author: GOLDEN, Justice.

text:
    2002 WY 153
    Gerald P. BARKELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Defendant).
    No. 00-223.
    Supreme Court of Wyoming.
    Oct. 16, 2002.

      Kenneth Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Assistant Appellate Counsel; Diane E. Courselle, Director, Sean Minahan, Student Intern, and Kirk Morgan, Student Intern, of the Wyoming Defender Aid Program, Representing Appellant. Argument by Mr. Morgan.
    Hoke MacMillan, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; T. Alan Elrod, Assistant Attorney General, Representing Appel-lee. Argument by Mr. Elrod.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   GOLDEN, Justice.

[T 1] On January 25, 2000, a jury conviet-ed Gerald P. Barkell (Barkell) of two counts of third degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-804(a)@i) (LexisNexis 2001). On appeal, Barkell challenges his convictions based on the alleged ineffectiveness of his trial counsel. We find that Barkell has not overcome the strong presumption that his counsel rendered adequate assistance and affirm his convictions.

ISSUES
[12] Barkell states the issues as follows:
I. Did [trial counsel's] failure to conduct an adequate investigation, failure to effectively examine witnesses at trial, and general lack of understanding of controlling principals [sic] of law, deny Mr. Barkell his constitutional right to effective assistance of counsel under the 6th Amendment of the United States Constitution and under Article 1, § 10 of the Wyoming Constitution?
II. Did this Court effectively deny Mr. Barkell the right to due process and a meaningful appeal by denying Mr. Barkell the opportunity to supplement the trial record in his attempt to prove his appellate claim of ineffective assistance of trial counsel?

The State puts the issues as follows:

I. Did Appellant receive effective assistance of counsel?
II, Should this Court refuse to consider Appellant's improper, second issue?

FACTS

[T3] Barkell was charged with two counts of third degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-804(a)(ii). The charges were based on allegations by Bar-kell's stepdaughter, BV, that on successive nights in early July 1999, Barkell forced her to shower with him, to lie naked with him, to rub lotion on him and allow him to do the same to her, and to touch his genitals and allow him to do the same to her. BV was ten years old at the time.

[14] The morning after the second incident, BV told her mother about the allegations. Her mother took her immediately to the Safe House shelter in Cheyenne and called the police. A detective from the Laramie County Sheriffs Department interviewed BV and her mother at the shelter. BV told the detective that Barkell first offered her money to shower with him and, when she refused, used physical force to disrobe her and force her into the shower.

[T5] Mr. Barkell was arrested in July 1999, and a public defender was appointed for him. A replacement public defender entered his appearance on October 26, 1999. Following a continuance at Barkell's request, he was tried on January 24 and 25, 2000. The jury returned guilty verdicts on two counts of third degree sexual assault, and Barkell received consecutive sentences of five to seven years on each count.

[T6] At trial, the State's witnesses included BV's mother, a child psychologist, BV, and the investigating detective. BV's mother testified about her daughter's allegations and about behavioral problems she had observed in her daughter before learning of those allegations. The psychologist testified regarding behavioral patterns commonly seen in child victims of sexual assault. The detective testified regarding his interviews with BV and her mother, as well as his investigation of the crime scene.

[17] Barkell's defense at trial was based on the lack of corroborating physical evidence and on BV's alleged motivation to fabricate the allegations of sexual assault in retaliation for Barkell's efforts to discipline her more strictly than did her mother. In support of the latter argument, he presented three witnesses to testify regarding BV's reputation for dishonesty. Barkell did not testify.

[18] On appeal to this Court, Barkell previously filed a motion and brief requesting a limited remand to develop evidence of trial counsel's ineffectiveness. That motion was denied.

STANDARD OF REVIEW

[19] We recently reaffirmed our standard for reviewing claims of ineffective assistance of counsel in Becker v. State, 2002 WY 126, ¶12, 53 P.3d 94, ¶12 (Wyo.2002), and Chapman v. State, 2001 WY 25, 11 6, 18 P.3d 1164, 16 (Wyo.2001). Those cases approve the standard articulated in Jackson v. State, 902 P.2d 1292, 1295 (Wyo.1995), and applied in Grainey v. State, 997 P.2d 1035, 1038-39 (Wyo.2000):

When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the cireumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. Herdt v. State, 891 P.2d 793, 796 (Wyo.1995); Starr v. State, 888 P.2d 1262, 1266-67 (Wyo.1995); Arner v. State, 872 P.2d 100, 104 (Wyo.1994); Frias v. State, 722 P.2d 135, 145 (Wyo.1986). The reviewing court should indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Herdt, at 796; Starr, at 1266; Arner, at 104; Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).
Under the two-prong standard articulated in Strickland and Frias, an appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient and that prejudice resulted. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Starr, at 1266; King v. State, 810 P.2d 119, 125 (Wyo.1991) (Cardine, J., dissenting); Campbell v. State, 728 P.2d 628, 629 (Wyo.1986); Frias, 722 P.2d at 145. In other words, to warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to "render such assistance as would have been offered by a reasonably competent attorney" and that "counsel's deficiency prejudiced the defense of the case." Lower v. State, 786 P.2d 346, 349 (Wyo.1990). "The benchmark for judging any claim of ineffective ness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.

[¥10] The burden of proving that counsel was ineffective therefore rests entirely on the Appellant. Sorensen v. State, 6 P.3d 657, 660 (Wyo.2000), cert. denied, 531 U.S. 1093, 121 S.Ct. 818, 148 L.Ed.2d 702 (2001).

DISCUSSION

[111] In connection with his first issue, Barkell asserts three general categories of ineffective assistance by trial counsel: 1) failure to adequately prepare for trial; 2) failure to present proper witnesses and evidence at trial; and, 8) unfamiliarity with trial practice rules and standards. He cites nine particulars of alleged ineffective assistance, which we will discuss in the order presented. As to each, we begin with a presumption that counsel rendered adequate representation unless Barkell demonstrates on the record that counsel's performance was deficient and that prejudice resulted. Becker, ¶¶ 16, 17.

Failure to present testimony of BV's counselors

[T12] Testimony at trial indicated that BV had been in counseling before the incidents that led to the charges against Bar-kell. Barkell alleges that trial counsel failed to investigate "possible evidence" that the victim's counselors "may have been able to reveal." He makes the assumption that, because BV was in counseling, there may be evidence in her counseling records to support his defense theory that she was either dishonest or motivated to fabricate the allegations of sexual assault.

[113] We have often said that a defendant does not meet his burden to show his counsel's performance was deficient by mere speculation or equivocal inferences as to potential witnesses and testimony that could have been called at trial. Grainey, 997 P.2d at 1039-40; Cutbirth v. State, 751 P.2d 1257, 1266 (Wyo.1988). "[The listing] of possible witnesses along with vague statements of the testimony they might provide ... falls far short of a presentation of the facts about which the proposed witnesses would have testified that is necessary to overcome the strong presumption that the failure to call these witnesses was a strategic trial decision." Eustice v. State, 11 P.3d 897, 904-05 (Wyo.2000).

[114] Because Barkell does not identify any specific testimony or evidence that the counselors would have offered, the presumption that trial counsel rendered adequate assistance and exercised reasonable professional judgment is not rebutted, and it is therefore not necessary to address the see-ond prong of the Strickland test.

Failure to Consult with or Call an Expert

[115] At trial, Barkell's counsel vigorously cross examined the State's expert witness, a child psychologist, but did not call a second expert to testify on behalf of defendant. Barkell assumes from this that his counsel did not consult with an expert or consider the possibility of calling a defense expert, and that such failure constitutes ineffective assistance.

[116] In McCoy v. State, 886 P.2d 252, 256 (Wyo.1994), we recognized that failure to call an expert witness may constitute ineffective assistance of counsel. However, in Bloomquist v. State, 914 P.2d 812 (Wyo.1996), we also stated that "the defendant must show that such expert testimony was available and necessary" and that "[alppellant must show that an expert was available who would have testified consistently with his theory." Id. at 820. Barkell fails to make such a showing, but invites us to speculate about what type of expert and what type of testimony could have assisted his defense. We decline to engage in such speculation to overcome the strong presumption of adequate assistance.

[1 17] The decision not to call a witness is a strategic choice, normally within the judgment of counsel and will not be second-guessed with the benefit of hindsight absent the specific showing required by McCoy and Bloomquist. Eustice, 11 P.3d at 904-05.

Failure to Adequately Question the State's Expert

[T18] Barkell concedes on appeal that the testimony of the State's expert was probably admissible under applicable case law and criticizes his attorney for vigorously objecting to its admission at trial. Barkell fails to demonstrate how the making of an objection, ultimately and correctly overruled by the trial court, constituted ineffective assistance of counsel or prejudiced his defense.

[119] Barkell then proceeds to criticize the quality of the cross-examination. Through eross-examination, defense counsel attacked the credibility of Dr. Dictrick-Mac-Lean by admission that her services are available for hire by both prosecution and defense. He obtained an admission that there can be other causes for the symptoms the doctor associated with sexual abuse, and that child victims may incorporate into their memory of sexual abuse information obtained from an interviewer's questions. He also obtained an admission that the doctor did not know if emotionally disturbed children are more prone to allege sexual abuse than other children. All of these are legitimate points for attacking an expert's credibility on eross-examination and were consistent with the defense theory of the case.

[T 20] We will not evaluate the trial counsel's efforts from a hindsight perspective. We attempt to reconstruct the circumstances which existed during the trial counsel's challenged conduct and evaluate the performance from his perspective. Owen v. State, 902 P.2d 190, 199 (Wyo.1995). A close review of the record reveals that the trial attorney's cross-examinations were relevant and useful to the theory which the defense was pursuing. Although generally critical, Barkell does not make any concrete suggestions for cross-examination that should have been pursued, and therefore does not rebut the presumption that counsel's cross examination was effective.

