author: GOLDEN, Justice.

text:
    2002 WY 183
    ACT I, LLC, Appellant (Plaintiff), v. Charles B. DAVIS, R. Lee Tucker, DNR Oil & Gas, Inc., and Tindall Operating Company, Appellees (Defendants).
    No. 01-168.
    Supreme Court of Wyoming.
    Dec. 30, 2002.

      Stephen H. Kline of Kline Law Office, P.C., Cheyenne, Wyoming; Anthony L. Lef-fert of Clanahan, Tanner, Downing & Knowl-ton, P.C., Denver, Colorado, Representing Appellant. Argument by Mr. Leffert.
    Peter A. Bjork and David R. Little of Bjork, Lindley, Danielson & Little, P.C., Denver, Colorado; John M. Daley of Daly Law Associates, P.C., Gillette, Wyoming, Representing Appellee. Argument by Mr. Little.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   GOLDEN, Justice.

[¶ 1] Appellees own working interests in various oil and gas leases located in the Powder River Basin of Campbell County, Wyoming. Appellant and Appellees entered into an agreement by which Appellant agreed to obtain financing for a project related to developing and working the mineral leases in exchange for the opportunity to buy a thirty-five percent share of the mineral leases. Appellant claims that it procured a suitable financing commitment and thereby fulfilled its obligation under the agreement. Appel-lees, however, declined to finalize any financing agreement and refused to sell the thirty-five percent ownership interest in the mineral leases to Appellant. Appellant sued for breach of contract, breach of the duty of good faith and fair dealing, and for specific performance.

[¶ 2] Appellees moved for summary judgment, arguing the agreement was unenforceable due to the operation of the statute of frauds. The district court granted summary judgment to Appellees. We find that, as a matter of law, no statute of frauds is applicable to the agreement. We further find that issues of material fact exist regarding the interpretation of the agreement. Summary judgment was inappropriate, and we remand this ease back to the district court for appropriate further proceedings.

ISSUES

[¶ 3] Appellant presents two issues:

1. Does Wyoming or Colorado law govern the rights of the parties to a contract entered into in the State of Colorado by Colorado residents dealing with the right to purchase and develop an interest in mineral properties located in the State of Wyoming?
2. Was the written contract entered into between the parties, obligating Appellees to sell Appellants [sic] a 35% interest in certain coalbed methane leases upon the Appellants [sic] obtaining acceptable financing for the project, enforceable under Wyoming and Colorado law once the Ap-pellees agreed to the financing?

Appellees respond with three issues:

1. Do Wyoming conflict of law principles require application of Colorado law to Appellant’s causes of action where the majority of significant factors related to the contract occurred in, or are connected exclusively with, Colorado?
2. Does Colorado’s credit agreement statute of frauds, Colo.Rev.Stat. § 38-10-124, bar Appellant’s causes of action because it is undisputed that the DNR-Tindall Group never signed a writing accepting any of the proposed credit agreements?
3. If Wyoming law applies, does Wyoming’s statute of frauds, Wyo. Stat. Ann. § 1-23-105, bar Appellant’s causes of action because the DNR-Tindall Group never signed a writing accepting the new condition in the proposed credit agreements requiring the DNR-Tindall Group to assign a real property overriding royalty interest to the proposed lender?

FACTS

[¶ 4] Appellee Charles B. Davis is the President of Appellee DNR Oil and Gas, Inc. Appellee R. Lee Tucker is the President of Appellee Tindall Operating Company. Ap-pellees are all Colorado residents and Colorado corporations. Appellant, ACT I, is a limited liability company doing business in Colorado.

[¶ 5] Appellees are the owners of a working interest in certain mineral leases in Wyoming. This working interest includes the right to develop and produce coalbed methane natural gas. Appellees ultimately decided they wanted to explore for, drill and gather the coalbed methane themselves. To this end, on March 20, 2000, Appellees entered into a letter of intent (the “LOI”) with Appellant. Pursuant to the LOI, Appellant was to procure non-recourse financing for the project in exchange for a percentage ownership in the leases. Some of the pertinent language from the LOI includes:

The parties agree to work together on a best efforts basis to arrange for the completion of the financing upon receipt of an acceptable financing commitment.
⅜ ⅜ ⅜ ⅜
... In exchange for ACT I’s arranging financing for the Project, ACT I will purchase and DNR and Tindall will sell, a 35% proportionally reduced working interest participation in the [project]....
... The Acquisition Price shall be due upon execution of definitive agreements, including, among other things, ... financing documents for the Project.
⅜ ⅜ ⅜ ⅜
... [T]he parties understand and agree that the transactions contemplated by this letter are non-binding and subject to the following:
(a) Completion of definitive agreements incorporating the terms of this letter on or before April 20, 2000 which deadline shall automatically extend for successive 10 day increments until any party gives notice of its intent to terminate this Letter of Intent delivered to all parties at least two (2) business days prior to such termination.

On May 4, 2000, the parties entered into an agreement extending the duration of the LOI (the “Extension”). (Unless differentiated, further references to the LOI include both the LOI and the Extension.) The Extension stated in pertinent part that ACT I had until May 20

in order to obtain financing arrangements for the Project and the parties.
The parties agree to continue to work together on a best efforts basis to arrange for the completion of the financing upon receipt of an acceptable financing commitment.
⅝ ⅜ ⅝ :¡s
Upon receipt of an acceptable financing commitment, DNR, Tindall, and ACT I shall enter into definitive agreements to reflect the terms outlined in the Letter of Intent.
The parties understand and agree that the transactions contemplated by the Letter of Intent are subject to the following: (a) Obtaining of a financing commitment by May 20, 2000 with definitive agreements incorporating the terms of the Letter of Intent to be finalized by May 31, 2000. To the extent the financing commitment is received and the parties are working toward completion of the definitive agreements, the parties agree to automatically extend for successive 10 day increments the Letter of Intent until any party gives notice of its intent to terminate the Letter of Intent delivered to all parties at least two (2) business days prior to such termination.

Both the LOI and the Extension were drafted by Appellant. Neither agreement contains a governing law provision.

[¶ 6] Appellant successfully negotiated a financing commitment from a lending institution. Although disputed, there is evidence in the record indicating that Appellees orally accepted the terms of the proposed financing commitment. Ultimately, however, Appel-lees decided they did not want to complete the deal and consequently never signed any loan documents.

[¶ 7] Appellant believed that it successfully had completed its obligations under the LOI by procuring a financing commitment that Appellees accepted. It demanded that Appellees allow it to purchase the thirty-five percent of the mineral leases to which Appellant alleged it was entitled under the terms of the LOI. Appellees countered that they did not owe any duty under the LOI unless and until they accepted a financing commitment in writing. Appellant brought suit against Appellees alleging breach of contract, breach of the covenant of good faith and fair dealing, and demanding specific performance.

[¶ 8] Appellees answered, brought various counterclaims, and moved for summary judgment on all claims against them. Appel-lees argued that, because of the operation of the statute of frauds, they needed to fully execute a written financing agreement before any other terms of the LOI could be legally enforceable against them. Wyoming and Colorado have different versions of a statute of frauds that might apply so much argument was presented on whether the Colorado or the Wyoming version applies. The district court granted Appellees’ motion for summary judgment, finding that enforcement of the LOI was barred by the operation of the statute of frauds. The district court applied Colorado law but specifically held that the outcome would be the same even under Wyoming law.

STANDARD OF REVIEW

[¶ 9] When we review the granting of a summary judgment, we employ the same standards and use the same materials as were employed and used by the trial court. We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences that may fairly be drawn from the record. Summary judgment is appropriate only when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which the parties have asserted. We review a grant of summary judgment deciding a question of law de novo and afford no deference to the trial court’s ruling. Bevan v. Fix, 2002 WY 43, ¶ 13, 42 P.3d 1013, ¶ 13 (Wyo.2002); Hirschfield v. Board of County Comm’rs of Teton Cty., 944 P.2d 1139, 1141 (Wyo.1997). The determination that a given agreement is within the statute of frauds is a question of law which we review de novo. Maycock v. Maycock, 2001 WY 103, ¶ 12, 33 P.3d 1114, ¶ 12 (Wyo.2001).

DISCUSSION

[¶ 10] The first issue presented by Appellant is too broadly phrased. When parties dispute the applicable law, there must be an actual conflict between the laws or interests of Wyoming and the laws or interests of another state. In the absence of a conflict, there is no need for the court to engage in a conflict of laws analysis. The existence of such a conflict can only be determined in the context of a specific law applied to a specific issue. 15A C.J.S. Conflict of Laws, § 27 (2002). As an example, the analytical approach to a conflict of law question has been described within the framework of the Restatement (Second) of Conflict of Laws as follows:

The Second Restatement method is constructed around the principle that the state with the most significant contacts to an issue provides the law governing that issue. See [Ingersoll v. Klein, ] 46 Ill.2d 42, 262 N.E.2d [593] at 594-95 [Ill.1970], A court therefore conducts a separate choice-of-law analysis for each issue in a case, attempting to determine which state has the most significant contacts with that issue. International Adm’rs, Inc. v. Life Ins. Co. of North America, 753 F.2d 1373, 1376 n. 4 (7th Cir.1985). The Second Restatement enumerates specific factors that identify the state with the most significant contacts to an issue, and the relevant factors differ according to the area of substantive law governing the issue and according to the nature of the issue itself. See, e.g., Restatement (Second) at §§ 6, 145, 188. To properly apply the Second Restatement method, a court must begin its choice-of-law analysis with a characterization of the issue at hand in terms of substantive law. Id. at § 7. By prescribing this analytical approach, the Second Restatement follows the principle of depe-cage, which has been long applied in connection with various methods for choice of law. See Willis L.M. Reese, Depecage: A Common Phenomenon in Choice of Law, 73 Colum. L.Rev. 58 (1973).

