author: Judge PLANK. Judge JONES

text:
    In re the MARRIAGE OF Eleanor ATENCIO, Appellee, and Leroy Carmen Atencio, Appellant.
    No. 01CA0347.
    Colorado Court of Appeals, Div. II.
    March 28, 2002.

      Colorado Legal Services, Lynn Magalska, Pueblo, Colorado, for Appellee.
    Margaret L. Herdeck, Pueblo, Colorado, for Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.

   Opinion by

Judge PLANK.

In this dissolution proceeding, the main issue is whether imputed income based on voluntary underemployment or actual income should be used to calculate child support where a drug-addicted parent loses employment because of that addiction and obtains less lucrative employment. We conclude that income should not be imputed solely based on the fact that the parent was terminated for drug use. Therefore, we reverse the permanent orders awarding Eleanor Atencio (mother) child support and arrearag-es and remand for further proceedings on this issue. We affirm that portion of the permanent orders obliging Leroy Carmen Atencio (father) to pay mother maintenance.

At the dissolution of their eighteen-year marriage, the parties were in their late forties and had two teenage children. Mother worked part-time in a low paying job for a hospital and cared for the children, while father was employed by a railroad continuously until 1993. Until that time, father's income, supplemented by mother's more meager earnings, provided a comfortable lifestyle that included home ownership and vacations.

In 1993, father was suspended for violating the company policy prohibiting drug use, and he entered a drug rehabilitation program. The railroad reinstated him, but after another suspension and reinstatement, he was finally terminated in 2000 for tampering with his urinalysis. In his last year of employment at the railroad, father's gross income after adjusting for per diem payments was approximately $55,000, or $4583 per month. At the time of permanent orders, father had secured alternative employment earning a monthly gross income of only $2197.

For purposes of child support, the court found that father was voluntarily underemployed and imputed a monthly gross income of $4588 based on his last year of work at the railroad. The court calculated mother's income on the basis of her actual part-time monthly gross income of $1119. Based on these income figures, the court ordered father to pay child support of $976 per month and entered judgment for child support due during the pendency of the proceeding in the amount of $31,720.

The court found that because the marital home was lost to foreclosure, mother was awarded very little marital property that was accessible before retirement. Because she lacked sufficient property and was unable to support herself through appropriate employment, the court awarded her maintenance of $200 per month for two years.

L.

Father raises three issues concerning child support.

A.

Father first contends that the trial court erred in finding that he was voluntarily underemployed. He argues that the court failed to consider the totality of the cireum-stances. He also argues that because he was able to find alternative, albeit less lucrative, employment, and because he has no control over his drug addiction, his underemployment was not "voluntary." We agree that this issue must be reconsidered on remand.

We review child support orders for abuse of discretion because the issue of the parents' financial resources under §$ 14-10-115, C.R.S.8.2001, is factual in nature. In re Marriage of Balanson, 25 P.3d 28 (Colo.2001). Abuse of discretion occurs only when the trial court's decision as to child support is manifestly arbitrary, unreasonable, or unfair. People ex rel. Cerda v. Walker, 32 P.3d 628 (Colo.App.2001). Thus, we will not disturb the factual findings as to imputation of income unless they are clearly erroneous and not supported by the record. In re Marriage of Bregar, 952 P.2d 783 (Colo.App.1997). However, we review de novo whether the trial court applied the correct legal standard to its findings. See People v. Haley, 41 P.3d 666 (Colo.2001).

The trial court is authorized to calculate child support based upon a determination of a parent's potential income if the parent is voluntarily unemployed or underemployed. Section 14-10-115(7)(a),(b)(D, C.R.S.2001; In re Marriage of Foss, 30 P.3d 850 (Colo.App.2001). Whether a parent is voluntarily underemployed is typically a question of fact. In re Marriage of Martin, 42 P.3d 75 (Colo.App.2002).

What constitutes "voluntary" underemployment has not been specifically addressed in the existing decisional law in this state until today. In an opinion announced simultaneously with ours, another division of this court holds that a person who is involuntarily terminated from employment does not intend or choose to become unemployed, and therefore the person is not, for that reason alone, voluntarily unemployed or underemployed within the meaning of § 14-10-115(7), C.R.9.2001. People in Interest of J.R.T., - P.3d -, 2002 WL 464726 (Colo.App. No. 00CA1892, March 28, 2002). We agree with that general interpretation, even under the additional facts involved in this case.

The more specific issue here, whether loss of employment due to addiction and reemployment at a lower wage constitutes voluntary underemployment, has not been addressed by Colorado appellate courts. However, courts in other jurisdictions with similar underemployment statutes have concluded that even though taking drugs was voluntary, the resulting reduction in income after a job loss was not voluntary or deliberate. See Pace v. Pace, 135 Idaho 749, 24 P.3d 66 (Ct.App.2001)(no income imputed under "voluntarily underemployed" statute where addicted mother lost job; mother was not motivated in her abuse of preseription medication by a desire to shed her parental responsibilities); In re Marriage of Johnson, 24 Kan.App.2d 631, 950 P.2d 267 (1997)(same result under statute providing for the imputation of income for "deliberate" underemployment, where father was terminated from job after testing positive for drug use; even though the father's use of drugs was voluntary, he did not intend any of the consequences of that voluntary conduct, such as his reduced ability to pay child support).

We agree with the reasoning in these cases and hold that when a parent is terminated from employment for drug use, the resulting unemployment or underemployment may not be considered voluntary for purposes of imputing income when calculating child support.

We reach this conclusion fully recognizing that in another context, the supreme court has rejected an attempt to use addiction to avoid responsibilities. See Tacorante v. People, 624 P.2d 1324, 1327-28 (Colo.1981)(in construing a statute that provides that a person is not criminally responsible for his or her conduct caused by intoxication that is not self-induced, court held that consumption of heroin by an addict causes self-induced, not involuntary, intoxication, and therefore the inability to refrain from drug use, by itself, did not warrant an involuntary intoxication instruction because "[mlere addiction is not sufficient to render the injection of heroin involuntary or unknowing," and that "carrying the appellant's argument to its logical conclusion results in an absurdity: a person so addicted to intoxicants that he is unable to refrain from their use could never be held responsible for his criminal conduct"). However, given the different factual and legal bases for that decision, we find it inapplicable here.

In holding that termination caused by drug use cannot be considered voluntary for purposes of imputing income, we do not mean to imply that a trial court cannot ultimately impute income in any case of drug use. A person who has been involuntarily terminated from a position for drug use may subsequently become voluntarily unemployed or underemployed based on actions taken after the termination. See People in Interest of J.R.T., supra (failure to attempt in good faith to obtain new employment at a comparable salary or refusal to accept suitable employment offers may support imputation of income); People in Interest of A.R.D., 43 P.3d 632 (Colo.App.2001)(affirming trial court decision that recognized that father's employment opportunities were likely limited as a result of his incarceration, but found that he had not presented any evidence of attempts to find more gainful employment, and therefore found voluntary underemployment and imputed income, at approximately twice the amount of his actual income, based on father's education, licensure, and experience). Thus, failure to treat the addiction could, in the trial court's discretion, be considered in this regard.

Here, the trial court applied an incorrect legal standard when it found that father was voluntarily underemployed for the sole reason that he "losftl his job at the [railroad] due to repeated drug abuse." Accordingly, on remand the trial court shall consider the reasonableness of father's post-termination attempts, if any, to obtain comparable employment and treatment for his addiction.

B.

Next, father contends that the trial court abused its discretion in ordering child support from February 1998 to November 2000, during the pendency of the proceeding. We disagree with this contention. |

If, on remand, the trial court again awards mother child support, an award during the pendency of the dissolution proceeding is proper. See § .14-10-115(1), C.R.8.2001 (trial court may order child support for the period of time from the separation, filing of the petition, or date of service, whichever is latest, to the date of entry of the support order).

C.

Father's final contention as to child support is that the trial court erred in failing to impute full-time income to mother, who worked only part-time. We decline to address this contention because father did not raise it before the trial court. See In re Marriage of Parsons, 30 P.3d 868 (Colo.App.2001)(issue may not be raised for the first time on appeal where the trial court has not had the opportunity to rule on them).

II.

Father also contends that the trial court erred in awarding maintenance because the award of $200 per month for two years, when added to his child support obligation, impoverishes him. We perceive no error.

An award of maintenance to mother is appropriate if she lacks sufficient property, including marital property awarded to her, to provide for her reasonable needs and is unable to support herself through appropriate employment. See § 14-10-114(1), CRS. 2001. The phrase "reasonable needs" has been liberally construed, and the determination of reasonable needs is dependent upon the particular facts and cireumstances of the marriage. In re Marriage of Olar, 747 P.2d 676 (Colo.1987).

The eligibility for, amount, and duration of maintenance depend upon a number of statutory factors, only one of which is the ability of the spouse from whom maintenance is sought to meet his or her own needs while meeting those of the spouse seeking maintenance. Section 14-10-114(@2), C.R.S8.2001; see In re Marriage of Fernstrum, 820 P.2d 1149 (Colo.App.1991)(statutory criteria used to determine the amount of a maintenance award set forth in § 14-10-114(2) may also be relevant equitable factors in determining the spouse's eligibility for maintenance). Indeed, the court was required to balance all the relevant factors listed in § 14-10-114(2), including mother's needs and abilities, her future earning capacity, the duration of the marriage and standard of living established throughout, and the parties' financial restrictions. In re Marriage of Staggs, 940 P.2d 1109 (Colo.App.1997).

Finally, absent an abuse of discretion, a trial court's award of maintenance will not be reversed, and when the order is supported by competent evidence, it should not be disturbed on review. In re Marriage of Sim, 939 P.2d 504 (Colo.App.1997).

Here, the record supports the conclusion that many of the factors listed in § 14-10-114(2) militate in favor of the $200 per month maintenance award. Mother's inability to meet her needs and her limited earning capacity, coupled with the long duration of the marriage and the standard of living established throughout, all fully support both her eligibility for and the amount of maintenance awarded. In view of the limited assets and incomes of both parties, the trial court's award equitably addressed the parties' financial difficulties. See People in Interest of V.H., 749 P.2d 460, 462 (Colo.App.1987)(no abuse of discretion in awarding $125 per month maintenance where father's financial affidavit revealed a gross monthly income of $1,750 and monthly expenses total-ling $1,658, including $200 per month for child support, and where the court found that "[tlhere's not enough money in this particular case to go around").

