Summary 2006 WY 80

Summary of Decision issued June 30, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Murdock v. Zier

Citation: 2006 WY 80

Docket Number: 05-231

Appeal from the District Court of Park County, the Honorable Bruce B. Waters, Judge.

Representing Appellants (Defendants): Thomas P. Keegan of Bormuth Law Associates, L.C., Cody, Wyoming;* Scott Kolpitcke of Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell, Wyoming. Argument by Mr. Kolpitcke.

Representing Appellee (Plaintiff): Matthew D. Winslow of Winslow Law Firm, P.C., Cody, Wyoming; ** Laurence W. Stinson of Bonner Stinson, P.C., Powell, Wyoming. Argument by Mr. Stinson.

* Order Allowing Substitution of Counsel entered January 4, 2006
** Order Allowing Substitution of Counsel entered December 28, 2005

Issue: Whether the district court erred in finding that the offer to purchase the property and the Appellee’s recognition of superior title interrupted any period of adverse possession and negated the necessary elements of intent or claim of right. Whether the burden shifting framework set forth in Hillard v. Marshall abrogates long-established Wyoming law that hostile intent under claim of right or color of title is a required element to prove adverse possession. Whether Rule 408 of the Wyoming Rules of Evidence is applicable to the offer to purchase where there was no actual dispute and there was no claim of right. Whether the Appellee has failed to present a prima facie case, thus entitling the Appellants to summary judgment and a decree of ejectment and writ of possession.

Holding: Zier and Murdocks own adjoining tracts of land. Because of a mistaken property boundary line, Zier is in possession of, and has continuously used, a parcel of land to which the Murdocks possess title. Zier brought an action to quiet title in himself, claiming title through adverse possession. The district court granted summary judgment on Zier’s petition to quiet title. The Murdocks appeal.
When a motion for summary judgment is before the Court, assuming there is a complete record, the Court has the same duty and materials as does the district court and must follow the same standards. Pursuant to W.C.R.P. 56, summary judgment can be granted only when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. Questions of application of the law are considered de novo.
Adverse Possession: Title to land is obtained through adverse possession if possession is “actual, open, notorious, exclusive and continuous for the statutory period, hostile, and under color of title or claim of right.” Possession is hostile when the possessor holds and claims property as his own whether by mistake or willfully. The statutory period in Wyoming is ten years.
The district court found that Zier should prevail on his adverse possession claim for the period running from 1991 to 2004. Zier’s offer to purchase in 1998 did not nullify the years of adverse possession which took place in the instant case. Because of its holding that Zier adversely possessed the disputed parcel from 1991 to 2004, it expressly declined to address Zier’s argument that he be allowed to tack his adverse possession with that of his predecessors in interest. The Court agreed that there was no issue of material fact and Zier was entitled to judgment as a matter of law but arrived at that decision by use of the doctrine of “tacking”. He acquired title by tacking his period of adverse possession with that of his immediate predecessors in interest. The record chain of title to Tract 11 establishes privity between Zier and his predecessors in interest back to 1938. Each owner of the tract put the subsequent owner in actual physical possession of the disputed parcel. The remaining question was whether Zier’s predecessors in interest adversely possessed the disputed parcel. The undisputed testimony establishes that from at least 1982 forward, the successive owners of Tract 11 used the disputed parcel openly, notoriously, exclusively and in a manner plainly indicating that they were acting as owner thereof. It was not permissive use and was done under a claim of right, meeting all requisite elements of adverse possession. Once the elements are met, the possessor is vested with a fully new and distinct title and no judicial action is necessary. Zier’s offer to purchase title to the disputed parcel in 1998 after the mistaken boundary line was discovered had no effect on his vested title. In light of the Court’s determination that title vested in Zier in 1992, the Court did not need to further address the issues raised by the Murdocks.

J. Golden delivered the opinion for the Court.

Affirmed.

Link to the case: http://tinyurl.com/m4jvt .

Summary 2006 WY 79

Summary of Decision issued June 29, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Johnson v. State

Citation: 2006 WY 79

Docket Number: 05-163

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

Representing Appellant (Defendant): Vaughn H. Neubauer, Laramie, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.

Date of Decision: June 29, 2006.

Issue: Whether the district court properly denied Appellant’s motion to suppress.

