Summary 2009 WY 12

Summary of Decision issued January 30, 2009

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

Case Name: Spagner v. State

Citation: 2009 WY 12

Docket Number: S-08-0105

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

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

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Interim Faculty Director and Eric Thompson, Student Director, Prosecution Assistance Program.

Facts/Discussion: Appellant was charged by Information with two counts of first-degree sexual assault and three counts of thirds-degree sexual assault. A jury found him guilty of all five crimes. The appellant contended below, and contends again on appeal, that the Information and its supporting affidavit afforded him insufficient notice of the charges against him, that the verdict form was flawed, and that the district court improperly allowed amendment of the Information to conform with the evidence.

Adequately inform appellant: An Information is required to contain the elements of the offense charged, to fairly inform a defendant of the charges against which he must defend and to enable a defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. Wyoming follows the rule that the sufficiency of an information is determined from a broad and enlightened standpoint of right reason rather than from a narrow view of technicality and hairsplitting. The key is whether the defendant has been misled to his prejudice. The Court stated that the Affidavit and Information, although not models of clarity, did not fail to give the appellant adequate notice of the five crimes with which he was being charged.
Fatal Variance Between Charges Alleged and Charges Proven: A variance occurs when the evidence presented at trial proves facts different from those alleged in the information or indictment. A variance is not fatal unless the appellant could not have anticipated from the indictment or information what evidence would be admitted at trial, or the conviction would not bar subsequent prosecution. The Court stated that if they were to find a variance existed it would not have been materially prejudicial to the appellant because the charges remained the same, the nature of the charges remained the same, and the character of the evidence remained the same.
Right to Due Process or Notice: The Court reviews a district court’s decision to grant or deny a motion for leave to amend an information for an abuse of discretion, focusing upon the question of whether the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious. The Court stated that the issue was decided against appellant through its resolution of the first two issues. Appellant was not misled into believing that he actually was defending the allegation of a crime that took place in 2004. Rather, he was trying to take advantage of a mistake in a recitation of dates by the young victim. No additional or different offense was charged via the amendment and substantial rights of the appellant were not prejudiced.

Conclusion: The Appellant was adequately informed of the charges against which he would be required to defend at trial, there was no fatal variance between the facts alleged and the facts proven at trial, and substantial rights of the appellant were not prejudiced by amendment of the Information.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/bftdjd .

[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 2009 WY 11

Summary of Decision issued January 29, 2009

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

Case Name: Krenning v. Heart Mountain Irrigation District and James Flowers and State

Citation: 2009 WY 11

Docket Number: S-07-0271

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

Representing Appellants Krenning: Larry B. Jones and William L. Simpson, Burg, Simpson, Eldredge, Hersh & Jardine, PC, Cody, Wyoming; Michael S. Messenger, Messenger & Jurovich, PC, Thermopolis, Wyoming; Thomas W. Redmon, Redmon Law Offices, Casper, Wyoming.

Representing Appellee Heart Mountain Irrigation District: Jay A. Gilbertz, Yonkee & Toner, LLP, Sheridan, Wyoming.

Representing Appellee, James Flowers: Jason A. Neville and Lori L. Gorseth, Williams, Porter Day & Neville, PC, Casper, Wyoming.

Representing State as Intervenor: Bruce A. Salzburg, Attorney General; Elisabeth C. Gagen, Chief Deputy Attorney General; Martin L. Hardscog, Senior Assistant Attorney General; Bridget L. Hill, Senior Assistant Attorney General.

Facts/Discussion: The Krennings brought suit against the Heart Mountain Irrigation District (District) and its employee, James Flowers, seeking recovery for personal injuries Mr. Krenning suffered in an altercation with Mr. Flowers. The district court ruled that the District and Flowers were immune from liability pursuant to the Wyoming Governmental Claims Act (WGCA) and granted summary judgment in their favor.

