Summary 2012 WY 42

Summary of Decision March 20, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it was issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name:  Daren S. Berg and Jennifer A. Berg v. Torrington Livestock Cattle Company, a Wyoming Corporation

Docket Number: S-11-0229

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465272

Appeal from the District Court of Goshen County, Honorable John C. Brooks, Judge

Representing Appellant (Plaintiff/Defendant):  Daren S. Berg and Jennifer A. Berg, Pro se, Edgemont, SD.

Representing Appellee (Plaintiff/Defendant): Patrick J. Crank of Nicholas & Crank, P.C., Cheyenne, WY.

Date of Decision: March 20, 2012

Facts: Daren S. Berg and Jennifer A. Berg (the Bergs) filed this pro se appeal from summary judgment entered against them in an action to collect on a promissory note. 

Issues: Ten arguments are listed by the Bergs:

1.                  The district court erred in denying Bergs their preserved right to a jury trial.

2.                  The district court erred in holding that there was no breech [sic] of contract against Torrington Livestock Cattle Company.

3.                  The district court erred in holding secured collateral on a promissary [sic] note did not have to be apllied [sic] to the actual note.

4.                  The district court failed on all counts to prove or provide any evidence of the Bergs hindering or delaying Torrington Livestock Cattle Company.

5.                  The district court erred in allowing perjured statements.

6.                  The district court continiuosly [sic] proved they were biased against the Bergs and denied them of their Constitutional and Civil rights.

7.                  Does the district court have the authority to dictate where a business or individuals may conduct business or financial transactions?

8.                  The district court erred in its ruling on the bank security agreement.

9.                  Torrington Livestock Cattle Company has received $103,151.71 in payment on a bank note that only had a balance of $53,569.60.  This was low value auction prices.

10.              Gross negligence on behalf of the Goshen County Sheriff’s department should be filed for the seizure and then losing Bergs’ property.  The department failed to provide accurate records and secure the property until it was sold.

Holdings:  Based upon the deficient brief offered by the Bergs and their failure to follow the rules of appellate procedure, the decision of the trial court is summarily affirmed.

Justice Hill delivered the opinion for the court.

Summary 2012 WY 41

Summary of Decision March 20, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it was issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name:  Bud Corey Morrison v. The State of Wyoming

Docket Number: S-11-0203

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Weston County, Honorable Dan R. Price, Judge

Representing Appellant (Plaintiff/Defendant):  Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Senior Assistant Attorney General.

Date of Decision: March 20, 2012

Facts: The appellant contends that he did not receive full credit against his sentence for all presentence time served, and that he should not have been assessed an indigent civil legal services fee. 

Issues: Whether the appellant’s sentence was illegal because he did not receive credit for the time he spent, presentence, in a residential substance abuse treatment facility.  Whether the appellant’s sentence was illegal because he should not have been assessed an indigent civil legal services fee.

Holdings: By statutory definition, the appellant’s “constraint incidental to release on bail” was not “official detention,” and he was not subject to a charge of escape.  Neither was he confined due to a financial inability to post bond, nor did his circumstances duplicate any of the circumstances where we have found credit for time served to be required.  In short, the appellant is not entitled to credit against his prison sentence for the period of time he participated in the WYSTAR program as a condition of his release on bond.  We cannot consider whether imposition in the Sentence of the indigent legal services fee was proper because that question was not raised in the district court as required by W.R.Cr.P. 11(b)(1)(C).  Affirmed.

Justice Voigt delivered the opinion for the court.

Summary 2012 WY 40

Summary of Decision March 19, 2012


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Joseph Dax v. The State of Wyoming

Docket Number: S-11-0182

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465269

Appeal from the District Court of Natrona County, Honorable David B. Park, Judge

Representing Appellant (Plaintiff/Defendant): Joseph F. Dax, Pro se.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Justin A. Daraie, Assistant Attorney General.

Date of Decision: March 19, 2012

Facts: Joseph F. Dax filed this pro se appeal contesting an order denying him credit for time served. Dax claimed he should have received credit against his state sentence for time spent in pre-trial detention on a federal charge.

Issues: Although no issue was stated in Dax’s brief, he argued in the body of his brief that his state sentence should have been credited with time served, beginning from his date of arrest on the federal charge.

Holdings: Res judicata bars review of the issue raised by Dax because he did not take advantage of the opportunity to raise it multiple times before. In this case, he did not show good cause to excuse those failures. Affirmed.

Justice Hill delivered the opinion for the court.

Summary 2012 WY 39

Summary of Decision March 16, 2012


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Jimmy Dean Smallfoot v. The State of Wyoming

Docket Number: S-11-0192

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465265

Appeal from the District Court of Campbell County, Honorable Dan R. Price II, Judge

Representing Appellant (Plaintiff/Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellant Counsel; Wyoming Public Defender Program. Argument by Ms. Olson.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Joshua Beau Taylor, Student Director, and Benjamin J. Sherman, Student Intern, of the Prosecution Assistance Program. Argument by Mr. Taylor.

