author: PER CURIAM:

text:
    2002 UT App 153
    INDEPENDENT FUNDING, INC., a Utah corporation, Plaintiff and Appellee, v. WYNN COMPANY, INC., a Utah corporation; and Dennis T. Wynn, Defendants and Appellant.
    No. 20010941-CA.
    Court of Appeals of Utah.
    May 9, 2002.
    Douglas R. Short, Sandy, for Appellant.
    Delano S. Findlay, Salt Lake City, for Appellee.
    Before JACKSON, P.J., and BENCH, and ORME, JJ.
   MEMORANDUM DECISION

PER CURIAM:

¶ 1 This case is before the court on its own motion for consideration of dismissal based on lack of jurisdiction. The final judgment by default was entered in this case on January 17, 2001. Subsequently, the trial court issued an order compelling the attendance of witnesses and production of documents at a hearing related to execution of the judgment. This order was entered on July 31, 2001. Appellant appeals from this order. Appellant's notice of appeal was filed within thirty days of the order. See Utah R.App. P. 4. The issue for the court is whether the order compelling attendance of witnesses and doeu-ments is a final appealable order.

¶ 2 A writ of execution must have a separate notice of appeal filed after ruling on the motion. See Cheves v. Williams, 993 P.2d 191, 204 (Utah 1999). However, the supplemental order appealed in the case before the court was not a writ of execution. It was an order that addressed preliminary matters related to execution of the judgment. This order is interlocutory in nature. A final appealable order, in this context, is one that resolves the execution of judgment entirely. To the extent that an execution order is final, as defined by rule 4 of the Utah Rules of Appellate Procedure, the party must file a separate notice of appeal to challenge it. See id. at 204. Post judgment orders are independently subject to the requirement of finality, according to "their own substance and effect." Id. (quoting Cahoon v. Cahoon, 641 P.2d 140, 142 (Utah 1982)).

¶ 3 Appellant has not sought permission to appeal an interlocutory order. See Utah R.App. P. 5. Therefore, this court is without jurisdiction. When a matter is outside the jurisdiction of this court, it retains only the authority to dismiss. See Varian-Eimac v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App.1989). The appeal is dismissed without prejudice to Appellant filing an appeal from a subsequent final order of execution. Appel-lee's request for attorney fees is denied because this court has not ruled on the merits of the issues presented.


source: Caselaw Access Project

author: BENCH, Judge.

license: Public Domain

text:
    2002 UT App 160
    STATE of Utah, Plaintiff and Appellee, v. Kenneth BEACH, Defendant and Appellant.
    No. 20010445-CA.
    Court of Appeals of Utah.
    May 16, 2002.

      Heather Johnson and Otis Sterling III, Salt Lake City, Salt Lake Legal Defender Association, for Appellant.
    Mark L. Shurtleff, Attorney General and Brett J. DelPorto, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges JACKSON, BILLINGS, and BENCH.
   OPINION

BENCH, Judge.

¶ 1 Defendant appeals his conviction of possession of a controlled substance, arguing that the officers did not possess a reasonable articulable suspicion sufficient to justify his detention. We affirm.

BACKGROUND

¶ 2 On September 8, 2001, Officer Leavitt and two other officers from the Salt Lake City Police Department assigned to the narcotics interdiction unit were driving in an unmarked police car on a street in a neighborhood with a known drug house. Officer Leavitt, who was driving, noticed a car facing the opposite direction, which had no visible license plates and was parked partially in the traffic lane. Because the street is very narrow, the officers had to slow their vehicle to five miles per hour to pass the other car. As the officers drove by, they noticed Defendant, who was standing outside of the car, pass something to one of the two individuals in the ear. The exchange drew Officer Leav-itt's attention because it was accomplished in a manner that is commonly used in drug transactions. As Officer Leavitt tried to turn the police car around to come in behind the parked car, Defendant began to walk away rapidly in the opposite direction. Officer Leavitt activated the police car's emer-geney lights, then got out of the car and went after Defendant, asking if he could talk to him. The other officers remained with the parked vehicle and its occupants.

¶ 3 Officer Leavitt identified himself as a police officer and asked Defendant for some identification. Defendant produced a Utah ID card. Officer Leavitt asked Defendant why he was in the area, and Defendant indicated that he buys and repairs cars. He stated that he had driven to the neighborhood in the car occupied by the other two individuals, in hopes of selling the car to them. Defendant claimed that the exchange Officer Leavitt had observed involved only the car's paperwork. During this conversation, Defendant admitted that the car was not properly registered and that he had driven it there, even though he did not have a valid driver license.

¶ 4 Officer Leavitt testified that throughout the course of the interview, Defendant appeared extremely nervous. Officer Leavitt asked for consent to search Defendant, and Defendant did not respond verbally. Instead, he began emptying his pockets, pulling out pocket change, a folded flyer, and a receipt from an auto yard indicating the receipt of $500 although it did not indicate what was purchased. Officer Leavitt again inquired if Defendant would consent to a search. Defendant asked if he had done anything wrong. Officer Leavitt replied that he had admitted to driving an unregistered vehicle, without a valid license. Officer Leavitt also commented on Defendant's extreme and continued nervousness. Defendant said it was because he had a pornographic magazine, which he then handed to Officer Leavitt. Officer Leavitt determined that it was an adult magazine and returned it to Defendant, telling him that it was fine for Defendant to have it.

¶ 5 Officer Leavitt again asked Defendant for permission to search. This time, Defendant answered the question by replying, "Go ahead." Officer Leavitt advised Defendant that he did not have to allow the search, and Defendant responded, "I'm not going to lie to you guys, I have a little." Defendant then produced from his pocket a baggy of methamphetamine. A search incident to Defendant's arrest produced a second baggy of methamphetamine. After Defendant's arrest, Officer Leavitt talked with the other officers, who had interviewed the occupants of the car. Officer Leavitt learned that the occupants had said they were interested in buying the car from Defendant and were test-driving it when the officers approached. Dispatch records show a total of twenty-two minutes elapsed from the time of Officer Leavitt's first contact with Defendant, to the time Defendant was transported to the jail.

¶ 6 Defendant was charged with and pleaded guilty to possession of a controlled substance after the trial court denied his motion to suppress the evidence. Defendant now appeals his conditional guilty plea.

ISSUES AND STANDARDS OF REVIEW

Defendant argues that Officer Leavitt did not have a reasonable articulable suspicion of eriminal activity to justify detaining him on a level-two stop. " '[Wlhether a specific set of facts gives rise to reasonable suspicion is a determination of law and is reviewable nondeferentially for correctness ... [with] a measure of discretion to the trial judge when applying that standard to a given set of facts'" City of St. George v. Carter, 945 P.2d 165, 168 (Utah Ct.App.1997) (quoting State v. Pena, 869 P.2d 932, 939 n. 4 (Utah 1994)) (alterations in original). Second, Defendant contends that his consent to search was not voluntarily given. We "review the trial court's "ultimate conclusion that a consent was voluntary or involuntary' for correctness." State v. Ham, 910 P.2d 433, 438 (Utah Ct.App.1996) (quoting State v. Thurman, 846 P.2d 1256, 1271 (Utah 1993.)).

ANALYSIS

¶ 8 In determining whether the officers had a reasonable articulable suspicion to justify Defendant's temporary detention, we "look to the totality of the cireumstances ... to determine if there was an objective basis for suspecting criminal activity." State v. Humphrey, 937 P.2d 137, 141 (Utah Ct.App.1997). In considering the totality of the cireumstances, we " "judge the officer's conduct in light of common sense and ordinary human experience ... and we accord deference to an officer's ability to distinguish between innocent and suspicious actions." United States v. Williams, 271 F.3d 1262, 1268 (10th Cir.2001).

¶ 9 Officer Leavitt testified that he and the other officers were in the area for the express purpose of detecting drug activity and that they had singled out that area because of its proximity to a known drug house. Officer Leavitt's training and experience as a police officer led him to suspect illegal activity when he observed occupants of a vehicle, which had no license plates and was parked in a manner that obstructed traffic, make a hand-to-hand exchange with a pedestrian. This case is therefore distinguishable from Salt Lake City v. Ray, 2000 UT App 55, 998 P.2d 274. In Ray, the officers did not observe any behavior by the defendant that might have been criminal. See id. at ¶ 19. The officers in Ray had "no knowledge of any violation of the law that Ray might have committed or was about to commit," id., but were investigating only because they had received a complaint about a "suspicious female." Id. at ¶ 3. Here, Officer Leavitt observed specific behavior that reasonably led him to suspect that Defendant was distributing a controlled substance.

