author: VOIGT, Justice.

text:
    2003 WY 163
    Ronald Lee WHITE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-268.
    Supreme Court of Wyoming.
    Dec. 19, 2003.

      Representing Appellant: Kenneth M. Ko-ski, Public Defender; and Donna D. Domon-kos, Appellate Counsel.
    Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Senior Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and JAMES, D.J.
   VOIGT, Justice.

[¶ 1] In June 2002, a Carbon County jury found the appellant, Ronald Lee White, guilty of soliciting a minor under age sixteen to engage in illicit sexual relations in violation of Wyo. Stat. Ann. § 14-3-104 (Lexis-Nexis 2003), a felony. On appeal, the appellant contends that the prosecutor committed misconduct by eliciting improper hearsay, character, and victim impact testimony during the prosecution’s case-in-ehief and improperly shifting the burden of proof and vouching for the credibility of a witness during closing argument. We affirm.

ISSUES

[¶ 2] The appellant presents the following issues for our review:

Whether the prosecutor committed prose-cutorial misconduct when he elicited prejudicial victim impact statements, vouched for the credibility of the State’s witness, shifted the burden of proof and elicited hearsay testimony of a prior bad act without notice to defense counsel?

FACTS

[¶3] On September 16, 2001, Iva Bilger (Bilger) asked the victim, age fifteen, to babysit Bilger’s four-month-old son for a few hours. According to the victim, the appellant knocked on Bilger’s door while the victim was babysitting and identified himself as the infant’s grandfather. The appellant stated that he was “passing through” and “wanted to see the baby.” Believing the appellant to be Bilger’s father, the victim allowed the appellant to enter the apartment. The victim heard the appellant lock the front door upon entering the apartment, prompting her to wonder ‘What’s going to happen to me”? The appellant began staring at the victim because, he said, she was “beautiful....” He commented that “he wished he was younger because younger guys should like” the victim and asked the victim’s thoughts on interracial dating and younger girls dating “older guys” (the appellant stated he was forty-two years of age).

[¶ 4] The appellant then reportedly informed the victim that he was “7 inches long,” that she “could try it” and if that was not “big enough” for her, she could “move on to bigger and better.” When the victim attempted to refocus the appellant’s attention by playing with the infant, the appellant removed the infant. According to the victim, the appellant then asked about her personal hygiene, how much the victim “would charge him to have sex” with her, and whether she was interested in that proposition. The victim became “real hot” and “real nervous” and needed to take off her jacket, but the appellant told her she couldn’t take off the jacket unless she also took off her shirt. The appellant told the victim about his body piercings, offered similarly to pierce the victim and buy her jewelry, and said that the victim should stop by his trailer if she was ever in Wamsut-ter. The appellant eventually stated that he should leave before Bilger returned and that if the victim told anyone about the encounter, he would put his “boot in [her] ass and take [her] out south.” Bilger testified that the following day, the appellant phoned her and admitted that he asked the victim to “marry him, have sex with him”; “he wanted a sexual marriage relationship with her.”

[¶ 5] Deputy Jeff Walton of the Carbon County sheriffs office first interviewed the victim on September 17, 2001. The contents of that interview according to the deputy’s testimony appear to coincide with the victim’s trial testimony. Deputy Walton interviewed the appellant on September 18, 2001. According to Deputy Walton, the appellant admitted that he was alone with the victim at Bilger’s residence and told the victim how “beautiful or good looking she was.” The appellant stated that he and the victim discussed her breakup with a twenty-one-year-old boyfriend and she mentioned that she liked dating older men. Deputy Walton testified that the appellant provided conflicting information regarding several details, including the amount of time he was alone with the victim. The appellant did not testify at trial.

[¶ 6] In June 2002, a jury found the appellant guilty of soliciting a minor under age sixteen to engage in illicit sexual relations in violation of Wyo. Stat. Ann. § 14-3-104. The district court sentenced the appellant to serve a four- to five-year term of imprisonment and to pay $3,060.00 in restitution for the victim’s counseling and funds expended on the victim’s behalf, $2,235.00 in public defender’s fees, and other mandatory fees. The appellant appeals from that judgment and sentence.

STANDARD OF REVIEW

[¶ 7] We review allegations of prosecutorial misconduct “ ‘by reference to the entire record....’ ” Mazurek v. State, 10 P.3d 531, 542 (Wyo.2000) (quoting English v. State, 982 P.2d 139, 143 (Wyo.1999)). Such allegations “ ‘hinge on whether a defendant’s case has been so prejudiced as to constitute denial of a fair trial.’ ” Mazurek, 10 P.3d at 542 (quoting English, 982 P.2d at 143).

Prosecutorial misconduct “has always been condemned in this state.” Valerio v. State, 527 P.2d 154, 156 (Wyo.1974). Whether such misconduct has been reviewed on the basis of harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this Court has focused on whether such error ... affected the accused’s “substantial rights.” The accused’s right to a fair trial is a substantial right. Wyo. Const, art. 1, §§ 6, 9, and 10; and see, e.g., Jones v. State, 580 P.2d 1150, 1154 (Wyo.1978). Before we hold that an error has affected an accused’s substantial right, thus requiring reversal of a conviction, we must conclude that, based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused. Jones v. State, 735 P.2d 699, 703 (Wyo.1987). We read this standard to be in consonance with the standard followed by the United States Supreme Court[.]

Earll v. State, 2001 WY 66, ¶ 9, 29 P.3d 787, 789-90 (Wyo.2001). See also Lancaster v. State, 2002 WY 45, ¶ 31, 43 P.3d 80, 93-94 (Wyo.2002). The appellant bears the burden of establishing prosecutorial misconduct. Lancaster, 2002 WY 45, ¶ 32, 43 P.3d at 94.

[¶ 8] The appellant did not object to any of the alleged misconduct at trial. On appeal, it is therefore incumbent upon the appellant to demonstrate plain error in that “the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right.” Compton v. State, 931 P.2d 936, 939 (Wyo.1997).

DISCUSSION

IMPROPER HEARSAY*CHARACTER EVIDENCE

[¶ 9] The appellant contends that, on redirect examination, the prosecutor elicited improper hearsay and W.R.E. 404(b) testimony from Bilger regarding an incident involving the appellant and Bilger’s neighbor. The appellant’s trial counsel, not the prosecutor, first referred to the alleged incident during his cross-examination of Bilger and utilized it extensively in attempting to attack Bilger’s credibility and support the appellant’s theories of the case.

[¶ 10] On cross-examination, Bilger testified as follows:

[Defense counsel:] ... Isn’t it true that when you were questioned by the deputy sheriff about this, that you told the deputy sheriff that Ron White had sexually assaulted one of your friends a week or two prior to this?
[Bilger:] Yes.
Q. So now you’re telling us that you knew that — or you thought Ron White sexually assaulted one of your friends two weeks prior to this, but you still had him stay over at your house?
A. Yes.
Q. And you weren’t afraid; is that correct?
A. In fact, it was the weekend before, I believe.
Q. So you’re telling us that you thought that Ron White was sexualfly] assaulting one of your friends, but you weren’t afraid of him?
A. I knew he wouldn’t touch me. I wouldn’t allow it.
Q. Mr. White’s a lot larger than yon, isn’t he?
A. Yes.
Q. So if he were to decide to do something, there wouldn’t be much you could do, would there?
A. Yes.
Q. What would that be?
A. I do know how to defend myself.
Q. Did your friend know how to defend herself?
A. Apparently not.
Q. Okay. So you weren’t afraid that Ron White was going to do anything?
A. I had too much company.
Q. When you were staying with him alone?
A. No, I was never completely alone with him.
Q. Well, besides your young son, you were alone with him during that day, weren’t you, on that Monday?
A. My neighbor was there.
Q. And the day before that, you were alone with him, weren’t you?
A. My neighbor was there.
Q. There was no mention of anybody else being present in the statements to police.
A. [The victim] was the only one that e[a]me over while he was there.
Q. When he was there, you were alone with him, right?
A. And my front door stood open, yes.
Q. Whenever Ron White was over there after you learned that he — or thought he sexually assaulted your friend, you always kept the door open?
A. Yes.
Q. But you let him stay overnight?
A. Yes.
Q. So you weren’t really afraid?
A. I didn’t feel he was going to hurt me.
Q. Isn’t it true that you made up that story about him sexually assaulting your friend to get him in more trouble than he was in?
A. No.
Q. Did you report that sexual assault?
A. No, I was asked not to.
Q. As you sit here today, you are going to tell us today that you weren’t afraid of him?
A. I had ways of defending myself.
Q. You weren’t afraid for your son?
A. My son never left my sight.
Q. And how are you trained to defend yourself?
A. I have used my fists before.
Q. So you would—
A. And I do know pressure points.
Q. So you’ve beat people up before, is that what you’re saying?
A. No, I’ve had to defend myself.
Q. Have you fended off sexual assaults before?
A. Excuse me?
Q. Have you fended off sexual assaults] before?
A. Once.
Q. But even though you knew Ron White — or you felt that he might have sexually assaulted your friend, you weren’t afraid?
A. No.
Q. And you weren’t afraid to have those little girls come over after Ron White had told you that he had — or after Ron White told you that? You say that Ron said that he had asked [the victim] for sex?
A. I had not asked them to come over. On redirect examination, the prosecutor proceeded as follows:
Q. I guess, since we talked about this sexual assault and your neighbor that was brought up, I am going to ask you about that, about why that didn’t intimidate you.
A. Okay.
Q. Your testimony is that after that happened you didn’t feel intimidated?
A. I didn’t feel that he was going to hurt me. He called me his daughter.
Q. Tell us what happened, who was this person?
A. My best friend, [name].
Q. Where did [she] live?
A. Right across the hall....
Q. These are the two doors that were left open?
A. Yes.
Q. That was done all of the time, before the Defendant was involved, after the Defendant was involved? You just left your door open, correct?
A. Yes.[]
Q. What did [your neighbor] tell you happened?
A. She told me that he had asked — or she had gotten a back rub from him.
Q. From who?
A. From Ron. And that it proceeded to be a full body rub. And he had kept trying to—
Q. Let me stop you there. When, in relation to September 16, did this happen?
A. I want to say not even a week before the 16th.
Q. So there is no confusion, this was a consensual, as you say, body rub?
A. Yes.
Q. Go from there.
A. She had told me that he had continued to try to lick her vagina, and she had told him to stop several times. She told me that he had rubbed his penis on her back, and she had asked him to stop several times....
Q. And [your neighbor], is she an adult?
A. Yes.
Q. Okay. Did you ever put yourself in a position where he was giving you body rubs?
A. No.

