author: GOLDEN, Justice.

text:
    2003 WY 61
    Richard BILLINGSLEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-120.
    Supreme Court of Wyoming.
    May 19, 2003.

      Representing Appellant: Timothy C. Kingston of Graves, Miller & Kingston, P.C., Cheyenne, Wyoming.
    Representing Appellee: Hoke MacMillan, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, and Farrah L. Fraughton, Student Intern, of the Prosecution Assistant Program. Argument by Ms. Fraughton.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument

   GOLDEN, Justice.

[T1] Appellant Richard Billingsley was convicted of five counts of sexual intrusion against his three daughters. He was sentenced to three consecutive life sentences, plus two sentences of ten to twenty years to be served consecutively to the life sentences and consecutive to each other. He challenges that conviction, contending that the complaining witnesses had been improperly coached and influenced, the trial court erred in not permitting a defense expert's psychological examination and testimony, and the trial court erred by admitting the State's expert testimony at trial. We affirm.

ISSUES

Billingsley states the issues as:

1. Did improper coaching and influence of the complaining witnesses render them incompetent to testify at trial?
2. Should the appellant's psychologist have been pérmitted to examine the girls to determine whether they had been improperly coached and influenced?
3. Did the lower court commit reversible error by allowing the prosecution's expert witness to testify about societal misconceptions of sexual abuse victims?
4. Did the lower court commit reversible error by allowing the prosecution's expert witness to testify about her diagnoses of the complaining witnesses?
5. Did the lower court commit reversible error by allowing the prosecution's expert witness to testify about what the complaining witnesses told her about what their father had done to them?
6. Did the lower court commit reversible error by allowing the prosecution's expert witness to testify outside of the scope of her designation by the prosecution?

The State presents these issues:

I. Did the district court abuse its discretion in determining that the child victims were competent to testify?
II. Did the district court abuse its discretion when it refused to allow appellant's expert to examine the child victims and to testify at the competency hearing regarding them?
III. Was the testimony of the State's expert witness properly admitted?

FACTS

In June of 1999, Billingsley and his wife moved to Cheyenne with two of their three daughters. In July, their eldest daughter, who had been living out of state with her grandparents, joined them. Bill-ingsley's brother, Ben, and Ben's wife, Mari, also lived in Cheyenne, and on the last weekend of January 2000, the three daughters of Billingsley, C.B, age 12, S.B, age 11, and B.B., age 10, spent a weekend with their Aunt Mari and Uncle Ben. On Saturday, Mari and C.B. went to the library to research a science project. S.B. had requested that her aunt get a book about menstruation, and Mari checked out a book entitled "The Teenagers' Guide to Sex and Their Bodies." S.B. looked through the book that day and later told her aunt that S.B.'s father had been sexually abusing her and both of her sisters. Both S.B. and C.B. claimed that their father had engaged in sexual intercourse with all three girls for a number of years. Wanting to ascertain the girls' understanding of the meaning of "sex," Mari asked both girls a number of specific questions over many hours that weekend. The elder daughter was given a home pregnancy test which was negative. At their parents' request, the girls returned home on Sunday evening, and Mari and Ben notified authorities on the next Monday.

Detective Crumpton recorded an interview with C.B. at her elementary school on Monday afternoon in the presence of a school counselor. When asked if C.B. knew why the detective was there, C.B. responded, "because my dad has been having sex with me." CB. kept a diary for several years that she wrote in sporadically. Months earlier, she had written:

Dear Diary, my name is [C.B.]. I'm being treated bad. By my dad. He did something that he should not have done. He has had sex with me. I told him no. But he does not listen to me. But one day, Oct. 3, '98 to be exact I told him no and he listened for once. And he promised that he would not do it again, and he hasn't. So me and him are getting along now. He still asks once in a while, but I say no! The problem is that I am his daughter. And I am too young to start to have sex. Because I am only 11 years old. And if my mom ever found out, their marriage would end. That's why I don't tell!

Later that day, C.B. was examined by Dr. Shana Tubach, a pediatrician. . C.B. revealed to Dr. Tubach that C.B.'s father had been sexually abusing her for several years. The next day Dr. Tubach conducted a physical examination of C.B. that revealed that hymen tissue was no longer intact, an indicator of sexual activity. A physical examination of S.B. showed no evidence of recent sexual abuse; however, a physical examination of B.B. indicated that hymen tissue was no longer intact. On February 1 and 3, 2000, Lynn A. Huylar, project director for Safe Harbor, a children's justice advocacy center, conducted a videotaped interview of C.B. and her sisters. All three girls talked about numerous instances of sexual abuse over several years by their father.

[T6] From this investigation, Billingsley was charged with one count of unlawfully inflicting sexual intrusion on C.B. during the period of June 1, 1999, to November 1, 1999, in violation of Wyo. Stat. Ann § 6-2-303(a)(vi) (person in position of authority causes victim to submit); two counts of unlawfully inflicting sexual intrusion on S.B. during the period of June 1, 1999, to January 31, 2000, in violation of Wyo. Stat. Ann. § 6-2-303(a)(v) (vietim less than twelve years old and actor four years older than victim); and two counts of unlawfully inflicting sexual intrusion on B.B. for the same period and in violation of the same statute.

[T7] Months later, in August of 2000, Dr. Gay Deitrich-MacLean, clinical psychologist, interviewed the three girls in preparation for testifying as a State expert at Billingsley's trial. Billingsley requested that his forensic psychologist be permitted to examine the three girls, but that examination was denied; however, the psychologist submitted an affidavit in which she stated that her examination of the video and audio tapes of the girls' interviews indicated coaching and tainted testimony. Billingsley contended that Mari was feuding with him over an incident where he had shot at her and her baby with a shotgun, and in retribution she had tainted the three girls' memory by coaching them. A competency hearing was held before trial testimony began. Billingsley's expert was not permitted to testify at the hearing, and the girls were found competent to testify.

[¶8] At trial, the State's witnesses included Ben and Mari, Dr. Tubach, Dr. Deit-rich-MacLean, Dr. Huylar, Detective Crumpton, and the school counselor, with each testifying about statements the girls made to them consistent with the allegations the girls had made against their father. The three girls also testified. C.B. testified to being sexually assaulted by Billingsley in Cheyenne sometime in July of 2000, and stated that he sexually assaulted her once or twice each month. S.B. testified to several instances of abuse by her father while in Cheyenne. B.B. testified that she listened at the door as her sisters told Mari and Ben about the abuse, and told of many instances of abuse while in Cheyenne. Because S.B. and B.B. shared a bedroom, the two witnessed abuse of the other. Billingsley was convicted and sentenced, and this appeal followed.

DISCUSSION

[¶9] The district court's decisions admitting Dr. Deitrich-Maclean's testimony, finding the children competent to testify, and excluding Billingsley's expert witness from testifying at the competency hearing are evi-dentiary rulings that are reviewed under the same standard of review. Rulings on the admissibility of evidence are within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of a clear abuse of discretion. English v. State, 982 P.2d 139, 143 (Wyo.1999) (citing Simmers v. State, 943 P.2d 1189, 1197 (Wyo.1997)). We will not overturn a trial court's discretionary decision unless the court acted in a manner exceeding the bounds of reason and could not rationally conclude as it did. Id.; Simmers, 948 P.2d at 1197. Decisions of the trial court with respect to the admissibility of evidence are entitled to considerable deference and, as long as there exists a legitimate basis for the trial court's ruling, that ruling will not be reversed on appeal. English, at 143; Simmers, at 1197. It is also well settled that a district court judgment may be affirmed on any proper legal grounds supported by the record. English, at 143; Bird v. Rozier, 948 P.2d 888, 892 (Wyo.1997).

Decision That The Children Were Competent To Testify

[¶10] The Wyoming Rules of Evidence provide that "[elvery person is competent to be a witness except as otherwise provided in these rules." W.R.E. 601. "A person is generally competent to testify if he can understand, receive, remember and narrate impressions and is sensible to the obligations of the oath taken before testifying." English, 982 P.2d at 145 (citing Simmers, 943 P.2d at 1199); see also Larsen v. State, 686 P.2d 583, 585 (Wyo.1984). "Intelligence, not age, is the guiding criteria in determining the competency of a witness." Baum v. State, 745 P.2d 877, 879 (Wyo.1987). "It is a well-established principle of law that competency of witnesses to testify is a question within the sound discretion of the trial court." English, 982 P.2d at 145. "However, when children are called into the courtroom to testify, we have held that once the child's competency is called into question by either party, it is the duty of the court to make an independent examination of the child to determine competency, and that determination will not be disturbed unless shown to be clearly erroneous." Id.

[T11] We have directed the district courts to use a five-part test for determining the competency of child witnesses:

(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.

Id.; Larsen, 686 P.2d at 585 (quoting State v. Allen, 70 Wash.2d 690, 424 P.2d 1021 (1967)).

[¶12] In English, we decided that the existing state of the law adequately addresses pretrial taint concerns and a pretrial taint hearing is not necessary. At the time of a child's competency hearing, a defendant can argue memory taint at that hearing to discredit the reliability of a child's testimony. We held that if a defendant can establish a child's memory of events has been corrupted by improper interviews, it is possible the third Larsen factor, "a memory sufficient to retain an independent recollection of the occurrence," may not be satisfied. English, 982 P.2d at 146.