¶ 10 This case is similar to Provo City v. Spotts, 861 P.2d 437 (Utah Ct.App.1993). In Spotts, we concluded that a police officer who observed the defendant smoking what could have been a cigarette, but what the officer suspected to be a marijuana joint, had sufficient reasonable suspicion to investigate further. See id. at 440. We held that "although defendant's activity was conceivably consistent with innocent activity, it was strongly indicative of criminal activity," and therefore the detention was reasonable. Id.

¶ 11 In this case, Defendant argues that Officer Leavitt impermissibly exceeded the seope of the detention when he continued to question Defendant after Defendant offered an innocent explanation for his actions, because the explanation should have alleviated Officer Leavitt's suspicions of drug activity. While some of Defendant's activities could be explained as innocent, " 'officers need not close their eyes to suspicious cireum-stances." " Williams, 271 F.3d at 1270 (citation omitted). Officer Leavitt was not bound to accept Defendant's first explanation as truthful, particularly when he observed other suspicious actions by Defendant. These actions included Defendant's haste to exit the scene when first approached and his extreme and continued nervousness, which were at odds with Defendant's seemingly innocuous explanation and bore further investigation.

¶ 12 We are satisfied that " 'the length and scope of the detention [was] "strictly tied to and justified by" the cireum-stances which rendered its initiation permissible." State v. Hansen, 2000 UT App 353, ¶ 111, 17 P.3d 1135 (citations omitted) (first alteration in original). The twenty-two minute time frame from Officer Leavitt's first contact with Defendant to when Defendant was on his way to jail was not excessive in light of the cireumstances. The scope of Officer Leavitt's questioning was also reasonably related to the original purpose of the stop-suspected drug activity. The cases Defendant relies on are distinguishable because they involve stops initiated by a traffic violation, where the violation was resolved but the officer continued the detention. See, e.g., Hansen, 2000 UT App 353, 17 P.3d 1135; State v. Robinson, 797 P.2d 431 (Utah Ct.App.1990). Thus, Officer Leavitt's continued questioning to dispel his original suspicion was not unreasonable.

¶ 13 Finally, Defendant argues that his consent to the search was not voluntary because of the coercive cireumstances and the illegality of the stop. We need not reach the issue of whether Defendant's consent to search was voluntarily given because Defendant was not searched until after he was arrested. The first baggy of methamphetamine was not found as a result of a search. Rather, Defendant pulled it out of his pocket in response to Officer Leavitt's investigative questioning. Therefore, whether Defendant's consent to search was voluntarily given is a moot issue.

¶ 14 Defendant contends that the evidence should have been suppressed because he produced the drugs only because a search was imminent. We disagree. Officer Leav-itt did not use any show of force or authority, which might otherwise support Defendant's contention. See State v. Bisner, 2001 UT 99, ¶ 47, 37 P.3d 1073 (listing factors determining coerciveness of cireumstances, including claim of authority or exhibition of force). In fact, when Defendant consented to the search, Officer Leavitt did not immediately search him, but told Defendant he did not have to consent to the search. At that point, Defendant incriminated himself by producing the first baggy of methamphetamine. The trial court correctly ruled, therefore, that the evidence was admissible.

CONCLUSION

¶ 15 We conclude that Officer Leavitt had sufficient reasonable, articulable suspicion of criminal activity to justify Defendant's detention. When considering the totality of the cireumstances, Defendant's explanation of his activities was not sufficient to explain his actions. Therefore, the trial court correctly ruled that Officer Leavitt did not impermissi-bly exceed the scope of the detention when he continued questioning Defendant. Because Defendant produced the incriminating evidence before any search, we need not address whether Defendant's consent to search was voluntary.

¶ 16 Accordingly, Defendant's conviction is affirmed.

¶ 17 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JUDITH M. BILLINGS, Associate Presiding Judge.


author: THORNE, Judge:

text:
    2002 UT App 165
    STATE of Utah, Plaintiff and Appellant, v. Alan Kay JUSTESEN, Defendant and Appellee.
    No. 20010315-CA.
    Court of Appeals of Utah.
    May 16, 2002.
    Mark L. Shurtleff, Marian Decker, Assistant Attorney General, Salt Lake City, for Appellant.

      David M. Allred, Castle Dale, and Sharon L. Preston, Salt Lake City, for Appellee.
    Before Judges BILLINGS, BENCH, and THORNE.
   OPINION

THORNE, Judge:

¶ 1 The State appeals from an order granting Alan Justesen's (Justesen) Motion to Suppress. We reverse and remand.

BACKGROUND

¶ 2 On June 17, 2000, at approximately 12:45 am., Sergeant Tom Stefanoff (Stefa-noff), of the Carbon County Sheriff's Department, was patrolling a desolate stretch of Airport Road one mile east of the airport in Carbon County, when he came upon a white 1991 Ford minivan. The minivan had no lights on and Stefanoff was uncertain if the minivan was occupied. As such, Stefanoff decided to check and see if the minivan was broken down, abandoned, or if the occupants in the minivan, assuming there were occupants, needed assistance.

¶ 3 Stefanoff pulled off the road, and, with his patrol vehicle's headlights on, ultimately stopped six to eight feet behind the minivan. The only illumination in the area came from Stefanoff's headlights. Accordingly, after stopping his vehicle, Stefanoff activated his "take-down lights" "to illuminate the area" for safety reasons. Stefanoff did not activate his vehicle's high beam headlights, nor the red and blue flashing lights located on the light bar.

¶ 4 Stefanoff exited his vehicle and approached the minivan. He noticed the minivan's brake lights illuminate as he proceeded to the driver's side of the minivan. As he continued toward the front of the minivan, Stefanoff saw Justesen sitting in the driver's seat with the keys in the ignition. The minivan was not running.

¶ 5 Stefanoff spoke with Justesen through the driver's side window, which was already down, and asked for Justesen's identification. Justesen identified himself as "Steve Temple-ton" and told Stefanoff that he had no identification. During the encounter, Stefanoff smelled the odor of aleohol emanating from Justesen. Accordingly, Stefanoff asked Jus-tesen if he had been drinking. Justesen admitted to having had a few drinks. At that point, Stefanoff asked Justesen to exit the minivan and perform several field sobriety tests. Stefanoff subsequently arrested Justesen for driving under the influence. A search of Justesen's vehicle, incident to arrest, uncovered Justesen's wallet containing his identification, revealing his real name.

¶ 6 Justesen was charged with driving under the influence of alcohol, driving on a denied license, and providing false information to a police officer. Justesen filed a motion to suppress, arguing that the encounter was a level two stop not supported by a reasonable suspicion that Justesen had committed or was about to commit a crime. The trial court granted the motion, suppressing the conversation between Stefanoff and Jus-tesen, as well as Stefanoffs observations, both of which led to the arrest. The State appeals.

ISSUE AND STANDARD OF REVIEW

¶ 7 The State argues the trial court erred by concluding that the encounter was a level two stop, and therefore, in granting Justesen's Motion to Suppress. We review a trial court's conclusions of law for correctness, "with a measure of discretion given to the trial judge's application of the legal standard to the facts." State v. Veteto, 2000 UT 62, ¶ 8, 6 P.3d 1133.

ANALYSIS

¶ 8 The trial court concluded that the encounter between Stefanoff and Justesen was a level two stop because Stefanoff activated his "take down lights" after he pulled up behind Justesen's minivan. The State argues that the encounter between Stefanoff and Justesen was a voluntary level one encounter that did not rise to a level two stop simply because Stefanoff activated his "take down lights." We agree.

¶ 9 It is well-established that there are three "levels of constitutionally permissible encounters between law enforcement officers and the public." Salt Lake City v. Ray, 2000 UT App 55, ¶ 10, 998 P.2d 274. Of significance to the present matter are the first two types of encounters.

(1) [A]n officer may approach a citizen at anytime [sic] and pose questions so long as the citizen is not detained against his will; [and] (2) an officer may seize a person if the officer has an "articulable suspicion" that the person has committed or is about to commit a crime; however, the "detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop...."

Id. (quoting State v. Deitman, 739 P.2d 616, 617-18 (Utah 1987) (per curiam) (citations omitted)).

¶ 10 Here, the trial court concluded that the encounter was a level two stop that was not supported by an " 'articulable suspicion' that [Justesen] had committed or was about to commit a crime." The trial court explained that

[a]lthough there were no physical obstructions in front of the defendant's vehicle that would have prevented him from leaving, the take-down lights were extremely bright and were on the top of the vehicle, and given the time of night and the isolated location, the court finds that a reasonable person would think that the activation of the take-down lights meant that they were intended as a display of authority and that he was not free to leave.

