source: Caselaw Access Project

author: VOIGT, Justice.

license: Public Domain

text:
    2003 WY 20
    Kilen Patrick DYSTHE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-125.
    Supreme Court of Wyoming.
    Feb. 19, 2003.

      Kenneth M. Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; T. Alan Elrod, Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Hugh J. Linnehan and Meri Ramsey, Interns, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶ 1] Kilen Patrick Dysthe (Dysthe) appeals his conviction for delivery of a controlled substance, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii) (LexisNexis 2001), a felony. The district court sentenced Dysthe to the custody of the Department of Corrections for a period of eighteen to thirty-six months. We reverse.

ISSUES

[¶ 2] The issues presented on appeal are:

I. Did the trial court err in excluding two of [Dysthe’s] named witnesses, thereby denying him his right to a fair trial and his right to compulsory process?
II. Did the trial court err in excluding evidence relating to the State’s witness, Eric Stone?
III. Did the prosecutor commit misconduct in closing argument?

FACTS

[¶ 3] Dysthe was charged with selling cocaine to Daniel Luke Jacquot (Jacquot) in June 2000. Eric Stone (Stone), a mutual friend, testified that he processed the cocaine into a smokeable form and Jacquot testified that Dysthe, Jacquot, Stone, and Jacquot’s brother, John, smoked the cocaine. Jacquot was a participant in drug court, and Jac-quot’s urine tested positive for cocaine the day after the group allegedly smoked the cocaine. Jacquot testified that he was booked into jail after telling drug court personnel that he had used cocaine. Jacquot told a Division of Criminal Investigation (DCI) agent that Dysthe had sold him the cocaine. An Information charged Dysthe with one count of delivery of a controlled' substance, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii).

[¶ 4] The district court entered a scheduling order on September 8, 2000, that re-, quired the parties to list witnesses and exhibits by November 13, 2000. On November 9, 2000, Dysthe listed his mother and Stone as witnesses. The State filed a notice of additional witnesses on December 5, 2000, listing a former drug court employee, Bob Green, as a witness. The defense filed its notice of additional witnesses on January 25, 2001, naming Ray Olson and Jodie Bear, drug court employees, as witnesses. These witnesses were to testify about Jacquot’s conduct in drug court, specifically that he conspired with other drug court participants to deliver hallucinogenic mushrooms. The next day, the State listed Honorable J. John Sampson as a witness, to counter any defense accusations concerning Jacquot’s conduct in drug court. The district court held a hearing on the day of trial regarding the various notices and motions related to the additional witnesses. The district court prohibited either party from calling additional witnesses because it was not notified of these witnesses by the court’s November 13th deadline. The matter proceeded to trial and a jury found Dysthe guilty. This appeal followed.

DISCUSSION

Witness Exclusion

[¶ 5] Dysthe first argues that the district court erred in precluding the testimony of two defense witnesses, Ray Olson and Jodie Bear, Sheridan drug court personnel, thereby denying him his right to present a defense. Dysthe presents the issue as one of constitutional magnitude, implicating the right to present a defense as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and Wyo. Const, art. 1, § 10. A violation of the compulsory process clause of the Sixth Amendment occurs when a defendant is arbitrarily deprived of testimony that would have been relevant, material, and vital to his defense. United States v. Valenzuelar-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). In Taylor v. Illinois, 484 U.S. 400, 407-09, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), a case involving the violation of a pre-trial discovery order, the United States Supreme Court held that the compulsory process clause is not merely a guarantee that the accused shall have the power to subpoena witnesses, but confers on the accused the fundamental right to present witnesses in his own defense. Taylor further held, however, that although a trial court may not ignore a defendant’s fundamental right to present witness testimony in his favor, the mere invocation of that right cannot automatically and invariably outweigh countervailing public interests. Id. at 410-16, 108 S.Ct. 646. The factors to be weighed in the balance include, but are not limited to the “integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process ....’’Id. at 414-15, 108 S.Ct. 646.

[¶ 6] In Lawson v. State, 994 P.2d 943, 946^47 (Wyo.2000), we adopted the Taylor factors and held that the exclusion of alibi testimony was an abuse of discretion where the district court failed to consider any factor other than the defendant’s failure to comply with the filing date requirement of W.R.Cr.P. 12.1(a) and failed to consider the factors articulated in Taylor, We have defined judicial discretion as “ ‘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.’ ” Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998) (quoting Byerly v. Madsen, 41 Wash. App. 495, 704 P.2d 1236,1238 (1985)).

[¶ 7] In the instant case, the district court required the parties to name their witnesses by November 13, 2000. On January 25, 2001, defense counsel named the two Sheridan drug court personnel as additional witnesses. The State objected to the two witnesses, but also listed Judge Sampson for potential rebuttal. The district court held a hearing on the matter just prior to jury selection, inquired as to the purpose of the proposed testimony, and following counsels’ arguments, ruled as follows:

THE COURT: All right. Well, counsel, this is the way the Court is going to handle this. Both of you are precluded from using Bob Green, Ray Olson, Jody [sic] Bear, Judge Sampson in your cases in chief. I’m not going to get into the merits of the arguments. But it will be the ruling of the Court that the late filing precludes their use in the case in chief. If it turns out that, you know, one of you thinks that they are necessary for some sort of proper rebuttal, I’ll consider it at that time.

(Emphasis added.)

[¶ 8] This ruling barred Dysthe from calling the drug court witnesses in his case-in-chief, but it left the door open to their use in rebuttal. Despite this ruling, when defense counsel tried to impeach the credibility of Jacquot, a witness for the State, with questions that would have made such rebuttal appropriate, the district court sustained the State’s objection:

[DEFENSE COUNSEL:] ... [Jac-quot], you just testified that you haven’t made any deals with the prosecutor, right?
[JACQUOT:] Correct.
[DEFENSE COUNSEL:] Isn’t it true that you’ve — that just within the last month you were in some fairly serious trouble?
[PROSECUTOR:] Objection, Your Hon- or.
THE COURT: Trouble?
[DEFENSE COUNSEL:] Trouble in Drug Court.
[PROSECUTOR:] It’s improper specific acts. Improper under 404, improper under 401, improper under 403, improper under 608 and 609.
THE COURT: Counsel, if you want to approach the bench. THE COURT: A couple of questions that you’ve attempted have incited a narrative response. They haven’t been specific enough to limit the testimony to those items required by the rule, and they really haven’t been specific enough for me to properly rule on an objection, so if you want to give me an offer of proof as to where you’re headed outside the hearing of the jury, maybe I can rule on [the prosecutor’s] objection.
[DEFENSE COUNSEL:] I want to ask him if he has been, if he has been threatened with prosecution by Drug Court personnel; and isn’t it true that when you or your father objected to the prosecutor’s office, the problems were taken care of.
And I don’t care if [the prosecutor] did anything or not; this kid thinks that that happened. I want to know his perception of that.
THE COURT: As we talked about before we started the trial, I don’t think it’s improper for you to ask if someone threatened him with — specifically with respect to his testimony in this case. But both of you are talking generally about drug use and Drug'Court. It may have to do with other cases involving other people. It may be other times. I don’t have any‘idea where you’re at. If you make it very specific to testimony in this case, you may inquire. If not, I’m going to sustain the objections.
[DEFENSE COUNSEL:] I can’t even get into — I’m not allowed to even ask a question. I get objections all the time.
THE COURT: Did you hear what I just said, though, about making it — well, see you apparently want to inquire as to whether or not he received any pressure that affects his testimony in this case. That’s okay. But—
[PROSECUTOR:] Your Honor, I’m sorry to interrupt the Court. He already testified that he did not from my office. If he’s going to talk about the other — about these alleged things with Drug Court, which had nothing to do with this case, there’s going to be an objection before [defense counsel] is expecting to get the question out, because I don’t think it’s proper to be in front of the jury and to have all of the innuendos about Drug Court.
THE COURT: That’s why it’s got to be specific. That’s why it’s got to be specific about the testimony that he is offering in this case. He has said I don’t have any reason to lie; [the prosecutor’s] office didn’t make a deal with me. Okay.
And so if you say, for example, “Has anyone threatened you regarding your testimony in this case,” that’s probably appropriate. But these vague generalities about Drug Court and other people using drugs and testifying at other times and all that, it’s too confusing; and I’m going to sustain objections to that. So it’s up to you.

[¶ 9] The drug court witnesses were essential to Dysthe’s defense in order to attempt to discredit Jacquot, but he was precluded from presenting this evidence in his case-in-chief because of an arbitrary date set by the district court, and he was precluded from presenting it in rebuttal by the district court’s decision not to allow counsel to pursue that line of questioning. Because there was no physical evidence, the State’s case was based solely on the credibility of its witnesses, and its primary witness had potential credibility issues. The district court did not consider any Taylor factors in enforcing its pre-trial deadline. We conclude that the evidence of Jacquot’s drug court troubles and the possibility of favorable treatment was relevant, material, and vital to the defense in order to attack Jacquot’s credibility. The district court abused its discretion in excluding Dysthe’s witnesses.

[¶ 10] W.R.A.P. 9.04 states that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court.” W.R.Cr.P.' 52(a) and W.R.E. 103(a) contain similar provisions. The test for harmless error stated in the reverse is as follows:

“ ‘An error is harmful if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had never occurred. To demonstrate harmful error, the defendant must show prejudice under “circumstances which manifest inherent unfairness and injustice or conduct which offends .the public sense of fair play.” ’ Johnson v. State, 790 P.2d 231, 232 (Wyo.1990).”

