author: GOLDEN, Justice.

text:
    Michael Anthony SANDERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 99-48.
    Supreme Court of Wyoming.
    July 6, 2000.
    Rehearing Denied Aug. 3, 2000.

      Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Do-monkos, Appellate Counsel; T. Alan Elrod, Assistant Appellate Counsel; Scott Mitchel Guthrie, Assistant Public Defender. Argument by Mr. Guthrie.
    Representing Appellee: Gay Woodhouse, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Faculty Director, Emily R. Rankin, Student Intern, and Patrick Moran, Student Intern, of the Prosecution Assistance Program. Argument by Ms. Rankin and Mr. Moran.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   GOLDEN, Justice.

Michael Anthony Sanders (Sanders) appeals his conviction on one count of first degree murder in violation of Wyo.Stat.Ann. § 6-2-101(a) (Lexis 1999). Sanders challenges the trial court's refusal to instruct the jury on the offense of voluntary manslaughter, and its admission of a statement given to police by his co-defendant. Finding no abuse of the trial court's discretion in either of those rulings, we affirm.

ISSUES

In his initial brief Sanders raises this issue:

Did the district court deprive Appellant of his due process right to a fair trial, and abuse its discretion by refusing to offer the jury the defense's theory of the case instruction and a manslaughter instruction, when the evidence clearly warranted such instruction, as a lesser-included offense?

Sanders offers this issue in a supplemental brief;

Whether the admission of Sharay Burnett's out of court statement to police officers was a violation of Michael Sanders' sixth amendment right to confrontation and not harmless beyond a reasonable doubt.

The State's brief contains this statement of the issues:

I. Did the district court properly refuse to instruct the jury on the offense of voluntary manslaughter?
II. Did the district court properly admit into evidence the out-of-court statements of Sharay Burnett under Wyoming Rule of Evidence 804(b)(8), which excepts statements against penal interest from the hearsay rule?

FACTS

The facts of this case are presented in our decision on the appeal of Sanders' co-defendant, Sharay Burnett. Burnett v. State, 997 P.2d 1023, 1025 (Wyo.2000).

In September 1997, Burnett and the vie-tim moved in together and planned to be married. On October 8, 1997, Burnett's friend called her on the telephone. Sometime during their conversation, her friend had to use the restroom. He gave the telephone to Michael Sanders, and Sanders and Burnett conversed for several hours. Two evenings later, Sanders visited Burnett and the victim at their home. Sanders and the victim drank beer while Burnett cleaned another part of the home. The victim became intoxicated and despondent, and he told Sanders and Burnett he wanted to die. Sanders, obliging and resourceful, fashioned a weapon from a disposable razor, a plastic spoon, and a piece of electrical tape. Burnett filled the bathtub with water, kissed the vietim goodbye, and went into the bedroom to chant and meditate. The victim got into the bathtub.
Within a few minutes, Burnett heard the victim scream repeatedly, "Please, I changed my mind. I don't want to do this. I changed my mind." When she went to the bathroom to investigate, she saw the victim was injured, but still alive. Sanders told Burnett he needed a sharper knife and specifically asked for a steak knife, which Burnett obtained for him from her kitchen. Burnett returned to the bedroom, where she heard the victim continue to plead with Sanders. She returned to the bathroom in time to see Sanders stab the victim in the neck with the steak knife. Burnett lit a cigarette for Sanders, and then she sat by the door while Sanders stabbed the victim several more times.
Burnett and Sanders agreed that, if anyone inquired about the victim, they would say he went to get beer and marijuana but never returned. They walked to a liquor store to purchase beer and snacks, and then they returned to the house where they talked until about five o'clock in the morning. Later that morning, Sanders told a co-worker about the killing, showed him the victim's body, and asked for help in disposing of it. The co-worker called the police, and the police proceeded to the house where they found Burnett and the body. After the police informed Burnett of her rights, she gave a detailed rendition of the previous night's events.

Sanders was arrested that same morning and charged with one count of first degree murder. His trial commenced on October 19, 1998. He was convicted and sentenced to life in prison. Sanders appeals his conviction to this Court.

DISCUSSION

Standard of Review

Sanders claims of error concern jury instructions and the admission of evidence. We review a trial court's rulings in both of those areas under our abuse of discretion standard. Duckett v. State, 966 P.2d 941, 943-44 (Wyo.1998); Humphrey v. State, 962 P.2d 866, 870 (Wyo.1998). We have de-seribed that standard as follows:

We perceive the core of our inquiry as reaching the question of reasonableness of the choice made by the trial court. Henceforth, we will turn to a definition adopted in Martin v. State, 720 P.2d 894, 897 (Wyo.1986), in which we said:
Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria: it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985).

Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).

Jury Instruction

In his first assignment of error, Sanders scores the trial court for refusing his proffered jury instruction on voluntary manslaughter. We review a refusal of a proposed lesser-included offense instruction by applying the following test:

The trial judge must first determine if all the elements of the lesser offense are found within the greater; and, if so, is there some evidence that would rationally permit the jury to find the accused guilty of the lesser and not guilty of the greater offense. If such evidence is present, the instruction should be given.

State v. Keffer, 860 P.2d 1118, 1140 (Wyo.1993) (Cardine, J., concurring). See also Paramo v. State, 896 P.2d 1342, 1344 (Wyo.1995) ("A district court's failure to give a lesser included offense instruction when such an offense indeed exists, and the evidence presented would support conviction upon that offense, constitutes reversible error. Hatherton v. State, 761 P.2d 91, 95 (Wyo.1988).")

Sanders contends, and we agree, that voluntary manslaughter is a lesser-included offense of first degree murder. See Warren v. State, 835 P.2d 304, 322 (Wyo.1992) (Urbikit, C.J., dissenting). The first part of the Keffer test is therefore satisfied. The second part of the Keffer test requires us to determine whether the evidence presented at trial would have rationally permitted the jury to find Sanders guilty of manslaughter but not guilty of first degree murder. Sanders contends that the evidence supports a conclusion that he killed the victim but did so without malice. That characterization of the evidence, if accurate, would support a manslaughter instruction. In support of his claim that he killed without malice, Sanders points to testimony that he bore no ill will toward the victim; the victim asked Sanders to kill him; the two men drank beer together as new friends; and Sanders felt sorry for the victim.

We have accepted a definition of malice as an "intentional killing without legal justification or exeuse and under circumstances which are insufficient to reduce the erime to manslaughter." Braley v. State 741 P.2d 1061, 1069 (Wyo.1987). Thus, his claim is sustainable i#f the evidence at trial would allow the jury to reasonably conclude that he killed the victim with legal justification, or under circumstances that reduce the crime to manslaughter.

Sanders claims legal justification from the testimony that the victim wanted to die and asked Sanders to kill him. While there exists no Wyoming statutory or case law directly on point, an abundance of authority from other sources demonstrates the rule that a victim's consent to be killed is not a defense to a homicide charge. Gentry v. State, 625 N.E.2d 1268, 1273 (Ind.App.1993) ("First, consent is not a defense to conduct causing another human being's death."); State v. Couser, 567 N.W.2d 657, 660 (Iowa 1997) ("A substantial number of cases from other jurisdictions hold that one who actually performs or actively assists in performing an overt act resulting in the death of another person is guilty of homicide, irrespective of the victim's desire to die."); 40 Am.Jur2d Homicide § 105 (1999) ("In application of the general principle that private persons cannot license crime, so that the criminal cannot be excused by anyone's consent thereto, it is the rule that, in a prosecution for homicide, consent of the deceased is no excuse. The right to life and to personal security is not only sacred in the estimation of the common law, but it is inalienable.") Sanders, therefore, cannot show that he was legally justified in killing the victim.

To convince this Court that he killed the victim under cireumstances that reduce the crime to manslaughter, Sanders would need to show that he acted in the heat of passion. We have accepted the following definition of that term:

"Heat of passion" means such passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same or similar cireumstances as those in question which would cause him to act rashly, without reflection and deliberation, and from passion rather than from judgment.

Yung v. State, 906 P.2d 1028, 1036 (Wyo.1995). Sanders does not even attempt to convince us that he acted "from passion rather than from judgment." Such an attempt would be unavailing for two reasons. First, the victim's plea for death and Burnett's acquiescence therein are not the type of circumstances to which a reasonable person would react with a deadly passion. Second, there is no evidence that Sanders did in fact kill the victim in the heat of passion. Instead, the evidence clearly contradicts such a claim. Sanders refused to kill the victim until Burnett consented, hardly the act of someone consumed by passion. In addition, fashioning a weapon from three separate components is not a hallmark of passion, but an indication of planning and deliberation.

Sanders further argues that he was too intoxicated at the time of the killing to form the requisite intent for first degree murder. The State responds to Sanders' intoxication claim in two ways. First, while first degree murder is a specific intent crime, second degree murder is not; therefore, the absence of specific intent could reduce the charge to second degree murder but not to manslaughter. Second, the jury was instructed on the defense of intoxication but convicted Sanders nonetheless.

The evidence at trial cannot support a lesser-included offense instruction for manslaughter because there is no evidence that Sanders killed without malice in the heat of passion. In addition, Sanders' claim of voluntary intoxication does not require a manslaughter instruction. We, therefore, hold that the trial court did not abuse its disceretion by refusing Sanders' proffered manslaughter instruction.

