author: HILL, Chief Justice.

text:
    2002 WY 160
    Robin BEAUGUREAU, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-94.
    Supreme Court of Wyoming.
    Oct. 22, 2002.
    Rehearing Denied Nov. 19, 2002.

      Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ting N. Kerin, Assistant Appellant Counsel, Representing Appellant, Argument presented by Ms. Kerin.
    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, Prosecution Assistance Program; and Crystal S. Swanson and Howard Scotland, Student Interns, Representing Appellee. Argument presented by Mr. Scotland.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   HILL, Chief Justice.

[11] Appellant, Robin Beaugureau, seeks review of the judgment and sentence of the district court finding her guilty of two counts of child abuse. She contends that there is insufficient evidence to sustain her conviec-tions on two counts of felony child abuse. She also contends that she was denied due process of law and a fair trial because the State prevented her from interviewing one of the victims before trial, that the trial court erred in refusing to inquire into the competency of one of the victims who was called as a witness, that the prosecutor engaged in misconduct during his cross-examination of Beaugureau, and that the trial court erred in not conducting an inquiry into whether or not she needed substitute counsel.

[T2] Although we find serious errors in the proceedings, the errors were not prejudicial and are harmless. Thus, we will affirm.

ISSUES

[T3] Beaugureau provides this statement of the issues:

I. Was there insufficient evidence to con-viet Appellant of child abuse of the alleged victim, [BC]? -
II. Was there insufficient evidence to convict Appellant of child abuse of the alleged victim, [SD] and did the trial court abuse its discretion in allowing the late amendment of the information with regard to the allegation of child abuse of SD?
III. Was Appellant denied due process of law when an agent of the State, a DFS employee, refused to allow Appellant's trial counsel to interview the alleged victim, [BC], particularly in view of the fact that the prosecutor was allowed to speak with [BC] prior to trial?
IV. Did the trial court err in refusing to examine [BC's] competency prior to the substance of his testimony?
V. Should this Court reverse its position articulated in Dike v. State, 990 P.2d 1012 (Wyo.1999), wherein the Court reaffirmed that "when the jury is presented with con-tradietory testimony, counsel is allowed to communicate the reasonable inference that one of the witnesses is lying"? [sic] Additionally, did the prosecutor commit prose-cutorial misconduct by using contradictions in the testimony to improperly question Appellant?
VI. Did the trial court err in not holding a hearing or inquiry to determine if appellant needed substitute counsel?

The State rephrases the issues in these words:

I. Was there sufficient evidence to con-viet Appellant of child abuse as to BC?
II. Was there sufficient evidence to con-viet Appellant of child abuse as to SD, and did the district court abuse its discretion in allowing the State to amend the information with regard to the dates when the child abuse was committed?
III. Was Appellant denied due process of law when the Department of Family Services refused to allow Appellant's counsel to interview victim BC prior to trial?
IV. Did the district court err in refusing to conduct a further competency hearing regarding BC?
V. Did the district court apply the correct rule of law to the facts in the case, should this Court overrule Dike v. State, and did the prosecutor commit misconduct by using contradictions in the testimony during questioning of Appellant?
VI. Did the district court err in not holding a hearing or inquiry to determine if Appellant needed substitute counsel?

FACTS

[T4] The instant appeal is limited to facts that describe two fairly discrete incidents, though the testimony at trial spanned more than a decade and a half worth of instances of ongoing abusive conduct by Beaugureau and her husband, Francis. Their victims were principally SD and BC. The first incident relates to Beaugureau's daughter SD (SD was a step-daughter to Francis). Sometime between December 1, 1997 and March 31, 1998, it was alleged that Beaugureau severely beat SD, inflicting physical injury constituting felony child abuse.

- [15] The second incident involved BC. It was alleged that between July 1, 1995 and October 3, 1996, Beaugureau inflicted physical injury on BC constituting felony child abuse. The central incident, although the record bears out more incidents than we care to attempt to count, took place when Beaugu-reau forced BC to stick his hand into a burning acetylene torch. BC suffered a severe burn during that incident and a skin graft became necessary in order to successfully treat the injury.

[T6] We note at this juncture that the record chronicles incidents of child abuse that span most of the lifetimes of SD and GD (who were 15 and 19 years of age, respectively, at the time of trial) and 15 months in the life of BC. No issue is raised in regard to the volume of evidence that was admitted at trial. It was a part of Beaugureau's trial strategy to attempt to show that Francis was a controlling and manipulative religious zealot who forced Beaugureau to abuse children, and, thus, it was Beaugureau's intention that this great volume of evidence be admitted.

DISUSSION

Sufficiency of the Evidence

[17] The benchmark for review of sufficiency of the evidence claims is whether the evidence, when viewed in the light most favorable to the State, is such as to permit a reasonable trier of fact to find guilt beyond a reasonable doubt. Statezny v. State, 2001 WY 22 ¶ 15, 18 P.3d 641, ¶ 15 (Wyo.2001); Hadden v. State, 2002 WY 41, ¶ 27, 42 P.3d 495, 1 27 (Wyo.2002).

[T8] Applying this standard to the two convictions challenged in this appeal, we need only point out that SD testified that Beaugureau beat her so that she had a bloodied and broken nose, and that BC testified that Beaugureau forced him to thrust his hand into the flame of an acetylene torch. In each instance, the testimony of the victim is sufficient to sustain the respective conviction. It is surplusage, but we note, as well, that there was considerable corroborating evidence in each instance.

Late Amendment of Information

[19] The trial court permitted the amendment of the information with respect to the count involving SD. The original information set forth a time frame ranging from December 1, 1997 until December 31, 1997. SD's testimony put the salient date as between January and March of 1998. Other corroborating testimony also placed the date of that occurrence in early 1998. The motion to amend was filed on November 29, 1999, and the district court granted the motion on that date. The trial began on November 29, 1999. The State contended that Beaugureau was given ample notice because the motion was delivered to the office of her attorney "four or five days" before the commencement of trial. The State neglected to also relate that the date of manual service was on Thanksgiving Day, when the defense attorney was not in his office. Although the conduct of the State is in many ways inexceusable and demonstrates a disregard for the time-honored processes of the criminal justice system, we will not let the "criminal go free, merely because the prosecutor blundered." See Meek v. State, 2002 WY 1, ¶ 15-19, 37 P.3d 1279, ¶ 15-19 (Wyo.2002).