Although we declined to adopt a separate pretrial 'taint hearing' procedure, we did, however, endorse the use of the following factors as they relate to the question of independent recollection. Id.

The factors that should be considered in assessing the reliability of a complaint regarding sexual offenses are: "(1) the age of the victim; (2) cireumstances of the questioning; (8) the victim's relationship with the interrogator; and (4) the type of questions asked." * * * Undue suggestiveness can occur when an interviewer has a preconceived notion of what has happened to a child, the interviewer uses leading questions, the interviewer is a trusted authority figure, the person accused of wrongdoing is vilified during the interview, or the interviewer uses threats or rewards to pressure the child.

Id. (quoting State v. Scherzer, 301 N.J. Super. 363, 694 A.2d 196, 245-46 (1997) (summarizing and quoting State v. Michaels, 186 N.J. 299, 642 A.2d 1372, 1377-1883 (1994))).

[T 14] After the three girls testified at the competency hearing, the trial judge heard Billingsley's objection that their testimony was unreliable and not credible because of Mari's interviewing technique. The district court spent considerable time making findings on the record on each of the Larsen competency factors and the English taint factors. For each one, he explained his reasoning for finding the children competent to testify; and in summary he found that, of her own accord, S.B. had told Mari about the abuse because she trusted her and not because she was interrogated; that Mari had questioned the children to try to understand what the girls meant by "sex," and did not pressure or suggest the accusations; that, although Billingsley had given Mari reason to dislike him, there was no evidence that Mari had instigated accusations from any retaliatory motive against Billingsley; that the children were testifying from their own memory and had not indicated any reason to seek to hurt their father. Our review of the record shows that the record supports the district court's findings that the children were not stimulated or materially influenced by Mari's questioning and it did not infect their ability to independently recall events to such an extent that their testimony would be too unreliable to admit at trial. The record shows that each girl understood the gravity of their accusations against their father and provided the details necessary of their many instances of abuse to reassure, even on a cold record, that the district court accurately determined reliability and admissibility. We agree with the district court's statement: "it would be outlandish in view of the record we have here for this Court to enter an order that these children may not testify."

Exclusion of Defense Expert Testimony from Competency Hearing

[¶15] Billingsley acknowledges that under Gale v. State, 792 P.2d 570 (Wyo.1990), the defense is not entitled to a psychological examination of the complaining witness; however, he claims that Gale preserved an exception to that rule when the competency of the complaining witness was at issue:

We also note that this issue does not involve any challenge to the competency of the complainant witnesses in this case. Cf. Easterday v. State, 254 Ind. 13, 256 N.E.2d 901, 905-06 (1970). Our discussion on this issue is limited to resolving Gale's assertion of a right to have these victims examined and is not intended to express any view on the potential problem of witness compliance or competency.

Id. at 575.

[T16] Based on this statement, he contends that his expert, Dr. Wendy Gers-ing, should have been permitted to interview the three girls to determine whether their anticipated trial testimony was tainted by improper interviewing techniques and, therefore, unreliable. Gale prohibited forced examinations for purposes of testifying about credibility or veracity. Because veracity is directly at issue, this rule necessarily includes pretrial taint issues that are the subject of a competency hearing. Id. at 575-76. The trial court did not err in denying the motion.

[¶4] [T17] The district court denied Billingsley's motion for psychological and forensic examination of his children because his expert could listen and see audio and videotapes of the children's interviews to form an opinion whether the interviews were suggestive or coercive and caused the children's testimony to be unreliable. However, the district court ruled that the expert would be permitted to render an opinion at trial based on observations of those interviews. Bill-ingsley's expert did review those interviews and submitted an affidavit in which she opined that the children's testimony was unreliable. Requesting that the expert be permitted to testify at the competency hearing, Billingsley used the affidavit as an offer of proof. The State objected to the proposed testimony. The trial court determined that based upon W.R.E. 702, the expert's testimony did nothing to assist in determining whether the children were competent to testify and refused to permit the expert's testimony.

[¶18] Our review of the record indicates that Mari had asked leading questions to draw out specific information from the children about what their father had done to them. Based on these leading, specific questions, Billingsley claimed the children's testimony was tainted and unreliable. Consequently, the trial court had two issues to determine: whether the children's aceusa-tions were the product of suggestive or coercive techniques, and, if so, whether the technique tainted the testimony to such a degree as to render the testimony unreliable and, therefore, inadmissible. In his offer of proof, Billingsley stated that Dr. Gersing would demonstrate that the manner in which Mari and Ben had interrogated the children irreparably tainted their trial testimony, and would further testify that the children's statements to police and doctors were similarly tainted because of the interviewing techniques employed by those officials.

[¶19] Although expert testimony is relevant in a competency hearing to demonstrate the coercive effects of certain interviewing techniques, the general rule that experts may not vouch for witness credibility still applies. In this case, the three children and Mari testified at the competency hearing; thus, the trial court's determination was properly focused only on Mari's questioning of the children. The record shows that the trial court understood that Mari's questioning had been leading and suggestive and that such an improper interviewing technique, particularly if maliciously motivated, could render the children's testimony too unreliable to be admissible at trial. The competen-ey hearing focused on reliability, primarily by ascertaining whether the children had independent recall of events. The record shows that the State, the defense, and the court all questioned the girls on details surrounding their recollections of events and received direct, detailed answers. At the close of this testimony, the trial court properly concluded that expert testimony would not assist him in determining reliability; and on these particular facts, we agree that the expert testimony would not have been of assistance to the trial court and find no error in that court's excluding the expert testimony.

[¶20] In the Michaels case relied upon by English, the New Jersey Supreme Court examined the role of expert testimony in a taint hearing. It stated:

Consonant with the presumption that child victims are to be presumed no more or less reliable than any other class of witnesses, the initial burden to trigger a pretrial taint hearing is on the defendant. The defendant must make a showing of "some evidence" that the victim's statements were the product of suggestive or coercive interview techniques.
That threshold standard has been met with respect to the investigatory interviews and interrogations that occurred in this case. Without limiting the grounds that could serve to trigger a taint hearing, we note that the kind of practices used here-the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions-constitute more than sufficient evidence to support a finding that the interrogations created a substantial risk that the statements and anticipated testimony are unreliable, and therefore justify a taint hearing.
Onee defendant establishes that sufficient evidence of unreliability exists, the burden shall shift to the State to prove the reliability of the proffered statements and testimony by clear and convincing evidence. Hence, the ultimate determination to be made is whether, despite the presence of some suggestive or coercive interview techniques, when considering the totality of the cireumstances surrounding the interviews, the statements or testimony retain a degree of reliability sufficient to outweigh the effects of the improper interview techniques. The State may attempt to demonstrate that the investigatory procedures employed in a case did not have the effect of tainting an individual child's recollection of an event. To make that showing, the State is entitled to call experts to offer testimony with regard to the suggestive capacity of the suspect investigative procedures. The defendant, in countering the State's evidence, may also offer experts- on the issue of the suggestiveness of the interrogations. However, the relevance of expert opinion focusing essentially on the propriety of the interrogation should not extend to or encompass the ultimate issue of the credibility of an individual child as a witness. The State is also entitled to demonstrate the reliability of the child's statements or testimony by proffering independent indicia of reliability. It bears repeating that the focus of the pretrial hearing is on the coercive and suggesting propensity of the investigative questioning of each child and whether that questioning, examined in light of all relevant cireumstances, gives rise to the substantial likelihood that the child's recollection of actual events has been irremediably distorted and the statements and the testimony concerning those events are unreliable.

State v. Michaels, 136 N.J. 299, 642 A.2d 1372, 1383-84 (1994) (citations omitted).

[¶21] From this analysis, we see that the trial court granted Billingsley a competency hearing because he made a sufficient showing to trigger its necessity; the State used the girls' testimony at that hearing to establish independent indicia of reliability; and the trial court properly determined that under these particular facts the defense's expert testimony that the suggestiveness of Mart's technique had produced tainted testimony was unnecessary for him to hear before rendering a competency determination. We find no error.

Trial Court's Evidentiary Rulings Concerning the Testimony of the Prosecution's Expert Witness, Dr. Gay Deitrich-MacLean

[¶22] In Billingsley's final contentions of error, he claims the trial court erred in allowing the prosecution's expert witness, Dr. Gay Deitrich-MacLean, to testify; and in allowing this witness's testimony to exceed the seope of the prosecution's written designation of this witness's testimony in two respects, namely, stating her "diagnoses" of each of the alleged victims and stating what each alleged victim told her about what Bill-ingsley had done to them.

[¶23] In order to treat these contentions, it is helpful to provide factual context. In the prosecution's opening statement to the jury, the prosecutor told the jury that it would hear from a psychologist who specialized in issues surrounding sexual abuse of children. That witness would explain her general experience in reporting sexual abuse and "the things that you look for." In his opening statement, Billingsley's counsel emphasized that "what this case ultimately will be all about," is the "full story from these three girls;" that, although the jury was going to hear a lot of different testimony, the case is "going to come down to ... whether you believe the story that they're going to tell you, and how will you know that they're going to be able to tell the truth." In regard to how the jury might be able to tell that these girls "might not be able to tell the truth in this matter," defense counsel asked the jury to consider 1) numerous inconsistencies and embellishments between their trial testimony and the stories they first told to the investigating authorities; 2) although the alleged sexual abuse allegedly started as many as seven years ago and these girls had numerous opportunities to reveal the abuse to trusted relatives, teachers, and friends, these girls never revealed the abuse to these trusted and safe authority figures; 3) until these allegations came to light, the girls' family was a happy family, the girls were doing well in school, the girls had friends, the girls had no reported psychological problems despite the alleged sexual abuse they were undergoing.