The appellant did not object to this testimony at trial.

[¶ 11] “This Court has recognized that a defendant may open the door to otherwise inadmissible testimony when he inquires about a particular subject,” including evidence of prior criminal misconduct. Gayler v. State, 957 P.2d 855, 858 (Wyo.1998); see also Espinoza v. State, 969 P.2d 542, 546 (Wyo.1998), cert. denied, 528 U.S. 818, 120 S.Ct. 59, 145 L.Ed.2d 52 (1999). “When the defendant initiates a line of questioning, the prosecutor is entitled to make a permissible inquiry without crossing into prosecutorial overkill.” Espinoza, 969 P.2d at 546.

It is usually a basic function of redirect examination to allow a witness to explain his testimony elicited on cross-examination .... The opening of the door concept, however, reaches further and is an extension of that familiar rule. Succinctly stated, the “opening the door” rule is that a party who in some way permits the trial judge to let down the gates to a field of inquiry that is not competent but relevant cannot complain if his adversary is also allowed to avail himself of the opening within its scope.

Sanville v. State, 593 P.2d 1340, 1344 (Wyo.1979).

[¶ 12] We conclude that even if Bilger’s testimony on redirect examination was otherwise inadmissible, the appellant’s trial counsel “opened the door” to that testimony in cross-examining Bilger. It is evident from the cross-examination of Bilger that the appellant’s trial counsel sought to utilize the alleged incident to impeach Bilger’s testimony that she was not afraid of the appellant despite her claimed knowledge of the incident, establish that Bilger fabricated the alleged incident as part of her plot to “get rid of’ the appellant, and emphasize that Bilger’s actions were not consistent with her testimony as a whole or her testimony as to the alleged incident. In briefly eliciting the facts underlying the alleged incident relative to why Bilger might not have been afraid of the appellant under the circumstances, the prosecutor’s redirect examination did not cross the line between permissible inquiry and prose-cutorial overkill. See Espinoza, 969 P.2d at 546-47; Gayler, 957 P.2d at 859; and Sanville, 593 P.2d at 1344.

Victim Impact Testimony

[¶ 13] The appellant asserts that the prosecutor elicited irrelevant and prejudicial victim impact testimony from Deputy Walton in order to evoke sympathy from the jury. The testimony at issue concerned the victim’s demeanor when interacting with Deputy Walton. The State argues that the testimony was relevant in assessing the victim’s credibility. Both parties characterize the testimony as victim impact testimony in arguing the issue’s merits.

The key inquiry on the admissibility of victim impact testimony during the guilt phase of a criminal trial is relevancy. McCone v. State, 866 P.2d 740, 751 (Wyo.1993). Victim impact testimony must not be permitted “unless there is a clear justification of relevance.” Justice v. State, 775 P.2d 1002, 1011 (Wyo.1989). Such testimony may be irrelevant if offered during the guilt phase of the trial as proof of the victim’s loss; the physical, emotional, or psychological impact on the victim; or the effect upon the family. Yet, it may be relevant if offered for another proper purpose. Id. at 1010_
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” W.R.E. 401. In criminal cases, “[ejvidence is always relevant if it tends to prove or disprove one of the elements of the crime charged.” Grabill v. State, 621 P.2d 802, 809 (Wyo.1980); see also Lancaster v. State, 2002 WY 45, ¶ 42, 43 P.3d 80, ¶ 42 (Wyo.2002); Geiger v. State, 859 P.2d 665, 667 (Wyo.1993). Relevant evidence may be excluded, however, if “its probative value is substantially outweighed by the danger of unfair prejudice.” W.R.E. 403. For this court to conclude that the trial court admitted unduly prejudicial evidence in violation of W.R.E. 403, the appellant must demonstrate “that the evidence had little or no probative value and that it was extremely inflammatory or introduced for the purpose of inflaming the jury.” Apodaca v. State, 627 P.2d 1023, 1027 (Wyo.1981).

Wilks v. State, 2002 WY 100, ¶¶ 8-9, 49 P.3d 975, 981-82 (Wyo.2002).

[¶ 14] In the instant case, the victim testified as the prosecution’s first witness. Deputy Walton noted during his subsequent trial testimony that the victim was, at the very least, upset and crying during her trial testimony. The appellant’s trial counsel attacked the victim’s credibility while cross-examining the victim and Bilger. These attacks were consistent with the appellant’s theories that Bilger used the victim and police to “get rid of’ the appellant, that the victim’s actions after the incident were inconsistent with what would be expected if the circumstances occurred as she alleged, that the victim lied about not knowing the appellant prior to September 16th, and that the victim’s testimony was not credible because it conflicted with Bilger’s.

[¶ 15] Deputy Walton testified as the last witness during the prosecution’s case-in-chief. The testimony at issue arose in the context of Deputy Walton’s chronology in investigating the incident. The prosecutor first asked Deputy Walton about a September 17th, telephone call he received from the victim’s father, wherein the father called from home to report that the victim had possibly been sexually assaulted and the father had confronted the appellant and “punched him in the nose.... ” When asked if he could hear any “distinctive background noise” during the telephone call, Deputy Walton replied that the victim “was very upset, crying, even more so than she was this morning [at trial], with sobbing and that type of thing.” Deputy Walton admitted on cross-examination that he assumed it was the victim crying in the background during the telephone call and that he had no knowledge that the victim was upset or crying prior to the telephone call.

[¶ 16] Deputy Walton then arranged for the victim, her father, and other witnesses to appear at the sheriffs office for interviews. The following colloquy occurred during the prosecutor’s direct examination of Deputy Walton:

Q. Okay. Generally speaking, what was [the victim’s] demeanor during the interview?
A. Sobbing and very upset, so much so that she wasn’t able to form words. It took a few minutes to get her settled down where she would be able to converse with me where I understood her and she could answer my questions.
Q. After the September 17 interview, did you talk to [the victim] again about the case?
A. I have talked to her a couple of different times.
Q. What was her general overall demeanor during those times?
A. If it was a short meeting and I wasn’t talking to her about something related to the case, she was a jovial, friendly person like I’ve known her for the years I’ve known her, what she’s like. We will talk about the case and stuff, she would become visibly upset, and a lot of times she would start crying.

