author: GOLDEN, Justice. THOMAS, Justice,

text:
    WEXPRO COMPANY, Appellant (Petitioner/Plaintiff), v. Terry BRIMHALL, in her official capacity as the Uinta County Treasurer; The Board of County Commissioners for the County of Uinta, Appellees (Respondents/Defendants).
    No. 98-136.
    Supreme Court of Wyoming.
    June 2, 2000.

      Representing Appellant: Lawrence J. Wolfe of Holland & Hart, Cheyenne, Wyoming.
    Representing Appellee: Michael L. Greer, Uinta County and Prosecuting Attorney, Ev-anston, Wyoming.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR, JJ.

       Retired November 2, 1998.

   GOLDEN, Justice.

Pursuant to WRAP. 11, the District Court for the Third Judicial District, in and for Uinta County, Wyoming, certifies two questions for resolution concerning whether Texaco, Inc. v. State Bd. of Equalization, 845 P.2d 398 (Wyo.1998), and Thunder Basin Coal Co. v. State Bd. of Equalization, 896 P.2d 18386 (Wyo.1995), bar refund claims based on ad valorem taxes calculated by offsetting overpayments and underpayments between tax years and, if they are not barred, whether a county may refuse to offset such payments.

In its brief, Appellant Wexpro Company informs us that the issues and facts in this case are also present in Wyo. State Dept. of Rev. v. Amoco Prod. Co., T P.8d 85 (Wyo. 2000). In Amoco, we held that "[offfsets or refunds pursuant to Wyo. Stat. Ann. § 39-2-214(e) are not applicable to audits commenced before the effective date of the statute." Id., at 40 (citing Thunder Basin Coal Co., 896 P.2d at 1841, and Texaco, Inc., 845 P.2d at 402).

We agree with Wexpro's analysis of Amoco and will apply that holding to answer the certified questions. Therefore, we answer the first certified question in the affirmative; Wexpro's refund claims are barred. We need not answer the second certified question.

CERTIFIED QUESTIONS
I. Are Wexpro's claims, that refunds of ad valorem taxes must be calculated by offsetting overpayments and underpayments between tax years and tax districts, barred under the decisions in Texaco Inc. v. State Board of Equalization and Thunder Basin Coal Company v. Board of Equalization because Wexpro's audit was commenced prior to March 11, 1991, the effective date of W.S. 39-2-2147
II. If Wexpro's claims are not barred, is the County required to offset overpay-ments and underpayments between tax years and tax districts in calculating Wex-pro's entitlement to ad valorem tax refunds?

These questions encompass all of the issues in the case, and the parties do not suggest any additional issues.

FACTS

In a W.R.AP. 11 certification of questions of law, we rely entirely upon the factual determinations made in the trial court. All-husen v. State of Wyoming Mental Health Prof. Licensing Bd., 898 P.2d 878, 881 (Wyo. 1995). The following statement of facts was submitted by the district court in its order certifying the questions of law:

Wexpro is a significant oil and gas producer in southwest Wyoming. At issue in this case are ad valorem taxes (also called gross products taxes) which are assessed each year by Uinta County based on Wex-pro's prior year's production. Wexpro's 1984-1988 oil and gas production in Uinta, Sweetwater and Lincoln counties was audited by the Department of Audit. The audit was engaged on June 21, 1990, and a final assessment letter was issued by the Department of Revenue ("DOR") on February 3, 1994. The assessment was appealed to the State Board of Equalization ("State Board"), which issued an initial decision on February 24, 1995. That decision was interlocutory and required Weyx-pro and the DOR to make certain calculations and report back to the State Board.

The State Board's final decision was issued on November 14, 1995.

In arriving at its final decision, the State Board required the DOR and Wexpro to develop joint schedules for all of the wells and each of the years. In those schedules the DOR agreed to net overpayments and underpayments between years for severance tax purposes. The State Board approved the schedules in the final order.

The State Board's decision ordered Uin-ta and Sweetwater Counties to refund money to Wexpro for overpaid gross products tax for tax years 1985 through 1989 (production years 1984-198[8]). The Uin-ta County Treasurer calculated the amount of the refund and paid to Wexpro $144,-002.99. Wexpro believes the refund was calculated without regard to applicable statutes and case law and that Wexpro is owed an additional amount of $48,288.06. Wexpro's objections were made known to the Treasurer. The Uinta County Board of County Commissioners ratified the decision of the Treasurer, in an action that has been reported to the Appellant but not documented. Such ratification occurred because W.S. 89-2-214(e) appears to require the County Board to make the final decision on refunds.

This case arose by Wexpro's filing of a Petition for Administrative Action and a Complaint for Declaratory and Injunctive Relief ("Complaint"). The Complaint challenges the method by which the Uinta County Treasurer calculated the amount of an ad valorem tax refund due to Wexpro. The Appellees filed an Answer and Counter Petition for Declaratory Judgment. The Appellees filed a Motion to Dismiss and supporting brief, the Appellant filed a Motion for Summary Judgment and Brief and the Court determined, after review of the record, that it would certify the case to the Wyoming Supreme Court.

DISCUSSION

Wexpro contends that its claims for ad valorem tax refunds must be calculated by netting overpayments and underpayments between tax years within an audit period and between tax districts within the county. Wexpro relies on Kunard v. Enron Oil & Gas Co., 869 P.2d 132 (Wyo.1994), and Wyo. Stat. Aun. § 39-2-214(e) to support its position, while attempting to distinguish this case from Texaco, Inc. v. Wyo. State Bd. of Equalization, $45 P.2d 898 (Wyo.1993), and Thunder Basin Coal Co. v. Wyo. State Bd. of Equalization, 896 P.2d 1386 (Wyo.1995).

Wexpro suggests that Wyo. Stat. Ann. § 39-2-2l4(e) is remedial in nature and, when read in conjunction with the policies announced in Kunard, allows netting of over-payments and underpayments between tax years within an audit period. Wyo. Stat. Ann. § 39-2-214(e) (Michie 1997) provides:

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

If we were to consider this statutory language and the remedial nature of the statute, without more, we might agree with Wexpro's contention that its refund claims are not barred. However, Wyo. Stat. Aun. § 39-2-214 was promulgated in 1991. When it enacted the statute, as Section 1 of Chapter 257, the legislature included a second section to explain its intent. That section requires that "[alny audit or examination which has not commenced as of the effective date of this act, conducted by or contracted for by a county, shall be subject to the provisions of this act." 1991 Wyo. Sess. Laws Ch. 257, § 2 (emphasis added).