The judgment is affirmed as to maintenance, reversed as to child support and ar-rearages, and remanded for reconsideration of father's income for purposes of calculating child support.

Judge PIERCE concurs.

Judge JONES concurs in part and dissents in part.

Judge JONES

concurring in part and dissenting in part.

I respectfully dissent from Part I(A) of the majority opinion.

I disagree with the father that he has no control over his drug addiction and that his underemployment was not voluntary.

I am aware of the cases on which the majority relies for the general proposition that, even though a person's use of drugs is voluntary, the consequences of that conduct are not voluntary, even when, as here, the person is aware that the loss of a job is a certain consequence. See In re Marriage of Johnson, 24 Kan.App.2d 631, 950 P.2d 267 (1997); see also Pennington v. Pennington, 2001 WL 277993 (Tenn.App. No. W2000-00568-COA-R3-CV, March 14, 2001); Pace v. Pace, 135 Idaho 749, 24 P.3d 66 (App.2001). Under these cases, income cannot be imputed for deliberate underemployment.

However, through examination of the supreme court's stance on the voluntariness of addiction, as well as the child support cases involving the analogous situation of reduction in income caused by incarceration, I conclude that income may be imputed under the circumstances of this case.

In Tacorante v. People, 624 P.2d 1324 (Colo.1981), the supreme court construed a statute that provides that a person is not criminally responsible for his or her conduct caused by intoxication that is not self-induced. The court held that consumption of heroin by an addict causes self-induced, not involuntary, intoxication, and therefore the inability to refrain from drug use, by itself, did not warrant an involuntary intoxication instruction. The court specifically noted that "[mJlere addiction is not sufficient to render the injection of heroin involuntary or unknowing," and that "carrying the appellant's argument to its logical conclusion results in an absurdity: a person so addicted to intoxicants that he [or shel is unable to refrain from their use could never be held responsible for his [or her] criminal conduct." Tacorante v. People, supra, 624 P.2d at 1827-28.

This language sends a clear message that in Colorado, addicts are not absolved of their responsibilities. In contrast, in In re Marriage of Johnson, supra, the Kansas appeals court began with the opposite premise that even though the father's use of drugs was voluntary, he did not intend any of the consequences of that voluntary conduct, such as his reduced ability to pay child support. See also Pace v. Pace, supra (mother was not motivated in her abuse of prescription medication by a desire to shed her parental responsibilities); Pennington v. Pennington, supra (voluntary underemployment must result from an intent on the part of the parent to reduce or terminate his or her income). Thus, the reasoning in these cases is inconsistent with the Colorado supreme court's intolerance for attempting to use addiction to shirk responsibilities.

The two incarceration cases decided in Colorado have been resolved in the same vein, in that an incarcerated parent was given no relief from his child support obligation. See People in Interest of A.R.D., 43 P.3d 632 (Colo.App.2001)(father's employment opportunities were likely limited as a result of his incarceration, but he had not presented any evidence of attempts to find more gainful employment, and therefore court found voluntary underemployment and imputed income, at approximately twice the amount of his actual income, based on father's education, licensure, and experience); In re Marriage of Hamilton, 857 P2d 542 (Colo. of child support denied on the basis that father's incarceration was not a substantial and continuing cireumstance affecting the support obligation, and incarceration, standing alone, did not justify abatement or modification of father's obligation; trial court -erred in finding that father's criminal conviction constituted voluntary underemployment, but only because the scant evidence presented at trial could not sustain that determination, and that error was not grounds for reversal, because the denial of modification was otherwise supported).

In contrast, in Pace v. Pace, supra, the failure to impute income to the addicted mother was based, in part, on an incarceration case in the same jurisdiction, which held that a parent should be relieved of the obligation to pay child support during incarceration. See Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct.App.1988). Thus, inasmuch as the incarceration cases are analogous to the drug cases for purposes of voluntary underemployment, A.R.D. and Hamilton provide further support for affirming the trial court's imputation of income in this case.

Here, through the father's own voluntary action and intentional conduct, he has divested himself of his ability to earn his previous income. The record reveals that through his misconduct he had more than sufficient notice of the probable consequences of his voluntary behavior. He is responsible for his reduced financial cireumstances, and his duty to provide for the needs of his children should not be abrogated simply because he chose to ingest drugs. See Abrams v. Connolly, 781 P.2d 651 (Colo.1989)(a child has a legal right to support from both parents); People ex rel. Cerda v. Walker, supra (both parents have a duty to support a child to the best of their abilities). I can discern no reason to offer addicts a reprieve from their child support obligations when we would not do the same for an obligor who voluntarily walks away from his job. See In re Marriage of McCord, 910 P.2d 85 (Colo.App.1995)(income from job imputed to father who quit job after winning lottery). Unlike the obligor who is unemployed or faced with a reduction in pay through no fault of his own, the addicted person has control over his actions and should be held liable for the consequences.

Furthermore, I note that other debts are not forgiven, short of bankruptcy, simply because drug addiction results in an inability to pay them. Thus, from a policy standpoint, I can conceive of no sound reason for relieving an addicted parent of his or her obligation of support, for the sole reason of addiction.

This is not to say that other factors may not be weighed in determining underemployment, such as an obligor's efforts to find alternative employment. Here, however, the father did not present evidence as to his efforts to obtain higher-paying employment. Accordingly, I would hold that the trial court did not err in finding the father voluntarily underemployed and imputing his previous income.

I concur in Part I(B) and (C), and in Part II of the majority opinion. Thus, I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: Judge DAVIDSON.

license: Public Domain

text:
    In the Matter of the ESTATE OF Warren Frederick HEYN, Deceased. Vicki Ann White, as the Personal Representative of the Estate of Warren Frederick Heyn, Respondent-Appellant, v. Chamois Pierson-Andersen, Tiffany Sage Pierson, and Matthew Andersen, Petitioners-Appellees.
    No. 01CA0545.
    Colorado Court of Appeals, Div. V.
    March 28, 2002.

      Scobie & Morlang, L.L.C., Erik Morlang, Denver, Colorado, for Respondent-Appellant.
    Holland & Hart, Lawrence G. Katz, Denver, Colorado; Doun P. Alspaugh, Boulder, Colorado, for Petitioners-Appellees.
   Opinion by

Judge DAVIDSON.

In this probate action involving claims against the estate of Warren Frederick Heyn (decedent), respondent, decedent's daughter Vicki Ann White, as personal representative for the estate, appeals from the judgment of the probate court allowing certain claims of petitioners, Tiffany Sage Pierson, Chamois Pierson-Andersen (granddaughters), and Matthew A. Andersen. We affirm in part and reverse in part.

The probate court found as fact the following: Decedent had a second daughter, Lynn Marie Pierson, who died in April 1998, leaving two daughters, Tiffany Sage Pierson and Chamois Pierson-Andersen, the latter of which married Matthew Andersen. Decedent served as the personal representative of Pierson's estate and as trustee of the testamentary trust set up for his granddaughters. One of the trust assets was a condominium in Arizona, in which decedent resided with Pier-son prior to her death. Pierson's estate was closed on April 14, 1995, when the condominium was transferred to the trust for the benefit of the granddaughters. On February 11, 1998, ownership of the condominium was transferred from the trust to the granddaughters. During this period, and until shortly before his death in 2000, decedent continued to live in the condomintum.

In this action, the granddaughters alleged that decedent breached his fiduciary duty to them by living in the condominium without paying rent and asserted a claim against decedent's estate for the fair market rental value of the condominium. Respondent denied the claim. After a hearing, the probate court determined that the statute of limitations had expired on the claim for the period prior to April 14, 1995, when decedent was acting as executor of Pierson's estate. It also denied the claim for the period after February 11, 1998, when the granddaughters owned the condominium outright, finding that they had allowed their grandfather to live there rent-free. However, the court allowed the claim for the period from April 14, 1995 to February 11, 1998, when decedent was acting as the trustee.

In addition, all three petitioners asserted claims against decedent's estate for the value of three gift checks, in the amount of $10,000 each, which claims respondent also denied. Each petitioner was the named payee on a check drawn by respondent with power of attorney for decedent. Petitioners received the checks at the end of December 1999, and a notation at the bottom of each check read "1999 gift." Before petitioners attempted to cash the checks, however, respondent asked them to hold the checks. Petitioners agreed and did not cash the checks. After decedent died on January 8, 2000, respondent's husband asked petitioners to return the checks because they were no longer valid. One of the granddaughters returned her check, but the other two petitioners did not. Under decedent's will, the granddaughters were each to receive $1000, and the remainder of the estate was left to respondent. The probate court allowed the claims for the gift checks.

The probate court permitted respondent to introduce evidence on an unpled counterclaim seeking a setoff for amounts owed to decedent for performing his duties as trustee and personal representative. The court found that decedent had not intended to charge a fee for these services and entered judgment for petitioners.

I.

Respondent contends that the probate court's judgment for the granddaughters on the breach of fiduciary duty claim was erroneous because there was insufficient evidence that decedent did not pay rent to the trust and that he lived in the condominium during the period of trust administration. We disagree.

When asserting a breach of fiduciary duty claim like that here, a plaintiff need only demonstrate a fiduciary relationship and a transfer to or use of trust property by the fiduciary to raise a rebuttable presumption and establish a prima facie case. This showing requires the fiduciary to go forward with some evidence that the transaction was fair and reasonable. Then the trier of fact, here the probate court, must determine, based on all the evidence, whether the plaintiff has proven his or her claim of breach of fiduciary duty by a preponderance of the evidence. See Eads v. Dearing, 874 P.2d 474 (Colo.App.1993). See also Terrydale Liquidating Trust v. Barness, 642 F.Supp. 917 (S.D.N.Y.1986); Restatement (Third) of Trusts § 170 cmt. 1 (1990).