Ruiz v. Blentech Corporation, 89 F.3d 320, 323-24 (7th Cir.1996) (footnote omitted). We agree that depecage is the proper approach to a conflict of law question. We therefore will not answer Appellant’s first issue as phrased because it is not for this Court to make an a priori determination as to the applicable law for all issues involved in this case.

[¶ 11] The specific issue presented in this case is an alleged conflict between a statute of frauds in Colorado and a statute of frauds in Wyoming. There is, however, no conflict to analyze under the facts of this case. The district court determined that, under both Colorado and Wyoming law, the applicable version of the statute of frauds renders the LOI unenforceable. As discussed below, we find that neither statute of frauds applies to render the LOI unenforceable. The outcome is the same regardless of whether we apply Wyoming or Colorado law, thus it is unnecessary to specifically discuss the Colorado and Wyoming statutes or engage in a conflict of law analysis to choose between the two. When there is no conflict, the Court applies the law of the forum. 15A C.J.S. Conflict of Laws, §§ 27, 41 (2002); 16 Am.Jur.2d Conflict of Laws § 85 (1998).

[¶ 12] With regard to the substantive issue, we believe the question can be answered by looking at the general application of a statute of frauds. A statute of frauds is “[a] statute ... designed to prevent fraud and perjury by requiring certain contracts to be in writing and signed by the party to be charged.” Black’s Law Dictionary 1422 (7th ed.1999). The district court apparently reasoned that a statute of frauds applies to prevent the legal enforcement of the (written) LOI except upon the completion of a written financing agreement between Appellees and a lending institution. We believe this is a misapplication of a statute of frauds.

[¶ 13] It is undisputed that the financing agreement, and even the initial financing commitment, was never accepted in writing by Appellees. Appellant is not, however, attempting to enforce any aspect of the financing agreement. Appellant is attempting to enforce the LOI and its Extension, both of which are in writing and signed by Appellees. We fail to see how any version of the statute of frauds logically applies to render the terms of the LOI legally unenforceable. Summary judgment should not have been granted on the ground of the operation of a statute of frauds.

[¶ 14] While we could end our discussion here, Appellant remarks upon one further finding made by the district court that, in the interest of judicial economy, we deem it expedient to address. The district court found that the LOI was unambiguous and that “[a]s a condition precedent to any assignment of interest to the [Appellant], a financing arrangement acceptable to the [Ap-pellees] was required to be produced by the [Appellant] and accepted by the [Appellees].” We are unclear as to the significance of this finding. It does not appear to constitute a separate and distinct ground for granting summary judgment, nor have Appellees argued such. Appellant argues that, to the extent this finding suggests that written acceptance of a financing agreement was necessary to invoke Appellees’ duties under the LOI, the finding is inappropriate because a clear factual dispute exists regarding the nature of this condition precedent.

[¶ 15] The finding was specifically requested by Appellees in them motion for summary judgment. Presumably, their intent was to obtain an interpretation from the district court that bolstered their theory that a written finalization of a financing agreement was a condition precedent under the LOI. We do not interpret the finding in the order to support that position. We agree with Appellant, however, that to the extent it does, it is mistaken.

[¶ 16] It is for the court to determine, as a matter of law, whether a contract is ambiguous. Emulsified Asphalt, Inc., of Wyoming v. Transportation Comm’n of Wyoming, 970 P.2d 858, 864 (Wyo.1998) (“Whether a contract contains an ambiguity is a question of law for the reviewing court which may be independently determined by this Court.”) Even a cursory review of the language of the LOI convinces us that the agreement is ambiguous.

As we interpret the Agreement, we are mindful that our primary focus is the intent of the parties. Wolter v. Equitable Resources Energy Co., 979 P.2d 948, 951 (Wyo.1999) (citing Woods Petroleum Corporation v. Hummel, 784 P.2d 242, 243 (Wyo.1989)). If the document is clear and unambiguous, we review the four corners of the Agreement to determine the parties’ intent. Sierra Trading Post, Inc. v. Hinson, 996 P.2d 1144, 1148 (Wyo.2000). Ambiguity is found if indefiniteness of expression or double meaning obscure the intent of the parties, though disagreement between the parties as to the Agreement’s meaning does not give rise to an ambiguity. Wolter, 979 P.2d at 951 (citing Svalina v. Split Rock Land and Cattle Co., 816 P.2d 878, 881 (Wyo.1991)); Mathis [v. Wendling,] 962 P.2d [160] at 163-64.

Hansen v. Little Bear Inn Co., 9 P.3d 960, 964 (Wyo.2000). It is impossible to determine from the language employed in the LOI exactly how the parties intended this agreement to operate. Reading the documents as a whole, many questions are raised. For instance, what is meant by “best efforts?” What is meant by “arranging financing?” Was anything in writing required? At what stage? What is the effect of the termination clauses? The language of the LOI simply does not answer these questions or allow us to determine the intent of the parties at the time the LOI was made.

[¶ 17] Certain disputes are clear from the arguments of the parties. Appel-lees contend that they owe no duty to fulfill any of their obligations under the LOI unless and until they formally execute a finalized, written financing agreement. Appellant ar-

gues that Appellees owed duties under the LOI as soon as they orally expressed agreement to the terms of a proposed financing commitment. At a minimum, Appellant argues, Appellees owed a duty to use them “best efforts” to complete the financing agreement. While a disagreement between the parties regarding the interpretation of a contract does not automatically render the contract ambiguous, in this case the language of the LOI is indefinite enough to produce ambiguities. The district court’s finding that the terms of the LOI are unambiguous is incorrect.

CONCLUSION

[¶ 18] As a matter of law, the statute of frauds does not apply to legally render the LOI unenforceable. The LOI as a whole is ambiguous with regards to the nature and timing of the obligations of the parties. The grant of summary judgment is reversed and the case remanded for further proceedings.

      . The parties are, of course, free to present argument to the district court pertaining to any alleged conflict that may arise as the case continues upon remand.

      . Appellees, at oral argument, seemed to suggest not a direct, but rather an indirect application of the statute of frauds. Essentially, Appellees argued that the statute of frauds represents a pub-lie policy decision that, in order to be acceptable, a credit agreement such as that contemplated by the LOI must be in writing. Appellees argued that this policy should supplement the language of the LOI, removing any potential ambiguity in the LOI regarding the necessity of a written financing agreement. Because the decision of the district court was based upon a direct application of the statute of frauds, and not an interpretation of the LOI, this argument is not properly before us in this appeal. It is for the district court, in the first instance, to determine the potential application and efficacy of this argument should Appellees choose to pursue it upon remand.


source: Caselaw Access Project

author: LEHMAN, Justice.

license: Public Domain

text:
    2002 WY 184
    Betty Jean WILLIAMS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-123.
    Supreme Court of Wyoming.
    Dec. 31, 2002.

      Kenneth M. Koski, State Public Defender; Donna Domonkos, Appellate Counsel; Diane Courselle, Director, Defender Aid Program; and Holly Magi Barringham, Student Intern., Representing Appellant. Argument by Ms. Barringham.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Senior Assistant Attorney General, Representing Appellee. Argument by Ms. Cooley.
    Before HILL, C.J., and GOLDEN, LEHMAN KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   LEHMAN, Justice.

[¶ 1] After trial, a jury convicted appellant, Betty Jean Williams (appellant), of five counts of forgery. We affirm.

ISSUES

[¶ 2] Appellant sets forth three issues on appeal as follows:

I. Did the trial court abuse its discretion in allowing the State’s expert, Richard Cri-vello, to testify regarding his opinions based on handwriting analysis when the trial court failed to make the requisite findings of reliability as required by Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ] and Kumho Tire [v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ] and adopted by the Wyoming Supreme Court?
II. Was the evidence presented to the jury sufficient to sustain a conviction for forgery?
III. Did the trial court err in failing to accept defendant’s guilty plea when there was a clear factual basis for doing so?

Appellee State of Wyoming essentially agrees with those issues presented by appellant.

FACTS

[¶ 3] During a ride in a taxi, the driver— who became the victim in this case — indicated that he needed to have some work performed at his home, including some painting. Appellant indicated that she would be interested in working for the victim. She testified she was to be paid hourly for her painting services up to approximately $400.00 and about $200.00 for supplies. The victim testified that appellant began work for him, however, they had not reached an agreement. In any event, appellant began providing painting services to the victim a day or so later.

[¶ 4] Toward the end of March of 2000, the victim went to New Mexico for a week. Upon return from this trip, victim reconciled his bank statement and noticed he had not written one of the checks drawn on his account. Later, he realized that four additional checks had also been forged. Ultimately, appellant was charged and convicted of forging the five subject checks written on the victim’s account.