[¶24] During the prosecution's case-in-chief, the prosecutor called two witnesses before calling Dr. Deitrich-MacLean. When the prosecutor called Dr. Deitrich-MacLean, Billingsley's counsel stated to the trial court that the witness should not be allowed to testify because her testimony, as designated by the prosecution, was not relevant to the case. The designation was contained in a document entitled "Notice of Recordns [sic] For Review and Objection to DFS Records Requested by Defense" which the prosecution had filed on September 26, 2000. The pertinent paragraph of that document read:

Dr. Deitrich-MacLean's testimony will not encompass the [sic] in any manner any attempt at "diagnosing" the girls as sexually abused, nor in any fashion commenting on their credibility. Rather, her testimony will be offered to dispel generally widespread misconcéptions regarding the behavior of sexual abuse victims.

Billingsley's counsel stated that at this stage of the trial there had not been any testimony or evidence about generally widespread misconceptions.

[T¥25] Responding to Billingsley's counsel's argument, the prosecutor stated that this witness was called at this point of the trial to accommodate the witness's schedule and to meet that part of defense counsel's opening statement that "the defense is that these girls didn't act abused ... didn't tell any other trusted authority figures, and they had every opportunity to do that." Conelud-ing on the matter, the prosecutor argued:

So one of the key misconceptions Dr. MacLean's testimony is going to address [sic] the very affect that happens all the time. There are ample opportunities for kids to disclose, and they just don't do it, and that's exactly her specialty.

The prosecutor also informed the trial judge and defense counsel that the witness would review the purpose for which she performed psychological examinations on the girls, adding that "it wasn't to evaluate for sexual abuse." The prosecutor told defense counsel that the witness would answer defense counsel's questions arising from these evaluations.

[¶26] We hold that the trial court did not abuse its discretion in allowing Dr. Deitrich MacLean to testify. The trial court exercised reasonable control over the order of the prosecution's interrogating witnesses and presenting evidence. W.R.E. 6li(a) The prosecution called this witness when it did as an accommodation to the witness's schedule. Moreover, when defense counsel's opening statement, either explicitly or implicitly, places behavior in issue, as it did here, we have consistently approved admission of expert testimony which explains the behavior of alleged sexual abuse victims. Cook v. State, 7 P.3d 58, 57 (Wyo.2000) (citing Griego v. State, 761 P.2d 973, 979 (Wyo.1988); Scadden v. State, 732 P.2d 1036, 1046-47 (Wyo.1987)). Dr. Deitrich-MacLean's testimony about misconceptions regarding the behavior of sexual abuse victims was relevant.

[¶27] We turn now to Billingsley's claim that the trial court erred in allowing Dr. Deitrich-MacLean's testimony to exceed the scope of the prosecution's written designation of this witness's testimony. Under this claim, Billingsley asserts that the witness stated her "diagnoses" of each alleged victim and stated what each alleged victim told her, during her "interviews, about what Billingsley had done to them. In addressing these assertions, onee again factual context is helpful. During the course of the prosecutor's direct examination of Dr. Deitrich-Mac-Lean, the witness explained that the purpose of her psychological evaluation of these girls was to assist the State's Department of Family Services in making foster care placement decisions and treatment decisions. The witness made clear that she had not done a forensic evaluation for sexual abuse. In response to the prosecutor's interrogation, the witness explained the elements of the general psychological evaluations she performed. The prosecutor next asked the witness "what kind of diagnosis-if that's what you call it-did you come up with, results of that examination?" This question drew Billingsley's counsel's objection that the testimony exceeded the prosecutor's written designation that the witness would testify about misconceptions about the behavior of sexual abuse victims. The prosecutor then explained that the witness's testimony would not be sexual abuse diagnoses. The trial court overruled the defense objection. With respect to one of the girls, Dr. Deitrich-MacLean ruled out a diagnosis of post-traumatic stress disorder but concluded she was experiencing severe stress because of her out-of-home placement and the legal proceedings against her father. With respect to all three of the girls, Dr. Deitrich-MacLean's assessment was they tended to internalize their feelings, but when they did express their feelings, "sometimes it's pretty dramatic." Given this factual context, we find no merit in Billingsley's complaint regarding "diagnoses." The trial judge saw a connection between the witness's limited "diagnoses" and the designation about "misconceptions," and we will not see-ond guess that evidentiary ruling. Billings, ley eschews specifics, relying on general bald assertions instead, and he cites no authority for his position. Most importantly, we fail to see how the witness's limited "diagnoses" bolstered the girls' own testimony, as alleged by Billingsley.

[128] In addressing Billingsley's complaint that the trial judge erred in allowing Dr. Deitrich-MacLean to testify about what each girl told her about what Billings-ley had done to them, onee more factual context is helpful. After Dr. Deitrich-Mac-Lean's testimony about the results of her psychological evaluations of the three girls, the prosecutor asked whether Dr. Deitrich MacLean's interviews with the girls revealed anything of significance to the sexual abuse issues. Defense counsel objected that "she would be getting into the exact area" that the designation stated she would not get into. The prosecutor explained that independent, spontaneous statements of the girls were relevant to counter Billingsley's defense that the girls never revealed to others the alleged incidents of sexual abuse. Billingsley countered that such testimony from Dr. Deitrich, MacLean amounts to vouching for the girls' credibility and to stating a sexual abuse diagnosis. The trial court overruled Billingsley's objection. Dr. Deitrich-MacLean then testified, under the prosecutor's questioning, that each girl told her that Billingsley had sexual-Ty molested each girl.

[¶29] In Billingsley's appellate briefing on this claim of error, his primary complaint is that Dr. Deitrich-MacLean's testimony in this regard was a repeat of what five other prosecution witnesses had testified about, ie., what the girls had told them allegedly happened. Billingsley complains that the jury heard the girls' story "repeated over and over again." But Billingsley rests his complaint on bald assertions without any supporting law or cogent argument. The trial court saw a connection between Dr. Deitrich-MacLean's testimony relating the girls' spontaneous disclosures to her and Bill-ingsley's argument that the girls had never reported the incidents to a person of trust. We hold the trial judge did not abuse his discretion in allowing this testimony.

[¶30] We affirm the judgment of convietion and sentence.

      . The text of this diary entry is replete with misspelled words, which we have taken the liberty of correcting.


source: Caselaw Access Project

author: LEHMAN, Justice.

license: Public Domain

text:
    2003 WY 63
    Mike HUFF, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-157.
    Supreme Court of Wyoming.
    May 22, 2003.

      Representing Appellant: Kenneth M. Ko-ski, State Public Defender; and Donna D. Domonkos, Appellate Counsel.
    Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Kerry Gaines, Student Intern.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[T1] This is an appeal from the order of the district court revoking and then reinstating, with modified conditions, the probation of appellant Mike Huff. We affirm.

ISSUE

Huff sets forth the issue on appeal as:

Whether the district court abused its discretion when it revoked Mr. Huff's probation for violating a condition of probation when Mr. Huff could not physically comply with the condition because of his paralysis?

FACTS

On November 16, 2001, Rush Locke, a probation and parole agent in Johnson County, sent Huff a letter requesting that Huff, as an individual on probation, come in for an office visit. Huff complied, appearing in Locke's office on November 26, 2001, at 10:00 a.m. During this visit, Locke requested that Huff submit to a urine analysis. Huff informed Locke that he was unable to comply because he was unable to urinate on demand due to his physical condition, paralysis. Specifically, Huff stated that "he goes without urinating anywhere from three days to two weeks." Locke then requested, as specified under Wyoming Department of Corrections policy, that Huff return to the office. in two hours to produce the sample and indicated that if Huff had difficulty in urinating he should provide a note from his doctor. Huff told Locke that he had not seen a doctor for thirty years and expressed his unhappiness with being asked to return, saying that it cost him $8.00 for gas and oil to make the visit and that he was going to bill the State for that sum.

[T4] At 11:55 a.m. that same day, Huff telephoned Locke to inform him that he would not be able to produce a sample at 12:30 p.m. He also told Locke that he should "proceed with the court papers and stated he would request a trial and bring in a doctor's testimony." Accordingly, Locke requested that Huff come in the next morning at 9:00 a.m. to produce a urine sample.

Huff did return the following day at 9:00 a.m. Nevertheless, he advised Locke that he had just previously urinated at Har-dee's Restaurant before the visit. Huff indicated that he therefore could not then give a sample and requested that Locke provide him with a sample bottle to take with him so he could provide a sample within the next few weeks. Locke advised Huff that the Department of Corrections did not allow for this manner of urinary collection because proper monitoring procedures could not be followed. Further, Locke told Huff that Department of Corrections policy stated that failure to submit to a chemical analysis of one's person within two hours of the request is considered a refusal.