The effective date of the act was March 11, 1991. Id.; Texaco, 845 P.2d at 401. The audit of Wexpro began on June 21, 1990. Therefore, Wyo. Stat. Ann. § 89-2-214(e) (Michie 1997) does not apply to Wexpro's refund claims, and its claims are barred. See also, Texaco, 845 P.2d at 401 ("We conclude that it is unmistakably clear that the Legislature intended for § 39-2-214(e) to apply prospectively only."); Thunder Basin Coal Co., 896 P.2d at 1341 ("Thunder Basin is not entitled to receive an offset or refund pursuant to Wyo. Stat. § 89-2-214(e) (1994) because the audit was commenced before the effective date of the statute."); Amoco Production Co., at 40 ("Offsets or refunds pursuant to Wyo. Stat. Aun. § 39-2-214(e) are not applicable to audits commenced before the effective date of the statute.").

CONCLUSION

Wexpro's claims "that refunds of ad valo-rem taxes must be calculated by offsetting overpayments and underpayments between tax years and tax districts" are barred under our previous decisions because Wexpro's audit was commenced prior to March 11, 1991, the effective date of Wyo. Stat. Ann. § 39-2-214(e) (Michie 1997), the statute which allows for offsetting of payments.

THOMAS, Justice,

dissenting.

I must dissent from the majority resolution of this case in accordance with the views I have expressed in Department of Revenue v. Amoco Production Co., 7 P.3d 35 (Wyo. 2000). The majority has resolved this case consistently with the resolution of Amoco Production Co. I would reach a contrary result consistent with the views expressed in my concurring and dissenting opinion in that case. Consequently, I would answer the first certified question in this case, "No." That would lead to consideration of the second certified question, which I would answer "Yes."

      . Repealed by 1998 Wyo. Sess. Laws Ch. 5, § 4.


source: Caselaw Access Project

author: GOLDEN, Justice.

license: Public Domain

text:
    Jeffrey L. HALBLEIB, Appellant (Defendant). v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 99-179.
    Supreme Court of Wyoming.
    May 31, 2000.

      Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Assistant Appellant Counsel. Argument by Mr. Roden.
    Representing Appellee: Gay Woodhouse, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; T. Alan Elrod, Assistant Attorney General. Argument by Mr. Elrod.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and HILL, JJ.
   GOLDEN, Justice.

Appellant Jeffrey L. Halbleib (Halbleib) appeals from the district court's order revoking his probation and imposing a judgment and sentence of not less than two years nor more than four years in the Wyoming State Penitentiary. Halbleib was originally given probation with a suspended sentence, but he violated his probation. He spent eleven days in the Laramie County jail awaiting his probation revocation hearing. His sentence did not include credit for those eleven days. Halbleib contends Wyoming law and the constitutional prohibition against double jeopardy require credit for any post-sentence time served as long as an escape charge would lie upon an unauthorized departure from confinement.

We hold the district court did not abuse its discretion when it denied credit for time served in jail while awaiting a probation revocation hearing. In Smith v. State, 988 P.2d 39, 40 (Wyo.1999), we recently determined that a probationer is not entitled to credit for time served while awaiting a probation revocation hearing. Although Halbleib asks this Court to reconsider Smith, based on his double jeopardy argument, we decline to do so. This situation is distinguishable from the cases relied upon by Halbleib, and double jeopardy is not implicated when a probation er is awaiting a probation revocation hearing. Therefore, we affirm.

ISSUE

In his initial brief, Halbleib presents the following statement of the issue:

Whether the trial court erred by denying Appellant credit for time served on his felony fraud sentence for time served in custody awaiting his probation revocation hearing?

The State counters with this issue:

Did the district court abuse its discretion in denying Appellant credit for time served awaiting his probation revocation, given that this confinement would have persisted regardless of Appellant's financial ability to post bond?

In his reply brief, Halbleib addresses the State's reliance on Smith, which was published the same day Halbleib filed his initial brief:

Whether Smith v. State, [988 P.2d 39 (Wyo.1999) 1, which fails to address the prohibition against multiple punishments for the same offense, should be applied to the present case?

FACTS

On May 15, 1998, Halbleib pled guilty to felony check fraud, proscribed by Wyo. Stat. Ann. § 6-8-702(a)(b)(iii) (LEXIS 1999), and was sentenced to two to four years in the state penitentiary. The district court suspended that sentence and placed Halbleib on probation for four years. Halbleib violated his probation in several ways, and a petition for revocation of probation was filed in the district court. Halbleib was arrested in Pennsylvania and extradited to Wyoming. Halbleib was held in the Laramie County jail while awaiting his probation revocation hearing from his arrest on March 14, 1999, until the revocation hearing on March 25, 1999, eleven days. The district court revoked Hal-bleib's probation and ordered execution of his previously suspended sentence. After the district court said Halbleib would be given credit for time served awaiting this sentence, the prosecution asked the district court to disallow any eredit for time served outside the original twenty-six days he spent in jail prior to being sentenced in May of 1998. The district court complied with the State's request, and Halbleib appealed.

STANDARD OF REVIEW

Trial courts have a broad discretion to determine the appropriate length. and conditions of imprisonment in a variety of situations. We recognize that within the statutory limits, trial courts may give: consideration to a wide range of factors relevant to their sentencing decisions, and that few of those factors are capable of precise quantification when translated into the final imposition of the term for incarceration. This court refrains from disturbing sentencing decisions absent a clear abuse of discretion.

