Sumamry 2008 WY 22

Summary of Decision issued February 28, 2008

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

Case Name: Large v. State

Citation: 2008 WY 22

Docket Number: 06-89

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

Representing Appellant (Defendant): D. Terry Rogers, Interim Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Public Defender; ; and David E. Westling, Senior Assistant Public Defender.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and James Michael Causey, Assistant Attorney General.

Facts/Discussion: Ms. Large appealed her conviction on one count of Conspiracy to Commit Sexual Assault in the Second Degree in violation of Wyo. Stat. Ann. §§ 6-2-303(a)(v) and 6-1-303(a) and two counts of Sexual Exploitation of Children, in violation of Wyo. Stat. Ann. § 6-4-303(b)(ii). She contended that the trial court allowed impermissible testimony that vouched for the victim’s credibility as well as testimony that constituted improper expert opinion of her guilt. She also challenged testimony that she asserted was inadmissible hearsay.

Dr. Gibson’s Testimony: Ms. Large contended that Dr. Gibson impermissibly provided opinion testimony of her guilt and vouched for the credibility of JL. The Court determined that Dr. Gibson’s expert testimony was permissible because it related to his diagnosis. The testimony regarding JL’s statements that she was abused by Ms. Large required a two-part test. The declarant’s motive must be consistent with the purposes of promoting treatment or diagnosis and the content of the disclosure must be that reasonably relied on by the expert. The record supported that the testimony was not erroneously admitted. The testimony that Ms. Large asserted was opinion testimony of her guilt was similar to testimony they have held to be improper in other cases such as Stephens. In evaluating the testimony, the Court noted the prosecutor’s closing argument stating that Dr. Gibson said that he believed sexual abuse had occurred at the hands of Ms. Large and David Dye. The Court concluded that the challenged testimony was an improper prosecutor-elicited opinion of guilt. As a general principle the choice between the plain error standard and the error per se standard depends upon whether the error is a “structural” or a “trial” error. The trial court concluded that opinion of guilt testimony was not a structural error. That did not resolve the question of whether an error per se approach was appropriate. The Court found no proper basis for applying an error per se standard of review to prosecutor-elicited opinions of guilt. While it may be error to admit an opinion of guilt, it is trial error rather than structural error. The Court stated they would no longer treat a prosecutor-elicited opinion of guilt as error per se. To the extent this decision conflicted with the Court’s holdings in Stephens, they overruled Stephens. The Court reviewed for plain error because Ms. Large did not object to the statements at trial. Given all of the evidence introduced against Ms. Ms. Large at trial, there was no reasonable possibility that the verdict might have been more favorable to her in the absence of the challenged testimony.
Ms. England’s Testimony: The Court reviewed the record and stated that Ms. England did not improperly vouch for JL’s credibility. Ms. England’s reference to JL’s lying behavior was initially brief. It was defense counsel who attempted to capitalize on what might have been considered useful impeachment material. This opened the door and the Court saw nothing improper in the prosecutor’s treatment of the issue on re-direct.
Inadmissible Hearsay: The Court noted the four elements that determine whether W.R.E. 801(d)(1)(B) applied. In the instant case, the declarants testified at trial, Ms. Large had the opportunity to cross-examine them, although the testimony did not precisely mirror the out-of-court statements, they were sufficient to render the testimony of the foster mother and the investigator admissible. The record showed that the prior statements were in fact offered to rebut explicit charges of improper influence.

Holding: Ms. Large was not able to establish that Dr. Gibson’s opinion of guilt testimony was prejudicial. There was no plain error in the admission of Ms. England’s testimony considering that the defense opened the door when he attempted to capitalize on what might have been useful impeachment material. The record showed the defense theory throughout the trial was that the children had been improperly influenced to make false accusations. The record established that all four elements required to apply W.R.E. 801(d)(1)(B) were met in the instant case, so the trial court did not violate any clear and unequivocal rule of law when it allowed the testimony.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/3yxy3v .