Admission of Burnett's Statements

Sanders next contends that the trial court erred by admitting into evidence statements Sharay Burnett made to a police detective. He argues that those statements were hearsay, and their admission violated his right to confront the witnesses against him. "Hearsay evidence is ordinarily inadmissible; however, it can be received in evidence if it falls within one of the exceptions to the hearsay rule found in the Wyoming Rules of Evidence and it bears sufficient indicia of reliability to avoid violation of the Confrontation Clause." Johnson v. State, 930 P.2d 358, 361-62 (Wyo.1996). Sanders' brief disputes many of Burnett's statements that were not admitted at trial and fails to contest some that were admitted. We will, therefore, examine all the admitted statements for error.

Under W.R.E. 804(b)(8), statements that were against a declarant's penal interests when made are excepted from the hearsay rule if the declarant is unavailable to testify. That exception applies to statements that are self-inculpatory, including those that are "intertwined or closely connected to statements that another was also involved" and applies "even if spreading the blame serves the interests of the declarant." Brown v. State, 953 P.2d 1170, 1178 (Wyo.1998).

The following exchanges took place during the State's direct examination of the detective who questioned Burnett:

Q. During the course of your interview with Sharay Burnett, did she ever state that there came a time when there was formed some kind of an agreement or understanding between herself and Mr. Sanders that [the vie-tim} would die?
A. Yes.
Explain that, if you would. ©
Mr. Sanders had approached Sharay and said that he could not kill [the victim] without her permission. And she subsequently gave her permission by answering, yeah, whatever. p>
Q. Did he specifically ask her the question, do I have your approval to do this?
A. Correct.
Q. And she responded?
A. Yeah, whatever.

The statements of Burnett recounted above were clearly against her penal interests when made because they could aid her prosecution on a charge of conspiracy to commit murder. The next recorded admission of Burnett's statement is:

Q. According to Sharay Burnett, how long did this episode involving [the victim] and his death-when did it end?
A. Less than an hour, it concluded a little after 1:00 in the morning.
Q. According to Sharay Burnett, were there any other discussions between herself and Mr. Sanders after this initial part that you testified, do I have your approval? Were there any other discussions after that between herself and Mr. Sanders as to how [the vie-tim] would die?
A. Yes.
What did she state they discussed? ©
They discussed that they would use a razor. Sharay recollects that it was Mike Sanders who, broke the razor; that it was herself, Sharay, who provided the pipe with the tape on it. p
Q. This is the marijuana pipe we heard about? >
A. Correct, and it was Mike Sanders who had the spoon. That it was Mike Sanders who attached the blade of the disposable razor to the spoon using electrical tape.

These statements are even more inculpatory because Burnett not only conspired, she knowingly provided a portion of the intended murder weapon. The next use of Burnett's statements continues along the same lines:

Q. And who affixed the blade to the spoon handle?
A. -Mr. Sanders did.
Q. According to him?
A. According to him and Sharay.

Although this portion is more inculpatory of Sanders than of Burnett, it shows that Burnett knew what was happening, agreed to the plan, and did nothing to stop it. In addition, the information is substantiated not only by Sanders' statement to the detectives, but also by Sanders' testimony at trial. The use of Burnett's statements continued with:

Q. As it concerns the course of events that we talked about thus far-do I have your approval, and the preparations of this instrument-what act did Ms. Burnett say she did herself?
A. She provided the pipe with the tape on it.
Q. Who ran the bath water?
A. She did.
Moving on, according to Sharay Burnett, did she reflect to you in your interview with her any statements made by [the victim] once this agreement had been set in motion after this instrument has been prepared, after [the victim is] in the bathtub, did she reflect any statements made then by [the victim}? a
Yes, sir, she did. |p
Lay that out, if you would, so we know the context and what was said. &
A. Sharay was in her bedroom, which is a common wall to the bathroom, and she heard [the victim] scream out, "Please stop. I changed my mind."
Did she indicate in the course of your interview how many times this was said by [the victim]?
She said over and over, 10, 20 times.
You used the words seream out. Were those her words?
Yes. p»
"Please stop. I've changed my mind." Anything else? $
If you want to refer me to the correct page. p
Page 30, page 81. ©
Her statement? >
Yes, sorry. ©
"Please, I changed my mind. I changed my mind." p
As it goes into page 81, any other statements made? ©
"Please, I changed my mind. I don't want to do this. I changed my mind." p
You indicated where was [the victim] at that time? &
In the bathtub in the upstairs bathroom.
Did she indicate she could hear any noises in addition to the statements?
Yes.
What noise?
Thrashing of the water. The water was turned on in the tub. Thumping sounds.
So hearing this thrashing and the water rushing, the noises, and please stop, what did she state she did?
A. She left the bedroom and went towards the bathroom.

These statements are also self-inculpatory. The beginning of this exchange revisits Burnett's culpability for conspiracy and her part in preparing the intended weapon. The latter part shows that Burnett knew the victim was struggling and pleading for his life, yet she did nothing to assist him or summon help. The testimony continued with:

Q. Sharay moves to the bathroom area. Was there any conversation then she related to you between herself and Mr. Sanders?
Yes.
Q. What was that conversation?
A. Mr. Sanders asked Sharay if they had a sharper knife.
Q. And how did she respond?
A. She stated no.
Q. Did she state she could hear anything coming out of the bathroom at that time?
She could hear [the victim] gurgling.
Any other conversation between herself and Mr. Sanders?
Mr. Sanders asked if they had a steak knife and Sharay said she did.
What did she do?
She walked downstairs to the kitchen area and retrieved the steak knife.
What did she do with it?
Walked up the first set of stairs to the landing, and she gave it to Mike Sanders.

In the above exchange, Burnett admitted again that she heard the victim's plight and took no action to prevent his death. In addition, she provided a second weapon after the first one failed. The same information was presented again, as recorded below:

Q. Let's go back and do that sequence to make sure it's-after the point in time where you have got Sharay Burnett where she told you she is in her bedroom and she hears, "Please stop. I changed my mind," from [the victim], you indicated she went to the bathroom doorway. What conversation then was had, according to Ms. Burnett?
According to Ms. Burnett, Mike Sanders asked her if she had a sharper knife, where she responded no. Mike Sanders then asked her if she had a steak knife, and she responded yes.
And then what did Miss Burnett state she did, after saying, yeah, I got a steak knife?
She went to the kitchen downstairs and retrieved the knife.
What did Ms. Burnett state she did with that knife?
Back up the staircase, and about the landing of that staircase, Ms. Burnett stated this is when she gave this knife to Mike Sanders.

The final use of Burnett's statement is recorded as:

Q. Turning back then to your interview with Ms. Burnett. At this point in time where she hands the knife to Mr. Sanders on the landing of the stairs, did she indicate there was any further conversation between herself and Mr. Sanders then?
Yes. }
What did she state that was? ©
That-according to Ms. Burnett, that Mike Sanders had stated that they had to finish it; that it had gone too far. p
Did she agree with this? D
Yes. p
According to Ms. Burnett, where did they then go? ©
They went back to her bedroom.
. Did she state she heard anything from [the victim] at that time?
Yes.
What did she say she could hear from [the victim]?
[The victim] was saying please.
Did she indicate she heard any statements from Mr. Sanders at that time? $
Yes, she did.
state was saying?
Mr. Sanders was stating, "Let go of my arm. Let go of my arm. Lay your arms down." p
Q. Afterwards, sticking still with your interview with Ms. Burnett, [the victim] is dead, any conversation then about cover-up, what to say, what to do?
A. Yes, it was.
Q. What did Ms. Burnett state that conversation was?
A. That Mike instructed her if anyone should ask concerning [the victim], she should tell them that [the victim] left with two Mexicans to go buy some beer and marijuana.
Q. Did she agree that she could do that?
A. Yes, she did.
Q. And you had discussion about dispos- > ing of the body?
A. Yes, Mr. Sanders said that he would take care of that.

In this final excerpt, Burnett admitted that she conspired with Sanders to cover up the murder, another statement clearly against her penal interests.

Having determined that Burnett's statements were admissible under the rules of evidence, we must next, in accordance with our standard articulated in Johnson, determine whether they bear sufficient indicia of reliability to avoid violation of the Confrontation Clause. We hold that they do. First, the statements were very incriminating of Burnett. In fact, Burnett's entire statement to the detective was admitted at her trial; she was convicted as an accessory to first degree murder and sentenced to life imprisonment. See Brown, 958 P.2d at 1179-80 ("the very fact that a statement is self-ineul-patory is itself one of the particularized guarantees of trustworthiness that makes a statement admissible under the Confrontation Clause.") Second, Burnett was not offered any leniency in exchange for her statement, as evidenced by her conviction and life sentence. Id. at 1180. Finally, much of the detailed information in Burnett's statement is corroborated by Sanders' statement and testimony, the testimony of other witnesses, and the physical evidence presented at trial. Id. An example of that corroboration is her mention of the steak knife, which law enforcement officials did not locate until several days after Burnett's statement.

Burnett's statements to the detective were properly admitted under our rules of evidence and bore sufficient indicia of reliability. We, therefore, hold that its admission at trial was not an abuse of the trial court's disceretion. Because the trial court did not err in the admission of that testimony or in its instructions to the jury, we affirm Sanders conviction and sentence.

      . Wyo.Stat.Ann. § 6-2-101(a) (Lexis 1999) reads: Whoever purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate, any sexual assault, arson, robbery, burglary, escape, resisting arrest, kidnapping or abuse of a child under the age of sixteen (16) years, kills any human being is guilty of murder in the first degree.