The trial court did not cite to any Utah authority to support its conclusion that Stefa-noff's use of "take-down lights" constituted a level two stop that required "reasonable suspicion." We surmise that the trial court's decision may have been influenced by this court's decision in State v. Struhs, 940 P.2d 1225 (Utah Ct.App.1997). However, we believe that this case is readily distinguishable from Struhs.

¶ 11 In Struhs, a sheriff's deputy observed a vehicle "traveling toward a construction area" at 10:00 p.m. Id. at 1226. The deputy watched the vehicle turn around and "back up towards barricades and a sign that read 'Road Closed,/" at which time the driver turned off the vehicle's ignition and headlights. Id. The deputy continued to observe the vehicle. At no time did the deputy see anyone exit the vehicle, and therefore, the deputy became curious as to why the vehicle's driver decided to stop at this remote location at this time of night. See id.

¶ 12 The deputy then

turned off all the lights of the patrol vehicle and parked approximately a car length to a car length-and-a-half in front of defendant's [vehicle] in a posture [the deputy] described as a "nose to nose." [The deputy] then activated her high-beam headlights and the white "takedown" light located in the light bar on the top of the vehicle.

Id. After approaching the vehicle, the deputy discovered drug paraphernalia, and a subsequent search of the vehicle uncovered cocaine. See id. The deputy arrested the defendant, who later filed a motion to suppress the evidence found in the vehicle, claiming that the encounter was a level two stop that was not supported by "reasonable suspicion." Id. The trial court denied the defendant's motion.

¶ 13 We reversed the trial court, concluding that

under the totality of the circumstances, [the] defendant was seized. The time of night, the isolation of the location, the confrontational approach made by the officer, the officer parking nose-to-nose with [the] defendant's vehicle, and the officer's sudden activation of her high-beam headlights and white take-down lights, support our conclusion.

Id. at 1227 (emphasis added).

¶ 14 In the present matter, the totality of circumstances surrounding the encounter between Stefanoff and Justesen do not support a level two stop. Although the encounter occurred at night in an isolated area, the factual similarities between the present matter and Strwkhs end there. The confrontational and stealthy factors present in Struhs are not present in this case. Stefa-noff did not approach Justesen's vehicle in a stealthy manner, and was not trying to surprise the occupants, nor was he trying to "catch" them at something. Further, Stefa-noff had not observed the minivan for a prolonged period of time under the cloak of darkness, only then becoming suspicious of the occupants' pattern of activities.

¶ 15 Instead, Stefanoff came upon the minivan while on patrol, and, with his headlights on, approached Justesen's minivan. Stefanoff did not park "nose-to-nose" with Justesen's vehicle, but parked behind it. At that time, Stefanoff activated his take-down lights. Our review of the record leads us to conclude that Stefanoff used the take-down lights not as a show of authority, but to illuminate the area. In sum, we view this encounter as no different than an officer pulling behind a vehicle parked on the side of the road in the daylight hours. In both instances, the encounters are voluntary, and the motorist is free to leave. See 4 Wayne R. LaFave, Search and Seizure § 9.3(a) (8d ed.1996) (stating "if an officer mérely walks up to a person ... who is seated in a vehicle located in a public place ... and puts a question to him, this alone does not constitute a seizure") (footnote and citations omitted). To decide otherwise would force an officer to choose between personal safety, in this case by simply illuminating the area, or not stopping to render assistance to a stranded motorist in an isolated area at night.

CONCLUSION

¶ 16 The trial court's conclusion that Stefa-noff's activation of his overhead lights alone was sufficient to escalate the encounter to a level two stop, requiring a reasonable suspicion of criminal or potential criminal activity, was in error. We therefore reverse the trial court's decision and remand for proceedings consistent with our decision.

T 17 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and RUSSELL W. BENCH, Judge.

      . The "take-down" lights are two white spotlights located on the light bar on top of the patrol vehicle.


author: KITE, Justice.

text:
    2002 WY 85
    RUBY DRILLING CO., INC., Appellant (Plaintiff), v. DUNCAN OIL COMPANY, INC,, Appellee (Defendant).
    No. 01-72.
    Supreme Court of Wyoming.
    June 5, 2002.

      Carol Seeger of Carter Law Office, Gillette, Wyoming, Representing Appellant.
    Tom C. Toner of Yonkee & Toner, Sheridan, Wyoming, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] Dunean Oil Company, Inc. (Duncan) paid Ruby Drilling Co., Inc. (Ruby) $23 per foot in advance to drill a 6,000-foot oil well consistent with the contract Ruby drafted. Ruby drilled the hole in such a manner that it deviated from vertical so much it was unusable. Duncan hired specialized contractors to correct the deviation and complete the well. Thereafter, Ruby sued Duncan for breach of contract claiming additional money was owed because the contract terms changed from per foot to per day cost when Duncan hired the other contractors. Duncan for the costs to complete the well. After a bench trial, the trial court held Ruby breached the contract and Duncan was entitled damages. We affirm.

ISSUES

[¶ 2] We rearticulate the issues in the following manner:

1. Did the trial court properly construe the written drilling agreement to be a footage contract with the specifications based on the customary industry usage of the terms?
2. Did the trial court improperly limit Ruby's expert witness from testifying regarding changes to the Ruby drilling contract?
3. Was the trial court's decision contrary to the clear weight of the evidence?
4. Did the trial court err as a matter of law and contrary to the clear weight of the evidence in determining damages?

FACTS

[¶ 3] Ruby had been drilling water and oil wells for fifty-six years. Duncan had used Ruby's services in the past to drill several shallow coalbed methane water wells. In the fall of 1997, Duncan asked Ruby whether, in the event the company had the proper equipment, it would be interested in bidding on a 6,000-foot oil well to be drilled in the Kaycee area. Ruby advised Duncan that it had a suitable rig and would like to bid the contract. Ruby also represented it had drilled a number of water wells around Kaycee and was familiar with the area but failed to tell Duncan it had never before drilled a well as deep as 6,000 feet.

[¶ 4] Ruby proposed to drill the well for $23 per foot on a footage contract with additional miscellaneous costs including per diem for mobilization/demobilization and hourly rates for specified service work. Duncan accepted the proposal and requested Ruby send a contract with an invoice to expedite the project and allow the cost to fall within Duncan's 1997 budget. On December 29, 1997, Duncan signed the contract and sent Ruby a check for $141,200 as an advance payment.

[¶ 5] On January 1, 1998, Ruby moved a drilling rig to the well location and commenced work. On January 14, 1998, at approximately 510 feet, a straight hole survey showed five degrees deviation from vertical. A straight hole survey relates the degree of deviation from vertical but does not reflect the direction of the deviation. The industry standard provides deviation should not exceed one degree per thousand feet with a maximum deviation at total depth of not more than five to six degrees. Ruby advised Dunean that the reading was probably a mistake and continued to drill. Ruby conducted three more surveys as the well was drilled deeper which indicated increased deviation. By January 16, 1998, the well reached 1,780 feet, and the survey reflected cight degrees' deviation. Had drilling continued in this manner, the bottom hole would have been nearly 1,078 feet from the surface location and on another lease. Duncan told Ruby to stop drilling until Baker Hughes Inteq, a directional survey company, could evaluate the deviation. Ruby did not stop drilling until it reached 2,200 feet. In order to correct the severe deviation, Baker Hughes recommended the well be plugged back to the surface pipe, the well bore be filled with cement, and directional equipment be used to drill vertically into the formation.

[¶ 6] Duncan offered Ruby an opportunity to correct the deviation, but Ruby said all it could do was drill in the same manner that had led to the deviation in the first instance. Duncan hired Baker Hughes to correct the deviation, and Ruby remained on site and assisted. The project continued to experience difficulties and delays caused by Ruby's inadequate equipment and equipment failures. Baker Hughes left the site when the well reached approximately 5,081 feet because the deviation had been resolved, and Ruby completed the well by conventional drilling to 5,950 feet. Ruby had anticipated the project would take ten to twelve days, but, due to the various problems, it took forty-five days.

[¶ 7] After completion in February of 1998, the parties had no additional contact until April of 1998 when Ruby sent two invoices to Duncan. One invoice was computed on a straight day work basis for forty-five days, totaling $114,290 ($255,490 less the original $141,200 advance payment), and one was computed on a combined footage/day work basis for thirty-seven days, totaling $119,003 ($260,203 less the original $141,200 advance payment) to provide Duncan the option of paying for either straight day work or combined footage/day work. Duncan refused to pay and advised Ruby the latter owed Duncan for the expenses incurred to correct the well deviation.