The prosecutor referred to this testimony during closing argument as follows:

When you go back and you guys deliberate about this case, I want you to go back and think about [the victim’s] testimony. I want you to go back and think about how she looked you in the eye and what she told you and how she explained this.
[Prosecutor reviewed Bilger’s testimony.]
You heai'd the testimony from Deputy Walton, an officer with 15 years experience. He gets the initial call from [the victim’s father]. And what can he hear in the background? He could hear a young girl crying hysterically, upset. Why would she be crying? Why was she upset?
He has them come down to the office to interview everybody, begins a second interview with Iva Bilger....
Now, Deputy Walton also testified about his interview with [the victim] on September 17. And he didn’t go into verbatim, every word that was said, he didn’t read out of his notes every word that he said but wasn’t his testimony consistent? Weren’t the things that [the victim] told him on September 17, 2001, consistent with what she told you yesterday? Has [the victim’s] story ever changed in any of this?
Deputy Walton also testified that when he interviewed [the victim] that night, she was hysterical. She was having a difficult time settling down enough to even talk to him. But not just that night, he said he did some follow up investigations, went and saw her again at later times, and she was still having a difficult time dealing with this.
[Prosecutor reviewed Deputy Walton’s testimony regarding his interview of the appellant.]

The appellant did not object to Deputy Walton’s testimony, or the referenced portion of the prosecutor’s closing argument, at trial.

[¶ 17] We have previously held that it was not error, “plain or otherwise,” to utilize claimed victim impact testimony to bolster the credibility of a witness after an attack upon that witness’ credibility. Barnes v. State, 858 P.2d 522, 533-35 (Wyo.1993). Barnes was convicted of second-degree murder and first-degree arson in the beating death of his girlfriend’s five-year-old daughter and subsequent setting of a fire to conceal the crime. Id. at 524. In addressing an issue as to whether a police officer who interviewed the girlfriend impermissibly vouched for her credibility in testifying about the girlfriend’s physical and mental appearance during the interview, we stated that an understanding of the girlfriend’s “appearance, physical and mental condition, and sobriety would be important to explain her inconsistent statements and determine the weight to be given her testimony.” Id. at 530. See generally also Whiteplume v. State, 841 P.2d 1332, 1341-42 (Wyo.1992).

[¶ 18] Barnes also questioned the relevance of claimed victim impact testimony by the girlfriend:

During cross-examination, [the girlfriend’s] credibility was repeatedly and vigorously attacked. She was asked many times why she did not look at defense counsel, why she did not look at Barnes, why she did not look members of the jury in the eye when she spoke. In closing argument, defense [counsel] repeatedly attacked her credibility by calling her a liar.

Barnes, 858 P.2d at 534. The following occurred on redirect examination:

Q. Natalie, throughout these days of Tuesday, and even up to now, you’ve been kind of distracted by something. Have you had something in your hand?
A. Yes, I have.
Q. What is that?
A. It’s a picture of [the victim.]

Id. at 533. During rebuttal closing argument, the prosecutor argued:

‘You recall when she was on the stand. She was constantly distracted. She was accused by defense counsel of not looking-people in the eye, not wanting to face you. When it comes out that she is looking at the only remnant she has left of her family now, and that’s that soiled picture of little Brandy Jo. That’s all she had remaining. Very little if anything left for this lady.”

Id. Barnes did not object at trial.

[¶ 19] In evaluating the relevancy of the testimony at issue in Barnes, we stated that the credibility

of witnesses is always a question of fact for the trier of fact to determine. La Vigne v. Commw., 353 S.W.2d 376, 378-79 (Ky.1962). Witness credibility is subjective and may be affected by personal appearance, the perception of others, credibility of other witnesses, the theory of the case, the theme of the case, the order of witnesses and the character of the jury. 81 Am.Jur.2d Witnesses § 1027, p. 840 citing Purver, Young, Davis, and Kerper, The Trial Laivyer’s Book: Preparing and Winning Cases (1990), § 11.3.
“The credibility of a witness may be attacked by any party, including the party calling him.”

W.R.E. 607. A corollary to the rule allowing a party to attack the credibility of a witness is to permit the opposing party to bolster that credibility. Thus it has been held that:

“Thus, the credibility of a witness does not have to have been the subject of attack before it can be bolstered as was traditionally required in past.... The party calling a witness may thus attempt to support credibility through direct or redirect examination and through the introduction of extrinsic evidence.... ”

State v. Frost, 242 N.J.Super. 601, 577 A.2d 1282, 1288 (1990).

Barnes, 858 P.2d at 534. We concluded that there was no error “in presenting this evidence, plain or otherwise,” because the “evidence was relevant as bolstering the credibility of the witness after an attack upon that credibility.” Id. at 534-35.

[¶ 20] We similarly conclude that, under the circumstances of the instant case, the referenced testimony was relevant to bolster the victim’s credibility. Deputy Walton testified, without objection, to the contents of his interview with the victim. Just as consistencies in the information the victim provided Deputy Walton prior to trial were probative in evaluating the information the victim provided during her trial testimony, consistencies in the victim’s demeanor when providing that information and to some degree at other stages of the case were, considering the appellant’s attacks on the victim’s credibility, probative in evaluating the victim’s testimony and demeanor at trial. Defense counsel’s own closing argument further illustrates the relevance of such testimony in the instant ease. During that argument, he attacked the victim’s credibility based on the victim’s demeanor while testifying, arguing that the victim’s “total transformation” from “sobbing and crying” and difficulty “even communicating” with the jury on direct examination to an “almost combative” witness trying to “fight” with him on cross-examination were indicative of the larger claimed inconsisten-eies between her actions and substantive testimony.

[¶ 21] The testimony at issue was relatively brief and was not extremely inflammatory or introduced for the purpose of inflaming the jury. Neither the testimony nor the argument based on that testimony was calculated to arouse the passions of the jury. We remain mindful that trial courts should not “permit [victim impact] evidence ... unless there is a clear justification of relevance” and will continue carefully to review the admission of such evidence according to the particular facts of each case. Justice v. State, 775 P.2d 1002, 1011 (Wyo.1989).

[¶ 22] The prosecutor did elicit some related testimony that, even if probative of the extent of the victim’s emotional state during her interview with Deputy Walton, arguably risked the danger of unfair prejudice. Deputy Walton re-interviewed the victim September 17th, having developed “some concerns about [the victim’s] mental being that [he] wanted to discuss.... ” Some of Deputy Walton’s follow-up with the victim was due to “her mental status and concerns for her safety.” The prosecutor proceeded as follows based on that testimony:

Q. What concerns for her safety?
A. There w[ere] concerns for her safety that she might hurt herself in some way or kill herself.
Q. Why?
A. She had commented about that. If I remember correctly, her counselor had also talked with the parents and warned them that she’s not dealing with this too well.

The appellant did not object to this testimony.

[¶ 23] We cannot say that, based on our review of the record, a reasonable possibility exists that in the absence of this testimony the verdict might have been more favorable to the appellant. Deputy Walton’s testimony as a whole was clearly relevant despite these potentially erroneous questions and answers. See Wilks, 2002 WY 100, ¶ 16, 49 P.3d at 984 and Taul v. State, 862 P.2d 649, 656 (Wyo.1993) (holding certain answers by the victim amounted to irrelevant victim impact testimony; however, the testimony was harmless because, as a whole, it was clearly relevant). Further, the prosecutor did not specifically refer to this brief testimony during closing argument or otherwise emphasize the testimony, and the district court instructed the jury that, in determining the credibility of the witnesses, it should not be influenced

by pity for or passion or prejudice against any of the litigants in this case. The law forbids you to be governed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. The litigants have the right to demand and expect that you will conscientiously and dispassionately consider and weigh the evidence and apply the law of the case, and that you will reach a just verdict....

Closing Argument

[¶ 24] The appellant contends that the prosecutor committed misconduct during closing argument by shifting the burden of proof from the State to the appellant. In that regard, a “basic premise in our criminal law is that the burden of proof rests upon the state and never shifts.” Lane v. State, 12 P.3d 1057, 1066 (Wyo.2000).

[¶ 25] Trial testimony indicated that a female juvenile, BB, was present with Bilger, the victim, and the appellant during events that occurred after the victim’s September 16th encounter with the appellant. On cross-examination, the victim denied meeting the appellant with BB at Bilger’s residence the day prior to that encounter and denied that BB knew the appellant prior to the encounter. Deputy Walton later testified on cross-examination that when he interviewed BB, she said that she had actually met the appellant on September 15th. The appellant’s trial counsel insinuated that the victim, too, had met the appellant with BB on September 15th. BB did not testify at trial.

[¶26] The appellant’s trial counsel argued the following during his closing argument:

Maybe one of the reasons [Bilger and the victim] keep getting together is so there is more and more and more information that they can say happened. They have [B.B.] there to confirm that he was there and she was there. But where is [B.B.]? She supposedly could corroborate some of this stuff. She’s not here. The reason she’s not here is because some of her statements just don’t jive with what they’re telling you.

The prosecutor responded as follows during his rebuttal closing argument:

They mention that [B.B.] is not here. True, she wasn’t here. Did they bring her in? They could have put her on as a witness. It’s not our duty to bring everybody.

The appellant did not object to this argument at trial.

