Thursday, July 31, 2008

Summary 2008 WY 90

Summary of Decision issued July 31, 2008

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

Case Name: Rogers v. State

Citation: 2008 WY 90

Docket Number: S-07-0115

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

Representing Appellant: Diane M. Lozano, State Public Defender; Ryan R. Roden, Deputy Public Defender; Tina N. Kerin, Appellate Counsel; Kirk Allan Morgan, Assistant Appellate Counsel; Scott Mitchel Guthrie, Senior Assistant Public Defender.

Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Dana Jill Lent, Assistant Attorney General.

Facts/Discussion: Rogers was charged with third degree sexual assault. His wife was the alleged victim of that assault. Prior to trial, the State expressed its intent to call LR as a witness to testify against her husband.
The district court certified this question:
Can an alleged victim spouse be compelled by the State of Wyoming to testify against his or her spouse or does the witness-spouse alone have a privilege to refuse to testify adversely and that the witness may neither be compelled to testify nor foreclosed from testifying?
In the federal system, the application of marital privilege is generally governed by federal common law. Congress has not expressed a particular policy preference regarding marital privilege. The Wyoming legislature however, has implemented policy through legislation. In choosing to provide an exception to spousal privilege, the legislature has decided that in cases of a crime by one spouse against another, the State’s interest in discerning the truth outweighs the State’s interest in preserving marital harmony.

Holding: The marital privilege does not apply when one spouse is charged with a crime against the other. When the exception applies as set forth in Wyo. Stat. Ann. § 1-12-104, the witness spouse may be compelled to testify.

Remanded.

J. Burke delivered the decision.

Link: http://tinyurl.com/6ysm6r .

[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.]

Wednesday, July 30, 2008

Summary 2008 WY 89

Summary of Decision issued July 30, 2008

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

Case Name: In re Fisher

Citation: 2008 WY 89

Docket Number: S-07-0220

Appeal from the District Court of Big Horn County, the Honorable Gary P. Hartman, Judge.

Representing Appellant: Larry B. Jones of Simpson, Kepler & Edwards, LLC, the Cody, Wyoming Division of Burg, Simpson, Eldredge, Hersh & Jardine.

Representing Appellee: Bruce A. Salzburg, Attorney General; John W. Renneisen, Deputy Attorney General; and Kristi M. Radosevich, Senior Assistant Attorney General.

Facts/Discussion: Mrs. Fisher sought worker’s compensation death benefits as the surviving spouse of her husband, David Fisher. Mr. Fisher was seriously injured at work in 1993 which rendered him a paraplegic. In 2005 he died as a result of complications from smoke inhalation from a fire in their home.
The Court previously stated in Bruhn that in order for death to be compensable, the initial injury must be the direct cause of the employee’s death. The Court concluded that the reasoning employed in Bruhn was readily distinguishable from the circumstances of the instant case and they declined to apply it here where there was a direct link between Fisher’s work-related injury and his death.
The case turns on the facts available to the Court from the record on appeal. The evidence in the record was unequivocal that Fisher died because his paraplegia severely reduced his ability to cough and to clear his bronchi of mucus. That evidence was uncontradicted. The Court applied the facts in light of the plain language of the governing statute and concluded that the only sustainable answer that could be reached based on the record on appeal was that Fisher died as a result of his work-related injury.

Holding: The order of the district court affirming the hearing officer’s denial of benefits was reversed and the matter remanded to the district court with directions that it further remand it to the hearing officer with directions that the applicable death benefits be awarded to Mrs. Fisher.

Reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/5hzrwn .

[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.]

Tuesday, July 29, 2008

2008 WY 88

Summary of Decision issued July 29, 2008

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

Case Name: Northfork Citizens for Responsible Dev. v. Park County Bd. of County Commr.

Citation: 2008 WY 88

Docket Number: S-07-0258

Appeal from the District Court of Park County, the Honorable Steven R. Cranfill, Judge.

Representing Appellants: Anthony Todd Wendtland and Debra J. Wendtland, Wendtland & Wendtland, LLP, Sheridan, Wyoming.

Representing Appellee, Park County Bd. of County Commr.: Bryan A. Skoric, County Attorney and James F. Davis, Deputy County Attorney, Park County Attorney’s Office, Cody, Wyoming.

Representing Appellee, Worthington Group of Wyoming, LLC: Dawn Rae Scott and Laurence W. Stinson, Bonner Stinson, PC, Powell, Wyoming.