Ineffective Cross-examination of the Victim

[T21] Barkell likewise criticizes the cross-examination of BV in a general way but fails to elucidate any failings that fall below the standard of a reasonably competent attorney, especially any that were likely to have changed the outcome of the trial. Becker, 1 12.

[122] Barkell's counsel, on cross-examination of BV, exposed some minor inconsistencies in BV's testimony and the potential motivation for her to fabricate the allegations, both of which points he brought to the attention of the jury during closing. Any additional inconsistencies developed by Bar-kell with the advantage of 20/20 hindsight would not have changed the outcome of the trial, The jury's rejection of the defense strategy does not necessarily demonstrate ineffective assistance of counsel but merely a defense strategy that the jury did not accept.

[123] Whether to cross-examine and the extent of cross-examination are strategic decisions. The risk of exeessive cross-examination is that the witness may reconcile inconsistencies, additional unfavorable testimony may be elicited, and ineffective efforts to attack credibility may in fact enhance the witness's testimony. Smith v. State, 959 P.2d 1198, 1198 (Wyo.1998). Speculation as to how the ceross-examination could have been conducted differently does not meet the Strickland test for ineffective assistance. Cutbirth, 751 P.2d at 1266.

Quality of Closing Argument

[T24] Barkell claims that trial counsel failed to exploit, in his closing argument, inconsistencies in the testimony of BV and her mother. A close review of the closing argument shows that counsel emphasized the defense theory of the case: lack of physical evidence, inconsistencies in the witness's testimony, and the victim's possible motivation for fabrication. The few additional inconsistencies identified by Barkell in the testimony of the 10-year old victim are trivial at best and unrelated to the elements of the sexual abuse allegations. Counsel's decision not to list for the jury every possible inconsistency in the testimony cannot be said to be ineffective assistance.

Conduct of Voir Dire

[125] Barkell criticizes trial counsel for his handling of a prospective juror who admitted on his questionnaire that he had been convicted of a felony. The trial judge determined that the conviction was a juvenile conviction. The prosecutor, defense counsel and the court each expressed some uncertainty whether the automatic exelusion of Wyo. Stat. Ann. § 1-11-102 applied to juvenile convictions. Barkell's counsel in addition stated that he would not object to the juror's retention.

[126] Because the juror in question was not seated, and because any prejudice would likely inure to the benefit of the defendant, we fail to see how counsel's opinion reflects incompetence. "Because voir dire questioning techniques are diverse, any alleged voir dire error must be egregious and obvious in order to fall below the line of competence." Arner v. State, 872 P.2d 100, 105 (WyO.1994).

Failure to Contest Victim's Testimonial Competency

[T27] Barkell alleges that trial counsel should have objected to the testimony of BV because she may have been incompetent to testify. Once again, Barkell shows us no evidence beyond speculation that such an objection would have been well founded.

The competency of child witnesses is determined by the application of a five-part test. The child must demonstrate:
(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (8) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.

Ryan v. State, 988 P.2d 46, 57-58 (Wyo.1999) (quoting English v. State, 982 P.2d 139, 145 (Wyo.1999)). A careful review of the record does not show any grounds to indicate that BV was not competent to testify. Again, Barkell must show some evidence, not mere speculation, to justify a competency hearing. Failure to present a baseless defense does not constitute the ineffective assistance of counsel. Allen v. State, 2002 WY 48, ¶ 36, 43 P.3d 551, 11 36 (Wyo.2002).

[128] Counsel obviously made the tactical decision to attempt to impeach BV rather than exclude her testimony. Tactical decisions do not become ineffective assistance of counsel when they do not succeed, or when hindsight shows the different decision may have been the better course. Dudley v. State, 951 P.2d 1176, 1181 (Wyo.1998).

Applicability of W.R.E. 608

[129] On appeal, Barkell criticizes his trial counsel for attempting to elicit from the defense witnesses specific examples of BV's untruthfulness. The prosecutor successfully objected to the testimony and counsel proceeded to elicit testimony of BV's reputation for untruthfulness, as permitted by W.R.E. 608.

[130] Barkell fails to explain how his counsel's testing the limits of the evidentiary rule or the prosecutor's alertness constitutes ineffective assistance. The questions were properly objected to and sustained. No prejudice to defendant can result where the evidence was properly excluded; attempting to obtain such evidence is not ineffective assistance.

Failure to Make Timely Motion for Acquittal

[131] At the close of the State's case, the trial court prompted counsel to move for judgment of acquittal, apparently before it occurred to counsel to do so. Counsel then made the motion, and it was denied. Likewise, at the close of the evidence, the trial court beat counsel to the punch and stated that any motion for judgment of acquittal was deemed to have been made and denied.

[T32] Barkell points to no professional standard that requires counsel to put his pro forma objection on the record before the trial court thinks of it first. His criticism in this regard is at best picayune. We have consistently held that we will not consider claims unsupported by cogent argument or pertinent authority. Madrid v. State, 910 P.2d 1340, 1347 (Wyo.1996).

[T83] Barkell also asserts cumulative error in the aggregation of all of the alleged errors. Because this Court finds that there was no error with respect to any one of the allegations, there cannot be cumulative error. Pearson v. State, 12 P.3d 686, 692 (Wyo.2000).

[134] In his second issue, Barkell claims that he was entitled to remand for an evidentiary hearing on his claims of ineffective assistance of counsel, citing Calene v. State, 846 P.2d 679 (Wyo.1993). The present case, however, is more similar to Griswold v. State, 994 P.2d 920, 980-31 (Wyo.1999). Appellant cannot rely on mere allegations and speculation for the purpose of obtaining a remand to develop a record on his claims of ineffective assistance. We previously denied Barkell's Motion for a Partial Remand and, in his appellate brief, he provides no additional facts or argument justifying a remand. Id.

CONCLUSION

[T35] A claim of ineffective assistance of counsel must be accompanied by specific facts in the record showing counsel's performance was deficient. Speculation and 20/20 hindsight do not meet this requirement. Reviewing the entire record under the cireum-stances as they existed at the time of the trial, we find that Barkell was provided with effective assistance of counsel and affirm.


source: Caselaw Access Project

author: LEHMAN, Chief Justice.

license: Public Domain

text:
    2002 WY 154
    AMOCO PRODUCTION COMPANY, Appellant (Defendant), v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF SWEETWATER, Appellee (Plaintiff).
    No. 01-141.
    Supreme Court of Wyoming.
    Oct. 16, 2002.

      Algirdas M. Liepas, of Algirdas M. Liepas P.C., Cheyenne, WY; and Frederick W. Bradley, Nicole Crighton, and Andre Bur-vant of Oreck, Bradley, Crighton, Adams & Chase, New Orleans, LA, Representing Appellant. Argument by Mr. Bradley.
    Naney D. Freudenthal and John C. McKinley of Davis & Cannon, Cheyenne, WY, Representing Appellee. Argument by Ms. Freudenthal.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   LEHMAN, Chief Justice.

[11] This is an appeal from the entry of summary judgment by the district court concerning the attempt by appellee Board of County Commissioners of the County of Sweetwater ("Sweetwater County") to collect the proportional share of ad valorem tax and interest owed by appellant Amoco Production Company ("Amoco") concerning its undisputed ownership interest in certain real property within Sweetwater County for 1980 through 1985. We affirm.

ISSUES

[12] Amoco sets forth the following summarized issues:

1. Did the trial court commit manifest error in failing to hold that the County's claim against Amoco in this suit was barred by principles of res judicata and judicial estoppel?
2. Did the trial court act improperly in holding that Amoco was now precluded from challenging the correctness of the alleged tax debt?
3. Did the trial court commit error in holding that UPRC (Union Pacific Resources Company) was Amoco's agent for purposes of the County's present tax claim?
4, Did the trial court err in granting summary judgment where its ruling was based on so many unalleged, unsubstantiated and incorrect assertions of fact?
5. Did the trial court properly grant summary judgment in favor of the County?
6. Should the trial court have awarded interest that accrued during that period?

Sweetwater County phrases the issues much more succinetly on appeal as:

1. Is Amoco Production Company (Amoco) liable to Sweetwater County for its proportional share of ad valorem tax and interest on increased mineral value determined by the Department of Revenue attributable to Amoco's undisputed ownership interest?
2. Does a genuine issue of material fact exist to preclude summary judgment for collecting the delinquent ad valorem taxes and interest from Amoco?

FACTS AND HISTORICAL BACKGROUND

[13] From 1980 through 1985, Union Pacific Resources Company or its predecessor, Champlin Petroleum Company (UPRC), was Amoco's unit operator for the Higgins Unit, the Brady Unit, the Bruff field and the Siberia Ridge field located within Sweetwater County (Properties). During this time frame, the mineral tax system in Wyoming required unit operators, through self reporting, to report for assessment all oil and gas produced and remit all ad valorem taxes due on such production for all owners. DOR Rules, ch. IX, § 4 (1980) and § 7 (1982). Thus, Amoco did not file any reports with the State and received no tax notices directly from the State or Sweetwater County for the Properties as such business was being transacted through the State or Sweetwater County and UPRC.

[14] In 1985, State regulations concerning the Wyoming mineral tax system were amended and, in part, allowed take-in-kind owners, like Amoco with respect to the Properties, to file their own reports with the State and directly pay related taxes. DOR Rules, ch. XXI, § 7(c). In addition, in 1989, the State of Wyoming, Department of Audit (DOA) was created to supervise the Wyoming mineral tax system. Wyo. Stat. Ann. § 9-2-2008. Upon its institution, the DOA began to perform oil and gas audits. Likewise, separate from these audits, other counties within Wyoming, including Sweetwater County, began to conduct their own audits primarily through contract arrangements. The contract auditor retained by Sweetwater County reviewed production reports for the Properties and found significant volumes of unreported production for the years 1980 through 1985. These findings were sent to the State of Wyoming, Department of Revenue (DOR) for review and assessment.

