Friday, March 31, 2006

Summary 2006 WY 39

Summary of Decision issued March 31, 2006

[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: Doherty v. State

Citation: 2006 WY 39

Docket Number: 05-24

Appeal from the District Court of Natrona County, Honorable W. Thomas Sullins, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Marion Yoder, Senior Assistant Public Defender.

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

Date of Decision: March 31, 2006

Issue: Whether the jury was properly instructed as to the elements of the crime of felony possession of methamphetamine and was the evidence sufficient to show Appellant intentionally and actually possessed methamphetamine. Whether the prosecutor committed misconduct during closing argument. Whether the district court abused its discretion when it denied Appellant’s motion for new trial. Whether Appellant received a fair sentencing hearing.

Holding: Sufficiency of the Evidence: Sufficiency of the evidence is reviewed according to whether a rational trier of fact could have found the essential elements of the crime were proven beyond a reasonable doubt. Three jury instructions and the verdict form were relevant to Appellant’s claim of error. Appellant did not object at trial to the instructions or the verdict form. The Court reviewed the record and found sufficient evidence from which the jury could have found beyond a reasonable doubt that Appellant possessed a controlled substance as charged. Methamphetamine was discovered inches away from Appellant after he made several unusual movements with his leg. The baggie containing the methamphetamine was warm to the touch. Appellant was under arrest and was aware he would be taken to jail giving him motive to dispose of the substance. Reasonable inferences from this evidence support the jury’s verdict.
Prosecutorial misconduct: Appellant claimed error occurred during closing arguments because the State: argued facts not in evidence; implied Appellant was a liar; misstated the law and impermissibly shifted the burden to Appellant to prove his innocence; and improperly testified to an ultimate fact. Appellant did not object to State’s closing argument at trial. A failure to impose a timely objection is treated as a waiver unless the prosecutor’s misconduct is so flagrant as to constitute plain error. The propriety of closing arguments are measured in the context of the entire argument and compared with the evidence produced at trial. The Court reviewed the prosecution’s closing argument and defense counsel’s efforts to utilize comments to benefit Appellant and was unable to find any prejudice to him and rejected his claim of plain error. The Court also rejected Appellant’s remaining allegations of prosecutorial misconduct because Appellant failed to properly cite to the record to enable the Court to identify the offending prosecutorial statements.
Motion for new trial: Decisions to grant or deny a motion for a new trial are reviewed under the abuse of discretion standard. During the hearing on the motion for a new trial, the district court determined that no prejudice resulted from the State’s question. The district court had instructed the jury to disregard any evidence that was ordered to be stricken. The Court presumed the jury followed the instructions. The trial judge was satisfied that no prejudice resulted and the Court did not second guess that determination on appeal.
Sentencing hearing: Sentencing decisions are reviewed under the abuse of discretion standard. The Court determined that Appellant was not deprived of a fair sentencing. The district court agreed to consider Appellant’s point of view regarding the comments in the PSI concerning the ASI. Appellant did not demonstrate that the district court based its decision upon that portion of the report to which he objected. Appellant failed to demonstrate that the PSI writer’s criticism of the ASI assessment impacted the sentencing decision. Appellant failed to demonstrate that the prosecutor’s comments amounted to manifest injustice. The district court is permitted to consider a defendant’s criminal background and his character when exercising its discretion in imposing a sentence. The district court did not ultimately accept the prosecutor’s recommended sentence of a lengthy prison sentence.

The decree of the district court was affirmed.

J. Burke delivered the opinion for the court.

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

Wednesday, March 29, 2006

Shrink to Fit for Webpages, or How to Avoid the Right Margin Cutoff

The Wisconsin State Law Library sends out a monthly online newsletter with some great techie tips (in addition to lots of other good--but mostly Wisconsin-related--legal research information). Heidi Yelk wrote a particularly helpful tip for their April 2006 newsletter (http://wsll.state.wi.us/newsletter/0604.html) and has kindly given me permmission to re-post it for you all.



Tech Tip in Brief -- Heidi Yelk
Shrink to Fit for Webpages, or How to Avoid the Right Margin Cutoff

Q: Printing from webpages should be easy, but lately I’ve been struggling with a problem I call, for lack of a better term, the right margin cutoff. This occurs when the page I am viewing looks normal on the screen, but when I print it, the last few characters of each line are missing, leaving incomplete words and phrases all the way down the right side of the page. Wasted paper and frustration ensue, usually in proportion to the size of the document. What can be done?

A: The most obvious solution is to comb the webpage for a “printer friendly” or “print this page” link. Many news outlets offer this option. It formats the text to fit an 8 1/2 x 11 page while also stripping away the banner ads and other unrelated content. But not all webpages have this feature.

Your next option might be to copy and paste the text from the webpage into a word processing program. And yet another option is to change the page setup to print using landscape, rather than portrait, orientation. But these last two solutions are really just workarounds that leave something to be desired.

There is something easier: “Shrink to Fit” for webpages. Several “alternative” web browsers, including Firefox and Netscape, currently offer this feature. As the name implies, text on webpages is scaled to fit the 8 1/2 x 11 page, completely eliminating the right margin cutoff. By accessing the “print preview” option in Firefox, users can easily control printing options and ensure that no text will be cut off the page.

This is an easy solution to a pesky problem, but it’s not yet available to the vast majority who use Internet Explorer. The good news is that the next version of IE (IE7) is currently in beta testing for Windows XP systems, and it will include Shrink to Fit printing as well as many other changes, presumably spurred by the success of Firefox.

Tuesday, March 28, 2006

Presentation Zen

The "Katie and Meg Road Show" is scheduled to be released in May on unsuspecting lawyers and librarians in Wyoming. Good presenters that we are, we've been researching how best to share our information. And, knowing that you must present too, we'd like to recommend Garr Reynolds' Presentation Zen blog for lots of great suggestions about how to deal with hecklers, PowerPoint prep and how/where to find quotes and great pictures. http://presentationzen.blogs.com/

Monday, March 27, 2006

Summary 2006 WY 38

Summary of Decision issued March 27, 2006

[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: Hoke v. Motel 6 Jackson and Accor North America, Inc.

Citation: 2006 WY 38

Docket Number: 05-132

Appeal from the District Court of Teton County, Honorable Nancy J. Guthrie, Judge

Representing Appellant (Plaintiff): William R. Fix and Jenna V. Mandraccia of William R. Fix, PC, Jackson, Wyoming. Argument by Mr. Fix.

Representing Appellees (Defendants): James K. Lubing and Carter H. Wilkinson of James K. Lubing Law Office, Jackson, Wyoming. Argument by Mr. Lubing.