Subject to Governmental Immunity: The Court considered whether the Irrigation District was a governmental entity to which immunity was granted by the WGCA. The Court stated that the District is a corporate body which was founded and owned in the public interest. To the extent that irrigation districts promote the public welfare, they were created for the administration of public affairs. The assessments levied against district members are collected by the same officer and in the same manner and at the same time as state and county taxes which gives the assessments the character of public funds. In addition, the statutes dealing with irrigation districts expressly provide that the commissioners of an irrigation district are declared to be public officers. The Court also noted that in prior decisions, it has considered irrigation districts as public corporations.
The Krennings also argued that the WGCA was enacted generally to limit the scope of governmental immunity and that because irrigation districts did not enjoy governmental immunity prior to the enactment of the WGCA, extending it afterwards was contrary to the general purpose of that act. The Court rejected the argument stating that in recognizing that the language of the legislature was clear and unambiguous, it must conclude that the WGCA language provided governmental immunity to irrigation districts.
Governmental Immunity waived for the District as a “public utility”: The Krennings sought to apply an exception to the Irrigation District. The question of whether an irrigation district was a public utility was a question of first impression for the Court. The WGCA doe not define public utility but the Krennings noted the definition found in the statutes governing public utilities. The Court stated that the District supplies water only to its members and not to the public and that a public utility is open to the use and service of all members of the public who may require it. Just as an electric company supplying electricity to a limited number of distributors is not a public utility, neither was the District.
Summary Judgment Proper for Flowers: THE WGCA extends governmental immunity to the governmental entity and its public employees while acting in the scope of duties. The district court granted summary judgment to Flowers as an employee of the District and subject to governmental immunity. The Krennings contended that he was not so entitled because his actions, an intentional assault and battery, were outside the scope of his employment. However, when the Court reviewed the pleadings, they did not find any allegation that Flowers had acted outside the scope of his employment. All of the allegations were expressly made against Flowers as an employee of the District. In that capacity, he was subject to governmental immunity and summary judgment was properly granted in his favor.
Governmental Immunity Violate Equal Protection Guarantees: In light of the public benefits conferred by irrigation districts, it was apparent to the Court that there was a rational relationship to an appropriate legislative purpose served by extending governmental immunity to irrigation districts.

Conclusion: In recognizing that the language of the legislature was clear and unambiguous, the Court concluded that the WGCA language provided governmental immunity to irrigation districts. Just as an electric company supplying electricity to a limited number of distributors is not a public utility, neither was the Irrigation District. All of the allegations were expressly made against Flowers as an employee of the District. In that capacity, he was subject to governmental immunity and summary judgment was properly granted in his favor. The Court stated the Krennings had not carried their burden of demonstrating that the WGCA’s grant of immunity to irrigation districts was unconstitutional “clearly and exactly” or “beyond any reasonable doubt.”

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/ct9nxr .

[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 2009 WY 10

Summary of Decision issued January 29, 2009

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

Case Name: In re: Estate of Thomas

Citation: 2009 WY 10

Docket Number: S-08-0109

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

Representing Appellant Dickson: William L. Hiser of Brown & Hiser, LLC, Laramie, Wyoming.

Representing Appellee Thomas: Russell Rauchfuss, Casper, Wyoming.

Facts/Discussion: Appellant Dickson requested review of a district court order which quieted title to the property at issue in the appeal, to Dickson and the estate of Thomas “in equal shares as tenants in common.” Thomas was Dickson’s brother. Dickson contended that the quiet title action should have resulted in recognition that the two siblings held title to the property as joint tenants with sole right of survivorship, and that the occurrence of Thomas’ death left Dickson as the sole owner of the property.

The grantor attempted to create a tenancy by the entireties in his son and daughter but he also used the words “with right of survivorship and not as tenants in common.” The Court thought the Exhibit 1 Deed evidenced an unintentional error (mistake.) A joint tenancy can only be created by an act of the parties but may also be the result of an attempt to create an impossible tenancy by the entirety. The Court concluded that the deed was not ambiguous when all of its language was read together because tenancy in common was forthrightly eliminated. That portion of the district court’s judgment was reversed and the Court remanded the district court enter a judgment reflecting that after the death of her brother, Dickson was now sole owner of the land described in the Exhibit 1 Deed.