Holding: Appellant was driving a rental car when he was stopped for speeding. When it was discovered that Appellant was not an authorized driver of the rental car, the car was impounded. An inventory search led to the discovery of narcotics in a duffle bag belonging to Appellant. Appellant filed a motion to suppress which the district court denied. Appellant appeals.
Rulings on the admissibility of evidence are within the sound discretion of the trial court. The Court will not disturb such rulings absent a clear abuse of discretion. Whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law and is reviewed de novo.
Inclusion of Mr. Johnson’s Belongings in the Inventory Search: Searches and seizures are governed by a standard of reasonableness under the circumstances. The Court considered the length of detention and found it was not unreasonable considering the time taken which was necessitated by the fact that Appellant was not authorized to drive the rental car. Time was spent conferring with the rental company as well as explaining policies and processes to Appellant. Reasonable suspicion was not necessary to justify an inventory of the items in the car. Inventory searches are a well recognized exception to the prohibition against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and article 1, § 4 of the Wyoming Constitution. It is reasonable to conduct an inventory before releasing any items from an impounded vehicle. As a result the district court did not err by denying the motion to suppress on this issue.
Closed Container Searches: The Court conducted a state constitutional analysis in the instant case. They found the scope of protection provided by the Wyoming Constitution is the same as and parallel to that provided by the federal constitution. The opening of closed containers during an inventory search is permissible if conducted in good faith, pursuant to a standardized police policy and as long as the search is not a ruse for general rummaging for evidence of a crime. The Court’s precedent has permitted inventory searches and the opening of closed containers during those searches. An inventory search that does not include all of the property within an impounded vehicle undermines the purposes for the inventory. The district court properly denied Appellant’s motion to suppress.

J. Burke delivered the opinion for the court.

Affirmed.

Link to the case: http://tinyurl.com/kcrjb .

Summary 2006 WY 78

Summary of Decision issued June 29, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: LeMarr v. State

Citation: 2006 WY 78

Docket Number: 05-264

Order Affirming the Judgment and Sentence of the District Court

The matter came before the Court upon its own motion following receipt of Appellant’s pro se brief on May 18, 2006. After review of Appellant’s court-appointed appellate counsel’s “Anders brief” and the record of the case, the Court entered its “Order Granting Permission for Court Appointed Counsel to Withdraw and Conditionally Affirming Judgment and Sentence.” Because Appellant failed to raise any meritorious issue in her pro se brief, the Court found that the judgment and sentence in the matter should be affirmed.

C.J. Hill delivered the order for the court.

Link to the case: http://tinyurl.com/k5hsj .

Summary 2006 WY 77

Summary of Decision issued June 29, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Bolin v. State

Citation: 2006 WY 77

Docket Number: 05-129

Appeals from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant (Defendant): Diane E. Courselle, Director DAP; Joseph J. Petrone, Student Director. Argument by Mr. Petrone.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Matthew D. Obrecht, Student Intern. Argument by Mr. Obrecht.

Date of Decision: June 29, 2006.

Issue: Whether plain error occurred when detectives testified to standard department procedure related to the use of a confidential informant to make a controlled buy from a suspected narcotics dealer, and mentioned other illegal narcotics in addition to marijuana. Whether plain error occurred when detective testified concerning the procedure used to ensure that the confidential informant in this case provided the Cheyenne Police Department with reliable information during the controlled buys. Whether the district court erred by allowing appellant to proceed pro se at his sentencing hearing.

Holding: Appellant was convicted by a jury of two counts of delivery of marijuana in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii). He appeals claiming plain error occurred when the district court allowed expert testimony from a police detective concerning what is usually done in drug investigations rather than what was actually done in this investigation and about the confidential informant’s credibility.
Standard of Review: Defense did not object at trial to the expert testimony about which Appellant now complains in his first two issues, so the plain error standard applies. Because of the constitutional implications present when a defendant is forced to appear pro se after refusing, either explicitly or implicitly, to accept the services of appointed counsel, the Court conducts a de novo review.
Plain Error
Expert Testimony Concerning Drug Investigations: The testimony indicated the detectives searched the informant and his vehicle using the same procedure usually used in cases involving attempted drug purchases by a confidential informant. The testimony concerning the searches violated no clear rule of law and Appellant did not show it denied him a substantial right resulting in material prejudice. Testimony regarding general procedures used by law enforcement in conducting drug investigations with confidential informants was relevant. It is relevant when it forms part of the history of the event or serves to enhance the natural development of the facts and its probative value outweighs its prejudicial effect.
Expert Testimony Concerning Reliability of Confidential Informant: After analyzing the detective’s testimony, the Court held that he did not improperly comment on the credibility of the confidential informant, rather he testified that the informant was forthcoming in disclosing his prior conviction and he relied upon that disclosure in deciding to use him as an informant.
Voluntariness of Waiver of Right to Counsel: Appellant requested the appointment of substitute counsel after the district court allowed his court-appointed counsel to withdraw because a conflict had arisen. Appellant requested an attorney outside the public defender’s office. The district court responded stating there was no basis for appointing substitute counsel outside the public defender’s office. The district court gave Appellant a clear choice between appearing with legal representation or appearing pro se. He chose to proceed without counsel without showing good cause for refusing to accept representation by appointed substitute counsel. The Court held the district court did not err in allowing Appellant to proceed without legal representation at the sentencing hearing.

