192 F.2d 405
LOWELL WOOL BY-PRODUCTS CO.v.WAR CONTRACTS PRICE ADJUSTMENT BOARD.
No. 10802.
United States Court of Appeals District of Columbia Circuit.
Decided July 12, 1951.

Frederick Bernays Wiener, Washington, D. C., for petitioner.
Frederick N. Curley, Attorney, Department of Justice, Washington, D. C., for respondent.
Before PRETTYMAN and WASHINGTON, Circuit Judges, and LEDERLE, District Judge, sitting by designation.
PRETTYMAN, Circuit Judge.

1
This is a petition to review a decision of the Tax Court of the United States in a renegotiation case. Petitioner, Lowell Wool By-Products Company, had gross sales in 1943 of less than $100,000. Considered alone, therefore, it was exempt from renegotiation. Another company, Nichols & Co., Inc., had renegotiable income substantially in excess of the $500,000 requisite for renegotiation. The Tax Court held that the petitioner and Nichols & Co., Inc., were under common control within the meaning of the statute and that, therefore, the aggregate of the renegotiable profits should be considered in determining whether the requisite amount was present.

2
The statute provides: "This subsection shall be applicable to all contracts and subcontracts, to the extent of amounts received or accrued thereunder in any fiscal year ending after June 30, 1943, * * * unless * * * the aggregate of the amounts received or accrued in such fiscal year by the contractor or subcontractor and all persons * * * under common control with the contractor or subcontractor * * * do not exceed $500,000."1

3
We are met at the outset by a contention on the part of the respondent Board that this court has no jurisdiction to review the judgment of the Tax Court. This case began when the Board sent the petitioner Company a notice. The notice said that an order had been entered determining that of petitioner's profits for 1943 some $15,000 represented excessive profits which should be eliminated. In due course that order became the final determination of the Board and the Company filed a petition with the Tax Court. The first errors assigned were the conclusions of the respondent Board that petitioner and Nichols & Co., Inc., were under common control and that petitioner's sales were subject to renegotiation. The facts were stipulated, and the Tax Court concluded that the petitioner and Nichols & Co., Inc., were under common control. That court, therefore, redetermined the amount of petitioner's renegotiable profits and found them to be excessive in the same amount so found by the Board.

4
The Supreme Court indicated in Macauley v. Waterman S. S. Corp.2 that the Tax Court has exclusive jurisdiction in renegotiation cases to decide "what are and are not negotiable contracts" since this is an essential part "in determining the amount of a contractor's excessive profits."3 The decision in that case rested upon failure to exhaust administrative remedies, and the Court, by one or two expressions, reserved decision upon the question of subsequent judicial review. However, the Court had held in the Nierotko case,4 just a month before the Macauley case, that "An agency may not finally decide the limits of its statutory power. That is a judicial function." Similarly, in U. S. Electrical Motors v. Jones,5 this court held that a ruling by the Tax Court upon its own jurisdiction is reviewable.6

5
For purposes of the present case, and without endeavoring to ascertain the precise scope of the expressions in the opinion in the Macauley case, it is enough to say that in our opinion the determination that petitioner and Nichols & Co., Inc., were under common control was a determination of jurisdiction. It is clear that the finding of common control was requisite to the right of the Board to renegotiate any profits of this petitioner Company. The finding did not concern the amount of the excessive profits of petitioner but concerned the power of the Board over petitioner. The nature of petitioner's contracts was not involved; the power of the Board over petitioner depended upon circumstances wholly apart from renegotiable contracts. This view is supported by the ultimate conclusion of the Tax Court, which was: "We conclude and hold that Nichols and petitioner were under actual common control, within the meaning of Section 403(c)(6) of the Renegotiation Act; therefore that petitioner is subject to renegotiation." This, we think, was a determination of jurisdiction. We think that a question whether a certain contract is within those to be renegotiated is a question of coverage, but that a question whether the Board has any power whatever over a particular company, apart from the nature of its contracts, is a question of jurisdiction. It follows that the decision of the Tax Court upon the asserted common control of the petitioner and Nichols & Co., Inc., was a determination of jurisdiction and is subject to review.

6
The facts, as we have said, were stipulated and are recited in detail in the findings of fact of the Tax Court. They involved two features pertinent to the present inquiry. The first is an involved family interrelationship among the members, including in-laws, of three families (the Nichols, Wellman and Hackett families) which together owned the control in four companies, Nichols & Co., Inc., Providence Wool Combing Co., Inc., Alexander Wool Combing Company, and petitioner. All four companies are in a business involving grease wool. Nichols & Co., Inc., is a "top maker", which means that it buys wool and causes it to be sorted, scoured, graded and carded into wool "tops", through wool combing mills, on a commission basis. All the shares of common stock of Nichols & Co., Inc., not held by the limited partners of petitioner are held by other members of the Nichols, Hackett and Wellman families or by trustees for their benefit. Providence Wool Combing Co., Inc., and the Alexander Wool Combing Company are engaged in the business of combing grease wool. Preliminary operations include scouring the wool. That scouring produces a liquor which contains wool grease. Originally the companies had treated the scouring liquor as a waste product, but in 1942 they acquired equipment with which they could extract the wool grease from this liquor. The grease thus extracted is salable. Petitioner is a limited partnership composed of five limited partners, who were members of the Nichols, Hackett and Wellman families, and two general partners, who were officers of, although not shareholders in, Providence Wool Combing Co., Inc. The general partners were given control of the operation of the business. The partnership bought from the Providence and Alexander companies the grease extracting machinery. Providence and Alexander agreed to sell to petitioner for ten years their entire production of scouring liquors and to provide for the use of petitioner suitable space in their plants for the operation of the business of extracting and refining wool grease. Petitioner agreed to pay Providence, for such scouring liquors, $50.00 a week and to pay Alexander $40.00 a week.

7
The proportionate ownership of the several members of the families, and of the families themselves, in the four companies were not the same. All this is described in the findings and in the opinion of the Tax Court. That court, relying upon prior cases, held that actual control and not merely legally enforceable control is the proper test under the Renegotiation Act; and that power of actual control rather than exercise of that power is the only necessary requirement. From all the facts and circumstances the Tax Court held that it was clear that the three families had a power of control over petitioner and Nichols & Co., Inc., and that the petitioner's view that there was no entity in the members of the three families was met by the manner in which they participated in the various companies. Judge Disney, writing for the court, observed: "The organization of these different companies by members of the same families, including wives, a mother and son-in-law, as stockholders, is proof of intent to control them, and may not be overlooked with any regard for realism." There was no generalization by that court concerning control by and among members of families, and certainly we intend none. The finding was upon an examination of the facts in this particular case.

8
The other feature of the case which supports the view of the Tax Court upon common control is the motive for the organization of petitioner. The Boston Quartermaster Price Adjustment District Office had ruled that the sales of wool grease by Providence and Alexander should be treated as a credit against costs for the purposes of renegotiating alleged excessive profits. The officers of the companies understood the ruling to mean that these profits would have to be paid over to the United States. Counsel for the companies proposed that a new company be formed for the purpose of extracting the wool grease from the scouring liquors. So petitioner was formed. As we have recited, it bought from Providence and Alexander their entire output of scouring liquors at a fixed amount per week and then sold the extracted grease. These circumstances support the view that the petitioner was under the control of the group the members of which were the owners of Providence and Alexander and also owners of Nichols & Co., Inc.

9
We think that the view of the Tax Court upon the intent and meaning of the term "common control" in the Renegotiation Act was correct, and there was ample evidence in the record to support its conclusion of fact as to such control in this case. The decision of the Tax Court is, therefore,

10
Affirmed.

Notes:

1
 Sec. (c) (6) of the Renegotiation Act, which Act was Sec. 403 of Title IV of an Act of Apr. 28, 1942, 56 Stat. 245, as amended, 50 U.S.C.A.Appendix § 1191 (c) (6)