STANDARD OF REVIEW

[¶ 5] The standard of review when faced with matters pertaining to the admission of testimony of expert witnesses was established in the case of Bunting v. Jamieson, 984 P.2d 467 (Wyo.1999) wherein this court adopted the reasoning used by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The standard has been further clarified as follows:

The trial court must have the same kind of latitude in deciding how to test an expert’s reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert’s relevant testimony is reliable. Our opinion in Joiner [General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)] makes clear that a court of appeals is to apply an abuse-of-discretion standard when it “review[s] a trial court’s decision to admit or exclude expert testimony.” 522 U.S. at 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508. That standard applies as much to the trial court’s decisions about how to determine reliability as to its ultimate conclusion. ... Thus, whether DaubeH’s spe--cific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.

Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999). “In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did.” Campbell v. Studer, 970 P.2d 389, 392 (Wyo.1998).

“ ‘[Djecisions of the trial court with respect to the admissibility of evidence are entitled to considerable deference and, as long as there exists a legitimate basis for the trial court’s ruling, that ruling will not be reversed on appeal.’ ” It is also well established that a district court judgment may be affirmed on any proper legal grounds supported by the record. However, where the law imposes a duty on the district court to make findings on the record, we will not speculate as to the reasons for the decision.

Bunting, 984 P.2d at 470 (quoting English v. State, 982 P.2d 139, 143 (Wyo.1999)).

A qualified expert witness may testify about scientific, technical, or specialized knowledge if such testimony will help the jury understand the case. W.R.E. 702. This court has adopted the federal DaubeH model imposing gatekeeping responsibilities on trial courts deciding whether scientific or technical expert testimony is admissible. See Bunting v. Jamieson, 984 P.2d 467, 471 (Wyo.1999) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469 (1993)). In doing so, however, we did not “abandon our own precedent regarding the admissibility of expert testimony.” Bunting, at 471. Under the Dau-beH model, the trial court must first determine whether the expert’s methodology is reliable; then the court must determine whether the proposed testimony “fits” the facts of the particular case. Id. A district court’s decision to admit or reject expert testimony is a decision solely within that court’s discretion. Seivewright v. State, 7 P.3d 24, 29 (Wyo.2000); Springfield v. State, 860 P.2d 435, 438 (Wyo.1993); Betzle v. State, 847 P.2d 1010, 1022 (Wyo.1993).

Chapman v. State, 2001 WY 25, ¶ 8, 18 P.3d 1164, ¶ 8 (Wyo.2001).

[¶ 6] The standard of review for sufficiency of the evidence issues is also well established. We assess whether all the evidence presented is adequate to form the basis for an inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State. We do not consider the evidence presented by the unsuccessful party which conflicts with the successful party’s evidence, and afford every favorable inference to the successful party’s evidence which may be reasonably and fairly drawn from that evidence. Even though it is possible to draw other inferences from the evidence presented, the jury has the responsibility to resolve conflicts in the evidence. We will not substitute our judgment for that of the jury when we are applying this rule; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did. Black v. State, 2002 WY 72, ¶ 4, 46 P.3d 298, ¶ 4 (Wyo.2002) (citing Vanvorst v. State, 1 P.3d 1223, 1228 (Wyo.2000); Harris v. State, 933 P.2d 1114, 1123 (Wyo.1997); and Blake v. State, 933 P.2d 474, 480 (Wyo.1997)).

DISCUSSION

Admissibility of Expert Testimony

[¶ 7] Appellant complains that the district court abused its discretion in allowing the handwriting expert proffered by the State to testify regarding those opinions he formed based on his handwriting analysis. According to appellant, the district court failed to follow the clearly established guidelines for exercising its gatekeeping role as detailed in the cases of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) and thus allowed expert testimony to be presented to the jury that was not demonstrably reliable. Specifically, appellant argues that while she agrees that handwriting analysis and expertise in that area are “not scientific,” this did not excuse the court from its gatek-eeping responsibilities. Thus, appellant argues that the district court erred because it failed to substantively address any of the required factors concerning the reliability of the testimony of the handwriting expert. In response, the State claims that the district court did not abuse its discretion in allowing the handwriting expert to testify, as it appropriately allowed the parties to voir dire the expert and made a sufficiently detailed ruling on the record as to the reliability of such anticipated testimony.

[¶ 8] This court first adopted the reasoning used by the United States Supreme Court in Daubert, and later clarified in the case of Kumho Tire Company, in its opinion in Bunting v. Jamieson, 984 P.2d 467. Under the Daubert model, the trial court must first determine whether the expert’s methodology is reliable; then the court must determine whether the proposed testimony “fits” the facts of the particular case. See also Chapman, 2001 WY 25, ¶ 8, 18 P.3d 1164. As pointed out by appellant, Bunting, at 472, reiterated four non-exclusive factors utilized in Daubert for guiding a trial court in its inquiry into the reliability of proffered expert testimony:

1) Whether the theory or technique in question can be and has been tested;
2) Whether it has been subjected to peer review and publication;
3) The known or potential rate of error for the utilized theory or technique along with the existence and maintenance of standards controlling the applicable process; and
4) The degree of acceptance within the relevant scientific community.

Id. at 472. Bunting also discussed additional factors that may be utilized by a trial court in fulfilling its gatekeeping function including:

1) The experience and specialized expertise of the proffered expert;
2) Whether or not that expert is testifying about matters occurring “naturally and directly” out of research conducted independent of litigation; and
3) Any “non-judicial” utilization of the expert methodology in question.

Id.

[¶ 9] In this ease, upon appellant filing an objection to the proposed testimony of the handwriting expert on the day prior to trial, the district court initially believed that a Daubert-style hearing was unnecessary, relying on the case of United States v. Starzecpyzel, 880 F.Supp. 1027 (S.D.N.Y.1995) holding that forensic document examination was not subject to Daubert-type review regarding admissibility of expert testimony. Upon further argument of counsel, however, the district court deferred its ruling on the objection. Ultimately, the district court allowed a Daubert-style hearing, and counsel for both parties were given the opportunity to voir dire the proposed handwriting expert, Mr. Crivello, outside the presence of the jury.

[¶ 10] During voir dire, the State provided a thorough offer of proof regarding Mr. Crivello’s qualifications as a forensic documents examiner, including his 16½ years of employment with the Wyoming State Crime Laboratory as a forensic document examiner; that he had acquired a two-year police science degree; that he had taken part in a 3⅜ year training progression at the Colorado Bureau of Investigation; and that he had attended numerous government training courses on document examination offered by the United States Secret Service, United States Federal Bureau of Investigation, and the United States Postal Inspector’s Service. Mr. Crivello also testified that he had attended numerous other meetings or seminars relating to document examination and that he worked an average of 30 to 50 document examination eases per year. Additionally, Mr. Crivello indicated that he had been qualified as an expert in both state and federal court, the United States Military Court, and before several state boards. Furthermore, Mr. Crivello stated that he had never failed proficiency testing of his work in the area over the past 16½ years and spoke about the substantial history of the field of document examination and his familiarity with numerous recognized books in this field. He also addressed various technical changes in the field, peer review publications, and articles which support that trained experts can discern pertinent information from their analysis of documents which lay persons cannot.

[¶ 11] In countering this testimony, appellant’s counsel noted that Mr. Crivello was not a certified forensic examiner and argued that handwriting analysis was not significantly quantifiable or measurable, casting doubt on its reliability. Ultimately, the district court found as follows:

Counsel, as briefly discussed before beginning voir dire, the Court is aware that there are two approaches to handle, quote, expert testimony of forensic document examiners. The Court believes and will hold, unless otherwise ordered by the Wyoming Supreme Court, that in Wyoming forensic document examination expertise is outside the scope of Daubert.
However, obviously, I wanted to give counsel an opportunity to protect their record by offering facts that might satisfy the Daubert test. The testimony evidences to me the reason why Wyoming ought to adopt the rationale adopted by U.S. v. Starzecpyzel, 880 F.Supp. 1027 (S.D.N.Y.1995).
For purposes of this hearing, the Court finds that Mr. Crivello has demonstrated the actual knowledge obtained by education and experience that is appropriate in the area of forensic document examination and, of course, what we discussed before his testimony; and that is that in forgery cases, in particular, forensic document examination testimony is relevant and generally helpful to juries when deciding factual issues.
And as far as I know, and the state of Wyoming law, it’s within the Court’s discretion to, you know, allow this sort of thing. And based on what I’ve heard, I see no reason not to allow Mr. Crivello to testify as a forensic document examination specialist.

[¶ 12] Later, at the insistence of the State, the district court made additional findings concerning the issue of reliability.