J. Kite delivered the opinion for the court.

Affirmed.

Link to the case: http://tinyurl.com/z28xt .

Summary 2006 WY 76

Summary of Decision issued June 28, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Harris v. State

Citation: 2006 WY 76

Docket Number: 05-29

Appeal from the District Court of Natrona County, the Honorable Scott W. Skavdahl, Judge.

Representing Appellant (Defendant): Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Public Defender; Jessie Hardy, Student Intern. Argument by Mr. Hardy.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General. Argument by Mr. Rehurek.

Date of Decision: June 28, 2006.

Issue: Whether a muzzle-loading black powder rifle is a “firearm” as set forth in Wyo. Stat. Ann. § 6-8-102. Whether the district court erred when it denied Appellant’s motion to dismiss finding that Wyo. Stat. Ann. § 6-8-102 was not constitutionally vague both on its face and as applied to Appellant even though the statute does not define the term firearm. Whether the district court erred by granting the State’s motion in limine which precluded Appellant from presenting evidence regarding his understanding that it was not illegal for him to possess the black powder rifle.

Holding: Appellant was previously convicted of two felonies, aggravated robbery and robbery. Both are violent felonies as defined by Wyo. Stat. Ann. § 6-1-1-4(xii). As a violent felon, he is prohibited from possessing firearms pursuant to Wyo. Stat. Ann. § 6-8-102. Whether a muzzle-loading black powder rifle constitutes a firearm as contemplated by the statute requires statutory interpretation. The Court reviews such questions of law de novo. "Firearm" is not defined in the statute but the Court stated that the term is not a word which required a new or different definition because it is not ambiguous. Appellant’s contention that the Court adopt the definition of firearms as contained in U.S.C. § 921(a) was misguided because Appellant was not charged with violating the federal statute. The Wyoming legislature did not create an exception for a muzzle-loading black powder rifle.
Appellant challenged the above statute as unconstitutionally vague both on its face and as applied. The Court reviewed the challenge de novo. Appellant bears the burden of proof. The Court has previously recognized that placing restrictions upon persons convicted of certain crimes from possessing firearms is a reasonable and legitimate exercise of police power. Appellant did not provide the Court with a situation where the application of the statute was uncertain, much less that the statute is vague in all of its applications, as he is required to do. Appellant failed to show that the statute provided insufficient notice to a person of ordinary intelligence that possession of a black powder rifle by a violent felon was illegal, and that he was the victim of arbitrary and discriminatory enforcement.
Appellant contended he was denied his constitutional right to present a defense when the district court granted the state’s motion in limine to exclude evidence regarding Appellant’s belief that he did not knowingly violate a law. The district court agreed with Appellee and concluded that Appellant’s belief was a mistake of law and not a defense to the general intent crime with which he was charged. The Court found no error in the district court’s decision to grant the motion in limine.

J. Burke delivered the opinion for the court.

Affirmed.

Link to the case: http://tinyurl.com/gtv85 .

Summary 2006 WY 75

Summary of Answers to Certified Questions issued June 28, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Prokop v. Hockhalter; McJunkin and Timber Creek Outfitters

Citation: 2006 WY 75

Docket Number: 05-170

Certified Questions from the United States Court of Appeals for the Tenth Circuit, the Honorable Robert H. Henry, Judge.

Representing Appellant (Plaintiff): Robert J. Prokop, M.D., pro se, Wilber, Nebraska.

Representing Appellees (Defendants): Monty Barnett and James M. Meseck, of White and Steele, Denver, Colorado.

Certified Questions:
(1) Wyo. Stat. Ann. § 23-2-407 provides for licensing outfitters and professional guides. Wyo. Stat. Ann. § 1-3-107(a) requires that actions “arising from an act, error or omission in the rendering of licensed or certified professional or health care services be brought within…two (2) years of the date of the alleged act.” (2) Does this two year statute of limitations apply to actions against licensed outfitters and professional guides? The Wyoming Supreme Court has referred to § 1-3-107 (a) as “the professional malpractice statute,” and stated that “the premise of professional malpractice is usually based in tort.” If the two-year limitation period applies to actions against outfitters and professional guides, does it apply to contract claims as well as tort claims?