2
 1946, 327 U.S. 540, 66 S.Ct. 712, 90 L. Ed. 839

3
 Id. at 327 U.S. 544, 66 S.Ct. 714

4
 Social Security Board v. Nierotko, 1946, 327 U.S. 358, 369, 66 S.Ct. 637, 643, 90 L.Ed. 718

5
 1946, 80 U.S.App.D.C. 329, 153 F.2d 134

6
 See Schwartz, Jurisdiction to Determine Jurisdiction in Federal Administrative Law, 38 Geo.L.J. 368 (1950)


466 N.W.2d 277 (1990)
Carter C. CROOKHAM, Appellant,
v.
STRUCTURAL CONTRACTORS, LTD., Appellee.
No. 90-232.
Court of Appeals of Iowa.
December 27, 1990.
*278 Peter C. Riley of the Tom Riley Law Firm, P.C., Cedar Rapids, for appellant.
Robert C. Allbee and Edward W. Remsburg of Ahlers, Cooney, Dorweiler, Haynie, Smith and Allbee, Des Moines, for appellee.
Heard by SCHLEGEL, P.J., and SACKETT and HABHAB, JJ.
HABHAB, Judge.
Plaintiff Carter Crookham was employed as the general manager of Structural Contractors, Ltd., which is a subsidiary of Musco Lighting, Inc. Carter's brother, Joe Crookham, is the majority shareholder of Musco. Carter is an engineer. He developed lupus in 1965 and was not able to work for several years. Eventually, he began to work on a part-time basis. In order to allow him to keep his insurance benefits, he was not paid a salary, but was paid for his gasoline, country club dues, and "I" Club dues.
In 1985 Carter was able to work full-time and was then paid a salary of $60,000 per year, plus health, life and disability insurance, vacation, and holidays. However, personnel problems developed and Carter was discharged in April 1986. Structural decided to pay Carter his regular salary for the next four months and allow him to use his office. Structural later denied Carter access to company offices because it believed he had revealed certain insider information. Structural retained Carter's last three paychecks, each in the amount of $2,321.25, pending a determination of a settlement with Carter.
Carter filed this suit pursuant to Iowa Code section 91A.8, claiming that the employer intentionally failed to pay him his wages and that he was entitled to liquidated damages, court costs, and attorney fees. Section 91A.2(4)(b) provides that severance payments which are due an employee under an agreement with the employer or under a policy of the employer are considered wages for purposes of chapter 91A. The district court concluded that Carter failed to show there was an agreement or set policy to pay severance payments. The court dismissed the petition. Carter appeals.
Carter claims the court erred in not granting his motion for summary judgment. He asserts there were no material issues of fact because in its answer the company admitted and affirmatively alleged an agreement to make severance payments. He also points to a letter written by Joe in December 1986 which states that the company was holding three paychecks pending determination of potential offsetting charges. Carter believes these clearly show there was an agreement to pay him severance wages, which the company later breached.
Carter also claims the court erred in finding that there was no agreement for the payment of wages. He again relied upon the company's answer and Joe's letter. Carter contends that having made these admissions, the company cannot now argue that there was not an agreement.
When the trial court, in a law action tried to the court, denies recovery because of a party's failure to carry his burden on an issue, we will not interfere on appeal unless we find the party carried his burden as a matter of law. Bebensee v. Ives, 409 N.W.2d 710, 712 (Iowa App.1987). The pivotal question is whether there in fact was sufficient evidence of an agreement to pay Carter severance pay, and in turn whether the trial court erred in ruling in favor of the defendant.
The plaintiff contends the trial court erred in refusing to grant his motion for summary judgment and further erred in finding there was no agreement between Structural and Carter with regard to severance pay following Carter's termination. The trial judge found and we agree the plaintiff failed to show by a preponderance of the evidence that there was any agreement to pay severance or that there was any set policy of the defendant to pay severance. Accordingly, we affirm.
There is no dispute between the parties with regard to Carter's status as an employee. He was clearly an employee at will. And, an employee at will may be *279 terminated at any time for any reason. Abrisz v. Pulley Freight Lines, Inc., 270 N.W.2d 454 (Iowa 1978). The case which most closely tracks this fact pattern involves an at will employee who did not receive a promised bonus. Kollman v. McGregor, 240 Iowa 1331, 39 N.W.2d 302 (1949). After reviewing the situation, the court stated:
There is much authority that where an agreement provides for a bonus for continuous service which is terminated by the employer through no fault of the employee, the latter is entitled to a proportionate share of the bonus according to the time served. Where, however, an employee voluntarily quits or is discharged for a reason attributable to his own fault there is no right to recover any part of the bonus.
Id. 39 N.W.2d at 304. (Emphasis added).
The defendant clearly proved the plaintiff was discharged for a reason attributable to his own fault. Carter relies primarily on the defendant's answer and a letter from Joe Crookham as proof of an agreement to distribute severance pay. However, we agree with the trial court's assessment that neither of these were sufficient to prove the severance agreement existed. The trial court was correct in finding for the defendant.
AFFIRMED.
SACKETT, J., concurs.
SCHLEGEL, J., dissents.
SCHLEGEL, Presiding Judge (dissenting).
I respectfully dissent. There was insufficient evidence to support the court's finding that there was no agreement to pay severance. Such an obligation was admitted.
I would reverse.


     This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
     Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
     also note that this electronic memorandum opinion may contain computer-generated errors or other
     deviations from the official paper version filed by the Court of Appeals and does not include the
     filing date.

 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 SAMIR KASSICIEH,

 3          Petitioner-Appellee,

 4 v.                                                                                NO. 30,490

 5 EILEEN KASSICIEH,
 6 n/k/a EILEEN MARIE SAYEGH,

 7          Respondent-Appellant.

 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 9 Angela J. Jewell, District Judge

10 Assed & Associates, P.C.
11 Richard J. Moran
12 Albuquerque, NM

13 for Appellee

14   Law Offices of Lynda Latta, LLC
15   Lynda Latta
16   Linda L. Ellison
17   Albuquerque, NM

18 for Appellant

19                                 MEMORANDUM OPINION
 1 GARCIA, Judge.

 2        Wife appeals the district court’s order dissolving her marriage with Husband

 3 and dividing their property. Wife raises eight issues on appeal that primarily address

 4 the sufficiency of the evidence to support the district court’s conclusions that certain

 5 debts were community property and certain assets were Husband’s sole and separate

 6 property. We affirm the judgment of the district court.

 7 BACKGROUND

 8        Wife and Husband were married on July 2, 2006. Husband sought dissolution

 9 of the marriage on August 22, 2008. After taking testimony, admitting evidence, and

10 hearing argument, the district court issued seventy-four findings of fact and

11 twenty-one conclusions of law related to the division of assets and liabilities of the

12 parties, both separate and the community. The district court incorporated its findings

13 of fact and conclusions of law into the judgment and final decree of dissolution of

14 marriage.

15        We shall only address the distribution of assets and liabilities that are relevant

16 to this appeal. Husband’s medical practice, the entire Vulcan Ventures I (Vulcan I)

17 investment asset, and Husband’s contribution to the Vulcan Ventures II (Vulcan II)

18 investment asset were awarded to Husband as his sole and separate assets. Wife was

19 awarded her separate percentage contribution to Vulcan II less the percentage interest

                                              2
 1 in Vulcan II that the district court concluded Wife’s brothers had purchased from her.

 2 With the exception of a $30,000 loan from Husband’s brother, which the district court

 3 determined was Husband’s sole and separate debt, the district court found that the

 4 gambling debts incurred during the marriage were community debts accumulated and

 5 owed jointly by both parties. The gambling debts included a $5,000 balance on a

 6 Southwest Airlines Visa. The district court also explained that neither party was

 7 entitled to reimbursement for their individual separate contributions to the

 8 accumulation and payment of community gambling debts because both parties used

 9 separate and community property to fund their gambling habits. Finally, the district

10 court concluded that Wife was not entitled to any additional interim division of

11 income payments and equalized the payments that had already been made to Wife.

12        Wife filed a timely appeal with this Court asking for reversal of the district

13 court’s judgment. She then filed a motion to set aside the district court’s judgment for

14 fraud. Wife claims the gambling debt was accumulated solely by Husband and

15 requests reimbursement for the separate property she contributed to the accumulation

16 and payment of the gambling debts. Wife also claims that the district court’s findings

17 regarding the Vulcan I and II investments were not supported by substantial evidence

18 and that the district court erred in equalizing the interim division of income payments.

19 Additionally, if successful in her appeal, Wife requests a lien against Husband’s

                                              3
 1 medical practice for monies owed to her. Our review of the record further indicates

 2 that Wife is seeking a remand to the district court for the limited purpose of hearing

 3 her motion to set aside the judgment.

 4 DISCUSSION

 5 I.     Standard of Review

 6        The district court entered extensive findings of fact and conclusions of law in

 7 support of its judgment. We review the district court’s equitable distribution of assets

 8 and liabilities for an abuse of discretion. Arnold v. Arnold, 2003-NMCA-114, ¶ 6, 134

 9 N.M. 381, 77 P.3d 285. However, Wife asks this Court to review the district court’s

10 characterization of separate and community property de novo. See id. Wife’s

11 statement of the standard of review is correct insofar as any legal questions raised by

12 the classification of debts and property as either separate or belonging to the

13 community. See NMSA 1978, § 40-3-8 (1990) (defining separate and community

14 property); § 40-3-9 (1983) (defining separate and community debts); Styka v. Styka,

15 1999-NMCA-002, ¶ 8, 126 N.M. 515, 972 P.2d 16 (“we review questions of law de

16 novo.”). But the issues raised by Wife on appeal involve only evidentiary challenges

17 to the district court’s rulings. Thus, we shall apply a substantial evidence standard of

18 review. See Bishop v. Evangelical Good Samaritan Soc’y, 2009-NMSC-036, ¶ 25,

19 146 N.M. 473, 212 P.3d 361 (applying a substantial evidence standard where no legal

                                              4
 1 questions remain); see also Corley v. Corley, 92 N.M. 716, 718, 594 P.2d 1172, 1174

 2 (1979); Zemke v. Zemke, 116 N.M. 114, 118, 860 P.2d 756, 760 (Ct. App. 1993).

 3        “Substantial evidence is such relevant evidence that a reasonable mind would

 4 find adequate to support a conclusion.” Landavazo v. Sanchez, 111 N.M. 137, 138,

 5 802 P.2d 1283, 1284 (1990). In reviewing a substantial evidence claim, “[t]he

 6 question is not whether substantial evidence exists to support the opposite result, but

 7 rather whether such evidence supports the result reached.” Las Cruces Prof’l Fire

 8 Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177.

 9 “[W]e will not reweigh the evidence nor substitute our judgment for that of the fact

10 finder.” Id.; Lopez v. Adams, 116 N.M. 757, 758, 867 P.2d 427, 428 (Ct. App. 1993)

11 (“It is for the [district] court to weigh the testimony, determine the credibility of

12 witnesses, reconcile inconsistent statements and determine where the truth lies.”). As

13 a result, we will “resolve[] all disputes of [the] facts in favor of the successful party

14 and indulge[ ] all reasonable inferences in support of the prevailing party.” Las

15 Cruces Prof’l Fire Fighters, 1997-NMCA-044, ¶ 12.

16 I.     The Gambling Debts

17        We first address Wife’s contention that the district court erred in concluding

18 that the gambling debts acquired during the marriage were community debts. Wife

19 argues that the district court should have determined that the gambling debts were the

                                               5
 1 sole and separate debts of Husband. See NMSA 1978, § 40-3-9.1 (1997) (“A

 2 gambling debt incurred by a married person as a result of legal gambling is a separate

 3 debt of the spouse incurring the debt.”). Wife does not challenge the district court’s

 4 now conclusive legal finding that “common sense dictates that [the purpose of Section

 5 40-3-9.1] is to protect an innocent spouse, who does not gamble, and is completely

 6 unaware of community debts incurred, as a result of gambling[.]” See Cordova v.