[15] As a result of the audits being conducted by the counties, UPRC filed a declaratory judgment action seeking to preclude or limit these county audits. The named counties in this lawsuit, including Sweetwater County, responded and filed a counterclaim against UPRC requesting judgment for the additional ad valorem tax amounts due for underreported and undervalued production uncovered by the various county audits. This litigation (UPRC litigation) resulted in a judgment, which, in part, upheld the counties' ability to hire tax auditors and conduct oil and gas audits. This court affirmed that part of the judgment entered in the UPRC litigation through issuance of its opinion in Union Pacific Resources Co. v. State, 839 P.2d 356 (Wyo.1992).

[16] DOR then issued the first additional assessment and a Notice of Valuation Change (NOVC) pertaining to the Higgins Unit to UPRC. Subsequently, this court issued its opinion in Wyoming State Tax Comm'n v. BHP Petroleum Co., Inc., 856 P.2d 428 (Wyo.1993), which held that ad valo-rem taxes could be assessed against a unit operator as the agent for all working interest owners. However, BHP Petroleum also held that the State and counties could not collect the related taxes owed from the other working interest owners by forcing such payment to be made from the involved unit operator. Instead, they were required to collect the owed tax amounts directly from each working interest owner. The issuance of this opinion was followed by DOR issuing the assessments and related NOVCs regarding the Brady Unit, the Bruff field and the Siberia Ridge field to UPRC.

[17] UPRC timely appealed the assessments for the Properties with the State of Wyoming, Board of Equalization (SBOE) and moved the district court to dismiss the counterclaims of the counties in the UPRC litigation contending that the counties had not joined all working interest owners as indispensable parties. On UPRC's motion to dismiss, the district court ruled that the counties were required to join all working interest owners or were required to restrict their claims for recovery to only those sums owed by UPRC. The counties chose the latter option; and, in 1994, Sweetwater County and UPRC settled the claims concerning the Properties against UPRC and all its working interest owners, explicitly except Amoco. This settlement specified Sweetwater County retained the right to pursue Amoco for its share of those involved taxes and interests owed regarding the Properties. Given this settlement, the related appeals before the SBOE and the UPRC litigation were dismissed.

[18] Amoco did not timely appeal or join UPRC in its appeal concerning the NOVCs issued to Sweetwater County concerning the Properties for the years of 1980 through 1985 before the SBOE. Further, although Amoco was aware of the UPRC litigation, it did not participate in that litigation or join in the settlement reached as mentioned above.

[T9] Beginning in 1995, Sweetwater County approached Amoco with respect to the tax and interest owed by Amoco for the years of 1980 through 1985 concerning the Properties. This effort continued until 1999 with no success. After an updated demand was sent to Amoco to pay the amounts owed to which Amoco failed to respond, this action was filed by Sweetwater County against Amoco. The complaint of Sweetwater County alleged Amoco owed unpaid ad valorem taxes and interest on Amoco's proportionate share of mineral value certified by DOR for oil and gas produced from the Properties from 1980 through 1985. While Amoco answered this complaint and disputed that it owed these taxes, Amoco did admit its percentage ownership in each of the Properties. Amoco then filed a motion to dismiss based on jurisdictional issues. Sweetwater County also filed a motion for summary judgment. Ultimately, the motion to dismiss was denied by the district court. However, the district court granted Sweetwater County's motion for summary judgment, and this appeal followed.

STANDARD OF REVIEW

[T10] Our standard of review is well established. We recently reiterated this standard of review in the case of Bevan v. Fix, 2002 WY 43, ¶ 13, 42 P.3d 1013, ¶ 18 (Wyo.2002):

Summary judgment is appropriate if the record, viewed in the light most favorable to the non-moving party, reveals that no genuine issues of material fact exist and the prevailing party is entitled to judgment as a matter of law. Worley v. Wyoming Bottling Co., Inc., 1 P.3d 615, 620 (Wyo.2000); Terry v. Pioneer Press, Inc., 947 P.2d 273, 275 (Wyo.1997); Davis v. Wyoming Medical Center, Inc., 984 P.2d 1246, 1250 (Wyo.1997), W.R.C.P. 56(c). A fact is material if it establishes or refutes an essential element of a claim or defense. Tidwell v. HOM, Inc., 896 P.2d 1322, 1324 (Wyo.1995). In evaluating summary judgment, we apply the same standards as the trial court, without affording any deference to the trial court's decisions on issues of law. Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216 (Wyo.1994).

We also recognized in Bevan v. Fix, at ¶26 (citing In re HC, 983 P.2d 1205, 1209 (Wyo.1999) and Ahearn v. Anderson-Bishop Partnership, 946 P.2d 417, 422 (Wyo.1997)), we may uphold the grant of summary judgment upon any proper legal ground finding support in the record.

DISCUSSION

Res Judicata/Judicial Estoppel

[T11] Initially, Amoco argues the district court erred in failing to hold Sweetwater County's claim against Amoco was barred by the principles of res judicata and judicial estoppel. In essence, Amoco contends Sweetwater County was estopped from bringing this action against Amoco because the County's counterclaim in the UPRC litigation was dismissed with prejudice upon settlement. Thereby, Amoco asserts Sweet-water County is precluded from relitigating the issues that could have been litigated previously in the UPRC litigation.

[112] In Eklund v. PRI Environmental, Inc., 2001 WY 55, 115-20, 25 P.3d 511, 1115-20 (Wyo.2001), we extensively recognized that res judicata and collateral estoppel are related but distinct concepts.

Res judicata bars the relitigation of previously litigated claims or causes of action. Slavens v. Board of County Commissioners, 854 P.2d 683, 686 (Wyo.1993). Four factors are examined to determine whether the doctrine of res judicata applies: (1) identity in parties; (2) identity in subject matter; (8) the issues are the same and relate to the subject matter; and (4) the capacities of the persons are identical in reference to both the subject matter and the issues between them. Id. Collateral estoppel bars relitigation of previously litigated issues and involves an analysis of four similar factors: (1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Id.
The proper doctrine for our consideration is collateral estoppel. As noted, res judicata applies to claims or causes of action. The prior adjudication involved a claim by Ash against PRI, while this action concerns a claim by Eklund against PRI. While the two proceedings arose out of the same incident and involve the same defendant, they are clearly separate claims arising out of injuries personal to each plaintiff. The question Eklund has raised relates to the issue of whether Tebben was acting within the seope of his employment at the time of his alleged negligent act. Eklund posits that consent decrees, settlements, and voluntary dismissals constitute a "judgment on the merits." Ek-lund argues that an admission by PRI that Tebben was acting within the scope of his employment is a necessary predicate of the settlement with Ash and, accordingly, PRI is precluded from contesting the issue in this litigation.
We have considered consent judgments and dismissals with prejudice to be the equivalent of a judgment on the merits for purposes of res judicata. In CLS v. CLJ, 693 P.2d 774 (Wyo.1985), the appellant failed to appear at trial, and his suit to establish paternity was dismissed with prejudice pursuant to W.R.C.P. 41(b). A second suit raising the same claim was subsequently filed. We held that the appellant was barred by the doctrine of res judicata from bringing the same claim because an involuntary dismissal under Rule 41(b) operated as an adjudication of the merits. 693 P.2d at 777.
In Day v. Davidson, 951 P.2d 378 (Wyo.1997), Day had filed an action based on vicarious liability against Pamida, Inc. based on the negligent acts of one of its employees. Day accepted an offer of judgment from Pamida and then subsequently filed an action against the employee based on the negligent act underlying the viearious liability claim. We held that Day could not bring a subsequent action against the employee based on the fact that, as a vicarious liability situation, the employee was entitled to be credited with the amount of the judgment entered against his employer leaving Day with nothing to recover from the employee. 951 P.2d at 383. While not directly implicating the doctrine of res judicata, Day, like CLS, concerned the same claim brought by the same plaintiff.
The application of res judicata to those situations where a plaintiff attempts to bring the same claim in a subsequent action against the same or different defendants has a logical basis: It encourages resolution of the plaintiff's claims in a single action, and it forces parties to abide by their agreements. The other cases cited by Eklund in his brief also concern the application of res judicata to consent judgments and settlements. See, e.g., Jefferson v. Greater Anchorage Area Borough, 451 P.2d 730 (Alaska 1969); Clark v. Haas Group, Inc., 953 F.2d 1235 (10th Cir.1992); and In re Vern O. Laing, 31 F.3d 1050 (10th Cir.1994). We are not, however, dealing with res judicata in this case, but rather, with collateral estoppel.
We have never addressed the effect of collateral estoppel on settlements or consent judgments. Other authorities have set forth the rule as follows:
Issue preclusion does not attach unless it is clearly shown that the parties intended that the issue be foreclosed in other litigation.
... In most cirenmstances, it is recognized that consent agreements ordinarily are intended to preclude any further litigation on the claim presented but are not intended to preclude further litigation on any of the issues presented. Thus consent judgments ordinarily support claim preclusion but not issue preclusion.
18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 4448, at 382-85 (1981) (emphasis added). See also, Linder v. Missoula County, 251 Mont. 292, 824 P.2d 1004, 1006-07 (1992); and Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380, 385 (N.D.1992). The logic behind not applying collateral estoppel to settlements and consent judgments absent an expressed intention of the parties to be bound in further proceedings is quite obvious: Application of the doctrine absent an intent to be bound in subsequent proceedings would act as a deterrent to voluntary settlements. If, by settling one lawsuit, a party forsakes the right to challenge all issues at stake in any future litigation, then the incentive to settle short of trial is reduced.

(Emphasis added.)