THE COURT: I just wanted to stay away from equating what Mr. Crivello does with our normal definition of “scientific.” And I suppose if we call it other specialized knowledge, as they use in Kumho Tire, it would be appropriate. So what type of findings are you suggesting in support of that path?
[PROSECUTOR]: I think the evidence is that, number one — and this was the one that the court found in Kumho — that the witness is credible and qualifies as an — has sufficient qualifications to qualify as an expert in that field.
I think the other thing is that Mr. Cri-vello’s testimony also establishes that this is an area where it can be tested. It is capable of being tested by the proficiency test that they take. I think it’s also another measure of reliability.
[PROSECUTOR]: I think that is a sign of its testability, the fact that there’s a company out there that sends one handwriting stuff every year and then every year also sends out other forms of document examination to be performed and that document examiners such as he do those tests, submit their answers. Those answers are then graded, and it’s determined how they did and published how they did. And Mr. Crivello in his 16 years of doing this hasn’t failed a proficiency test.
THE COURT: That certainly supports the Court’s finding that I believe I already made, that he qualifies as an expert witness regarding forensic document examination. That is certainly in support of that.
[PROSECUTOR]: And even the ability to test in that way, the proficiency testing is something I know came up in the DNA things. And their proficiency testing ran into obstacles that aren’t present here. We think it shows that it is reliable. They come up with the right answer. We think that the peer-reviewed articles that we produced to the Court from the Journal of Forensic Sciences also demonstrates that they come up with the right answer, that it’s rehable. The peer-reviewed literature supports it. And, in fact, that it is a longstanding discipline, that it’s generally accepted....
THE COURT: Well, the Court agrees that the area of handwriting analysis has been utilized for decades in Wyoming and has been relied upon by trial courts.
THE COURT: Again, the Court sees no reason to exclude the testimony of Mr. Crivello under traditional expert witness standards nor under the Daubert-type. analysis^

[¶ 13] Upon review of the record before us, it becomes apparent that the district court found, based on sufficient evidence presented, that forensic document techniques have been and are tested and that forensic document examination has been the subject of considerable peer review and publication. In addition, the district court found upon adequate proof being laid that there existed appropriate testing procedures to assure and maintain the standards of the profession and that such profession had been accepted within the relevant scientific community for many years. Accordingly, we hold that the district court properly considered each of the four enumerated factors first set forth in Daubert and thereafter explicitly adopted by this court in Bunting. Likewise, the court appropriately found that the proffered handwriting expert was sufficiently qualified through adequate experience and specialized expertise in the area as expressed in Bunting.

[¶ 14] Appellant argues that the opinion testimony of the handwriting expert was “particularly problematic” as it was the “least reliable aspect of’ the expert’s testimony because it was based upon speculation and conjecture and was merely subjective in nature. As noted earlier, in attempting to point out this position, appellant identified that Mr. Crivello was not a certified forensic document examiner and argued that handwriting analysis is not significantly quantifiable or measurable because differing results can be obtained by separate analysis depending on the specific examiner utilized.

[¶ 15] In Bunting, 984 P.2d at 472, this court recognized an awareness of criticism that the application of the Daubert approach to exclude evidence resulted in a possible misappropriation of the jury’s responsibilities. This court further recognized that it is imperative that the jury retain its fact-finding function. Accordingly, this court noted that in order to alleviate this potential conflict, Daubert admonished that methodology should be distinguished from the conclusion of the expert. Id.

Thus, a trial judge need not and should not determine the scientific validity of the conclusions offered by an expert witness. Rather, to decide admissibility, the trial judge should only consider the soundness of the general scientific principles or reasoning on which the expert relies and the propriety of the methodology applying those principles to the specific facts of the case. Charles Alan Wright & Victor James Gold, supra, at § 6233; see also Springfield, supra, quoting Jakobetz, 955 F.2d at 797 (“In other words, the court need not make the initial determination that the expert testimony or the evidence proffered is true before submitting the information to the jury.”).
The ultimate question for the trial judge is whether both sides will have a fair opportunity to test the validity of scientific results; if not, those results should not be admissible.
... [E]xpert testimony should be admitted so long as it can be adequately tested by an adversary.
Daniel J. Capra, The Daubert Puzzle, 32 Georgia Law Rev. No. 3, 699, 705 (Spring 1998).

Bunting, at 472-73. Our opinion in Bunting, at 475-76, further clarifies that the important determination that must be squarely addressed by the trial court is whether or not the analysis of the expert in question is “grounded on something other than ‘subjective belief or unsupported speculation’ ” and if such opinion “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” The application of the Daubert approach requires the trial court to consider all factors relevant to the reliability of a proposed expert’s testimony, with a focus on the methodology of the expert, not his or her conclusions. In accord see General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 516, 139 L.Ed.2d 508 (1997), Black v. Food Lion, Inc., 171 F.3d 308, 311 (5th Cir.1999), and Kumho Tire Company, 526 U.S. at 152, 119 S.Ct. at 1176, 143 L.Ed.2d at 252-53.

[¶ 16] We also agree with those comments made in 15 Am.Jur. Proof of Facts 3d, Handwriting Identification, § 27 (1992) which states:

Each time a forensic handwriting expert testifies in 'court, he or she must be qualified as an expert witness. Since there is no college or university where one can earn a degree in document examination, the expert must demonstrate to the satisfaction of the court that he or she has acquired special knowledge and skills in the field. The ability to detect forgeries and identify handwriting is gained primarily through self-study and experience.
As one authority has noted,
[h]andwriting experts establish their opinions on the internal evidence of the matter in dispute. Such opinions are
based upon their knowledge and experience and keen perception gained through many years of careful study.... [Baker, Law of Disputed and Forged Documents 166 (1955).]
... Contrary to popular belief, determining the genuineness of a signature or handwriting is not a simple matter. Years of study, training, and experience are required to become truly proficient in the field of forensic document analysis.

[¶ 17] This same treatise goes on to identify that there exists a number of professional organizations to which a handwriting expert may belong that afford education, research, and professionalism. Participation in these organizations, however, while very helpful, may not be indicative of a handwriting expert’s true expertise. Therefore, a court must assure that the proffered handwriting expert witness is genuinely qualified and has the absolute ability to render his or her adopted opinions through testimony in front of a jury. Id.

[¶ 18] As we have said in the context of the trial courts discretionary duties in determining the best interests of a child, an abuse of discretion is present “ ‘when a material factor deserving significant weight is ignored.’ ” Reavis v. Reavis, 955 P.2d 428, 431 (Wyo.1998); Triggs v. Triggs, 920 P.2d 653, 657 (Wyo.1996) (quoting Vanasse v. Ramsay, 847 P.2d 993, 996 (Wyo.1993)).
To determine whether a district court has abused its discretion, we must rely on the district court’s articulation of the factors which were considered and how those factors support its conclusions.
To play fair, a trial judge relying on discretionary power should place on record the circumstances and factors that were crucial to his determination. He should spell out his reasons as well as he can so that counsel and the reviewing court will know and be in a position to evaluate the soundness of his decision.
Reavis, 955 P.2d at 431-432 (quoting Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L.Rev. 635, 665-66 (1971)). Recently, in English, 982 P.2d at 144, we recognized that the abuse of discretion standard, when applied to the admission of testimony under the catch-all exception to the hearsay rule, requires the district court to set forth its reasoning in more detail than may be required under other circumstances. See also, Betzle v. State, 847 P.2d 1010, 1021 (Wyo.1993). The catch-all exception imposes stringent restrictions on its use, as compared to Rule 702, which is intended to promote admissibility of trustworthy evidence. However, we believe that the trial court’s decision to dispose of a case by precluding expert testimony requires the same level of judicial explanation supporting its discretionary decision as the admission of testimony under the catch-all exception. A single conclusory statement applying one nondispositive Daubert factor is insufficient.

Bunting, at 475. Moreover, as recognized above, decisions of the trial court with respect to the admissibility of evidence are entitled to considerable deference and, as long as there exists a legitimate basis for the trial court’s ruling, that ruling will not be reversed on appeal. Id. at 470 (quoting English v. State, 982 P.2d at 143).

[¶ 19] In this instance, the record reflects that the district court sufficiently set forth those factors on which it relied in making its ultimate decision to allow the proffered handwriting expert to testify before the jury and that such determination was legitimately based. Again, Mr. Crivello testified that forensic document techniques have been and are tested and that forensic document examination has been the subject of considerable peer review and publication. In addition, appropriate testing procedures exist to assure and maintain the standards of the profession with this profession having been accepted in the relevant scientific community for many years. Further, as noted above, adequate foundation was laid as to Mr. Cri-vello’s competency in his expressed area of expertise.

[¶20] We also recognize that appellant, through her counsel, was afforded and thoroughly exercised the opportunity to cross-examine this expert to adequately test his expressed opinions and point out to the jury those reasons she believed that the testimony was not credible and should not have been relied upon by the jury. As again previously expressed by this court in Bunting, at 471-72:

It is important to note, however, that Daubert recognized “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786, 125 L.Ed.2d 469. As one court has stated:
Clearly, the Court envisioned cases in which expert testimony meets the Dau-bert standard yet is “shaky,” and cases in which admissible expert testimony provides only a “scintilla” of support for a claim or defense. Put differently, an expert opinion must be based on reliable methodology and must reliably flow from that methodology and the facts at issue — but it need not be so persuasive as to meet a party’s burden of proof or even necessarily its burden of production.
Heller v. Shaw Industries, Inc., 167 F.3d 146, 152 (3rd Cir.1999). Thus, while the burden is on the party offering the testimony to show that the testimony is admissible, Graham v. Playtex Products, 993 F.Supp. 127, 129 (N.D.N.Y.1998), a ruling on a motion in limine does not impose the same burden on the party offering the evidence as would be applied on a motion for summary judgment. Rather, the focus is on the admissibility of the testimony, not its ultimate sufficiency in establishing the case.

[¶ 21] Finally, we take this opportunity to clarify that this court does not adopt that rule of law expressed in the opinion of United States v. Starzecpyzel, 880 F.Supp. 1027 (S.D.N.Y.1995) holding that forensic document examination cannot be regarded as scientific knowledge within the meaning of the rule regarding admissibility of expert testimony and that as such, a Datibert-style review did not prove necessary in such an instance. To the contrary, this court has clearly expressed in Bunting, at 471 (citing Kumho Tire Company, 526 U.S. at 149, 119 S.Ct. at 1175,143 L.Ed.2d at 251):

We conclude that Daubert’s general holding — setting forth the trial judge’s general “gatekeeping” obligation — applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialized” knowledge. See Fed. Rule Evid. 702.