[¶ 27] Generally, “ ‘where a witness is equally available to both parties, the failure to call the witness is not the proper subject of comment.’ ” Fortner v. State, 835 P.2d 1155, 1157 (Wyo.1992) (quoting King v. State, 780 P.2d 943, 953 (Wyo.1989)). In Fort-ner, 835 P.2d at 1158 (emphasis in original), we stated the following:

In any case, the prosecutor made the statements about appellant’s failure to call witnesses in response to appellant’s argument that the State had not called those same witnesses. The inference was that the witnesses would have been unfavorable to the State. Once appellant “opened the door” by commenting on the State’s failure to call the witnesses, he allowed the prosecution to close that same door. See San-ville v. State, 593 P.2d 1340 (Wyo.1979) (discussing the “opening of the door” rule). The State merely pointed out that the witnesses were equally available to appellant and that he could have called them if they were unfavorable to the State. We hold that the trial court did not impermis-sibly shift the burden of proof or deride the presumption of innocence by allowing the State to make the challenged comments.

The context of the prosecutor’s argument in the instant case is nearly identical to that of the prosecutor’s argument in Fortner, and we therefore find no error as to this issue.

[¶ 28] The appellant also argues that the prosecutor personally vouched for Bilger’s credibility during his rebuttal closing argument. Closing arguments

must be based upon the evidence submitted to the jury. The purpose of closing argument is to allow counsel to offer ways of viewing the significance of the evidence. Hopkinson v. State, 632 P.2d 79, 145 (Wyo.1981). Prosecutors, just like defense counsel, may review the evidence and suggest to the jury inferences based thereon.... There are limits, however, on prosecutor’s closing arguments that are designed to insure the fairness of the trial and prevent compromise of the judicial system.

Dysthe v. State, 2003 WY 20, ¶ 24, 63 P.3d 875, 884-85 (Wyo.2003). The “ ‘propriety of any comment within a closing argument is measured in the context of the entire argument.’ ” Mazurek, 10 P.3d at 542 (quoting English, 982 P.2d at 143).

It is improper for the prosecuting attorney, even in responding to defense arguments, to personally vouch for the credibility of the state’s witnesses. Harper v. State, 970 P.2d 400, 403 (Wyo.1998). In Barela [v. State, 787 P.2d 82, 83-84 (Wyo.1990)], we stated the rationale for this rule:
“When the prosecutor asserts his credibility or personal belief, an additional factor is injected into the case. This additional factor is that counsel may be perceived by the jury as an authority whose opinion carries greater weight than their own opinion: that members of the jury might be persuaded not by the evidence, but rather by a perception that counsel’s opinions are correct because of his position as prosecutor, an important state official entrusted with enforcing the criminal laws of a sovereign state. While the prosecutor is expected to be an advocate, he may not exploit his position to induce a jury to disregard the evidence or misapply the law.”

Lane, 12 P.3d at 1065.

[¶ 29] The appellant’s trial counsel devoted much of his closing argument to assailing Bilger’s testimony. He argued that Bilger used the victim and the police to “get rid of’ the appellant, that Bilger’s testimony contradicted the victim’s testimony in some respects, and that Bilger was not credible because her actions were “inconsistent with what a normal person might be doing” if the circumstances occurred as she and the victim alleged. The prosecutor responded in his rebuttal closing argument as follows:

There is some talk about Iva Bilger, she just doesn’t quite act the way the rest of us act. Well, okay, I said that before, I agree. It’s a woman who sleeps at night who leaves her door open because she feels safer. It’s a little different. Does that mean she’s not believable?
She got up there and told you what happened, and she was honest. There was things that were contradictory to [the victim’s] story. She didn’t have a problem contradicting [the victim.] [Appellant’s trial counsel] asked her and said [the victim] said so and so called her up. He said, are you sure? [The victim] says you called her up to the apartment the first time. No, I don’t think that was me, she said. Are you sure? Yeah.
Then when it came to contradicting the other side of the story, she told you.

The appellant did not object to this argument at trial.

[¶ 30] The appellant cites Dysthe to support his argument. In Dysthe, 2003 WY 20, ¶ 28, 63 P.3d at 886, the prosecutor argued as follows:

“These witnesses, despite the fact that they are users, were credible. They were very credible. They were more credible because of the very fact that they have a relationship with this Defendant. More credible because, if you couldn’t tell, I certainly could; they didn’t like me asking them questions. They didn’t want to be telling me anything.”

The prosecutor in Dysthe further argued that he had worked with investigators on the case and could “guarantee” that their investigations were not “arbitrary” and that the witnesses “had no reason to lie.” Id. We concluded that while the prosecutor

did not directly state that it was his opinion that the witnesses were credible, he certainly gave that impression. Further, he did not suggest that the determination was to be made by the jurors; instead, he offered his own observation that the witnesses were “more credible” because “if you couldn’t tell, I certainly could [that] they didn’t like me asking them questions.” And finally, his personal guarantee that the investigation was not arbitrary certainly amounted to a personal attestation of fact.

Id., 2003 WY 20, ¶ 30, 63 P.3d at 886.

[¶ 31] The State cites Burton in opposition to the appellant’s argument. In Burton v. State, 2002 WY 71, ¶ 33, 46 P.3d 309, 317 (Wyo.2002), the prosecutor argued that the State’s witnesses “ “were blatantly honest ... about a lot of things. They had to admit they were doing drugs.... That’s a hard thing to admit.’ ” We concluded that the prosecutor’s comments were not improper because he

did not personally vouch for the credibility of the witnesses. The prosecutor was simply pointing out that the witnesses had been forthright about their drug use notwithstanding the fact that it was difficult to discuss those matters in a public forum. He drew a reasonable inference from the evidence that the witnesses would have no motive to lie by confessing their drug use because use of drugs is illegal and is not accepted by general society. The prosecutor’s comment was not improper.

Id., 2002 WY 71, ¶ 35, 46 P.3d at 318.

[¶ 32] We find that the circumstances of the instant case more closely resemble those in Burton than in Dysthe. In the instant case, the prosecutor did not personally vouch for Bilger’s credibility. The prosecutor’s comment that Bilger “was honest,” when viewed in isolation as opposed to the prosecutor’s entire argument, could at most have given the jury that “impression.” However, unlike Dysthe, the prosecutor in the instant case referred the jury to the district court’s instructions previously during his argument and stated that the jury was the exclusive trier of fact, that the jury was to decide whom to believe, and that the jury was to “decide what the facts of this case are and what they are not.” Nor was the comment at issue accompanied by any personal attestation of fact. The prosecutor instead proceeded to discuss the actual trial testimony and argued that the jury should infer from the evidence that Bilger was credible because she “didn’t have a problem” contradicting the victim’s testimony, which inference also undermined to some degree the appellant’s allegation that Bilger used the victim to help “get rid of’ the appellant.

CONCLUSION

[¶ 33] The prosecutor did not commit misconduct by eliciting prejudicial victim impact statements, vouching for the credibility of a witness, shifting the burden of proof to the appellant, or eliciting hearsay testimony of a prior bad act without notice to defense counsel. Therefore, we affirm.

      . Wyo. Stat. Ann. § 14-3-104 provides as follows:
      Except under circumstance[s] constituting sexual assault in the first, second or third degree as defined by W.S. 6-2-302 through 6-2-304, anyone who solicits, procures or knowingly encourages anyone under the age of sixteen (16) years to engage in illicit sexual penetration or sexual intrusion as defined in W.S. 6-2-301 is guilty of a felony....

      . The appellant’s trial counsel did not object to this testimony.

      . Deputy Walton testified that based on his interviews, it was his understanding that it wasn’t uncommon for Bilger and the neighbor to leave their doors open so they "could go back and forth to each other’s apartment."

      . The State does not argue that the testimony was relevant for any other purpose. The appellant does not argue that Deputy Walton imper-missibly vouched for the victim's credibility or that consideration of the testimony should have been limited.

      . The appellant’s trial counsel presented the following argument during his closing:
      Now, they also had [the victim] on the stand yesterday. And, you know, it appeared that she was terrified, that she was sobbing almost uncontrollably. And if you take as true, what she said happened that day, it’s understandable. Who would even want to be in the same town with somebody who had done those atrocious things, said that terrible stuff to her. Who wouldn’t be that afraid, especially a young person who is, as most young people are, you know, it’s hard to defend against a big person like that.