Lancaster v. State, 2002 WY 45, ¶ 28, 43 P.3d 80, 93 (Wyo.2002) (quoting Skinner v. State, 2001 WY 102, ¶ 25, 33 P.3d 758, 767 (Wyo.2001), cert, denied, 535 U.S. 994, 122 S.Ct. 1554,152 L.Ed.2d 477 (2002)).

“Before a federal constitutional error can be held harmless, the court must be able to declare its belief that the error was harmless beyond a reasonable doubt. In determining whether reversible error occurred, we ask if the defendant’s absence created any reasonable possibility of prejudice. The State must show that an error can pass muster under this standard.”

Skinner, 2001 WY 102, ¶ 23, 33 P.3d at 766 (quoting Seeley v. State, 959 P.2d 170, 178 (Wyo.1998)).

[¶ 11] Nothing in the record indicates that Dysthe ever admitted to selling, using, or even discussing cocaine with any of the State’s witnesses. When we consider that no drugs were retrieved or placed into evidence at trial, leaving the State’s case totally dependent upon the credibility of its witnesses, we cannot conclude that the error in excluding this testimony was harmless beyond a reasonable doubt.

Exclusion op Evidence

[¶ 12] Dysthe next argues that the district court erred when it excluded evidence relating to the State’s witness, Stone. The State did not present any drugs into evidence. To prove that the controlled substance Dysthe allegedly sold to Jacquot was in fact cocaine, the State called Stone, an admitted drug user, to testify. Stone testified that he considered himself an “expert” on “certain aspects” of cocaine and that the substance he cooked on the day in question was “consistent with [his] familiarity of cocaine ....”

[¶ 13] To show that the substance in question may not have been cocaine, but could have been methamphetamine, defense counsel attempted to ask Stone about his experience with methamphetamine:

[DEFENSE COUNSEL:] Don’t they [methamphetamine and cocaine] have the same effect?
[STONE:] I’m not sure.
[DEFENSE COUNSEL:] So I take it you haven’t done any methamphetamine?
[STONE:] I don’t think that’s relevant.
[DEFENSE COUNSEL:] Well, you get to answer the question.
[STONE:] Excuse me?
[DEFENSE COUNSEL:] I take it you haven’t done methamphetamine?
[STONE:] That’s not relevant.
[DEFENSE COUNSEL:] Would you answer the question? Have you done methamphetamine to be able to distinguish the two?
[STONE:] No, I will not answer that question.
[DEFENSE COUNSEL:] You have to answer that question.
THE COURT: You know, counsel, this exceeds the scope of the direct and is into a totally different area.

[¶ 14] The district court then allowed counsel to approach the bench and make an offer of proof out of the hearing of the jury panel. The district court stated that the trial was about cocaine, and Stone had testified that cocaine and methamphetamine were different. Defense counsel pointed out the earlier testimony of a DCI agent who testified that cocaine and methamphetamine have virtually similar effects. From the record, we discern that defense counsel was referring to the following:

[DEFENSE COUNSEL:] You said that speed — or meth or cocaine is a powerful central nervous system stimulant, right?
[AGENT:] Yes.
[DEFENSE COUNSEL:] Speed is, too, isn’t it, methamphetamine?
[AGENT:] Yes, it is.
[DEFENSE COUNSEL:] You said that coke speeds up your heart?
[AGENT:] Yes.
[DEFENSE COUNSEL:] Meth speeds up your heart, as well, does it not?
[AGENT:] Yes, it does.
[DEFENSE COUNSEL:] You said that cocaine creates a sense of euphoria?
[AGENT:] Yes.
[DEFENSE COUNSEL:] And speed does exactly the same thing, doesn’t it?
[AGENT:] Yes, essentially. [DEFENSE COUNSEL:] To know the difference between speed — well, it would take a chemist or somebody trained in chemistry or pharmacology to be able to answer that question, wouldn’t it?
[AGENT:] What was the question? I’m sorry.
[DEFENSE COUNSEL:] The chemical, the chemical relationship between speed and cocaine.
[AGENT:] I would assume so, yes.

[¶ 15] After defense counsel reminded the district court about this testimony, the following exchange occurred:

THE COURT: The trial is about cocaine. The witness testified that cocaine and methamphetamine are different. I don’t see any reason why you need to continue with this line of questioning.
[DEFENSE COUNSEL:] Your Hon- or, the police officer testified that they have virtually identical effects. They speed up the heart; they make people feel good.
THE COURT: What does methamphetamine have to do with this trial?
[DEFENSE COUNSEL:] This substance may very well be methamphetamine and not cocaine. How do we prove it’s not methamphetamine? There’s no chemical result. We have three little drug addicts who are saying it’s cocaine, and there’s no proof. We have a police officer who say [sic] they are identical in their effect; and if he wants to distinguish the two, this expert, I should be able to inquire about his expertise in methamphetamine.
THE COURT: He didn’t say he was an expert in methamphetamine.
[DEFENSE COUNSEL:] The State is offering him as an expert.
THE COURT: Not in methamphetamine. And I don’t think they are offering him as an expert. He’s testifying as to his personal experience, certainly not as an expert in the legal sense of the word.
[DEFENSE COUNSEL:] Okay. I made my objection.
THE COURT: Okay. So discontinue the line of inquiry referencing methamphetamine.

[¶ 16] An evidentiary ruling of the district court is reviewed pursuant to the following standard:

Such decisions are within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion .... Determining whether the trial court abused its discretion involves the consideration of whether the court could reasonably conclude as it did, and whether it acted in an arbitrary or capricious manner. ...
A trial court’s evidentiary rulings “ ‘are entitled to considerable deference,’” and will not be reversed on appeal so long as “ ‘there exists a legitimate basis for the trial court’s ruling ....’”

Lancaster, 2002 WY 45, ¶ 11, 43 P.3d at 87 (iquoting Robinson v. State, 11 P.3d 361, 367 (Wyo.2000), cert, denied, 532 U.S. 980, 121 S.Ct. 1620,149 L.Ed.2d 483 (2001)).

[¶ 17] W.R.E. 103 provides:

(a) Effect of erroneous ruling. — Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (2) Offer of Proof. — In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by an offer or was apparent from the context within which questions were asked.

W.R.E. 611(b) provides:

Scope of cross-examination. — Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

[¶ 18] This Court has stated that the State may rely on circumstantial evidence to prove the identity of a controlled substance because “ ‘unlawful distribution of a substance, which by its nature is to be consumed, should not escape prosecution because the state could not seize a sample of the substance.’ ” Urrutia v. State, 924 P.2d 965, 968 (Wyo.1996) (quoting Lobatos v. State, 875 P.2d 716, 720 (Wyo.1994)). One of the circumstances relied upon by the State in that regard was the fact that Stone believed the substance to have been cocaine. Defense counsel’s cross-examination of both the DCI agent and Stone concerning the similarity between cocaine and methamphetamine clearly was meant to show that the two substances are so similar in effect that they may be confused by a user. The State did not object during the cross-examination of either witness. Yet the district court, on its own initiative, halted the cross-examination of Stone on the ground that it was beyond the scope of the direct examination.

[¶ 19] The general rule that evi-dentiary decisions are within the sound discretion of the trial court applies to decisions made under W.R.E. 611(b). Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276,1285-86 (Wyo.1983); Grabill v. State, 621 P.2d 802, 814 (Wyo.1980). The exercise of that discretion must, however, be guided by recognized principles of law. One of those principles is that wide latitude should be permitted in the cross-examination of an adverse witness. In re Morton’s Estate, 428 P.2d 725, 733 (Wyo. 1967). Further, when a matter is raised during direct examination, the adverse party may then explore that matter on cross-examination. Summers v. State, 725 P.2d 1033, 1046 (Wyo.1986) (quoting Kwallek v. State, 596 P.2d 1372, 1378 (Wyo.1979)). Once a party opens the door to a line of questions, “he cannot complain that the [adverse party] asked ... similar questions.” Hodges v. State, 904 P.2d 334, 343 (Wyo.1995). In some cases, the constitutional right to confront witnesses may even require the trial court to allow cross-examination that goes beyond the scope of direct examination to test credibility. Jones v. State, 735 P.2d 699, 702 (Wyo.1987); Lindsey v. State, 725 P.2d 649, 658 (Wyo.1986); Story v. State, 721 P.2d 1020, 1034 (Wyo.), cert, denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 405 (1986), cert, denied, 498 U.S. 836, 111 S.Ct. 106, 112 L.Ed.2d 76 (1990).

[¶ 20] It has also been held:

It is well established that the scope of proper cross-examination may extend to the whole transaction of which the witness has testified, or it may be employed to elicit any matter which may tend to overcome, qualify or explain the testimony given by a witness on his direct examination.

People v. Dotson, 46 Cal.2d 891, 299 P.2d 875, 879 (1956).

[A party] cannot adopt a strategy and at the same time preclude the [adverse party] from testing its validity by cross-examination ....

Com. v. Williams, 227 Pa.Super. 103, 323 A.2d 135,140 (1974). See also Roby v. State, 587 P.2d 641, 650 (Wyo.1978) (Raper, J„ dissenting, with whom Thomas, J., joins). The district court violated these rules in this case when it sua sponte declared defense counsel’s questions to be beyond the scope of direct examination. Stone testified that it was his opinion that the drug involved was cocaine. Through his questions about the similarity between the effects of cocaine and methamphetamine, defense counsel attempted to test the basis for that opinion. Those questions certainly were not beyond the scope of Stone’s direct examination. The State’s strategy was to prove one element of the crime — that Dysthe had delivered cocaine — -through the opinion testimony of one of the users. The State certainly could not then object because Dysthe attempted to test that opinion. Perhaps that is why the State did not object.

