author: TAYLOR, Justice, Retired.

text:
    John A. TAYLOR, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 97-215.
    Supreme Court of Wyoming.
    May 26, 2000.

      Representing Appellant: Sylvia L. Hackl, State Public Defender; Donna Domonkos, Appellate Counsel; Karl Linde, Assistant Appellate Counsel; and T. Alan Elrod, Assistant Counsel.
    Representing Appellee: William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR, JJ.

       Chief Justice at time of oral argument; retired November 2, 1998.

   TAYLOR, Justice, Retired.

Following a bench trial, appellant was found guilty of possession of a deadly weapon with intent to unlawfully threaten the life or physical well-being of another in violation of Wyo. Stat. Ann. § 6-8-108 (Lexis 1999). Appellant challenges the sufficiency of the charging information, the constitutionality of the warrantless seizure of firearms and ammunition from his home/business, and the sufficiency of the evidence pointing to intent at trial, We affirm in part and reverse in part.

I. ISSUES

Appellant, John A. Taylor (Taylor), presents four issues which, in essence, are reiterated by appellee, State of Wyoming:

1. Whether the trial court lacked jurisdiction over this case because neither the information nor its supporting documents specifically identified the victim, the State actively withheld the victim's identity, and the appellant did not have actual notice of who the victim was?
2. Whether the evidence presented at trial was insufficient as a matter of law to prove that appellant had the intent to threaten another under Wyo. Stat. § 6-8-1083 where appellant, while possessing a non-concealed weapon, walked into the Lander City Attorney's offices, served an attorney with documents from a civil action, said "You've had your fun, now it's my turn," and walked away?
3. Whether Lander police officers unconstitutionally seized personal items from appellant's home that were not described in the search warrant, and whether these items should have been returned to appellant when he moved for their return pursuant to W.R.Cr.P. 4l(e)?
4. Whether the district court imposed an illegal sentence when it ordered a forfeiture of appellant's property when this punishment is not mandated under Wyo. Stat. § 6-8-1087

II. FACTS

The series of events which led to Taylor's arrest began when Taylor threw tree branches into his neighbor's yard and was subsequently cited for littering. In response, Taylor filed a civil suit against various entities, including the City Attorney for Lander. On Friday, November 1, 1996, the district court granted the City Attorney's motion for summary judgment, and ordered Taylor to pay costs and attorney fees for filing a frivolous suit. On Monday, November 4, 1996, Taylor, who had represented himself in the civil suit, visited the offices of Mr. Gingery, the assistant city attorney, and Mr. Sollars, Mr. Gingery's supervisor.

At approximately eight o'clock that morning, Gingery and Sollars were having a cup of coffee in the office kitchen when they saw Taylor's car approach. Stating something to the effect that, "he didn't want to deal with John that morning," Sollars went into his office. Gingery walked down the hallway and met Taylor in the lobby. Taylor, carrying a weapon resembling an Uzi strapped to his shoulder, handed Gingery two documents, and stated, "You've had your fun; now it's my turn." Taylor then left the office.

The documents were two "pleadings" filed with the district court and bearing the number of the dismissed civil lawsuit. One was titled "Declaration of War" (Declaration) and the other, "Notice of Lack of Jurisdiction" (Notice). The Declaration, in pertinent part, stated that "[a] state of war now exists between John A. Taylor and the totalitarian city, state and federal government * * *." The Declaration further threatened retaliation against Taylor's neighbors, stated that no future court summonses would be answered or honored for any reason, and that the exercise of " 'court authority' will be considered an act of aggression." The Notice asserted that Taylor would not answer to any "unconstitutional, totalitarian court."

After Taylor left, Gingery went to Sollars' office and the two read the documents. Gingery then called the police. Officer Cecrle of the Lander Police Department responded to the call at approximately 8:20 a.m., meeting with Gingery and Soliars, both of whom seemed very upset. After hearing the account of Taylor's visit, Officer Cecrle made copies of the Declaration and Notice and notified others of the contents, including Taylor's neighbors named in the Declaration. Officer Ceerle then went to Taylor's home/business at approximately 10:45 a.m. Taylor was in the front yard, but walked quickly to the front door when the officer approached. A few seconds later, Taylor reappeared in the front door, staring at Officer Cecrle. Feeling that it was tactically unsafe to approach any further, Officer Ceecrle returned to the police department and attempted to telephone Taylor. Taylor, however, refused to talk. Officer Cecrle then obtained an arrest warrant and a warrant to search Taylor's home/business and car for "an Uzi-type" weapon.

At about 4:80 that afternoon, Taylor was arrested outside his home/business. A search pursuant to the warrant began five or six minutes later,. As the officers entered the front door, on a shelf approximately one step away from the door where Taylor had stood looking at Officer Ceerle earlier in the day, lay a loaded "Uzi-type" 9 millimeter semiautomatic pistol. Nearby, officers found two 30-round magazines taped together for quick loading and a bag of loose ammunition for the weapon. The search continued, revealing a loaded AR-15 assault rifle hanging by the back door, with additional ammunition located within steps of the rifle. Proceeding to the bedroom, officers found a 45 Colt Ruger Blackhawk revolver, holster and belt holding rounds of ammunition, a knife sheath and a Bowie knife. At the foot of the bed, additional ammunition for the assault rifle was found. In all, police seized three weapons and approximately 4,179 rounds of ammunition.

The Information charging Taylor with possession of a weapon with intent to unlawfully threaten another did not name a victim, but the supporting affidavit mentioned both Sol-lars and Gingery. Prior to trial, Taylor moved the district court to dismiss the case for lack of a named victim or, in the alternative, for a Bill of Particulars. Taylor also moved to suppress and return to him all items seized that were not listed in the search warrant. After a hearing on these motions, the district court denied the motion to dismiss, finding that Taylor had adequate notice of the victim by virtue of the State's witness and exhibit lists and other pleadings on file. The district court also denied the motion to exclude the seized evidence not specifically identified in the warrant.

Following a bench trial in which the prosecution submitted only the first weapon found in the search, the district court found Taylor guilty of one count of possession of a deadly weapon with the unlawful intent to threaten another. He was sentenced to not less than two nor more than four years in the Wyoming State Penitentiary. In addition, the weapons, ammunition, and other evidence seized from Taylor's residence were "forfeited to the City of Lander Police Department for such disposition as the Department finds appropriate." This appeal followed.

III. STANDARD OF REVIEW

The factual findings of the district court at the hearing on the motion to suppress are binding on our Court unless they are clearly erroneous. Callaway v. State, 954 P.2d 1865, 1369 (Wyo.1998). The constitutionality of a particular search or seizure is a question of law that we review de novo. Id.; Burgos-Seberos v. State, 969 P.2d 1181, 1183 (Wyo.1998). Similarly, whether the sufficiency of an information passes constitutional muster under the Sixth Amendment to the United States Constitution and Wyo. Const. art. 1, § 10 is a question of law subject to de novo review. See Vernier v. State, 909 P.2d 1344, 1850-51 (Wy0.1996). In reviewing sufficiency of the evidence claims, we determine whether the evidence is adequate to support a reasonable inference of guilt beyond a reasonable doubt, viewing the evidence in the light most favorable to the state. Rogers v. State, 971 P.2d 599, 601 (Wyo.1999).

IV. DISCUSSION

A. SUFFICIENCY OF THE INFORMATION

Taylor claims the charging information was insufficient because it did not identify the victim of the alleged act. Taylor further contends that the State actively concealed the identity of the victim by refusing to designate either Gingery or Sollars as the victim of the crime. He concludes that under our holding in Walker v. State, 847 P.2d 542 (Wyo.1993), the omission of a specific victim's name in connection with the deliberate conduct of the prosecution constitutes reversible error. In response to Taylor's motion to dismiss or for a Bill of Particulars, the prosecution stated that "Defendant has actual knowledge of the identity of the victim." The district court agreed, finding that the information and pleadings in this case adequately informed Taylor of the charges against which he must defend.

-In Walker, we held that the failure to inform the defendant of the identity of the victims in two counts of indecent liberties until the end of the presentation of evidence at trial was reversible error. Walker, 847 P.2d at 545. Later decisions, however, have clarified that it is not merely the lack of the victim's identity, but the prejudice suffered by the defendant which determines whether reversal is warranted on the basis of insufficiency of the information. Lowseth v. State, 875 P.2d 725, 728 (Wyo.1994); McDermott v. State, 870 P.2d 339, 348 (Wyo.1994).

An information is sufficient when it contains the elements of the offense charged, fairly apprises the defendant of the charges against which he must defend, and affords protection against the risk of double jeopardy in the event of conviction. Vernier, 909 P.2d at 1851-52. Taylor was charged with one count of violating Wyo. Stat. Ann. § 6-8-103, which provides, in relevant part:

A person who knowingly possesses * * * a deadly weapon with intent to unlawfully threaten the life or physical well-being of another * * * is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than one thousand dollars ($1,000.00), or both.

The amended information provided:

1. On or about November 4, 1996;
2. In Fremont County, Wyoming;
3. The defendant, John A. Taylor;
4. Knowingly did possess or transport;
5. A deadly weapon;
6. With intent to unlawfully threaten the life or physical well-being of another(.]