Date of Decision: March 27, 2006

Issues: Whether dismissal of Appellant’s cause of action and the setting aside of the default judgment against Appellees were proper where appellee Motel 6 was not properly served within the required statutory time period. Whether the dismissal of Appellant’s cause of action against Appellee Accor was proper where Accor was not served within the required statutory time period. Whether the dismissals with prejudice of Appellant’s causes of actions against Appellees’ Motel 6 and Accor were proper.

Holdings: A determination of the applicability of procedural rules and statutes including the statute of limitations, are questions of law and are reviewed de novo.
Appellant’s service to Motel 6: The summons filed by Appellant on Motel 6 was not signed by the Clerk of the Court or sealed by the Court as required by W.R.C.P. 4(b) and no complaint was attached to the summons. Motel 6 did not timely file its answer and default was entered. The district court entered a default judgment against Motel 6. The district court set aside the entry of default and default judgment against Motel 6 and dismissed Appellant’s claims against it because the summons did not comply with the requirements of W.R.C.P. 4(b). Any omissions of statements that are required under W.R.C.P. 4 are fatal and such omission prevents the trial court from obtaining jurisdiction of the defendant. At the hearing on the motions to set aside the default judgment and dismiss filed by Motel 6, Appellant acknowledged that the summons was defective and not in compliance and that the default judgment should be vacated. Appellant argued that despite the defective summons, Motel 6 chose to wait until after the time period set forth in W.R.C.P. 3(b) lapsed before challenging the summons. However, Appellant did not make this argument before the district court and on appeal it was not supported with citation or analysis of pertinent legal authority. With the exception of certain jurisdictional and fundamental issues, the Court does not consider arguments made for the first time on appeal, nor do they consider arguments not supported by citation to relevant legal authority.
Appellant’s service to Accor: The summons complied with the requirements of Rule 4(b), but Appellant was unable to effectuate service, so she filed a motion to enlarge the time for service of process pursuant to Rule 6(b). The district court granted that motion. The district court then granted Accor’s motion to dismiss based on the reasoning that Rule 6(b)(2) does not allow the Court to enlarge the sixty-day period set forth in W.R.C.P. Rule 3(b). The Court stated that the district court was correct to give effect to Rule 3(b) and to dismiss the suit against Accor because it was commenced outside the statute of limitations period. Appellant made an alternative argument that even if dismissal of her claims was proper the district court erred in doing so with prejudice predicated on the applicability of Wyo. Stat. Ann. § 1-3-118. The summons on Motel 6 was void and not just voidable. The action against Motel 6 was not commenced within the statute of limitations period and the saving statute is not applicable. Accordingly, the district court’s dismissal with prejudice was proper. Service upon Accor complied in all respects with the requirements of Rule 4. However it was accomplished 114 days after the filing of the complaint. Pursuant to Rule 3(b), when service is effectuated more than 60 days after the filing of the complaint, the action is deemed to have commenced on the date of service. Since the action against Accor was commenced after the expiration of the statute of limitations, it had not “commenced in due time” as required by the saving statute at Wyo. Stat. Ann. § 1-3-118.

The order of the district court dismissing Appellant’s claims against Appellees Motel 6 and Accor with prejudice was affirmed.

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

Link to case: http://tinyurl.com/kejd2 .

Friday, March 24, 2006

Summary 2006 WY 37

Summary of Decision issued March 24, 2006

[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: Reed v. Cloninger; Sheppard; Cox and Fisher, Inc.; Jones; Parker; Parker and Shoshone Irrigation District

Citation: 2006 WY 37

Docket Number: 05-74

Appeal from the District Court of Park County, the Honorable Norman E. Young, Judge

Representing Appellants (Plaintiffs): Timothy M. Stubson of Brown, Drew & Massey, LLP, Casper, Wyoming.

Representing Appellees (Defendants): S. Joseph Darrah of Darrah, Darrah & Brown, PC, Powell, Wyoming for Appellees Cloninger and Sheppard, Co-trustees of the Carl M. Burgener Family Living Trust Fund; S.B. Freeman III of Bormuth & Freeman, LC, Cody, Wyoming, for Appellee Cox and Fisher, Inc.; Patrick J. Murphy and Jakob Z. Norman of Williams, Porter, Day & Neville, PC, Casper, Wyoming, for Appellee Jones; David B. Hooper of Hooper Law Offices, PC, Riverton, Wyoming, for Appellees Melvin C. and Janet L. Parker; and Michelle A. Pinkowski and Robert G. Busch of Godfrey and Lapuyade, PC, Englewood, Colorado, and Harriet M. Hageman of Hageman & Brighton of Cheyenne, Wyoming, for Appellee Shoshone Irrigation District. Arguments presented by Ms. Pinkowski and Messrs. Hooper and Freeman.

Date of Decision: March 24, 2006

Issue: Whether the district court erred in ruling that Appellants’ claims were time barred and finding that they had discovered their cause of action when they knew of water damage to their home, but did not have any knowledge of continuing seepage into their basement. Whether the district court erred by failing to recognize the continuing duty of Appellees and by refusing to hold that each new incident of water seeping into the property constituted a new cause of action for statute of limitations purposes.

Holding: When the Court reviews a summary judgment, they have before them the same materials as did the district court. The granting of a motion for summary judgment depends upon the dual finding that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. The record is examined from the vantage point most favorable to the party who opposed the motion, affording to that party the benefit of all favorable inferences that fairly may be drawn from the record.
The Court concluded that the district court erred in granting summary judgment because there were many genuine issues of material fact to be determined before the case could be finally resolved. These included: the identity of the source of the water which seeps into Appellants’ basement and the date of discovery. The record suggested the water could have come from leakage or seepage of water being delivered for irrigation from the irrigation works; waste water being collected and/or diverted by the irrigation mechanisms after irrigation; and a rise in the water table caused by the practice of irrigation. If the evidence indicates water invades the home as a result of a leakage or seepage from the Appellees’ irrigation system or their attempts to recapture or divert waste water, Appellants will be required to prove negligence in order to recover. If the evidence reveals that the original design is at fault, then there will be a question of fact as to when the cause of action was discovered. The discovery rule can have the effect of delaying the accrual of the cause of action in which the injury or damage is not immediately apparent. Appellants further claim a new trespass occurs each year during the irrigation season possibly constituting a continuing trespass or continuing tort.

The Court stated these numerous issues of material fact must be resolved before the appropriate statute of limitations may be applied. The order of the district court was reversed and remanded.

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

Link to the case: http://tinyurl.com/rozm9 .

Wednesday, March 22, 2006

Statutes at Large now available on GPO Access

The United States Statutes at Large (Volume 117, 108th Congress) is now available online from the U.S. Government Printing Office, with future volumes to follow as they become available. The Statutes at Large is the permanent collection of all laws and resolutions enacted during each session of Congress. Documents are available as ASCII text and Adobe Portable Document Format (PDF) files.

http://www.gpoaccess.gov/statutes/index.html

Summary 2006 WY 36

Summary of Decision issued March 22, 2006

[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: Knapp v. Landex Corp.