[¶ 21] We conclude that the district court’s ruling constituted an abuse of discretion. As we have previously stated, because no drug was retrieved and entered into evidence, the State’s case was based solely on the credibility of its witnesses. In testing Stone’s credibility, defense counsel was entitled to explore the foundation for his opinion. Furthermore, this was not harmless error due to the importance of Stone’s opinion to the State’s case.

PROSECUTORIAL MISCONDUCT

[¶ 22] Dysthe’s last argument is that the prosecutor committed misconduct in his closing argument. Allegations of prose-cutorial misconduct are reviewed

“by reference to the entire record and hinge on whether a defendant’s case has been so prejudiced as to constitute denial of a fair trial. Similarly, the propriety of any comment within a closing argument is measured in the context of the entire argu-ment_ [Reversal is not warranted un-
less a reasonable probability exists, absent the error, that the appellant may have enjoyed a more favorable verdict.”

Mazurek v. State, 10 P.3d 531, 542 (Wyo.2000) (quoting English v. State, 982 P.2d 139, 143 (Wyo.1999)). The burden of proof is assigned to the defendant. Tennant v. State, 786 P.2d 339, 346 (Wyo.1990).

[¶ 23] Because no objection to the prosecutor’s closing argument was made at trial, we review the claim under our plain error standard. Mitchell v. State, 982 P.2d 717, 723-24 (Wyo.1999). “ ‘Plain error exists when 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him.’ ” Mazurek, 10 P.3d at 535 (quoting Yetter v. State, 987 P.2d 666, 668 (Wyo.1999)). Prejudice results if Dysthe can show that he was not allowed a trial on its own merits. Mazurek, 10 P.3d at 536. Where the plain error elements are met, we may correct the error if it “ ‘ “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” ’ ...” Johnson v. United States, 520 U.S. 461, 469-70, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), cert, denied, 519 U.S. 931, 117 S.Ct. 303 (1996)).

[¶24] 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. Trujillo v. State, 2002 WY 51, ¶ 5 n. 2, 44 P.3d 22, 24 n. 2 (Wyo.2002) (quoting Browder v. State, 639 P.2d 889, 893 (Wyo.1982)). 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. We have recently adopted the broad guidelines found in I A.B.A., Standards for Criminal Justice 3-5.8 at 3.87 to 3.88 (2d ed.1980):

“(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
(d) The prosecutor should refrain from argument which would - divert the jury from its duty to decide the ease on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.”

Wilks v. State, 2002 WY 100, ¶ 27, 49 P.3d 975, 986-87 (Wyo.2002).

[¶25] Because the goal of the criminal justice system is the attainment of justice, the role of the prosecuting attorney differs from that of an advocate in a civil case. The prosecutor’s special role has been described in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935):

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

[¶ 28] Dysthe next argues that the prosecutor committed misconduct by vouching for the credibility of witnesses. Referring to the State’s witnesses, the prosecutor said:

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 also stated that he worked with the investigators on the case and he could “guarantee” that their investigations were not “arbitrary.” He told the jury that the witnesses had no reason to lie.

[¶ 29] “It is improper for the prosecuting attorney, even in responding to defense arguments, to personally vouch for the credibility of the state’s witnesses.” Lane v. State, 12 P.3d 1057, 1065 (Wyo.2000). The rationale for this rule has been stated as follows:

“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.”

Id. (quoting Barela v. State, 787 P.2d 82, 83-84 (Wyo.1990)). See also Mazurek, 10 P.3d at 542 (quoting Browder, 639 P.2d at 893) (“ ‘unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence of the guilt of the defendant.’ ”).

[¶ 30] Given these guidelines, we cannot conclude other than that the prosecutor’s comments in the present case crossed the line between legitimate argument and illegitimate vouching for the credibility of the State’s witnesses. While he 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.

[¶ 31] The third element of plain error analysis is that the error must “affect substantial rights.” This is the same language found in W.R.Cr.P. 52(b), and it means that the error or defect must adversely affect some substantial right of the accused to avoid a conclusion of harmless error. Hampton v. State, 558 P.2d 504, 507 (Wyo.1977); Hopkin-son, 632 P.2d at 145. The question in the instant ease is whether the prosecutor’s misconduct affected Dysthe’s right to a fair trial. We conclude that it did. As we mentioned repeatedly above, the State’s case depended entirely on the jury finding its witnesses credible. It is impossible in this case to know whether the conviction resulted from the jury’s independent evaluation of the evidence or from the jury’s having been swayed by the prosecutor’s improper arguments.

CONCLUSION

[¶ 32] The district court abused its discretion when it precluded the testimony of two defense witnesses and when it foreclosed the cross-examination of one of the State’s witnésses. In addition, prosecutorial misconduct during closing argument adversely affected Dysthe’s right to a fair trial.

[¶ 26] The first element of the plain error standard is met as to the first allegation of prosecutorial misconduct in the instant case because the record clearly reveals the alleged misconduct. During closing argument, the prosecutor stated:

So this is after, after all — -after all of the evidence, a case about this Defendant making a very, very bad choice. And it is a case about him trying to avoid responsibility for that choice.
You can hold him responsible. And based on the evidence and the law, you must hold him responsible. You have given an oath to do that, to follow the law and listen to the evidence. I would ask that you follow your oath. You consider the evidence. You consider the law and you return a guilty verdict against the Defendant, Kilen Dysthe, for delivery of a controlled substance, cocaine.

[¶ 27] At first glance, it might appear that the second element of plain error analysis is also met. When a portion of the prosecutor’s argument is taken out of context, it could be argued that the prosecutor told the jurors that the way to follow their oath was to “hold him responsible.” Such would violate the clear and unequivocal rule of law that “[i]t is ... improper for the prosecutor to state that the duty of the jury is to find the defendant guilty.” United States v. Sanchez, 176 F.3d 1214, 1224 (9th Cir.1999). But while we And the continued use of such arguments by prosecutors troublesome, we are unable to distinguish this argument, in context, from the one we recently found not to be prosecutorial misconduct in Wilks.

[¶ 33] We reverse and remand for a new trial.

      . Both Stone and Jacquot were granted transactional immunity for their testimony.

      . U.S. Const, amend. VI states: "In all criminal prosecutions, the accused shall enjoy the right to ... have compulsory process for obtaining witnesses in his favor ....” U.S. Const, amend. XIV reads: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law

      . Wyo. Const, art. 1, § 10 states: "In all criminal prosecutions the accused shall have the right to ... have compulsory process served for obtaining witnesses

      . W.R.Cr.P. 12.1(a) requires that "the defendant shall serve within 10 days, or at such different time as the court may direct, upon the attorney for the state a written notice of defendant’s intention to offer a defense of alibi.”

      . Because even an error of constitutional proportion is subject to harmless error analysis, that analysis was applied in Lawson and the conviction was affirmed. Lawson, 994 P.2d at 947.

      . Dysthe’s counsel argued to the district court, prior to jury selection, that the prosecutor, as an incentive for Jacquot’s testimony
      file[d] a motion and basically ha[d] the whole thing quashed and ha[d] the kid taken out of Drug Court, period.... The issue in this case is what did that kid think. I think it is very important to show that he’s mighty beholden to the prosecutor for coming basically to his rescue, in his eyes.
      No doubt, this was the limited subject to which counsel referred during the bench conference when he said, "I want to ask him if he has been, if he has been threatened with prosecution by Drug Court personnel; and isn’t it true that when you or your father objected to the prosecutor’s office, the problems were taken care of.”

      . The prosecutor’s argument in Wilks was:
      “Read the law. Please follow the law. It’s all there for you. I don’t want you to twist it.
      I don’t want you to turn it. Just read it as it is and apply the facts to the law.

        There is no triumph greater than the ascertainment of the truth. That's your job. Do your duty, please, and find the Defendant guilty of First Degree Murder.” Wilks, 2002 WY 100, ¶ 28, 49 P.3d at 987. See also Hart v. State, 2003 WY 12, ¶ 14, 62 P.3d 566 (Wyo.2003).


author: LEHMAN, Justice.

text:
    2003 WY 22
    SINCLAIR OIL CORPORATION, Appellant (Petitioner), v. WYOMING PUBLIC SERVICE COMMISSION and Steve Ellenbecker and Kristen N. Lee, in their official capacities as Commissioners, Appellees (Respondents), and Amoco Pipeline Company and Citation Oil and Gas Corporation, Appellees (Applicant and Intervenor Below).
    No. 01-228.
    Supreme Court of Wyoming.
    Feb. 21, 2003.

      John A. Sundahl and Brian J. Haniiy of Sundahl, Powers, Kapp & Martin, Cheyenne, WY, Representing Appellant. Argument by Mr. Sundahl.
    Hoke MacMillan, Attorney General; Michael L. Hubbard, Deputy Attorney General; Harry D. Ivey, Assistant Attorney General; and Nancy E. Vehr, Assistant Attorney General, Representing Appellee Wyoming Public Service Commission. Argument by Mr. Ivey.
    Roger C. Fransen and Ian D. Shaw of Hickey, Mackey, Evans & Walker, Cheyenne, WY, Representing Appellee Amoco Pipeline Company. Argument by Mr. Fran-sen.
    Alvin Wiederspahn of Wiederspahn '& Reese, P.C., Cheyenne, WY, Representing Appellee Citation Oil & Gas Corp. Argument by Mr. Wiederspahn.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   LEHMAN, Justice.

