author: VOIGT, Justice.

text:
    2003 WY 106
    Lance W. SPINNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-222.
    Supreme Court of Wyoming.
    Sept. 5, 2003.

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

[11] In June 2001, a Campbell County jury found Lance Spinner (appellant) guilty of battery against a household member in violation of Wyo. Stat. Ann. § 6-2-501(b) and (F)(ii) (LexisNexis 2003), a felony. The district court sentenced appellant to a fifteen to twenty-four month prison term. On appeal, appellant argues that the district court erred in allowing the State to introduce expert rebuttal testimony that amounted to improper character evidence, that in their trial testimony, officers attributed statements to appellant that were obtained in violation of appellant's Miranda rights, that the prosecutor improperly commented on appellant's pre-arrest silence, that the district court erred in allowing witness testimony regarding the alleged victim's hearsay statements pursuant to the excited utterance exception, that the district court erred in failing to bifurcate the proceedings concerning evidence of appellant's prior convictions, and that these claimed errors amounted to cumulative error requiring a reversal of appellant's conviction. We reverse and remand for a new trial.

ISSUES

[T2] Appellant phrases the appellate issues as follows:

ISSUE I
Whether the trial court erred in allowing the testimony, on rebuttal, of the State's expert witness Michelle Daigle, as said testimony was used by the State as improper character evidence against appellant and it was not true rebuttal evidence?
ISSUE II
Whether appellant was timely advised of his Miranda rights, and whether statements made by appellant which were used against him, were in violation of his constitutional rights?
ISSUE III
Whether the prosecutor impermissibly commented on appellant's pre-arrest silence, solicited impermissible evidence of appellant's pre-arrest silence and argued appellant's guilt based upon appellant's pre-arrest silence, all in violation of appellant's constitutional rights?
ISSUE IV
Whether the district court erred by admitting prejudicial and improper hearsay, determining that such hearsay qualified as an "excited utterance" under W.R.E. 808(2)?
ISSUE V
Whether appellant was denied due process when the court failed to bifurcate the domestic violence trial from the penalty phase, thus allowing the jury to hear about Mr. Spinner's two prior domestic violence convictions?
ISSUE VI
Because of the numerous errors made during appellant's trial, did cumulative error occur?

The State phrases the issues in substantially the same manner.

FACTS

[T8] On January 19, 2001, appellant and his girlfriend, Jessica Manke (Manke), shared a residence in Campbell County. That evening, the two went to a party at Sean Eckenrod's (Eckenrod) residence. Upon arriving at the party, appellant and Manke began arguing and raised mutual allegations of unfaithfuiness. Manke returned home and appellant remained at the party. Around 4:00 a.m. on January 20th, Eckenrod and appellant returned to appellant's residence, where appellant and Manke resumed arguing.

[T4] We will very generally refer to the witness testimony as to what occurred thereafter. Eckenrod testified that during the argument, Manke twice initiated physical contact with appellant and also asked Eicken-rod to "knock" appellant "out." According to Eckenrod, appellant ultimately turned and walked away from Manke, and Manke locked herself in the bathroom. Eckenrod and appellant continued to converse, and Eckenrod left the residence by 5:80 a.m.

[T5] Appellant chose to testify at trial He testified that during the argument, Manke twice initiated physical contact with him and he "threw her off," he and Manke disturbed items in their bedroom as each wanted the other to leave the residence with their respective belongings, and Manke then "ran into the bathroom and locked the door." According to appellant, Manke stated that she would not leave the residence and threatened suicide. At some point, appellant heard glass "shattering" and unlocked the bathroom door with a kitchen knife. He discovered the bathroom in disarray and Manke holding glass in her hands. Appellant removed the glass from Manke's hands, which appeared to be cut and scraped, and attempted to calm Manke. According to appellant, Manke then left the residence in her car.

[16] Manke did not testify in person at trial. Instead, appellant's counsel played her taped preliminary hearing testimony to the jury. In that testimony, Manke stated that she initiated physical contact with appellant during the argument, he "pushed" her away but did not otherwise initiate physical contact with her, and she locked herself in the bathroom. According to Manke, she "popped a handful of sleeping pills" because she did not want appellant to leave and "punched out a picture frame." Appellant entered the bathroom and held her only "to keep me from hurting myself," and Manke left the residence for the Knigge residence because she wanted "sympathy." At the Knigge residence, Manke told the police that appellant choked her, kicked her, and pulled her hair, but claimed at the preliminary hearing that she lied to the officer out of "[alnger, frustration, and I was wanting to get Lance back," "It was revenge."

[17] Lyle "Buzz" Knigge, and his girlfriend Mary Knigge, lived three trailers from appellant and Manke. At approximately 7:00 am. on January 20th, while Buzz and Mary Knigge were sleeping, Manke entered the Knigge residence, "crying and screaming," through an unlocked patio door. Buzz Knigge, awakened from a deep sleep, asked "What the hell is going on?," to which a "pretty upset" Manke replied "Lance just beat the shit out of me." According to Mary Knigge, Manke came "running in" and appeared "seared," and told Mary Knigge that she and appellant "got in a fight" and appellant was "choking her." Mary Knigge observed redness on Manke's neck, and an injury to her hand. Mr. Knigge called the police.

[18] Officers Rebecca West and Chuck Deaton arrived at the Knigge residence shortly thereafter. As the officers arrived, they encountered appellant as he proceeded towards the Knigge residence. After some interaction, Officer West went inside the Knigge residence, while Officer Deaton remained outside with appellant. Upon entering the residence, Officer West recalled that Manke was "real stiff" and "lethargic," "(all-most in shock," her voice was "scratchy and she kept having to clear her throat." According to the officer, Manke's right hand was covered in blood, a couple of the knuckles swollen and bruised, her throat area was red, and she complained of a bruise on her arm and a knot on the left side of her forehead.

[19] Officer West exited the residence, informed appellant that he was under arrest, and a struggle between appellant and the officers ensued. At some point during the struggle, Officer West recalled appellant screaming "she's cheating on me, what was I supposed to do." The officers subdued appellant and Officer Jason Mareus transported appellant to the detention center. According to Officer Mareus, appellant again stated "What was I supposed to do? She was cheating on me" during the transport. Appellant also apparently stated that he had not done anything to warrant his arrest.

[T10] Manke informed an EMT who responded to the Knigge residence that she "had been hit with a fist to her head and shoulders, and that she had been choked." She also complained of neck, left clavicle, and right wrist pain, and tenderness in her lower back. A nurse noted that Manke reported "right hand pain through glass frame. Neck and back. Fell into tub. Choked. Hit head."

[T11] Officer West went to appellant's residence and described the seene as follows:

As we go into the back in the main master bedroom, the place is destroyed. There's blankets everywhere and the curtains were ripped off the windows. The clothes are ripped thrown everywhere. It's a complete mess. The window above the bed has been shattered. There's glass on the floor.
So we go in the bathroom and there's a picture frame that's wooden in the garbage can and also glass on the floor as well as in the garbage can. There's a broken towel rack. There's clothes and stuff strung all over the place in the bathroom.

Two days later, Manke's mother observed bruising on Manke's neck that "looked like from fingers." - However, when Officer West contacted Manke to take pictures of bruising, Manke replied that there was no bruising.

[112] Appellant was charged with battery on a household member in violation of Wyo. Stat. Ann. § 6-2-501(b) and ((), a felony. In June 2001, a jury found him guilty of that offense, and the district court sentenced appellant to a fifteen to twenty-four month prison term. Appellant appeals from that judgment and sentence.

DISCUSSION

Constitutional Right to Silence

[113] Appellant argues that the prosecutor improperly commented on appellant's pre-arrest silence during opening statement, in questioning law enforcement officers during the prosecution's case-in-chief and rebuttal case, in cross-examining appellant, and during the prosecution's closing and rebuttal argument. Appellant's trial counsel did not object to these alleged comments at trial. On appeal, it is therefore incumbent upon appellant to demonstrate plain error in that "the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right." Compton v. State, 931 P.2d 936, 939 (Wyo.1997).

[¥14] The record clearly reflects what occurred at trial without resorting to speculation. To accurately establish the context of the challenged statements, we quote extensively from the trial record. The prosecutor made the following remarks during opening statement:

The police ... [plulled up and Becky West sees this man, the defendant, approaching [the Knigge residence] quickly. She intercepts him at the fence. The defendant is just approaching the gateway to Buzz's yard when Becky West approaches him and intercepts him.
And she says, "Who are you, because we just got called to this disturbance."
She just wants to know his name. Who are you? The defendant refuses to give her his name. She says, "Where do you live?"
The defendant refuses to even say where he lives.
He's asked several times by officers who he is, and never once for the simple request just to know who he is does he give them any information at all.
He's just trying to dodge around moving back and forth and trying to get closer and closer and closer to the inside of Buzz Knigge's house where Jessica had ran to.
In fact, at one point the officers are out there and he says he wants to go check on his car trying to go around. There's a back entrance to Buzz Knigge's house, ladies and gentlemen, back here. The defendant tries to go around that way and they intercept and say, no, you need to stay right here until we figure out what's going on.

