author: VOIGT, Justice.

text:
    2004 WY 57
    Rodney Lorenzo BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-257.
    Supreme Court of Wyoming.
    May 18, 2004.

      Representing Appellant: Kenneth M. Ko-ski, State Public Defender; Donna D. Do-monkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel.

      Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Yicci M. Colgan, Senior Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶ 1] In June 2002, a Natrona County jury found the appellant, Rodney Lorenzo Brown, guilty of felony larceny, a violation of Wyo. Stat. Ann. § 6-3^102(a) and (c)(i) (Lex-isNexis 2003), and misdemeanor possession of marijuana, a violation of Wyo. Stat. Ann. § 35-7-1031(c) (LexisNexis 2003). On appeal, the appellant contends that the evidence was insufficient to sustain his felony larceny conviction, that several witnesses testified to matters for which they had no personal knowledge and their testimony was speculative, irrelevant, and prejudicial, and that his trial counsel was ineffective in not objecting to this witness testimony. We affirm.

ISSUES

1. Was the evidence presented at trial insufficient to support appellant’s grand larceny conviction?

2. Did plain error occur at trial when two State witnesses testified as to their impressions, opinions and beliefs of what occurred on the videotape, thereby invading the province of the jury, and when another State witness testified to matters of which she had no personal knowledge?

3. Did defense counsel render ineffective assistance of counsel in failing to object to testimony at trial?

FACTS

[¶ 2] On the morning of January 7, 2002, Ayres Jewelers’ employee Dawn Miller (Miller) placed a necklace and attached tanzanite pendant (necklace) in a display case near the store’s front door, and closed the display ease. The necklace, with a retail value of $3,700.00, was mounted on a bust. Miller positioned the bust in the display case so that it faced toward the street outside the front of the store (the case was situated so it could be viewed from the sidewalk outside the store). The display case had two sliding glass doors, which doors were not locked. Miller centered the bust on the right side of the display ease (as one faces the case from inside the store), closest to the right-hand sliding glass door. According to Miller, the right-hand sliding glass door could be opened easily “without pressing your fingers against it,” it “slides very easily.” Dan Halferty, the store manager, added that the right-hand sliding glass door could be “opened with a shoulder or elbow....”

[¶ 3] Mary Ann Stratton (Stratton), another store employee, went to lunch at 12:00 p.m. on January 7th. Miller had no reason to believe that the bust had been disturbed prior to noon January 7th, nor was she aware of anyone that expressed a particular interest in the necklace that day. According to Miller, employees customarily “look at everything” when they leave; “we’re so familiar with the items that, for a case to be opened slightly or something slightly out of line from the way we set it out, it’s [immediately] noticeable.” Halferty similarly testified to his, and the employees’, customary practices:

A. Anytime that we walk by a display case, ... it’s common practice to check to see what things look like, to see where they are, just to make sure the subjects haven’t been moved or tipped over, that it’s in full view of everybody’s vision, especially of the street; because that’s something that we can’t see specifically from in the store, because all of the merchandise faces outward. So if you were to walk up and look at the case from the back, hence, again, you wouldn’t see anything; there’s nothing there to look at; it all faces towards the street.
Q. And again, when you return from lunch, is it the habit of the employees to check the condition of those cases?
A. Yes.

[¶ 4] Miller recalled a “fairly good lunch rush” January 7th. A “man of color” (later identified as the appellant) and a woman entered the store between 12:35 p.m. and 12:40 p.m., while Miller was assisting another customer. The man “stayed down [front] by the door” most of the time, while the woman came further into the store and began looking through cases. Miller noticed the man “wandering around a little bit by the door” and the woman said she was “just looking.” They ultimately left separately, without making a purchase. Halferty testified that, based on a videotape obtained from the store’s security system, the man and the woman were in the store less than two minutes.

[¶ 5] Stratton returned to the store about 12:55 p.m. and, according to Miller, Stratton noticed that the front display case’s right-hand sliding glass door was open and the bust was turned, with no necklace. Miller also observed firsthand that the bust was turned. The security system videotape shows that by 1:05 p.m., two or three store employees were conferencing and by 1:25 p.m., it was “plainly obvious” that the employees had begun searching for the missing necklace.

[¶ 6] Ann Bartels, the appellant’s wife at the time, testified that on January 7th, she accompanied the appellant to Ayres Jewelers to look at wedding rings. According to Bar-tels, the appellant wore jeans, a gray sweatshirt, and a leather coat. He usually also wore a Saints football team hat. The two left the store and decided to drive to another location for lunch. On the way, Bartels observed an inch of gold chain in the appellant’s pocket. That made Bartels angry because if the appellant “took something from a jewelry store, that wasn’t right.”

[¶ 7] Bartels recalled telling a detective that the chain she observed in the appellant’s pocket looked like the same chain that was depicted in a photograph the detective showed her, but testified that she could not say the two were one and the same because she did not see the whole necklace or the whole chain that was in the appellant’s pocket. She also claimed that the detective “kept trying to tell me that he wanted me to say that I knew that that was the necklace for sure.” Casper Police Department Detective Derrick Dietz (Dietz) testified that he showed Bartels a photograph of the stolen necklace, and Bartels stated that the chain in the photograph looked “very similar” to what she had observed in the appellant’s pocket, and with respect to the distinctive herringbone design of the stolen necklace, Bartels stated that it was the “right design, and the basic size of this chain would be what she had seen.”

[¶ 8] Based on information obtained from Bartels and the jewelry store’s security system videotape, Dietz was able to identify specific clothing that the appellant was wearing the day of the theft, including a Saints hat, a gray hooded sweater-type jacket or shirt with blue stripes down the arms, and a dark coat. While executing a search warrant in the appellant’s bedroom, Dietz discovered a Saints hat, a gray hooded sweater with blue stripes down the arms, and several dark jackets. The officer never located the stolen necklace. Dietz then interviewed the appellant, who denied any involvement in the theft and denied being at the jewelry store January 7th. When confronted with pictures obtained from the store’s security system videotape, the appellant admitted to having been in the jewelry store, but otherwise denied involvement in the theft.

[¶ 9] The appellant chose to testify at trial. He testified that Bartels lost her wedding ring, so the two were looking at wedding rings on January 7th. Upon entering the Ayres Jewelers store, Bartels went to the counter. The appellant accompanied her for a brief minute but when no one helped them, he “milled around up at the front” of the store. The appellant stated that he saw the necklace at issue in one of the display cases near the front of the store. He was interested in the ring next to the necklace and tried to get Bartels to come and look, but Bartels was “doing her own thing.”

[¶ 10] According to the appellant, the two left the store to “go eat” and, while the appellant was driving to that location, he pulled a gold chain with a ring on it out of his pocket and showed it to Bartels, stating “Ann, look at this.” The appellant testified that the chain was one that a former girlfriend had given him, and he was just “goofing off’ because Bartels was “high strung” and he wanted to “get a rise out of her.” The officers never located a gold chain containing a ring during their search of the appellant’s residence, or his person. The appellant denied stealing the necklace from the jewelry store and characterized his relationship with Bartels as “rocky” at the time she spoke to the police about what she observed in the appellant’s pocket. The two had apparently divorced by April 2002.

[¶ 11] The appellant ultimately was charged in an Amended Information with larceny, a felony, in violation of Wyo. Stat. Ann. § 6-3^402(a) and (c)(i), and possession of marijuana, a misdemeanor, in violation of Wyo. Stat. Ann. § 35-7-1031(c). On June 4, 2002, a jury found the appellant guilty of both offenses. The district court sentenced the appellant to concurrent terms of imprisonment for four to eight years on the larceny conviction and ninety days on the possession of marijuana conviction, and to pay restitution and other fees. The appellant appeals from the district court’s judgment and sentence; however, the appellant does not raise any appellate issues concerning his possession of marijuana conviction.

DISCUSSION

Sufficiency Of The Evidence

[¶ 12] The appellant first argues that the evidence was insufficient to sustain his felony larceny conviction. We have said that, when

reviewing an appeal based on sufficiency of the evidence, we view the evidence, and any applicable inferences based on the evidence, in a light most favorable to the State. Nixon v. State, 994 P.2d 324, 329 (Wyo.1999); and see Pool v. State, 2001 WY 8, 17 P.3d 1285 (Wyo.2001). In conducting such a review, we do not substitute our judgment for that of the jury; rather, we determine whether a quorum of reasonable and rational individuals would, or even could, have found the essential elements of the crime were proven beyond a reasonable doubt. Id.

McFarlane v. State, 2001 WY 10, ¶ 4,17 P.3d 31, 32 (Wyo.2001). Even though it is possible to draw other inferences from the evidence presented, the jury has the responsibility to resolve conflicts in the evidence, and when reviewing the evidence on appeal, we do not consider conflicting evidence presented by the unsuccessful party. Allen v. State, 2002 WY 48, ¶ 58, 43 P.3d 551, 570 (Wyo.), cert. denied, 537 U.S. 899, 123 S.Ct. 201, 154 L.Ed.2d 170 (2002); Williams v. State, 986 P.2d 855, 857 (Wyo.1999).

[¶ 13] The jury found the appellant guilty of felony larceny. Wyo. Stat. Ann. § 6-3-402 provides, in pertinent part:

(a) A person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny.
(c) Except as provided by subsection (e) of this section, larceny is:
(i) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the value of the property is five hundred dollars ($500.00) or more; ... [.]

The district court instructed the jury as follows regarding the elements of felony larceny:

YOU[] ARE INSTRUCTED that the elements of the crime of Larceny, as charged in Count I, of this ease, are:
1. On or about the 7th day of January, 2002
2. In Natrona County, Wyoming
3. The Defendant, Rodney Lorenzo Brown
4. Stole, took and carried, led or drove away
5. Property of another of the value of $500.00 or more
6. With intent to deprive the owner or lawful possessor.