[¶ 1] Sinclair Oil Corporation (Sinclair) appeals an order entered by appellee Wyoming Public Service Commission (PSC). After administrative hearing, PSC approved the application of appellee Amoco Pipeline Company (Amoco) seeking authority to abandon its crude oil gathering facilities known as the Little Buffalo Gathering System and to eliminate Little Buffalo Station as a point of origin. Upon our appellate review, we affirm.

ISSUES

[¶ 2] Numerous issues are presented to this court on appeal. Sinclair sets forth the following issues:

1. Is it in accordance with the law for a public utility common carrier to fail to maintain its facilities, then abandon the facilities because they are in disrepair?
2. Did the PSC fail to apply the correct legal standard applicable to abandonments, and was the PSC’s determination that Amoco had upheld its evidentiary burden to abandon its facilities supported by substantial evidence?
3. Did the PSC abuse its discretion by failing to apply its own regulations regarding Amoco’s unilateral abandonment of the Little Buffalo Basin without prior PSC approval?
4. Was the PSC’s determination regarding the public interest supported by substantial evidence, or did the PSC abuse its discretion by limiting the scope of the hearing and precluding the receipt of relevant, admissible evidence regarding the public interest?
5. Did the PSC fail to apply the correct rule of law by refusing to determine whether Citation would operate the abandoned facilities as a public utility without the required certificate of public convenience and necessity?

PSC phrases the issues on appeal as:

1. Whether the PSC followed its own rules and other pertinent law in considering and deciding the issues of this case.
2. Whether substantial evidence exists to support the PSC’s factual findings when the evidence is viewed as a whole.
3. Whether the PSC’s procedural rulings were in accordance with law.
4. Whether the issue of Citation’s status as a public utility was properly before the PSC.
5. Whether the issue of late-filed exhibits was first raised on appeal.

Amoco states the issues before this court as:

1. Does Sinclair have standing to pursue this appeal?
2. Was the [PSC’s] decision to grant Amoco’s application to abandon made using the proper legal standards and supported by substantial evidence?
3. Was Amoco’s attempt to prevent an environmental catastrophe by suspending shipments on its gathering system a basis for the [PSC] to deny Amoco’s application to abandon?
4. Did the [PSC’s] evidentiary decisions constitute a clear abuse of discretion and, if so, were they prejudicial to Sinclair?

Finally, appellee Citation Oil and Gas Corporation (Citation) enunciates its issues on appeal as:

1. Does Sinclair have standing under the Administrative Procedure Act to bring this appeal?
2. Was the decision of the [PSC] to grant the application of Amoco Pipeline to abandon the Little Buffalo Basin crude oil gathering facilities and to eliminate Little Buffalo Station as a point of origin on Amoco Pipeline’s system in conformance with statutory requirements?
3. Did the [PSC] render a proper weighing and balancing of the affected interests impacted by the abandonment such that the public interest was best served by the abandonment of the Little Buffalo Basin gathering facilities?
4. Is the issue of whether Citation, by virtue of acquiring ownership and commencing operation of the abandoned Little Buffalo Basin gathering system, is a public utility properly before this Court? or, in the alternative, does Citation’s operation of the abandoned gathering facilities render Citation a public utility?

FACTS AND BACKGROUND

[¶ 3] On August 30, 2000, Amoco filed an application with PSC seeking authority to abandon its crude oil gathering facilities known as Little Buffalo Gathering System and to eliminate Little Buffalo Station as a point of origin. Both Sinclair and Citation were allowed by PSC to intervene and originally opposed Amoco’s application.

[¶ 4] On November 16, 2000, Amoco informed PSC operations at the Little Buffalo Gathering System had been suspended for reasons of environmental safety effective October 1, 2000, because a storage tank within the system was in substantial disrepair. On December 14, 2000, Amoco and Citation entered into a stipulated settlement agreement. Sinclair was not a party to this settlement. In the settlement agreement, Amoco and Citation agreed that should Amoco’s abandonment application be granted by PSC, Amoco would sell the Little Buffalo Gathering System to Citation. Citation would then have the opportunity to connect to a pipeline other than at Little Buffalo Station on Amoeo’s Big Horn trunk line (presumably Marathon Oil Company’s Red Butte Pipeline) in order to transport the Little Buffalo production and avoid trucking this product for refinement. Amoco and Citation further agreed that crude oil would never be sent through Little Buffalo Station on Amoco’s Big Horn trunk line.

[¶ 5] A public hearing was commenced on December 15, 2000, before PSC. This hearing was ultimately continued and concluded on January 3, 2001. At hearing, Sinclair objected to the terms of the stipulated settlement agreement between Amoco and Citation. PSC issued its final order June 11, 2001. This final order found 1) the gathering lines in the Little Buffalo Gathering System were sufficiently safe and in adequate condition to provide crude oil gathering services, 2) the storage tank used within the system needed to be replaced, 3) Amoco had sufficiently supported its assertion that replacement of the storage tank was not economically feasible, and 4) upon consideration of the public interests, Amoco’s application should be granted. After entry of PSC’s decision, Citation acquired the Little Buffalo Gathering System and negotiated an interconnect agreement with Marathon Oil Company’s Red Butte Pipeline to transport to market the crude oil produced at the Little Buffalo Basin field. Sinclair appealed the decision of PSC to the district court. This matter was then certified for review by this court.

STANDARD OF REVIEW

[¶ 6] Our review of administrative decisions is guided by the standards set forth in Wyo. Stat. Ann. § 16-3-114(c):

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity; •
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

See Newman v. State ex rel. Workers’ Safety & Compensation Div., 2002 WY 91, ¶ 9, 49 P.3d 163, ¶ 9 (Wyo.2002) and McTieman v. Scott, 2001 WY 87, ¶ 11, 31 P.3d 749, ¶ 11 (Wyo.2001).

[¶ 7] We further enunciated in Powder River Coal Co. v. State Bd. of Equalization, 2002 WY 5, ¶ 5, 38 P.3d 423, ¶ 5 (Wyo.2002):

When we review cases certified pursuant to W.R.A.P. 12.09(b), we apply the appellate standards which are applicable to the court of the first instance. State by and through Wyoming Department of Revenue v. Buggy Bath Unlimited, Inc., 2001 WY 27, ¶ 5, 18 P.3d 1182, ¶ 5 (Wyo.2001); see also Union Telephone Company, Inc. v. Wyoming Public Service Commission, 907 P.2d 340, 341-42 (Wyo.1995). Judicial review of administrative decisions is governed by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2001). Buggy Bath Unlimited, Inc., ¶ 5; W.R.A.P. 12.09(a); Everheart v. S & L Industrial, 957 P.2d 847, 851 (Wyo.1998).

In addition, in Powder River Coal Co., at ¶ 6 (citing Chevron U.S.A., Inc. v. State, 918 P.2d 980, 983 (Wyo.1996) and State by and through Dep’t of Rev. v. Buggy Bath Unlimited, Inc., 2001 WY 27, ¶ 6, 18 P.3d 1182, ¶ 6 (Wyo.2001)), we noted when this court reviews questions of law posed in an administrative context, this court must conduct a de novo review. We affirm an agency’s conclusions of law when they are in accordance with the law. However, when the agency has failed to properly invoke and apply the correct rule of law, we correct the agency’s error. Id. See also State ex rel. Workers’ Safety & Compensation Div. v. Garl, 2001 WY 59, ¶¶ 8-9, 26 P.3d 1029, ¶¶ 8-9 (Wyo.2001).

[¶ 8] When issues are presented to us concerning whether there exists substantial evidence in the record to support the administrative decision, we have described substantial evidence as: “relevant evidence which a reasonable mind might accept in support of the conclusions of the agency.” McTieman v. Scott, at ¶ 11.

The substantial evidence standard also requires that there be more than a scintilla of evidence. It is not required that the proof attain such a degree of certainty as to support only one conclusion to the exclusion of all others. Once the measure of evidence has surpassed the scintilla threshold, the possibility of drawing two inconsistent conclusions from the entire record does not mean that the conclusion drawn by the administrative agency is not supported by substantial evidence. Even where this court, after reviewing the record, arrives at a different conclusion, the court cannot substitute its judgment for that of the agency’s as long as the agency’s conclusion is supported by substantial evidence.
Joe Johnson Company v. Wyoming State Board of Control, 857 P.2d 312, 314-15 (Wyo.1993) (quoting Department of Employment, Labor Standards Division v. Roberts Construction Company, 841 P.2d 854, 857 (Wyo.1992)). “For evidence to be sufficient to allow a ‘reasonable mind’ to accept an agency’s conclusion, there must appear in the record evidence which allows either a definitive conclusion or a reasonable extrapolation based on the surrounding circumstances.” GID v. Wyoming State Board of Control, 926 P.2d 943, 951 (Wyo.1996).

Id. Therefore, when this court is charged with reviewing an agency’s decision for substantial evidence pursuant to Wyo. Stat. Ann. § 16-3-114(c)(ii)(E),

[t]hat duty requires a review of the entire record to determine if there is relevant evidence that a reasonable mind might accept in support of the agency’s decision. Joe Johnson Company, 857 P.2d at 314-15. Occasionally, the process of review will necessarily require the reviewing court to engage in an assessment of the facts adduced during the administrative hearing. That assessment does not usually involve a reweighing or reconsideration of the basic facts found by the agency. However, as a by-product of that process, the reviewing court may arrive at an ultimate conclusion derived from those basic facts that is different from the agency’s. A court will reach a different conclusion based on the evidence only in those situations where the agency’s conclusion is clearly contrary to the weight of the evidence.

McTieman, at ¶ 16 (footnote omitted). We have further stated in Newman, at ¶ 12 (quoting State ex rel. Workers’ Safety & Compensation Div. v. Jensen, 2001 WY 51, ¶ 10, 24 P.3d 1133, ¶ 10 (Wyo.2001)) that the substantial evidence test to be applied is as follows:

In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency’s findings. If the agency’s decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency’s conclusions. It is more than a scintilla of evidence.