[T15] The prosecutor then elicited the following testimony from Officer West during the prosecution's case-in-chief:

A. We got a report that the dispatcher said she received a 911 call from [the Knigge address] stating that there was a female there that had run from [appellant's address] because there had been a physical family fight between her and a male.
Q. So when you pulled up to [the Knigge address], did you have any names at that point as to who was involved and in what? .
A. No, we did not. The only name we had was that the victim was at Buzz Knigge's house.
Q. Okay. When you pulled up to [the Knigge address], do you see anything right on pulling up?
A. Yeah. As we were pulling up to the house, we noticed that there was a male dressed in jeans and a green long-sleeve shirt walking towards the trailer. He's almost to the corner of the yard when we pull up in the drive there.
A. As we're pulling in, he's still on the street and he crosses over and he's just about to the corner of the residence....
Q. When you see this male approaching [the Knigge address], what do you do?
A. Well, I immediately-I was in the passenger's side. I immediately get out of the patrol car. Officer Deaton gets out shortly after me and we confront the male. He's about to the gate. He hasn't quite made it to the chain link gate. Then at that time I asked him what his name was and if he lived there. And he stated no, and he wouldn't tell me what his name was.
Q. Let me slow you down here....
Q. Okay. So you asked him what his name was and he wouldn't give that to you?
A. No. He told me he needed to go inside of the trailer and I asked him if he lived there and he told me no.
Q. What trailer is he saying that he needs to go inside of?
A. Into Buzz's trailer there. I knew that to be Buzz Knigge's house from prior contacts.
Q. Okay. What do you do at that point?
A. After he wouldn't tell me who he was and why he needed to be in the trailer, I told him we received a report from this trailer and we were there investigating a 911 call and needed to know what was going on. That's why it was important that we know who he was.
Q. You were just investigating at that point?
A. Yeah. We hadn't even touched him at that point. We weren't letting him in the gate. He kept trying to get in the gate but, yeah, I told him I couldn't let him in the house until we knew what was going on.
Q. What happens at that point?
A. He was real nervous. He was kind of bouncing off the sidewalk back and forth. Wouldn't stand still. Wouldn't answer. Wouldn't tell Chuck [Deaton] who he was. Wouldn't tell me who he was. At one point he tried to walk around me and reach for the latch on the chain link gate and actually flipped the latch up. At that point I grabbed the top of the gate and stood directly in front of him.
A. I told him he wasn't going to go in until we found out what was going on inside.
Q. What happens at that point?
A. - About that time is when he tells me fine, he's just going to go home. He won't tell us where home is. And Officer Marcus shows up about that time.
Q. Is this male in the green shirt-let me--just to clear things up, were you able to get the name at some point of who the male in the green shirt was?
A. Yeah, I-after I made an initial appearance on the deck and I just-I hadn't even crossed over the threshold of the trailer, I asked Buzz. And the female later identified him that this was the guy. And Buzz said, "Yeah, that's Lance." And I confirmed with Jessica that that was Lance. And then I stepped out and asked him if that was his name and he said it was.
Q. Okay. How many times before you actually found out from other people who he was? - How many times had he refused to give you that information?
A. I asked him three maybe four times, and I think that Officer Deaton asked him onee or twice.
Q. And until these people inside the trailer, inside Buzz's house, until they gave you his name, was the defendant ever cooperative in giving you his name?
A. - No, that was as much cooperation as he ever gave.
Q. Let me ask you about his mood. You said that he was kind of bouncing around.
A. Yeah. He was real-wouldn't stand still, He wouldn't talk to us. Real-just, yeah, just bouncing off the wall. He was real hyped up.
Q. Okay. During this time when you were approaching with Lance Spinner, did you ever-did he ever say anything to you, to you two officers?
A. While I'm-at what point?
Q. Well, did he ever respond to any questions of yours?
A. Not to mine, no. He just refused to answer anything I had to say.
Q. Okay. Beyond the questions that you've already testified about that you asked him, his name and where he lived, did you ask him any other questions?
A. I had asked him if his wife or girlfriend was inside the trailer and if they had had a fight. And he responded no to both of those questions.
Q. Did you, beyond asking him about that, did you ask him any other questions?
A. I just asked him what he was doing down there and he wouldn't tell us.

The prosecutor queried Officer Jason Marcus in a similar manner:

Q. Can you tell us-when you first saw this person you described as Lance Spinner, can you tell us what is his mood?
A. He was very excited at that point. I speak to Officer Deaton and he wants me to stay with the male, and he at that time wanted to get inside the fence area.
Q. Who wanted to get inside the fence area?
A. Lance Spinner.
Q. How do you know that?
A. He said he wanted to go in and see if his girlfriend was there.
Q. And you said he was very excited. Can you describe what was it about him that made you think he was excited?
A. He was walking back and forth and attempted to get inside the fenced area. I told him that he needed to stay here and talk to me, and I tried to get his name at that point. And he again tried to go inside the fenced area. I put my hand on his arm to stop him from going inside the fenced area just to see, you know, his name and other just general information I needed at that point.
Q. When you asked him the first time for his name, what did he tell you?
A. He didn't say anything. He was very in tuned about just the front of the residence. He was staring at the front door of the residence.
A. Yes. I put my hand on him to hold him-to stop from going inside the fenced area.
Q. What happened at that point?
A. At that time he again starts to pace and starts to go around the back of the residence saying he wants to see if his car is there.
Q. Does he actually head off in some direction?
A. Yes. He goes toward the back of the residence along the side.
A. At that time, again, you know, we got about to here. I told him we needed to come back because I wanted to make sure the other officers were okay at that point. And I told him just to stay over here by the front area of the home. And asked him again what his name was.
Q. Okay. When you get him around to the back-to the front or the first gate where you saw him at and you asked him his name, what-did he give you his name?
A. No, he doesn't. Again, he says that he just wants to see if she's in there. And Officer Deaton then comes out to assist me at that point. |
Q. At any time before Officer West comes back outside, does he give you any of the information that you requested?
A. No.

[T16] The prosecutor questioned Officer Jay Ostrem as follows regarding a phone conversation with appellant:

A. I told him that I was Sergeant Os-trem with the police department; that I was returning his call, and I asked how I could help him.
Q. What did he say?
A. He wanted to know why officers had been in his house and who these officers were.
Q. And what did you say?
A. I told him that the officers were probably in his house because it was a crime scene.
Q. Did he respond?
A. He stated that he had been arrested at Buzz Knigge's, which would be down in the area of [the Knigge address] and {appellant] was living at [appellant's address].
Q. And what did you say in the next step of the conversation?
A. Well, I asked him, "Where did you assault the girl?"
Q. Was that exact language?
A. Yes.
Q. What did he say?
A. He said, "In my house."
Q. Was that it?
A. Well, I told him, "Well, then it's a crime seene."
Q. When you tell him that it's a crime scene, does he have any further explanation?
A. Well, he seems fine with that. And then asked who the officers were that were in the house.
Q. Sergeant Ostrem, did Mr. Spinner ever say anything exactly about the fight itself?
A. No, he didn't.
Q. Okay. Did he ever question why it was a crime seene beyond what you told him?
A. No.