The affidavit completed by Officer Ceerle in support of the search warrant which recounts Taylor's visit to the City Attorney's office concludes: "Sollars and Gingery stated that they felt that the Declaration of War and the display of the weapon by TAYLOR were threatening and were concerned about their safety." Officer Cecrle's report reiterated that both Sollars and Gingery "were visibly shaken and worried about their safety," and stated that the documents handed to Gingery "threatened public employees and [Taylor's] neighbors." The State's Witness and Exhibit Lists named both Gingery and Sollars as potential witnesses along with others.

Taylor claims that because he was charged with only one count, his knowledge of the identity of two possible victims was not sufficient notice to prepare his defense. We disagree. The information provided Taylor with notice of the need to provide a defense to Wyo. Stat, Ann. § 6-8-1083 and Taylor knew the names of the two possible victims. At the motion hearing, the State confirmed that both Gingery and Sollars were considered victims of the crime, stating: "The State's position is that this defendant was upset with the City Attorney's office, with the system as a whole. He went to an office where Mr. Sollars and Mr. Gingery conduct the business of the City Attorney. The individual that he confronted in that office was Mr. Gingery."

Thus, the question is not whether Taylor was aware of the identity of the vie-tims, but whether the State could include two victims in one count. We find no prejudice to Taylor by the State's actions in this case. The charged conduct of Taylor was a single transaction with the alleged intent to unlawfully threaten those in a position of authority at the City Attorney's office. Two people were in such a position. Although the prosecutor could have charged two counts of the crime, he chose to limit the case to a single count. See Vigil v. State, 568 P.2d 1344, 1358 (Wyo.1977) (there is no constitutional prohibition against legislation which provides for multiple erimes arising from single acts against multiple victims). Thus, to prove the charge, the State needed to demonstrate specific intent against at least one, if not both, of the victims.

Taylor's defense rested solely on the contention that the evidence could not establish his intent to unlawfully threaten anyone. Given this position, Taylor fails to demonstrate how the identification of two possible victims hindered, altered, or unduly burdened his defense. State v. Kyles, 221 Conn. 6483, 607 A.2d 355, 361-62 (1992); State v. Bradley, 811 S.W.2d 879, 381-82 (Mo.1991). Moreover, this is not a case in which the presence of two victims presented a possibility of a non-unanimous jury verdict. See State v. Stephens, 98 Wash.2d 186, 607 P.2d 804, 305-06 (1980) (charges of assault against two victims in the disjunctive not harmless error because jurors could have found guilt if six jurors convicted for the assault of one victim, and six the other). Taylor's waiver of his right to a jury resulted in there being but one person sitting in judgment of Taylor's guilt or innocence. Since Taylor fails to show prejudice in the State's identification of two victims in one count, we find no jurisdictional defect in the information and no error in the district court's denial of a motion for a Bill of Particulars.

B. Surpiciency or tks EvipENCE

In his second issue, Taylor argues that the evidence at trial was insufficient to prove he carried the firearm into the City Attorney's office with the intent to threaten the life or physical well-being of another. Recognizing that we must view the evidence in the light most favorable to the State, Taylor maintains that the only facts substantiating his intent were: (1) his possession of a weapon which hung from a shoulder strap (which Taylor did not wave, nor did he place his hand on the trigger); (2) while serving "court documents;" (8) his statement that it was now his turn to have fun; and (4) walking away. He contends that this evidence is insufficient to show that he intended to threaten to use the weapon to harm anyone. This argument fails to account for significant facts developed at trial.

"The mind of an alleged offender may be read from his acts, his conduct, his words and reasonable inferences which may be drawn from the cireumstances of the case. To hold otherwise would create an impossible burden in a case requiring specific intent."

Lopez v. State, 788 P.2d 1150, 1153 (Wyo.1990) (quoting Schiefer v. State, 774 P.2d 133, 135 (Wyo.1989)).

Taylor's renter testified that Taylor was very angry over the dismissal of his civil case, and that he had never seen Taylor wearing the assault weapon until Taylor intentionally armed himself for his trip to the City Attorney's office. The "court documents" referenced by Taylor were, in fact, a Declaration of War presented to Gingery while Taylor's hand rested on the stock of his weapon. The contents of the Declaration written by Taylor stated that "(al state of war now exists between John A. Taylor and the totalitarian city, state and federal government;" that any "exercise of 'court authority' will be considered an act of aggression;" and the Notice stated that "[tlhere is not [sic] doubt as to the course of action left."

Taylor contends that the contents of the documents cannot be evidence of a threat since Gingery did not read the documents until Taylor left the building, and similarly claims that the presence of the gun, without some threat to use it immediately, is not evidence of a threat,. This argument mistakenly equates the element of Taylor's intent to threaten with the completion of an actual threat. In this case, the evidence was sufficient to prove beyond a reasonable doubt that the cireumstances surrounding Taylor's actions and words constituted an intent to unlawfully threaten Gingery.

C. Suppression anp Return or Items SEizEDp BY Law ENFORCEMENT

Taylor claims the execution of the search warrant exceeded constitutional limits - when officers seized weapons and ammunition not specified in the warrant violating the Fourth Amendment to the United States | Constitution and Wyo. Const. art. 1, § 4. Taylor also challenges the district court's denial of his request to have these items returned.

Taylor acknowledges that objects in plain view may be seized, assuming there is probable cause to associate the property with criminal activity, even though those items are not listed in the warrant. Jones v. State, 902 P.2d 686, 692 (Wyo.1995); McDermott, 870 P.2d at 345. Taylor maintains, however, that the plain view doctrine does not apply in this case. He argues that onee the officers located the object of the search, they were not lawfully entitled to continue to search the premises. In the alternative, Taylor argues that if the officers were entitled to be on the premises when they saw the weapons and ammunition, they had no probable cause to believe that these items were associated with criminal activity. We agree with Taylor that the purpose of the search was completed when the first weapon was found at the front door, and, therefore, the officers had no authority to continue a search of the property.

In Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990), the United States Supreme Court set forth three requirements for valid seizure of evidence in plain view: (1) the officer must not have violated the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed; (2) the incriminating character of the evidence must be immediately apparent; and (8) the officer must have a lawful right of access to the object itself. "[The 'plain view' doctrine cannot be used to expand the scope of a legal search-there must be 'serupulous adherence' to the requirement that the search be limited to the time and place necessary to find the items listed on the warrant." United States v. Menon, 24 F.3d 550, 560 (3rd Cir.1994) (quoting Horton, 110 S.Ct. at 2309) (emphasis added).

Where a warrant describes only a specific object, and it is found, "the purposes of the warrant have been carried out, [and] the authority to search is at an end." 2 Wayne R. LaFave, Search and Seisurs, § 4.10(d) at 678 (1996); see also United States v. Feldman, 366 F.Supp. 356, 364 (D.Hawai'i 1973); United States v. Highfill, 334 F.Supp. 700, 701-02 (E.D.Ark.1971); People v. Muniz, 198 Colo. 194, 597 P.2d 580, 582 (1979); Awaya v. State, 5 Haw.App. 547, 705 P.2d 54, 59-60, cert. denied, 67 Haw. 685, 744 P.2d 781 (1985); and State v. Starke, 81 Wis.2d 399, 260 N.W.2d 739, 747 (1978).

The Fourth Amendment directly expresses that "no Warrants shall issue, but upon probable cause, * * * particularly describing the place to be searched, and the * * * things to be seized." (Emphasis [in originall].) A general search is not permitted; officers executing a warrant are authorized to seize only the property described. * * * In Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 23
"The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant de-seribing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant."

Hall v. State, 911 P.2d 1364, 1369 (Wyo.1996). In this case, the search warrant stated the officers were authorized to search Taylor's car or business for property, "namely: gun that resembles an 'Uzi.' "

At the hearing on the motion to suppress the seized guns and ammunition apart from the first weapon discovered by the officers, Officer Cecrle conceded that none of the other items seized could be seen from the place where the first gun was found. It was also clear from the affidavit supporting the search warrant that only one "Uzi-type" weapon was used by Taylor, and only one was listed on the warrant itself. The State's attempts to justify the continuation of the search are not convincing.

At the motion hearing, the following explanation was proffered by Officer Ceecrle:

It's standard procedure in police searches, when you find a piece of evidence that appears to match the description but is not completely or totally convincing that that is the only thing that could match that description, you continue to search and make sure that there is not a second or third item in that premise that may also resemble-in other words, there may have been two weapons that were identical other than the color of the strap. So it became incumbent on us, to continue to search in case there were other weapons.

Notable by its absence is any explanation for the officer's belief that the first gun resembling an Uzi was not "completely or totally convincing," and, further, "there may have been two weapons that were identical * * *." A constitutional search is based on probable cause; there must be some valid reason to continue the search after the object identified in the warrant is found. See Callaway, 954 P.2d at 1370 (deputy sheriff had probable cause to believe that the other stolen bottle was secreted at some unspecified location within the appellant's automobile, and he could legally continue his search). Otherwise, every search could continue even though the purpose of the warrant had been achieved.

The State cites to Menon, 24 F.3d 550 to support the lawfulness of continuing the search after the seizure of the first weapon. In Menon, 24 F.3d at 559, a warrant authorized the search of the defendant's office and the desk of a secretary for "[oJriginals and copies of blank invoices bearing the name of Abad Fisheries." During the search of the secretary's desk, an agent discovered a file marked Abad Fisheries The agent then continued the search and found other incriminating documents. Id. The Third Circuit Court of Appeals concluded that it was reasonable for the agent to continue to search the desk after finding the Abad Fisheries file, stating, "[alny reasonable agent looking for evidence in a clearly circumscribed area would continue the search until she was certain that no more evidence existed which could not happen until the entire desk was searched." Id. at 560. The facts in Menon, however, contain a critical distinction. There, the warrant did not describe one particular item, but authorized a search for an unspecified number of documents of a certain type. Further, the area searched was "clearly cireumseribed," as opposed to the search in this case, which continued throughout Taylor's property.