[¶ 9] Speaking specifically of PSC, we have said that PSC is required to give paramount consideration to the public interest in exercising its statutory powers to regulate and supervise public utilities. The desires of the utility are secondary. Tri County Telephone Ass’n, Inc. v. Public Serv. Comm’n, 11 P.3d 938, 941 (Wyo.2000) (citing Mountain Fuel Supply Co. v. Public Serv. Comm’n, 662 P.2d 878, 883 (Wyo.1983)). Additionally, in recognition of the limited nature of our review, we have explained that the judicial function is exhausted when we can find from the evidence a rational view for the conclusions of the PSC. Tri County Telephone Ass’n, at 941 (citing Telstar Communications, Inc. v. Rule Radiophone Serv., Inc., 621 P.2d 241, 246 (Wyo.1980)).

DISCUSSION

Standing

[¶ 10] Both Amoco and Citation assert Sinclair lacks standing to pursue this appeal because Sinclair cannot show that it is “aggrieved or adversely affected in fact” or, conversely, can show that it has incurred a “perceptible, rather than a speculative harm” as a result of the decision rendered by PSC.

[¶ 11] We recently stated in Jolley v. State Loan & Investment Board, 2002 WY 7, ¶¶ 6-7, 38 P.3d 1073, ¶¶ 6-7 (Wyo.2002):

Standing is a legal concept designed to determine whether a party is sufficiently affected to insure that the court is presented with a justiciable controversy. Roe v. Board of County Commissioners, Campbell County, 997 P.2d 1021, 1022 (Wyo. 2000) (quoting Memorial Hospital of Laramie County v. Department of Revenue and Taxation of State of Wyoming, 770 P.2d 223, 226 (Wyo.1989) and Washakie County School District Number One v. Herschler, 606 P.2d 310, 316 (Wyo.1980)).

“The doctrine of standing is a jurisprudential rule of jurisdictional magnitude. At its most elementary level, the standing doctrine holds that a decision-making body should refrain from considering issues in which the litigants have little or no interest in vigorously advocating. Accordingly, the doctrine of standing focuses upon whether a litigant is properly situated to assert an issue for judicial or quasi-judicial determination. A litigant is said to have standing when he has a ‘personal stake in the outcome of the controversy.’ This personal stake requirement has been described in Wyoming as a ‘tangible interest’ at stake. The tangible interest requirement guarantees that a litigant is sufficiently interested in a case to present a justiciable controversy.”
State ex rel. Bayou Liquors, Inc. v. City of Casper, 906 P.2d 1046, 1048 (Wyo. 1995) (quoting Schutthess v. Carollo, 832 P.2d 552, 556-57 (Wyo.1992) (citations omitted)).
Roe, 997 P.2d at 1022-23.

Judicial review of an agency action is authorized by Wyo. Stat. Ann. § 16 — 3— 114(a) only for those persons “aggrieved or adversely affected in fact” by the challenged action.

An aggrieved or adversely affected person is one who has a legally recognizable interest in that which will be affected by the action. Hoke v. Moyer, 865 P.2d 624, 628 (Wyo.1993). A potential litigant must show injury or potential injury by “alleg[ing] a perceptible, rather than a speculative, harm resulting from the agency action.” Foster’s, Inc. v. City of Laramie, 718 P.2d 868, 872 (Wyo.1986). “ ‘The interest which will sustain a right to appeal must generally be substantial, immediate, and pecuniary. A future, contingent, or merely speculative interest is ordinarily not sufficient.’ ” L Slash X Cattle Company, Inc. v. Texaco, Inc., 623 P.2d 764, 769 (Wyo.1981) (quoting 4 Am.Jur.2d Appeal and Error § 180).

Roe, 997 P.2d at 1023.

[¶ 12] In State ex rel. Bayou Liquors, Inc. v. City of Casper, 906 P.2d 1046, 1048 (Wyo.1995), we also recognized:

The concept of “standing to sue” refers to a right to relief that goes to the existence of a personal claim for relief. Matter of Various Water Rights in Lake DeS-met Reservoir, 623 P.2d 764, 767 (Wyo.1981).
... The tangible interest requirement guarantees that a litigant is sufficiently interested in a case to present a justicia-ble controversy. Laramie Rivers [Co. v. Wheatland Irr. Dist.], 708 P.2d [20,] at 27 [Wyo. 1985] (quoting Inti Ass’n Fire Fighters v. Civil Serv. Comm’n, 702 P.2d 1294,1297-98 (Wyo.1985)).
Schutthess v. Carollo, 832 P.2d 552, 556-57 (Wyo.1992).

[¶ 13] In Foster’s, Inc. v. City of Laramie, 718 P.2d 868, 872-73 (Wyo.1986) (quoting from Matter of Various Water Rights in Lake DeSmet Reservoir, 623 P.2d 764 (Wyo.1981)), we clarified that a potential litigant must show injury or potential injury:

“ ‘Standing to sue’ is a right to relief and goes to the existence of a personal claim for relief. It includes a legal disability, such as insanity or infancy, but it is more. It involves a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. It is closely related to the doctrine of mootness. It requires sufficient personal interest in the outcome of litigation by way of injury or potential injury to warrant consideration by the court.” 623 P.2d at 767.
To establish the requisite injury, a petitioner must allege a perceptible, rather than a speculative, harm resulting from the agency action:
“[A] party is not considered ‘aggrieved’ when there is only a remote possibility of injury.” “ ‘[PJleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency’s action_’ United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973).” (Citation omitted.) 623 P.2d at 769.

[¶ 14] Amoco and Citation profess the record reflects Sinclair does not have the type of substantial, immediate, and pecuniary interests required to support Sinclair’s standing to appeal. In particular, they argue Sinclair acknowledged it had not purchased any production from the Little Buffalo Basin field for a three-year period prior to April of 2000 and Sinclair had not been a shipper on the Little Buffalo Basin Gathering System since September 1996. Moreover, Amoco and Citation claim that even after the decision of PSC approving the abandonment, ultimately allowing Little Buffalo crude oil to be transferred to the Red Butte Pipeline for shipment, Sinclair is still able to use Little Buffalo crude oil at its Sinclair, Wyoming refinery or, alternatively, Sinclair could effectively manage its crude oil supply by back hauling on its own pipeline or by making crude oil trades.

[¶ 15] In addition, Amoco and Citation contend the record establishes that even if Sinclair was able to utilize the entire crude oil production of Little Buffalo, which is approximately 2,200 barrels per day, this loss would not be material to Sinclair’s operation which consumes approximately 80,000 barrels of crude oil every day. Further, Amoco and Citation assert their position is enforced by the fact Sinclair had never been able to obtain 2,200 barrels per day from Little Buffalo. Sinclair’s most recent indirect purchase in the second half of 2000 from Koch Oil Company amounted to only 500 barrels per day. Accordingly, Amoco and Citation aver that even if Sinclair was allowed continued access to Little Buffalo crude oil, there is no assurance Sinclair would use this crude oil as Sinclair has not historically been the low bidder for such crude oil, Sinclair has not purchased a large portion of this production, and Sinclair has only used this crude oil on a seasonal basis. Amoco and Citation further point out Sinclair has no contractual right to any of the Little Buffalo crude oil and has never offered a bid for, or purchased, Little Buffalo crude oil from Citation.

[¶ 16] Also in support of its position, Amoco and Citation cite Sinclair’s admission that should it choose to do so, it can operate successfully without access to the Little Buffalo crude oil by obtaining its crude oil supply from North Dakota, Montana, Canada, and other fields in Wyoming. Further, Sinclair has not had difficulty in obtaining the crude oil that it needs for its operation over the past three years when no Little Buffalo crude oil was available, and Sinclair cannot identify any adverse economic impact arising out of the abandonment for which Amoco applied.

[¶ 17] In response to these contentions, Sinclair counters it has purchased Little Buffalo crude oil for the past 50 years and has purchased Little Buffalo crude oil from Co-noco during the three years prior to April of 2000. In addition, when Sinclair bought crude oil, it shipped this crude oil on Amoco’s pipelines pursuant to both a Federal Energy Regulatory Commission tariff and a PSC tariff. Sinclair also claims it has bought Little Buffalo crude oil when such oil has been available and intends to continue purchasing this crude oil, if allowed to do so.

[¶ 18] Finally, Sinclair asserts two reasons why it is aggrieved or adversely affected by the inability to have access to Little Buffalo crude oil at its Casper, Wyoming refinery. First, Little Buffalo crude oil represents a low-cost crude oil from a transportation standpoint because the cost to transport a barrel of Little Buffalo crude oil to Sinclair’s Casper, Wyoming refinery is one dollar less than the cost to transport a barrel of crude oil from Canada. Further, in response to a direct question from PSC at the hearing as to why the 500 barrels of crude oil per day that Sinclair was purchasing for its Casper, Wyoming refinery was such an important factor to Sinclair’s ability to operate that refinery, Sinclair responded that a $10.00 per barrel profit margin for these 500 barrels per day amounted to a significant amount of money to Sinclair. Therefore, Sinclair argues the amount of crude oil Sinclair has purchased from Little Buffalo Basin is very significant from the standpoint of profit margins.

