Jury trials are the pinnacle of the practice of law – a time-honored tradition with present-day relevance. A forum for presenting differing points of view. A check against government overreach. A stage for storytelling. A constitutional touchstone.

            In the criminal defense context, a jury trial is also the lens for evaluating every case that comes through the door of a law office. Every witness, statement and shred of evidence must be viewed in light of how it could be used – or defended against – at a jury trial. For some clients, the jury trial is a moment of vindication. For others, it is their last moment of freedom.

            One of a criminal defense attorney’s first jobs is to evaluate the risk of conviction for each charge against a client. What is the most likely outcome at a jury trial? If the client is convicted, how can the attorney obtain the best outcome at sentencing? What is the likelihood the jury will empathize with the client enough to choose a lesser offense instead of a greater one? Should the attorney talk to the jury about a lesser offense at all? This article explores the issue of “lesser related” crimes. If you practice long enough in the area of criminal law – whether you are a judge, a prosecutor or a defense attorney – you will eventually encounter this doctrine. Since the topic of “lesser related” crimes originates from the doctrine of lesser included offenses, this discussion will begin there.

DUE PROCESS

            The doctrine of lesser included offenses is rooted in the due process concept of notice. “Simply put, due process requires that a defendant have notice of the crime with which he is charged.”[1] “It is ancient doctrine of both the common law and of our Constitution that a defendant cannot be held to answer a charge not contained in the indictment brought against him.”[2]

            In Oklahoma, this doctrine is codified at 22 O.S. §916: “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.” For decades, Oklahoma courts primarily applied the “elements” test to interpret this statute.[3] This meant, “[A]n offense is a lesser included one only where the greater offense cannot be committed without necessarily committing the lesser.”[4] This paralleled the U.S. Supreme Court’s application of the doctrine.[5] But the elements test is not the only test found in Oklahoma case law.

            Three other approaches have appeared at various times: the pleadings test,[6] the evidence test[7] and a hybrid of the pleadings and evidence tests.[8] The “pleadings” test considers “not only ... the strict elements of the offenses, but look[s] to the facts alleged in the indictment/information to determine if a lesser included offense of the greater charged offense existed.”[9] The “evidence” test “considers not only the elements [of the charged crime], but [also] looks to the crimes the trial evidence tends to prove.”[10] Finally, the “hybrid pleadings/evidence” test allows the court to review “all materials made available to a defendant through discovery and at the preliminary hearing, not just the Information.”[11] Of these different approaches, the elements test appears to have been followed more than the others.[12]

NEW PROCESS

            In 1999, Oklahoma law finally settled on the evidence test for the doctrine of lesser included offenses.[13] The case that formally made the announcement was Shrum v. State. The Shrum court noted that recent decisions of the “Court continue[d] to be inconsistent in [their] approach to lesser included offenses.”[14] In one case, the court had applied “the strict statutory elements approach,”[15] while another case “utilized the hybrid pleading/evidence test.”[16] The Shrum court reiterated the due process roots of the doctrine of lesser included offenses: “The principal impediment to administering instructions on related, but not necessarily included, offenses is the defendant’s due process right to notice of the charges against which he must defend.”[17] Ultimately, the Shrum court took “this opportunity to formally adopt ... the evidence test to determine what constitutes a lesser included offense of any charged crime.”[18]

            According to the evidence test, there is a two-step analysis. The first step “requires courts to make a legal determination about whether a crime constitutes a lesser included offense of the charged crime or whether it is legally possible for the charged crime to include a lesser included offense.”[19] The lesser-offense jury instruction is appropriate in situations “where the lesser and the greater offense are in the same class of offenses and are closely or inherently related, but the elements do not satisfy the strict statutory elements test.”[20] Shrum did not define how close the offenses need to be or how inherently related. The court in Shrum was presented with two different theories of homicide offenses. It concluded that all homicides are inherently related, and a jury instruction as to any lesser form is appropriate.[21]

            The second step is “whether the trial evidence warrants instruction.”[22] In other words, the court “looks to the crimes the trial evidence tends to prove” to see if the lesser charge was supported by some of the evidence at trial.[23] If the elements of the two crimes are related and the evidence tends to establish the lesser crime, the evidence test is satisfied, and the jury instruction may be given – even over the defendant’s objection.[24]

            Shrum involved a defendant who shot and killed his stepfather after a heated argument.[25] The defendant was charged with first-degree malice murder,[26] but he was ultimately convicted of first-degree heat of passion manslaughter.[27] The state requested the jury instruction on the lesser offense, and the defendant did not object.[28] A central issue was whether the defendant acted with malice in a heat of passion or out of self-defense.[29] Applying the evidence test, the Shrum court concluded that all lesser forms of homicide were “necessarily included,” and the court could instruct the jury on them if they were supported by the evidence.[30] The Shrum court then walked through three scenarios of how to apply this test.