The only element at issue on appeal is whether it was the appellant who stole, took and carried, led or drove away the necklace.

[¶ 14] We find that the evidence and the reasonable inferences that may be drawn from it, when viewed in a light most favorable to the State, was sufficient for a rational jury to conclude beyond a reasonable doubt that the appellant stole the necklace. In a larceny case, the “ ‘Opportunity to commit the crime, ... when linked with other incriminating facts, may establish the guilt of the defendant.’ ” Fischer v. State, 811 P.2d 5, 7-8 (Wyo.1991) (quoting Wells v. State, 613 P.2d 201, 203 (Wyo.1980)); see also McGarvey v. State, 2002 WY 149, ¶ 16, 55 P.3d 703, 706 (Wyo.2002) and Downs v. State, 581 P.2d 610, 616 (Wyo.1978) (burglary cases). Likewise, the possession of recently stolen property “ ‘is a strong circumstance tending to show guilt and only slight corroborative evidence of other inculpatory circumstances is required.’ ” Downs, 581 P.2d at 615 (quoting Newell v. State, 548 P.2d 8, 13 (Wyo.1976)).

[¶ 15] The morning of January 7th, Miller placed the necklace (mounted on a bust) in a display ease near the front door of the store; the item was placed on the right side of the display case nearest the right-hand sliding glass door, which door was unlocked and easily slid open. She positioned the bust so that it was facing the street outside the store. Later that day, the appellant testified that he and Bartels went to Ayres Jewelers to look at wedding rings. Miller estimated that the two arrived at the store between 12:35 p.m. and 12:40 p.m. The store’s security system videotape (when adjusted to the actual time of day) confirms this, indicating that the two entered the store around 12:42:53 p.m.

[¶ 16] According to Miller, the appellant stayed down front by the door most of the time. Importantly, the appellant himself testified that he “milled around” at the front of the store and in fact saw the necklace at issue in a display case near the front of the store because he was interested in the ring next to the necklace. At about 12:43:41 p.m., the appellant appears on the videotape to move within twenty-eight inches of the display case’s glass. At about 12:44:56 p.m. on the videotape, just over two minutes after entering the store, the appellant and Bartels have left the store. Miller testified that they left separately.

[¶ 17] Almost immediately thereafter, while the appellant and Bartels were driving to another location, Bartels observed an inch of gold chain in the appellant’s pocket. The appellant testified that he pulled a gold chain from his pocket and stated “Ann, look at this.” When Dietz showed Bartels a photograph of the stolen necklace, Bartels stated that it looked like the same chain she observed in the appellant’s pocket, but she hadn’t seen the whole necklace or chain at the time. According to Dietz, Bartels stated that the chain she observed on the appellant’s person was “very similar” to the pictured stolen necklace, and was the “right [herringbone] design” and “basic size” of the distinctive, pictured jewelry. The comparison was such that, as Bartels testified, she became “angry” because she suspected that the appellant may have stolen the chain from the jewelry store.

[¶ 18], At approximately 12:55 p.m., Strat-ton returned from lunch and noticed that the front display case’s right-hand sliding glass door was open, and the bust was “turned, with no necklace.” There is no evidence on the security system videotape, or in the record as a whole, indicating that anyone other than the appellant went near this particular display case between 12:43:41 p.m. and 12:55 p.m.

[¶ 19] The appellant’s argument on this issue essentially details the testimony of Miller, Halferty, Dietz, Bartels, and Officer Carr, while advocating the appellant’s own view of that testimony and what particular inferences could and should be drawn from it. However, the applicable standard of appellate review mandates a contrary approach; the evidence, and the reasonable inferences based on it, are to be viewed in a light most favorable to the State. We also note that a considerable portion of the appellant’s argument is devoted to Halferty’s and Dietz’s testimony characterizing certain “shadows” on the security system videotape (an issue we will discuss in the next section of this opinion). We did not consider this disputed testimony in evaluating whether the evidence was sufficient to ■ sustain the appellant’s felony larceny conviction, and find that the evidence clearly was sufficient even in the absence of such testimony.

Witness Testimony

[¶ 20] The appellant next argues that portions of testimony by Halferty, Dietz, and Miller constituted plain error. The appellant’s trial counsel did not object to any of the challenged testimony at trial. On appeal, it is therefore incumbent upon the appellant to demonstrate plain error in that “the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right.” Compton v. State, 931 P.2d 936, 939 (Wyo.1997).

[¶ 21] The appellant first contends that Halferty and Dietz erroneously testified to their “impressions, opinions and beliefs ... formed from watching the security camera’s videotape,” which testimony was not based on the witnesses’ personal knowledge and as a result was speculative, misleading, irrelevant, and prejudicial in violation of W.R.E 401, 402, 403, 602, and 701. The appellant’s argument focuses specifically on testimony: (1) by Halferty, prior to the videotape’s admission as a trial exhibit, that while an individual (later identified as the appellant) is in the vicinity of the display case containing the necklace, it “appears that there could very well be an arm over the neck that the [necklace] is on” and that the “stand that the [necklace] is on has [then] been turned about 90 degrees”; and (2) by Dietz, while playing the security system videotape for the jury, that a “shadow” appearing on the tape while the appellant is within twenty-eight inches of the display case is an “arm shadow” and that later on the tape the bust display had been “changed.”

[¶ 22] The record is clear regarding what occurred at trial. The store’s security system included four fixed video cameras, at least one of which showed images within twenty-eight inches of the front display case containing the necklace at issue. In recording images from the four video cameras onto a videotape, the security system cycled through each camera approximately every six to seven seconds and slowed the videotape in order to compress a long period of time onto a single tape. Due to the resulting “speed problems,” the tape apparently must be “frame advanced” rather than simply playing the tape.

[¶ 23] Halferty, the jewelry store manager, had been employed by Ayres Jewelers for over two years. Halferty was not in the store January 7, 2002, but was familiar with the stolen necklace, its value, the store’s layout, the store’s security system and procedures, and the identities of other customers appearing on the security system videotape. He viewed the videotape with Dietz on January 9, 2002. The disputed testimony follows:

[Prosecutor:] How were you able to identify this one individual as being the person who had taken the item?
A. From the amount of time that was spent at the forward entry area of the store.
Q. Okay. And as you watch that person during that time period, did you notice any activity associated with the display case?
A. Okay. What had appeared to happen was that an individual walked towards the front of the store where the display case is; appeared to concentrate an interest in the lower right-hand side of that case as well as the center of the ease. The tanzanite piece was just off center, towards the right as you face toward the street, which would allow it to be in full reach if you were to slide that door open maybe six or eight inches. There’s a point when we were reviewing the tape that there appears that there could very well be an arm over the neck that the neck piece is on. There’s a brief delay there. And then the next succession, in the shadows, shows that the actual neck piece and — or the stand that the neck piece is on has been turned about 90 degrees. I believe that neck piece was attached to — or the necklace itself was attached to the neck stand by two small wire bars which, if it was to be grabbed very quickly, would force that to turn. At that point, the same individual turned. All the subsequent photos, from that point on, appear that the — that the neck stand has been turned about 90 degrees and stays in that position for the remainder of the tape.
Q. What do you use to base your conclusion that the neck stand was turned, or the bust was turned?
A. The shadow, with the sun shining on the shadow, the neck stand, itself, has a width dimension which appears to be quite wide. And at the several seconds later, that same neck stand appears to be turned sideways and just very miniscule in its dimension.

[¶ 24] Dietz, a law enforcement officer for nearly fourteen years and a detective for over three years, had handled “[everything from arson to stealing bubble gum to homicide cases” and was assigned to investigate the instant case. It is evident from Dietz’s testimony that he was familiar with the layout of the store (the scene of the crime) and the store’s video security system. The security system videotape was admitted into evidence, without objection, during Dietz’s testimony and a portion of the videotape (beginning when the appellant and Bartels entered the jewelry store and ending when they left the store) was played for the jury during the trial. On appeal, the appellant does not meaningfully question the admissibility of the security system videotape and its contents. Dietz’s testimony, in pertinent part, follows:

[Prosecutor:] ... [I]s this the shadow we talked about?
A. Yes. This is the bust in the display.
Q. Watching this series of photographs, carefully, do you see Mr. Brown in the background?
A. Yes.
Q. What do you see him do?
A. He steps right over to the opening part of the display, the side that you would get ahold of to slide it open.
Q. And at 1:43:41 [12:43:41], again, what do we see in this picture?
A. That’s him getting closer. He’s getting real close to that, within 28 inches of the glass.
Q. Do you see what appears to be an arm or a hand anywhere?
A. You see here in the shadow, the shadow going down towards the display piece. I can’t differentiate if that’s reaching at it or if that just happens to be where there’s a movement being caught, opening the door, or what it is; but you can see an arm shadow.
Q. What is he moving to as he moves towards the corner of the screen?
A. Now he’s moved, getting within that 28 inches. And you can see a shadow on the floor. So he’s getting right up close to the — if this were the glass, he’s getting right up close to it.
Q. Again, can you see him by the case in the background here?
A. Yes; still standing here.
Q. Again, is that — from all of the angles, is that him by the case again, now 'completely underneath the camera?
A. Yeah. You cannot see any part of him, just his shadowing on the floor.
Q. And.again, when we switch to the angle back to the store, is that still Mr. Brown at the case?
A. Yeah. And now he appears to be kind of bladed to the camera, not so much face or back, b.ut — but bladed to, open.
Q. Now, we talked about shadows. And what’s different about this now than when we earlier looked at it — when you and Mr. Halferty looked at the film?
' - A. Even with — even with Rodney Brown still being — causing" this shadow on the floor over here, you can see the change in this bust display right here. It used to be flat and more of a solid picture, like a face-on silhouette; and now you see it’s been changed; it’s been moved.
Q. And that only occurred after Mr. Brown was near the case; is that true?
A. Correct.