Citation: 2006 WY 36

Docket Number: 05-154

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

Representing Appellant (Defendant): Kenneth DeCock, Plains Law Offices, LLP, Gillette, Wyoming.

Representing Appellee (Plaintiff): Tonia Hanson, Omohundro Law Office, Buffalo, Wyoming.

Date of Decision: March 22, 2006

Issue: Whether the district court erred in granting summary judgment in favor of Appellee.

Holding: Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The Court examines the record de novo, in the light most favorable to the party opposing the motion, affording the benefit of all favorable inferences to be drawn from the record.
The notice sent by Appellee to Appellant was not attached as an exhibit to Appellant’s answer or counterclaim and no other foundation was provided for the notice, so the Court could not properly consider its contents. The Court considered the pleadings, answers to interrogatories, and admissions on file, together with the affidavit filed by Appellee, to determine whether summary judgment was proper.
Appellee as the moving party was required to establish the absence of a genuine issue of material fact regarding the notice of default and the time provided to Appellant to cure the default. Appellee failed to meet that burden. Although its claim for relief depended on the contents of the notice, and it repeatedly referred to the notice, Appellee failed to provide a copy of the notice in support of its motion. In granting summary judgment, the district court did not directly address whether a genuine issue of material fact existed regarding the time provided to Appellant to cure the default. The district court held that the alleged May 21, 2003 extension of time to cure was void because it was not supported by consideration. The district court erred in reaching such a conclusion. The issue presented regarding the time to cure was whether Appellee waived its contractual right to hold Appellant in default on May 19, 2003, by the language it utilized in the April 17, 2003, notice.

The decree of the district court was reversed and remanded.

J. Burke delivered the opinion for the court.

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

Summary 2006 WY 35

Summary of Decision issued March 22, 2006

[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: Qwest Corp. v. State, Dep’t of Revenue

Citation: 2006 WY 35

Docket Number: 05-7

W.R.A.P. 12.09(b) Certification from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge

Representing Appellant (Petitioner): Ryan Schwartz and John E. Masters, Hathaway & Kunz, PC, Cheyenne, Wyoming; Larry H. McMillin, Qwest Services Corporation, Denver, Colorado; Robert R. Gunning and Neil I. Pomerantz, Silverstein & Pomeranz, LLP, Denver, Colorado.

Representing Appellee (Respondent): Patrick J. Crank, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Martin Hardsocg, Senior Assistant Attorney General; Catherine D. Parker, Assistant Attorney General.

Date of Decision: March 22, 2006

Issue: Whether the State Board correctly concluded that the “end User Common Line Charge” paid by Wyoming consumers to Qwest for local telephone service was subject to sales tax pursuant to Wyo. Stat. Ann. § 39-15-103(a)(i)(C). Whether the State Board properly concluded that Wyo. Stat. Ann. § 39-15-110(b) did not operate as a bar on the portion of the assessment from July 1997 through May 2000. Whether the State Board violated its own rules when it failed to recite the Department’s burden of proof.

Holding: This matter relates to the sales and use tax assessed against Qwest resulting from an audit for the period of July 1, 1997 through December 31, 2001. When reviewing cases certified pursuant to W.R.A.P. 12.09(b), the Court applies the appellate standards which are applicable to the court of the first instance. The Court affirms an agency’s conclusions of law when they are in accordance with the law. The paramount issue in this case is whether the EUCL charge is subject to taxation under Wyoming law. This determination involves the interpretation of Wyoming’s tax imposition statute and the Department’s rules which are reviewed de novo. The Court generally defers to the construction placed on a statute by the agency charged with its execution provided the agency’s construction does not conflict with the legislature’s intent. Tax statutes are to be construed in favor of the taxpayer. Taxes may not be imposed by any means other than a clear, definite and unambiguous statement of legislative authority.
The EUCL charge compensates Qwest for providing long distance access to Wyoming customers. As such, it is not a charge for interstate telephone services as contemplated by Wyo. Stat. Ann. § 39-15-103(a)(i)(C) and the Department’s Rules and Regulations. Because the statute does not clearly, definitely, and unambiguously tax the EUCL charge, the Court construed the statute in favor of the tax payer and found that the access service is not properly taxable. Having reached that result, the Court did not need to consider the parties’ remaining contentions.

Reversed.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/fx2h2 .

Summary 2006 WY 34

Summary of Decision issued March 22, 2006

[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: Thomas v. State

Citation: 2006 WY 34

Docket Number: 04-264

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

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Director, PAP; Jonathon Haidsiak, Student Director PAP; Timothy J. Forwood, Student Intern. Argument by Mr. Haidsiak.

Date of Decision: March 22, 2006

Issue: Whether the trial court erred in concluding that a mistrial was not the appropriate remedy for the State’s late disclosure of a cassette tape and a vehicle. Whether appellant demonstrated plain error occurred in connection with the prosecutor’s references to battered woman syndrome during closing argument. Whether appellant demonstrated plain error occurred in connection with the admission of evidence designed to show the extent of the victim’s injuries. Whether the district court abused its discretion in authorizing the introduction of 404(b) evidence or in denying appellant’s motion for a mistrial when the testimony briefly went beyond the scope of the pretrial order. Whether cumulative error requires reversal.

Holding: The Court reviews claims of error in the denial of a motion for mistrial and improper admission of Rule 404(b) evidence for abuse of discretion. The Court first reviewed whether the evidence the State withheld was material and whether the failure to disclose affected the outcome of the trial. A claim of failure to disclose evidence is reviewed de novo. Defense did not object to the State’s use of battered woman’s syndrome and victim impact testimony. Therefore, the Court reviews the claims of error on those issues for plain error.
Denial of motion to dismiss or for mistrial based upon State’s alleged discovery violations: To establish a Brady violation, a defendant must demonstrate the prosecution suppressed evidence, the evidence was favorable to the defendant, and the evidence was material. The essence of Brady is the discovery of information after the trial, which was known to the prosecution but unknown to the defense during trial. Appellant failed to show that the State’s late disclosure violated Brady or his due process rights. The evidence was disclosed and made available during trial.
The State’s use of battered woman’s syndrome: The Court carefully reviewed the record presented in the case and found no plain error in the district court’s decision to allow testimony and the State’s argument concerning battered woman’s syndrome. The testimony concerned behaviors of victims of abuse and did not address the characteristics or behaviors of perpetrators of abuse. It was a permissible use of battered woman’s syndrome evidence.
Victim impact testimony: Generally, the victim impact statements concerned the victim’s injuries and therefore were properly allowed. Most of the testimony about which appellant claims plain error was relevant and admissible to prove the element beyond a reasonable doubt that Appellant inflicted “serious bodily injury”. Other portions of the quoted testimony may not have been relevant, but the Court was not persuaded that it affected Appellant’s substantial right.
W.R.E.404(b) evidence: At a pre-trial hearing the district court ruled the evidence of prior violence between Appellant and the victim was admissible as a result of the court’s application of the four-part test set forth in Vigil v. State. The district court concluded that (1) the evidence was offered for a proper purpose (2) the evidence was relevant (3) the probative value of the evidence outweighed its potential for unfair prejudice and (4) a limiting instruction should be given telling the jury to consider the evidence of prior violence only for the purpose for which it was submitted. The Court found the district court had appropriately considered the factors required in ruling the evidence was admissible.
Cumulative error: Having concluded there was no error requiring reversal, the Court likewise concluded no cumulative error occurred.

