMLINSON, Plaintiff/Appellee, v. CONTINENTAL CASUALTY COMPANY, a Foreign Insurance Company; Jackie Lee Beam, an individual; and Ascot Cartage Company, an Oklahoma corporation, Defendants, and Transcontinental Insurance Company, Intervenor/Appellant.
    No. 99,040.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Sept. 2, 2003.
    Mark W. Schilling, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, OK, for Plaintiff/ Appellee.
    John B. DesBarres, Wilson, Cain & Aequa-viva, Tulsa, OK, for Intervenor/Appellant.
   Opinion by

KENNETH L. BUETTNER, Judge:

T1 Intervenor/Appellant Transcontinental Insurance Company (Transcontinental) appeals from the trial court's order which denied Transcontinental's Motion for Summary Judgment and granted the Cross-Motion for Summary Judgment filed by Plaintiff/Appel-lee Jeffrey M. Tomlinson. The summary judgment denied Transcontinental's quest to be reimbursed for workers' compensation benefits paid to Tomlinson after Tomlinson received an amount greater than the workers' compensation benefits in a settlement with a third-party tortfeasor. Because we find that Transcontinental had a statutory right to subrogation of workers' compensation benefits paid to Tomlinson, we reverse and remand.

T2 The facts of this case are not in dispute. Tomlinson was badly injured in the course and seope of his employment with Westeco, Inc. March 8, 1999. The injury was due to the negligence of a third party, Defendant Ascot Cartage Company (Ascot). Transcontinental was the workers' compensation insurer for Westco at the time of the injury. Tomlinson made a claim for workers' compensation benefits and following a joint petition settlement, Transcontinental paid Tomlinson $170,566.94 in workers' compensation benefits March 19, 2001.

T3 In the meantime, Tomlinson filed a third-party claim against Ascot and received a settlement of $481,695.88 from Ascot February 21, 2001. Transcontinental filed its Unopposed Application to Intervene in this action between Tomlinson and Ascot, seeking to recover its statutory workers' compensation subrogation from the third-party settlement. Transcontinental asserted that it was entitled to $109,926.48 pursuant to 85 O.S8. 2001 § 44 and Prettyman v. Halliburton, 1992 OK 63, 841 P.2d 5783. Transcontinental indicated in its Application to Intervene that Tomlinson disagreed with the subrogation amount because he was not made whole by the third-party settlement. Transcontinental argued that the "make whole" rule does not apply to statutory subrogation, but applies only to contractual subrogation, citing Equity Fire and Casualty Company v. Youngblood, 1996 OK 123, 927 P.2d 572. Transcontinental indicated that Tomlinson and Transcontinental had agreed to hold $109,926.48 in escrow pending the outcome of the intervention proceeding.

T4 Transcontinental and Tomlinson filed a Joint Statement of Facts June 14, 2001. The statement detailed how Tomlinson was injured and the extent of his injuries. The statement also indicated that two other people were injured in the accident, that Ascot was insured for $1,000,000, and that after mediation it was decided that Tomlinson's injuries were the most severe and he received 48% of Aseot's policy amount. The statement concluded with a declaration that the issue for the trial court was whether and to what extent Transcontinental may claim a subrogation interest in the third-party settlement paid to Tomlinson. Transcontinental and Tomlinson filed a Supplemental Joint Statement of Facts June 25, 2001. The supplemental statement noted that Tomlinson's counsel received a 35% contingent fee from the third-party settlement amount, and that Tomlinson reimbursed his counsel for $2,660.33 in costs, so that Tomlinson received a net award of $310,442, from which Transcontinental sought to recover $109,926.48 in subrogation. ©

€5 Transcontinental filed its Motion for Summary Judgment July 26, 2001. Tomlin-son filed his Opposition to Summary Judgment and Cross-Motion for Summary Judgment August 8, 2001. The parties did not dispute the facts. The dispute remained whether the so-called "make whole" rule applies to the § 44 subrogation right. The trial court granted summary judgment in favor of Tomlinson and held that Transcontinental was not entitled to any subrogation in this case and awarded the escrowed funds to Tomlinson.

16 Transcontinental asserts it is entitled to reimbursement from the third-party settlement for workers' compensation benefits it had paid. Transcontinental relies on 85 0.8.2001 § 44 and Prettyman, supra. In Prettyman, the Oklahoma Supreme Court was faced with determining the effect of an amendment to § 44 which added the language beginning with "(w)henever recovery against such other person is effected without compromise settlement...." In Preftyman, the workers' compensation insurer sought to recover the compensation paid to the claimant after the claimant settled with the third-party tortfeasor. Id. at 574. The settlement was for more than the workers' compensation benefits paid, but was for less than the amount the claimant had sought from the third-party tortfeasor. Id. Based on that fact, the trial court compelled the insurer to accept a reduced amount as full satisfaction of its subrogation claim. Id.

T 7 In Prettyman, the plaintiff had argued to the trial court that since he settled with the third-party tortfeasor for 38% of what he had requested, the compensation insurer should likewise be reimbursed only for 83% of the compensation it had paid. Id. at 576. The plaintiff based this argument on his assertion that his settlement with the third party was a "compromise settlement" under § 44, which required the compensation reimbursement to be reduced and which required the compensation carrier to contribute to the plaintiff's costs and attorney fees. Id. The Supreme Court explained, however, that the term "compromise settlement" in § 44 does not mean settling the third-party claim for less than the amount requested, but rather settling the third-party claim for less than the amount of compensation provided under the Workers' Compensation Act. Id. at 579. The court reiterated its earlier holding that the employer or insurer is only liable for any deficiency between the amount received from the third-party tortfeasor and the compensation allowed under the Act. Id. at 580, citing Weiss v. Salvation Army, 1976 OK 139, 556 P.2d 598, 601.

T8 After determining that a settlement with the third party for more than the compensation allowed by the Act, but for less than the amount prayed for, is not a compromise settlement, the court noted that under § 44 the insurer's subrogation interest is not reduced where there has not been a compromise settlement. The court explained:

The certain goal of the legislature is to provide for payment of a proportionate share of expenses and attorney fees incurred in effecting recovery of the fund from which the insurer will recoup its sub-rogated compensation payment in those instances where recovery is not made by compromise settlement; where the worker does not receive less than the compensation provided or estimated by the Act.... The entire purpose of § 44 would be destroyed if the statute were interpreted in the manner urged by plaintiff. To force the insurer to accept $29,000 as a "compromise" or "apportionment" of its $152,000 subrogated claim when the employee has recovered a much greater sum from the tortfeasor would defeat the underlying intent of § 44: the protection of the employer's right of full subrogation and the prevention of double recovery of the employee.

Id. at 581. The court also noted its earlier holding in Carter v. Wooley, 1974 OK 45, 521 P.2d 793, that where the claimant received a third-party settlement for more than the amount of workers' compensation benefits, the compensation insurer was entitled to recover the full amount of benefits it had paid. The court in Prettyman concluded that this result is not affected by the amendment to § 44. That amendment simply required the compensation insurer to pay a portion of the costs and attorney fees incurred in obtaining the third-party settlement, because the compensation insurer would receive the benefit of its subrogation right out of the third-party settlement amount when there was not a compromise settlement. Id. at 582.

T9 In this case, Tomlinson argued that since the Prettyman decision, the Oklahoma Supreme Court has determined that the so-called "make whole" rule applies to reduce an insurer's subrogation amount, citing Equity Fire and Cas. Co. v. Youngblood, supra. In Youngblood, the defendant was injured in an auto accident and her medical expenses were paid by her father's employee benefits plan. The two auto insurance companies involved deposited the policy limits into the court and were dismissed. The employee benefit plan sought reimbursement of the expenses it paid from the auto insurance funds. The parties were in agreement that the defendant's total damages were more than the amount of the insurance funds available. The trial court therefore awarded the insurance funds to the defendant and the employee benefit plan appealed.

110 The court in Youngblood noted that the employee benefit plan was covered by ERISA. The court stated the issue to be whether ERISA mandated enforcement of the plan's subrogation and reimbursement provision despite the fact the defendant received less than her total damages. Id. at 574. The court then stated the more specific first impression question: "(i)s a contractual subrogation or reimbursement provision, which contains no priority of payment provision, enforceable under Oklahoma law where the recipient of the benefits sought to be recovered has not been fully compensated by payments from a third party?" Id. The court agreed with a line of cases holding that if a benefit plan subject to ERISA lacks a priority of payment provision, does not give its managers the express right to resolve ambiguities, and the facts do not clearly show that the third-party settlement included payment for medical expenses, then the plan will not be allowed reimbursement. Id. at 575. The court explained that unambiguous policies would include a provision to the effect that the plan will be reimbursed regardless of whether the member had been fully compensated, and noted that a lack of such priority provision gives rise to the "make whole" rule. That rule prohibits a party who seeks subro-gation or reimbursement out of recoveries made due to personal injuries from recovering until the injured party has been fully compensated for his injuries. Id. at 575-576. In concluding, the court held:

We adopt the make whole rule in contract subrogation and reimbursement cases where (1) the subrogation or reimbursement contract neither expressly sets priorities for the repayment of benefits, nor otherwise gives a right to subrogation or reimbursement before any funds are paid to the beneficiary, nor vests the plan manager's discretionary authority to interpret ambiguous provisions of the plan; and (2) the compensation received by the benefi-clary from the settlement with or judgment against a third party represents less than full compensation. Under such circumstances, the subrogation and reimbursement terms of the contract will be unenforceable.

Id. at 576-577 (emphasis added).