[118] Application of the four factors identified above demonstrates that the UPRC litigation did not render Sweetwater County's ability to collect the taxes and interest owed by Amoco concerning the Properties as sought in this litigation res judicata. As admitted by Amoco, Amoco was not a party in the UPRC litigation. Moreover, although Amoco points out that the district court ruled in the UPRC litigation that the counties needed to join the working interests owners, which included Amoco, as indispensable parties if it sought to collect those tax monies owed by these entities, this was not the only option afforded to the counties. In addition, the district court in the UPRC litigation indicated the counties could seek to collect those taxes owed by UPRC without any joinder of additional parties. Specifically, the district court in the UPRC litigation ordered "[the Counties are required to join all working interest and mineral interest owners in this action, or alternatively are required to restrict their claims for recovery in this action, to those sums allegedly owned [sic] by UPRC." The counties, including Sweetwater County, merely chose the latter option.

[114] While an argument exists that the subject matter involved is the same in the UPRC litigation and this action as it concerns Sweetwater County, namely the collection of taxes and interest owed with respect to the Properties, it is clear that distinctly separate issues exist as they relate to this subject matter as between Amoco and Sweet-water County. As stated immediately above, given the ruling of the district court in the UPRC litigation, Sweetwater County along with the other counties involved, chose to proceed against UPRC as opposed to the other involved working interest owners. Therefore, the claim resolved upon settlement of the UPRC litigation was limited to the collection of taxes and interest from UPRC and ultimately those working interest owners who elected to participate in the settlement exclusive of Amoco.

[115] The language of the settlement reached in the UPRC litigation is also very telling. That settlement by its express terms excludes Amoco and specifically reserves Sweetwater County's ability to pursue Amoco for taxes and interest owed with respect to the Properties. The Settlement Agreement entered into states:

The parties agree that the payment of the above sum is in settlement of all claims Sweetwater County may have against UPRC and all its Sweetwater County interest owners, except Amoco, for unpaid gross production (ad valorem) taxes, interest and penalties on oil and gas production occurring during years 1979 through 1988. This agreement shall not be construed in any way to limit Sweetwater County's right to pursue Amoco for Amoco's share of gross production (ad valorem) taxes and interest due Sweetwater County on Amoco's share of production from UPRC operated properties.

(Emphasis added.) For those same reasons cited above, we also cannot conclude that the capacities of Sweetwater County and Amoco are similar in the respective litigations regarding both the subject matter and the issues between them. As already recognized, Amoco was not a party to the UPRC litigation and the specific issues in the respective matters are different.

[T16]) Likewise, with respect to the application of collateral estoppel, there is absolutely no evidence that Sweetwater County upon settlement of the UPRC litigation intended to be foreclosed from the collection of taxes and related interest from Amoco regarding the Properties in any subsequent proceeding. In fact, the very contrary is established within the express wording of the settlement agreement entered into in the UPRC litigation. Additionally, as stated previously, the issue decided in the UPRC adjudication was not identical with the issue now asserted against Amoco by Sweetwater County, and Sweetwater County did not litigate in the prior UPRC litigation the issue now asserted against Amoco.

[117] In Cross v. Berg Lumber Co., 7 P.3d 922, 930 (Wyo.2000) (citing Allen v. Allen, 550 P.2d 1137, 1142 (Wyo.1976)), we stated that judicial estoppel is sometimes referred to as a doctrine which estops a party to play fast and loose with the courts or to trifle with judicial proceedings. It is an expression of the maxim that one cannot blow hot and cold in the same breath,. A party will just not be allowed to maintain inconsistent positions in judicial proceedings. Further, we enunciated that judicial estoppel requires that "where a man is successful in the position taken in the first proceeding, then that position rises to the dignity of conclusiveness." Cross, at 930 (citing Erhart v. Flint Engineering & Const., 939 P.2d 718, 724 (Wyo.1997); Hatten Realty Co. v. Baylies, 42 Wyo. 69, 290 P. 561, 566 (1930).

[118] In this instance, no contrary position has been taken by Sweetwater County. Sweetwater County simply has sought through both respective litigations to obtain the payment of taxes and interest owed by all parties concerning the Properties Again, the evidence presented before us establishes that Sweetwater County intended not to be foreclosed upon settlement of the UPRC litigation from the collection of taxes and related interest from Amoco. In addition, after the settlement agreement had been executed and the district court entered its dismissal in the UPRC litigation, the State, Sweetwater County, and UPRC continued to supply Amoco with audit information that Amoco had requested in the furtherance of Sweet-water County's consistent demand for payment of taxes and interest from Amoco. Finally, at the risk of being redundant, we must again point out that Amoco was not a party to the UPRC litigation. Therefore, it was impossible for Amoco to have been successful in the UPRC litigation concerning the position it now asserts and warrant the conclusive disposition of this matter.

Foreclosure From Challenging The Claimed Debt

[T19] Amoco asserts the district court erred when ruling Amoco was foreclosed from challenging the amounts set forth in the NOVCs sent to UPRC for the applicable time frame regarding the Properties. In support of this argument, Amoco contends 1) there was no formal valuation of Amoco's property by the DOR; 2) there was no certification of the value of Amoco's property made by DOR to Sweetwater County; 3) Sweetwater County did not assess Amoco's property by entering the value of that property on its rolls; 4) no tax bill was ever issued to Amoco by Sweetwater County; 5) Amoco was never advised of its administrative rights to contest or appeal the tax; and 6) there has never been an administrative adjudication of whether Amoco owes any taxes.

[120] Initially, it is important to recognize the State regulations, applicable during the time frame involved, mandated unit operators were responsible for filing sworn production returns for the total amounts produced and payment of all the related taxes owed. DOR Rules at ch. IX, § 4 (1980) or § 7 (1982) for the years 1980 through 1985 provided:

The party filing the sworn production return shall be responsible for the payment of the taxes on such production. The actual operator of an oil or gas lease or unit shall report for assessment 100% of the oil or gas produced from the lease or unit.... A return from a producer will be unacceptable if it reports less than 100% of a lease's or unit's production for the year, whether the working interest receive their interest in money or kind.

We further recognized in Wyoming State Tax Comm'n v. BHP Petroleum Co., Inc., 856 P.2d 428 (Wyo.1993) that the practice of valuing all production for assessment through the unit operator and not each working interest owner by DOR was well understood and had been historically followed by DOR. Indeed, in that case this court rejected the assertion that the State of Wyoming and counties within Wyoming would be required to separately assess and issue tax bills to each of the undisclosed working interest owners who did not report their production for separate assessment.

The State contends that not accepting its interpretation of assignee, so as to allow collecting of ad valorem taxes from the unit operator, will make it difficult to collect these taxes. It is said that difficulty will result because the unit operator is responsible for reporting the volume of production and if then each working interest owner is to report their individual volume and the State must assess them pro rata, it will be an administrative nightmare. This might be possible if our holding were different. We limit the County and State's ability to collect taxes through sale of property, not their ability to assess taxes. We think the hypothetical difficulty is not borne out. Appellees point out in their brief:
Appellees do not seek to impose an administrative nightmare on the taxing authorities. The operator will continue to provide assessment data. Tax notices may be sent to the operator, as in the past. The operator will continue to discharge its contractual duty to pay taxes on behalf of other owners (subject, of course, to adequate provisions for reimbursement by them). The operator and other owners who bave paid their taxes should not, however, have their property placed in jeopardy because of the failure of a delinquent owner to pay the taxes on production owned and sold by that owner.

Id., at 484-85 (emphasis added).

[T21] As pointed out by Sweetwater County, as a practical matter, the unit operator is the only entity during the applicable time period that could be sent assessment notices from DOR. Likewise, during this time frame, Sweetwater County received assessment notices from DOR that solely identified the unit operator. Hence, Sweetwater County would have also found it impossible to split up the tax owed and separately notify each individual working interest owner.

[122] When it was discovered, through the audits conducted with respect to the Properties, that UPRC had failed to aceu-rately report the volume and value of all production from the Properties, DOR revalued that oil and gas production and sent increased assessments to UPRC and NOVCs to Sweetwater County as required. In turn, Sweetwater County issued NOVCs to UPRC. As Sweetwater County further points out, the revaluation and reassessment by DOR of 100% of production from the Properties included Amoco's ownership interest as a component part of the increased value, as did UPRC's initial erroneous reports include Amoco's ownership interest as a component of the initial value reported. Finally, the interest of Amoco in each of the Properties involved is established through the admission of Amoco made through its answer to the complaint of Sweetwater County in this case.

[123] All assessments sent by DOR to UPRC concerning the Properties contained detailed notices that an administrative conference with DOR was allowed, as well as the right to appeal the assessments to the SBOE. These assessments also advised that the assessments would be certified to Sweet-water County for assessment and billing by the county assessor and treasurer when the time frame for appeal had lapsed or when any related appeal was finally resolved.

[124] Wyoming statutory law and DOR rules for the applicable years clearly provided that an appeal notice must be received by the SBOE within 80 days of the assessment to be deemed timely. Wyo. Stat. Ann. § 39-2-201(d). It is also well recognized that there may be no administrative adjudication of tax liability unless a timely appeal is filed with the SBOE and if no timely appeal is made the tax assessment becomes final. Antelope Valley Imp. & Serv. Dist. v. State Bd. of Equalization, 992 P.2d 563, 567 (Wyo.1999). Therefore, Amoco's assertion that there must be an administrative adjudication that it owes any taxes for the additional assessment made by Sweetwater County on the Properties to be deemed valid lacks merit.

[125] Amoco had an ability to seek a conference with DOR or appeal the additional assessments made against the Properties but failed to do so. In fact, UPRC did appeal these assessments before the SBOE with Amoco failing to join in this effort. Therefore, Amoco waived any right to contest the assessments made against the Properties, and these assessments became final. In accord, Amax Coal West, Inc. v. State Bd. of Equalization, 896 P.2d 1329, 1333 (Wyo.1995).