Answers to Certified Questions:
(1) The two-year statute of limitations set forth in Wyo. Stat. Ann. § 1-3-107 (a) applies to actions against licensed outfitters and professional guides.
(2) If a cause of action against a licensed outfitter or professional guide arises from an act, error or omission in the rendering of licensed or certified professional services, the two-year statute of limitations set forth in Wyo. Stat. Ann. § 1-3-107 (a) applies regardless of whether the claim is pled in tort or contract.

J. Burke delivered the answers for the court.

Link to the questions: http://tinyurl.com/eu9pb .

Summary 2006 WY 74

Summary of Decision issued June 23, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: In the Interest of ANO: SLB v. JEO

Citation: 2006 WY 74

Docket Number: C-05-13

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

Representing Appellant: Ann M. Rochelle of Shively, Taheri & Rochelle, PC, Casper, Wyoming.

Representing Appellee: John M. Burman, Faculty Director; John D. Chambers, Student Intern; UW Legal Services Program, Laramie, Wyoming. Argument by Mr. Chambers.

Guardian Ad Litem: Jacqueline K. Brown, Casper, Wyoming.

Issue: Whether the district court abused its discretion in applying the Wyoming Supreme Court precedent from In re Parental Rights of SCN, in holding that Appellant failed to meet the threshold requirement of showing that Appellee placed his daughter in the care of another without provision for the child’s support under Wyo. Stat. Ann. § 14-2-309(a)(i). Whether a child in the legal and physical custody of a parent pursuant to a divorce decree and for whom the child support payments are being made by a third party due to the impossibility/inability of the non-custodial parent to earn money, has been “supported” under the above statute. Whether a parent seeking to terminate the parental rights of the other parent for failure to communicate for a period of at least one year and who is complicit in the interference with such communication attempts can prevail under above statute.

Holding: SLB AND JEO were divorced in 1999. The divorce decree awarded SLB sole custody of ANO, ordered JEO to make monthly child support payments and allowed JEO visitation with the child.
When the Court reviews a decision terminating parental rights, they apply the strict scrutiny standard and require clear and convincing evidence. The instant case requires the application of the Court’s standards for interpreting statutory language. They look first to the plain and ordinary meaning of the words to determine if the statute is ambiguous. They endeavor to interpret statutes in accordance with the legislature’s intent. Finally, the Court reviews a district court’s decision concerning the termination of parental rights for abuse of discretion.
Pursuant to Wyo. Stat. Ann. § 14-2-309, parental rights may be terminated if clear and convincing evidence shows: (1) the child has been left in the care of another; (2) without provision for support; and (3) without communication from the absent parent for at least one year. The Court stated that in the context of a divorce and custody order, the child has not been “left in the care of another”. The Court stated that given the fundamental nature of parental rights, § 14-2-309 was not intended as a mechanism to enable a parent who has custody of a child pursuant to a divorce decree to bring about the termination of the non-custodial parent’s parental rights. Because SLB cannot show the child was left in the care of another, it was not necessary for the Court to consider whether provision was made for support of the child.

J. Kite delivered the opinion for the Court.

Affirmed.

Link to the case: http://tinyurl.com/r7rd7.

Summary 2006 WY 73

Summary of Decision issued June 21, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Parker v. State

Citation: 2006 WY 73

Docket Number: 05-275

Order Affirming the Judgment and Sentence of the District Court

Appellant: John David Parker

Appellee: State

The matter came before the Court upon its own motion following notification that Appellant failed to file a pro se brief within the time allotted by the Court. Following a careful review of the record and the brief submitted by Appellant’s court appointed appellate counsel, the Court entered its “Order Granting Permission for Court Appointed Counsel to Withdraw and Conditionally Affirming Judgment and Sentence” on May 2, 2006. Appellant had until June 15, 2006 to raise points that convinced the Court that the captioned appeal was less than wholly frivolous. Appellant has not filed a brief or other pleading within the time allotted, so the Court found that the judgment and sentence in the matter should be affirmed. Further, the matter was remanded to the district court for an entry of an order correcting the restitution provision of the “Judgment, Sentence and Order of Incarceration” to indicate that the Division of Criminal Investigation was the victim in this matter.

Affirmed.

Link to the case: http://tinyurl.com/m6txo.