[T17] The prosecutor made the following remarks during closing and rebuttal argument:

What we do know with certainty is that [Manke] ran out of the house. She was upset. She was erying. She ran up to Buzz Knigge's house....
The defendant not far behind because just as the police get there, the defendant is approaching Buzz's residence.... He's moving straight across from [appellant's address] to [the Knigge address] and he wants to get in.
The police arrive. They don't even know who is involved in it, yet, they don't know anything so they approach the defendant and they say, "Hey, what's your name?" He won't even give them that information. They said, "Where do you live?" He won't give them that information either.
He's agitated. He's moving back and forth. He's trying to get closer and closer to [the Knigge address]. And why, ladies and gentlemen? Because he wants to get to the victim before the police do. That's what makes sense from that pattern.
And why does he want to get to the victim before the police do?
Because he just attacked her. He just caused the injury to her and he doesn't want to get in trouble again.
The defendant keeps trying to get around the officers. In fact, he starts outside the gate, ladies and gentlemen, trying to get around them. And as the officers are talking with him trying to get information from him, he repeatedly refuses to give any information. He then tries to go around to the other side. And around here, ladies and gentlemen, to the other door to get at [Manke].
The officers stop him. Jason Marcus says, "No, you've got to stay over here." And by that time the defendant manages to sneak around and get inside Buzz Knigge's gate before the officers are able to slow him down and stop him from moving any further. They even have to warn him, you know, if you don't stop that, you may be charged with interference. He's that uncooperative. He's that excited. He's that eager to get in with Jessica Manke and prevent her from hurting him. Prevent her from calling the law on him and getting him the just reward that he deserves for what he just did to her.
While speaking with Sergeant Ostrem, Sergeant Ostrem returns his phone call. The defendant-he wants to know why officers were in his house, and Sergeant Ostrem returns the phone call and says, "Well, it's a crime scene."
Defendant says, "I was arrested in front of Buzz Knigge's house."
Sergeant Ostrem says, "Where did you assault the girl?"
Defendant says, ["What?"
"Where did you assault your wife or girlfriend?"
Defendant says, "In my home."
And that is why it's a crime scene....
[Appellant's trial counsel] says that Sergeant Ostrem was trying to trip [appellant] up. What story makes more sense to you?
Okay, ladies and gentlemen, we had Sergeant Ostrem testify that there was nothing more to the conversation. No explanation of innocence by the defendant. That he wasn't injecting other things about protesting that Sergeant Ostrem had used the word "assault" with him. But, ladies and gentlemen, when [appellant's trial counsel] says what story makes more sense to you, that's when you are to draw credibility you have to think about who is more credible of a witness?

[118] Wyo. Const. art. 1, § 11 provides that no "person shall be compelled to testify against himself in any criminal case...." In Tortolito v. State, 901 P.2d 387, 390-91 (Wyo. 1995) (footnote omitted), we clearly and unequivocally held that pursuant to this constitutional provision, an individual's

constitutional right to silence exists at all times-before arrest, at arrest, and after arrest; before a Mirando warning and after it. The right is self-executing.
Under the erroneous view that no constitutional right to pre-arrest silence exists, a citizen who stands mute in the face of accusatory interrogation about the crime during a law enforcement investigation and inquiry is without constitutional protection against law enforcement personnel who treat silence as probative evidence of guilt. Law enforcement personnel can time the citizen's arrest to occur after the citizen stands mute in the face of the accusation. This practice, which encourages manipulative timing of arrests, does not serve the constitutional provision's purpose of protecting the right to silence during pre-arrest, accusatory interrogation by the state's agents. Permitting prosecutorial use of that silence discourages a law enforcement system's reliance upon extrinsic evidence independently secured through skillful investigation and, instead, encourages reliance upon compulsory self-disclosure. See Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 1764 12 LEd.2d 977 (1964).
Since the right to remain silent is a self-executing right, an accused is presumed to be exercising the right by his silence, pre-arrest and pre-Miranda when questioned by the state's agents for purposes of a criminal investigation. Accordingly, the prosecutorial use of the citizen's silence to infer the guilt of the citizen is constitutionally prohibited.
Prosecutorial violations are subject to the Clenin [v. State, 573 P.2d 844 (Wyo.1978)] rule's mandate that failure to respect the constitutional right of the citizen-accused not to have his silence called to the jury's attention will entitle the accused to a reversal of conviction. Westmark v. State, 693 P.2d 220, 221-22 (Wyo.1984), citing Clenin. A reference to silence which is not a "comment" will not be reversed absent a showing of prejudice. Parkhurst v. State, 628 P.2d 1369, 1382 (Wyo.1981).
A comment upon an accused's silence occurs when used to the state's advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt.

[T19] In analyzing right-to-gilence cases, we consider "the entire context in which the statements were made" and we will "not take sentences and phrases out of context." Robinson v. State, 11 P.3d 361, 373 (Wyo.2000), cert. denied, 532 U.S. 980, 121 S.Ct. 1620, 149 L.Ed.2d 4838 (2001). We also evaluate

whether the prosecutor asked improper questions, whether he emphasized or followed up on the silence issue, and whether he attempted to exploit the issue in any way.

Lancaster v. State, 2002 WY 45, ¶ 39, 43 P.3d 80, 96 (Wyo.2002).

[120] We conclude that the totality of the prosecutor's remarks, particularly during opening statement, and the prosecutor's repeated, specific questions and resulting witness testimony during the prosecution's case-in-chief, amounted to a "comment" on appellant's pre-arrest silence, and necessarily affected appellant's substantial right to "not have his silence called to the jury's attention." The prosecutor began the trial with remarks that exploited anticipated evidence regarding appellant's pre-arrest silence in the face of questions by police officers, and the characterizations contained in those remarks created a clear inference before the jury that appellant's silence and lack of verbal cooperation were consistent with his guilt. The prosecutor stated that when Officer West arrived and intercepted appellant as he quickly approached the Knigge residence, she just wanted to know appellant's name, and appellant "refuse[d]" to provide it to her; that the officer then asked appellant where he lived (which, at trial, the prosecutor knew to be the alleged crime scene) and appellant "refuse[d] to even say where he lives;" and finally that appellant was "asked several times by officers who he is, and never onee for the simple request just to know who he is does he give them any information at all."

[121] Having established this context and its accompanying inference in opening statement, the prosecutor proceeded to elicit testimony from several police officers regarding appellant's pre-arrest silence. Officer West first testified in response to a general question that appellant would not tell her his name. - However, the prosecutor revisited that testimony, repeatedly asked specific questions in that respect, and ultimately elicited a string of similar responses from the witness. At one point in questioning Officer West, the prosecutor even emphasized the extent of appellant's refusal to answer the officers' inquiries:

Q. Okay. How many times before you actually found out from other people who he was? How many times had he refused to give you that information?
A. I asked him three maybe four times, and I think that Officer Deaton asked him once or twice.
Q. And until these people inside the trailer, inside Buzz's house, until they gave you his name, was the defendant ever cooperative in giving you his name?
A. - No, that was as much cooperation as he ever gave.

The prosecutor then asked similar, quite specific questions of Officer Mareus and, to some degree, Officer Ostrem.

[T22] During closing and rebuttal argument, the prosecutor reiterated that "as the officers are talking with [appellant] trying to get information from him," appellant would not "even" provide his name or address to the officers and "repeatedly refuse[(d]" to give them "any information." While these statements were somewhat more focused in conjunction with the prosecutor's argument that appellant was attempting to "get to the victim before the police" because "he just attacked her," to "prevent her from hurting him," and to prevent "her from calling the law on him and getting him the just reward that he deserves for what he just did to her," evidence of appellant's silence was not meaningfully probative of that argument as opposed to the aforementioned inference; indeed, the substantive use of "silence" is generally of minimal probative value. See, e.g., Combs v. Coyle, 205 F.3d 269, 285 (6th Cir.), cert. denied, 531 U.S. 1085, 121 S.Ct. 623, 148 L.Ed.2d 5338 (2000). Further, the officers testified extensively to other evidence regarding appellant's alleged demean- or, alleged conduct, and alleged purpose at the Knigge residence (Officer Marcus testified that appellant said that he wanted to "go in and see if his girlfriend was there") that formed a basis much more probative of the prosecutor's argument. Lastly, in asserting that appellant's version of his conversation with Officer Ostrem was less credible than Officer Ostrem's version, the prosecutor stated that in talking with Officer Ostrem, there was "no explanation of innocence" by appellant.

[123] The State contends that the instant case is indistinguishable from Lancaster in that appellant's silence regarding his name and address was "largely in response to questions that were not about the crime being investigated." In Lancaster, 2002 WY 45, ¶¶37 and 40, 43 P.3d at 96 and 97, an officer testified that upon encountering Lancaster "walking along a dirt road in a rural area at about 6:00 am." and, knowing that police in nearby Casper were attempting to locate a murder suspect, the officer asked Lancaster if he was "okay" and whether everything was "all right." According to the officer, Lancaster "ignored me or at least I felt he ignored me," "didn't respond to me at all," and the officer "felt that was suspicious." Id., 2002 WY 45, ¶ 37, 43 P.3d at 96. We concluded that Lancaster

was not a case where, faced with the accusations of investigating officers, the appellant made no response, only to have his silence used against him at trial as evi-denee of guilt. Instead, the fact that the appellant initially ignored the officer and failed to respond to him was presented in direct testimony simply as part of the circumstances under which the officer first encountered the appellant. It is significant that the questions and answers had nothing to do with the crime itself. It is also significant that, unlike in Tortolito, the prosecutor did not mention in opening or argue in closing that the appellant's silence somehow proved guilt.

Id.