 7 Broadbent, 107 N.M. 215, 216, 755 P.2d 59, 60 (1988) (“Unchallenged [district] court

 8 findings and conclusions are binding on appeal.”). Instead, Wife challenges the

 9 sufficiency of the evidence to support the district court’s conclusion that she was not

10 an innocent spouse as protected by Section 40-3-9.1.

11        There is ample evidence in the record to support the finding that Wife

12 participated in gambling activities and was aware of the extent of Husband’s

13 gambling. Husband testified that the parties would gamble locally three to four times

14 a month, and that they would travel together to gamble in Las Vegas, Nevada every

15 six or eight weeks. Husband also explained that Wife appeared very happy when she

16 was gambling, shared the idea to go to the casino to gamble with him, and gambled

17 approximately the same amount of money as he did. Husband also told the district

18 court that Wife would mostly play slot machines and would generally spend between

19 $500 and $2,500 per bet. Both parties would obtain the money to gamble through

                                              6
 1 cash on hand, ATM machines, credit card withdrawals, and cashing checks. He also

 2 described a specific instance of Wife’s gambling activities. Husband testified that he

 3 won $3,000 playing baccarat, and Wife immediately grabbed the winnings, played

 4 them at the slot machines, and lost them.

 5        Testimony from Husband’s brother and an executive host for Caesar’s Palace

 6 (Castaldo) corroborated Husband’s testimony. Husband’s brother and Castaldo had

 7 both observed Wife gamble with Husband and place bets at high stakes slot machines.

 8 In addition, Castaldo remarked that Wife appeared enthusiastic to gamble and would

 9 do so “all night” long. Castaldo also explained that he had previously overheard

10 Husband discuss his financial concerns with Wife, and that he had seen Wife gamble

11 with money loaned to the parties by Caesar’s Palace.

12        The district court also heard contradicting testimony from both Wife and

13 Husband’s ex-wife regarding Husband’s gambling habits and their lack of knowledge

14 of the extent of gambling throughout the course of each of their respective marriages.

15 After hearing this conflicting testimony from the parties, the district court rejected

16 Wife’s version of gambling events. It found Wife’s testimony “incredible” that she

17 was unaware of the extent of Husband’s gambling, or that he gambled much more

18 than she did. “All of the testimony in this case suggests that both parties gambled;

19 were aware of each other’s gambling habits; supported each other’s gambling; many

                                               7
 1 times gambled together, and used each other’s gambling cards in some instances.” As

 2 a result, the district court found that Wife contributed to the gambling habits of the

 3 parties voluntarily and without duress and concluded that gambling debts owed by the

 4 parties were community debts.

 5        Wife’s argument on appeal essentially states that the district court should have

 6 resolved the parties’ conflicting assertions in her favor. But we defer to the fact

 7 finder, here, the district court, to resolve the conflicts in the evidence, to weigh the

 8 facts, and to determine the credibility of the witnesses. Buckingham v. Ryan, 1998-

 9 NMCA-012, ¶ 10, 124 N.M. 498, 953 P.2d 33 (“[W]hen there is a conflict in the

10 testimony, we defer to the trier of fact.”); State v. Roybal, 115 N.M. 27, 30, 846 P.2d

11 333, 336 (Ct. App. 1992) (“It was for the [district] court as fact[]finder to resolve any

12 conflict in the testimony of the witnesses and to determine where the weight and

13 credibility lay.”). The district court was in the best position to evaluate the evidence

14 presented and the credibility of the parties, and the record reflects that Wife was not

15 an innocent spouse with regard to the gambling debts. Substantial evidence supports

16 the district court’s findings that the parties both participated in the gambling activities

17 and each voluntarily used separate and community funds to support their gambling

18 habits. We, therefore, affirm the district court’s classification of the gambling debts

19 as community debts.

                                                8
 1        Wife also argues on appeal that the district court should have characterized the

 2 balances owed on a Southwest Airlines and Schwab Visa credit cards as the sole and

 3 separate debt of Husband. However, Wife concedes that these balances are included

 4 as part of the gambling debts. Because we conclude that substantial evidence supports

 5 the district court’s characterization of gambling debts as community debts, we affirm

 6 the district court’s characterization of both of these Visa credit card debts.

 7 II.    The Vulcan I Investment

 8        The district court awarded the Vulcan I investment asset to Husband as his sole

 9 and separate property. Wife appeals this award, arguing that Husband failed to trace

10 his Vulcan I investment to separate funds and the evidence was insufficient to support

11 the district court’s finding that Vulcan I was purchased prior to the marriage. “In New

12 Mexico, property takes its status as community or separate property at the time and

13 by the manner of its acquisition.” Zemke, 116 N.M. at 119, 860 P.2d at 761 (internal

14 quotation marks and citations omitted). Property acquired prior to marriage is

15 presumed to be separate property, whereas property acquired during a marriage is

16 presumed to belong to the community. Section 40-3-8(A)(1) and (B). Wife asserts

17 that Husband’s failure to trace his investment in Vulcan I, paired with the dates of the

18 deeds and purchase agreements, reveals that Vulcan I was a community asset

19 purchased during the marriage.

                                              9
 1        Neither party tendered any evidence to trace the funds used to purchase Vulcan

 2 I or the time at which Vulcan I was acquired. However, Husband presented ample

 3 evidence to support his contention that he acquired the property with separate funds

 4 prior to his marriage. Husband’s brother, a managing partner in Vulcan I, testified

 5 that Wife never invested in Vulcan I and that the investment was funded prior to the

 6 marriage between the parties. This Court will defer to the district court’s finding that

 7 this testimony was credible. Roybal, 115 N.M. at 30, 846 P.2d at 336. Moreover,

 8 Husband’s brother explained that although Vulcan I became an LLC entity after the

 9 marriage, it was initially funded from March 2006 through July 2006. Based on this

10 testimony, the district court was entitled to make the reasonable inference that, given

11 the close proximity in time between the marriage and Husband’s investment in Vulcan

12 I, his sole and separate funds were used to make the investment. Samora v. Bradford,

13 81 N.M. 205, 207, 465 P.2d 88, 90 (Ct. App. 1970).

14        On appeal, it was Wife’s duty to present the evidence in the light most

15 favorable to support the district court’s findings, and then demonstrate why the

16 evidence failed to support the findings. Jurado v. Jurado, 119 N.M. 522, 526, 892

17 P.2d 969, 973 (Ct. App. 1995). Although Wife points this Court to deeds admitted

18 into evidence, she has not provided any arguments to rebut the conclusion that

19 Husband possessed equitable title to Vulcan I prior to the marriage. See Michaluk v.

                                              10
 1 Burke, 105 N.M. 670, 677, 735 P.2d 1176, 1183 (Ct. App. 1987) (holding that

 2 property was separate property of a husband where he had equitable title to property

 3 prior to his marriage but received the deed for the property during the marriage). In

 4 addition, Wife has not provided this Court with any other evidence or arguments as

 5 to why Husband’s brother’s testimony was insufficient to prove the time and manner

 6 of Vulcan I’s acquisition, or to any evidence that indicates that community funds were

 7 used to purchase Vulcan I.       See Rule 12-213(A)(4) NMRA; see also Aspen

 8 Landscaping, Inc. v. Longford Homes of N.M., Inc., 2004-NMCA-063, ¶ 28, 135 N.M.

 9 607, 92 P.3d 53 (explaining that a party challenging a finding for lack of substantial

10 evidence must refer to “all of the evidence, both favorable and unfavorable, followed

11 by an explanation of why the unfavorable evidence does not amount to substantial

12 evidence, such as is necessary to inform both the appellee and the Court of the true

13 nature of the appellant’s arguments”).

14        Wife merely asserts to this Court that her factual position was correct and the

15 district court should have adopted it. See Lahr v. Lahr, 82 N.M. 223, 224, 478 P.2d

16 551, 552 (1970) (“We presume the correctness of the judgment of the [district] court

17 who had the advantage of evaluating the demeanor of the parties and of the

18 witnesses.”). In such a situation, the district court was free to accept Husband’s

19 evidence and reject Wife’s evidence. Zemke, 116 N.M. at 120, 860 P.2d at 762; Jay

                                             11
 1 Walton Enters., Inc. v. Rio Grande Oil Co., 106 N.M. 55, 59, 738 P.2d 927, 932 (Ct.

 2 App. 1987) (“Where evidence is conflicting and the court adopts findings on a

 3 disputed issue, the fact that there may have been other evidence upon which the court

 4 could have adopted a different finding does not constitute error.”). Wife has failed to

 5 meet her burden. We thus conclude that substantial evidence supported the district

 6 court’s determination that Vulcan I was acquired solely by Husband prior to entering

 7 in the marriage, and affirm its conclusion that Vulcan I was Husband’s sole and

 8 separate asset.

 9 III.   Reimbursement of Wife’s Separate Funds

10         The district court concluded that neither party was entitled to reimbursement

11 for their sole and separate contributions to the gambling habits and debts incurred

12 during the marriage. It also refused to reimburse Wife for any separate money that

13 may have been used to contribute to Husband’s investment in Vulcan I. Wife asks

14 this Court to reverse these conclusions and reimburse her for money taken from her

15 separate account to pay off a portion of the gambling debt and for money that she

16 asserts was wrongfully taken from her separate account by Husband and invested in

17 Vulcan I.

18         “Although mathematic exactitude is not required in the division of community

19 assets, it is the duty of the district courts, upon dissolution of a marriage, to divide as

                                               12
 1 equally as possible the property of the community.” Bustos v. Bustos, 100 N.M. 556,

 2 558, 673 P.2d 1289, 1291 (1983). To perform this duty, the district court has broad

 3 discretion to allocate property in a manner that “is fair under all the circumstances.”