The State hypothesizes that the limitation of the search in this case would "require, for example, that officers executing a warrant for marijuana terminate their search immediately upon the discovery of a single joint." This argument ignores the distinction between specified property and property of a specified character:

" '[ Where the purpose of the search is to find specific property, it should be so particularly described as to preclude the possibility of seizing any other. On the other hand, if the purpose be to seize, not specified property, but any property of a specified character, which, by reason of its character and of the place where and the cireumstances under which it may be found, if found at all, would be illicit, a description, save as to such character, place, and cireumstances, would be unnee-essary and, ordinarily, impossible; as, for instance, where the search is ordered for dies for the counterfeiting of money, or for opium, or gambling devices, or lottery tickets, or intoxicating liquors, alleged to be held in possession unlawfully, and the same is true though the illegality may consist in the intended use rather than the mere possession of the property.""

State v. Weber, 548 So.2d 846, 848 (Fla.App.1989) (quoting Carlton v. State, 449 So.2d 250, 252 (Fla.1984) and North v. State, 159 Fla. 854, 857, 32 So.2d 915, 917 (1947)).

Were there cause to believe that more than one gun resembling an Uzi might be found on Taylor's property, then the warrant should have so stated. It did not. Neither is this a case where a "one-means-more" inference is permissible. See 2 Wayne R. LaFave, supra, § 8.7(d) at 890. We find the officers were not entitled to continue the search after finding the item identified in the warrant, and, therefore, they were not lawfully on the premises when the other items came into view. Consequently, the remainder of the seized items should have been suppressed.

The unlawful seizure of Taylor's property, however, is not grounds for reversal, The only firearm introduced into evidence at Taylor's trial was the first weapon seized-the 9 millimeter semiautomatic assault pistol actually used in the commission of the crime. Because this item was lawfully seized under the warrant, there was no prejudice to Taylor as a result of the failure of the district court to suppress the remaining items, and the conviction is affirmed.

D. Return or tus Weapons anp AmmuntTION

Having found that, except for the first item seized by the officers, the other items were not lawfully seized, we now turn to Taylor's claim that the district court erroneously failed to return the property at Taylor's request during the suppression hearing. W.R.Cr.P. 41(e) provides, in pertinent part:

(e) Motion for return of property. -A person aggrieved by an unlawful search and seizure * * * may move the court in which charges are pending * * * for the return of the property on the ground that such person is entitled to lawful possession of the property.

(Emphasis added.) The State contends that under 18 U.S.C. § 922(n) and (d)(1), Taylor's pending felony charge rendered his possession of the weapons illegal. 18 U.S.C. § 922(n) provides:

(n) It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

We do not find this provision applicable to Taylor. The record is silent with respect to whether the weapons had been shipped or transported in interstate or foreign commerce. However, we agree that 18 U.S.C. § 922(d)(1) prevented the return to Taylor of the illegally seized items. 18 U.S.C. § 922(d)(1) states that it is "unlawful for any person to sell or otherwise dispose of" any firearm or ammunition to any person who is under indictment or convicted of a crime punishable by imprisonment for a term exceeding one year. Since Taylor's pending charge fell within the prohibitions of this section, Taylor could not lawfully demand the return of the firearms and ammunition.

The same reasoning applies to Taylor's second request for return of these items at sentencing. As a convicted felon, Taylor was not entitled to possess firearms or ammunition. 18 U.S.C. § 922(g); see also United States v. Bagley, 899 F.2d 707, 708 (8th Cir.1990), cert. denied, 498 U.S. 938, 111 S.Ct. 343, 112 L.Ed.2d 307 (1990). Therefore, the district court did not err in ordering these items to remain in the possession of law enforcement, subject to Wyo. Stat. Ann. § 7-2-105 (Lexis 1999). We note, however, that at least one item seized, the Bowie knife, does not fall into the category of weapons prohibited by federal law. Therefore, the Bowie knife should be returned.

V. CONCLUSION

Taylor's conviction is affirmed. The seizure of all firearms and ammunition, except for the first gun, exceeded the scope of the warrant, but the district court's error in denying suppression of these items was harmless. Pursuant to Taylor's request under W.R.Cr.P. 41(e), all items illegally seized that do not fall within the prohibitions of 18 U.S.C. § 922 shall be returned to Taylor.


source: Caselaw Access Project

author: LEHMAN, Chief Justice. THOMAS, Justice,

license: Public Domain

text:
    Stanley SEIVEWRIGHT, III, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 98-56.
    Supreme Court of Wyoming.
    May 31, 2000.

      Representing Appellant; Sylvia Lee Hackl, State Public Defender; Donna Do-monkos, Appellate Counsel; and T. Alan El-rod, Assistant Public Defender. Argument by Mr. Elrod.
    Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Assistant Attorney General. Argument by Ms. Baker.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   LEHMAN, Chief Justice.

A Natrona County jury found Stanley Seivewright III guilty of conspiracy, aggravated robbery, and aggravated burglary. On appeal, Seivewright's complaints revolve around the testimony of an orthodontist who concluded Seivewright had taken a bite from a piece of cheese found in the victim's kitchen. His chief complaint is that, despite repeated discovery requests, the State did not disclose the orthodontist's report and curriculum vitae. Because we conclude that the district court erred in failing to take any action to determine whether its discovery order had been violated, we reverse and remand for a new trial.

ISSUES

Seivewright presents the following issues:

Did discovery violations and evidentiary errors deny Appellant a fair trial?
a. Did the State's failure to disclose information about an orthodontist which the State proffered as an expert deprive Appellant of his right to confront the witnesses against him through effective cross-examination?
b. Did the district court's failure to hold an evidentiary hearing on Dr. Huber's testimony deprive Appellant of a fair trial as it invited the jury to convict Appellant based on inadmissible evidence?
c. Can the combined prejudice of the State's refusal to abide by the district court's discovery order and the district court's erroneous rulings be dismissed as harmless error?

The State of Wyoming restates the issue:

Whether appellant received a fair trial?

FACTS

The victim testified to the following events. Around 9 a.m. on October 28, 1996, two masked men entered the Casper home of the victim as she and her two-year-old daughter watched television. The shorter of the two men pointed a gun at the victim and did the talking, asking the victim where her "stuff" was. When the victim proved uncooperative, the shorter man taped the victim's hands together with duct tape while the taller man held a gun. After the victim managed to break free from the initial taping, the shorter man then alternated between hitting the vice-tim, taping her, and telling her to shut up. The shorter man also held a gun to the back of the victim's head and pulled the trigger. Although the victim heard a click, no bullet fired. The taping job was finally completed when the men taped the victim's head and hands to the headboard of her bed.

After the intruders left, the victim freed herself and telephoned the police. Her home had been ransacked, though it seemed only her wallet, containing $700, was missing from inside the home. Gone, too, was the victim's van, which was recovered a few days later. The victim also noticed, on a kitchen counter, a block of cheese with a bite taken out of it. The victim reported that no one in her family was responsible for the bite of cheese, and the block of cheese was taken into evidence.

After an investigation, Seivewright was arrested on November 21, 1996, and charged with aggravated burglary, aggravated robbery, and conspiracy. A search warrant issued permitting law enforcement to obtain a dental impression (dentition) from Seive-wright, and the State retained Dr. Emerick Huber, a local orthodontist, to take Seive-wright's dentition and to make an impression from the cheese.

Identity was the main issue at the trial of Seivewright and his codefendant. Over Seivewright's objection, Dr. Huber testified. On the basis of his comparison of the impressions from the cheese with Seivewright's dentition, Dr. Huber concluded that Seivewright was the person who bit the cheese. Seive-wright offered no expert testimony on the subject.

The jury found Seivewright guilty of aggravated robbery, aggravated burglary, and conspiracy. The jury could not reach a unanimous verdict on the same charges against Seivewright's codefendant, and a hung jury resulted on all three charges. The jury further determined that Seivewright is a habitual criminal, and he was sentenced to a term of 20 to 25 years. This appeal followed.

DISCUSSION

Discovery Violations

Seivewright argues the State failed to disclose Dr. Huber's report and curriculum vitae, materials Seivewright contends were discoverable pursuant to a district court order. The district court's discovery order directed "[plursuant to Rule 26.2 of the Wyoming Rules of Criminal Procedure, to be produced before trial begins, any written or recorded statement of a witness ... in the possession of the attorney for the State of Wyoming or which the attorney for the State of Wyoming may reasonably obtain and which relate to the subject matter about which the witness ... will testify."