[110] As was the case in Meek, there is no demonstrable prejudice to Beau-gureau here. Beaugureau was not charged with an additional or different crime. Beau-gureau did not deny the incident at issue, she only contended that she did not beat SD, but rather only gently slapped her in order to bring her out of the fit of hysteria she was suffering. No substantial right belonging to Beaugureau was prejudiced, but the system bears a black mark due to the manner in which this issue was handled.

Denial of Due Process

[Y11] Beaugureau contends that her rights to due process of law were denied because the prosecutor interfered with her attorney's efforts to interview BC before trial. The issue was not raised before the trial court, and the parties have agreed that we must review this asserted error under the plain error standard. The arguments by both Beaugureau and the State are wide of the mark. The issue is not whether BC had a right to refuse to talk with Beaugureau's attorney, but whether, as Beaugureau claimed, the State actively interfered with defense counsel's right (as well as duty) to at least try to talk with BC. See Gregory G. Sarno, Annotation, Interference by Prosecution with Defense Counsel's Pretrial Interrogation of Witnesses, 90 A.L.R.3d 1231 (1979 and 2001 Supp.). The record does not bear out Beaugureau's assertion that the prosecution interfered with defense counsel's efforts to interview BC, nor does it demonstrate that the matter was ever called to the attention of the district court. We decline to further consider this issue because it was not raised below in any meaningful manner. We generally will not consider issues that are raised for the first time on appeal unless they are jurisdictional issues or issues of such a fundamental nature that they must be considered. Bell v. State, 994 P.2d 947, 957 (Wyo.2000); also see Bailey v. State, 12 P.3d 178, 177-79 (Wyo.2000).

Hearing on BC's Competence to be a Witness

[T12] Although the context was somewhat different (sexual abuse of a five-year-old child), in English v. State, 982 P.2d 139, 145 (Wyo.1999) we held:

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." Simmers [v. State], 943 P.2d [1189] at 1199 [(Wyo.1997)]; 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. Selby v. Savard, 184 Ariz. 222, 655 P.2d 342, 347 (1982); People v. Estorga, 200 Colo. 78, 612 P.2d 520, 524 (1980); State v. Joblin, 107 Idaho 351, 689 P.2d 767, 771 (1984); State v. Howard, 247 Mont. 370, 806 P.2d 1038, 1039 (1991). However, when children are called into the courtroom to testify, we have held that onee 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. Burt v. Burt, 48 Wyo. 19, 41 P.2d 524, 525 (1985) (quoting 5 Jones Commentaries on Evidence 3958, 3959, § 2107 (2d Ed.)). See also Punches v. State, 944 P.2d 1131, 1136 (Wyo.1997); Trujillo v. State, 880 P.2d 575, 579 (Wyo.1994); Baum, 45 P.2d at 879; and Larsen, 686 P.2d at 585.
We have directed the district courts to utilize 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."
Larsen, 686 P.2d at 585 (quoting State v. Allen, 70 Wash.2d 690, 424 P.2d 1021 (1967)).

(Emphasis added.) Also see Alicea v. State, 13 P.3d 693, 696-98 (Wyo.2000).

[T13] In the instant case there is no allegation that BC's testimony was in some way tainted. However, there was an obvious basis for a request for a competency hearing in the record, as BC was then residing at the Wyoming State Hospital and, prior to his appearance on the witness stand, the record was replete with references to his numerous institutionalizations for mental disorders and emotional problems. At the time BC was called to testify, defense counsel requested that the trial court conduct a brief competency hearing. At that point, it was the duty of the court to make an independent examination of BC to determine competency. However, the trial court declined to perform that duty, viewing the request as a disruption to the proceedings and insisting that an examination should have been done prior to trial. Without question, the trial court erred in failing to make some limited inquiry as to BC's competency. However, our rules of appellate procedure admonish us to disregard "[aJny error, defect, irregularity or variance which does not affect substantial rights." WRAP. 9.04. In this instance, both counsel for the State and counsel for the defense asked the crucial questions that serve to assist an appellate court in deciding and/or reviewing whether a witness appears to be "competent." We are comfortable in concluding that the record clearly reflects that BC was competent to testify and that his testimony was corroborated by several witnesses, including that of his Mother and Beaugureau herself. To the extent there is any residual doubt that BC was competent to appear as a witness in this matter, that doubt quickly fades in light of the fact that virtually all of his testimony was the same as that of other witnesses to those same events. Therefore, we will disregard the trial court's error as harmless.

Prosecutorial Misconduct

[114] Beaugureau asks us to overrule our decision in Dike v. State, 990 P.2d 1012, 1026 (Wyo.1999) to the effect that "[when the jury is presented with contradictory testimony, counsel is allowed to communicate the reasonable inference that one of the witnesses is lying." That holding was based on our decision in Barela v. State, 787 P2d 82, 83-84 (Wyo.1990) wherein we opined:

In an often quoted opinion, the United States Supreme Court stated that a prosecutor should prosecute with earnestness and vigor but "while he may strike hard blows, he is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1985). Determining the location of the line between fair and foul requires reference to the underlying reasons for limiting argument of counsel.
The purpose of limiting the argument of counsel is, fundamentally, to preserve the prerogatives of the jury. Cases involving the propriety of argument are analyzed in terms of protecting the jury from deciding the facts on a basis other than the evidence produced at trial. This analysis is seen in cases where the prosecutor alludes to information that he claims to possess but which has not been presented as evidence. See, e.g., Berger, 295 U.S. at 86-89, 55 S.Ct. at 633. The perceived risk is that the jury will consider the statements made by the prosecutor as evidence, subverting the controls that the law places on admission of evidence. When a prosecutor misstates the law concerning the burden of proof, the risk is that the jury will determine the facts with reference to the incorrect law. Stephens v. State, 774 P.2d 60 (Wyo.1989). A similar example is when a prosecutor asserts that his credibility is superior to that of a witness and that the jury is to choose between the prosecutor's credibility and that of a witness. Browder v. State, 639 P.2d 889 (Wyo.1982).
When the prosecutor asserts his credibility or personal belief, an additional factor is injected into the case. This additional factor is that counsel may be perceived by the jury as an authority whose opinion carries greater weight than their own opinion: that members of the jury might be persuaded not by the evidence, but rather by a perception that counsel's opinions are correct because of his position as prosecutor, an important state official entrusted with enforcing the criminal laws of a sovereign state. While the prosecutor is expected to be an advocate, he may not exploit his position to induce a jury to disregard the evidence or misapply the law. See Hopkinson v. State, 632 P.2d 79, 166 (Wyo.1981).
The trial court is in the best position to consider the propriety of argument that falls into the gray area between the permissible and the prohibited. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 LEd.2d 1 (1984). In the context of a particular trial, a statement may be objectionable even if the identical statement would be permitted in a different trial. These questions are best left to the discretion of the trial court. Jeschke v. State, 642 P.2d 1298 (Wyo.1982). For the purpose of review under the plain error standard, the limit on argument by the prosecutor is exceeded if the prosecutor's argument states or implies that the jury should consider factors other than the evidence presented in determining the facts.
Appellant bases part of his claim of plain error on the following statements made by the prosecutor:
"When all else fails, when there is no other defense, you use consent; but there was none in this case."
"Again, and again, and again we're going to be asking the question, who was telling the truth? People can lie in Court and people do lie in Court * * *,"
"Who do you believe in this particular situation? Do you believe the Plaintiff or the victim in this particular matter?" "You saw Mr. Taylor and Mr. Gonzales, and you know what they testified to, and you know who's telling the truth. If you lie long enough, and you lie, and you keep up with this story, and I contend that this is a story that Mr. Barela made up, you will lie * * *,"
"He lied throughout this, the court proceeding, and he has a real motive to lie wore e »
Appellant contends that these statements constitute an attack on his credibility and were statements of the prosecutor's personal belief as to the truth or falsity of the evidence presented. He argues that these statements were so egregiously prejudicial that they deprived him of a fair trial. When these statements are read in the context of the complete argument, it is apparent that the prosecutor was not attempting to induce the jury to base their factual determination on his beliefs or opinions. Rather, he was articulating the State's position upon inferences to be drawn from the evidence. It was argument pure and simple The prosecutor was careful to make it clear that the decision was in the hands of the jury. As to the statement that defendant was lying, when there is express contradictory testimony, as there was here, the inference that at least one of the witnesses is lying is a reasonable one. Wheeler, 691 P.2d at 604-5. We have previously considered the effect of a similar statement in Barnes v. State, 642 P2d 1263, 1265 (Wyo.1982), where we said that "calling a defendant a thief and a liar may not be in good taste," but when the evidence supports a reasonable inference that such is in fact the case, it does not constitute reversible error to argue the question. Id. at 1266.

We see no reason to revisit that authority in the context of this case and, therefore, we decline to overrule or otherwise modify our holdings in the above-recited cases.

[T15] Beaugureau's argument in this regard also asserts that the prosecutor engaged in misconduct during his cross-examination of her. The prosecutor asked Beaugureau several times whether or not she believed that other witnesses were lying if they contradicted her. On the first occasion, defense counsel objected, and the district court sustained, striking the question and the answer. On the second occasion, the trial court cautioned the prosecutor, "Please don't ask one witness to comment on the truth of another witness's testimony. I think that's objectionable." On the next occasion, the district court sustained another objection made by defense counsel, again cautioning the prosecutor, "Mr. Schafer, I think I made that ruling a couple of times. 'Do you have any authority that indicates that my prior ruling, about not challenging one witness as to whether another witness lied, is incorrect?" The prosecutor indicated that he did not, and the trial court admonished the prosecutor to "heed my admonition." Defense counsel then made a motion for mistrial based upon the prosecutor's repeated misconduct in this regard. The district court denied the motion for mistrial, concluding that he had properly handled defense counsel's objections and that the prosecutor's "violations" were not of a magnitude to require a mistrial. The jury was given the standard instructions with respect to its role in determining the credibility of witnesses, but defense counsel did not seek further clarification in the form of a more explicit instruction to address the prosecutor's misconduct.

[T16] In Sheeley v. State, 991 P.2d 136, 138-140 (Wyo.1999), although the overall context is significantly different, we emphasized that any improper invasion of the jury's function as the arbiter of a witness's credibility is critical and must be treated as error per se. Our discourse from that case is worth repeating here:

At the preliminary hearing for another case against Sheeley, the victim testified she did not have sexual contact with Shee-ley in Wyoming. At trial the victim testified she did have sexual contact with Sheeley in Wyoming, but then appeared to recant that testimony. On direct examination, the defense investigator testified that the victim told him she did not have sex with Sheeley in Wyoming. During cross-examination, the prosecutor questioned the investigator about the victim's testimony at the preliminary hearing as follows:
[Prosecutor] Q: You were present for that. Then she testified in court apparently much the way that she talked to you, did she not, that it had happened once in Oregon and whatever?
A: Yes.
Q: And do you recall what the court, the judge said with regard to that testimony?
A. I think he cautioned her in regard to perjury.
Sheeley did not object to this testimony and presents the issue to this court in terms of plain error. However, we are inclined to perform an error per se analysis because the prosecutor asked the witness to repeat a judge's admonition from another proceeding. We can not fathom a time nor a place where such a question would properly be presented to a witness. First, it improperly interjected judicial bias into the proceedings; and second, it required an answer that seemed to address the judge's opinion of the credibility of the victim.
We have held that " 'testimony offering an opinion as to the guilt of the defendant, when elicited by a prosecuting attorney, 7 should be perceived as error per se. Dudley v. State, 951 P.2d 1176, 1178 (Wyo.1998) (quoting Stephens v. State, 774 P.2d 60, 68 (Wyo.1989)). We considered a similar dilemma in Stephens:
We are sensitive to the proposition that judicial restraint generally demands that we address only those issues properly before us and preserved for our review. We also know that it is within our jurisdiction to decide any case as justice may demand. In addition, recent experience with post-conviction remedies teaches us that the failure of counsel to raise issues which implicate constitutional rights of a defendant in an appeal will result in those issues being presented in a subsequent proceeding under a claim of ineffective assistance of counsel. Consequently, judicial efficiency strongly suggests the treatment of obvious matters in the first appeal. We also have in mind the pertinencle] to the State of Wyoming of this statement by the Supreme Court of the United States:
"* * * Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: 'The United States wins its point whenever justice is done its citizens in the courts' "
Stephens, 774 P.2d at 63(quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963) (citations omitted)).
In Dudley, we discussed the significance of per se error:
The import of proclaiming an event as error per se is articulated in Stephens as follows:
Even though error is found, it still is necessary, in most instances, to determine whether the error was prejudicial. Unless the situation reaches the level of error per se, or is perceived to be constitutional error, error is prejudicial only if the defendant can establish a reasonable probability that, in the absence of the error, the verdict might have been more favorable.
Id. at 67 (citation omitted). Testimony elicited by a prosecutor which offers an opinion as to the defendant's guilt must be presumed prejudicial rather than treated as a question of plain error because it is impossible to determine whether the jury may have relied on the opinion in reaching its verdict. Id. at 68; Bennett v. State, 794 P.2d 879, 881 (Wyo.1990); Whiteplume [v. State], 841 P.2d [1832] at 1338 [ (Wyo.1992) ].
Dudley, 951 P.2d at 1178. Although the investigator did not give his opinion as to the guilt of the defendant, the prosecutor's question obviously sought to elicit, and did elicit, not only irrelevant evidence, but evidence which infected the proceedings with judicial bias and improper opinion testimony.
The North Carolina Supreme Court has discussed the danger of judicial comments concerning perjury affecting the jury:
Any intimation by the judge in the presence of the jury, however, that a witness had committed perjury would of course, . constitute reversible error.... Therefore, judicial warnings and admonitions to a witness with reference to perjury are not to be issued lightly or impulsively. Unless given discriminatively and in a careful manner they can upset the delicate balance of the scales which a judge must hold evenhandedly. Potential error is inherent in such warnings, and in a criminal case they create special hazards.
First among these is that the judge will invade the province of the jury, which is to assess the credibility of the witnesses and determine the facts from the evidence adduced.... It is most unlikely that a judge would ever warn a witness of the consequences of perjury unless he had determined in his own mind that the witness had testified falsely.
State v. Locklear, 309 N.C. 428, 306 S.E.2d 774, 778 (1983) (quoting State v. Rhodes, 290 N.C. 16, 224 S.E.2d 631, 636-38 (1976)).
We have often warned that a trial judge must use care not to comment on the evidence. Harris v. State, 933 P.2d 1114, 1118 (Wyo.1997) (quoting Phillips v. State, 597 P.2d 456, 458 (Wyo.1979)) (quoting Peterson v. McMicken (Nelson's Estate), 72 Wyo. 444, 499, 266 P.2d 238, 261 (1954)). In a jury trial the judge must refrain from expressing an opinion on the weight or quality of the evidence. Harris 933 P.2d at 1118. Any expression of opinion on the evidence indicating possible bias on the part of the trial judge is prejudicial, as infringing upon the jury's duties. Id. This is especially true in criminal cases. Phillips, 597 P.2d at 458. Such comments are prejudicial, reversible error. Id.
The jury was asked to decide which version of the victim's allegations was true. The jury could have drawn the conclusion that the preliminary hearing judge believed the story which would result in the guilt of the defendant over the story which absolved him. That opinion, or the impression of that opinion, had no place before this jury. "The jury is charged with resolving the factual issues, judging the witnesses' credibility, and ultimately determining whether the accused is guilty or innocent." Newport v. State, 983 P.2d 1213, 1215 (Wyo.1999) (citing Gayler v. State, 957 P.2d 855, 860 (Wyo.1998); Zabel v. State, 765 P.2d 357, 362 (Wyo.1988)). "A witness may not, therefore, vouch for the credibility of another witness or a victim." Newport, 983 P.2d at 1215 (citing Gayler, 957 P.2d at 860; Curl v. State, 898 P.2d 369, 373-74 (Wyo.1995)). The testimony raises concerns about its effect on the jury, "namely, that 'the testimony could have decided the case for the jury " Bennett v. State, 794 P.2d 879, 882 (Wyo.1990) (quoting Stephens, 774 P.2d at 67). "[Ilmproper invasion of the jury's function remains critical and any invasion of the jury's role must be treated as error per se." Id.

(Emphasis added.)

[T17] Of course, the violation is even more serious when the province of the jury is invaded by the opinion of a judge. Nonetheless, it is likewise error and misconduct for the prosecutor to cross-examine a defendant using the "lying" or "mistaken" technique (4.e., well, then if "so-and-so" said "such-and-such," was he "mistaken" or "lying?"). Such questions are improper. If the prosecutor merely asked Beaugureau about what other witnesses had to say, allowing the jury to draw its own conclusions, the cross-examination would not have been objectionable. State v. Diggs, 34 P.8d 63, 72-73 (Kan.2001); State v. Manning, 270 Kan. 674, 19 P.3d 84, 100-3 (2001) ("Questions which compel a defendant or witness to comment on the credibility of another witness are improper. It is the province of the jury to weigh the credibility of the witnesses." (collecting cases)); State v. Stevenson, 70 Conn.App. 29, 797 A.2d 1, 7-9 (2002) (Such questions are improper because they "require a defendant to comment on another witness' veracity ... invade the province of the jury, create the risk that the jury may conclude that, in order to acquit the defendant, it must find that the other witnesses lied, and distort the state's burden of proof.") (relying on State v. Singh, 259 Conn. 693, 793 A.2d 226, 234-39 (2002)) (collecting cases); also see State v. Walden, 69 Wash.App. 183, 847 P.2d 956, 959 (Div. 1 (19983)); and State v. Pitts, No. 47488-0-I, 2001 WL 1641225 at *4 (Wash.App. Div. 1, Dec.24, 2001) (per curiam) (use of word "lying" is misconduct; use of word "mistaken" merely objectionable).

[118] As noted above, defense counsel objected on each occasion and the objections were sustained. The prosecutor's persistence in engaging in misconduct despite two very clear admonitions causes grave concern. But the same authorities we have cited immediately above also counsel that errors such as these must be prejudicial to the defendant, and must have served to deny that defendant a fair trial, before reversal of the conviction becomes the required remedy. We have examined the evidence in this case carefully and thoroughly, and we will hold that the misconduct of the prosecutor should not result in the reversal of defendant's conviction. The prejudice to Beaugu-reau was slight and the evidence against her overwhelming. Thus, we will conclude that the errors were harmless.