2006 may be year of the RSS

Cindy Chick in her LawLibTech (blog) RSS tutorial says that "RSS allows you to receive notification of current content without having to visit the web site of interest to determine if it has been updated. This is powerful stuff, since it means that with the right tools you can monitor a large number of sites in a relatively short period of time."

For RSS feeds based on law journal content, see Current Law Journal Content (http://law.wlu.edu/library/CLJC/) , developed by John Doyle, law librarian at the Washington & Lee University School of Law Library. CLJC indexes articles from current law journals (2005 & newer) using RSS feeds. With this free service, you can view tables of contents for law j0urnal issues, keyword search article citations & abstracts, and link from an article citation to the full text in Lexis, Westlaw, BEPress, SSRN and other databases (passwords may be required). The law library has public access Westlaw available.

If you haven't already discovered RSS, it's about time that you give it a try.

How-to: Computer--Turn it off or Hibernate Addendum

Update: Some interesting feedback to this post.

Q. What about wear and tear on the fan when you leave it on?
A. According to the Microsoft Help and Support Center "the hibernate feature saves everything in memory on disk, turns off your monitor and hard disk, and then turns off your computer." The fan will not be on during hibernation.

Suggestion:
Hibernation may be almost as good as shutting down the computer as far as energy consumption is concerned. However, shutting down the computer will enhance system and data stability. A complete shut down is not necessary every day, but it is highly suggested to do so every couple of days to, as Monte Enbysk says, "shake the cobwebs from [the] system."

How-to: Computer -- Turn it off or Hibernate?

For those Microsoft Windows users out there, have you always shut down your computer only to wait through the eternity of letting it boot up fully again the next morning (okay, so 2-5 minutes may not be an eternity, but it sure feels like it)? Have you wondered if it's okay to leave the darn thing on and avoid "the wait"? Are the energy savings worth the shut down and re-boot?

According to Monte Enbysk, an editor for the Microsoft.com network, setting your computer to hibernate saves almost as much energy as shutting it down. (The best way to save energy is by unplugging it, of course, but who wants to mess with the scary cord tangle covered in wheeze-provoking dust and other unknown substances?) Enbysk checked with Energy Star, a product-labeling program sponsered by the U.S. Environmental Protection Agency, and they verified that computer hibernation powers the monitor down to about 5 watts and your PC to about 2 watts (depending on make and model).

To set up the hibernate option, open your Control Panel then choose "power options." The recommended time is usually to set hibernation for 30 minutes.

For more information, and to see several myths about computers and energy de-mystified, see "Do you need to turn off your PC at night?"

Summary 2006 WY 72

Summary of Decision issued June 8, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Custer v. State

Citation: 2006 WY 72

Docket Number: 05-136

Appeals from the District Court of Campbell County, the Honorable John R. Perry, Judge.

Representing Appellant (Defendant): Ken Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel; Suzannah B. Gambell, Student Intern. Argument by Ms. Gambell.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General; Eric A. Johnson, Director, PAP; Jonathan Haidsiak, Student Director; William Foster, Student Intern; Orintha Karns, Student Intern. Argument by Ms. Karns.

Date of Decision: June 8, 2006.

Issue: Whether the officers’ initial contact with appellant amounted to a “seizure” for purposes of Article 1, Section 4 of the Wyoming Constitution. Whether appellant was “seized” for the purposes of the Fourth Amendment before the officers had developed reasonable suspicion.