 4 Fernandez v. Fernandez, 111 N.M. 442, 444, 806 P.2d 582, 584 (Ct. App. 1991); see

 5 also Arnold, 2003-NMCA-114, ¶ 6. We have already concluded that substantial

 6 evidence supported the district court’s classification of the gambling debt, and

 7 therefore, are not persuaded by Wife’s argument that the district court abused its

 8 discretion in refusing to reimburse Wife for her sole and separate contributions to the

 9 gambling habits and debts incurred by the parties. The evidence presented at trial

10 shows that both parties used separate funds to pay off the gambling debts of the

11 parties. The allegations regarding Wife’s participation in gambling activities and the

12 voluntary contribution of her separate assets to fund such activities were conflicting.

13 The district court chose to resolve such conflicts in favor of Husband. See Las Cruces

14 Prof’l Fire Fighters, 1997-NMCA-044, ¶ 12 (stating that it is not our role to “reweigh

15 the evidence nor substitute our judgment for that of the fact finder”).

16        We next address Wife’s argument that she was entitled to reimbursement for

17 money used to invest in Vulcan I that Husband allegedly coerced Wife to withdraw

18 from her separate account. Wife essentially argues that the district court should have

19 credited the check for $19,000 written from her account as conclusive on this issue.

                                             13
 1 However, the district court recognized the existence of this check, but refused to “go

 2 back into the marriage and second[-]guess community expenditures.” This refusal to

 3 speculate regarding the use of the $19,000 check stemmed from the conflicting

 4 testimony heard from the parties. Wife asserted that she believed the money was

 5 going to be used to purchase land. Husband asserted that the money was loaned to a

 6 partner in Vulcan I ventures and was later paid back to Husband and Wife’s joint

 7 account. To resolve this conflict, the district court explained that, “[j]udging [Wife’s]

 8 demeanor and credibility during her testimony, the [c]ourt finds it unlikely that [Wife]

 9 could be coerced into spending her money, except as she so desired.” Again, we will

10 not reweigh the evidence or substitute our own judgment for that of the district court.

11 Las Cruces Prof’l Fire Fighters, 1997-NMCA-044, ¶ 12.

12        The district court had broad discretion to determine whether Wife was entitled

13 to any reimbursement. Wife did not describe the overall division of property and debt

14 between the parties, explain why it was inequitable, or otherwise demonstrate any

15 error on the part of the district court. Wife has not pointed this Court to any evidence,

16 other than her own testimony, to corroborate her assertion that this money was

17 wrongfully taken from her separate account and invested in Vulcan I. Nor has she

18 attempted to discredit the conflicting evidence Husband presented to the district court.

19 See In re Termination of Parental Rights of Wayne R.N., 107 N.M. 341, 345, 757 P.2d

                                              14
 1 1333, 1337 (Ct. App. 1988) (“It is for the [district] court to weigh the evidence,

 2 resolve conflicts in the testimony, and determine where the truth lies. On appeal, this

 3 [C]ourt may not substitute its judgment for that of the [district] court.”). In the

 4 absence of clearly demonstrated error, the resolution of factual disputes regarding any

 5 reimbursement of funds is within the district court’s broad discretion, and this Court

 6 will not disturb it on appeal. Buckingham, 1998-NMCA-012, ¶ 10.

 7 IV.    The Vulcan II Investment

 8        The district court concluded that Husband and Wife each had a separate

 9 property interest in Vulcan II. However, to allocate each party’s separate interest, the

10 district court had to determine the character of two related wire transactions sent by

11 Wife’s brothers to Wife for a sum of $156,000. The district court concluded that these

12 wire transfers were payment for the purchase of an interest in Wife’s percentage

13 interest in Vulcan II. Wife challenges the sufficiency of the evidence for this

14 conclusion on appeal.

15        Wife contended at trial, and now argues on appeal, that the wire transfers were

16 a loan to the community and, therefore, should be reimbursed by the community. The

17 district court, however, believed Husband’s testimony that money was transferred to

18 purchase a portion of Wife’s percentage interest in Vulcan II. Husband’s testimony

19 was corroborated by testimony from Wife’s brother and by a letter sent by Wife three

                                              15
 1 months after receipt of the wire transfer that assigned her brothers a percentage

 2 interest of her ownership interest in Vulcan II.

 3        Wife’s argument is again essentially an assertion that the district court should

 4 have given more weight to her testimony. As previously stated, “when there is a

 5 conflict in the testimony, we defer to the trier of fact.” Buckingham, 1998-NMCA-

 6 012, ¶ 10. “The question is not whether substantial evidence exists to support the

 7 opposite result, but rather whether such evidence supports the result reached.” Las

 8 Cruces Prof’l Fire Fighters, 1997-NMCA-044, ¶ 12. Resolving all disputes, as we

 9 must, in favor of the district court’s decision, we conclude that substantial evidence

10 from the record supported the district court’s findings of fact, and its resulting

11 conclusion that the $156,000 wired to Wife from her brothers was used to purchase

12 a portion of Wife’s percentage interest in Vulcan II.

13 V.     Wife’s Rule 1-060(B)(3) Motion

14        When the district court explained its perception that Wife’s Exhibit WW

15 provided additional corroboration for Husband’s testimony related to the Vulcan II

16 investment, Wife asserted that her signatures on Exhibit WW were forged. However,

17 Wife failed to present sufficient evidence to the district court to support her argument

18 that the signatures were forgeries. Wife again raised the assertion that her signatures

19 were forged after the district court entered judgment by filing a Rule 1-060(B)(3)

                                              16
 1 NMRA motion to set aside the judgment on the basis of fraud. On appeal, Wife

 2 requests that this Court remand the case to the district court for the purposes of

 3 hearing her Rule 1-060(B)(3) motion.

 4        “Since the [district] court is powerless to grant relief under Rule [1-060(B)]

 5 during the pendency of an appeal, a party seeking such relief must file a motion in the

 6 appropriate appellate court requesting that the case be remanded to the [district] court

 7 for consideration of the Rule [1-060(B)] motion.” State ex rel. Bell v. Hansen Lumber

 8 Co., 86 N.M. 312, 313, 523 P.2d 810, 811 (1974). “A case will be remanded only

 9 where the showing reasonably indicates that, if leave is given, the [district] court

10 might properly grant the Rule [1-060(B)] motion.” Id. Wife has filed no such motion

11 requesting remand by this Court. Additionally, Wife has not met her burden of

12 producing evidence that the district court might properly grant her motion. As a

13 result, we will not reach the merits of Wife’s motion, nor will we remand this case to

14 the district court for the limited purpose of hearing Wife’s motion.

15 V.     Interim Division of Income

16        Wife contests the district court’s findings of fact and conclusions of law related

17 to the district court’s decision to equalize interim division payments made by Husband

18 to Wife throughout the course of divorce proceedings. We review this argument for

19 substantial evidence. See Olivas v. Olivas, 108 N.M. 814, 820, 780 P.2d 640, 646 (Ct.

                                              17
 1 App. 1989) (upholding a property valuation for purposes of making an equal division

 2 of property because it was supported by substantial evidence). The district court acts

 3 within its discretion in allocating community assets and expenses. See Bursum v.

 4 Bursum, 2004-NMCA-133, ¶ 31, 136 N.M. 584, 102 P.3d 651 (holding that the

 5 district court did not abuse its discretion by the manner that it equalized community

 6 expenses).

 7        The district court equalized the interim income payments because it found

 8 Wife’s previous assertion, that she received no monthly income, was “disingenuous.”

 9 We will not reweigh the district court’s credibility determinations on appeal. See

10 Lahr, 82 N.M. at 224, 478 P.2d at 552. Additionally, Wife has failed to provide this

11 Court with any evidence to rebut the district court’s equalization of its initial interim

12 division of income. See Rule 12-213(A)(4); see also Aspen Landscaping, Inc., 2004-

13 NMCA-063, ¶¶ 28-29. Once Wife’s 2008 income was disclosed at a later time, such

14 a equalization was appropriate. As a result, substantial evidence supported the district

15 court’s findings and conclusions related to the interim division of income payments,

16 and the district court’s decision to equalize interim division of income payments was

17 not an abuse of discretion.

18 CONCLUSION

19        For the foregoing reasons, we affirm the judgment of the district court. Because

                                              18
1 we determine that Wife is not entitled to any additional sums, we need not address her

2 argument that she is entitled to a lien against Husband’s separate medical practice to

3 enforce payment of any such sums.

4        IT IS SO ORDERED.

5                                         ___________________________________
6                                         TIMOTHY L. GARCIA, Judge

7 WE CONCUR:

8 _________________________________
9 JAMES J. WECHSLER, Judge

10 _________________________________
11 MICHAEL D. BUSTAMANTE, Judge

                                            19


           Case: 13-15931   Date Filed: 08/12/2014   Page: 1 of 6

                                                     [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15931
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 7:12-cv-02874-RDP-TMP

WILLIE LEON BANKS,

                                             Petitioner - Appellant,

versus

WARDEN,
ATTORNEY GENERAL OF THE STATE OF ALABAMA,

                                             Respondents - Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                            (August 12, 2014)

Before WILSON, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 13-15931      Date Filed: 08/12/2014   Page: 2 of 6

      Willie Banks, a pro se Alabama state prisoner, appeals the district court’s

denial of his habeas petition. See 28 U.S.C. § 2254. The district court granted Mr.

Banks a certificate of appealability as to “whether he received ineffective

assistance of trial counsel when counsel failed to discover and marshal evidence

indicating that [he] was incarcerated during the time the victim testified she was

raped by him, even though [Mr. Banks] never advised trial counsel that he was

incarcerated.” See D.E. 23 at 1.

      Mr. Banks argues on appeal that a reasonable investigation would have

uncovered that he could not have committed the rape because he was incarcerated

in a secure state prison. We affirm the district court’s denial of § 2254 relief.