[¶ 25] The premise of the appellant’s argument appears to be that neither Halferty, nor Dietz, was present at the jewelry store January 7, 2002, particularly during the events depicted on the videotape. While a “ ‘witness must have perceived firsthand the pertinent events or matters,’ ” we note generally that other courts have, under certain circumstances, allowed witnesses with personal knowledge, but who were not present during the actual events depicted on a security system videotape, to express a lay opinion regarding the images contained on the videotape. See, for example, United States v. Rivera-Maldonado, 194 F.3d 224, 236-37 (1st Cir.1999); United States v. Stormer, 938 F.2d 759, 761-64 (7th Cir.1991); United States v. Jackson, 688 F.2d 1121, 1123-25 (7th Cir.1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1441, 75 L.Ed.2d 797 (1983); United States v. Borrelli, 621 F.2d 1092, 1095 (10th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 222 (1980); Robinson v. People, 927 P.2d 381, 384 (Colo.1996) (collecting cases); and Brent G. Filbert, Admissibility of Lay Witness Interpretation of Surveillance Photograph or Videotape, 74 A.L.R. 5th 643 (1999) (collecting cases); and generally United States v. Stanley, 896 F.2d 450, 452 (10th Cir.1990) and Diane M. Allen, Admissibility of Visual Recording of Event or Matter Giving Rise to Litigation or Prosecution, 41 A.L.R.4th 812 (1985 and Supp. 2002) (collecting cases).

[¶ 26] Nevertheless, a protracted analysis is unnecessary because it remains the appellant’s burden to demonstrate on appeal that, even if we were to assume that Halferty and/or Dietz offered some form of improper opinion testimony, such testimony denied the appellant a substantial right resulting in material prejudice. Worcester v. State, 2001 WY 82, ¶¶ 7, 11, 30 P.3d 47, 50, 51 (Wyo.2001). Material prejudice can be established by demonstrating a reasonable possibility that, in the absence of the challenged testimony, the verdict may have been more favorable to the appellant. Id., 2001 WY 82, ¶ 12, 30 P.3d at 52.

[¶27] The appellant’s argument as to material prejudice is quite conelusory. He merely declares that the referenced testimony dominated the mind of the jury (preventing it from making a rational determination of the truth), impermissibly invaded the province of the jury, and was misleading and unfair. Generally, an appellant “has to do more than conjecture about what the jury could have believed” and a “mere allegation of prejudice will not suffice to invoke the plain error rule.” Scheikofsky v. State, 636 P.2d 1107, 1111 (Wyo.1981); see also Worcester, 2001 WY 82, ¶ 12, 30 P.3d at 52. Based on the following considerations, we find that the appellant has not established the requisite prejudice: (1) the evidence that the appellant stole the necklace was rather compelling, even in the absence of the testimony at issue; (2) the actual security system videotape, including the portions Halferty and Dietz referred to during their “shadows” testimony, was ultimately played for the jury in open court and also admitted, without objection, into evidence as an exhibit (complete with instructions on how to play the videotape); (3) the appellant had an opportunity to cross-examine both witnesses; (4) the prosecutor emphasized the videotape’s actual contents, and did not specifically reference the disputed testimony, during closing argument; (5) the appellant testified that he saw the necklace and pendant in the display case when he was in the jewelry store and by 12:55 p.m., Stratton had discovered the necklace was missing and Miller saw firsthand that “the bust was turned”; and (6) the district court instructed the jury that in

determining the weight to be given to an opinion expressed by a witness, you should consider the credibility of the witness, the extent of the witness’s opportunity to perceive the matters upon which the opinion is based and the reasons, if any, given for it. You are not required to accept such an opinion but should give it the weight to which you find it entitled.

[¶ 28] The appellant next argues that Halferty lacked the requisite personal knowledge to testify that “it was known that the bust had not been moved prior to Mr. Brown entering the store and that the necklace was in the case when Ms. Stratton went to lunch” because “the State did not put Ms. Stratton on the stand and therefore did not establish this fact.” This characterization of Halferty’s testimony does not accurately reflect Halferty’s actual testimony (previously set forth herein) as to his, and the store employees’, customary practices in inspecting the store merchandise. That aside, the testimony did not prejudice the appellant because the appellant testified that the necklace was present in the front display ease while he was in the jewelry store (at some point after 12:42 p.m.).

[¶ 29] The appellant further argues that Dietz lacked the requisite personal knowledge to testify that “Mr. Brown was the only individual on the tape that had the opportunity to steal the necklace, ... [Dietz] not having viewed the entire tape from 9:00 a.m. until 1:20 p.m.” Dietz testified that he was able to establish that “the necklace was still in the store prior to [Stratton] leaving the store to go to lunch,” presumably based on his investigation, so he and Halferty viewed the tape beginning a “little bit before the noon hour” and proceeded to identify the individuals who appeared on the videotape. According to Dietz, only one segment of the tape had “people up in the area where the necklace was displayed.” The following colloquy occurred during Dietz’s testimony:

[Prosecutor:] Could you identify any person who would have had the opportunity, directly at that case, to commit this theft?
A. Yes.
Q. How many people could you identify that had that opportunity?
A. One.
Q. And, in fact, have you reviewed this tape?
A. Yes.
Q.... So you and Mr. Halferty were able to narrow it down to this hour and this particular individual; is that true?
A. Correct.
[The appellant’s trial attorney:] And these videotapes, you reviewed the entire day of tapes?
A. No. There’s sections well beyond the end and sections way in the beginning that we did not — we did not look at.
Q. Those sections that you didn’t view, is that before the store was open?
A. I’m sorry?
Q. The ones you didn’t view, in the beginning, is that before the store was open?
A. No. Actually, we didn’t view from a time shortly before noon to earlier in the morning, because we knew that the necklace was there at that time. We were able to account for it up until the noon hour, when [Stratton] said she had seen it in the store window on her way out.
Q. You did not view the tapes from 10:00 on?
A. No, I did not.
[Prosecutor:] Were some of the earlier portions of the tape run through by you and Mr. Halferty?
A. Yes.
Q. 10:00 to 12:00, there was a quick run-through; but there was nothing; is that right?
A. That’s correct.
Q. You didn’t do them in detail like you did the other parts, did you?
A. No.
Q. Did you see anything in that quick review that caused you any concern?
A. No. You could see maybe a couple people coming in and out of the store, but nothing like this. They would all come back to the counter.
Q. So when we talk about your review, there was a quicker review you did of earlier in the morning, more detailed review later; is that correct?
A. Correct.
Q. I was misunderstanding you.
Did you see anything in the quick review that made you suspicious in any way?
A. No.

[¶ 30] The appellant’s argument relies only on a selected portion of Dietz’s testimony and ignores the detective’s later attempt to clarify his testimony as to what portions of the videotape he reviewed and whether anyone else appeared to have an opportunity to steal the necklace. Further, the videotape was admitted into evidence as an exhibit, at the jury’s disposal, and, as the prosecutor stated during his closing argument, the jury was free to “go through the whole film ... and confirm whether Mr. Halferty and Mr. Dietz were accurate when they told you that there was nobody else that was there.”

[¶ 31] The appellant also asserts that portions of Miller’s testimony were not properly based on her personal knowledge. The pertinent portions of Miller’s testimony follow:

[Prosecutor:] Now, that day, after you put the [necklace] in the front case, did anybody express an interest in the item, that you’re aware of, that day?
A. Not that I’m aware of.
Q. Do you have any reason to believe it had been disturbed in any way prior to lunchtime?
A. No.
Q. Is there a custom or habit of the employees of checking those front eases when they leave?
A. We look at everything when we’re in there. We — we’re so familiar with the items that, for a case to be opened slightly or something slightly out of line from the way we set it out, it’s noticeable.
Q. Okay. Something you would notice immediately?
A. Yes.

This testimony was improper, according to the appellant, because: (1) Miller’s awareness of customer interest in the necklace and pendant did not “definitely” mean that another customer had not in fact expressed an interest in the jewelry; (2) Miller’s “belief’ that the necklace and pendant had not been disturbed prior to lunchtime was not based on “definite facts and knowledge”; and (3) Miller did not testify that she or Stratton personally .checked the front display ease, or knew that any other employee did so, prior to the appellant’s arrival at the store or immediately after his departure.

[IF 32] Contrary to the appellant’s argument, Miller’s testimony was limited, by the phrasing of the questions asked, to her personal knowledge of the circumstances. The appellant’s argument as to the extent of the potential inferences that might be based on that testimony pertains to the weight to be given the testimony, not Miller’s personal knowledge. Further, the appellant has not established that this testimony materially prejudiced him. He asserts that the testimony “obviously” prejudiced him because it “was crucial to the State’s case that the jury believe that the bust and necklace were undisturbed prior to [the appellant] entering the store....” Yet, this argument completely ignores the appellant’s own testimony that the necklace was present in the front display ease while he was in the jewelry store.

Ineffective Assistance Of Counsel

[¶33] The appellant merely summarizes his arguments on the previous issues and claims that his trial counsel was ineffective in not objecting to the above-referenced testimony by Halferty, Dietz, and Miller. Aside from the applicable standard of review, the appellant cites no pertinent legal authority in advancing this argument and again merely declares that he was “clearly prejudiced.” We reject the appellant’s argument for the reasons previously set forth in this opinion.

CONCLUSION

[¶ 34] Finding no error sufficient to reverse the appellant’s felony larceny conviction, we affirm.

      . According to the store manager, store employees customarily put the jewelry in the display cases before 9:00 a.m., "before we open the store to the general public.”

      . Officer Patrick Carr, a patrol officer and evidence technician for the Casper Police Department, later discovered partial latent fingerprints on the glass display case and a partial latent fingerprint on the bust. The fingerprints recovered from the display case did not match the appellant’s fingerprints, but could have come from a customer or store clerk. In Carr's opinion, someone could access the display case without leaving a fingerprint.