111 In this case, Tomlinson persuaded the court that the "make whole" rule applied to the § 44 statutory subrogation right found in the Workers' Compensation Act. However, we agree with Transcontinental that a contractual subrogation provision is different from a statutory provision. Transcontinental relies on Young v. Columbia Southwestern Medical Center, 1998 OK CIV APP 124, 964 P.2d 987, as authority for its argument that statutory subrogation is not subject to the "make whole" rule. In Young, the Oklahoma Health Care Authority paid medical expenses, pursuant to approved medicaid benefits, for a baby who sustained damages at birth and later died. The parents of the baby filed a wrongful death action against the hospital and the claim was settled for $500,000. OHCA then sought to enforce its statutory lien for repayment of the medical expenses it paid. In Young, this court noted that 63 0.8.Supp.1996 § 5051.1 provided OHCA a lien to recover expenses it has paid when the payee receives a settlement or Judgment sufficient to pay both the payee's counsel fees and the lien. 18. This court expressly held that Youngblood is inapplicable to a case involving a statutory lien. Id. Although Young addressed a different statutory provision, we agree with Transeontinen-tal that Young provides strong support for the decision that a statutory subrogation right is not limited by the "make whole" rule.

112 Nothing in § 44, nor in the cases discussing it, refers in any way to a requirement that the claimant be made whole by a third-party settlement before the compensation insurer's subrogation right arises. As has been stated, the purpose of § 44 is to prevent a double recovery,. And, while one may argue that a person who has not been fully paid for his total damages is not receiving a "double benefit," indeed such person is receiving a double benefit where the third-party settlement exceeds the amount award-able under the Workers' Compensation Act. In that situation, the employee is receiving the amount awardable under the Act from two sources, which is the outcome prohibited by § 44. While no case involving § 44 expressly addresses whether the claimant has been made whole, we note that much of the discussion in Prettyman revolved around the fact that the injured worker settled with the third-party tortfeasor for less than the amount requested in his petition. Nevertheless, the court rejected the trial court's decision to accordingly reduce the subrogation amount. Prettyman established that in any case where the third-party settlement is for an amount equal to or greater than the amount of compensation provided for in the Workers' Compensation Act, the compensation insurer is entitled to subrogate the full amount of compensation benefits paid. Nothing in Youngblood requires a different result in cases proceeding under § 44 statutory subrogation.

{13 The Maryland Court of Appeals addressed this issue in Podgurski v. One Beacon Insurance Co., 374 Md. 183, 821 A.2d 400 (Md.App.2008). In that case, the injured worker sought to avoid reimbursing the compensation insurer after the third-party tort-feasor declared bankruptey to avoid paying the full damages award. Id. at 408-404... The court noted the subrogation provision in the Maryland workers' compensation statutes was unambiguous. It provided that when an injured worker recovers damages from another, the worker may deduct his costs and expenses and then "shall reimburse" the compensation insurer for the compensation already paid or awarded, as well as amounts paid for medical services, and only then may the worker keep the balance of the damages recovered. Id. at 407. The court noted that the subrogation statute did not modify the damages from which subrogation was required to "sufficient" or "total" damages. Id. The court further explained that the statute simply asks whether the employee recovered damages from a third party in excess of the amount of compensation paid, and that the subrogation statute does not consider whether the employee has been fully compensated. Id. at 407-408. As additional support for its holding, the Maryland court explained that the subrogation provision gives the employer the right to institute the action against the third party and thereby recover the compensation it has paid before the employee is able to recover damages above that amount. Id. at 409. The court noted "(t)his illustrates a legislative intent to ensure that a neutral party, the employer, is not made to pay for damages caused by the actual at-fault party." Id. at 409-410. The court held the worker must fully reimburse the compensation insurer for the full amount of workers' compensation benefits after receiving a greater amount from a third-party tortfeasor.

14 Section 44 similarly requires a worker injured by a third party to assign his third-party cause of action to the employer or its insurer when the worker elects to seek workers' compensation benefits for injuries caused by a third party. As the Oklahoma Supreme Court explained long ago:

The Workmen's Compensation Act was enacted by the Legislature for the benefit of injured employees.... By this act it was not intended to affect, in any manner, the right of one to proceed against a negligent third party for personal injuries. The Workmen's Compensation Act provides compensation for injury without regard to negligence. It is obvious, therefore, that a cause of action arising under the Workmen's Compensation Act is by nature distinctly different from the common-law remedy for damages resulting from negligence. Although both arise by reason of injury, yet, under the Workmen's Compensation Act, the recovery is without regard to negligence and is governed by a seale or rate fixed by the Legislature and is in Heu of wages, while the common-law action for personal injury must be based upon and flow directly and proximately from negligent acts....
It is apparent that the Legislature intended that before an injured workman, ... whose injuries were caused by the negligence of a third party, should be entitled to the extraordinary benefits of the act, he should be required to elect which liability he would pursue first,. For the protection of his employer and insurance carrier, who are obliged under the act to pay for injuries without regard to negligence, if an injured employee files a claim for compensation but desires first to proceed against the third party involved, he is required to assert such intention and assign his cause of action against the third party, ... so that in the event of recovery against the negligent third party the employer and insurance carrier may, to some extent, recoup their loss by reason of payments made for injury without regard to negligence.

Parkhill Truck Co. v. Wilson, 1942 OK 168, 190 Okla. 478, 125 P.2d 208, 207. This language demonstrates another basis for rejecting the "make whole" rule in § 44 sub-rogation: workers' compensation benefits are intended to replace wages and are not damages for negligence. Accordingly, the goal is not necessarily to "make whole" the injured worker by payment of workers compensation benefits. The employee must elect which benefits to receive first, and if he pursues both, the compensation insurer is statutorily entitled to reimbursement from any recovery from the third-party tort-feasor.

{15 For these reasons, we reverse the summary judgment entered in favor of Tom-linson and remand for a determination of Transcontinental's subrogation interest under the terms of § 44.

REVERSED AND REMANDED.

ADAMS, P.J., and JOPLIN, C.J., concur.

      . That section provides:
      (a) If a worker entitled to compensation under the Workers' Compensation Act is injured or killed by the negligence or wrong of another not in the same employ, such injured worker shall, before any suit or claim under the Workers' Compensation Act, elect whether to take compensation under the Workers' Compensation Act, or to pursue his remedy against such other. Such election shall be evidenced in such manner as the Administrator may by rule or regulation prescribe. If he elects to take compensation under the Workers' Compensation Act, the cause of action against such other shall be assigned to the insurance carrier liable for the payment of such compensation, and if he elects to proceed against such other person or insurance carrier, as the case may be, the employer's insurance carrier shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by the Workers' Compensation Act for such case. The compromise of any such cause of action by the worker at any amount less than the compensation provided for by the Workers' Compensation Act shall be made only with the written approval of the Court. Whenever recovery against such other person is effected without compromise settlement by the employee or his representatives, the employer or insurance company having paid compensation under the Workers' Compensation Act shall be entitled to reimbursement as hereinafter set forth and shall pay from its share of said reimbursement a proportionate share of the expenses, including attorneys fees, incurred in effecting said recovery to be determined by the ratio that the amount of compensation paid by the employer bears to the amount of the recovery effected by the employee. After the expenses and attorneys fees have been paid, the balance of the recovery shall be apportioned between the employer or insurance company having paid the compensation and the employee or his representatives in the same ratio that the amount of compensation paid by the employer bears to the total amount recovered; provided, however, the balance of the recovery may be divided between the employer or insurance company having paid compensation and the employee or his representatives as they may agree.
      In the event that recovery is effected by compromise settlement, then in that event the expenses, attorneys fees and the balance of the recovery may be divided between the employer or insurance company having paid compensation and the employee or his representatives as they may agree. Provided, that in the event they are unable to agree, then the same shall be apportioned by the district court having jurisdiction of the employee's action against such other person, in such manner as is just and reasonable.
      (b) The employer or his insurance carrier shall not have the right of subrogation to recover money paid by the employer or his insurance carrier for death claims or death benefits under the Workers' Compensation Act from third persons, with all common law rights against other than the employer and his employees preserved and to be in those persons who would have had such rights had there been no death claim or death benefits under the Workers' Compensation Act.
      (c) The employer or his insurance carrier shall have the right of subrogation to recover money paid by the employer or his insurance carrier for the expenses of the last illness or accident under the Workers' Compensation Act from third persons, with all common law rights against other than the employer and his employees preserved and to be in those persons who would have had such rights had there been no benefits under the Workers' Compensation Act.

      . 'The formula established in § 44 was explained by the court in Prettyman: after determining the ratio of the workers' compensation benefits to the total third-party recovery, the costs and attorney fees are subtracted from the total recovery and the remaining amount is multiplied by the ratio amount and the result is the subrogation award to the compensation insurer. 841 P.2d at 582.

      . See also ACCOSIF v. American States Ins. Co., 2000 OK 21, 1 P.3d 987, 993-994, which addressed the limitations period for a compensation carrier's action for reimbursement of compensation benefits from proceeds the injured worker received from a third-party tortfeasor, and in which the court expressly labeled the carrier's action a 'statute-based" liability, as contrasted to a contractual liability.

      . Indeed, the fact that § 44 requires apportionment of the third-party settlement where there has been a compromise settlement shows a legislative rejection of the "make whole" rule in § 44 cases. If an injured worker has settled with a third party for less than the amount awardable under the Workers' Compensation Act, then undoubtedly the worker has not been made whole, yet § 44 still requires that the compensation insurer receive some portion as reimbursement.


source: Caselaw Access Project

author: BENCH, Judge.

license: Public Domain

text:
    2003 UT App 300
    STATE of Utah, Plaintiff and Appellee, v. Daniel J. PETERSON, Defendant and Appellant.
    No. 20020341-CA.
    Court of Appeals of Utah.
    Sept. 5, 2003.
    Margaret P. Lindsay, Aldrich Nelson Weight & Esplin, Provo, for Appellant.
    Mark L. Shurtleff, Attorney Generals Office and Marian Decker, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BENCH, DAVIS, and GREENWOOD.
   OPINION

BENCH, Judge.

T1 Peterson appeals his convictions for possession of methamphetamine, a third degree felony, in violation of Utah Code Ann. § (4)(a), (c) (1998 & Supp. 2002), and possession of paraphernalia in a drug-free zone, a class A misdemeanor, in violation of Utah Code Ann. §§ 58-87a-5 and 58-87-8(4)(a), (c) (1998 & Supp.2002). On appeal, Peterson claims that the search of his coat and shoes exceeded the scope of an otherwise justified Terry frisk. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 168, 20 L.Ed.2d 889 (1968). We agree. We therefore reverse his convictions.