[¶ 8] In July 1999, Ruby filed suit against Duncan for breach of contract and damages of $119,003 plus interest at eighteen percent per annum. Duncan answered and counterclaimed for breach of contract and damages of $181,811.01. Subsequent to a bench trial, the court found Ruby had breached the footage contract by failing to drill the well in a workmanlike manner, the footage contract was not converted by the parties' actions into a day work contract, and Duncan was entitled to a judgment of $155,211 for the costs it incurred to correct and complete the well. Ruby appealed.

STANDARD OF REVIEW

[¶ 9] We are required to review the trial court's construction of the drilling contract and its factual determination that Ruby breached the terms of that contract.

"When a trial court in a bench trial makes express findings of fact and conclusions of law, we review the factual determinations under a clearly erroncous standard and the legal conclusions de novo." Rennard v. Vollmar, 977 P.2d 1277, 1279 (Wyo.1999). This court does not weigh the evidence de novo; therefore, findings may not be set aside because we would have reached a different result. Moreover, the appellant bears the burden of persuading the appellate court that the finding is erroneous.

Schlesinger v. Woodcock, 2001 WY 120, ¶ 13, 35 P.3d 1232, ¶ 13 (Wyo.2001) (some citations omitted); see also Polo Ranch Company v. City of Cheyenne, 969 P.2d 132, 136 (Wyo.1998).

Normally, the construction and interpretation of an unambiguous contract is a matter for the court to address as a question of law. Garcia v. UniWyo Federal Credit Union, 920 P.2d 642, 645 (Wyo.1996); Feather v. State Farm Fire and Cas., 872 P.2d 1177, 1180 (Wyo.1994); Mobil Coal Producing, Inc. v. Parks, 704 P.2d 702, 707 (Wyo.1985).

Ormsby v. Dana Kepner Co. of Wyo. Inc., 997 P.2d 465, 469 (Wyo.2000). Further, we must assume the evidence in favor of the successful party is true. We exclude any consideration of the evidence presented by the unsuccessful party that conflicts with the successful party's evidence, and we afford to the successful party's evidence every favorable inference that may be reasonably and fairly drawn from it. Daley v. Wenzel, 2001 WY 80, ¶ 24, 30 P.3d 547, ¶ 24 (Wyo.2001); Turcq v. Shanahan, 950 P.2d 47, 51-52 (Wyo.1997); Richardson v. Schaub, 796 P.2d 1304, 1309-10 (Wyo.1990).

DISCUSSION

A. Contract Construction

[¶ 10] The contact language at the heart of this dispute provides:

We hereby submit specifications and estimates for the drilling of a well at $23.00 per ft. for drilling and/or $200.00 per hour for service work. Casing will be the way, and in. diameter for surface, all in. diameter for other if necessary.
We hereby submit specifications and estimates for the drilling [in] accordance with the above specifications, for the estimated footage or to ample amount of water. Payment to be made after completion of job and due upon receipt of our billing. If payment is not made. within a reasonable time and the account be placed in collector's or attorney's hands for collection, all costs of collection including reasonable attorney fees will be added to our total bill, plus 18% on past due accounts.
Mobilization & Demobilization $3,000.00
Per Diem $300.00 per day
Hour Time will include: Rig time running straight hole Logging Running casing Drill stem tests Plug & abandon
All material is guaranteed to be as specified. All work to be completed in a workmanlike manner according to standard practices. Any alteration or deviation from above specifications involving extra costs, will be executed only upon written orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delays beyond our control. Our workers are fully covered by Workmen's Compensation Insurance.

(Emphasis added.)

[¶ 11] The parties agree Ruby drafted the agreement as a footage contract. A significant difference exists in responsibilities and risk apportioned between the operator and the drilling contractor under a day work contract as opposed to a footage contract.

(2) Day work contract.
Under the day work contract, an operator engages a contractor to drill a well at a specified location to a specified depth and agrees to pay the contractor at a specified rate per day. Accordingly, the operator and not the contractor, takes the risk of added expense because of delays and difficulties encountered in drilling. ...
(3) Footage contract.
Under the footage contract, the specifications of the well would remain the same, but the operator agrees to pay the contractor at a specified rate per foot drilled. Accordingly, the contractor and not the operator, takes the risk of added expense because of delays and difficulties in drilling.

2 Eugene Kuntz, A Treatise on the Law of Oil and Gas § 194.5(b) at 95 (1989). In this footage contract, Ruby, the contractor, and not Duncan, the operator, took the risk of added expense because of delays and difficulties in drilling. Despite the lack of a written order as the contract required, Ruby argues the original footage contract was modified into a day work contract because Duncan failed to include well specifications in the original agreement-particularly a straight hole/minimal deviation requirement-and took control of the project when it hired Baker Hughes.

This court has previously acknowledged that the parties to a written agreement may orally waive or modify their rights under the agreement. We have further indicated that an oral modification of a written agreement may be possible even when the agreement contains a no-unwritten-modification clause. The party asserting that a written agreement was modified by the subsequent expressions or conduct of the parties must prove so by clear and convincing evidence. The question of whether the alleged modification of the written agreement has been proved by the required quantum of evidence is one to be decided by the trier of fact. We will not reverse the decision of the trier of fact unless that decision is clearly erroneous or contrary to the great weight of the evidence.

Wolin v. Walker, 830 P.2d 429, 431-32 (Wyo.1992) (citations omitted). Clear and convincing evidence is the "kind of proof which would persuade a trier of fact that the truth of the contention is highly probable." MacGuire v. Harriscope Broadcasting Co., 612 P.2d 830, 839 (Wyo.1980); see also Dorr v. Wyoming Board of Certified Public Accountants, 2001 WY 37, ¶ 8, 21 P.3d 735, ¶ 8 (Wyo.2001); Meyer v. Norman, 780 P.2d 283, 291 (Wyo.1989).

[¶ 12] The trial court made the following findings and conclusions relevant to this issue:

4. Exhibit A is a "footage" contract that specifies primary compensation to Ruby was to be determined at the rate of $23.00 per foot of well bore. (The contract also allows other miscellaneous compensation.) There was no agreement by words, writings or actions to change the method of compensation;
5. Duncan paid Ruby, in advance, the invoice total which listed the per foot charge and some other estimated charges;
6. Ruby did not have sufficient equipment under industry custom and standard practice to drill a 6,000 foot well during the drilling project at issue. This deficiency was a breach of contract. Items Ruby lacked include, but are not limited to, the following: (a) a blowout preventer; (b) about 1,800 feet of drill pipe (it is dangerous and against industry custom/usage to drill with tubing at these depths); (c) bottleneck elevators to use on bottleneck drill pipe (also the elevators were not rated to carry the drill string weight required);
7. Ruby did not otherwise perform in a workmanlike manner. The main example was the failure to drill as close to vertical as possible. This failure was a breach of contract;
8. The drilling contract herein required a well bore that was as close to vertical as possible;
9. Duncan notified Ruby of deficiencies described above prior to renting equipment and prior to hiring subcontractors. Ruby's breach of contract; failure to correct deficiencies; and failure to suggest alternatives required Duncan to rent equipment and hire subcontractors in order to complete the well under industry standards;
10. Any "supervision and/or control" exercised by Duncan over the drilling process was by tacit agreement with Ruby. Ruby voiced no contemporaneous objections to Duncan decisions;
12. When Duncan realized Ruby did not begin this well as close to vertical as was possible, it gave Ruby an opportunity to correct. Ruby could not make necessary corrections without additional equipment and personnel. When Ruby failed or refused to correct, arguably Duncan could have declared a breach and dismissed Ruby from the site. However, by remaining on location and using some of its equipment, Ruby was given opportunities to mitigate damages[.]

(Emphasis added.) The trial court determined the contract was not ambiguous and Ruby failed to prove an unwritten modification of the contract by clear and convincing evidence. We are persuaded this is the correct result.