Jones v. State, 771 P.2d 368, 371 (Wyo.1989). However, because of equal protection and double jeopardy concerns, we have held it is error for a trial court to refuse to credit a sentence for pre-sentence incarceration if the sole reason for the detention is the defendant's inability to post bond and for portions of sentences served as a condition of probation if a charge of escape will lie for leaving that detention. See Rosales v. State, 955 P.2d 899, 900 (Wyo.1998), and cases cited therein (equal protection); Prejean v. State, 794 P.2d 877, 879 (Wyo.1990) (double jeopardy).

DISCUSSION

In his initial brief Halbleib correctly noted that this Court had not addressed eredit for time served while awaiting a probation revocation hearing. In his reply brief, he also correctly concedes that Smith v. State, 988 P.2d 39 (Wyo.1999), held a probationer is not entitled to eredit for time served while awaiting his probation revocation hearing, but Halbleib argues the double jeopardy issue must not have been raised in Smith because we did not address the issue in the opinion.

The double jeopardy clause, found in the Fifth Amendment to the United States Constitution and at Article 1, § 11 of the Wyoming Constitution, protects an accused from multiple punishments for the same crime. Amrein v. State, 836 P.2d 862, 864 (Wyo.1992). Halbleib claims the trial court's refusal to credit time served while awaiting a probation revocation hearing increases the length of the previously suspended sentence, thereby violating the double jeopardy clause.

In Yates v. State, 792 P.2d 187, 192 (Wyo.1990), we noted:

[The punishment for a violation of probation is the imposition of the sentence for which the defendant was placed on probation and, further, as a general rule, any sentence imposed and then suspended during a period of probation may not be increased because of the conduct that serves as the basis for the revocation. The punishment for that conduct is the revocation itself. If the revocation is justified by the commission of a separate crime, the defendant may be convicted of that crime and then sentenced to the full extent permitted by law for it.

In both his initial and reply briefs, Halbleib relies on Craig v. State, 804 P.2d 686 (Wyo.1991), to argue the district court's failure to credit his sentence violates the double jeopardy clause. However, Craig is distinguishable from the case at bar. In Craig, the trial court revoked Craig's probation and reinstated his sentence twice, resulting in his incarceration for the original charge for a period of ninety days in the Sheridan county jail and 199 days in the Wyoming State Penitentiary. Id. at 687. With the following holding, we reversed the trial court:

In Prejean, 794 P.2d at 877, we held that an individual who was again "incarcerated following a violation of parole, was entitled to credit for time that he served as a residential inmate in a community correctional facility." Just as the individual is entitled to credit for time served in a community correctional facility, so too is an individual entitled to credit for time served in a county jail and in the state penitentiary. "In Renfro v. State, 785 P.2d 491 (Wyo.1990), this court held unequivocally that, when a sentence to a term of imprisonment is imposed, pre-sentence confinement must be credited against both the maximum term and the minimum term." Prejean, 794 P.2d at 878. Although Ren-fro addresses entitlement of credit for pre-sentence confinement and Prgjean addresses entitlement for credit for time served in a community correctional facility prior to reincarceration for a parole violation, Renfro and its progeny rest upon a much deeper foundation. Central to those cases which radiate from Renfro is the double jeopardy constraint that punishment already exacted for an offense must be credited to the incarceration time occasioned by that offense. Accordingly, the time Craig spent in custody for the offense of grand larceny must be credited against the maximum and minimum terms to his original three to five year sentence.
We understand Craig to have spent 270 days in custody prior to the final reinstatement of his original sentence. The 270 days are calculated by adding the fourteen days he was held in the Sheridan County jail before he was sentenced, fifty-seven days in the Sheridan County jail after his probation was revoked the first time, and 199 days in the state penitentiary after his probation was revoked the second time.
We do not include in the 270 days those days Craig spent in the Pine Ridge Hospital. In Prejean, 794 P.2d at 879, we indicated that in deciding whether time at a community correctional facility "counts" as time served when probation is revoked depends upon whether the defendant could be charged with escape from detention. In this case, Craig was at the Pine Ridge Hospital for treatment of his anti-social behavior caused by alcohol. He agreed to participate in an alcohol dependency treatment as a condition for his second chance at probation. Craig was not in custody at the Pine Ridge Hospital because he could not be charged with escape from official detention had he left the hospital. Because escape from detention would not lie, the time at the Pine Ridge Hospital does not count as time to be credited against his sentence.

Craig, 804 P.2d at 688 (footnotes omitted).

Contrary to the contention in Halbleib's brief, Craig received credit for the time he spent incarcerated after his probation was revoked, not while he was awaiting a probation revocation hearing. Id. The opinion does not address credit for time served while awaiting his revocation hearing, and clearly the district court did not grant that credit. Id,.

Because Halbleib was not being held in jail as a condition of his probation, but rather as a result of the violation of his probation, this case is also distinguishable from those Wyoming cases which have held that a defendant is entitled to credit for time served if a charge of escape would lie. See e.g., Prejean, 794 P.2d at 878-79. Those cases hold a defendant is entitled to credit for confinement after the initial sentencing where that confinement both exposes him to a possible escape charge and is attributable to the conviction on the charge for which he was sentenced.

This rule does not entitle a defendant to eredit for confinement which is attributable to acts or omissions separate and apart from those for which he was originally convicted and received a sentence of probation. The time served while awaiting a revocation hearing is not directly attributable to a erimi-nal charge. Rather, it is solely due to the violation of the conditions of probation.

For the probationer awaiting a probation revocation hearing, until the trial court revokes the suspension of the execution of his sentence, the probationer is not serving time on that sentence. The time spent awaiting the revocation hearing is not the "punishment" which implicates double jeopardy concerns. Rather, it is time spent on an administrative hold because of the alleged probation violation.

Upholding our decision in Smith v. State, 988 P.2d 39 (Wyo.1999), which included a period of confinement while awaiting a probation revocation hearing, we hold that incarceration pending probation revocation proceedings is qualitatively different from pre-sentence incarceration and from incarceration which is a condition of probation. See Rosalez, 955 P.2d at 900; Prejean, 794 P.2d at 878-79. Therefore, Halbleib's incarceration pending probation revocation does not generate the equal protection or the double jeopardy concerns previously addressed by this Court.