BACKGROUND

T 2 The facts of this case are recited in the light most favorable to the trial court's findings from the suppression hearing. See State v. Delaney, 869 P.2d 4, 5 (Utah Ct.App.1994).

T3 On December 28, 2001, Officer Russ Billings of the Provo City Police Department received an anonymous report that adults were using methamphetamine in the presence of children at a Provo residence. Officer Billings, along with several other officers, went to the residence to perform a welfare check on the children. A woman answered the door and informed Officer Billings that her adult daughter, Dawn Webster, was the tenant. Webster came to the door shortly thereafter and, according to Officer Billings, gave consent to the officers' entry and search of her apartment.

T4 Officer Billings proceeded with Webster to a bedroom, upstairs and down a short hallway, where Webster's baby was sleeping. Webster and Officer Billings had been in the bedroom for approximately three or five see-onds when Peterson unexpectedly emerged from the closet wearing light clothing and no shoes. Webster sereamed out to her mother asking what the mother's boyfriend was doing in Webster's bedroom. Startled by Peterson's emergence from the closet, Officer Billings stepped back and ordered Peterson to stop, turn around, and place his hands where the officer could see them. Peterson complied and Officer Billings then handcuffed him and patted him down for weapons. Finding no weapons, Officer Billings asked another officer to escort Peterson outside.

5 Within about sixty seconds of the pat-down, Officer Billings noticed a coat on the floor of the closet where Peterson had been standing. Officer Billings asked a child who had entered the bedroom if the coat belonged to Peterson. The child responded affirmatively. Webster confirmed that the coat belonged to Peterson, and that Peterson had been wearing it when she answered the door. Officer Billings picked up the coat, intending to take it to Peterson. For safety purposes, he patted down the pockets of the coat. In doing so, Officer Billings felt a syringe in the right pocket. Officer Billings removed the syringe, which contained a brown liquid that later tested positive for methamphetamine. Meanwhile, another officer picked up a pair of shoes within three feet of the closet. Inside one of the shoes, the officer found a baggy full of syringes. Onee the syringes were removed from Peterson's coat and shoes, Officer Billings took the items to Peterson who, by then, was standing on the front porch in the "extremely cold" December weather. Peterson was then arrested for drug offenses.

T6 Before trial, Peterson moved to suppress all evidence found in his coat and shoes, claiming it was obtained by an illegal search and seizure. The trial court denied Peterson's motion to suppress, finding that the search of the coat and shoes was within the scope of a lawful Terry frisk. Peterson was subsequently convicted of possession of methamphetamine and paraphernalia Peterson appeals.

STANDARD OF REVIEW

17 "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).

ANALYSIS

18 "The Fourth Amendment of the United States Constitution guarantees the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." State v. Lopez, 873 P.2d 1127, 1131 (Utah 1994) (quoting U.S. Const. amend. IV). However, "what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures." Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968) (quotations and citation omitted).

T9 "When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," the officer may conduct a pat-down or frisk "to determine whether the person is in fact carrying a weapon." Terry, 392 U.S. at 24, 88 S.Ct. 1868. However, such search must be strictly "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Id. at 26, 88 S.Ct. 1868. Professor LaFave explains that "the limited search permitted by Terry, it is important to remember, is to find weapons" that might be used to assault the officer. Wayne R. La-Fave, 4 Search & Seigure Low: A Treatise on the Fourth Amendment, § 9.5(b), at 274 (3d ed.1996). Utah courts have consistently upheld limited searches for weapons under Terry. In State v. Bradford, 839 P.2d 866 (Utah Ct.App.1992), we stated that, under Terry, "when an officer reasonably believes a suspect is dangerous and may obtain immediate control of weapons, a protective search is justified." Id. at 870 (citation omitted). The Utah Supreme Court, in State v. Roybal, 716 P.2d 291 (Utah 1986), held that an officer may conduct a protective weapons search only if "a reasonably prudent [person] in the cireumstances would be warranted in the belief that his [or her} safety or that of others was in danger." Id. at 298 (quoting Terry, 892 U.S. at 27, 88 S.Ct. 1868).

T10 In determining what is reasonable during a pat-down search or frisk, we must ask first "whether the officer's action was justified at its inception," and second, "whether it was reasonably related in scope to the cireumstances which justified the interference in the first place." Terry, 392 U.S. at 20, 88 S.Ct. 1868. Peterson concedes that the frisk of his person was justified at its inception. Therefore, we limit our analysis to the seope of the search.

11 The second prong of the Terry analysis asks whether the scope of the search was reasonably related to the cireumstances that justified the interference. See id.; accord State v. Chapman, 921 P.2d 446, 450 (Utah 1996); State v. Johnson, 805 P.2d 761, 763 (Utah 1991). In other words, we must determine whether the subsequent action of searching the coat and shoes was within the scope of the frisk conducted on Peterson's person.

T 12 Utah courts have addressed the issue of seope in different contexts. In Johnson, 805 P.2d at 764, the Utah Supreme Court held that running a warrants check on a passenger in an automobile that had been properly stopped exceeded the appropriate scope of detention. Similarly, in State v. White, 856 P.2d 656 (Utah Ct.App.1998), we held that the police officer exceeded the scope of a Terry frisk when the need for a frisk had dissipated. Furthermore, in State v. Valdez, 2008 UT App 100, 68 P.3d 1052, we held that a police officer's request for a defendant's identification during the arrest of another person "exceeded the scope of the reasons justifying the initial detention and unnecessarily expanded its duration in scope." Id. at T8. In fact, the scope of the detention was "limited to ensuring that defendant had no weapon in his hands and was in no position to violently interfere with the arrest." Id. at T 22.

1183 As in Terry and the above cases, the authority and scope of a frisk for weapons carried out by Officer Billings must be "narrowly drawn." Terry, 392 U.S. at 27, 88 S.Ct. 1868. The facts of the present case are undisputed. After Officer Billings entered the room, Peterson suddenly emerged from the closet. Fearing for his own safety and the safety of others present, Officer Billings lawfully and justifiably conducted a pat-down of Peterson's person. After ensuring that Peterson did not have a weapon, Officer Billings asked another officer to escort Peterson outside. Peterson was then removed from the room and ultimately from the premises. There then remained no reasonable expectation or apprehension that Peterson could access a weapon or would otherwise interfere with the welfare check. The cireumstances that justified the pat-down, namely the search for weapons, were no longer present when Officer Billings searched the coat that was lying on the floor. Therefore, when Officer Billings picked up the coat and patted it down for weapons, he exceeded the seope of the lawful frisk. The evidence seized from the coat and shoes is therefore not admissible.

CONCLUSION

14 We are persuaded that the search of Peterson's coat exceeded the scope of a Terry frisk, The safety and weapons concerns were no longer present after Peterson had been frisked and removed from the premises. We therefore reverse the convictions.

€ 15 WE CONCUR: JAMES Z. DAVIS and PAMELA T. GREENWOOD, Judges.

      . Webster knew Peterson was in the apartment, but thought he was in the kitchen with her mother.


author: KITE, Justice.

text:
    2003 WY 127
    Thomas Lee KELLEY and Vicki Kelley, d/b/a Outlaw Recovery, Appellants (Plaintiffs), v. Malcolm G. WATSON, Appellee (Defendant).
    No. 02-271.
    Supreme Court of Wyoming.
    Oct. 6, 2003.
    Representing Appellant: Thomas Kelley and Vicki Kelley, Pro se, Rawlins, Wyoming.
    Representing Appellee: No appearance.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[11] Thomas Lee Kelley and Vicki Kelley d/b/a Outlaw Recovery, appeal pro se from a district court judgment which found the Kel-leys' claims concerning ownership of two vehicles was without merit and awarded the property in dispute to Malcolm G. Watson. We conclude that the Kelleys' brief is unsupported by the record, cogent argument, or citation to pertinent authority and summarily affirm the district court's order.

FACTS

[12] In the spring of 1998, the Kelleys and Mr. Watson purchased three tow trucks from Mr. Phil Perry. The vehicles were financed through a bank loan in the amount of $21,000 and a promissory note to Mr. Perry. Both the Kelleys and Mr. Watson were signatories on the loans. Shortly after the purchase, Mr. Watson obtained title for two of the trucks in his name only. The third truck was sold around the same time and is no longer at issue. The Kelleys allege that in January 2002, Mr. Watson trespassed on their property and took possession of one of the two tow trucks. The Kelleys' complaint against Mr. Watson alleged fraud, trespass, wrongful possession, breach of peace and conversion. The district court found in favor of Mr. Watson. The court found that the Kelleys defaulted on payment of the loans, leaving Mr. Watson "holding the bag." The court ordered the trucks to be sold to help repay the loans.

[13] The district court entered its judgment on October 1, 2002. The Kelleys filed a motion for relief from judgment on October 29, 2002. On November 26, 2002, the district court held Mr. Kelley in contempt for failing to turn over one of the trucks and ordered execution on that truck. The Kelleys filed their Notice of Appeal the same day, and this appeal followed.

STANDARD OF REVIEW

[T4] We will summarily affirm cases or issues in cases that are not presented with cogent argument or pertinent authority. While we may make allowances for pro se litigants, they are not excused from compliance with this rule and with the Wyoming Rules of Appellate Procedure. Hamburg v. Heilbrunn, 891 P.2d 85, 87 (Wyo.1995). The Kelleys' brief does not set forth any issues, and the Appellee did not file a brief. "Under this court's long-standing precedent, this court will not frame the issues for the litigants and will not consider issues not raised by them and not supported by cogent argument and authoritative citation." State v. Campbell County School District, 2001 WY 90, 11 35, 82 P.3d 325, I 35 (Wyo.2001).