[¶ 13] Ruby drafted this agreement, which was a footage contract with additional miscellaneous expenses. The terms also dictated the well would be completed in a workmanlike manner according to standard practices and any change of the specifications required written agreement. The parties agree no written agreement to modify existed. ~

[¶ 14] Ruby claims the contract did not require the drilling of a straight hole, and all the proper equipment was available to drill the hole correctly in the conventional manner. The trial transcript discloses Jesse Dale Ruby, owner, operator, and driller for Ruby, testified in an implausible and often internally inconsistent manner. He denied knowing the standard practices in the oil well drilling industry stating he was not a part of that industry despite previously testifying he had fifty-six years of drilling experience. He denied he was required to drill a straight hole but acknowledged, by the contract terms, his crew was to periodically run straight hole surveys to determine the amount of deviation. He testified Ruby intended to drill the hole as straight as possible but also claimed it had no contractual obligation to do so. Mr. Ruby denied any knowledge of or requirement to abide by the Wyoming Oil and Gas Conservation Commission's rules and regulations with regard to maintaining a practical minimum deviation in all oil and gas wells drilled. See Wyoming Oil and Gas Conservation Commission Rules & Regulations ch. 3, § 24 (Sept. 8, 1996). He contended that Ruby was not bound to observe any requirement or standard not explicitly spelled out in the contract.

[¶ 15] This argument belies both the contract language and the applicable case law. The contract specifically provided all work was to be completed according to standard practices. It is reasonable to infer that, when one is drilling an oil well and the contract specifies standard practices, the standard practices referred to are those of the oil well drilling industry. When a usage is common to an industry, failure to negate the application of such usage engenders an assumption it was intended to apply, and, if the person contracting wishes to escape the force thereof, he should except such custom from the contract. Valentine v. Ormsbee Exploration Corporation, 665 P.2d 452, 458 (Wyo.1988). " 'It is well settled that parties who contract on a subject matter concerning which known usages prevail, incorporate such usages by implication into their agreements, if nothing is said to the contrary."" Id. (quoting Hostetter v. Park, 137 U.S. 30, 40, 11 S.Ct. 1, 34 L.Ed. 568 (1890)). In this case, Ruby made the "standard practices" of the industry an express term of the contract.

[¶ 16] The evidence clearly established drilling a straight hole was the standard industry practice. Mr. Ruby equivocated saying he did not even know what the word "straight" meant. However, his own expert witness conceded the industry standard calls for the contractor to drill the well as close to vertical as possible. Mr. Ruby advised the expert he did nothing to control the deviation because he had done his job as long as he drilled the well to 6,000 feet even if the bottom hole was a quarter of a mile away from the surface location.

[¶ 17] Viewed in the light most favorable to Duncan, the evidence established Duncan offered Ruby an opportunity to correct the problem when the deviation was determined to be serious. Mr. Ruby initially testified he was denied this option but later stated he told Duncan that all his company could do was continue drilling in the same manner holding weight off the drill bit in an effort to minimize further deviation. Additionally, Mr. Ruby acknowledged he never communicated with Duncan about modification of the footage contract to a day work contract until he sent the two invoices over a month after the well was completed.

[¶ 18] "We have ... indicated the necessity for parties to follow the terms and conditions of contracts entered into by them." State Surety Company v. Lamb Construction Company, 625 P.2d 184, 194 (Wyo.1981). We conclude Ruby failed to prove modification of the contract to a day work contract by clear and convincing evidence. The trial court properly found the contract was a footage contract because the terms were unambiguous, no modification existed, the contract specified standard practices of the industry should be followed thereby requiring the drilling of a straight hole, and Ruby rejected the opportunity to correct the deviation problems.

B. Expert Witness

[¶ 19] Ruby argues that the trial court improperly precluded its expert witness from testifying regarding industry custom as it pertains to changes from footage to day work contracts. On the contrary, the court did receive approximately five pages of testimony on this topic. It did not, however, permit the expert to opine as to whether the Ruby footage contract changed to a day work contract concluding that was a question of law. In this regard, the court advised Ruby's attorney: "Counsel, it is something I'm sure you're aware of; but the witness offered an opinion as to whether or not this footage contract switched to a day contract; and that's objectionable. That is an opinion that the Court would not consider as a ruling on the law." (Emphasis added.)

[¶ 20] During the course of the discussion, Ruby's counsel clarified his intent stating, "I guess I'm not calling on [the expert] to tell you what the contract is, just that this sort of an arrangement between the parties is customary." The trial court ultimately responded: "You've mentioned to me the limited purpose for which you've elicited that opinion, and I'm satisfied with that. And I just wanted us to be on the same page in terms of the law before the witness sat down." Contrary to Ruby's arguments, the trial court did allow the expert's testimony for the limited purposes for which its counsel offered it. "Rulings on the admissibility of evidence are within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of a clear abuse of discretion." English v. State, 982 P.2d 139, 143 (Wyo.1999). We conclude no abuse of discretion has been established.

[¶ 21] Ruby also asserts the court improperly limited the expert's opinion as to inclusion of deviation requirements in drilling contracts. Our review indicates the attorney was actually asking the expert to give his opinion as to which party should have included a deviation clause in the contract. The court expressed its concern the information was speculative and of questionable relevance as there was no deviation clause in the contract.

"[I]n the absence of statutory authority mandating admission of the expert testimony, the district court's decision to admit or reject such testimony is an evidentiary ruling committed to its discretion." Witt [v. State], 892 P.2d [132,] 137 [(Wyo.1995)] (citing Price v. State, 807 P.2d 909, 913 (Wyo.1991)). We do not disturb a trial court's evidentiary ruling absent a clear abuse of discretion.

Duran v. State 990 P.2d 1005, 1009 (Wyo.1999). Ruby has not advised this court of any statutory authority mandating admission of this particular type of expert testimony.

[¶ 22] Ruby relies on Samson Resources Company v. Quarles Drilling Company, 783 P.2d 974, 977 (Okla.Ct.App.1989). The Samson Resources case involved a drilling contract with an explicit modification clause governing conditions which would trigger a change from a footage to a day work contract. The Samson Resources trial court excluded expert testimony on the industry custom and usage regarding notice of such a change intended to apprise the contracting parties of a modification of the contract from footage to day work. The Samson Resources appellate court found the industry evidence was relevant to proper construction of the contract. We agree with this result and point out the trial court in the appeal before us permitted testimony regarding industry custom and usage. However, the Samson Resources case does not support Ruby's position that its expert should have been permitted to testify as to the proper contract construction or which party he believed was obligated to ensure inclusion of specific clauses in the contract. Here, the trial court was absolutely correct and fully within its broad discretion when it precluded the attempt to have Ruby's expert witness construe the contract. Contract construction is a question of law and solely within the court's province.

C. Clear Weight of the Evidence

[¶ 23] Ruby contends the trial court's decision is contrary to the clear weight of the evidence. We do not agree. Duncan presented overwhelming evidence through its witnesses, including its expert witness, establishing Ruby's breach of contract. However, it is most telling that the evidence presented by Ruby supported the trial court's conclusions. As moted above, Mr. Ruby testified in a less than convincing fashion denying knowledge of industry practices, the Wyoming Oil and Gas Conservation Commission's rules and regulations, and even the duty to drill a straight hole. He denied knowing deviation could be a problem in this location despite having drilled a number of wells near Kaycee and knowing it is "crooked hole" country. Mr. Ruby also testified (a) retipped, used drill bits were employed but there was no real difference between them and new bits although there is approximately a $7,500 price differential; (b) the elevators were malfunctioning because they were the wrong type for the drill pipe and should have been exchanged before Duncan had to rent replacements; (c) Ruby had only 4,700 feet of drill pipe, the rest being tubing, although he originally testified it had 6,000 feet of pipe on site; (d) he was unfamiliar with stabilizers and did not know it was equipment used to minimize deviation; (e) although Ruby usually took deviation surveys every 100 feet, on this well it did not make the first check until the depth was over 500 feet; and (f) despite having drafted the contract and used it more than 100 times, he did not know the terms and specifically did not know any modification required a written order.

[¶ 24] Ruby's own expert witness acknowledged (1) a driller must abide by the Wyoming Oil and Gas Conservation Commission's rules and regulations in order to drill in a workmanlike manner; (2) Mr. Ruby advised him nothing had been done to prevent the well from deviating; (8) it is eus-tomary in the industry, even if there is no deviation clause in the contract, that the contractor agrees to drill the well as close to vertical as possible; (4) the drilling records did not support Mr. Ruby's contention that weight was taken off the drill bit to control deviation and the records actually indicated the weight was increased; and (5) a stabilizer is commonly used in the industry to minimize deviation.