[126] In a related argument, Amoco also attempts to argue that UPRC was not its agent and, therefore, the fact that DOR and Sweetwater County gave notice of the additional tax owed to UPRC cannot be attributed as good and proper notice to Amoco. As recited previously, during the applicable time frame it was well established that unit operators were responsible for filing sworn production returns for all production and payment of 100% of the related taxes owed and that ad valorem taxes were assessed solely through the unit operator. Review of the involved operating agreements executed between Amoco and UPRC further establishes a contractual agreement between these entities which confirms this process.

[127] Specifically, review of the operating agreements executed for the Higgins and Brady units disclose the following:

ARTICLE 21
TAXES
21.1 Payment. Any and all ad valorem and severance taxes payable upon the Committed Working Interests (and upon Lease Burdens which are not payable by the owners thereof) or upon materials, equipment or other property acquired and held by Unit Operator hereunder, and any and all taxes (other than income taxes) . upon or measured by Unitized Substances produced from the Unit Area which are not payable by the purchaser or purchasers thereof or by the owner of Lease Burdens, shall be paid by Unit Operator as and when due and payable.
214 Notices and Returns. Each Party shall promptly furnish Unit Operator with copies of notices, assessments, levies or tax statements received by it pertaining to the taxes to be paid by Unit Operator. Unit operator shall make such returns, reports and statements as may be required by law in connection with any taxes above provided to be paid by it and shall furnish copies to the parties upon request. It shall notify the Parties of any tax which it does not propose to pay before such tax becomes delinquent.

(Emphasis added.) In addition, the operating agreements between Amoco and UPRC for the Bruff and Siberia Ridge fields state:

12. TAXES:
Any and all ad valorem taxes payable upon materials, equipment and other property acquired and held by Operator hereunder, and any and all taxes (other than income taxes) upon or measured by the oil or gas produced from the Subject Lands which are not payable by the purchaser thereof or by the owners of the royalty, overriding royalty, production payment or similar interests, shall be rendered and paid by the Operator as and when due and payable. Taxes upon materials, equipment and other property acquired and held by Operator shall be charged to and borne by the parties owning the same in proportion to their respective interests therein. Taxes upon or measured by production shall be charged to and borne by the parties in proportion to their respective interests in production upon which such taxes are based. Reimbursements from owners of royalty, overriding royalty, production payment or similar interests, on account of taxes paid for such owners, shall be paid or credited to the parties in the same proportions as such taxes were charged to such parties.

(Emphasis added.)

[128] The plain and unambiguous language used within the operating agreements involved clearly designates UPRC, the unit operator, as the sole responsible party for repor’bing purposes and for the complete payment of those taxes due and that UPRC was to act as the agent of Amoco for such purposes. The parties obviously intended UPRC to have extensive tax reporting and remittance duties with respect to Amoco and its working interest in the Properties. It reasonably follows that the parties intended that UPRC had the authority to receive tax assessments concerning the Properties, particularly as they may involve Amoco, so as to enable UPRC to accomplish its express reporting and payment of tax responsibilities. To conclude otherwise would be absurd.

[T29] Further, although Amoco argues that the first sentence of article 21, subsection 214 of the Higgins and Brady units operating agreements quoted above provides that individual working interest owners were to receive notices, assessments and tax statements, we do not agree. That sentence merely states that if Amoco, as a working interest owner, was to receive notices, assessments and tax statements, it had an affirmative duty to pass them on to UPRC. If notices, assessments, and tax statements were received by UPRC, as the unit operator, as was the case here, this provision simply did not ever become operable. Indeed, this sentence in the operating agreements goes further to clarify that UPRC was to be afforded notice of any tax assessments concerning the Properties received by the working interest owners so that UPRC could meet its expressed contractual reporting and tax payment obligations. Given the administrative regulations in effect during the applicable time frame, the well designated and understood historical practices during that period, and the intent of UPRC and Amoco expressed within each of the operating agreements involved concerning ad valorem tax issues, we hold that UPRC acted as the implied agent, if not the express agent, of Amoeo and that notice to UPRC by DOR and Sweetwater County was sufficient notice to Amoco as required by Wyoming law of the additional tax assessed and those administrative rights to contest or appeal the additional tax assessed in this instance.

[180] A taxpayer as a matter of fundamental due process has the right to receive assessment notices that describe in plain terms the basis for the assessment. Union Pacific R.R. Co. v. Donnellan, 2 Wyo. 4748 (1882). This fundamental right was afforded Amoco through proper and adequate notice being given by both DOR and Sweetwater County through UPRC.

Assertions of Fact

[131] Amoco contends that the district court erred in granting summary judgment because that ruling was based on many unal-leged, unsubstantiated, and incorrect assertions of fact and that the district court generally erred in granting summary judgment in favor of Sweetwater County. In making these arguments, Amoco points primarily to statements made by 'the district court in various decision letters issued in this case. However, upon review of the actual order entered by the district court granting Sweet-water County summary judgment, we do not find that the district court erred in granting Sweetwater County such relief.

[182] The action commenced by Sweet-water County against Amoco is, in essence, a collection claim. Simply stated, Amoco is required to pay all taxes on the gross product attributable to its working or non-working interest in the Properties Wyo. Stat. Ann. § 89-3-101(d). Amoco's ownership interest in the Properties has unequivocally been admitted by Amoco. Therefore, Amoco's undisputed ownership interest establishes the percentage of additional taxes that Amoco owes on the unreported production on the Properties for the years 1980 through 1985 found by the contract auditor retained by Sweetwater County.

[183] Amoco's responsibility to remit taxes in proportion to its ownership interest in the Properties matches its agreement with UPRC for apportioning tax Hability among the Properties' owners. Indeed, the language from the operating agreements entered into between Amoco and UPRC states that taxes are to be charged to and borne by the parties in proportion to their respective interests in the production upon which these taxes are based. Further, while Amoco asserts that a dispute exists between Amoco and UPRC about the apportionment of the additional tax liability imposed, this dispute is again a private matter to be resolved between Amoco and UPRC and does not prohibit Sweetwater County from collection of the tax owed. Finally, for those reasons set forth above, Amoco waived any ability to contest the additional taxes assessed because it failed to timely contest the assessments made against the Properties, and these assessments are now final.

[134] Therefore, while we do not agree with some of the statements made by the district court in its various decision letters, as such statements appear to be inappropriate given the record before us, we conclude that Sweetwater County met its burden of showing that no material question of fact existed in this case and it was entitled to summary judgment as a matter of law. As previously established, we may uphold the grant of summary judgment upon any proper legal ground finding support in the record. Bevan v. Fix, at ¶ 26.

Interest Owed

[185] In its final issue, Amoco argues the district court erred by granting Sweetwater County accrued interest. Generally speaking, Amoco seems to assert the district court abused its discretion in awarding Sweetwater County interest regarding the past due ad valorem taxes owed by Amoco under the cireumstances. While Amoco acknowledges the rule that interest is to be imposed on tax debts, it contends this court has, through its previous holdings in Amoco Production Co. v. State Board of Equalization, 12 P.3d 668 (Wyo.2000) and Kunard v. Enron Oil & Gas Co., 869 P.2d 132 (Wyo.1994), recognized that equity should be considered in imposing such interest and the imposition of interest should not be ordered where delays were caused by the taxing entity's inefficient and ineffective audit of the taxpayer's production. Accordingly, Amoco argues if a tax debt is owed, any delay in collecting this debt was attributable to the tardiness of Sweetwater County and interest should not be awarded on the tax amount owed by Amoco.

[136] Wyo. Stat. Ann. § 39-3-101 (Mi-chie 1997) provides:

(a) Taxes provided by this act are due and payable at the office of the county treasurer of the county in which the taxes are levied. Fifty percent (50%) of the taxes are due on and after September 1 and payable on and after November 10 in each year and the remaining fifty percent (50%) of the taxes are due on and after March 1 and payable on and after May 10 of the succeeding calendar year except as hereafter provided. If the entire tax is paid on or before December 31, no interest or penalty is chargeable.
(b) The balance of any tax not paid as provided by subsection (a) of this section is delinquent after the day on which it is payable and shall bear interest at eighteen percent (18%) per annum until paid or collected.

(Emphasis added.) The language used within this statute is plain and unambiguous and clearly requires that if a tax is not paid by those dates specified, the tax must be deemed delinquent and interest mandatorily charged. We do not believe that the legislature could have been any clearer in expressing such an intent.

[137] This court has also recognized that the purpose of interest is to serve as compensation for the use of money, or as a penalty, or it may constitute a part of the tax. Assessing interest only from the date of notification and demand is contrary to this purpose. Kunard, 869 P.2d at 135; Monecrief v. State Bd. of Equalization, 856 P.2d 440, 445 (Wyo.1993). This court also recently enunciated in State Dep't of Rev. v. Amoco Production Co., 7 P.3d 35, 40 (Wyo.2000):

In Kunard, 869 P.2d at 134, we recognized that when a taxpayer excludes required elements from its reported production, and the exelusion causes an underpayment, the tax is delinquent upon the taxpayer's failure to pay on the date due, not at the later date when the taxpayer is presented with notice and demand of the deficiency.

[138] Interest is a crucial component of tax delinquency required by law and is intended to partially compensate the taxing authority which has been deprived of the use of the unpaid and overdue tax monies over the delinquency period. Additionally, we believe that to hold otherwise would simply foster underreporting by the taxpayer in hopes that the taxpayer could illegally avoid the payment of tax in total, at least until a subsequent audit uncovered the intentional fallacy and, at minimum, would allow the taxpayer to use such tax monies without the payment of interest thereby rendering the taxpayer's fraud to his sole benefit and the detriment to the taxing authority and the public whom it represents. Given the fact that the Wyoming taxing statutory scheme relies upon reporting by taxpayers, the existence of the assessment of statutory interest provides an incentive to assure the taxpayer truly and accurately submits the required reports. The imposition of statutory interest will also ensure that taxpayers who improperly file inaccurate reports or attempt to delay the taxing process are not unjustly rewarded. In accord Kunard, at 185.