The Court thought the circumstances were different with the Exhibit 2 Deed. Wyo. Stat. Ann. § 34-4-140 reflects the legislative intention that “joint tenancies” and “tenancies by the entireties” are created by the use of one or the other of those phrases. The Court considered the wording of the Exhibit and stated that since there was no apparent intention to create a tenancy by the entireties, by default it assumed that a tenancy in common was intended.

Conclusion: The Court held that the district court erred in treating the Exhibit 1 Deed as creating a tenancy in common. That portion of the district court’s judgment was reversed. The Court affirmed the district court’s order to the extent that it settled the ownership of the Exhibit 2 Deed property in Dickson and Thomas’s estate as tenants in common.

Affirmed in part, reversed in part.

J. Hill delivered the decision.

Link: http://tinyurl.com/bwkdcc .

[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 2009 WY 9

Summary of Decision issued January 29, 2009

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

Case Name: Steranko v. Dunks

Citation: 2009 WY 9

Docket Number: S-09-0008

Order Granting Petition for Writ of Review

The case arose from civil litigation in the Fifth Judicial District, Park County. Petitioner sought review of the district court’s “Motion to Reconsider Decision Letter.” The district court relying on Plymale v. Donnelly stated that such a motion was a nullity in Wyoming. The Court noted that W.R.A.P. 13 was designed for interlocutory review of orders not revisable decision letters. The Court stated that the rule from Plymale should not be extended to pre-judgment motions to reconsider because the concerns with respect to appeals are not present with pre-judgment motions to reconsider. The Court found that recognizing such a motion is consistent with a district court’s traditional authority to revise its rulings prior to final judgment.

The Petition for Writ of Review was granted.

J. Hill delivered the order.

Link: http://tinyurl.com/at46ro .

[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 2009 WY 8

Summary of Decision issued January 29, 2009

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

Case Name: McGarvey v. State

Citation: 2009 WY 8

Docket Number: S-08-0070

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

Representing Appellant McGarvey: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Interim Faculty Director, Prosecution Assistance Program; Eric Thompson, Student Director; and Jill Cottle Garrett, Student Intern.

Facts/Discussion: McGarvey entered conditional pleas of guilty to felony possession of marijuana and misdemeanor possession of methamphetamines. The condition attached to her plea was that she be permitted to pursue an appeal of the district court’s order denying her motion to suppress the evidence seized by the State at the time she was briefly stopped and then arrested.

McGarvey’s contentions were limited to improper searches and seizures under the United States Constitution. The Court referred to their decision in Speten v. State where it described the analytical framework for questions of probable cause. Questions about improper search and seizure are resolved by taking into account the totality of the circumstances. The Court noted that the officer had over 19 years of experience in law enforcement. In Flood v. State, the Court described the three tiers of interaction between police and citizens. The Court determined that the search and seizure in the instant case was not unreasonable. The district court might well have reasoned that the officer’s initial efforts were aimed at a consensual encounter when he followed McGarvey and her companion into the Parkway. McGarvey’s behavior quickly transformed the encounter into an investigatory stop and segued equally as rapidly into an arrest for disobeying the officer’s instructions and McGarvey’s possession of controlled substances.
The Court stated the search of the automobile was a more complicated question. The Court noted that it appeared there was a close temporal relationship between McGarvey’s occupation of the car and her arrest. The officer’s initial action was to merely look through the windows and observe what was in plain view. The Court concluded the factors weighed heavily in favor of categorizing the search as being one incident to her arrest and that the search of it was for evidence of the crime for which she was arrested. Taking into account all of the relevant evidence which the district court was privy to, the Court concluded that the findings were not clearly erroneous and that the search did not violate the Fourth Amendment.

Conclusion: The Court held that the district court properly denied McGarvey’s motion to suppress the evidence obtained incident to a search of her person and of her car.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ab88kb .

[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 2009 WY 7

Summary of Decision issued January 27, 2009

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

Case Name: Durfee v. Durfee

Citation: 2009 WY 7

Docket Number: S-08-0036

Appeal from the District Court of Weston County, the Honorable John R. Perry, Judge.