[¶ 25] Clint Ruby, Mr. Ruby's nephew and a driller on the well project, also testified the crew tried to drill the well straight "[ble-cause you always try to drill a straight hole"; however, the only technique he knew to control deviation was lifting weight off the drill bit. He also acknowledged that ten hours of work on a pump were required because his crew had crossed the lines; other significant repairs or replacements were required due to the failure of Ruby's equipment such as the drill line, clutch, duplex mud pump, and light plant; and the loss of a core in the well hole required five days to remove it. We "accept the evidence of the prevailing party as true. We will not disturb the trier of fact's findings unless the findings are so totally in conflict with the great weight of the evidence that they may be properly categorized as irrational." Agar v. Kysar, 628 P.2d 1350, 1353 (Wyo.1981) (citation omitted); see also Valentine, 665 P.2d at 456; Sagebrush Development, Inc. v. Moehrke, 604 P.2d 198, 200 (Wyo.1979). In light of this standard, we have compared the trial court's findings with the evidence and conclude the decision is completely reflective of and supported by the record.

D. Damages

[¶ 26] Ruby asserts the trial court erred as a matter of law in computing the damages and the evidence did not support the damages. The relevant findings and conclusions are:

11. The measure of damages for breach of an obligation to drill an oil/gas well is the cost of completion;
13. Actual expenditures of completing this well were:
a. Ex. Y $181,811.00
b. Ex. C Duncan pd to Ruby 141,200.00
TOTAL $322,511.00
14. Pursuant to the contract Duncan owes Ruby the following:
a. $23.00 x 6,000 feet $138,000.00
b. $300.00 x 45 days 18,500.00
c. Mobilization 8,000.00
d. $200.00 x 64 hours (mise) 12,800.00
TOTAL $167,300.00
15. Duncan is entitled to Judgment against Ruby in the sum of $155,211.00.

The general measure of damages for breach of contract is the amount that is sufficient to compensate the injured party for the loss which full performance of the contract would have prevented or the breach of it has entailed. Zitterkopf v. Roussalis, 546 P.2d 436, 438 (Wyo.1976).

[¶ 27] Ruby's whole damages argument rests on the presumption it did not breach the footage contract. All the costs Ruby seeks compensation for are directly attributable to the company's failure in the first place to drill the well in a workmanlike manner with adequate and proper equipment pursuant to standard practices. As an example, Ruby maintains the original estimate of sixteen hours of service time was grossly understated given the length of the project. It was, of course, a gross underestimate because Ruby's failure to perform in a workmanlike manner made an additional month necessary to repair and complete the well. Ruby also contends it waited fifty-one hours for the directional drillers to complete surveys. However, but for Ruby's breach of contract, directional drillers would not have been required.

[¶ 28] In fact, the trial court afforded Ruby significant credit in calculating Duncan's damages. It permitted $23 for 6,000 feet when at best Ruby drilled 3,150 feet, and perhaps it more accurately drilled only 1,550 feet once Baker Hughes filled the bore with concrete and redrilled it. In addition, the trial court credited Ruby with forty-five days of per diem at $300 per day. This certainly appears to be a generous computation as Ruby's actions necessitated the extension of the project.

[¶ 29] Damages are factual findings which we do not reverse unless they are clearly erroncous. Cross v. Berg Lumber Company, 7 P.3d 922, 928 (Wyo.2000). The record supports the trial court's damages award, and we cannot conclude the award was clearly erroneous.

[¶ 30] Affirmed.

       Ruby did not present testimony claiming a precise number of hours under this contract provision (example: time re casing). However, Clint Ruby testimony provided proof by a preponderance that at least 64 hours of work was expended and deserves compensation under this line item (48 hrs on rental pump #1; 31 hrs on rental pump # 2; minus 10 hrs attributed to Ruby crossing lines).


author: VOIGT, Justice. KITE, Justice,

text:
    2002 WY 87
    In the Matter of Lawrence AVERY, d/o/b 09-18-28: Lawrence Avery, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
    No. 01-104.
    Supreme Court of Wyoming.
    June 7, 2002.

      Donald L. Painter, Casper, Wyoming, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Bryan A. Skoric, Senior Assistant Attorney General, Cheyenne, Wyoming, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶ 1] After pleading no contest, Lawrence Avery, the appellant, was convicted in 1985 of first-degree sexual assault and second-degree sexual assault, the victims being his step-grandchildren. He was sentenced to ninety days in a community alternatives program or forty-five days in jail, to be followed by two years of supervised probation. In September 2000, the State filed an Application for Hearing to Designate Risk of Re-Offense, pursuant to the Wyoming Sex Offender. Registration Act. In February 2001, the State filed an Amended Application for Hearing to Designate Risk of Re-Offense, in which several allegations were added as to recent behavior that suggested a high-risk classification was in order. The appellant appeals the district court's determination that he poses a high risk to re-offend. We find insufficient evidence to support the district court's order and we, therefore, reverse.

ISSUE

[¶ 2] The appellant words the issue as follows:

Whether, as a matter of law, there was sufficient evidence for the district court to enter an Order and Designation of High Risk of Re-offense.

The State posits the issue as follows:

Did the State show that appellant posed a high risk of re-offense by a preponderance of the evidence?

THE WYOMING SEX OFFENDER REGISTRATION ACT

[¶ 3] In 1994, this state adopted the Wyoming Sex Offender Registration Act (the Act). Wyo. Stat. Ann. § 7-19-801 (Lexis-Nexis 2001) contains several rather complex definitions that are determinative of which offenders must register and for which crimes. Suffice it to say for purposes of this appeal that the appellant's 1985 convictions required him to register. He has not raised his duty to register as an issue in this appeal.

[¶ 4] In addition to registration, the Act provides for a process whereby certain sex offenders are to be classified as to their risk of re-offense. That process is found in Wyo. Stat. Ann. § 7-19-808 (LexisNexis 2001). The appellant does not contend that he should not be subject to this process. Rather, he contends that the evidence presented was insufficient for the district court to have classified him as high risk, when considered under the mandatory factors of Wyo. Stat. Ann. § 7-19-803(d):

In determining an offender's risk of reof-fense under subsection (c) of this section, the court shall consider:
(i) Conditions of release that minimize risk of reoffense, including whether the offender is under supervision of probation or parole, receiving counseling, therapy or treatment, or residing in a home situation that provides guidance and supervision;
() Physical conditions that minimize the risk of reoffense, including advanced age or debilitating illness;
(Mi) Criminal history factors indicative of high risk of reoffense, including:
(A) Whether the offender's conduct was found to be characterized by repetitive and compulsive behavior;
(B) Whether the offender served the maximum term under the court order;
(C) Whether the offender committed the sexual offense against a child;
(D) Whether psychological or psychiatric profiles indicate a risk of recidivism;
(E) The offender's response -to treatment;
(F) Recent behavior, including behavior while confined or while under supervision in the community as well as behavior in the community following service of sentence;
(G) Recent threats against persons or expressions of intent to commit additional crimes; and
(H) Other criminal history factors, including:
(I) The relationship between the offender and the victim;
(II) Whether the offense involved the use of a weapon, violence or infliction of serious bodily harm;
(III) The number, date and nature of prior offenses.

STANDARD OF REVIEW

[¶ 5] On appeal, sufficiency of the evidence is analyzed by viewing the evidence in the light most favorable to the prevailing party and by affording to the prevailing party the benefit of all reasonable inferences that may be drawn from that evidence. Nollen v. State, 12 P.3d 682, 684 (Wyo.2000) (quoting Rodriguez v. State, 962 P.2d 141, 148 (Wyo.1998)). We do not reweigh the evidence or re-examine the credibility of the witnesses. Nollen, 12 P.3d at 684 (quoting Rodriguez, 962 P.2d at 148). Neither do we usually consider conflicting evidence presented by the non-prevailing party. Williams v. State, 986 P.2d 855, 857 (Wyo.1999). Where, however, as here, the fact finder was a judge, rather than a jury, our role is somewhat more expansive:

"The factual findings of a judge are not entitled to the limited review afforded a jury verdict. Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 538 (Wyo.1993). While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Id. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail weighing disputed evidence. Id. Findings of fact will not be set aside unless the findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id."

Stroup v. Oedekoven, 995 P.2d 125, 128 (Wyo.1999) (quoting Springer v. Blue Cross and Blue Shield of Wyoming, 944 P.2d 1173, 1175-76 (Wyo.1997)). When supported by substantial evidence, a judge's factual findings will not be disturbed on appeal unless they are against the great weight of the evidence. MeNeiley v. Ayres Jewelry Co., 886 P.2d 595, 597 (Wyo.1994); Leavell v. Linn, 884 P.2d 1364, 1368 (Wyo.1994).

