author: JOE C. TAYLOR, Presiding Judge.

text:
    2002 OK CIV APP 66
    NOBLE STEEL, INC., Plaintiff/Appellant, v. WILLIAMS BROTHERS CONCRETE CONSTRUCTION COMPANY, a/k/a Williams Bros. Concrete Contractor, Inc., Defendant/Appellee.
    No. 95,706.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    March 19, 2002.
    Rehearing Denied May 13, 2002.

      Kelly F. Monaghan, John M. Folks, Holloway & Monaghan, Tulsa, OK, for Plaintiff/ Appellant.
    Gerald G. Stamper, John E. Harper, Jr., Nichols, Wolfe, Stamper, Nally, Fallis & Robertson, Inc., Tulsa, OK, for Defendant/Appellee.
   Opinion By

JOE C. TAYLOR, Presiding Judge.

11 In this action for inderonity, Plaintiff, Noble Steel, Inc., appeals a judgment entered in favor of Defendant, Williams Brothers Concrete Contractors, Inc. The issue on appeal is whether Plaintiff is entitled to either contractual or implied indemnity from Defendant for penalties and costs incurred due to violations of regulations of the Oceu-pational Safety and Health Administration (OSHA). Having reviewed the record and applicable law, we find that Noble Steel is entitled to non-contractual indemnity on one OSHA violation, and reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

12 Williams Brothers was the primary contractor on a construction project at the Waste Water Treatment Plant in Clinton, Oklahoma. Williams Brothers solicited bids from subcontractors for the furnishing of labor to unload and install fabricated rebar at the Clinton project. Noble Steel submitted a bid offering to work based upon specified unit prices. Noble Steel's bid included certain conditions concerning scheduling, labor, payment, and other general items; a list of items that would be included in its price, such as hand tools, wire, supervision, torches, ete.; and a list of items that were excluded from the price, such as drinking water, toilets, certain equipment, ete. Of importance to this litigation is Noble Steel's exclusion of "[slafety caps on exposed vertical reinforcing steel." Although Williams Brothers accepted Noble Steel's bid, their agreement was never memorialized in a separate written agreement.

13 During the time that Noble Steel was installing the rebar on the project, an OSHA representative visited the construction site and cited both Williams Brothers and Noble Steel with OSHA violations, including a citation for failing to cover the vertical rebar during construction, as required by 29 C.F.R. § 1926.701(b). Additionally, Noble Steel received a citation for failing to provide stairways or ladders for access into and out of the area where its employees were working, as required by 29 C.F.R. § 1926.105l(a) The total penalty for Noble Steel's violations was $2,250.

[4 Williams Brothers negotiated a settlement and paid the penalties on the citations. Noble Steel, on the other hand, unsuccessful ly disputed the citations administratively in the OSHA Review Commission and judicially through the Tenth Cireuit Court of Appeals. During this ill-fated protest process, Noble Steel incurred costs and attorney fees in excess of $28,000. Noble Steel then filed this action seeking indemnification from Williams Brothers for the penalties, costs, and attorney fees.

T5 The case proceeded to a bifurcated non-jury trial. After the liability portion of the trial, the trial court granted judgment to Williams Brothers based on its finding that Williams Brothers "did not breach any obligation, contractual or otherwise, owed to [Noble Steel]." Noble Steel appealed the judgment, arguing the trial court erred in refusing Noble Steel's request for findings of fact and conclusions of law. The Court of Civil Appeals agreed and remanded the case to the trial court with directions to enter findings of fact and conclusions of law. Noble Steel, Inc. v. Williams Bros. Concrete Constr. Co., Appeal No. 91,548, July 27, 1999.

T6 On remand, after receiving proposed findings of fact and conclusions of law from both Williams Brothers and Noble Steel, the trial court filed its findings of fact and conclusions of law. The trial court concluded that (1) Williams Brothers had no obligation to provide plastic protective caps for the exposed vertical rebar; (2) Williams Brothers had no obligation to Noble Steel to provide ladders for Noble Steel's employees beyond those which were available; (8) Noble Steel had the option to quit the job if it believed Williams Brothers had breached its agreement to provide safety caps, ladders, or other equipment; (4) Williams Brothers had no contractual or other obligation to indemnify Noble Steel against penalties for violations of OSHA regulations or to pay any attorney fees incurred by Noble Steel in contesting OSHA citations; (5) Williams Brothers breached no obligation, contractual or otherwise, owed to Noble Steel; (6) Noble Steel was not entitled to damages from Williams Brothers; (7) neither party was entitled to attorney fees in this action; and (8) Williams Brothers was entitled to judgment exonerating it from all liability to Noble Steel.

17 Noble Steel again appeals the judgment entered in favor of Williams Brothers. Noble Steel implicitly makes two arguments regarding indemnity: (1) Williams Brothers contracted to indemnify Noble Steel for the OSHA violations; and (2) the contractual relationship between Williams Brothers and Noble Steel gives rise to an implied right of indemnification from Williams Brothers.

CONTRACTUAL INDEMNIFICATION

T8 The two OSHA regulations which Noble Steel violated are found among OSHA regulations regarding safety and health for construction projects, 29 C.F.R. Part 1926. Under these regulations, contractors and subcontractors are prohibited from requiring "any laborer or mechanic employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards promulgated by the Secretary [of Labor] by regulation." 29 C.F.R. $ 1926.10. Furthermore, although a prime contractor and its subcontractors "may make their own arrangements with respect to obligations which might be more appropriately treated on a jobsite basis rather than individually," the subcontractors are relieved "from the actual, but not any legal, responsibility." 29 C.ER. § 1926.16(a) (emphasis added). The regulations further provide as follows:

(c) To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility.
(d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act.

29 C.F.R. § 1926.16(c), (d).

T9 It is clear from these regulations that, regardless of whether the agreement between Williams Brothers and Noble Steel required Williams Brothers to provide ladders for Noble Steels' employees and caps for the rebar, Noble Steel was subject to the regulations and was liable for any OSHA violations arising out of a failure to provide those items. Thus, any alleged indemnification agreement between Williams Brothers and Noble Steel would be an agreement to indemnify Noble Steel against its own liability.

110 Agreements to indemnify a party against its own negligence or liability are strictly construed. See Transpower Constructors v. Grand River Dam Auth., 905 F.2d 1418, 1420 (10th Cir.1990) (applying Oklahoma law). "To be enforceable, the agreement must meet the following three conditions: (1) the parties must express their intent to exculpate in unequivocally clear language; (2) the agreement must result from an arm's-length transaction between parties of equal bargaining power; and (8) the exeul-pation must not violate public policy." Id. (citing Fretwell v. Protection Alarm Co., 1988 OK 84, ¶ 12, 764 P.2d 149, 152). It is unnecessary to address the second and third requirements, because Noble Steel cannot meet the first requirement.

{11 The only written document evidence-ing the parties' intent is Noble Steel's bid. Looking at the clear language of the bid regarding coverage for the rebar, the bid merely states that Noble Steel will not provide "[slafety caps on exposed vertical reinforcing steel." Although Williams Brothers took responsibility for covering the rebar with plywood, the bid itself does not expressly obligate Williams Brothers to do so. Nor does the bid mention or in any way require Williams Brothers to provide ladders for Noble Steel's employees' use. More importantly, the bid makes no reference to indemnification by Williams Brothers for failure to cover the rebar or to provide ladders. More specifically, the bid makes no reference to indemnification against penalties and expenses associated with OSHA violations. Noble Steel presented no other evidence to show that Williams Brothers expressly agreed to indemnify Noble Steel for anything. Thus, Noble Steel failed to show that the parties "expressed their intent to exculpate in unequivocally clear language." Consequently, the trial court correctly determined that Williams Brothers had no contractual obligation to indemnify Noble Steel against penalties for violations of OSHA regulations.

IMPLIED INDEMNITY

112 Noble Steel also argues that the relationship of contractor and subcontractor gives rise to a right of implied indemnification from Williams Brothers. "The general rule of indemnity is that one without fault, who is forced to pay on behalf of another, is entitled to indemnification." Nat'l Union Fire Ins. Co. v. A.A.R. Western Skyways, Inc., 1989 OK 157, ¶ 7, 784 P.2d 52, 54. "Noncontractual or equitable indemnity is similar to common-law contribution; one who is only constructively or vicariously obligated to pay damages because of another's tortious conduct may recover the sum paid from the tortfeasor." Id. at 118, 784 P.2d at 54. Non-contractual indemnity is sometimes referred to as "implied indemnity" and "may arise out of a contractual or special relationship between parties and from equitable considerations." Central Nat'l Bank of Poteau v. McDaniel, 1986 OK CIV APP 34, ¶ 9, 734 P.2d 1314, 1816 (emphasis added). Noneon-tractual or implied indemnity "rests upon fault of another which has been imputed or constructively fastened upon him who seeks indemnity." Id.

A. Indemmification for failure to adequately cover the rebar.

113 It is undisputed that Williams Brothers and Noble Steel had a contractual relationship, whereby Noble Steel agreed to deliver and install rebar for a project on which Williams Brothers was the general contractor. Moreover, although the contract does not unequivocally require Williams Brothers to cover the rebar in order to protect the workers, the evidence presented at trial shows that either Williams Brothers voluntarily undertook this duty or industry standards imposed this duty on Williams Brothers. Bobby Williams, the president, safety director, and an owner of Williams Brothers, testified that Williams Brothers assumed the responsibility of providing the materials to protect the rebar. More specifically, Williams testified that it was a customary practice for the general contractor to supply the material. Finis Riggs, Noble Steel's employee who prepared the bid, testified that industry standards require the general contractor to cover the rebar. Thus, it is clear from the evidence presented at trial that Williams Brothers undertook the duty of covering the rebar. Its failure to properly cover the rebar so that it met with OSHA standards exposed Noble Steel to lability for something that was Williams Brothers' responsibility.