[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.]

Summary 2008 WY 21

Summary of Decision issued February 28, 2008

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

Case Name: Janpol v. State

Citation: 2008 WY 21

Docket Number: S-07-0036

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Assistant Attorney General.

Facts/Discussion: Janpol was convicted of first-degree murder, in violation of Wyo. Stat. Ann. § 6-2-101(a) and was sentenced t0o a term of life imprisonment without the possibility of parole. His appeal raised issues about the jury instructions, about the presentence investigation report and about the district court’s denial of a motion for mistrial.

Jury Instructions: Janpol was not appealing from the form of the verdict, rather his argument was based on a colloquy that occurred during that State’s rebuttal closing argument. He contended that it constituted an oral modification or explanation of a jury instruction in violation of W.R.Cr.P. 30 which requires that jury instructions be in writing. The Court stated that the colloquy was not an instruction to the jury. Its comments applied to the instructions stating that the jury should follow the instructions and the verdict form. The Court could find no prejudice resulting from the judge telling the jury to follow a verdict form that was submitted by the appellant.
Presentence Investigation Report: Janpol argued that because he was convicted of committing a violent felony, he was not a qualified offender under the Addicted Offender Accountability Act. The Court stated that Janpol read the Act too narrowly. The purpose of the Act is to determine whether an offender could participate in a treatment program without posing an unreasonable risk to the safety of the public. The information contained in the evaluator’s report was meant to be related to the district court because it was indispensible in deciding whether treatment options should be considered as part of any sentence.
Motion for Mistrial: After reviewing the transcript of the trial and considering the prosecutor’s single comment in the context of all the testimony and the entire closing argument, the Court concluded that the district court did not abuse its discretion in denying Janpol’s motion for mistrial.

Holding: The jury was properly instructed in regard to the consideration of lesser-included offenses, no confidential information was improperly included in the PSI, and the prosecutor’s misconduct during closing argument did not warrant a mistrial.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/3b7ddo .

[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.]

How-to: Metadata Update

The ethics surrounding metadata in documents is still under question. For a reminder and update on metadata, see the Law.com article Where Do the Footprints of Metadata Lead? by Marcia Coyle.

And if you would like to know more about how to scrub or redact your document, see our post on Word Processing Confidentiality.

New Service from the Wyoming State Law Library

Greetings!

Most of you know that you can look up items through our online catalog (WYLDCAT) to see what we have on a particular subject or if we have a specific title. We have now taken that service a giant leap further! You can use the law library online catalog to not only see if we own something, but to know if it is already checked out and when it’s due, place holds, renew your books and more. We are now checking out items electronically.

When you come into the library, or call to request we send you an item, we can issue you a law library card. Or you can use a library card you may already have through another WYLD library in the state (county or community college libraries). Once you have a library card, you can use the barcode and/or alternative ID in addition to the PIN to manage your account through the WYLDCAT online catalog (http://wyld.state.wy.us/llmain/), as well as to access the statewide databases (http://www.gowyld.net/dbases.cfm) provided by Wyoming libraries from your home or office.

For more information on how to use the WYLDCAT options, please contact us or take a look at our tips: http://library.courts.state.wy.us/catalog.aspx.

Government Information "Ask a Librarian" Service

If you ever have any research needs in government information, Wyoming has several depository libraries more than willing to help. Just in case, though, here is another great service you can take advantage of when you need government information.

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The U.S. Government Printing Office (GPO) joins the University of Illinois at Chicago (UIC) and Federal Depository Libraries around the country to provide an online reference service to the American public. This unique free web based "Ask a Librarian" service will give the public an opportunity to ask librarians questions about government resources. An example of how this service works: with the current process in the Presidential elections, the public may have questions about the primaries, caucuses and Electoral College process. A librarian is available at <http://govtinfo.org> to answer those or any other questions about the government.