Findings of fact will not be set aside unless they are clearly erroneous, having no support in the record, see C.R.C.P. 52; Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095 (Colo.1998), and when reviewing the sufficiency of evidence to support a judgment, we must view the evidence in the light most favorable to the prevailing party. See People in Interest of D.L.R., 638 P.2d 39 (Colo.1981).

The granddaughters concede that their testimony that decedent lived in the condominium should have been excluded under the dead man's statute, § 18-90-102(1), C.R.S. 2001. Thus, we will not consider that testimony. However, contrary to respondent's assertions, the record contains other competent evidence that decedent made personal use of the condominium during the period of trust administration.

The evidence included an instrument of distribution that transferred Pierson's interest in the condominium from decedent as personal representative to decedent as trustee on the first day of trust administration and a warranty deed that transferred the property from decedent as trustee to the granddaughters on the last day of trust administration. Each document listed decedent's address as the condominium. Also, respondent admitted that decedent had lived in the condominium after Pierson's death. While she stated that he was taking care of estate business, the context did not exclude periods after the estate was closed. She further testified that she did not think decedent ever thought of paying rent and that if the granddaughters "wanted rent from him, I am sure they could have worked something out. But they never discussed that with him or anything like that." Although there was evidence that decedent listed a Texas address on his 1995 tax return and that he did not have a permanent residence, instead residing in many places, petitioners only had to prove that decedent used the condominium, not that it was his sole residence.

Moreover, respondent did not deny that decedent was the trustee or that, while trustee, he lived in the condominium. Nor did respondent argue that decedent had paid rent to the trust. Instead, respondent defended the transaction as fair because decedent did not have use of the entire condomin-tum in that he was properly using most of it to store estate property; he spent some time staying with friends and family out of state such that the condominium was not his primary residence; and he did not take a fee for executing his duties as personal representative for Pierson's estate or as trustee of the trust. The last justification was also the basis for respondent's counterclaim for a set-off.

The evidence regarding these defenses, however, was disputed or contradictory, and there was sufficient evidence to support the probate court's determination that decedent engaged in self-dealing by not paying rent and that he breached his fiduciary duty by failing to rent, sell, or otherwise put the condominium to productive use.

Respondent argues that certain language creating the trust in Pierson's will permitted decedent to rent the condominium to himself without charging rent. While the will was admitted into evidence during the proceeding, this argument was not raised or considered by the probate court, so we will not address it. See Dove v. Delgado, 808 P.2d 1270 (Colo.1991).

II.

The probate court determined that the checks sent to petitioners were completed gifts, relying on Sinclair v. Fleischman, 54 Wash.App. 204, 773 P.2d 101 (1989). In Sinclair, under the particular facts of the case, the court found an exception to the general rule that receipt of a check does not constitute a completed gift because delivery is not complete until the check is cashed by the bank. Respondent contends that the probate court erred in determining that the checks were completed gifts. We agree.

A.

Petitioners initially question whether Colorado follows the rule that a check is not a completed gift until it is accepted by the donor's bank. We conclude that it does.

An inter vivos gift is invalid in the absence of a delivery that causes the donor to part with control of the property.

The surrender of the dominion or control, in order to effect a valid gift inter vivos, includes the parting of possession and relinquishment of all control, both present and future, of the property to the extent that it is beyond the power of the donor to recall it. The surrender of control and dominion must be such that if the donor resumes control of the property without the consent of the donee, he will become a trespasser and liable to the donee as such.

Johnson v. Hilliard, 113 Colo. 548, 554, 160 P.2d 386, 389 (1945).

However, a drawer-donor does not part with control of the funds at the time a check is given, but only when his or her bank accepts the check. A check is an order directing the drawer-donor's bank to pay the amount of funds listed to the person identified on the check. Section 4-8-104(f), C.R.S. 2001. However, a check does not operate as an assignment of the funds available in the drawer-donor's account, and the bank is not liable on the check until it accepts it. Section 4-8-408, C.R.98.2001. Until the check is accepted or paid by the bank, the drawer-donor has the right to stop payment. Sections 4-4-808(a), 4-4-408(a), C.R.S.2001. While a payee generally has a right of action against the drawer of a stopped check, the drawer has a defense if the check was issued without consideration. Sections 4-3-803(b), 4-3-414(b), C.R.S.2001. See also § 4-83-305(a)(2), C.R.9.2001 (other contract defenses available); City of Arvada v. Concrete Contractors, Inc., 628 P.2d 170, 172 (Colo.App.1981)("An agreement not supported by consideration is invalid and unenforceable.").

Thus, before a donor's death, neither the donor nor the bank is liable on a gift check unless the bank accepts it. Because the donor retains full control of the funds, there is no delivery and the gift is not complete.

The death of a donor revokes an undelivered gift. See Bunnell v. Iverson, 147 Colo. 552, 364 P.2d 385 (1961). After death, a decedent-donor no longer owns individual bank accounts, which immediately become assets of his or her estate. See § 15-12-101, et seq., C.R.8.2001; People v. McCormick, 784 P.2d 808 (Colo.App.1989). See also § 4-4-405 official comments 2-8, C.R.S8.2001 (bank's limited statutory authority to cash checks after a customer's death is subject to the objection of anyone with an interest in the estate and does not prevent an estate from seeking recovery of any payment made by the bank).

Accordingly, we conclude that a donor's check is not a completed gift until it is accepted by the donor's bank prior to the donor's death.

B.

Respondent contends that the exception recognized in Sinclair v. Fleischman, supra, even if available in Colorado, is not applicable under the cireumstances. We agree.

In Sinclair, a grandson had received a gift check from his grandfather, written by his uncle who had a power of attorney. The grandson did not immediately cash the check because his mother asked him to wait until she could contact her lawyer about a dispute with the uncle over management of the grandfather's assets. Shortly thereafter, the grandson lost the check and asked his uncle to reissue it. However, in the interim, the Washington legislature enacted a statute that limited the ability of a holder of a general power of attorney to make gifts. The rest of the family would not execute a release to permit the uncle to issue another check because it could not agree on the seope of the release.

The court in Sinclair relied on an earlier decision, Phinney v. State, 36 Wash. 236, 78 P. 927 (1904), in which delivery was found to be complete where the post office misdeliv-ered a check, such that it did not arrive at the bank until after the donor's death. It held that the giving of a check will constitute constructive delivery of the funds when "(1) the donor's intent is clear; (2) creditors are not prejudiced; (8) there is no fraud or undue influence; and (4) the check was not cashed before the donor's death because of cireumstances beyond the donor's and do-nee's control." Sinclair v. Fleischman, supra, 54 Wash.App. at 208-09, 773 P.2d at 104.

Here, the probate court ruled that there was sufficient delivery under the unique cireumstances of the case:

The unique cireumstances are the fact that the checks were not timely cashed solely because of the actions of the agent who was the only person to benefit financially if the gifts failed. If Vicki White had been an independent agent (Me., not the sole residuary devisee under the decedent's will), or if she had not personally induced the donees to forego cashing their gift checks when received, the result here might be different.

Assuming, without deciding, that Colorado would adopt the test for constructive delivery outlined in Sinclair, we conclude that its requirements were not met here.

Unlike an intervening change in the law or a delivery failure on the part of a third party, which are beyond the control of the donor and donee, here the checks were not cashed prior to decedent's death only because petitioners assented to respondent's request to wait. Neither respondent nor any third party physically prevented petitioners from cashing the checks prior to decedent's death, and there was no outside event that intervened to invalidate the checks. Accordingly, the Stnclair exception does not apply.

The judgment is affirmed -as to petitioners' claim for rent and reversed as to their claims for the value of the checks.

Judge CASEBOLT and Judge NIETO concur.


author: HODGES, J.

text:
    2002 OK 44
    RURAL WATER AND SEWER DISTRICT NO. 4, a Non-profit Corporation, Appellant, v. Wayne COPPAGE, an individual, City of Coweta, a Municipal Corporation and Wagoner County Board of County Commissioners, Appellees.
    No. 96,679.
    Supreme Court of Oklahoma.
    May 21, 2002.
    Marjorie L. McCullough, White, Coffey, Galt & Fite, P.C., Oklahoma City, Oklahoma, for appellant.
    H. Duane Riffe, Broken Arrow, Oklahoma, for appellant.
    Ted L. Moore, Broken Arrow, Oklahoma, for appellee, Wayne Coppage.
    David L. Weatherford, Birmingham, Morley, Weatherford & Priore, P.A., Tulsa, Oklahoma, for appellee, City of Coweta.
    Jerry S8. Moore, Assistant District Attorney, Tahlequah, Oklahoma, for appellee, Wagoner County Board of County Commissioners.

      Diane Pedicord, Sue Ann Nicely, Oklahoma City, Oklahoma, for Amicus Curiae Oklahoma Municipal League.
    Jay M. Galt, White, Coffey, Galt & Fite, P.C., Oklahoma City, Oklahoma, for Amicus Curiae Oklahoma Rural Water Association.
   HODGES, J.

¶ 1 This appeal raises essentially two issues: 1) Did the trial court err in finding that the Board of County Commissioners of Wagoner County met the requirements of title 82, section 1824.21, of the Oklahoma Statutes when it released and separated a tract of land from Rural Water and Sewer District No. 4? 2) Does the collateral protection provision found in title 82, section 1085.36, limit the County Commissioners' authority to release and separate a tract of land from Rural Water and Sewer District No.4 and prohibit the City of Coweta from providing water and sewer services in order to develop the tract? This Court holds that the tract was properly released and separated from the Water District and that section 1085.36 does not limit the County Commissioners' authority to release and separate the tract of land, nor does it prohibit the City of Coweta from providing water and sewer services to the tract under development.

¶ 2 This dispute concerns water and sewer services to a 90 acre tract of land (Disputed Area) which was located within the geographical boundaries of Rural Water and Sewer District No. 4 (the Water District) and within the municipal limits of the City of Coweta. The Disputed Area had been in the family of Wayne Coppage since before statehood. The Water District provided water service to a residence on the property from 1967 until 1988. Since that time, however, it has provided no service to the Disputed Area.