      Mr. Banks was convicted of rape in the first degree on April 25, 2007,

following a jury trial, and the trial court sentenced him as a habitual offender to life

in prison without possibility of parole. At trial and at sentencing, he was

represented by attorney Tessie Clements. Mr. Banks appealed his conviction,

asserting that the trial court had erred in denying his motion for acquittal based

upon insufficiency of the evidence. The Alabama Court of Criminal Appeals

affirmed, and the Alabama Supreme Court denied his petition for certiorari.

      In 2009, Mr. Banks filed a petition pursuant to Alabama Rule of Criminal

Procedure 32, claiming that Ms. Clements rendered ineffective assistance for

failing to conduct a proper investigation that would have led to evidence that he

                                           2
              Case: 13-15931     Date Filed: 08/12/2014   Page: 3 of 6

was incarcerated at the time of the alleged rape. The trial court appointed counsel

for Mr. Banks, and held several hearings on the petition. The trial court denied the

petition, emphasizing that Mr. Banks never told counsel that he was in custody at

the time that the victim testified she was raped. The Alabama Court of Appeals

affirmed the denial of the Rule 32 petition, and the Alabama Supreme Court

declined review.

      On August 31, 2012, Mr. Banks filed the instant pro se § 2254 petition. The

district court denied Mr. Banks’ petition, agreeing with the unwillingness of the

state court to impose an independent duty to research Mr. Banks’ prior

incarceration history. The district court also ruled that “even if that duty existed,

[Mr. Banks] failed to demonstrate prejudice because he . . . failed to show that his

‘custody’ was more confining than a type of work release, which still left him with

sufficient freedom to commit the rape.” D.E. 11 at 7.

      Federal courts cannot grant habeas relief unless the state court’s decision

was (1) contrary to, or an unreasonable application of, clearly established federal

law as defined by Supreme Court precedent, or (2) based on an unreasonable

determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). We

review the district court’s decision de novo, but “owe deference to the final state

habeas judgment.” See Hall v. Thomas, 611 F.3d 1259, 1284 (11th Cir. 2010).

                                         3
              Case: 13-15931    Date Filed: 08/12/2014     Page: 4 of 6

      In order to succeed on an ineffective assistance of counsel claim, a petitioner

must show both (1) that his “counsel’s performance was deficient” and (2) that

“the deficient performance prejudiced the defense.” See Strickland v. Washington,

466 U.S. 668, 687 (1984). “[C]ounsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Id. The Strickland analysis is not applied de novo, “but

rather through the additional prism of AEDPA deference.” See Lawrence v Sec’y,

Fla. Dep’t of Corr., 700 F.3d 464, 477 (11th Cir. 2012).

      Mr. Banks has not demonstrated that his trial counsel performed deficiently

in failing to discover evidence that would establish that he was incarcerated in

spring of 2001, the time at which the victim testified the rape occurred. Under a

Strickland analysis, “the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.” Id.

at 689. Indeed, “[d]efense counsel are allowed a considerable breadth to choose

their trial strategies.” Fleming v. Kemp, 748 F.2d 1435, 1451 (11th Cir. 1984).

      “The reasonableness of counsel’s actions may be determined or substantially

influenced by the defendant’s own statements or action. Counsel’s actions are

usually based . . . on information supplied by the defendant.” Strickland, 466 U.S.

at 691. Here, Mr. Banks did not tell Ms. Clements that he was incarcerated during

the time of the attack; rather, he told her that he was on a work release program or

                                         4
              Case: 13-15931     Date Filed: 08/12/2014       Page: 5 of 6

in a halfway house or group home. See, e.g., Holladay v. Haley, 209 F.3d 1243,

1251-52 (11th Cir. 2000) (“Counsel have a duty to investigate but this duty is

confined to reasonable investigation); Funchess v. Wainwright, 772 F.2d 683, 689-

90 (11th Cir. 1985) (finding counsel was not ineffective for failing to investigate a

defendant’s prior mental health difficulties because he never told counsel of any

problems and the competency evaluation did not indicate that any problems

existed).

      Additionally, Ms. Clements would not have known prior to trial that the

victim would specifically testify that she was raped in the spring of 2001, because

the victim had previously given conflicting dates as to the date of the attack. In

light of this conflicting information, Ms. Clements testified in the Rule 32 hearings

that she had decided to challenge the victim’s credibility, rather than trying to

establish Mr. Banks’ whereabouts at the time of the attack. This decision was

reasonable trial strategy. See Strickland, 466 U.S. at 689.

      Even if we were to reach the prejudice prong of Strickland, Mr. Banks

cannot demonstrate that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id.

at 694. The evidence presented at the Rule 32 hearing indicates that even if Ms.

Clements had investigated, she would have discovered that Mr. Banks was in a

halfway house or work release program and, therefore, could have had sufficient

                                          5
               Case: 13-15931      Date Filed: 08/12/2014   Page: 6 of 6

ability to rape the victim. Given this information and the fact that the victim

testified that Mr. Banks raped her, there is no reasonable probability that, but for

Ms. Clements’ actions, the result would have been different. Mr. Banks therefore

cannot demonstrate prejudice.

      In sum, the state court’s decision was not an unreasonable application of

federal law or an unreasonable determination of the facts. Accordingly, we affirm

the district court’s denial of § 2254 relief.

      AFFIRMED.

                                            6


998 F.2d 1007
In re Wilenta Carting Corp.; Wilenta (Peter Paul, Jr.)v.Wilenta Carting Corp., Levitt (Bruce H.), Wilenta (Peter, Jr.)
NO. 92-5604
United States Court of Appeals,Third Circuit.
June 17, 1993

Appeal From:  D.N.J.,
Parell, J.

1
AFFIRMED.


917 P.2d 1108 (1996)
82 Wash.App. 327
The STATE of Washington, Respondent,
v.
Arthur Lee SMITH, Jr., Appellant.
No. 33492-1-I.
Court of Appeals of Washington, Division 1.
June 17, 1996.
Reconsideration Denied July 18, 1996.
*1109 Mark K. Yamashita and Nielson & Acosta, Seattle, for appellant.
Patricia A. Eakes, Deputy Pros. Atty., Seattle, for respondent.
BECKER, Judge.
Arthur Lee Smith, Jr. appeals his conviction for second degree rape. He assigns error to admission of statements the victim made to others on the night of the rape, and also alleges prosecutorial misconduct. We hold: (1) the court properly admitted the victim's statements under exceptions to the hearsay rule; (2) they were not needlessly cumulative; (3) the State did not comment on Smith's right to be present at trial; and (4) comment on Smith's failure to call his spouse as a witness, while improper, did not have a substantial effect on the outcome of the case. Accordingly, we affirm.

I.
The victim, Ms. Brown, testified that she met the defendant one afternoon at a tavern in Seattle. Smith told Brown that his name was "Nick." After talking for several hours, the two decided to go out for dinner. On the way, they stopped at Brown's apartment. Brown offered Smith a beer and went to use the bathroom.
While Brown was using the toilet, Smith came into the bathroom, grabbed her by the neck and said, "Do as I say or I'll kill you." He then forced her into the bedroom and committed vaginal and anal rape. When he was finished, Smith left the apartment.
A friend of Brown's testified that Brown called her that evening. Crying, Brown gave a "disjointed" account of what happened. At the friend's urging, Brown called 911. A tape of the call, which the jury heard, shows that Brown was sobbing and hysterical.
Police testified that when they arrived at Brown's apartment, she was crying so hard she could hardly speak. Brown would not respond to male officers, or allow them to touch her. Finally, a female fire fighter was able to convince Brown she should go to Harborview hospital.
Dr. Alison Guile testified that she examined Brown that evening. Brown had fresh bruises on her forearms, chest and lower back, and fresh scratches on her chest and back. The tissue surrounding Brown's anus and vagina was badly bruised and swollen. Dr. Guile testified that Brown's trauma was "far worse" than that of any patient she had examined before. Brown was visibly upset and experiencing a great deal of pain.
Smith had taken a credit card from Brown's purse while inside her apartment. The next day, Smith and his wife visited a travel agent, posing as Mr. and Mrs. Brown. The Smiths booked a four-day trip to Disneyland, using Brown's credit card as payment, but later canceled the trip.
Police searched for Smith over the next few months. Not knowing his real name, they were unable to find him. In August, Brown happened to see Smith coming out of an apartment building on Queen Anne. The property manager identified Smith to the police, but Smith fled the apartment before police could capture him.
As a result of a nationwide fugitive alert, police in Virginia eventually arrested Smith. A Seattle police detective flew to Virginia to transport Smith back. While talking with the detective on the plane, Smith said that he knew he had a "sexual problem with women," and that he was "in the situation he was in now" because treatment attempts had failed. Smith also said his wife did not know what he *1110 had done, and he wanted to keep her out of it.
The defense theory at trial was that Brown had consensual sex with Smith, immediately regretted it, and then fabricated the rape allegation. Smith testified that when he went to Brown's apartment, she gave him a beer, poured herself a glass of wine, and joined him on the couch. Eventually they went into the bedroom and had vaginal intercourse that was "totally consensual." Smith admitted that he stole the credit card from Brown's purse while she was in the bathroom. He said the reason he later fled was because he had stolen the card, and because he was on parole from a felony conviction in Alaska.
The jury found Smith guilty of second degree rape.