"This service enables GPO and the depository libraries to help Americans answer questions about their democracy by connecting them to the expertise offered by Government reference librarians," said Ric Davis, Acting Superintendent of Documents. "This is another example of the strong partnership GPO has with the Federal Depository Library community in their commitment of Keeping America Informed."

UIC will manage and maintain this service called "Government Information
Online: Ask a Librarian". GIO is supported by nearly 20 public, academic and state libraries throughout the country. Librarians are specialized in finding government information on any topic.

"GIO promotes and complements the growing digital initiatives of both UIC and GPO as well as the digital Government information provided through the Federal Depository Library Program," said Mary Case, University Librarian at UIC. "We are pleased to be able to collaborate on this exciting initiative with GPO, our Committee on Institutional Cooperation colleagues and a growing number of depository libraries around the country."

Summary 2008 WY 20

Summary of Decision issued February 22, 2008

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

Case Name: Baker v. Speaks

Citation: 2008 WY 20

Docket Number: S-07-0170

Appeal from the District Court of Lincoln County, the Honorable Nena R. James, Judge

Representing Appellant: Byron Baker, pro se.

Representing Appellees: Paula Ann Fleck and John Gallinger, of Holland & Hart, LLP, Jackson, Wyoming.

Facts/Discussion: Four members of the Speaks family brought suit against Baker for breach of a construction contract. After a bench trial, the district court granted judgment in favor of the Speaks.
The district court detailed the course of events leading to the trial and found that Baker breached the contract by failing to complete the project in a timely manner and failing to perform work in a safe and workmanlike manner and in accordance with industry standards.

Holding: The district court’s findings of untimely performance and poor workmanship were both supported by the trial record. Baker failed to demonstrate reversible error on appeal.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yv38k8 .

[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.]

Summary 2008 WY 19

Summary of Decision issued February 22, 2008

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

Case Name: State, Dep’t of Corrections v. Watts; State, Dep’t of Corrections v. Watts

Citation: 2008 WY 19

Docket Number: S-07-0050; S-07-0095

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

Representing Appellants: Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, DeputyAttorny General; Misha Westby, Senior Assistant Attorney General; C. Levi Martin, Senior Assistant Attorney General.

Representing Appellee: David B. Hooper and Tom A. Glassberg of Hooper Law Offices, PC, Riverton, Wyoming.

Facts/Discussion: Watts brought a wrongful death suit after his wife, who was a contract nurse at the Wyoming Honor Farm, was murdered by an inmate. The State moved for summary judgment claiming they were immune from suit pursuant to the WGCA.

Jurisdiction: Generally, the denial of a motion for summary judgment is not an appealable final order. The Court has recognized an exception to the general rule when a district court refused to dismiss a case on the basis of qualified immunity. The Court has jurisdiction to consider the appeal of the district court’s order denying the State’s motion for summary judgment therefore the writ of review was superfluous and was dismissed as unnecessarily granted.
Section 1-39-106: Questions of statutory interpretation are matters of law. The Act is considered a close-ended tort claims act. The Court reviewed previous cases noting that there are two groups of cases which construe the act in terms of strict or liberal construction of the WGCA. More recent cases state the principle that it is a close-ended act in which immunity is the rule and liability is the exception. The Court concluded the general rule in Wyoming is that the government is immune from liability and unless a claim falls within one of the statutory exceptions, it will be barred. The Court used their standard rules of statutory construction to determine whether the legislature intended that immunity be waived for a particular claim. The Court stated that the statute waived immunity for the State’s negligence in making the building functional. The Court reviewed cases from New Mexico and Maine. They concluded that the clear and unambiguous language of § 1-39-106 within the context of the WGCA indicated that the legislature intended to limit the waiver of immunity to negligence associated with the function of the building structure and did not intend to extend the waiver to negligence associated with operation of the penal institution within the building. Because Watts did not argue that any particular physical defect in the building resulted in his wife’s death, his claim does not fall within the parameters of § 1-39-106.