¶ 3 In 1992, the Water District executed a loan agreement with the Oklahoma Water Resources Board whereby it borrowed six million dollars from the Water Resources Fund to construct a water treatment plant, install a treated water trunk line throughout the Water District's system, and refinanced its outstanding balance from an earlier project. As collateral, the Water District mortgaged its assets and pledged its present and future revenues. The term of the loan has not expired.

¶ 4 As early as 1995 or 1996, Coppage began negotiations with the City of Coweta to jointly develop a portion of the Dispute Area. In 2000, Coppage and the City executed a development agreement whereby Cop-page donated approximately three and one half acres to the City for an industrial site, gave the City an option to purchase another seven and one half acres, and set aside ten acres for retention ponds. The City agreed to provide water and sewer services and build an industrial access road. It began construction of water and sewer lines late in 2000.

¶ 5 On February 5, 2001, the Board of County Commissioners of Wagoner County released and separated the Disputed Area from the Water District. The Water District filed its "Petition for Appeal and Request for Temporary Restraining Order, Temporary Injunction and Permanent Injunction" in the District Court on February 20, 2001. The trial court conducted a de novo review of the County Commissioners' actions and upheld its decision to release and separate the Disputed Area. The request for injunctive relief was denied. The water District brought this appeal.

I. The District Court did not err in determining that the requirements of title 82, section 1824.21, were met when the Board of County Commissioners released and separated the Disputed Area from the Water District.

¶ 6 Section 1324.21 of title 82 provides the procedure for releasing and separating lands from a rural water district. Fifty-one percent of affected landowners may petition the County Commissioners for such action. The County Commissioners may grant the petition upon a finding that the release and separation is in "the best interests of the affected landowners and the district." The Board of County Commissioners is to memorialize its decision by issuing "a certificate that the lands involved are released and separated from the district."

¶ 7 The record demonstrates that the Board of County Commissioners issued a certificate releasing and separating the Disputed Area from the Water District "upon a finding that said release was in the best interests of the affected landowners and the district." The Water District appealed the decision pursuant to section 481 of title 19 which provides: "From all decisions of the board of commissioners, upon matters properly before them, there shall be allowed an appeal to the district court by any persons aggrieved...." Section 434 provides that "(alll appeals thus taken to the district court shall be ... heard and determined de novo."

¶ 8 The District Court heard evidence and arguments. It upheld the County Commissioners' decision to release and separate the Disputed Area finding:

a. -The rural water district presently has no customers that it is serving in the de-annexed territory and will experience no current loss of revenues by the de-annex-ation;
b. The rural water district will be out no expenses for the installation of either water or forced sewer to service the subject property; and
c. The landowners currently have services [from the City of Coweta] to the subject property in the form of a gravity flow sewer system as well as water.

¶ 9 The Water District does not assert, nor does a review of the record reveal, that these findings are factually incorrect or that they are unsupported by the evidence. Rather, the Water District merely disagrees with the holding that the County Commissioners were correct in determining that release and separation of the Disputed Area was in the best interests of the Water District and the landowners. This Court finds neither error nor abuse of discretion in this regard.

II. Section 1085.36 of title 82 does not limit the County Commissioners' authority to release and separate the Disputed Area from the Water District nor does it prohibit the City of Coweta from providing water and sewer services to the Disputed Area.

¶ 10 Section 1085.36 1) authorizes loans from the Water Resources Fund to rural water districts and other entities, 2) sets the maximum interest rate, 3) permits the borrowing entity to mortgage its assets and pledge its revenues to secure the loan, and 4) provides for protection of the pledged revenues. The effect of the collateral protection provision is at issue. It provides:

After a loan or other financial assistance is obtained under Sections 1085.31 through 1085.65 of this title, and during the term of such loan or other financial assistance, no person, other than the eligible entity obtaining the financial assistance, shall be authorized to provide services of the type relied on for security of the loan or other financial assistance to customers of the portion of the system that is identified in the loan documents as collateral for the loan and either (1) in existence at the time of the loan or other financial assistance or (2) financed by the loan or other financial assistance.

The provision prohibits any person other than the borrower from providing the same services that comprise the security for the loan to "customers of the portion of the system" that is (a) identified as collateral and (b) either (1) in existence at the time of the loan or (2) financed by the loan. Thus, it presents a loan security scheme which protects revenues from customers of the portion of the system financed.

¶ 11 The Water District argues that seetion 1085.36, viewed in conjunction with its 1992 loan agreement, prevents the release and separation of the Disputed Area from the Water District and prevents the City of Coweta from providing it with water and sewer services. The Water District notes that, in the loan agreement, it pledged all its present and future revenues and mortgaged all its assets. It also notes that the loan agreement provides: "To the extent authorized by the laws of the State, prospective users of the System shall be required to connect thereto." It reasons that the collateral protection afforded by section 1085.36 extends not only to revenues from existing customers, but revenues which may be received from potential customers within its geographical boundaries. It concludes that the Legislature intended to protect its "growth area" by enacting section 1085.36 and that release and separation of the Disputed Area from the Water District and service to the Disputed Area by the City of Coweta are prohibited. The Water District's conclusion is erroneous.

¶ 12 The seope of the collateral protection afforded by the Legislature is revenues from "customers" of the portion of the system being financed. Although the Water District mortgaged its entire system, there were no customers in the Disputed Area at the time it was released and separated. No customers were receiving water or sewer services and no customer had received any service since September 18, 1988. The text of the provision offers no suggestion that the Legislature intended to protect potential revenues from potential customers who could be provided services in the future. The provision appears intended to prevent a raid on established customers of the borrowing entity who are served by the financed portion of the system. Because there were no customers in the Disputed Area, section 1085.36 did not prevent its release and separation from the Water District.

¶ 13 The Water District is asking this Court to apply collateral protection based upon its geographical boundaries. The Water District's proposed territorial approach to application of section 1085.36 would not, however, be consistent with the public policy of encouraging and promoting the development of water and sewer facilities. OklaStat. tit. 82, § 1085.81 (2001). It would limit County Commissioners' ability to release and separate areas from a water district even when it was in the best interests of the landowners and the water district to do so. Additionally, a territorial approach would impose provisions of a water district's loan agreement with the Water Resources Board on non-customer landowners who are not parties to the contract. Finally, such an approach would result in the granting of an exclusive right to provide water and sewer services within the geographical boundaries of a water district in contravention of Article V, section 51, of the Oklahoma Constitution and this Court's holding in Comanche County Rural Water District No. 1 v. City of Lawton, 501 P.2d 490 (Okla.1972).

¶ 14 In City of Lawton, this Court rejected the argument that a water district had an exclusive franchise for the operation of a water distribution system within its geographical boundaries thus preventing a neighboring city from selling water within those boundaries. The argument was rejected despite the fact that a substantial portion of the water district's funding came from a Farmers Home Administration loan. Under title 7, section 1926(b) of the United States Code, services "shall not be curtailed or limited ... by the granting of any private franchise for similar services within such area during the term of such loan...." This Court held that under Article 5, section 51, of the Oklahoma Constitution the Oklahoma Legislature was without power to grant an exclusive franchise to a water district. City of Lawton, 501 P.2d at 493. Further, the constitutional prohibition could not be evaded by entering into a contract with the Farmers Home Administration. Id.

¶ 15 The same constitutional authority and result apply in this matter. As in City of Lawton, "we will not ascribe to our Legislature an intention to violate Art. 5, § 51, of the Oklahoma Constitution." Id. Section 1085.36 does not give the Water District an exclusive franchise within its geographical boundaries.

TRIAL COURT AFFIRMED.

HARGRAVE, C.J., WATT, V.C.J., LAVENDER, OPALA, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur.

KAUGER, J. dissents.

      . Section 1324.21 provides:
      In the event that landowners within a district desire to withdraw from such district, fifty-one percent (51%) of the affected landowners or the board of directors by resolution may petition the county commissioners to release those lands from the district. The petition shall describe by section or fraction thereof and by township and range the lands affected. After a finding that the granting of the petition is to the best interests of the affected landowners and the district, the board of county commissioners shall issue a certificate stating that the lands involved are released and separated from the district. Full minutes of the hearing shall be entered in the journal of the board of county commissioners and the certificate shall be delivered to the secretary of the district who shall, within thirty (30) days, cause the records of the district to be amended to exclude the lands affected. Notice shall be given, as provided in Section 1324.5 of this title, of the filing of a petition for release of lands as provided herein, fixing the time and place of hearing, and a copy of said notice shall be sent by certified mail to the chairman of the board of directors of the district in which the said lands are located.
      Okla.Stat. tit. 82, § 1324.21 (2001).

      . The entire text of Section 1085.36 provides:
      Whenever any municipality, public trust, rural water or sewer district or any other eligible entity proposes to acquire or construct a project and/or refinance any indebtedness originally incurred to acquire or construct a project, the Board is hereby authorized to advance to the municipality, public trust, rural water district or other eligible entity or combination thereof sufficient funds for such purposes. Such loans by the Board shall be made pursuant to notes, bonds, revenue bonds or other appropriate form of evidence of indebtedness to the Board by the municipality, public trust, rural water district or other eligible entity. The interest rate and loan term shall be determined by the Board, provided, however, that the interest rate for loans made to rural water or sewer districts, created and existing under the provisions of Section 1324.1 et seq. of this title, for the purposes of acquiring or constructing a project and/or refinancing any indebtedness originally incurred to acquire or construct a project, shall not exceed fourteen percent (14%) per annum. As security, the Board may take a mortgage on the entire project, and a pledge of the revenues derived from the operation thereof or such other revenues as may be pledged by the applicant for such purposes. The Board, in its discretion, may defer the principal or an installment on such loans but the total cumulating time such payment may be deferred shall not exceed five (5) years. After a loan or other financial assistance is obtained under Sections 1085.31 through 1085.65 of this title, and during the term of such loan or other financial assistance, no person, other than the eligible entity obtaining the financial assistance, shall be authorized to provide services of the type relied on for security of the loan or other financial assistance to customers of the portion of the system that is identified in the loan documents as collateral for the loan and either (1) in existence at the time of the loan or other financial assistance or (2) financed by the loan or other financial assistance.
      Okla.Stat. tit. 82, § 1085.36 (2001).