[139] Although Amoco urges this court to apply equity and abate the running of interest and argues that it is Sweetwater County's fault for not having pursued Amoco sooner for the taxes owed, we do not agree with these assertions. In particular, Amoco argues that the case of Kunard, at 136, and the reasoning used therein requires the abatement of interest in this instance. However, we find that case distinguishable from this case. In Kunard, the taxpayer, Enron, received relief on the running of interest solely because the county had in its possession a credit balance on account. Therefore, because of the credit balance that existed, there never existed an amount of unpaid tax which would initiate the running of interest as called for under Wyo.Stat. Ann. § 89-3-101. As stated in Kunard, at 136:

Furthermore, none of the purposes to be served by interest charges are served by assessing interest against a taxpayer who bas maintained a credit balance for the taxable period. The taxpayer does not benefit from the free use of the money, and clearly no penalty is necessary to discourage future reporting discrepancies which result in a credit balance.
Finally, this court has held that "[elqui-table considerations will not be entirely disregarded even in tax cases." Morrison-Knudson Co. v. State Bd. of Equalization, 58 Wyo. 500, 135 P.2d 927, 939 (1943). Because Enron's overpayments exceeded its underpayments for each of the tax years in question, the County was never deprived use of the underpayment dollars. Thus, it would be inequitable to allow the County to charge interest on the underpayment, particularly since the County has had free use of the overpayment dollars.

In accord State Dep't of Rev. v. Amoco Production Co., at 40 (holding that Amoco's deficient tax payment over several given years was not an adequate case for application of the reasoning used in Kunard ).

[140] In this case, Amoco chose not to consent to the audit findings made by Sweet-water County and failed to timely appeal such findings as allowed. Amoco then failed to make any tax payment to Sweetwater County with respect to the additional assessment made. While Amoco contends that it was unable to verify the amount of tax owed because it was not able to obtain the necessary information from UPRC and Sweetwa-ter County, we do not find this to be a valid excuse for non-payment of the tax assessed. Any dispute between Amoco and UPRC is again a private matter, which is not before this court and is frankly not the concern of Sweetwater County. In addition, any dispute concerning the assessment of Sweetwa-ter County for the Properties during the applicable time frame should have been addressed by Amoco through utilization of the proper appellate procedures provided.

{T41]l Amoco's argument that Sweetwater County's delay in prosecuting the collection of the tax owed by Amoco is to blame is also specious. No authority exists for the abatement of interest on the proposition that the taxing authority must sue for collection of delinquent taxes. To the contrary, it is well established in Wyoming that the authority to create a taxpayer belongs to the legislature; and, once an entity is legally liable as a taxpayer, that entity cannot shift its tax liability absent a specific statute creating a tax forgiveness exemption. BHP Petroleum, 856 P.2d at 484 and Union Pacific Resources, 839 P.2d at 372. See also Chevron U.S.A., Inc. v. State, 918 P.2d 980, 984 (Wyo.1996). Wyo. Stat. Ann. § 39-3-101(e) also makes it clear that "[flailure to send notice, or to demand payment of taxes, does not invalidate any taxes due."

[142] Established Wyoming case law also provides that there may be no administrative adjudication unless a timely appeal is filed with the SBOE; and if no timely appeal is filed with the SBOE, the assessment becomes final,. Antelope Valley Imp. v. State Bd. of Equalization, 992 P.2d at 567. Therefore, Sweetwater County's asserted delay in prosecution of the tax owed by Amoco in this case has absolutely no effect on the validity of the tax assessed against Amoco. The advisable approach for a taxpayer who disputes a tax assessment is to timely make payment of the tax assessed thereby abating the accrual of interest. Upon timely payment of the tax, there never will exist an amount of unpaid tax which initiates the running of interest under Wyo. Stat. Ann. § 39-3-101. Of course, the taxpayer must also make sure to timely dispute the assessed tax utilizing the proper procedure available pursuant to established Wyoming law.

CONCLUSION

[T 43] We affirm the action of the district court in granting summary judgment in favor of Sweetwater County and against Amoco in this action.

      . Amoco took advantage of these changes and began to both report production and pay its own taxes in 1986.

      . DOR is required to assess mineral production, not the respective county. See Wyo. Stat. Ann. §

      . Amoco's admitted ownership in the Properties is a follows:
      Field/Unit API# or Tax Group Amoco's interest ownership
      Higgins 037-GO051/52 31.3943%

        037-20927 31.9396%
      037-20712 31.9500%
      037-21535 36.1335%
      037-20832 22.1653%
      037-GO0059 Brady 17.500%
      037-GO0058 17.2067%
      037-GO061 17.500%
      037-GO062 33.898%
      037-20551 37.500%
      037-20642 36.3570%
      Bruff 037-21479 37.50%
      Siberia Ridge 037-21690 8.97%

      . Whether or not UPRC provided or failed to provide Amoco with proper notification of the additional tax assessed by Sweetwater County is not a present issue before this court.

      . See fn. 3.


author: VOIGT, Justice.

text:
    2002 WY 156
    Velma REILLY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-149.
    Supreme Court of Wyoming.
    Oct. 17, 2002.

      Mary B. Guthrie, Cheyenne, Wyoming, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Cheyenne, Wyoming, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   VOIGT, Justice.

[11] In December 2000, a jury found appellant, Velma Reilly, guilty of conspiracy to commit robbery in violation of Wyo. Stat. Ann. §§ 6-1-803(a) and 6-2-401(a) (Lexis-Nexis 2001), kidnapping in violation of Wyo. Stat. Ann. § 6-2-201(d) (LexisNexis 2001), aggravated robbery in violation of Wyo. Stat. Ann. § 6-2-401(c) (LexisNexis 2001), and attempted second-degree murder in violation of Wyo. Stat. Ann. §§ 6-1-801(a) and 6-2-104 (LexisNexis 2001). The district court sentenced appellant to prison terms of three to six years for conspiracy to commit robbery, twenty to fifty years for kidnapping, and ten to fifteen years for aggravated robbery, to run concurrently, and thirty to fifty years for attempted second-degree murder, to run consecutively to the other three sentences. Appellant appeals her conspiracy to commit robbery conviction, arguing that the evidence was insufficient to establish a conspiracy and that the district court failed properly to instruct the jury regarding the elements of that offense. She appeals her attempted see-ond-degree murder conviction, asserting that attempted second-degree murder is a "logical impossibility." Appellant does not appeal her aggravated robbery or kidnapping convictions. We affirm appellant's attempted second-degree murder conviction, but reverse and remand for a new trial on the conspiracy to commit robbery charge.

ISSUES

[12] The appellant states the issues as follows:

[I.] Whether [appellant] was properly convicted of attempted second degree murder.
[II.] Whether failure to set out the elements of conspiracy to commit robbery in an instruction invalidates [appellant]'s conviction.
[IIL] Whether sufficient evidence was introduced at trial to prove beyond a reasonable doubt all of the elements of the crime of conspiracy to commit robbery.

The State of Wyoming, as appellee, phrases the issues in substantially the same manner.

FACTS

[T3] Appellant and her victim were acquaintances who lived in the same trailer park, had limited social contact, and at one point were co-workers. On July 10, 2000, the victim told appellant she was going to a local grocery store to purchase groceries and a $272.00 money order to satisfy the income tax balance on some radio contest winnings. According to the victim, appellant called and stated "come and pick me up, and I'll go with you." At about 11:30 p.m. that evening, the victim took her vehicle to appellant's residence. Appellant asked if her "friend," a thirteen-year-old male, could accompany them, to which the victim replied in the affirmative. The victim testified that she had two separate envelopes in her purse, one containing $49.00 for groceries and the other $272.00 for the money order.

[14] Upon reaching the grocery store parking lot, appellant grabbed the victim by the neck, pulled her to the center of the vehicle, pinned her arms, and ordered the male juvenile to "[glet in the front and drive. ..." Appellant pulled a gun, pointed it at the victim's head, and told the victim to cooperate "because I can shoot you." At some point on rural Horse Creek Road, appellant directed the male juvenile to pull over, and told the victim to give appellant the "money." The victim gave appellant the envelope containing $49.00, and appellant angrily stated "Well, is this it?" The victim replied that it was, and appellant pulled the victim from the vehicle and told her to "lay face down on the ground." Appellant shot at the victim several times, the victim recalling "one bullet just zing[led] right past my head." A detective testified that appellant admitted to aiming the gun at the victim's head and firing it four or five times. According to the victim, appellant then stated "Damn you, Randy [appellant's boyfriend at the time]. You put blanks in this, and ... TH kill you, too." Appellant yelled at the male juvenile to "get a tire iron," with which appellant repeatedly beat the victim on the back of the head.

[15] Appellant and the male juvenile left in the victim's vehicle, leaving the victim alongside the road. A passerby eventually found the victim and transported her to the emergency room. The victim suffered multiple injuries consistent with blunt force trauma, including internal bleeding around her brain and ear, sealp, ear, face, hand and arm lacerations, bruises, and fractured fingers and hands. Appellant was ultimately charged with conspiracy to commit robbery, kidnapping, aggravated robbery, and attempted first-degree murder.

DISCUSSION

AttEMeTED MurpERr

[16] Appellant contends that the elements of an attempt and second-degree murder are mutually exclusive and/or logically impossible, because an attempt requires that one act with a specific intent, while second-degree murder only requires that one act with a general intent. In support of this argument, appellant cites to cases from other Jurisdictions, among them an attempted see-ond-degree murder case in which the North Carolina Supreme Court concluded that, it is "logically impossible" for "a person to specifically intend to commit a form of murder which does not have, as an element, specific intent to kill" and that "attempted murder" is therefore "logically possible only where specific intent to kill is a necessary element of the underlying offense." State v. Coble, 351 N.C. 448, 527 S.E.2d 45, 48 (2000). Appellant asks this Court to adopt a similar approach. Her argument presents an issue of law that we review de novo. Worcester v. State, 2001 WY 82, ¶ 13, 30 P.3d 47, 52 (Wyo.2001).