Holding: Section 1-39-106 did not waive the State’s immunity for negligence in the operation of the corrections system. Instead, it specifically limits the exception to matters associated with the physical building itself. Because Mr. Watts’ claims did not pertain to the physical condition of a building at the Wyoming Honor Farm, the State was entitled to judgment as a matter of law.
Case No, S-07-0050, writ of review, was dismissed. Case No. S-07-0095, appeal, was reversed and remanded to the district court.

Reversed.

J. Kite delivered the decision.

Link: http://tinyurl.com/yuz6fy .

[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.]

Summary 2008 WY 18

Summary of Decision issued February 21, 2008

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

Case Name: Three Way, Inc. v. Burton Enterprises, Inc.; Burton Enterprises, Inc. v. Three Way, Inc.

Citation: 2008 WY 18

Docket Number: S-07-0139; S-07-0140

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

Representing Three Way, Inc.: Christopher M. Wages and Greg L. Goddard of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Burton Enterprises, Inc.: Mark W. Gifford of Casper, Wyoming.

Facts/Discussion: After a jury trial on some issues and a bench trial on other issues the district court ordered specific performance of a contract for the construction of certain water and sewer mains. After the jury found that Burton breached the contract, the district court found the contract to be unambiguous and ordered specific performance, rather than money damages. Three Way appealed that decision. Burton then cross-appealed alleging that the jury had been improperly instructed and that the district court had erred in an evidentiary ruling.

Three Way’s non-compliance with W.R.A.P. 7.01(e)(2): Three Ways’ brief lacked precision in its citation to the record, but the Court did not summarily affirm because they could readily discern the relevant facts from the record.
Three Way’s motion for leave to amend its complaint: The district court denied Three Ways’ motion for leave to amend its complaint filed thirteen months after the original complaint was filed and seven weeks before trial. The district court denied it as untimely. The record contained no facts from which the Court could determine abuse of discretion.
Burton’s motion in limine: A motion in limine is left to the sound discretion of the district court. The motion hearing was not reported and nothing in the record gave the reasons for the court’s rulings. The Court concluded that the district court did not abuse its discretion in denying Three Way’s motion for leave to amend its complaint. Consequently, the only trial issues were breach of contract and unjust enrichment. The evidence was not relevant to those issues so the district court did not abuse its discretion in granting Burton’s motion in limine in that regard.
Three Way’s motion to affirm jury’s verdict: The Court agreed with Burton that the motion to affirm the jury’s verdict was based on numerous Wyoming cases that did not control the result in the present case. The issue was a plea for the district court to apply the doctrine of unjust enrichment rather than to enforce the contract. The evidence revealed a fully integrated unambiguous contract and that is what the district court rightly enforced.
Jury instructions as to Three Way’s duty of workmanship: Even if the proposed instruction was a correct statement of the law under the facts of the case, the Court had to determine whether Burton was prejudiced by the district court’s refusal to give it. The Court concluded that Burton had not met its burden of proving that prejudice resulted. The testimony suggested that the groundwater problem in the entire area was a patent defect not some latent defect discovered upon beginning the project.
Three Ways’ claimed money damages: Burton’s argument is that evidence of money amounts that Three Way had not been paid for work it performed prejudiced the jury against Burton and resulted in the jury’s conclusion that Burton rather than Three Way breached the contract. The Court concluded that Burton had not proven such prejudice. In the context of all the evidence, it was reasonable to conclude that the jury’s decision as to breach was not swayed by the monetary evidence.

Holding: The district court correctly resolved the case by relying upon the written contract of the parties as proven at trial. The district court did not abuse its discretion in considering the equitable option of unjust enrichment until such time as the evidence convinced it otherwise. None of the questioned rulings by the district court evinced an abuse of discretion or were contrary to law.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/34acwu .

[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.]