      . Wyo.Stat.Ann. § 6-2-105(a) (Lexis 1999) reads:
      A person is guilty of manslaughter if he unlawfully kills any human being without malice, expressed or implied, either:
      (i) Voluntarily, upon a sudden heat of passion; or
      (ii) Involuntarily, but recklessly except under circumstances constituting a violation of W.S. 6-2-106(b).

      . Sanders' trial counsel conceded that Burnett was not available to testify because her appeal of her conviction was pending at the time of Sanders' trial.


source: Caselaw Access Project

author: MACY, Justice.

license: Public Domain

text:
    Corey MACK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 99-296.
    Supreme Court of Wyoming.
    July 11, 2000.
    Representing Appellant: Corey Mack, Pro Se.
    Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General.
    Before LEHMAN, C.J., and THOMAS, MACY , GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   MACY, Justice.

Appellant Corey Mack appeals from the denial of his motion for a sentence reduction.

We affirm.

ISSUES

Mack failed to present a statement of issues; however, the state provided the following issues which appropriately focus our attention on the arguments Mack makes in his brief;

I. Whether the district court abused its discretion in denying Appellant's motion for sentence reduction?
II. Whether claims other than those relating to the sentence reduction motion may be considered in an appeal from the denial of a motion for sentence reduction?

FACTS

On August 26, 1998, Carolyn Suval invited the victim to go to her home with her. Once they arrived at her home, Suval informed the victim that he would have to pay her for the time they spent together. The victim attempted to leave, but Mack entered the home at that point and insisted that the victim give his money to Suval. When the victim again attempted to leave the residence, Mack took the victim's wallet and removed $200 in twenty-dollar bills from it. Mack then struck the victim in the face, knocking him to the floor. Some blood from the newly inflicted wound on the victim's head spilled onto the floor, and Suval wiped it up with a rag. '

The victim was finally allowed to leave the residence, and he proceeded to the police department where he reported the incident. The police found Suval and Mack, along with blood spatters on the floor, a blood soaked rag, and $200 in twenty-dollar bills. Mack was arrested and charged with one count of robbery. He initially pleaded not guilty. The state later added a habitual criminal charge. Mack thereafter entered a conditional plea of nolo contendre to the robbery charge, and, in exchange, the habitual criminal allegation was dismissed. Mack was sentenced to serve a term in the Wyoming State Penitentiary of not less than four years nor more than six years. He filed a motion for a sentence reduction, which the district court denied. Mack appeals from that adverse ruling to this Court.

STANDARD OF REVIEW

A motion filed pursuant to W.R.Cr.P. 35(b) is ordinarily left to the sound discretion of the district court. Ayers v. State, 949 P.2d 469, 470 (Wyo.1997). The district court's decision is given considerable deference unless no rational basis exists for its conclusion. Barela v. State, 936 P.2d 66, 69 (Wyo.1997).

DISCUSSION

Wyo. Stat. Ann. § 6-2-401(b) (LEXIS 1999) provides for a maximum penalty of ten years in the state penitentiary for the offense of robbery. The term imposed by the district court was below the maximum penalty allowable by law. Although the four-to six-year sentence may seem harsh to Mack, when we consider Mack's significant criminal history along with the role he played in this crime, we cannot conclude that the district court abused its discretion.

We are not at liberty to address Mack's various other claims because they are not properly before this Court. A motion for a sentence reduction cannot be used to attack the validity of a conviction, nor may it be used as a substitute for a properly filed appeal. Smith v. State, 969 P.2d 1136, 1138 (Wyo.1998).

Affirmed.


text:
    AMOCO PRODUCTION COMPANY, Appellant (Petitioner), v. WYOMING STATE BOARD OF EQUALIZATION, Edmund Schmidt, in his official capacity as Chairman, Board of Equalization, Roberta A. Coates, in her official capacity as Vice Chairman, Board of Equalization, and Ronald Arnold, in his official capacity as a member of the Board of Equalization; and Wyoming Department of Revenue, Appellees (Respondents).
    No. 99-272.
    Supreme Court of Wyoming.
    July 13, 2000.
    Rehearing Denied, Aug. 3, 2000.

      Representing Appellant: John L. Bordes, Jr. of Oreck, Bradley, Crighton, Adams & Chase, Boulder, Colorado.
    Representing Appellee Department of Revenue: Vieci Colgan, Chief Deputy Attorney General; and Michael Dinnerstein, Assistant Attorney General.
    Before LEHMAN, C.J., and THOMAS, MACY , GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   MACY, Justice.

Appellant Amoco Production Company petitioned the district court for a review of the decision issued by the State Board of Equalization with regard to Amoco's liability for ad valorem taxes. The district court certified the case to the Wyoming Supreme Court pursuant to W.R.A.P. 12.09(b).

We reverse and remand.

ISSUES

Amoco presents several issues for our review on appeal:

JURISDICTION
1. Did the Board of Equalization Improperly Invoke Subject Matter Jurisdiction?
2. Does The Board of Equalization Possess Mandamus Powers Against A Taxpayer?
3. Does The Decision of The State Board of Equalization Violate the Doctrine of Collateral Estoppel?
PROCEDURE
4. Did The State Board of Equalization Commit Reversible Error When It Failed To Remove The Case From The Expedited Docket?
5. Did The State Board of Equalization Act Without Observance of Procedure When It Expanded Its Review To Matters Not Pleaded?
CONSTITUTION
6. Does the Decision of the State Board of Equalization Violate Article 15, §§ 3 and 11(a) and (d) of the Wyoming Constitution?
SUBSTANTIAL EVIDENCE
7. Is the Decision of the Board of Equalization Based on Substantial Evidence?
STATUTORY CONSTRUCTION
8. Did The State Commit Reversible Error When It Ruled W.S. § 39-2-201(J) was not applicable?
9. Did The Board of Equalization Commit Reversible Error When It Relied On W.S. 8-1-107?
10. Does The Decision of The Board of Equalization Violate W.S. § 89-2-2147
11. Did The Board Lack Statutory Authority When It Ordered Appellant To Pay The Gross Product Tax Without An Assessment Or Tax Bill?

FACTS

Amoco was the operator and working interest owner of the Wertz Dome Unit located in Sweetwater and Carbon Counties. It allocated the unit's production between the two counties. The counties were concerned about the allocation because it affected their ad valorem tax revenues, and Amoco was concerned about the allocation because Sweetwater County had a higher mill levy than Carbon County had.

Appellee Wyoming Department of Revenue contracted with a private auditor to examine the Wertz Dome Unit production for 1980 through 1988. The audit concluded that Amoco had misallocated the production between the two counties during those years by overallocating the production to Carbon County and underallocating it to Sweetwater County. The Department of Revenue communicated the audit results to Amoco, and Amoco asserted that the two-year limitation set out in Wyo. Stat. Ann. § 89-2-201(J) (Mi-chie 1997) (repealed 1998) allowed the Department of Revenue to review only the 1987 and 1988 production years. On July 2, 1990, the State Board of Equalization issued a special directive to Sweetwater and Carbon Counties with regard to Amoco's 1987 and 1988 production.

On February 28, 1994, the Department of Revenue sent a letter to Amoco which included a reference line stating: "RE: Final Determination of Oil Production Allocation for the Wertz Dome Unit (1980-1986 Production Years)" The Department of Revenue stated in the letter that Amoco had improperly allocated the production for the Wertz Dome Unit between Sweetwater County and Carbon County for the 1980 through 1986 production years. The letter also informed Amoco that, if it did not agree with the Department of Revenue's determination, it could appeal to the State Board of Equalization.

Amoco filed an appeal with the State Board of Equalization. The State Board of Equalization assigned the case to its expedited docket and, after reviewing the parties' briefs, affirmed the Department of Revenue's decision. Amoco filed a petition for a review of the State Board of Equalization's decision, and the district court certified the case to this Court.

STANDARD OF REVIEW

When an administrative decision is certified to the Wyoming Supreme Court pursuant to W.R.A.P. 12.09(b), we apply the appellate standards which are applicable to the court of the first instance. Petroleum Inc. v. State ex rel. State Board of Equalization, 983 P.2d 1287, 1239 (Wyo.1999); Union Telephone Company, Inc. v. Wyoming Public Service Commission, 907 P.2d 340, 341-42 (Wyo.1995). Wyo. Stat. Ann. $ 16-3-114(c) (LEXIS 1999) governs judicial review of administrative decisions. W.RAP. 12.09(2); Everheart v. S & L Industrial, 957 P.2d 847, 851 (Wyo.1998). If substantial evidence supports an agency's findings, we will not substitute our judgment for that of the agency. Hepp v. State ex rel Wyoming Workers' Safety and Compensation Division, 977 P.2d 682, 685 (Wyo.1999). If the agency's conclusions of law are in accordance with the law, this Court will affirm them. Corman v. State ex rel. Wyoming Workers' Compensation Division, 909 P.2d 966, 970 (Wyo.1996). When an agency has not invoked and properly applied the correct rule of law, we correct the error. Petroleum Inc., 983 P.2d at 1289.

DISCUSSION

A. Subject Matter Jurisdiction

Amoco maintains that the State Board of Equalization did not have subject matter jurisdiction to decide the issues presented in this case. The Department of Revenue contends that the State Board of Equalization properly invoked its subject matter jurisdiction. We agree with the Department of Revenue.