Facts/Discussion: In a series of administrative decisions, the Park County Commissioners approved plans by Worthington Group of Citizens, LLC to develop a residential subdivision known as Copperleaf. Northfork Citizens for Responsible Development, David Jamison and Robert Hoszwa sought judicial review. Jamison and Hoszwa own and live on property adjoining Copperleaf adjacent to the area where Worthington proposes to develop duplexes.
Standing under the Wyoming Administrative Procedure Act has been explained as including one who has a legally recognizable interest in that which will be affected by the action. A potential litigant must show injury or potential injury by alleging a perceptible harm resulting from the agency action. The lesson of the decisions in Hoke and Hirschfield was that adjoining landowners have standing to appeal land use decisions that result in a substantial increase in the allowed housing density. If Jamison and Hoszwa are correct in their assertion that the County’s 1985 approval of duplex development has expired, then the County’s decisions approving Copperleaf will result in a substantial increase in housing density.

Holding: Because Jamison and Hoszwa have established standing in the case, Northfork also has standing. Accordingly, the Court found error in the district court’s order dismissing their appeal.

Reversed and remanded.

J. Burke delivered the decision.

Link: http://tinyurl.com/56dvy2 .

[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 87

Summary of Decision issued July 29, 2008

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

Case Name: Daniel v. State

Citation: 2008 WY 87

Docket Number: S-07-0191

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk Allan Morgan, Assistant Appellate Counsel.

Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny Lynn Craig, Assistant Attorney General.

Facts/Discussion: Daniel was convicted of misdemeanor battery. He was later charged with felony aggravated assault and battery arising from the same incident after the State discovered that the victim’s injuries were more severe than it had originally believed.
The double jeopardy clause prohibits prosecution of a defendant for a greater offense when he has been previously convicted of the lesser included offense. Although the State conceded that Daniel’s second conviction was a lesser included offense of aggravated assault and battery they argued it was permissible because of a long-recognized exception to the double jeopardy rule. An exception may exist because the additional facts necessary to sustain the charge have not occurred or have not been discovered despite the exercise of due diligence. The Court reviewed the record and noted there was no evidence that the police or the State had any knowledge that the victim’s condition had deteriorated significantly after the officers left the hospital.
The Court disagreed with Daniel’s claim that his misdemeanor prosecution for battery firmly established the fact that he caused bodily injury to the victim and that the doctrine of collateral estoppel prevented the State from charging him with aggravated assault and battery. There was nothing about his first conviction for simple battery that was inconsistent with his subsequent conviction for aggravated assault and battery.

Holding: Based on the district court’s finding that the State exercised due diligence, the Court also agreed with its legal conclusion that the felony prosecution was not barred by principles of double jeopardy. The finding of bodily injury in the first prosecution does not preclude a finding of serious bodily injury in the second prosecution. Collateral estoppel doctrine does not preclude Daniel’s subsequent prosecution for aggravated assault and battery.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/5kyhon .

[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.]

Tuesday, July 22, 2008

Summary 2008 WY 86

Summary of Decision issued July 22, 2008

[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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Pinker v. State

Citation: 2008 WY 86

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=452058

Docket Number: S-07-0187

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; and Tina N. Kerin, 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.

Date of Decision: July 22, 2008

Facts: Appellant entered a plea of guilty to a violation of Wyo. Stat. § 6-2-502(a)(i) (LexisNexis 2007) in that he inflicted injuries on his two-month-old daughter which caused her serious, permanent, and disabling injuries. He was sentenced to be imprisoned for six to eight years. In addition, he was also ordered to complete restitution to the Office of Healthcare Financing (OHCF), care of ACS Third Party Liability for the amount of Medicaid benefits that had been paid on behalf of his daughter as of the date the presentence report was completed. The presentence report also provided the court with verification that OHCF was subrogated to the rights of his daughter with respect to any claim that ... she may have arising from the accident or incident and this subrogation extends to all Medicaid funds paid or to be paid on account of her injuries, and OHCF must be reimbursed for those amounts.

Issues: Whether the district court's oral pronouncement of restitution was controlling and an illegal sentence. Whether the district court exceeded its statutory authority in awarding restitution to the Office of Healthcare Financing, as that entity is not a "victim" as defined by statute.