[T6] A petition for probation revocation was then filed by the State. At the probation revocation hearing, Locke testified that he was not aware of alternative testing procedures other than urinalysis for drug use screening and that blood tests were not administered to persons on probation. Huff testified that he did not submit to urinalysis because he was paralyzed on his left side due to a stroke he suffered at age fourteen and could not, therefore, urinate on demand. Huff also testified that he had seen Dr. Holst, a urologist, who confirmed that he had a voiding dysfunction. Huff further testified that he would submit to a blood test, if asked, and had done so in the past. A memorandum was further submitted from Dr. Holst that stated that Huff had a voiding dysfunction which was most likely related to his neurologic condition. In addition, this memorandum indicated that Huff stated that he urinates two times per day.

Ultimately, the district court found that Huff had violated his probation conditions. The district court, therefore, entered an order revoking Huff's probation and reinstating his probation with the condition that chemical testing analysis allow for submission of a blood sample. The term of Huff's probation remained unchanged. This appeal followed.

STANDARD OF REVIEW

[T8] "The imposition as well as the revocation of probation Hes within the sound discretion of the district court, and we will not reverse the actions of the district court unless that discretion is abused." Trujillo v. State, 2002 WY 56, ¶ 6, 44 P.3d 943, ¶ 6 (Wyo.2002). We have a well-established standard for analyzing claims for abuse of discretion:

Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously. [Griswold v. State, 2001 WY 14, ¶ 7, 17 P.3d 728, ¶ 7 (Wyo.2001)]. "In the absence of an abuse of discretion, we will not disturb the trial court's determination." Id. The burden is on the defendant to establish such abuse. Trujillo [v. State ], 2 P.3d [567] at 571 [(Wyo.2000)].

Skinner v. State, 2001 WY 102, ¶ 25, 33 P.3d 758 ¶ 25 (Wyo.2001); see also Gleason v. State, 2002 WY 161, ¶ 29, 57 P.3d 332, ¶ 29 (Wyo.2002).

DISCUSSION

[¶9] Huff asserts that the district court abused its discretion when it revoked his probation and then immediately reinstated his probation with additional conditions because the record indicated that Huff did not violate the terms of his probation. Huff argues that the record only showed that he was physically unable to urinate, making it impossible for him to comply with chemical testing as a specified condition of his probation. We strongly disagree.

[¶10] Our review of the record indicates that evidence was presented to allow the district court to conclude Huff violated the terms of his probation. Specifically, Huff testified that he did urinate at Hardee's just prior to his appointment with Locke. Further, Huff's statements to Locke that he did not urinate "from three days to two weeks" is refuted by those statements recorded by Dr. Holst that Huff told him that he urinated two times a day. Further, the transcript of the revocation hearing indicates that after the district court had already made its decision, Huff stated:

I am paralyzed totally, my left side. That includes the urinary tract part of my body. I have no mechanism to turn it off and turn it on. When it runs, it runs; I dive into Hardee's. I do it on a run on the way to Rush Locke's office. I have no choice.

[T 11] Moreover, the record is patently clear that Huff was evasive, uncooperative, and hostile regarding Locke's efforts to secure a urine sample from him. Initially, when Huff was asked to confirm his condition, he told Locke that he had not seen a doctor for thirty years. In addition, when advised that he would need to return in two hours, Huff expressed his unhappiness with being asked to return, saying that it had cost him $8.00 for gas and oil to make the visit and threatening that he was going to bill the State for that amount. Thereafter, before even attempting to give a urine sample two hours later, Huff telephoned to say that he would not be able to produce a sample at 12:30 p.m. and advised Locke to simply proceed with the court papers. Huff further indicated that when Locke filed these pleadings with the court that he would request a trial and bring in doctor's testimony. Unarguably, Huff knew at that time that this approach was transparently elusive, would cause Locke additional time and effort, and would unnece-essarily involve the court system.

[¶12] In order to give Huff the benefit of the doubt, Locke, with an abundance of patience, asked Huff to return the next day to give a urine sample. This favorable offer by Locke was met by Huff indicating that he had just minutes earlier urinated at Hardee's making it impossible for him to comply with Locke's request. Huff followed up this statement by making the request that Locke provide him with a sample bottle to take with him so he could provide a sample within the next few weeks which did not allow for proper monitoring procedures to be followed.

[¶13] Finally, although Huff indicated at the hearing that he would be willing to give a blood sample, he did not volunteer this information to Locke. Indeed, Huff testified at hearing that when these same issues arose with his previous probation officer, Huff had submitted a blood sample for testing. Nevertheless, Huff did not advise Locke of these facts. Hence, we hold that the district court did not abuse its discretion in revoking and then reinstating, with modified conditions, Huff's probation. To the contrary, the decision of the district court was based on sufficient evidence.

[¶14] The additional conditions do not prejudice Huff since he admitted that he would voluntarily submit to blood testing, and Huff had the implicit obligation to cooperate with probationary officials as a part of his probationary term in any event. In addition, submission to drug testing was always a condition imposed as a part of Huff's probation. Therefore, the district court merely changed the method of drug testing resulting in no prejudice or harm to Huff.

[T15] Probation officers are required to ensure that the terms of probation are followed by those placed on probation by the court. Similarly, those placed on probation are required to strictly comply with the terms of probation specified by the court or risk the sure consequence that such probationary terms will be modified or that probation will be revoked outright.

CONCLUSION

[¶16] For the foregoing reasons, the order of the district court revoking and then reinstating Huff's probation, with modifications, is affirmed.


author: BURKE, District Judge.

text:
    2003 WY 64
    Ivan Lee SWEETS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-92.
    Supreme Court of Wyoming.
    May 23, 2003.
    Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel, Representing Appellant.

      Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Ericka S. Cook, Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and BURKE, D.J.
   BURKE, District Judge.

Appellant Ivan Sweets (Sweets) appeals a district court's order that revoked his probation and imposed the underlying two-to-four-year prison sentence. Sweets alleges that he was denied due process because he was not given notice of allegations upon which the district court based its decision. We find that Sweets' admission to one of the allegations in the petition conclusively established a probation violation, and that the district court did not abuse its discretion in revoking probation. We affirm.

ISSUES

[T2] Sweets presents the following issue for review:

Whether the district court erred in revoking [Sweets] probation and violated his right to due process by revoking [his] probation based upon allegations of which [he] had no notice[.]

The State phrases the issue as follows:

Whether the district court abused its discretion when it revoked [Sweets] probation after [he] admitted an allegation in the petition for revocation.

FACTS

On May 17, 2000, Sweets pleaded guilty to a charge of delivery of cocaine in violation of Wyo. Stat. Ann. § 35-7-1081(a)() (LexisNexis 2001). Pursuant to a plea agreement, a prison term of two to four years was suspended, and Sweets was placed on supervised probation for four years. The district court set forth terms of probation, including conditions that Sweets abide by the law and not consume, possess, purchase, or sell any illegal controlled substance.

[T4] On November 7, 2001, the State filed a petition to revoke Sweets' probation. The petition alleged the following probation violations: Sweets failed to report to his probation agent; he failed to attend Criminal Thinking Group; he refused to report to a specified location to provide a urine sample; his urine tested positive for cocaine on three occasions; he failed to obtain a substance abuse evaluation; and he refused and failed to apply for, enroll in, and complete the Intensive Supervision Program (ISP).

On November 19, 2001, the district court advised Sweets of his rights in accordance with W.R.Cr.P. 39(a)(8). On December 14, 2001, Sweets appeared with his attorney and denied the allegations of the petition.

After several continuances, a final hearing on the petition was held on February 27, 2002. Prior to any testimony being presented, Sweets admitted to having violated his probation by using cocaine. The hearing proceeded on the remaining allegations of the petition.

[T7] The State presented the testimony of the probation agent currently assigned to Sweets. The agent's testimony was based upon her limited recollection of the written notes made by a previous agent. At the conclusion of the agent's testimony, the district court concluded that the evidence did not support a finding that Sweets had violated his probation for failing to report, for failing to attend Criminal Thinking Group, for refusing to provide a urine sample, or for failing to obtain a substance abuse evaluation. After Sweets testified and counsel presented argument, the district court further concluded that the State failed to demonstrate that Sweets had failed to participate in ISP.

[T8] The district court determined that Sweets admitted an allegation in the petition and that the admitted conduct violated terms of probation. The district court revoked probation and sentenced Sweets to the state penitentiary to serve the two-to-four-year sentence. This appeal followed.

STANDARD OF REVIEW

[T9] A district court's decision to revoke probation and impose a sentence is discretionary and will not be disturbed unless the record shows a clear abuse of discretion. Mapp v. State, 929 P.2d 1222, 1225 (Wyo.1996); Kupec v. State, 835 P.2d 359, 362 (Wyo.1992). Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously. Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). "Upon review, all that is necessary to uphold a district court's decision to revoke probation is evidence that it made a conscientious judgment, after hearing the facts, that a condition of probation had been violated." Krow v. State, 840 P.2d 261, 264 (Wyo.1992).

DISCUSSION

[¶10] Sweets argues that the district court's decision to revoke probation was based upon information of which he had no notice, thereby violating his right to due process. A probation revocation proceeding consists of two distinct phases. The first part, the adjudicatory phase, requires the district court to determine by a preponderance of the evidence whether a condition of probation was violated. W.R.Cr.P. 39(a)(5). The second, dispositional phase, is triggered only upon a finding that a condition of probation was violated. Mapp, 929 P.2d at 1226.