The concept of subject matter jurisdiction is applicable equally to courts and administrative agencies. See State ex rel. Wyoming Workers' Safety and Compensation Division v. Wright, 983 P.2d 1227, 1231 (Wyo.1999); Routh v. State ex rel. Wyoming Workers' Compensation Division, 952 P.2d 1108, 1114 (Wyo.), cert. denied, 525 U.S. 814, 119 S.Ct. 49, 142 L.Ed.2d 38 (1998). An agency does not have discretion in determining whether or not it has subject matter jurisdiction; subject matter jurisdiction either exists or it does not. Weller v. Weller, 960 P.2d 493, 495 (Wyo.1998). If an agency lacks subject matter jurisdiction, any proceeding conducted by it has a fundamental defect "which cannot be cured by waiver or consent by the parties." 960 P.2d at 496; see also Pawlowski v. Pawlowski, 925 P.2d 240, 243 (Wyo.1996).

"Subject matter jurisdiction is 'the power to hear and determine cases of the general class to which the proceedings in question belong.'" Lacey v. Lacey, 925 P.2d 237, 238 (Wyo.1996) (quoting Fuller v. State, 568 P.2d 900, 903 (Wyo.1977)); see also Weller, 960 P.2d at 495. The statute which outlined the basic powers of the State Board of Equalization during the time in question stated in pertinent part:

(a) The state board of equalization shall perform the duties specified in article 15, section 10 of the Wyoming constitution and shall hear appeals from county boards of equalization, review final decisions of the department [of revenue] on state excise taxes and review department assessments of property and tax determinations.

Wyo. Stat. Ann. § 39-1-804(a) (Michie 1994) (amended 1995 & repealed 1998).

In its argument on this issue, Amoco does not dispute the Department of Revenue's general power to examine a taxpayer's production reports and allocation determinations or the general power of the State Board of Equalization to review the Department of Revenue's decisions. Instead, Amoco argues that the Department of Revenue's February 28, 1994, letter was not appealable because it was not a final determination. Amoco claims that, rather than sending a letter to it which set out the decision, the Department of Revenue should have issued its final determination by formally certifying the new valuation to the county assessors with a notice of valuation change or a special directive.

Amoco cites various statutes and administrative rules and regulations which govern certification of taxable valuations to the county assessors. See, e.g., Wyo. Stat. Ann. § 39-2-201(e) (Michie 1997) (repealed 1998). Amoco does not, however, direct us to any statutory or regulatory authority which states that the Department of Revenue must make its final determination concerning allocation decisions by issuing a notice of valuation change or a special directive. Indeed, the relevant statutes seemed to envision that the. taxpayer would be notified of the Department of Revenue's valuation decision and given an opportunity to contest the assessment before the valuation was certified to the counties. See, eg., Wyo. Stat. Ann. § 39-2-201(d) & (e) (Michie 1997) (repealed 1998). Amoco appeared to agree at the administrative level with the Department of Revenue's means of issuing its final determination. It stated in its brief to the State Board of Equalization that the Department of Revenue's letter was a final determination which was subject to appeal and that it believed "a Notice of Value or corresponding tax notices from Sweetwater [CJounty would be forthcoming."

This Court agrees with the Department of Revenue that its February 28, 1994, letter to Amoco was a final determination. The letter communicated the Department of Revenue's final and conclusive decision concerning the allocation of production from the Wertz Dome Unit for 1980 through 1986 and was subject to appeal. The State Board of Equalization, therefore, had subject matter jurisdiction to decide the issues presented in Amoco's appeal.

B. Expedited Hearing

Amoco contends that the State Board of Equalization violated its right to procedural due process by considering factual issues which were not included in its notice of appeal and by failing to remove the case from the expedited docket once it decided to expand the scope of the hearing. The Department of Revenue argues that we should not consider Amoco's complaints about the procedure employed by the State Board of Equalization because Amoco did not object to the procedure at the agency level. We agree with Amoco.

Parties to administrative proceedings are entitled to due process of law. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 (Wyo.1995); Amoco Production Company v. Wyoming State Board of Equalization, 882 P.2d 866, 872 (Wyo.1994). "Procedural due process principles require reasonable notice and a meaningful opportunity to be heard before government action may substantially affect a significant property interest." Pfeil, 908 P.2d at 961; see also Whiteman v. Wyoming Workers' Safety and Compensation Division, Department of Employment, 984 P.2d 1079, 1083 (Wyo.1999).

The procedures outlined in the Wyoming Administrative Procedure Act are designed to provide parties in administrative proceedings with due process. Roush v. Pari-Mutuel Commission of State of Wyoming, 917 P.2d 1133, 1143 (Wyo.1996). For example, Wyo. Stat. Ann. § 16-3-107(a) (LEXIS 1999) states in relevant part; "In any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice." Additionally, Wyo. Stat. Ann. § 16-8-107(J) (LEXIS 1999) provides in pertinent part: "Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved."

In the case at bar, Amoco's notice of appeal to the State Board of Equalization stated that the Department of Revenue's decision was contrary to the procedures, policies, and laws of the State of Wyoming and that the decision violated § 39-2-201(J). Pursuant to its own motion, the State Board of Equalization entered a briefing order, transferring the case to the expedited docket and establishing a schedule for submission of briefs. The briefing order stated that either party could "request reconsideration of disposition on written brieffs]" within ten days from the date of the order. Amoco did not object to the State Board of Equalization's decision to expedite the case, and both parties submitted briefs. Amoco argued that the Department of Revenue was not authorized under Wyoming law to reallocate the production from the Wertz Dome Unit for 1980 through 1986. It did not raise an issue regarding the methodology of allocating its production, and it did not present evidence to support its allocation method. Nevertheless, the State Board of Equalization found Amoco had not proven that it correctly allocated and reported its production for 1980 through 1986.

The State Board of Equalization violated Amoco's procedural due process rights and Amoco's rights under Wyo. Stat. Ann. § 16-3-107 (LEXIS 1999) when it addressed the factual issues regarding the propriety of Amoco's allocation of the Wertz Dome Unit production without giving Amoco notice of its intent to consider the issues and an opportunity to present evidence and argument in support of its position. Believing that the State Board of Equalization was simply going to address the legality of the Department of Revenue's actions, Amoco did not present evidence concerning its method of allocating the Wertz Dome Unit production. Although the Department of Revenue did present some evidence in the form of an affidavit which pertained to Amoco's method of allocating the Wertz Dome Unit production, the State Board of Equalization had an extremely sparse factual basis on which to decide whether or not Amoco appropriately allocated the production. The procedure employed by the State Board of Equalization in this case certainly did not promote full and fair development of the factual issues or provide a sufficient record for this Court to review the reasonableness of the State Board of Equalization's decision.

The Department of Revenue contends that Amoco waived its procedural due process claim by failing to present its arguments about the flawed procedure to the State Board of Equalization. A party is obligated to object at the agency level to the administrative tribunal's procedure so that the tribunal will have an opportunity to correct its errors. Wright, 983 P.2d at 1231. If a party has an opportunity to object to the administrative tribunal's procedural rulings and fails to do so, it waives its right to challenge the administrative tribunal's procedure on appeal. Id.

Although it is true that Amoco did not object to the State Board of Equalization's decision to place the case on the expedited docket, Amoco was not aware at that time that the State Board of Equalization was planning to consider the factual issues regarding the allocation of production. It could not be expected to object when it was not apprised of the State Board of Equalization's intent to consider the factual basis for its allocation. Amoco did not, therefore, waive its right to raise the procedural issue on appeal. See generally Wright, 983 P.2d at 1231 (holding, in contrast to this case, that the claimant was aware of the relevant circumstances when he participated in an expedited case process and, consequently, waived his right to assert a due process violation on appeal).

Because we conclude that the procedure employed by the State Board of Equalization was constitutionally flawed, we do not need to address the remainder of the issues presented by Amoco in its appeal to this Court. We realize that our decision today does not resolve the underlying controversy or the significant legal issues regarding ad valorem taxation presented in this case. It would, however, be improper for this Court to render an advisory opinion concerning the merits of the case on the inadequate record currently before us. The State Board of Equalization will, upon remand, conduct a contested case- hearing, and, hopefully, the other issues will be resolved, or at least fully addressed, at the administrative level.

Reversed and remanded.

      . Although the State Board of Equalization is listed as a party in the caption of this case, it properly did not file a brief or appear at oral arguments in accordance with our directives in Antelope Valley Improvement v. State Board of Equalization for State of Wyoming, 992 P.2d 563 (Wyo.1999), and our opinion on the petition for clarification, 4 P.3d 876 (Wyo.).

      . After repealing § 39-1-304 in 1998, the legislature passed a similar provision which is codified at Wyo. Stat. Ann. § 39-11-102.1(c) (LEXIS 1999).


author: LEHMAN, Chief Justice.

text:
    G.C.I., INC., Appellant (Defendant), v. Janet HAUGHT, Appellee (Plaintiff).
    No. 99-234.
    Supreme Court of Wyoming.
    July 17, 2000.

      Representing Appellant: Bill G. Hibbler, Cheyenne, WY.
    Representing Appellee: Michael R. O'Donnell of Burke, Woodard & O'Donnell, P.C., Cheyenne, WY.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   LEHMAN, Chief Justice.