€ 14 The Tenth Cireuit Court of Appeals addressed a similar situation in Safway Rental & Sales Co. v. Albina Engine & Machine Works, Inc., 343 F.2d 129 (10th Cir.1965). Albina Engine, which owned scaffold equipment, entered into a joint venture with Saf-way Rental, whereby Safway Rental would lease Albina Engine's scaffolds to third parties in Oklahoma. Although Safway Rental agreed to maintain, repair, and service the equipment, there was no express agreement by Safway Rental to indemnify Albina Engine for any loss which might occur as a result of Safway Rental's failure to maintain and service the equipment. A workman who was injured when one of the scaffolds fell sued both Safway Rental and Albina Engine. A jury returned a verdict against both parties. The court then held in favor of Albina Engine on its cross-claim for indemnification against Safway Rental.

15 The court of appeals first determined that "[the record amply support[ed] the trial court's findings that by the express agreement to service the equipment Safway was obligated to do so in a workmanlike manner so that it was safe for use for its intended purpose." Id. at 181. According to the court, "Safway failed to perform its contractual duty, and the injuries to the user of the equipment, and the resulting involvement of Albina were certainly foreseeable consequences." Id. (footnote omitted). The court concluded that Albina was entitled to implied indemnity, which arises out of " 'an independent legal relationship [such as a joint venture], under which the indemnitor owes a duty either in contract or tort to the indemni-tee apart from the joint duty they owe to the injured party. Id. at 182 (quoting Peak Drilling Co. v. Halliburton Oil Well Cementing Co., 215 F.2d 868, 870 (10th Cir.1954)).

116 Like Safway Rental, Williams Brothers, whethér by contract or by industry standard, undertook the duty of providing coverage for the rebar. Implicit in this undertaking was the duty to cover the rebar in a manner that would meet safety regulations and would protect the workers. Williams Brothers' failure to adequately perform its duty resulted in OSHA fines to both Williams Brothers and Noble Steel that were "certainly foreseeable." The legal relationship between Williams Brothers and Noble Steel and the duty to properly cover the rebar require Williams Brothers to indemnify Noble Steel.

B. Indenmification for failure to provide ladders.

117 Noble Steel also seeks inderani-fication from Williams Brothers for the citation it received for failing to provide a ladder at the work site. However, the bid provided by Noble Steel makes no reference to ladders and whether it will provide them or whether they are excluded from the bid. Furthermore, the evidence as to who was to provide ladders at the job site was in stark conflict. Noble Steel presented evidence that industry standards require the general contractor to provide ladders for subcontractors. On the other hand, Williams Brothers presented evidence that, although it allows subcontractors to use its ladders that are present on the job site, it does not provide ladders for the subcontractors and industry standards do not require it to do so. The trial court was the sole judge of the eredibility of the witnesses, and its finding that "Williams had no contractual or other obligation to Noble to provide for the use of Noble's employees ladders beyond those which were available" is supported by the evidence. Thus, because Williams Brothers had no duty (contractual, implied, or assumed) to provide ladders for Noble Steel's employees, it cannot be held liable to indemnify Noble Steel for the OSHA citation for not providing ladders.

CONCLUSION

118 We conclude that, although there is no contract for indemnification, Noble Steel is entitled to implied indemnification arising out of the relationship between it and Williams Brothers. However, this right of indemnification extends only to the OSHA citation for failure to provide adequate rebar covering and does not extend to the OSHA citation for failure to provide ladders at the work site. Therefore, we must remand the case for further proceedings on the issue of damages.

119 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FUR THER PROCEEDINGS.

REIF, C.J., and STUBBLEFIELD, J., concur.

      . Williams Brothers also received citations for failing to provide proper ground fault protection, as required by 29 C.F.R. § 1926.404(b)(1)(i), and for failing to provide adequate stairs, as required by 29 C.F.R. § 1926.1052(a)(2). These citations are not relevant to this appeal.

      . At trial, Williams Brothers also submitted a copy of a contract between it and Noble Steel. However, the agreement is not signed by Noble Steel. '

      . Williams Brothers attempts to distinguish Saf-way Rental by emphasizing that, because of the existence of the joint venture relationship, Albina Engine was only held vicariously liable, whereas, in the instant case, Noble Steel was not merely vicariously liable. Despite this difference, we find Safway Rental persuasive. First, the court in Safway Rental noted that "[the legal conclusion that they were joint adventurers was of importance in the negligence action where they faced claims of a third party, but it is of less significance in this action between the two of them based primarily on contract rather than on doctrines of tort." 343 F.2d at 131. Likewise, in the instant case, this action for indemnity is based primarily on Williams Brothers' undertaking to perform a certain function and the resulting fines for its failure to sufficiently perform that function. Furthermore, in Safway Rental vicarious liability was imposed on Albina Engine for Safway Rental's failure to maintain and service the scaffold in a workmanlike manner. Similarly, in the instant case, liability was imposed on Noble Steel by OSHA for Williams Brothers' failure to adequately cover the rebar, as it had undertaken to do. Thus, we find Saf-way Rental sufficiently analogous to the instant case to be persuasive authority for our decision here.

      . We note that 29 C.F.R. § 1926.16(a) acknowledges that a prime contractor and subcontractor "may make their own arrangements with respect to obligations which might be more appropriately treated on a jobsite basis rather than individually." Thus, although Noble Steel may still may be legally liable to pay the OSHA fine, nothing in the OSHA regulations prohibits indemnification by Williams Brothers for the fine.

      . Because the trial court bifurcated the trial and heard only the issue of liability, we do not address the issue of damages. We note only that reasonable attorney fees are allowed to an indem-nitee as a part of damages. Booker v. Sears Roebuck & Co., 1989 OK 156, 785 P.2d 297. Thus, on remand, Noble Steel will carry the burden of proving that the attorney fees (approximately $28,000) it incurred in protesting the OSHA violation regarding failure to properly cover the rebar were reasonable under the circumstances. Circumstances to consider include, but are not limited to, the nature of the violation itself; the fact that Noble Steel protested both violations, but is entitled to indemnification on only one violation; the validity of the defenses raised by Noble Steel, before both the administrative and judicial tribunals; and the soundness of the appeal to the Tenth Circuit Court of Appeals.


source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2002 WY 100
    Ryan Lee WILKS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-51.
    Supreme Court of Wyoming.
    July 3, 2002.
    Rehearing Denied Aug. 6, 2002.

      Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Assistant Appellate Counsel, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and T. Alan Elrod, Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument

   KITE, Justice.

[T1] A jury convicted Ryan Wilks of see-ond-degree murder for the shooting death of a Pizza Hut delivery woman. This case comes before us as a writ of review of Mr. Wilks' judgment and sentence. He claims multiple evidentiary errors, prosecutorial misconduct, insufficient evidence, and an excessive sentence. Finding either no error or harmless error in connection with his trial and sentence, we affirm.

ISSUES

[12] Mr. Wilks presents these issues for our review:

I. Did the trial court err in allowing victim impact testimony and victim impact argument from the prosecution?
II. Did the trial court err in permitting improper, irrelevant and prejudicial character evidence concerning [Mr. Wilks]?
III. Did the trial court err in permitting speculative evidence from a layperson that [Mr. Wilks] was not intoxicated shortly before the death of the victim?
IV. Did the prosecutor commit prose-cutorial misconduct in closing argument?
V. Was there insufficient evidence to convict [Mr. Wilks] of murder in the see-ond degree?
VI. Did the trial court abuse its discretion in sentencing [Mr. Wilks] to 70 years to life in the Wyoming State Penitentiary?

The State of Wyoming phrases the issues as:

I. Does the record in [Mr. Wilks'] case contain plain error relating to victim impact testimony or argument?
IL Was any error arising from the district court's evidentiary rulings harmless?
III. Did the district court properly admit lay testimony that [Mr. Wilks] was not intoxicated shortly before he killed his vice-tim?
IV. Does the record in [Mr. Wilks'] case contain prosecutorial misconduct amounting to plain error?
V. Does the record in [Mr. Wilks'] case contain sufficient evidence to sustain [his] conviction?
VI. Did the district court abuse its discretion at sentencing, where [Mr. Wilks] sentence was within the statutory limits?

FACTS

[13] On January 5, 2000, at approximately 9:00 p.m., Mr. Wilks ordered a pizza from Pizza Hut. The victim delivered the pizza to his residence. Pizza Hut employees became concerned when the victim failed to return from the delivery. Two co-employees went to search for her, and, upon arrival at the delivery residence, they observed her car with its engine running. The victim was lying in a pool of blood next to her pizza delivery bag clutching $13 in her hand. A loaded .38 caliber gun was lying on the floor in Mr. Wilks' kitchen. A pathologist testified that the victim died from a single, very close-range gunshot wound in the right check. Mr. Wilks was apprehended at his father's home and arrested the following day.

[14] Mr. Wilks did not testify at trial. However, even though the trial court suppressed his statement given to the police, he voluntarily introduced the statement into evidence. In his statement, Mr. Wilks related how he endured a succession of employment failures and began to spiral downward into depression. He seldom left his apartment and admitted he drank heavily. He had a distant relationship with his family and had no friends. He reached his breaking point and on January 5, 2000, decided to end his life. He claimed he drank alcohol throughout the entire day and attempted to buy a gun but was unwilling to withstand the required waiting period. He took his father's gun from the family home and called a local hotel to inquire about a room rate. He wanted to avoid committing suicide in his apartment out of respect for his landlord. However, he could not afford a room and instead chose to order his last meal from Pizza Hut.