CONCLUSION

Neither the equal protection clause nor the proscription against double jeopardy require the district court to credit a probationer awaiting a revocation hearing for the time he is held awaiting that hearing. The trial court did not abuse its discretion when it refused to credit the eleven days Halbleib spent in jail on an administrative hold. Therefore, we affirm the judgment and sentence except for the limited remand mentioned earlier in the opinion.

      . The State concedes in its brief that Halbleib was actually incarcerated for thirty-one days pri- . or to being sentenced, not the twenty-six days allowed by the district court. Therefore, we, must order a limited remand to adjust the sentence to allow thirty-one days credit for time served prior to sentencing.


author: MACY, Justice.

text:
    Donald L. SEGNITZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Donald L. Segnitz, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
    Nos. 99-223, 99-254.
    Supreme Court of Wyoming.
    June 2, 2000.

      Representing Appellant: Donald L. Seg-nitz, Pro Se. '
    Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General. -
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   MACY, Justice.

Appellant Donald L. Segnitz appeals from the denials of two motions he filed in two separate courts to correct his illegal sentences. The cases were consolidated for purposes of appeal.

We affirm in part and reverse in part.

ISSUES

In Case No. 99-223, Segnitz presents the following issues for our review:

1. Did the District Court [err] by denying Appellant's Motion to Correct an Illegal Sentence, which was filed because while orally sentenced to concurrent sentences, the Written Judgement and Sentence, and Mitimus failed to stipulate that 'sentence was concurrent[?]
2. Did the District Court [err] by denying Appellant's Motion to Correct ... an ILLEGAL Sentence, which was filed because the Court did not award credit for time served in itl Is Judgement and Sentence, nor Mitimus{?] Nor had it been addressed orally by the Court at sentencing.

In Case No. 99-254, Segnitz presents the following issues for our review:

A. Did the District Court sentence the Appellant to an illegal term by not abiding by W.R.Cz.P. 82(0)2(C), (E), and (F)?
B. Did the District Court by denying the Motion to Correct an Illegal Sentence and then changing the original sentence abuse it[ ]s d[ifscretion?
C. If the change in sentence was proper then should the Appellant [be] afforded due process by the District Court?

FACTS

In November of 1997, Segnitz was sentenced in Sweetwater County to serve a term in the Wyoming State Penitentiary of not less than one year nor more than three years, with credit for the time he served in presentence confinement, for the offense of felony larceny. He was released on parole to Community Alternatives of Casper on June 25, 1998. On July 30, 1998, Segnitz departed from Community Alternatives of Casper without authorization, stealing a car to facilitate his exit. He drove to Wheatland where he abandoned this car and stole another, which he drove to Indiana.

Both the Platte County and Natrona County authorities issued arrest warrants for the crimes committed in their respective counties. The Board of Parole issued an order of arrest because Segnitz had violated the terms of his parole for the Sweetwater County felony larceny conviction. Segnitz was arrested in Indiana on August 1, 1998, and later charged with felony larceny in both Platte County and Natrona County. He pleaded guilty to the charges. Segnitz was sentenced on September 10, 1998, in Platte County to a term of not less than two years nor more than four years in the Wyoming State Penitentiary. The order was silent with regard to whether the sentence was to be served concurrently with or consecutively to any other sentences. On March 5, 1999, Segnitz was orally sentenced in Natrona County to the stipulated prison term of three to four years. The stipulation provided for the sentence to be served concurrently with the sentences imposed in Sweetwater County and Platte County. The written Judgment and Sentence failed to mention that the sentence was to be served concurrently with the other sentences, but, three months later, the district court entered an order nune pro tune to that effect.

Segnitz arrived at the Wyoming State Penitentiary on or shortly after March 5, 1999, the date he was sentenced in Natrona County. On April 12, 1999, the Board of Parole revoked his parole for the Sweetwater County offense, crediting him "with all of the time during which he was released."

Segnitz filed motions in the district courts of Platte County and Natrona County to correct illegal sentences. In his Platte County motion, Segnitz asserted that the Judgment and Sentence failed to specify how the sentence was to be served with regard to his other sentences. He also complained that the Judgment and Sentence failed to state the number of days awarded as presentence incarceration credit. In response, the district court issued an order wherein it announced that it intended for the sentence to be served consecutively to the others and that Segnitz was not entitled to presentence incarceration credit. In his Natrona County motion, Segnitz claimed that the Judgment and Sentence failed to reflect the district court's oral pronouncement that made the sentence run concurrently with the others and failed to award any presentence incarceration credit. Although the district court initially denied Segnitz's motion, it later entered the order nunc pro tune referenced above which ordered the sentence for the Natrona County crime to be served concurrently with the other sentences.

Segnitz appeals to the Wyoming Supreme Court.

DISCUSSION

A. Presentence Incarceration Credit

Segnitz contends that both district courts erred when they refused to award credit for the time he spent confined before he was sentenced. The state counters that Segnitz was on parole and in the legal custody of the Board of Parole during the entire time he was confined on these two charges and that the Board of Parole awarded him credit against his Sweetwater County sentence for all the time he spent on parole when his parole was eventually revoked.

The decision to grant or deny a motion to correct an illegal sentence is usually left to the sound discretion of the district court. Hamill v. State, 948 P.2d 1356, 1858 (Wyo.1997). The district court's decision is given considerable deference unless a rational basis does not exist for it. Id. A criminal defendant is entitled to receive credit against his sentence for the time he was incarcerated prior to sentencing, provided that such confinement was because of his inability and failure to post bond on the offense for which he was awaiting disposition. Smith v. State, 988 P.2d 39, 40 (Wyo.1999). A sentence which does not include credit for presentence incarceration is illegal and constitutes an abuse of discretion. Id. A defendant is not, however, entitled to eredit for the time he spent in custody when that confinement would have continued despite his ability to post bond. Id.

The Board of Parole revoked Segnitz's parole for the Sweetwater County conviction after he had been sentenced in the Platte County and Natrona County cases. Had the Board of Parole revoked Segnitz's parole before he was sentenced in the Platte County and Natrona County cases, there would be no argument about the fact that those district courts refused to award presentence incarceration credit. We, however, are not concerned with this order of events and agree with the state's observation that Seg-nitz should not be allowed to apply the credit to the new sentences "simply because his parole was fortuitously revoked" after, and not before, his convictions for the new crimes. When the Board of Parole awarded Segnitz full credit against his Sweetwater County sentence for the time he spent on parole, it cured any problems that existed as a result of the failures by the district courts in Platte County and Natrona County to do so.