Holdings: The essence of Appellant's argument is that the district court's oral sentence effectively awarded an uncertain and unspecified amount of restitution, not to exceed $200,000.00, and did not name the victim. His claim is that both of these matters are required to be made definite in the oral sentence and, having failed to comply with the statute, the sentence is illegal. However, under the circumstances presented here, the plea agreement clearly informed Appellant that he would be required to pay restitution for the treatment provided to his daughter. The district court mistakenly believed that it could order Appellant to be required to pay restitution in an amount "to be determined." However, that mistaken belief was corrected prior to entry of the written sentence. The evidence of record fully supported the district court's initial oral findings and that can easily be followed through to the written sentence. Under these circumstances, Appellant's contention that the oral sentence conflicts with the written sentence must be rejected, and any suggestion that the oral sentence was illegal is also rejected. There is no real ambiguity in the trial court's sentences, both oral and written and there is no real discrepancy or conflict between them. It should also be noted that Appellant did not make objections to the restitution award either at the sentencing hearing or after the written sentence was entered of record.

Appellant contends that the Office of Healthcare Financing (OCHF) is not a victim as defined by the governing statute and, hence, the district court exceeded its statutory authority in ordering that it be paid restitution. A part of the plea agreement in force in this case made it clear that Appellant would be paying restitution to the victim or victims of his crime. That, of course, was aimed directly and primarily at the costs of caring for and maintaining his daughter. "Victim" is defined by statute: "'Victim' means a person who has suffered pecuniary damage as a result of a defendant's criminal activities. Under Wyo. Stat. 7-9-101(a) (v) (2007), an insurer which paid any part of a victim's pecuniary damages shall be regarded as the victim only if the insurer has no right of subrogation and the insured has no duty to pay the proceeds of restitution to the insurer." However, the restitution statute does not define "insurer." In this case, Medicaid paid the enormous medical bills generated by the treatment for the injuries inflicted by Appellant on his daughter. Wyo. Stat. 42-4-201 through 42-4-206 (2007) detail the State of Wyoming's right to recover, by way of subrogation, benefits paid for Medicaid services under circumstances like those presented in this case. Looking to the logical source for a definition, the Wyoming Insurance Code which defines "insurer" as "any person engaged as indemnitor, surety or contractor in the business of entering into contracts of insurance or annuity" and defines insurance as a contract. Wyo. Stat. 26-1-102(a)(xvi), (xv). OHCF is not in the business of entering into contracts of insurance or annuity and does not enter into contracts for insurance. The Insurance Code does not purport to govern the Medicare system. Further, OCHF was required to pay the medical expenses which resulted from Appellant's assault. Therefore, OCHF is not an insurer for purposes of the restitution statute, and the trial court's order is affirmed.

The judgment and sentence of the district court are affirmed.

J. Hill delivered the opinion for the court.

Summary 2008 WY 85

Summary of Decision issued July 21, 2008

[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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Kunselman v. State

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=452054

Citation: 2008 WY 85

Docket Number: S-07-0167

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

Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; 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; Paul S. Rehurek, Senior Assistant Attorney General

Date of Decision: July 21, 2008

Facts: Appellant entered a conditional plea of no contest to a charge of felony possession of methamphetamine. She reserved the right to appeal the district court's denial of her motion to suppress the methamphetamine evidence seized during a search of her purse following a traffic stop.

Issues: The estimate of the speed of Appellant's pickup truck on a Wyoming highway did not meet the requirements of probable cause or reasonable suspicion necessary for search, seizure or investigatory detention and any evidence obtained as a result of such search or seizure should be suppressed.

Holdings: A guilty plea or nolo contendere plea waives appellate review of all non-jurisdictional claims. Constitutional challenges to pretrial proceedings, including claims of unlawfully obtained evidence, as in this case, fall into the category of non-jurisdictional claims which do not survive a valid guilty plea or nolo contendere plea. The only exception to the waiver rule can be found in W.R.Cr.P. 11(a)(2), which allows a defendant to plead guilty while reserving the right to seek review on appeal of any specified pretrial motion. However, a conditional plea of guilty or nolo contendere, while providing a mechanism for appellate review, does not provide carte blanche permission for an appellant to present any and all arguments on appeal. Instead, an appellant may only argue those issues which were clearly brought to the attention of the district court. In her motion to suppress and her argument at the suppression hearing, Appellant focused on the scope and duration of the stop and the subsequent search of her purse. She did not argue that there was insufficient cause to perform a stop for speeding nor did she contest in any manner the reasonableness of the initial traffic stop. In fact, in her motion to suppress, Appellant acknowledged as a factual matter that was stopped for exceeding the posted speed limit. Under well-established precedent, Appellant's conditional plea of no contest preserved only those issues raised in her suppression motion. Appellant did not contest the legality of the initial traffic stop in the district court and, accordingly, waived her right to make that argument on appeal.