Holding: Officers were dispatched on a welfare check to investigate a claim that juveniles had stolen one of their parent’s blood pressure medication. The officers questioned a woman and a man at the address who said they were alone in the residence. Several minutes later, another person, Appellant, exited the residence. The officers noted his exit because they had been told there was no one else in the residence and he was carrying a newspaper which he seemed to be trying to conceal. The officers asked Appellant to exit his van. Appellant “dove” down into the passenger side of the vehicle and reached under the seat. The officer attempted to open the driver side door but could not, so he moved to the passenger side and opened the door and removed Appellant from the vehicle. Subsequently, the officers found what appeared to be marijuana and glass pipes located in work gloves wrapped in the newspaper. Appellant was arrested and charged with one count of possession of less than three ounces of marijuana, a third or subsequent offense, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(C) and one count of possession of less than three grams of methamphetamine, a third or subsequent offense, in violation of Wyo. Stat. Ann § 35-7-1031(c)(i)(C). Appellant filed a motion to suppress the evidence resulting from the seizure. The district court held a hearing on his motion and denied it. Appellant subsequently pled guilty on both counts, but reserved his right to appeal the district court’s denial of his motion. Appellant maintains that his acquiescence to the officers’ questions and requests did not amount to valid consent under Article 1, § 4 of the Wyoming Constitution.
The Court defers to the district court’s findings of fact unless they appear clearly erroneous on a motion to suppress evidence. The Court considers the evidence in the light most favorable to the district court’s decision because it is in the best position to assess the witnesses’ credibility. The constitutionality of a particular search or seizure is a question of law which the Court reviews de novo.
State Constitution: Appellant did not properly raise the state constitutional argument in the district court and consequently, the Court declined to consider his argument on appeal.
Fourth Amendment to the United States Constitution: The Fourth Amendment generally recognizes three levels of interaction between a citizen and the police. The consensual encounter, the investigatory or Terry stop and an arrest. In the instant case, the district court concluded that the encounter was consensual until Appellant reached under the seat. Then the officers had reasonable suspicion under Terry to support an investigative detention. The Court judges whether or not a person has been seized by considering the totality of the circumstances. As recognized in Rice, a seizure does not occur simply when a police officer walks up to a person in a public place and asks a question, provided there is no showing of force or indication the person is restrained from leaving.
The initial encounter between the officers and Appellant was consensual and he was not seized under the Fourth Amendment when he was asked to step out of the vehicle. He was seized when he was pulled out of the passenger side of the vehicle but it was justified by reasonable suspicion.

J. Kite delivered the opinion for the court.

Affirmed.

Link to the case: http://tinyurl.com/qpl7f .

Summary 2006 WY 71

Summary of Decision issued June 8, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Monjaras v. State

Citation: 2006 WY 71

Docket Number: 05-147

Appeals from the District Court of Laramie County, the Honorable Dan Spangler, Judge (Retired).

Representing Appellant (Defendant): Ronald G. Pretty, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Director; Jonathan Haidsiak, Student Director; Nathan Wilson, Student Intern of the Prosecution Assistance Program. Argument by Mr. Johnson.

Date of Decision: June 8, 2006.

Issue: Whether the court abused its discretion when it sentenced Appellant to prison.

Holding: Appellant pled guilty to two counts of third-degree sexual assault and was sentenced to concurrent terms of imprisonment of four to five years. He appeals claiming that the district court abused its discretion by imposing a prison sentence instead of probation.
Sentencing decisions are within the broad discretion of the trial court. The Court will not set aside a sentence that is within the statutory limits absent a finding of a clear abuse of discretion. Under the abuse of discretion standard of review, the Court’s core inquiry is the reasonableness of the trial court’s choice.
Appellant primarily presents a global complaint concerning the district court’s failure to provide an explanation for the sentence it imposed. Appellant’s policy argument was supported by personal preference which was insufficient to persuade the Court to alter their longstanding precedent which does not require trial courts to render specific findings in sentencing matters.
The decision not to grant probation is discretionary. The trial court must consider an application for probation and if not granted, include a statement in the written statement expressly acknowledging that it considered the application. The Court reviewed the record and was convinced that the district court considered and rejected the option of placing Appellant on probation.
The Court reviewed the reasonableness of the sentence considering the crime, its attendant circumstances and the character of the defendant. Appellant faced a possible maximum prison sentence of thirty years and received two concurrent four–to-five year sentences. After review, the Court stated that the district court did take into account Appellant’s particular mitigating circumstances, including letters, petitions and statements presented on his behalf. The district court did not abuse its discretion.

J. Golden delivered the opinion for the court.

Affirmed.

Link to the case: http://tinyurl.com/opwol .

Summary 2006 WY 68

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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 pinpoint cite to a quote, you should cite to this paragraph number rather than to any 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: TW v. BM

Citation: 2006 WY 68

Docket Number: C-05-8

Appeal from the District Court of Park County, Honorable Hunter Patrick, Judge

Representing Appellant (Respondent): Gibson Sean Benham of Casper, Wyoming

Representing Appellee (Respondent): Kyle R. Smith of Worrall, Greear & Smith, Worland, Wyoming

Date of Decision: June 1, 2006

Issues: Whether the trial court abused its discretion by ordering modification of custody bases on relocations by Appellant mother is light of her constitutional right to travel.

Holdings: Although Wyo. Stat. § 20-2-204(c) prohibits consideration of pre-divorce evidence when there is a determination of whether there has been a substantial change in circumstances but it does not limit the court's consideration of such information when making a determination of the children's best interest.