B. Concurrent Sentences

Segnitz contends that the district court erred when it ordered his Platte County sentence to run consecutively to the other sentences. The state concedes that Segnitz is correct in this assertion.

The original order was silent with regard to how the Platte County sentence was intended to run with the other sentences. Eleven months later, the district court clarified the Judgment and Sentence by ordering the sentence to run consecutively to the others. In the meantime, the district court of Natrona County ordered its sentence to run concurrently with the other sentences.

When the district court of Platte County entered its order, Segnitz had not yet been prosecuted in Natrona County nor had his parole been revoked. If a defendant is subject to prosecution in more than one court, the decision regarding how the sentences will run with respect to one another should be made by the last judge to impose a sentence. 24 C.J.S. Criminal Low § 1524 (1989). The underlying rationale for this theory is that a judge cannot require a sentence to be served consecutively to a sentence that has not yet been imposed. Id. We agree with the state that this is the best practice and conclude that the district court of Platte County abused its discretion when it ordered its sentence to run consecutively to the others. The district court of Natrona County was the last court to impose a sentence, and it ordered its sentence to run concurrently with the others. That portion of the order for the Platte County offense which directed the sentence to run consecutively to the others is illegal and is hereby stricken.

Affirmed in part and reversed in part.


author: LEHMAN, Chief Justice.

text:
    Joseph Dean COOK, Sr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 98-332.
    Supreme Court of Wyoming.
    June 5, 2000.

      Representing Appellant: Sylvia Lee Hackl, Public Defender; Donna D. Domon-kos, Appellate Counsel; and Ryan R. Roden, Assistant Public Defender. Argument by Mr. Roden.
    Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; Cassiday A. Murphy, Student Intern; and John Vinich, Student Intern. Argument by Ms. Murphy and Mr. Vinich.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   LEHMAN, Chief Justice.

Joseph Dean Cook, Sr. (Cook) appeals his convictions on three counts of taking immodest, immoral and indecent liberties with a child, in violation of Wyo. Stat. Ann. § 14-3-105(a) (Michie Cum.Supp.1996). In his initial issue, Cook contends the district court erred when it allowed three prosecution witnesses to vouch for the credibility of the victim. He also argues that the court improperly admitted evidence of prior consistent statements by the victim and abused its discretion by failing to impose sanctions for an alleged violation of a sequestration order. Finally, Cook claims he was denied effective assistance of counsel. Finding all of Cook's contentions unavailing, we affirm.

ISSUES

Cook presents this statement of the issues:

I. Did the court deprive Appellant of his constitutional right to a trial by jury by permitting prosecution experts to testify on the credibility of the complainant?
II. Did the court deprive Appellant of his due process right to a fair trial by permitting the prosecution to offer prior consistent statements of the complainant to rebut claims that she fabricated her accusations even though the prior statements were made well after the complainant already possessed the motives to fabricate?
III. Did the court deprive Appellant of his due process right to a fair trial by permitting a key prosecution witness who had been sequestered to testify notwithstanding her having learned the complainant's testimony?
IV. Was Appellant denied effective assistance of counsel because his trial lawyer neglected to ascertain the date of the alleged offense before trial, failed to introduce into evidence a prior inconsistent statement of the complainant, failed to object to instructions that deprived appellant of a fair trial, and neglected to object to unconstitutionally burden diminishing arguments of the prosecution?

The State presents the issues as:

I. Did witnesses for the State improperly vouch for the credibility of the child victim?
II. Did testimony by witnesses for the State as to prior consistent statements by the child victim constitute plain error?
III. Did the district court abuse its discretion when it did not impose sanctions for an alleged violation of its order sequestering witnesses?
IV. Was Appellant denied the effective assistance of trial counsel?

FACTS

The victim is Cook's stepdaughter, AE. Cook, AFE, AE's mother (TC), Cook's son from a prior marriage, and two sons of Cook and TC lived together in Weston County. A teenaged friend of Cook's son also lived with them intermittently. In November 1996, AE told TC that Cook had been sexually molesting her. TC took AE to the County Law Enforcement Center, where Deputy Stensaas interviewed her. AE told him about several occasions on which Cook molested her. A few days later, TC took AE to a physician for a medical examination, including a gynecological examination. TC also took AE to a psychologist who provided counseling and concluded that AE had been sexually abused.

On January 9, 1997, the county attorney filed an information charging Cook with three counts of taking immodest, immoral or indecent liberties with a child. Cook's trial commenced on May 11, 1998. The jury returned guilty verdicts on all three counts. Cook filed his appeal to this court.

DISCUSSION

Vouching for Victim's Credibility

In his initial issue, Cook argues that the trial court erred by allowing three expert witnesses to vouch for the victim's eredibility. He alleges that Deputy Stensaas, AE's physician, and AE's psychologist each testified that they had assessed AE's credibility and determined that she was truthful in her accusations. Defense counsel did not object to the testimony of the physician and the psychologist, and objected to the deputy's testimony on unrelated grounds. Our review is, therefore, limited to a search for plain error. Hodgins v. State, 962 P.2d 153, 156 (Wyo.1998).

A three-part test has been established for determining whether an error may achieve the status of plain error. First, the record must be clear as to the incident which is alleged as error. Second, the party claiming that the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, that party must prove that a substantial right has been denied him and as a result he has been materially prejudiced.

Id. (citing Bradley v. State, 635 P.2d 1161, 1164 (Wyo.1981)).

The first prong of our plain error test is satisfied because the challenged testimony of all three witnesses is preserved in the trial transcript included in the record before us. Cook's brief articulates and argues a different standard of review, but we may discern from it that he believes the challenged testimony was admitted in violation of our pronouncement that an expert witness may not vouch for the truthfuiness of another witness's testimony. Lessard v. State, 719 P.2d 227, 233 (Wyo.1986). If substantiated, that violation would satisfy the second prong of our test. We will examine the contested testimony of each expert witness separately.