The decree of the district court was affirmed.

J. Kite delivered the opinion for the court.

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

Summary 2006 WY 33

Summary of Decision issued March 22, 2006

[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: Parrish v. Groathouse Construction, Inc. and Advanced Wall Systems, and Simpson Electric Inc.

Citation: 2006 WY 33

Docket Number: 05-141

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge

Representing Appellants (Plaintiffs): Peter S. Dusbabek and Cara J. Stegemann, Fort Collins, Colorado

Representing Appellee Advanced Wall Systems: Peter K. Michael, Cheyenne, Wyoming.

Representing Appellee Groathouse Construction, Inc.: L. Kathleen Chaney and John W. Fairless, Denver, Colorado

Date of Decision: March 22, 2006

Issue: Whether the trial court erred in determining that Groathouse Construction, Inc. (Groathouse) did not have a non-delegable duty for the safety of workers on the job site and in refusing to instruct the jury on Appellant’s tendered instruction regarding the non-assumption of the risk of the work site by workers based on this court’s holding in Jones v. Chevron USA, Inc. Whether the trial court erred by refusing to instruct the jury on the applicable OSHA regulations in Appellant’s tendered instruction submitted on that point. Whether the trial court erred by refusing to instruct the jury on Appellant’s tendered instruction based on W.S. § 27-1-102 providing that “proper and substantial handrails shall be provided on all stairwells in…buildings where people are employed….” Whether the trial court erred in giving Instruction #7 regarding the responsibility of Groathouse which instruction did not follow the Wyoming Civil Pattern Jury Instructions in the Civil Jury Instruction Guideline section 8.07. Whether the trial court erred by allowing Groathouse and Advanced Wall Systems to examine Donald Jones, masonry contractor, to testify beyond the scope of his endorsement.

Holding: The Court combined issues 1 through 4 for the purpose of discussion since all alleged error in the instruction of the jurors. The Court reviewed whether the instructions taken as a whole adequately and clearly advised the jury of the applicable law. The trial court’s ruling on an instruction will not constitute reversible error absent a showing of prejudice, and prejudice will not be said to result unless it is demonstrated that the instruction confused or misled the jury with respect to the proper principles of law. The burden is on the Appellant to show prejudicial error.
Assumption of the risk: Wyoming has adopted a comparative fault statute which effectively abolished the legal doctrine of assumption of the risk in favor of a scheme under which everyone has a duty to exercise ordinary care. The instruction tendered suggested that Appellant had no duty to exercise ordinary care and therefore no fault could be attributed to him which is a misstatement of Wyoming law. The tendered instruction was incorrect as a matter of law and was inconsistent with other jury instructions accepted by Appellants and submitted to the jury.
OSHA regulations: Trial counsel did not object to the trial court’s refusal of Jury Instruction No. 5. Because no objection was lodged, the trial court’s action is not properly preserved for appellate review.
Wyo. Stat. Ann. § 27-1-102: No cogent argument was presented regarding how the statute applies to Appellant’s case. No legal authority was cited. The Court would not entertain such a perfunctory argument.
Jury Instruction No. 7: Instruction No. 7 informed the jury that Groathouse, Simpson and Advanced were all responsible for their own percentage of fault, if any. Appellant’s argument did not change his percentage of fault. As long as Appellant’s fault remained greater than fifty percent, he was not entitled to recovery under Wyoming’s comparative fault statute.
Testimony of Donald Jones: Rulings on the admissibility of evidence are within the sound discretion of the trial court and will not be disturbed absent a showing of a clear abuse of discretion. Appellants did not give any indication of the factual content and import of the testimony in the context of the entire action or even in the isolated context of the testimony as a whole. Appellant failed to carry their appellate burden of demonstrating an abuse of discretion on the part of the trial court.

The decree of the district court was affirmed.

J. Golden delivered the opinion for the court.

Link not available at this time.

Tuesday, March 21, 2006

Summary 2006 WY 32

[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: Hopson v. State

Citation: 2006 WY 32

Docket Number: 05-78

Appeal from the District Court of Laramie County, Honorable E. James Burke, Judge

Representing Appellant (Defendant): Megan L. Hayes, Laramie, Wyoming

Representing Appellee (Respondents/Defendant/Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.

Date of Decision: March 21, 2006

Issues: Whether Appellant was denied his Fifth and Fourteenth Amendment rights when he proceeded to trial and testified in his own defense and the state attempted to use that testimony against him during the habitual offender phase of his trial. Whether the district court erred when it denied Appellant’s motion to dismiss the criminal charge as it had been alleged in the Information. Whether Appellant was deprived of his due process right to a fair trial due to prosecutorial misconduct.

Holdings: Appellant claims that the State violated his right to testify in his own defense when it attempted to use his trial testimony against him during the habitual offender phase of his trial. He further argues that the State denied him due process and a fair trial because if he was convicted as an habitual offender with three prior felonies, he faced life imprisonment. Appellant claims that he would have pled guilty to the aggravated assault charge and the habitual offender status with two prior felonies if the Information had not included a federal firearm offense that was later dismissed. If he had pled guilty, Appellant argues, the district court would not have heard the officers’ testimony and, therefore, he would have received a more lenient sentence. However, to the extent Appellant’s testimony was used during the habitual offender phase of the trial, it was used by the prosecutor to argue that the federal firearms convictions arose out of a separate occurrence and should be considered by the jury as a third offense in determining his status as an habitual offender. The argument was made out side of the jury’s presence and was offered as a response to Appellant’s W.R.Cr.P. 29(a) motion for acquittal on the habitual offender charge. Appellant’s belief that his rights were violated inexplicably ignores the fact that the district court ruled in his favor and reduced his habitual offender status to two prior felonies. In other words, Appellant won the very argument he now brings on appeal.