[¶ 22] This court has also previously recognized in Bunting, at 470-71, that the admissibility of expert testimony is derived directly from W.R.E. 702, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

We also clarified in Bunting, at 471, the primary responsibility of the trial court when faced with issues surrounding the admissibility of expert testimony under W.R.E.702.

Our traditional analysis is found in Springfield v. State, 860 P.2d 435, 443 (Wyo.1993), where we stated:
[I]n ruling upon the offer of such evidence in Wyoming, our trial courts need only be concerned with the requisite foundation. Because it does appear the possibility of an erroneous result is more likely to arise from the testing techniques than from the procedure, it is important for the trial court to be satisfied about the manner in which the testing was performed, and the qualifications of the individual who accomplished the scientific technique.
(Quoting Rivera v. State, 840 P.2d 933, 942 (Wyo.1992)).

[¶ 23] The language used within W.R.E. 702 could not be any clearer that it applies not only to proffered experts that desire to express an opinion on some scientific bases but also to those opinions with a foundation based upon technical or any other specialized knowledge. In addition, the reasoning used within the opinion in United States v. Starzecpyzel, 880 F.Supp. 1027, frankly does not persuade us that we should abandon our previously expressed holding that a trial court is mandated to exercise its gatekeeping function in each of these specifically expressed circumstances.

[¶ 24] As clearly set forth within the United States Supreme Court’s opinion in Kumho Tire Company, 526 U.S. at 147-49, 119 S.Ct. at 1174-75, 143 L.Ed.2d at 249-51, with which we whole heartedly concur:

In Daubert, this Court held that Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to “ensure that any and all scientific testimony ... is not only relevant, but reliable.” 509 U.S., at 589, 113 S.Ct. 2786, 125 L.Ed.2d 469. The initial question before us is whether this basic gatekeeping obligation applies only to “scientific” testimony or to all expert testimony. We, like the parties, believe that it applies to all expert testimony. See Brief for Petitioners 19; Brief for Respondents 17.
For one thing, Rule 702 itself says:
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
This language makes no relevant distinction between “scientific” knowledge and “technical” or “other specialized” knowledge. It makes clear that any such knowledge might become the subject of expert testimony. In Daubert, the Court specified that it is the Rule’s word “knowledge,” not the words (like “scientific”) that modify that word, that “establishes a standard of evidentiary reliability.” 509 U.S., at 589-590, 113 S.Ct. 2786, 125 L.Ed.2d 469. Hence, as a matter of language, the Rule applies its reliability standard to all “scientific,” “technical,” or “other specialized” matters within its scope. We concede that the Court in Daubert referred only to “scientific” knowledge. But as the Court there said, it referred to “scientific” testimony “because that [wa]s the nature of the expertise” at issue. Id., at 590, n. 8, 113 S.Ct. 2786,125 L.Ed.2d 469.
Neither is the evidentiary rationale that underlay the Court’s basic Daubert “gatek-eeping” determination limited to “scientific” knowledge. Daubert pointed out that Federal Rules 702 and 703 grant expert witnesses testimonial latitude unavailable to other witnesses on the “assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.” Id., at 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (pointing out that experts may testify to opinions, including those that are not based on firsthand knowledge or observation). The Rules grant that latitude to all experts, not just to “scientific” ones.
Finally it would prove difficult, if not impossible, for judges to administer evi-dentiary rules under which a gatekeeping obligation depended upon a distinction between “scientific” knowledge and “technical” or “other specialized” knowledge. There is no clear line that divides the one from the others. Disciplines such as engineering rest upon scientific knowledge. Pure scientific theory itself may depend for its development upon observation and properly engineered machinery. And conceptual efforts to distinguish the two are unlikely to produce clear legal lines capable of application in particular cases. Cf. Brief for National Academy of Engineering as Amicus Curiae 9 (scientist seeks to understand nature while the engineer seeks nature’s modification); Brief for Rubber Manufacturers Association as Amicus Curiae 14-16 (engineering, as an “ ‘applied science,’ ” relies on “scientific reasoning and methodology”); Brief for John Allen et al. as Amici Curiae 6 (engineering relies upon “scientific knowledge and methods”).
Neither is there a convincing need to make such distinctions. Experts of all kinds tie observations to conclusions through the use of what Judge Learned Hand called “general truths derived from ... specialized experience.” Hand, Historical and Practical Considerations regarding Expert Testimony, 15 Harv. L.Rev. 40, 54 (1901). And whether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert’s testimony often will rest “upon an experience confessedly foreign in kind to [the jury’s] own.” Ibid. The trial judge’s effort to assure that the specialized testimony is reliable and relevant can help the jury evaluate that foreign experience, whether the testimony reflects scientific, technical, or other specialized knowledge.
We conclude that Daubert’s general principles apply to the expert matters described in Rule 702. The Rule, in respect to all such matters, “establishes a standard of evidentiary reliability.” 509 U.S., at 590, 113 S.Ct. 2786, 125 L.Ed.2d 469. It “requires a valid ... connection to the pertinent inquiry as a precondition to admissibility.” Id., at 592, 113 S.Ct. 2786, 125 L.Ed.2d 469. And where such testimony’s factual basis, data, principles, methods, or their application are called sufficiently into question, see Part III, infra, the trial judge must determine whether the testimony has “a reliable basis in the knowledge and experience of [the relevant] discipline.” 509 U.S., at 592, 113 S.Ct. 2786,125L.Ed.2d469.

Sufficiency of the Evidence

[¶25] Appellant in her second issue argues that insufficient evidence was presented at trial to prove that appellant had the specific intent to defraud the victim, a specific element required Wyo. Stat. Ann. § 6-3-602(a)(iii). In particular, appellant asserts the only testimony that tended to prove the requisite intent of appellant was presented through handwriting expert Mr. Crivello, and his sole testimony was that he was unable to testify with any certainty that the victim did not write the subject checks or that appellant did write these checks. Appellant cites the case of Hamburg v. State, 820 P.2d 523 (Wyo.1991) in support of this position, contending that in the Hamburg opinion this court refused to equate a handwriting expert’s statements that it was “probable” that the defendant prepared certain signatures on an election petition to the necessary “beyond a reasonable doubt” burden of proof required in a criminal case.

[¶26] Upon our independent review, we hold that sufficient evidence was presented that each of the crimes alleged were committed by appellant. Considerable additional evidence other than simply the testimony of Mr. Crivello exists in this case whereby the jury could have found appellant guilty of the crimes alleged beyond a reasonable doubt.

[¶ 27] The victim testified that he had not given appellant the involved checks and had never intended to pay appellant over $950.00 to help him paint his house. In addition, Officer Chris Dahmke testified that when he interviewed appellant, she told him her agreement with the victim was that she would receive between $500.00 to $600.00 for such services, including costs for needed supplies. The victim, however, testified that he had already purchased supplies and there was no agreement ever reached as to the amount he would pay appellant for her painting services.

[¶ 28] The victim went on to testify he was out of town in New Mexico when appellant endorsed the checks over to the bank, and that she had a number of opportunities to take the checks when she was alone in his home or later because, when he left for New Mexico, he had left his home unlocked so a neighbor could get inside his home. Additionally, Officer Dahmke testified appellant had lied to him about being in Arkansas when they were initially trying to contact her about the checks evidencing at least some intent on her part to deceive.

[¶29] Critically, additional detailed evidence was presented as to appellant’s activities surrounding the involved checks. Bank employees testified to appellant’s odd behavior when cashing and depositing the checks and to her banking transactions. On March 23, 2000, appellant deposited at the bank’s lobby counter check number 5673, drawn on the victim’s account and made payable to appellant, into her savings account. Appellant was required and did open a savings account in order to cash this check. The check was in the amount of $150.00 and was dated March 24, 2000. Appellant retained $100.00 in cash from that check.

[¶ 30] The next day at approximately 9:36 a.m., appellant, using the drive-through window at the bank, withdrew $10.00 from her savings account. On March 27, 2000, at approximately 8:57 a.m., appellant, again using the drive-through window, withdrew $20.00 from her savings account. Approximately one hour later, at 9:56 a.m., appellant again utilized the drive-through window to deposit check number 5687, drawn on the victim’s account and made payable to appellant. The cheek was in the amount of $275.00. Appellant retained $225.00 in cash from that check. Finally, that same day at approximately 2:29 p.m., appellant deposited check number 5686, drawn on the victim’s account and made payable to appellant, at the bank’s lobby counter. The check was in the amount of $50.00 and was dated March 29, 2000. Appellant retained $30.00 in cash from that check.

[¶ 31] The following day, on March 28, 2000 at approximately 9:01 a.m., appellant, at the drive-through window, withdrew $60.00 from her savings account. That same date, again only a short time later, at 10:30 a.m., appellant withdrew $10.00 from her savings account in the lobby of the bank. Thereafter, at 12:53 p.m., appellant deposited check number 5695, drawn on the victim’s account and made payable to appellant at the bank’s lobby counter. The cheek was in the amount of $275.00. There was no date on this check. Appellant retained $75.00 in cash from that check.