[¶11] Due process requires that a defendant be given written notice of the claimed violations of probation. Shaw v. State, 998 P.2d 965, 967 (Wyo.2000). In probation revocation proceedings, notice pertains to the charges regarding a violation of the conditions of probation, not to matters discussed during a dispositional phase. W.R.Cr.P. 39(a)(d); Gailey v. State, 882 P.2d 888, 892 (Wyo.1994). Sweets does not claim that he did not receive a copy of the petition or that the petition did not set forth an alleged violation based upon cocaine use. Sweets' concern about notice seems to be directed at the dispositional phase and is not, in actuality, a due process argument. In addressing Sweets' concerns, we will consider whether the district court abused its discretion in revoking Sweets' probation.

[¶12] Sweets concedes that he admitted using cocaine, but asserts that because none of the other allegations of the petition were established, the district court erred in revoking his probation. He contends that three positive urinalyses, standing alone, would not have prompted Probation and Parole to petition to revoke his probation and should not result in revocation. However, Sweets was advised before he admitted the allegation that any violation of his probation could result in revocation and imposition of the suspended prison sentence. Additionally, we reject the notion that illicit drug use is not conduct sufficiently serious to prompt revocation proceedings.

[¶13] Sweets' admission that he violated a condition of probation conclusively established the violation. Mapp, 929 P.2d at 1226. Onee a violation is established, the district court considers an appropriate disposition. Id.

[¶14] Sweets asserts that remarks by the district court demonstrate that its decision to revoke was based upon violations other than his admitted use of cocaine. At the revocation hearing the district court commented:

Mr. Sweets, let me finish here. You know what got you here this last time, it wasn't the probation violations. It was delivery of cocaine. You know, that was a felony for which you were facing, you know, a lot of years in prison, and as a third-time offender, you got a tremendous break when you got probation this time. You were facing up to 20 years in prison and a $25,000 fine, and after having gone to the penitentiary twice, you got a two-to-four-year suspended sentence, and for the past two years, probation has not aided you in any way, because we now have another-you're still dinking around with cocaine six months ago, and who knows how many other times because you did not -. go to your probation agent and you were not getting UAs.
I don't know if there were more. I guess I can't assume that there were, but I do know that you did use cocaine on three times. You don't grow that in your own home. You're dealing with drug dealers. Those are people you're not supposed to be associating with. You haven't cut off your previous ties to your-your drug life.
This Court is revoking your probation and sending you to the State penitentiary, there to serve your two-to-four-year prison sentence.

[¶15] Sweets claims that he did not receive notice that associating with "drug dealers" was a claimed violation. However, the district court did not find a violation of probation terms based on association with drug dealers. The above-quoted comments were made during the dispositional phase and explain the district court's disposition, not its findings as to the violations established.

[T16] In the dispositional phase, the district court must deliberate not only upon the violation, but also the reasons the conditions were originally imposed and the circumstances surrounding the violation. After consideration of all these factors, the district court must then determine the appropriate consequences of the probationer's violation. Mapp, 929 P.2d at 1226. The record reveals thoughtful consideration by the district court, and we find no abuse of discretion in the imposition of a prison term. Sweets was placed on probation for a drug crime, so abstinence from illegal drugs would appear to be critical to successful probation. In considering the cireumstances surrounding the violation, the district court inferred that Sweets still had ties to the drug world.

[¶17] Sweets contends that the district court failed to consider intensive supervised probation as an alternative to prison. However, the record demonstrates that the district court did consider probation and concluded that it had not aided him in any way. By referring to Sweets' continued drug use and his failure to report to his agent during the time the revocation was pending, the district court explained why continued probation was not appropriate.

CONCLUSION

[¶18] Sweets' admitted use of cocaine was a violation of his probation, and the district court did not abuse its discretion by revoking probation. The order revoking Sweets' probation and imposing sentence is affirmed.


text:
    2003 WY 65
    Johnny Lee FORD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-226.
    Supreme Court of Wyoming.
    May 23, 2003.

      Kenneth M. Koski, State Public Defender; and Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Faculty Director, Prosecution Assistance Program; and M. Rick Erickson, Student Intern. Argument by Mr. Erickson, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

Johnny Lee Ford (Ford) appeals the judgment and sentence entered against him upon conviction of first-degree sexual assault. Ford pled guilty to one count of first-degree sexual assault pursuant to a plea agreement. Ford claims that the prosecutor breached the plea agreement and he therefore should have been allowed to withdraw his guilty plea. We agree and reverse and remand.

ISSUES

Ford presents the following two issues:

I. Whether Mr. Ford should be allowed to withdraw his guilty plea?
II. Whether the sentence reflected in Mr. Ford's written order of sentence is illegal as it is inconsistent with the oral sentence given in open court and was not approved by defense counsel before being signed by the court?

The State phrases the issues in the following manner:

I. Did the State breach its plea agreement with appellant, and did the district court abuse its discretion in denying appellant's request to withdraw his plea of guilty?
II. Was there a discrepancy between the district court's oral pronouncement of appellant's sentence and the written judgment and sentence entered by the court?

FACTS

Ford was charged with first-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(i) (LexisNexis 2001). Ford initially pled not guilty to this charge and was released on signature bond. A short time later, the State filed a petition to revoke Ford's bond on the ground that he had violated his bond conditions when he was arrested for battery.

On March 8, 2001, Ford appeared in district court and entered a guilty plea to the first-degree sexual assault charge. The guilty plea was made pursuant to a plea agreement under which the State agreed to recommend "a 5-to-10-year sentence in prison suspended with placement at either ISP or in the Adult Community Corrections program with a requirement of sex-offender treatment and all standard conditions of probation."

Following Ford's guilty plea, he was referred to Community Alternatives of Cas-per, to the Intensive Supervision Program, and to Frontier Correctional Systems. All three programs denied Ford admittance, having determined that he would not be suitable for placement. Ford was sentenced on August 24, 2001. At the sentencing hearing the following exchange took place:

[Prosecutor]: Well, Your Honor, as the record indicates, this is somewhat of an unusual situation because the original plea agreement was for a term in the Wyoming State Penitentiary of not less than 5 nor more than 10 years with a referral to the ISP or CAC programs.
Well, all of those referrals were made, and [Ford], unfortunately, was rejected by all of them, partly because, as you can also tell by the record, [Ford] was originally released on a bond, but then was re-inear-cerated after having committed and pled to a battery domestic violence situation, and then we entered into the plea agreement. He agreed to stay in jail pending sentencing on the first-degree sexual assault. [Defense Counsel]: Your honor, I hate to interrupt again.
It would be our position-I would object to any further comments from the district attorney's office. It's our position that they have made a recommendation as to sentencing, and that there really is no further appropriate comment in terms of why that-why he wasn't-unless there's evidence as to that, which I don't believe there is, I don't believe it's appropriate for them to comment on why he was not accepted at ISP or CAC.
[Prosecutor]: I was simply reciting what the substance of the record is thus far, Your Honor.
I believe the reason [Defense Counsel] is objecting, although I've never had anybody object to making sentencing-my making sentencing arguments when there's no agreement to stand silent at sentencing. That's never been contemplated.
In any event, what I was about to say was [Ford] remained incarcerated, and has demonstrated through his behavior that's documented at the jail that he is a bad risk to go to an ISP or CAC program.
He's had numerous write-ups for things such as property destruction at the jail. He's made threats to other inmates. He's engaged in odd, unexplained behavior that has put him under maximum security and-
[Defense Counsel]: We would have a continuing objection.
[Prosecutor]:-and put in jail, that he needs to be monitored closely. Those are the kind of things that, as indicated, make him a bad risk for anything other than the term as stipulated of 5 to 10 at the penitentiary.

Following the above discussion, Ford's mother addressed the court. Defense counsel then indicated that Ford believed that the district attorney had violated the terms of the plea agreement and he wished to withdraw his plea. The court stated that it did not believe the plea agreement was violated and denied the motion. The trial court further indicated that it believed that the prosecutor made the recommendation that she agreed to make, but that it was an inappropriate recommendation that the court would not accept.

Ford was then sentenced to a term of six to ten years in the penitentiary. During the oral pronouncement of the judgment and sentence the trial court stated that Ford is "entitled to credit for time served against that minimum and maximum time." The written judgment and sentence provided that Ford "shall be given eredit against the minimum and maximum sentence for time served in the Laramie County Detention Facility awaiting disposition of this matter which equals ten (10) days (October 24, 2000 to November 2, 2000), [Ford] shall not receive credit for time served for his bond revocation (January 31, 2001 to August 24, 2001)." This appeal followed.

STANDARD OF REVIEW

[¶8] "When a plea of guilty rests to any significant degree on a promise or agreement by the State, that promise must be fulfilled. Whether the prosecutor has violated the plea agreement is a question that is reviewed de novo." Herrera v. State, 2003 WY 25, ¶ 8, 64 P.3d 724, ¶ 8 (Wyo.2003) (citing Clingman v. State, 2001 WY 46, ¶ 4, 23 P.3d 27, ¶ 4 (Wyo.2001); Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971); Clouse v. State, 809 P.2d 791, 795 (Wyo.1991); and United States v. Robertson, 45 F.3d 1423, 1442 (10th Cir.1995)). See also Browning v. State, 2001 WY 93, ¶ 32, 32 P.3d 1061, ¶ 32 (Wyo.2001). W.R.Cr.P. 32(d) governs the withdrawal of a guilty plea prior to sentencing. "If a motion for withdrawal of a plea of guilty ... is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason." See Herrera at ¶ 9.