Date of Decision: March 16, 2012

Facts: Appellant Jimmy Dean Smallfoot entered a conditional guilty plea to a charge of possession with intent to deliver a controlled substance. He reserved the right to appeal the district court’s denial of his motion to suppress the marijuana discovered inside his residence. Smallfoot claims the drug evidence should have been suppressed because it was the fruit of a constitutionally infirm warrantless entry into his home.

Issues: Smallfoot offers this issue for consideration: Did the trial court err in denying Appellant’s motion to suppress evidence obtained in the warrantless search of his residence?

Holdings: The Court held the district court correctly determined that the officers’ warrantless entry into the West Juniper residence pursuant to Gengozian’s consent was constitutionally permissible. The Court’s holding on this issue obviates the need to determine whether the officers’ entry was justified by exigent circumstances. The district court’s denial of Smallfoot’s motion to suppress is affirmed.

Justice Golden delivered the opinion for the court.

Summary 2012 WY 38

Summary of Decision March 14, 2012


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: In the Matter of the Wyoming Worker’s Compensation Claim of: Michael Beall #2 v. Sky Blue Enterprises, Inc.

Docket Number: S-11-0162

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465234

Appeal from the District Court of Carbon County, Honorable Wade E. Waldrip, Judge

Representing Appellant (Plaintiff/Defendant): Donna D. Domonkos, Domonkos Law Office, Cheyenne, Wyoming.

Representing Appellee (Plaintiff/Defendant): Bradley T. Cave, Maryt L. Fredrickson, and Isaac N. Sutphin, Holland & Hart, LLP, Cheyenne, Wyoming.

Date of Decision: March 14, 2012

Facts: Appellant, Michael Beall, received preauthorization from the Wyoming Workers’ Safety and Compensation Division for an orchiectomy, a procedure to remove his left testicle, which he claimed was related to a workplace injury. Mr. Beall’s employer, Sky Blue Enterprises, Inc., objected to the preauthorization and the matter was referred to the Medical Commission Hearing Panel for a contested case hearing. Mr. Beall elected to undergo the surgery prior to the scheduled hearing. The Commission denied Mr. Beall’s claim for reimbursement of medical expenses on the basis that the surgery was not reasonable or necessary medical care resulting from his workplace injury. Mr. Beall appealed to the district court, which affirmed the Commission’s order. He challenges that decision in this appeal.

Issues: Mr. Beall presents the following issues: Whether the Medical Commission’s decision is arbitrary, capricious, or otherwise not in accordance with the law as a result of the fact that Mr. Beall was required to bear the burden of proving his claim for reimbursement of medical expenses. Whether the Medical Commission’s decision is supported by substantial evidence.

Appellee, Sky Blue, states the issues as follows: Whether placing the burden of proof on the claimant Mr. Beall was in accordance with well-settled law and not arbitrary or capricious. Whether the Medical Commission’s decision that Mr. Beall’s orchiectomy and associated medical treatment was not reasonable, necessary, nor causally related to his workplace accident of October 13, 2008, and thus was a noncompensable injury, is supported by substantial evidence.

Holdings: Affirmed.

Justice Burke delivered the opinion for the court.

Summary 2012 WY 37

Summary of Decision March 12, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it was issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name:  Silva v. State of Wyo.                                                  

Citation:  2012 WY 37

Docket Number: S-11-0124   

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465201

Appeal from the District Court of Sweetwater County, The Honorable Jere A. Ryckman, Judge

Representing Appellant (Defendant):  Diane Lozano, State Public Defender PDP; Tina N. Olson, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.  Argument by Mr. Alden.

Representing Appellee (Plaintiff):  Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Andrew J. Kuhlmann, Assistant Attorney General.  Argument by Mr. Kuhlmann.

Before KITE, C.J., and GOLDEN, HILL, and BURKE, JJ., and TYLER, D.J.

Date of Decision: March 12, 2012

Facts:  Appellant walked across the city toward his estranged fiancée’s apartment, outlining en route his plan and his progress in a torrent of scurrilous voice and text messages sent to the victim’s cell phone.  Upon arrival at the apartment, Appellant pounded loudly on the front door, awakening his former girlfriend.  She refused to let him. Alarmed when he persisted, she dialed 911 to summon help.  Appellant then broke through the window screen, came into the apartment. Appellant followed her into the bedroom where he beat her, seized her hair and dragged her down the hall.

A neighbor shouted his assistance and attempted to enter the locked apartment.  Appellant yelled to the neighbor that he should “mind his own business” and that Appellant was “just trying to get his wife home,” all-the-while plodding toward the living room at the front of the apartment, pulling the victim by her hair. 