Prior to trial, Seivewright filed a "Motion for Daubert[] Hearing," which, in addition to requesting a hearing on the admissibility of expert testimony, requested "discovery related to this issue such as any reports, calculations, tests, examinations, and any other information this doctor used in arriving at his conclusions, as well as a copy of this doctor's curriculum vitae." The trial court did not rule on this request for discovery, and the State did not reply to the request. The State correctly points out that Seivewright did not schedule a pretrial hearing with the trial court for consideration of these matters. However, immediately before Dr. Huber testified, Seivewright requested a hearing to clarify what Dr. Huber's testimony would be and demanded the documents he requested in his pretrial motion. Specifically, Seive-wright's counsel informed the court that, despite repeated requests to the prosecutor, he had not received a copy of Dr. Huber's curriculum vitae. Without argument from the State, the trial court denied Seivewright's motion and allowed the State to proceed with Dr. Huber's testimony "subject to objections to particular questions." After Dr. Huber completed his trial testimony, Seivewright moved to strike Dr. Huber's testimony, arguing the State failed to provide him with the report or the curriculum vitae in violation of the discovery order. The trial court denied this motion, without explanation.

The district court's failure to do anything to determine if there was a discovery violation is contrary to our case law and that of other jurisdictions which have considered the proper procedure for determining whether a statement or report of a State's witness should be produced upon demand by the accused. We have written:

Although a defendant cannot obtain a review or combing of any or all reports having to do with interviews of witnesses, he is entitled to the production of a specific "statement." If he makes a prima facie showing of a probable existence of a specific document but the State either denies its existence or that it is a "statement" within the definition of the rule, the trial court has the duty to determine such issues by in camera inspection or otherwise.

Hubbard v. State, 618 P.2d 553, 556 (Wyo.1980) (citing U.S. v. Nickell, 552 F.2d 684, 688 (6th Cir.1977)) (court has "inherent power to require the prosecution to produce [witness statements] so that the defense may get the full benefit of eross-examination and the truth-finding process may be enhanced.") (quoting U.S. v. Nobles, 422 U.S. 225, 231, 95 S.Ct. 2160, 2166, 45 L.Ed.2d 141 (1975); Harney v. U.S., 306 F.2d 523, 533 (1st Cir.1962); U.S. v. Robinson, 585 F.2d 274, 280-81 (7th Cir.1978) (once defendant meets burden of specifying with reasonable particularity that a certain document exists, that there is reason to believe it is a "statement," and that the government failed to provide it in violation of the Jencks Act, "a court must then conduct an in camera inspection to determine whether the document is both relevant and a competent 'statement.'"); U.S. v. Resnick, 483 F.2d 354, 358 (5th Cir.1978); Jordan v. U.S., 633 A.2d 373, 375 (D.C.App.1993) (The defendant has the burden of moving for production and is entitled to eross-examine witnesses to probe for the information. "The trial judge has the affirmative duty to determine, out of the presence of the jury, whether statements exist and are in the possession of the government, and if so, whether they qualify as statements under the [Jencks] Act." The trial court must conduct whatever inquiry is necessary to aid the judge in discharging this responsibility to enforce the statute. "The duty to determine whether a statement ... exists 'rests with the trial judge; neither party bears a burden of proof or persuasion that may skew the result.'"); Annotation, Proper Procedure for Determining Whether Alleged Statement or Report of Government Witness Should be Produced on Accused's Demand, Under Jencks Act (18 U.S.C. § $500), 1 A.L.R. Fed. 252 (1969).

Seivewright made a "prima facie showing" of the probable existence of two statements, the report and the curriculum vitae, in his pretrial motion and again at trial. At the trial court level, the State neither denied their existence nor argued they were not statements within the definition found in W.R.Cr.P. 26.2. The documents were clearly in existence or reasonably obtainable before the discovery deadline. The State attempted to have the doctor's March 4, 1997 signed report admitted into evidence, and the doctor repeatedly referred to the report during his testimony. The doctor also admitted he had a curriculum vitae but failed to send it to the State. In addition, there is strong reason to believe both the curriculum vitae and the report are material statements under the rule because both could qualify as "written statement[s] ... adopted or approved by the witness." W.R.Cr.P. 26.2(F). In the case of an expert witness, in which qualifications go to both admissibility and weight, a vitae is material information by which the opposing party's counsel can challenge the expert's qualifications and credibility. See, e.g., U.S. v. Mannarino, 850 F.Supp. 57, 63 (D.Mass.1994) (informant's handwritten list of criminal history is a "statement"). - A signed report including measurements, observations, and conclusions can likewise be used to impeach the expert's analysis and conclusions. But cf. Fortner v. State, 932 P.2d 1283, 1286-87 (Wyo.1997) (decided under W.R.Cr.P. 16; no evidence supported defendant's claim that expert conducted tests or experiments). When a district court fails to consider a defendant's claim that the State is violating a discovery order and, therefore, the rules of criminal procedure, it fails to perform its duty. Hubbard, 618 P.2d at 556. When Seivewright moved for production of the statements, the trial court had a duty to determine, by in camera inspection or otherwise, whether the documents should be produced.

In accordance with W.R.Cr.P. 26.2, if a party elects not to comply with an order to deliver a statement, the district court has three options for sanctioning that behavior. The rule requires that the trial court "shall order" (1) that the witness not be permitted to testify; or (2) that the testimony of the witness be stricken from the record; or (8) if the attorney for the State elects not to comply, the court shall declare a mistrial if required in the interest of justice. W.R.Cr.P. 26.26). The rule is mandatory in all respects; it does not allow the district court any discretion to refuse to act in the face of uncontradicted allegations of discovery violations in a criminal prosecution. Allowing Seivewright to object to "particular questions" at trial is not one of the sanctions mandated by the rule. Thus, it cannot be argued that the district court's ruling was within the parameters of the rule despite its failure to determine if the discovery order had been violated.

When Seivewright alleged the State failed to comply with W.R.Cr.P. 26.2, the district court should have ordered the State to submit the documents for in camera inspection or held a hearing to determine whether the report and the curriculum vitae fell within the purview of the rule or the pretrial discovery order. Failure to take any action at all violated the rule and was reversible error.

Before moving on, we must address an issue raised at oral argument before this court. In the process of moving to strike Dr. Huber's testimony, Seivewright's counsel informed the district court that, while he had never been provided a copy of Dr. Huber's report, he had received a letter stating Dr. Huber's conclusions. At oral argument in this court, the State asserted that the report and the letter to counsel were alternate terms used to describe the same document. However, we have neither the letter nor the report before us to verify this assertion. If counsel believed assertion of that fact was necessary at oral argument, the record should have been supplemented by the State in accordance with W.R.A.P. 8.04. No motion to supplement the record was made.

Confrontation Clause

Seivewright also contends the State's failure to provide discovery of Dr. Huber's report and curriculum vitae deprived him of his constitutional right to confrontation. Because we are confident that, upon reversal, the district court will require compliance with its discovery order, this issue will not arise again, and we need not address it here.

Expert Testimony

Seivewright complains the district court erred in failing to grant a hearing to determine the admissibility of Dr. Huber's testimony. When determining the admissibility of expert testimony, the district court's gatekeeping function requires it to perform several duties:

First, the district court must determine whether the methodology or technique used by the expert to reach his conclusions is reliable. If so, the court must determine whether the proposed testimony "fits" the facts of the particular case.

Bunting v. Jamieson, 984 P2d 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 Bunting v. Jamieson, we cited Daubert's non-exclusive list of four criteria to be used to guide the trial court's assessment of reliability: 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) its known or potential rate of error along with the existence and maintenance of standards controlling the technique's operation; and 4) the degree of acceptance within the relevant scientific community. Bunting v. Jamieson, 984 P.2d at 472. These criteria, however, cannot be applied in every case: "[the initial step in reviewing the admissibility of expert testimony is the determination whether the Daubert factors apply to the specific testimony at issue. Where they are reasonable measures of reliability, these factors should be considered." Id. at 475. We also emphasized that methodology

should be distinguished from the conclusion of the expert. 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.

Id. at 472-78.

In performing our review, it is well established that the decision of the district court to admit or reject expert testimony is a decision solely within that court's discretion. Springfield v. State, 860 P.2d 435, 438 (Wyo.1993); Betsle v. State, 847 P.2d 1010, 1022 (Wyo.1993); Braley v. State, 741 P.2d 1061, 1064 (Wyo.1987). Recently, we expanded on that standard of review.

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. That standard applies as much to the trial court's decisions about how to determine reliability as to its ultimate conclusion.... Thus, whether Daubert's specific 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.

Bunting v. Jamieson, 984 P.2d at 470 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1176, 148 L.Ed.2d 238 (1999)). "Otherwise, the trial judge would lack the discretionary authority needed both to avoid unnecessary 'reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. at 1176. The district court's decision to decline to hold a reliability hearing is therefore reviewed for an abuse of discretion. Id.; U.S. v. Charley, 189 F.3d 1251, 1266 (10th Cir.1999); U.S. v. Nichols, 169 F.3d 1255, 1262-63 (10th Cir.1999).

Because Seivewright's motion for a Daubert hearing provided the district court with little reason to hold an evidentiary hearing to analyze Dr. Huber's testimony, we find no abuse of discretion in the district court's refusal to hold such a hearing. Seivewright's motion provided the district court neither with authority to establish the methodology or technique being applied was unreliable nor did it assert that another expert would refute reliability. In short, Seivewright did nothing more than boldly assert that Dr. Huber's testimony was unreliable. Under these circumstances, we conclude there was no abuse of discretion in the district court's refusal to hold a Daubert hearing.