Relocation, by itself, cannot be a substantial and material change in circumstances sufficient to justify reopening a custody order. That precept is also applicable to any factors that are derivative of relocation. However, this does not preclude the district court is from considering the effects of relocation on the children so long as there is some other circumstance that is sufficiently deleterious to the welfare of the children that by itself would serve as a substantial and material change in circumstances even in the absence of a relocation. In the present action, the district court did not make any specific written findings that mother's relocations had deleterious effects on son. At the same time, there is nothing in the district court's findings that suggests the district court relied on mother's relocations, standing alone, to justify the change in custody. To the extent that the district court's findings of fact address mother's relocations, the district court found that mother's instability was proven through her testimony regarding the many residential and educational changes regarding son. Thus, it is apparent that the district court focused on the instability such relocations created, not on the relocations themselves.

It would be helpful to review if the district court had provided more detailed findings of fact regarding the substantial change in circumstances but there is nothing in the findings of fact that suggests the district court, as Appellant claims, relied solely on mother's relocations to modify custody. The failure to provide a transcript does not necessarily require dismissal of an appeal, but the review is restricted to those allegations of error not requiring inspection of the transcript. Lacking a transcript, or a substitute for the transcript, the regularity of the trial court's judgment and the competency of the evidence upon which that judgment is based must be presumed. Without a transcript to review, the district court's finding that father established a substantial change in circumstances must be accepted. In addition, there are other findings, independent of Appellant's relocations that support the district court's determination that there was a substantial change in circumstances.

In a one-paragraph argument, Appellant claims it is in the child's best interests that primary physical custody remain with her. She asserts that she is the primary caregiver for son. While acknowledging her multiple relocations, Appellant contends that the relocations have been in an effort to improve her economic condition. She states that she is now able to provide a financially stable environment. She also asserts that custody should not be modified simply because father is inconvenienced in exercising visitation. Appellant's argument depends upon a review of the evidence presented at the district court hearing. Without a transcript from that hearing, the Court is unable to ascertain whether or not Appellant's assertions are accurate. Instead, it must again accept the district court's findings on this issue.

On this record, it cannot be concluded that the district court committed any error in finding a substantial change in circumstances.

Affirmed.

C.J. Hill delivered the opinion for the court.

Summary 2006 WY 70

Summary of Decision issued June 5, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Bradshaw v. Wyoming Dep’t of Transportation Drivers’ license Division

Citation: 2006 WY 70

Docket Number: 05-156

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge.

Representing Appellant (Petitioner): Mike Cornia, Evanston, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Michael L. Hubbard, Deputy Attorney General; Mary Loos, Assistant Attorney General.

Date of Decision: June 5, 2006

Issue: Whether the decision of the hearing officer was supported by substantial evidence and whether it was arbitrary and capricious.

Holding: Appellant appealed the suspension of his drivers’ license for 18 months in accordance with Wyo. Stat. Ann. § 31-6-102 which occurred because of his refusal to submit to a breath test after he twice failed field sobriety tests. The OAH held a contested case hearing and upon consideration of the evidence, the hearing officer issued an order in which he concluded the preponderance of the evidence established the elements necessary to uphold an implied consent suspension. Appellant sought review and the district court affirmed.
The Court affords no special deference to district court decisions when reviewing matters initiated before an administrative agency. When both parties present evidence at an administrative hearing, the Court reviews the entire record to determine if the agency findings are supported by substantial evidence.
The order contained findings of fact pertinent to the issue of probable cause: Deputy observed Appellant’s pickup truck stuck in a snow bank; Deputy observed Appellant walked with a staggering gait, slurred his words and smelled of alcohol; Appellant admitted he had consumed 4 to 5 shots of whiskey and some beer; Appellant agreed to field sobriety tests; after being advised of implied consent law, Appellant refused breath test. The order contained a conclusion relevant to the issue of probable cause that WYDOT had established by a preponderance of the evidence all elements necessary to uphold an implied consent suspension. The Deputy submitted a signed statement containing his probable cause to believe Appellant was driving or in actual physical control of a motor vehicle while under the influence of alcohol. A license suspension is civil in nature and the standard of preponderance of the evidence applies. Probable cause exists when, under the totality of the circumstances, a prudent, reasonable, and cautious peace officer would be led to believe that a crime has been or is being committed and the individual arrested is the perpetrator. Although the order does not contain the words “probable cause”, it does set forth findings of fact sufficient to establish that probable cause existed. Evidence was presented of the Deputy’s experience and training in the administration of field sobriety tests and the administration of the field sobriety tests in this instance. Applying Smith and Griffin, the evidence was sufficient to show the Deputy was qualified to administer the field tests. The Court concluded that substantial evidence supported the hearing officer’s conclusion that the preponderance of the evidence established all elements necessary to uphold an implied consent suspension, including the element of probable cause.