Deputy Stensaas testified that when conducting an investigation, he observes the demeanor of individuals to evaluate their credibility. The deputy went on to relate the details of AE's allegations against Cook. In closing arguments, the prosecutor referred to Deputy Stensaas' training and experience in a way that Cook contends was meant to bolster AE's testimony. We have closely examined the deputy's testimony and found no instances where he offered an opinion or conclusion about whether AE had been molested or whether her story was credible. The deputy merely explained some of the procedures for interviewing alleged victims of sexual abuse.

AE's physician testified that when interviewing alleged victims of sexual abuse, he observes their behavior to "develop an impression from the story that the patient tells us." He also repeated AE's accusations against Cook. Cook argues that the doctor vouched for AE's credibility during the following exchange on direct examination:

Q: In your ﬁraining, practice and experience, how many children victims would you estimate you've examined?
A: I think that I've examined three.
Q: Is [AE] one of those three?
A: Yes.

Taken out of context, the doctor's testimony might support an argument that he conveyed to the jury a conclusion that AE was indeed a victim of sexual abuse. Viewed in its proper context, however, the testimony belies that theory. Both before and after the exchange reported above, the prosecutor spoke exclusively of "alleged victims of sexual abuse" or "victims of alleged sexual abuse." After reviewing all of the doctor's testimony, we are convinced that he was speaking of alleged victims of abuse, and included AE in that category.

AE's psychologist testified that AE "didn't seem programmed or rehearsed in any way." She further testified "It is my opinion and my diagnosis that [AE] is a victim of sexual abuse." On cross-examination, the psychologist testified that her diagnosis depended on AE's statements to her, and that absent those statements, she could not have concluded that AE had been sexually abused. Cook argues that by admitting that she relied on AE's statements in reaching a diagnosis, the psychologist vouched for the truthfulness of those statements.

Because the psychologist did offer an opinion that AE had been a victim of abuse, we must look at her testimony to determine whether it 1) assisted the jury in understanding some aspect of the victim's behavior; and 2) did not include any comment on the vice-tim's truthfulness or credibility. Zabel v. State, 765 P.2d 357, 361 (Wyo.1988). In its full context, the first part of the psychologist's testimony that Cook challenges is:

She presented pretty-what we call a flat affect, which means that if these kids aren't acting out angry a lot, they're pretty calm. They're kind of without emotion when they talk about it. Because if-you know, if they don't fall apart, they've found a way to kind of live with it and go to school and not ery every day and keep a lid on things so that they-they're emotionless. They're not mad. They're not sad. They're not angry. They're just kind of telling me the facts.
She didn't seem programmed or rehearsed in any way that-with programming it's kind of like you plug in the tape and they tell the whole thing, the whole story from beginning to end. This is more, you know, I asked her a question. She answered. I asked her a question. She answers. It's not a lot of, you know, and I say this and I say this and I say this and I say this, although she's certainly told her story enough to quite a few people by now.

Here, the psychologist differentiated between behavior characteristic of a child who had been abused, and that characteristic of a child who was fabricating, and reported that AE's behavior was consistent with the former,. We have held testimony explaining that an alleged victim's behavior is typical of a particular type or class of victim is admissible to explain the behavior and is not an impermissible comment on the victim's eredi-bility. Griego v. State, 761 P.2d 973, 979 (Wyo.1988); Scadden v. State, 732 P.2d 1036, 1046-47 (Wyo.1987). The testimony quoted above, therefore, was properly admitted.

The second part of the psychologist's testimony of which Cook complains was also free from plain error. Cook argues that by admitting reliance on AE's statements, the psychologist vouched for their truthfulness. We disagree. The psychologist simply acknowledged that her diagnosis was based on all of the information available to her, much of which came directly from AE. Essentially, she admitted that the reliability of her diagnosis rested on AE's truthfulness. That left the issue of credibility entirely with the jury, where it belongs.

The challenged testimony transgressed no clear and unequivocal rule. Because Cook cannot satisfy the second prong of our plain error test, we hold that the court did not commit plain error in admitting it.

Prior Consistent Statements

In his second issue, Cook scores the trial court for allowing TC and Deputy Sten-saas to testify about prior consistent statements by AFE after she had a reason to fabricate them. On cross-examination of AE;, defense counsel challenged her testimony by alleging discrepancies between her testimony and her earlier statements to TC and Deputy Stensaas; by implying that AE made up her allegations of abuse so she could go live with her grandmother; and by eliciting testimony that AE talked with TC and the prosecutor about her expected testimony. After AE testified, both TC and Deputy Stensaas testified about prior statements by AE that corroborated her testimony.

Because defense counsel did not object to the testimony at trial, we will apply our plain error standard of review which we explained above. The first element of that test is again satisfied because the testimony complained of is clearly preserved in the record. To satisfy the second prong, Cook asserts that the testimony violated W.R.E. 801(d)(1)(B), which provides:

(d) Statements which are not hearsay. -A statement is not hearsay if;
(1) Prior Statement by Witness.-The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive....

We have said that Rule 801(d)(1)(B) "had two express conditions for the admissibility of prior consistent statements: 1) The prior statement must be 'consistent with his testimony'; and 2) there must be an 'express or implied charge ... of recent fabrication or improper influence or motive." Makinen v. State, 737 P.2d 345, 349 (Wyo.1987), We expressly stated in Makinen that the rule was not limited to statements made before the advent of an allegedly improper motive, as Cook suggests here. Id. We recently affirmed that position in Dike v. State, 990 P.2d 1012, 1024 (Wyo.1999).

Cook contends that our holding in Makinen has been superseded by the United States Supreme Court's opinion in Tome v. United States, 513 U.S. 150, 115 S.Ct. 696, 130 LEd.2d 574 (1995). In Tome, the Supreme Court held that F.R.E. 801(d)(1)(B), after which our rule is patterned, allows only those prior consistent statements made prior to the alleged fabrication or improper influ ence or motive. Tome, 13 U.S. at 159-60, 115 S.Ct. at 702, 130 L.Ed.2d at 583-84. We acknowledge that federal court interpretations of federal rules are highly persuasive in our interpretations of analogous Wyoming rules. Kimbley v. City of Green River, 642 P.2d 443, 445 n. 3 (Wyo.1982). However, the decision in Tome was not based on a constitutional issue and is, therefore, not binding upon this court, which is the final authority on this state's court rules.