THREE VIGNETTES

            The first scenario given was if the trial court sua sponte proposes to instruct the jury on a lesser offense that was supported by the evidence.[31] If the defendant objects, that preference must be respected, and the “defendant shall have the right to affirmatively waive any lesser included offense instruction that the evidence supports and proceed on an ‘all or nothing approach.’”[32] In other words, a defendant can choose to submit the case to the jury on the greater offense only and not allow the jury to consider any lesser offenses. If the jury concludes that the state did not quite prove its case as to the greater offense, the defendant would have to be acquitted. A criminal defense attorney is well advised to discuss the pros and cons of this decision with each client before it ever comes up at a jury trial.

            The second scenario given was if the prosecution requested a lesser offense instruction, and the defendant objects.[33] In that situation, “[T]he trial court should review the Information together with all material that was made available to the defendant at preliminary hearing and through discovery to determine whether the defendant received adequate notice that the State’s case raised lesser related offenses that should be deemed included.”[34] It appears in this second scenario that the defendant does not have a veto power on a requested jury instruction as long as they had sufficient notice of a lesser related offense before the beginning of the jury trial.

            The third scenario given was if either the trial court or the prosecution offers a jury instruction on a lesser offense and the defendant does not object.[35] In this scenario, the defendant might actually want the jury instruction on the lesser crime but not quite enough to ask for it themselves. In such a case, the court is allowed to “presume the defendant desired the lesser included offense instruction as a benefit.”[36] Let the defendant beware: If you do not object immediately, you generally lose the ability to object later.

            The moral of the story for defense attorneys was to object to any substantive jury instructions that you do not request, and carefully discuss the pros and cons of jury instructions for lesser related crimes with your clients before the jury trial ever starts. The moral of the story for prosecutors was that you should ask many questions at the preliminary hearing (in felony cases) and make sure you provide everything in your file relating to lesser crimes to the defense – just in case the court evaluates whether the defendant had notice of the lesser related crime or not. The moral of the story for judges was to avoid any jury instructions that the defendant objected to, unless the prosecutor asked for the instruction specifically and there was enough evidence to show the defendant had notice that they might be on trial for a lesser related crime.

PREDICTION

            Judge Lumpkin wrote a concurring opinion in Shrum to “separately ... address the issue of lesser included offenses.”[37] It appears he foresaw problems with the “evidence” test because he warned, “Imprecise writing in appellate opinions can later be the basis to disregard the plain language of a statutory rule and expand a legal concept beyond its legislative intent.”[38] He noted, “The law must provide a steady plumb line if the rule of law is to prevail.”[39] He observed that, “[T]he discomfort of ... legal challenge[s] should not be allowed to be the catalyst to discard objective legal standards.”[40] Then he reviewed the history of 22 O.S. §916 and noted, “[P]rior case law ... has remained largely (albeit not entirely) consistent through the years.”[41] He explained, “Regardless of the shortcuts or difference in writing styles in prior opinions, the cases are all based on the underlying premise that the alternate charge must be a lesser included offense of the primary charge and that determination is not based upon the particular facts of each separate case.”[42] He went on to say, “The offenses that comprise lesser included offenses do not change from case to case [and that] [t]he only change is whether the evidence in each particular case is sufficient to warrant a jury instruction.”[43] He concluded by saying, “It is for these reasons I must object to the Court’s embarking on an adoption of a policy regarding lesser included offenses that I believe disregards the doctrine of stare decisis and the plain language of [22 O.S.] Section 916.”[44]