[T24] The circumstances of the instant case are distinguishable from those in Lon-caster. In the instant case, Officers West, Deaton, and Marcus responded to a scene that included the alleged victim and the alleged suspect. At different times in the course of investigating that seene, the officers asked appellant to identify himself and his residence (at trial, the prosecutor, witnesses, and ultimately the jury were aware that appellant was the alleged suspect and that his residence was the alleged crime seene). The prosecutor's repeated use and characterization of that evidence throughout the trial transformed the instant case into much more than the brief testimony from one witness presented "simply as part of the circumstances under which the officer{s] first encountered" appellant. - Lancaster, 2002 WY 45, ¶ 37, 43 P.3d at 96.

[125] Appellant also challenges portions of the prosecutor's cross-examination of appellant and a question posed to Officer West during the prosecution's rebuttal case. While one might conceivably argue that such questioning was appropriate for limited impeachment purposes onee appellant chose to testify, neither party specifically addresses that issue on appeal. Nevertheless, considering the facts of the instant appeal, we are concerned that to validate the prosecutor's remarks during opening statement and the questions posed, and the substantive testimony elicited, thereafter during the State's case-in-chief could place "substantial pressure" on a defendant "to waive the privilege against self-incrimination ... at trial in order to explain the prior silence" and undermine one of the fundamental values surrounding the privilege. Combs, 205 F.3d at 285.

Other Issues

[T26] Appellant asserts that the district court's failure to bifurcate the trial, and separately to consider evidence of his two prior convictions for battery against a household member, violated appellant's right to procedural due process. Appellant's trial counsel did not request a bifurcated trial. Instead, appellant's trial counsel and the prosecutor stipulated to the jury at the end of the prosecution's case-in-chief that appellant had two prior battery convictions "against his former girlfriend," who was a household member, and then stipulated that the slightly-redacted judgment(s) and sentence(s) reflecting these prior convictions be introduced into evidence. We anticipate that, on remand, appellant will raise this issue in the district court.

[127] We first note that the United States Supreme Court has rejected the argument that due process requires a "two-stage jury trial ... whenever a State seeks to invoke an habitual-offender statute." Spencer v. State of Texas, 385 U.S. 554, 564-65, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). In Spencer, 385 U.S. at 559, 385 U.S. 554 the petitioners claimed that "Texas' use of prior convictions in the current criminal trial of each petitioner was so egregiously unfair upon the issue of guilt or innocence as to offend the provisions of the Fourteenth Amendment...." The United States Supreme Court found as follows:

To say the United States Constitution is infringed simply because this type of evidence may be prejudicial and limiting instructions inadequate to vitiate prejudicial effects, would make inroads into this entire complex code of state criminal evidentiary law, and would threaten other large areas of trial jurisprudence. ...
... Two-part jury trials are rare in our jurisprudence; they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure. With recidivism the major problem that it is, substantial changes in trial procedure in countless local courts around the country would be required were this Court to sustain the contentions made by these petitioners. This we are unwilling to do. To take such a step would be quite beyond the pale of this Court's proper function in our federal system. It would be a wholly unjustifiable encroachment by this Court upon the constitutional power of States to promulgate their own rules of evidence to try their own state-created crimes in their own state courts, so long as their rules are not prohibited by any provision of the United States Constitution, which these rules are not.

[10] Id. at 562-69, 87 S.Ct. 648 (footnote omitted). Indeed, the

question of whether a determination by the court or a jury of a second or previous conviction or at what stage for purposes of enhancing punishment raises no constitutional question. It raises only a question of procedure. In Spencer v. State of Texas, ... the court recognized that whether the question is presented to the jury or the court, even though there is a potential for prejudice when presented to a jury, it deals with a rule of evidence, not a question of constitutional due process.

Munoz v. Maschner, 590 P.2d 1352, 1357-58 (Wyo.1979).

[128] Aside from appellant's argument that the district court's failure to bifurcate the proceedings violated his right to procedural due process, appellant makes no substantive argument regarding precisely what procedure should be utilized. As a result, neither party has adequately briefed the issue and we will therefore only provide the following general guidance. First, Wyo. Stat. Ann. § 6-2-501(b) and ({)(i) provide as follows:

(b) A person is guilty of battery if he unlawfully touches another in a rude, insolent or angry manner or intentionally, knowingly or recklessly causes bodily injury to another.
(f) A household member as defined by W.S. 35-21-102 who commits a second or subsequent battery against any other household member shall be punished as follows:
(ii) A person convicted upon a plea of guilty or no contest or found guilty of a third or subsequent offense under this subsection against any other household member, after having been convicted upon a plea of guilty or no contest or found guilty of a violation of W.S. 6-2-501(a), (b), (e) or (£, 6-2-5022, 6-2-5038, 6-2-504 or other substantially similar law of this or any other state, tribe or territory against any other household member within the previous ten (10) years is guilty of a felony punishable by imprisonment for not more than two (2) years, a fine of not more than two thousand dollars ($2,000.00), or both.

We have determined that Wyo. Stat, Ann. § 6-2-501(f) does not "create a new offense," but is "merely a sentence enhancement provision rather than being a new independent 'battery against a household member' offense" and enhances "the punishment for individuals who commit simple assault or battery two or more times against household members." Fall v. State, 963 P.2d 981, 984 (Wyo.1998). It applies

when the accused is presently accused of battering a household member and has previously been convicted one or more times of battering a household member.

Id.

[T29] Second, according to the United States Supreme Court,

[oJther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond 'a reasonable doubt.

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See also United States v. Sullivan, 255 F.3d 1256, 1264-65 (10th Cir.2001), cert. denied, 534 U.S. 1166, 122 S.Ct. 1182, 152 LEd.2d 124 (2002) and Joyner v. State, 2002 WY 174, ¶ 19 n. 5, 58 P.3d 331, 337-38 n. 5 (Wyo.2002). In Jaramillo v. City of Green River, 719 P.2d 655, 659 (Wyo.1986), a case involving a city ordinance that enhanced the penalty for driving while under the influence based on prior convictions, we held:

The rule in Wyoming is that unless a statutory right exists to have the question of prior convictions submitted to the jury, such as that encompassed in the Wyoming habitual criminal statutes, §§ 6-10-201 through 6-10-208, W.S8.1977, the court rather than the jury can determine the question of prior convictions. - Jaramillo contends, however, that there is language in State ex rel. Motor Vehicle Division v. Holtz, Wyo., 674 P.2d 782 (1983) which subjects the submission of prior convictions for driving while under the influence of intoxicating liquor to the same requirements as the habitual criminal statute. The language upon which Jaramillo relies is:
"... [The statutory requirement that the sentence to be imposed by the court be more severe as the number of prior convictions of the defendant increases makes the [D.W.U.I.] statute a habitual criminal act. Before the sentence of a defendant can be enhanced under such act, he must have notice of the fact that such is contemplated. Generally, the notice must be contained in the information or charge under which he is prosecuted. Evans v. State, Wyo., 655 P.2d 1214 (1982). Section 6-10-208(a), W.S. 1977 (1983 Replacement), provides:
'(a) An information or indictment which charges a person as an habitual criminal shall set forth the charged felony and allege the previous convictions.'
"Although here we are not concerned with felonies, the reason upon which this section is predicated is pertinent to the requirement of similar notice in DWUI cases." State ex rel. Motor Vehicle Division v. Holtz, supra, at 738.
Jaramillo is mistaken in his contention that this language brings this question within the statutory requirement that the issue be submitted to a jury. In State ex rel. Motor Vehicle Division v. Holtz, supra, the court simply recognized that due process requires notice if a former conviction is to be used to enhance punishment. Certainly the Wyoming habitual criminal statutes do not by their terms encompass misdemeanor convictions for driving while under the influence of intoxicating liquor. There is no indication in Holtz that the court could or would expand those statutes to encompass these misdemeanor offenses. The ordinance of the City of Green River does not require a determination by the jury of the issue of prior convictions. We hold that with respect to such sentence enhancement proceedings under the state statute or a similar city ordinance, unless the statutory language so requires, a right to a jury trial with respect to the existence of prior convictions does not exist.

Unlike the habitual criminal statutes, Wyo. Stat. Ann. § does not expressly provide for a jury determination with respect to the existence of prior convictions.

[130] Appellant also raises three issues concerning the evidence admitted at trial. Appellant first argues that the testimony of an expert witness during the prosecution's rebuttal case constituted improper character evidence. The witness, a Hcensed professional counselor, testified to her observations regarding "the patterns of behavior in abusive domestic relationships" and the resulting "cycle of violence." The prosecutor utilized that testimony during his rebuttal closing argument. Shortly after the jury trial of the instant case, we issued an opinion in Skinner v. State, 2001 WY 102, 33 P.3d 758 (Wyo. 2001), cert. denied, 585 U.S. 994, 122 S.Ct. 1554, 152 LEd.2d 477 (2002). On remand, the prosecutor, in offering and arguing inferences based on such testimony, and the district court, in evaluating the admissibility of the proposed testimony, should carefully apply the principles we established in Skinner.