Our conclusion on this issue requires examination of the scientific principle being applied. Bite mark identification is based on the theory of uniqueness. "Identification of a suspect by matching his dentition with a bite mark found on the victim of a erime [or a substance] rests on the theory that each person's dentition is unique." 1 Paul C. Giannelli and Edward J. Imwinkelried, Scientific Evidence, p. 583 (3rd ed.1999); State v. Jones, 273 S.C. 723, 259 120, 124 (1979). Although several methods of bite mark analysis have been reported, "[all methods involve three steps: (1) registration of the bite mark and the suspect's dentition, (2) comparison of the dentition and bite mark, and (8) evaluation of the points of similarity or dissimilarity." Imwinkelried at 585.

Seivewright does not seriously contend that bite mark identification is not a proper subject for expert testimony. Indeed, the courts faced with this question have unanimously concluded that bite mark comparison is a proper subject for expert testimony. See Annotation, Admissibility of Evidence Tending to Identify Accused by His Own Bite Marks, 77 A.L.R.3d 1122 (1977 & 1999 Supp.). While the majority of cases involve flesh bites, courts have also approved bite mark identification in cases involving various foods. See State v. Ortiz, 198 Conn. 220, 502 A.2d 400, 401 (1985) (partially eaten apple); Banks v. State, 725 So.2d 711, 714-16 (Miss.1997) (bologna sandwich; conviction reversed because state destroyed sandwich before defense could examine); Doyle v. State, 159 Tex.Crim. 310, 263 S.W.2d 779 (1954) (cheese, but not raised as issue on appeal). Given the wide acceptance of bite mark identification testimony and Seivewright's failure to present evidence challenging the methodology, we find no abuse of discretion in the district court's refusal to hold an evidentiary hearing to analyze Dr. Huber's testimony. The district court was simply exercising its "discretionary authority ... to avoid unnecessary 'reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. at 1176, 143 L.Ed.2d 238. While this is not true for all subjects of expert testimony, we are comfortable that it is true under the cireumstances of the case at bar.

Based on the foregoing, we also conclude that Bunting v. Jamieson, 984 P.2d 467, is distinguishable. There we wrote:

[Wle 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 nondis-positive Daubert factor is insufficient.

Id. at 475. Read too broadly, this statement could be interpreted to require findings in every case of expert testimony. However, not every subject of expert testimony is appropriate for application of the Daubert factors. Bunting v. Jamieson, 984 P.2d at 475. Moreover, unlike the expert testimony in Bunting v. Jamieson, the reliability of the expert's methods (bite mark identification) can be taken for granted in this case, and findings were unnecessary. On a related note, to the extent Seivewright challenges Dr. Huber's conclusion that Seivewright bit the cheese, these challenges go to the weight of the testimony, not to reliability of the methodology (bite mark identification), and are matters best left to a jury.> Id. at 472-73. We find no abuse of discretion in the district court's refusal to hold a Daubert hearing.

Seivewright also complains that the district court's failure to hold a hearing resulted in the admission of inadmissible testimony. He contends the testimony was inadmissible because Dr. Huber was not qualified to offer expert testimony in the field and that the doctor's admissions under cross examination bear this out. In reviewing the qualification issue, we keep in mind that the determination of the qualification of a witness as an expert is vested within the discretion of the trial court and that determination will be overturned only when an abuse of discretion is shown. Betzle v. State, 847 P.2d at 1022; Montoya v. State, 822 P.2d 363, 366 (Wyo.1991); Noetzelmann v. State, 721 P.2d 579, 583 (Wyo.1986). Unless a expert witness is clearly unqualified, deficiencies in qualifications normally go to the weight accorded the witness's testimony rather than its admissibility, Betzle, 847 P.2d at 1023.

In attacking Dr. Huber's qualifications, Seivewright's chief complaint is that Dr. Huber was not qualified to offer expert testimony because he is not certified by the American Board of Forensic Odontologists (ABFO), which has established standards for qualification to testify as an expert in the field of forensic odontology. However, Seive-wright directs us to no authority establishing that ABFO certification is a prerequisite to testifying as an expert in the field of forensic odontology. Indeed, an expert need only have sufficient "knowledge, skill, experience, training, or education" to qualify as an expert. W.R.E. 702. Therefore, the question is simply whether Dr. Huber was qualified to testify despite his lack of ABFO certification.

The record establishes that Dr. Huber has been a practicing orthodontist for nearly 20 years. In addition to being a board certified orthodontist with a master's degree in the field, he previously qualified to testify as an expert. He has also worked in the field of forensic odontology, for the local coroner, since 1980 and has completed numerous courses in that field. Given these credentials, we can find no abuse of discretion in permitting Dr. Huber to testify despite his lack of ABFO certification. See People v. Williams, 128 Ill.App.3d 384, 83 Ill.Dec. 720, 470 N.E.2d 1140, 1150 (1984) (Trial court properly allowed dentist to testify as bite mark identification expert despite lack of board certification in field of forensic odon-tology. "An expert need only have experience and knowledge which is not common to the world.").

Seivewright also complains Dr. Huber was not qualified to testify because of admissions the doctor made under cross-examination. In addition to admitting he was not an expert, but "most qualified," Dr. Huber stated that, without training as a dentist or orthodontist, even Seivewright's trial counsel could have rendered an opinion on whether a particular person took a bite of a piece of cheese. It is, however, the function of the jury to sort out the weaknesses and the strengths of expert testimony. Betzle v. State, 847 P.2d at 1023; Runnion v. Kitts, 531 P.2d 1307, 1309 (Wyo.1975). "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." Bunting v. Jamieson, 984 P.2d at 471 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 596, 113 S.Ct. at 2798).

We find an analogous situation in Runnion v. Kitts, 531 P.2d at 1310. There, a highway patrolman offered expert testimony on the speed of the plaintiff's vehicle at the time of its collision with the defendant's. On appeal, the plaintiff complained the patrolman's testimony was improper because he admitted he was not an expert. This court wrote:

With some modesty, the highway patrolman, on cross-examination, in answer to the question, 'You don't qualify yourself as an expert?, replied, 'No.' Regardless of how the witness classified himself, he did [dlo a pretty good job and was expert, in the light of his experience and knowledge and ability to use the skid calculator tools given to him by the highway department, which had an accepted basis in accident investigation. Apparently, the jury was not impressed that he was as uninformed as the cross-examiner attempted to make him out.

Runnion v. Kitts, 531 P.2d at 1310. The situation here is similar, and we conclude Dr. Huber's statements go to the weight to be given his testimony, and not to admissibility.

Finally, Dr. Huber's testimony was more involved than his admission under cross-examination would indicate and thus helpful to the trier of fact. Not only did he make the impressions of the cheese and Seivewright's teeth, Dr. Huber performed a more thorough examination than the naked-eye analysis suggested by defense counsel. Dr. Huber explained how he measured the teeth spacings in reaching his conclusions, explained in detail the peculiar idiosyncracies found in Seivewright's dentition, and ultimately concluded that Seivewright had bitten the cheese. The testimony was thus helpful to the trier of fact, and we find no abuse of discretion in its admission.

CONCLUSION

The district court's failure to determine compliance with its discovery order requires reversal in this instance. The judgment and sentence entered in the district court is reversed, and this case is remanded for a new trial.

THOMAS, Justice,

dissenting, with whom HILL, Justice, joins.

I dissent from the resolution of this case according to the majority opinion. It treats the failure to furnish the curriculum vitae of an expert witness to the defense as error per se. I have some question as to whether it constituted error at all, but I am convinced that, conceding error for purposes of this debate, any error was harmless. The majority opinion, with respect to the claims of error by Stanley Seivewright, can be briefly summarized. First, it holds that the failure of the trial court to take any of the steps articulated in W.R.Cr.P. 26.2 was reversible error. Then it is noted that Seive-wright had received a letter stating Dr. Huber's conclusions. The claim of violation of the constitutional right to confrontation was not addressed, as well it should not be. The majority opinion then addresses the failure to hold a so-called Dawbert hearing, and rules that no abuse of discretion occurred with respect to the failure to hold such a hearing. Next, the majority refutes the argument that the orthodontist was not qualified to offer expert testimony. The net effect is that no error occurred in the admission of the testimony of the orthodontist into evidence, but reversible error occurred because the trial court never ordered the production of the report or the curriculum vitae prior to trial.

One would normally expect some explanation of how that failure was prejudicial, but prejudice is simply assumed, not explained. Before the orthodontist testified, defense counsel offered these objections:

Your Honor, I had filed a motion I believe back in late May, where I requested a Daubert hearing concerning the State's evidence of their expert witness, Dr. Huber. And I would request again that we have a hearing-a Daubert hearing-with respect to that type of testimony.
My understanding is that the State's evidence is going to be that the dentist can offer testimony concerning dental impressions of this piece of cheese that has been admitted into evidence.
I would challenge this type of testimony as being-as not being proven to have been scientifically reliable, and I think we need a hearing to clarify what exactly the testimony is.
I would further add, Your Honor, that when I filed this motion, I had requested that I be provided with the dentist's credentials, and I have talked to [the prosecutor], I believe, a couple of times and have asked him just before I approached the podium here today, and I asked if he had the dentist's credentials, and he does not.
So I have not seen what the dentist's credentials are and whether or not he's ever done this type of thing before or whether or not he's qualified to do it. And I feel those are issues that we need to get into before he is allowed to testify. And I would demand that the State provide those documents to me before the witness takes the stand and testifies in this courtroom.