      Yes, when [the victim] came and got on the stand and was sobbing and crying and having trouble even communicating with you, it was traumatic and understandable if that had really happened to them, it would be traumatic. But when she got up there for cross-examination, there was a total transformation. There was no sobbing, crying. In fact, she was almost combative with my questions. She was trying to fight with me when I asked her questions.
      That's not unusual, that happens. But the total transformation from somebody who is almost at a breakdown to a little while later no crying at all, that is inconsistent, too. There are some possibilities on how that could happen, but it doesn't just — given all of the other things that have happened along with it, all of her actions that are inconsistent with somebody who is totally terrified, that has to be looked at, too.


source: Caselaw Access Project

author: BRYNER, Justice.

license: Public Domain

text:
    Michael D. BRANDNER, Appellant, v. James A. AGRE, Appellee.
    No. S-10639.
    Supreme Court of Alaska.
    Oct. 31, 2003.
    Rehearing Denied and Modified Dec. 26, 2003.
    Robert C. Erwin and Roberta C. Erwin, Erwin & Erwin, LLC, Anchorage, for Appellant.
    James Agre, pro se.
    Steven J. Shamburek, Law Office of Steven J. Shamburek, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

The main question in this case is whether resolution of an equitable inquiry into a contractor’s substantial compliance with state licensing requirements deprived the district court of jurisdiction over the contractor’s suit for compensation. We find that the district court had jurisdiction over the case and that transfer to the superior court was unnecessary. Although the superior court would normally review a judgment of the district court, we reach the merits of the case as a matter of discretion and affirm the judgment in the contractor’s favor.

II. FACTS AND PROCEEDINGS

James Agre orally contracted with Dr. Michael Brandner to renovate Brandner’s new medical office. Agre began working on Brandner’s office in September 2001 and completed his work in November 2001. Agre billed Brandner for $18,030.34, but Brandner paid only $10,000. Agre filed an action in the district court seeking payment of the remaining $8,030.34. Brandner counterclaimed, alleging that he was entitled to lost income and reimbursement for future repairs because the work was not satisfactory and Agre did not meet the move-in deadline. Both parties agreed to argue the case in small claims court, which limits the recoverable amount to $7,500 and relaxes the district court procedural rules.

About one week before the trial date, Brandner filed a motion to dismiss Agre’s complaint, alleging that Agre was not a licensed contractor at the time they contracted for the work, and was therefore barred under AS 08.18.151 from bringing an action for compensation. Alaska Statute 08.18.151 provides:

A person acting in the capacity of a contractor may not bring an action in a court of this state for the collection of compensation for the performance of work or for breach of a contract for which registration is required under this chapter without alleging and proving that the contractor was a registered contractor at the time of contracting for the performance of the work.

Agre requested a continuance so that he could consult an attorney. Both parties appeared pro se in small claims court at the trial time, and Judge Peter Ashman granted Agre’s request for continuance, ordered him to reply to Brandner’s motion within ten days, and rescheduled the trial for one month later. Agre responded to Brandner’s motion by supplying a copy of his Alaska business license but not a contractor’s license. By the second trial date, the district court had not yet ruled on Brandner’s motion to dismiss.

Judge James Wanamaker presided over the rescheduled trial. Agre was represented by counsel and Brandner appeared pro se. The district court had already begun hearing testimony when Brandner raised his argument that AS 08.18.151 barred Agre from bringing the action. Agre’s counsel responded that an unlicensed contractor was permitted to bring an action for compensation if the court found that the contractor had substantially complied with the contractor licensing statute. Judge Wanamaker determined that the substantial compliance inquiry was an equitable issue that could not be resolved by the district court, since the district court lacks jurisdiction over equitable' actions. Judge Wanamaker therefore recessed the trial and referred the case to Presiding Superior Court Judge Elaine Andrews, who appointed him a judge of the superior court pro tern to complete the trial.

When the trial resumed later that day, Brandner moved for a continuance so that his counsel could be present; the court denied the request. The court then found that although Agre’s specialty contractor’s license had expired on August 31, 2001, before the work began, Agre was entitled to bring an action for compensation because he had substantially complied with the contractor licensing statute. The judge ultimately found in favor of Agre, awarding him $9,719.05 and denying Brandner’s counterclaims.

Brandner appeals.

III. DISCUSSION

A. Jurisdiction

Both parties assume that the district court did not have jurisdiction over the case and that transfer to the superior court was necessary. Based on that assumption, Brandner argues that it was improper to resume the trial after its transfer to superior court, and it was improper to restart the trial. But because the parties’ jurisdictional assumption is mistaken, we need not consider Brandner’s argument.

Recently, in Shaw v. Nanook, Inc., we held that when a statute gives the district court jurisdiction over a cause of action, the district court may apply equitable remedies that are necessary and incidental to its decision of that cause of action. The same principle applies here.

Here, Judge Wanamaker found it necessary to consider an issue of substantial compliance — an equitable question — in the context of a small claims case. Alaska Statute 22.15.040(a) unquestionably placed the small claims action within the district court’s jurisdiction. But AS 22.15.050 generally denies the district court jurisdiction over “actions of an equitable nature.” Under Shaw v. Nanook, then, the jurisdictional question turns on whether the substantial compliance analysis was necessary and incidental to resolving Agre’s small claims action.

In Martin v. County of Los Angeles, the California Court of Appeal observed that “[fjrom the fact that equitable principles are ... used to establish the alleged liability of the defendants, it does not necessarily follow that the action to enforce that liability is equitable.” The United States Court of Appeals for the Ninth Circuit followed Martin in Wyler Summit Partnership v. Turner Broadcasting System, Inc., holding that the need to apply an equitable doctrine in deciding whether to grant relief in a contract case did not convert the case from an action at law to an action in equity. As the Ninth Circuit explained, “where a plaintiff seeks a legal remedy requiring the application of equitable principles to determine if relief is justified,” the claim “sounds at law.” In these circumstances, “[t]he fact that the court must apply the equitable doctrine ... is incidental.”

The situation here is functionally identical to the one considered in Wyler Summit. Agre sought money damages in a breach of contract action, but his right to relief turned on resolution of a preliminary equitable issue. Resolving the question of Agre’s substantial compliance with the contractor licensing statute was necessary and incidental to the resolution of his small claim and did not convert it into an equitable action. A transfer to the superior court was thus unnecessary and created no jurisdictional gap to fill.

Our holding moots Brandner’s claim that Judge Wanamaker should have started the trial anew after converting the case from a small claims matter to a superior court action.

B. Continuance

Brandner argues that the superior court abused its discretion when it denied his request to continue the trial until his counsel would be available. Brandner moved for continuance on the understandable assumption that the transfer to superior court changed his situation. Brandner notes that parties in superior court have rights that district court litigants do not have, such as the right to a jury trial and the right to request a change of judge. But as we have seen, there was no defect in Judge Wanamaker’s ability to decide the case as a district court judge sitting in small claims. Moreover, the potential procedural and legal complexities that led to Brandner’s motion for continuance never materialized.

Had Judge Wanamaker actually changed the scope of the action or applied different substantive or procedural rules, Brandner might have been prejudiced by denial of the continuance. But Judge Wanamaker handled the ease in the same informal manner as a superior court proceeding as he did in small claims court, so the nominal transfer of jurisdiction had no prejudicial effect. In short, Brandner identifies no actual prejudice resulting from the court’s denial of a continuance.

We therefore affirm the trial court’s denial of Brandner’s motion for continuance.

C. Substantial Compliance

The trial court found that Agre had substantially complied with Alaska’s contractor registration requirements and that AS 08.18.151 therefore did not bar his claim. Brandner challenges this finding, contending that Agre allowed his registration to expire before beginning the job and thereafter failed to reactivate it. Brandner also asserts that Agre performed work that was outside the scope of his expired painting and wallcov-ering specialty contractor’s licenses and should have registered as a general contractor. For these reasons, Brandner argues, Agre could not have substantially complied with the statutory registration requirements. Brandner points out that AS 08.18.141 makes it a misdemeanor to violate 12 AAC 21.110, which prohibits specialty contractors from working in a trade for which they are not registered; Brandner also points to AS 08.18.011(a), which requires contractors to be registered with the state.

Registration as a construction contractor under AS 08.18 requires: a registration fee, a surety bond, public liability and property damage insurance, and worker’s compensation insurance. “Registration was intended by the legislature to ensure ‘competence and financial responsibility in those who undertake work as contractors.’ ”

Alaska Statute 08.18.151 provides that a contractor must have been registered under AS 08.18 at the time of contracting to perform work in order to bring an action for breach of contract. But because “[sjection 151 imposes a harsh penalty on contractors,” we have held that “AS 08.18.151’s statutory bar may be abrogated by a contractor’s substantial compliance with the registration requirements.” In McCormick v. Reliance Insurance Company we explained that a court may find substantial compliance if: “(1) the contractor’s prior registration or other public information would give the public the same information that current registration would give (i.e., the contractor’s insurance information); and (2) the contractor’s bond and insurance remained effective during the period his or her registration lapsed.”