Appellant next argues that his rights to due process and a fair trial were violated because he was given “no meaningful alternative” other than proceeding to trial. Appellant’s argument seems to follow this logic: (1) Appellant faced an aggravated assault with a deadly weapon charge and a possible sentence enhancement as an habitual criminal with three prior felonies; (2) if convicted of both the aggravated assault and the habitual criminal status as contained in the Information, he faced a mandatory life sentence; (3) had he been charged as an habitual offender with only two prior felonies and convicted, he faced a sentence of ten to fifty years’ incarceration; (4) had he been charged as an habitual offender with two prior felonies, he would have pled guilty to the aggravated assault and the habitual offender sentence enhancement; (5) because he was charged with three prior felonies, he proceeded to trial hoping to be found innocent and avoid a mandatory life sentence; and (6) because he elected to go to trial, the judge heard testimony from the officers at whom Appellant fired the shotgun, which testimony the district court relied on in imposing a “severe” sentence. It is generally recognized that sentence imposition involves consideration of two broad categories: (1) the crime and its circumstances, and (2) the character of the criminal. The testimony that Appellant claims was prejudicial to him clearly falls within the first category. The sentencing court necessarily considered the officers’ testimony, which testimony was uncontested and clearly relevant to determining the nature of the crime and its circumstances. Moreover, if Appellant’s case had not proceeded to trial, the district court inevitably would have been informed of the circumstances surrounding the crime through the pre-sentence investigation report, Appellant’s factual basis for his guilty plea, and the officers’ testimony at sentencing in the form of victim impact statements. Because the district court would have been informed of the nature and circumstances of the crime, there can be no prejudice that resulted from the officers’ trial testimony. Additionally, Appellant’s conclusion that his sentence would have been more favorable absent the officers’ testimony is purely speculative and ignores the fact that the sentencing court considered a variety of factors in determining the sentence and merely mentioned that “the serious nature of the incident” was one consideration in reaching its ultimate decision. Finally, Appellant’s argument ignores the fact that the bifurcated trial process allowed him to contest his status as an habitual offender independent of the adjudication of his guilt for the substantive offense. If Appellant believed himself innocent of the habitual offender charge as contained in the Information, he could have – and did – contest that charge during the habitual offender phase of his trial. His choice to exercise or forego his right to trial during the guilt phase was independent of his choice to contest his habitual offender status. Thus, Appellant has not proven that he was prejudiced and, therefore, has failed to demonstrate plain error.

Appellant next argues that the district court’s denial of his pretrial motion to dismiss the habitual offender charge was in error. Appellant couched his pretrial motion both in terms of a motion to dismiss the habitual offender charge as contained in the Information and as a motion to suppress the federal firearms convictions should his trial reach the habitual offender phase. Appellant argued that his federal firearm possession felony should be removed from the Information because it did not arise out of a “separate occurrence” as a matter of law. The district court held a hearing on the motion and determined that Appellant’s argument needed factual development at the habitual offender phase of the trial. Appellant claims that the district court erred in so holding and, as a result, he proceeded to trial instead of pleading guilty. Appellant then claims, as he did in his first argument, that he was prejudiced because the district court heard and relied on the trial testimony of the police officers when it sentenced him to imprisonment for eighteen to thirty years. According to Appellant, had the district court dismissed the third felony from his habitual offender charge, he would have pled guilty and the district court would not have sentenced him as harshly because it would not have heard the officers’ testimony. In order for relief to be granted on appeal, W.R.Cr.P. 52(a) and W.R.A.P. 9.04 require that any error in the proceedings below be harmful to the appellant. When reviewing whether an error was harmless, the focus is on whether an appellant’s substantial rights were affected. To demonstrate harmful error, the defendant must show prejudice under circumstances which manifest inherent unfairness and injustice or conduct which offends the public sense of fair play. In the present action, even if it were assumed for purposes of this appeal that some error occurred when the district court denied Appellant’s pretrial motion, such error would necessarily be harmless. Appellant ignores the fact that the information the officers testified to at trial would have been available to the district court at sentencing through the pre-sentence investigation report, victim impact statements, and Appellant’s own factual basis for his guilty plea. Moreover, considering the admissible and undisputed testimony of victims is not a circumstance that manifests inherent unfairness and injustice. Therefore, if any error was committed when the district court denied Appellant’s pretrial motion, such error was harmless. And beyond that, Appellant has not shown that, as a matter of law, the district court was wrong in determining that there were factual issues to be resolved by the jury.

Before the court will hold that an error has affected an accused’s substantial right, thus requiring reversal of a conviction, it must conclude that, based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused. Appellant claims that prosecutorial misconduct occurred in the following situations: (1) the prosecutor argued “undocumented allegations” during sentencing, which allegations indicated that Appellant had traded drugs for the gun he used in the shooting; (2) the prosecutor offered to produce new witnesses at sentencing who would testify that Appellant had traded drugs for the gun; (3) the prosecutor attempted to use hearsay evidence and Appellant’s own testimony to prove the firearm possession conviction during the habitual criminal phase of the trial; and (4) the prosecutor improperly charged Appellant as an habitual offender with three prior felonies. Appellant’s only claim of prejudice from these incidents is that there is a reasonable possibility that, in the absence of the misconduct that forced this case to trial when no credible, admissible or relevant evidence existed to support a third, independent felony conviction, the sentence imposed by the trial court might have been more favorable to him. The State’s evidence as indicated in motion hearings would be that he acquired that firearm in exchange for meth. Appellant’s counsel objected to the argument and noted that the only evidence presented to the jury was that the shotgun used in the shooting “was in the room when he got there.” In response to that objection, the prosecutor responded that “if the Court has any questions, we would be more than happy to bring the witnesses in.” Ultimately, the district court ruled in favor of Appellant and stated that it would not consider where and how Appellant obtained the shotgun. Appellant now claims that even though the trial court disregarded this information in imposing sentence, the prosecutor’s repeated assertions that undocumented allegations could support the habitual criminal charge reveals his fundamentally misguided belief that he possessed credible, admissible or relevant evidence to support this charge, a belief that informed and drove his misconduct throughout these criminal proceedings. However, regardless of what the prosecutor may or may not have believed when charging Appellant as an habitual offender, Appellant still bears the burden of proving that he was prejudiced by the alleged error. In the instant case, the district court specifically disregarded the State’s comments and Appellant’s argument must fail.

Even assuming, for purposes of this appeal, that the alleged errors actually occurred in the proceedings below, Appellant has failed to show that he was prejudiced by those errors. Appellant’s belief that his sentence would have been more lenient is purely speculative, ignores the district court’s duty to consider the crime and its circumstances, and disregards the fact that the testimony would have come before the district court at sentencing even if Appellant had pled guilty to the aggravated assault charge.

Affirmed.

J. Voigt delivered the opinion for the court.

Monday, March 20, 2006

Summary 2006 WY 31

[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: Stanton v. State

Citation: 2006 WY 31

Docket Number: 05-87

Appeal from the District Court of Laramie County, Honorable Nicholas Kalokathis, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel

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

Date of Decision: March 20, 2006

Issues: Whether the district court erred when it denied Appellant's motion for a judgment of acquittal on a charge of bribery based on the grounds that there was no evidence he was a public servant performing a government function. Whether Wyo. Stat. 6-5-102(a)(ii) and 6-5-101(a)(ii) and (vi) are unconstitutionally vague, either on their face or as applied to appellant.