After litigation over the construction of appellee Haught's home, the homebuilder, appellant G.C.L, Inc., and Haught entered into a settlement agreement by which G.C.L, Inc. agreed to make certain repairs. When G.C.I., Inc. failed to make the repairs, Haught filed suit, alleging breach of the settlement agreement. After a bench trial, the district court found that G.C.L., Inc. had breached the settlement agreement by failing to make the repairs in a reasonable time and awarded Haught damages. We affirm.

ISSUES

G.C.L., Inc. presents three issues for our review:

I. Because no time was fixed for performance within the agreement, was Haught required, as a matter of law, to make a demand upon GCI before a default or breach could occur?
II. Was the amount of damages awarded by the court, in excess of and contrary to the specific amount expressed by the parties' intent within the agreement?
III. Did Haught exeuse any non-performance by GCI by refusing to allow it to perform, when offered?

Appellee, Janet Haught, rephrases the issues:

1. Is the conclusion of the District Court that the Defendant/Appellant (G.C.I., Inc.) breached its contract with Janet Haught supported, by substantial evidence such that it is not clearly erroneous?
2. Is the conclusion of the District Court regarding the damages suffered by Janet Haught supported by substantial evidence such that it is not clearly erroneous?

FACTS

In early 1995, Janet Haught (Haught) and her husband Dwight hired appellant G.C.1., Inc. to build their "dream home" north of Cheyenne. The home was completed in mid-June of 1995. When the Haughts moved into their new home in late June and early July, they discovered a number of problems. Most obvious of the problems was a chimney that swayed in the wind. A "spongy" floor, i.e., one that bowed when walked on, was also a problem.

G.C.L., Inc. sued Haught in April of 1996 to recover monies due for the construction of the home. Haught counterclaimed, alleging that the workmanship was unsatisfactory. Court-ordered mediation was held in April of 1997, and a settlement agreement was filed in June of 1997. Under the terms of the settlement agreement, Haught agreed to pay $9800 into an escrow account, which she did immediately. When G.C.I., Inc. completed repairs, at its own expense, it would then be entitled to the $9800 held in escrow.

Pursuant to the terms of the settlement agreement, there were two categories of repairs: those the parties agreed on and those contingent on an engineer's report,. As to this second category, the parties agreed to retain an engineer to determine if certain repairs were necessary and also to determine the manner in which certain repairs would be performed. The engineer completed his report on December 10, 1997, and both parties were given a copy of the report.

G.C.L, Inc. never performed any of the repairs, and Haught filed the present action on June 2, 1998, alleging breach of the settlement agreement. Trial was bifurcated into a liability phase and a damages phase. The liability phase was tried to the bench on January 29, 1999, whereafter the district court determined G.C.I., Inc. breached the settlement agreement. The damages phase was held May 25, 1999, where the district court determined that G.C.I., Inc. was liable to Haught for damages of $76,163.36. The district court allowed G.C.1., Inc. to offset the $9800 escrow amount, thus leaving it liable to Haught for $66,863.36. G.C.I., Inc. appealed.

STANDARD OF REVIEW

In this case, we are asked to review both the district court's findings of fact as well as its conclusions of law.

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. Hopper v. All Pet Amimal 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)). A district court's conclusions of law are reviewed de novo. Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 538 (Wyo.1993).

This dispute arises over a settlement agreement. We have previously stated that a settlement agreement is a contract subject to the same legal principles as those which apply to any contract. Exxon Corp. v. Board of County Comm'rs, Sublette County, 987 P.2d 158, 165 (Wyo.1999); Aztec Gas & Oil Corp. v. Roemer Oil Co., 948 P.2d 902, 903 (Wyo.1997); Matter of Estate of McCormick, 926 P.2d 360, 362 (Wyo.1996); Wyoming Bd. of Certified Public Accountants v. Christensen, 800 P.2d 853, 856 (Wyo.1990).

DISCUSSION

Breach

G.C.L, Inc. argues it did not breach the settlement agreement because Haught never demanded the repairs be performed by a certain time. It argues that, where no time for performance is fixed in a contract, demand is necessary before a party may be held in default. Haught responds that, where there is no time specified for performance, an unreasonable delay constitutes a breach and a formalistic demand is not required.

We first examine the issue of reasonable time. Where, as here, no time for performance is specified in a contract, the law implies performance must be within a reasonable time, and what is a reasonable time depends upon the circumstances of each case. Bennett v. Foust, 996 P.2d 693, 697 (Wyo.2000); Matney v. Webster, 808 P.2d 212, 214 (Wyo.1991); Zitterkopf v. Roussalis, 546 P.2d 436, 439 (Wyo.1976); Black & Yates v. Negros-Philippine Lumber Co., 32 Wyo. 248, 258, 231 P. 398, 401 (Wyo.1924). An unreasonable delay in performance constitutes a breach and justifies the remedy of cancellation. Zitterkopf v. Roussalis, 546 P.2d at 439; Keller v. Hummel, 334 N.W.2d 200, 203 (N.D.1983). What constitutes a reasonable time in any particular case is a question of fact. Matney v. Webster, 808 P.2d at 214.

After reviewing the evidence, we conclude that the district court's finding that G.C.I., Inc.'s delay was unreasonable is not clearly erroneous. The settlement agreement was filed in June of 1997, and G.C.L., Inc. had not made the repairs prior to Haught filing suit in June of 1998. Haught's home was ostensibly completed in June of 1995, yet three years later the repairs to complete the home had not been made. Although G.C.LI., Inc.'s owner testified that he was in the process of lining up subcontractors to perform the work, the district court did not find this evidence persuasive. In making its findings from the bench, the district court stated:

There seems to be a posture taken here that, you know, I had this squeaking wheel, and I greased it by entering into this [settlement] agreement and I don't have to grease it again until it squeaks again. There just comes a point where the situation has to take on some urgency and be done promptly in order to be done within a reasonable period of time.

The district court found the delay was unreasonable, going so far as to say it was not even a close case. G.C.1., Inc. provides us with no persuasive reason to disturb this finding. Zitterkopf v. Roussalis, 546 P.2d at 439.

We shift our focus to the issue of demand. Although the settlement agreement did not require a demand for performance, G.C.1., Inc. argues a demand is required when a contract does not specify a time for performance. The general rule is that a demand is not a prerequisite to performance of a contractual obligation unless demand is required by the terms of the contract or the peculiar nature thereof. Ramesbotham v. Farmers Elevator Co. of Jefferson, 428 N.W.2d 542, 544 (S.D.1988); Albee v. Maverick Media, Inc., 239 Neb. 60, 474 N.W.2d 238, 243 (1991); 174 Am.Jur.2d Contracts § 610 (1991); 17B C.J.S. Contracts § 546 (1999). Accordingly, where an agreement is absolute and unconditional, the general rule is that no demand for performance is necessary before action may be brought.

The authorities are split, however, on whether a demand is required when, as here, the contract fails to fix a time for performance. McCall v. Atchley, 256 Mo. 39, 164 S.W. 593, 596 (1914); Seybold v. Magnolia Land Co., 376 So.2d 1083, 1086 (Ala.1979); Drake v. Martin, 30 Cal.App.4th 984, 36 Cal.Rptr.2d 704, 713 (1994) (demand "usually necessary"); 17B C.J.S. Contracts § 546. While some courts are hesitant to imply a demand requirement when the parties have failed to include one in their contract, other courts imply a demand requirement to allow the defaulting party to avoid defective performance and to promote the informal settlement of disputes. McClain v. Kimbrough Const. Co., Inc., 806 S.W.2d 194, 198 (Tenn.App.1990). We further note that there are instances in which courts will imply an obligation to give notice as a matter of common equity and fairness. McClain v. Kimbrough Const. Co., Inc., 806 S.W.2d at 198 ("Under the facts of this case, we find that Kim-brough had a duty to give McClain notice and a reasonable opportunity to correct its defective work before terminating the contract."). Under these cireumstances, rather than making a rigid rule that a demand is or is not required, we are inclined to adopt the more flexible approach utilized by the Tennessee court. Thus, we will look at the facts and cireumstances in this case to determine whether, in common equity and fairness, Haught should have been required to make a demand for performance before filing suit.

The district court found no reason to require that a demand be made. The court stated:

I recognize the law [G.C.L., Inc.] states is the requirement of a demand, but I think that rule has to be viewed in the context of the given situation. This agreement was entered into in settlement of a prior lawsuit. And I mean, how much does a customer have to demand before they are entitled to have somebody to just do it. That's what the Haughts were waiting for, somebody to do it, and nobody was doing it.

We agree and find no reason under these circumstances to require that a demand be made before Haught filed suit. In addition, although G.C.I., Inc.'s performance was conditioned in part on the engineer's report, there is no dispute that G.C.I., Inc. received a copy of that report and was thus well aware the condition had been satisfied. Moreover, we see nothing so peculiar about the contract such that a demand should be required. If anything, the peculiar nature of the settlement agreement may have created a situation where time was of the essence. We agree with the district court that no demand for performance was required.

G.C.L, Inc. also argues that Haught excused non-performance on its part by refusing to allow it to perform, when offered. However, the offer upon which G.C.L., Inc. relies was not made until after Haught filed suit in June of 1998. By this time, as the district court concluded, G.C.I., Inc. had already breached the contract by failing to make the repairs in a reasonable time. Thus, Haught had no obligation to accept G.C.L, Inc.'s offer to perform which, at the point it was made, amounted to another offer for settlement. See Western Alfalfa Milling Co. v. Worthington, 31 Wyo. 82, 88-89, 223 P. 218, 220 (Wyo.1924).