[¶ 19] Secondly, Sinclair argues it is aggrieved and adversely affected by the ruling of PSC because Little Buffalo crude oil is classified as Wyoming asphaltic crude oil, and its Casper, Wyoming refinery was designed to refine this type of asphaltic crude oil when making asphalt. Sinclair, on average, refines 8,000 barrels per day of this type of oil with this amount increasing to 12,000 to 14,000 barrels per day in the summer when demand for asphalt is higher. Therefore, although Sinclair has contracted for 4,700 barrels per day of production from another Wyoming asphaltic crude field, Little Buffalo crude oil is a primary source in the summer months. Further, Sinclair posits the loss of 2,200 barrels of Little Buffalo crude oil or the 500 barrels Sinclair was purchasing at the time of the abandonment is very significant when compared to the amount of Wyoming asphaltic crude oil that is refined by Sinclair.

[¶ 20] Upon our review of the record, we conclude Sinclair has appropriate standing to bring this appeal. Specifically, under the facts presented by Sinclair, we are convinced Sinclair is sufficiently affected to guarantee this court is faced with the determination of an actual justiciable controversy. Certainly, while Amoco and Citation try to minimize Sinclair’s involvement, Sinclair is properly situated with sufficient pecuniary, personal, and tangible interests at stake. Such involvement assures Sinclair is properly motivated to vigorously advocate its position.

Sinclair has also shown potential injury or harm is readily perceptible resulting from the action taken by PSC, rather than merely speculative as argued by Amoco and Citation. As such, Sinclair is entitled to judicial review of the issues it has raised before this court.

The PSC Determination

[¶ 21] Sinclair raises numerous issues regarding the determination by PSC to approve the application of Amoco to abandon its crude oil gathering facilities. After boiling down the issues raised by Sinclair, Sinclair essentially asserts 1) PSC erred as a matter of law in failing to apply the proper legal standard applicable in an abandonment matter; 2) PSC’s determination the abandonment was in the public interest was unsupported by substantial evidence; and 3) PSC erred as a matter of law concerning Amoco’s duty to maintain its facilities. We address each of these issues in turn.

1. Legal Standard

[¶ 22] Sinclair declares PSC applied an improper legal standard in determining the application for abandonment filed by Amoco. Therefore, Sinclair concludes PSC’s approval of the abandonment must be set aside. Ironically, Sinclair agrees, along with the remaining parties and this court, the proper legal standard to be applied in abandonment cases is expressed in the case of Union Pacific Railroad Co. v. Public Serv. Comm’n, 518 P.2d 23, 24-25 (Wyo.1974). In that case, this court stated:

The appellant strenuously argues that the profitability of the station is not a governing or major factor to be considered but is only one of some seven mentioned as important: (1) the volume and nature of the business transacted at the station; (2) the cost of furnishing such service; (3) the ratio of the cost of maintaining the station agency (including both out-of-pocket and overall expense) to revenues received from the station; (4) the nature of the transportation service remaining or to be substituted; (5) the proximity and accessibility, including public telephone service, to other stations; (6) the inconvenience to the entire shipping and traveling public and not merely to an individual or a few shippers resulting from removal of the agent; and (7) the probabilities of future development.
While it is true that the profitability aspect, covered indirectly in the first three mentioned factors, is not controlling but merely one element to be viewed along with various others, we think that, reasonably interpreted, the commission’s findings so indicate; and it would seem that the commission considered profitability as only one of three factors on which the order was based.
Doubtless there is validity in each of the seven factors indicated by appellant to be of importance in determining whether or not a railroad agency should be maintained or discontinued. However, the matter varies as to existing situations. Our research leads us to believe that for practical purposes the correct rule is that if the public good, its convenience and necessity, outweighs the expense of the railroad in continuing such agency the commission is justified in denying the request for closing. Erie-Lackawanna Railroad Company v. Pennsylvania Public Utility Commission, 202 Pa.Super. 511, 515, 198 A.2d 383, 385; Louisiana and Arkansas Railway Company v. Arkansas Commerce Commission, 235 Ark. 506, 360 S.W.2d 763, 764; 74 C.J.S. Railroads § 402(2).
... Accordingly, the paramount question before us is whether or not the public convenience and necessity require that the agency station remain at Burns; and it is basic that the burden of proving lack is upon the carrier seeking discontinuance of the agency. Application of Chicago & North Western Railway Company, 79 Wyo. 343, 334 P.2d 519, 521.

In the companion case to Union Pacific Railroad Co. v. Public Serv. Comm’n, 518 P.2d 23, Union Pacific Railroad Co. v. Public Serv. Comm’n, 518 P.2d 17, 18-19 (Wyo.1974), this court further recognized:

In that connection, it is argued, inter alia, that the basic concept, or factor, to be kept in mind in determining whether an agency station should be closed or kept open is the public convenience and necessity, that the courts have held the public convenience and necessity to be considered in granting or denying an application to close an agency station mean the convenience and necessity of the public and not of an individual or individuals, and that in the absence of public convenience and necessity the maintenance of a railroad agency station primarily involves a question of business policy with which regulatory bodies should not interfere. Considering the burden of the earner to prove the lack of the public’s necessity and convenience in order to justify the closing of the station, we conclude that the district court was correct in affirming the commission’s order.

More recently, this court again certified this is the proper legal standard that must be applied in abandonment cases in Burlington Northern Railroad Co. v. Public Serv. Comm’n, 698 P.2d 1135 (Wyo.1985).

[¶23] Sinclair further asks this court to adopt purported additional standards of review as expressed in 1 David J. Muchow & William A. Mogel, Energy Law and Transactions § 2.01[2][b][i] (2002) and 73B C.J.S., Public Utilities § 9(a) (1983). 1 Energy Law and Transactions § 2.01[2][b][i] espouses a rule of law that: “A utility may request to abandon services when consumer demand diminishes and the costs of providing service increase so that it is no longer profitable for the utility to continue providing service.” The standard set forth in 73B C.J.S., Public Utilities § 9(a) states:

The devotion of property to a public use carries with it the duty to serve the public, and such duty must be performed by a public utility or its privileges and franchise must be surrendered. As a general rule, it has no right to discontinue or abandon its service on any part of its property devoted to public use or to impair its ability to perform its public duties except with the consent of the state; and the mere fact that the enterprise or a particular service is not profitable does not justify the utility in ceasing or refusing to perform its duties.
In the absence of a statute or contract, however, a utility is not bound to continue operation at a loss if there is no reasonable prospect of profitable operation in the future, or if such continuance will require a considerable investment from which no return can reasonably be expected.

(Footnotes omitted.) This section goes on to express a state may compel performance of the public utility’s duties when no adequate excuse for nonperformance is shown.

[¶ 24] Initially, upon our consideration of the standards which Sinclair asks us to adopt, we recognize Sinclair admits the standard set forth in C.J.S. is substantially similar to the standard set forth for railroads already adopted in our holdings in both Union Pacific Railroad Co. v. Public Serv. Comm’n, 518 P.2d 23 and Union Pacific Railroad Co. v. Public Serv. Comm’n, 518 P.2d 17, 18-19 and confirmed in Burlington Northern Railroad Co. v. Public Serv. Comm’n, 698 P.2d 1135. In addition, the standard set forth in 1 Energy Law and Transactions § 2.01[2][b][i], in essence, enumerates only one element which our already adopted standard expresses through these holdings. Hence, we refuse to adopt those standards proffered by Sinclair because we find them to be too limiting. Rather, we find the better rule of law to be that already expressed in Wyoming which requires a more global review and balancing of each of those factors as set forth in Union Pacific Railroad Co. v. Public Serv. Comm’n, 518 P.2d 23, 24-25 and the subsequent opinions issued by this court.

[¶ 25] Upon our review of the record, we hold PSC applied the appropriate legal standard with respect to the abandonment application of Amoco. In its decision PSC stated:

84. In making a determination as to whether to grant the abandonment of public utility facilities and the cessation of public utility service the Commission must be guided by public interest considerations. In this present case, the public interest was identified as consisting of the interests of the lease and royalty holders in the Little Buffalo Field, including the State of Wyoming through the Office of State Lands and Investments; Citation, as the producer and marketer of production in the field; Sinclair, as a prior purchaser of production from the Little Buffalo Basin Field; and Amoco, as the owner of the gathering facilities proposed to be abandoned. The Commission notes that, although Koch Oil Company and Conoco have been identified as prior purchasers of Little Buffalo Basin crude oil, neither entity expressed any position regarding the proposed abandonment. In weighing and balancing the common, and in some instances the conflicting, interests of these various entities it is important to consider their past utilization of these public utility gathering facilities and the future impact on these entities should the abandonment be granted.

PSC also found, through evidence comprised of actual operating results for the most recent three-year period, Amoco had supported its assertion that replacement of the storage tank was not economically feasible. However, PSC specifically noted this issue was not the primary consideration or factor upon which it relied in making its final decision.

[¶ 26] PSC recognized Citation was responsible for marketing all of the oil produced in Little Buffalo Basin on behalf of its limited partners, as well as the remaining leaseholders that retained the remaining 2% of the working interest in the leasehold. In addition, PSC observed Citation’s purchase and operation of the gathering line facilities and its agreement not to utilize the Little Buffalo Basin point of origin giving access to the Amoco Big Horn trunk line provided Citation with a greater number of possible markets and potentially better sales prices for the Little Buffalo Basin production, to the greater benefit of Citation and the lease and royalty holders in the field. Finally, PSC acknowledged Sinclair had not purchased any of the production from the Little Buffalo field for the three-year period prior to April of 2000 and, only recently toward the second half of 2000, had an opportunity to purchase some of this crude oil from Koch Oil Company.