How-to: Law Office Technology

I started catching up on my reading yesterday when part of our network was trying to decide if it liked being bumped around by construction. (FYI--networks don't like being bumped around by construction.) Anyway, I found a couple of articles lurking from last year that may be of interest to you for technology assessment, planning, budgeting, networking, etc.

Andy Adkins & Natalie Kelly wrote Reliable Law Office Technology: Priceless based on a presentation at the ABA TECHSHOW 2007. It's packed with all but step-by-step suggestions for technology assessment (including staffing), budgeting, shopping, upgrading, and training. It's not the shortest article, but well worth the read if you're at your wit's end with the tech paraphernalia floating around the office.

The other article (Ab Initio: Practical Technology Advice for the Newly Solo or Small Firm Lawyer) is also from Law Technology Today by Joe Kashi. Kashi provides suggesions for designing a new network infrastructure. If you're on your own, this may be a great article to get you started on the right track with setting up a network for your office. He writes that in the next issue he was going to write about other technology used in a law office (desktops, laptops, peripherals, software, etc.). I could not find a follow-up article, but if I do, I will definitely post it.

Summary 2008 WY 17

Summary of Decision issued February 13, 2008

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

Case Name: Dee v. State

Citation: 2008 WY 17

Docket Number: S-07-0185

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

Representing Appellant (Plaintiff): Michael Dee, pro se.

Representing Appellee (Defendant): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General.

Facts/Discussion: Dee appealed from the district court’s order dismissing his declaratory judgment action. Dee was convicted in 1982 of possessing and cultivating marijuana. The record does not reflect that he appealed his conviction.

Holding: Dee focused his attention exclusively on the constitutionality of the marijuana statutes, reasserting the same claims raised in the underlying declaratory judgment action. The district court dismissed those claims on res judicata grounds and Dee did not present any legal arguments directly challenging the district court’s determination. Dee also did not appeal his 1982 conviction in which he could have asked that it be overturned. He presented no argument to support that untimely request now. Consequently, his conviction is res judicata too. The Court summarily affirmed the district court’s order dismissing Dee’s complaint.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/yorgk3 .

[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.]

How-to: Make MS Word and OOo Writer Play Nice

If you've been experimenting with using OpenOffice.org's Writer in addition to or instead of MS Word and found a few unpleasant surprises, check out this short article from CNET.com. Dennis O'Reilly provides some tips on how to get OOo Writer and MS Word to work together better. He also mentions a few features in that don't transfer back and forth happily, with unfortunately, no quick fixes.

Summary 2008 WY 16

Summary of Decision issued February 8, 2008

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

Case Name: Glenn v. U.P.R.R. Co.

Citation: 2008 WY 16

Docket Number: S-07-0016

Appeal from the District Court of Sweetwater County, the Honorable Nen R. James, Judge

Representing Appellant (Plaintiff): Frederick J. Harrison, Frederick J. Harrison, PC, Rawlings, Wyoming.

Representing Appellee (Defendant): Mark C. Hansen, U.P.R.R.Co., Denver, Colorado; George E. Lemich, Lemich Law Center, Rock Springs, Wyoming.

Facts/Discussion: Glenn was injured while closing the “dump doors” of a rail car in a UPRR coal train. He filed suit, claiming that his injury was the result of the railroad’s negligence. The district court granted summary judgment in UPRR’s favor and Glenn appealed. The propriety of a summary judgment is evaluated by employing the same standards and by examining the same material as the district court.
Duty Owed: Wyoming law has long recognized that a railroad has a duty to exercise ordinary and reasonable care and prudence in the operation of its railway, and to take those usual, ordinary, precautionary measures which a prudent, reasonable person would take. The Court reviewed the cases from Wyoming and other jurisdictions and concluded that UP owed Glenn a duty to provide rail cars that were reasonably safe for their intended use.
Duty Breached: The Court’s review of the evidence suggested that the allegedly dangerous condition was not obvious. Glenn’s co-worker, the only other witness to the event, agreed that more coking coal spilled from the car in question than from previous cars. It is up to the jury to decide if Glenn was negligent in failing to perceive an obvious danger and to compare his negligence, if any, to UP’s negligence, if any.
Proximate Cause: The Court has stated that the ultimate test of proximate cause is foreseeability of injury which is usually a question of fact reserved for the trier of fact’s determination unless the evidence is such that reasonable minds could not disagree.
Compensable Injury: There appeared to be no dispute that Glenn suffered an injury compensable in damages.