The challenged questioning occurred after Appellant's detention on the traffic violation had terminated. The propriety of any further interaction at that juncture depends on Appellant's consent or the presence of reasonable suspicion of criminal activity. Whether Appellant voluntarily consented to the additional questioning is a question of fact which must be determined in light of the totality of the circumstances. Some of the factors which may be considered in assessing whether the consent was voluntary include: the way the request was phrased by the trooper, whether Appellant knew she could refuse the request, and the presence of other coercive factors. The record discloses that: (1) the entire traffic stop was very brief, with the initial traffic detention lasting about ten minutes; (2) Appellant remained in her vehicle while the trooper prepared the traffic citations; (3) she was not questioned concerning matters unrelated to the motor vehicle infractions; (4) Appellant knew she was free to go at the time the request was made; (5) the trooper's conduct throughout the encounter was professional and neither threatening nor otherwise overbearing; and (6) Appellant's consent to further questioning was unhesitant and immediate. Under the totality of the circumstances, Appellant's consent was voluntary. A reasonable person in Appellant's position would have felt free to refuse the trooper's request and proceed on her way. Consequently, constitutional boundaries were not transgressed in this instance.

In response to questioning, Appellant admitted having marijuana. She then produced a small flowered purse and stated, "It's in there." By handing the purse to the officer Wright, Appellant gave implicit consent for the trooper to look inside. Furthermore, Appellant's admission that the purse contained marijuana provided probable cause for the trooper to search it. Thus, the trooper's search of Appellant's purse was constitutionally reasonable under the circumstances.

Appellant waived her right to contest the validity of the initial traffic stop when she failed to present that issue to the district court. Appellant voluntarily consented to further questioning after the traffic stop was completed, and the subsequent search of her purse was proper. The judgment and sentence of the district court is affirmed.

J. Golden delivered the opinion for the court.

Monday, July 21, 2008

GoWYLD Online Resources


GoWYLD.net, the portal provided by the Wyoming State Library for access to online resources and databases has recently updated their search interface. It is now easier than ever to search the many and varied databases available through Wyoming libraries.

In addition to browsing these resources by subject or choosing a specific database alphabetically, you can now search many (though not all) databases through one keyword search (basic or advanced). Once you have a set of results, you can filter them for full text articles or sort them by date or author. You can also use the "cluster" feature to aid in refining your results. Then you can export, save or email the results you select.

Friday, July 18, 2008

Summary 2008 WY 84

Summary of Decision issued July 18, 2008

[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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: In the Matter of the Worker's Compensation Claim of Bradley M. Dale v. S & S Builders, LLC

Citation: 2008 WY 84

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=452050

Docket Number: S-07-0145

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

Representing Appellant (Petitioner): Lynn Boak, Cheyenne, Wyoming

Representing Appellee S& S Builders (Employer): J. Stan Wolfe, Gillette, Wyoming.

Representing Appellee State of Wyoming ex rel. Wyo. Workers' Safety & Comp. Division: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Assistant Attorney General.

Date of Decision: July 18, 2008

Issues: Whether it was a fundamental error for the hearing examiner to acknowledge that due to his prescription medication the Appellant "was not always coherent in his testimony" and recess the hearing, then make ultimate findings of fact in which discrepancies in the Appellant's testimony between the first segment and the second segment of the hearing were used. Whether the Hearing Examiner's Findings of Fact, Conclusions of Law and Order denying benefits for an staph infection in Petitioner's knee were arbitrary, capricious or an abuse of discretion.

Standard of Review: In the interests of simplifying the process of identifying the correct standard of review, henceforth the substantial evidence standard will be applied any time the court reviews an evidentiary ruling in an administrative appeal. When the burdened party prevailed before the agency, it will be determined if substantial evidence exists to support the finding for that party by considering whether there is relevant evidence in the entire record which a reasonable mind might accept in support of the agency's conclusions. If the hearing examiner determines that the burdened party failed to meet his burden of proof, the court will decide whether there is substantial evidence to support the agency's decision to reject the evidence offered by the burdened party by considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole. If, in the course of its decision making process, the agency disregards certain evidence and explains its reasons for doing so based upon determinations of credibility or other factors contained in the record, its decision will be sustainable under the substantial evidence test. Importantly, the review of any particular decision turns not on whether the court agrees with the outcome, but on whether the agency could reasonably conclude as it did, based on all the evidence before it.