[T7] Wyo. Stat. Ann. § 6-1-3801 states, in pertinent part:

(a) A person is guilty of an attempt to commit a crime if:
(i) With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A "substantial step" is conduct which is strongly corroborative of the firmness of the person's intention to complete the commission of the erimel[.]

According to Wyo. Stat, Ann. § 6-2-104, "[wlhoever purposely and maliciously, but without premeditation, kills any human being is guilty of murder in the second degree...."

[18] Appellant's claimed "logical impossibility" arises from the "intent" elements of these respective statutes. In the past, crimes have commonly been categorized by whether they require a "specific intent" or a "general intent." For many years, Wyoming had several pattern jury instructions defining and explaining the two terms, and yet, the differences between the concepts were not always readily discernible.

Realizing that the distinction between a specific intent erime and a general intent crime is apparently troublesome, we can perhaps clarify it by stating it in a somewhat different way. When the statute sets out the offense with only a description of the particular unlawful act, without reference to intent to do a further act or achieve a future consequence, the trial judge asks the jury whether the defendant intended to do the outlawed act. Such intention is general intent. When the statutory definition of the crime refers to an intent to do some further act or attain some additional consequence, the offense is considered to be a specific intent crime and then that question must be asked of the jury.

Dorador v. State, 578 P.2d 839, 843 (Wyo.1978). Following that logic, an "attempt" is a "specific intent" crime in that the attempt statute requires that one act with the intent to commit the object crime. On the other hand, we have held that second-degree murder is a general intent crime, because it requires proof only that the act was done voluntarily or deliberately, not that there was a specific intent to kill. Bouwnkamp v. State, 833 P.2d 486, 493 (Wyo.1992); Ramos v. State, 806 P.2d 822, 830 (Wyo.1991).

[19] We have acknowledged a trend in the law to dispense with the pattern jury instructions defining and explaining intent due to their "vagueness and general failure to enlighten juries." Compton v. State, 931 P.2d 936, 941 (Wyo.1997). Instead, juries should be instructed as to the appropriate intent that is an element of the particular crime; "it is more important that the jury understand what exactly they [are required] to determine." Id. This is consonant with our recent holding that "the test of whether a jury has been properly instructed on the necessary elements of a crime is whether the instructions leave no doubt as to the cireum-stances under which the erime can be found to have been committed." Mueller v. State, 2001 WY 134, 19, 36 P.3d 1151, 1155 (Wyo. 2001). The point is that attempting formally to distinguish between specific intent and general intent, beyond the substantive elements of the crime, may not be the surest way to define the nature of the intent that must be proven.

[T10] Our precedent reveals that Wyoming is not a jurisdiction that finds it "logically impossible" to attempt a general intent crime. In several opinions, we have affirmed attempted second-degree murder convictions. See, eg., Bilderback v. State, 13 P.3d 249 (Wyo.2000); Gabriel v. State, 925 P.2d 234 (Wyo.1996); and Dichard v. State, 844 P.2d 484 (Wyo.1992). We have also previously recognized the crime of attempted voluntary manslaughter. Warren v. State, 809 P.2d 788 (Wyo.1991). Wyo. Stat. Ann. § 6-2-105(a) (LexisNexis 2001) provides, in pertinent part:

A person is guilty of manslaughter if he unlawfully kills any human being without malice, expressed or implied, either:
(i) Voluntarily, upon a sudden heat of passion[.]

In Warren, 809 P.2d at 790, Warren challenged the sufficiency of the evidence to con-viet him of attempted voluntary manslaughter, arguing that there was no evidence of an attempt to kill. After stating the substantive elements of attempted voluntary manslaughter, this Court proceeded to evaluate the sufficiency of the evidence as to those elements, primarily the evidence supporting Warren's "attempt" to kill his victim and the accompanying inference regarding Warren's intent. Id. We concluded that the reasonable inference from the evidence presented was that "Warren attempted to kill [his victim], and a jury could so find beyond a reasonable doubt." Id. In the context of appellant's claimed "logical impossibility," particularly the intent element of an attempt versus that of an underlying general intent crime, attempted second-degree murder is indistinguishable from attempted voluntary manslaughter. Indeed, voluntary manslaughter is a "lesser included offense of the crime of second degree murder," and is "a general intent crime that does not require a deliberate intent to kill." State v. Keffer, 860 P.2d 1118, 1138-39 (Wyo.1993).

[111] A similar result was obtained in Compton, 931 P.2d at 938, where a jury convicted Compton of attempted first-degree sexual assault. On appeal, he questioned the adequacy of the district court's jury instructions, specifically regarding the elements of attempted first-degree sexual assault and its requisite intent. Id. at 939. First-degree sexual assault is a general intent crime. Id. at 941. This Court found that the district court's jury instructions adequately stated the substantive elements of attempted first-degree sexual assault, and adequately instructed the jury regarding the specific intent element of an attempt. Id. at 940-41.

[112] Nothing about the instant case convinces us that we should now find it legally or logically impossible for a person to attempt a general intent crime. As we said in Compton, 931 P.2d at 940, 941 (quoting People v. Frysig, 628 P.2d 1004, 1007 n. 4, 1008 (Colo.1981)), the question presented to the jury in an attempt case essentially has two levels: (1) whether the person had " 'the intent to perform acts which, if completed, would constitute the underlying offense' "- in other words, did the person intend the conduct that constitutes the substantial step; and (2) whether the person had the intent necessary as an element of the underlying offense-" '[elxeept for the intentional conduct constituting the substantial step, the requisite culpability is that provided for in the definition of the [underlying] offense." " That analysis works just as well for attempted crimes that traditionally have been categorized as general intent crimes as it does for attempted crimes that traditionally have been categorized as specific intent erimes.

Conspiracy to Commit RoBBERY

[T13] Appellant argues that the district court failed properly to instruct the jury on the elements of conspiracy to commit robbery. In particular, appellant contends that while the district court's elements instruction did contain the elements of conspiracy, that instruction did not include the elements of robbery and the jury instructions, even when viewed as a whole, therefore did "not fully and clearly describe the cireumstances under which [appellant] could have been convicted of conspiracy to commit robbery." The State argues that the district court did instruct the jury regarding the elements of aggravated robbery, robbery being a lesser-included offense of aggravated robbery, and that the district court's elements instruction, when viewed as a whole, therefore correctly listed "all the elements of every offense charged" and sufficiently covered the issues presented at trial. Because the jury reached a unanimous verdict on the aggravated robbery charge, the State asserts that the jury read and understood the elements of that offense, what appellant "stood accused of and what facts the State was advancing in support of those accusations," and ultimately the "commonsense relationship between the robbery and conspiracy to commit robbery charges against her." If anything, according to the State, this potentially placed a higher burden on the prosecution to prove the additional element required for aggravated robbery as the alleged conspiracy's objective.

(a) Standard of Review

[T14] W.R.Cr.P. 30 (2000) provided, in part:

Before instructing the jury the court shall conduct a formal instruction conference out of the presence of the jury at which the court shall inform counsel of the proposed action upon their requests and shall afford them an opportunity to offer specific, legal objection to any instruction the court intends to give and to offer alternate instructions. No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury is instructed, stating distinetly the matter to which the party objects and the grounds of the objection.

We have stated that

[tlhe spirit and policy of our rules with reference to jury instructions is to apprise and inform the district court of the purpose of offered jury instructions and of objections to proposed jury instructions so that the court may have an opportunity to correct and amplify them before submission to the jury.

Ortega v. State, 966 P.2d 961, 966 (Wyo.1998); see also Alberts v. State, 642 P.2d 447, 453 (Wyo.1982). Accordingly, the "failure to object to instructions at trial before the jury begins its deliberations operates to preclude appellate review of those instructions, which become the law of the case unless a plain or fundamental error can be shown to prevail." Sanchez v. State, 751 P.2d 1300, 1308 (Wyo.1988); see also Brown v. State, 953 P.2d 1170, 1180 (Wyo.1998).

[115] Considering the spirit and policy of this rule, we apply the plain error standard because appellant's trial counsel objected only to the format of the district court's jury instruction on the elements of the crimes charged, rather than its substance (ie., the particular elements, or lack thereof, contained in the instruction). To establish plain error, an appellant must demonstrate "that the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right." Compton, 931 P.2d at 939.

(b) Jury Instruction on Conspiracy to Commit Robbery

[T16] A failure properly to instruct on an element of a crime can constitute plain error. Miller v. State, 904 P.2d 344, 349 (Wyo.1995). Jury instructions are "designed to inform the jury about the applicable law so that the jury may apply that law to its own findings with respect to the material facts." Brown v. State, 817 P.2d 429, 439 (Wyo.1991).

Given this purpose, the test whether the jury has been instructed on the necessary elements of the crime charged is whether the instruction "leaves no doubt as to under what circumstances the crime can be found to have been committed." Graham v. United States, 187 F.2d 87, 90 (D.C.Cir.1950), cert. denied, 341 U.S. 920, 71 S.Ct. 741, 95 L.Ed. 1353 (1951); United States v. Salliey, 360 F.2d 699, 702 (4th Cir.1966). A failure to give any instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction, requiring reversal of the defendant's conviction[.] Vigil [v. State], 859 P.2d [659] at 662 [ (Wyo.1993) ], quoting Cole v. Young, 817 F.2d 412, 423 (7th Cir.1987) (emphasis added); Phillips v. State, 760 P.2d 388, 390 (Wyo.1988); Redland v. State, 766 P.2d 1173, 1174 (Wyo.1989).

Miller, 904 P.2d at 348 (emphasis in original).