This court determined in Dike that post-motive consistent statements are admissible for the purpose of evaluating the credibility of the declarant who testifies at trial,. We further held that the defendant is entitled to a limiting instruction to that effect, if he or she so requests Id. at 1024. We hold, therefore, that the testimony in question did not violate W.R.E. 801(d)(1)(B). Without a rule violation, Cook cannot satisfy the second prong of our test for plain error, and his claim on this issue must fail.

Violation of Sequestration Order

Cook next argues that the trial court erred in allowing TC to testify after she allegedly learned the content of AE's testimony, in violation of the court's sequestration order. Sequestration is authorized by W.R.E. 615, which provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may enter the order on its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (8) a person whose presence is shown by a party to be essential to the presentation of his cause.

Violations of sequestration orders, and the sanctions therefor, are left to the sound discretion of the trial court, and we will reverse only if that discretion is abused. Madrid v. State, 910 P.2d 1340, 1345 (Wyo.1996). A search for an abuse of discretion calls upon this court "to determine whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious." Vaughn v. State, 962 P.2d 149, 152 (Wyo.1998).

Here, the court entered a sequestration order at defense counsel's request, prior to the attorneys' opening statements. Cook contends the order was violated by a friend of TC who was in the courtroom while AE testified. The friend reported that she spoke with TC twice during breaks outside the court building and told TC "that [AE] did a very good job on the stand and that she said what she needed to say here." The friend acknowledged that she was aware of the sequestration order. After hearing the friend's testimony about her conversations with TC, the trial court said, "Okay. Well, there may have been a technical violation of the order, but it doesn't seem to me the spirit of the order was violated in any way." Cook argues that the conversations between TC and her friend violated the sequestration order and allowed TC to conform her testimony to AE's. Therefore, he reasons, the trial court should not have allowed TC to testify. '

The trial court directed that witnesses would be excluded from the courtroom and were forbidden to discuss their testimony with anyone except the attorneys until the trial ended. The State contends that there was no violation of the sequestration order because TC was not in the courtroom while AE testified and did not discuss her own testimony with her friend. While that argument adheres to the letter of the court's order, we find it unsatisfying. Had TC's friend reported the content of AE's testimony, the purpose of sequestration would be defeated. In such a case, the State would be hard pressed to convince us that no misconduct had cccurred.

Assuming, arguendo, that the conversations between TC and her friend did violate the sequestration order, the State argues that the trial court did not abuse its discretion by refusing to impose sanctions. We agree. The scope of the alleged transgression was very limited, and the court could have reasonably concluded that it did not present a threat that TC would conform her testimony to AE's. In addition, Cook did not make a timely request for sanctions, so he is in a poor position to criticize the court for not imposing any. We hold the trial court did not abuse its discretion in allowing TC to testify despite the alleged violation of the sequestration order.

Ineffective Assistance of Counsel

In his final assignment of error, Cook contends he was denied effective assistance of counsel. Our standard of review for reviewing claims of ineffective assistance of counsel is well established:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Mapp v. State, 953 P.2d 140, 143 (Wyo.1998) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). In addition, we invoke a strong presumption that counsel rendered adequate and reasonable assistance making all decisions within the bounds of reasonable professional judgment. Jackson v. State, 902 P.2d 1292, 1295 (Wyo.1995).

Cook points to five instances in which he claims his trial counsel was ineffective. We will examine each instance separately.

Bill of particulars

First, Cook claims his trial counsel failed to ascertain the precise date of the offense charged in Count I of the eriminal information. That count alleged that Cook committed the offense "on an unknown date in approximately March, 1996." He contends that had he known the date of the offense, he might have been able to produce an alibi, and if the State had been unable to specify a date, the count could have been dismissed as insufficiently definite to permit him to prepare a defense. He therefore concludes that his counsel was remiss in failing to move for a bill of particulars.

Cook's argument is singularly unpersuasive in light of our decision in Vernier v. State, 909 P.2d 1344, 1351 (Wyo.1996). In Vernier, the defendant was charged with two counts of indecent liberties and one count of second degree sexual assault with a child. One count gave a sixty-day time period within which the offense was alleged to have occurred, and the two other counts provided ninety-day periods. We said there that in cases of sexual abuse of a child "the allegation of a general time period in lieu of a specific date is sufficient to give the defendant notice and allow him to adequately prepare a defense." Id. The motions Cook suggests on appeal would have been unavailing, and we have held that defense counsel is not ineffective for refusing to pursue motions that cannot succeed. Beadles v. State, 984 P.2d 1083, 1086 (Wyo.1999); Bloomquist v. State, 914 P.2d 812, 821 (Wyo.1996).

Victim's statement

Cook next finds fault with his counsel's failure to introduce into evidence the signed statement AE gave to Deputy Sten-saas. He alleges that the statement deviates from AE's trial testimony and would, therefore, have been helpful to show inconsistencies in her story. The State responds that AE's written statement was not inconsistent with her testimony, and keeping it out of the jury's hands was a legitimate trial tactic on the part of Cook's attorney. The State further points out that we cannot fully evaluate Cook's claim because he neglected to have the statement included in the record on appeal.

At trial, AE testified that the alleged offense of March 1996 occurred in her bedroom. On cross-examination, defense counsel attempted to impeach AE using her written statement, in which she stated that the first time Cook molested her was in the bedroom Cook and TC shared. AFE explained that the first episode described in her written statement was not the March 1996 episode about which she had testified. We surmise that defense counsel, having learned that the statement was not useful to impeach AE's testimony, elected not to move for its admission. We will not fault counsel for not providing the jury with the victim's handwritten statement accusing his client.

