author: HILL, Chief Justice.

text:
    2003 WY 56
    William WHEATON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-6.
    Supreme Court of Wyoming.
    May 1, 2003.

      Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Assistant Appellate Counsel, Representing Appellant. Argument by Tina Kerin.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Kimberly A. Baker; Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Shawn L. Barlow, Student Director, Representing Appellee. Argument Mr. Barlow.
    Before HILL, C.J., and GOLDEN, LEHMAN , and VOIGT, JJ.

       Chief Justice at time of oral argument.
      Judge Terry Rogers heard oral arguments in this matter, and the case was originally assigned to him on February 20, 2002 for the rendering of a proffered majority opinion. This case was reassigned to Chief Justice Hill on January 3, 2003. Judge Rogers did not take part in this decision.

   HILL, Chief Justice.

[T1] Appellant, William Wheaton (Whea-ton), appeals from the judgment and sentence finding him guilty of causing bodily injury to a peace officer engaged in the lawful performance of his duties, and property destruction. Wheaton contends that the State engaged in misconduct when it utilized the results of a blood alcohol test which was accomplished without his consent, and that the blood test was the result of an unreasonable search and seizure. Wheaton also asserts that his arrest was unlawful and that the district court erred in instructing the Jury.

[T2] We will affirm.

ISSUES

[T3] Wheaton poses the issues as follows:

I. Did the prosecutors commit prosecuto-rial misconduct when they utilized blood alcohol levels of [Wheaton] obtained without his consent?
II. Were [Wheaton's] rights, to be free from unreasonable search and seizure and to due process of law, violated by the obtaining of his blood aleohol level without his consent?
III. Was [Wheaton's] arrest unlawfal?
IV. Did the trial court err in refusing [Wheaton's] proffered jury instruction regarding whether the police officer was engaged in the lawful performance of his duties?

The State outlines the issues somewhat differently:

I. Did the State commit prosecutorial misconduct when evidence of [Wheaton's] blood alcohol content was introduced at trial and reference to this evidence was made in closing argument?
II. Did the State violate [Wheaton's] constitutional rights against unreasonable searches and seizures and to due process of law when it obtained a sample of [Whea-ton's] blood?
III. Did Officer Rose have reasonable and probable grounds to believe that [Wheaton] had been driving while under the influence and therefore lawfully arrest [him]?
IV. Did the trial court err when it refused to give a jury instruction relating to resisting arrest?

FACTS

[T4] On January 25, 2000, Rawlins Police Officer Michael Rose was dispatched to the scene of an accident. There were two vehicles at the scene, a pickup truck that was off the road and up against a fence, and a van that appeared to be in use to pull the pickup back onto the roadway. There were two men at the scene, Wheaton and his friend, Alexander Orloff (Orloff). The pickup belonged to Wheaton's girlfriend and the van belonged to Orloff. Officer Rose asked Wheaton if he had been driving the pickup and he responded that he had.

[T5] Rose detected the smell of alcohol emanating from Wheaton and observed that he had poor balance, slurred speech, and was "emotional." Officer Rose could tell that Or-loff had been drinking as well. Because he was confronted with two intoxicated men, Rose called for backup police support and, soon after his call, the Rawlins Chief of Police and two other Rawlins police officers arrived on the scene. Officer Rose again asked Wheaton if he had been driving the pickup and Wheaton pointed to his dog. The dog was loose and running around the seene of the accident. Rose again asked Wheaton who was driving the pickup, and this time Wheaton pointed to the Rawlings Police Chief. Based upon Wheaton's initial admission that he had been driving the pickup which belonged to his girlfriend, the fact that there were two people present and two vehicles, the fact that Wheaton was obviously intoxicated, and Wheaton's refusal to perform field sobriety maneuvers or do a breathalyzer test (Alcosensor), Officer Rose determined that Wheaton should be arrested for driving while under the influence (DWUI).

[16] After being handcuffed, Wheaton became combative when Officer Rose attempted to do a pat down search on Wheaton before placing him in the police car. It took two police officers to complete the pat down search and get Wheaton into the police car. Wheaton expressed concern about his dog and Officer Rose told him he would call animal control to have the dog picked up. With Wheaton in the back seat of Officer Rose's patrol car, the police officers turned their attention to Orloff.

[T7] At this point, Wheaton, who was lying on the back seat of the patrol car, began kicking the right rear window of the vehicle. Wheaton also was screaming that the police were going to kill his dog. In his testimony at trial, Wheaton testified that Officer Rose threatened to shoot his dog and/or send it to the pound to be put to sleep. Officer Rose denied making any such threats and another police officer corroborated that testimony. An audio/video tape made at the seene did not reveal any such threat. Orloff did corroborate Wheaton's testimony in this regard. In any event, Wheaton's dog was taken to the pound and he was able to get it back the day after his arrest, which was what Officer Rose testified that he told Wheaton would happen.

[48] Wheaton continued kicking the patrol car's rear window until it finally shattered. Wheaton was placed in leg chains, his feet were secured to the floor of the patrol car, and he was then driven to the county jail. Because of the difficulties at the accident seene, two deputy county sheriffs and a state trooper were called to assist, and they followed Officer Rose to the county jail to help him with the combative Wheaton. Four police officers, including Officer Rose, were involved in moving Wheaton from the back seat of Rose's car and into the jail. Once out of the patrol car, Wheaton sereamed out Officer Rose's name ("that f-ing Rose") and then reared backwards striking Rose in the forehead with the back of his head. Rose suffered serious injuries as a result of that attack. Wyo. Stat. Ann. § 6-5-204 (Lexis-Nexis 2001) (emphasis added) provides:

§ 6-5-204. Interference with peace officer; disarming peace officer; penalties.
(a) A person commits a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both, if he knowingly obstructs, impedes or interferes with or resists arrest by a peace officer while engaged in the lawful performance of his official duties.
(b) A person who intentionally and knowingly causes or attempts to cause bodily injury to a peace officer engaged in the lawful performance of his official duties is guilty of a felony punishable by imprisonment for not more than ten (10) years.
(c) A person who intentionally and knowingly disarms a peace officer of his firearm while that peace officer is engaged in the lawful performance of his official duties is guilty of a felony punishable by imprisonment for not more than five (5) years.

[T9] Wheaton also caused significant damage to Officer Rose's police car, including a broken window and window run channel, and a torn fabric head liner, at a total cost of $1,489.27. Wyo. Stat. Ann. § 6-3-201 (Lexis Nexis 2001) (emphasis added) provides:

§ 6-3-201. Property destruction and defacement; grading; penalties; aggregated costs or values.
(a) A person is guilty of property destruction and defacement if he knowingly defaces, injures or destroys property of another without the owner's consent.
(b) Property destruction and defacement is:
(i) A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the cost of restoring injured property or the value of the property if destroyed is less than five hundred dollars ($500.00);
(ii) Repealed by Laws 1985, ch. 44, § 2.
(iii) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the cost of restoring injured property or the value of the property if destroyed is five hundred dollars ($500.00) or more.
(c) If a series of injuries results from a single continuing course of conduct, a single violation of this section may be charged and penalties imposed based upon the aggregate cost or value of the property injured or destroyed.