[¶ 6] Obviously, sufficiency of the evidence cannot be evaluated without knowing the standard against which the evidence is to be measured. That is problematic in the present situation because the Act neither assigns the burden of persuasion nor says what that burden is to be. That fact is exacerbated by the failure of the parties to provide any guidance to this Court on the issue. The appellant does not even address the burden of proof. The State's entire analysis is as follows:

Appellant's hearing was a civil proceeding, not a criminal proceeding. The logical burden of proof which the State had to meet as the movant was showing by a preponderance of the evidence that Appellant posed a high risk of re-offense. Appellant has not argued for the application of a different burden of proof, and there is no logical basis for the application of a more rigorous standard in Appellant's hearing. The record shows that the State satisfied its burden of proving by a preponderance of the evidence that Appellant posed a high risk of re-offense.

[¶ 7] It is true that the Act is a regulatory device, not a method of imposing criminal punishment. Johnson v. State, 922 P.2d 1384, 1387 (Wyo.1996); Snyder v. State, 912 P.2d 1127, 1180-31 (Wyo.1996). Consequently, it is not difficult to conclude that "beyond a reasonable doubt" is not the appropriate standard. That is not the same as saying, however, that "preponderance of the evidence" is the correct standard. Contrary to the State's observation, there may well be some logical basis for a more rigorous standard. It has been held that due process under the Fourteenth Amendment to the United States Constitution requires not only that the state carry the burden of persuasion at sexual offender classification hearings, but that it do so by clear and convincing evidence. E.B. v. Verniero, 119 F.3d 1077, 1106-11 (8rd Cir.1997), cert. denied, 522 U.S. 1109, 118 S.Ct. 1039, 140 L.Ed.2d 105, cert. denied, 522 U.S. 1110, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998). See also Jane A. Small, Note, Who are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws, 74 N.Y.U. L.Rev. 1451 (Nov.1999).

[¶ 8] As mentioned above, this issue has not been briefed in the instant case. The appellant ignored the issue and the State assumed the burden of proof standard was "preponderance of the evidence." Because important constitutional and policy issues are involved, we do not intend to rule on the appropriate standard until such time as it is properly presented to us and adequately briefed. For purposes of the instant case only, we will follow the lead of the parties and consider the evidentiary issue as it has been presented; that is, as a question of the preponderance of the evidence. By doing so, we are not making a determination that such is the proper standard to be applied under the Act.

DISCUSSION

[¶ 9] Two witnesses testified at the hearing. The first, Lynn Cohee, is an investigator in the Natrona County Sheriffs Office. Cohee's testimony can best be described as an unsuccessful attempt to "hearsay in" allegations of improper sexual contact between the appellant and three minors during the period from 1995 to 1999. No specific improper conduct by the appellant was established through Cohee's testimony, and the district court did not indicate that it relied on Cohee's testimony in any way in reaching its decision.

[¶ 10] The second witness to testify was the appellant. His testimony contained considerable information that may be seen as relevant to the statutory factors to be considered by the district court:

1. At the time of the hearing, the appellant was seventy-two years old.

2. At the time of the hearing, the appellant was not married and lived with no one.

3. The male victim was seven years old and the female victim was six years old at the time of the original offenses.

4. The appellant denied the original offenses, contrary to statements he allegedly made that were included in the presentence investigation report.

5. The appellant served the full forty-five days of his jail sentence.

6. The appellant obtained no counseling.

7. The appellant has never been diagnosed with a mental or psychological problem. -

8. The appellant suffers from erectile dysfunction as a result of injuries received when a trailer fell on him, and he has not had an erection since that occurred, approximately in 1988. &

9. The appellant's probation was never revoked.

10. The appellant denied the allegations of any recent improper sexual contact with minors.

11. The appellant has had aneurysm surgery, with frequent angioplasty procedures thereafter.

[¶ 11] At the end of the classification hearing, the district court announced its decision and the reasons for it. For ease of analysis, we quote the comments verbatim:

THE COURT: Very good. I find matters such as the one presented here most challenging. My view of this particular case is that the factors set forth by statute cut both ways. There's many things that can be argued going both ways in this situation.
The question to be determined is not whether there has been re-offense but whether there's a risk of re-offense, and in my mind the factors that are laid out here can be analyzed in a couple of different ways. For example, the factors whether there are conditions of release that minimize the risk of re-offense, whether the offender is under supervision or received counseling, therapy or treatment.
In that regard, Mr. Painter is correct that he's not under supervision, he's not receiving counseling at this time. But on the other hand, even though it may not have been his fault, it appears to me that if someone were convicted of first degree sexual assault and second degree sexual assault that maybe even if it wasn't mandated by the Court that the problem be addressed by counseling, therapy, treatment, by dealing with the underlying problem that created the offense in the first place. So I can see where you could argue a factor like that to cut both ways.
Focusing on the offense itself, which is the criminal history factors, I have very big concerns. We have two serious convie-tions for the most serious sex offenses under Wyoming law, sexual assault in the first degree, sexual assault in the second degree. We have offenses committed against very young minor children. We have offenses committed against a male and a female. We have offenses he's committed against grandchildren.
There was a concern I have about the testimony of Mr. Avery basically denying any offense in the first hand relative to offenses to which he stands convicted. The Court clearly had to have accepted a factual basis to accept his pleas of nolo contendere in the first instance and his denial of statements made in a pre-sen-tence investigation which was adopted in the course of that criminal proceeding and documents his statement or his version of the offense substantially in my mind impeached his credibility in these proceedings.
So because of those primary factors, although I'm considering all of the factors, including clearly that his physical condition minimizes his risk for offense, I have to come down on the side of the State in this matter because of huge concerns I have in those areas I've identified.
I'm going to make a finding of a high risk for re-offense in this case and ask, Ms. Wilking, if you would, to prepare an order reflecting that ruling for Mr. Painter's approval as to form.

[¶ 12] Essentially, the points made by the district court are (1) the appellant had not undergone counseling or other therapy; (2) first-degree sexual assault and second-degree sexual assault are the most serious sexual assault crimes under Wyoming law; (8) the victims were children, a male and a female, and they were the appellant's step-grandehil-dren; (4) the appellant denied committing the offenses despite contrary statements contained in the presentence investigation report, which denial casts doubt on the appellant's credibility; and (5) the appellant's physical condition minimized the risk.

[¶ 13] The question now before this Court is whether these conclusions and the district court's decision to categorize the appellant as high risk are contrary to the great weight of the evidence. We conclude that such is the case. The evidence established that the appellant was a seventy-two-year-old man who, approximately sixteen years earlier, had been convicted of sexually assaulting his step-grandchildren. For some reason not explained in the record, he was allowed to plead no contest, and he served only forty-five days in jails. He successfully completed two years of supervised probation. Most glaringly absent from the evidence was proof, as opposed to accusation, of recidivism during the sixteen years since the offenses. In addition, the appellant's physical condition at least raised a serious question as to the likelihood of re-offense or even the ability to re-offend.

[¶ 14] Contrary to the district court's findings, the great weight of the evidence suggests that the appellant does not pose a high risk of re-offense. The State did not prove, for instance, that the appellant's conduct was "characterized by repetitive and compulsive behavior," or that there were any "psychological or psychiatric profiles [to] indicate a risk of recidivism," or that the appellant's recent behavior indicated a threat of re-offense, or that the appellant had made recent threats or expressions of intent to re-offend. Wyo. Stat. Ann. § and (D).

[¶ 15] There will be cases such as this one, where newly registering offenders committed their erimes many years ago. If the statutory classification system is to have any integrity, the State must prove more than the mere commission of the original offense, especially where the offender has been out and about in society during the interim without further offense. The five points outlined by the district court in this case might carry greater weight in the case of a recent crime with a newly released offender. However, they cannot very well meet the State's burden where the offender has been in the community for sixteen years without proven recidivism.

[¶ 6] We recognize that the risk classification scheme of the Act creates a dilemma for the district courts. The district court, without much information, is asked to predict the likely future conduct of an offender. If the district court "guesses" wrong, and someone who was assessed as low risk or moderate risk re-offends, the district court's judgment may be called into question, not to mention the fact that there will be a new victim or victims. On the other hand, if the district court takes the safer route, and classifies all offenders as high risk, then the" public warning feature of the system is rendered meaningless, and individual offenders are not treated fairly.

[¶ 17] The only way this statutory scheme will work is if the State is held to a burden of proof sufficient to allow the district court to distinguish one offender from another, utilizing the statutory factors. In the instant case, the great weight of the evidence simply did not justify placing the appellant in a high-risk category. ‘

[¶ 18] We reverse and remand for a new classification hearing under the statute.