[¶ 32] Still, on March 28, 2000, at approximately 1:18 p.m., appellant deposited check number 5694 using the drive through window. This check, in the amount of $200.00 and dated March 28, 2000, was likewise drawn on the victim’s account and made payable to appellant. Appellant retained $200.00 in cash from that check. Also, during this same transaction, appellant withdrew $219.00 from her savings account, leaving $1.00 remaining in that account. Mr. Crivello testified that it was his opinion based upon his examination of the checks and the exemplars obtained from appellant that appellant had endorsed the back of each of the subject checks. Officer Dahmke also stated that appellant had admitted to him that she had endorsed these checks.

[¶ 33] In addition, appellant’s argument regarding the applicability of our holding in Hamburg v. State, 820 P.2d 523, to this case lacks merit. In Hamburg, the defendant was convicted of forging several names on a political petition. With respect to certain signatures on the petition, the handwriting expert testified that the defendant either “very probably” or “probably” forged these signatures. As this was the sole testimony leading to conviction by the jury, this court held that the words “very probably” or “probably” could not equate to guilt beyond a reasonable doubt.

[¶ 34] In this case, Mr. Crivello testified that he had no opinion concerning whether appellant had written on the front of the subject checks because he could not identify that she had or had not written the statements that appeared on this side of the checks. He also testified it was his opinion that the handwriting that appeared on the front of the cheeks was not consistent with those exemplars obtained from the victim. Finally, when specifically questioned by appellant’s counsel concerning the nine point ASTM standard El658, Mr. Crivello testified that if he had to equate his findings to those terms or standards with respect to whether the victim had or had not made the handwriting that appeared on the face of the checks, he stated that it would be “similar to that of saying probable or very probable they were not prepared by [the victim].”

[¶ 35] Therefore, unlike the testimony in Hamburg, Mr. Crivello did not present any opinion on whether or not appellant had authored the front of the checks. Indeed, he expressed no opinion on this topic. Mr. Cri-vello’s testimony that the victim “very probably]” or “probablfy]” did not author the front of the checks is much different than the testimony of the handwriting expert in Hamburg who opined that the defendant “probably” authored the signature on the petition. Additionally, as pointed out above, a substantial amount of additional evidence was presented at trial concerning appellant’s actions with respect to the checks, while in Hamburg no other evidence aside from the handwriting expert’s testimony was presented on that particular topic. Accordingly, we find the facts in this case to be distinguishable from those facts involved in Hamburg, and our opinion in Hamburg is not applicable to our conclusion in this case.

[¶ 36] Adequate evidence existed in this case for the jury to form the basis for an inference of guilt beyond a reasonable doubt when such evidence is viewed in the light most favorable to the State as required. We will not substitute our judgment for that of the jury; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did. Black v. State, 2002 WY 72, ¶ 4, 46 P.3d 298.

Denied Acceptance of Guilty Plea

[¶ 37] Finally, appellant argues that the district court erred in failing to accept appellant’s guilty plea at the pretrial conference when a clear factual basis existed to support this plea despite appellant’s protestations of innocence. Appellee asserts that a clear factual basis in support of a guilty plea was never presented to the district court and that, ultimately, appellant withdrew her initially contemplated desire to pled guilty. Therefore, appellee contends that it was impossible for the district court to have committed any error.

[¶ 38] Upon our review of the record, we conclude that appellant’s voluntary withdrawal of her anticipated guilty plea renders this issue moot. The transcript of the pretrial conference indicates that initially the district court was apprised of the desire of appellant to plead guilty under specified plea agreement terms reached between the parties. Accordingly, the district court requested that the prosecutor explain, in detail, the terms of the plea agreement to the court and advised appellant to listen carefully so that she could confirm that this was the agreement reached. After recitation of the plea agreement terms by the prosecutor, appellant agreed that the plea agreement was as stated, and the district court proceeded to ensure that appellant’s guilty plea was knowing and voluntary. Eventually, after explaining to appellant the constitutional rights that she would be waiving were she to enter a guilty plea, the district court asked that appellant provide a factual basis to support this plea.

[¶ 39] Appellant indicated that she had not forged the checks involved but that she had been given these checks by the victim. At this stage of the proceedings, the district court expressed its difficulty in accepting the guilty plea offered by appellant as there was no factual basis for it and since appellant denied any wrongdoing. Critically, however, the district court did not at any time ever advise appellant that it would not accept appellant’s guilty plea.

[¶ 40] Appellant’s counsel abruptly then requested an opportunity to speak with appellant which was allowed. Immediately thereafter, appellant voluntarily withdrew her anticipated guilty plea. Hence, we hold that when appellant voluntarily withdrew her anticipated guilty plea, she removed any jus-ticiable controversy concerning this issue. It has long been recognized that a justiciable controversy must exist before this court will address those issues asserted. Southwestern Pub. Serv. Co. v. Thunder Basin Coal Co., 978 P.2d 1138, 1142 (Wyo.1999) (citing Reiman Corp. v. City of Cheyenne, 838 P.2d 1182, 1185-86 (Wyo.1992) and West Texas Utilities Co. v. Exxon Coal USA, Inc., 807 P.2d 932, 938 (Wyo.1991)). See also Wyoming Bd. of Outfitters & Professional Guides v. Clark, 2002 WY 24, ¶ 9, 39 P.3d 1106, ¶ 9 (Wyo.2002), and International Ass’n of Fire Fighters, Local 279 v. Civil Serv. Comm’n of Fire Dep’t of City of Cheyenne, 702 P.2d 1294, 1297 (Wyo.1985).

[¶ 41] Moreover, we recognize that any contrary result would allow appellant an unfair advantage. It is disingenuous and unjust to allow appellant to assert an anticipated guilty plea, voluntarily withdraw it from consideration and proceed to trial and, thereafter, when an unacceptable result and sentence is rendered in appellant’s mind, assert that she was not allowed to plead guilty prior to trial.

CONCLUSION

[¶ 42] For the foregoing reasons, the convictions of appellant for forgery are affirmed.

      . It should also be noted that when asked if appellant had any other proposed findings to suggest, appellant’s counsel declined this offered opportunity.

      . Although not challenged by appellant on appeal, we further find that the district court properly determined that the proffered testimony "fit” the disputed issues of fact in this case as required under Daubert. See Bunting v. Jamieson, 984 P.2d 467, 472 (Wyo.1999).

      .Nevertheless, the record reflects that although Mr. Crivello noted that the accuracy of document analyses might differ based on the experience of the examiner, sufficient qualification through standardized testing to assure analysis accuracy alleviated such possible discrepancy and made the field much more objective in nature.

      . Indeed, upon our reading of the United States Supreme Court’s opinion in Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), we conclude that such opinion implicitly, if not expressly, overrules that holding reached by the court in United States v. Starzecpyzel, 880 F.Supp. 1027 (S.D.N.Y.1995) insofar as that opinion holds that forensic document examination cannot be regarded as scientific knowledge within the meaning of the rule regarding admissibility of expert testimony and that, as such, a Daubert-style review was not necessary.

      . Mr. Crivello was also the handwriting expert involved in the Hamburg v. State case.

      . At this juncture, the district court was first advised by appellant's counsel that appellant desired to enter an Alford plea (North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)) because although she admitted to no culpability with respect to the alleged forgeries asserted, her entry of a guilty plea would be beneficial to her. (Apparently, appellant felt that her plea of guilty might result in a sentence where she would not have to spend any jail time and would thwart the State from its admitted contemplated attempt to amend the information against her to assert separate forgery counts against her for each of the checks involved rather than proceed on the single count of forgery then pending.)


author: MANNHEIMER, Judge.

text:
    Wynter Jai CATHEY, Appellant, v. STATE of Alaska, Appellee.
    No. A-8092.
    Court of Appeals of Alaska.
    Dec. 13, 2002.

      Gayle Brown, Anchorage, for Appellant.
    James L. Hanley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Wynter Jai Cathey and an accomplice, Faatafa Afusia, broke into an apartment and robbed the two residents at gunpoint. Based on this conduct, Cathey was convicted of first-degree burglary, first-degree robbery, and two counts of third-degree assault. He now appeals his convictions.

Cathey attacks his indictment by asserting that the prosecutor knowingly used perjured testimony to obtain the indictment, failed to present evidence suggesting that no gun was used in the robbery, and misinstructed the grand jury regarding the standard of proof required for an indictment. Cathey also contends that the evidence presented to the grand jury was insufficient to support his indictment for assault because the evidence suggested that at least one of the victims was not afraid of the robbers.

Finally, Cathey contends that he was entitled to a new trial based on newly discovered evidence: the testimony of a witness who (Cathey asserts) provided him with an alibi.

For the reasons explained here, we conclude that none of Cathey’s arguments has legal merit, and we therefore affirm his convictions.

Underlying facts

Justin Heinzeroth and Kimberlee Johnson were napping in their apartment on Memorial Day afternoon when two men kicked the front door open. Heinzeroth was asleep in the front room, so the robbers saw him first. One of the men (Cathey) pointed a large-caliber revolver at Heinzeroth and demanded money.

Johnson was in the bedroom; she was awakened by the crash of the door and Hein-zeroth’s screams. Johnson peeked into the front room and saw one of the intruders pointing a gun at Heinzeroth. She then went to the bedroom telephone and called 911 to report the robbery-in-progress. While Johnson was on the phone, the other robber (Afu-sia) entered the bedroom and ripped the cord out of the telephone.