Holdings: Wyo. Stat. Ann. 6-5-101(a)(vi) clearly and unambiguously provides that the term "public servant" means, in addition to officers and employees of government, "any person participating . . . in performing a governmental function." The term "governmental function" is defined in subsection (ii) of the same provision as including "any activity which a public servant is legally authorized to undertake on behalf of the government." At the time he obtained the "persuasion money," Appellant was "a person participating" in an "activity which [he was] legally authorized to undertake on behalf of the government." Appellant, was an employee of a youth and family counseling agency and diversion services provider for youth involved in the juvenile justice system and was participating in the court ordered treatment of a juvenile resulting from his involvement in the juvenile justice system. Thus, under Wyoming statutes Appellant was a public servant performing a governmental function at the time he solicited and accepted the money. The definition of "governmental function," rather than "government" is the more appropriate focus for resolving the question of when a person is a public servant. The broad language of Wyo. Stat. Ann. § 6-5-101(a)(ii) and (vi) clearly indicates that when any person participates in performing an activity which he is legally authorized to undertake on behalf of the government, such as court-ordered treatment for a juvenile involved in the juvenile justice system, he is acting as a public servant, even though his immediate employer may be a private company who contracts with the state. The intent of Wyo. Stat. Ann. § 6-5-102(a) clearly was to proscribe "any person," who is performing an activity he or she is legally authorized to undertake on behalf of a government, from using that authority for pecuniary benefit or personal advantage. Appellant's actions in attempting to use for personal financial gain his involvement in court-ordered treatment provided by the juvenile justice system by leading a juvenile's mother to believe that things would go easier for her son if she paid him the money falls squarely within the scope of Wyo. Stat. Ann. § 6-5-102(a).

Courts do not ordinarily permit a party whose particular conduct is adequately described by a criminal statute to challenge the statute on the grounds it does not provide adequate warning concerning other conduct that might fall within its ambit. It is only where a statute reaches a substantial amount of constitutionally protected conduct or specifies no standard of conduct at all that such challenges will be considered. Since Appellant does not argue that the bribery statute reaches any constitutionally protected conduct, his challenge will be considered only if the statute specifies no standard of conduct at all. The bribery statute being challenged adequately specifies the standard of conduct it proscribes. Wyo. Stat. 6-5-102(a) clearly specifies that the offense of bribery is committed when a public servant solicits, accepts or agrees to accept pecuniary benefit or personal advantage upon an agreement or understanding that his action as a public servant will be influenced thereby. The standard of conduct proscribed is the agreement or acceptance that the public servant's actions will be influenced by the promises of pecuniary benefit or personal advantage. The definition of public servant contained in the preceding provision provides adequate notice that any person participating in a legally authorized act on behalf of a government is subject to penalty for violating the statute. The statute is not so vague as to specify no standard of conduct at all. The statute clearly and unambiguously makes it illegal for any person participating in performing any activity which he is legally authorized to undertake on behalf of a government to solicit, accept or agree to accept pecuniary gain or personal advantage based upon an agreement or understanding that his actions will be influenced thereby. The statute provides sufficient notice to a person of ordinary intelligence that Appellant's conduct in soliciting and accepting money in exchange for making things easier on a juvenile was illegal.

As in all criminal cases, the jury impaneled to decide Appellant's case was instructed on the law necessary to support a conviction for bribery. Thus, the jury was instructed verbatim on Wyo. Stat. Ann. § 6-5-102(a)(ii), the elements of bribery, and Wyo. Stat. Ann. § 6-5-101(a)(ii) and (vi), the definitions of the terms "public servant" and "governmental function" found in the bribery statute. It was then the jury's task, as it is in all criminal cases, to apply the evidence presented to the instructions on the law to determine whether the State met its burden of proving each of the elements necessary to support a conviction. While it is always the case that one jury might reach a different result than another on the basis of the same evidence and instructions, that fact does not demonstrate arbitrary or discriminatory enforcement in the sense required for finding a statute unconstitutional as applied. There is simply nothing in the facts presented here supporting a finding that Wyo. Stat. Ann. §§ 6-5-102(a)(ii) and 6-5-101(a)(ii) and (vi) were unconstitutional as applied to Appellant.

Affirmed.

J. Kite delivered the opinion for the court.

Thursday, March 16, 2006

Summary 2006 WY 30

Summary of Decision issued March 16, 2006

[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: Stutzman v. Office of the Wyoming State Engineer

Citation: 2006 WY 30

Docket Number: 05-126

Appeal from the District Court of Park County, Honorable Dan Spangler, Judge, Retired

Representing Appellants (Petitioners): S. Joseph Darrah and Christopher M. Brown of Darrah, Darrah & Brown, PC, Powell, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Wyoming Attorney General; Jay A. Jerde, Deputy Attorney General; Hugh B. McFadden, Jr., Senior Assistant Attorney General; and Britt T. Long, Assistant Attorney General.

Date of Decision: March 16, 2006

Issue: Whether the state engineer was required to file the Appellant’s federal patents as “deeds for reservoir water” pursuant to Wyo. Stat. Ann. § 41-3-324 and unlawfully withheld agency action by declining to do so.

Holding: The Court reviews an agency’s conclusions of law de novo. They review the factual determinations by considering whether they are supported by substantial evidence. The instant case arises from the same facts as Big Horn, 2004 WY 21. For a detailed summary of the factual and legal background of the Big Horn River adjudication, see Big Horn, 2004 WY 21. On March 10, 2004, the Court affirmed the district court decision to dismiss the Appellant’s claims for an individual, proportionate, state right to use water stored in the Buffalo Bill Reservoir.

Wyo. Stat. Ann. § 41-3-324 clearly provides that all deeds for reservoir water and water rights shall be filed in the office of the state engineer. But, given the Court’s holding in Big Horn that the Appellants were time barred from asserting any claim to state water rights they may have had under the federal land patents, it would be absurd for the Court to require the state engineer to file the patents. The purpose of the filing requirement is to provide notice of claims to water rights and it would be illogical to require such notice in cases where a claim has been adjudicated and a determination has been made that no valid claim exists under Wyoming law. The state engineer’s office did not unlawfully withhold administrative action when it declined to file the patents.

The decree of the district court was affirmed.

J. Kite delivered the opinion for the court.

Link to the case: http://tinyurl.com/r54d7 .

Summary 2006 WY 29

Summary of Decision issued March 16, 2006

[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: Workers’ Compensation Claim of: Olivas v. State, ex rel., Wyoming Workers’ Safety and Compensation Division

Citation: 2006 WY 29

Docket Number: 05-79

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

Representing Appellant (Petitioner): David M. Gosar of Jackson, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; and Michael N. Thatcher, Student Intern. Argument by Mr. Thatcher.