      . The Water District cites this federal statute and two federal cases which have applied it to urge a '"'bright line" rule which prohibits any competition with a borrowing entity during the term of a loan. See Glenpool Util. Servs. Auth. v. Creek Co. Rural Water Dist. No. 2, 861 F.2d 1211 (10th Cir.1988); City of Madison v. Bear Creek Water Ass'n, 816 F.2d 1057 (5th Cir.1987). As the trial court noted, however, there was no federal loan involved here. Thus, the federal statute and its application are not relevant to the issue presented.


author: LUMPKIN, Presiding Judge: CHAPEL, Judge,

text:
    2002 OK CR 24
    Patrick Dwayne MURPHY, Appellant, v. The STATE of Oklahoma, Appellee.
    No. D-2000-705.
    Court of Criminal Appeals of Oklahoma.
    May 22, 2002.

      James C. Bowen, Tulsa, OK, Richard Ler-blance, Hartshorne, OK, Counsel for Appellant at trial. f
    Rob Barris, Assistant District Attorney, Okmulgee, OK, Philip Cozzoni, Assistant District Attorney, Eufaula, OK, Counsel for the State at trial.
    Steven M. Presson, Robert Wade Jackson, Norman, OK, Counsel for Appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Timothy J. Gifford, Assistant Attorney General, Oklahoma City, OK, Counsel for the State on appeal.
   OPINION

LUMPKIN, Presiding Judge:

¶ 1 Appellant, Patrick Dwayne Murphy, was tried by jury in the District Court of Mcelntosh County, Case Number CF-1999164A, and convicted of First Degree Murder, in violation of 21 0.S.8upp.1996, § 701.7(A). The jury found the existence of two aggravating cireumstances: that the murder was especially heinous, atrocious, or cruel; and that there is a probability Appellant will commit criminal acts of violence that would constitute a continuing threat to society. The jury set punishment at death, and the trial judge sentenced Appellant in accordance with this verdict. Appellant now appeals.

¶ 2 In August of 1999, Appellant was living with Patsy Jacobs, his alleged "common-law" wife. Ms. Jacobs had previously lived for three years with George Jacobs, the victim in this case, and had a child by him. Appellant and Patsy bad an argument about Jacobs a couple of days before Jacobs was murdered. Appellant told Patsy that he was going to get Jacobs and his family one by one.

¶ 3 On August 28, 1999, George Jacobs and his cousin Mark Sumka spent most of the day drinking and driving around Okmulgee, Okfuskee, and Melntosh counties. They reportedly drank two bottles of whiskey and numerous beers that day. At 9:80 p.m., they were headed to a Henryetta bar in Jacobs's Dodge Sedan. Jacobs was passed out in the back seat, and Sumka was driving. (Jacobs's post mortem blood aleohol level would later be determined to be .23)

¶ 4 Sumka and Jacobs passed Appellant as he was driving in the opposite direction. Both cars stopped, and Appellant backed up. Appellant told Sumka to kill the car and get out. Meanwhile, two occupants of Appellant's car, Billy Long and Kevin King, exited the car. Alarmed, Sumka drove away.

¶ 5 Appellant and his companions pursued Sumka in Appellant's car. Appellant was eventually able to foree Sumka to stop. At that point, someone from Appellant's car arrived at Sumka's car and began hitting Jacobs.

¶ 6 Sumka got out of his car, but was stopped by Appellant, who said he was going to do to Jacobs what they had done to him. Sumka could hear the other two men hitting Jacobs. Sumka told Appellant "that was enough, you know, he's passed out." Appellant went over to Jacobs, while Long came over and hit Sumka in the nose. Sumka then saw King drag Jacobs out of a ditch.

¶ 7 Sumka fled momentarily, about one hundred yards from the assault. After five minutes, he decided to return. Upon his arrival, Appellant and his two cohorts told Sumka if he said anything they would kill him and his family. King then smacked Sumka in the jaw. Appellant reportedly instructed King and Long not to hit Sumka again.

¶ 8 Sumka testified that Appellant then took a folding knife he was holding and tossed it into the woods. (The police later recovered this knife.)

¶ 9 Sumka ran over to where Jacobs was laying in a ditch. Jacobs was "barely breathing." Anderson Fields then drove up in another car and asked what was wrong with the guy in the ditch. (He also noticed a fleshy object and blood in the road.) The men told him Jacobs was drunk. They began approaching Fields's car, but he drove away. Fields then phoned the police and drove back to the scene. Everyone was gone. Jacobs lay in the ditch and was barely breathing. Fields found a slash across Jacobs's stomach and chest. His throat had been cut, his face was bloody, and his genitals had been cut off.

¶ 10 Upon Appellant's instructions, Sumka had left the scene with Appellant, Long, and King. During the car ride, Appellant told Sumka they had cut Jacobs's throat and chest and had eut off his privates. King told Sumka they had stuffed Jacobs's genitals into Jacobs's mouth. Appellant then told everyone to take off their clothes because he was going to burn them.

¶ 11 The group later went to the home of Mark Taylor, Appellant's cousin. Appellant told Taylor he had killed Jacobs. Appellant said he had cut Jacobs's stomach and throat, had "cut his dick and his nuts off," had shoved his genitalia into his mouth, and had tried to stomp on the victim's head like a pancake.

¶ 12 The group then traveled to King's house, where Jacobs's son George, Jr. was staying. Appellant said he was going to do the same thing to Jacobs's son. But King's mother came out of the house and thwarted this plan. King went inside, and the rest of the group left. Appellant then burned the bag of incriminating clothes.

¶ 13 When Appellant arrived home that night, he told Patsy Jacobs that George Jacobs had been killed and that he had sliced his throat and stomach. Patsy testified Appellant also said he had cut off Jacobs's genitals so "he won't fuck anyone anymore," including her.

¶ 14 When Appellant was arrested, he admitted kicking Jacobs in the ribs and testicles and cutting his penis. He also admitted hearing Jacobs groan during the attack. He said Jacobs was left alive in a ditch; He was breathing and saying, "Oh."

¶ 15 A state eriminalist testified that, after the victim's penis was severed, he was dragged to the side of the road, where his neck and chest were cut. Bloodstains on Jacobs's shoes indicate he had been in an upright position for part of the attack. The medical examiner described the cause of death as blood loss from the various cutting wounds, primarily the genital and neck wounds. Death was not immediate. Jacobs bled to death in somewhere between four to twelve minutes, perhaps even longer. He described the multiple lacerations and fractures the victim suffered to his face, neck, chest, and abdomen.

ISSUES RELATING TO VOIR DIRE

¶ 16 In proposition eight, Appellant claims the trial court's failure to ensure a complete and adequate record for appellate review violates his "constitutional rights," presumably to due process and/or a fair trial. He claims the court reporter's voir dire transcription was inadequate because jurors' names were not identified at times. He claims this is a recurring problem in this county.

¶ 17 Whether or not there is a recurring problem in Melntosh County with regard to the practices of its court reporters, we cannot say. We can, however, address whether or not there was a constitutionally significant problem concerning the record in Appellant's trial.

¶ 18 Appellant points to "two significant questions" that arose at trial as a result. First, he claims it is impossible to discern from the record whether the juror who "knows that persons of Indian bloodline react differently to aleohol" remained on the jury. Second, it was impossible to discern whether the juror who has a medical background remained on the jury.

¶ 19 However, we find these claims are without merit. While we agree the tran-seript could certainly have been a lot more detailed and clear than it is-and the lack of specificity could create the possibility of a constitutional violation in some future case-here, we have no such concerns. The record shows that the juror who had concerns about Indian bloodlines was a "Ms. Davis." While there were two Ms. Davis's in the pool of prospective jurors, ie; Kymberly Davis and Teresa Davis, both were removed from the jury by the State through peremptory challenges, the State's first and fifth peremptory challenges. Therefore, Appellant's concern that the juror was removed by the defense, thereby "arguably" creating an ineffective assistance claim is without merit.

¶ 20 Furthermore, with respect to the juror who had a medical background, Appellant's bare claim that this unidentified juror "might pose a problem or benefit to the parties" is not specific enough to survive judicial review. Even assuming, arguendo, that defense counsel, armed with the knowledge that this potential juror had a bachelor's degree in laboratory technology and prior experience with a medical diagnostic company, made the decision to challenge or not challenge that juror from serving on the jury pool, we find such decision would not have amounted to ineffective assistance. Such a hypothetical error, which has no bearing on the outcome of the trial, will not mandate reversal here. Simpson v. State, 1994 OK CR 40, ¶ 13, 876 P.2d 690, 695.

FIRST STAGE TRIAL ISSUES

¶ 21 In proposition five, Appellant claims a custodial statement he gave after his arrest violated his right to counsel. He claims the statement should have been suppressed, and the trial court erred by admitting it at trial, following the Jackson v. Denno hearing held on its admissibility. In that hearing, the trial judge found Appellant voluntarily and knowingly waived his right to counsel.

¶ 22 Appellant specifically points to transcript excerpts of his interrogation in which he seemed to have been confused about whether or not he was entitled to an attorney, whether or not he was going to ask for an attorney, and whether or not he could speak to the officers with an attorney present.

¶ 23 For example, after receiving the Miranda warning and being asked if he desired to speak to police officers, Appellant stated, "Well, I can't answer that right now. I don't know this, this I'm not for sure if I'm gonna have an attorney." The police then told Appellant, "It is your right to have an attorney. Do you want one or do you want to talk to us? It's your choice. Do you want an attorney yes or no?" Appellant asked, "Well, can I still talk to ya'll and still have an attorney present?" The officers responded, "Do you want, you want an attorney? You can have an attorney. If not, you ean talk to us right now. It's your choice. I can't tell you what 'to do." Appellant replied, "I mean, I mean, your (sic) saying I can't do both?" The officer said, "Yeah. Eventually sure. If you want an attorney, we'll get you an attorney. If that's what your (sic) saying."

¶ 24 Similar exchanges continued until Appellant eventually agreed to talk to the police without an attorney present. He then signed a waiver to that effect.