[15] According to Mr. Wilks, when the victim arrived at his residence to deliver the pizza, an argument ensued over his forty-one-cent tip. He admitted that, in the midst of the argument, he pulled out the gun and shot the victim. He claims he "shot the wrong person" and actually intended to kill himself. He left the victim lying in front of his apartment, drove around town for several hours, and went to his father's home where he was ultimately apprehended.

[161 On January 7, 2000, Mr. Wilks was charged with one count of first-degree murder. On October 14, 2000, a jury acquitted him of first-degree murder but convicted him of the lesser-included offense of second-degree murder under Wyo. Stat. Ann. § 6-2-104 (LexisNexis 2001). The trial court sentenced him to serve not less than seventy years nor more than the term of his natural life in the Wyoming State Penitentiary. He seeks review of his judgment and sentence.

DISCUSSION

A. Victim Impact Testimony and Argument

[17] In Mr. Wilks' first claim of error, he asserts the trial court improperly permitted several instances of vietim impact testimony and argument. With one exception, Mr. Wilks failed to object to the challenged statements at trial We, therefore, review his claims under our three-part plain error standard:

First, the record must be clear as to the incident which is alleged as error. Second, the party claiming the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, that party must prove a substantial right has been denied him and, as a result, he has been materially prejudiced.

Worcester v. State, 2001 WY 82, ¶7, 30 P.3d 47, 17 (Wyo.2001) (citations omitted).

[T8] Wyoming law permits the trial court to consider oral or written victim impact statements prior to imposing a sentence. Wyo. Stat, Ann. §§ 7-21-101 to -103 (LexisNexis 2001). In this case, the allegations of improper victim testimony and argument arose at trial and, therefore, do not fall under §§ 7-21-101 through 7-21-108. The key inquiry on the admissibility of victim impact testimony during the guilt phase of a criminal trial is relevancy. McCone v. State, 866 P.2d 740, 751 (Wyo.1993). Victim impact testimony must not be permitted "unless there is a clear justification of relevance." Justice v. State,775 P.2d 1002, 1011 (Wyo.1989). Such testimony may be irrelevant if offered during the guilt phase of the trial as proof of the victim's loss; the physical, emotional, or psychological impact on the victim; or the effect upon the family. Yet, it may be relevant if offered for another proper purpose. Id. at 1010. Mr. Wilks contends that either the testimony and argument were irrelevant or their probative value was outweighed by their prejudice.

[¥9] Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." W.R.E. 401. In criminal cases, "evidence is always relevant if it tends to prove or disprove one of the elements of the crime charged." Grabill v. State, 621 P.2d 802, 809 (Wyo.1980); see also Lancaster v. State, 2002 WY 45, 142, 48 P.3d 80, 142 (Wy.2002); Geiger v. State, 859 P.2d 665, 667 (Wyo.1993). Relevant evidence may be excluded, however, if "its probative value is substantially outweighed by the danger of unfair prejudice." W.R.E. 408. For this court to conclude that the trial court admitted unduly prejudicial evidence in violation of W.R.E. 408, the appellant must demonstrate "that the evidence had little or no probative value and that it was extremely inflammatory or introduced for the purpose of inflaming the jury." Apodaca v. State, 627 P.2d 1028, 1027 (Wyo.1981).

[110] First, Mr. Wilks challenges the testimony obtained from the victim's husband. He testified that he and the victim had breakfast together every morning they were married and, on the day she was murdered, she was in a "good mood" and was "happy and normal." The state contends this testimony was relevant to establish a foundation for the husband's knowledge of the victim's mood on the day of the murder, which in turn related to the unlikelihood that she would have engaged in an argument with Mr. Wilks. The state bolsters its theory by directing our attention to the husband's rebuttal testimony wherein he recounted an incident in which the victim received a meager tip and immediately forgave the customer, assuming the small amount was all the customer could afford to give her. We agree that, on rebuttal, there may have been some limited relevance to this testimony in an effort to impeach Mr. Wilks'. assertion that the victim bickered over the tip amount. However, we cannot see how the evidence was relevant in the prosecution's case-in-chief. The prosecutor is not allowed to bootstrap relevancy in the first instance by what it subsequently offers in rebuttal testimony. Although the victim's state of mind was not relevant when offered in the prosecution's case-in-chief, we cannot say the evidence was extremely inflammatory sufficient to warrant reversal.

[¶11] The second instance of challenged testimony occurred when the prosecution questioned the husband about identifying the victim's body. As with several of his other contentions, Mr. Wilks makes no effort to explain how the prosecutor's question resulted in error or to point this court to any pertinent authority. Upon our own independent review, we cannot find any plain error in its admission.

[112] Third, Mr. Wilks claims the trial court erred by permitting the introduction of a photograph of the victim taken while she was alive. At trial, the state showed the victim's photograph to the husband and asked him to identify it. Defense counsel objected arguing the defense was not contesting the victim's identification and the photograph was irrelevant and prejudicial because it tended to invoke sympathy for the victim. The state argues the introduction of the photograph was relevant to show that the victim was alive before Mr. Wilks took the actions for which he was on trial. The state's contention is wholly without merit.

[1183] We have said:

Generally the question of admission of photographs is left to the reasonable discretion of the trial court. However, in any case of which we are aware in which a photograph was deemed properly admitted it had some probative value. This principle would seem to be applicable to the admission of any exhibit, for if that which is offered has no probative value there would appear to be no reason for its admission.

Reeder v. State, 515 P.2d 969, 972 (Wyo.1978) (citations omitted); see also Mayer v. State, 618 P.2d 127, 130 (Wyo.1980). We adopt the following test for the use of "in life" photographs of homicide victims:

Photographs of homicide victims taken during life should be admitted to the jury only under very limited cireumstances:
Photographs of [homicide] victims [taken while alive} are inadmissible unless they are relevant to some material issue and their relevancy outweighs the danger of prejudice to the defendant.... [Where there is no purpose in introducing such pictures into evidence, such admission invokes the sympathy of the jury and constitutes error. (FN83) []

Valdes v. State, 900 P.2d 363, 380 (Okla.Crim.App.1995). Several witnesses testified that the victim was alive on the day of her murder. The state, therefore, did not need the photograph to establish this fact. However, an "in life" photograph is often relevant to establish the victim's identity. Although Mr. Wilks stipulated throughout trial to causing -the victim's death and her identity was not in dispute, in every homicide case the state must establish the identity of the person killed. State v. Broberg, 342 Md. 544, 677 A.2d 602, 610-12 (1996). Since the prosecution has the burden of proving all the elements of a crime, relevant photographs do not become inadmissible because the defendant concedes the fact and cause of the victim's death. Seyle v. State, 584 P.2d 1081, 1084 (Wyo.1978). Admission of homicide vie-timsg' "in life" photographs is discouraged and should be permitted under only very limited circumstances where their relevancy outweighs the potential to inflame the jury.

[¶ 14] Several jurisdictions that have considered the issue have held there is no inherent prejudice in the use of a victim's life photograph. This is especially true where the jury will also view autopsy or crime scene photographs showing the victim, as was the case in this instance. See Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710, 716 (1994); Broberg, 677 A.2d at 610-12; People v. Thompson, 45 Cal.3d 86, 246 Cal.Rptr. 245, 753 P.2d 37, 54 (1988) (In Bank); People v. Hovey, 44 Cal.3d 548, 244 Cal.Rptr. 121, 749 P.2d 776, 791-92 (1988). Our review of the record reveals that the state did not spend a great deal of time introducing and discussing the photograph. Given the evidence against Mr., Wilks, there is no reasonable possibility the verdict might have been more favorable to him if the error had never occurred. Therefore, the introduction of the photograph was not prejudicial to Mr. Wilks.

[115] Next, he complains that two Pizza Hut employees were permitted to testify that they never saw the victim alive again and such testimony was elicited to show the trauma caused to them. We think this testimony was relevant because it tended to show the timing of the victim's death. Both witnesses were examined as to the specific events of the evening up until the time they discovered her death. The prosecutor did not explore whether the witnesses were traumatized by never seeing the victim again, and they did not elaborate. The prosecutor was simply trying to establish a timeline for the events in question; therefore, the questioning was relevant and admissible.

[116] Mr. Wilks additionally as-'couldn't-I don't want to." serts that testimony elicited from the two Pizza Hut employees amounted to improper victim impact testimony. The prosecutor asked the employees whether they remained employees at Pizza Hut. The first witness responded in the negative and explained the reason for her departure: "Because this totally scared the ba-jeebers out of me. I couldn't-1I couldn't-I couldn't function normally like I used to. I-it just really threw me into, you know-I felt like I was going crazy, pretty much." The second witness replied that she no longer worked for Pizza Hut "[blecause of-of the incident. I We look to the analysis in Justice for guidance on how best to resolve this issue. In that case, the appellant argued the court erred in admitting the victims' testimony as to the impact of the crime upon them, and we held:

It is clear that the testimony offered by the victims of this crime with respect to how it affected them in connection with their lives after the crime is absolutely irrelevant with respect to the issues before the jury. Their discussion of the impact of the erime upon them could not in any way serve to establish any of the elements of the crime of aggravated robbery. The only purpose must have been to attempt to arouse the passions of the jury. Consequently, we are satisfied that the admission of such evidence is error, and the trial courts are cautioned not to permit such evidence to be presented unless there is a clear justification of relevance. In the context of this case, however, we are persuaded that such evidence was harmless. Given the other evidence against Justice, which the trial court aptly described as overwhelming, the admission of the testimony about the impact on the victims did not constitute prejudicial error.