DISCUSSION

[15] In addition to failing to comply with various provisions of W.R.A.P 7.01, the Kelleys brief is not supported by the record, cogent argument or pertinent authority. Not only does the brief lack proper format, no issues are framed, nor are any cases cited. Moreover, the brief fails to include any facts or information pertaining to the appeal at issue, the nature of the case on appeal, the course of proceedings, or the disposition in the trial court. See W.R.A.P. 7.0l(e) The Kelleys do not cite to the record. They generally complain about their attorney and about the district court judge; basically, the Kelleys brief simply voices discontent with the ruling against them.

[16] Even if the Kelleys brief had framed issues or cited pertinent authority, we would still be inclined to summarily affirm the district courts order because there is no hearing transcript, nor is there a statement of the evidence presented at the hearing. In the absence of a transcript or an approved statement of the hearing as provided under W.R.A.P. 3.03, the regularity of the trial courts judgment and the competency of the evidence upon which that judgment is based must be presumed. Burt v. Burt, 2002 WY 127, T7, 53 P.3d 101, T7 (Wyo.2002) (citations omitted).

[17] Affirmed.


author: VOIGT, Justice.

text:
    2003 WY 128
    Dale William DEAN, Sr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-176.
    Supreme Court of Wyoming.
    Oct. 10, 2003.

      Representing Appellant: Kenneth M. Ko-ski, Public Defender; Donna D. Domonkos; Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel.
    Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Dee Morgan, Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[T1] Appellant was convicted of one count of kidnapping, one count of first-degree sexual assault, and two counts of third-degree sexual assault. This appeal raises issues of the failure to give lesser-included offense instructions, sufficiency of the evidence, and speedy trial. Finding no error, we affirm.

ISSUES

1. Did the trial court err in refusing to instruct the jury that false imprisonment is a lesser-included offense of kidnapping?

2, Did the trial court err in refusing to instruct the jury that sexual battery is a lesser-included offense of both first-degree and third-degree sexual assault?

3. Was the evidence sufficient to convict appellant of each charge?

4. Was appellant denied his right to a speedy trial pursuant to W.R.Cr.P. 48 when the trial was not held within 120 days after the date of arraignment?

FACTS

[T2] On July 21, 2001, Dale W. Dean, Sr. (appellant) abducted MR. (the victim) at gunpoint as she walked along a street in Gillette. Appellant placed the victim in handcuffs and forced her, face down, into his van. Thereafter and throughout the ordeal, the victim was in fear for her life.

[13] Appellant drove west out of Campbell County into Johnson County on Interstate 90. At one point, in an attempt to determine where she was being taken, the victim told appellant she needed to go to the bathroom. Appellant pulled off to the side of the highway and removed the handcuffs from the victim. He got out of the van with her, tucking the gun into the back of his pants. He stood near the van watching her, and then ordered her into the front seat. Appellant placed the gun by the driver's seat, placed the handcuffs on the gearshift, locked the doors, and started driving again.

[14] About twelve or thirteen miles outside of Buffalo, in Johnson County, appellant pulled into a truck pull-out area,. Hoping to get help from someone in the parking area, the victim asked to go for a walk. Appellant let her out of the van, but followed her as she walked, again with the gun tucked into the back of his pants. They both then returned to the van. The victim asked if she could go to the bathroom again. Appellant let her out, but again watched her from outside the van, with the gun in his waistband. As the victim returned to the passenger seat, appellant got into the van's middle seat and ordered the victim to join him. When she did not comply, he threatened to use the gun and handcuffs. In fear for her life, the victim then complied.

[15] While appellant and the victim sat in the middle seat, some cars drove past the parking area. Each time a car went by, appellant picked up the gun, which "made a clicking noise." Appellant then ordered the victim to get in the back seat. She obeyed and he followed, taking the gun with him. He took off his shirt and ordered the victim to do the same. When she did not comply, he took her shirt off. He told her she had "nice breasts" and said, "God, I want to fuck you." He touched and put his mouth on her breasts. He removed her shorts and underpants, made her lie down on the back seat, and then performed oral sex on her and put his fingers inside her vagina. He then pulled his pants down and told her to "jack him off." Appellant had the victim sit up and he placed her hand on his penis, When he could not reach a climax, he forced her to perform oral sex on him. Still unable to obtain a climax, he pulled a bottle of lubricant from a bag and had the victim masturbate him until he climaxed. He used his tee-shirt to clean himself off and gave the tee-shirt to the victim to do the same.

[T6] Appellant pulled up his pants and returned to the driver's seat, taking the gun with him. The victim remained in the back seat, where she put her clothes back on. She then got into the front seat at appellant's command. Appellant then indicated that he wanted to get something for breakfast, started the van, and headed into Buffalo.

[T7] In another attempt to get help, the victim onee again asked to be allowed to go to the bathroom. Appellant pulled up to a convenience store, but he followed her inside, taking the gun with him, so she could not ask for help. She used the restroom and returned to the van with appellant. They drove to another convenience store, where appellant parked the van so he could see the victim while he went inside and talked to the cashier. The victim did not run because appellant was watching her and she was afraid he would kill her.

[T8] After appellant returned to the van, they next drove to a restaurant. Appellant allowed the vietim to go in first and, while he was still outside, she immediately approached a waitress and asked her to call the police because appellant had taken her from Gillette. Appellant and the victim were sitting at a table when the police arrived. As the officers approached the table, the victim quickly arose and grabbed one officer's arm, telling him appellant had taken her from Gillette. One officer then spoke with the victim while another spoke with appellant. Appellant admitted having sex with the vie-tim, but claimed it was consensual.

[191 The victim was very upset while she spoke with the officer, She told the officer she had been handcuffed, and he noticed a red mark on one of her wrists. After obtaining consent from appellant to search the van, the officers found a silver pellet pistol that looked like a Colt 45 under the driver's seat and handcuffs on the gearshift. Appellant was arrested.

[T 10] A criminal information was filed on July 23, 2001, charging appellant with kidnapping, first-degree sexual assault, and two counts of third-degree sexual assault. Appellant waived his right to a preliminary hearing on August 3, 2001, and he was bound over to district court for trial. On August 21, 2001, he filed a demand for speedy trial. He was arraigned on September 11, 2001, at which time the district court entered appellant's not guilty pleas and set the matter for trial on February 19, 2002. The trial was held as scheduled. The jury returned verdicts of guilty on all four counts.

DISCUSSION

Did the trial court err in refusing to instruct the jury that false imprisonment is a lesser-included offense of kidnapping?

[111] Appellant asked the trial court to instruct the jury that false imprisonment is a lesser-included offense of kidnapping. The rule concerning the giving of a lesser-included offense instruction was developed at common law to assist the prosecution where it was unable to prove some element of the charged crime, but the defendant also has a right to the benefits of the rule because it allows the jury an option between the drastic alternatives of conviction of the greater offense and acquittal. Keller v. State, 771 P.2d 379, 383 (Wyo.1989); State v. Selig, 635 P.2d 786, 790 (Wyo.1981). Where a lesser-included offense instruction has been proffered and an objection has been lodged to its rejection, the refusal to give the instruction is subject to de novo review in this Court. Houghton v. State, 6 P.3d 648, 646 (Wyo.2000) (citing Paramo v. State, 896 P.2d 1842, 1344 (Wyo.1995)). The failure to give a lesser-included offense instruction when such is appropriate is reversible error. Houghton, 6 P.3d at 646.

[T12] W.R.Cr.P. 3l1(c) provides that a "defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense." A lesser-included offense has been described as one that is necessarily established by proof of the greater offense, or, stated differently, it is such that the greater offense cannot be committed without also committing the lesser offense. Evanson v. State, 546 P.2d 412, 416 (Wyo.1976), rev'd on other grounds by Brown v. State, 590 P.2d 1312 (Wyo.1979). Alternatively, a lesser-included offense has been characterized as occurring when all of the elements within the claimed lesser offense are found in the greater offense. Balsley v. State, 668 P.2d 1324, 1328 (Wyo.1983). The question of the existence of a lesser-included offense is a question of law subject to de novo review in this Court. Sindelar v. State, 982 P.2d 730, 732 (Wyo.1997).

[113] We have said that a lesser-included offense instruction should be given where the following criteria have been met:

"With specific regard for lesser-included offense instructions, we recently held that a trial court must first determine if all the elements of the lesser offense are included within the greater. If that is the case and there is some evidence that would rationally permit the jury to find the accused guilty of the lesser and not the greater offense, the instruction should be given. Sanders v. State, 7 P.8d 891, 894 (Wyo. 2000). ... The test is more fully expressed in this five-step analytic process: (1) a proper request for the instruction is made; (2) the elements of the lesser-included offense are identical to part of the elements of the greater offense; (8) there is some evidence that would justify conviction of the lesser-included offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute that the jury may consistently find the defendant innocent of the greater and guilty of the lesser-included offense; and (5) mutuality exists such that the lesser-included charge can be demanded by either the prosecution or the defense. When all five parts of this test are met, and the lesser-included offense instruction is not given, the trial court commits reversible error. Eatherton v. State, T6l P.2d 91, 94-95 (Wyo.1988)."

Allen v. State, 2002 WY 48, T 53, 48 P.3d 551, 568-69 (Wyo.), cert. denied, 537 U.S. 899, 128 S.Ct. 201, 154 L.Ed2d 170 (2002) (quoting Mueller v. State, 2001 WY 134, 19, 36 P.3d 1151, 1155-56 (Wyo.2001)). In deciding whether to give a lesser-included offense instruction, "the court should view the evidence in the light most favorable to the accused." Keller, Til P.2d at 885. ©

[114] In State v. Keffer, 860 P.2d 1118, 1126-31 (Wyo.1998), we traced Wyoming's precedent on the issue of lesser-included offenses and related it to the development of similar precedent in other jurisdictions. In doing so, we noted a lack of "clear consistency" in this Court's application of a standard, and we alluded to the "unsettled nature" of Wyoming's lesser-included offense jurisprudence. Id. Finally, we adopted the federal Blockbur-ger test, otherwise known as the statutory elements test, for determining whether a lesser-included offense instruction should be given:

" 'Under this test, one offense is not "nee-essarily included" in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under [Wyoming Rule 31(0)]) "

Keffer, 860 P.2d at 1134 (quoting Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1448, 108 L.Ed.2d 734 (1989)).