[131] Appellant next argues that "three (3) alleged admissions" officers attributed to appellant at trial were obtained in violation of appellant's Miranda rights. According to appellant, the statements were improperly admitted at trial because appellant allegedly made the statements after he was arrested for the instant offense and the ree-ord is silent as to whether anyone ever informed appellant of his Miranda rights; therefore, the statements appellant allegedly "made to any police officers or other authorities after he was in custody, should not have been admitted in evidence at trial." Appellant's trial counsel did not file a motion to suppress the three alleged statements nor did he otherwise object to their admission at trial. Because the issue was not raised before the district court, we would have been constrained to the trial testimony in reviewing this issue. Testimony at a suppression, or some other, hearing focused on the merits of this issue likely would specifically reveal whether, and if so, at what point in time, the officers informed appellant of his Miranda rights. Without commenting on the validity of appellant's arguments, we expect that appellant's trial counsel will duly assess the merits of filing a motion to suppress the alleged statements.

[¥32] Appellant also contends that the district court erred in admitting Buzz and Mary Knigge's testimony regarding Manke's statements upon entering their residence as excited utterances. Should this issue arise on remand, we note that one key factual consideration in applying the excited utterance exception is what, precisely, constitutes the "startling event or condition" (based on the record before us, the "startling event or condition" appears to relate back to what allegedly occurred between appellant and Manke at their residence), and that we have previously found a "five-factor" test "useful" in evaluating the admissibility of evidence as an excited utterance. Oldman v. State, 998 P.2d 957, 968 (Wyo.2000).

CONCLUSION

[133] The prosecutor impermissibly commented on appellant's pre-arrest silence, im-permissibly solicited evidence of appellant's pre-arrest silence, and impermissibly argued appellant's guilt based upon appellant's pre-arrest silence. We reverse and remand for a new trial.

      . "Any comment upon an accused's invocation of his constitutional right to remain silent is prejudicial error per se entitling the accused to an automatic reversal of the conviction." Beartusk v. State, 6 P.3d 138, 144 (Wyo.2000). See also Sturgis v. State, 932 P.2d 199, 205 (Wyo.1997).

      . The State does not argue that the prosecutor intended to, or did, limit the consideration of this evidence for a particular purpose (i.e., impeachment), and what occurred during opening statement and the prosecution's case-in-chief would substantially undermine such an argument.

      . Some of these responses were to general questions, but given the prosecutor's remarks during opening statement (Officer West having been present in the courtroom as the State's investigating officer) and the prosecutor's repeated, specific questions regarding appellant's silence, it would be quite difficult to find that these responses were unanticipated. The State presents no argument to the contrary.

      . We do not mean to insinuate that the officers acted inappropriately in questioning appellant upon arriving at the Knigge residence. It is the use, and characterization, at trial of evidence regarding appellant's silence in the face of that questioning that is at issue in this appeal.

      . Appellant does not question the propriety of this argument.

      . The context of the prosecutor's argument appears to enhance, rather than diminish, the inference created by the prosecutor's specific remarks on, and characterizations of, appellant's silence.

      . The State devotes considerable argument to this particular statement. However, even in the context of the prosecutor's argument, this statement again appears to reinforce the totality of the remarks, questions, and testimony that occurred previously during the trial.

      . In advancing this argument, appellant does not cite or refer to the Wyoming Constitution. Interestingly, the State's response to appellant's argument fails to address the procedural due process issue at all.

      . - Any issue concerning whether appellant is entitled to a jury determination of any other fact that enhances the penalty pursuant to Wyo. Stat. Ann. § 6-2-501(§)(i) (ie., whether the underlying offense that is to be tried to the jury was committed against a household member) is not presently before us.

      . While appellant does not specifically identify two of the three alleged statements, we are able to discern the two unidentified statements from information contained in his appellate brief, First, during the struggle between appellant and the officers at the Knigge residence, Officer West testified that appellant screamed that "she cheated on me or she's cheating on me, what was I supposed to do[?]" Second, while Officer Marcus transported appellant to the detention center in a patrol vehicle, appellant allegedly stated "all of a sudden" and "out of the blue" "What was I supposed to do? She was cheating on me." Finally, Officer Ostrem testified that in response to his question regarding where appellant "as-saultled] the girl," appellant replied "In my house."


source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    David S. WITT, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee.
    No. S-10564.
    Supreme Court of Alaska.
    Aug. 8, 2003.

      Benjamin I. Whipple, Palmer, for Appellant.
    Jan Hart DeYoung, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

David Witt appeals from the superior court's grant of summary judgment in favor of the state in his breach of contract suit. Witt, a former public employee, contends that he was terminated before the end of his probationary period in violation of his union's collective bargaining agreement and in violation of the covenant of good faith and fair dealing. Because Witt does not raise any genuine disputes of material fact through admissible evidence, but instead merely makes allegations of wrongdoing, we affirm the superior court's grant of summary judgment.

II. FACTS AND PROCEEDINGS

A. Facts

David Witt was hired by Alaska Correec-tional Industries (ACT) in the Department of Corrections in the summer of 1998 as an "equipment operator IV." His responsibilities included transporting inmate-produced office furniture and meat products in Palmer, Ke-nai, and Anchorage, which sometimes involved the supervision and transportation of inmate laborers who assisted him. He understood that he would have to complete a six-month probationary period and that "permanent employment was contingent on sue-cessful performance in the position." As a probationary employee he was a member of the labor, trades, and crafts bargaining unit, and was represented by Public Employees Local No. 71. Article 7.04 of the collective bargaining agreement (CBA) between the State of Alaska and Local 71 contained certain restrictions on the state's ability to contract with private vendors, if such contracting "would directly result in the layoff of permanent or probationary employees covered by this Agreement": the CBA required the state agency to do a "cost efficiency study" showing that contracting would save the state money, and required contractors to pay their employees an amount equivalent to the union wage plus benefits.

Upon his hiring, Witt was provided with and signed a copy of the Department of Corrections's "Code of Ethics and Standards of Conduct," which warned employees who work directly with inmates to "travel only to and from authorized destinations without any unauthorized stops" and to avoid "use of indecent, abusive or profane language." Nonetheless, in October 1998 Witt tried to take several inmates on an unauthorized trip to a pizza restaurant in Kenai. Soon afterward Witt was given additional transportation security training, including instructions that those working with inmates should avoid giving inmates personal information, such as a home telephone number. On December 21, 1998 Witt took two inmates to a coffee stand near his house, and may have allowed the inmates in his house. Later in the day Witt entered into a verbal altereation with an inmate and a fellow employee that eulminat-ed in Witt's use of several profanities and the statement "I don't care any more. Go ahead [flire me, I just don't care." After investigating the incidents of December 21, Witt's supervisor, William Quam, informed Witt that he would not be retained because of the incidents in October and December. Witt was terminated effective January 14.

On May 6, 1998, roughly two months before Witt had begun work, Quam had received an e-mail from Wally Roman, his supervisor at ACI. In the e-mail Roman noted that ACI had previously made a series of contracts with World Wide Movers that collectively exceeded $5,000, and asked Quam to prepare a "Request for Proposals" for bidding for future services. The request for proposals was drafted and eventually issued as an "invitation to bid" on December 22, 1998, which was the day after Witt lost control in the office. The invitation to bid called for services including delivery of meat products and "Point to Point freight, delivery, warehousing, and installation/repair services for the Alaska Correctional Industries" for Juneau, Anchorage, Fairbanks, and other area locations. It called for sealed bids to be submitted on January 15, 1999, which was the day after Witt's final day of work. Ultimately the invitation to bid was revised, reissued in April 1999, and did not result in a contract until May 1999. The parties agree that ACI never performed a cost efficiency study in relation to the invitation to bid issued on December 22, 1998.

B. Proceedings

After his dismissal, Witt filed a grievance against the Department of Corrections through his union. The union initially pursued Witt's grievance, but the union grievance committee eventually decided to drop the grievance. Witt then filed suit in contract and tort in the superior court, alleging that ACI had hired him in the summer of 1998 with the intention of terminating his position as soon as the private bidding process began in the winter, and that the stated reasons for his termination were a sham. Superior Court Judge Eric Smith dismissed Witt's tort and punitive damages claims. Judge Smith then granted the state's motion for summary judgment on the remaining contract claims, finding that Witt was an at-will employee, that Witt had no reasonable expectation that he would retain his job, and that neither the CBA nor the covenant of good faith and fair dealing required the state to notify Witt if the state had intended to replace his position with a private contractor. Witt moved for reconsideration under Alaska Civil Rule 77&®(1)@) and relief from the judgment under Alaska Civil Rule 60(b)(1) Judge Smith denied the motions. Witt appeals.