The arbitrary and capricious standard remains a "safety net" to catch agency action which prejudices a party's substantial rights or which may be contrary to the other Wyoming Administrative Procedures Act (WAPA) review standards yet is not easily categorized or fit to any one particular standard." The "safety net" application of the arbitrary and capricious standard is not meant to apply to true evidentiary questions. Instead, the arbitrary and capricious standard will apply if the hearing examiner refused to admit testimony or documentary exhibits that were clearly admissible or failed to provide appropriate findings of fact or conclusions of law. There will be times when the arbitrary and capricious standard appears to overlap with some of the other standards. For example, a decision against the great weight of the evidence might properly be called arbitrary or capricious in everyday language. However, the words "arbitrary" and "capricious" must be understood in context as terms of art under the administrative review statute and should not be employed in areas where the more specifically defined standards provide sufficient relief.

A party is obligated to object at the agency level to the administrative tribunal's procedure so that the tribunal will have an opportunity to correct its errors. If a party has an opportunity to object to the administrative tribunal's procedural rulings and fails to do so, it waives its right to challenge the administrative tribunal's procedure on appeal.

In the present action, Appellant was given an ample opportunity to be heard and, in the absence of an objection, he waived his right to contest the hearing examiner's procedural ruling. Because both segments of the hearing were part of the evidentiary record, the hearing examiner appropriately referred to both and noted inconsistencies in Appellant's testimony. Moreover, Appellant was not prejudiced by the hearing examiner considering both portions of the hearing in reaching his decision. While the hearing examiner did note some minor discrepancies in Appellant's testimony, those discrepancies were not the sole or even primary reason for the hearing examiner's decision.

The claimant has the burden of proving each of the essential elements of his claim by a preponderance of the evidence. As a part of that burden, the claimant must prove a causal connection exists between a work-related injury and the injury for which worker's compensation benefits are being sought. That determination involves a question of fact.

It is abundantly clear from the record that the evidence in this case was extensive and complex. There was quite a bit of contradictory evidence regarding the origin of the wound. It was the hearing examiner's responsibility to determine the credibility of the witnesses and weigh the evidence, including that obtained from medical experts. The hearing examiner weighed the evidence and concluded there was no causal connection between the work related injury and the staph infection. A hearing examiner is entitled to disregard an expert opinion if he finds the opinion unreasonable, not adequately supported by the facts upon which the opinion is based, or based upon an incomplete and inaccurate medical history provided by the claimant. An examination of the conflicting and contradictory evidence shows that there is substantial evidence, or relevant evidence that a reasonable mind might accept, to support the hearing examiner's decision that there was no causal connection between Appellant's staph infection diagnosed his work related injury. The hearing examiner, therefore, properly denied Appellant's claim.

Affirmed.

J. Kite delivered the opinion for the court.

Summary 2008 WY 83

Summary of Decision issued July 16, 2008

[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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Hicks v. State

Citation: 2008 WY 83

Docket Number: S-07-0086

Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge

Representing Appellant (Defendant): Sylvia Lee Hackl of Cheyenne, Wyoming;* Michael H. Reese of Michael Henry Reese,** Cheyenne, Wyoming [*Order Granting Motion to Withdraw entered March 13, 2008. **Entry of Appearance entered March 13, 2008].

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

Date of Decision: July 16, 2008

Appellant was tried on charges relating to two homicides that occurred in Gillette, Wyoming, in the fall of 2005. He was convicted on one count of first degree murder, and on two counts of conspiracy to commit murder. He was acquitted on another count of first degree murder. He was sentenced to three consecutive terms of life imprisonment without the possibility of parole.

Issues: Whether the district court erred in denying Appellant's motions to suppress his post-arrest statements made to law enforcement. Whether Appellant is entitled to a new trial because the State suppressed exculpatory evidence in violation of his right to due process.

Holdings: Under Article 1, §§ 6 and 11 of the Wyoming Constitution, as under the Fifth and Fourteenth Amendments to the United States Constitution, a defendant is deprived of the right to due process of law if an involuntary statement is admitted at his trial. The State has the burden of proving by a preponderance of the evidence, under the totality of the circumstances, that a confession, admission, or statement was given voluntarily. Appellant accurately points out that he did not sign any written acknowledgements or waivers of his Miranda rights. None of his statements to the investigator were recorded, although video and audio recording equipment was available at the time. After preparing written reports, the investigator destroyed any notes he had made during the meetings with Appellant. Thus, the State presented no documentary evidence that Appellant's statements were voluntary. Appellant asserts that the investigator's testimony, without documentary support, was insufficient to sustain the State's burden of proving by a preponderance of the evidence that the statements were voluntary.