PANDEMONIUM

            The concept of “lesser related” crimes blossomed after Shrum. In one first-degree murder case, the defendant was entitled to a second-degree felony murder jury instruction because, “A trial court is required to instruct on all lesser included or lesser related offenses warranted by the evidence.”[45] In another first-degree murder case, Glossip v. State, the court held that being an accessory after the fact was a lesser related offense to first-degree murder because relevant evidence had been presented at trial and because it was the defense’s theory of the case.[46] But in yet another first-degree murder case, Miller v. State, the court upheld a trial court’s decision to decline an accessory-after-the-fact jury instruction when the defense’s theory was total innocence, and the evidence on the issue was conflicting.[47]

            In McHam v. State, the defendant’s right to choose an all-or-nothing strategy was taken away, and courts were then allowed to instruct sua sponte on any lesser related crimes shown by the evidence.[48] A few years later, in Barnett v. State, giving a lesser related instruction was no longer merely an option for the court, it became a duty: “The district court has a duty to instruct on lesser included or lesser related offenses which are supported by the evidence.”[49]

            Then, in State v. Tubby, the court was presented with a situation where it was “unable to determine whether Accessory to First Degree Felony Murder was a legally recognized lesser included offense” due to an insufficient appellate record.[50] Since the “State did not designate those portions of the trial transcript containing the evidence at trial” and “[b]ecause the determination [of] whether an offense is a legally recognized lesser included offense is based upon the crimes the trial evidence tends to prove[,] we find that the State has failed to ensure a sufficient record to determine the question raised on appeal.”[51]

            Fast forward to 2018. Judge Lumpkin authored two separate opinions that dealt with lesser related offense issues. In Bench v. State, the court considered whether second-degree depraved-heart murder was a lesser offense to the crime of first-degree murder.[52] Judge Lumpkin noted the historical tradition of the elements test: “This Court had traditionally looked to the statutory elements of the charged crime and any lesser degree of crime to determine the existence of any lesser included offenses.”[53] Then he referenced Shrum’s adoption of the evidence test that included “situations where the lesser and greater offense are in the same class of offenses and are closely or inherently related, but the elements do not satisfy the strict statutory elements test.”[54] But notable throughout his discussion is that he avoided the phrase “lesser related” and instead used the phrases “lesser included” and “necessarily included” to describe whether second-degree murder was a lesser offense of first-degree murder.[55] This language is more akin to the elements test, not the evidence test. Then he went through the two-step analysis and concluded that a second-degree murder charge was historically a lesser included offense to first-degree murder, but he ultimately found that the jury instruction in question was not supportable by the evidence that had been presented at trial.[56]

            In the second case from 2018, Bivens v. State, Judge Lumpkin was presented with the question of whether possession of an illegal substance with intent to distribute was a lesser related crime of the offense of drug trafficking.[57] In that case, the trial court had failed to give such a jury instruction sua sponte, and the defendant appealed.[58] Judge Lumpkin again cited Shrum and its progeny to establish the two-part test, but he stopped the analysis as soon as he determined that the requested jury instruction was not a lesser included offense: “Appellant fails to meet the first step of the analysis as the crime of Possession with Intent to Distribute is not a legally recognized lesser included or lesser related offense to the crime of Trafficking.”[59] Again, this is the language of the previous “elements” test, not the current “evidence” test.

SUMMARY

            It appears that we now have a two-step hybrid elements/pleadings/evidence test. First, the court should determine whether the proposed jury instruction is for a lesser included offense[60] or a lesser related offense.[61] Second, the court should evaluate whether prima facie evidence was presented at trial to support the lesser offense[62] while being careful to account for whether the defense’s theory of the case lines up with it.[63] If the defense’s theory matches the instruction, the instruction may be given.[64] If it does not, the instruction should be refused.[65]

            Notable in this new formulation is the court’s return to an elements-based analysis for the first step of the test. Under Bivens and Bench, courts may compare the elements of the greater offense against the elements of the lesser offense before looking to see if the evidence in the case matches the lesser offense. If there is insufficient congruence between the elements of the two crimes, the analysis may stop there, and the jury instruction would not be appropriate.[66] Judge Hudson noted this in his concurrence in Bivens: The “[m]ajority utilizes a two-step approach that begins with the ‘elements’ test” instead of the “evidence” test.[67] Judge Kuehn also noticed this shift in her concurrence in Bivens by pointing out that the majority had relied on a strict elements test case in reaching its conclusion that possession with intent is not a lesser included offense of the crime of drug trafficking.[68] Both Judge Hudson and Judge Kuehn also made similar points in their separate concurring opinions in Bench.[69]