[¶9] Whether the trial court properly denied a motion for withdrawal of a guilty plea is reviewed under an abuse of discretion standard. In making this determination we must "determine whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious." Herrera at ¶ 10 (citing Burton v. State, 2002 WY 71, ¶ 44, 46 P.3d 309, ¶ 44 (Wyo.2002); Cook v. State, 7 P.3d 53, 58-59 (Wyo.2000); Vaughn v. State, 962 P.2d 149, 152 (Wyo.1998)).

DISCUSSION

Withdrawal of Plea

[¶10] A plea agreement is a contract between the State and a defendant. As such, both parties must adhere to the terms of the contract, and each party is entitled to the benefit of the bargain entered. The type of plea agreement in this case is that described by W.R.Cr.P. ll1(e)(1)(B), "the attorney for the state will ... make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court." In this type of plea agreement the defendant provides consideration by pleading guilty. In return, the State supplies consideration by making the promised recommendation or by not opposing the defendant's request for a particular sentence.

[T11] When determining whether a breach of the plea agreement has occurred we: "(1) examine the nature of the promise; and (2) evaluate the promise in light of the defendant's reasonable understanding of the promise at the time the plea was entered." Schade v. State, 2002 WY 133, ¶ 5, 53 P.3d 551, ¶ 5 (Wyo.2002) (quoting Browning, at 132). Our analysis is guided by the principles of general contract law. Schade, at ¶ 5. Just as in contract law, a party is not released from its obligation unless the other party has materially or substantially breached that agreement. Browning, at ¶ 82. "A material or substantial breach is one that goes to the whole consideration of the agreement." Schade, at ¶ 5 (quoting Browning at ¶ 32).

[T12] Because the plea agreement in this ease was not reduced to a specific written document, we must look to the recitation of the plea agreement given at the change of plea hearing to determine the terms of the agreement. In doing so, we see that the terms of the agreement provided that in exchange for a guilty plea, the State would recommend "a 5-to-10-year sentence in prison suspended with placement at either ISP or in the Adult Community Corrections program with a requirement of sex-offender treatment and all standard conditions of probation."

[¶13] We begin our analysis with the nature of the promise. At the time the plea was entered, the State agreed to recommend not only a five-to-ten-year prison sentence but also the suspension of that sentence with placement in an alternative program. The nature of the promise was not just a recommendation for a certain prison term but also a recommendation for suspension of that term. In that sense, the nature of the promise here is a recommendation for a probation-type sentence not a stipulated prison term. See State v. Brooke, 134 Idaho 807, 10 P.3d 756, 758 (Idaho App.2000) (holding that a suspended sentence implicitly contemplates probation).

[T14] Next, we turn to the defendant's reasonable understanding of that promise at the time the plea was entered. When we look at Ford's understanding of the plea agreement in his own words we see:

The district attorney has offered me the following plea agreement. I plead guilty to the first degree sexual assault, the D.A. recommends 5-10 years in prison, suspended, with me to be placed at ISP or CAC with requirement of sex offender treatment and all other standard terms and conditions of probation. As to the battery, I would plead guilty, I would receive an additional 90-120 days suspended on that case (when I am sentenced on the felony), with no contact with the victim and successful counseling through Frontier Corrections. This plea agreement would allow me to get suspended sentences as to both charges. I am aware, that if I screw up on these, I would be looking at serving 5-10 in the pen.

(Emphasis added.) Ford's recitation indicates that at the time of the agreement he understood that there would be a recommendation for a suspended sentence and placement at an alternative program. Ford's understanding appears to be that he would only go to prison if he were unsuccessful in an alternative program. Granted, the defendant is bargaining for a recommendation not a result, but Ford's recitation makes it clear that Ford did not understand that he was stipulating to five to ten years in the penitentiary without a recommendation for a suspended sentence. The suspended sentence provision was in the same agreement, and Ford understood it to be an integral part of the plea agreement.

[T15] When it came time for sentencing, the State did recommend the agreed upon prison sentence but it did not recommend the suspension thereof. Instead, the State argued that the agreement was a stipulated five to ten years in the penitentiary. In light of the nature of the government's promise and the defendant's reasonable understanding, we hold that the State breached the plea agreement. The State argued against one of the very things they had agreed to recommend by stating Ford was "a bad risk to go to an ISP or CAC program," and "those are the kind of things that, as indicated, make him a bad risk for anything other than the term as stipulated of 5 to 10 at the penitentiary." At no time during sentencing did the State make a complete recommendation like that bargained for, ie., a suspended sentence. As such, the State breached its duty to comply strictly with the terms of the plea agreement.

[¶16] Furthermore, we determine that the breach was material or substantial. Several factors are relevant to whether a breach is material or substantial, including the extent to which the non-breaching party will be deprived of the benefit it reasonably expected and the extent to which the breaching party's conduct comports with the standards of good faith and fair dealing. Schade, at ¶ 5. As just discussed, Ford reasonably expected a recommendation for a suspended sentence with placement at an alternative program. A recommendation for a particular sentence and the suspension thereof was the direct inducement for the guilty plea. Ford pled guilty on the assumption that he would receive a recommendation for a suspended sentence with alternative placement, not a recommendation for prison time. Because a suspended sentence is much different than a stipulated prison term, the breach went to the whole consideration of the agreement. Therefore, the recommendation for the suspension of the sentence was a material and substantial part of the agreement,.

[¶17] In fairness to the State, Ford could not be admitted to any of the programs in which it had agreed to recommend placement. The State claims that Ford's enrollment was an essential part of the agreement and "it would be unreasonable and unrealistic to require the State to adhere to its original recommendation as though nothing had happened to make that recommendation impossible of fruition." The State essentially asks us to excuse its failure to strictly comply with the agreement because Ford was not accepted to any of the alternative programs. The State seems to claim that the agreement for a five-to-ten-year prison term was unconditional but the recommendation for suspension was conditioned upon Ford's acceptance into one of the alternative programs. If that was the case, such terms were not stated in the recitation of the plea agreement. Without an express agreement indicating what would happen should Ford not be admitted to the alternative programs, we are reluctant to place the risk and consequence of such an eventuality on the defendant alone. In the absence of an agreement to the contrary, both parties should bear the risk of such an event occurring. See Downing v. Stiles, 635 P.2d 808, 813-15 (Wyo.1981) (discussing the contract principles of frustration of purpose and impossibility).

[¶18] Furthermore, we have said that the prosecutor may not play fast and loose with the established terms of a plea agreement and must explicitly stand by those terms agreed upon. Herrera, at ¶ 18. If the prosecutor's performance of the terms of a plea agreement is not possible, a withdrawal of the plea is the correct remedy. The prosecutor's remedy was not to violate or mis-characterize the agreement but rather move to withdraw the plea agreement if she did not wish to be bound to its terms. Neither the principles of fairness nor the principles of contract law allow the State to retain the benefit of the agreement while avoiding its obligation. See State v. Rardon, 2002 MT 345, ¶ 18, 313 Mont. 321, 61 P.3d 132, ¶ 18 (Mt.2002). "[It would be unfair to accept a guilty plea where part of the bargain, upon which the plea was based, was breached. The defendant had not agreed to plead guilty to charges under terms other than those set forth in the agreement." Cardenas v. Meacham, 545 P.2d 632, 638 (Wyo.1976) (explaining the rationale behind the Santobello deci-gion.)

[¶19] Beyond just failing to recommend the suspended sentence, the prosecutor further characterized information in the presen-tence investigation report. As noted in Clingman, ¶ 21 (Golden, J., concurring):

A prosecutor who drafts a plea agreement containing the terms found in the one we review today should pay particular attention to two principles of this standard: (1) the court looks to the express terms of the plea agreement and construes any ambiguities against the government as the drafter of the agreement; and (2) the government breaches such an agreement when it provides a legal characterization of facts found in the presentence report or argues the effect of those facts to the sentencing judge.

Here, the prosecutor not only failed to make the recommendation to which she agreed but she argued that Ford would not be fit for anything but a prison stay. The State clearly argued facts found in the presentence report when it argued that his behavior made him a bad risk for anything other than prison time. As such, the prosecution's remarks certainly violated the spirit of the agreement.

[T20] Lastly, as noted in our standard of review, the decision to withdraw must be based on a fair and just reason.

Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe. The result would be to undermine respect for the courts and fritter away the time and painstaking effort devoted to the sentencing process.

Browning, at ¶ 27 (quoting State v. McDermott, 962 P.2d 136, 138 (Wyo.1998)). This was not an instance of Ford trying to test the weight of potential punishment. Ford moved to withdraw his guilty plea before sentence was imposed. Because the plea agreement was breached, Ford established a fair and just reason for withdrawal of his guilty plea, and the trial court abused its discretion by not allowing Ford to withdraw his plea.