Damages

In attacking the district court's ruling on damages, G.C.I, Inc. argues the $9800 Haught paid into escrow as part of the settlement agreement was intended as liquidated damages in the event G.C.I., Inc. did not perform under the terms of the settlement agreement. We disagree.

A provision for liquidated damages is generally defined as follows:

" Generally speaking, it may be said that when the damages arising from the breach of the contract which the obligation is given to secure are uncertain in their nature and not readily susceptible of proof by the ordinary rules of evidence, and are not so disproportionate to the probable damages suffered as to appear unconscionable, and it is reasonably clear from the whole agreement that it is the intention of the parties to provide for liquidated damages and not a penalty, such a stipulation will be held to be one for liquidated damages.'"
In Ray v. Electrical Products Consolidated, Wyo., 390 P.2d 607, 608 (1964), we adopted that said in Restatement, Contracts, § 339, p. 552 (1932):
"'(1) An agreement, made in advance of breach, fixing the damages therefor, is not enforceable as a contract and does not affect the damages recoverable for the breach, unless
"'(a) the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach, and
"'(b) the harm that is caused by the breach is one that is incapable or very difficult of accurate estimation."

Walker v. Graham, 706 P.2d 278, 281 (Wyo.1985) (selected citations omitted); see also Jessen v. Jessen, 810 P.2d 987, 990 (Wyo.1991). While normally the question in a liquidated damages case is whether the provision in question amounts to an impermissible penalty, this case presents the question of whether the provision in question was intended to be a liquidated damages provision. In other words, is the provision in question "[a]n agreement, made in advance of breach, fixing the damages therefor?"

It is clear the $9800 placed in escrow was the amount G.C.I., Inc. would receive if it performed under the terms of the settlement agreement. Nowhere does the settlement agreement indicate that the $9800 figure was intended to serve as Haught's damages in the event G.C.I., Inc. breached the settlement agreement. Thus, we agree with Haught that the escrow provision was not intended to fix the damages for breach and is thus not a provision for liquidated damages.

Having concluded that the $9800 was not intended to serve as liquidated damages, we turn to the amount of damages awarded. Generally,

[tlhe damages awarded in an action for breach of contract are designed to put the plaintiff in the same position as if the contract had been performed, less proper deductions. Robert W. Anderson Housewrecking and Excavating, Inc. v. Board of Trustees, Sch. Dist. No. 25, 681 P.2d 1326, 1333 (Wyo.1984). This measure of damages includes recovery for incidental or consequential loss caused by the breach. General Insur. Co. of America v. City of Colorado Springs, 638 P.2d 752, 759 (Colo.1981). In Reposa v. Buhler, 770 P.2d 235, 237-38 (Wyo.1989), we recognized the measure of damages for breach of contract set out in Restatement, Second, Contracts § 347 (1981):
Subject to the limitations stated in §§ 350-53, the injured party has a right to damages based on his expectation interest as measured by
(a) the loss in the value to him of the other party's performance caused by its failure or deficiency, plus
(b) any other loss, including incidental or consequential loss, caused by the breach, less
(c) any cost or other loss that he has avoided by not having to perform.

JBC of Wyoming Corp. v. City of Cheyenne, 843 P.2d 1190, 1195 (Wyo.1992).

In the record on appeal, there is no transcript from the damages phase of the trial. It is the appellant's burden to bring us a complete record on which to base a decision. Ahearn v. Ahearn, 993 P.2d 942, 949 (Wyo.1999); Stadtfeld v. Stadtfeld, 920 P.2d 662, 663 (Wyo.1996). When no transcript has been made of trial proceedings, this court accepts the trial court's findings as being the only basis for deciding the issues which pertain to the evidence. Willowbrook Ranch, Inc. v. Nugget Exploration, Inc., 896 P.2d 769, 771 (Wyo.1995); Armstrong v. Pickett, 865 P.2d 49, 50 (Wyo.1993). In the absence of anything to refute them, we will sustain the trial court's findings, and we assume that the evidence presented was sufficient to support those findings. Willowbrook Ranch, Inc. v. Nugget Exploration, Inc., 896 P.2d at 771; Osborn v. Pine Mountain Ranch, 766 P.2d 1165, 1167 (Wyo.1989). Here, because there is nothing in the record to refute the district court's finding on damages, we affirm the award of damages.

Affirmed.


text:
    Joseph P. BAUMGARTNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 98-130.
    Supreme Court of Wyoming.
    July 17, 2000.

      Representing Appellant: Sylvia Lee Hackl, Public Defender; Donna Domonkos, Appellate Counsel; Diane Courselle, Director, Wyoming Defender Aid Program; Michael C. Mace, Student Director; and L. Kirk Nurmi, Student Intern. Argument by Mr. Nurmi.
    Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General. Argument by Mr. Pauling.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired Juqe 2, 2000.

   LEHMAN, Chief Justice.

Joseph P. Baumgartner appeals his conviction of committing an immoral act with a minor in violation of Wyo. Stat. Ann. § 14-3-105, claiming that the district court erred in not granting him a new trial based on newly discovered evidence. We find no error and affirm his conviction.

ISSUES

Baumgartner states the issue as follows:

Whether the district court abused its discretion in denying Mr. Baumgartner's motion for new trial when it ruled that Mr. Baumgartner's newly discovered evidence was not material.

FACTS

On July 23, 1996, the Laramie County District Attorney signed an information alleging that in June of 1989, seven years earlier, Baumgartner committed an immoral act with his then one-and-a-half-year-old son. The criminal affidavit issued with the information alleged that Baumgartner's wife had entered the bathroom of their home while Baumgartner was taking a bath with his son and saw Baumgartner masturbating with their son's hands on his erect penis. Baum-gartner was charged with committing an immoral act with a minor in violation of Wyo. Stat. Ann. § 14-8-105 (Michie July 1986 Rpl.).

A trial on the charges was set to begin in district court on October 7, 1996. For reasons that do not appear in the record, the trial did not begin as scheduled and, on October 8, 1996, Baumgartner filed a motion in limine requesting the court to take judicial notice of a copy of a guardian ad litem report filed in an earlier divorce proceeding brought by his wife against her former husband in the State of New York. The motion alleged in essence that the report would show that his wife made an allegation against her former husband in the earlier action which was strikingly similar to the allegation she was making against Baumgartner in this criminal action. Through the report, Baumgartner sought to damage his wife's credibility before the jury by showing a pattern of conduct on her part of making unfounded accusations in order to maintain custody of and restrict visitation with her children. Baumgartner asked the court to take judicial notice of a copy of the report or, in the alternative, to continue the trial until such time as he could arrange for witnesses to come from New York to testify concerning the report. Although no order or transcript of hearing on Baumgartner's motion appears in the record, the request for continuance apparently was not granted as the case proceeded to trial on October 9, 1996.

On the day of trial, the State filed a motion to amend the information pursuant to W.R.Cr.P. 3(e). The motion sought to change the date on which the alleged immoral act occurred by one year, from June of 1989 to June of 1990. Again, no order or transcript of hearing on the motion appears in the record; however, an amended information was filed on October 10, 1996. The same day, the jury returned a verdict finding Baumgartner guilty of the crime charged.

On November 8, 1996, Baumgartner filed a motion for new trial, claiming that he was denied a fair trial because he was not allowed to present evidence of his wife's allegation against her former husband in the New York divorce action-evidence which, Baumgart-ner argued, was crucial to his defense. Although a hearing on the motion was scheduled for December 6, 1996, it does not appear from the record that a hearing took place on that date. On December 11, Baumgartner filed a supplement to the motion in limine filed before trial to which he attached a certified copy of the guardian ad litem report. Apparently nothing further happened at that time with respect to Baumgartner's motion for new trial, and on January 2, 1997, Baumgartner appeared for sentencing. The court imposed a sentence of three to five years in the Wyoming Penitentiary, suspended the sentence and placed Baumgartner on probation for four years. A judgment and sentence reflecting the court's determination was filed on January 6, 1997. On May 13, 1997, an order denying Baumgartner's motion for new trial was filed.

Several months later, probation revocation proceedings were commenced against Baum-gartner, and a revocation hearing was set for January 30, 1998. Just prior to the hearing, on January 28, Baumgartner filed a second motion for new trial, this time on the basis of newly discovered evidence. In his motion, Baumgartner claimed that in the process of removing personal items from his former home after his recent divorce from his wife, he discovered a calendar kept by his wife which provided him with a previously unavailable alibi defense. The calendar contains notations made by his wife in June of 1990 showing that he was working long hours and arguably could not have been home on the day he allegedly committed the crime for which he was convicted. A hearing was held on the motion on January 30, 1998, at which time the court denied the motion on the ground that the newly discovered evidence was not material given Baumgartner's admission that his wife in fact did find him in the bathtub with his son and with an erection. An order to that effect was entered on February 3, 1998. Baumgartner timely appealed from that order.

STANDARD OF REVIEW

A trial court has discretion in determining whether to grant or deny a defendant's motion for new trial Beintema v. State, 969 P.2d 1124, 1126 (Wyo.1998). In determining whether the trial court abused its discretion, we must decide whether the court could have reasonably concluded as it did. Id. We will not disturb the trial court's determination with respect to a motion for new trial unless we find that the trial court could not have reasonably concluded as it did. Id.