A few moments later, Cathey came into the bedroom, threatened Johnson with the revolver, and demanded to know if she had any jewelry. Johnson handed Cathey a heart-shaped ring, but then she tried to escape with $300 rent money that was stored in her jewelry box. Afusia stopped her before she could run from the apartment. Afusia subdued Johnson by holding her to the floor with his foot on her head. Cathey was then able to pry the $300 from Johnson’s grasp. After watching this, Heinzeroth handed over another $490 to Cathey.

But Johnson’s 911 call had not been in vain. While all of this was occurring, the police were already on their way to the apartment. At the sound of approaching sirens, Cathey and Afusia fled the apartment; they climbed into a getaway car driven by a third accomplice and drove away. The robbers’ car was barely out of sight when the police arrived. The officers quickly obtained a description of the robbers and their car, and then they set off in pursuit.

Within six minutes, the police spotted the robbers’ car. After a short chase, the three robbers abandoned their vehicle and tried to escape on foot. All of them were quickly arrested. Afusia had the $300 that was stolen from Johnson. However, the police never found the revolver or the $490 that Hein-zeroth said he surrendered to the robbers.

The police then brought the suspects back to the apartment to see if Heinzeroth and Johnson could identify any of them. Although Heinzeroth and Johnson could not identify the getaway driver, Heinzeroth unhesitatingly identified Cathey and Afusia as the two men who entered the apartment and committed the robbery.

Afusia had a distinctive physique: he stood six foot six and weighed more than 300 pounds. Cathey also had a distinctive appearance: his hair was in a ponytail, and he was wearing a black-and-red jersey and black pants. In addition, Heinzeroth explained that “you don’t quickly forget the face of a person [who is] pointing a large-caliber pistol at you”. Heinzeroth’s identification of Cathey was corroborated by the contents of Cathey’s pants pocket: the pocket contained the heart-shaped ring that Johnson had surrendered during the robbery.

Cathey’s attacks on his indictment

Cathey claims that his indictment is flawed because, during the presentation of the case to the grand jury, the prosecutor failed to play the tape of Johnson’s 911 call. Cathey asserts that the tape of the 911 call was exculpatory evidence — i.e., evidence that the prosecutor was obliged to present under the rule announced in Frink v. State — because Johnson never expressly told the 911 dispatcher that the robbers were armed.

The record is unclear as to whether Johnson told the 911 dispatcher that the robbers were armed. According to the dispatcher, Johnson was hysterical and some of what she said was hard to understand. Moreover, regardless of Johnson’s precise words, the dispatcher evidently concluded that Johnson was reporting an armed robbery in progress — as shown by the fact that twelve police officers were sent to the apartment, and by the fact two of these officers stated in then-reports that they had been dispatched to an armed robbery.

We farther note that the 911 tape was played for the jury at Cathey’s trial and, afterwards, Cathey’s trial attorney did not argue that Johnson failed to mention a gun.

But regardless of whether Johnson explicitly told the 911 dispatcher that the robbers were armed, the tape of Johnson’s conversation with the dispatcher did not constitute “exculpatory evidence” for purposes of the Frink rule.

A prosecutor’s duty to apprise the grand jury of exculpatory evidence extends only to “evidence that tends, in and of itself, to negate the defendant’s guilt”. Both Heinzeroth and Johnson testified at grand jury that one of the robbers was armed with a revolver. Even assuming that Johnson did not explicitly tell the 911 dispatcher that the robbers were armed, this omission would not “in and of itself’ demonstrate that Heinzer-oth’s and Johnson’s grand jury testimony on this point was false or mistaken. As our supreme court has stated,

The mere fact of inconsistency does not automatically convert ... evidence into exculpatory material. If we were to adopt [such a] broad reading of the exculpatory evidence rule, [our] action would go a long way toward turning [grand jury] proceedings into a “mini-trial”. It is our intention to avoid such a result ....

Preston v. State, 615 P.2d 594, 602 (Alaska 1980). We therefore conclude that even if Johnson did not expressly tell the 911 dispatcher that the robbers were armed, this would not constitute exculpatory evidence for grand jury purposes.

In a related argument, Cathey asserts that the prosecutor knowingly presented perjured testimony to the grand jury. According to Cathey, the perjury occurred when Johnson testified that she was robbed at gunpoint. Cathey contends that the 911 call (specifically, Johnson’s purported failure to expressly say that the robbers were armed) demonstrates that her grand jury testimony on this subject was perjured. Cathey further contends that, because the prosecutor had possession of the 911 tape, he must have “knowingly condon[ed] the introduction of [Johnson’s] perjured testimony”.

As we have already explained, Johnson’s exact words during the 911 call are not clear. But even assuming that Johnson failed to tell the 911 dispatcher that the robbers were armed, this omission does not, in and of itself, affirmatively prove that Cathey was unarmed, nor does it prove that Johnson committed perjury when she testified that Cathey was armed. Even less does it prove that the prosecutor knowingly condoned perjury when he presented Johnson’s testimony to the grand jury.

Next, Cathey argues that the prosecutor knowingly gave the grand jurors a false instruction concerning the level of proof required to support an indictment. Alaska Criminal Rule 6(q) states:

The grand jury shall find an indictment when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant.

This language has engendered litigation in the past, and one could argue that its precise meaning remains unsettled to this day. However, in Sheldon v. State, 796 P.2d 831 (Alaska App.1990), this Court rejected the argument that the phrase “evidence ... [that] would warrant a conviction of the defendant” referred to proof beyond a reasonable doubt. Instead, we interpreted Criminal Rule 6(q) to mean that “a grand jury should return an indictment when convinced of the probability of the defendant’s guilt”.

Cathey claims that the prosecutor in his case knowingly misstated this standard to the grand jurors — and that, in doing so, the prosecutor was “taking advantage of [his] position [as grand jury advisor] to ... actively deceive the Grand Jury”. Cathey bases this claim on remarks that the prosecutor made just before the grand jury began its deliberations. The prosecutor told the grand jurors:

Prosecutor: [The] grand jury ... [is] not expected to be a mini-trial where the State produces all of the evidence that the State has against the defendants. Your job is to determine whether or not there is enough evidence to show that [the alleged crimes] probably happened.... [Y]our job as a grand juror is to take the evidence ... and determine whether, if unexplained or uncontradicted at trial, it supports the charges and, basically, whether or not there is a probability that this happened.

Cathey argues that the prosecutor’s remarks were a conscious misstatement of the law. Cathey concedes that the appellate courts of this state have never expressly clarified the meaning of Sheldon’s phrase, “probability of guilt”. Nevertheless, in six pages of briefing, Cathey argues that this phrase must mean that the grand jury’s task is to decide whether, based on the evidence presented at grand jury, a trial jury would probably find the government’s case proved beyond a reasonable doubt. And, based on this proposed analysis of Alaska appellate law, Cathey’s appellate attorney asserts that the prosecutor “actively deceive[d]” the grand jurors when he told them that the test was whether Cathey’s alleged crimes “probably happened”.

We reject Cathey’s proposed interpretation of Sheldon because it would have the grand jurors undertake a meaningless exercise. Cathey suggests that the grand jury’s task is to decide whether, more likely than not, the trial jury will find that the evidence presented to the grand jury establishes the defendant’s guilt beyond a reasonable doubt. But a trial jury does not hear the same type of evidentiary presentation that a grand jury hears.

Even assuming that the State presents exactly the same evidence at trial as it did at grand jury (which, in itself, is an unlikely event), the point of the trial is to allow the defendant to confront the State’s witnesses through cross-examination and impeachment, to present defense witnesses, and to argue other possible interpretations of the State’s evidence. In other words, a trial jury rarely hears the government’s evidence without explanation or contradiction. The trial jury’s task is to evaluate the government’s evidence in light of potential contradictions and exculpatory explanations. It therefore makes little sense to ask the grand jurors to predict whether a trial jury would convict the defendant if the trial jury were to hear only the State’s side of the case.

Instead, we conclude that the prosecutor’s remarks to Cathey’s grand jury satisfactorily convey Sheldon’s “probability of guilt” test. Lawyers and judges might still reasonably debate whether Criminal Rule 6(q) establishes a “probable cause” standard or a “more probable than not” standard — or whether these two standards differ in any material way in a grand jury context. But regardless of Sheldon’s precise meaning, Sheldon establishes that the grand jury standard of proof is no more than a preponderance of the evidence — i.e., “more probable than not”. Accordingly, we conclude that the prosecutor at Cathey’s grand jury adequately conveyed the proper test when he told the grand jurors that “[their] job [was] to determine whether or not ... [the alleged crimes] probably happened”.

(We acknowledge that a grand jury must not only determine whether a crime occurred but also whether the defendant is legally accountable for that crime. However, Cath-ey does not attack the prosecutor’s remarks on this ground. Moreover, given the grand jury evidence — in particular, Cathey’s arrest just minutes after the robbery, the victims’ identification of Cathey, and the discovery of the stolen ring in Cathey’s pocket — there was essentially no chance that the grand jury would fail to find that Cathey was one of the men who broke into the apartment.)