It may well be that a written waiver of Miranda rights "constitutes 'better' evidence" than oral testimony alone. However, Appellant has cited no cases, and we have found none, holding that the State is required to present written evidence to prove that a defendant's statements to law enforcement officials were voluntary. To the contrary, the State may satisfy its burden with recording or witness evidence, and there is no requirement that interviews and interrogations must be electronically recorded. In Appellant's case, the investigator provided clear and unequivocal testimony, which was thoroughly tested through cross examination. This testimony, if believed by the district court, was sufficient evidence for the State to meet its burden of proving that Appellant's statements were voluntary.

The district court did believe the testimony, and found that Appellant had been advised of his Miranda rights at least three of the four times he talked to law enforcement officials on the first day after his arrest. The record of the investigator's testimony supports this finding, and it cannot be concluded that it is clearly erroneous. The district court also correctly concluded that satisfying Miranda does not resolve the question of voluntariness, because the State must further prove that the statements were voluntary, that is, that they resulted from free and deliberate choice rather than intimidation, coercion, or deception. On this question, the district court found that Appellant had initiated each of the conversations, and that there was a complete absence of evidence of threats or promises from any source surrounding the interrogation. Again, these factual findings are supported by the record and are not clearly erroneous. Based on these facts, the district court's legal conclusion that the statements were in all respects voluntary was correct.

Appellant's statements to the investigator on the second day after his arrest are subject to additional analysis, because they were made after he invoked his right to counsel. When a defendant asserts his right to counsel, any subsequent waiver of the right to counsel during police-initiated interrogation is invalid. This rule does not apply, however, when the accused himself initiates further communication. The burden is on the State to prove that the defendant initiated the contact, and that the waiver of his right to counsel was knowing and voluntary. In the present action, the investigator's testimony is clear that Appellant asked to see him soon after the initial appearance in the circuit court. The investigator again advised Appellant of his Miranda rights. The investigator reminded Appellant that he had asked for an attorney, and actually discouraged Appellant from talking to him again. Nevertheless, Appellant said that he still wanted to talk to the investigator. This evidence fully supports the district court's findings that these communications were initiated by Appellant, and while he had previously invoked his right to counsel, he knowingly and voluntarily waived that right. The district court's findings of fact are not clearly erroneous, and its conclusions of law are correct.

The denial of Appellant's motions to suppress evidence of his statements to the investigator are affirmed.

It is a violation of due process for the prosecution to suppress evidence that is favorable to a defendant, and material to the defendant's guilt or punishment. To establish a violation, Appellant has the burden of demonstrating that the evidence was favorable, that it was suppressed, and that it was material. The district court ruled that the evidence was favorable to Appellant, because it could have been used to impeach one of the main witnesses against Appellant. The State does not contest this ruling. However, the district court wrote that it was not entirely convinced that the evidence had been suppressed. It noted, on the one hand, that evidence is not suppressed if the defendant either knew or should have known of the essential facts permitting him to take advantage of any exculpatory evidence and that Appellant had enjoyed unfettered access to the witness whose testimony is in question and his counsel could have questioned him. On the other hand, the district court noted that the State has presented no authority to suggest that the content of a witness' interview with law enforcement officers is equally available to a defendant when the defendant is acquainted with that witness. Absent such an argument, this interview appears to be suppressed. To resolve this uncertainty, the district court in effect gave Appellant the benefit of the doubt, and assumed that the State had suppressed the statements. The district court concluded, however, that the evidence was not material. Reviewing the record as a whole, the court concludes there is not a reasonable probability the result of the proceeding (guilty verdicts on three of four counts; life without parole as punishment on the two capital counts) would have been different had the suppressed statement been disclosed to the Defendant in a timely manner. Nor did its non-disclosure to the Defendant undermine confidence in the outcome of the trial in either the guilt or penalty phases.

The district court's denial of Appellant's motion to suppress evidence of his statements to law enforcement officials following his arrest, and of his motion for a new trial on the grounds that exculpatory evidence was improperly suppressed is affirmed. Therefore the district court's conviction and sentencing of Appellant is affirmed in all respects.

J. Burke delivered the opinion for the court.

Summary 2008 WY 82

Summary of Order issued July 16, 2008

[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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Board of Professional Responsibility, Wyoming State Bar v. Stan Decker Cannon

Citation: 2008 WY 82

Docket Number: D-08-0002

Summary of Order: The Report and Recommendation of the Board of Professional Responsibility regarding Respondent's violations of Rules 1.3, 1.4, 3.2 and 3.4(c) of the Rules of Professional Conduct is approved, confirmed, and adopted by the Court; and Respondent Stan Decker Cannon is suspended from the practice of law for a period of two months, beginning August 15, 2008. It is further ordered that, pursuant to Rule 26 of the Disciplinary Code for the Wyoming State Bar, Respondent shall reimburse the Wyoming State Bar for the costs incurred in handling this matter, as well as pay an administrative fee.