Representing Appellant Mother: Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Appellee Father: Mark L. Hughes of Hughes Law Office, Sundance, Wyoming.

Facts/Discussion: Jill Durfee (Mother) challenged the district court’s order which denied her petition to modify the parties’ divorce decree that awarded Christopher Durfee (Father) primary physical custody of their two children. The order also granted Father’s petition to modify Mother’s child support obligation and ordered Mother to pay half of Father’s attorney fees and costs.

Custody Modification: Mother, as the party seeking to modify the child custody provisions of a divorce decree, bears the burden of showing that a material change in circumstances has occurred. If that showing is made, the party must also show that modification would be in the best interests of the children. Mother alleged that she and Father agreed to renegotiate custody after she got back on her feet but the argument was not supported by evidence produced at the hearing below. In addition, although an improvement in the personal development of one parent may constitute a material change in circumstances, a change in custody is not automatic. Mother’s evidence essentially showed she was in a stable relationship and lived in a nice house. Although commendable, the Court agreed with the district court that it was not material enough to warrant reopening the initial custody determination. Mother also contended that Father’s personal condition has deteriorated. The Court’s review of the record satisfied it that none of Mother’s allegations justified a finding of a material change in circumstances.
Child Support and Attorney Fees: Mother’s argument for child support and attorney fees was that if she were to prevail on the first issue, then she should prevail on these two issues as well.

Conclusion: The Court found no abuse of discretion in the district court’s determination that no material change in circumstances existed warranting modification of custody. Because Mother did not prevail on the first issue, the other issues she presented were moot.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/csyb8s .

[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 2009 WY 6

Summary of Decision issued January 23, 2009

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

Case Name: Martinez v. State

Citation: 2009 WY 6

Docket Number: S-08-0025

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

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

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Cathleen D. Parker, Senior Assistant Attorney General.

Facts/Discussion: Martinez challenged the district court’s judgment and sentence for the crime of aggravated assault and battery. The victim of the battery was his girlfriend, Erica Duran (Duran), who was also the mother of his child. He asserted the district court erred in denying his motion for judgment of acquittal which was filed at the end of the presentation of the State’s evidence. That motion was based on Martinez’s theory that the victim of his crime did not suffer a severe disfigurement.

Denial of Motion for Judgment of Acquittal: The argument was limited to the single issue of whether or not there was sufficient evidence to allow the jury to deliberate the aggravated assault charge when there was no evidence that Duran suffered a severe disfigurement as contemplated by the aggravated assault statute. The Court extensively quoted its decision in Kelly v. State noting that many of the cases cited drew attention to the fact that the maximum penalty for battery is six months whereas the maximum sentence for aggravated battery is ten years of imprisonment. Based on the language used in the Wyoming Statute, the Court’s existing precedents, and the decisions found in other States, the Court was compelled to conclude the State failed to introduce evidence that Duran suffered severe disfigurement as contemplated by the governing statute.
Instruction Errors: Because the Court reversed the district court’s decision, it declined to address the issues raised with respect to the instructions given in the case.
Testimony of Undisclosed Witness: The appearance of a substitute expert medical witness, without there being any significant notice to the defendant posed a significant concern. The Court deemed it harmless in the instant case because the testimony was primarily directed at severe disfigurement and was of little relevance to the battery charge.
Assessment of Fees and Restitution: Because the Court vacated the judgment and sentence, it did not address this issue in the appeal.

Conclusion: The Court reversed because the State did not present evidence which satisfied the severe disfigurement element of the crime of aggravated assault. Because the evidence of simple battery was overwhelming, the Court directed entry of a judgment against Martinez for that crime and remanded to the district court for sentencing. Because of the reverse and remand, the Court did not address the other issues raised.

Reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/ce8bte .

[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 2009 WY 5

Summary of Decision issued January 22, 2009

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

Case Name: Witowski v. Roosevelt

Citation: 2009 WY 5

Docket Number: S-08-0074

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

Representing Appellant Witowski: Robert E. Schroth of Schroth & Schroth, LLC, Jackson, Wyoming.

Representing Appellee Roosevelt: David G. Lewis, Jackson, Wyoming.