      . While searching the appellant's bedroom, officers discovered an Altoids tin containing marijuana.

      . At trial, the appellant conceded that someone had stolen the necklace.

      . While Downs was a burglary case, we have also discussed this principle in larceny cases. See McFarlane, 2001 WY 10, ¶¶9-11, 17 P.3d at 33-34; Mendicoa v. State, 111 P.2d 1240, 1243-45 (Wyo.1989); and State v. Costin, 46 Wyo. 463, 28 P.2d 782, 783 (1934).

      .The tíme that actually appears on the videotape is approximately an "hour off." For example, if the time appears on the videotape as 1:42:53, the actual time of day is 12:42:53. We will refer to the actual time of day in this opinion.

      . In doing so, the appellant omits or glosses over key portions of his own testimony and that of Bartels. For example, in assessing the evidence, the appellant repeatedly relies on testimony that Margaret Ayres initially reported that the theft occurred between 10:00 a.m. and 1:20 p.m. January 7th. The appellant conveniently ignores his own testimony that the necklace and pendant were present in the front display case while he was in the store. The appellant also states that "no evidence established that Mr. Brown was ever in possession of the necklace," which statement ignores the testimony as to what Bartels observed in die appellant’s pocket shortly after leaving the jewelry store.

      . W.R.E. 401 states:
      "Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
      W.R.E. 402 states:
      All relevant evidence is admissible, except as otherwise provided by statute, by these rules, or by other rules prescribed by the Supreme Court. Evidence which is not relevant is not admissible.
      W.R.E. 403 states:
      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
      W.R.E. 602 states:
      A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
      W.R.E. 701 states:
      If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
      W.R.E. 701 essentially incorporates the personal knowledge requirement of W.R.E. 602. Schmunk v. State, 714 P.2d 724, 734-35 (Wyo. 1986).

      . Halferty testified that he also had some law enforcement experience in that he used to "carry a federal commission and sheriffs office and a local badge.”

      . At one point in his appellate discussion of this issue, the appellant does state in two sentences that the “shadows" portions of the videotape referenced by Halferty and Dietz "do not correctly portray the subject matter," "convey false, or at least unknown, impressions of what Mr. Brown did,” and "had questionable value for admission of evidence purposes under W.R.E. 401[,] 402, and 403." These conclusory statements can hardly be deemed cogent argument.

      . Schmunk, 714 P.2d at 735 (quoting 3 Louisell and Mueller, Federal Evidence § 376 at 618-619). We have also said that we will “not limit the type of perceptions a witness must experience, especially given this court liberally construes W.R.E. 701 in favor of admitting opinion evidence of lay witnesses.” Wilks v. State, 2002 WY 100, ¶ 25, 49 P.3d 975, 986 (Wyo.2002).

      . That the evidence included circumstantial evidence is of no consequence because circumstantial evidence
      has the same qualities of persuasion accorded direct evidence. The law makes no distinction between direct and circumstantial evidence and only requires that the jury, before convicting a defendant, be satisfied of the defendant's guilt beyond a reasonable doubt from all the evidence in the case. Circumstantial evidence has both standing and stature.

        Wells, 613 P.2d at 202; see also Fischer, 811 P.2d at 8.

      . The closest the prosecutor came to referencing the disputed testimony was in stating that "Halferty established that nobody else approached the case and handled the case, moved the bust, as what occurred when Rodney Brown was there.”


source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2004 WY 58
    THE REAL ESTATE PROS, P.C., a Wyoming corporation; and Debera S. Gibbs, d/b/a Real Estate Pros, Appellants (Plaintiffs), v. Dr. James R. BYARS, Jr., Appellee (Defendant).
    No. 03-86.
    Supreme Court of Wyoming.
    May 19, 2004.

      Representing Appellant: Andrea L. Richard and John A. Coppede of Rothgerber Johnson & Lyons LLP, Cheyenne, Wyoming.
    Representing Appellee: Richard Mathey, Green River, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] Real Estate Pros, P.C. (Real Estate Pros) a real estate agency, shed Dr. James R. Byars, Jr. (Dr. Byars) for breach of an exclusive listing contract. After accepting an offer of settlement from Dr. Byars pursuant to Rule 68 of the Wyoming Rules of Civil Procedure, Real Estate Pros filed a motion for attorneys’ fees, which were provided for in the contract. The district court denied the motion, finding the offer, which stated it was “in full and final satisfaction of all claims of Plaintiffs against Defendant,” included Real Estate Pros’ claim for attorneys’ fees. We affirm.

ISSUE

[¶ 2] The parties agree the issue presented is as follows:

Whether the district court erred in denying appellants’ Motion for Attorneys’ Fees?

FACTS

[¶ 3] On April 21, 1997, Real Estate Pros entered into an “Exclusive Right to Sell Listing Contract” (“listing contract”) with Dr. Byars to sell five lots that he owned. The contract between the parties provided the breaching or defaulting party would pay all reasonable attorneys’ fees incurred by the nonbreaching party in enforcing the contract.

[¶4] Nearly two years after listing the property, Frank Pirtz expressed interest in two of Dr. Byars’ lots. Dr. Byars entered into a contract with Mr. Pirtz, under which Mr. Pirtz agreed to perform work on all five lots in exchange for the two lots. In September 2000, Dr. Byars executed a deed transferring the two lots to Mr. Pirtz. Dr. Byars did not pay a commission to Real Estate Pros as a result of the transaction. Consequently, Real Estate Pros filed suit to enforce the listing contract.

[¶ 5] The amended complaint asserted four claims: (1) breach of exclusive right to sell listing contract, (2) breach of oral contract, (3) breach of implied contract, and (4) promissory estoppel. Following discovery, both parties filed motions for summary judgment. On September 23, 2002, Dr. Byars made a Rule 68 offer to Real Estate Pros, which stated as follows:

COMES NOW, James R. Byars, Jr., Defendant herein, and pursuant to Rule 68, W.R.C.P, hereby offers the following in full and final satisfaction of all claims of Plaintiffs against Defendant herein:
a. Judgment against Defendant in the amount of $9,720.00, plus costs accrued to date.
b. Dismissal with prejudice of all counterclaims presently pending herein against Plaintiffs.

[¶ 6] On September 27, 2002, Real Estate Pros accepted the offer. In accordance with Rule 68, the district court entered judgment against Dr. Byars and for Real Estate Pros' in the amount of $9,720.00, plus costs. On October 15, 2002, Real Estate Pros filed a motion for attorneys’ fees, pursuant to the terms of the listing contract, seeking over $44,000. After a hearing, the district court denied the motion finding Real Estate Pros had agreed to settlement of all of its claims, including its claim for attorneys’ fees. This appeal followed.

STANDARD OF REVIEW

[¶ 7] Although this case is an appeal from a motion denying attorneys’ fees, we are not deciding whether or not the district court abused its discretion in determining an award of attorneys’ fees. Rather, we must consider whether or not the district court properly interpreted the Rule 68 offer as including the claim for attorneys’ fees. An offer of judgment is generally treated as an offer to make a contract. Hennessy v. Daniels Law Office, 270 F.3d 551, 553 (8th Cir.2001). See also Johnson v. Johnson, 310 S.C. 44, 425 S.E.2d 46 (Ct.App.1992). In contract litigation, when the terms of the agreement are unambiguous, the interpretation is a question of law. Double Eagle Petroleum & Mining Corp. v. Questar Exploration & Production Co., 2003 WY 139, ¶ 7, 78 P.3d 679, ¶ 7 (Wyo.2003). Whether a contract is ambiguous is a question of law for the reviewing court. Boley v. Greenough, 2001 WY 47, ¶ 10, 22 P.3d 854, ¶ 10 (Wyo.2001). We review questions of law de novo without affording deference to the decision of the district court. Id. According to our established standards for interpretation of contracts, the words used in the contract are afforded the plain meaning that a reasonable person would give to them. Id.

DISCUSSION

[¶ 8] Given the fact that Dr. Byars’ Rule 68 offer did not mention attorneys’ fees, Real Estate Pros claims the district court erred in concluding the claim for attorneys’ fees was included in the offer. Dr. Byars responds that because his offer was made “in full and final satisfaction of all claims,” and Real Estate Pros’ complaint included a specific claim for attorneys’ fees, that claim was included in the offer. Real Estate Pros’ second amended complaint stated in pertinent part:

¶ 28: The contract provides “In the event that any party shall become in default or breach of any of the terms of this Contract, such defaulting or breaching party shall pay reasonable attorney’s fees and other expenses which non-breaching or non-defaulting party may incur in enforcing this Contract....”
¶ 29: The Plaintiffs have incurred and will continue to incur attorney’s fees in connection with their attempt to enforce the contract. The Plaintiffs are therefore entitled to recover their attorney’s fees incurred in connection with their efforts to recover the commission due and owing from the Defendant as a result of the exchange of Lots 4 and 5 of the property at issue.

[¶ 9] The purpose of Rule 68 is to encourage settlement. Duffy v. Brown, 708 P.2d 433, 440 (Wyo.1985); See also Marek v. Chesny, 473 U.S. 1, 5, 106 S.Ct. 3012, 87 L.Ed.2d 1 (1985). The rule provides:

At any time more than 60 days after service of the complaint and more than 30 days before the trial begins, any party may serve upon the adverse party an offer, denominated as an offer under this rule, to settle a claim for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the court shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the of-feree must pay the costs incurred after the making of the offer. As used herein, “costs” does not include attorney’s fees. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of settlement under this rule, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.