II.
In addition to Brown's testimony describing the alleged rape, the trial court admitted statements she made to others on the night in question. The court admitted Brown's statements during the telephone call to her friend, a tape of the 911 call, and her statements to a police officer under the excited utterance exception to the hearsay rule.[1] The court admitted Brown's statements to Dr. Guile under the medical diagnosis exception.[2]
Relying on State v. Harper,[3] Smith argues Brown's statements to others should have been excluded because they merely served to bolster Brown's trial testimony.
A prior statement, if "offered in evidence to prove the truth of the matter asserted", is hearsay.[4] The general rule, ER 802, is that hearsay is inadmissible. There are two distinct rationales by which a witness' prior consistent statement may be admissible notwithstanding the general rule. First, the statement may satisfy one of the exceptions to the hearsay rule found in ER 803. Second, the statement may not be hearsay at all if offered to rebut impeachment. To be admissible by the second rationale, the statement must meet the ER 801(d)(1)(ii) definition of non-hearsay, as a prior consistent statement "offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive".
State v. Harper addressed a misapplication of the second rationale described above. In a trial of alleged child molestation, the court allowed a caseworker to repeat what the child told her about the incident several months after it occurred. Harper held this testimony by the caseworker should have been excluded as irrelevant because it did not specifically rebut the attempted impeachment of the victim.[5] "Evidence which merely shows that the witness said the same thing on other occasions when his motive was the same does not have much probative force `for the simple reason that mere repetition does not imply veracity.'"[6] Lacking relevance to any attempted impeachment, mere repetition of the child's version of events improperly and prejudicially bolstered the child's credibility.
The analysis in Harper applies when the prior statement is offered under ER 801(d)(1)(ii) as non-hearsay. The rationale for admissibility in that case is that the evidence "counteracts a suggestion that the witness changed his story" and thus is relevant to the credibility of the witness' trial testimony.[7] The analysis in Harper does not apply when the prior statement is offered under ER 803. The rationale for admissibility in *1111 this situation has nothing to do with the credibility of the witness at trial, and indeed the statement may be admitted even if the declarant does not testify at trial. Instead, the rationale is that the statement, though hearsay, has enough reliability to serve as independent proof of the matter asserted. This distinction is implicit in Harper. The court upheld the admission of excited utterances by the victim, without considering whether they served to rebut any alleged motive to fabricate.[8]
Brown's statements to her friend, to the police officer, and to the doctor did involve a certain amount of repetition. But Smith concedes the statements fit the criteria for admission under the cited exceptions to the hearsay rule. Brown's excited utterances and statements for the purposes of medical treatment were admissible as exceptions to the hearsay rule because they were reliable evidence tending to prove the truth of the matter assertedthat Smith raped Brown.[9] They were not offered to show that Brown consistently repeated her allegations on different occasions. Therefore, it was unnecessary to relate them to express or implied impeachment in order to justify the repetition.
Smith also argues that because the statements repeated Brown's account of the rape, the trial court should have excluded them as needlessly cumulative. Under ER 403, the trial court may exclude relevant evidence if its probative value "is substantially outweighed by ... considerations of undue delay, waste of time, or needless presentation of cumulative evidence." The decision to limit trial testimony is within the broad discretion of the trial court.[10]
Presentation of evidence relating to a material issue is not needlessly cumulative or a waste of time simply because it comes in through several witnesses whose accounts are consistent. The statements that Brown made to the friend, the officer, and the doctor were not identical. This was not a case where the State attempted to call numerous witnesses of the same type to say the same thing. Instead, each witness had a perspective that helped the State, in different ways, to rebut Smith's assertion that the sex was consensual. In much the same way, different eyewitnesses might help a jury to assemble its view of a fight or a car accident. The record reflects that the court took steps to prevent the testimony from being needlessly cumulative.
We conclude the court acted within its discretion in admitting the statements Brown made to different people on the night in question.

III.
Smith contends the prosecutor committed misconduct by commenting on his right to be present at trial. During Smith's direct examination, Smith and his attorney occasionally referred to photographs of Brown's apartment that the State had introduced into evidence. On cross-examination, the prosecutor suggested that Smith had constructed his account of the evening to fit the photographs of the crime scene:
Q: You looked at State's Exhibit Number 6, that showed a wine bottle on a counter, didn't you?
A: Yes, I did.
. . .
Q: So before you decided to testify that Ms. Brown had two or three glasses of wine out of that bottle, you had a chance to see that that bottle wasn't all the way full, didn't you?
The court overruled Smith's objection to this question. The prosecutor continued:
Q: Isn't it fair to say that after you looked at all the photographs in the case and you had a chance to read the discovery and see what people were going to say and hear what they had to testify to, it was only then that you crafted your story about what happened, *1112 how it would fit with the pictures and the evidence that you heard?
When Smith's second objection was overruled, he responded:
A: [Defense counsel] and I went over the evidence. He told me to tell the truth and that's what I did. I didn't craft anything.
Smith contends these questions infringed upon the exercise of his constitutional rights to confront his accusers and view the evidence against him. In State v. Johnson,[11] the prosecutor argued in closing that the defendant had the opportunity to "tailor his testimony to what came before" because he was "the only one witness that could watch the entire proceeding take place."[12] This court held that the prosecutor's comments about the defendant's "unique opportunity to be present at trial and hear all the testimony against him" impermissibly infringed on his exercise of his Sixth Amendment rights.[13]
Under Johnson, the State may not argue that a defendant, by sitting in the courtroom throughout the trial, has gained the unique opportunity to tailor his testimony. But the holding in Johnson does not prevent the State from arguing that a defendant has tailored his testimony to the State's proof. The constitutional right is to be present at trial and confront witnesses. It is not a right to be insulated from suspicion of manufacturing an exculpatory story consistent with the available facts.
The State's questions in this case raised an inference from Smith's testimony; they were not "focused on the exercise of the constitutional right itself."[14] The State could have asked the same questions of any witness aware of the State's evidence. We hold the questions did not constitute misconduct.

IV.
Smith also contends the prosecutor committed misconduct by commenting on his exercise of the marital privilege.
Brown called 911 at 7:19 p.m. Smith testified on direct examination that he called his wife from the bar on the day of the alleged rape and that she wanted him home by 5 p.m. He said he arrived home at about 5:30 or 5:45. During cross examination, the State elicited Smith's testimony that his wife was home when he got there. Over objection, the prosecutor asked, "Your wife is not testifying in this case that you came home at 6:00 o'clock, is she?" Smith agreed that she was not. The State argued in closing, also over objection, that Mrs. Brown was the one witness who could have corroborated the defendant's testimony but she "didn't even testify for him."
As a rule, the State may comment on a criminal defendant's failure to call a witness if the defendant's testimony "unequivocally implies the uncalled witness's ability to corroborate his theory of the case."[15] An exception to this rule applies in the case of an assertion of testimonial privilege. "If ... some privilege applies so that the witness's testimony is protected, then the [adverse] inference is not proper."[16]
RCW 5.60.060(1) provides in part:
A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband ...
In order to give force to this statute, Washington courts have long held that the State may not draw an inference of guilt from the assertion of the marital privilege.
[T]here inheres in this statute the mandatory provision that no inference of guilt shall arise from the failure of a wife to testify for or against her husband, or for a husband to testify for or against the wife.

*1113 It follows that the full protective force of the statute is not secured if the silence of the wife be construed against the husband in a criminal action....[[17]]
In State v. Charlton, the defendant's wife was a witness to events leading up to his arrest. In rebuttal argument, the prosecutor commented on Charlton's failure to call his wife to corroborate his account of the evening: "`Who was there that was another witness to the arrest, the defendant could have called? Where is Mrs. Charlton?'"[18] The Court concluded the prosecutor's comments flagrantly violated the "elementary" rule against drawing an inference of guilt from the failure of a wife to testify for her husband.[19]
The State contends the rule of Charlton does not apply in a situation where the defendant's testimony implies that his spouse could corroborate his version of events. The argument is not without force. It is in harmony with the reasoning of State v. Contreras,[20] that the shield of privilege should not become a sword against reasonable prosecutorial argument. "Rules of evidence are designed to aid in establishing the truth."[21] Ordinarily, a party who opens the door to a subject may be cross-examined within the scope of the opening.[22] But Washington authorities squarely prohibit extending this rationale into territory historically occupied by the marital privilege. In State v. Swan,[23] the defendant's wife was a witness to an altercation that led to the victim's death. The Court held it was misconduct to comment on the defendant's failure to waive the marital privilege. In State v. Gant,[24] the defendant testified that narcotics in his possession were prescription drugs belonging to his wife. Again, the comment on the defendant's failure to call his wife was misconduct. These cases are indistinguishable from the case at hand. The fact that Smith's testimony suggested his wife could potentially have corroborated his version of events did not justify comment on her failure to testify.
We conclude the prosecutor committed misconduct by commenting on Smith's exercise of the marital privilege.
While comment on the exercise of the marital privilege is generally deemed prejudicial,[25] it does not compel reversal in all cases. Prosecutorial misconduct requires reversal if there is a "substantial likelihood" the misconduct affected the verdict.[26] The Court reversed on this basis in Charlton. The evidence against the defendant was not overwhelming, and the Court concluded that it was "entirely reasonable to believe that some jurors may have been inclined to believe petitioner's version of the incident, rather than the [State's]".[27]
The particular facts of this case are not analogous. Smith's version was that he and Brown engaged in vaginal intercourse that was "totally consensual." The State's witnesses described Brown as being in a state of near-hysteria when she reported the rape. Bruises and scratches on her back, chest and forearms corroborated her account of a violent physical assault. The severe *1114 injuries to her anus and perineum, and the blood and fecal stains on her bed, all corroborated her account of anal penetration. Smith fled the State upon learning that police were looking for him. When captured, he spontaneously admitted that he was aware he had a "sexual problem with women." In context, the argument about Smith's failure to call his wife as an alibi witness was a relatively insignificant part of the State's case. There is no reason to believe the improper argument played a substantial part in the jury's decision to convict. We conclude the prosecutorial misconduct does not require reversal.
Affirmed.
ELLINGTON, J., and KENNEDY, Acting C.J., concur.
NOTES
[1]  ER 803(a)(2).
[2]  ER 803(a)(4).
[3]  State v. Harper, 35 Wash.App. 855, 670 P.2d 296 (1983), review denied, 100 Wash.2d 1035 (1984).
[4]  ER 801(c).
[5]  Harper, 35 Wash.App. at 857-58, 670 P.2d 296. See also State v. Alexander, 64 Wash.App. 147, 152, 822 P.2d 1250 (1992) (counselor's testimony that child victim's story was "very clear" and remained consistent throughout sessions served merely to bolster victim's testimony).
[6]  Harper, 35 Wash.App. at 858, 670 P.2d 296 quoting 4 J. Weinstein & M. Berger, Evidence § 801(d)(1)(B)[01], at 801-117 to -118 (1981).
[7]  Harper, 35 Wash.App. at 858, 670 P.2d 296 (quoting Weinstein, at 801-117 to -118).
[8]  Harper, 35 Wash.App. at 858-59, 670 P.2d 296.
[9]  See State v. Bedker, 74 Wash.App. 87, 93, 871 P.2d 673, review denied, 125 Wash.2d 1004, 886 P.2d 1133 (1994).
[10]  State v. Weiss, 73 Wash.2d 372, 378, 438 P.2d 610 (1968).
[11]  State v. Johnson, 80 Wash.App. 337, 908 P.2d 900 (1996).
[12]  Johnson, 80 Wash.App. at 340-41, 908 P.2d 900.
[13]  Johnson, 80 Wash.App. at 341, 908 P.2d 900.
[14]  Johnson, 80 Wash.App. at 341, 908 P.2d 900.
[15]  State v. Contreras, 57 Wash.App. 471, 476, 788 P.2d 1114, review denied, 115 Wash.2d 1014, 797 P.2d 514 (1990).
[16]  State v. Blair, 117 Wash.2d 479, 489, 816 P.2d 718 (1991).
[17]  State v. Charlton, 90 Wash.2d 657, 663, 585 P.2d 142 (1978) (quoting State v. Swan, 25 Wash.2d 319, 327, 171 P.2d 222 (1946)); see also State v. Torres, 16 Wash.App. 254, 260, 554 P.2d 1069 (1976).
[18]  Charlton, 90 Wash.2d at 660, 585 P.2d 142.
[19]  Charlton, 90 Wash.2d at 661-63, 585 P.2d 142.
[20]  Contreras, 57 Wash.App. at 471, 788 P.2d 1114.
[21]  State v. Gefeller, 76 Wash.2d 449, 455, 458 P.2d 17 (1969).
[22]  Gefeller, 76 Wash.2d at 455, 458 P.2d 17; see also State v. Rochelle, 11 Wash.App. 887, 893, 527 P.2d 87 (1974), review denied, 85 Wash.2d 1001 (1975).
[23]  Swan, 25 Wash.2d 319, 171 P.2d 222.
[24]  State v. Gant, 6 Wash.App. 263, 492 P.2d 571 (1971).
[25]  See Swan, 25 Wash.2d at 327, 171 P.2d 222; Gant, 6 Wash.App. at 266, 492 P.2d 571.
[26]  Charlton, 90 Wash.2d at 664, 585 P.2d 142; State v. Rice, 110 Wash.2d 577, 602, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989).
[27]  Charlton, 90 Wash.2d at 664, 585 P.2d 142.