[T10] A focal point of Wheaton's defense was that he was not driving at the time he was arrested, so there did not exist probable cause to arrest him for DWUI. Indeed, the record is clear that Wheaton was not actually driving at the time Officer Rose came upon the scene of the accident. Wyo. Stat,. Ann. § 81-5-233 (LexisNexis Supp.2002) (emphasis added):

§ 31-5-283. Driving or having control of vehicle while under influence of intoxicating liquor or controlled substances; penalties.
(a) As used in this section:
(1) "Aleohol concentration" means:
(A) The number of grams of alcohol per one hundred (100) milliliters of blood;
(B) The number of grams of aleohol per two hundred ten (210) liters of breath; or
(C) The number of grams of alcohol per seventy-five (75) milliliters of urine.
(i) "Controlled substance" includes:
(A) Any drug or substance defined by W.S. 35-7-1002(a)iv);
(B) Any glue, aerosol or other toxic vapor which when intentionally inhaled or sniffed results in impairment of an individual's ability to drive safely.
(iii) "Conviction" means as defined in W.S. 81-7-102(a)(xi);
(iv) "Driver's license" means as defined in W.S. 81-7-102(a)(xxv) and includes nonresident operating privileges as defined in W.S. 81-7-102(a)(xxx);
(v) "Other law prohibiting driving while under the influence" means a statute of another state, the United States or a territory or district of the United States or an ordinance of a governmental entity of this or another state or of an Indian tribe which prohibits driving while under the influence of intoxicating liquor, alcohol, controlled substances or drugs.
(b) No person shall drive or have actual physical control of any vehicle within this state if the person:
(i) Has an alcohol concentration of eight one-hundredths of one percent (0.08%) or more; or
(i) To a degree which renders him incapable of safely driving:
(A) Is under the influence of alcohol;
(B) Is under the influence of a controlled substance; or
(C) Is under the influence of a combination of any of the elements named in subparagraphs (A) and (B) of this paragraph.
(c) Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or being in actual physical control of a vehicle while under the influence of aleohol, the amount of aleohol in the person's blood at the time alleged as shown by chemical analysis of the person's blood, urine, breath, or other bodily substance shall give rise to the following presumptions:
(i) If there was at that time an alcohol concentration of five one-hundredths of one percent (0.05%) or less, it shall be presumed that the person was not under the influence of alcohol;
(i) If there was at that time an alcohol concentration of more than five one-hundredths of one percent (0.05%) and less than eight one-hundredths of one percent (0.08%), that fact shall not give rise to any presumption that the person was or was not under the influence of alcohol, but it may be considered with other competent evidence in determining whether the person was under the influence of alcohol to a degree which renders him incapable of safely driving a motor vehicle.
(d) Subsection (c) of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcohol, including tests obtained more than three (3) hours after the alleged violation. The fact that any person charged with a violation of subsection (b) of this section is or has been entitled to use the controlled substance under the laws of this state shall not constitute a defense against any charge under subsection (b) of this section.
(e) Exeept as provided in subsection (h) of this section, a person convicted of violating this section is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both. On a second conviction within five (5) years after a conviction for a violation of this section or other law prohibiting driving while under the influence, he shall be punished by imprisonment for not less than seven (7) days nor more than six (6) months and shall not be eligible for probation or suspension of sentence or release on any other basis until he has served at least seven (7) days in jail. In addition, the person may be fined not less than two hundred dollars ($200.00) nor more than seven hundred fifty dollars ($750.00). On a third or subsequent conviction within five (5) years after a conviction for a violation of this section or other law prohibiting driving while under the influence, he shall be punished by imprisonment for not less than thirty (80) days nor more than six (6) months and shall not be eligible for probation or suspension of sentence or release on any other basis until he has served at least thirty (30) days in jail. The court, after consultation with the sheriff, may order the person to undergo outpatient alcohol or substance abuse treatment during any mandatory period of incarceration. The minimum period of imprisonment for a third or subsequent violation shall be mandatory, but the court may suspend up to fifteen (15) days of the mandatory period of imprisonment if, subsequent to the date of the current violation, the offender completes an inpatient treatment program approved by the court. In addition, the person may be fined not less than seven hundred fifty dollars ($750.00) nor more than three thousand dollars ($3,000.00). The judge may suspend part or all of the discretionary portion of an imprisonment sentence under this subsection and place the defendant on probation on condition that the defendant pursues and completes an alcohol education or treatment program as prescribed by the judge. Notwithstanding any other provision of law, the term of probation imposed by a judge under this section may exceed the maximum term of imprisonment established for the offense under this subsection provided the term of probation together with any extension thereof, shall in no case exceed three (8) years.
(f) Any person convicted under this seetion or a municipal ordinance which substantially conforms to the provisions of this section shall, in addition to the penalty imposed, have his driver's license suspended or revoked pursuant to W.S. 81-7-127 or 31-7-128. The court shall forward to the department a copy of the record pertaining to disposition of the arrest or citation.
(g) The court may, upon pronouncement of any jail sentence under subsection (e) of this section, provide in the sentence that the defendant may be permitted, if he is employed or enrolled in school and can continue his employment or education, to continue such employment or education for not more than the time necessary as certified by his employer or school administrator, and the remaining day, days or parts of days shall be spent in jail until the sentence is served. He shall be allowed out of jail only long enough to complete his actual hours of employment or education and a reasonable time to travel to and from his place of employment or school. Unless the defendant is indigent, the court shall require him as a condition of special treatment under this subsection to pay a reasonable amount for room and board as determined by the sheriff.
(h) As used in this subsection, "serious bodily injury" means bodily injury which creates a reasonable likelihood of death or which causes miscarriage or serious permanent disfigurement or protracted loss or impairment of any bodily member or organ. Whoever causes serious bodily injury to another person resulting from the violation of this section shall be punished upon conviction as follows:
(i) If not subject to the penalty under paragraph (i) of this subsection, by a fine of not less than two thousand dollars ($2,000.00) nor more than five thousand dollars ($5,000.00), imprisonment for not less than six (6) months nor more than one (1) year, or both;
(i) If previously convicted and sentenced under this subsection, or any other law substantially conforming to the provisions of this subsection, by imprisonment for not more than twenty (20) years; and
(iii) Any person convicted under this subsection shall have his driver's license revoked as provided in W.S. 31-7-127.
(j) Any person charged under this seetion or a municipal ordinance which substantially conforms to the provisions of this section shall be prosecuted under this seetion or the ordinance and not under a reduced charge or dismissed unless the prosecuting attorney in open court moves or files a statement to reduce the charge or dismiss, with supporting facts, stating that there is insufficient evidence to sustain the charge.
(k) Chemical analysis of a person's blood, breath or urine to determine alcohol concentration or controlled substance content shall be performed in accordance with W.S. 81-6-105(a).