Facts/Discussion: The district court entered a series of orders enforcing a Virginia divorce decree by holding Witowski (Father) responsible to Roosevelt (Mother) for child support and one-half of their daughter’s (Child) education and medical expenses. On appeal, Father maintains that the district court should not have given full faith and credit to the Virginia decree, should have modified the decree to terminate his child support obligation once Child reached the age of majority, and abused its discretion by considering Mother’s evidence of Child’s medical and education expenses and granting judgment in her favor based upon that evidence.

Full Faith and Credit: The district court ruled that the parties’ Virginia divorce decree was entitled to full faith and credit. The parties’ focused on the FFCCSOA as the paradigm for enforcing the child support order. Father argued the district court erred by enforcing the child support provisions because it was a modifiable order and not a final judgment. The Virginia statute is similar to Wyo. Stat. Ann. § 20-2-311. Virginia and Wyoming law allow for modification of future child support, but generally, retroactive modification is not allowed. With respect to past due child support and medical and college expenses, Father’s obligation was not subject to modification under Virginia law. Father also argued that the Virginia child support order was inconsistent with Wyoming law which provides that a child support order terminates once the child reaches the age of majority. The cases cited by Father did not pertain to the FFCCSOA or child support orders. Therefore, the Court did not find the cases persuasive. The Court also stated it was not accurate to say that Wyoming would never impose or recognize a child support order which continues after the child reaches the age of majority. The Court took care to make note they were not expressing an opinion on the question of whether § 20-2-313 prevents divorcing parents from contracting to provide support for children past the age of majority. In the instant case, the decree and the agreement both required Father to pay support until Child reached the age of 23 as long as she was in college which is comparable to Kidd where the Court upheld the post-minority child support obligation under the terms of the parties’ agreement and decree. The child support provision does not violate Wyoming law.

Modification of Child Support: The district court denied Father’s petition to modify the Virginia child support order. Pursuant to §1738B of the FFCCSOA, the district court had authority to modify the child support order because the parents and Child no longer resided in Virginia. Father argued he was entitled to termination of his child support obligation because a substantial chance of circumstances had occurred. He argued the facts that Child was in college, her expenses were otherwise paid under the decree, and she did not reside with Mother established a substantial change. The Court agreed with the district court that the parties contemplated at the time of the decree that Child might live away from mother while in school as they agreed to share equally in the costs of her college education including the costs of books, tuition, lodging, meals and related fees. Father was not entitled to termination of his child support obligation because he did not prove a substantial change in circumstances which the parties had not anticipated at the time of entry of the Virginia decree.

Admission of Child’s Medical and Education Expenses: Father claimed that the exhibits and testimony should have been excluded because Mother did not supplement her responses to his discovery requests in accordance with W.R.C.P. 26 and 37. Even if Mother did not comply with the discovery rules, Father did not show that he was prejudiced.

Admission of Evidence About and Award of Reimbursement for Child’s Education Expenses: Father claimed the district court abused its discretion by admitting Mother’s evidence of Child’s education costs and granting judgment in her favor for one-half of those costs. Father did not provide a transcript of the hearing or a statement of the evidence. Thus the Court accepted the district court’s findings as being based upon sufficient evidence. The district court was free to consider the evidence before it including Mother’s testimony and the documentary evidence in the form of the summary, credit card statements and cancelled checks.

Conclusion: The district court concluded the evidence was sufficient to show that Mother’s expenditures fell within the list of expenses for which Father was responsible under the decree. Without a transcript of the hearing to review, the Court must accept the district court’s analysis and weighing of the evidence. The Court concluded therefore that the district court did not abuse its discretion by considering Mother’s evidence about, or granting judgment in her favor for, Child’s education and expenses.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/dnjhc4 .

[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 2009 WY 4

Summary of Decision issued January 22, 2009

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

Case Name: Shores v. Bucklin

Citation: 2009 WY 4

Docket Number: S-08-0033

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

Representing Appellant Shores: J. Craig Abraham, Plains Law Offices, LLP, Gillette, Wyoming.