When Appellant reached the living room with his victim in tow, he released her and unlocked the front door to accost the interloping neighbor.  As Appellant exited through the door, the victim quickly shut and locked it behind him, and retreated into the apartment.  The victim listened as Appellant confronted and grabbed the neighbor.  The neighbor fought back.  Battered and disoriented, Appellant staggered away from the apartment complex only later to be apprehended by police where he was formally arrested, taken to the hospital for treatment, and jailed.

Appellant planned to show at trial that he lacked any specific intent to remove the victim so that he could “inflict bodily injury on or to terrorize” her.  Appellant planned to demonstrate that his true intent at the time of the incident was actually to protect the victim from vulnerabilities to her safety caused by her habitual alcohol consumption by merely taking her to his home.  Appellant proposed to present detailed evidence of the victim’s past conduct, particularly related to her frequent use of alcohol.  Appellant also wanted to provide of the victim’s putative extraneous sexual behavior prior to the date that the events transpired.

After completing the hearings and listening to the arguments of counsel, the district court ruled that evidence of the victim’s drinking habits and alcohol-related arrests was germane to Appellant’s defense.  The district court found that evidence of the victim’s misdemeanor convictions for alcohol-related violations was inadmissible under W.R.E. 609.  The district court also held that evidence regarding the victim’s sexual conduct while she was intoxicated or evidence that she was once sexually assaulted while she was passed-out was inadmissible since such evidence was not relevant, was unrelated to the victim’s reputation for truthfulness or untruthfulness, and was generally viewed as an impermissible overt attack upon her character which was not at issue in the case. 

At trial, the district court gave Appellant’s trial counsel considerable latitude in examining the victim and other witnesses concerning the prior conduct of the victim at various times when she was intoxicated.  Although the district court remained steadfast in its pretrial prohibition of evidence of the victim’s sexual conduct while intoxicated or evidence that she was sexually assaulted while passed-out, Appellant never asked to make an offer of proof outside the hearing of the jury to preserve for the record any proposed evidence concerning the victim’s sexual past in accordance with W.R.E. 103. 

The district court also refused Appellant’s proffered lesser-included offense instruction. The district court agreed with the State’s argument that Attempted False Imprisonment is not a lesser-included offense to Attempt to Commit Kidnapping where, as specifically charged in this case, Appellant’s purported criminal conduct involved an attempted removal – not confinement – of the victim.

Ultimately, the jury found Appellant guilty of Aggravated Burglary and Attempt to Commit Kidnapping.  The district court sentenced Appellant to imprisonment for twelve to fifteen years on each count to be served concurrent, but consecutive to an imprisonment sentence in an unrelated case.

Issues: 1) Whether the trial court erred in precluding relevant evidence of the victim’s prior conduct, prohibiting Appellant from fully presenting his defense; and 2) Whether the court improperly refused to instruct on the lesser included offense of false imprisonment.

Holdings:  The Court found that the district court properly excluded irrelevant evidence of the victim’s past conduct.  Further, the district court did not err in refusing to instruct the jury on a proffered lesser-included offense instruction which required elements not required for the higher felony offense.  

D.J. Tyler delivered the opinion for the court.

Summary 2012 WY 36

Summary of Decision March 9, 2012


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Marjorie E. Bedessem, Trustee of the Marjorie E. Bedessem Revocable Trust Agreement UTA Dated November 25, 2008 v. David P. Cunningham and Susan M. Cunningham

Docket Number: S-11-0127

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465175

Appeal from the District Court of Albany County, Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Plaintiff/Defendant): M. Gregory Weisz of Pence and MacMillan LLC, Laramie, Wyoming

Representing Appellee (Plaintiff/Defendant): Steven F. Freudenthal of Freudenthal & Bonds, P.C., Cheyenne, Wyoming

Date of Decision: March 9, 2012

Facts: Marjorie Bedessem (Bedessem), as trustee of her revocable trust, filed a complaint against David and Susan Cunningham (Cunninghams), seeking enforcement of an easement across the Cunningham property to access the Bedessem property. Bedessem claimed an implied access easement or, in the alternative, access pursuant to the restrictive covenants applicable to both properties. The district court found no evidence of an implied easement and that the restrictive covenants authorized only the Architectural Control Committee to sue for enforcement of the covenants. On those grounds it granted Cunninghams’ summary judgment motion.

Issues: On appeal, Bedessem did not challenge the district court’s finding on the implied easement claim and presented only the following issue: Whether the District Court erred when it ruled that Plaintiff did not have standing to enforce a restrictive covenant against Defendants.

Holdings: The Covenants applicable to the Large Tracts grant the Architectural Control Committee the sole right to enforce the Covenants, and the court affirmed the district court’s summary judgment order.

Justice Golden delivered the opinion for the court.