Need for Substitute Counsel

[119] This issue arises because Beaugurean expressed dissatisfaction with the performance of her attorneys at a change of plea hearing held on November 16, 1999. The record does not reflect that Beaugureau asked for the appointment of different, substitute, or additional counsel (she had two attorneys representing her). This matter was not raised in the trial court and, therefore, we decline to review it on appeal. Bell v. State, 994 P.2d 947, 957 (Wyo.2000); also see Bailey v. State, 12 P.3d 173, 177-79 (Wyo.2000).

CONCLUSION

[120] We hold that there is evidence to sustain both convictions. Further, we hold that the errors committed by the trial court and the State, as well as the misconduct of the prosecutor, is not sufficiently prejudicial so as to require reversal of those convictions. The judgment and sentence of the district court are affirmed.

      . § 6-2-5303. Child abuse; penalty.
      (a) Except under circumstances constituting a violation of W.S. 6-2-502, a person who is not responsible for a child's welfare as defined by W.S. 14-3-202(a)(i), is guilty of child abuse, a felony punishable by imprisonment for not more than five (5) years, if:
      (i) The actor is an adult or is at least six (6) years older than the victim; and
      (ii) The actor intentionally or recklessly inflicts upon a child under the age of sixteen (16) years:
      (A) Physical injury as defined in W.S. 14-3-202(a)(@ii)(B); or
      (B) Mental injury as defined in W.S. 14-3-
      (b) Except under circumstances constituting a violation of W.S. 6-2-502, a person is guilty of child abuse, a felony punishable by imprisonment for not more than five (5) years, if a person responsible for a child's welfare as defined in W.S. 14-3-202(a)(i) intentionally or recklessly inflicts upon a child under the age of eighteen (18) years:
      (i) Physical injury as defined in W.S. 14-3-202(a)(ii)(B), excluding reasonable corporal punishment; or
      (ii) Mental injury as defined in W.S,. 14-3-202(a)(ii)(A).
      Wyo. Stat. Ann. § 62-503 (LexisNexis 2001).
      § 14-3-202. Definitions.
      (a) As used in W.S. 14-3-201 through 14-3-215:
      (i) "A person responsible for a child's welfare" includes the child's parent, noncustodial parent, guardian, custodian, stepparent, foster parent or other person, institution or agency having the physical custody or control of the child;

        (ii) "Abuse" with respect to a disabled adult means as defined under W.S. 35-20-102(a)(ii). "Abuse" with respect to a child means inflict ing or causing physical or mental injury, harm or imminent danger to the physical or mental health or welfare of a child other than by accidental means, including abandonment, excessive or unreasonable corporal punishment, malnutrition or substantial risk thereof by reason of intentional or unintentional neglect, and the commission or allowing the commission of a sexual offense against a child as defined by law:
      (A) "Mental injury" means an injury to the psychological capacity or emotional stability of a child as evidenced by an observable or substantial impairment in his ability to function within a normal range of performance and behavior with due regard to his culture;
      (B) "Physical injury" means death or any harm to a child including but not limited to disfigurement, impairment of any bodily organ, skin bruising, bleeding, burns, fracture of any bone, subdural hematoma or substantial malnutrition; [This subsection was amended in 2002 and has been substantially changed; see footnote 2.]
      (C) "Substantial risk" means a strong possibility as contrasted with a remote or insignificant possibility;
      (D) "Imminent danger" includes threatened harm and means a statement, overt act, condition or status which represents an immediate and substantial risk of sexual abuse or physical or mental injury.
      @if) "Child" means any person under the age of eighteen (18);
      (iv) "Child protective agency" means the field or regional offices of the department of family services;
      (v) "Court proceedings" means child protective proceedings which have as their purpose the protection of a child through an adjudication of whether the child is abused or neglected, and the making of an appropriate order of disposition; *
      (vi) "Institutional child abuse and neglect" means situations of child abuse or neglect where a foster home or other public or private residential home, institution or agency is responsible for the child's welfare;
      (vii) "Neglect" with respect to a disabled adult means as defined under W.S. 35-20-102(a)(xi). "Neglect" with respect to a child means a failure or refusal by those responsible
      for the child's welfare to provide adequate care, maintenance, supervision, education or medical, surgical or any other care necessary for the child's well being. Treatment given in good faith by spiritual means alone, through prayer, by a duly accredited practitioner in accordance with the tenets and practices of a recognized church or religious denomination is not child neglect for that reason alone;
      (viii) "State agency" means the state department of family services;
      (ix) "Subject of the report" means any child reported under W.S. 14-3-201 through 14-3-215 or the child's parent, guardian or other person responsible for the child's welfare, or any disabled adult reported under W.S. 35-20-101 through 35-20-109 or the disabled adult's caretaker;
      (x) "Unfounded report" means any report made pursuant to W.S. 14-3-201 through 14-3-215 or 35-20-101 through 35-20-109 that is not supported by credible evidence;
      (xi) "Substantiated report" means any report of child abuse or neglect pursuant to W.S. 14-3-201 through 14-3-215, or any report of abuse, neglect, exploitation or abandonment of a disabled adult under W.S. 35-20-101 through 35-20-109, that is determined upon investigation that credible evidence of the alleged abuse, neglect, exploitation or abandon ment exists;
      (xii) "Abandonment" with respect to a disabled adult means as defined under W.S. 35-20-102(a)(i);
      (xiii) "Disabled adult" means any person defined under W.S. 35-20-102(a)(vi);
      (xiv) "Exploitation" with respect to a disabled adult means as defined under W.S. 35-20-102(a)(ix).
      Wyo. Stat, Ann. § 14-3-202 (LexisNexis 2001) (emphasis added).

      . The definition of "physical injury" was amended by the legislature during its 2002 session so that it now provides:
      (B) "Physical injury" means any harm to a child including but not limited to disfigurement, impairment of any bodily organ, skin bruising if greater in magnitude than minor bruising associated with reasonable corporal punishment, bleeding, burns, fracture of any bone, subdural hematoma or substantial malnutrition;
      Wyo. Stat. Ann. § 14-3-202(a)(B) (LexisNexis 2002 Supp.).

      . Department of Family Services.

      . Francis was also charged with felony child abuse with respect to BC and was found guilty in a separate proceeding.