DISCUSSION

In order to obtain a new trial on the basis of newly discovered evidence, a defendant must establish each of the following factors: 1) he did not become aware of the new evidence until after the trial; 2) it was not because of lack of due diligence that the new evidence did not come to light sooner; 3) the evidence is so material that it would probably produce a different result; and 4) the evidence is not cumulative. Beintema, at 1126. If a defendant fails to prove any of these factors, the motion is properly denied.

Baumgartner identifies two pieces of evidence which he claims to have discovered after the trial: first, the calendar containing the notations made by his wife reflecting that he was working long hours in June of 1990, and second, evidence which he alleges shows that his wife testified falsely with respect to the guardian ad litem report. Neither of these items of evidence satisfies the test for newly discovered evidence warranting a new trial. -

The Calendar

Baumgartner argues that the calendar is crucial evidence to his defense because it directly contradicts his wife's trial testimony and shows that he could not have been home to commit the alleged offense in June of 1990, the time frame she testified the offense occurred. Baumgartner argues this evidence of an alibi is material evidence warranting a new trial.

There is no question that evidence tending to show a defendant could not have been present to commit an alleged crime is material to his defense as evidence of an alibi. Esquibel v. State, 399 P.2d 395, 399 (Wyo.1965). Whether the evidence at issue here can properly be characterized as alibi evidence is questionable given Baumgart-ner's admission that the event giving rise to the criminal charge in fact occurred. The question we must answer, however, is whether the evidence in this case is so material that it would probably produce a different result if a new trial is ordered. Having carefully reviewed the record before us, we are not persuaded that the calendar satisfies this prong of the newly discovered evidence test.

In June of 1996, after the allegations were made by his wife, Baumgartner gave a written statement to the police in which he admitted that his wife came into the bathroom while he was taking a bath with his son and that he had an erection. That statement, along with Baumgartner's testimony to the same effect, was presented at trial. Although there was disagreement about when the incident occurred and differing testimony as to exactly what occurred, there was no dispute that at some time during the 1988 or 1990 time frame, Baumgartner was in the bathtub with his son and had an erection. The question for the jury to decide was whose version of events to believe-that of Baumgartner's wife, who testified that she saw her husband masturbating with his son's hands on his erect penis, or that of Baum-gartner, who admitted that he was in the bathtub with his son and had an erection, but denied that he was masturbating with his son's hands on his penis. Given Baumgart-ner's statements that the event in fact occurred, the issue of whether it happened in June of 1990, or July of 1988 as Baumgartner testified, was not crucial to the question whether he committed the offense charged. Although the calendar may have been important in terms of contradicting the wife's testimony, evidence which merely impeaches or contradicts evidence produced at trial is not "new evidence" warranting a new trial based upon newly discovered evidence. Grable v. State, 664 P.2d 531, 533-34 (Wyo.1983).

The calendar also fails to satisfy the test for newly discovered evidence warranting a new trial for the reason that it is cumulative. In his opening statement, Baumgartner's counsel referred to the long hours Baumgartner was working during the time the amended information alleged the incident occurred. Baumgartner testified that in June of 1990 he was working two full-time jobs, 19 to 20 hours per day, and that on the day in question he only had 830 to 45 minutes at home between jobs. The calendar merely corroborates the testimony and argument already presented that Baumgart-ner was working long hours during part of the month of June of 1990. It is, therefore, cumulative and fails to satisfy the fourth prong of the test for newly discovered evidence.

Citing Derksen v. State, 845 P.2d 1383 (Wyo.1993), Baumgartner also argues that, because the State charged him with an offense occurring in June of 1990, it was error to permit the jury to convict if the evidence proved an offense that could not have occurred at that time. The Sixth Amendment to the Constitution of the United States and Article 1, Section 10 of the Constitution of the State of Wyoming provide that an accused has the right in all eriminal prosecutions to be informed of the nature and cause of the charge against him. The purpose of these constitutional requirements is to assure adequate notice of the accusations to the defendant to enable him to prepare a defense. Vernier v. State, 909 P.2d 1344, 1351 (Wyo.1996). The constitutional requirements are implemented in W.R.Czr.P. 3(b)(1), which provides that the information must be a "plain, concise and definite written statement of the essential facts constituting the offense charged."

Under the constitutional requirements and the criminal rule, an information is sufficient if it: 1) contains the elements of the offense charged; 2) fairly informs a defendant of the charge against which he must defend; and 3) enables a defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. Vernier, at 1351 (quoting Stewart v. State, 724 P.2d 439, 440 (Wyo.1986)). Applying this test, we have said in a number of cases that where a specific date is not an element of the offense charged, the allegation of a general time period is sufficient to give a defendant notice and allow him to adequately defend. Id. (and cases cited therein). We have also said that a specific date is not essential to the commission of the crime described in Wyo. Stat. Ann. § 14-8-105. Stewart v. State, 724 P.2d 439, 441 (Wyo.1986). We have further said that nonsuit may not be allowed on the ground that the State's evidence fails to fix any definite time for the offense where there is sufficient evidence that the defendant committed each essential act of the offense. Id.

Baumgartner admitted that he was in the bathtub with his young son and had an erection. Although he testified that this event occurred in June of 1988, rather than June of 1989 or 1990 as the information and amended information alleged, he did not challenge the fact of the event itself. Under these particular facts and cireumstances, we find that the information sufficiently gave notice to Baum-gartner. We do not find that the failure to allege the date of June 1990 prior to the day of trial prejudiced Baumgartner or hindered his ability to present a defense.

The Guardian Ad Litem Report

Baumgartner also claims that he is entitled to a new trial based on newly discovered evidence that the State's chief witness, his ex-wife, lied under oath during her testimony concerning the guardian ad litem report. At trial, defense counsel asked the wife if she recalled having seen the report before. The wife responded: "I honestly don't know if I have seen it before. I don't know if I've seen it before. I have boxes. I don't at this moment in time ever recall seeing that before."

Baumgartner asserts that after the trial the prosecuting attorney told defense counsel that he showed Baumgartner's wife the guardian ad litem report immediately before trial, Therefore, Baumgartner concludes, his ex-wife's testimony that she did not recall having seen the report before was false. Beyond the bare assertion in Baumgartner's brief, however, there is no evidence in the record verifying the prosecutor's alleged statement to defense counsel. Nowhere in the record do we find an affidavit of defense counsel or the prosecuting attorney or any other independent evidence of the prosecutor's purported statement to defense counsel. Absent some evidence in the record verifying appellate counsel's assertion, we cannot consider Baumgartner's claim that he is entitled to a new trial based on newly discovered evidence.

CONCLUSION

We find no error in the trial court's denial of Baumgartner's motion for new trial based on newly discovered evidence and affirm the conviction.


author: KAIL, District Judge, retired.

text:
    Rodrigo O. CONTRERAS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 98-263.
    Supreme Court of Wyoming.
    July 18, 2000.

      Representing Appellant: Sylvia L. Hack], State Public Defender; Donna Domonkos, Appellate Counsel; Diane Courselle, Director, Wyoming Defender Aid Program; and Kristen Cogswell, Student Intern.
    Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; and Jennifer A. Golden, Senior Assistant Attorney General.
    Before THOMAS, MACY, and HILL, JJ., ard GRANT, D.J., and KAIL, D.J., Ret.

       Retired June 2, 2000.

   KAIL, District Judge, retired.

Rodrigo Contreras appeals his convictions of two counts of delivery of a controlled substance in violation of Wyo. Stat. Ann. § 85-7-1031(a)(ii) (Michie 1997). His primary claim is that the trial court abused its discretion in allowing the jury, during its deliberation, to listen to audio tape recordings of drug transactions. Contreras further contends the trial court erred when it allowed a deputy sheriff to testify that standard procedures intended to ensure the reliability of undercover drug purchases were followed. Finally, he argues that the State did not present sufficient evidence to support his convictions. We find all of Contreras contentions unavailing, and we affirm his convictions and sentences.

ISSUES

This Statement of the Issues appears in Contreras' appellate brief:

ISSUE I
The trial court erred by allowing unintelligible cassette tapes into the jury room, establishing for the jury an unreliable and misleading reference by which Rodrigo Contreras was convicted of delivery of methamphetamine.
ISSUE II
The trial court erred by allowing the State's witness to testify that the procedures used to implicate Mr. Contreras were the procedures always used to implicate drug dealers, distorting the reliability of the key witness' testimony and misleading the jury into finding Rodrigo Contreras guilty.
ISSUE III
All of the evidence presented was not adequate to form the basis for a reasonable inference of guilt beyond a reasonable doubt by a finder of fact.

The State's appellate brief includes this Statement of the Issues:

I. Whether the trial court abused its discretion by allowing nontestimonial tapes into the jury room, where those tapes contained audible evidence of illegal drug transactions and the State presented other evidence of Appellant's guilt.
II. Whether the trial court committed plain error when it allowed a State witness to describe the standard procedures the State used in making two controlled purchases of methamphetamine from Appellant, to ensure its informant did not bring drugs into the purchase.
III, Whether the State presented sufficient evidence to support a finding that Appellant was guilty of delivering a controlled substance, where the State presented an informant's testimony that he purchased methamphetamine from Appellant on two separate occasions.