[¶ 10] Rule 68 accomplishes its objective of encouraging settlement by providing an expeditious process that forces the parties to weigh the costs and benefits of further litigation. Utility Automation 2000, Inc. v. Choctawhatchee Electric Coop., Inc., 298 F.3d 1238, 1240 (11th Cir.2002). Any party can make a firm, non-negotiable offer of judgment. Id. Unlike traditional settlement negotiations in which a plaintiff may seek clarification or make a counteroffer, a plaintiff faced with a Rule 68 offer may only accept or reject the offer. Id. An offer under Rule 68 must be for a definite or ascertainable amouht and later proof cannot cure any defect in the offer since the party to whom the offer was made must base its decision to accept or reject solely on what is contained within that offer. Snodgrass v. Rissler & McMurry Co., 903 P.2d 1015, 1018 (Wyo.1995). A Rule 68 offer is not simply an offer of settlement, but an offer that judgment can be entered on specified terms. If the offer is accepted, the court automatically enters judgment in favor of the offeree; if the offer is refused, the case proceeds. The rule encourages plaintiffs to accept reasonable offers through what is referred to as “cost-shifting.”. It requires a party who refuses an offer, and then ultimately recovers less than the offer amount, to pay the costs incurred by the offeror from the time the offer was made. The rule specifies that those “costs” do not include attorneys’ fees. Through this cost shifting, “the Rule prompts both parties to a suit to evaluate the risks and costs of litigation, and to balance them against the likelihood of success upon' trial on the merits.” Utility Automation, 298 F.3d at 1240 (citation omitted).

[¶ 11] As a general matter, Rule 68 offers are interpreted according to contract law principles. Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure Civil 2d § 3002 at 95 (2001 Supp.) For example, courts have consistently held an ambiguous-Rule 68 offer of judgment should be construed against the offeror. First Financial Insurance Co. v. Hammons, 58 Fed. Appx. 31, 34, 2003 WL 264700 (4th Cir.2003). See Nordby v. Anchor Hocking Packaging Co., 199 F.3d 390, 391 (7th Cir.1999) (holding that “any ambiguities in a Rule 68 offer must be resolved against the [offeror]”); Nusom v. Comh Woodburn, Inc., 122 F.3d 830, 833 (9th Cir.1997) (concluding that “the ‘usual rules of contract construction’ apply to a Rule 68 offer of judgment” and “therefore, ambiguities are construed against the offeror”) (citations omitted). Ambiguities in a Rule 68 offer “must be resolved against the defendant ..., not only because the defendant drafted the offer but also because the plaintiff is being asked to give up his right to a trial.” First Financial Insurance Co. 58 Fed. Appx. at 34 (quoting Nordby, 199 F.3d at 391-92).

[¶ 12] However, the dynamics of customary contract negotiation are altered by the operation of the rule and its cost shifting features. Wright, Miller & Marcus, supra at 94. The contract law analogy is just that, an analogy — the consequences of rejecting a Rule 68 offer are more serious than those of rejecting an ordinary contract offer. Nordby, 199 F.3d at 392. As a result, courts have considered interpretation of Rule 68 offers somewhat differently than contracts generally.

Were the agreement between the parties a simple contract, we might be inclined to consider the history of the negotiations. Ambiguous contract terms compel a court to look to extrinsic evidence, and it might fairly be said that the terms of [defendant’s] offer create an ambiguity as to [plaintiffs] attorneys’ fees.
But the arrangement here is not a simple contract; it involves an accepted offer of judgment, and there is a difference. Courts should be much more reluctant to conclude that an offer of judgment is ambiguous. If a common, garden-variety offer to contract is unclear, the offeree is free to reject the offer or attempt to clarify it. An offeree who accepts an ambiguous offer is in no position to complain if a court called upon to interpret the contract turns to extrinsic evidence. By contrast, a plaintiff who receives a Rule 68 offer is in a difficult position, because “a Rule 68 offer has a binding effect when refused as well as when accepted.” Unless the defendant allows the plaintiff to resolve or eliminate ambiguities, the plaintiff will be forced to guess whether and how the court would interpret the extrinsic evidence. Adherence to the language of the offer whenever possible alleviates this unfairness to the plaintiff.

Shorter v. Valley Bank & Trust Co., 678 F.Supp. 714, 719-720 (D.C.Ill.1988) (citations omitted).

[¶ 13] With regard to whether Rule 68 offers that are silent on the issue of attorneys’ fees are ambiguous, courts have taken two different approaches. Some courts require specific mention of attorneys’ fees in the offer before acceptance of the offer would bar those claims. See Webb v. James, 147 F.3d 617 (7th Cir.1998); Nusom, 122 F.3d 830; Chambers v. Manning, 169 F.R.D. 5 (D.Conn.1996). In Webb, an offer “of judgment in the above-captioned matter in the amount of Fifty Thousand Dollars ($50,000)” made no mention of attorneys’ fees. Webb, 147 F.3d at 619. The court found the offer ambiguous because attorneys’ fees are often sought as an add-on to the judgment and construed it against the drafter so that the offer did not bar a later claim for attorneys’ fees.

[¶ 14] In Nusom, the Ninth Circuit Court of Appeals found that “a Rule 68 offer for judgment in a specific sum together with costs, which is silent as to attorney fees, does not preclude the plaintiff from seeking fees when the underlying statute does not make attorney fees a part of the costs.” Nusom, 122 F.3d at 835. Likewise, in Chambers v. Manning, 169 F.R.D. 5 (D.Conn.1996), the court stated, “if Defendant had intended for his offer to include fees, he could have said so explicitly. His failure to do so will be construed against him.” Chambers, 169 F.R.D. at 8. Like Webb and Chambers, the Nusom court examined the specific language in the offer of judgment, and reached a similar conclusion: that the offer’s silence regarding attorneys’ fees created ambiguity with respect to whether the $15,000 sum included attorneys’ fees. The court concluded such ambiguity must be resolved against the drafter, and therefore the accepting party was not barred from seeking attorneys’ fees Nusom, 122 F.3d at 835.

[¶ 15] However, even if an offer is silent as to whether it includes attorneys’ fees, other circumstances in the case may make it clear that the offer does include attorneys’ fees. Moore’s Federal Practice, Civil § 68.02, n. 17.3 (2004 Supp. LEXIS). For example, Nordby, 199 F.3d at 391-93, involved a complaint in which one count claimed damages under a state law providing for an award of reasonable attorneys’ fees. The court held that the plaintiffs acceptance of a Rule 68 offer of “$56,003.00 plus $1,000 in costs as one total sum as to all counts of the ... complaint” barred the plaintiff from later seeking an award of attorneys’ fees. While the judge affirmed the above-stated notion that “ambiguities in Rule 68 offers are to be resolved against the offerors,” and even encouraged defendants to include the words “attorneys’ fees” in their Rule 68 offers, he rejected the “magic words approach ... in favor of an approach ... that gives effect to an unambiguous offer even if it does not mention attorneys fees explicitly.” The court found that this offer unambiguously encompassed the claims made in all the counts, including the count that requested fees.

[¶ 16] The offer in Nordby was similar to the offer in the present case. We agree with the holding in Nordby and find nothing ambiguous about an offer that refers to “all claims” of the plaintiff against the defendant. Dr. Byars’ offer “in full and final satisfaction of all claims of Plaintiffs against Defendant” can only mean one amount for settlement of all claims made by the plaintiff, including the claim for attorneys’ fees. The lack of the exact words “attorneys’ fees” in Dr. Byars’ offer does not render it ambiguous when it is considered in its entirety.

CONCLUSION

[¶ 17] Having concluded that attorneys’ fees were included in Dr. Byars’ Rule 68 offer, we need not address the issue of whether the district court erred in applying a prevailing party standard. We affirm the district court’s denial of Real Estate Pros’ motion for attorneys’ fees.


author: EASTAUGH, Justice.

text:
    Loren J. LARSON, Jr., Appellant, v. Allen COOPER, Director, Division of Institutions, State of Alaska, Dep’t of Corrections and Garland Armstrong, former Superintendent of the Spring Creek Correctional Center, Appellees. Loren J. Larson, Jr., Appellant, v. Allen Cooper, Director, Div. of Institutions, State of Alaska, Dept. of Corrections and Larry Davis, Correctional Officer, Spring Creek Correctional Center, Appellees.
    Nos. S-10327, S-10431.
    Supreme Court of Alaska.
    March 5, 2004.
    Rehearing Denied May 25, 2004.

      Loren J. Larson, Jr., pro se, Seward.
    Timothy W. Terrell, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BEYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Does a prison violate a maximum security prisoner’s constitutional rights by limiting his physical contact with his wife to a brief kiss and embrace at the beginning and end of her visits? In S-10327, we hold that the free exercise of religion clause of the federal constitution does not require the prison to allow hand-holding, kissing, and embracing throughout the visit, because we conclude that the visitation rules are reasonably related to legitimate penological objectives. We also hold that the free exercise clause of the Alaska Constitution does not require the prison to permit these activities, because we conclude that they would threaten the state’s compelling interest in maintaining institutional security. In S-10431, we reject the prisoner’s due process claims, because we hold that the temporary interruption of contact visitation did not interfere with a pro-tectable liberty interest.

II. FACTS AND PROCEEDINGS

A. Events Surrounding the Visitation and Discipline

Loren J. Larson, Jr. is a maximum security prisoner at Spring Creek Correctional Center in Seward, an Alaska Department of Corrections (DOC) facility. In 1999 the correctional center revised the rules governing contact visitations to prohibit all physical contact between prisoners and visitors other than “a short embrace upon initial contact and again upon departure.” Prior to this rule revision, handholding was permitted during visitation.

According to a civil complaint later filed by Larson, he and his wife joined hands in prayer during a contact visit on September 20, 1999. Correctional Officer Larry Davis was monitoring Larson’s visit. Officer Davis determined that Larson’s conduct violated Spring Creek’s visitation rules prohibiting hand holding, and he ordered Larson to release his wife’s hand. Larson refused, and Davis terminated the visit. Davis filed a disciplinary incident report describing Larson’s refusal to obey a direct order. As a result of this incident, Larson’s contact visitation privileges were suspended, and he was restricted to secure visitation.