III. STANDARD OF REVIEW

We interpret the language of contracts de novo. Grants of summary judgment are reviewed de novo, reading the ree-ord in the light most favorable to the non-moving party and making all reasonable inferences in its favor as well Summary judgment is affirmed when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We have stated that "[the party opposing summary judgment must set forth specific facts showing genuine issues and cannot rest on mere allegations;" moreover, such facts must "arise from admissible evidence."

IV. DISCUSSION

A. Witt Was an At-Will Employee and Was Not Entitled to Dismissal Only for Good Cause.

Witt suggests that ACI's statements that permanent employment was contingent upon successful performance in the probationary position converted his employment contract from an at-will contract into one in which he could be dismissed only for good cause. A review of Alaska law refutes this contention.

The Alaska Constitution mandates that public employment will be governed by the merit principle. Alaska Statute 39.25.150(7) provides that all public employees will have a probationary period not exceeding one year. The purpose of the probationary period is "to evaluate the employee's work and to reject any employee whose performance is not acceptable." In prior cases addressing whether public probationary employees are at-will employees, we have looked to their contracts to determine whether they are protected by objective performance standards or whether, conversely, they serve merely at the pleasure of their employer. For instance, where a contract explicitly requires performance evaluations or makes reference to the Rater's Guide to Performance Appraisals, we have found the employee to be protected. Nothing in Witt's contract or ACI's statements does this, When Witt was told that permanent employment was contingent upon his successful performance in the position, this was no more than a description of the function of the probationary period in hiring permanent public employees. During the probationary period Witt was an at-will employee and was not entitled to dismissal only for good cause.

B. Witt Did Not Present Admissible Evidence Leading to Genuine Disputes of Fact About Why He Was Hired or Why He Was Dismissed, and Summary Judgment on His Covenant of Good Faith and Fair Dealing Claim Was Appropriate.

Witt claims that his hiring and firing were part of an elaborate ruse designed by ACI to save money by avoiding the CBA's restrictions on private contracting. He contends that ACI hired him to cover a gap in transportation services that was allegedly created when ACI began preparing a proposal for an ongoing service contract with a private vendor; that ACI never intended to allow him to stay on as a permanent employee and lied to him about that intent; and that ACI's stated reasons for terminating his probation were pretextual. As a result, Witt alleges breaches of the covenant of good faith and fair dealing, which "[in the employment contract context ... operates as a check on employers' traditional freedom to terminate at-will employment for any reason."

The covenant can be breached objectively or subjectively. The objective prong of the covenant is breached when an employer fails to act in a manner that a reasonable person would consider fair, which includes treating similarly situated employees disparately, terminating employees on unconstitutional grounds, and terminating employees in violation of public policy. The subjective prong of the covenant is breached when an employer is motivated by the goal of depriving the employee of a benefit of the contract. The purpose of the covenant is to effectuate the reasonable expectations of the parties, not to alter or to add terms to the contract. Although a court can certainly conclude as a matter of law that an employer did not breach the covenant when no material facts are disputed, generally whether the covenant has been breached is a question for the trier of fact.

Witt's good faith and fair dealing claims depend on his presenting genuine disputes of several material facts. When reviewing a motion for summary judgment, we read the record in the light most favorable to the non-moving party and make all reasonable inferences in that party's favor, but the non-moving party "must set forth specific facts showing genuine issues and cannot rest on mere allegations," and such facts must "arise from admissible evidence." Because we conclude that no genuine disputes of material fact exist, we affirm the superior court's grant of summary judgment.

1. There is no admissible evidence implying that Witt was hired as a "stopgap" to meet ACI's transportation needs until its private contractor bidding process was complete.

The crux of Witt's argument is that Quam and Roman hired him only "as a stopgap while the bid process materialized" and never intended to entertain the possibility that Witt might stay on as a permanent employee. Witt points primarily to two pieces of evidence. The first is the e-mail of May 6, 1998 that Roman sent to Quam asking him to prepare the request for proposals (RFP) from private bidders for transportation services, which reads in relevant part:

Talked with Al this AM regarding our previous [World Wide Movers] services. Al indicated that we need to establish a RFP for these services. While our individual purchases are under $5,000, the combined purchases would be over. Up to this point, our purchases could be considered a pilot project to see if we could have one vendor provide transportation, storage, and installation services Now that we have established that it would be in the best interest of the state, we should put forth a RFP for a "non-professional service" to establish a contract.
It would be our choice to request statewide or regional for [the] award. Al seems to think that regional might provide better pricing.
Could you prepare a RFP to secure these services. I know you have a lot going on so maybe we better discuss time-frames for completion next week.

Witt alleges that this e-mail shows an intent to have vendors take over all transportation and related services for ACI, including those previously provided by state employees. In response, the state offers an affidavit of Quam stating that (1) ACI contracted with private vendors before and during Witt's employment on an as-needed basis, and (2) the RFP was required by the procurement staff of the Department of Corrections because of the level of expenditures on vendors. Witt does not address either of these contentions.

Second, as evidence of ACT's intent not to keep him on permanently, Witt points to the fact that ACI terminated his probation effective on January 14, 1999 rather than on January 20, the date it would have expired on its own. Witt claims that Roman and Quam wanted to eliminate his position before the January 15 deadline for replies on the invitation to bid. In response, Quam's affidavit states that the invitation to bid was later revised and re-issued, finally resulting in a contract in May 1999. -

Even drawing all reasonable inferences in Witt's favor, we do not find that Witt has raised a genuine dispute about ACT's intentions when it hired him. Roman's e-mail, on which Witt principally relies for the proposition that his job was intended to be temporary, makes no reference at all to how the request for proposals might affect the allotment of transportation tasks between private vendors and ACI's in-house transportation employees. Witt presents no other evidence addressing that allotment. Witt does not address the assertion that ACI contracted with private vendors during the course of his employment, which rebuts his "stopgap" theory. Witt himself provided only regional transportation services at most, whereas the invitation to bid covered the entire state. Finally, Witt's probation expired on January 20, only five days after bids were due, which would not provide ACI sufficient time to agree upon and implement a contract that would provide the services lost through Witt's dismissal. An inference in Witt's favor on this point would not be reasonable, and we therefore find no genuine dispute of fact on this issue.

2. There is no admissible evidence implying that Witt was dismissed for any reason other than poor job performance.

Witt alleges that Quam and Roman's reasons for terminating Witt were "pretextual." The reason given to Witt at the time, which is echoed in Quam's later affidavits, was that in the incidents of October and December 1998 Witt breached security and showed poor judgment in his supervision of inmates. Witt admits these incidents, and at the time of the December 1998 dispute said that he "[took] full responsibility for my bad conduct and any consequences arising from it." Witt does not now claim that these events did not take place, that these events somehow were not his fault, or that other employees in a similar position would not have expected to be dismissed for similar conduct, and he does not rebut the state's assertion that these incidents were in fact the reason why Witt was fired. Rather, Witt's argument appears to be only that the fact of his dismissal is consistent with his theory that ACI never intended him to be a permanent employee. Witt has not shown the existence of a genuine dispute of fact on this issue.

3. In the absence of any genuine dispute of material fact, the superior court's grant of summary judgment on Witt's breach of the covenant of good faith and fair dealing claim was reasonable.

Witt's claims are heavily dependent on the disputed facts he hopes to develop at trial. But because Witt has not "set forth specific facts showing genuine issues," and instead "rest[s]l on mere allegations," the state is entitled to judgment as a matter of law. Witt claims that the covenant of good faith and fair dealing was violated by ACT's entry into an employment contract it did not intend to honor. As noted above, the covenant of good faith and fair dealing requires employers to treat employees alike and to refrain from impairing an employee's ability to receive the benefits of the employment. We have previously explained that the standard of factual showing required to defeat a summary judgment motion in a covenant of good faith claim is not negligible: "If the employee were entitled to jury trial for breach of the implied covenant of good faith and fair dealing merely by asserting that the charged misconduct was not true, the decision to terminate would be at the discretion of a jury, not the employer." Because Witt has not introduced admissible evidence tending to show that he was hired or fired for an improper reason, he has no claim that he did not receive the exact benefit of probationary employment: the opportunity to prove himself as a worthwhile employee. The state is entitled to summary judgment as a matter of law.

C. Witt Did Not Present Admissible Evidence Leading to a Genuine Dispute of Fact About Whether His Job Was Eliminated Through Contracting, and Summary Judgment on His Collective Bargaining Agreement Claims Was Appropriate.