[T 15] In adopting the statutory elements test, we emphasized the "certainty and predictability" that should follow: " 'Because the elements approach involves a textual comparison of criminal statutes and does not depend on inferences that may be drawn from evidence introduced at trial, the elements approach permits both sides to know in advance what jury instructions will be available and to plan their trial strategies accordingly.'" Keffer, 860 P.2d at 1188 (quoting Schmuck, 489 U.S. at 720, 109 S.Ct. 1448). We recognized, however, that a process for identifying when a lesser-included offense instruction should be given was still needed and that the first step in that process should be a request for such instructions by the parties. Keffer, 860 P.2d at 1184.

[T 16] There are competing theories as to how, onee a request has been made by a party, the decision should be made whether to give the lesser-included offense instruction. The "jury function theory" holds that, if the lesser crime is necessarily included in the greater, the jury should be allowed to weigh the evidence and determine guilt as to either offense. Id. The "court function theory" emphasizes the third and fourth elements from the five-part test cited above, requires the court to evaluate the evidence, and prevents the giving of a lesser-included offense instruction unless a fact question is present regarding one of the elements that differentiate the two erimes. Id. In Keffer, we determined that the jury function theory, but not the court function theory, was consistent with the statutory elements test and that the Judge's role should be limited to giving the lesser-included offense instruction "if there are in dispute factual issues that would permit a jury rationally to find the defendant guilty of the lesser offense and acquit the defendant of the greater." Id. at 1136. The quantum of evidence necessary to meet this standard "ought to be perceived as minimal." Id. at 1185.

[117] Unfortunately, the lack of clear consistency in our cases survived Keffer. In Keffer, Justice Thomas made a pointed effort to discontinue use of the five-part test recited above:

This evidence permitting standard was a part of Wyoming's former cognate standard. In Selig, this court indicated that the five [United States v.] Chapman, 615 F.2d 1294 (10th Cir.1980), cert. denied, 446 U.S. 967, 100 S.Ct. 2947, 64 LEd.2d 827 (1980)] elements provided "guidelines from which a determination can be made as to whether or not the evidence would permit the jury rationally to find the defendant guilty of the lesser offense but not guilty of the greater * * *." Selig, 635 P.2d at 790. Although we shall no longer use the five Chapman elements and specifically disavow the former role of the trial judge in weighing the evidence, we adhere to the view that the giving of a lesser included offense instruction is appropriate if there are in dispute factual issues that would permit a jury rationally to find the defendant guilty of the lesser offense and acquit the defendant of the greater.

Keffer, 860 P.2d at 1186. Keffer was supposed to be a jurisprudential watershed:

Our adoption of the statutory elements test for identifying lesser included offenses directs that the logically consistent jury function theory replace the evidence evaluation we formerly required of trial judges.

Id. at 1134.

[118] Despite this stated intention, the lesser-included offense opinions issued by this Court since Keffer reveal a continued recognition of the need for the trial judge to make evidentiary determinations in deciding whether "there are in dispute factual issues that would permit a jury rationally to find the defendant guilty of the lesser offense and acquit the defendant of the greater." Id. at 1186. See, for example, Paramo, 896 P.2d at 1344 (failure to give lesser-included offense instruction is reversible error if the evidence supports it); Nava v. State, 904 P.2d 364, 367-68 (Wyo.1995) (not error not to give lesser-included offense instruction where the evidence of guilt of the greater offense is overwhelming); Bloomquist v. State, 914 P.2d 812, 822 (Wyo.1996) (judge would have refused a lesser-included offense instruction because of overwhelming evidence of guilt of the charged crime); Sindelaor, 982 P.2d at 782 (reversible error results from failure to give a lesser-included offense instruction where the evidence presented would support conviction of lesser offense); Hermreck v. State, 956 P.2d 335, 389 (Wyo.1998) (not error to refuse lesser-included offense instruction where there was no evidence to support it); Carey v. State, 984 P.2d 1098, 1101-02 (Wyo.1999) (there must be competent evidence to support a lesser-included offense instruction); Wolfe v. State, 998 P.2d 385, 388 (Wyo0.2000) (there must be some evidence to support a lesser-included offense instruction); Houghton, 6 P.8d at 646-47 (the evidence was such that the jury could have convicted of the lesser-included offense); and Sanders v. State, 7 P.8d 891, 894-95 (Wyo.), cert. denied, 581 U.S. 1024, 121 S.Ct. 594, 148 L.Ed.2d 508 (2000) (no evidence to support a lesser-included offense instruction). In the context of these post-Keffer opinions, all of which recognize the trial court's duty to determine the presence of some level of supportive evidence before a lesser-included offense instruction is given, it is perhaps not surprising that we continue to revert to the five-part test purportedly abandoned in Kef-Ser. See Thomas v. State, 2003 WY 53, 111, 67 P.3d 1199, 1202 (Wyo.2003); Allen, 2002 WY 48, 158, 43 P.3d at 568-69; and Mueller, 2001 WY 134, I 9, 36 P.3d at 1156.

[119] The parties in the instant appeal have not chosen to comment upon this apparent precedential inconsistency. Instead, they have each presented their respective cases as being "obvious." Consequently, we will not take this issue beyond this point. Suffice it to say that, under any standard or test, a lesser-included offense instruction is not to be given in the absence of some minimal evidentiary support and that, after determining that the statutory elements test has been met, the trial court is obligated also to determine whether a lesser-included offense instruction is supported by the evidence.

[120] The crime of kidnapping is found at Wyo. Stat. Aun. § 6-2-201 (LexisNexis 2003). The elements of the crime of kidnapping, as contained in the instruction given to the jury in this case, which instruction appears to have been based on Wyoming Criminal Pattern Jury Instruction No. 22.01B, and to which there was no objection, are as follows:

1. On or about July 21-22, 2001
In Johnson County, Wyoming
The Defendant, Dale William Dean, Sr.
Unlawfully confined [the victim]
With the intent to facilitate the commission of sexual assault in the first degree or sexual assault in the third degree.

[121] The erime of false imprisonment is found at Wyo. Stat. Ann. § 6-2-208 (Lexis-Nexis 2008). Appellant offered two instructions in regard to false imprisonment that were refused by the trial court. The first, based on Wyoming Criminal Pattern Jury Instruction No. 1.08 reads as follows:

If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged, he may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged, if the evidence is sufficient to establish his guilt of such lesser offense beyond a reasonable doubt.
The offense of Sexual Assault in the First Degree, with which the defendant is charged, also includes the lesser offense of Sexual Battery, and
The offense of Sexual Assault in the Third Degree, with which the defendant is charged, also includes the lesser offense of Sexual Battery, and
The offense of Kidnapping, with which the defendant is charged, also includes the lesser offense of False Imprisonment.

[122] The second refused jury instruetion, a proposed elements instruction based on Wyoming Criminal Pattern Jury Instruction No. 22.03, identified the elements of false imprisonment as follows:

1. On or about July 22, 2001
In Johnson County, Wyoming
The defendant, Dale Dean, Sr.
Knowingly and unlawfully
Restrained [the victim] and
That restraint substantially interfered Wlth the liberty of [the vietim].

[123] These two instructions were proposed and rejected during a formal instruction conference toward the end of the trial. The trial court utilized the above-described five-step test in analyzing the jury instructions and concluded (1) that the elements of false imprisonment are not a subset of the elements of kidnapping, (2) that the evidence would not justify conviction of the lesser but acquittal of the greater offense, and (3) that proof of the elements distinguishing the two offenses was not sufficiently in dispute. The trial court specifically relied upon Carey v. State, 715 P.2d 244, 249 (Wyo.), cert. denied, 479 U.S. 882, 107 S.Ct. 270, 93 L.Ed.2d 247 (1986), in stating that a lesser-included offense instruction should not be given where consent is the only defense and only two alternatives are available to the jury-guilty of the greater offense or not guilty.

[124] The issue of whether false imprisonment is a lesser-included offense of kidnapping is a question of first impression for this Court. In Doud v. State, 845 P.2d 402, 405-07 (Wyo.1993), we compared the two crimes, but we did not address the specific issue of whether false imprisonment is a lesser-included offense of kidnapping. Although we referred to false imprisonment as a "lesser offense," we did not deal directly with the fact that the jury in Doud was instructed that false imprisonment was a lesser-included offense of kidnapping. Id. Instead, our focus was on the elements of kidnapping that distinguish it from false imprisonment and felonious restraint. In that regard, we noted that kidnapping, unlike false imprisonment or felonious restraint, contains the element of confinement with the intent to hold for ransom, to facilitate the commission of a felony, to inflict bodily injury on, or to terrorize the victim. Id. at 406. Of course, saying that one crime contains elements not found in another is not the same as saying that the other crime is a lesser-included offense.

[T25] During the instruction conference in the trial court, appellant's attorney argued that "one cannot confine a person with the intent to facilitate the commission of a felony without also committing false imprisonment [slo the difference between the two crimes, I believe, is the intent to commit a felony." The State countered that argument by reciting the two statutes and simply arguing that the elements of false imprisonment are not a subset of the elements of kidnapping. The State also argued that, even if it were a lesser-included offense, the evidence did not support an acquittal as to kidnapping and a guilty verdiet as to false imprisonment.

[T26] In his appellate brief, appellant argues that Doud implies that false imprisonment is a lesser-included offense of kidnapping. Citing Keffer, 860 P.2d at 1135, he also contends that the "jury function approach" requires the giving of a lesser-included offense instruction whenever there is any evidence from which the jury rationally could conviet of the lesser offense. The State responds with the contention that false imprisonment, unlike kidnapping, contains the element of "knowingly," and that, therefore, the elements of false imprisonment are not a subset of the elements of kidnapping. The State also argues that, even if false imprisonment is a lesser-included offense of kidnapping, a lesser-included offense instruction was not appropriate in this case because, given the sole defense of consent, the jury rationally could not find appellant not guilty of kidnapping but guilty of false imprisonment.