On October 4, 1999 the prison disciplinary committee found Larson not guilty of disobeying a direct order. Nevertheless, prison officials continued to restrict Larson to secure visitation until December 1999.

B. Proceedings in S-10431

Larson filed several grievances and appeals challenging the disruption of his visit with his wife and the temporary suspension of contact visitation; all were denied by the Alaska Department of Corrections. Larson then filed a superior court administrative appeal in December 1999 in which he contended that “[t]he actions of [DOC] officials are violative of their own policy and procedures governing disciplinary [matters], use of individualized determination, [and] visitation.” The superior court converted Larson’s appeal against Officer Davis and Allen Cooper, the Director of Institutions for the Department of Corrections, into an original civil action in August 2000.

Larson’s complaint against Cooper and Davis alleges that Officer Davis violated Larson’s free exercise of religion and due process rights under the federal and state constitutions when Davis ordered Larson to release his wife’s hand during their visit. It also alleges that Cooper violated those rights when he refused to reinstate Larson’s contact visitation privileges. It also claims that DOC violated its own procedures for altering rules. The complaint sought a declaration that Davis and Cooper violated his rights by terminating his September 20, 1999 contact visit. It also sought an injunction ordering DOC to apologize to Larson’s wife and to begin annual testing of corrections officers on their knowledge of standard operating procedures for visitation, and requested compensatory and punitive damages.

Both sides in Larson’s suit against Cooper and Davis moved for summary judgment. Superior Court Judge Peter A. Miehalski granted summary judgment to the defendants and dismissed Larson’s claims. Larson’s appeal from this ruling is before us in Supreme Court File No. S-10431.

C. Proceedings in S-10327

In January 2000 Larson asked Spring Creek Superintendent Garland Armstrong for permission to conduct a “religious visit” with his wife; as described by Larson, the visit would have included extensive contact prohibited by Spring Creek’s visitation rules:

I request approval to receive a religious visit from my wife on 2-19-00 6:30 to 9:00 pm. This visit is in compliance to our Christian Faith in maintaining the institution of marriage.
Activities will include reading from the New International Readers Version Bible, Kneeling in prayer to our Lord and Savior Jesus Christ, Embracing for long periods of time and when needed, holding of hands and kissing. All of these activities are fundamental in our Christian Faith to maintain our marriage. The attorney visiting room will be needed for this visit. If needed, my wife will agree to a strip search in accordance to Policy and Procedure (810.02) to alleviate any security concerns.

Larson’s request was denied, as were his subsequent grievance and appeal to Allen Cooper.

Larson filed a superior court complaint in April 2000 alleging that Superintendent Armstrong and Director Cooper violated his religious free exercise rights guaranteed by the United States and Alaska Constitutions as well as the Religious Freedom Restoration Act of 1993 (RFRA). His complaint also alleges that the defendants violated his right, guaranteed by the Alaska Constitution, to rehabilitation. 'Larson requested declaratory and injunctive relief. Both sides moved for summary judgment. Judge Michalski granted the defendants’ motion, and held, among other things, that Spring Creek’s visitation rules limiting physical contact were narrowly tailored to achieve the state’s compelling interest in reducing the, influx of contraband. Larson’s appeal from this ruling is before us in Supreme Court File No. S-10327.

D. Consolidation

Larson also has a third appeal, Supreme Court File No. S-10708, pending before us. Cooper and Spring Creek Assistant Superintendent Thomas Reimer are the appellees in that appeal. Larson there contends that Reimer restricted. Larson’s visitation privileges in retaliation for the finding of the prison disciplinary committee that Larson was not guilty of-disobeying Davis’s order to release his wife’s hand. Cooper, Armstrong, Reimer, and Davis moved to consolidate the three appeals. Larson opposed consolidation. We issued an order on March 25, 2003, stating that we would consolidate S-10327 and S-10431, but that we would address S-10708 in a separate disposition.

III. DISCUSSION

We hold in these two appeals that the superior court properly granted summary judgment to the defendants on Larson’s claims. We first consider in S-10327 whether Spring Creek’s limitations on contact visits satisfy the free exercise clauses of the Federal and state Constitutions. We then consider whether the rehabilitation right guaranteed by the Alaska Constitution entitles a maximum security prisoner to have extensive physical contact with visitors. In S-10431, we consider whether Davis and Cooper violated Larson’s due process rights; this inquiry requires us to decide whether the temporary restriction of Larson’s contact visitation privileges implicated a protectable liberty interest.

A. Larson’s Free Exercise and Rehabilitation Claims in S-10327

1. The superior court did not err in holding that Spring Creek’s visitation rules do not violate the Federal Free Exercise Clause.

Defendants Cooper and Armstrong discuss two possible standards for analyzing Larson’s federal free exercise claim. We need not decide which is the correct standard because Spring Creek’s visitation rules satisfy either standard.

a. The Smith test

The United States Supreme Court held in Employment Division, Department of Human Resources v. Smith that a neutral, generally applicable law or regulation does not offend the free exercise clause even if the law has an incidental — i.e., unintended — effect on religious practice. As defendants contend, Spring Creek’s visitation rules are unquestionably constitutional under this standard: they do not discriminate against religion on their face. They apply to all prisoners, and Larson has not claimed that the rules are aimed at a particular religion.

b. The Turner test

The superior court held that Spring Creek’s visitation rules limiting physical contact do not violate the federal free exercise clause because, following the test established by the United States Supreme Court in Turner v. Safley, it reasoned that the rules were “reasonably related to legitimate penological interests.” In Turner the Supreme Court reasoned that this deferential standard was required to prevent courts from becoming unduly involved in the “intractable problems” of prison administration. The Court listed four factors that are relevant to determining whether a regulation is reasonable. We hold that Spring Creek’s visitation rules satisfy each factor.

The first factor requires “a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Prison security is a compelling governmental interest, and limitations on contact visits are rationally related to this interest. Superintendent Armstrong stated in his affidavit that the types of contact Larson seeks are specifically prohibited, because they facilitate the smuggling of contraband. Larson does not contest this assertion, and we have been given no basis for second-guessing the judgment of prison administrators on this score.

Larson asserts that correctional officers are primarily responsible for introducing contraband into Spring Creek and correctional facilities generally. But this proposition, if true, is beside the point. Larson does not argue that contact visits do not also create a significant risk of contraband smuggling. Furthermore, Larson does not directly counter the defendants’ argument that the types of contact Larson desires would exacerbate this problem. Thus, any dispute about whether correctional officers are responsible for more smuggling than visitors is not material to the issues properly before us.

The second Turner factor requires courts to examine “whether there are alternative means of exercising the right that remain open to prison inmates.” Larson argues that Spring Creek’s contact limitations leave him no alternative means of practicing “Physical Religious Worship” with his wife. But the “alternative means” factor merely requires that adherents not be “deprived of all forms of religious exercise,” not that they remain free to engage in the prohibited activity. In this ease, the contact limitations do not otherwise prevent Larson from fully practicing his religious beliefs.

The third Turner factor requires courts to consider “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Cooper and Armstrong provide evidence of several likely impacts, principally increased security risks from expanded contact visits and the commensurate burden on prison resources created by the need to mitigate those risks through increased searches, monitoring, or both. Larson claims that his requested “religious visits” would .'not pose additional security risks and would not require additional security measures, but these arguments fail to create genuine issues of material fact for several reasons.

We note preliminarily that Larson did not offer any admissible evidence regarding his religious practices to counter the affidavits Cooper and Armstrong offered in support of their motion for summary judgment. Rather, his opposition to their motion and affidavits relied, exclusively on his own unsworn contentions. Ordinarily this would be cause for affirmance, because non-movants may not rely upon assertions of fact in unverified pleadings and memoranda to oppose a motion for summary judgment. But we have held that “the pleadings of pro se litigants should be held to less stringent standards than those of lawyers,” and have held that pro se litigants should‘be informed of the need to submit affidavits or other evidence to preclude summary judgment. The superior court’s ruling did not rely on Larson’s failure to produce admissible evidence, and instead appeared to treat Larson’s pleadings as counter-affidavits. We will do the same in this appeal.

Larson asserts that his wife would voluntarily submit to a strip-search before visiting him, that he is always strip-searched following contact visits, and that he could be placed in a “dry cell” to further ensure that he had not received contraband. But the governing regulations and constitutional law do not permit strip-searches of visitors unless there are reasonable grounds to suspect that the visitor possesses contraband.

Larson emphasizes that his wife would voluntarily submit to such searches. Larson cannot waive his wife’s Fourth Amendment rights to be free from unreasonable searches. But even if she unconditionally agreed to submit to pre-visit strip-searches, we are not convinced that her submission would require prison officials to grant Larson’s request for extended contact visitation privileges. Sus-picionless searches of visitors and prisoners would impose additional burdens on prison staff. Superintendent Armstrong’s affidavit established that the prison staff is already short-handed. Intrusive searches are normally not cross-gender, and searches of female visitors would be disruptive, considering that only twelve of the 127 correctional officers are female. Likewise, using a dry cell to prevent the introduction of ingested contraband is even more resource-intensive, because the inmate must be placed under observation in the designated cell until the inmate excretes any ingested contraband. Finally, the impacts resulting from Larson’s own visitation requests cannot be considered in isolation. Based on the statements in Superintendent Armstrong’s affidavit, we assume that a significant number of other Spring Creek prisoners would ask for similar privileges. Accordingly, the superior court did not err in analyzing the third factor when it held that “the impact of allowing for an exception is unduly burdensome to the prison.”