Defense counsel then made no effort, nor was any request submitted, to conduct a voir dire of the orthodontist prior to his testimony being received. Defense counsel did sue-cessfully object to the admission into evidence of the report, which the orthodontist referred to throughout his testimony. When the conclusion of the orthodontist was offered, defense counsel renewed the objection previously stated, and objected to testimony relating to the cheese because it had not been admitted into evidence for failure to establish the chain of custody. The orthodontist then explained what he had done in order to compare Seivewright's dental characteristics with the block of cheese. On cross-examination, defense counsel questioned the orthodontist extensively about his education, special training and experience with respect to testifying. In the course of his testimony, the orthodontist testified that he never had accomplished the delivery of his curriculum vitae to the district attorney.

At the conclusion of the orthodontist's cross-examination and redirect examination, defense counsel renewed his objections, saying:

Your Honor, I would again like to renew my Motion to Strike the Testimony of Dr. Huber. I believe it is inadmissible for two reasons. One is that I believe my request for a Daubert hearing is now deemed appropriate. I believe the doctor testified to scientific types of information, which I believe had to be deemed appropriate prior to his testimony.
Also, the second reason I would move to strike is that his entire testimony was in violation of this Court's discovery order. First off, we did not receive any information whatsoever dealing with his credentials, and obviously that affects my ability to cross-examine and to effectively represent my client.
Furthermore, he testified that he took calculations and notes of his analysis. Well, we had absolutely no information on his analysis. All we have is one letter basically-or stating his conclusions.
And, Your Honor, to effectively represent my client, I obviously need his analysis and any other information pertaining to that. And I believe any expert testifying-if they are going to testify to any scientific knowledge or anything involving any type of scientific analysis or mathematical analysis-the defense is entitled to that information prior to coming to court for being able to cross-examine him, and also for being able to evaluate that and determine whether or not we need to have someone else evaluate it and determine if it's valid or not.
Your Honor, the State has had months and months and months to provide that information. They had never done so. The witness gets on the stand and says, "I just didn't provide my curriculum vitae to the district attorney after being asked to do so, because I didn't get around to it."
Your Honor, that is no reason for my client to suffer prejudice when he's looking at life in the penitentiary, because this doctor didn't get around to it. For those reasons, Your Honor, I move to strike.

(Emphasis added.) The nature of the prejudice suffered is not identified, beyond the claim that it is present, any more than it is identified in the majority opinion.

The foregoing tells me that Seivewright wanted neither the so-called report nor the curriculum vitae, but he wanted the opportunity to complain about not having them. Trial began on June 30, 1997 and it continued through July 3, 1997. The Motion for Dau-bert Hearing was filed on May 27, 1997, and it recites, among other things, as a reason for the motion:

1. The state has presented evidence to defense counsel that it intends to introduce evidence of bite analysis concerning the defendant. Specifically, the state intends to introduce evidence that the defendant took a bite out of a piece of cheese while inside the complaining witnesses' home. The state seized defendant's false teeth and had Emerick Huber, D.D.S., M.S., conduct an examination of the cheese as well as defendant's teeth. Dr. Huber concluded that defendant's dental impression matches the dental impression taken from the piece of cheese taken from the home.

It is clear to me that as of May 27, 1997, defense counsel had enough information to know what the orthodontist was going to testify about, and at least enough information to include his dental degree and his masters degree in the motion. The defense must have had a copy of the report, which was offered as a prosecution exhibit and excluded when Seivewright objected.

The Stipulated Order Requiring Discovery was filed on March 7, 1997, but according to the orthodontist's testimony, his notes of measurements were discarded after he formulated his conclusion from the examination he conducted in late February, and likely were not available as of the time of the discovery order. In any event, there is nothing to demonstrate prejudice as a result of those notes not being available. The thrust of the orthodontist's testimony was not much more complicated than matching pieces of a picture puzzle.

We have formalized in our Wyoming Rules of Appellate Procedure and our Wyoming Rules of Criminal Procedure the concept of harmless error. The appellate rule provides:

Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court.

W.R.A.P. 9.04. The criminal rule provides:

(a) Harmless error.-Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

W.R.Cr.P. 52(a). We have declared that the criminal rule is procedural in nature, and it did not adjust the substantive law in any way. Hays v. State, 522 P.2d 1004, 1007 (Wyo.1974).

In applying these rules, we have said:

"If the trial court erred by admitting evidence, we then must ascertain whether the error affects any substantial rights of the accused, providing grounds for reversal, or whether it is harmless. The harmless error standard is set out in W.R.A.P. 9.04:
'Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court.'
See also W.R.Cr.P. 52. An error is harmful if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had never occurred. Kolb v. State, 930 P.2d 1238, 1247 (Wyo.1996); Kerns v. State, 920 P.2d 632, 641 (Wyo.1996). To demonstrate harmful error, the defendant must show prejudice under 'cireumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.' Johnson v. State, 790 P.2d 231, 232 (Wyo.1990); see also Roderick v. State, 858 P.2d 538, 550 (Wyo.1993)."

Ryan v. State, 988 P.2d 46, 52-53 (Wyo.1999) (quoting Solis v. State, 981 P.2d 34, 36 (Wyo.1999)). The difficulty with the majority opinion in this case is that it does not articulate how these standards were satisfied any more than Seivewright does in his brief and argument.

It is clear from the record that prior availability of the report of the orthodontist and his curriculum vitae could not have affected the cross-examination by the defense attorney. The orthodontist testified that he substantially reported the curriculum vitae during direct examination by the prosecuting attorney. Defense counsel did not request the opportunity to voir dire the orthodontist prior to his testimony about the cheese and the dental impressions. Instead, he chose to attack that by cross-examination, which may have been a strategic decision. Counsel may have preferred that there be no ruling on the expert qualifications of the orthodontist prior to his testimony because had he objected to the qualifications, the trial judge obviously would have overruled that objection. It is abundantly clear from the record that the defense had available, at or prior to the cross-examination, the report of the orthodontist, although he testified that notes and measurements he made to construct his letter report had been destroyed.

The majority opinion does not include in the discussion of the facts other evidence that has a clear impact upon any prejudice to Seivewright. The day before the robbery, Seivewright told his neighbor that he and his co-defendant intended to rob some females on Pine Street, which is the street where the victim's home is located. The information given the neighbor included the fact that Seivewright would do the "manhandling" and the accomplice would do the talking. The victim testified she would have recognized Seivewright's voice since she had known him for three years. Seivewright's co-defendant's ex-girifriend testified that Seivewright and the co-defendant stayed at her house overnight before the robbery. They left the morning of the robbery around 8:45 a.m., and the robbery was initiated around 9:00 a.m. They returned about 10:00 a.m., divided some cash, and joked about the robbery, including the fact that they had taken the victim's van. The ex-girlfriend witnessed the two men changing clothes, and she saw Seivewright pull out a gun and lay it on a table. An inmate who had been in jail with Seivewright testified that he overheard Seivewright talking about the robbery, and later Seivewright told him that he had perpetrated the robbery.

All this makes it clear beyond any peradventure of any doubt that there was no "'reasonable possibility that the verdict might have been more favorable to the defendant if the error had never occurred."" Ryan, 988 P.2d at 52 (quoting Solis, 981 P.2d at 36). Seivewright has failed to meet his burden of showing "' "cireumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair - ' play."*" Ryan, 988 P.2d at 52-53 (quoting Solis, 981 P.2d at 36). His conviction should be affirmed. The State of Wyoming, Natro-na County, and the citizens should not have to bear the expense of another four-day trial in this case. It is not appropriate to impose that burden because of the identification of technical error.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . The substance of the Jencks Act was later adopted into F.R.Cr.P. 26.2., which is comparable, although not identical, to W.R.Cr.P. 26.2. See 3B Charles Alan Wright, Federal Practice and Procedure, Criminal, App. C at 274-75 (1999); Campbell v. U.S., 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961); State v. Watson, 173 W.Va. 553, 318 S.E.2d 603, 609 (1984) ("'Because many of the provisions of the Jencks Act are incorporated into Rule 26.2, commentators, as well as courts, have used Jencks Act cases to interpret it.")

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 LEd.2d 469 (1993).


author: TAYLOR, Justice, Retired. THOMAS, Justice,

text:
    The STATE of Wyoming DEPARTMENT OF REVENUE, Appellant (Petitioner), v. AMOCO PRODUCTION COMPANY and Amoco Rocmount, Appellees (Respondents).
    No. 98-65.
    Supreme Court of Wyoming.
    May 31, 2000.
    Rehearing Denied June 29, 2000.

      Representing Appellant: William U. Hill, Attorney General; and Vieci M. Colgan, Senior Assistant Attorney General, Cheyenne, Wyoming.
    Representing Appellees: Algirdas M. Lie-pas of Wiederspahn, Liepas & Reese, P.C., Cheyenne, Wyoming; and John L. Bordes, Jr., Denver, Colorado.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR, JJ.

       Retired November 2, 1998.

   TAYLOR, Justice, Retired.

The Department of Revenue appeals from the State Board of Equalization's (the Board) determination of tax and interest owed by Amoco Production Company. The Department of Revenue contends the Board abused its discretion in rejecting the Department of Revenue's application of the net-back method, and acted contrary to law in allowing the offset of credits for overpayment. Finding that the Board erred only as to the issue of offsetting credits, we affirm in part and reverse in part.