      ... There is considerable evidence that both Beau-gureau and her husband Francis also abused GD, a brother to SD, though no charges were brought against either of them in that regard.

      . W.R.Cr.P. 3(e) provides:
      (e) Amendment of Information or Citation. Without leave of the court, the attorney for the state may amend an information or citation until five days before a preliminary examination in a case required to be tried in district court or until five days before trial for a case not required to be tried in district court. The court may permit an information or citation to be amended:
      (1) With the defendant's consent, at any time before sentencing.
      (2) Whether or not the defendant consents:
      (A) At any time before trial if substantial rights of the defendant are not prejudiced.
      (B) At any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
      (Emphasis added.)


source: Caselaw Access Project

author: LEHMAN, Justice.

license: Public Domain

text:
    2002 WY 162
    Cody D. TERRY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 00-265.
    Supreme Court of Wyoming.
    Oct. 28, 2002.

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

       Chief Justice at time of expedited conference.

   LEHMAN, Justice.

[T1] Appellant Cody D. Terry (Terry) was convicted by jury of aggravated assault on a pregnant female. We affirm.

ISSUES

[12] Terry sets forth a single issue on appeal:

Whether the district court abused its discretion when it denied Appellant's Motion for New Trial Based Upon Newly Discovered Evidence.

Appellee State of Wyoming (State) raises two issues on appeal:

I, Should this appeal be dismissed for lack of a notice of appeal from the district court's Order Denying Appellant's Motion for a New Trial?

II. Did the district court properly deny Appellant's Motion for a New Trial?

FACTS

[13] Just prior to the trial commencing in this action on June 19, 2000, both Terry and the State issued subpoenas for a witness, Francis "Frankie" Miranda (Miranda), a minor, to appear and testify at the trial. The State's subpoena was returned without service, but Terry's subpoena was served upon Miranda. Nevertheless, Miranda failed to appear at trial to testify as required. Trial in this matter took place on June 19 through 21, 2000. On June 20, 2000, counsel for Terry twice requested a continuance of the trial based upon Miranda's failure to appear as a subpoenaed witness. The district court denied these motions but issued a bench warrant for Miranda's arrest. On June 21, 2000, the jury returned a guilty verdict against Terry for aggravated assault on a pregnant female pursuant to Wyo. Stat. Ann. § 6-2-502(a)(iv) (LexisNexis 2001).

[14] On June 21, 2000, Miranda was arrested on the issued bench warrant. Ultimately, upon hearing, Miranda was found guilty of contempt and sentenced. On June 28, 2000, Terry filed a pro se Motion For A New Trial. On July 17, 2000, Terry, through counsel, filed a Motion For New Trial Based Upon Newly Discovered Evidence and/or in the alternative Motion To Take Deposition Of Francis Miranda (Motion For New Trial. In the motion, Terry argued that if Miranda had testified at trial, her testimony would have been material, sufficient to provide evidence which may have changed the ultimate verdict rendered in this action, and not cumulative.

[15] On August 11, 2000, Terry was sentenced to serve a penitentiary sentence of 42 to 108 months with credit for 175 days of presentence incarceration. The Judgment and Sentence in this matter was entered on August 29, 2000. On September 8, 2000, Terry filed a pleading entitled Additional Briefing And Authority In Support Of Defendant's Motion For New Trial Based Upon Newly Discovered Evidence.

[16] On September 14, 2000, Terry filed his Notice of Appeal indicating that he was appealing from the Judgment and Sentence entered by the district court. On October 9, 2000, a hearing was held on the Motion for New Trial. However, the district court realized at the hearing that the case had been appealed to this court. The district court therefore concluded that it could take no action on the motion without remand from this court pursuant to W.R.Cr.P. 38(c). Thus, on November 28, 2000, we remanded this case to the district court for a 30-day period to allow the district court to consider and rule on the motion for new trial. This period of time was later extended by this court until January 12, 2001.

[17] On January 4, 2001, a hearing on the motion for new trial was held, and the district court denied the motion. Terry did not timely file any notice of appeal from this ruling or amend his prior filed notice of appeal to include such ruling.

STANDARD OF REVIEW

[T8] This court "has the inherent power, and the duty, to address jurisdictional defects on appeal." CRB v. State, Dep't of Family Servs., 974 P.2d 931, 934 (Wyo.1999) (quoting Robbins v. South Cheyenne Water & Sewage Dist., 792 P.2d 1380, 1384 (Wyo.1990). "The first and fundamental question on every appeal is that of jurisdiction; this question cannot be waived; it is open for consideration by the reviewing court whenever it is raised by any party, or it may be raised by the court of its own motion." CRB, at 934 (quoting Gardner v. Walker, 373 P.2d 598, 599 (Wyo.1962)).

[T9] Further, the standard of review with respect to entitlement to a new trial upon newly discovered evidence is well established. The requirements that must be satisfied in order to gain a new trial on the basis of newly discovered evidence are (1) the evidence has come to the moving party's knowledge since the trial; (2) it was not owing to the want of due diligence by the moving party that this evidence did not become known sooner; (8) the evidence is so material that it would probably produce a different verdict, if the new trial were granted; and (4) the evidence it is not cumulative, viz., speaking to facts in relation to which there was evidence at the trial. Griswold v. State, 2001 WY 14 ¶ 8, 17 P3d 728, ¶ 8 (Wyo.2001); Baumgartner v. State, 7 P.3d 912, 915 (Wyo.2000); Taul v. State, 862 P.2d 649, 659 (Wyo.1993).