Justice, 775 P.2d at 1010-11. Accordingly, we hold the admission of the employees' testimony was without a clear justification of relevance and was calculated to arouse the passions of the jury. However, while these individual isolated questions and answers may have been irrelevant and resulted in error, as a whole, the employees' testimony was relevant. See Taul v. State, 862 P.2d 649, 656 (Wyo.19983) (holding certain answers by the victim amounted to irrelevant victim impact testimony; however, the testimony was harmless because, as a whole, it was clearly relevant). The first witness testified that she took Mr. Wilks' pizza order over the telephone, and the second witness arrived at the crime seene while searching for the victim. Therefore, in light of their entire testimony, the remarks by the two witnesses that amounted to irrelevant victim impact statements did not result in material prejudice to Mr. Wilks.

[T17] Finally, Mr. Wilks contends the prosecutor made several remarks in closing argument and rebuttal that amounted to impermissible victim impact remarks. We believe his argument essentially asserts claims of prosecutorial misconduct, and we will, therefore, address those claims in that seetion of this opinion.

B. Character Evidence

[T18] Mr. Wilks argues the prosecution elicited improper testimony from his former employer who testified that she fired him in September of 1999 because he was in a physical altercation with another employee. He maintains this evidence was irrelevant, prejudicial, remote in time, and tended to make him look habitually violent, which is by definition an improper use of character evidence. He claims the trial court additionally erred in admitting a former co-employee's testimony regarding occasional derogatory comments he made. The trial court allowed the testimony under W.R.E. 801(d)(@2), an admission by a party opponent. Again, Mr. Wilks asserts the remarks were irrelevant, remote in time, and prejudicial character evidence. «

[119] We have said:

"Evidentiary rulings are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency, materiality, and remoteness of the evidence. This court will generally accede to the trial court's determination of the admissibility of evidence unless that court clearly abused its discretion." Solis v. State, 981 P.2d 34, 36 (Wyo.1999) (citation omitted). We have described the standard of an abuse of discretion as reaching the question of the reasonableness of the trial court's choice. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously. "In the absence of an abuse of discretion, we will not disturb the trial court's determination." [Griswold v. State, 2001 WY 14, 17, 17 P.3d 728, 17 (Wyo.2001).] The burden is on the defendant to establish such abuse.

Skinner v. State, 2001 WY 102, 1 25, 38 P.3d 758, 125 (Wyo.2001), cert denied, - U.S. -, 122 S.Ct. 1554, 152 L.Ed.2d 477 (2002) (some citations omitted).

[120] Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." W.R.E. 401. "Evidence which is not relevant is not admissible." W.R.E. 402. During oral arguments, the state conceded that the witnesses' testimony was not relevant. We agree that this type of evidence was not relevant to prove or disprove any of the elements of first-degree murder or its lesser-included offenses. Therefore, we hold the trial court abused its discretion by allowing the testimony into evidence.

[T21] We must ascertain whether the error affects any substantial rights of the accused, providing grounds for reversal, or whether it is harmless. The harmless error standard is set out in W.R.A.P. 9.04: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court." See also W.R.Cr.P. 52(3). An error is harmful if there is a reasonable possibility that the verdict might have been more favorable to the defendant had the error never occurred. To demonstrate harmful error, the defendant must show prejudice under "cireumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play." Johnson v. State, 790 P.2d 281, 282 (Wyo.1990). Under our harmless error analysis, we must judge whether the jury's verdict might have been different but for the witnesses' testimony. There are cireumstances in this case which tend to alleviate any unfairly prejudicial effect the testimony may have caused. First, defense counsel effectively neutralized the suggestion that Mr. Wilks was violent or prone to vengeance on the cross-examination of both witnesses. Second, Mr. Wilks failed to show how he was prejudiced by the alleged improper testimony. In addition to the challenged testimony, the jury heard Mr. Wilks' own statement to the police wherein he admitted he shot the victim in the face after an argument concerning his meager tip. Based on the entire record, a reasonable possibility does not exist that, in the absence of the witnesses' testimony, the verdict might have been more favorable to Mr. Wilks. Therefore, we find these evidentiary errors to be harmless.

C. Lay Testimony

[122] Whether or not Mr. Wilks was intoxicated at the time of the murder and, if so, to what extent he was intoxicated were important issues at trial. The state offered lay testimony concerning his level of intoxication. A Pizza Hut employee took his pizza order over the telephone and testified that, in her opinion, he did not sound intoxicated or exhibit any of the typical signs of intoxication. She based her opinion on her prior experience in taking telephone orders from intoxicated customers. Mr. Wilks complains the trial court erred when it improperly admitted this testimony in violation of W.R.E. 701. The burden is on the appellant to establish the trial court's evidentiary ruling was an abuse of discretion. Skinmer, 2001 WY 102, ¶38, 38 P.3d 758.

[1283] W.RE. 701 authorizes lay witness testimony under the following cireumstances:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

In State v. Cantrell, 64 Wyo. 182, 186 P.2d 539 (1947), numerous lay witnesses were permitted to testify at trial that, based on their personal observations of the defendant, the defendant was intoxicated. We upheld the trial court's admission of the opinions concluding that lay witnesses may testify as to a defendant's intoxication provided the witnesses state the facts on which they base their opinion. 186 P.2d at 546. Our decision was based on the general proposition that most adults are sufficiently experienced with people who have been drinking to offer an opinion as to whether a person is, in fact, intoxicated from alcohol based on their per-somal observations. Id.; see also State v. Nobach, 2002 MT 91, ¶ 15, 309 Mont. 342, 46 P.3d 618.

The determination whether a person is intoxicated is open to the observation of all persons without the necessity of peculiar scientific knowledge. The recognition of intoxication, however, is one of those matters which involves the statement of the impression or belief in the mind of the witness produced by various cireumstances which cannot be made intelligible to the jury apart from the impression they create. Since a description of the appearance of a person, his or her acts, gestures, looks, and other indications of a state of sobriety or of intoxication which make the impression on one's mind as to whether a person is sober or intoxicated is regarded as practically impossible, a witness who has had the opportunity to observe the facts forming the basis of his or her opinion may therefore give an opinion as to whether the person was intoxicated at the particular time in question.

31A Am.Jur2d Expert and Opinion Evidence § 209 at 212-18 (1989).

[124] Here, the witness' opinion that Mr. Wilks was not under the influence of alcohol was sufficiently based on her personal observations. She initially testified as to the commonly recognizable signs of intoxication and explained her extensive experience in taking telephone orders from intoxicated customers and generally being around intoxicated persons. She then detailed her opportunity to observe Mr. Wilks' voice on the telephone. He repeatedly gave meticulous directions to his home and did not express any confusion as to what type of pizza he desired, and, although he spoke quietly, the witness was able to satisfactorily understand him throughout the entire telephone conversation. Based on her personal observations and experience, the witness concluded Mr. Wilks was not intoxicated.

[125] Mr. Wilks argues the witness was not in a suitable position to determine whether he was intoxicated because she had only an aural perception of him. An aural perception is one form of an observation, and a witness can adequately discern certain characteristics from such a perception. We will not limit the type of perceptions a witness must experience, especially given this court liberally construes W.R.E. 701 in favor of admitting opinion evidence of lay witnesses. Rhoades v. K-Mart Corporation, 863 P.2d 626, 633 (Wyo.1998). It is the jury's function to determine the weight to be given the evidence. In this case, the witness was entitled to rely on her lay experience and form an opinion which (1) was rationally based on her aural perception of Mr. Wilks and (2) was helpful to the jury's determination of whether he was intoxicated at the time of the murder. Accordingly, we perceive no error in the admission of the witness' lay opinion testimony.

D. Prosecutorial Misconduct

[T26] Mr. Wilks advances several instances of alleged prosecutorial misconduct that occurred during closing argument.

Prosecutorial misconduct "has always been condemned in this state." Earll v. State, 2001 WY 66, ¶ 9, 29 P.3d 787, 19 (Wyo.2001) (quoting Valerio v. State, 527 P.2d 154, 156 (Wyo.1974)). Whether such misconduct has been reviewed on the basis of harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this Court has focused on whether such error affected the accused's "substantial rights." Id. "The accused's right to a fair trial is a substantial right. Wyo. Const. art. 1, §§ 6, 9, and 10; and see, eg., Jones v. State, 580 P.2d 1150, 1154 (Wyo.1978)." Id. "Before we hold that an error has affected an accused's substantial right, thus requiring reversal of a conviction, we must conclude that, based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused." Id.

O'Brien v. State, 2002 WY 63, ¶ 35, 45 P.3d 225, ¶ 35 (Wyo.2002) (citation omitted). "In reviewing a claim of prosecutorial misconduct in closing argument, the court looks at the entire record to determine whether the defendant's case was so prejudiced by the improper comments as to result in the denial of a fair trial." Burton v. State, 2002 WY 71, ¶ 11, 46 P.3d 309, 111 (Wyo.2002). We judge the challenged comments in the context of the prosecutor's entire argument, considering the context of the statements and comparing them with the evidence produced at the trial. Id. The burden of establishing prosecutorial misconduct rests upon the appellant who raises the issue. The plain error standard of review set out in our discussion of the first issue applies here as well given the defense did not object to any of the challenged statements.

[127] In Trujillo v. State, 2002 WY 51, ¶ 5, 44 P.3d 22, 15 (Wyo.2002), this court set forth the following broad guidelines found in the Standards for Criminal Justice which are applicable to a prosecutor's arguments to a jury:

(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict.
(e) It is the responsibility of the court to ensure that final argument to the jury is kept within proper, accepted bounds.