Statement by the court

In his third assertion of ineffective assistance, Cook argues that his trial counsel failed to object to a statement by the court, which he claims instructed the jury to decide the case based on emotion rather than the evidence. The statement occurred immediately prior to voir dire when the court shared two anecdotes with the venire and then said:

Now, I tell you those stories for a purpose. One of them is they're mildly amusing, but the other one is I want you to understand that while what we're doing here is serious business, that doesn't mean that we want you to be automatons or lose your sinee [sic] of humanity. The humanity that the jurors bring to the process is one of the things that we look for precisely, so we want you to laugh at the things funny and ery at the things sad and express that full range of human emotions.

Cook styles that comment as a jury instruction and claims that it conflicts with the court's later instruction to the jury that they must not "be governed by sympathy, prejudice or public opinion." - He contends that when two inconsistent instructions are given and one of them is improper, we must order a new trial. State v. Eldredge, 45 Wyo. 488, 21 P.2d 545, 547 (Wyo.1933). Cook concludes that his defense counsel was remiss in failing to object to the conflicting instructions and, therefore, rendered ineffective assistance.

The State counters by arguing that the court's statement was not a jury instruction, nor did it invite the jury to decide the case based on emotion rather than evidence, and defense counsel was justified in letting it pass without objection. We agree. In context, the court's statement clearly admonished the venire to be candid and genuine in their responses to voir dire inquiries. The court did not err by so admonishing the panel, nor did defense counsel render ineffective assistance by not objecting.

Jury Instruction No. 2

Cook next scores his trial counsel for not objecting to a portion of Jury Instruction No. 2 which he now contends "suggested that if the jury did not reach a verdict it was likely either unfair or unreasonable." The challenged language reads: "If every juror is fair and reasonable, a jury can almost always agree on a verdict." To place that sentence in its proper context we present the entire instruction:

INSTRUCTION NO. 2
I will now instruct you on the law you must apply. It is your duty to follow the law.
The law forbids you to be governed by sympathy, prejudice or public opinion. You must consider the evidence, apply the law as instructed, and reach a just verdict regardless of the consequences.
Your attitude as you begin deliberation is important. It is not useful for any juror to announce a firm decision upon entering the jury room. The verdict, which expresses your collective judgment, is important, not the individual opinions you may have as you begin. You should decide only after free and full discussion of the evidence and upon careful and thoughtful deliberation.
During deliberation each of you should state your position and explain your reasoning. You should consider the position and reasoning offered by others. In the course of discussions do not hesitate to reexamine your views; you do not have to change your mind because others disagree, but you should keep an open mind.
When it comes time to vote, do so according to your best judgment, applying the law as instructed to the facts. Always keep in mind that you are not partisans or advocates, but jurors. If every juror is fair and reasonable, a jury can almost always agree on a verdict.
You are the exclusive arbiters of the facts and of the worth of the evidence. In considering the evidence presented you may draw reasonable inferences and conclusions from it based upon your general knowledge, obseryations and experience in the affairs of life. In deciding what testimony you believe, you should take into consideration all the cireumstances of the case and the factors I discussed in my opening instruction.
I have not intentionally emphasized any part of these instructions, even though I may have stated some of them in varying ways. You are not to single out a certain instruction or part of an instruction and ignore the rest. You must consider all the instructions as a whole and regard each in the light of all the others. The order in which the instructions are given has no significance.

(Emphasis added.) The first emphasized phrase instructed the jurors that they were not required to agree with each other or surrender honestly held opinions. The see-ond emphasized phrase instructed each juror to vote according to his or her best judgment. The final emphasized phrase, as applied to the issue here, forbids jurors from fixing on the phrase to which Cook objects and ignoring the rest of the instruction. Viewed within the context of the entire instruction, the phrase Cook points to is a permissible comment based on the court's observation of past juries and casts no aspersions on a jury that might be unable to reach a verdict. Because the instruction was proper, defense counsel did not render ineffective assistance by failing to object to it.

Closing arguments

In his final claim of ineffective assistance, Cook contends his trial counsel should have objected to the following two portions of the State's closing argument: _

I submit to you, ladies and gentlemen of the jury, that in any household, whether it's the Cook household, my household, or your own household, people come and go all of the time. And it's certainly not unbelievable that [AE] and Joseph Cook at some point in time would not have been alone in that house together.

and

Now, [defense counsel] asked [the psychologist] a lot of questions, such as isn't it possible that your conclusion could be affected by the way she had been interviewed by someone else. And [the psychologist] said, well, sure, that's possible.
He asked other questions along that same vein, which I can't specifically recall, but you will recall that there was several questions to [the psychologist] that, Would it be possible if? Wouldn't it be possible if? And each one she answered yes, it would be possible.
Well, it's possible the sun may not come up tomorrow. It's not very probable, but it's possible. And so when you evaluate [the psychologist's] testimony, keep in mind that at the time she interviewed [AE] and formed the conclusion that she was a sexually abused child, she was using all of her tools, all of her expertise, all of her training as a licensed psychologist in the state of Wyoming to come up with her conclusion, and her conclusion was [AE] was sexually abused.

Cook argues that both of the above excerpts suggest a burden of proof lower than proof ° beyond a reasonable doubt.

In the first excerpt, the prosecutor was addressing the testimony of Cook's oldest son and the son's friend. Both testified that they had never seen Cook and AE alone together or coming out of a bedroom together. In light of that testimony, the State was justified in pointing out that a crime is no less likely to have occurred simply because the defense can produce two witnesses who did not see it happen. The second excerpt was a similarly appropriate comment on the evidence. The prosecutor's argument was directed at showing that the psychologist's diagnosis of abuse was reliable, despite defense counsel's attempt on cross-examination to show that it was flawed. The prosecutor made no reference to the burden of proof on the ultimate question of Cook's guilt or innocence. He merely was arguing that the psychologist's testimony was reliable.

Because the State's closing argument consisted of permissible comments on the evidence presented, defense counsel did not render ineffective assistance in electing not to object.

We hold that all of Cook's claims on appeal are without merit, and we affirm his conviec-tions in all respects.

      . Wyo. Stat, Ann. § 14-3-105(a) (Michie Cum. Supp.1996) reads:
      (a) Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony. Except as provided by subsection (b) of this section, a person convicted under this section shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both.