Holding: The Court stated that sufficient evidence existed in the record to create genuine issues of material fact with regard to each of the four elements of Glenn’s negligence claim against the railroad. The district court erred in granting summary judgment in favor of UP.

Reversed and remanded.

J. Burke delivered the decision.

Link: http://tinyurl.com/2sppwr .

[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.]

Summary 2008 WY 15

Summary of Decision issued February 8, 2008

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

Case Name: DSB, minor: JA v. State, DFS

Citation: 2008 WY 15

Docket Number: S-07-0097

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

Representing Appellant (Respondent): Orintha E. Karns of Brown, Drew & Massey, LLP, Casper, Wyoming.

Representing Appellee (Petitioner): Patrick J. Crank, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Ellen Rutledge, Senior Assistant Attorney General; Stacey L. Obrecht, Assistant Attorney General.

Guardian Ad Litem: Mary Ann Budenske, Poverty law Center of Wyoming, Inc., Casper, Wyoming.

Facts/Discussion: JA (Mother) appealed from the juvenile court’s ruling that she neglected her minor son, DSB (child). She claimed the juvenile court did not have subject matter jurisdiction over the neglect action instituted by DFS because the adjudicatory hearing was not held within 90 days after the original petition was filed.
Appellate Jurisdiction: Mother claimed that the juvenile court lost subject matter jurisdiction over the entire neglect action because it failed to hold a hearing within 90 days of the filing of the original petition. That argument carried forward in the second case. The juvenile court recognized the continued viability of the subject matter jurisdiction issue in the second case. Therefore the Court had jurisdiction despite the fact that Mother did not file a notice of appeal of the order dismissing the first case without prejudice.
Juvenile Court’s Jurisdiction over Neglect Action: The question was whether the juvenile court lost subject matter jurisdiction over the entire neglect action when it failed to comply with the procedural requirements set forth in the statutes. The Court reviewed the juvenile court’s decision de novo. The statutory language regarding the time for holding an adjudicatory hearing is plain and unambiguous. The statutes do not include a statement of the appropriate remedy for failing to follow the statutory deadline. The Court stated that an unequivocal expression from the legislature is required before a juvenile court loses subject matter jurisdiction over a neglect action.
Remedy for Violating Statutory Deadline: By dismissing the petition without prejudice, the juvenile court placed the burden on DFS to re-file the charges and encourages parties to draw the court’s attention to a timing problem, while discouraging parents from taking actions to delay the proceedings in hopes of securing a final dismissal of the action.
Mother suggested the juvenile court’s decision violated her due process rights. Mother made no showing that the technical statutory violation restricted her efforts toward reunification with the child.

Holding: The plain language of the Child Protection Act does not unequivocally state that the juvenile court loses subject matter jurisdiction over the incident of neglect when it violates the statutory requirement that an adjudicatory hearing be held within 90 days after the petition was filed. The legislature did not state that the petition could not be dismissed without prejudice and re-filed. The juvenile court gave due attention to the 90 day deadline while still protecting the child by dismissing the petition without prejudice and giving DFS the opportunity to re-file the neglect allegations.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/yuyxay .

[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.]

Summary 2008 WY 14

Summary of Decision issued February 8, 2008

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

Case Name: Crayk, F/K/A/ Glover v. Glover

Citation: 2008 WY 14

Docket Number: S-07-0095

Appeal from the District Court of Laramie County, the Honorable Thomas T.C. Campbell, Judge

Representing Appellant (Defendant): John J. Metzke, Hirst & Applegate, PC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Donald A. Cole, Cole & Cole, Cheyenne, Wyoming.