I ABA., Standards for Criminal Justice 3-5.8 at 8.87 to 8.88 (2d ed.1980). We will analyze each of Mr. Wilks' claims based upon the Standards for Criminal Justice.

[T28] Mr. Wilks asserts the prosecutor committed misconduct when he said to the jury, "Do your duty, please, and find the Defendant guilty of First Degree Murder." We are required to look at this statement in the context it was made. The full context of the prosecutor's statement is as follows:

Read the law. Please follow the law. It's all there for you. I don't want you to twist it, I don't want you to turn it. Just read it as it is and apply the facts to the law.
There is no triumph greater that the ascertainment of the truth. That's your job. Do your duty, please, and find the Defendant guilty of First Degree Murder.

"Generally, an exhortation to the jury to 'do the right thing, to 'do your job,' or to 'do your duty' is error if it 'implfies] that, in order to do so, it can only reach a certain verdict, regardless of its duty to weigh the evidence and follow the court's instructions on the law." " Jackson v. State, 791 So.2d 979, 1029 (Ala.Crim.App.2000), cert. denied, 532 U.S. 934, 121 S.Ct. 1387, 149 L.Ed.2d 311 (2001) (quoting Arthur v. State, 575 So.2d 1165, 1185 (Ala.Crim.App.1990)). Such a statement may also run afoul of the admonition against injecting issues broader than the guilt or innocence of the accused. See Standards for Criminal Justice 3-5.8(d), supra. When this statement is read in context, it is clear the prosecutor was not telling the jury that fulfillment of its duty could be achieved only through a first-degree murder conviection. Rather, the prosecutor explicitly encouraged the jury to do its duty and ascertain the truth and to apply the evidence to the given law. When the statement is reviewed in context, it is apparent there was not a transgression of a clear and unequivocal rule of law.

[129] Mr. Wilks' second allegation of prosecutorial misconduct is not supported by any authority whatsoever. He claims the prosecutor erred in rebuttal by telling the jury the case was "about justice for [the victim], and it's about justice in the larger sense, and to call what happened to [the victim] Manslaughter would be a disservice to both of those things." Without a proper plain error analysis, Mr. Wilks cannot satisfy his burden of establishing prosecutorial misconduct. ©

[180] Next, he maintains the prosecutor misstated the evidence by stating, "lalt some point, [Mr. Wilks] said, 'I am going to shoot this lady in the face' " He claims nobody knows what occurred on the night in question and there is no evidence in the record to show he made such a calculated decision. While a prosecutor is not permitted to intentionally misstate the evidence or mislead the jury, he may reflect upon the evidence admitted at trial and draw reasonable inferences from that.evidence. Burton, 2002 WY 71, ¶15, 46 P.3d 309. That he decided at some point to shoot the victim is a reasonable inference to be drawn from the evidence based upon the fact that he admitted aiming the gun, pulling the trigger, and shooting her. Mr. Wilks fails to establish the second prong of the plain error analysis.

[131] His next claim of error arises when the prosecutor discussed from where Mr. Wilks retrieved the gun used in the murder. The prosecutor said, "He took a revolver, we don't know from where. There was a holster on his bed. He might have went all the way back there. 'Hold on a second. Let me get the money.' He came back with that revolver." He asserts the only evidence before the jury as to the location of the gun was introduced through his statement to the police when he said he kept the gun in the front of his waist the entire day. However, the police did find a gun holster on his bed that fit the gun used in the murder. The prosecutor is permitted to argue all reasonable inferences from the evidence. See Standards for Criminal Justice 3-5.8(a), supra.

" Closing arguments are meant to be just that, arguments premised upon the evidence already submitted to the jury. Prosecutors are no more limited in their closing than defense counsel. They may review the evidence and suggest to the jury inferences based thereon. The purpose of closing arguments is to allow counsel to offer ways of viewing the significance of the evidence. However, there are limits, not only on prosecutors, but on all attorneys" " Schmunk v. State, 714 P.2d 724, 742 (Wyo.1986) (quoting Browder v. State, 639 P.2d 889, 893 (Wyo.1982) (emphasis in original)).

McLoughlin v. State, 780 P.2d 964, 970 (Wyo.1989). The prosecutor was careful to say nobody knew where Mr. Wilks retrieved the gun from but one possible inference was that he retrieved it from his bed. The comment was well within the latitude given prosecutors in presenting the state's case; therefore, we find no error.

[132] Mr. Wilks contends pros-ecutorial misconduct arose from the following statement: "[The Defense wants to tell you, this is Manslaughter. Well, that's getting away with murder." Again, Mr. Wilks did not cite any authority to support his assertion that this statement resulted in error. "[A] prosecutor must be free to present arguments with logical force and vigor." Standards for Criminal Justice 3 5.8 at 8.88 (Commentary), supra. We conclude the prosecutor's statements were merely rhetorical and not improper; therefore, they did not amount to error-plain or otherwise.

[133] Finally, Mr. Wilks points to the following remarks in the prosecutor's closing argument:

He watched her as she fell to the ground onto the cold concrete and the life ran from her face, walked past her, didn't know whether she was dead, whether she was going to bleed to death, whether she was going to freeze to death, walked right past her as blood was running out of her head when she was alone, and he got in his car and he drove away. Left her there alone. He didn't know if she was dead at that time; just left her there bleeding on the concrete. He had just shot a complete stranger, the lady delivering the pizza, had just shot that lady right in the face, and then walked past her and got in his car and drove away.
[The victim] laid there, and the pathologist told you she died, that her body laid there, and it passed alone. No family or friends there to support her, nobody to hold her hand, and where today, where today, right now, as we speak, is that suicidal murderer? Where's the guy who had the loaded gun and the Defense wants you to think was suicidal? Where is he? Right there. Alive, well, surrounded by his family, his support. He's right there. You can see him. He's alive. [The victim] is in the ground. She was alive. She was alive. He stole her life.
He's suicidal. He had a loaded gun in his hands. She was this, and now she's this. And he's sitting there surrounded by his family. You'll see that photo. I don't want to shove that in your face, but the officers told you her eyes were open and they were fixed. The last thing she got to see was a stranger, a complete stranger, who she came to his house to deliver a pizza, who he beckoned to his house and killed. The last thing she saw was the wrong side of this gun being held by that man right there. The last thing she saw was him draw it right to her face and maliciously pull the trigger. That's it. She went to deliver a pizza, he murdered her, and now she's dead. Those are facts.
You've heard from the Defense from jury selection, opening and all the way throughout, this is about Ryan. We're here about Ryan. Well, it's not. This is about Ryan, the cold-blooded murderer. This is about Ryan who murdered [the victim], who ended a stranger's life and left her on the cold concrete to die. Have mercy, compromise, reduce it. It's only a Manslaughter. Give him a break. Well, who's not here to ask for a break? He didn't show her any mercy. She didn't get a chance to beg for her life. She didn't get a chance to mount her defense. Ryan Lee Wilks showed her no mercy.
[The victim] didn't get a chance to explain how she had some living left to do, how she wasn't ready to die, how she had had some bad things happen in her life but wanted to live on and make it better. She didn't get to sit there and explain that she may have had a Christmas without a tree, that she may have had some bad relations with family. She didn't get a chance to beg for that merey, and he didn't give her that chance. Not once. Shot her dead, murdered her. No, she didn't get mercy. She was shot in the face by a total stranger and left alone to die.
[The victim] didn't choose death. By all accounts that you heard, she was happy. She liked to get out and socialize with people. She didn't choose to die. That wasn't her choice. He chose that for her. He chose the time, the place and the manner that she would die. She had no choices.

The prosecution continued on rebuttal:

"Of death I dreamed." Ladies and gentlemen, maybe for the Defendant death is some romanticized idea that we can be obsessed with in heavy [metal] music and poetry, and it's some romantic idea about escape from a eruel world where he can't hold a job and he's got a drinking problem. For [the victim] and her family, death is not some romanticized dream. It's a harsh reality that they are going to have to live with today and every day the rest of their lives.
Of death I dreamed indeed. The Defense says this is the evidence, poetry and a suicide note that was never used. It was in his pocket folded up after [the victim] . had laid dead for hours and her blood was frozen on the sidewalk.

Mr., Wilks additionally posits it was error for the prosecutor to state the victim died "alone on that concrete." Finally, he complains the prosecutor improperly talked about an "interval" of time when Mr. Wilks "would have had to see the horror in her eyes as she finally, in the last second, realized what's going on, and after seeing the horror in her eyes, he had to do the final act."

[1384] Again, Mr. Wilks failed to make a contemporaneous objection to the prosecutor's remarks. Rather than providing this court with a comprehensive plain error analysis, Mr. Wilks relies on conclusory statements to support his claim. As we have repeatedly stated, a prosecutor is permitted to argue all reasonable inferences from the evidence presented at trial so long as the argument is not calculated to inflame the passions or prejudices of the jury. See Standards for Criminal Justice 3-5.8(a), (c), supra. Arguing all reasonable inferences from the evidence is precisely what the prosecutor did in this case, albeit with an element of vigorous rhetoric. The sole case Mr. Wilks relies on to assert error is Justice, which we discussed previously in this opinion. In Justice, we recognized that testimony offered by the crime victims with respect to how their lives were affected after the crime was absolutely irrelevant. 775 P.2d at 1010. Likewise, the impact on an actual homicide victim prior to her death is also irrelevant. Yet, as in Justice, due to the overwhelming evidence presented against Mr. Wilks, we are persuaded the prosecutor's argument, in its entirety, did not constitute plain error.