¶ 25 We see no violation of Appellant's constitutional right to counsel from these transcripts or from the testimony given at the Jackson v. Denno hearing. Like Dennis v. State, 1999 OK CR 23, 990 P.2d 277, Appellant's proposition rests entirely on his ability .to get this Court to agree that his vague and noncommittal statements to police officers somehow invoked his right to counsel. However, we find his statements do "not even reach the level of an ambiguous request for counsel, and, of course, police are not required to stop questioning when faced with an ambiguous request." Dennis, 1999 OK CR 23, ¶ 6, 990 P.2d at 279-80 (construing Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994)).

¶ 26 In proposition seven, Appellant claims his marital privilege rights were violated when his common-law wife, Patsy Jacobs, was made to testify against him. He notes that he sought a ruling barring Ms. Jacobs's testimony, which was argued just before she began testifying at trial, The trial judge overruled this motion, apparently on the basis that Appellant had made similar statements to third parties as to those matters to which Ms. Jacobs testified.

¶ 27 Appellant complains specifically that Ms. Jacobs's testimony provided motive, because she was the only one who testified that Appellant had said he was going to "get" the victim and the victim's family "one by one." Appellant points out that "Inlo other witness could testify to that extremely damaging statement."

¶ 28 But as the State aptly pointed out during oral arguments on this issue, it was defense counsel, not the State, who elicited this testimony. During Ms. Jacobs's direct examination, the State asked her questions regarding statements Appellant made after the killing, statements that were similar that he made to others.

¶ 29 During cross-exsamination, however, defense counsel asked Ms. Jacobs about a handwritten statement she had made about three or four days after the murder,. Defense counsel specifically asked Ms. Jacobs about a portion of her statement that addressed a fight she and Appellant had on the Thursday night before the murder. In the statement, Ms. Jacobs apparently mentioned that part of the fight had to do with her previous relationship with George Jacobs and that she and Appellant fought frequently about George Jacobs. It appears defense counsel was attempting to highlight the domestic nature of this dispute.

¶ 30 On redirect, after defense counsel had opened the door regarding Ms. Jacobs's statement, the prosecutor asked Ms. Jacobs about what Appellant had said to her "in regard to George Jacobs and the Jacobs family during that argument?" At this point, Ms. Jacobs stated that Appellant had told her he was going to get George Jacobs, George's brothers, and George's two sons "one by one." Defense counsel lodged no objection to these statements, but he did ask about those statements again during recross. Here, Ms. Jacobs again admitted Appellant had threatened to kill the victim, that they had argued about this same issue previously, and that Appellant had told her Ms. Jacobs could move out and get back together with George Jacobs if she so desired.

¶ 31 Under these circumstances, any allegation of error with respect to the violation of a marital privilege was waived, for defense counsel, not the State, was the source of this evidence being admitted into the record. This was a matter of defense trial strategy for the purpose of showing that this crime was the result of a heated marital dispute, not just some random act.

SENTENCING STAGE ISSUES

¶ 32 In his first proposition, Appellant claims there was, as a matter of law, insufficient evidence admitted at trial to support the heinous, atrocious, or cruel aggravating cireumstance. He asks this court to abandon a deferential standard for reviewing the sufficiency of evidence of an aggravating circumstance, arguing we must use de novo review. He further claims the jury instructions did not adequately inform jurors that they must necessarily find either torture or serious physical abuse in order to support this ag-gravator.

¶ 33 The crux of Appellant's argument, however, is that the evidence of torture was insufficient because there was "nothing, absolutely nothing, in the record to show that (Jacobs) was consciously aware of the injury being inflicted." (Appellant's Brief, page 14).

¶ 34 We disagree. Appellant told the police Jacobs was groaning during the attack, and that he was still alive, breathing, and saying "oh" when they left him bleeding by the side of the road. The process of bleeding to death took as little as four minutes, but possibly more than twelve. There was testimony that his severed genitals were placed into his mouth at one point, and, if true, the victim may still have been alive after this point, for the genitals were found at a distance from the body. There was also testimony that Jacobs bad been in an upright position at one point, for blood was found on the top of his shoes. The medical examiner testified that, although the victim had a blood alcohol content of .28, a normal person would be impaired, but still able to function, at this level.

¶ 35 We decline to accept Appellant's de movo review plea. Accordingly, we find the evidence admitted at trial, when viewed in a light most favorable to the State, was sufficient to find beyond a reasonable doubt that the murder was especially heinous, atrocious or cruel. Black v. State, 2001 OK CR 5, ¶ 79, 21 P.3d 1047, 1074. Furthermore, the jury instructions, taken as a whole, accurately stated the applicable law.

¶ 36 In his second proposition, Appellant claims the heinous, atrocious, or cruel aggravating cireumstance is unconstitutionally vague and overbroad. He claims that due process is violated in Oklahoma because juries are not specifically informed "that the heinous, atrocious, or cruel aggravating circumstance is limited to crimes involving torture or serious physical abuse" and they are not provided definitions for "serious physical abuse" or "torture". He admits, however, that this Court has consistently rejected this claim in capital appeals, and he asks this Court to reconsider those decisions.

¶ 37 Appellant has not convinced us that our prior decisions erroneously resolved this issue. See e.g., Alverson v. State, 1999 OK CR 21, ¶ 54-56, 983 P.2d 498, 516-17, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000) (finding OUJI-CR 2d 4-73 is constitutional, sufficiently limiting, and self-explanatory); Le v. State, 1997 OK CR 55, ¶ 35, 947 P.2d 535, 552, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998) (rejecting the notion that torture or serious physical abuse needs further definition). We thus find Appellant's jury was properly instructed on the heinous, atrocious, or cruel aggravating circumstance and that due process was not offended.

¶ 38 In his third proposition, Appellant claims Oklahoma's continuing threat aggravating cireamstance is unconstitutionally vague and overbroad and violates due process as a "standardless catch-all." He claims the aggravator, as applied in Oklahoma, "does nothing to separate those defendants who should be considered death eligible from those who should not." (Appellant's Brief, page 28.) He claims the word "probability" in the statute is a statistical term that precludes narrowing. He also claims important terms from the governing statute are not defined. He also points to cases decided by this Court that relied on Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). He claims that reliance is misplaced, insofar as the way Oklahoma applies the continuing threat aggravator.

¶ 39 We have repeatedly rejected these same arguments in numerous cases. See, e.g., Williams v. State, 2001 OK CR 9, ¶¶ 75-82, 22 P.3d 702, cert. denied, - U.S. -, 122 S.Ct. 836, 151 L.Ed.2d 716 (2002) (finding the applicable jury instruction is constitutional, not vague, and "a correct statement of the law"); Wackerly v. State, 2000 OK CR 15, ¶¶ 50-51, 12 P.3d 1, cert. denied, 532 U.S. 1028, 121 S.Ct. 1976, 149 L.Ed.2d 768 (2001) (finding the phrase "the existence of a probability that the defendant would commit erimi-nal acts of violence that would constitute a continuing threat to society" is clear and does not require further definition); Rogers v. State, 1995 OK CR 8, ¶ 40, 890 P.2d 959, cert. denied, 516 U.S. 919, 116 S.Ct. 312, 133 L.Ed.2d 215 (1995) (noting the Court has consistently rejected the notion that the ag-gravator is standardless or all-inclusive.) We continue to find the continuing threat aggravator is constitutionally applied in Oklahoma, and, more specifically, was constitutionally applied as to Appellant in this case. Additionally, this Court's reliance on Jurek has not been misplaced.

¶ 40 In his fourth proposition, Appellant claims the victim impact evidence admitted in his trial exceed what is constitutionally permissible, ie., it "characterized the offense, the perpetrator, and recommended the punishment", and thus deprived him of a fair trial and due process under the United States Constitution and the Supreme Court's decisions in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) and Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). He claims Oklahoma's governing statute, 22 O.S.Supp. 1998, § 984(1) and this Court's interpretation thereof are unconstitutional. He also claims the statements were far more prejudicial than probative and that they contained hearsay and conjecture components.

¶ 41 Appellant specifically complains of the following from the written, but brief, victim impact statements that were read to jurors. First, the victim's brother Rueban stated he could not understand why Appellant would want to kill his brother and that Appellant "should get the death penalty for taking an innocent life. I pray that he will not ever get out of jail and do bragging." Second, the victim's brother Frank stated, "I believe in the Bible. I believe an eye for any eye and that they should be put to death." Third, the victim's sister Irene's statement commented on her anger at the "way (George) was murdered" and took the position that her brother "had a right to be here and alive today." Irene also stated, "I hope you see that no one in the world should ever be free who committed such a crime." Fourth, the victim's sister Nadine stated, "I just hope and pray that these killers get the most severe punishment. There is no merey for them." Appellant claims these statements amounted to super-aggravators.

¶ 42 Appellant did not object to the statements when they were read in court, thus waiving all but plain error. Miller v. State, 2001 OK CR 17, ¶ 36, 29 P.3d 1077, 1085. We find no plain error occurred.

¶ 43 In at least three decisions, this Court has taken the position that Payne appears to have overruled Booth with respect to the issue of whether or not victim impact statements could include characterizations of the defendant, the crime, and opinions in regard to sentencing. See, e.g., Turrentine v. State, 1998 OK CR 33, ¶ 94, 965 P.2d 955, 980, cert. denied, 525 U.S. 1057, 119 S.Ct. 624, 142 L.Ed.2d 562 (1998) (finding characterizations and opinions about the crime, the defendant, and the appropriate punishment no longer barred by Supreme Court); Ledbetter v. State, 1997 OK CR 5, ¶ 27, 933 P.2d 880, 890-91 (Booth's Eighth Amendment prohibition against such evidence has been apparently overruled by Payne); Conover v. State, 1997 OK CR 6, ¶ 60, 933 P.2d 904, 920 (Payne "implicitly overruled that portion of Booth regarding characterizations of the defendant and opinions of the sentence.").

¶ 44 We note here, however, that in footnote two of Payne's majority opinion and in Justice O'Connor's concurring opinion, the Supreme Court left open the question about admissibility of victim impact evidence regarding characterizations and opinions about the crime, the defendant, and the appropriate sentence because no such evidence was presented in that case. Payne, 501 U.S. at 830, 833, 111 S.Ct. at 2611-13.