None of Brandner’s arguments affects the existence of substantial compliance under this test. The inquiry into substantial compliance focuses on the time that the parties entered into the contract, not the time after litigation commenced. Agre’s failure to renew his contractor’s license between the time he started work on Brandner’s contract in August 2001 and the time of the trial in May 2002 has little to do with whether Agre’s bond and insurance remained in effect when he performed the work and whether Brand-ner had access to information concerning Agre’s coverage when the contract was formed. Here, it appears that the parties began discussing Brandner’s contract in early August 2001, while Agre’s registration was still current. Thus, Agre may well have been registered when he entered into the contract and, at most, his registration expired only weeks before the actual work began. The record indicates that Agre’s bond and insurance remained in effect. And we find nothing in the record to indicate that this information was unavailable to Brandner.

Brandner separately alleges that Agre’s work exceeded the scope of his specialty trades. He contends that Agre could not have substantially complied with the contractor licensing statute because he was never a licensed general contractor, which would have required him to increase his bond from $5,000 to $10,000. But Brandner fails to identify any place in the record where he raised this argument before the trial court. We therefore decline to consider this point.

The record supports the trial court’s finding that Agre substantially complied with the contractor licensing requirements of AS 08.18 based on the factors set out in McCormick. Agre proved at trial, and Brandner does not challenge, that Agre’s insurance coverage and bond remained in effect when he performed the work and met or exceeded the statutory requirements for a specialty contractor. Moreover, the relevant information concerning Agre’s insurance and bonding coverage appears to have been a matter of public record when the parties initially met and discussed the work in mid-August 2001. Given these circumstances, we hold that the trial court’s finding of substantial compliance was not clearly erroneous.

IV. CONCLUSION

Because the substantial compliance analysis was necessary and incidental to the resolution of Agre’s breach of contract action, which fell squarely within the trial court’s small claims jurisdiction, and because the court’s finding of substantial compliance was not clearly erroneous, we AFFIRM the judgment.

      . AS 22.15.040 grants district court judges and magistrates the authority to hear claims for relief in the amount of $7,500 or less as small claims.
      District Court Civil Rule 8 allows parties to waive the amount of damages over $7,500 if they wish to proceed in small claims court.
      District Court Civil Rule 9 provides that in a small claims action, "formality in pleadings, motions, and the introduction of evidence is not required.”

      . We review questions of subject matter jurisdiction de novo. See Hydaburg Co-op. Ass'n v. Hydaburg Fisheries, 925 P.2d 246, 248 (Alaska 1996).

      . 64 P.3d 131, 132 (Alaska 2003); see also Anchorage Helicopter Serv., Inc. v. Anchorage Westward Hotel, 417 P.2d 903, 908 (Alaska 1966) (district court's incidental exercise of equitable authority did not convert debt collection action into an equitable action).

      . AS 22.15.040(a) reads, in relevant part:
      Except as otherwise provided in this subsection, when a claim for relief does not exceed $7,500, exclusive of costs, interest, and attorney fees, and request is so made, the district judge or magistrate shall hear the action as a small claim unless important or unusual points of law are involved or the state is a defendant!)]

      . AS 22.15.050 provides:
      The jurisdiction of the district courts does not extend to
      (1) an action in which the title to real property is in question;
      (2) an action for false imprisonment, libel, slander, malicious prosecution, or actions of an equitable nature, except as otherwise provided by law.

      . 51 Cal.App.4th 688, 694, 59 Cal.Rptr.2d 303 (1996).

      . Id. (quoting C & K Eng'g Contractors v. Amber Steel Co., 23 Cal.3d 1, 151 Cal.Rptr. 323, 587 P.2d 1136, 1140 (1978)).

      . 235 F.3d 1184, 1195 (9th Cir.2000).

      . Id. at 1194.

      . Id. at 1195. Accord Celestin v. American Transit Ins. Co., 193 Misc.2d 72, 747 N.Y.S.2d 920, 921-22 (N.Y.City Civ.2002) (“In ruling on damages, the fact that a court, of necessity, interprets a contract or lease, is simply incidental to the relief sought.”).

      . Normally, we would remand this case to the superior court to review Judge Wanamaker's rulings on Brandner’s remaining claims of error. See AS 22.15.240(a) ("Either party may appeal a judgment of the district court in a civil action to the superior court.”). This is true even though Judge Wanamaker presided as a judge of the superior court, pro tern. See Stephens v. Hammersley, 550 P.2d 1268, 1269 (Alaska 1976) (superior court may review district court decision even if superior court judge was presiding); see also Milne v. Anderson, 554 P.2d 402, 403-04 (Alaska 1976). But in the present case, since the parties have briefed and argued the issues, and since the transfer was based on a question of subject matter jurisdiction that both parties understandably assumed was correct, we see no sense in the delay and expense of remand and will decide the remaining issues as a matter of discretion. Cf. Hammersley, 550 P.2d at 1269.

      . We review a trial court’s denial of a continuance for abuse of discretion. See Gregoire v. Nat'l Bank of Alaska, 413 P.2d 27, 33 (Alaska 1966). "Denial of a motion for continuance constitutes an abuse of discretion 'when a party has been deprived of a substantial right or seriously prejudiced.' ” Siggelkow v. Siggelkow, 643 P.2d 985, 986-87 (Alaska 1982) (quoting Barrett v. Gagnon, 516 P.2d 1202, 1203 (Alaska 1973)).

      . We review the superior court’s findings of fact for clear error. See Fernandes v. Portwine, 56 P.3d 1, 4 (Alaska 2002). "A factual finding is clearly erroneous when the court is left with a definite and firm conviction on the entire record that a mistake has been made.’ ” Id. (quoting Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000)).

      . 12 AAC 21.110 provides:
      A person registered as a specialty contractor may not undertake or offer to perform or claim to have the capacity to perform or submit a bid for a project which requires the use of a trade for which he is not registered.
      AS 08.18.141 provides in pertinent part:
      (a) A contractor or a person acting in the capacity of a contractor who knowingly violates AS 08.18.011 ... is guilty of a class B misdemeanor.
      AS 08.18.011 is listed as partial authority for 12 AAC 21.110.

      . AS 08.18.011(a) provides in pertinent part:
      A person may not submit a bid or work as a contractor until that person has been issued a certificate of registration by the department.

      . AS 08.18.041.

      . AS 08.18.071.

      . AS 08.18.101(2).

      . AS 08.18.101(1).

      . Gross v. Bayshore Land Co., 710 P.2d 1007, 1012 (Alaska 1986) (quoting Sumner Dev. Corp. v. Shivers, 517 P.2d 757, 763 (Alaska 1974)).

      . Alaska Protection Servs., Inc. v. Frontier Colorcable, Inc., 680 P.2d 1119, 1122 (Alaska 1984) (citing Industrial Power v. Western Modular Corp., 623 P.2d 291, 294 (Alaska 1981)).

      . McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1012 (Alaska 2002) (citing Jones v. Short, 696 P.2d 665, 668 (Alaska 1985)).

      . Id. at 1012-13.

      . See AS 08.18.151.

      . Brandner’s point that Agre may be guilty of a misdemeanor has no bearing on his substantial compliance, since the misdemeanor liability set out in AS 08.18.141 is unrelated to AS 08.18.151’s bar on contract actions. See Alaska Protection Servs., Inc., 680 P.2d at 1122.

      . See Braun v. Alaska Commercial Fishing & Agric. Bank, 816 P.2d 140, 145 (Alaska 1991) (supreme court need not address insufficiently briefed issues); Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) (arguments raised for the first time on appeal are waived).


author: EASTAUGH, Justice.

text:
    Donna Mae FREITAS and Daniel Freitas, husband and wife, Appellants, v. ALASKA RADIOLOGY ASSOCIATES, INC., and Janice M. Anderson, M.D., Appellees.
    No. S-10487.
    Supreme Court of Alaska.
    Nov. 14, 2003.
    Rehearing Denied Dec. 10, 2003.

      Robert C. Erwin and Roberta C. Erwin, Erwin & Erwin, LLC, Anchorage, for Appellants.
    Matthew K. Peterson and Jason A. Weiner, Clapp, Peterson & Stowers, LLC, Anchorage, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I.INTRODUCTION

Donna and Daniel Freitas sued Alaska Radiology Associates, Inc. and Dr. Janice M. Anderson, alleging that they committed medical malpractice in 1996 by failing to detect cancerous lesions depicted on Donna Frei-tas’s mammograms. The jury found for the defendants. The Freitases argue that it was error to permit Dr. Denise Farleigh to testify about the practice Alaska Radiology followed in positioning patients during mammograms and the training its mammogram technologists received; they reason that this was opinion evidence that should have been disclosed before trial and that it unfairly raised new topics. But under the circumstances presented here, we conclude that the trial court did not abuse its discretion in admitting this testimony. The Freitases also argue that Jury Instruction No. 18 misled the jury. Because they did not raise this objection at trial, they did not preserve this issue, and we conclude that it was not plain error to give this instruction. We therefore affirm the judgment below.