E. Sufficiency of the Evidence

[185] Mr. Wilks questions the sufficiency of the evidence to sustain his see-ond-degree murder conviction. "When reviewing a sufficiency of the evidence claim in a criminal case, we analyze whether a rational trier of fact could have found the essential elements of the erime were proven beyond a reasonable doubt." Lane v. State, 12 P.3d 1057, 1063 (Wyo.2000). "Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the state, that evidence supports a reasonable inference of guilt beyond a reasonable doubt." Yung v. State, 906 P.2d 1028, 1037 (Wyo.1995). "We will not substitute our judgment for that of the jury but will only determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did." Lang, 12 P.3d at 1063.

[136] For Mr. Wilks to be convicted of second-degree murder, the prosecution had to prove, beyond a reasonable doubt, that he purposely and maliciously killed the victim. Section 6-2-104. The trial court gave the jury the following proper second-degree murder instruction:

INSTRUCTION NO. 19

The elements of the crime of Murder in the Second Degree, which must be proven, are:

1. On or about the 5th day of January, 2000
2. In Sweetwater County, Wyoming
3. The Defendant, RYAN LEE WILKS
4. Purposely and
5. Maliciously
6. Killed a human being....

If you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

If, on the other hand, you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty.

[1 37] In attacking the sufficiency of the evidence, Mr. Wilks points to a lack of evidence that he acted purposely. In making his argument, he claims the events did not transpire as he anticipated because he actually intended to kill himself, thus negating the required element of purposefulness. In Young v. State, 849 P.2d 754, 759 (Wyo.1998), this court drew a clear distinction between first-degree murder and second-degree murder stating, "[The difference between first degree murder and second degree murder is the element of premeditation and, to commit first degree murder, the defendant must have killed purposely while, to commit see-ond degree murder, the defendant is only required to have acted purposely." First-degree murder is a specific intent crime requiring proof the defendant killed purposely and with premeditation. 849 P.2d at 759. On the other hand, second-degree murder is a crime of general intent requiring only proof of acting purposely or voluntarily. Id. Hence, the prosecution needed to prove only that Mr. Wilks acted purposely when he shot the victim.

[138] The evidence in this case demonstrates a factual basis sufficient to justify the second-degree murder conviction. Mr. Wilks relies on his statement to police officers that it "[wlasn't supposed to be like this." He contends there was nothing in his statement to prove he acted purposely. Apparently, Mr. Wilks confuses killing purposely with acting purposely, the very distinction this court has consistently drawn between first-degree murder and second-degree murder. While there may not have been sufficient evidence for a jury to conclude that Mr. Wilks committed an act with the intention of killing the victim, there was sufficient evidence for the jury to find he acted purposely beyond a reasonable doubt when he drew the gun, pointed it at the victim, and pulled the trigger.

[139] Finally, Mr. Wilks contends that, according to the Fagan rule, the jury should have accepted his version that he did not intend for the events to occur as they did. "Where the rule is applicable, the defendant's version of a homicide must be accepted even in the face of a jury verdict to the contrary." Doe v. State, 569 P.2d 1276, 1279 (Wyo.1977). Under the rule, an accused's testimony should be accepted if three conditions are fulfilled: (1) the defendant is the sole witness, (2) the defendant's testimony is accepted if not improbable or not inconsistent with the facts and cireumstances shown, and (8) the defendant's credibility has not been impeached. Leeper v. State, 589 P.2d 379, 382 (Wyo.1979). However, this court will not consider a claim of error based upon the Eagan rule unless the defendant made a request for an instruction to the trial court. Dangel v. State, 724 P.2d 1145, 1149 (Wyo.1986). In this instance, Mr. Wilks did not make such a request. Furthermore, even Mr. Wilks'® version of the events supports a conviction for second-degree murder because he acted purposely whether or not he intended to kill the victim. After considering this record in light of our recognized standard, we conclude there was ample evidence to justify Mr. Wilks' conviction for second-degree murder.

F. Sentencing

[T40] Mr. Wilks contends the trial court abused its discretion by sentencing him to serve seventy years to life in the Wyoming State Penitentiary. The punishment for a crime is within the legislature's province. Hodgins v. State, 706 P.2d 655, 658 (Wyo.1985). Here, the legislature has provided for a sentence of up to life in prison for those convicted of second-degree murder. See § 6-2-104. "[Wle do not set aside a sentence if it is within the legislatively mandated minimum and maximum terms in the absence of a clear abuse of discretion." Young v. State, 904 P.2d 359, 362 (Wyo.1995). Since the relevant statute sets a maximum term of life in prison, Mr. Wilks' sentence is within permissible limits. However, we still "maintain a window of reviewability, even when the trial court has imposed a legally prescribed sentence." Smith v. State, 922 P.2d 846, 848 (Wyo.1996). Trial courts have broad discretion to determine the appropriate length of imprisonment. We recently de-seribed the standard of an abuse of discretion as "reaching the question of reasonableness of the choice made by the trial court." Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). We confirmed the following definition:

"Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously."

Id. (quoting Martin v. State, 720 P.2d 894, 897 (Wy.1986)).

[¥41] "In assessing the reasonableness of the sentence, consideration is to be given to the erime and its circumstances and the character of the criminal." Smith, 922 P.2d at 848-49. There is no tangible indication that Mr. Wilks had the propensity to commit this type of crime either in his criminal record or in any character description of him. However, looking to the seriousness of the crime committed, we acknowledge this was a horrific and violent crime-one that tragically ended a human life. By his own account, he summoned the victim to his home to deliver a pizza, became upset when she complained about the paucity of his tip, and shot her in the face. Although Mr. Wilks asks us to examine other second-degree murder sentences, we abide by our prior decision not to consider the sentences imposed on similarly situated defendants except in cases where the mode of punishment is unusual or the relative length of a sentence to imprisonment is extreme when compared to the gravity of the offense. Oakley v. State, 715 P.2d 1374, 1379 (Wyo.1986). In this case, Mr. Wilks' sentence is wholly consistent with the severity of the crime and its attendant circumstances.

[T 42] The trial court had the opportunity to examine the presentence investigation report and, at the sentencing hearing, to listen to evidence and argument including a detention officer's testimony, counsel's recommendations, victim impact statements, and Mr. Wilks' and his family's statements. Given the information presented and the gravity of the crime, we conclude the trial court did not act in a manner which exceeded the bounds of reason under the cireumstances and did not abuse its discretion. Upon review, therefore, we will not disturb its sentencing decision.

CONCLUSION

[148] While we recognize certain errors were made at trial, a complete review of the record and the issues presented assures us that Mr. Wilks received a fair trial and the verdict would have been unchanged had the errors not occurred.

[144] Affirmed.

      . This court dismissed Mr. Wilks' appeal for lack of jurisdiction under W.R.A.P. 1.03 because his notice of appeal was not filed in the district court within the W.R.A.P. 2.01 time limits. His case was then converted sua sponte to a petition for a writ of review, which we granted.

      . We note the egregious violation of Mr. Wilks' constitutional right to counsel, which occurred at the hands of both the prosecutor's office and the police department. Over the course of his interview, Mr. Wilks unequivocally invoked his right to counsel no less than five times and referenced his need for counsel three more times. Each request was blatantly ignored, the first of which was ignored upon the recommendation of a prosecutor. Obviously, we approve the trial court's ineluctable decision to suppress the statement.

      . Footnote eighty-three reads in pertinent part:
      Staggs v. State, 804 P.2d 456, 458 (Okl.Cr.1991). See also Shelton v. State, 793 P.2d 866, 870 (Okl.Cr.1990) (concluding that "[this Court does not encourage the use of photographs taken of victims before their demise and we caution prosecutors to first seek other forms of proof which are less prejudicial.")....
      Valdez v. State, 900 P.2d 363, 380 n. 83 (Okla.Crim.App.1995).

      . Mr. Wilks was charged with first-degree murder, a specific intent crime. Intoxication may negate a specific intent crime but is not a defense to a general intent crime. Streitmatter v. State, 981 P.2d 921, 927 (Wyo.1999). Ulimately, Mr. Wilks was acquitted of first-degree murder and convicted of second-degree murder-a general intent crime.

      . Eagan v. State, 58 Wyo. 167, 128 P.2d 215, 226 (1942).


author: LEHMAN, Justice. VOIGT, Justice,

text:
    2002 WY 103
    In the Matter of the Application of Action Bailbonds for Remission of a Judgment of Bond Forfeiture. ACTION BAILBONDS, Appellant (Respondent), v. The STATE of Wyoming, Appellee (Petitioner). In the Matter of the Application of Action Bailbonds for Remission of a Judgment of Bond Forfeiture. Action Bailbonds, Appellant (Respondent), v. The State of Wyoming, Appellee (Petitioner).
    Nos. 00-335, 01-20.
    Supreme Court of Wyoming.
    July 10, 2002.

      Rick L. Kocehmstedt of Schwartz, Bon, Walker & Studer, Casper, WY, Representing Appellant. Argument by Mr. Koehmstedt.
    Gay Woodhouse, Attorney General; Paul S8. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and P. Olen Snider, Jr., Senior Assistant Attorney General, Representing Appellee. Argument by Mr. Snider.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   LEHMAN, Justice.

[11] This is a consolidated appeal from the partial forfeiture of two surety bonds. We reverse, in part, and remand with directions, in part.

ISSUES

[12] Appellant, Action Bailbonds (Action), sets forth the following issues:

A. Whether in Case No. 00-885 the district court erred when it forfeited a portion of the surety bond posted by appellant Action Bailbonds[.]
1. Did the district court err by forfeiting a portion of the surety bond for violation of bond condition which was not related to court appearance, contrary to the Wyoming Rules of Criminal Procedure?
2. Did the district court err by forfeit, ing a portion of the surety bond for violation of bond condition which was not related to court appearance, contrary to the clear and unambiguous language of the surety bond?
B. Whether in Case No. 01-20 the district court abused its discretion by forfeiting a portion of the surety bond posted by appellant Action Bailbonds[.]