Facts/Discussion: Crayk sought review of a district court order amending her original decree of divorce.
The amended decree was intended to comply with the USFSPA which requires an order to specifically provide for the payment of an amount expressed in dollars or as a percentage of disposable retired pay. The order from the district court appeared to award a percentage of the military retirement in question but it also included language about a fixed monthly payment. It contained two conflicting provisions. The Court was unable to reconcile the two provisions or to determine the intent of the district court.

Holding: The original order did not specifically address the COLA issue. The district court must make a determination as to which approach, “percentage” or “fixed dollar” was intended by the original decree. The amended decree is also at odds with the USFSPA which requires that the award be expressed as either a percentage or a fixed dollar amount. This award did both creating an ambiguity. The amended decree fails to accomplish the intended goal of creating a USFSPA-complaint order.

Reversed and remanded.

J. Burke delivered the decision.

Link: http://tinyurl.com/2jyrqx .

[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.]

Summary 2008 WY 13

Summary of Decision issued February 8, 2008

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

Case Name: Reay v. State

Citation: 2008 WY 13

Docket Number: S-07-0053

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Ryan R. Roden, Deputy Public Defender; Tina N. Kerin, Apellate Counsel; David E. Westling, Senior Assistant Public Defender.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.

Facts/Discussion: Reay was convicted of burglary, aggravated kidnapping and battery against a household member. He claimed that the district court at trial allowed inadmissible testimony on three separate occasions. Reay’s counsel objected to the challenged testimony at trial so the Court’s review of the district court rulings was for abuse of discretion.
On direct examination the prosecution asked the victim to describe what happened on the morning she was attacked. Part of her description included her testimony about a statement made by Reay in the course of the incident which referred to an earlier abuse. The district court ruled that it was part of what happened in the incident and so it was not prohibited. The Court noted that the fact that the evidence involved Reay’s own statement did not exempt it from W.R.E. 404(b). The Court analyzed the statement and concluded that the testimony was too ambiguous to constitute evidence of uncharged misconduct and the district court did not abuse its discretion.
On direct examination by the prosecution, the victim was asked about her efforts prior to the attack to get her belongings from Reay’s apartment. The Court reviewed the testimony and stated that it was even more ambiguous than the previous example. The testimony did not amount to evidence of prior misconduct and so was not inadmissible under W.R.E. 404(b).
Next the Court considered the testimony from Mr. Haddon who related what the victim said after being rescued. After defense counsel objected, the district court offered a limiting instruction. Mr. Haddon’s comment was a direct assertion that there had been previous instances of violence against the victim by Reay. However, the district court stated that the evidence was so strong against Reay that the statement in question didn’t add much. The Court noted that their review of the record confirmed there was no reasonable possibility that the verdict might have been more favorable to Reay without Mr. Haddon’s comment.
Finally, the Court considered Reay’s assertion that the district court improperly admitted evidence of prior misconduct without following the pretrial procedures mandated by Howard and Gleason. The Court determined the prosecution had not intended to introduce such evidence so the mandatory procedures did not apply. This was a case where a witness inadvertently mentioned such evidence and the district court promptly instructed the jury to disregard it.

Holding: The Court analyzed the statement from the victim and concluded that her testimony was too ambiguous to constitute evidence of uncharged misconduct. The testimony from the witness did not amount to evidence of prior misconduct and so was not inadmissible under W.R.E. 404(b). The Court’s review of the record confirmed there was no reasonable possibility that the verdict might have been more favorable to Reay without Mr. Haddon’s comment. The prosecution had not intended to introduce prior misconduct evidence and the district court promptly instructed the jury to disregard it. The Court found no abuse of discretion.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/246ys2 .

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