The final Turner factor requires courts to consider whether there are any “ready alternatives” to the policy in dispute. The Supreme Court made it clear, however, that “[t]his is not a ‘least restrictive alternative’ test: prison officials do not have to set' up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint.” The Court further suggested that only those alternatives that would accommodate the prisoner’s rights at “de minimis cost to valid penological interests” could be considered relevant to a court’s inquiry into whether a regulation is reasonable. Larson’s proposed alternative of intensified searches imposes more than de minimis costs. The only other alternative that might accommodate Larson’s claim would be increased monitoring, which is also a resource-intensive undertaking. Either way, Spring Creek would have to invest more resources in security or simply accept the risk of increased contraband smuggling that Larson’s claimed exemption would entail. There is no “obvious, easy alternative” to Spring Creek’s visitation rules.

2. The superior court did not err in holding that Spring Creek’s visitation rules do not violate the Alaska Constitution’s free exercise clause.

The superior court held that Spring Creek’s visitation rules do not violate the Alaska Constitution’s free exercise clause. Frank v. State established a two-part test governing claims brought under this clause challenging facially neutral laws. Under the first part of the test, the challenger must satisfy three requirements: a religion is involved, the conduct in question is religiously based, and the claimant is sincere in his or her religious belief. Under the second part of the test, courts must consider whether the conduct poses “some substantial threat to public safety, peace or order,” or whether “there are competing governmental interests that are ‘of the highest order and ... (are) not otherwise served.’ ”

The superior court assumed that Larson satisfied the first part of the test, and Cooper and Armstrong'do not ask us to re-visit this assumption. The superior court addressed the second part of the Frank test by holding that Spring Creek’s visitation rules were narrowly tailored to serve the “compelling state interest in secure prisons free from contraband.” The court further held that granting Larson’s religious exemption by adopting the alternative security measures he proposed would be “unduly burdensome.”

a. How to apply Frank’s second part

Before they discuss Larson’s claims under the free exercise clause of the Alaska Constitution, Cooper and Armstrong address at length the standard governing such claims. They ultimately ask us to adopt a “compelling interest/narrow tailoring” standard most commonly found in First Amendment jurisprudence governing time, place, and manner restrictions and commercial speech restrictions, rather than the “compelling interest/least restrictive means” standard applied in federal free exercise cases predating Employment Division, Department of Human Resources v. Smith. Defendants argue that we have never clearly articulated the second part of the standard we adopted in Frank. Frank made it clear that only compelling state interests could justify burdens on the exercise of religion. Frank and our subsequent Alaska free exercise cases have not explained exactly what degree of fit is required between the interest and the means used to achieve it to satisfy the second part of the Frank analysis.

Nonetheless, this case does not require the elaboration defendants seek. Frank explained that the appropriate question, after a court determines that the claimed exemption implicates a compelling government interest, is “whether that interest, or any other, will suffer if an exemption is granted to accommodate the religious practice in issue.” This test adequately addresses the closeness of the fit between the state’s interest and the means used to achieve it. If an exemption would not harm the government’s interest, the means chosen to achieve the interest were probably neither narrowly tailored nor least restrictive. For purposes of this case, Frank and its Alaska progeny adequately state the dispositive standard.

Moreover, it is not obvious why Frank’s analysis must coincide with either of the two formulations discussed in the defendants’ brief. The concepts of “narrow tailoring” and “least restrictive means” no longer apply to prisoners’ federal constitutional claims or federal free exercise claims generally. We therefore see no reason to determine which of these formulations best characterizes the Frank test in the context of prisoner free exercise claims brought under Alaska’s free exercise clause.

Finally, in the context of prisoner free exercise claims we think it appropriate to temper our application of the Frank test in recognition of the Supreme Court’s observation that “[rjunning a prison is an inordinately difficult undertaking,” and its statement that “ ‘prison administrators ..., and not the courts, [are] to make the difficult judgments concerning institutional operations.’ ” This statement indicates that the federal courts apply a highly deferential standard in reviewing the decisions of prison administrators. Larson’s case does not require us to consider whether Alaska courts should apply an equally deferential standard. Rather, we simply acknowledge, as we did in Mathis v. Sauser, that “[subjecting the day-to-day judgments of prison officials to an inflexible strict-scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.”

b. Applying the second part of the Frank test here

The defendants’ appellate brief does not directly discuss how the second part of the Frank test applies here. But their analysis of the third and fourth Turner factors— impact of accommodation and availability of ready alternatives — convincingly addresses the values that underlie the second part of the Frank test.

Superintendent Armstrong’s affidavit provides evidence that the contact visitation accommodations Larson seeks (and that other prisoners would also then predictably claim) would require significant resource outlays to mitigate against the resulting increased risk of contraband smuggling. These outlays would result from increased searches, monitoring, or both. Armstrong’s affidavit states that budgetary constraints would prevent Spring Creek from implementing the security measures Larson proposes without jeopardizing other areas of Spring Creek.

Larson’s claim that an accommodation would be virtually without cost does not create genuine issues of material fact precluding summary judgment for the defendants. The record in this ease establishes beyond dispute that Larson’s recommendation that he and his wife be strip-searched, or that he be placed in a dry cell in connection with each “religious visit,” would be resource-intensive; the cost would be multiplied by the accommodations needed to satisfy other prisoners who would inevitably claim similar privileges. Likewise, we are unpersuaded by Larson’s claim that, because the “religious visits” would take place in a room currently designated for attorney-client visits, increased monitoring would not be necessary. Larson asserts that the room has large one-way observation mirrors that permit officers “in or around” the shift supervisor’s office across the hallway to monitor visits while going about their other tasks; no additional prison resources would have to be dedicated to the monitoring effort. As a matter of law, this proposed accommodation raises no genuine factual dispute. Monitoring contact visits is an important security function that cannot be informally satisfied by random observations by officers who happen to be going past the observation mirrors.

Spring Creek placed additional limits on contact visits in 1999, but did not prohibit them entirely. The defendants argue that the new rules are a proportionate response to the risks posed by contact visits: the new rules limit the opportunities to smuggle contraband while affording some opportunity to engage in the natural desire to be physically affectionate with friends and loved ones. Courts are generally ill-positioned to second-guess prison administrators’ judgment that hand-holding between visitors and maximum security prisoners would jeopardize the state’s compelling interest in security. In any event, we conclude that Larson has not demonstrated that any genuine, material factual disputes precluded summary judgment for defendants on Larson’s state free exercise claim.

3. Spring Creek’s visitation rules do not infringe on Larson’s right to rehabilitation.

Larson argues that his right to rehabilitation, guaranteed by article 1, section 12 of the Alaska Constitution, includes the right to “religious visits” described above, because such visits promote rehabilitation “as nothing else can.” Cooper and Armstrong argue that this cannot be correct because nothing in the text of article 1, section 12 or the constitutional convention minutes supports a right to have the extended contact visitation Larson seeks.

We recognized in Brandon v. State, Department of Corrections that “visitation privileges are a component of the constitutional right to rehabilitation” guaranteed by article 1, section 12 of the Alaska Constitution. But we have been referred to nothing in article 1, section 12 or the constitutional minutes that implies any intention to constitutionalize extended contact visits for maximum security prisoners or to preclude prisons from putting reasonable limits on contact visitation of maximum security prisoners. Some physical contact may well promote rehabilitation, but that would not alone justify a conclusion in this case that Larson had an unqualified constitutional right to extended contact visitation with his wife. The security risks posed by contact visits and the high costs of mitigating such risks convince us that the degree of contact permitted between visitors and maximum security prisoners lies within the sound discretion of prison administrators.

4. The superior court did not err in failing to grant Larson conjugal visits.

Larson also contends on appeal that he has a constitutionally protected religious right to conjugal visits with his wife. But in the superior court he expressly stated that he was not making that contention. He therefore waived any claim that he has a constitutional right to conjugal visits. He cannot make such a claim for the first time in this appeal.

B. Larson’s Claims in S-10431

Larson argues in S-10431 that the superi- or court erroneously granted summary judgment to Superintendent Cooper and Officer Davis. In arguing error, he advances seven contentions: (1) Davis’s order to Larson that he release his wife’s hand was “illegal” and violated Larson’s constitutional right to free exercise of religion; (2) Davis had no legitimate reason to demand that Larson release his wife’s hand; (3) Larson has a liberty interest, apparently originating in the First Amendment, in having contact visitation with his wife; (4) Larson has a state-created liberty interest, originating in Alaska Constitution article I, section 12, in contact visitation; (5) DOC violated Larson’s due process rights by failing to give him fair notice that hand-holding was not permissible; (6) Davis’s order to Larson violated the prison standard operating procedure, thereby violating Larson’s constitutional right to free exercise of religion and due process; and (7) Larson was entitled to an administrative hearing concerning his right to contact visitation.

Larson provides no meaningful substantive discussion of these theories.

Larson’s first contention, that Davis and Cooper violated his right to free exercise of religion, is resolved by our discussion of his appeal in S-10327. Because the rules Davis and Cooper enforced did not themselves violate the ’right to free exercise of religion, enforcing those rules did not violate the free exercise clauses, either.

The rest of Larson’s contentions in S-10431 turn on whether under the circumstances of this dispute he has a protectable federal or state liberty interest in contact visitation. We conclude that he does not.

The United States Supreme Court has explained that under the federal constitution’s Fourteenth Amendment, “ ‘[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.’ ” The Court has explained that the guarantee of due process does not provide a right to parole, freedom from transfer to higher-security facilities, or a right to avoid segregation from the general prison population.

We conclude that if the federal due process clause does not guarantee these benefits, it necessarily must not provide a lesser right to contact visitation.

We next consider whether Alaska law has created a liberty interest that is protected by the federal constitution’s Fourteenth Amendment. The United States Supreme Court explained in Sandin v. Conner that in the prison context, state-created liberty interests protected by the Fourteenth Amendment “will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” In Sandin, the Court ruled that “discipline in segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.” The Court reasoned that placing a prisoner in solitary confinement for thirty days “did not work a major disruption in his environment.”