Summary 2008 WY 81

Summary of Decision issued July 15, 2008

[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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Inman v. Williams

Citation: 2008 WY 81

Docket Number: S-07-0064

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

Representing Appellant (Plaintiff): John D. Bowers of Bowers Law Firm, Afton, Wyoming

Representing Appellee (Defendant): William L. Combs of Combs Law Office, Evanston, Wyoming

Date of Decision: July 15, 2008

Issues: Whether the district court's order restricting Appellant's rights in caring for his children was not supported by the evidence and/or a violation of his fundamental rights to associate [with] and raise his children

Facts: This appeal brings into focus a non-custodial parent's long-standing effort to secure visitation with her two children which the district court, pursuant to the parents' stipulation, ordered nearly eight years ago. Appellant father, the custodial parent, appeals a district court's order which found that he was not in contempt for failing to follow an earlier order since the failure was neither willful or intentional but also reiterated a number of the same directives made to Father and Mother regarding the children that were contained in that earlier order and made some changes to others. In the appeal, Father asserts that the district court's order with specific directives violates his fundamental rights to associate with and raise his children and is not supported by evidence. While Mother disagrees with Father's assertions, she also raises the issue whether the district court's order is an appealable order as required by W.R.A.P. 1.05 so that this Court has jurisdiction to entertain this appeal.

Holdings: The father and mother are natural guardians of the persons of their minor children. Parents enjoy a constitutionally protected fundamental right to make decisions concerning the care, custody, and control of their children.. This fundamental right has been recognized as a liberty interest protected under the Fifth and Fourteenth Amendments to the United States Constitution, and is also found in Wyo. Const. art. 1, § 6. In the present actions, Appellant Father claims that his right to raise his children and make those decisions is affected by the order's amended directives.

Responding to Father's claims, Mother asserts (1) the order originates from a contempt proceeding in which the court did not hold Father in contempt and, therefore, is interlocutory in nature, not final, and not appealable; (2) the order does not affect Father's substantial rights; (3) the order does not determine the merits of the controversy between Father and Mother; and (4) the order does not resolve all the outstanding issues.

After careful consideration of the parties' respective contentions, the court found that Appellee Mother's arguments were more persuasive. The true thrust of the court's order is to provide therapeutic counseling to the parties' children so that eventually Mother's long-delayed visitation with her children can be determined and established. Until the children's therapeutic counseling has reached the point at which Mother's visitation can be determined and established, the terms of that visitation have not been fixed. Because the order does not hold Father in contempt and does not fix the terms of Mother's visitation, the order does not determine the action.

Although the order contains language that the children's therapeutic counselor, in consultation with the guardian ad litem, shall determine the terms of Mother's visitation when the children have been prepared for that visitation, in the exercise of this Court's supervisory authority, the therapeutic counselor and the guardian ad litem are directed to recommend such terms to the district court and that court shall establish, with all deliberate speed, the appropriate terms of visitation as provided by statute.

Appeal dismissed.

J. Golden delivered the opinion for the court.

Summary 2008 WY 80

Summary of Decision issued July 14, 2008

[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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Lasen v. Anderson

Citation: 2008 WY 80

Docket Number: S-07-0138

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

Representing Appellant (Plaintiffs): Jerry M. Smith of Torrington, Wyoming.

Representing Appellee (Defendant): Howard P. Olsen Jr. of Simmons Olsen Law Firm, Scottsbluff, Nebraska