[¶11] Wyo. Stat. Ann. § 81-6-102(d) (LexisNexis Supp.2002) provides: "If a person under arrest refuses upon the request of a peace officer to submit to a chemical test designated by the agency employing the peace officer as provided in subsection (a) of this section, none shall be given except in cases where serious bodily injury or death has resulted." Although Wheaton refused to submit to a chemical test, and there was no apparent basis for the "serious bodily injury or death" exception, Wheaton was subjected to a blood test which revealed his blood alcohol concentration to be .19%. A Rawlins police officer testified that it was "normal practice to get a blood alcohol level in any assault case where alcohol may be a factor." There was no objection made to the admission of the blood aleohol test. Wheaton was charged with DWUI, but at his trial in the county (now circuit) court on that charge, the blood test evidence was suppressed on the basis of § 31-6-102(d). Ultimately, Wheaton was acquitted of the DWUI charge.

Wheaton asks that we take judicial notice of a transeript of the proceedings from his DWUI trial in the Circuit Court. Wheaton offers no satisfactory explanation why the transcript was not offered to the trial court or why no effort was made to supplement the record on appeal through use of the applicable rules of appellate procedure. More importantly, we have carefully examined that transcript and determined that it is of no material assistance to this Court in resolving the issues presented by the appeal. Therefore, we decline to take judicial notice of it. See 37 Gambling Devices (Cheyenne Elks Club and Cheyenne Music and Vending, Inc.) v. State, 694 P.2d 711, 716-17 (Wyo.1985).

DISCUSSION

Prosecutorial Misconduct and Reasonableness of Search

[T13] Wheaton contends that the prose-eutor committed an act of misconduct by advancing the admission of the blood alcohol test done on Wheaton. At trial Wheaton made no objection to the admission of the blood aleohol test. Wheaton's argument is based on a theory that Wyo. Stat. Ann. § 31-6-102(d) prohibited the use of a blood aleohol test because Wheaton refused the test and "serious bodily injury or death" were not a factor in his case. The record in this case is clear, without need for reference to the proceedings at Wheaton's DWUI trial, that the blood alcohol test was not admitted at that trial because Wheaton refused the test and, thus, it could not be used in his DWUI trial. However, § 31-6-102(d) applies only to a DWUI situation and, thus, it does not answer the question of whether or not it was admissible under the cireumstances of the instant charges in this trial.

[T14] Whether or not the blood test should have been admitted in this case was not called to the trial court's attention and, thus, that issue was not explored below. Wheaton contends that the State made much ado about his intoxication, and that is essentially correct, though we will not detail each and every such reference made by the State. For purposes of our analysis here, we are more concerned with the use Wheaton made of that evidence. During voir dire, Whea-ton's attorney emphasized that his client had been drinking, and in opening statement emphasized that he had been "drinking quite a bit." The record is replete with testimony concerning Wheaton's state of intoxication, including his admission on cross-examination that his blood aleohol was .19%. It is readily evident that a part of Wheaton's trial strategy was that he was intoxicated and the unlawful actions of the police pushed him into a rage that justified his actions. A third part of his strategy was one he referred to as the "blue wall," i.e., that the police were unified in telling lies to justify their actions.

[115] Because no objection was made to the admission of the blood alcohol test, Wheaton asks that we review this asserted error under the plain error doctrine. Plain error exists when: (1) the record is clear about the incident alleged as error; (2) there was a transgression of a clear and unequivocal rule of law; and (8) the party claiming the error was denied a substantial right which materially prejudiced him. Weidt v. State, 2002 WY 74, ¶ 14, 46 P.3d 846, ¶ 14 (Wyo.2002). The record clearly demonstrates that the blood aleohol test was admitted, but Wheaton does not, and cannot, point to a clear and unequivocal rule of law that was transgressed. The blood alcohol test was not admissible in a DWUI prosecution, but that does not necessarily prohibit its admission for another purpose. See Allen v. State, 2002 WY 48, ¶¶ 22-25, 43 P.3d 551, ¶¶ 22-25 (Wyo.2002). Wheaton was under arrest and, in addition to a DWUI charge, he was also charged with two other discrete felonies as set out above. A police officer testified that it was a policy of the Rawlins police department to obtain a blood test in cases involving assault. That policy is not fleshed out by the record, but the Fourth Amendment does not prohibit blood testing on the basis that it is inherently an unreasonable search. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 LEd.2d 908 (1966); 2 Wayne R. LaFave, Search and Seisure, § 4.1(e), at 412-18 (1996); 3 Wayne R. LaFave, Search and Seigure, § 5.3(c) at 130-45 (1996); Vitauts M. Gulbis, Annotation, Admissibility in Criminal Case of Blood-Alcohol Test where Blood was Taken Despite Defendant's Objection or Refusal to Submit to Test, 14 A.L.R.3d 690 (1982 and Supp. 2001). There is no "bright line" which sets out the limits on the taking of a blood test, but this excerpt from Professor LaFave's treatise provides guidance:

As for the taking of a blood sample from an arrested person, it is necessary under Schmerber that the test be "a reasonable one" and that it be "performed in a reasonable manner." Given the objective of determining if the defendant was intoxicated, the Court deemed the taking of the sample to be a reasonable means of accomplishing that purpose. And because the "blood was taken by a physician in a hospital environment according to acceptable medical practices," the test was performed reasonably. It is also necessary under Schmerber that there be "a clear indication that in fact [the evidence sought] will be found" as "the Fourth Amendment [forbids] any such intrusion on the mere chance that desired evidence might be obtained." Whether this "clear indication" requirement is somewhat more demanding that the usual probable cause requirement is a matter of continuing uncertainty, but it can be forcefully argued that it is. In any event, the test was met in Schmerber, for defendant's condition "suggested the required relevance and likely success of a test of petitioner's blood for alcohol." As for exigent circumstances, the Court in Schmerber concluded that while a search warrant is ordinarily required "where intrusions into the human body are concerned," no warrant was needed under the facts presented because the officer quite reasonably believed there was a need to take the test before the percentage of alcohol in the blood diminished. This means, of course, that if the purpose of the test were merely to determine the arrestee's blood type, then a search warrant would be required. Because "Schmerber viewed the seizure and separate search of the blood as a single event for Fourth Amendment purposes," exigent circumstances need exist only as to the blood removal, and if they exist no warrant is required even though the removed sample need not be immediately tested.

3 LaFave, supra, § 5.3(c) at 136-89.

[116] In this case, the record does reflect that the blood test was taken by a trained person in the county jail, rather than a doctor in a hospital, but given Wheaton's failure to further develop the record in that regard, we need not attempt to definitively answer the question of whether this test was "reasonable." Had an objection been lodged, it would have been the State's burden to clearly demonstrate the reasonableness of the test. However, we do conclude that the taking of the blood test did not violate a clear and unequivocal rule of law, for the law does allow such testing under the strictures set out above.

[117] We also note that Wheaton did not demonstrate that he was prejudiced by the admission of the blood test. Establishing the fact that he was intoxicated was a part of his trial strategy and the blood test was merely cumulative of other evidence, which clearly demonstrated that he was intoxicated. Finally, given these cireum-stances, we can only conclude that the prosecutor did not commit an act of misconduct.