[117] The district court instructed the jury as follows regarding the elements of the crimes charged:

INSTRUCTION NO. 3
The four counts each charge a separate crime, all alleged to have occurred in the course of events described by the evidence. Each of the counts must be separately considered by you. The state must prove beyond a reasonable doubt each of the essential elements of each of the counts. The essential elements are:
For each of the counts, the first three (8) elements are:
1. On or about the 10th day of July, 2000,
2. In Laramie County, Wyoming
3. The defendant, Velma Reilly,
The other elements of the four (4) counts are:
AS TO COUNT I, Conspiracy to Commit a Crime:
4. Agreed with one or more persons
5. That they or one or more of them would commit the crime of Robbery and
6. One or more of them did an overt act to effect the objective of the agreement.
AS TO COUNT II, Kidnapping:
4. Unlawfully removed and confined [the victim]
5. With the intent to facilitate the commission of a robbery, and
6. [The victim] was not released substantially unharmed and in a safe place prior to trial.
AS TO COUNT III, Aggravated Robbery:
4. Did steal, take or drive away the property of [the victim] with the intent to deprive her of that property, and
5. In the course of committing this crime used or exhibited a deadly weapon.
AS TO COUNT IV, Attempt to Commit Murder in the First Degree:
4. Purposely; and
5. With premeditated malice;
6. Attempted to kill [the victim].
As to each of the counts, it is not necessary that the state prove every fact surrounding the allegation beyond a reasonable doubt, but that it so prove all of the essential elements as given above.
If you find from your consideration of all the evidence that each of these elements in each of these counts has been proved beyond a reasonable doubt, then you should find the defendant guilty as to that count.
If you find that any of these elements has not been proved beyond a reasonable doubt as to any count, then you should find the defendant not guilty as to that count.

(Emphasis in original.)

[118] This instruction leaves considerable doubt " 'as to under what circumstances the crime [of conspiracy to commit robbery] can be found to have been committed. " Miller, 904 P.2d at 848 (quoting Graham v. United States, 187 F.2d 87, 90 (D.C.Cir.1950), cert. denied, 341 U.S. 920, 71 S.Ct. 741, 95 L.Ed. 1858 (1951)). It is undisputed that the conspiracy to commit robbery portion of the instruction did instruct the jury as to the elements of conspiracy, but did not instruct the jury as to the elements of robbery. Wyo. Stat. Aun. § 6-2-401(a) provides:

[a] person is guilty of robbery if in the course of committing a crime defined by W.S. 6-3-402 he:
(i) Inflicts bodily injury upon another; or
(ii) Threatens another with or intentionally puts him in fear of immediate bodily injury.

It is clear and unequivocal that

[iln a conspiracy prosecution, the jury must determine whether the commission of a particular crime was the objective of the conspiracy. Since the object erime in this conspiracy prosecution was [robbery], the court must give an instruction that defines the offense that is the subject of the conspiracy.

Miller, 904 P.2d at 347. Indeed, the "accused in a eriminal prosecution, can only be convicted upon proof beyond a reasonable doubt of each element of the crime charged." Vigil v. State, 859 P.2d 659, 662 (Wyo.1993).

[119] The State's reliance on the aggravated robbery portion of the instruction is not convincing. It is true that when we

examine jury instructions, we must look at them in their entirety and read them together. Ostrowski v. State, 665 P.2d 471, 487 (Wyo.1983). An error in one jury instruction can be cured elsewhere in the jury instructions if "the correct information is conveyed to the jury in a clear and concise manner so that it is unlikely that an erroneous impression would remain in the minds of the jurors." United States v. Pope, 561 F.2d 663, 670 (6th Cir.1977){[.]

Vigil, 859 P.2d at 663. However, the aggravated robbery instruction is deficient for the same reason as the conspiracy to commit robbery instruction-it does not completely set forth the essential elements of robbery. Wyo. Stat. Ann. § 6-2-401(c) provides that

[alggravated robbery is a felony punishable by imprisonment for not less than five (5) years nor more than twenty-five (25) years if in the course of committing the crime of robbery the person:
(i) Intentionally inflicts or attempts to inflict serious bodily injury; or
(ii) Uses or exhibits a deadly weapon or a simulated deadly weapon.

(Emphasis added.) The aggravated robbery instruction does include an element required by Wyo. Stat. Ann. § 6-2-401(c)@i) for aggravated robbery, and one element of robbery (what constitutes "a crime defined by W.S. 6-3-402"), but does not instruct the jury as to the additional element(s) of robbery found in Wyo. Stat. Ann. § 6-2-401(a)(@) and/or (ii).

[120] The record clearly reflects what occurred at trial without resort to speculation. The district court violated a clear and unequivocal rule of law by failing adequately to instruct the jury on the essential elements of conspiracy to commit robbery, which denied appellant the right to a fair trial and the right to be convicted based on a finding of proof beyond a reasonable doubt of each element of the crime charged. See Vigil, 859 P.2d at 662 and Buckles v. State, 830 P.2d 702, 707-10 (Wyo.1992). Accordingly, we reverse appellant's conspiracy to commit robbery conviction and remand for a new trial on that charge. This resolution obviates the need to address the issue of sufficiency of the evidence. '

      . W.Cr.P.J.L. 3.501 (1978) states:
      3.501 CONCURRENCE OF ACT AND SPECIFIC INTENT
      To constitute the crime charged there must be a union of two essential elements, an act forbidden by law and a specific intent.
      Specific intent means more than the general intent to commit the act. To prove a crime which involves specific intent, the prosecution must prove beyond a reasonable doubt:
      (1) That the defendant did the act charged; and
      (2) That he did it with the specific intent described in the crime charged. The specific intent must be proved beyond a reasonable doubt as any other fact in the case.
      W.Cr.P.J.L. 3.503 (1978) states:
      3.503 CRIMES REQUIRING NO CRIMINAL INTENT
      For the crime charged, the doing of the act is itself punishable as a crime. The intent [with] which the act was committed is immaterial to guilt.
      W.Cr.P.J.L. 3.504 (1978) states:
      3.504 DETERMINING PRESENCE OF SPECIFIC INTENT
      The crime charged in this case is a serious crime which requires proof of specific intent before the defendant can be convicted. Specific intent, as the term implies, means more than the general intent to commit the act. To establish specific intent the state must prove that the defendant knowingly did an act which the law forbids, [knowingly failed to do an act which the law requires,] specifically intending to violate the law. Such intent may be determined from all the facts and circumstances surrounding the case.
      An act or a failure to act is "knowingly" done, if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.
      W.Cr.P.J.I. 3.505 (1978) states:
      3.505 DETERMINING PRESENCE OF GENERAL INTENT
      The intent with which an act was done is a condition of the mind, that is seldom if ever, capable of direct and positive proof, Because we have no power to directly observe the condition of a person's mind, the best we can do is infer it from the evidence introduced.
      The jury may consider the circumstances surrounding the act, the doing of the act itself, the manner in which it was done and the means used.

      . The district court used a single jury instruction (Instruction No. 3) to instruct the jury as to the elements of the crimes charged. At the formal jury instruction conference, appellant's trial counsel placed the following objection on the record regarding that elements instruction:
      [APPELLANT'S TRIAL COUNSEL]: And then on number-again, I'd like to reiterate like I discussed yesterday, for Instruction No. 3, I believe it's a bit confusing to have separate counts on the same page as to Count[s] I and II, and also I would object on the second page-
      THE COURT: Just a minute. Let me slow you down a little bit.
      [APPELLANTS TRIAL COUNSEL]: My objection is just to the format of Instruction No. 3, that they're all on the same page.
      Appellant's trial counsel also requested that the elements instruction as to attempted first-degree murder include more factual particularity concerning what substantial steps the State alleged in the Information that appellant took toward the commission of that crime.

      3. Although appellant objected at trial to the format of this instruction, that issue was not raised on appeal.

      . The district court gave additional jury instructions defining the terms used in this elements instruction, as well as the elements of attempted second-degree murder.

      . Wyo. Stat. Ann. § 6-1-303 provides, in pertinent part:
      (a) A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a crime and one (1) or more of them does an overt act to effect the objective of the agreement.
      (b) A person is not liable under this section if after conspiring he withdraws from the conspiracy and thwarts its success under circumstances manifesting voluntary and complete renunciation of his criminal intention.

      6. Wyo. Stat. Ann. § 6-3-402 (LexisNexis 2001) 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.

      . The district court is not required to utilize Wyoming's Criminal Pattern Jury Instructions, although it is worth noting that doing so likely would have prevented the error in this case. W.Cr.P.J.I. 13.01 (1996) states:
      The elements of the crime of Conspiracy to Commit , as charged in this case, are:
      1. On or about the __ day of ___, [200]
      2. In County, Wyoming
      3. The Defendant,
      4. Agreed with one or more persons
      5. That they or one or more of them would commit the crime of , and
      6. One or more of them did an overt act to effect the objective of the agreement.
      #
      Use Note: Set forth the elements of the object crime in a separate instruction.
      £
      (Emphasis added.) W.Cr.P.J.I. 24.01A states:
      The elements of the crime of Robbery, as charged in this case, are:
      1. On or about the __ day of ___, [200_]
      2. In County, Wyoming
      3. The Defendant,
      4. In the course of committing [the crime of] Larceny
      [5. Inflicted bodily injury upon another person.]
      OR
      [5. Threatened another person with or intentionally put him in fear of immediate bodily injury.] #
      W.Cr.P.J.IL, 24.01B states:
      The elements of the crime of Aggravated Robbery, as charged in this case, are:
      1. On or about the __ day of ___, [200]
      2. In County, Wyoming
      3. The Defendani,
      4. In the course of committing Robbery
      [5. Intentionally inflicted or attempted to inflict serious bodily injury upon {another person} {. }.]
      OR
      [5. Used or exhibited a deadly weapon or a simulated deadly weapon.]

      Use Note: Use the applicable option in Element 5. Separate instructions should be given on: (1) elements of robbery see Instruction 24.014 ....

      (Emphasis added.)