I. ISSUES

Appellant, the Department of Revenue (the Department), presents the following issues for review:

1. Whether, when a mineral taxpayer sells its products and the purchaser "charges" a fee for its marketing and sales services, the fee is properly included in the gross sales price of the mineral, especially where the transaction is between related parties?
2. Whether the offsetting credit provision of Wyo. Stat. § 39-2-214(e) is properly applied to a mineral tax audit which commenced before the effective date of that statute?
3. Whether, when a mineral taxpayer makes a payment of delinquent taxes less than the taxpayer's lability, the payment is properly applied to the accrued interest on the debt, in the absence of any statute or agreement to do so?

Appellees, Amoco Production Company and Amoco Rocmount (collectively Amoco), phrase the issues as follows:

1. Did the Board of Equalization properly determine the true and correct taxable value for the natural gas liquids and sulfur production reported by Amoco?
2. Did the Board of Equalization act properly by taking into account overpay-ments during the audit period and applying them against underpayments?
3. Do the Department's arguments regarding standing alter the result that the Department is seeking an advisory opinion on whether taxing authorities may apply Amoco's payments in a way contrary to Amoco's designations concerning those payments?
4. Did the Board of Equalization act properly when it applied Amoco's partial payment to only the underlying tax lHability and did not allow the Intervenor to apply that payment in violation of Amoco's designation regarding that payment?

II FACTS

Amoco is a corporation owning oil and gas interests in Uinta County. Beginning in 1986, the Department commenced an audit of Amoco's production from the Whitney Canyon, and later, initiated audits of the Painter Complex, Ryckman Creek, and Anschutz Ranch East properties The audits addressed the production of natural gas liquids and sulfur during the years 1983 through 1988. The State Department of Audit, established in 1989, completed the audits, and in 1994, the Department issued five separate assessment notices to Amoco for additional severance taxes. The assessments also notified Amoco of additional taxable value for ad valorem taxes due to Uinta County. The additional taxable value was certified in five separate notices in February of 1994.

Amoco timely appealed the valuation to the Board, which consolidated the cases for a contested case hearing. Uinta County successfully moved to intervene in the case, questioning whether it was required to apply Amoco's partial payment of ad valorem tax to the principal, as designated by Amoco, or whether it may apply the payment to accrued interest. On February 28, 1997, the Board issued preliminary findings of fact and conclusions of law, and directed the parties to either agree to numerical calculations or to submit their own calculations in order to reach a final determination of tax Hability. After the parties were unable to reach an agreement, the Board received separate calculations from the parties before issuing its Supplemental and Final Findings of Fact Conclusions of Law Order.

The portion of the Board's determinations relevant to this appeal include its finding that the Department incorrectly included a "market fee" in the gross sales price of Amoco's production. The Department also takes issue with the Board's determination that Amoco may offset the overpayments against underpayment over the years in question in order to calculate the interest and penalty due. Finally, the Department contends it has standing to challenge the Board's conclusion that Uinta County must apply Amoco's non-protested, partial ad valorem tax payment to the principal due. Further facts will be set forth as necessary in the discussion of these issues.

Certification to this Court occurred after two petitions for review were consolidated in the District Court for the Third Judicial District. By order dated March 19, 1998, this Court dismissed the appeal filed by Uinta County, as Uinta County is not entitled to judicial review pursuant to Wyo. Stat. Ann. §§ 39-1-306 and 39-1-10l(a)(xti) (Michie Repl.1985). See Basin Elec. Power Co-op., Inc. v. Department of Revenue, State of Wyo., 970 P.2d 841, 848 (Wyo.1998).

III. STANDARD OF REVIEW

Our standard of review for an ageney decision in a contested case is fully set forth in Basin Elec. Power Co-op., Inc., 970 P.2d at 850-51 (footnote omitted):

When faced with contested issues of fact, we examine the entire record to determine if the agency's findings are supported by substantial evidence. * * * If so, we do not substitute our judgment for that of the agency and must uphold the factual findings on appeal. * * * Substantial evi-denee is more than a sceintilla of evidence; it is relevant evidence which a reasonable mind might accept in support of the conclusions of the agency. * * *
If a conclusion of law is in accord with the law, it is affirmed. * * * We consider three distinct possibilities when reviewing agency determinations of questions of law. * * * If the agency has correctly applied its findings of fact to the correct rule of law, the agency's conclusions are affirmed. * * * However, if the agency applied its findings of fact to the wrong rule of law or if the agency incorrectly applied its findings of fact to the correct rule of law, we must correct the error and reverse. * * *
When an agency's determinations contain elements of law and fact, we do not treat them with the deference we reserve for findings of basic fact. * * * When reviewing an "ultimate fact," we separate the factual and legal aspects of the finding to determine whether the correct rule of law has been properly applied to the facts. * * * We do not defer to the agency's ultimate factual finding if there is an error in either stating or applying the law. * * *
"In examining the propriety of the valuation method, 'our task is not to determine which of various appraisal methods is best or most accurately estimates [fair market value}; rather, it is to determine whether substantial evidence exists to support usage of the [chosen] method of appraisal." Amoco Prod. Co. v. State Bd. of Equalization, 899 P.2d 855, 858 (Wyo.1995) (quoting Holly Sugar Corp. v. State Bd. of Equalization, 839 P.2d 959, 963 (Wyo.1992)). However, the disagreement between the parties here does not concern the Department's choice of appraisal methods. The controversy concerns the proper application of those methods to the facts, which is an issue of ultimate fact, requiring de novo review.

IV. DISCUSSION

A. VALUATION

During the tax years in question, Amoco sold its production to Amoco Oil (the Purchaser), a sister subsidiary of the Amoco Corporation. Because there was no significant market for the product in Wyoming, the Purchaser paid Amoco the market value in out-of-state locations, minus transportation fees and a marketing fee. The marketing fee represented the Purchaser's costs relative to the sale of the product in remote locations, including administrative costs, working capital, and other costs associated with the means of transporting the product for final sale.

For the production years at issue here, 1983-1988, the statutes pertaining to mineral valuation provided:

(d) In the event the product as defined in subsection (b) of this section is not sold at the mine or mining claim by bona fide arms-length sale, or if the product of the mine is used without sale, the department shall determine the fair cash market value by application of recognized appraisal techniques.

Wyo. Stat. Aun. § 89-2-202(d) (Michie 1977). The Department determined that because the contracts for sale were between related parties, the sale between Amoco and the Purchaser was not a bona fide arms-length sale. The Department, applying a net-back method, calculated Amoco's production by using the price paid by a third party to the Purchaser, and then deducting transportation and processing fees from that price. Because the market fees actually charged to Amoco by the Purchaser did not fall within transportation and processing deductions allowed by the Department, the Department concluded that Amoco's failure to include the amount of the market fee in its gross sale price resulted in under-reporting the value of its production. Amoco objected, contending that the contract between Amoco and the Purchaser was a bona fide arms-length transaction, and thus accurately represented the fair market value of the product.

After a hearing on the matter, the Board agreed that the transactions between Amoco and the Purchaser were not bona fide arms-length sales, but found the Department failed to consider comparative sales between unrelated parties to make a reasonable estimate of fair market value of Amoco's production. The Board found that the method used by the auditors, and adopted by the Department, was an artificial manipulation of the components of the sale between related parties which could not duplicate the fair market value of an arms-length transaction. Therefore, the Board found that the Department had failed to employ an accepted method of appraisal.

Amoco presented evidence which demonstrated that the price paid by the Purchaser was equivalent to that paid in transactions between unrelated parties. Based on this evidence, the Board concluded that the initial assessment was a correct valuation.

On appeal, the Department argues that it properly used the net-back method when it did not allow a deduction of the "marketing fee." The net-back method arrives at fair cash market value at the point of valuation by subtracting the "value" added to the product by processing and transportation from the gross sales price of the product. Amax Coal Co. v. Wyoming State Bd. of Equalization, 819 P.2d 825, 827 n. 4 (Wyo.1991). Generally, the starting point of the net-back valuation methodology is the amount received from the first third-party sale of mineral production. Id. at 827. As stated by the Board:

It was imperative the [Department], as the appraiser, applying the netback method, determine what the market value of the products was at the point where the net-back method was commenced. Any caleu-lation of value based on an incorrect starting point inevitably results in an incorrect value even if the netback method is properly applied.

The Board concluded that proper appraisal technique does not permit an assumption that proper fair market value can be recreated by "manipulation of the dollar amounts" found in the books of these related, but separate, entities. Instead, the Department must determine the fair market value by looking to evidence of other third-party transactions at the point of sale. The Department had access to information regarding sales to the Purchaser from unrelated third parties, but did not utilize this information in its appraisal.

It is uncontested that Amoco never received eredit or payment from the Purchaser for the amount of the market fee charged to Amoco. Further, the record contains evidence that the price calculations utilized the same method for the Purchaser's payment to Amoco and to other producers of the same products. Indeed, there is evidence that, at times, Amoco received a more favorable price, resulting in a report of higher value for its product than other suppliers.

In contrast, the Department failed to submit any market information, nor did it present evidence substantiating its position that the fair market value of Amoco's production should be higher than that of the Purchaser's other sources. Instead, the Department appears to rely on an assumption that the price paid pursuant to a transaction between related parties cannot be considered the fair market value of the product. Therefore, the next third-party transaction must be a starting point to reach the fair market value at the point of the first transaction. This assumption, however, is controverted by the facts in the record. The "marketing fees" which the Department insists on adding to Amoco's gross sales price had no relevance to the fair market value of Amoco's products. We find that the Board's decision is firmly rooted in the facts which were presented, and it is, therefore, affirmed.