Was Wheaton's Arrest Unlawful

[T18] Wheaton contends that his arrest was unlawful because Officer Rose lacked probable cause to arrest him for DWUI. We answered a virtually identical question very recently:

Kimsey contends that Officer Johnson lacked probable cause to arrest him for driving while under the influence because no one saw Kimsey actually driving his vehicle. WYDOT counters that Officer Johnson had reasonable grounds to believe that Kimsey drove his vehicle while intoxicated, giving him probable cause to arrest him.
The party who challenges whether the agency's decision was supported by sufficient evidence bears the burden of showing that it was not supported by such evidence. Smith v. State ex rel. Dep't of Transp., 11 P.3d 931, 937 (Wyo.2000). A police officer may arrest a person without a warrant if at the time of the arrest he possesses probable cause to believe that the person has committed a crime. Jandro v. State, 781 P.2d 512, 517 (Wyo.1989). Probable cause exists when, given the totality of the cireumstances, a prudent, reasonable, and cautious police officer is led to believe a crime has been committed by the person who is being arrested. Smith, 11 P.3d at 937. Probable cause by definition involves probabilities rather than certainties. Id.
After analyzing the totality of the circumstances that led up to Kimsey's arrest, we hold that Officer Johnson possessed adequate probable cause to arrest Kimsey for driving while under the influence of alcohol. It took only a few minutes for Kimsey to arrive at the Law Center after he called to inquire about the condition of his wife. Officer Johnson left the building just before Kimsey arrived, and when he returned to speak with Kimsey, he noticed the vehicle in the parking lot. When Officer Johnson asked Kimsey about the truck, Kimsey admitted that it was his and that he had driven it to the Law Center, assuring Officer Johnson that he was okay to drive. Officer Johnson told Kimsey that he thought Kimsey was too intoxicated to be driving, and Kimsey again assured Officer Johnson that he was all right to drive. When Officer Johnson asked Kimsey to perform some field sobriety tests, Kimsey asked if he could just collect his wife and promised to walk home. Officer Johnson again requested Kimsey perform sobriety tests, and Kimsey replied that he did not drive the vehicle to the Law Center and that he did not know how it got there. Kimsey next gave the explanation that maybe his wife had driven the vehicle to the Law Center.
Given the confusing nature of Kimsey's statements, along with his slurred speech, instability, and the strong odor of alcohol, Officer Johnson concluded that Kimsey was intoxicated. This conclusion, coupled with the presence of Kimsey's vehicle in the parking lot, encompass the reasonable conclusion that Kimsey was intoxicated and that he had driven his vehicle to the Law Center to check on his wife.
Kimsey asserts to this court that when he told Officer Johnson he drove to the Law Center, he meant he had received a ride to the Law Center. We find it peeu-liar that Kimsey neither offered this excuse to any of the officers on the night he was arrested, nor did he present any evi-denee at the hearing regarding the identity of the individual he claims gave him the ride.
We hold that the totality of the cireum-stances were adequate to cause a reasonable police officer to believe Kimsey had driven while under the influence of alcohol even though no one actually saw him driving the vehicle. Officer Johnson, therefore, possessed adequate probable cause to arrest Kimsey for driving while under the influence of alcohol.

Kimsey v. Wyoming Department of Transportation, 2002 WY 15, ¶¶ 15-20, 39 P.3d 425, 1115-20 (Wyo.2002); and see Adams v. State, 697 P.2d 622, 624-25 (Wyo.1985) (defendant, intoxicated and asleep in vehicle, has actual physical control of vehicle).

[T19] Without reiterating the facts and cireumstances set out in detail above, we conclude that Officer Rose had probable cause to arrest Wheaton for DWUI and, of course, the fact that he was ultimately acquitted of that charge is not an element of our analysis of the probable cause issue.

Refusal of Proffered Instruction

[¥20] The applicable standard of review is well-established: Jury instructions should inform the jurors concerning the applicable law so that they can apply that law to their findings with respect to the material facts, instructions should be written with the particular facts and legal theories of each case in mind and often differ from case to case since any one of several instructional options may be legally correct, a failure to give an instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction, and 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 circumstances under which the crime can be found to have been committed. Mueller v. State, 2001 WY 134, ¶ 9, 36 P.3d 1151, ¶ 9 (Wyo.2001). With specific regard to a defendant's "theory of the case" instruction we have held that:

Due process requires the trial court to give a correct instruction to the jury that details the defendant's theory of the case. Blakely v. State, 474 P.2d 127, 129 (Wyo.1970). The instruction must sufficiently inform the court of the defendant's theory and must be supported by competent evidence. Bouwkamp v. State, 833 P.2d 486, 490 (Wyo.1992). A theory of the case is more than a comment on the evidence that tells the jury how to consider the evidence. Ellifritz v. State, 704 P.2d 1300 (Wyo.1985). Fundamentally, the instruction must in the first instance be a proper theory of the case, or theory of defense, instruction. That is, the offered instruction must present a defense recognized by statute or case law in this jurisdiction. Bouwkamp, 833 P.2d at 490.
As Bowwkamp explained, "(theory of defense instructions are to be derived from and address criminal defenses provided for by statute or acknowledged by this court." Id. It further noted "common-law defenses are retained unless otherwise provided by this act." Id. (quoting Wyo. Stat. Ann. § 6-1-102(b)). Additionally, this Court has discussed acceptable defenses, notably in Keser v. State, 706 P.2d 263, 269 (Wyo.1985). See also 1 Paul H. Robinson, Criminal Law Defenses § 21, at 70 n. 1 (1984); 1 Charles E. Torcia, Wharton's Criminal Law § 89 (15th ed.1993).
Any competent evidence is sufficient to establish a defense theory even if it consists only of testimony of the defendant. Best v. State, 736 P.2d 739, 745 (Wyo.1987). We view the evidence in a light favorable to the accused and the accused's testimony must be taken as entirely true to determine if the evidence is competent. Duckett v. State, 966 P.2d 941, 944 (Wyo.1998). Even if the court deems the evidence to be weak, or unworthy of belief, the instruction must be given if a jury could reasonably conclude the evidence supports the defendant's position. Id. The refusal to allow an instruction requested by the defendant when due process requires the defendant's instruction be given is reversible error per se. Id.

Holloman v. State, 2002 WY 117, ¶¶ 15-17, 51 P.3d 214, ¶¶ 15-17 (Wyo.2002).

[T21] In this instance Wheaton offered the following instruction:

The law generally does not allow a person who is arrested by a police officer to resist arrest. The law does allow a person to resist arrest if the activity of the police is so provocative that resistance is understandable. After you have consideration [sic] of all the facts and cireumstances you may find the police officer was not engaged in the lawful performance of his duty if you find that the police activity is so provocative that the resistance by the Defendant was understandable.

[¶22] The district court gave the following instruction:

You are instructed that there may be situations that police activities are so provocative and resistance so understandable that it can only be concluded that the police were not engaged in the lawful performance of their official duties and that such conduct by the officer may give rise to right of self defense, i.e., a right to resist the use of excessive force.

[§¥23] The instruction given by the district court is an improvement upon the instruction offered by Wheaton and adequately conveyed to the jury his theory of the case. Best v. State, 736 P.2d 739, 745 (Wyo.1987); Roberts v. State, 711 P.2d 1131, 1133-36 (Wyo.1985). The district court did not abuse its discretion in declining to give the instruction offered by Wheaton, in favor of the instruction that it did give.