¶ 45 Nevertheless, we note the Supreme Court has denied certiorari in Turrentine, and, since that time, we have continued to approve of such evidence in other capital cases. See Young v. State, 2000 OK CR 17, ¶ 83, 12 P.3d 20, cert. denied, 532 U.S. 1055, 121 S.Ct. 2200, 149 L.Ed.2d 1030 (2001) ("vice-tim impact witness' opinion as to the appropriateness of the death penalty is admissible, but is limited to the simple statement of the recommended sentence without amplification."); Welch v. State, 2000 OK CR 8, ¶ 40, 2 P.3d 356, 373, cert. denied, 531 U.S. 1056, 121 S.Ct. 665, 148 L.Ed.2d 567 (2000) ("victim impact testimony may include information about the victim, cireumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion of a recommended sentence."). We therefore reject Appellant's contention that our interpretation of Payne and Booth, or for that matter our own statute, is erroneous or unconstitutional.

¶ 46 Furthermore, we find no plain error in the admission of the victim impact statements in question. While the brief testimony from the victim's brother-regarding his belief in the Bible and an "eye for an eye"-was an inappropriate overamplification that should have been stricken, taken as a whole, the testimony was within the bounds of admissible evidence, and its focus did not have such a prejudicial effect or so skew the presentation as to divert the jury from its duty to reach a reasoned moral decision on whether to impose the death penalty. Short v. State, 1999 OK CR 15, ¶ 59, 980 P.2d 1081, 1101, cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). The Cargle v. State, 1995 OK CR 77, 909 P.2d 806 instruction was given, thereby insuring jurors understood the proper weight to give such evidence, including any that was borderline or that crossed over the line.

¶ 47 Accordingly, we find the victim impact evidence was not "so unduly prejudicial that it render(ed) the trial fundamentally unfair." Payne, 501 U.S. at 825, 111 S.Ct. at 2608. We further find the evidence did not act as a super-aggravator, nor do we find any support for Appellant's bare claim that the statements "contain hearsay and conjecture components."

¶ 48 In proposition nine, Appellant claims the trial court's failure to define life without parole denied him due process of law and a fundamentally fair trial To support this proposition, Appellant points to a motion he filed prior to trial in which he requested the trial court to allow testimony or "evidence" regarding "the effects and conditions of a sentence of life without the possibility of parole."

¶ 49 Contrary to Appellant's claim, this motion was not a request for the trial court to provide the jury with instructions regarding the actual meaning of life without parole. Rather, it was a request to produce evidence to the jury during the second stage regarding distinctions between the sentencing options, relief available from the Department of Corrections, and the conditions and restrictions associated with a sentence of life without parole.

¶ 50 Be that as it may, the motion was not denied, as Appellant suggests. Rather, the trial judge ruled he would allow argument regarding this issue, but no evidence. (O.R. at 192.) The trial judge specifically stated defense counsel could write the words "life without parole" for jurors during arguments, and underline the words "without parole." He also allowed defense counsel to tell jurors that "life without parole means life without parole." Defense counsel went even a little further than this, telling jurors that they had the option of "putting him in prison for the rest of his life ... don't give him the possibility of parole."

¶ 51 This is not a case where a specific instruction was requested and refused, nor is it a case where the jury sent back a note asking for additional information on what life without parole means. Indeed, this is a case where jurors were told, essentially, that life without parole means what it says.

¶ 52 Moreover, this Court has, in numerous instances, stated the meaning of life without parole is self-explanatory and that an instruction on its meaning is not required. Powell v. State, 2000 OK CR 5, ¶ 127, 995 P.2d 510, 536, cert. denied, 531 U.S. 935, 121 S.Ct. 321, 148 L.Ed.2d 258 (2000); Howell v. State, 1998 OK CR 53, ¶ 8, 967 P.2d 1221, 1225, cert. denied, 528 U.S. 834, 120 S.Ct. 93, 145 L.Ed.2d 79 (1999); McCracken v. State, 1994 OK CR 68, ¶ 49, 887 P.2d 323, 334, cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995). Accordingly, we find Appellant was not denied due process or a fundamentally fair trial when the trial judge allowed even more information on this issue than is currently required.

ISSUES RELATING TO BOTH STAGES

¶ 53 In proposition six, Appellant claims his trial counsel was ineffective as follows: (1) by failing to put on adequate and thorough expert testimony in the mitigation stage regarding Appellant's alleged neuropsycho-logical dysfunction; (2) by failing to attack the constitutionality of the heinous, atrocious, or cruel aggravating cireumstance; and (8) by failing to rehabilitate four potential jurors who were stricken for cause after having expressed reservations about imposing the death penalty.

¶ 54 First, we find Appellant's trial counsel was not constitutionally ineffective with respect to expert testimony presented in the mitigation stage. Having reviewed Appellant's motion to supplement, we find Appellant has not sufficiently rebutted the strong presumption of regularity in the trial proceedings or shown by clear and convincing evidence that there is a strong possibility that trial counsel was ineffective in failing to utilize or identify the evidence reflected in Dr. Bianco's report concerning an alleged neuropsychological dysfunction. Indeed, the presentation of detailed evidence concerning the behavioral impact of the combination of Appellant's possible brain damage and his chronic alcohol abuse, could reasonably be viewed as mitigating to one person and aggravating to another. That being so, we find trial counsel's use of such evidence falls under the large umbrella of what this Court would deem to be trial strategy. Counsel's actions with respect to Dr. Sharp do not fall outside the wide range of reasonable assistance or leave this Court with grave doubts regarding the verdiet or sentence. Simpson, 1994 OK CR 40, ¶ 37, 876 P.2d at 702. The motion to supplement and application for evi-dentiary hearing is DENIED.

¶ 55 Second, Appellant's trial counsel was not ineffective for failing to attack the constitutionality of the heinous, atrocious, or cruel aggravating cireumstance. Counsel will not be deemed ineffective for failing to raise a claim that this Court has consistently held to be meritless. Battenfield v. State, 1998 OK CR 8, ¶ 15, 953 P.2d 1123, 1128.

56 Third, Appellant claims his trial counsel was ineffective for failing to attempt to rehabilitate four potential jurors. However, each of these would-be jurors clearly indicated they were irrevocably committed against one penalty option, they could not assess the death penalty under any cireum-stances, or they would not consider all three punishments. See Powell, 2000 OK CR 5, ¶ 32, 995 P.2d at 521 (restating principle that prospective jurors must be willing to consider all the penalties provided by law and not be irrevocably committed to one punishment option). As in Harjo v. State, 1994 OK CR 47, ¶ 49, 882 P.2d 1067, 1077, cert. denied, 514 U.S. 1131, 115 S.Ct. 2007, 131 L.Ed.2d 1007 (1995), these veniremen were properly removed under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

¶ 57 Appellant has failed to show any errors by counsel that were so serious as to deprive Appellant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). This proposition fails.

¶ 58 In his tenth proposition, Appellant claims the cumulative effect of the errors raised in this appeal denied him a fundamentally fair trial. We have found no error, and thus we find no cumulative error.

MANDATORY SENTENCE REVIEW

¶ 59 Pursuant to 21 0.8.1991, § 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of the aggravating cireum-stances set forth in 21 0.8.1991, § T7OL12.

¶ 60 Turning to the second portion of this mandate, the jury found the existence of two aggravating cireumstances: the murder was especially heinous, atrocious, or eruel; and there is a probability Appellant will commit criminal acts of violence that would constitute a continuing threat to society. We have already found sufficient evidence to support the first aggravating cireumstance.

¶ 61 Regarding the second aggravator, there was evidence Appellant discussed killing the victim before the crime, the crime was particularly brutal, and there was evidence Appellant intended to kill the victim's relatives and took steps in that regard. We find the evidence sufficient to support both aggravators.

The following mitigating evidence was presented by Appellant: he did not have any significant history of prior criminal activity; his capacity to appreciate the criminality of his conduct or conform such conduct to the requirements of the law was impaired by alcohol; he was under the influence of emotional disturbance by virtue of his alcohol dependence; he acted under cireum-stances "which tended to reduce the crime in that he was under the influence of alcohol"; he is likely to be rehabilitated; he cooperated with authorities; his age; his character; his emotional and family history; the fact that he suffers from mild mental retardation; the relationship Ms. Jacobs formerly had with the victim; he has some degree of brain damage, possibly due to prior head injuries; and his poor impulse control and frequent blackouts.

¶ 63 Upon review of the record and after carefully weighing the aggravating circumstance and the mitigating evidence, along with the errors alleged in this appeal, we find the sentence of death to be factually substantiated and appropriate. We cannot say the sentence of death is being imposed under the influence of passion, prejudice, or any other arbitrary factor.

DECISION

¶ 64 The judgment and sentence are hereby AFFIRMED.

JOHNSON, V.P.J., and LILE, J., concur.

STRUBHAR, J., concurs in result.

CHAPEL, J., concurs in part/dissents in part.

CHAPEL, Judge,

concurs in part/dissents in part:

¶ 1 I disagree completely with the Court's resolution of the marital privilege claim. This claim was not waived. Counsel for Murphy objected to Patsy Jacobs testifying before she testified and the objection was based upon the marital privilege. Furthermore, contrary to the argument put forth in footnote 4 of the Court's opinion, there was more than clear and convincing evidence of the existence of a common law marriage; there was a stipulation by the State in this very prosecution that there existed a common law marriage. Indeed, the State in its Brief filed with this Court did not even argue against the existence of a common law marriage.

¶ 2 As much as I disagree with the Court's resolution of the marital privilege claim, I would not reverse the conviction on this claim. Rather, I would resolve this claim by upholding the trial court's ruling that the matters about which Patsy Jacobs was to testify were not protected by the privilege.

¶ 3 Although, I would affirm the conviction, I would vacate and modify the sentence to life without parole because the heinous, atrocious, or eruel aggravator should be stricken for insufficient evidence leaving only the continuing threat aggravator. I would not attempt to reweigh the evidence under the circumstances of this case because I do not believe that an appellate court could reasonably conclude that the jury would have imposed the death sentence if it had not considered the heinous, atrocious, or cruel ag-gravator.