[127] Juxtaposition of the two elements instructions quickly reveals that the first three elements of each are identical. Thereafter, however, the elements of the two crimes are not readily compared. The easiest observation is the one made in Doud, 845 P.2d at 406, that kidnapping, unlike false imprisonment, has an additional specific intent element. Parsing of the two statutes beyond that observation leads to the conclusion that false imprisonment is a lesser-included offense of kidnapping if (1) the term "confines" in the kidnapping statute incorporates the concept of "restrains another so as to interfere substantially with his liberty" in the false imprisonment statute, and (2) the word "knowingly" in the false imprisonment statute is incorporated into the specific intent element of the kidnapping statute.

[128] Unfortunately, neither party in this appeal has made much effort to pursue this analysis. Appellant, without citing to authority and without exploring definitions of terms in his appellate brief, simply argues as follows:

It is obvious that false imprisonment is a lesser-included offense of kidnapping, not only because of the analysis provided in Doud, but also because of the statutory element test. Under false imprisonment, a person has to knowingly and unlawfully restrain another so as to interfere substantially with his freedom. As to the kidnapping charge against Mr. Dean, Mr. Dean had to unlawfully confine another person, with the additional element of confining that person with the intent to facilitate commission of a felony. Both offenses require the person to do it unlawfully. False imprisonment requires a person to do it knowingly, and kidnapping requires a person to do it with intent, which inherently includes a "knowingly" element. To be able to confine someone, you have to first restrain them. Confining someone obviously substantially interferes with her liberty. All of the elements of false imprisonment are a subset of the greater offense of kidnapping, i.e. are contained within the offense of kidnapping.

[129] The State's analysis is equally assumptive. Also without citing to authority and without exploring definitions of terms, the State simply concludes that the elements of false imprisonment are not an identical subset of the elements of kidnapping because false imprisonment includes the word "knowingly." The State makes no attempt to explain why the concept of "knowingly" is not contained in the concept of "with intent."

[130] We hold that false imprisonment is a lesser-included offense of kidnapping, insofar as statutory elements are concerned. One authority suggests that, with the exception of Wisconsin, the courts of other states agree with this conclusion. Wade R. Habeeb, Annotation, False Imprisonment as Included Offense Within Charge of Kidnapping, 68 A.L.R.3d 828, 828 (1976). Needless to say, however, statutory variance across the country leaves many cases having little precedential value. See, for example, State v. Tschilar, 200 Ariz. 427, 27 P.3d 331, 340-41 (2001); Williamson v. State, 510 So.2d 335, 337-38 (Fla.App.1987), overruled by State v. Sanborn, 533 So.2d 1169 (Fla.1988); Raysor v. State, 191 Ga.App. 422, 382 S.E.2d 162, 163 (1989); and State v. Lancaster, 137 N.C.App. 37, 527 S.E.2d 61, 66 (2000).

[131] One case that does provide some guidance is State v. Carter, 232 Kan. 124, 652 P.2d 694 (1982). The Kansas kidnapping statute defined that offense as " 'the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person'" for certain identified purposes. Id. at 696 (quoting K.S.A. 21-3420). "Unlawful restraint" was statutorily defined as " 'knowingly and without legal authority restraining another so as to interfere substantially with his liberty'" Carter, 652 P.2d at 696 (quoting K.S.A. 21-3424(1)). The Kansas Supreme Court reversed the defendant's kidnapping conviction because the trial court did not instruct the jury that unlawful restraint was a lesser-included offense of kidnapping. Carter, 652 P.2d at 696. Similarities between the Kansas statutes and Wyoming's statutes include both use of the words "confine" and "restrain," and a specific intent element of kidnapping compared to the mental state of "knowingly" in the lesser offense.

[132] To "confine" means to "hold within a location" or to "imprison." Merriam-Webster's Collegiate Dictionary 242 (10th Ed.1999). To "restrain" means to "deprive of liberty; esp: to place under arrest or restraint...." Id. at 999. Certainly, these concepts are so similar that it can be said that the act of confining a person (kidnapping) incorporates the act of restraining that person (false imprisonment). To that extent, the latter crime is a lesser-included offense of the former..

[133] As mentioned above, the Kansas Supreme Court also concluded that unlawful restraint is a lesser-included offense of kidnapping despite inclusion of the word "knowingly" in the lesser offense. Carter, 652 P.2d at 696. In a similar situation, although involving the crimes of burglary and criminal entry, we have reached the same conclusion. Keller, 777 P.2d at 383-85. Keller was charged with burglary under Wyo. Stat. Ann. § 6-3-801(a) (June 1983 Repl.), which provided as follows:

"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."

Keller, 771 P.2d at 381 (emphasis added). Criminal entry, as found in Wyo. Stat. Ann. § 6-3-302(a) (June 1983 Repl.), provided as follows:

"A person is guilty of criminal entry if, without authority, he knowingly enters a building, occupied structure, vehicle or cargo portion of a truck or trailer, or a separately secured or occupied portion of those enclosures."

Keller, 771 P.2d at 384 (emphasis added). We held that criminal entry is a lesser-included offense of burglary and we reversed one of Keller's burglary convictions for failure of the district court to so instruct the jury. Id. at 385. We reached a similar conclusion in Eatherton v. State, 761 P.2d 91, 95 (Wyo.1988), where proof of the specific intent element of burglary was "sufficiently in dispute. ..." See also Collins v. State, 854 P.2d 688, 698-99 (Wyo.1993) and Mirich v. State, 593 P.2d 590, 592-93 (Wyo.1979).

[134] Under the statutory elements test, false imprisonment is a lesser-included offense of kidnapping. Therefore, a lesser-included offense instruction should be given where there is some evidence to support it and the jury rationally could acquit on the kidnapping charge and convict on false imprisonment. See, for example, Houghton, 6 P.3d at 647, Keller, 771 P.2d at 384-85; Jahnke v. State, 692 P.2d 911, 917-22 (Wyo.1984); and Selig, 635 P.2d at 792. The jury instruction should not be given, however, where the facts and the defense are such that the defendant, if guilty at all, is guilty of the greater offense. See, for example, Sanders, 7 P.3d at 894 (manslaughter instruction inappropriate in prosecution for first-degree murder where consent of victim is not a defense to the greater crime); Bloomquist, 914 P.2d at 822 ("all-or-nothing" defense of proximate cause made lesser-included offense instruction improper in aggravated vehicular homicide prosecution); Warren v. State, 835 P.2d 304, 309-10 (Wyo.1992) (instruction that battery is a lesser-included offense of aggravated assault improper where defense is "I didn't do anything"); Carey, 715 P.2d at 249 (lesser-included offense instruction not to be given in sexual assault case where only defense is consent, leaving defendant either guilty or not guilty of the greater offense); Seeley v. State, 715 P.2d 232, 238-40 (Wyo.1986) (lesser-included offense instruction not to be given 'in sexual assault prosecution where only defense is there was no sexual contact); and Eckert v. State, 680 P.2d 478, 481 (Wyo.1984) (all-or-nothing defense of self-defense precludes instructing jury that manslaughter is a lesser-included offense of second-degree murder).

[T35] While we disagree with the trial court's conclusion that the elements of false imprisonment are not a subset of the elements of kidnapping, we agree with its conclusion that a lesser-included offense instruction was inappropriate in this particular case. The trial court correctly compared the present facts to those in Carey, 715 P.2d at 249, where the sole defense of consent in a sexual assault trial left the jury with but two alternatives-guilty or not guilty of the greater offense.

Did the trial court err in refusing to instruct the jury that sexual battery is a lesser-included offense of both first-degree and third-degree sexual assault?

[136] In addition to kidnapping, appellant was charged with one count of first-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(ii) (LexisNexis 2003) and two counts of third-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-304(a)(ii) (LexisNexis 2003). The first-degree sexual assault charge alleged digital penetration of the victim's vagina. The third-degree sexual assault charges alleged, respectively, fondling of the victim's breasts and forced masturbation of appellant. At the instruction conference, defense counsel asked the trial judge to instruct the jury that the crime of sexual battery is a lesser-included offense of both first-degree and third-degree sexual assault. Counsel argued that it was impossible for appellant to have committed the charged crimes without having committed sexual battery, and he identified "the threat and the belief in the threat" as the elements distinguishing the greater offenses from the lesser offense.

[137] The trial court's rationale for rejecting appellant's proposed sexual battery instruction was identical to its rationale for rejecting the proposed false imprisonment instruction: the elements of the lesser offense were not a subset of the elements of the greater offenses, the evidence would not justify conviction of the lesser offense, and proof of the distinguishing elements was not sufficiently in dispute Again relying on Carey, 715 P.2d at 249, the trial court specifically determined that the sexual battery instruction was not appropriate because appellant's sole defense of consent left the jury with but two alternatives-guilty of the greater offense or not guilty.

[138] The elements of the crime of first-degree sexual assault, as contained in the instruction given to the jury in this case, which jury instruction appears to have been based on Wyoming Criminal Pattern Jury Instruction No. 28.02B, and to which there was no objection, are as follows:

1. On or between the dates of July 21 and July 22, 2001;
2. In Johnson County, Wyoming;
3. The defendant, Dale William Dean, Sr.;
4. Inflicted sexual intrusion on the victim ... by penetrating her vagina with his finger(s); and
5. The defendant caused submission of [the victim] by threat of death, and/or threat of serious bodily injury, and/or threat of extreme physical pain; and
6. [The victim] reasonably believed that the defendant had the present ability to execute such threat(s).