CONCLUSION

[¶24] The prosecutor did not engage in misconduct in offering Wheaton's blood aleo-hol test as evidence, and it was not plain error for the district court to allow its admission. The blood test performed by the State on Wheaton was not inherently an unreasonable search and seizure and, thus, did not violate Wheaton's constitutional rights. Officer Rose had probable cause to arrest Whea-ton for DWUI. The instructions given by the district court were adequate. The judgment and sentence of the district court are affirmed.

      . The statute has been amended since the time of Wheaton's arrest, but not in a manner that affects our disposition of this case.


source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2003 WY 58
    Todd Ivan GOMEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-56.
    Supreme Court of Wyoming.
    May 14, 2003.

      Kenneth M. Koski, State Public Defender; and Donna D. Domonkos, Appellate Counsel, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General, Representing Ap-pellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶1] Todd Gomez appeals from his conviction for aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(iv) and (b) (LexisNexis 2001). He claims prosecuto-rial misconduct occurred when the state elicited testimony concerning victim impact. He also claims error occurred when the state elicited testimony concerning a police officer's statement that sufficient evidence existed to arrest him for aggravated assault. No objection was made to either area of inquiry, and so we review the claims under our plain error standard. Finding no plain error, we affirm.

ISSUES

[¶2] Mr. Gomez presents the following issues:

ISSUE I
Whether prosecutorial misconduct occurred when the prosecutor elicited victim impact statements from Ms. Jacobsen?
ISSUE II
Whether plain error occurred when the state elicited testimony regarding an officer's belief that Mr. Gomez was guilty of aggravated assault/domestic violence?

The state phrases the issues as:

I. Whether the prosecutor committed misconduct?
II. Whether plain error occurred during Officer Baker's testimony?

FACTS

[¶3] Mr. Gomez was involved in an intimate relationship with Jadean Jacobsen for about a year. During that time, in approximately April of 2001, Ms. Jacobsen learned she was pregnant. She testified that Mr. Gomez was the father. On July 15, 2001, Mr. Gomez and Ms. Jacobsen were supposed to meet and attend church together. They missed each other and arrived separately at the church. Mr. Gomez was driving a Chevy LUV pickup, which Ms. Jacobsen stated belonged to her. The couple went into the church and sat together during the service. After church, Ms. Jacobsen went out to the parking lot while Mr. Gomez remained in the church. Ms. Jacobsen got into the pickup with the intent of taking it back from Mr. Gomez. When Mr. Gomez saw Ms. Jacobsen sitting in the pickup, he came out of the church. The testimony at trial was disputed as to what happened next. Ms. Jacobsen testified that Mr. Gomez told her to get out of the pickup and, when she refused, he physically removed her from it. She said she moved back toward the pickup and he pushed her down onto the ground. She got up and moved toward the pickup again, and he kicked her. Mr. Gomez testified that he did not push or kick Ms. Jacobsen and did not remove her from the vehicle. Rather, he stated, Ms. Jacobsen got out of the pickup and fell down as she started to walk away. Mr. Gomez was arrested and charged with aggravated assault and battery for intentionally, knowingly, or recklessly causing bodily injury to a woman he knew was pregnant. After a jury trial, he was convicted and sentenced to three to eight years in prison.

STANDARD OF REVIEW

[14] Mr. Gomez claims error occurred when the state improperly elicited inadmissible testimony at trial concerning victim impact and a police officer's statement. Because Mr. Gomez did not object in either instance, we apply the plain error standard of review. Under that standard, Mr. Gomez must show that a clear and unequivocal rule of law was violated in a clear and obvious way resulting in denial of a substantial right and material prejudice. Urbigkit v. State, 2003 WY 57, ¶ 41, 67 P.3d 1207.

DISCUSSION

A. Victim Impact Testimony

[15] At trial, the state elicited the following testimony from Ms. Jacobsen:

Q. What happened?
A. And then before I made it to the truck, I got kicked laterally on my upper leg, thigh.
Q. Okay. By whom?
A. By Todd.
Q. Did it hurt?
A. Yes. Worse than the falling.
Q. And when he pushed you down, did that hurt ?
A. Yes. It scraped, I got scraped, like the rug burn effect, the red on the hands from it, my teeth, when my face hit after my fall hit, my chin was bloody, lip area. I had chipped teeth.
Q.... You talked about your teeth being chipped?
A. Yes, sir.
Q. Which teeth were those?
A. The front four.
Q. Like top and bottom? Are they still chipped?
A. Yes. The dentist did not think it was worth doing anything to.
Q. Can you tell a difference ?
A. I could. For the longest time, it was bothering me. I tried to find another dentist and didn't make it in. It's not as bad now. I just don't-I mean, I'm not as aware of it as I was initially.
Q. Okay. Is there anything that's still bothering you ?
A. My leg. I can touch it, and it's still tender.
(Emphasis added.) Mr. Gomez claims the prosecutor committed misconduct in asking the questions highlighted in bold because they improperly elicited testimony concerning victim impact which was irrelevant, inflammatory, and prejudicial. In support of his claim, Mr. Gomez cites Justice v. State, 775 P.2d 1002, 1010-11 (Wyo.1989), for the proposition that admitting a victim's testimony as to the impact of the crime is error.

[16] We have considered the admissibility of victim impact evidence in several cases and have applied the following principles. For evidence to be admissible, it must be relevant. W.R.E. 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." W.R.E. 401. In criminal cases, " '[elvidence is always relevant if it tends to prove or disprove one of the elements of the crime charged.! " Geiger v. State, 859 P.2d 665, 667 (Wyo.1993) (quoting Grabill v. State, 621 P.2d 802, 809 (Wyo.1980)). Relevant evidence may be excluded, however, if "its probative value is substantially outweighed by the danger of unfair prejudice." W.R.E. 403.

[¶7] In holding that the victim impact testimony in Justice was admitted in error, the Court said:

It is clear that the testimony offered by the victims of this crime with respect to how it affected them in connection with their lives after the crime is absolutely irrelevant with respect to the issues before the jury. Their discussion of the impact of the erime upon them could not in any way serve to establish any of the elements of the crime of aggravated robbery. The only purpose must have been to attempt to arouse the passions of the jury.

775 P.2d at 1010. In contrast to Justice, the testimony Mr. Gomez challenges here consisted of Ms. Jacobsen's description of her injuries testimony that was relevant and necessary to prove the bodily injury element of the aggravated assault charge. Therefore, her testimony was proper unless we conclude it should have been excluded because the danger of unfair prejudice from its admission substantially outweighed its probative value. W.R.E. 403. For this Court to reach that conclusion, Mr. Gomez must demonstrate the evidence had little or no probative value and was extremely inflammatory or introduced for the purpose of inflaming the jury. (Geiger, 859 P.2d at 668. We conclude the testimony elicited from Ms. Jacobsen that it hurt to be kicked and pushed to the ground, the chipped teeth continue to bother her, and her leg is still tender was not extremely inflammatory. No plain error occurred.