FACTS

On March 27, 1997, Uinta County Deputy Sheriff Burchell and another agent met with an informant to arrange a controlled purchase of methamphetamine from Contreras. The agents searched the informant and his vehicle, and concealed a transmitter and miniature cassette recorder in the informant's clothing. The agents gave the informant cash and instructed the informant to drive to Contreras' apartment and attempt to purchase the drugs. The agents kept the informant in sight until he entered the apartment, and then listened to the drug transaction through the concealed transmitter, The agents watched the informant leave Contreras' apartment, and kept him in sight as he drove to a prearranged location and turned over one-sixteenth of an ounce of methamphetamine. The next day, the agents and their informant repeated the process, again obtaining one-sixteenth of an ounce of methamphetamine.

The State charged Contreras with two counts of delivery of a controlled substance. At trial, Deputy Burchell testified about the procedures used, and the informant testified that Contreras was the person who sold him the drugs. The tape recordings of the transactions were introduced into evidence, as was the methamphetamine. The trial court allowed the jury to take the cassette tapes of the transactions into the jury room. The jury returned guilty verdicts on both counts. Contreras filed a timely appeal to this Court.

DISCUSSION

1. Cassette Tapes

In his first issue, Contreras contends the trial court erred by allowing the cassette tapes of the drug transactions into the jury room during deliberations. In a factually similar case, this Court said that tape recordings of drug transactions are non-testimonial, and "should be made available for a jury's review as any other exhibit." Warner v. State, 897 P.2d 472, 475 (Wyo.1995). This Court went on to say that

a trial court's ruling permitting a jury to review the tapes should not be disturbed on appeal absent a clear abuse of discretion. * * * In addition, the exercise of that discretion should be upheld so long as the audio recording is otherwise admissible, and where the state introduces something more than a minimal amount of other evidence of culpability.

Id.

We will first address the question of whether the cassette tapes were otherwise admissible. W.R.E. 402 states that "[alll relevant evidence is admissible, exeept as otherwise provided by statute, by these rules, or by other rules prescribed by the Supreme Court." W.R.E. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." While the cassette tapes alone could not prove Contreras' guilt, they do show that a drug transaction took place at which the informant was present. The instructions to the jury specified that delivery of a controlled substance to the informant was an element of each offense. Thus, the cassette tapes make the existence of an element of the offenses more probable than it would be without the cassette tapes. The cassette tapes, therefore, are relevant and admissible.

We next inquire whether the State introduced more than a minimal amount of other evidence of Contreras' culpability. In Warner, 897 P.2d at 475-76, we held that the test was satisfied when the law enforcement officers testified about what they heard while monitoring the informant's concealed transmitter; the informant testified about the drug purchase; and the drugs were introduced into evidence. Here, the State produced the same type of evidence. The agents testified about how they searched the informant before the purchase to ensure he had no other drugs; they testified about what they heard through the concealed transmitter; the informant testified that he bought the drugs from Contreras; and the drugs were introduced into evidence.

The cassette tapes were admissible at trial, and the State introduced more than a minimal amount of other evidence of Contreras' guilt. Therefore, we hold that the trial court did not abuse its discretion by allowing the cassette tapes into the jury room.

2, Law Enforcement Testimony

Contreras next argues that the trial court erred when it allowed Deputy Burchell to explain procedures used to ensure the reliability of drug buys, and testify that those procedures were followed in this case. Since Contreras' defense counsel did not object to the testimony at trial, we will apply our plain error standard of review. Plain error will not be assigned unless (1) the record clearly reflects the incidents urged as error; (2) appellant is able to demonstrate violation of a clear and unequivocal rule of law; and (8) it is shown that a substantial right of the appellant was materially prejudiced. Dike v. State, 990 P.2d 1012, 1019 (Wyo.1999) (guot-ing Bradley v. State, 635 P.2d 1161, 1164 (Wyo.1981)). The first prong of our test is satisfied: the record clearly reflects the deputy's testimony.

Contreras argues that the second prong is satisfied because the testimony improperly bolstered the testimony of the deputy and \the informant. He further contends that the challenged testimony was admitted in violation of W.R.E. 408, which reads:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The State responds that the deputy's testimony did not offer an opinion about the informant's credibility, and was probative of how the drugs came into the informant's possession by showing that the drugs could not have came from anywhere other than Contreras' apartment.

In support of his argument that Deputy Burchell's testimony improperly bolstered his own testimony and that of the informant, Contreras cites decisions of this Court holding that a witness may not testify or offer an opinion that another witness is telling the truth. Dudley v. State, 951 P.2d 1176, 1179 (Wyo.1998); McCone v. State, 866 P.2d 740, 751 (Wyo.1993), aff'd 83 F.3d 432 (10th Cir.1996); Whiteplume v. State, 841 P.2d 1332, 1340 (Wyo.1992); Zabel v. State, 765 P.2d 357, 362 (Wyo.1988). He also cites authority from outside this jurisdiction for the proposition that law enforcement officers may not give irrelevant testimony about law enforcement procedures or opinion testimony that affirms the credibility of. a prosecution witness. People v. Alfonso, 194 A.D.2d 358, 599 N.Y.S.2d 543, 544 (1993); People v. Ciaccio, 47 N.Y.2d 431, 418 N.Y.S.2d 371, 391 N.E.2d 1347, 1351 (1979).

Although Contreras accurately summarizes our holdings in the cases he cites, the facts of this case are distinguishable. The record reveals that Deputy Bure-hell never offered an opinion about the truthfulness of the informant's testimony. He merely explained departmental procedures designed to produce reliable information, which laid a proper foundation for the admission of the State's evidence. The deputy's testimony corroborated some elements of the informant's testimony, but admissible testimony that has the incidental effect of bolstering or corroborating other testimony is not inappropriate. Zabel, 765 P.2d at 361 (quoting State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359, 367 (1987).

The facts here are also distinguishable from the New York cases that Contreras cites. In Alfonso, 599 N.Y.S.2d at 544, a police officer testified, in detail, over repeated objections, about police tactics. The officer explained how locations were selected for anti-drug operations; described the roles of various members of the operation; described the equipment used by officers; and described the modus operandi of typical drug dealers. He also testified that he observed the defendant commit two uncharged offenses. Id. A bare majority of the court held that the officer's testimony was inappropriate because it "was not essential to fill any void in the evidence or to render otherwise incomprehensible testimony more understandable to the jurors * * *." Id. Deputy Burchell's testimony here was necessary to fill a void in the evidence; without it, the jury would have had no assurance that the informant entered Contreras' apartment with cash but not drugs, and left with drugs but no cash.

Ciaccio is similarly distinguishable. There, an officer testified that a hijacking victim's testimony was consistent with the modus operandi of local hijackers. Ciaccio, 418 N.Y.S.2d 371, 391 N.E.2d at 1351. The court held that

[wlhere, as here, the sole reason for questioning the "expert" witness is to bolster the testimony of another witness (here the victim) by explaining that his version of the events is more believable than the defendant's, the "expert's" testimony is equivalent to an opinion that the defendant is guilty, and the receipt of such testimony may not be condoned.

Id. As previously discussed, Deputy Bure-hell's testimony was admissible for purposes other than bolstering the informant's testimony. Ciaccio, therefore, is inapplicable here.

Contreras also asserts that the deputy's testimony violated W.R.E. 408 because "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury * * *." He goes on to paraphrase the rule, but offers nothing in the way of cogent argument or ‘Lpertinent authority. Pursuant to W.R.AP. 1.03, this Court need not consider the issue further. Hamburg v. Heilbrun, 891 P.2d 85, 87 (Wyo.1995). Contreras cannot show that a clear and unequivocal rule of law was violated; therefore, no plain error occurred.

3. Sufficiency of the Evidence

In bis final assignment of error, Contreras contends the evidence presented was insufficient to support a conclusion that he was guilty beyond a reasonable doubt. When reviewing a claim of insufficient evi-denee, this Court assumes that the evidence favoring the prevailing party is true, disregards the evidence favoring the unsuccessful party, and gives the prevailing party the benefit of every favorable inference that may reasonably be drawn from the evidence. Wentworth v. State, 975 P.2d 22, 25 (Wyo.1999) (quoting Willis v. Willis, 48 Wyo. 403, 49 P.2d 670, 678 (1935)).

Contreras bases his sufficiency argument on the informant's admittedly flawed character. He essentially contends that because the informant was the only witness who could identify Contreras as the seller of the drugs, the jury could not have reasonably concluded that Contreras was indeed the seller. This Court has made it abundantly clear that weighing the credibility of witnesses is the exclusive province of the trier of fact, and we will not substitute our judgment for theirs. Vargas v. State, 963 P.2d 984, 989 (Wyo.1998). The State's evidence, viewed in the most favorable light, shows that the informant purchased methamphetamine from Contreras. We hold, therefore, that suffi-client evidence supports Contreras' convictions on both counts.

The Judgment and Sentence of the trial court is affirmed in all respects.

      . Wyo. Stat. Ann. § 35-7-1031 was amended in 1998. At the time of Contreras' arrest, Wyo. Stat. Ann. § 35-7-1031 read, in relevant part:
      (a) Except as authorized by this act, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to:
      (i) A controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of a crime and upon conviction may be imprisoned for not more than twenty (20) years, or fined not more than twenty-five thousand dollars, ($25,000.00), or both; (i) Any other controlled substance classified in Schedule I, II or III, is guilty of a crime and upon conviction may be imprisoned for not more than ten (10) years, fined not more than ten thousand dollars ($10,000.00), or both{.]