[139] The jury was instructed that the elements of the first count of third-degree sexual assault were as follows:

1. On or between the dates of July 21 and July 22, 2001;
2. -In Johnson County, Wyoming;
The defendant, Dale William Dean, Sr.; &
4. Inflicted sexual contact on the victim ... to her breast(s); and '
5. The defendant caused submission of [the victim] by threat of death, and/or threat of serious bodily injury, and/or threat of extreme physical pain; and
6. [The victim] reasonably believed that the defendant had the present ability to execute such threat(s).

The elements instruction for the second count of third-degree sexual assault was identical, except that "by forcing the victim to masturbate the defendant" was substituted for "to her breast(s)" in the fourth element. In addition, the jury was given the statutory definitions of "sexual intrusion" and "sexual contact."

[T40] Appellant offered three separate sexual battery instructions as lesser-included offenses to the three charged sexual assault crimes. The first three elements of these instructions were identical to one another and identical to the first three elements of the elements instructions for the charged crimes. The fourth and final element of the proposed instruction as it pertained to the alleged first-degree sexual assault, read as follows: "Unlawfully subjected [the victim] to sexual contact by penetrating her vagina with his finger." The lesser-included offense instructions pertaining to the alleged third-degree sexual assaults substituted, respectively, "by fondling her breasts" and "by forcing her to touch his genitals."

[T41] Appellant's contentions on this issue in his appellate brief mirror those he made in the trial court. First, he argues that the elements of sexual battery are a subset of the elements of the greater crimes. Second, he contends that one cannot commit first- or third-degree sexual assault without committing sexual battery. Third, he opines that it is inherent in the first-degree sexual assault statute that the sexual intrusion is done unlawfully. And fourth, he suggests that the jury could have disbelieved that he threatened the victim or disbelieved that the victim reasonably believed the threat, yet believed that he unlawfully subjected her to sexual contact.

[M42] The State's response to appellant's position, in both the trial court and in this appeal, is meager, at best. During the instruction conference, the prosecutor argued only very briefly that sexual battery "is most certainly not a subset" of first- or third-degree sexual assault, and that there was no evidence to support the giving of the lesser-included offense instructions. In its appellate brief, the State presented only a page- and-a-half discussion of this issue in taking the following position:

The district court ruled that sexual battery is not a lesser included offense of first or third degree sexual assault. ... Howeyver, regardless of whether it was correct in that determination, the trial court properly declined to give the sexual battery instruction because Appellant claimed his victim consented to the sexual encounters and the jury, accordingly, could not have acquitted him, on that basis, of first or third degree sexual assault but convicted him of sexual battery based on the evidence before it.

[148] Because the question has not properly been briefed and presented to this Court, we decline to decide at this time whether the elements of the crime of sexual battery are a subset of the elements of the crimes of first- and third-degree sexual assault for the purpose of giving lesser-included offense instructions. We will, however, affirm the trial court's refusal to instruct the jury that sexual battery is a lesser-included offense of either first- or third-degree sexual assault because the trial court was correct in concluding that appellant's admission that the sexual conduct had occurred, combined with his sole defense of consent, left the jury with but two alternatives-guilty of the greater offenses or not guilty.

[T44] For example, appellant admitted the digital penetration that was the basis for the charge of first-degree sexual assault. However, he denied any threat or force, and contended that the act was consensual. Choosing from the facts presented, the jury could either find him guilty of first-degree sexual assault or not guilty. There was no evidence of some other unlawful sexual contact upon which the jury could have based a finding of guilt of sexual battery. The same analysis also applies to both charges of third-degree sexual assault.

Was the evidence sufficient to convict appellant of each charge?

[145] We recently restated our well-established standard for reviewing sufficiency of the evidence claims:

"When reviewing a sufficiency of the evidence claim in a criminal case, we must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. We do not consider conflicting evidence presented by the unsuccessful party, and afford every favorable inference which may be reasonably and fairly drawn from the successful party's evidence. We have consistently held that it is the jury's responsibility to resolve conflicts in the evidence. 'We will not substitute our judgment for that of the jury, ... our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did.'' [Bloomquist v. State, 914 P.2d 812, 824 (Wyo.1996).]"

Urbigkit v. State, 2003 WY 57, ¶ 44, 67 P.3d 1207, 1225 (Wyo.2003) (quoting Williams v. State, 986 P.2d 855, 857 (Wyo.1999)). See also Miller v. State, 2003 WY 55, ¶¶ 22-23, 67 P.3d 1191, 1197 (Wyo.2003) and Cureton v. State, 2003 WY 44, ¶ 6, 65 P.3d 1250, 1252 (Wyo.2003).

[T46] Appellant claims that the State failed to prove at least one element of each charged crime and that the victim's "version of events just does not logically make sense." He contends that the evidence shows that, although he had a gun at all times, he did not threaten to use it, nor did he ever say he would harm the victim. He also contends that the evidence shows that the victim had several opportunities to escape or obtain assistance. Further, he argues that he removed the handcuffs the first time they stopped, which "presumably" was in Campbell County, so there was no evidence of unlawful confinement in Johnson County. Appellant's argument that proof of kidnapping was lacking can be summed up in his assertion that "[the victim] chose to stay with Mr. Dean, even if that was due to her mistaken belief that Mr. Dean would somehow harm her."

[147] As to the alleged sexual assaults, appellant contends that the State failed to prove that he caused the victim's submission by threat of death, serious bodily injury, or extreme physical pain. Once again, he argues that he never verbally threatened the victim and that his actions did not threaten her "in any menacing way." Finally, appellant argues that the evidence is insufficient to show reasonable apprehension on the victim's part.

[148] Without restating the facts detailed earlier herein, and without restating the standard of review for sufficiency of the evidence, we can state with no hesitation that acceptance of appellant's arguments would require us to ignore the former and to stand the latter on its head. Our standard of review requires us to accept the State's evidence and to ignore the evidence in conflict therewith, not vice versa. Appellant's argument to this Court is nothing short of an assertion that the jury should have believed him rather than the victim.

[149] Contrary to what appellant suggests, the record is replete with evidence from which a reasonable jury could conclude beyond a reasonable doubt that the victim was kidnapped and sexually assaulted. The victim testified that appellant abducted her in the nighttime, at gunpoint, forced her face-down into his van, handcuffed her, and drove her out of Gillette toward Buffalo. She further testified that, along the way, he repeatedly displayed the gun and that she had sexual relations with him against her will because she feared he was going to kill her. Finally, she also testified that her first real opportunity to escape was in the restaurant where she asked the waitress to call the police. The jury chose to believe the victim and it is not for us to second-guess that decision.

Was appellant denied his right to a speedy trial pursuant to W.R.Cr.P. 48 when the trial was not held within 120 days after the date of arraignment?

[150] A criminal defendant's right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Wyo. Const. art. 1, § 10. Almada v. State, 994 P.2d 299, 304 (Wyo.1999). This Court has adopted W.R.Cr.P. 48(b) as a procedural mechanism for enforcing this constitutional right. Almada, 994 P.2d at 304. Speedy trial issues are reviewed de novo by this Court. Vargas v. State, 963 P.2d 984, 989 (Wyo.1998).

[§51] Speedy trial violations may be alleged as procedural violations of W.R.Cr.P. 48(b) or as substantive constitutional violations. See, for example, Vlahos v. State, 2003 WY 103, ¶¶ 12-24, 75 P.3d 628, 632-35 (Wyo.2003) (rule analysis); Rodiack v. State, 2002 WY 137, ¶ 10, 55 P.3d 1, 3 (Wyo.2002) (rule analysis); Hauck v. State, 2001 WY 119, ¶ 12, 36 P.3d 597, 600 (Wyo.2001) (rule and constitutional analysis); Taylor v. State, 2001 WY 13, ¶ 6, 17 P.3d 715, 718 (Wyo.2001) (rule analysis); Jennings v. State, 4 P.3d 915, 921 (Wyo.2000) (constitutional analysis); Campbell v. State, 999 P.2d 649, 655 (Wyo.2000) (constitutional analysis); Almada, 994 P.2d at 304-05 (rule and constitutional analysis); and Vargas, 963 P.2d at 992 (constitutional analysis). In the instant case, appellant has not presented a substantive constitutional analysis, but relies solely on an alleged violation of W.R.Cr.P. 48(b). Thus, our review also will be so limited.

[T52] The dictates of W.R.Cr.P. 48(b) are mandatory. Rodiack, 2002 WY 137, ¶ 9, 55 P.3d at 3; Taylor, 2001 WY 13, ¶ 8, 17 P.3d at 718. Neither party in the instant case disputes that proposition. Rather, the present issue is which version of W.R.Cr.P. 48(b) applies As originally adopted, the relevant sections of the rule read as follows:

(2) A criminal charge shall be brought to trial within 120 days following arraignment unless continued as provided in this rule.
(6) Any criminal case not tried or continued as provided in this rule shall be dismissed 120 days after arraignment.

W.R.Cr.P. 48(b)(2) and (6). Effective September 1, 2001, the relevant sections were amended to read as follows:

(2) A criminal charge shall be brought to trial within 180 days following arraignment unless continued as provided in this rule.
(5) Any criminal case not tried or continued as provided in this rule shall be dismissed 180 days after arraignment.

W.R.Cr.P. 48(b)(2) and (5).

[153] The effective date of the rule's amendment, September 1, 2001, is significant because of the following chronology of events in the instant case:

July 23, 2001 Arrest
August 2, 2001 Bound over to district court
August 21, 2001 Demand for speedy trial filed
September 11, 2001 District court arraignment
September 14, 2001 Scheduling order setting trial for February 19, 2002
February 19, 2002 Jury trial

[154] The effective date of the amendment to W.R.Cr.P. 48(b) was forty days after appellant was arrested and ten days before he was arraigned. At the arraignment, the trial was scheduled for February 19, 2002-161 days later. Clearly, that date met the requirements of the new rule, but not the old rule. The question is whether the rule in effect at the time of appellant's arrest or the rule in effect at the time of his arraignment applies to this case.