            The law surrounding lesser related crimes can be beneficial to the prosecution at times and beneficial to the defendant at other times. On the one hand, a defendant can force the jury to hear instructions about other lesser crimes more easily than before Shrum. A defendant is not necessarily restricted to the exact elements of the charged crime. Counsel should be alert throughout the trial to the possibility that a lesser crime could fit the facts better. If such facts come out, counsel should consider requesting the lesser related offense jury instruction(s). This could result in better outcomes for some defendants and lower sentences for lesser offenses, especially in cases where there are strong mitigating facts.

            On the other hand, Shrum and its progeny authorize the government to put instructions in front of the jury for a wider array of crimes, including those based on any facts alleged in the pleadings, on testimony from the preliminary hearing and on the evidence that comes out at trial. With more crimes for a jury to consider, there can be a greater likelihood that a defendant will get convicted of something at a jury trial.

Cases like Bench and Bivens may signal a revival of the “elements” test in the first step of the Shrum analysis. Or perhaps they are examples of how every case must be considered on its own unique facts. Or maybe they represent a “Step Zero” in the Shrum analysis, requiring courts to make an initial determination on whether case law has already categorically placed a particular lesser offense inside or outside the scope of the doctrine of lesser related crimes.[70]

            No doubt, future cases will continue to reveal the precise contours of the doctrine of lesser related crimes. In the meantime, forewarned is forearmed.

            “Your Honor, the defense is ready.”

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ABOUT THE AUTHOR

Caleb A. Harlin is a solo practitioner in Muskogee, where he lives with his wife, Katie, and their children. He practices in the areas of criminal defense, civil litigation, family law, estate planning and appellate work. He has two J.D. degrees, is licensed to practice in Oklahoma and California and is a concert pianist. He can be contacted at charlin@harlinlawfirm.com.

 

 

 

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ENDNOTES

[1] Parker v. State, 1996 OK CR 19, ¶18, 917 P.2d 980, 985.

[2] Schmuck v. United States, 489 U.S. 705, 718 (1989).

[3] Shrum v. State, 1999 OK CR 41, ¶7, 991 P.2d 1032, 1035; Willingham v. State, 1997 OK CR 62, ¶¶19, 27, 947 P.2d 1074, 1080.

[4] State v. Uriarite, 1991 OK CR 80, ¶8, 815 P.2d 193, 195.

[5] Schmuck, 489 U.S. at 716 (“We now adopt the elements approach.”).

[6] Shrum, at ¶8, 991 P.2d at 1035-36.

[7] See e.g., Darks v. State, 1998 OK CR 15, ¶31, 954 P.2d 152, 161; see also Shrum, 1999 OK CR 41, ¶9 n7, 991 P.2d at 1036, n7.

[8] See infra note 11.

[9] Shrum, at ¶8, 991 P.2d at 1035-36.

[10] Id. at ¶9, and ¶9, n7, 991 P.2d at 1036 and 1036, n7.

[11] Riley v. State, 1997 OK CR 51, ¶4, 947 P.2d 530.