Date of Decision: March 16, 2006

Issue: Whether the hearing examiner’s conclusion that Appellant had failed to prove that he had “actively sought suitable work” as required by Wyo. Stat. Ann. § 27-14-405(h)(iii) was supported by substantial evidence.

Holding: In a contested case hearing, the burden of proving all the essential elements of a claim for workers’ compensation benefits rests upon the claimant. The Court reviewed the case as if it had come directly from the administrative agency. When both parties present evidence in a contested case proceeding and factual findings are made, the appropriate standard of review is the substantial evidence test. The burden was on Appellant to establish by a preponderance of the evidence that he actively sought suitable work considering his health, education, training, and experience. The Court reviewed the record and stated that the hearing examiner’s conclusions were inadequate. The examiner failed to completely analyze whether Appellant was “actively seeking work” as that phrase was defined in the Division’s Rules and Regulations. The hearing examiner’s only stated reason for denying benefits was that Appellant’s six applications for employment in the two years since his work-related injury did not constitute “a systematic sustained work effort”. However, the hearing examiner failed to make any findings of fact or conclusions related to the other alternatives provided under the rule. That failure rendered his order denying benefits inadequate. The Court’s ability to review the hearing examiner’s decision was compromised by the failure to make findings of fact and conclusions regarding all the material evidence offered by Appellant. The hearing examiner made no findings or conclusions regarding Appellant’s credibility as a witness. The failure to set out why Appellant was or was not a credible witness inhibited the Court’s ability to properly perform their review.

The Court reversed and remanded the matter to the district court with instructions to vacate the order denying benefits and remand to the Office of Administrative Hearings for further findings consistent with the opinion.

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

Link to the case: http://tinyurl.com/n4ec3 .

Updated WSLL web site

There is new look to the WSLL web site. I have recently completed a bit of research into the makings of a good web site and the updated look is the result of what I've learned. I changed very few of the file names to minimize issues with any of you who may have created bookmarks, shortcuts, or favorites. However, I have added many more files to make the information on each page easier to locate.

For those of you who have a web site and would like to know more about how to create a good web site design, I have written up some tips for the State Court and County Law Libraries Special Interest Section of the American Association of Law Libraries. You can access it here: http://www.aallnet.org/sis/sccll/toolbox/website_resources.pdf.

If you have any questions, cannot find something, or have any suggestions at all, please do not hesitate to contact me. I would love to have any and all feedback.

Katie Jones
kjones2@state.wy.us

Wednesday, March 15, 2006

Summary 2006 WY 28

Summary of Decision issued March 15, 2006

[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: In the Matter of TLJ, minor child: CLH v. MMJ

Citation: 2006 WY 28

Docket Number: C-05-7

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

Representing Appellant (Petitioner): Tammy A. Burt of Harris Law Firm, PC, Evanston, Wyoming.

Representing Appellee (Respondent): E. Dean Stout, Evanston, Wyoming.

Date of Decision: March 15, 2006

Issue: Whether the district court erred as a matter of law when it determined that a “substantial and material change of circumstances” had not occurred. Whether the district court abused its discretion in the manner in which it determined there was no substantial and material change of circumstances.

Holding: Decisions pertaining to child custody are within the sound discretion of the district court and will not be disturbed absent procedural error or a clear abuse of discretion. Modification of a pre-existing custody order is controlled by Wyo. Stat. Ann. § 20-2-204(c). The Court has construed this provision to require a two-step approach to custody modification actions. The first step requires a showing that there has been a “material change in circumstances since the entry of the order in question.” Unless the district court finds a material change in circumstances, it cannot proceed to the second step – determining whether a modification would be in the best interests of the child. A determination that circumstances have changed is governed by an evaluation of the current circumstances of the parties in relation to their circumstances at the time the prior custody order was entered. The district court found a change of circumstances for the better for both parties but that the change was not significant enough to constitute a material and substantial change to warrant modification. The Court reviewed the argument presented and found ample support for the district court’s decision.

The decree of the district court was affirmed.

J. Golden delivered the opinion of the Court.

Link to the case: http://tinyurl.com/gyke5 .

Tuesday, March 14, 2006

Summary 2006 WY 27

Summary of Decision issued March 14, 2006

[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: BP America Production Company, f/k/a Amoco Production Company v. Department of Revenue, State of Wyoming

Citation: 2006 WY 27

Docket Number: 04-157

Appeal from the District Court of Sweetwater County, Honorable Nena James, Judge

Representing Appellant (Petitioner): John L. Bordes Jr., Robert A. Swiech and Nicole Crighton of Oreck, Bradley, Crighton, Adams and Chase, Boulder, CO. Argument by Mr. Bordes.

Representing Appellee (Respondent): Patrick J. Crank, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Martin L. Hardsocg, Senior Assistant Attorney General. Argument by Mr. Hardsocg.

Date of Decision: March 14, 2006

Issue: Whether BP America’s ad valorem taxes were properly reported. [See the published decision from the Court for a complete list of the issues raised by BP America and the Wyoming Department of Revenue (DOR).]

Holding: First, the Court set out the findings and conclusions reached by the State Board of Equalization. Next, the Court summarized the petition for review in district court and included the issues raised by BP. The district court decision letter was then set out in the record. The district court affirmed the SBOE decision to permit reassessment of ad valorem taxes from production years 1980-1987. Allocation based upon well location is the appropriate method of assessment in the instant case. Wyoming statutes do not preclude the SBOE’s findings or conclusions. The accrual of interest and Sweetwater County’s involvement before SBOE were appropriate.

The standard of review of administrative agency action is the substantial evidence test. Statutory interpretation is a question of law and is reviewed de novo.

The Court states the central issue as: BP improperly allocated production from oil wells in Sweetwater County to Carbon County.