II. FACTS AND PROCEEDINGS

Donna Freitas obtained a screening mammogram in November 1996. Dr. Janice M. Anderson, a radiologist under contract with Alaska Radiology Associates, Inc., read the mammogram and declared it “stable.” Fourteen months later Freitas felt a lump in her breast and obtained another mammogram. Dr. Anderson read the new mammogram and observed a relatively large density. She ordered follow-up testing which revealed that Freitas had a virulent form of breast cancer with lymph node involvement and metastases. An oncologist later testified that Freitas has “virtually no chance” for long-term disease-free survival or for long-term survival.

Freitas and her husband Daniel sued Dr. Anderson and Alaska Radiology, for whom Dr. Anderson is an independent contractor. They alleged that Dr. Anderson negligently interpreted Freitas’s 1996 mammogram.

After a nine-day trial, a jury returned a verdict finding that the defendants had not been negligent. The superior court entered judgment for the defendants.

The Freitases argue on appeal that the superior court abused its discretion by allowing Dr. Denise Farleigh to testify about breast positioning during mammograms at Alaska Radiology. They also contend that the superior court erred as a matter of law by giving Jury Instruction No. 18. They ask us to reverse the judgment and remand for a new trial.

III. DISCUSSION

A. Standard of Review

We review for an abuse of discretion a decision of the superior court to admit or exclude evidence. “We will reverse a trial court’s evidentiary ruling only when we are left with a definite and firm conviction that the trial court erred in its decision.”

A challenge to a jury instruction presents a question of law that we review de novo. If no timely objection to the jury instruction was made, we will only review the instruction for plain error. We will find plain error in jury instructions only when there is an “obvious mistake creating ‘a high likelihood that the jury will follow an erroneous theory resulting in a miscarriage of justice.’ ”

B. The Superior Court Did Not Err in Allowing Dr. Farleigh To Testify About Positioning During Mammography at Alaska Radiology or About the Training Its Technologists Receive.

The Freitases contend that it was an abuse of discretion to permit Dr. Farleigh to testify about how Alaska Radiology technologists position patients during mammograms. At the time of trial Dr. Farleigh was the supervising radiologist for mammography at Alaska Radiology Associates, Inc. and its former president; she was also director of mammography at Providence Imaging Center and chair of the Department of Radiology at Providence Alaska Medical Center.

The Freitases argued at trial that Dr. Far-leigh’s proposed testimony about positioning and training was expert opinion testimony that Dr. Farleigh had not disclosed at her deposition, when she was asked if she had any other “opinions” about the lawsuit and she answered that she did not. They also argued that it interjected a “defense” that was “brand new.” They claimed that defense counsel was “getting the same testimony in as if he said [’]what is your opinion,[’] he’s just not using the opinion word.” The Freitases argued that Dr. Farleigh was not merely providing fact testimony but instead was “back-door experting.”

The superior court found that Dr. Farleigh was testifying as a fact witness and allowed the testimony, but precluded Dr. Farleigh from offering specific opinions about the adequacy of what was done in this case. The court explained that Dr. Farleigh would:

[B]e essentially saying this is what happens in the clinic, this is what we do, this is what the procedure[s] are. She’s not offering an opinion ... in this case — and she’s precluded from looking at this [X]ray, taking a look at it and commenting on where the position of the density is ... and saying boy, we did it right here.... [T]hat would make her an expert in the opinion sense ... [S]o as far as she’s a fact witness, I’m going to allow her testimony.

Dr. Farleigh then testified at trial about how mammograms are performed at Alaska Radiology. She described how the breast is positioned during a mammogram at Alaska Radiology. She explained how Alaska Radiology’s mammogram technologists are trained. She also testified that breast positioning has a bearing on the quality of mammogram films. She characterized breast positioning as “critical” to obtaining quality films.

The Freitases argue on appeal that Dr. Farleigh’s testimony was expert opinion evidence that was not disclosed before trial, and that it was consequently an abuse of discretion to allow Dr. Farleigh to testify about breast positioning for mammograms. They also claim that the testimony raised a “new defense,” was “far more prejudicial [than] probative,” and “created confusion in the minds of the jurors.” They claim that there was no time to prepare a response. We interpret these arguments as raising three main grounds why it was error to admit this testimony into evidence: (1) because Dr. Farleigh testified at her deposition that she had no other “opinions” about the lawsuit; (2) because the defendants otherwise failed to disclose this “expert” testimony before trial; and (3) because this testimony raised an undisclosed new defense.

Because the ultimate question is whether, under the circumstances, the trial court abused its discretion, it is necessary to discuss the facts at some length.

When the Freitases took Dr. Farleigh’s deposition before trial, their attorney asked Dr. Farleigh if she had an opinion whether Dr. Anderson had met the standard of care. Dr. Farleigh testified that, based on her own review of the mammograms and Dr. Anderson’s report, Dr. Anderson had met the standard of care. The Freitases’ lawyer then asked Dr. Farleigh if she had any other opinions about the films or about the lawsuit that she had not already discussed. Dr. Farleigh said that she did not. At her deposition Dr. Farleigh did not discuss breast positioning or the training mammography technologists receive.

The issue of breast positioning during Donna Freitas’s mammograms was raised at trial by counsel for the Freitases during her cross-examination of Dr. Anderson, one of the defendants. Some of the questions concerned the effect of positioning on the appearance of breast contents from year to year. Those inquiries seem intended to seek admissions that positioning differences could affect the ability to compare annual mammograms. Dr. Farleigh was then called by the defendants to testify, over the plaintiffs’ objections, about mammogram techniques and procedures. Although Dr. Farleigh had expressed an opinion at her deposition that Dr. Anderson had satisfied the applicable standard of care, Dr. Farleigh did not offer opinions about that topic (or other core liability issues) at trial.

We first consider whether Dr. Farleigh’s deposition statement that she had no more “opinions” about the films or the lawsuit required the court to exclude her testimony about positioning and training. This situation differs from that presented in Zaverl v. Hanley, in which we held that it was error to allow a surgeon to offer expert opinions at trial on subjects that he refused to discuss during his deposition. It was inherently unfair in that case to allow the treating surgeon to testify about core liability issues that he was unwilling and unable to discuss at his deposition. His position at trial — that he was willing and qualified to testify about those topics — was completely inconsistent with his deposition position, and he did not otherwise alert the plaintiffs in advance that he intended to address those topics at trial.

There is no such inconsistency here. First, Dr. Farleigh’s trial testimony about positioning and training at Alaska Radiology was primarily about factual matters and contained little or no evidence that could be characterized as “opinion” testimony. Certainly she had specialized knowledge about mammography that a layperson does not possess. It was her professional expertise that allowed her to testify knowledgeably about positioning and training. But Dr. Far-leigh’s trial testimony contained only a few passages that might be considered “opinion” evidence in even the broadest sense. As the appellees correctly observe, “Dr. Farleigh gave no testimony on how positioning should have been performed for [Donna Freitas’s 1996] mammography or whether Dr. Anderson or the technicians at the clinic used proper positioning” when taking Freitas’s 1996 mammogram. Dr. Farleigh did characterize consistent positioning as “critical” to generating the maximum amount of information every time physicians see the patient. Assuming that such a characterization expresses an “opinion” and that her testimony about why things are done may have implicitly conveyed other inferences, these were not the sorts of opinions that she had to disclose at her deposition in response to counsel’s question.

Second, the question asked at the deposition certainly required disclosure of expert opinions concerning core liability issues of the sort Dr. Farleigh had already discussed at her deposition. But breast positioning and training were not core liability issues in this case. The Freitases disclaimed any interest in impugning the positioning practices of Alaska Radiology. The Freitases did not claim the defendants mis-positioned Donna Freitas or other patients during mammography. As a result of the Freitases’ cross-examination of Dr. Anderson, positioning (and therefore training) became sufficiently relevant mid-trial to justify Dr. Farleigh’s testimony. Notwithstanding that relevance, it cannot be said that positioning and training were so important that Dr. Farleigh’s deposition answer obligated the trial court to preclude her from addressing these ancillary topics. Under the circumstances, the trial court was not obliged to exclude this evidence as fundamentally inconsistent with Dr. Farleigh’s deposition answer.