Date of Decision: July 14, 2008

Facts: Robert Anderson was the father of Barbara (Anderson) Lasen and Samuel L. Anderson. Samuel predeceased his father, dying in April of 1998. Robert passed away in February of 2003 after living most of his adult life in Scottsbluff, Nebraska. Prior to both men passing, Robert executed a deed in 1995 conveying a farm in Goshen County, Wyoming, to his children, Barbara and Samuel. After Samuel died, Robert executed another deed on July 2, 1998, conveying the same Goshen County farm to Barbara and her husband Paul (the Lasens). Disputing the validity of the new deed, in May of 1999 Samuel's children Tricia Rohloff and Lee Anderson filed a Notice of Execution and Delivery of Warranty Deed with the Goshen County Clerk asserting an interest in the farm based on the first deed executed in 1995. After Robert died, the 1998 deed was recorded on March 3, 2003, by the Lasens. And although the Lasens' complaint to quiet title asserted their rights to the Goshen County farm based upon the 1998 deed, Samuel's children argued that the 1995 deed was executed, delivered, accepted, and irrevocable - giving no effect to the 1998 deed. Samuel's children further asserted that their grandfather Robert was not competent to execute the 1998 deed, and that the 1998 deed was procured through undue influence on Robert by the Lasens. On July 11, 2005, the Lasens filed the complaint at issue in the instant case, asking the district court to quiet title in the Goshen County farm owned by Robert before he passed away. Named as defendants in the complaint, Tricia Rohloff and Lee Anderson responded and alleged numerous affirmative defenses. On March 21, 2006, First National Bank of Fort Collins, Colorado, as Trustee of the Anderson Family Irrevocable Trust No. 1 dated August 14, 1997, intervened as an additional defendant, claiming an interest in the Goshen County farm on behalf of the estate of Samuel Anderson. After a bench trial, the district court entered an Order Denying Plaintiffs' Complaint to Quiet Title and Granting Intervenor's Counterclaim to Quiet Title.

Issues: Whether the findings of the District Court are clearly erroneous as a matter of law and unsupported by the evidence. Whether the District Court erred in determining that the Plaintiffs exercised undue influence to gain execution of a 1998 Deed to the property. Whether the District Court erred in determining a 1995 Deed was properly delivered. Whether the District Court erred by not considering whether Defendants had unclean hands.

Holdings: In order to prevail on a claim of undue influence, the following must be proven: 1) opportunity to control; 2) a condition permitting subversion; and 3) activity on the part of the person charged. Upon review, the facts in the instant case amount to one of the clearest cases of undue influence the court has seen To support its conclusions, the district court noted that even before Samuel Anderson's funeral, the Lasens were making appointments with attorneys to assure that Robert Anderson's will was changed. The substantive changes to that will all but disinherited Samuel Anderson's children, gave most of the estate to Barbara Lasen, and ultimately Paul Lasen if he survived Barbara. The court also declared it "apparent" that by 1998, Robert's mental health was "seriously compromised," noting that one day Barbara took her father to the doctor to discuss his deteriorating mental status, and the very next day took him to an attorney to execute a new will and a new deed to the Goshen County farm, which deed was prepared by Mr. Lasen. The district court's findings do not stop there. The court observes in its decision letter that the Lasens took Robert to a nursing home with orders to not resuscitate him in the event of an emergency. Also, in violation of a court-ordered conservatorship, the Lasens used their power-of-attorney to transfer large sums of money from Robert to themselves, to buy a car and an airplane, and to sell Robert's Arizona townhouse for their own profit. The district court ultimately found that the Lasens clearly had an opportunity to control Robert Anderson. The activities of the Lasens after Samuel Anderson's death were continually directed towards causing Robert Anderson to change his will, his power-of-attorney, and the deed in question. Seeing no facts to the contrary, the district court is affirmed.

To effect a conveyance transferring title, a deed must be both executed and delivered. At the time of the delivery the grantor's intent is of primary and controlling importance. The Lasens argue that the deed was never delivered exactly as Robert instructed and that there is a "total lack of evidence of delivery." Undeniably, the deed was accepted by Samuel for filing upon his father's death rather than being given to Paul Lasen to hold in escrow until Robert's death as were the exact instructions. However, as the district court points out, the Lasens were "ready and willing to accept any and all of Robert Anderson's assets at any time." The district court found a "clear, irrevocable transfer" of the Goshen County property by Robert Anderson. The fact that a second deed was written and executed by the Lasens in 1998 does not obviate the first deed that was both executed and delivered.

Finally, the Lasens argue that Samuel Anderson's children come before this Court with unclean hands, alleging first that Samuel's children refused to give Robert his papers, files, and other property when requested, and second that Samuel embezzled funds from another trust, and from Barbara Lasen, and that the existence of the 1995 deed and escrow letter was concealed throughout the legal proceedings. This argument fails on appeal as it appears to be a "red herring" argument made by the Lasens in a last ditch effort to resurrect this case in their favor. Furthermore, the Lasens have failed to support what argument they make with citation to or analysis of pertinent legal authority.

The district court's Order Denying Plaintiff's Complaint to Quiet Title and Granting Intervenor's Counterclaim to Quiet Title is affirmed.

J. Hill delivered the opinion for the court.

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