VOIGT, Justice, delivered the opinion of the Court; KITE, Justice, filed a dissenting opinion, with which HILL, Justice, joined.

KITE, Justice,

dissenting, with whom HILL, Justice, joins.

[¶ 19] I respectfully dissent from the majority opinion. After stating the applicable standard of review, the majority proceeds to disregard the substantial evidence supporting the district court's findings and make its own determination without the benefit of observing 'the witnesses. The majority uses preponderance of the evidence as the standard of proof. This standard is met if the evidence leads the trier of fact to find that the existence of the contested fact is more probable than its nonexistence. Parker Land and Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1078 (Wyo.1993). "The conclusion of what preponderates is with the trier of fact." Id.; see also Curless v. Curless, 708 P.2d 426, 429 (Wyo.1985).

[I]t is important that the exercise of discretion be accompanied by the trial court's articulation of the factors considered and the weight accorded to them.... [AJrticu-lation of the reasons for the decision tends to provide a firm base for an appellate judgment that discretion was soundly exercised. It confines review of the exercise of discretion to its appropriate seope-Le., whether the relevant factors were considered and given appropriate weight....

United States v. Criden, 648 F.2d 814, 819 (3d Cir.1981); see also WJH v. State, 2001 WY 54, ¶ 18, 24 P.3d 1147, ¶ 18 (Wyo.2001); Pace v. Pace, 2001 WY 43, ¶ 15, 22 P.3d 861, 15 (Wyo.2001). The district court concelud-ed, based on all the evidence and consideration of the statutory factors, Mr. Avery presented a high risk of reoffense.

[¶ 20] If the record contains substantial evidence, we will not disturb a judge's factual findings on appeal unless they are against the great weight of the evidence. McNeiley v. Ayres Jewelry Co., 886 P.2d 595, 597 (Wyo.1994); Leavell v. Linn, 884 P.2d 1364, 1368 (Wyo.1994).

Findings of fact will not be set aside unless the findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

Springer v. Blue Cross and Blue Shield of Wyoming, 944 P.2d 1173, 1176 (Wyo.1997) (citation omitted); see also Stroup v. Oedekoven, 995 P.2d 125, 128 (Wyo.1999). Although a different judgment may have been reached and the question the district court faced may have been a close one, the court's findings are not clearly erroneous. It cannot be reasonably concluded, based upon this record, that a mistake was made.

[¶ 21] Two factors cause me to disagree with the majority's decision to reverse the district court's order. First, the record indicates the court considered substantial evidence, the most persuasive of which may have been Mr. Avery's own testimony. See-ond, the court carefully explained how the statutory factors were considered and weighed. Nothing in the statute mandates one factor should be determinative of the outcome. Instead, the district court is directed to find the appropriate level of risk of reoffense based upon a review of all the factors, weighing them equally. The majority places undo emphasis on the lack of evidence of actual reoffense and Mr. Avery's physical condition, which, contrary to the inference of the majority, does not prevent him from committing another sexual assault similar to those for which he was convicted.

[¶ 22] Evidence indicating a high risk of reoffense included the testimony of Lynn Cohee, an investigator for the Natrona County sheriff's office, and Mr. Avery and the record of the original offense. The nature of the original offense establishes several of the statutory factors. Mr. Avery was charged with and convicted of first-degree sexual assault and second-degree sexual assault of very young victims who were six and seven years old. Wyo. Stat. Ann. § 7-19-303(d)(ii)(C) (LexisNexis 2001). The children were Mr. Avery's step-grandehildren who were living with him at the time the crimes were committed. Wyo. Stat. Ann. § 7-19-308(d)@©(H)(I) (LexisNexis 2001). Mr. Avery pleaded no contest to the charges which constitutes an admission of all the essential elements of the charges. Zanetti v. State, 783 P.2d 134, 139 (Wyo.1989); State v. Steele, 620 P.2d 1026, 1028 (Wyo.1980).

[¶ 23] Significantly, at the hearing on the state's petition to designate Mr. Avery as high risk for reoffense, Mr. Avery was no longer subject to probation or parole; was not receiving any counseling, therapy, or treatment; and was not residing in a home situation that provided guidance and supervision. Wyo. Stat. Ann. § (Lex-isNexis 2001). Further, he refused to accept any responsibility for his conduct and denied ever having physical contact with his step-grandchildren. This denial directly contradicted his nolo contendere plea. His convietion required that he register his address with the sheriffs office and send a written notice of any change of address within ten days of establishing a new residence. Wyo. Stat. Ann. § 7-19-802(e) (LexisNexis 2001). Despite this, he admitted he had not been living at his registered address for over a year.

[¶ 24] Fundamental to a sexual offender's success in avoiding future offenses is acceptance of his problem and commitment to seek help. Mr, Avery's testimony showed neither. His blatant refusal to even admit the prior offense occurred and failure to comply with the registration requirements provided ample foundation for the district court's conclusion he was not credible and its belief Mr. Avery presented a high risk for reoffense.

[¶ 25] The majority dismisses Ms. Cohee's testimony as an attempt to "hearsay in" evidence concerning improper conduct by Mr. Avery with other minors since his conviction. While it is true that the alleged victims did not testify, Ms. Cohee testified she received a complaint against Mr. Avery in 1996 regarding allegations of sexual intercourse with two minors. She also testified to receiving a complaint in 1999 in which a ten-year-old girl claimed Mr. Avery performed oral sex with her. Ms. Cohee offered the results of a lie detector test administered on Mr. Avery as a result of those complaints, and Mr. Avery successfully objected to its admission into evidence. Ms. Cohee also testified regarding Mr. Avery's repeated denials of any wrongdoing during her interview with him. The record contains no explanation why the complaints did not result in formal charges. While certainly not proof beyond a reasonable doubt of repetitive behavior or recent threats, which are additional statutory factors to consider, this evidence demonstrated allegations of improper sexual contact with minors continued to be an aspect of Mr. Avery's life. Since this was not a eriminal proceeding but, as noted by the majority, was a regulatory one subject to the more lenient standard of proof of preponderance of the evidence, Ms. Cohee's testimony could certainly have substantiated the district court's belief, when considered together with the other evidence, that Mr. Avery presented a high risk of reoffense.

[¶ 26] The primary factor upon which Mr. Avery relied to demonstrate a low risk of reoffense was an injury he incurred which apparently caused him to be unable to achieve an erection. Wyo. Stat. Ann. § 7-19-303(d)(ii) (LexisNexis 2001) directs the court to consider "[plhysical conditions that minimize the risk of reoffense, including advanced age or debilitating illness." Neither Mr. Avery nor the majority provides an explanation, and none logically exists, how an inability to achieve an erection reduces the risk a sexual offender will reoffend through other means including fondling and oral sex. Mr. Avery and the majority also suggest that his age of seventy-two years and his aneurysm surgery somehow militate against the risk of reoffense. While advanced age and poor health may weigh in favor of a lower risk, those factors alone do not mandate such a conclusion.

[¶ 27] The majority effectively requires district courts to find a reoffense or a more recent conviction before a sexual offender can be designated as high risk. The legislature did not see fit to require such a finding to justify a high risk designation, and this court should refrain from allowing its apparent disagreement with the district court's factual finding to rationalize creation of a requirement not provided by the statute.

      . This approach utilizes a balancing test derived from Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), whereby the court considers four factors: (1) the private interest affected by the official action; (2) the risk of the erroneous deprivation of such interest through the procedures used; (3) the probable value of any alternative procedures; and (4) the government's interest.

      . A preponderance of the evidence is such evidence that leads the trier of fact to find that the existence of the contested fact is more probable than its non-existence. In re Worker's Compensation Claim of Johnson, 2001 WY 48, ¶ 9, 23 P.3d 32, 36 (Wyo.2001) (quoting Scherling v. Kilgore, 599 P.2d 1352, 1359 (Wyo.1979)).

      . One reason the district court expressed concern about the appellant's credibility was that the appellant now denied the original crimes, despite the fact that the sentencing court "had to have accepted a factual basis to accept his plea of nolo contendere. ..." The record does not, however, establish that the appellant, himself, established a factual basis and, furthermore, the establishment of a factual basis by a defendant upon pleading nolo contendere is not required. Peitsmeyer v. State, 2001 WY 38, ¶ 7, 21 P.3d 733, 734 (Wyo.2001); State v. Steele, 620 P.2d 1026, 1028 (Wyo.1980).