Larson was denied contact visitation for seventy-three days but was allowed secure visitation throughout that period. Whether or not the temporary suspension of all visitation might implicate a liberty interest, we agree with the defendants that temporarily suspending contact visitation, while continuing to allow secure visitation, is not so atypical and significant a hardship beyond ordinary prison life that it implicates a protected liberty interest.

Finally, we consider Larson’s contention that the Alaska Constitution creates a protectable liberty interest in contact visitation. Larson argues that defendants Cooper and Davis deprived him of a liberty interest he claims was established by the reformation clause of article I, section 12 of the Alaska Constitution. That clause states in part, “[cjriminal administration shall be based upon the following: the need for protecting the public, community condemnation of the offender, the rights of victims of crimes, restitution from the offender, and the principle of reformation.”

In Brandon v. State, Department of Corrections we considered article I, section 12 of the Alaska Constitution in the context of the transfer of a prisoner out of state, potentially preventing the prisoner’s relatives from visiting him. We recognized that visitation was “a component of the constitutional right to rehabilitation.” But we declined to define the scope of visitation privileges protected by the constitution and any limits on the exercise of those privileges; instead, we explained that “[s]uch definitions will have to be achieved in future adjudications.” Today we hold that a temporary suspension of contact visitation is a permissible limitation on visitation.

In Matson v. Commercial Fisheries Entry Commission, we explained that “[f]or the due process clause to apply, there must be ‘the deprivation of an individual interest of sufficient importance to warrant constitutional protection.’ ” Although visitation implicates the constitutional right to reformation, Cooper and Davis did not deprive Larson of visitation. They temporarily deprived Larson of contact visitation as a form of prison discipline. As the United States Supreme Court noted in Overton v. Bazzetta, many states “us[e] withdrawal of visitation privileges for a limited period as a regular means of effecting prison discipline. This is not a dramatic departure from accepted standards for conditions of confinement.” But as the Court recognized, “[i]f the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied in an arbitrary manner to a particular inmate, the case would present different considerations.” In this case, the temporary interference with Larson’s contact visitation privileges as a means of effecting prison discipline was not so severe that it implicated a constitutionally protected liberty interest.

IV. CONCLUSION

For these reasons, we AFFIRM the superior court’s grants of summary judgment.

      . 42 U.S.C. § 2000bb et seq. (2000).

      . Larson no longer contends that the RFRA affords grounds for relief in his suit against Armstrong and Cooper. The United States Supreme Court held the RFRA unconstitutional in City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d-624 (1997).

      . "We review a grant of summary judgment de novo. All reasonable factual inferences are drawn in favor of the non-moving party to determine whether genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law.” Wongittilin v. State, 36 P.3d 678, 680 (Alaska 2001) (original emphasis) (internal quotation and citation omitted). In reviewing questions of law, we apply our independent judgment and adopt the rule of law that is most persuasive in light of precedent, reason, and policy. Mathis v. Sauser, 942 P.2d 1117, 1120 (Alaska 1997).

      . Cf. Hines v. South Carolina Dep't of Corr., 148 F.3d 353, 357 (4th Cir.1998) (declining to address question of which free exercise standard applied because policy at issue was valid under ei&er approach).

      . Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 878-79, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).

      . Facially neutral laws of general applicability can still offend the free exercise clause if they are clearly aimed at a particular religion, Church of

        the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), but Larson has not alleged that the disputed visitation rules were enacted with any discriminatory animus.

      . Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); see also O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (applying Turner test to prisoner free exercise claim).

      . Turner, 482 U.S. at 84-85, 89, 107 S.Ct. 2254 (explaining that courts are ill-equipped to deal with problems of prison administration, and that these problems have been committed to legislative and executive branches).

      . Id. at 89, 107 S.Ct. 2254.

      . Id. (quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984)).

      . Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) ("[Cjentral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.”); see also Hines, 148 F.3d at 358 (stating that institutional security is compelling interest); May v. Baldwin, 109 F.3d 557, 563 (9th Cir.1997) (same).

      . Block, 468 U.S. at 586, 104 S.Ct. 3227 ("That there is a valid, rational connection between a ban on contact visits and internal security of a detention facility is too obvious to warrant extended discussion.”).

      . See, e.g., O’Lone, 482 U.S. at 353, 107 S.Ct. 2400 ("We take this opportunity to reaffirm our refusal, even where claims are made under the First Amendment, to 'substitute our judgment on ... difficult and sensitive matters of institutional administration ....' ") (quoting Block, 468 U.S. at 588, 104 S.Ct. 3227).

      . Turner, 482 U.S. at 90, 107 S.Ct. 2254.

      . O’Lone, 482 U.S. at 352, 107 S.Ct. 2400 (emphasis added) (observing that Muslims who were prevented from attending Jumu’ah by prison regulation remained free to "observe a number of their religious obligations”).

      . Turner, 482 U.S. at 90, 107 S.Ct. 2254.

      . Brock v. Rogers & Babler, Inc., 536 P.2d 778, 783 (Alaska 1975).

      . Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) (original emphasis).

      . 22 Alaska Administrative Code (AAC) 05.130(b) (1991) ("In order to have contact visitation with a prisoner, a visitor may be required to submit to a strip search, if reasonable grounds exist to believe that the visitor is in possession of contraband."); see also Leverette v. Bell, 247 F.3d 160, 167 (4th Cir.2001) (collecting cases holding that invasive search of visitor must be supported by reasonable suspicion that visitor is carrying contraband).

      . Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (stating that suspi-cionless body cavity search of all inmates at detention facility following every contact visit is not unreasonable).

      . Cf. Turner, 482 U.S. at 90, 107 S.Ct. 2254 ("When accommodation of an asserted right will have a significant ripple effect on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.”).

      . Id.

      . Id. at 90-91, 107 S.Ct. 2254.

      . Id. at 91, 107 S.Ct. 2254.

      . Id. at 90, 107 S.Ct. 2254.

      . Alaska Const, art. 1, § 4.

      . Frank v. State, 604 P.2d 1068, 1070-73 (Alaska 1979).

      . Id. at 1071-73; see also Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 281 (Alaska 1994).

      . Frank, 604 P.2d at 1070 (quoting Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963)).

      . Id. (quoting Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)).

      . See Employment Div., Dep’t Human Res. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). We chose not to follow
        Smith in Swanner, 874 P.2d at 280-81, and instead chose to evaluate free exercise claims brought under the Alaska Constitution using the test established in Frank.

      . Frank, 604 P.2d at 1073.

      . Id.

      . See supra Part III.A.l (discussing Turner and Smith standards).

      . Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); see also Overton v. Bazzetta, 539 U.S. 126, 123 S.Ct. 2162, 2167, 156 L.Ed.2d 162 (2003) (according "substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them”).

      . Turner, 482 U.S. at 89, 107 S.Ct. 2254 (quoting Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977)).

      . Mathis v. Sauser, 942 P.2d 1117, 1121 n. 7 (Alaska 1997) (quoting Turner, 482 U.S. at 89, 107 S.Ct. 2254).

      . 604 P.2d at 1073-74.

      . See the discussion above in Part III.A. 1 .b.

      . See id. (discussing increased monitoring and search costs associated with granting Larson’s requested accommodation in context of Turner’s third factor).

      . See id.

      . Larson contends that Spring Creek has never had to increase staff to monitor the attorney-client visitation room in the past. But past staffing needs are based on past visitation rules; they are irrelevant to the expanded visitation Larson seeks and others would then demand.

      . The superior court did not reach this issue although it was briefed below by both parties.

      . Brandon v. State, Dep’t of Corrs., 938 P.2d 1029, 1032 n. 2 (Alaska 1997).

      . Pasco v. State, Dep't of Admin., 45 P.3d 325, 328-29 (Alaska 2002) (holding that this court will not consider arguments raised for first time on appeal).

      . We consider in S-10708 the separate issue whether prison officials had an improper retaliatory motive for continuing to deny contact visitation to Larson for about two months after the prison disciplinary committee found him not guilty of disobeying a direct order.

      . Kentucky Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460-61, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (quoting Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976)).

      . Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).

      . Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976).

      . Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983).

      . Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (citation omitted).

      . Id. at 486, 115 S.Ct. 2293.

      . Id.

      . Cf. Ware v. Morrison, 276 F.3d 385, 387 (8th Cir.2002) (holding prisoner's "loss of visitation privileges is within the ordinary incidents of confinement and cannot be considered an atypical and significant hardship"); Blair v. Loomis, 1 F.Supp.2d 769, 772-73 (N.D.Ohio 1998); Drayton v. Comm'r of Corr., 52 Mass.App.Ct. 135, 751 N.E.2d 916, 919-20 (2001) (loss of visitation privileges for one year did not implicate liberty interests protected by Fourteenth Amendment).

      . Brandon v. State, Dep't of Corrs., 938 P.2d 1029, 1030-32 (Alaska 1997).

      . Id. at 1032 n. 2.

      . Id.

      . Matson v. Commercial Fisheries Entry Comm’n, 785 P.2d 1200, 1206 (Alaska 1990) (quoting Nichols v. Eckert, 504 P.2d 1359, 1362 (Alaska 1973)).

      . Overton v. Bazzetta, 539 U.S. 126, 123 S.Ct. 2162, 2170, 156 L.Ed.2d 162 (2003).

      . Id.

      . Our conclusion that Cooper and Davis did not deprive Larson of a protectable liberty interest in contact visitation necessarily disposes of his contention that it was a denial of his procedural due process rights not to give him a hearing on his alleged right to have contact visitation. He was given a hearing after he was charged with disobeying a direct order. This hearing gave him an opportunity to dispute the adequacy of notice.