We need to address one further point. Even if Cathey’s proposed interpretation of Sheldon had been correct, this would offer no support for Cathey’s accusation that the prosecutor actively deceived the grand jurors. Cathey’s appellate attorney spends six pages of her brief explaining why Sheldon should be interpreted in the way she proposes. This fact inevitably leads to one conclusion: regardless of the proper interpretation of Sheldon, the issue was obviously debatable, and Cathey’s proposed interpretation was only one potential resolution of this point of law. Thus, there is no basis for Cathey’s attorney’s accusation that, when the prosecutor interpreted Sheldon differently, he was actively trying to deceive the grand jurors by knowingly giving them false instructions of law.

We take this opportunity to remind Cath-ey’s appellate attorney, and all other litigators, of the reprimand that the Alaska Supreme Court issued to one of the attorneys in Gregoire v. National Bank of Alaska:

[Appellate counsel] has employed abusive and intemperate language in his brief and has accused the trial court and opposing counsel of unethical and underhanded conduct.... [We reprimand counsel] and admonish[] him to be governed in the future by the rules of court and professional courtesy in his representations to the court and in his references to opposing counsel.

413 P.2d 27, 43-44 (Alaska 1966).

We also caution Cathey’s appellate attorney that, in briefing cases to this Court, she is governed by Alaska Professional Conduct Rule 8.2(a), which declares that “a lawyer shall not make a statement ... with reckless disregard as to its truth or falsity concerning the ... integrity of a ... public legal officer”. In her briefing of this case, Cathey’s appellate attorney has freely accused the grand jury prosecutor of unethical and potentially criminal conduct. These charges are not even colorably supported by the record. We urge her to carefully consider before making similar unfounded charges in the future. See In re Vollintine, 673 P.2d 755 (Alaska 1983), where the supreme court publicly reprimanded an attorney who accused a government official of perjury and who accused opposing counsel of “cheating and lying”.

Cathey’s final attacks on the indictment all concern the sufficiency of the grand jury evidence to support particular charges.

Cathey asserts that the evidence failed to support the charge of third-degree assault on Kimberlee Johnson because the evidence revealed that Johnson actively resisted the robbers and attempted to escape with her rent money. According to Cathey, Johnson’s active resistance shows that she was not afraid of being shot — that she was in fact willing to risk being shot in order to save the rent money — and therefore the State failed to show that Johnson was placed “in fear of imminent serious physical injury” as required by the third-degree assault statute, AS 11.41.220(a)(1)(A).

We recently rejected this same argument in Hughes v. State, 56 P.3d 1088, (Alaska App.2002),. We explained that “fear”, as used in the third-degree assault statute,

does not refer to fright, dread, intimidation, panic, or terror. Rather, a person is “placed in fear” of imminent injury if the person reasonably perceives or understands a threat of imminent injury. It does not matter whether the victim of the assault calmly confronts the danger or quivers in terror. The question is whether the victim perceives the threat.

, Id., at 1090.

Thus, the fact that Johnson had sufficient courage to try to escape with the rent money, and then to struggle with the robbers to retain possession of this money, does not disprove the State’s allegation that she was placed in fear of imminent serious physical injury. The grand jury evidence was sufficient to support Cathey’s indictment on this charge.

Cathey next argues that the evidence was insufficient to support Cathey’s indictment for armed robbery of Justin Heinzer-oth. The issue arises because the police never found the $490 that Heinzeroth said he surrendered to the robbers. Thus, it is arguable that Heinzeroth misstated the facts when he claimed that, in addition to the $300 rent money that the robbers pried from Johnson’s hand, the robbers also made off with an additional $490.

But, as the State points out, Cathey was not indicted for two separate robberies committed on Johnson and Heinzeroth. Rather, Cathey was indicted on one count of first-degree robbery. This count, tracking the language of AS 11.41.510(a), charged Cathey with using or threatening the immediate use of force to take, or attempt to take, property from the immediate presence and control of another. Thus, even if no money was taken from Heinzeroth, Cathey’s use of force to take money from Johnson was sufficient to support Cathey’s indictment for robbery.

Moreover, as we pointed out in McGrew v. State ,

[T]he crime of robbery is committed, not only when a defendant uses force upon the person who possesses the property, but whenever a defendant uses force upon any person with the intent to prevent or overcome anyone’s resistance to the taking, or to compel any person to engage in conduct that might facilitate the taking. Thus, if [a defendant] used force or threatened to use force against [one person] with the intent of preventing or overcoming resistance to the taking of property from [another person], [the defendant] committed robbery.

McGrew, 872 P.2d at 626.

The grand jury evidence showed that Cathey and Afusia broke into the apartment, threatened Heinzeroth with a gun, and demanded money. Even if the robbers only obtained money from Johnson, the grand jury could justifiably conclude that the robbers’ assault on Heinzeroth was intended to “prevent or overcome resistance to the taking of the property or the retention of the property after taking”. Thus, the grand jury evidence would support Cathey’s indictment for robbery even if Cathey and his accomplice got no money from Heinzeroth.

Finally, Cathey argues that the grand jury evidence was insufficient to support Cathey’s indictment for armed robbery (ie., first-degree robbery) as opposed to unarmed robbery (ie., second-degree robbery). But this argument is a replay of Cathey’s claim regarding the 911 call — ie., his claim that Johnson failed to expressly tell the 911 dispatcher that the robbers were armed. We have already explained that, even assuming that Johnson failed to expressly mention the gun to the 911 dispatcher, her omission did not undermine the evidence (ie., Johnson’s and Heinzeroth’s grand jury testimony) that Cathey was armed and that he threatened both victims with the gun. This evidence was sufficient to support Cathey’s indictment for armed robbery.

For all of these reasons, we uphold the indictment.

Cathey’s motion for a new trial

After Cathey was tried and convicted of all the crimes alleged in the indictment, he filed a motion for a new trial. In support of the requested new trial, Cathey presented the testimony of Melanie Blazka. Ms. Blaz-ka testified that, on the afternoon of the robbery, she saw Cathey standing next to the vehicle that was later used by the robbers as their getaway car. According to Blazka, Cathey was alone. Based on Blazka’s testimony, Cathey argued that he must have been the getaway driver (rather than one of the two men who broke into the apartment).

But there were reasons to distrust Blaz-ka’s testimony. According to Blazka, she had met Cathey some eight years before, when they were both living at the McLaughlin Youth Center. Blazka testified that, until the day of the robbery, she had not seen Cathey since their days at McLaughlin, but she conceded that she had renewed her acquaintance with Cathey after he was arrested and jailed for the robbery, and that she had spoken with him frequently since then.

Moreover, the evidence indicated that even if Blazka did see Cathey standing beside the vehicle, this was approximately two hours before the robbery was committed. Based on the series of events that Blazka described (leaving work, stopping at the grocery, and then seeing Cathey on the street), Blazka saw Cathey at about quarter to four in the afternoon. But Johnson called 911 to report the robbery-in-progress at 5:27 p.m. Given this discrepancy, it was quite possible for Cathey to have been standing on the street as Blazka described, and then later to have committed the burglary and robbery as Johnson and Heinzeroth testified.

After hearing Blazka’s testimony, Superior Court Judge Larry D. Card denied Cathey’s motion for a new trial. First, Judge Card concluded that Blazka was not a credible witness. Judge Card next found that, even if Blazka’s testimony was believed, it would not support Cathey’s proposed alibi for the burglary and robbery. The judge found that Blazka’s observation of Cathey on the street occurred some two hours before the burglary and robbery. Moreover, the evidence was strong that Cathey was one of the robbers. As Judge Card noted, both victims described the robber with the gun as having a ponytail and wearing distinctive clothing — descriptions that matched Cathey’s appearance— and Johnson’s ring was found in Cathey’s pocket.

On appeal, Cathey argues that Judge Card was wrong when he found that Blazka was not a credible witness and when he found that, in any case, the timing of Blazka’s observation did not establish an alibi for Cathey. In essence, Cathey claims that Judge Card abused his discretion when he did not view the evidence in the light most favorable to Cathey.

When a judge decides a motion for new trial based on newly discovered evidence, the ultimate question is whether the newly discovered evidence would likely produce a different verdict. Assuming that the defendant establishes diligence in discovering the new evidence, the judge’s task is to assess “the credibility of the newly discovered evidence [as well as the] probable impact of that evidence”. Having reviewed the record in this case, we conclude that Judge Card’s findings regarding the credibility and probative force of Blazka’s testimony are based on reasonable inferences from the evidence. We therefore uphold Judge Card’s ultimate ruling that Blazka’s testimony, if heard at a new trial, either would not be believed or, if believed, would not produce a different verdict.

Conclusion

The judgement of the superior court is AFFIRMED.

      . AS 11.46.300(a)(1), AS 11.41.500(a)(1), and AS 11.41.220(a)(1)(A), respectively.

      . 597 P.2d 154, 164-66 (Alaska 1979).

      . State v. McDonald, 872 P.2d 627, 639 (Alaska App.1994).

      . Sheldon, 796 P.2d at 836-37.

      . Vollintine, 673 P.2d at 756.

      . 872 P.2d 625 (Alaska App.1994).

      . AS 11.41.510(a).

      . Salinas v. State, 373 P.2d 512, 514 (Alaska 1962); Lewis v. State, 901 P.2d 448, 450 (Alaska App.1995); Charles v. State, 780 P.2d 377, 383 (Alaska App.1989).

      . Gonzales v. State, 691 P.2d 285, 287 (Alaska App.1984).