B. Evidence of Officer's Statement That There Was Sufficient Evidence for Arrest

[T8] At trial, in response to the prosecutor's question, "what happened then," Brenda Baker-Collins (Officer Baker), a patrol officer, testified: "At that point, Officer Brackin ... radioed that there was enough evidence and that Mr. Gomez could be arrested for Aggravated Assault, Domestic Violence." (Emphasis added.) Mr. Gomez claims this testimony constitutes plain error because implicit in the statement is the conclusion that Officer Brackin believed Ms. Jacobsen had been assaulted. Mr. Gomez cites Whiteplume v. State, 341 P.2d 1332 (Wyo.1992), in support of his claim that testimony vouching for the credibility of the victim is inadmissible. In Whiteplume, in response to the question, "[wlhat did you do next," an officer testified, "I made the determination that she had been raped." 841 P.2d at 1339. On appeal, the Court concluded:

[Aldmission of the deputy sheriff's "rape determination" testimony undermines our judicial confidence in the jury's verdict. Consequently, we hold that a reasonable possibility exists that, had the jury not heard the deputy sheriff's "rape determination" testimony, the verdict might have been more favorable to appellant.

Id. at 1841.

[¶9] We see important distinctions between the testimony in Whiteplume and Officer Baker's testimony. Unlike the testimony in Whiteplume, Officer Baker's testimony did not involve a determination by law enforcement that Ms. Jacobsen had in fact been assaulted but showed only that there was sufficient evidence to warrant an arrest. It cannot, therefore, be accurately characterized as vouching for the truth of the victim's testimony. Moreover, under the cireum-stances of this case and in light of the evidence presented, we are not convinced a reasonable possibility exists that, absent Officer Baker's testimony, the verdict might have been more favorable to Mr. Gomez. When the record is reviewed in its entirety, Officer Baker's testimony does not stand out as anything more than factual reporting of the events leading up to Mr. Gomez's arrest. Additionally, the state presented testimony from several witnesses who arrived on the scene immediately after the confrontation between Mr. Gomez and Ms. Jacobsen. Their testimony concerning what they observed in the aftermath buttressed Ms. Jacobsen's testimony, further persuading us that, even absent Officer Baker's testimony, the verdict likely would not have been different.

[T10] Affirmed.

      . Wyo. Stat. Ann. § 6-2-502 (LexisNexis 2001) provides in pertinent part:
      (a) A person is guilty of aggravated assault and battery if he:

      (iv) Intentionally, knowingly or recklessly causes bodily injury to a woman whom he knows is pregnant.
      (b) Aggravated assault and battery is a felony punishable by imprisonment for not more than ten (10) years.


author: LEHMAN, Justice.

text:
    2003 WY 59
    Travis WILSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-259.
    Supreme Court of Wyoming.
    May 16, 2003.

      Dion J. Custis, Cheyenne, WY, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[T1] Travis Wilson (Wilson) appeals the district court's ruling on his post-sentence motion to withdraw his guilty plea. Wilson also claims he was denied effective assistance of counsel. Finding no error, we affirm.

ISSUES

[12] The issues presented by this appeal are 1) whether Wilson was denied effective assistance of counsel, and 2) whether the district court erred when it denied Wilson's post-sentence motion to withdraw his guilty plea.

FACTS

[T3] Wilson was formally charged with one count of burglary on March 28, 2001. Arraignment for this charge was held before the district court on June 28, 2001, and, pursuant to a plea agreement, Wilson entered a guilty plea. On August 28, 2001, Wilson was sentenced to four to seven years at the Wyoming State Penitentiary. Further, the district court ordered that Wilson be considered for participation in the Youthful Offender Boot Camp.

[T4] On February 7, 2002, Wilson filed a motion to withdraw guilty plea alleging that his guilty plea was involuntary and the product of ineffective assistance of counsel. After hearing, this motion was denied by the district court.

STANDARD OF REVIEW

[15] We recently reiterated in Herrera v. State, 2003 WY 25, ¶ 9, 64 P.3d 724, ¶ 9 (Wyo.2003), that the standard for withdrawing a plea of guilty after sentencing is governed by W.R.Cr.P. 82(d) and that, in such a situation, a guilty plea may be set aside "only to correct manifest injustice." Moreover, under the applicable abuse of discretion standard, we determine whether the trial court could reasonably conclude as it did and whether any part of its ruling was arbitrary and capricious. Wagstaff v. Sublette County Bd. of County Comm'rs, 2002 WY 123, ¶ 27, 53 P.3d 79, ¶ 27 (Wyo.2002).

[¶6] We also recently recited the standard of review applicable to assertions of ineffective assistance of counsel in Kearns v. State, 2002 WY 97, ¶ 20, 48 P.3d 1090, ¶ 20 (Wyo.2002) (quoting 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.

DISCUSSION

[17] Wilson asserts that his counsel demonstrated deficient performance by failing to correctly advise him and by failing to allow Wilson ample time to decide how he should plead. Specifically, Wilson complains that he was only allowed to speak with his counsel on one occasion regarding his defense and plea and that this meeting took place immediately prior to his arraignment. According to Wilson, his intent was to plead not guilty. However, due to heated conversation and debate with his counsel and because he was advised that if he pled guilty he would receive four months of boot camp but if he pled not guilty he would receive ten years in prison, he changed his mind and decided to plead guilty. Wilson contends his counsel's advice about his possible sentence and the inadequate time he had to decide how to plead, render his guilty plea involuntary. In addition, Wilson argues that his counsel's actions caused him to plead guilty to a crime that he did not commit, which further resulted in his prejudice because he lost his right to a trial by a jury of his peers. We do not agree.

[T8] The transcript of Wilson's arraignment proceeding discloses the following:

[THE COURT:] Mr. Wilson, this hearing is called an arraignment. The purpose for the hearing is to be sure that you understand what's going on in the case, before I ask you to enter a plea. I am going to review the charges that you face, the maximum possible penalties on those charges, and some of your rights. If there is something you don't understand, or if you have a question, please ask [your counsel] or ask me.
Is there any reason you cannot understand me today? MR. WILSON: No, sir.
THE COURT: Are you under the influence of any sort of medicine or aleohol or drugs?
MR. WILSON: No, siz.
THE COURT: Do you have any disabilities?
MR. WILSON: No, sir.
THE COURT: Let's begin by reviewing the charges. The accusation in this case is found on a document called the information. The information accuses you of the crime of burglary. Particularly, you are accused of committing burglary on or about the 24th day of February of this year, here in Goshen County at [the victim's] residence.
Mr. Wilson, burglary is defined as entering some place without authority and having intent to either steal or to commit a felony once you get inside. That's the definition of burglary, and that's what you are accused of doing at this residence on February 24th.
Do you understand that?
[MR. WILSON]: Yes, siv.
THE COURT: Do you have any questions about that?
MR. WILSON: No, sir.
THE COURT: Burglary is a felony. In Wyoming the maximum possible penalty for burglary is ten years in prison, a $10,000 fine, or both.
In addition to those consequences, if you are found guilty, you could be required to make restitution for any damages that you caused. You can be required to repay the state for the services of a public defender; and you can be required to make a payment to the Crime Victim's Fund.
The amount of that payment depends on your earning capacity. There is a minimum amount of $100 if you have any earning capacity.
The law also requires if you are found guilty that you pay a small court cost of $10. I mentioned that burglary is a felony. If you are found guilty or plead guilty, you will have a felony record; and there are some results that go with that.
Persons with a felony record usually can't hold public offices, can't serve on juries, can't vote. It's a crime for persons with felony records to carry certain kinds of weapons. There may be other consequences that you should talk to your lawyer about.
So, Mr. Wilson, do you have any questions about the accusations or the maximum possible penalty?
MR. WILSON: No, siv.
THE COURT: Do you feel you understand them?
MR. WILSON: Yes, sic.
THE COURT: Now, I want to review with you some of your rights.
Under the Constitution you have the right to plead not guilty. You have the right to plead not guilty or not triable because of mental illness or deficiency. You can plead guilty, or you can plead no contest if the Court consents.
For purposes of this criminal case, a no contest plea has the same result as a guilty plea.
You are presumed to be innocent. That means that you do not have to disprove these charges. You don't have to prove anything. Instead, all of the burden of proof is on the state. The state has the burden of proving every element of the crime of burglary to be true beyond a reasonable doubt; and if the state can't meet that burden of proof, you are found not guilty, because you are presumed that way.
If you plead not guilty, you have the right to a speedy and a public jury trial. That's usually a trial within 120 days from today.
At the trial you have the right to confront the evidence against you. That means that you have the right to see and to hear all of the witnesses and all of the evidence that the state presents. You have the right to have your lawyer eross examine the state's witnesses.
Although you do not have to prove anything on your own, if you wish, you may bring witnesses and evidence to court. If you ask, the Court will issue subpoenas or court orders that require witnesses to come here.
You personally have the right to testify if you wish, but you also have the right to be silent. You don't have to testify. You don't have to answer questions, and it would never be used against you if you chose to be silent.
On the other hand, if you choose to testify, whatever you say could be used against you; so it's important to talk to your lawyer before you decide if you want to testify or answer questions.
You have the right to appeal any deci-gions this Court makes or any actions this Court takes to the Wyoming Supreme Court.
And you have the right to be represented by a lawyer at every stage of the case. If you are unable to afford an attorney, the Court appoints one to represent you; but if you have an ability to earn an income and to repay the state in the future for that lawyer, you may have to make such payments.
Mr. Wilson, do you understand those rights?
MR. WILSON: Yes, sir.
THE COURT: Do they make sense to you?
MR. WILSON: Yes, sir.
THE COURT: Do you have any questions about them?
MR. WILSON: No, sir.
THE COURT: Mr. Wilson, then I want you to tell me what you understand you are accused of in this case.
MR. WILSON: Burglary.
THE COURT: And tell me what the maximum possible penalty could be.
MR. WILSON: Ten years, ten thousand.
THE COURT: Before I ask you to plead, I want you to know some of the consequences if you should enter a guilty plea. By pleading guilty, you will give up some of the right{[s] that you have. You will give up the presumption that you are not guilty. You would give up the right to a trial, and there wouldn't be one. You will give up the right to confront witnesses against you, and the state would not have to prove anything.
You will give up the right to object to anything that has happened in this case up to this point or to appeal it.
If you plead guilty, the only issue left is the sentence.
Also, if you plead guilty, you give up your right to be silent, and you may be required to testify under oath about what you did. Whatever you say could be used against you then. If you testified falsely under oath, you can be charged with another crime called perjury.
If you plead guilty to this erime, and you are already on probation or parole for some other crime, your probation or parole could be revoked in addition to whatever sentence you get in this case.
So those are some consequences of-potential consequences of pleading guilty. Do you understand that?
MR. WILSON: Yes, siv.
THE COURT: Do these things make sense to you as well?
MR. WILSON: Yes, sir.
THE COURT: Mr. Wilson, how you plead should be your own choice. You should get advice from your lawyer, or anyone else you want to get advice from, but no one can make you plead a certain way or force you or coerce you. Do you feel that that has happened, that anyone has tried to make you plead a certain way or force you?
MR. WILSON: No, sir.
THE COURT: Has anyone threatened you or tried to entice you or made some secret promises to get you to plead a certain way?
MR. WILSON: No, sir.
THE COURT: Then with respect to the plea that you are going to make, do you feel that you are acting voluntarily?
MR. WILSON: Yes, sir.
THE COURT: And have you talked to your lawyer about how you want to plead?
MR. WILSON: Yes, siz.
THE COURT: Mr. Wilson, sometimes the parties enter into plea negotiations or plea bargains. Plea negotiations are permissible, but they are not necessarily binding on the Court. I may reject a plea agreement, or I may hear a plea agreement and accept your guilty plea under that agreement, but then give you a different sentence.
Do you understand that?
MR. WILSON: Yes, sir.
THE COURT: Counsel, is there any agreement in this case?
[PROSECUTOR]: There is, Judge.
In exchange for a guilty plea, the state will present an offer of proof to the Court. The state has agreed to recommend a two to five year underlying sentence with a recommendation of Boot Camp.
Any sentence imposed by this Court would run consecutive to any incarceration period in Cireuit Court on some underlying misdemeanors with regard to the animal.
THE COURT: [Defense counsel], is that correct?
[DEFENSE COUNSEL]: Yes, that's our understanding of the plea agreement, your Honor.
THE COURT: Mr. Wilson, has anyone forced you or required that you enter into this plea agreement?
MR. WILSON: No, sir.
THE COURT: Do you understand that by entering this plea agreement, you will give up your right to a trial and to any defenses that you might have?
MR. WILSON: Yes, sic.
THE COURT: I want to be sure that you understand the plea agreement the way that I do.
I understand that under this plea agreement, you would plead guilty to the crime of burglary and that the state would recommend a sentence of two to five years in the Wyoming State Penitentiary. The Court would be asked to recommend that you go to the Youthful Offender treatment part of the prison system. That's commonly called the "boot camp"; and if you successfully complete the boot camp, then the Court would be asked to give you a sentence reduction that suspends the rest of your prison sentence and puts you on probation of some sort. It might be in a halfway house. It might be in a treatment facility. It might be under intensive supervision. It might be regular probation.
If you successfully completed that probation, then that will be the end of your sentence; but if you violated that probation, then you can still be brought back to Court and required to serve the rest of your two to five sentence.
Do you understand all of that?
MR. WILSON: Yes, sir.
THE COURT: Does that meet with your agreement?
MR. WILSON: Yes, sic.
THE COURT: Also, do you understand that this is only a recommendation? The Court might give you a different sentence.
MR. WILSON: Yes, sir.
THE COURT: Finally, do you understand that I can recommend if I wish that you go to the boot camp, but the final decision on that is the warden's at the prison? Do you understand that?
MR. WILSON: Yes, sir.
THE COURT: The Court will reserve-well, the Court is going to accept the plea agreement simply because the Court is not bound as to the sentence; and, subject to hearing a sufficient factual basis, the Court will entertain the plea agreement.
Mr. Wilson, I also want to make sure that you understand that the state said that they will recommend that this sentence be served after, or consecutive, to sentences in Cireuit Court.
Have those sentences been imposed yet?
[PROSECUTOR]: Judge, they are set for July 6th, I believe, at one o'clock in the afternoon.
THE COURT: So we will know what they are before we sentence him?
[PROSECUTOR]: Correct.
THE COURT: Mr. Wilson, do you have any questions?
MR. WILSON: No, sir.
THE COURT: Do you feel you understand what's going on?
MR. WILSON: Yes, sir.
THE COURT: Please stand.
Mr. Wilson, to the charge in this case of burglary, do you plead guilty or not guilty?
MR. WILSON: Guilty.
THE COURT: Okay, you can be seated.
[Prosecutor], would you please relate to the Court what evidence the state would present if this went to trial?
[PROSECUTOR]: Sure, Judge. Thank you.
The state would offer primarily the testimony from [the victim], Tyson Perry, and Deputy Sheriff Morehouse; and they will indicate that on February 24th, [the victim] left her residence. She had been dating Mr. Wilson for some period of time. She left her residence and took off with some friends and left two dogs, one that she was caring for and her personal dog.
That dog had been a victim and so had [the victim] of a prior act of animal cruelty to which Mr. Wilson had admitted.
Tyson Perry would provide information that he and Travis Wilson drove up to Lingle, Wyoming, to the residence. Travis had talked about taking the dog, going up and getting the dog; and then on the way back after he did seize the dog, they talked about killing the dog.
Mr. Perry would also testify that Mr. Wilson entered the residence by opening the door and reaching inside of the trailer owned by [the victim] and grabbing the dog back out.
The dog was then taken to Mr. Wilson's home east of Torrington and was later killed and burned. We found the dog was burned the next day ... [wlhen the carcass of the dog was later thrown back in [the victim's] residence.
The state would show all these acts happened within Goshen County, the State of Wyoming, on February 24th of 2001.
THE COURT: What would [the victim] testify about authority to enter the house or not?
[PROSECUTOR]: They did date. Mr. Wilson, apparently had been there the night before, and there was some discussion between him and [the victim] that that was not acceptable when she was not
around, so her testimony would be he did not have the authority to go in at that time.
Her testimony would be she also talked with Travis Wilson earlier that day and indicated that she would not be at home that night.
{THE COURT:] Mr. Wilson, do you agree that the state could produce the evidence I just heard?
MR. WILSON: Yes, sir.
THE COURT: The Court finds that Mr. Wilson is competent today. I find that you understand the nature of the charge and the maximum possible penalties and your rights.
The Court finds that you have voluntarily pled guilty to the charge, and the facts I heard support that plea; so I will accept your guilty plea.