279 S.W.2d 344 (1955)
Stella PAIGE, Appellant,
v.
The STATE of Texas, Appellee.
No. 27625.
Court of Criminal Appeals of Texas.
May 25, 1955.
No attorney on appeal for appellant.
Dan Walton, Dist. Atty., Eugene Grady, Jr., Asst. Dist. Atty., Thomas D. White, Asst. Dist. Atty., Houston, Leon Douglas, State's Atty., Austin, for the State.
BELCHER, Commissioner.
The conviction is for the unlawful possession of a narcotic drug, to-wit, heroin; the punishment, ten years in the penitentiary.
The testimony of two police officers of the City of Houston showed that as they entered a residence they saw appellant jump from a chair in which she was sitting and run into the bathroom. Officer Free testified that while appellant was running he saw a red-colored bottle in her left hand, and that he followed her into the bathroom where he saw her place her left hand in the bowl part of a commode and at the same time attempt to flush the commode with her right hand. Officer Free further testified that he immediately reached into the commode and drew out a red bottle that appeared to be the same bottle he saw in appellant's hand; and that the bottle retrieved from the commode contained thirty capsules.
It was further shown by a chemist, whose qualifications were admitted, that each of the thirty capsules which were properly identified contained heroin.
Appellant, while testifying in her own behalf, denied having possession of the red bottle and the heroin at any time, and further stated that she did not reside in the house searched but was a guest and had been there only a brief time when the officers arrived.
The jury resolved the issue of fact against appellant and we find the evidence sufficient to support their verdict.
Appellant's objections to the evidence concerning the search and the introduction into evidence of the results thereof are without merit because by her own testimony she was only a guest in the residence searched. The right to object that a search was illegal is a privilege to be exercised only by one in lawful possession of the premises searched. Booth v. State, 110 Tex.Cr.R. 548, 9 S.W.2d 1032; Cobb v. State, 118 Tex.Cr.R. 214, 42 S.W.2d 1028; Stephenson v. State, 120 Tex.Cr.R. 265, 46 S.W.2d 978; Bickham v. State, 126 Tex. Cr.R. 511, 72 S.W.2d 1095; Taylor v. State, 132 Tex.Cr.R. 617, 106 S.W.2d 1056; *345 Phariss v. State, 137 Tex.Cr.R. 469, 131 S.W.2d 965; Scobey v. State, 145 Tex. Cr.R. 481, 169 S.W.2d 185.
The judgment is affirmed.
Opinion approved by the Court.


                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 10, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-41398
                         Summary Calendar

UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARTIN JUAREZ-PALOMO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-412-ALL
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and OWEN, Circuit Judges.

PER CURIAM:*

     Martin Juarez-Palomo (Juarez) challenges his guilty-plea

conviction and 30-month sentence for illegal reentry following

deportation, in violation of 8 U.S.C. § 1326.   Juarez asserts

that his prior California conviction for burglary under

California Penal Code § 459 is not a crime of violence, as

defined in U.S.S.G. § 2L1.2, and that, as a result, the district

court erred in assessing a 16-level crime of violence

enhancement.

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 05-41398
                                -2-

     Juarez’s prior California conviction for burglary is the

equivalent to the enumerated crime of violence offense of

burglary of a dwelling.   See United States v. Murillo-Lopez, 444

F.3d 337, 344-45 (5th Cir. 2006).   Accordingly, the district

court did not err in applying the § 2L1.2(b)(1)(A)(ii) 16-level

crime of violence enhancement.    See id.

     Juarez also contends that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   His constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Juarez contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi, we have repeatedly

rejected such arguments on the basis that Almendarez-Torres

remains binding.   See United States v. Garza-Lopez, 410 F.3d 268,

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).      Juarez

properly concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

     AFFIRMED.


~€

fb

FILED

IN THE uTAH APPELLATE couRTs
SUPREME CouRT oF THE STATE or UTAH jun 1 5 2013

f

STATE oF UTAH,
Responden t,

'U.

ZACHARY RlGBY,
Petitioner.

Case No. 20160261

ORDER

On ]uly 06, 2016, We granted Zachary Rigby’s petition for certiorari After
briefing and oral argument, it became apparent that the district court had entered two
separate orders denying Mr. Rigby’s motion to suppress in this case. The first order Was
submitted on November 8, 2013 and signed on December 23, 2013 (the December 23
order). This order rested on only one ground for denial-that the search Was proper
under the automobile exception. The second order was submitted on November 26,
2013, signed on December 5, 2013, and entered into the docketing system on December
10, 2013 (the December 10 order). Unlike the December 23 order, however, this order
rested on two independent grounds for denial-that the search Was proper under the
automobile exception and as a search incident to arrest. Both orders appeared operative,
as neither had been stricken below.

Accordingly, on December 21, 2017, We temporarily remanded this case to the
district court to clarify Which order Was properly before us. On April 13, 2018, the
district court issued a decision clarifying that the December 10 order Was the operative
order and striking the December 23 order.

Because it is now clear the December 10 order is the operative order, and that
order contains an additional ground for denial (a search incident to arrest), there exists
a separate, independent ground for affirming the district court’s denial of the motion to
suppress Mr. Rigby has not challenged this ground in his petition for certiorari or in his
briefs before us. We have repeatedly held that failure to challenge one of the district
court’s independent grounds ”leaves us With no basis for reversal and thus no choice
except to affirm." Kendall v. Olsen, 2017 UT 38, 11 9, --- P.3d ---; see also Gilbert v. Utah
Stute Bar, 2016 UT 32, 11 24, 379 P.3d 1247 (”[VV]e Will not reverse a ruling of the district
court that rests on independent alternative grounds Where the appellant challenges only

one of those grounds.”). Given the clarity of the law on this matter, rendering an
opinion in this case Would yield little, if any, precedential value Accordingly, we
conclude that we have improvidently granted Mr. Rigby's petition

lT IS HEREBY ORDERED that the petition for certiorari to the Utah Court of
Appeals is dismissed
FOR THE COURT on this

/`
/L"Lday cf Jo_q ,g ,2018;

MR>\

' L/ \~/\x \_>\
Matthew B. Durrant

Chief ]u'stice

CERTIFICATE OF l\/l/~\ll..lNG

l hereby certify that on ]une 18, 2018, a true and correct copy of the foregoing ORDER
was sent by electronic mail to be delivered to:

]EFFREY S. GRAY
jgray@agutah.gov

BRANDON ]Ol-IN SMlTl-l
bsmith@bslawoffice.com

HONORABLE I<EVIN K. ALLEN
FIRST DISTRICT, LOGAN DEPT
logancrim@utcourts. gov

FIRST DISTRICT, LOGAN DEPT
ATTN: CHRIS ]EPPESEN
logancrim@utcourts.gov

LISA COLLINS
COURT OF APPEALS
courtofappeals@utcourts.gL

Susan Willis
ludicial Services Manager

Case No. 20160261»5€
FIRST DISTRICT, LOGAN DEPT, 135100370
Court of Appeals Case No. 20140553-CA


Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/06/2018 01:11 AM CDT

                                                       - 630 -
                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                                          IN RE ESTATE OF HASTERLIK
                                               Cite as 299 Neb. 630

                          In   re  Estate of R ichard A. H asterlik, deceased.
                                K imberlee Voss, Personal R epresentative
                                 of the Estate of R ichard A. H asterlik,
                                     deceased, appellant, v. State of
                                           Nebraska, appellee.
                                                  ___ N.W.2d ___

                                        Filed April 13, 2018.    No. S-17-592.