Discrepancy Between the Oral and Written Judgment and Sentence

[T21] Because we reverse and remand on the first issue, we need not address the see-ond issue. Should such a question arise again, the trial court can simply clarify exactly how much time should be credited for the time served.

CONCLUSION

[¶22] For the reasons provided above, the judgment and sentence is reversed, and this matter is remanded with the direction that Ford be allowed to withdraw his guilty plea.


author: HILL, Chief Justice.

text:
    2003 WY 66
    Rickey Dean INNIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-132.
    Supreme Court of Wyoming.
    May 29, 2003.

      Ken Koski, State Public Defender; Douna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel, Representing Appellant. Argument by Mr. Roden.
    Hoke MacMillan, Wyoming Attorney General; Paul S8. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Deborah R. Hochhalter, Student Intern, Representing Appellee. Argument by Ms. Hochhalter.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

Appellant, Rickey Dean Innis (In-nis), was convicted of conspiracy to operate a clandestine methamphetamine laboratory. He was sentenced to a term of not less than ten years nor more than 18 years in the Wyoming State Penitentiary. He appeals, contending the district court did not have subject matter jurisdiction over that crime, and because the trial court committed reversible error by failing to suppress evidence seized at the time of his arrest. We will affirm.

ISSUES

Innis lists these issues:

I. Whether the district court lacked subject matter jurisdiction over the alleged conspiracy?
II. Whether the trial court erred in failing to suppress evidence resulting from the search of Mr. Shafer's vehicle because [In-nis] was illegally seized during the. search in violation of [his] State and Federal constitutional rights?

The State's brief conforms to those issues.

FACTS

Innis and his companions, Mark Shafer and Kelly McConnell, drove to Laramie on May 29, 2001. All three were residents of Fort Collins, Colorado. They went to an Albertson's store and bought a large enough quantity of cold medication so as to raise the suspicions of the register clerk. Most large stores selling those products are on the alert for such quantity purchases because they can be used in the manufacture of methamphetamine. In this case, the Albert-son's store manager called the Laramie Police Department because of the quantity of cold medication purchased. The police were informed about the purchase of the cold tablets and given a description of the car used by the group, as well as the license plate number on their car. Although the police were not aware of it at the time the trio was eventually stopped, they had also purchased many more boxes of cold tablets at other Laramie stores.

[T4] At about midnight that same date, a police officer saw the reported car pulling into a Mini-Mart store. The officer pulled up beside the suspect car, but not in a manner so as to block it. The officer asked if the group would answer some questions. The group was cooperative. One of the first questions was whether they had been at an Albertson's store. One individual said, "yes," another, "no." All three men denied purchasing cold tablets. The officer was able to observe an open bottle appearing to contain an alcoholic beverage, which was a violation of a city ordinance. During the course of that investigative stop, the police officer asked all of the men to get out of the car and he did a "pat down" search of the subjects to ensure his safety. When the officer got to Shafer, Shafer admitted he had a glass pipe in his pocket that he used to smoke methamphetamine. He consented to a police officer removing the pipe from his pocket. There was methamphetamine residue on the pipe. Shafer was then arrested and taken to the Laramie Police Department for further processing and questioning. During the course of the stop and arrests, four police officers participated in the process.

While Innis was standing outside the car, and near a waste receptacle, a police officer noticed that Innis wadded up a piece of paper and tried to throw it away. It was recovered by the police and turned out to be a receipt from an Albertson's store for cold tablets. Before being taken away, Shafer gave a written consent for a search of his car and that search turned up other evidence, including hypodermic needles, syringes, scales, baggies, a second "meth" pipe, marijuana, methamphetamine, an open container of an aleoholic beverage, and 38 boxes of cold pills which had been purchased that night by the threesome at various stores in Laramie. Eventually, McConnell was arrested for having an open container of an alcohol beverage, and both MeConnell and Innis were arrested for possession of controlled substances. Shortly after those arrests, Shafer admitted to the conspiracy, and all three were arrested on that charge as well.

[¶6] During questioning at the police department, Shafer admitted that the three were in Laramie for a "pill run," i.e., to buy cold tablets for the purpose of reprocessing them into methamphetamine. Further, he conceded it was their intention to return to Fort Collins and "cook" a batch of methamphetamine, as they had done two or three other times during the preceding month. Based upon the information obtained from Shafer, as well as other investigative materials already available to the Fort Collins police, a search warrant was obtained in Colorado for a residence owned by MeConnell and shared with Innis. That search produced evidence of the existence of a clandestine drug laboratory, which was located in a bedroom used by Innis. Shafer testified that his role in this operation, as well as McConnell's, was to obtain the cold pills and other ingredients, and that Innis was the "cook," i.e., the person who actually knew how to, and did, produce the methamphetamine in his home laboratory.

DISCUSSION

Did the District Court Have Jurisdiction Over This Crime

[T7] Innis contends that the conspiracy alleged was to have no effect in Wyoming and, therefore, Wyoming courts have no jurisdiction over the erime. Further, he asserts the only thing that occurred in Wyoming was the purchase of cold tablets, which is not a crime, and all other actions and/or intended actions transpired in Colorado.

[¶8] Jurisdiction is a question of law to be considered by this Court de novo. Tomlin v. State, 2001 WY 121, ¶ 5, 35 P.3d 1255, 15 (Wyo.2001). Wyoming has broad jurisdiction to punish a defendant, over whom it has personal jurisdiction, for an act committed outside this state, but which has an effect in this state. Rios v. State, 733 P.2d 242, 244-50 (Wyo.1987) (father of child could be convicted of interfering with child custody in Wyoming, even though neither father nor child had ever been in Wyoming, but mother was). The courts of Wyoming have subject matter jurisdiction over drug conspiracies when the conspirators intend for the conspiracy to have an effect within the state of Wyoming. Marquez v. State, 12 P.3d 711, 715-16 (Wyo.2000); and see Estradao-Sanchez v. State, 2003 WY 45, ¶¶ 6-7, 66 P.3d 703, ¶¶ 6-7 (Wyo.2003.)

[T9] The parties appear to agree, as do we, that the circumstances of this case pose a question of first impression in this state. Indeed, we have found no analogous case in any jurisdiction. The gist of Innis's argument has two distinct aspects. First, he contends that conspiracy is a crime in and of itself, and that the crime occurred in Colorado, not Wyoming. Marquez, 12 P.3d at 715; Palato v. State, 988 P.2d 512, 515-16 (Wyo.1999). Second, he maintains that the conspiracy did not have an intended effect in Wyoming, and there was no eriminal act in furtherance of the conspiracy committed in Wyoming. Because this case is one of first impression in some respects, a little background is appropriate:

Conspiracy is an inchoate offense, and is a crime in and of itself. Prohibition of conspiracy serves two distinet purposes: the punishment of group behavior and the control of inchoate activities. The offense derives from special threats posed by organized group criminality. The group danger rationale is predicated on the likelihood that the participants will reinforce each other's determination to carry out the criminal object, the object will be successfully attained, the extent of the injury to society will be large, those who commit it will escape detection, and the group's planning will have a long-term educative effect on its members, with schooling in crime the result.
Although criminalization of conspiracy punishes the inchoate offense by prosecuting the agreement itself, separating and stigmatizing jointly planned criminal activity prior to its completion, the crime of conspiracy is directed at the intended result of that agreement. The basis of conspiratorial liability is not to punish the agreement per se, but, rather, like other inchoate crimes, to punish the firm purpose to commit a substantive crime, while hopefully preventing the actual commission thereof.

15A C.J.S. Conspiracy § 98 (2002).

[¶10] Moreover, a conspiracy is a continuing offense and it lasts until the final overt act is completed. "Every act in furtherance of it is deemed a renewal or continuance of the conspiracy." 15A C.J.S. Con-sptracy § 104. We embrace the view that conspiracy is a continuing offense with a situs at the place of the original agreement and also in any other jurisdictions where acts in furtherance of the conspiracy are undertaken. 4 Wayne R. LaFave, Jerold H. Israel and Nancy J. King, Criminal Procedure § 16.4(c) at 579 (2d ed.1999).

The elements of a criminal conspiracy include: (1) an object to be accomplished; (2) a plan or scheme embodying means to accomplish that object; (8) an agreement or undertaking between two or more of the defendants whereby they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means; (4) an overt act.

15A C.J.S. Conspiracy § 108. It is not nee-essary that the overt act be criminal in character. Indeed, the overt act may be wholly innocent in nature, provided it furthers the purpose of the conspiracy. The overt act merely manifests that the conspiracy is at work. Burk v. State, 848 P.2d 225, 285 (Wyo.1993). 15A C.J.S Conspiracy, §§ 124-125.

[111] Relying upon these fundamental principles, we conclude that the conspiracy continued and was reaffirmed in Wyoming, and that an overt act, which was central to the purpose of the conspiracy, occurred here. Thus, the district court in Laramie, Albany County, Wyoming had both subject matter and personal jurisdiction over the crime for which Innis was convicted. A conspiracy may be prosecuted in Wyoming: Where any part of the agreement is entered into in Wyoming; where the agreement is entered into elsewhere but has an intended effect in Wyoming; and where the agreement is entered into elsewhere, but an overt act occurs here demonstrating the continuation of the conspiracy. This enumeration is not meant to be exhaustive of all possibilities, but only to summarize those addressed by this Court to date.