[T55l Generally, amendments to court rules apply prospectively, but amendments that are procedural, rather than substantive, apply to pending actions, so long as they do not affect substantive rights. 20 Am.Jur.2d Courts § 53 at 372 (1995); 21 C.J.S. Courts § 133 at 155 (1990). See, for example, Graf v. Whitaker, 192 Ariz. 403, 966 P.2d 1007, 1009 (1998) (court rule controlled manner, but not substance, of right to appeal from arbitration award); In re Cameron T., 190 Ariz. 456, 949 P.2d 545, 547-49 (1997) (court rule fixed procedural method for asserting substantive rights in juvenile proceeding); State v. Maxey, 125 Idaho 505, 873 P.2d 150, 153 (1994) (how courts rule on waiver of right to counsel is procedural rather than substantive, so court rule prevails over statute); State v. Templeton, 107 Wash.App. 141, 27 P.3d 222, 225-26 (2001), rev'd on other grounds, 148 Wash.2d 193, 59 P.3d 632, 646 (2002) (court rule concerning accrual of right to counsel is procedural); and Abad v. Cozza, 128 Wash.2d 575, 911 P.2d 376, 383 (1996) (court may adopt rules to carry out statutory deferred prosecution scheme so long as rules do not diminish statutory or constitutional right). Long ago, we distinguished substantive law from procedural law:

*** * * It may * * * be assumed that the term "substantive law" is not mathematically exact, but as respects both the terms "procedure" and "substantive law" there is a possible twilight zone. Examination of many authorities leads me to conclude that substantive law as constitutionally, legislatively and judicially recognized, includes those rules and principles which fix and declare the primary rights of individuals as respects their persons and their property, and quite generally as fixing the type of remedy available in case of invasion of those rights,. As to the term "procedure," I conceive it to include those rules and forms applicable in the administration of the remedies available in cases of invasion of primary rights of individuals in Courts or other lawfully constituted tribunals and agencies. Such rules include both pleading and practice, including all rules and forms which govern the parties, their counsel and the Court throughout the progress of the case from the time of its initiation until final judgment and its exe-ecution. * * ** [Kellman v. Stoltz, 1 F.R.D. 726, 728 (N.D.Iowa 1941).]"
Briefer definitions will perhaps suffice for our purposes here:
** * * The substantive law is that part which creates, defines, and regulates rights as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtaining redress for their invasion. * * *" Mix v. Board of Com'rs of Nez Perce County, 18 Idaho 695, 112 P. 215, 220. 'Courts generally agree in defining the terms "substantive" and "adjective" that "substantive" law creates, defines, and regulates rights as opposed to "adjective" or "procedural" law which provides the method of enforcing and protecting such duties, rights, and obligations as are created by substantive laws. * * *" In re McCombs' Estate, Ohio Prob., 80 N.E.2d 573, 586."
More specific to the present question, the court said in Ogdon v. Gianakos, 415 Ill. 591, 114 N.E.2d 686, 689, that "procedure" is the machinery for carrying on the suit, including pleading, process, evidence, and practice, and held that a statute relating to the proper method of obtaining jurisdiction in respective instances was a part of the law of procedure and not of substantive law. Similarly, in the case before us, the question of the requirement of serving upon the other parties a demand for a trial by jury is one of procedure and is governed by the rules.

State ex rel. Frederick v. District Court of Fifth Judicial Dist. In and For Big Horn County, 399 P.2d 583, 585 (Wyo.1965). We have continued to adhere to these definitions. See, for example, Sheneman v. Division of Workers' Safety and Compensation Internal Hearing Unit, 956 P.2d 344, 350 (Wyo.1998) and Smithco Engineering, Inc. v. International Fabricators, Inc., 775 P.2d 1011, 1018 (Wyo.1989). Other courts follow similar definitions in evaluating the application of court rules. See, for example, Roddy v. County of Maricopa, 184 Ariz. 625, 911 P.2d 631, 633 (1996).

[156] While we have not previously specifically addressed the question of whether W.R.Cr.P. 48(b) is substantive or procedural, we have suggested the answer by repeatedly referring to the rule as a "procedural mechanism" for enforcing the constitutional speedy trial right. See, for example, Taylor, 2001 WY 13, ¶ 8, 17 P.3d at 718; Almada, 994 P.2d at 304; Detheridge v. State, 963 P.2d 233, 235 (Wyo.1998); and Yung v. State, 906 P.2d 1028, 1032 (Wyo.1995). It was not the purpose of W.R.Cr.P. 48(b) to create a speedy trial right or to define or embody the existing constitutional right. Rather, the purpose of the rule was to provide the trial courts with a procedure for implementing the right and to provide this Court with another means of measuring compliance.

[157] We recognize that amendments to court rules should not be retroactively applied to the prejudice of the parties. Certainly, a showing of prejudice or actual interference with the constitutional speedy trial right by application of the 180-day rather than the 120-day setting period might require additional analysis. Appellant has not, however, presented substantive constitutional arguments, "apparently because this time period is not presumptively prejudicial or significantly long and would not be found to violate his constitutional rights absent a showing of prejudice." Taylor, 2001 WY 13, ¶ 6, 17 P.3d at 718.

[158] We conclude that the trial court did not violate W.R.Cz.P. 48(b) when it set the jury trial within 180 days after the arraignment and held the trial within 161 days after the arraignment. As a rule establishing court procedures, the amended version of W.R.Cr.P. 48(b) was in effect when appellant was arraigned, and the trial was set within the time allowed by the rule.

CONCLUSION

[T 59] The trial court did not err in refusing to instruct the jury that false imprisonment is a lesser-included offense of kidnapping nor in refusing to instruct the jury that sexual battery is a lesser-included offense of both first-degree and third-degree sexual assault. There was sufficient evidence to con-viet appellant of each charge and appellant was not denied his right to a speedy trial.

[1 60] We affirm.

      . The Blockburger test, originally meant for double jeopardy analysis, provided as follows:
      The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
      Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . Wyo. Stat. Ann. § 6-2-201 states, in pertinent part:
      (a) A person is guilty of kidnapping if he unlawfully removes another from his place:of residence or business or from the vicinity where he was at the time of the removal, or if he unlawfully confines another person, w1th the intent to:
      (i) Hold for ransom or reward, or as a shield or hostage;
      (ii) Facilitate the commission of a felony;
      or
      (iif) Inflict bodily injury on or to terrorize the victim or another.
      (b) A removal or confinement is unlawful if it is accomplished:
      (i) By force, threat or deception; or
      (ii) Without the consent of a parent, guardian or other person responsible for the general supervision of an individual who is under the age of fourteen (14) or who is adjudicated incompetent.

      . We have not been asked to determine the propriety of the alternative allegation in the final element.

      . Wyo. Stat. Ann. § 6-2-203(a) states: "A person is guilty of false imprisonment if he knowingly and unlawfully restrains another so as to interfere substantially with his liberty."

      . Appellant admitted that the victim accompanied him from Gillette to Buffalo and that they had sexual relations, but he contended that such was with the victim's consent.

      . Wyo. Stat. 2003) states: Ann. § 6-2-202(a) (LexisNexis
      A person is guilty of felonious restraint if he knowingly:
      %) Restrains another unlawfully in circumstances exposing him to risk of serious bodily injury, or
      (ii) Holds another in a condition of involuntary servitude.

      . As charged in this case, Wyo. Stat. Ann. § 6-2-302(a) provides, in pertinent part:
      Any actor who inflicts sexual intrusion on a victim commits a sexual assault in the first degreeaif:;

      (i) The actor causes submission of the victim by threat of death, serious bodily injury, [or] extreme physical pain ... and the victim reasonably believes that the actor has the present ability to execute these threats[.]

      . As charged in this case, Wyo. Stat. Ann. § 6-2-304(a) provides, in pertinent part:
      An actor commits sexual assault in the third degree if, under circumstances not constituting sexual assault in the first or second degree:

      (iii) The actor subjects a victim to sexual contact [by causing submission of the victim by threat of death, serious bodily injury or extreme physical pain, and the victim reasonably believes that the actor has the present ability to execute these threats] without inflicting sexual intrusion on the victim and without causing serious bodily injury to the victim.

      . Wyo. Stat Ann. § 6-2-313(a) (LexisNexis 2003) states: "Except under circumstances constituting a violation of W.S. 6-2-302 through 6-2-304, 6-2-502 or 14-3-105, an actor who unlawfully subjects another person to any sexual contact is guilty of sexual battery."

      . Wyo. Stat. Ann. § 6-2-301(a)(vii) (LexisNexis 2003) states:
      "Sexual intrusion" means:
      (A) Any intrusion, however slight, by any object or any part of a person's body, except the mouth, tongue or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification or abuse; or
      (B) Sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse with or without emission.

      . Wyo. Stat. Ann. § 6-2-301(a)(vi) states:
      "Sexual contact" means touching, with the intention of sexual arousal, gratification or abuse, of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or of the clothing covering the immediate area of the victim's or actor's intimate parts[.]

      . An appropriate analysis would require, at least, (1) delving into the definitions of statutory terms such as "sexual intrusion" and "sexual contact," and (2) discussing how "unlawfully" in sexual battery is included in the greater offenses when the sexual battery statute specifically excludes the unlawful circumstances identified in the greater offenses. Citations to authority would help.

      . In making this argument, appellant has chosen to ignore the victim's testimony that, after refusing to move into the rear of the van with appellant, she relented and did so when he said, "Am I going to have to use the gun and the handcuffs again?"

      . Appellant did not testify at trial, despite his presentation of this case as a credibility contest between him and the victim. His version was presented through cross-examination of the victim and of police officers who had interviewed him and the victim.

      . In his appellate brief, appellant makes brief mention of the concept of submission without resistance in analyzing the issue of consent, but he does not present much argument that he mistook a lack of resistance for consent. His primary argument is that he did not use force or threats and that the victim actually consented. See Seeley, 715 P.2d at 240-41.

      . We say "another" because we also have adopted the four-part constitutional test articulated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See, for example, Vargas, 963 P.2d at 992.

      . There is an argument to be made that application of the amended rule in the instant case is not even retroactive inasmuch as it was in effect before the district court arraignment took place.