                1.	 Decedents’ Estates: Taxation: Appeal and Error. On appeal of an
                    inheritance tax determination, an appellate court reviews the case for
                    error appearing on the record.
                2.	 Judgments: Appeal and Error. When reviewing a judgment for errors
                    appearing on the record, the inquiry is whether the decision conforms
                    to the law, is supported by competent evidence, and is neither arbitrary,
                    capricious, nor unreasonable.
                3.	 Decedents’ Estates: Parent and Child: Taxation: Appeal and Error.
                    Factual findings necessary in determining whether the requisite acknowl-
                    edged parent-child relationship of Neb. Rev. Stat. § 77-2004 (Reissue
                    2009) exists should be reviewed for sufficient evidence and should not
                    be disturbed on appeal unless clearly wrong.
                4.	 Decedents’ Estates: Taxation: Statutes: Proof. Statutes exempting
                    property from inheritance tax should be strictly construed, and the bur-
                    den is on the taxpayer to show that he or she clearly falls within the
                    language of the statute.
                5.	 Decedents’ Estates: Parent and Child: Taxation. The following fac-
                    tors serve as appropriate guideposts to the trial court in making a deter-
                    mination of an acknowledged relationship of a parent under Neb. Rev.
                    Stat. § 77-2004 (Reissue 2009): (1) reception of the child into the home
                    and treatment of the child as a member of the family, (2) assumption
                    of the responsibility for support beyond occasional gifts and financial
                    aid, (3) exercise of parental authority and discipline, (4) relationship by
                    blood or marriage, (5) advice and guidance to the child, (6) sharing of
                                     - 631 -
              Nebraska Supreme Court A dvance Sheets
                      299 Nebraska R eports
                        IN RE ESTATE OF HASTERLIK
                             Cite as 299 Neb. 630

     time and affection, and (7) existence of written documentation evincing
     the decedent’s intent to act as parent.
 6.	 Witnesses: Testimony. The credibility of a witness is a question for the
     trier of fact, and it is within its province to credit the whole of the wit-
     ness’ testimony, or any part of it, which seemed to it to be convincing,
     and reject so much of it as in its judgment is not entitled to credit.

   Appeal from the County Court for Dodge County: K enneth
J. Vampola, Judge. Affirmed.
  Rebecca Abell Brown, of R. Abell Brown Law, L.L.C., for
appellant.
  Linsey Moran Bryant, Chief Deputy Dodge County Attorney,
and Emily A. Beamis for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ.,
and Moore, Chief Judge, and A rterburn, Judge, and Doyle,
District Judge.
   Cassel, J.
                       INTRODUCTION
   Kimberlee Voss, personal representative of the estate of
Richard A. Hasterlik, deceased, appeals from the county court’s
determination that she, as an individual beneficiary, did not
qualify for preferential inheritance tax treatment under Neb.
Rev. Stat. § 77-2004 (Reissue 2009). The court found that Voss
failed to prove the decedent stood in the acknowledged relation
of a parent to her. Because the county court’s factual determi-
nation was not clearly wrong, we affirm.
                        BACKGROUND
   The evidence presented to the county court established that
Voss’ biological father passed away in 1983 when she was 25
years old. The decedent became engaged to Voss’ mother 2
years later, but the two never married. Instead, they cohabitated
in Wisconsin and later in Nebraska until Voss’ mother passed
away in 2013.
                                     - 632 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                         IN RE ESTATE OF HASTERLIK
                              Cite as 299 Neb. 630

   While Voss’ mother and the decedent lived in Wisconsin,
Voss’ family would visit them a few times a year, and she
would often have them stay at her home in Nebraska during
visits. After the couple moved to Nebraska, Voss’ family spent
holidays with them and would see them a few times a week.
Voss’ mother and the decedent would provide money to Voss
“at times,” and they bought her son a car when he graduated
from high school. After Voss’ mother passed away, Voss’ fam-
ily continued to spend holidays with the decedent and would
see him about once a week. They also helped him with grocery
shopping and home maintenance.
   Voss’ affidavit indicated that the decedent was protective of
her and would give her “fatherly advice and guidance.” She
further testified that the decedent referred to her as his step-
daughter. She attached a “previous” will to her affidavit, which
showed that the decedent had previously disinherited his bio-
logical daughter and devised his entire estate to Voss’ mother.
Under that will, Voss was to inherit in the event that her mother
predeceased the decedent. Although the affidavit recited that a
more recent will had been executed, neither that will nor any
other county court filings (other than the order being appealed)
were included in the appellate record.
   On this evidence, the county court concluded that it was
“unable to differentiate that [the decedent] provided anything
to [Voss] or acted in a manner toward [her] that was above
and beyond the normal circumstances of his companionship
with [Voss’] mother.” Accordingly, it determined that Voss’
inheritance did not qualify for the 1-percent tax rate under
§ 77-2004.
   Voss appealed, and we moved the case to our docket.1
                ASSIGNMENT OF ERROR
  Voss assigns that the county court erred in finding that the
evidence did not establish that she was a person to whom the

 1
      See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
                                    - 633 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                         IN RE ESTATE OF HASTERLIK
                              Cite as 299 Neb. 630

deceased, for more than 10 years prior to death, stood in the
acknowledged relation of a parent.
                   STANDARD OF REVIEW
   [1,2] On appeal of an inheritance tax determination, an
appellate court reviews the case for error appearing on the
record.2 When reviewing a judgment for errors appearing on
the record, the inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither arbi-
trary, capricious, nor unreasonable.3
   [3] Factual findings necessary in determining whether the
requisite acknowledged parent-child relationship of § 77-2004
exists should be reviewed for sufficient evidence and should
not be disturbed on appeal unless clearly wrong.4
                           ANALYSIS
   [4] Statutes exempting property from inheritance tax should
be strictly construed, and the burden is on the taxpayer to
show that he or she clearly falls within the language of the
statute.5 Section 77-2004 provides that “any person to whom
the deceased for not less than ten years prior to death stood
in the acknowledged relation of a parent” shall receive an
inheritance tax exemption of $40,000 and shall be taxed at
the rate of 1-percent of the clear market value of the property
thereafter. Therefore, it was Voss’ burden to establish that she
was a person “to whom the deceased for not less than ten
years prior to death stood in the acknowledged relation of
a parent.”
   [5] The following factors serve as appropriate guideposts to
the trial court in making a determination of an acknowledged
relationship of a parent under § 77-2004: (1) reception of the

 2
      See In re Estate of Craven, 281 Neb. 122, 794 N.W.2d 406 (2011).
 3
      Id.
 4
      In re Estate of Kite, 260 Neb. 135, 615 N.W.2d 481 (2000).
 5
      In re Estate of Breslow, 266 Neb. 953, 670 N.W.2d 797 (2003).
                                     - 634 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                         IN RE ESTATE OF HASTERLIK
                              Cite as 299 Neb. 630

child into the home and treatment of the child as a member
of the family, (2) assumption of the responsibility for sup-
port beyond occasional gifts and financial aid, (3) exercise of
parental authority and discipline, (4) relationship by blood or
marriage, (5) advice and guidance to the child, (6) sharing of
time and affection, and (7) existence of written documentation
evincing the decedent’s intent to act as parent.6
   [6] Voss testified that the decedent referred to her as his
stepdaughter. The credibility of a witness is a question for the
trier of fact, and it is within its province to credit the whole of
the witness’ testimony, or any part of it, which seemed to it to
be convincing, and reject so much of it as in its judgment is
not entitled to credit.7 Even if Voss’ testimony would have been
sufficient for the county court to make the necessary finding,
the court was not required to do so.
   The evidence offered at trial was sparse and included a
two-page affidavit, the decedent’s previous will, and Voss’
summary answer to a single question. No evidence was offered
concerning the third factor—exercise of parental authority
and discipline—and, though Voss described her mother’s and
the decedent’s relationship as “a close marital type relation-
ship,” no actual blood or marital relationship existed. Neither
Wisconsin law8 nor Nebraska law9 allows for the establish-
ment of common-law marriages, and Voss conceded that they
had not legally married. Therefore, the fourth factor—rela-
tionship by blood or marriage—also weighed against Voss’
entitlement to the § 77-2004 tax rate. No credible evidence was
offered concerning the seventh factor—written documentation
of intent—as Voss offered only a copy of the decedent’s previ-
ous will—not his most recent will. And there is nothing in the

 6
      In re Estate of Kite, supra note 4.
 7
      In re Estate of Ross, 19 Neb. App. 355, 810 N.W.2d 435 (2011).
 8
      See Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987).
 9
      See Neb. Rev. Stat. § 42-104 (Reissue 2016).
                            - 635 -
          Nebraska Supreme Court A dvance Sheets
                  299 Nebraska R eports
                  IN RE ESTATE OF HASTERLIK
                       Cite as 299 Neb. 630

record to show that Voss received the same treatment in the
controlling will as she did under the previous will.
   As to the remaining factors, it is apparent from the record
that Voss and the decedent cared for one another and would
spend time together for holidays and regular visits. However,
the county court concluded that the evidence was insufficient
to establish the decedent acted in a manner toward Voss that
went above and beyond the normal circumstances of his rela-
tionship with her mother. We cannot say that the county court
was clearly wrong in determining that Voss failed to carry her
burden of proof.
                       CONCLUSION
   Because the county court’s factual determination was not
clearly wrong, we affirm the order of the county court.
                                                   A ffirmed.
   Wright and Funke, JJ., not participating.