B. OFrFSEES FoR UNDERPAYMENT AND Overpayments

The Board allowed Amoco to offset over-payments and underpayment for the audit period prior to calculating interest and penalties. It did so on a dual application of our holding in Kunard v. Enron Oil & Gas Co., 869 P.2d 132, 134 (Wyo.1994) and Wyo. Stat. Ann. § 89-2-214(e) (Michie Repl.1994). We agree with the Department that the Board's decision is contrary to law.

In Kunard, 869 P.2d at 134, we recognized that when a taxpayer excludes required elements from its reported production, and the exclusion causes an underpayment, the tax is delinquent upon the taxpayer's failure to pay on the date due, not at the later date when the taxpayer is presented with notice and demand of the deficiency. However, we held that Enron Oil and Gas Company properly offset credits and underpayment for different properties in a given year, "[blecause Enron's overpayments exceeded its underpayments for each of the tax years in question" and, therefore, "the County was never deprived use of the underpayment dollars. Thus, it would be inequitable to allow the County to charge interest on the underpayment, particularly since the County has had free use of the overpayment dollars." Id. at 136.

In the present case, however, it is undisputed that there were several given years when Amoco's tax payment was deficient. Thus, the reasoning in Kunard does not apply here. Neither can Amoco rely on Wyo. Stat, Ann. § 839-2-214(e), effective March 11, 1991. This statute provides:

(e) The taxpayer is entitled to receive an offsetting credit for any overpaid gross product or severance tax identified by an audit that is within the seope of the audit period, without regard to the limitation period for requesting refunds. In calculating interest and penalty, the department or board of county commissioners shall first compute a net deficiency amount after subtracting any offsetting credit and then calculate any interest and penalty due.

Offsets or refunds pursuant to Wyo. Stat. Ann. § 39-2-214(e) are not applicable to audits commenced before the effective date of the statute. Thunder Basin Coal Co. v. Wyoming State Bd. of Equalization, 896 P.2d 1336, 1341 (Wyo.1995) (ad valorem taxes); Texaco, Inc. v. State Bd. of Equalization, 845 P.2d 398, 402 (Wyo.1998). Because the audits in this case commenced prior to the operation of Wyo. Stat. Ann. § 89-2-214(e), the Board erred in allowing Amoco to offset credits and overpayments during the entire audit period.

C. Tes DErarrMENT's Stanpimg to SEEK Review or PaxymENT FoR AD VALOREM TAXES

The right to review an administrative action is entirely statutory. Amax Coal Co., 819 P.2d at 833. Uinta County appealed the Board's decision requiring partial payments of ad valorem taxes to be applied to the principal if so designated by the taxpayer. That appeal was dismissed, however, because Tinta County is not a "person" under Wyo. Stat. Ann. §§ 39-1-806 and 39-1-101(a)(xi), and, therefore, it has no statutory right to appeal the Board's decision.

The Department argues that in Uinta County's absence, it has standing to present this issue for our review. As the only taxing entity having standing to raise an error on appeal, the Department asserts it should have standing to challenge the Board's precedent regarding the application of partial payments to the gross value assessment made by the Department. In support of its position, the Department cites to Amax Coal Co., 819 P.2d at 831 (quoting Washakie County School Dist. No. One v. Herschler, 606 P.2d 310, 317 (Wyo.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980)), where we stated:

"Standing is a concept used to determine whether a party is sufficiently affected to insure that a justiciable controversy is presented to the court. * * * It is a necessary and useful tool to be used by courts in ferreting out those cases which ask the courts to render advisory opinions or decide an artificial or academic controversy without there being a palpable injury to be remedied. However, it is not a rigid or dogmatic rule but one that must be applied with some view to realities as well as practicalities. Standing should not be construed narrowly or restrictively."

(Emphasis in original.)

The Department's reliance on Amax Coal Co. is misplaced. In Amax Coal Co., the taxpayer challenged the Department's assessment as it related to both severance and ad valorem taxes. A portion of the Board's order found in favor of the taxpayer, holding that the Department erred in refusing to allow a deduction for reclamation costs. On appeal, Amax Coal Co. challenged the Department's standing to appeal the Board's decision regarding reclamation costs.

Noting that standing " 'is a concept used to determine whether a party is sufficiently affected to insure that a justiciable controversy is presented to the court,," we found the Department's appeal appropriate because:

The allocation of reclamation costs to non-mining activities and the Board's allowance of a deduction from the taxable value of the coal provide a direct and significant negative impact on the amount of ad valo-rem and severance taxes collected by the State.

Amax Coal Co., 819 P.2d at 831-32 (emphasis added). Unlike Amax Coal Co., the dispute between Uinta County and the Board does not involve taxable value. The Board's decision relating to the payment of ad valorem taxes does not reach any duty or obligation relegated to the Department. No partial payment was made as to severance taxes. Consequently, the Department will not be affected by a decision on this issue.

At best, the Department can only argue that it may be affected by the Board's ruling in the event someone designates partial payment of severance taxes in the future. "Although the question as postulated in this case may be properly before us in the future, to render an opinion here would be to issue an advisory opinion. This Court has said repeatedly that it will not issue advisory opinions, and we decline to do so now." State Bd. of Equalization v. Jackson Hole Ski Corp., 745 P.2d 58, 59 (Wyo.1987) (citing Graham v. Wyoming Peace Officer Standards and Training Com'n, 737 P.2d 1060 (Wyo.1987)); see also Willowbrook Ranch, Inc. v. Nugget Exploration, Inc., 896 P.2d 769, 772 (Wyo.1995).

V. CONCLUSION

We affirm the Board's determination that the Department failed to use proper appraisal techniques in the valuation of Amoco's production. The Board's application of Wyo. Stat. Ann. § 39-2-214(e) to allow offsetting credits during the audit period is reversed. Finally, we find the Department lacks standing to raise the issue of the application of partial ad valorem tax payments, and, therefore, we do not address that issue here.

THOMAS, Justice,

concurring and dissenting.

I agree completely with those aspects of the majority opinion, which affirm the Board of Equalization's treatment of the appraisal techniques, and hold that the Department of Revenue has no standing to present an issue on behalf of Uinta County in this case. I have a different view with respect to the reversal of the Board's decision that permitted offset of overpayments against underpayments, and I would affirm the Board's decision in that regard also. For that reason, I must dissent from that part of the majority decision.

I am satisfied that the "inequity" alluded to by this Court in the last sentence of Texaco, Inc. v. State Bd. of Equalization, 845 P.2d 398, 402 (Wyo.1993), has come to pass. If we follow strictly the statutory construction applied in that case, then basic concepts of equity and fair play must be invoked to accomplish justice in this case. The essence of the case is that Amoco Production Company endeavored to file amended returns for some of the tax years in issue, but those amended returns were held in abeyance by the audit process. Amoco Production Company was unable to file the appropriate claims for refund based upon those amended returns. Now the taxpayer is advised that it is too late to make a claim for a refund.

Neither in Thunder Basin Coal Co. v. Wyoming State Bd. of Equalization, 896 P.2d 1336 (Wyo.1995) nor in Texaco, Inc. did this Court negate the proposition that we had advanced previously:

When a taxpayer has been wrongfully deprived of a hearing to which he is entitled, it can hardly be said that during that time he had that fair and full and unembarrassed opportunity to pay to which he is entitled. In such case the wrong is not one-sided, and the state should not be able to profit by its own wrong. Equitable considerations will not be entirely disregarded even in tax cases. United States Trust Co. v. New Mexico [183 U.S. 535, 22 S.Ct. 172, 46 LEd. 315 (1902) ], supra.

Morrison-Knudson Co. v. State Bd. of Equalization, 58 Wyo. 500, 532, 135 P.2d 927, 939 (1943). We reiterated that proposition in Kunard v. Enron Oil & Gas Co., 869 P.2d 132, 136 (Wyo.1994):

Finally, this court has held that "[elqui-table considerations will not be entirely disregarded even in tax cases." Morrison-Knudson Co. v. State Bd. of Equalization, 58 Wyo. 500, 135 P.2d 927, 939 (1943). Because Enron's overpayments exceeded its underpayments for each of the tax years in question, the County was never deprived [of the] use of the underpayment dollars.

While Amoco Production Company was not denied a hearing, it was denied the opportunity to claim a refund by virtue of the audit process carried on by the taxing authorities. That difference does not serve to distinguish the equitable principle articulated in the pri- or cases, which should be applied here. Neither is there any apparent indication that Amoco Production Company will have an opportunity to present its claims because of audits commenced later as this Court suggested Texaco would have in Texaco, Inc. Further, there does not appear to be any opportunity for Amoco Production Company to profit from deliberate underreporting such as was assumed in the discussion of policy considerations in Moncrief v. Wyoming State Bd. of Equalization, 856 P.2d 440, 445 (Wyo.1993). In fact, this case appears to fit somewhere in between Monerief and Kunard, and there certainly is no reason to deny Amoco Production Company the opportunity to recover those overpayments it sought to address in its amended returns, which were not processed while the audit process was completed. Obviously, this is the result the Board sought to achieve, but the majority has ruled that it did not properly apply the pertinent statute. Perhaps the Board has no authority to invoke equitable relief for taxpayers, but this Court can afford equitable relief, and we should do that in this case.

I would affirm the Board of Equalization in all respects.