The Court affirmed.

J. Kite delivered the opinion for the court.

Link to the case: http://tinyurl.com/o4nrx .

Summary 2006 WY 69

Summary of Decision issued June 2, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

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

Case Name: Reidy and Reidy v. Stratton Sheep Company

Citation: 2006 WY 69

Docket Number: 05-194

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

Representing Appellants (Petitioners): Kermit C. Brown of Brown & Hiser, LLC, Laramie, Wyoming.

Representing Appellee (Respondent): Catherine MacPherson of MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming.

Date of Decision: June 2, 2006.

Issue: Whether access is necessary because Stratton has no legally enforceable access. Whether USFS 807 is a public road such that, under W.S. § 24-9-101(a), respondent Stratton has an outlet to or connection with a public road. Whether the southern portion of Tract 49 is “surrounded on all sides by land owned by another person or persons or a natural or man-made barrier making access unreasonably costly.” Whether Stratton has satisfied the requirements of Wyo. Stat. Ann. § 24-9-101. Whether the road established by Carbon County Board of Commissioners in its Findings of Fact, Conclusions of Law and Order was necessitated by the requirement Wyo. Stat. Ann. § 24-9-101 that the viewers and appraisers recommend “the most reasonable and convenient route.”

Holding: The Reidys own a dude ranch in Carbon County along the Wyoming-Colorado border. Stratton owns a 160-acre parcel known as Tract 149 adjacent to the Reidys’ property. The Reidys and their predecessors allowed Stratton to travel the road over their private property to access the southern boundary of Tract 49. The Reidys revoked permission in 1997 due to Stratton’s proposal to use semi-trucks to transport cattle through the dude ranch. Pursuant to § 24-9-101, et seq., the board held a hearing to determine whether Tract 49 was landlocked and a private road over the Reidy’s property was necessary. The board concluded that Stratton had successfully established the private road was a necessity and appointed viewers and appraisers to locate the road and determine the amount of compensation due to the Reidys. The Reidys filed a petition for review and the district court affirmed the board’s decision. Both parties presented evidence so the Court reviewed the factual determinations of the board by applying the substantial evidence test. However, no deference was given to the board’s conclusions of law.
Public Road: Section 24-9-101, et. seq., sets out the procedure for obtaining a private road and provides the sole remedy for land-locked landowners. The threshold inquiry for establishment of a private road under this section is necessity. The board did not expressly rule whether FS 807 was a public road, but its findings and conclusions implied it did not consider FS 807 to be a public road. The record contains voluminous testimony and documentary evidence presented at the contested case hearing concerning the characteristics of FS 807. Stratton argued that the road was not a “public road” within the statute’s meaning because there was testimony that the road could be restricted or closed and that use of the road was a privilege and not a right. The Court held, as a matter of law, the fact that a road can potentially be restricted or closed is not determinative of the issue of whether it is a public road. Further the Court held as a matter of law that a road over federal lands may be considered a public road within the meaning of Wyoming private road statutes, provided the characteristics of the road indicate it is available to the general public. The Court found no evidence contraindicating the assertion that FS 807 was available for use by the general public. In determining FS 807 could not be considered a public road under the case law, the board misinterpreted the Court’s precedent. The Court held as a matter of law, roads over federal lands may be considered public roads under Wyoming private road statutes. The individual characteristics of each road would determine its status. The Court concluded that the board erred when it failed to recognize FS 807 as a public road and ruled that Stratton had proven necessity because its access via FS 807 was not “legally enforceable.”
Convenience: The convenience factor must be applied judiciously. The Court stated that interpreting the statute to allow a finding of necessity when an applicant is seriously inconvenienced by an alternative route serves the purposes of the private road statute. Substantial inconvenience can include the consideration of whether or not the road is plowed in the winter, the total distance of the two routes and the suitability of the road for the proposed traffic. Wagstaff illustrates the high level of inconvenience which must be shown to justify a taking of a neighbor’s land for a private road. The Court reviewed the record and concluded that the instant case did not demonstrate the high level of inconvenience required to establish necessity. The board’s conclusion to the contrary was legally incorrect.

The Court reversed and remanded to the district court directing the district court to enter an order reversing the order of the board and directing the board to deny the Stratton application for a private road.

J. Kite delivered the opinion for the court.

Link to the case: http://tinyurl.com/sxgfj .