      . Appellant's Petition in Error was filed in this Court on August 16, 2000. His initial brief was filed on May 3, 2001. The State's brief was then filed on August 31, 2001. The case was submitted to this Court on September 18, 2001 and oral argument was held on February 12, 2002. Appellant has also filed a motion to supplement the record on appeal and application for evidentiary hearing, pursuant to Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2000).

      . 378 U.S. 368, 84 S.Ct. 1774, 12 LEd.2d 908 (1964).

      . During the preliminary hearing, a similar motion was raised by Appellant. In that setting, the State stipulated to the fact that Appellant and Patsy Jacobs are common law spouses, but argued that what was told to Ms. Jacobs was essentially the same things Appellant told third parties. Based upon the finding of a common law marriage, the Associate District Judge ruled in favor of Appellant, saying the issue could be raised at a later time before Judge Taylor. As a result, the State declined to call Ms. Jacobs to testify at the preliminary hearing. At trial, the State did not specifically concede the existence of a common law marriage.

      . The marital privilege, set forth at 12 0.$.1991, § 2504 "draws no distinction between types of marriage, and, therefore, as was true under prior common law, the privilege would apply equally to common law and ceremonial marriages." Blake v. State, 1988 OK CR 272, ¶ 4, 765 P.2d 1224, 1225 (quoting K. McKinney, Privileges, 32 Okla.L.Rev. 307, 326 (1979)). However, before one can take advantage of this privilege, one must first prove, by clear and convincing evidence, the existence of a valid common law marriage. This includes an actual mutual agreement between the spouses to be husband and wife, a permanent relationship, an exclusive relationship-proved by cohabitation as man and wife, and the parties to the marriage hold themselves out publicly as man and wife. Blake, 1988 OK CR 272, ¶ 4, 765 P.2d at 1225. Whether the evidence presented in this record meets this burden of proof is a question of fact we do not need to address due to Appellant's waiver of the issue. However, we do set it forth here to ensure a complete record.

        Ms. Jacobs testified that she had known Appellant for six or seven years and had lived with him for five and a half years. Prior to that time, she had lived with the victim for three years and had had a ten-year old daughter with him. While Ms. Jacobs testified she held herself out as Appellant's common law wife and was in that relationship in August of 1999, she was less than specific about what they had done to hold themselves out as common law husband and wife, stating, "We done a lot of things, yeah, that common law wife's do, bank accounts and-I've used his last name." She did not use his name any longer, however, and the only time she recalled ever having used Appellant's name was two or three months before the trial, for purposes of getting a telephone listing. Actually, she had always "gone by" the last name of Jacobs, which was apparently obtained through her relationship with the victim.
      Ms. Jacobs did not testify regarding a specific agreement she and Appellant had reached regarding their relationship. There was some evidence the relationship was a rocky one, and a strong suggestion Appellant's actions were motivated by jealousy over Ms. Jacobs's relationship with the victim. Although Ms. Jacobs had lived with the victim for years and had a child with him, she denied they had never been in a marriage relationship, common law or otherwise. However, following the victim's murder, Ms. Jacobs had submitted a claim for George Jacobs's funeral expenses to a victim of crimes coordinator that indicated she was George Jacobs's common law wife. Ms. Jacobs testified that the document had been prepared for her, but she had not changed the common law description before submitting it.
      Beyond the lengthy cohabitation and a few other scant facts, the record is void of supporting evidence regarding the existence of a common law marriage at the relevant time. For example, there is no evidence of jointly-held property, insurance policies, specific information on bank accounts, wills, tax filings, adoption records, documents referring to each other as husband and wife, or third party perceptions that the couple was married. There are, however, two defense exhibits in which Ms. Jacobs is identified as Appellant's common law wife, but these documents arose after legal proceedings had commenced. Moreover, Appellant described Ms. Jacobs as his girlfriend during interviews, not his wife.

      . More specifically, 'The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." 21 0.$.1991, § 701.12.

      . See Washington v. State, 1999 OK CR 22, ¶ 62, 989 P.2d 960, 978-79.

      . See Miller, 2001 OK CR 17, ¶ 38, 29 P.3d at 1085 (noting the importance of using the Cargle instructions when victim impact evidence is borderline or crosses over the line of what can be considered permissible.)

      . Appellant seeks an evidentiary hearing on this sub-issue and requests a supplementation of the record with respect to the Neureopsychology Assessment Report of Dr. Faust Bianco conducted in February of 2001.

      . Indeed, Dr. Bianco's neuropsychological report indicates Appellant's neuropsychological performance was not ""severe enough to be classified as impairments, but rather decreases in cognitive functioning." However, according to Dr. Bian-co, Appellant's decreased functioning would possibly, "even likely" rise to the level of impaired when he had been drinking. But Dr. Bianco was less emphatic in other parts of his report, concluding that Appellant has a "limited amount of cognitive reserve" that "may be more effected when intoxicated than someone who has an average cognitive reserve". He also found that "the neuropsychological testing does not show any pattern of specific cognitive dysfunction in the impaired range." We find the sum total of Dr. Bianco's conclusions, while perhaps more specific, is not significantly different from the testimony and evidence given by Dr. Sharp at trial regarding Appellant's alcoholic blackouts, lack of impulse control, prior head injuries, the suggestion that Appellant "may suffer from mild organic damage", and the fact that "with Patrick in particular, he's no doubt got some degree of damage", possibly relating to accidents Appellant had suffered in the past. Taken in its best light, the report is not sufficient to meet the requirements of Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2000) and does not warrant an evidentiary hearing.


author: KENNETH L. BUETTENER, Judge:

text:
    2002 OK CIV APP 52
    Geoffrey MORRISON, Plaintiff/Appellant, v. BOARD OF EDUCATION OF WEATHERFORD PUBLIC SCHOOLS, Appellee, and Grant Frankenberg, Defendant.
    No. 96,871.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Jan. 18, 2002.
    Certiorari Denied April 2, 2002.

      Phil W. Gordon, Hays & Gordon, Chicka-sha, OK, for Plaintiff/Appellant.
    Kenneth D. Upton, Jr., Noland, Upton & Wenzel, P.C., Oklahoma City, OK, for Defendant/Appellee Board of Education of Weath-erford Public Schools.
   KENNETH L. BUETTENER, Judge:

¶ 1 Geoffrey Morrison was a probationary teacher in the Weatherford, Oklahoma public school system. He was also a soccer coach for the school. After receiving notice of intent not to renew his contract, Morrison asked for, and was granted, a due process hearing before the Board. After the hearing, the Board of Education decided not to renew Morrison's contract. He sued the Board and the Superintendent for tortious breach of contract. He claimed that the Board's failure to follow the procedure as found in the Teacher Due Process Act of 1990 resulted in his re-employment by operation of law. The trial court granted summary judgment in favor of the Board. We reverse and remand.

¶ 2 The material facts in this case are undisputed. On April 10, 2000, Superintendent Frankenberg instructed Morrison's principal to hand deliver a letter to Morrison. The letter contained information that the Superintendent intended to recommend to the Board that Morrison's contract not be renewed. The letter informed Morrison of the reasons:

First, with premeditation and intent, you violated the rules of the Oklahoma Secondary Schools Activities Association. Additionally, you articulated your intent to cheat to parents and to student-athletes. When you explained your actions to me you said, "Everyone is doing it," and that you were "bending the rules as far as possible."
Second, when initially confronted by your building principal, Jim Ritz, regarding 0.9.8.A. allegations of impropriety, you denied being involved with the soccer student-athletes in violation of the rules. Only after the third meeting with Mr. Ritz, and, after a fellow coach who was present at the time "jogged your memory," did you concede that the 0.8.S8.A. allegations were, in fact, true.

¶ 3 A probationary teacher may be dismissed or not re-employed for cause, subject to the provisions of the Teacher Due Process Act of 1990. 70 O.S. Supp.1998 § 6-101.22(B). Although probationary teachers are afforded pretermination hearings before the Board, if the Board decides to terminate the probationary teacher's contract, unlike a career teacher, the probationary teacher is not entitled to a de novo trial in the district court.

¶ 4 The gravamen of this case concerns the interpretation of 70 0.8. Supp.1993 § 6-101(E) which states, in part:

If, prior to April 10, a board of education has not entered into a written contract with a regularly employed teacher or notified the teacher in writing by registered or certified mail that a recommendation has been made not to reemploy the teacher for the ensuing fiscal year, and if, by April 25, such teacher has not notified the board of education in writing by registered or certified mail that such teacher does not desire to be reemployed in such school district for the ensuing year, such teacher shall be considered as employed on a continuing contract basis and on the same salary schedule used for other teachers in the school district for the ensuing fiscal year, and such employment and continuing contract shall be binding on the teacher and on the school district.

The Board failed to comply with the above-cited part of the Teacher Due Process Act in three respects: (1) the letter of intent not to reemploy did not come from the Board; rather, it was the Superintendent's letter of recommendation not to reemploy, more properly addressed to the Board; (2) the letter was hand-delivered by the principal, rather than being sent by registered or certified mail; and (8) the letter was delivered on April 10 rather than prior to April 10.

¶ 5 We hold that because the statute requires the Board of Education to make the final employment decision and give notice to the teacher, the letter from the superintendent to the Board of Education recommending non-renewal of contract was insufficient to act as a termination letter. It was a proposal only and fell short of starting the statutory process for termination of a teacher's employment contract. It was no "mere technical violation." House v. Independent School District I-29 of Muskogee County, 1997 OK 35, ¶ 15, 939 P.2d 1127, 1131.

¶ 6 In addition, although we hold that a contract of employment was formed April 10, 2000 for the 2000-2001 school year, we make no comment concerning the merit of Morrison's motion for partial summary judgment, which was denied; nor whether Morrison's claim for tortious breach of contract is valid.

¶ 7 We REVERSE the grant of summary judgment in favor of Board and REMAND the matter to the trial court for further proceedings.

¶ 8 JOPLIN, V.C.J. and JONES, J., concur.

      . Although Morrison also sued Superintendent Frankenberg, it was undisputed that Franken-berg was acting in his official capacity. Morrison does not raise error in granting summary judgment as it relates to Frankenberg.