Did the District Court Err in Denying the Motion to Suppress Evidence

[¶12] Innis contends that the police officer's initial contact with the threesome, at the Mini-Mart, was an unlawful traffic stop and, thus, the detention of his person was Hlegal. Continuing, Innis contends that the driver, Shafer, had committed no traffic infractions, no crime had been committed by them purchasing the cold tablets, and no criminal activity that could be associated with them had been reported. Finally, Innis contends that the stop was pretextual and violated Innis's constitutional rights.

[¶13] When we review a district court's ruling on a motion to suppress evidence, we do not interfere with the findings of fact unless they are clearly erroneous. When the district court has not made specific findings of fact, we will uphold its general ruling if the ruling is supportable by any reasonable view of the evidence. We consider the evidence in the light most favorable to the district court's ruling because of the district court's ability to assess "the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions" at the hearing on the motion. The constitutionality of a particular search or seizure is, however, a question of law which we review de novo. Meek v. State, 2002 WY 1, ¶ 8, 37 P.3d 1279, ¶ 8 (Wyo.2002) (supporting citations omitted).

[¶14] Innis concedes that Shafer consented to a search of the vehicle from which the evidence at issue was seized and directs our attention to this authority, which we must also address as a part of our standard of review:

Even if a person cannot directly challenge the search of a vehicle because of a lack of standing, they may indirectly challenge the search if they can demonstrate that the fruits of the search are a consequence of an illegal seizure of their person. United States v. Jones, 44 F.3d 860, 872 (10th Cir.1995); United States v. McKneely, 6 F.3d 1447, 1450 (10th Cir.1998); 5 Wayne R. LaFave, Search and Seizure § 11.3(e), at 173-74 & fn. 231. This concept derives from the proposition that Fourth Amendment rights are personal in nature and, as such, one has the right to be free from unreasonable searches or seizures of their person. Id. $ 11.3(e), Rakas [v. Illinois], 439 U.S. [128] at 133-34, 99 S.Ct. [421] at 425 [58 L.Ed.2d 387 (1978)]. Thus, even without standing to directly contest the vehicle search, courts have suppressed evidence seized from a vehicle search as "fruit of the poisonous tree" if the detention or arrest of a person was unlawful. McKneely, 6 F.3d at 1450.
An investigatory or Terry stop represents a seizure which implicates the Fourth Amendment, requiring the presence of specific, articulable facts and rational inferences giving rise to a reasonable suspicion that a person has committed or may be committing a crime. Wilson v. State, 874 P.2d 215, 219-220 (Wyo.1994) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); see also McChesney v. State, 988 P.2d 1071, 1074 (Wyo.1999). There is a dual inquiry for evaluating the reasonableness of an investigatory stop: (1) whether the officer's actions were justified at the inception; and (2) whether it was reasonably related in seope to the cireumstances which justified the interference in the first instance. Wilson, 874 P.2d at 223 (quoting United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985) and Terry, 392 U.S. at 20-21, 88 S.Ct. at 1879)). The conduct of an officer is judged by an objective standard which takes into account the totality of the cireumstances. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1879-81; United States v. Lang, 81 F.3d 955, 965 (10th Cir.1996).

Putnam v. State, 995 P.2d 632, 636-37 (Wyo.2000).

[¶15] Innis concludes the introduction to this argument with this proposition: "If the detention of Mr. Innis was illegal, the evidence resulting from the search of Mr. Shafer's vehicle and Mr. Shafer's statements implicating Mr. Innis in the alleged conspiracy [have] to be suppressed."

[¶16] We have described the various levels of contacts or encounters between citizens and the police in this way: [1] The most intrusive encounter, an arrest, requires justification by probable cause to believe that a person has committed or is committing a crime. [2] The investigatory stop represents a seizure which invokes Fourth Amendment safeguards, but, by its less intrusive charae-ter, requires only the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime. [3] The least intrusive police-citizen contact, a consensual encounter, involves no restraint of liberty and elicits the citizen's voluntary cooperation with non-coercive questioning. McChesney v. State, 988 P.2d 1071, 1074 (Wyo.1999) (supporting citations omitted).

The district court issued a decision letter, which detailed its findings of fact and conclusions of law. After hearing and weighing all of the evidence pertinent to the motion to suppress, the district court concluded that the initial stop was consensual, as was the search of Shafer's car and, thus, fits into one of the exceptions where a warrant to search is not required. See Andrews v. State, 2002 WY 28, ¶ 18, 40 P.3d 708, ¶ 18 (Wyo.2002). Thus, Innis's Fourth Amendment rights were not implicated. The police officer did not activate his overhead lights, nor did he give any other visual or audible signal to bring Shafer's vehicle to a stop. Shafer pulled the car into the Mini-Mart of his own volition. The police officer made no attempt to block the car from leaving. His intention in approaching the vehicle was to ask the trio some questions. At the officer's request, the occupants of the vehicle were asked to get out of the car, and they all consented to pat down searches for the purpose of ensuring the police officer's safety. Innis was informed that he was not under arrest, although Shafer had been arrested. Innis was asked i#f he would like to wait inside one of the police vehicles at the scene and he did so. When the search of Shafer's car produced illegal narcotics, Innis was arrested. The district court's findings that In-nis was not illegally detained or arrested during the initial stop are not clearly erroneous; indeed, they are consistent with all of the relevant evidence, other than Innis's self-serving testimony to the contrary. Therefore, the district court properly denied the motion to suppress.

CONCLUSION

[¶18] The district court had jurisdiction over the conspiracy for which Innis was convicted. The district court did not abuse its discretion in denying Innis's motion to suppress. The judgment and sentence of the district court are affirmed.

      . Wyo. Stat. Ann. § 35-7-1059 (LexisNexis 2001) states:

        § 35-7-1039. Unlawful clandestine laboratory operations; penalties.
      (a) It is unlawful for any person to knowingly or intentionally:
      (i) Possess a List I or II controlled substance precursor with the intent to engage in a c clandestine laboratory operation;
      (i) Possess laboratory equipment or supplies with the intent to engage in a clandestine laboratory operation;
      (fii) Sell, distribute or otherwise supply a List I or II controlled substance precursor, laboratory equipment or laboratory supplies knowing it will be used for a clandestine laboratory operation;
      (iv) Conspire with or aid another to engage in a clandestine laboratory operation.
      (b) A person who violates subsection (a) of this section is guilty of a felony punishable by imprisonment for not more than twenty (20) years, a fine of not more than twenty-five thousand dollars ($25,000.00), or both.
      (c) A person who violates subsection (a) of this section is guilty of a felony punishable by imprisonment for not more than twenty-five (25) years, a fine of not more than fifty thousand dollars ($50,000.00), or both if the judge or jury also finds any one (1) of the following conditions occurred in conjunction with that violation:
      (i) Illegal possession, transportation or disposal of hazardous or dangerous material or while transporting or causing to be transported materials in furtherance of a clandestine laboratory operation, there was created a substantial risk to human health or safety or a danger to the environment;
      (i) The intended laboratory operation was to take place or did take place within five hundred (500) feet of a residence, business, church or school; or
      (iii) Any phase of the clandestine laboratory operation was conducted in the presence of a person less than eighteen (18) years of age.
      (d) A person who violates subsection (a) of this section is guilty of a felony punishable by imprisonment for not more than forty (40) years, a fine of not more than one hundred thousand dollars ($100,000.00), or both if the judge or jury also finds any one (1) of the following conditions occurred in conjunction with that violation:
      () Use of a firearm;
      (ii) Use of a booby trap. [Emphasis added.] Wyo. Stat. Ann. § 35-7-1058 (LexisNexis 2001) states:
      § 35-7-1058. Definitions
      (a) As used in this article:

      ii) "Clandestine laboratory operation" means:
      (A) Purchasing or procuring chemicals, supplies, equipment or a laboratory location for the illegal manufacture of controlled substances;
      (B) Transporting or arranging for the transportation of chemicals, supplies or equipment for the ilegal manufacture of controlled substances;
      (C) Setting up equipment or supplies in preparation for the illegal manufacture of controlled substances; or
      (D) Distributing or disposing of chemicals, equipment, supplies or products used in or produced by the illegal manufacture of controlled substances. [Emphasis added.]
      Wyo. Stat. Ann. § 6-1-303 (LexisNexis 2001) states:
      § 6-1-303. Conspiracy; criminal intention; venue. renunciation of
      (a) A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a crime and one (1) or more of them does an overt act to effect the objective of the agreement.
      (b) A person is not liable under this section if after conspiring he withdraws from the conspiracy and thwarts its success under circumstances manifesting voluntary and complete renunciation of his criminal intention.
      (c) A conspiracy may be prosecuted in the county where the agreement was entered into, or in any county where any act evidencing the conspiracy or furthering the purpose took place.

      . Laramie, WY, Municipal Code § 5.08.210 (2003) states:
      5.08.210 Open containers.
      A. No person shall consume or carry in open containers alcoholic liquor or malt beverages on any street or highway, in any vehicle, in any restaurant, hotel dining room or any other public place or public area whatsoever within the city, except places where the sale or service of alcoholic liquor or malt beverages is authorized by Wyoming State Law or city ordinance. [Emphasis added.]