[12] Cf., e.g., Willingham v. State, 1997 OK CR 62, ¶27, 947 P.2d 1074, 1081 (elements test), Floyd v. State, 1992 OK CR 22, ¶10, 829 P.2d 981, 984 (elements test); State v. Uriarite, 1991 OK CR 80, ¶8, 815 P.2d 193, 195 (elements test); Hale v. State, 1988 OK CR 24, ¶18, 750 P.2d 130, 136, cert. denied, 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164 (1988) (elements test); Trevino v. State, 1987 OK CR 89, ¶5, 737 P.2d 575, 577 (elements test); Harris v. State, 1955 OK CR 133, ¶8, 291 P.2d 372, 374 (elements test); Thoreson v. State, 69 Okl.Cr. 128, 100 P.2d 896, 902 (1940) (elements test); and Cochran v. State, 4 Okl.Cr. 379, 111 P. 974, 975 (1910) (elements test); with Riley v. State, 1997 OK CR 51, ¶¶14-15, 947 P.2d 530, 533-34 (hybrid pleadings/evidence test); Morris v. State, 1979 OK CR 136, ¶18, 603 P.2d 1157, 1161 (pleadings test: “[A]n insufficient information can support conviction for any lesser offense properly alleged even if it cannot support conviction for the crime charged.”); Parker v. State, 1996 OK CR 19, ¶24, 917 P.2d 980, 986 (hybrid pleadings/evidence test)(“This Court will look to the ‘four corners’ of the Information together with all material that was made available to a defendant at preliminary hearing or through discovery to determine whether the defendant received notice to satisfy due process requirements.”); Smith v. State, 1946 OK CR 115, 83 Okl.Cr. 209, 244, 175 P.2d 348, 367 (pleadings test: information charging defendant with murder alleged sufficient facts to justify manslaughter instruction); Kelly v. State, 1916 OK CR 3, 12 Okl.Cr. 208, 219, 153 P. 1094, 1097 (pleadings test: “Where criminal acts of widely different characteristics are arranged together under a statute as degrees of an offense of the same name, a conviction cannot be had of a crime as included in the offense specifically charged, unless the information in charging a higher degree contains all the essential allegations of the lower degree.”).

[13] Shrum v. State, 1999 OK CR 41, ¶10, 991 P.2d 1032.

[14] Id., at ¶10, 991 P.2d at 1036.

[15] Willingham v. State, 1997 OK CR 62, ¶¶19, 27, 947 P.2d 1074, 1080.

[16] Riley v. State, 1997 OK CR 51, ¶15, 947 P.2d 530, 533-34.

[17] Shrum, at ¶6, 991 P.2d at 1033.

[18] Id., at ¶10, 991 P.2d at 1036.

[19] Id. at ¶7, 991 P.2d at 1035 (citation, internal quotations marks and internal brackets omitted).

[20] Id., at ¶8, 991 P.2d at 1035.

[21] Id., at ¶10, 991 P.2d at 1036.

[22] Id., at ¶7, 991 P.2d at 1035.

[23] Id., at ¶9, 991 P.2d at 1036.

[24] Id., at ¶12, 991 P.2d at 1037.

[25] Id., at ¶2, 991 P.2d at 1033.

[26] Id., at ¶3, 991 P.2d at 1033.

[27] Id., at ¶1, 991 P.2d at 1033.

[28] Id., at ¶3, 991 P.2d at 1033.

[29] Id., at ¶2, 991 P.2d at 1033.

[30] Id., at ¶10, 991 P.2d at 1036.

[31] Id., at ¶11, 991 P.2d at 1036.

[32] Id., at ¶11, 991 P.2d at 1036-37; citing O’Bryan v. State, 1994 OK CR 28, ¶11, 876 P.2d 688, 689-90 (“Now after your discussion with me [defense counsel] and your own independent decision, do you want to go murder one or nothing? Defendant O’Bryan: Yes. Defense Counsel: Okay. The Court: All right. The record is clear that Appellant made a knowing and intelligent waiver of her right to a lesser included offense instruction and chose instead to rely on an all or nothing approach.”).

[33] Id., at ¶11, 991 P.2d at 1037 (citation omitted).

[34] Id.

[35] Id., at ¶11, 991 P.2d at 1037.

[36] Id.

[37] Id., at ¶1, 991 P.2d at 1038 (Lumpkin, V.P.J., concurring in result).

[38] Id., ¶3, 991 P.2d at 1038 (Lumpkin, V.P.J., concurring in result). He wrote, “In this case, we review the issue only for plain error as [the defendant] failed to raise any objections to the heat of passion manslaughter instructions and waived his right to do so now. Finding no plain error, the remainder of the Court’s discussion is only dicta.” Id. at ¶1, 991 P.2d at 1038 (Lumpkin, V.P.J., concurring in result).

[39] Id., at ¶2, 991 P.2d 1038 (Lumpkin, V.P.J., concurring in result).

[40] Id., at ¶8, 991 P.2d at 1039 (Lumpkin, V.P.J., concurring in result).

[41] Id., at ¶4, 991 P.2d at 1038 (Lumpkin, V.P.J., concurring in result).

[42] Id., at ¶6, 991 P.2d at 1038-39 (Lumpkin, V.P.J., concurring in result).

[43] Id.