Does the SBOE’s decision to allow Sweetwater County to intervene constitute reversible error: BP did not present cogent argument nor did it cite pertinent authority that allowing intervention as a matter of right was reversible error under the circumstances of this case, especially in consideration that the evidence presented at hearing would likely have been identical whether Sweetwater County was a party or not. The Court held that SBOE’s decision to allow Sweetwater County to intervene did not require reversal.
Propriety of partial mill levies: The Court concluded that the DOR, the county assessor and the county treasurer possessed the authority to effectuate the remedy that the DOR structured for this matter.
Is use of wellhead reporting supported by substantial evidence/lawful/arbitrary/capricious: The Court concluded that Wyo. Stat. Ann. § 39-2-201(e) always contemplated that reporting of oil production should be done at the wellhead. The enactment of Wyo. Stat. Ann. § 39-2-213 did not constitute a change but only a restatement of the practice that was generally in place. The Court agreed with the district court that the SBOE’s decision in this regard was not arbitrary or capricious.
Application of Wyo. Stat. Ann. § 39-2-214(a): The Court agreed with the SBOE, the district court and DOR that § 39-2-201(j) should not be given a retroactive application.
Application of Wyo. Stat. Ann. § 39-3-102(b) and Application of the BHP case: The Court characterized the district court’s decision letter as a case of them misspeaking and not the source of an error which required reversal of either the district court’s order or the order of the SBOE.
Existence of statute of limitations on collection of ad valorem taxes: Wyoming’s ad valorem tax system is a self-reporting system. Where the self-reporting system has broken down and the process is tainted from its point of origin, statutes of limitations simply cannot, as a general rule, be called into play.
Application of Wyo. Const. art. 15 §§ 3 and 11; Wyo. Const. art. 1, § 34: BP failed to meet the burden of proof imposed on it. The arguments were not supported by reference to pertinent authority or by cogent argument.
Should the imposition of interest be modified; error in imposing interest on amended returns for 1987 and 1988: The Court concluded that the DOR’s directives with respect to the imposition of interest on taxes not timely paid were correct under the applicable laws. The SBOE’s findings and conclusions in this regard were supported by substantial evidence and are consistent with applicable law.

The decree of the district court was affirmed and the matter remanded to district court with directions that it further be remanded to SBOE for effectuation of its September 5, 2001 order.

C.J. Hill delivered the opinion of the Court.

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

Summary 2006 WY 26

Summary of Decision issued March 14, 2006

[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: Peden v. State

Citation: 2006 WY 26

Docket Number: 05-17

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

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

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Senior Assistant Attorney General.

Date of Decision: March 14, 2006

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

Holding: Sentencing decisions are normally within the discretion of the trial court. The Appellant did not offer any cogent argument that the manner in which the testimony was presented to the district court, or the manner in which the district court addressed the issues raised during the sentencing hearing constituted “procedural conduct prejudicial to him”. The Court concluded the Appellant did not demonstrate the testimony in question was so lacking in reliability that it implicated the Appellant’s right to due process. After a review of the record, the Court found that the district court did not abuse its discretion when it sentenced the Appellant.

The decree of the district court was affirmed.

J. Voigt delivered the opinion of the Court.

Link to the case: http://tinyurl.com/h7qdp .

Friday, March 10, 2006

Summary 2006 WY 25

Summary of Decision issued March 10, 2006

[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: Rabuck v. State

Citation: 2006 WY 25

Docket Number: 04-194

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

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbets, Senior Assistant Attorney General; Erica A. Johnson, Director, PAP.

Date of Decision: March 10, 2006

Issue: Whether the indecent liberties statute, Wyo. Stat. Ann. § 14-3-105(a) was unconstitutionally vague as applied to Appellant.

Holding: The constitutional challenge was reviewed de novo. A statute may be challenged for vagueness on its face or as applied to particular conduct. It is well settled that the indecent liberties statue is not facially unconstitutional. Viewed on an “as applied” basis, the Court examines the statute solely in light of the complainant’s specific conduct. Appellant contends the statute failed to provide sufficient notice of which aspect of his conduct was forbidden. The Court considered his behavior in its entirety. His efforts to conceal his conduct indicate his understanding that his conduct was unlawful. Decisions of the Court demonstrate that physical touching is not a required element of the crime of indecent liberties. The indecent liberties statute was drawn broadly to encompass a variety of behaviors from which children should be protected. Based on the stipulated record and the reasonable inferences to be drawn, the Court was comfortable concluding that sufficient evidence existed to support the district court’s decision to deny the motion to dismiss. The Court concluded that the indecent liberties statute was not unconstitutionally applied and found no error in the denial of the motion to dismiss.

The decree of the district court was affirmed.

J. Burke delivered the opinion for the court.
J. Voigt specially concurred out of deference to the doctrine of stare decisis.

Link to the case: http://tinyurl.com/zu25h .

Summary 2006 WY 24

Summary of Decision issued March 10, 2006

[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: Finch v. Pomeroy, and Department of Employment

Citation: 2006 WY 24

Docket Number: 05-183

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

Representing Appellant (Plaintiff): Carlos Finch, pro se.

Representing Appellees (Defendants): Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; John Rossetti, Senior Assistant Attorney General.

Date of Decision: March 10, 2006

Issue: Whether the district court erred when it granted Appellee’s motion to dismiss Appellant’s complaint. Whether the appeal should be dismissed or the Court refuse to consider it because of Appellee’s failure to comply with Wyoming Rules of Appellate Procedure.

Holding: Appeals to the Court are governed by the Wyoming Rules of Appellate Procedure. Failure to comply with the rules is grounds for refusal to consider, assessment of costs, dismissal or affirmance. Pursuant to W.R.A.P. 1.03, the Court affirmed the district court order to dismiss.

The decree of the district court was affirmed.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/f8n9h .

Wednesday, March 08, 2006

Do-It-Yourself Divorce Article

By the way: Today there was an article in the Wyoming Tribune-Eagle about Do-It-Youself Divorce. It was prepared by AP and discussed the process and resources in states other than Wyoming.

Tuesday, March 07, 2006

Summary 2006 WY 23

Summary of Decision issued March 7, 2006

[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: Board of Trustees of Fremont County School District #25 v. BM

Citation: 2006 WY 23

Docket Number: C-05-6

Appeal from the District Court of Fremont County, The Honorable Norman E. Young, Judge.

Representing Appellant (Respondent): Joel M. Vincent of Vincent & Vincent, Riverton, Wyoming.

Representing Appellee (Petitioner): R. Daniel Fleck and Emily R. Rankin of the Spence Law Firm, LLC, Jackson, Wyoming.

Date of Decision: March 7, 2006

Issue: Whether BM’s compliance with the terms of his punishment and subsequent graduation from high school has rendered the matter moot.

Discussion: The Court will dismiss any appeal where they have notice of facts that have the effect of making any determination of a question unnecessary or which would render any judgment by the Court ineffectual. When a student’s expulsion period has expired, the question regarding its propriety is moot. The instant case does not present any constitutional question for resolution and the matter was moot because of its proximity to Appellee’s graduation.

Dismissed.

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

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

Friday, March 03, 2006

New Book - Criminal Pattern Jury Instructions

New Title: We are pleased to announce the addition to our collection of the first set of pattern criminal jury instructions specifically written for use within the Tenth Circuit. The Criminal Pattern Jury Instruction Committee of the U.S. Court of Appeals for the Tenth Circuit prepared these following Tenth Circuit case law where relevant case law could be found. The instructions are divided into three sections: General Matters, Substantive Offenses, and Death Penalty Instructions and includes a special findings form regarding a defendant's eligibility for a death sentence.
Check our library catalog for availablity.

Check out our tags in a cloud (from Wordle)!