[¶ 27] Therefore, we conclude PSC applied the appropriate legal standard as originally set forth in the seminal case of Union Pacific Railroad Co. v. Public Serv. Comm’n, 518 P.2d 23 and properly considered the public good, convenience, and necessity with respect to its determination concerning the abandonment application of Amoco. Indeed, the record reflects PSC took a very deliberate, conscientious, and systematic approach in its analysis to ensure its determination was appropriately based upon the specific criteria previously enumerated by this court.

2. Substantial Evidence

[¶ 28] Along with its numerous complaints that PSC applied the incorrect legal standard in determining the application for abandonment filed by Amoco, Sinclair through a “shot-gun” approach argues PSC’s determination was not supported by substantial evidence. In taking such an approach, Sinclair merely cites this court to its own facts and arguments presented at the PSC hearing and performs little analysis detailing why PSC’s determination was unsupported by the evidence garnered at hearing. In fact, we are inclined to agree with the characterization of each of the appellees that Sinclair simply attempts to re-try its case before this court, rather than present this court with foundation that PSC’s ultimate conclusion was not supported by substantial evidence.

[¶ 29] Initially, Sinclair claims PSC’s conclusions that a new storage tank would cost $691,000 and replacement of the storage tank was not economically supported were erroneous and not supported by evidence presented at hearing. Certainly, as admitted by PSC in its final order, these issues were each highly contested. Nevertheless, sufficient evidence was submitted to PSC to support its ultimate determination.

[¶ 30] Amoco, Sinclair, and Citation presented evidence at the hearing concerning the estimated costs associated with the replacement of the subject tank. Amoco’s witness, Tom Boslett, district manager for the Rocky Mountain Business District of Amoco, testified the cost of the tank, itself, along with any related material and assembly costs, constituted only a portion of the total cost in replacing the tank and other costs such as foundation work, dirt work, electrical work, and site preparation among other possible costs needed to be factored into the cost of replacement of the tank. At the hearing, Sinclair pointed out Citation, in responding to discovery, estimated the cost of erecting a storage tank was $200,000, yet it is unclear whether this estimate included all costs associated with the total endeavor of replacing the tank. In fact, Citation went on to indicate it had expended considerable time, effort, and expense in designing and obtaining cost estimates to install a new gathering system at Little Buffalo Basin. However, it remains questionable if these costs are included in the $200,000 storage tank figure. Sinclair also provided PSC with bid estimates for replacement of the tank which varied from $103,000 to $130,000. Nevertheless, Sinclair admitted these estimates only included the cost for materials and labor to install the tank shell and did not include other costs which would also have to be incurred in replacing the tank, such as site preparation costs, earthwork, foundation for the tank, floating roof, electrical instrumentation,. valves, piping, tank coatings, engineering design, construction management, and inspection. Accordingly, comparison of the cost estimates received by PSC to replace the tank becomes virtually impossible.

[¶31] Sinclair also criticizes PSC for allegedly not requiring Amoco to meet its burden of proof with respect to the economic realities associated with its proffered abandonment. Review of the record indicates Amoco presented actual operating results for a three-year period and estimated costs for replacement of the tank in support of its argument that replacement of the tank would not be economically feasible. Sinclair argues Mr. Boslett, on behalf of Amoco, admitted there existed no foundation for this documentation and, therefore, PSC relied on data that was admittedly unsupported to reach its con-elusion. A more careful review of Mr. Bos-lett’s testimony reveals the operating results presented constituted accurate figures available to Amoco regarding net revenues for the applicable period of time. Critically, Mr. Boslett testified Amoco’s analysis was primarily supported by the actual operating revenue and expenses incurred. In addition, Mi*. Boslett testified on numerous occasions upon rigorous cross-examination by Sinclair’s counsel that the economic analysis performed by Amoco concerning its calculated rate of return was a rough estimate, however, even substantial changes in the numbers utilized would not significantly change the outcome.

[¶ 32] Sinclair also argues Amoco must demonstrate no return can be reasonably expected from the investment in the new tank and therefore, because Amoco submitted evidence that a return of at least 5.5% might be realized, PSC erred in making its determination. This assertion by Sinclair as to Amoco’s required burden of proof is patently incorrect. As noted above, the proper legal standard that must be applied requires seven distinct factors to be considered with the primary consideration ultimately being public good, convenience, and necessity. The established law in Wyoming simply does not require Amoco to demonstrate absolutely no return can be reasonably expected from any anticipated investment in the system.

[¶ 33] Further, Sinclair asserts PSC’s conclusion that approving the requested abandonment was in the public’s best interest is unsupported by substantial evidence. As foundation for this contention, Sinclair again avers that it was significantly adversely affected by the decision of PSC given the positioning of Sinclair in the market as previously set forth in our discussion regarding standing. Primarily, Sinclair argues under the allowed abandonment it is now unable to easily obtain crude oil for its Sinclair, Wyoming refinery. Sinclair also takes the position that Citation’s interests in the requested abandonment are insignificant because the determination of PSC, one way or another, did not affect Citation’s ability to market its product.

[¶ 34] The record evidences PSC’s painstaking analysis of all interests affected in this case. In particular, PSC assessed the potential effects of its determination on each of the lease and royalty holders in the Little Buffalo field, including the United States government; the State of Wyoming; Citation, as the producer and marketer of the oil produced; Amoco, as the owner of the facilities proposed to be abandoned; and Sinclair, as a previous and recent purchaser of oil. In addition, PSC gave notice to prior purchasers of oil such as Koch Oil Company and Conoco, but these entities chose not to participate in this matter. Finally, PSC considered the effects its decision might have on the public at large.

[¶ 35] The evidence establishes Citation is the sole operator of the Little Buffalo field and with its limited partners owns over 98% of the working interests in the Little Buffalo leasehold estate. In addition, no owners or operators other than Citation transport crude oil through the gathering system, and Citation is exclusively responsible for the marketing of crude oil produced at Little Buffalo Basin on behalf of its limited partners and the owners of the other 2% of the working interests. Therefore, Citation clearly possessed a direct and substantial interest in the Little Buffalo field.

[¶ 36] Citation further showed that its purchase and operation of the gathering facilities and its agreement to not ship through Amoco’s Big Horn trunk line provided Citation with access to a greater number of markets and a potential for better sales prices. These consequences obviously enure to benefit, not only Citation, its limited partners, the remaining working interest owners, but potential purchasers and governmental interests, as well as the public at large. In addition, it is logical for Citation to own and operate the gathering system thereby ensuring Citation is committed to the fullest possible continued development of Little Buffalo Basin resources.

[¶ 37] Furthermore, PSC considered Sinclair’s involvement as a crude oil purchaser. The evidence presented established Sinclair had not purchased crude oil produced at Little Buffalo Basin for the three-year period prior to April of 2000; Sinclair purchased only a small amount of crude oil from Koch Oil Company since that time; Sinclair had not been a shipper on the gathering system since 1996; Sinclair had other sources for obtaining crude oil in North Dakota, Montana, Canada, and other fields in Wyoming; Sinclair had never offered to bid for, or purchased, Little Buffalo crude oil from Citation; and Sinclair had no existing contractual right to purchase Little Buffalo Basin crude oil. Finally, PSC recognized, even upon approval of the abandonment of Amoco facilities and utilization of the Red Butte Pipeline as contemplated by Citation, Sinclair could still receive Little Buffalo Basin crude oil at its Sinclair, Wyoming facilities.

[¶ 38] We readily admit the record before us does reflect some evidence that is contrary to the ultimate decision made by PSC. However, this evidence is not sufficient to convince us the determination of PSC was incorrect. We, therefore, determine the findings and rulings reached by PSC were based on substantial evidence and within established law. We hold the record provides a rational basis for PSC’s ultimate findings of fact and conclusions of law. As such, we hold these findings of fact and conclusions of law were not clearly contrary to the overwhelming weight of the evidence. Further, we recognize, as we have on numerous other occasions, that we will not substitute our judgment for that of an agency when substantial evidence supports the decision rendered by the agency involved. Elk Horn Ranch, Inc. v. Board of County Comm’rs, 2002 WY 167, ¶ 13, 57 P.3d 1218, ¶ 13 (Wyo.2002) (citing Newman v. State ex rel. Workers’ Safety & Compensation Div., 2002 WY 91, ¶ 12, 49 P.3d 163, ¶ 12 (Wyo.2002)).

[¶ 39] In tangentially related assertions to Sinclair’s sufficiency of the evidence argument, Sinclair further repines PSC improperly refused to allow Sinclair to inquire additionally into the public interest issues by making evidentiary rulings against Sinclair and through PSC’s request for and acceptance of late filed exhibits after the hearing was concluded. Sinclair also contends PSC erred when it refused to allow Sinclair to admit Citation’s pre-filed testimony of Forrest Harrell.

[¶40] With respect to PSC’s evi-dentiary rulings, Sinclair asserts it was improperly prevented from completely delving into the effects of the settlement agreement reached between Amoco and Citation with respect to issues regarding alternative transportation of the crude oil and the existence and sufficiency of those markets available under the terms of the agreement. Furthermore, Sinclair proffers it was unfair for it to be averted from inquiring into these areas while at the same time Amoco and Citation were allowed to utilize the terms of the settlement agreement entered into between them to support Amoco’s requested abandonment.

[¶ 41] It is well established in Wyoming that with regard to an agency’s decision on the admission or exclusion of evidence and testimony, such is left within the sound discretion of the agency. 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. In re: Worker’s Compensation Claim of Shryack, 3 P.3d 850, 855 (Wyo.2000) (quoting Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998)). An abuse of discretion has also been said to have occurred only when the decision shocks the conscience of the court and appears to be so unfair and inequitable that a reasonable person could not abide it. Hall v. Hall, 2002 WY 30, ¶ 12, 40 P.3d 1228, ¶ 12 (Wyo.2002); Everhearb v. S & L Industrial, 957 P.2d 847, 853 (Wyo.1998); Goddard v. Colonel Bozeman’s Restaurant, 914 P.2d 1233,1238 (Wyo.1996).