Witt alleges that ACI breached article 7.04 of Local 71's CBA by failing to do a cost efficiency study, to inform bidders of union pay requirements, or to require bidders to provide information about their wage rates. Witt also claims that the unfair labor practices clause of the Alaska Public Employment Relations Act requires us to find an implied duty on ACI's part to inform Witt and the union that his job would be lost to contracting. However, the CBA required the state to do none of these things unless the contracting at issue actually would result in the loss of a probationary or permanent union job. Unless Witt can raise a genuine dispute about whether his job was replaced, these claims cannot survive summary judgment. Witt argues that his job must have been performed by private vendors after he was dismissed because his own job duties, which included the transport of office furniture and meat products in the Anchorage area, were so similar to the services that were the subject of the invitation to bid. He also notes that the invitation to bid spoke of freight volume in terms of ACI's "recent experience," and argues that this shows that vendors were to take on all of ACI's freight needs.

But in light of Quam's unrebutted affidavit stating that ACI used private shipping vendors before and during Witt's employment at ACI, this is not a reasonable inference. Rather, it is entirely reasonable that ACI should choose to utilize both private vendors to make large periodic deliveries and in-house employees who could take care of daily transportation needs as they arose. ACI's "recent experience" as described in the invitation to bid could just as easily have referred to ACT's recent experience with private shipping vendors as to the combined services of private vendors and in-house employees. Moreover, Witt's theory requires us to overlook the fact that his job duties would have had to go completely unfulfilled for five months after his dismissal until the private vending contract was finalized in May. It is unfortunate that there is no evidence in the record to show who performed Witt's job tasks after he was not retained. But it is Witt's duty as the non-moving party to respond to ACI's evidentiary showing with specific, admissible facts showing a genuinely disputed issue, and we cannot find that he has done so here. Summary judgment was appropriate on this claim.

IV. CONCLUSION

Because Witt does not raise any genuine dispute of material fact through admissible evidence, but instead merely makes allegations of wrongdoing, we AFFIRM the superi- or court's grant of summary judgment.

      . Alaska R. Civ. P. 77(k)(1) provides in relevant part that "[a] party may move the court to reconsider a ruling previously decided if, in reaching its decision: ... (ii) The court has overlooked or misconceived some material fact or proposition of law."

      . Alaska R. Civ. P. 60(b) provides in relevant part that "(oin motion and upon such terms as are just, the court may relieve a party ... from a final judgment ... for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect."

      . Simmons v. Ins. Co. of N. Am., 17 P.3d 56, 59 (Alaska 2001).

      . Spindle v. Sisters of Providence in Wash., 61 P.3d 431, 436 (Alaska 2002).

      . Id.

      . Braun v. Alaska Commercial Fishing & Agric. Bank, 816 P.2d 140, 144 (Alaska 1991).

      . Brady v. State, 965 P.2d 1, 8 (Alaska 1998).

      . - Alaska Const. art. XII, § 6.

      . 2 Alaska Administrative Code (AAC) 07.240 (2002).

      . Univ. of Alaska v. Tovsen, 835 P.2d 445, 447 (Alaska 1992).

      . Cassel v. State, Dep't of Admin., 14 P.3d 278, 283-84 (Alaska 2000).

      . Era Aviation, Inc. v. Seekins, 973 P.2d 1137, 1139 (Alaska 1999).

      . Charles v. Interior Reg'l Hous. Auth., 55 P.3d 57, 62 (Alaska 2002).

      . Holland v. Union Oil Co. of Cal., Inc., 993 P.2d 1026, 1032 (Alaska 1999).

      . Seekins, 973 P.2d at 1141.

      . Holland, 993 P.2d at 1032-33.

      . Braun v. Alaska Commercial Fishing & Agric. Bank, 816 P.2d 140, 144 (Alaska 1991).

      . Brady v. State, 965 P.2d 1, 8 (Alaska 1998).

      . See 2 AAC 12.400 (describing administrative authority to make small purchases).

      . Braun, 816 P.2d at 144.

      . Holland, 993 P.2d at 1032.

      . Id. at 1035 (quoting Burton v. Sec. Pac. Nat'l Bank, 197 Cal.App.3d 972, 243 Cal.Rptr. 277, 281 (1988)). In his reply brief Witt suggests that we use the shifting-burdens framework from employment discrimination law as a justification for allowing his claims to go forward. Issues raised for the first time in the reply brief are deemed waived. Childs v. Tulin, 799 P.2d 1338, 1340 n. 5 (Alaska 1990). Moreover, application of this framework in this case would be inappropriate as Witt has not alleged that ACI was motivated in any way by any sort of discrimination.

      . AS 23.40.110(a)(5).

      . CBA's are contracts that this court interprets de novo, giving effect to the reasonable expectations of the parties. Larsen v. Municipality of Anchorage, 993 P.2d 428, 431 (Alaska 1999). Witt also argues that he was a third-party beneficiary of the CBA. In light of our ruling that Witt has not raised a genuine dispute of fact about whether the CBA was breached, we need not evaluate this claim.

      . Brady v. State, 965 P.2d 1, 8 (Alaska 1998); Braun, 816 P.2d at 144.

      . Witt alleges in his points on appeal that the superior court erred in denying his motion for reconsideration, but he fails to brief the issue. Issues not briefed are deemed waived. DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 928 & n. 47 (Alaska 2002).


author: MATTHEWS, Justice.

text:
    Kevin O'CONNELL, Appellant, v. Kathleen E. CHRISTENSON (f/k/a Lutz), Appellee.
    No. S-10626.
    Supreme Court of Alaska.
    Aug. 15, 2003.

      Peter LeBlanc, Cook Schuhmann & Gro-seclose, Inc., Fairbanks, for Appellant.
    No brief filed by Appellee Kathleen E. Christenson.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

I. INTRODUCTION

Kevin O'Connell appeals a superior court order that imputed income to him and modified his child support obligation accordingly. . Because the superior court failed to issue findings sufficient to justify the imputed income, we vacate the court's order and remand the case for further proceedings.

II. FACTS AND PROCEEDINGS

Kevin O'Connell and Kathleen Christenson are the parents of two children. O'Connell and Christenson were never married and never resided together with the children. O'Connell lives in Anchorage. Christenson resides near Fairbanks.

In May 1999 the superior court awarded sole legal and primary physical custody of the children to Christenson and established a visitation schedule for O'Connell. In September 1999 the superior court issued a child custody and support order setting out the child support obligation of the parties. The court required O'Connell to pay Christenson $62 per month in child support based on a net annual income of $4,605. At the hearing that yielded this order, the court declined Christenson's request to impute income to O'Connell because, according to the court, it lacked a basis for doing so. The court did require O'Connell to pay all visitation costs in return for setting the child support payment so low.

The subject of this litigation is a subsequent superior court order issued after Christenson filed a motion to change support and visitation. In that motion, Christenson sought to modify the visitation schedule, impute income to O'Connell, and modify his child support obligation. O'Connell filed an opposition to this motion and a cross-motion to modify custody. He claimed his adjusted annual income for 2001 was $8,185.38. In April 2002 the superior court held a hearing on these motions and issued an order a few days later. At the hearing, the court ruled that it would impute an income of $40,000 to O'Connell and modify his child support to reflect this change. In its order, the court imputed an income of $48,550.18 to O'Connell and calculated his monthly child support obligation to be $714.88. The order also called for the parties to split equally the transportation costs for visitation. O'Connell appeals the change in child support and the superior court's decision to impute to him an income of $43,550.18.

III. DISCUSSION

A. Modifying Child Support

O'Connell argues that the trial court erred in modifying his child support obligation absent a material change in circumstances.

1. Standard of review

We review a trial court's decision to modify child support for abuse of discretion. We find an abuse of discretion only when "we are 'left with a definite and firm conviction that a mistake has been made." "

2. Change of circumstances sumed pre-

Alaska Civil Rule 90.3 permits a modification of a child support order "upon a showing of a material change of cireumstances as provided by state law. A material change of cireumstances will be presumed if support as calculated under this rule is more than 15 percent greater or less than the outstanding support order."

Under the child support order in effect prior to the modification, O'Connell was required to pay Christenson $62 per month. The new support obligation as calculated under Rule 90.3 is $714.83 per month.

Because the support as calculated is 1,053% greater than the outstanding support order, a change of circumstances is presumed. The decision to alter child support based upon a change of circumstances would therefore not be an abuse of discretion if the amount of imputed income is justified. However, because we conclude that the amount of imputed income to O'Connell is not supported by adequate findings, we vacate the child support order.

B. Imputing Income

O'Connell contends that it was error for the trial court to impute income to him. He claims that the court abused its discretion when the court found that he was underemployed and when it determined his potential income without issuing findings in support of the decision to do so. O'Connell also claims that the record does not support the trial court's order imputing to him an income of $43,550.18.

1. - Standard of review

We review decisions to impute income for abuse of discretion. The determination of imputed income is a finding of fact that we will overturn only if clearly erroneous. "A finding is clearly erroneous if it leaves us with a 'definite and firm conviction on the entire record that a mistake has been made.""