Appellee, State of Wyoming (State), enumerates the issues as follows:

1. Has the appellant properly and lawfully invoked the appellate jurisdiction of this court?
2. Did the district court patently abuse its discretion in partially granting the appellant's motions to set aside the bond forfeitures?

FACTS

[13] In the Daugherty case, Action posted a surety bond on behalf of Daugherty. As a condition of this bond, Daugherty was ordered to report to the Day Reporting Center of Casper, Inc. However, Daugherty did not report to this facility as required. Based on this failure, the State filed a motion to forfeit the surety bond, with the district court partially granting that motion. Ultimately, an order was entered by the district court declaring a forfeiture of $500.00 of the surety bond posted.

[14] In the Moore case, Action also submitted a surety bond for Moore. Moore then failed to appear at his sentencing hearing, and the district court entered an order forfeiting that surety bond. Action filed a motion to set aside the surety bond forfeiture. Upon review, the district court partially granted that motion and set aside $1,500.00 of the $5,000.00 surety bond forfeiture. Accordingly, the district court entered an order declaring a forfeiture of $3,500.00 of the surety bond posted.

STANDARD OF REVIEW

[15] We recognized in the case of Northwest Bail Bonds v. State, 2002 WY 102, 16, 50 P.3d 318, ¶ 6 (Wyo.2002):

An appellate court will not interfere with a trial court's discretionary rulings absent a clear abuse of discretion. Semler v. Semler, 924 P.2d 422, 424 (Wyo.1996). This general rule applies to decisions on motions to set aside a bond forfeiture. "[The decision to grant or deny a remission is a discretionary one that will only be overturned on appeal for a patent abuse of discretion amounting to arbitrary and capricious action." Application of Allied Fidelity Ins. Co., 664 P.2d 1322, 1325 (Wyo.1983). Assessing whether there has been an abuse of discretion involves determining whether the evidence was sufficient to support the district court's decision. Basolo v. Basolo, 907 P.2d 348, 353 (Wyo.1995). One factor in that assessment is whether the district court's "conclusions [were] drawn from objective criteria." Mintle v. Mintle, 764 P.2d 255, 257 (Wyo.1988) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)). The burden is upon the appellant to show an abuse of discretion. Blake v. State, 933 P.2d 474, 477 (Wyo.1997).

DISCUSSION

Real Party In Interest

[T6] The State, for the first time on appeal, argues that Action is not a real party in interest and, as such, cannot lawfully invoke this court's appellate jurisdiction. Specifically, the State proffers this argument contending that because Action purports to be acting in these consolidated appeals as an agent for Amwest Surety Insurance Company, it does not have appropriate standing before this court since Action, as solely a trade name, is not recognized as a legally cognizable person and does not have a sufficient stake in this litigation. Further, the State argues that an insurance agent may not commence or maintain an appeal on behalf of its insurance company principal. Finally, the State argues that while either Am-west Surety Insurance Company or Jeanine Beagle may be real parties in interest, neither have appropriately filed a notice of appeal and are barred from now entering this matter. We do not agree.

[17] Wyoming Rules of Civil Procedure 17(a) states:

Real party in interest.-Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought. ... No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action has been commenced in the name of the real party in interest.

[18] It has also long been recognized that where an objection in the trial court that a party is not the real party in interest is not timely voiced, such delay constitutes a waiver of any objection on that ground. Gifford-Hill-Western, Inc. v. Anderson, 496 P.2d 501, 502 (Wyo.1972). Moreover, it has also been recognized by this court that pursuant to W.R.C.P. 9 and 17 whether a plaintiff is a real party in interest should be submitted as an affirmative defense particularly considering the rights of ratification, joinder, or substitution provided in Rule 17 and cannot be presented for the first time on appeal. Cockreham v. Wyoming Production Credit Ass'n, 743 P.2d 869, 873-74 (Wyo.1987).

[T 9] In addition, it is aptly pointed out by Action in its reply brief, that the State has accepted Action as a proper party to contract with as a surety on both bonds which are the subject of this consolidated matter and that Action was directly ordered by the court to forfeit partial amounts of the surety bonds involved. Finally, both of the notices of appeal in these cases state clearly that Action is the party appealing these matters and that it posted both bonds involved. Therefore, Action has a clear stake in the outcome of this action. Accordingly, we hold that the State has waived any objection concerning whether Action is a real party in interest in this matter.

Daugherty Forfeiture Issues

[T10] Action contends that the Wyoming Rules of Criminal Procedure do not allow for the forfeiture of bond for a violation of a bond condition which is not related to court appearance. In particular, Action argues an internal conflict exists within the Wyoming Rules of Criminal Procedure since Rule 46 mandatorily requires the forfeiture of a bond upon breach of any bond condition while Rule 46.4 provides for a bond forfeiture solely if a person fails to appear with any other violation of the conditions of bond allowing a court, in its discretion, to only revoke the bond. As such, Action asserts it was improper for the district court to order a partial forfeiture of the surety bond posted on behalf of Daugherty on the basis that he failed to report to the Day Reporting Center of Casper, Inc. as required. We agree.

[111] Wyoming Rules of Criminal Procedure 46(f) states as follows:

(f) Forfeiture of bail. -
(1) Declaration. -If there is a breach of condition of a bond, the court shall declare a forfeiture of the bail. (2) Setting Aside-The court may direct that a forfeiture be set aside in whole or in part, upon such conditions as the court may impose, if a person released upon execution of an appearance bond with a surety is subsequently surrendered by the surety into custody or if it otherwise appears that justice does not require the forfeiture.

Further, W.R.Cr.P. 46.4 provides:

Sanctions for failure to appear or for violation of release order.
(a) Failure to appear.-Whoever having been released under Rule 46 through 46.4 knowingly fails to appear before a court as required by the conditions of release, or fails to surrender for service of sentence pursuant to a court order may be punished for contempt. It is an affirmative defense to a prosecution under this section that uncontrollable cireumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such cireumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.
(b) Declaration of forfeituwre.-If a person fails to appear before a court as required and the person executed an appearance bond, the judicial officer may regardless of whether the person has been charged with an offense under this rule, declare any property designated pursuant to 46.1 to be forfeited to the State of Wyoming.
(c) Violation of release condition. -A person who has been released under 46.1, 46.2 or Rule 46.3 and who has violated a condition of that release, is subject to a revocation of release and a prosecution for contempt of court.

[112] Upon our review of the language found in the Wyoming Rules of Criminal Procedure, we conclude that two separate and distinct interpretations may be reached. Under Rule 46, it is mandatory for a court to determine that bond is forfeited for any breach of the conditions of bond. However, pursuant to Rule 46.4(b) and (c), a court may forfeit bond and/or revoke bond if a person fails to appear and is relegated, if it so desires, to only revoke bond if any other condition of bond is violated. Accordingly, we find that inconsistency exists between these rules.

[113] Recognizing this inconsistency, we hold that the Wyoming Rules of Criminal Procedure in effect at the time of this action must be construed to only allow a court to revoke bond upon violation of any condition of bond not related to appearance. Indéed, we cannot support any other conclusion upon considering the applicable rules in part materia and in an effort to apply their contrary provisions while at the same time attempting to construe them in harmony and not allow any part to be rendered superflu— ous or meaningless.

[T14] This court has recently amended, effective September 1, 2001, W.R.Cr.P. 46. A(b) to read as follows:

If a person fails to appear before a court as required, or fails to comply with any condition set by the court pursuant to Rule 46.1(c) and the person executed an appearance bond, the judicial officer may, regardless of whether the person has been charged with an offense under this rule, declare any property designated pursuant to 46.1 to be forfeited to the State of Wyoming.

(Emphasis added.) This recent amendment to Rule 46.4(b) was made by this court to remedy the inconsistencies set forth above.

[115] Moreover, we find that our construction of the applicable rules involved produces a more equitable result as, prior to the amendment to Rule 46.4(b) mentioned above, sureties arguably may not have been adequately put on notice that forfeiture of a bond could result from the violation of any bond condition outside the requirement that a defendant appear before the court when so directed. This result is also consistent with the long established legal adage that the law abhors a forfeiture. Walker v. Graham, 706 P.2d 278, 281-82 (Wyo.1985).

[T 16] Accordingly, we hold that the district court abused its discretion when it entered its order declaring a forfeiture of $500.00 of the surety bond posted since, under the law then in force, the district court could only revoke the bond posted with respect to the violation of Daugherty in not reporting to the Day Reporting Center of Casper, Inc. a condition of bond not related to appearance before the court.

Moore Forfeiture Issues

[T17]} Action contends that under the established law with respect to forfeiture of bonds, the district court abused its discretion when it refused to set aside the entire amount of the bond forfeiture ordered with respect to Moore. As we stated in the case of Northwest Bail Bonds, ¶ 8:

It is important to note the procedural context of a contested bond forfeiture. W.R.Cr.P. 46(f)(1) provides that "[ilf there is a breach of condition of a bond, the court shall declare a forfeiture of the bail." (Emphasis added.) Use of the word "shall" indicates that this decision is mandatory rather than discretionary. LePage v. State, Dep't of Health, 2001 WY 26, ¶¶ 11, 12, 18 P.3d 1177, 12 (Wyo.2001). The bail must be forfeited. The discretion of the district court is exercised under W.R.Cr.P. 46(£)(2):
The court may direct that a forfeiture be set aside in whole or in part, upon such conditions as the court may impose, if a person released upon execution of an appearance bond with a surety is subsequently surrendered by the surety into custody or if it otherwise appears that justice does not require the forfeiture.
These rules being structured as they are, the issue comes to the district court not by way of a motion from the State to forfeit the bail, but by way of a motion from the appellant to set aside the forfeiture. The intent and effect of this structure is to place the burden on the surety to show why the forfeiture should be set aside. State v. Martines-Gonzales, 145 Ariz. 300, 701 P.2d 8, 10 (App.1985); Bob Cole Bonding v. State, 340 Ark. 641, 18 S.W.3d 147, 149 (2000); State v. Hedrick, 204 W.Va. 547, 514 S.E.2d 397, 403 (1999).