[19] Upon review of this rather long recitation, we conclude that Wilson entered his plea of guilty voluntarily and with full knowledge of its consequences. We further note that Wilson explicitly acknowledged that upon entry of his guilty plea, he would waive his right to receive a jury trial.

[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g.bribes).

Rude v. State, 851 P.2d 20, 23 (Wyo.1993) (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747(1970)).

[¶10] Moreover, in Lower v. State, 786 P.2d 346, 349 (Wyo.1990), this court stated what must be shown to establish ineffective assistance of counsel relating to the entry of a guilty plea:

[WJlhere a defendant has entered a guilty plea, he may challenge his subsequent conviction on appeal only with respect to matters which affect the voluntariness of his plea or the subject-matter jurisdiction of the trial court. When a guilty plea has been entered upon the advice of counsel, the voluntariness of that plea may depend on the extent to which that advice comports with the constitutional guarantee to the effective assistance of counsel.... _
When an attorney has allegedly misad-vised his client with respect to the entry of a guilty plea, a determination must be made of whether the decision to plead and forego the defense of his case resulted in prejudice to the client, That determination involves two interrelated questions: whether, in the absence of counsel's error, the recommendation of a reasonably competent attorney concerning the plea would differ from that given; and whether, absent the error, the outcome of a trial would have been more advantageous to the client than the result of his plea.

(Citation omitted.) See also Reyna v. State, 2001 WY 105, ¶ 19, 33 P.3d 1129, ¶ 19 (Wyo.2001); Chapman v. State, 2001 WY 25, ¶ 6, 18 P.3d 1164, ¶ 6 (Wyo.2001); and Hill v. Lockhart, 474 U.S. 52, 59-60, 106 S.Ct. 366, 370-71, 88 L.Ed.2d 203 (1985).

[111] Wilson's chief complaint that his guilty plea was involuntary is refuted by his own numerous contrary statements at the arraignment proceeding. During this hearing, Wilson indicated that he understood each of the consequences associated with his plea of guilty and that this plea was voluntary. Wilson's claim that his guilty plea was involuntary because of his attorney's statement that he would get "ten years" if he did not accept the offered plea agreement lacks merit. Obviously, counsel's statement was meant to advise Wilson of the maximum possible sentence associated with a burglary charge and was accurate in this respect. See Wyo. Stat. Ann. § 6-3-801(b) (LexisNexis 2001). Therefore, we fail to see how the performance of Wilson's counsel was deficient. In any event, even assuming the statement made by Wilson's counsel was deficient, no prejudice resulted from this statement because the district court appropriately advised Wilson of the possible maximum sentence that could be assessed. We have previously also recognized in Lower v. State, at 349, that "a defendant cannot, however, be said to have been prejudiced by advice which is merely misleading if the trial court, prior to taking his plea, has corrected any misunderstanding engendered by that advice." (Citation omitted.) ..

[T12] Wilson's remaining claims that his attorney essentially forced him to accept the plea and left him inadequate time to consider his plea options must also fail. Wilson affirmatively indicated to the district court that he received sufficient advice from his lawyer. Wilson also indicated that the decision to enter the plea agreement was his own personal choice without any outside force or coercion. The charge against Wilson had been pending for three full months before the arraignment. Additionally, before entering his guilty plea to the burglary charge, Wilson 1) met with his attorney at least once or twice in jail; 2) met with his attorney and his mother; 3) met with his attorney and a possible witness, Tyson Gilmore; and 4) met with his attorney along with his grandfather and grandmother. Considering these facts, we fail to see any "manifest injustice" for the district court to correct.

[118] As what could be described as a side issue, referred to in the body of his brief, Wilson contends that his attorney was laboring under a conflict of interest. This claim relates to Wilson's allegation that his counsel's law partner had previously represented Tyson Gilmore, an individual who may have furnished evidence at one time against Wilson on the burglary charge.

[¶ 14] Mr. Gilmore was never a codefend-ant with Wilson in this case. Moreover, the record on appeal indicates that the law partner of Wilson's counsel represented Mr. Gilmore in an unrelated legal matter, prior to the alleged burglary, and that there existed no adverse interest between Wilson and Mr. (Gilmore. Accordingly, no conflict of interest is established under the facts that exist in this case. See Rules of Professional Conduct for Attorneys at Law 1.7 and 1.9.

CONCLUSION

[115] For the foregoing reasons, the conviction of Wilson and its related sentence is affirmed.