[110] A motion for a new trial on the ground of newly discovered evidence is not favored by the courts and is viewed with great caution. Griswold, at 18 (citing Hopkinson v. State, 679 P.2d 1008, 1012 (Wyo.), cert. denied, 469 U.S. 873, 105 S.Ct. 228, 83 LEd.2d 157 (1984)). All four factors must be met for entitlement to a new trial; and, if any one factor is not satisfied, there is no error in the denial of the new trial motion. Griswold, at 18 (citing Grable v. State, 664 P.2d 531, 585 (Wyo.1983)). Hence, it is not essential that we address each and every factor if an appellant fails in his burden to satisfy even one of the four factors. Gris-wold, at 18. We have also set forth that the decision of the district court on a motion for new trial will be upheld absent an abuse of discretion:

It is clearly within the sound discretion of a trial court to either grant or deny a motion for a new trial based upon newly discovered evidence, and the ruling by the trial court will not be a basis for reversal of the conviction unless an abuse of discretion by the trial court is affirmatively shown. Grable v. State, 664 P.2d 531, 582 (Wyo.1983). It is the appellant's burden to demonstrate an abuse of discretion in the denial of his new trial motion. Kavanaugh v. State, 769 P.2d 908, 913 (Wyo.1989). We recently described the standard of an abuse of discretion as "reaching the question of reasonableness of the choice made by the trial court." Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). In Vaughn, id. (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)), we confirmed the following definition: '
"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 circumstances and without doing so arbitrarily or capriciously."
See also Shryack v. Carr Construction Company, Inc., 3 P.3d 850, 855 (Wyo.2000). In the absence of an abuse of discretion, we will not disturb the trial court's determination. Taul v. State, 862 P.2d 649, 659 (Wyo.1993).

Griswold, at 1 7.

DISCUSSION

Request for Dismissal Based Upon Lack of a Second Notice of Appeal

[T11] The State asserts this appeal should be dismissed because Terry did not file a notice of appeal from the district court's order denying his motion for new trial,. Relying on this lack of a second notice of appeal, as well as the fact that the sole issue raised in this appeal attacks the denial of the motion for new trial, the State contends this appeal is improper because Terry appealed from only the judgment and sentence entered by the district court. We disagree. Because this matter was remanded to the district court to facilitate resolution of Terry's motion for new trial and because this court retained jurisdiction over this appeal, we conclude Terry was not required to file a second notice of appeal to challenge the order denying the motion for new trial.

[112] While his appeal was pending, Terry filed a motion for new trial in the district court. Although the district court heard Terry's motion, it did not rule on the motion. Instead, it ordered that "any hearing on [Terry's] motion for a new trial is ... continued until such time as the Wyoming Supreme Court may remand the case to this Court." Faced with this ruling, Terry then filed, in this court, a motion to stay briefing and a motion for limited remand to the district court. This court granted both the remand and the stay.

[T13] We first note that, as it turns out, the motion for remand should not have been granted. In interpreting a virtually identical federal rule governing motions for new trial, the Court of Appeals for the District of Columbia Cireuit has written:

Rule 33 of the Criminal Rules, 18 U.S.C.A., provides, as to motions for new trial based on the ground of newly discovered evidence: "... but if an appeal is pending the court may grant the motion only on remand of the case." The Advisory Committee explained in its notes that "Under the proposed rule a motion for a new trial could be made without securing a remand. If, however, the trial court decides to grant the motion then, prior to the entry of the order granting it, a remand will have to be obtained. This course will eliminate the need of a remand in those cases in which the trial court determines to deny a motion for a new trial" In criminal cases, therefore, the procedure is that, when a new trial is sought because of newly discovered evidence in a case pending in the appellate court, a motion for the new trial is made in the District Court, and the District Court may then deny the motion or indicate that it will grant the motion. -If that court indicates that it is inclined to grant the motion, a motion for remand is made in the appellate court,

Smith v. Pollin, 194 F.2d 349, 350 (D.C.Cir.1952) (emphasis added, footnote omitted). As applied to this case, a remand was improper because the district court did not indicate it intended to grant the motion for new trial The district court's order hints that it was concerned about ruling without having access to the record, which was in the possession of the Public Defender Appellate Counsel (the motion for new trial was made by Terry's trial counsel). However, under such cireumstances, there are alternatives short of remand available. For example, a request for a stay of the appeal could have been made.

Nevertheless, having granted the motion for remand, the question is whether Terry was required to file a second notice of appeal, i.e., a notice of appeal challenging the order denying motion for new trial This issue turns on the nature of the remand ordered by this court. Bell v. U.S., 676 A.2d 37, 41 (D.C.1996).

[¥15] Here, this court's remand was for a specific purpose: to permit the district court to consider the motion for new trial. The case was not returned to the district court for all purposes. Instead, this court retained jurisdiction over the case. Under these cireumstances, we conclude Terry was not required to file a second notice of appeal to challenge the order denying motion for new trial. See Calene v. State, 846 P.2d 679, 692 (Wyo.1993) (no second notice of appeal required following remand to develop claim of ineffective assistance of counsel). At the same time, this case points out the importance of these procedural matters and the importance of counsel maintaining vigilance with respect to these matters.

Motion For New Trial

[116] Terry argues the district court committed an abuse of discretion when it denied his motion for new trial. Namely, Terry asserts that an adequate showing was made that Miranda's purported testimony met each of the four factors enunciated in Griswold, 18 as set forth above and, therefore, a new trial should have been provided. In opposition, the State contends Terry failed to establish that Miranda could not have been located earlier through due diligence, that Miranda's alleged testimony would have proven to be material with respect to the ultimate outcome of the trial, and that Miranda's testimony would not have been simply cumulative. After hearing, the district court denied the motion for new trial finding that the proposed evidence was not so material that it would produce a different verdict and that such evidence was cumulative. Upon our review, we hold that the district court did not commit an abuse of discretion in denying Terry's Motion For New Trial

[T17] At trial, Terry's defense suggested that the injuries to April White, the involved victim, could have been the result of a scuffle between White and Miranda earlier that evening as opposed to an assault by Terry. Given this asserted defense, Terry contends that the alleged testimony of Miranda that White had been drinking on the night in question and that the day prior to trial White suggested to Miranda that "they had not gotten into a fight on the night in question" with White simultaneously directing an "O.K." sign with her hands toward Miranda is so material so as to produce a different verdict and that such evidence was not cumulative.

[118] Beginning with Miranda's alleged testimony that White had been drinking on the evening in question, we frankly cannot see how this testimony may be characterized as anything other than cumulative. During trial, testimony was elicited from Sarah Stowe, Brenda Ehrler, and Terry, himself, that White was drinking that night although White denied doing so during her testimony. Further, Dr. Michael Bruno, the emergency room doctor who treated White for her injuries that evening, testified that he did not identify that White had been drinking earlier that night nor did any other medical person at that time make any notation that White may have been drinking earlier that evening. In addition, Officer James Wetzel, the officer that interviewed White that evening, testified that White did not appear to be under the influence of alcohol. Clearly, therefore, the issue of whether White had or had not been drinking on the evening in question was substantially put before the jury.