2. The decision to impute income

Rule 90.8 provides the trial court with the power to

calculate child support based on a determination of the potential income of a parent who voluntarily and unreasonably is unemployed or underemployed. ... Potential income will be based upon the parent's work history, qualifications, and job opportunities. The court also may impute potential income for non-income or low income producing assets.[]

The commentary to the rule adds that "[the court shall consider the totality of the circumstances in deciding whether to impute income. When a parent makes a career change, this consideration should include the extent to which the children will ultimately benefit from the change." The voluntariness of a person's underemployment should be taken into consideration in determining whether to impute income.

O'Connell claimed that his adjusted annual income in 2001 was $8,185.38, an increase from the past few years. He stated that he had worked as a commercial fisherman from the age of eighteen until suffering a knee injury in December 1997. The court inquired into O'Connell's job skills, took note of his associate's degree "in the computer industry," and heard testimony relating to two businesses that O'Connell owns: a computer business and a collection agency. The court also heard testimony about various 'assets owned by O'Connell including a 1988 Corvette, a 1997 F-150 pickup truck, a nineteen-foot Bayliner boat, two condominiums in Anchorage, and lake-front property in Big Lake.

The comparative plenitude of O'Connell's assets may place in question the accuracy of his income affidavits. But whether O'Con-nell is underemployed ultimately depends on the jobs available to him, given his physical ability and training, and what he might earn in such jobs.

3. Findings to support imputing income

A trial court has a duty to enter findings adequate for rational appellate review when it sets a child support obligation. This is no less true with regard to the imputed income from which the amount of the obligation is derived. In Nass v. Seaton, we remanded the case to the trial court to make more detailed findings and conclusions regarding its determination of imputed potential income. The trial court had determined that the father in Nass was voluntarily underemployed and imputed an income to him of $45,000. The court had reached this figure after citing the father's "reported income, his potential income, the gifts from his father of $20,000 per year, and the value of his extraordinarily low business and living expenses...." On appeal, we first determined that it was not clearly erroneous to find that the appellant was voluntarily underemployed. With regard to imputing income, we noted the difficulty faced by a court in determining child support figures based upon the imputed potential income of a voluntarily underemployed parent. Nevertheless, we stated, "on remand it is incumbent upon the trial court to enter sufficiently detailed findings of fact which disclose its methodology, as well as the factual basis, for its determination of the appropriate imputed potential income level for the obligor-parent.

In Olmstead v. Ziegler, we found that the trial court adequately supported its conclusion that both parents had equal earning capacities despite one parent's voluntary decision to change professions. The father in Olmstead argued that the trial court had failed to provide explicit findings and a basis or calculations for its decision to impute income. We responded by noting that the trial court's methodology was clear-both parents were attorneys and the potential income for the parent leaving the legal profession was equal to that of the parent remaining in legal practice.

In Dunn v. Dunn, we upheld a superior court's conclusion that a father was underemployed and the methodology it used to reach an imputed income for child support purposes. The superior court imputed an income of $30,000 to the father and supported this decision with references to the father's investments and his home ownership. The record also showed that the father had voluntarily retired, was in his early fifties, and spent his time building houses.

In the instant case, the trial court's order modifying child support imputed an income of $43,550.18 to O'Connell. The court did not issue written findings. At the conclusion of the testimony at the hearing, the court noted that O'Connell might earn "about 20,000 a year" if he worked at McDonalds and that he was capable of doing work substantially more remunerative than that. The court concluded that, "minimally [O'Connell] could be expected to earn $40,000, if he put himself on the job market, and I think that's at the very low end of what could be expected. I'm going to impute income in the amount of $40,000 a year...." The court also stated that it had "effectively intended" to impute income to O'Connell "three years ago" when the court imposed a monthly child support obligation of $62, coupled with a requirement that O'Connell pay for all of the costs associated with visitation.

Other than the reference to the possibility of O'Connell's employment in the fast food industry and its statement that it would "approach things in the traditional manner," the court did not provide any rationale for its decision as to the amount of imputed income. The court's rationale appears to be based on an estimation of O'Connell's likely income were he to abandon his businesses and find employment in the job market. The court's starting point seems to have been that a person working at a fast food counter would earn $20,000 in a year. If a person worked forty hours per week for fifty weeks in a year, and earned $10 per hour, that person would have a gross annual income of $20,000. However, it is not clear that fast food employees receive $10 per hour, or that O'Connell is physically capable of such work. Most importantly, it is not clear that employment opportunities exist in Anchorage that would pay twice this figure to O'Connell.

Rule 90.83 directs a court imputing potential income to a parent to base its determination "upon the parent's work history, qualifications, and job opportunities. The court also may impute potential income for non-income or low income producing assets." The absence of specific findings that justify imputing either $40,000 or $48,550.18 of income to O'Connell renders it impossible for this court to determine whether the court was clearly erroneous in its imputation decision. For this reason, we vacate the child support award and remand the question of imputed income. On remand the court may impute income to O'Connell in an amount supported by appropriate findings as to O'Connell's physical abilities and qualifications, the employment opportunities available to him, and what he should earn from them. The court may find it useful to refer to the Alaska Department of Labor wage statistics for guidance in determining the amount of income to impute to O'Connell. The Child Support Enforcement Division (CSED) sometimes utilizes these statistics to determine a parent's total income from all sources. The court is authorized to hold a supplemental evidentiary hearing if, in its discretion, it believes that such a hearing will be necessary or useful.

IV. CONCLUSION

We VACATE the child support order issued by the superior court and REMAND the case for further proceedings in accor-danee with this opinion.

      . Olmstead v. Ziegler, 42 P.3d 1102, 1104 (Alaska 2002).

      . Id. (quoting Schuyler v. Briner, 13 P.3d 738, 741 (Alaska 2000).

      . Alaska R. Civ. P. 90.3(b)(1).

      . O'Connell notes that the trial court's order does not state that the court found him to be underemployed. He makes this claim assuming that such a finding is implicit in the court's decision to impute income.

      . See Rhodes v. Rhodes, 754 P.2d 1333, 1335 (Alaska 1988).

      . Lacher v. Lacher, 993 P.2d 413, 423 n. 34 (Alaska 1999) (citing Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998)).

      . Dunn, 952 P.2d at 270 (quoting R.F. v. S.S., 928 P.2d 1194, 1196 n. 2 (Alaska 1996)).

      . Alaska R. Civ. P. 90.3(a)(4).

      . Alaska R. Civ. P. 90.3 cmt. III.C.

      . See Robinson v. Robinson, 961 P.2d 1000, 1004 (Alaska 1998).

      . See, e.g., Berkbigler v. Berkbigler, 921 P.2d 628, 631 (Alaska 1996); Waggoner v. Foster, 904 P.2d 1234, 1235 (Alaska 1995); Adrian v. Adrian, 838 P.2d 808, 811 (Alaska 1992).

      . 904 P.2d 412, 418-19 (Alaska 1995).

      . Id. at 417 & 418 n. 12.

      . Id.

      . Id. at 417.

      . Id. at 418-19.

      . Id. at 419.

      . 42 P.3d 1102, 1106-07 (Alaska 2002).

      . Id.

      . Id. at 1107 n. 16.

      . 952 P.2d 268, 271 (Alaska 1998).

      . Id.

      . Id.

      . In the order there is no explanation for the increase in imputed income from $40,000 to $43,550.13 between the hearing and the order. The child support affidavit filed by O'Connell in January 2002 lists rental income in the amount of $1,650.13 and an Alaska Permanent Fund Dividend in the amount of $1,850. These figures add up to $3,500.13. The court likely imputed income from O'Connell's labor to be $40,000 and added the rental income and dividend. This would account for all but $50 of the discrepancy. However, this possible explanation is only a guess.

      . The transportation costs were substantial given O'Connell's residence in Anchorage, Christen-son's residence near Fairbanks, and a requirement that the children only be transported by air.

      . The court did further describe the compromise in its earlier order that set child support at the poverty level in return for O'Connell agreeing to accept the expense of visitation. The court then ordered that henceforth the parents will split visitation costs.

      . The adjusted annual income on which child support is based would be somewhat less. See Alaska R. Civ. P. 90.3(a)(1).

      . Alaska R. Civ. P. 90.3(a)(4).

      . 15 AAC 125.050(a) provides that when CSED. is unable to obtain accurate financial information "the agency will use the best information available, including any information available to it through automated sources such as information maintained by the Department of Labor and Workforce Development, to determine the parent's total incomes from all sources." Another section of the regulations that specifically relates to imputing potential income for individuals determined to be voluntarily unemployed or underemployed directs CSED to "determine potential income by considering, based on available information, the parent's past income, skills, work history, and education, and the job opportunities in the area where the parent physically resides." 15 AAC 125.020(b).