Summary 2005 WY 149

Summary of Decision issued November 23, 2005

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Case Name: Moe v. State

Citation: 2005 WY 149

Docket Number: 03-139

On Rehearing

Representing Petitioner (Defendant): Kenneth M. Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Public Defender.

Representing Respondent (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dee Morgan, Assistant Attorney General.

Date of Decision: November 23, 2005

Issue: Petitioner raised several constitutional issues, a prosecutorial misconduct issue, and several evidentiary rulings issues in his appeal, Moe v. State, 2005 WY 58. The Court agreed to rehear Petitioner’s argument challenging the trial court’s evidentiary ruling that refused admission of a hearsay statement as a present sense impression. The witness was unavailable at trial.

Holding: The Court reviews evidentiary rulings against an abuse of discretion standard. The Petitioner did not raise the present sense impression exception to the hearsay rule at trial. The Court stated that the Petitioner failed to make a good faith attempt to relate the applicable law to the facts. The Court decided that the statement in question did not meet the requirements of a present sense impression statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter because the statement was made at least thirty-five minutes after the event.

The district court's judgment is affirmed.

J. Voigt dissented with which D.J. Stebner, Retired joins.
The Justice stated that he concurred with the rationale and result of this limited opinion, but continues to dissent for reasons set forth in Moe v. State, 2004 WY 58, ¶ 27, 110 P.3d 1206, 1215 (Wyo. 2004) (Voigt, J. dissenting).

J. Golden delivered the opinion for the court.