[T19] Moreover, Miranda's alleged testimony with respect to White's drinking that evening goes only to the veracity of White's testimony at trial. As recognized and admitted by Terry, this court has long established that a motion for new trial on the grounds of newly discovered evidence shall not be granted where the evidence is solely to impeach a witness. Grable v. State, 664 P.2d 531, 533-34 (Wyo.1983).

The newly discovered evidence 'must be more than impeaching or cumulative; it must be material to the issues involved; it must be such as would probably produce an acquittal; and a new trial is not warranted by evidence which, with reasonable diligence, could have been discovered and produced at trial.

Id., at 583 (quoting United States v. Allen, 554 F.2d 398, 403 (10th Cir.), cert. denied 424 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977)). See also Baumgartner v. State, 7 P.3d at 916; Toul v. State, 862 P.2d at 659; and Keser v. State, 737 P.2d 756, 760 (Wy0.1987).

[120] Next with respect to the alleged incident that occurred between White and Miranda wherein White suggested to Miranda that "they had not gotten into a fight on the night in question" with White simultaneously directing an "O.K." sign with her hands toward Miranda, Terry asserts that this testimony goes directly to his defense that the injuries to White could have been the result of an earlier scuffle between White and Miranda rather than an assault by Terry. Thus, Terry contends that this testimony must be considered material.

[T21] The record in this case clearly evidences that White, Stowe, Ehrier, and Terry each testified about whether White and Miranda physically interacted with each other and the extent of such interaction. Specifically, White testified that she did not have a fight with Miranda that evening but that she tried to keep Miranda within her apartment to keep Miranda from getting hurt given her state of intoxication. In contradiction to this testimony, Stowe, Ehrler, and Terry all testified White and Miranda had physical interaction with one another in varying degrees from embracing each other, to wrestling short of any actual striking with their fists, to a specific incident where Miranda placed her feet on White's chest and pushed away from White. Further, the testimony of Stowe showed Stowe did not recognize that White had been hurt by her struggles with Miranda, and the testimony of White indicates she was not physically hurt by Miranda and that any physical injuries to her body occurred as a result of the assault by Terry. Further, Terry stated that he did not recognize that White was physically injured before the assault occurred and that during this time period, White suddenly crouched in pain regarding her ankle although Terry did not know specifically why White reacted this way.

Again, the issue concerning any fracas that occurred between White and Miranda was put before the jury to consider. Therefore, we find that any alleged testimony by Miranda would have simply been eu-mulative. Further, as again even recognized by Terry, insofar as the alleged statements and actions of White toward Miranda the day prior to trial are concerned as they may solicit evidence of possible witness tampering, such evidence is again explicitly only related to the credibility of White's testimony. As indicated previously, such a basis, in and of itself, is not adequate to demand the granting of a new trial. Grable, 664 P.2d at 533; Baumgartner, 7 P.3d at 916; Taul, 862 P.2d at 659; and Keser, 737 P.2d at 760.

[123] Finally, in support of his argument Terry relies heavily upon the decision rendered in the case of Beintema v. Everett, United States District Court for the District of Wyoming, Case No. 99-CV-85-J, 2001 WL 630512 (D.Wyo. April 23, 2001) (unpublished), and strenuously argues that this decision demands that Terry be afforded a new trial. Particularly, Terry asserts that because the subject trial was dependent almost entirely upon the testimony of a single witness, White, and without such testimony the charge levied against Terry would not lie, any impeachment evidence such as that allegedly would be elicited from the testimony of Miranda must be considered to be very material and very relevant so as to require a new trial. However, the facts in Beintema v. Everett are distinguishable from those facts that exist in this case.

[124] In Beintema v. Everett, that court ruled that a state prosecutor violated Beinte-ma's right to a fair trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by withholding relevant, material, exculpatory, and impeachment evidence which inhibited full eross-examination of the state's single key prosecution witness. The evidence that was withheld involved threats from a police detective to prosecute other members of the family of the prosecution's star witness if he did not cooperate in testifying in the prosecution of Beintema. In this case, no withholding of exculpatory evidence in violation of the tenets set forth in Brady v. Maryland are involved. In addition, the bulk of the purported evidence that allegedly would be presented by Miranda's testimony is not material to the charged offense but only regards collateral issues already addressed through many other witnesses.

[125] Accordingly, we hold that Terry has not met his burden of demonstrating an abuse of discretion by the district court when it denied his motion for new trial Under our established precedent, in the absence of a showing of an abuse of discretion by the district court, we will not disturb its determination in this case.

CONCLUSION

[126] For the foregoing reasons, the conviction of appellant for aggravated assault on a pregnant woman is affirmed.

      . The Wyoming rule governing motions for new trial, W.R.Cr.P. 33, provides in part:
      (c) Newly Discovered Evidence.-A motion for a new trial based on the grounds of newly discovered evidence may be made only before or within two years after final judgment but if an appeal is pending, the court may grant the motion only on remand of the case.

      . Because a motion for new trial based upon newly discovered evidence is not the subject of the appeal, the district court retains jurisdiction to hear the motion without remand. The granting of the motion only on remand is a matter of judicial efficiency and economy to avoid the continuation of the appeal. Any remand for a new trial which is granted will usually be followed by an order dismissing that appeal.

      . Of course, depending on the circumstances, this court may not grant such a request. In addition, as explained below, had this court merely stayed (and not remanded) this matter, Terry would have been required to appeal from the order denying the motion for new trial. This, of course, would create two appeals. Under such circumstances, this court would endeavor to consolidate the two appeals, if feasible and appropriate.

      . It should be recognized that Miranda never gave any actual testimony or even submitted her own affidavit with respect to the Motion For New Trial. Rather, the sole affidavit submitted by Terry was that of Bernard Foster, an investigator, which detailed what Miranda told Foster on various occasions after having been arrested for failing to appear to testify at the trial as required.

      . It is also of interest to note that the credibility of Miranda's testimony could also be highly placed in question as many witnesses testified that Miranda was extremely intoxicated during the date in question and was later found by the police that evening lying in some bushes without her shoes or a coat on although it was a snowy, very cold night. In addition, Miranda was completely incoherent and was unable to identify who she was, where she was, or give any other helpful information to the police officers that found her. Given her condition, Miranda was transported to the emergency room for medical care.