[44] Id., at ¶8, 991 P.2d at 1039 (Lumpkin, V.P.J., concurring in result).

[45] Childress v. State, 2000 OK CR 10, ¶14, 1 P.3d 1006, 1011 (emphasis added).

[46] Glossip v. State, 2001 OK CR 21, ¶29, 29 P.3d 597, 604.

[47] Miller v. State, 2013 OK CR 11, ¶¶138-40, 313 P.3d 934, 980-81.

[48] McHam v. State, 2005 OK CR 28, ¶20, 126 P.3d 662, 670.

[49] Barnett, 2012 OK CR 2, ¶¶4, 18-22, 271 P.3d 80, 82, 86-87 (emphasis added) (trial court was correct to give second-degree felony murder jury instruction and deny first-degree manslaughter jury instruction in a first-degree malice aforethought murder case when there was no evidence of the lesser manslaughter offense).

[50] State v. Tubby, 2016 OK CR 17, ¶10, 387 P.3d 918, 921.

[51] Id.

[52] Bench v. State, 2018 OK CR 31, ¶68, 431 P.3d 929, 953.

[53] Id. at ¶72, 431 P.3d at 954.

[54] Id. (internal quotation marks omitted).

[55] Id. at ¶¶73-74, 431 P.3d at 954.

[56] Id. at ¶¶74-82, 431 P.3d at 954-56.

[57] Bivens v. State, 2018 OK CR 33, ¶¶23-24, 431 P.3d 985, 994-95.

[58] Id. at ¶23, 431 P.3d at 994.

[59] Id. at ¶24, 431 P.3d at 994.

[60] See, e.g., Bench, at ¶¶74-82, 431 P.3d at 954-56, and Bivens, ¶¶23-24, 431 P.3d at 994-95.

[61] Shrum, supra, and Barnett, supra.

[62] See, e.g., Bench, at ¶¶74-82, 431 P.3d at 954-56, and Bivens, ¶¶23-24, 431 P.3d at 994-95.

[63] See, e.g., Glossip, at ¶29, 29 P.3d at 604, and Miller, at ¶¶138-40, 313 P.3d at 980-81.

[64] Glossip, at ¶29, 29 P.3d at 604.

[65] Miller, at ¶¶138-40, 313 P.3d at 980-81.

[66] Bivens, at ¶24, 431 P.3d at 995-96.

[67] Bivens, at ¶1, 431 P.3d at 996-97 (Hudson, J., concurring in results).

[68] Id. at ¶1, n1, 431 P.3d at 997, n1 (Kuehn, J., concurring in results) (“The Majority relies on Dufries v. State, 2006 OK CR 13, ¶20, 133 P.3d 887, 891. However, Dufries itself is in conflict with Shrum. Although Dufries was decided well after Shrum, it relies on Ott v. State, 1998 OK CR 51, ¶13, 967 P.2d 472, 477. Ott was decided before Shrum and thus used the strict elements test in effect at that time, which was explicitly rejected in Shrum.”).

[69] Bench, at ¶2, 431 P.3d at 985 (Hudson, J., concurring in result) (“The majority’s statement that second degree murder has historically been considered a lesser included offense of first degree malice murder is superfluous ... the legal determination is already made, and the trial court need only look to the evidence to determine whether instructions on lesser forms of homicide are supported.”) (internal quotation marks, citation omitted); Bench, at ¶2, 431 P.3d at 983 (Kuehn, J., concurring in result) (“We have rejected the strict ‘elements’ approach to deciding whether it is appropriate to instruct on lesser offenses. Instead, we consider (1) whether a reasonable view of the evidence meets all elements of the lesser option, and if so, (2) whether a rational juror could have acquitted Appellant of the greater option and convicted him of the lesser – in other words, whether a rational juror could have disregarded any evidence or element that distinguishes the greater from the lesser.”) (citation omitted).

[70] If there is such authority holding that a particular offense is not a lesser offense, that ends the analysis before it begins, and the proposed jury instruction is not proper. Bivens, at ¶24, 431 P.3d at 994-95. Alternatively, if there is no authority on that particular lesser offense, then the court proceeds with the Shrum two-step analysis as usual. Finally, if there is authority that a particular offense is a lesser offense, then courts may proceed directly to the second step of the Shrum analysis. Bench, at ¶74, 431 P.3d at 954.