[118] Having set forth the context of a bond forfeiture review, we must also look at the applicable criteria that must be considered and applied by a court when considering a motion from a surety to set aside forfeiture of a bond. Again, we recognized in the case of Northwest Bail Bonds, 1 9:

Application of Allied Fidelity Ins. Co. [664 P.2d 1822 (Wyo.1983)] recited both general principles and specific factors that a judge should consider when faced with a motion to set aside a bail bond forfeiture. The general principles include:
The purpose of a bail bond is not punitive. Its object is not to enrich the government or punish the defendant. Nor can it be used "as a balm to soothe the disappointment resulting from the inability to punish and rehabilitate." , .. "Neither frustration nor its kinsman vindictiveness should be of weight in tipping the seales by which the elements of the court's decision is weighed."
Application of Allied Fidelity Ins. Co., 664 P.2d at 1325-26 (quoting United States v. Parr, 594 F.2d 440, 444 (6th Cir.1979)).

[119] We also for some time now have established that a court must consider and apply certain factors in such instances. These factors were initially set forth in the case of Application of Allied Fidelity Ins. Co. Specifically, the district court must consider:

1. The willfilness of the defendant's breach of conditions;
8. The participation of the surety in apprehending the defendant;
4. The cost, inconvenience and prejudice suffered by the government as a result of the defendant's breach;
5. The amount of delay caused by the defendant's default and the stage of the proceedings at the time of the disappearance;
. 6. The public interest and necessity of effectuating the appearance of the defendant; and
7. Any explanation or mitigating factors presented by the defendant.

Application of Allied Fidelity Ins. Co., at 1325-26 (citing United States v. Castaldo, 667 F.2d 20, 21 (9th Cir.1981), cert. denied 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982), and United States v. Parr, 594 F.2d 440, 444 (5th Cir.1979)).

[(¥20] In reviewing whether an abuse of discretion has occurred, we must make an in depth review of the record before us. If the record is not adequate for us to make such a review, we may remand the matter back for further proceedings and the development of the bases used by the court for its determination. Frankel v. Board of County Comm'rs of Teton County, 2002 WY 13, ¶ 12, 89 P.3d 420, ¶12 (Wyo.2002); Gillis v. F & A Enterprises, 813 P.2d 1304, 1308 (Wyo.1991); Board of County Comm'rs of Teton County v. Teton County Youth Servs., Inc., 652 P.2d 400, 411-14 (Wyo.1982).

[121] Our review of the record evidences no adequate bases for the ultimate conclusion made by the district court that Action should forfeit $3,500.00 of the bond posted on behalf of Moore. While the record on appeal does reflect the court was apprised at hearing of the fact that Action took efforts to apprehend Moore and did ultimately return him to the court and a discussion was held during the hearing concerning the delay caused by Moore's breach, the public's interest and necessity of effectuating the appearance of Moore, and proffered explanation or mitigating factors presented as to why Moore failed to appear at the scheduled sentencing hearing, the record is unclear as to whether or not the court did or did not, in actuality, consider each of these factors in making its ultimate determination. Further, while the court did recognize that it needed to consider the cost, inconvenience, and prejudice suffered by the government as a result of Moore's breach, the court only recognized that the government was required to prepare and issue certain paperwork related to Moore's failure to appear and that the government and the court were prepared to proceed with a sentencing hearing when originally scheduled. No other actual evidence was taken by the court concerning this factor, as the court concluded on its own that these facts were simply too difficult to determine with any precision.

[122] Review of the hearing transcript also does not make it clear if the district court considered the willfulness of Moore's breach, the stage of the proceedings at the time of Moore's failure to appear, or the reasonable relationship between the forfeiture ordered and the cost and inconvenience to the government of regaining custody of the defendant. We further note that review of the order entered by the district court setting aside a part of the forfeiture of the bond is of little assistance in our attempted determination as to the required and necessary bases of the court's ruling since it simply indicates that the district court had "considered the respective positions and arguments of the parties" and that Action had surrendered Moore into custody without the aid and assistance of law enforcement or any other agent of the State.

- [T23] Finally, comments made by the district court at the hearing may infer an intention to declare a substantial forfeiture as a lesson to bonding companies. The court stated:

There's different ways I can look at this. I don't think I can be punitive. At the same time I think that a bond that's going to mean what it intends to mean, that is that there will be a loss of funds for a failure to appear, if it's going to have foree and effect in assuring an appearance, it shouldn't always be set aside, allowed to be reinstated for the surrender of the Defendant back into Court.
In any event, I'm going to set aside $1,500 of the $5,000 amount. I am going to require that the remaining $8,500 be paid to the Court within 14 days from today.

Certainly, while the court recognized that it could not be punitive or base its determination on frustration or vindictiveness as set forth in Application of Allied Fidelity Ins. Co., 664 P.2d at 1325-26 (quoting United States v. Parr, 594 F.2d at 444), a thorough basis for the ultimate conclusion must be explained to avoid any inference of the court's motivation.

[124] Therefore, we remand this matter back to the district court for further proceedings and the express development of the facts which exist in this case as they relate to each of the factors set forth herein which must be considered when a motion to set aside a bond forfeiture is at issue.

CONCLUSION

[125] We reverse the order of the district court in the Daugherty case calling for a forfeiture of the surety bond in the amount of $500, holding that the district court's only authority, given Daugherty's failure to report for drug testing, to be the revocation of the bond originally issued. Further, with respect to the order of the district court in the Moore case providing for the forfeiture of $3,500 of the surety bond, we remand such issues back to the district court for further proceedings consistent with this opinion.

VOIGT, Justice,

dissenting, with which KITE, Justice, joins.

[T26] In Case No. 00-885, I respectfully dissent because I disagree with the majority's conclusion that the versions of W.R.Cr.P. 46 and W.R.Cr.P. 46.4 in effect at the time of this action were inconsistent. I believe the rules were compatible and clear enough to be enforced. W.R.Cr.P. 46({)(1) stated that bail shall be forfeited if there is a breach of a bond condition. W.R.Cr.P. 46()(2) allowed for part or all of that forfeiture to be set aside. W.R.Cr.P. 46. 4(a) added that a failure to appear may be punished as contempt of court. W.R.Cr.P. 46.4(b) said that the bond may be forfeited whether or not the defendant who failed to appear was charged with contempt. And finally, W.R.Cr.P. 46. provided that, for violation of a condition of release, a defendant was subject both to prosecution for contempt and to revocation -of release. Consequently, the district court did not abuse its discretion when it declared a forfeiture of Daugherty's bail; in fact, it was mandated to do so by W.R.Cr.P. 46(§(M). The district court then further appropriately exercised its discretion under W.R.Cr.P. 46(F)(2) by setting aside $500.00 of the $1,000.00 forfeiture.

[127] In Case No. 01-20, I respectfully dissent for the same reasons I dissented in Northwest Bail Bonds,. Inc. v. State, 2002 WY 102, 50 P.3d 313 (Wyo.2002). The ree-ord is sufficient in this case, as it was in Northwest Bail Bonds, Inc., for this Court to determine that the district court adequately considered the factors from Application of Allied Fidelity Ins. Co., 664 P.2d 1322 (Wyo.1983). After a hearing at which Application of Allied Fidelity Ins. Co. factors were discussed, the district court exercised its discretion by remitting $1,500.00 of the $5,000.00 bail forfeiture. It is not for us to nitpick that decision. I would not hold, as the majority appears to hold, that the record must reflect that the judge considered each and every Application of Allied Fidelity Ins. Co. factor. We said in Application of Allied Fidelity Ins. Co. that we would not overturn the district court's decision unless there had been "a patent abuse of discretion amounting to arbitrary and capricious action." Id. at 1325. I just cannot find such abuse in this case. In addition, rather than characterizing the forfeiture in this case as an attempt to teach bonding companies a lesson, I would characterize it as an attempt to foster deterrence, which should be adopted by this Court as an acceptable consideration in bond forfeitures. See Accredited Sur. & Cas. Co. v. United States, 723 F.2d 368, 370 (4th Cir.1983) and State v. Hedrick, 204 W.Va. 547, 514 S.E.2d 397, 407 (1999).

      . Case No. 00-335 (Daugherty case) deals with those facts surrounding a surety bond issued on behalf of Raney Ray Daugherty while Case No. 01-20 (Moore case) is concerned with those circumstances surrounding a surety bond posted for Jimmie Dean Moore.

      . Ms. Beagle apparently operates Action Bail Bonds as either a sole proprietorship or under a fictitious name while being personally registered as an agent for Amwest Surety Insurance Company for fidelity and surety lines of insurance with the State of Wyoming Department of Insurance.

      . We do not address any contract related arguments made by Action on appeal as our above holding renders any discussion on such issues moot.

      . Action in its reply brief at fu.6 asserts that the district court holds criminal arraignments and sentencing hearings daily on Tuesday through Friday. Therefore, the government and court personnel would have been present in court re- ' gardless of Moore's appearance at the scheduled sentencing hearing. While the record before us does not support these assertions, if this is in fact true, it must be taken into account by the court in making its determination as a part of the required factors noted above.

      . See fa. 4.