[¶ 42] PSC limited Sinclair’s inquiry into the effects of the settlement agreement reached between Amoco and Citation with respect to those issues regarding alternative transportation of the crude oil and the existence or sufficiency of those markets available under those terms based primarily upon its determination that PSC should not inquire into and make decisions concerning private entities over which the PSC had no control. This court has previously cautioned PSC that it is not authorized to meddle in the private sector’s contractual affairs. Union Telephone Co., Inc. v. Public Serv. Comm’n, 910 P.2d 1362,1365 (Wyo.1996).

[¶ 43] Furthermore, PSC allowed Sinclair some latitude with these subjects yet drew the line at Sinclair’s attempt to obtain specific details in these areas. Moreover, we recognize the terms of the agreement between Amoco and Citation were fully disclosed to PSC; and testimony from a Citation witness, Gary C. Johnson, was received by PSC regarding these topics. Indeed, in its determination, PSC explicitly observed that under the agreement Citation had agreed not to transport crude oil via Amoco’s Big Horn trunk line, which would result in Sinclair being precluded from direct access to Little Buffalo field crude oil at its Casper, Wyoming refinery. PSC further properly intimated Sinclair’s intended inquiry into these areas was cumulative and, in any event, outside the direct abandonment application being considered at the hearing. Finally, Sinclair had the opportunity at the hearing to present its own evidence and testimony into these areas without directly attempting to elicit Citation’s particular business plans given its agreement with Amoco, but chose not to do so. We hold, therefore, PSC did not abuse its discretion when it precluded detailed inquiry into the specific manner in which Citation intended to transport crude oil given its decision to enter into the agreement with Amoco.

[¶44] As to Sinclair’s asserted error concerning PSC’s acceptance of exhibits from the parties after hearing, we reach a similar result. First, Sinclair did not object to Citation’s submission of evidence as requested by PSC and, therefore, impliedly waived any issue regarding these exhibits. Under long standing precedent, this court has also clearly established it will not consider those issues on appeal not previously raised. State v. Campbell County Sch. Dist, 2001 WY 90, ¶ 35, 32 P.3d 325, ¶35 (Wyo.2001); Cooper v. Town of Pinedale, 1 P.3d 1197, 1208 (Wyo.2000); R.O. Corp. v. John H. Bell Iron Mountain Ranch Co., 781 P.2d 910, 913 (Wyo.1989). Secondly, Sinclair was also allowed by PSC to submit exhibits after hearing and even requested that certain information contained within the late-filed exhibits be submitted by the parties. Therefore, it is disingenuous for Sinclair to complain Citation was given this same opportunity and now object after its own requests have been satisfied.

[¶ 45] We also find the exhibits submitted by Citation were somewhat cumulative to the testimony given by its witness, Mr. Johnson, concerning the areas of alternative transportation of the crude oil and the existence or sufficiency of those markets available. Finally, we believe that the request for and acceptance of the late-filed exhibits by PSC was done in order to obtain all the necessary information needed by PSC to make a complete and informed determination in this matter and was appropriate in such regard. See Majority of Working Interest Owners In Buck Draw Field Area v. Wyoming Oil & Gas Conservation Comm’n, 721 P.2d 1070, 1078 (Wyo.1986) (holding an administrative agency may admit documentary evidence in a contested case after hearing).

[¶ 46] Lastly, Sinclair grieves that PSC improperly deterred it from admitting the pre-filed testimony of Mr. Harrell, Citation’s witness. However, upon our review, we find that this testimony was summative to live testimony given by Citation’s witness, Mr. Johnson. Additionally, Sinclair was granted leeway in its cross-examination of Mr. Johnson to explore the areas expressed by Mr. Harrell prior to hearing. Further, Sinclair did not subpoena Mr. Harrell to testify at hearing. Therefore, we find that PSC again did not abuse its discretion in rendering its decision and, in any event, PSC’s ruling proved harmless to Sinclair.

3. Duty to Maintain

[¶ 47] Sinclair also contends Amoco had a duty to maintain its facilities as a public utility under both statutory and regulatory authority and PSC failed to make a determination regarding this issue. Moreover, Sinclair contests it was improper for PSC to grant Amoco’s abandonment application predicated on Amoco’s contention the subject storage tank was in a dilapidated condition.

[¶ 48] Initially, this court recognizes that PSC did make a review as to whether there existed a connection between what had previously transpired leading up to the deterioration of the system and the proposed abandonment sought by Amoco. This was expressly detailed by PSC at the hearing. Furthermore, the evidence presented at the hearing showed that the only unusable portion of the facilities was the 55-year-old storage tank. Indeed, at the hearing Citation admitted that it intended to continue to use the facilities with the exception of the storage tank. This fact was expressly detailed by PSC in its order: “the gathering lines serving the Little Buffalo Field remain in a sufficiently safe and adequate condition to provide crude oil gathering service.”

[¶ 49] Upon our review of the record, we must also agree with the conclusions of PSC expressed in its order that:

The evidence of record reflects the parties’ concurrence that the storage tank needs to be either repaired or replaced. Although the gathering lines and the existing 10,000 barrel storage tank are not cathodieally protected and are of similar vintage, the Commission concurs with the opinions expressed by Amoco and Citation that the current condition of the storage tank precludes its continued use. Amoco witness Boslett described the storage tank as having a crumbling foundation, serious corrosion, bowed stop parts, and being in service beyond its useful life. Mr. Boslett further testified that recent cleaning of the tank resulted in leaks.

Simply stated, the evidence presented supports the conclusion that the storage tank had reached the end of its useful life.

[¶ 50] Sinclair also challenges Amoco’s efforts to maintain the storage tank and alludes that Amoco had received PSC approved higher rates in order to better service and maintain its facilities, yet failed to do so in this case. Nevertheless, the evidence presented at the hearing confirmed that Amoco had taken specific maintenance steps with respect to the storage tank over the years and had kept the storage tank in use over a substantial number of years without accident, injury, or spillage. The evidence also supported the fact that Amoco, to its credit, has and abides by an extremely stringent internal policy with respect to leaks and spills.

[¶ 51] Sinclair also contends that PSC should have reprimanded Amoco for having shut down the gathering system prior to PSC’s determination regarding Amoco’s application for abandonment. We hold Sinclair’s argument in that regard lacks merit. As related above, on November 16, 2000, prior to hearing, Amoco informed PSC the Little Buffalo Gathering System had been suspended effective October 1, 2000, for reasons of environmental safety because a storage tank within the system was in substantial disrepair. Amoco suspended operation because cleaning the tank resulted in leaks, and Amoco was concerned that continued use of the storage tank might result in spillage. Amoco also confirmed at the hearing that should PSC rule that Amoco’s requested abandonment be denied, Amoco was prepared to move forward as directed by PSC and place the storage tank again into service after making the required steps to insure the tank’s safety.

[¶ 52] Further, common sense dictated the actions of Amoco in taking steps to remove the storage tank from service. Presumably, had Amoco not taken these steps and simply awaited the determination by PSC, which was ultimately rendered many months later, a realized and actual environmental catastrophe may have resulted. Finally, upon its review, PSC certainly has the authority to adequately deal with the actions of Amoco in the event PSC found them to be unsupported and- not taken in good faith. See Williston Basin Interstate Pipeline Co. v. Public Serv. Comm’n, 996 P.2d 663, 667 (Wyo.2000).

[¶ 53] Finally, Sinclair disputes PSC’s refusal to address whether Citation became a public utility when it entered into the settlement agreement with Amoco. Upon our review, we hold that this issue was not properly before PSC, as the only issue to be addressed in this proceeding was Amoco’s application for abandonment. Citation’s status is clearly distinct and squarely separate in nature. We also further recognize that although the issue of Citation’s status as a public utility may certainly be properly brought before PSC, it is most appropriate that this issue be addressed in a separate proceeding so as to allow the full development of the facts and to afford all parties an opportunity for an independent, fair, and equitable hearing concerning this issue.

[¶ 54] We also must point out that PSC’s refusal to address or render a determination on Citation’s status as a public utility did not preclude PSC from making its ultimate decision upon Amoco’s abandonment application. As set forth above, we hold that PSC took a very deliberate, conscientious, and systematic approach in its analysis to ensure its determination was appropriately based upon the specific criteria previously enumerated by this court and that PSC’s ultimate determination to grant Amoco’s application is supported by substantial evidence.

CONCLUSION

[¶ 55] Upon our review and analysis, we affirm the action of PSC in granting the application of Amoco seeking authority to abandon its crude oil gathering facilities known as Little Buffalo Gathering System and to eliminate Little Buffalo Station as a point of origin.

      . Although the Red Butte Pipeline provides a connection to Sinclair’s refinery located in Sinclair, Wyoming, it does not connect to Sinclair’s Casper refinery. Amoco’s Big Horn trunk line through Little Buffalo Station provides access to crude oil to both Sinclair’s refineries located in Sinclair and Casper, Wyoming.

      . Coupled with this issue, Sinclair also argues PSC’s analysis incorrectly focused on unsupported economic figures, and Amoco failed to meet its burden of demonstrating that no return could be reasonably expected from its investment in a new tank. These arguments will be addressed subsequently by this court upon its consideration of whether or not substantial evidence supported PSC’s determination.

      . Some of this evidence was presented to PSC via post-hearing documentation filed by Sinclair.