We next consider whether the court abused its discretion by failing to exclude the evidence on the ground it was expert testimony defendants otherwise failed to disclose before trial. These circumstances convince us that there was no abuse of discretion: defendants’ expert witness list stated that Dr. Farleigh would “testify with regard to the procedures utilized by Alaska Radiology Associates, Inc. with respect to the techniques for taking films and reading those”; even after the topic of positioning and training became relevant during trial, it was of ancillary importance; Dr. Farleigh’s trial testimony contained no overt opinions on critical issues; the plaintiffs were free to object that specific questions called for impermissible opinion evidence; and the Freitases have not identified any particular testimony that overstepped the bounds the trial court — correctly, we think — imposed. Indeed, they have not even cogently explained how this evidence prejudiced them.

We also consider whether, as appellants assert, this testimony unfairly raised an undisclosed “new defense.” It did not. It was not a defense. It was relevant to a topic raised at trial by the Freitases. There was no discovery violation. There was no need (or opportunity, given the topic’s mid-trial relevance) to supplement pre-trial disclosures. Nor, to the extent appellants may imply that the prejudicial value of the evidence outweighed its relevance, have they demonstrated that they suffered undue prejudice. They do not even mention Alaska Rule of Evidence 403, the logical rule to discuss if a party wishes to make a plausible claim that the prejudicial value of evidence outweighs its probative value. Plaintiffs did not ask for an opportunity to conduct a short mid-trial deposition of Dr. Farleigh to discover what she would say about positioning or training. And the trial court permitted the plaintiffs to offer rebuttal evidence on the positioning topic with their own experts. They then recalled Dr. Marianne Drucker as a rebuttal expert to discuss the effect of positioning. Further, given the plaintiffs’ litigation position that there was nothing wrong with the positioning, there is no reason the trial court should have thought that admitting the testimony would be unduly prejudicial. Indeed, plaintiffs’ lawyer asserted in closing argument that positioning was “another non-issue. We’re not criticizing the positioning at all, the positioning was fine on the films.” Nor does it appear positioning was critical to the defense. Defense counsel’s discussion of positioning comprised only a small part of his argument to the jury.

This case does not require us to distinguish between a lay witness and an expert witness, or decide whether Dr. Farleigh was a hybrid witness eligible to express opinions about core liability issues. The question here is whether under the circumstances the trial court abused its discretion by failing to exclude this evidence. We hold that it did not.

C. It Was Not Plain Error To Give Jury Instruction No. 18.

The superior court gave the jury Instruction No. 18, which set out a potential basis for finding medical malpractice. The Freitases argue that the instruction was incomplete because it failed to identify one possible basis for finding negligence under AS 09.55.540, which specifies what is needed to prove medical malpractice, and therefore did not conform to the statute. They claim that Instruction No. 18 required the jury to find for the defendants unless it found both that Dr. Anderson did not possess the training and experience of a physician practicing in her field, and also that she did not exercise that training and experience. They therefore claim that Instruction No. 18 was “incomplete,” because it did not inform the jurors that they could find Dr. Anderson negligent “if she had the necessary knowledge and skill but simply acted in the wrong way.”

The Freitases did not raise this objection in the superior court. They advanced other objections to Instruction No. 18 before trial, and the superior court made changes to the instruction in response to those objections. The court gave the parties a final opportunity to object to the instructions, and the Frei-tases did not make the objection that they now raise. The Freitases consequently did not preserve this objection.

Plain error is therefore the applicable standard for reviewing this instruction.

We perceive no plain error here. Instruction No. 18 could have been clearer, but it was not misleading. Moreover, Instructions No. 16 and 17, which also discussed negligence, were very clear. Instruction No. 16 submitted the statutory standard set out in AS 09.55.540(a). Instruction No. 17 made it clear to the jury that it could find Dr. Anderson negligent if she failed to exercise expertise that she possessed. And in this case there was no dispute about whether Dr. Anderson had the training and experience to practice her specialty. Therefore the instructions as a whole properly instructed the jury. It was consequently not plain error to submit Instruction No. 18 to the jury.

IV. CONCLUSION

Concluding that the trial court did not err in allowing Dr. Farleigh to testify or in giving Instruction No. 18, we AFFIRM the judgment below.

      . Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003).

      . Zaverl v. Hanley, 64 P.3d 809, 812 n. 6 (Alaska 2003) (quoting Walden v. Dep’t of Transp., 27 P.3d 297, 301 (Alaska 2001)).

      . Lynden, Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001).

      . Manes v. Coats, 941 P.2d 120, 125 (Alaska 1997).

      . Jaso v. McCarthy, 923 P.2d 795, 800 (Alaska 1996) (quoting Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153 (Alaska 1992)).

      . Zaverl v. Hanley, 64 P.3d 809, 813-15 (Alaska 2003).

      . Id. at814&n. 10, 815.

      . Evidence Rule 403 states: "Although relevant, evidence may be excluded if its probative value is 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.”

      . Cf. Getchell v. Lodge, 65 P.3d 50 (Alaska 2003); see also Miller v. Phillips, 959 P.2d 1247, 1250-51 (Alaska 1998).

      . Instruction No. 18 provided:
      You must determine the standard of professional learning, skill and care required of Defendant Dr. Anderson only from the opinions of the radiologists who have testified as witnesses as to such standard.
      If you are not able, based on the expert testimony, to decide what level of knowledge, skill and care other reputable radiologists would more likely than not have possessed and used, you must return a verdict for the defendant.
      If you are able, based on the expert testimony, to decide what level of knowledge, skill and care other reputable radiologists would more likely than not have used, you must then determine whether the defendant possessed and used such level of knowledge, skill and care or whether she failed to do so and therefore was negligent. Again, you shall make this decision only on the basis of opinions offered by the radiologists who have testified as experts on the applicable standard of care.
      You should consider each such opinion and should weigh the qualifications of the witness and the reasons given for his opinion. Give each opinion the weight to which you deem it is entitled.
      You must resolve any conflict in the testimony of witnesses by weighing each of the opinions expressed against the others, taking into consideration the reasons given for the opinion, the facts relied upon by the witness, and the relative credibility, special knowledge, skill, experience, training and education of the witness.

      . AS 09.55.540 provides in part:
      (a) In a malpractice action based on the negligence or willful misconduct of a health care provider, the plaintiff has the burden of proving by a preponderance of the evidence:
      (1)the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the field or specialty in which the defendant is practicing;
      (2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
      (3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

      .The Court: This is the time set to put objections to proposed jury instructions on the record.... I’m going to ask counsel essentially to state their objections to the instructions they have for the record, please.

      The Court: I just want to note for the record, we have agreed to edit some of these jury instructions. Counsel will present a package, and other objections that we have talked about, they have all been withdrawn except these two that remain in Court's Exhibit 1. Is that right?
      [Freitas]: Yes, sir.
      [Anderson and Alaska Radiology]: That’s right. The Court: All right.
      [Anderson and Alaska Radiology]: What I'll do is have my secretary retype these ones we’re editing. I think, if it's okay, I’ll bring them to court first thing in the morning, ...
      The Court: Sure.
      [Anderson and Alaska Radiology]: ... [A]nd you’d better look at them in case there’s typos or a wrong word or something, before they go final, and then we can change it if need be.
      The Court: Okay.
      [Anderson and Alaska Radiology]: But it's correct, we’ve agreed — the packet we have in front of us, as far as I understand, we’ve agreed to that, and we each only had the one objection on each side, so ...
      The Court: Okay, great.
      [Freitas]: And you have them all.

        The Court: All right.

      . Alaska Civil Rule 51(a) provides in part: "No party may assign as error the giving or the failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for the objection." See also Jaso v. McCarthy, 923 P.2d 795, 799-800 (Alaska 1996) (explaining that if party fails to object to jury instructions at trial, court will only review instructions for plain error); Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 152-53 (Alaska 1992) (same).

      . Manes v. Coats, 941 P.2d 120, 125 (Alaska 1997).

      . Instruction No. 16 provided:
      In a malpractice action against a health care provider, the plaintiff has the burden of proving by a preponderance of the evidence:
      1.the degree of knowledge or skill possessed or the degree of care ordinarily exercised under die circumstances, at the time of the act complained of, by health care providers in the field or specialty in which the defendant is practicing;
      2. that the defendant either lacked this degree of knowledge or skill, or failed to exercise this degree of care; and
      3. that as a proximate result of this lack of knowledge or skill, or the failure to exercise this degree of care, the plaintiff suffered harm that she would not otherwise have incurred.
      In malpractice actions, the fact of the injury, standing alone, does not raise a presumption of malpractice.

      .Instruction No. 17 provided:
      A physician has a duty to exercise the degree of skill and care expected of a reasonably prudent physician acting in the same or similar circumstances at the time of the care in question. Failure to exercise such skill and care is negligence.