Representing Appellee Bucklin: Stephen L. Simonton, Stephen L. Simonton, PC, Cody, Wyoming.

Facts/Discussion: The Shores appealed from the district court’s order entering judgment in favor of the Bucklins quieting title to a parcel of land in Big Horn County. The court ruled that summary judgment was proper, in that the Shores did not have evidence to support a “color of title” theory. Also, there was not satisfaction of the 10-year period for adverse possession. Pursuant to the Wyoming Rules of Civil Procedure (W.R.A.P.), dismissal was proper as a sanction for failure to comply with the scheduling order.

The Shores argued on appeal that there were genuine issues of material fact which a jury should be allowed to determine. The Court has previously held that the party seeking judicial review of an administrative action must comply with the W.R.A.P. and when they fail to do so, the Court may refuse to consider the contentions; assess costs; dismiss the appeal; or affirm the lower court’s decision. The Shores failed to comply with applicable rules, including failure to provide any citation to the record; they also failed to provide relevant argument or legal authority to support their contentions. The Court summarily affirmed the decision of the district court.

Conclusion: Summary judgment in favor of the Bucklins was affirmed. The Shores were ordered to reimburse costs and attorney’s fees generated in the defense of the instant appeal.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/d6zruq .

[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 2009 WY 3

Summary of Decision issued January 14, 2009

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

Case Name: Kelley v. Wyoming

Citation: 2009 WY 3

Docket Number: S-08-0123

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

Representing Appellant Kelley: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel.

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

Facts/Discussion: Kelley pled guilty to burglary pursuant to a plea agreement that included full restitution. In return the State consented to Kelley being treated as a first offender and recommended probation. However, the district court entered an adjudication of guilt and sentenced Appellant to incarceration for three to five years which was suspended and he was placed on supervised probation for four years. Kelley contended that his constitutional right to equal protection of the laws was violated when the district court arbitrarily and capriciously did not grant him first-offender status under Wyo. Stat. Ann. § 7-13-301. In the alternative, he argued that the district court’s denial of first-offender status was an abuse of discretion.

The district court denied first-offender status for two reasons: to punish Appellant for a premeditated night-time burglary, and to deter Wyo. Tech students from further such acts. Kelley provided no cogent argument or authority in support of the theory that a judge abuses her discretion or violates the equal protection doctrine by considering as a sentencing factor the premeditated and invasive nature of the crime. Neither has the appellant shown that general deterrence is an inappropriate sentencing factor.
Kelley also argued that by refusing to grant first-offender status to a defendant convicted of a premeditated crime while being amenable to granting such status to a defendant convicted of an impetuous crime, the district court applied a criterion not found in the statute. The Court stated the law is clear that a sentencing court has broad discretion in considering many factors about both the defendant and the crime.

Conclusion: The district court did not abuse its discretion and did not violate the appellant’s right to equal protection of the laws by declining to grant him first-offender status.

Affirmed.

C.J. Voigt delivered the decision.

J. Hill, concurrence: J. Hill concurred in the result but concluded the district court improperly fashioned the sentence so as to send a message to out-of-state students who attend Wyo. Tech and who commit crimes in Laramie, that they are not likely to be considered eligible for probation.

Link: http://tinyurl.com/a2gy92 .

[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 2009 WY 2

Summary of Decision issued January 13, 2009

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

Case Name: Smith v. Wyoming

Citation: 2009 WY 2

Docket Number: S-07-0267

Appeal from the District Court of Natrona County, the Honorable Keith G. Kautz, Judge.

Representing Appellant Smith: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Michael H. Reese, Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham H. Smith, Assistant Attorney General.

Facts/Discussion: A jury found Smith guilty of second degree murder and concluded he was a habitual criminal. The district court sentenced him to life in prison. On appeal, he claimed there was insufficient evidence to convict him; the State violated his Fifth Amendment rights and engaged in prosecutorial misconduct by referring to his refusal to voluntarily submit a sample for DNA testing; the district court erred by excluding evidence of alternative subjects; the habitual criminal statute as applied to him violated the constitutional prohibition against ex post facto laws; and he should have been granted a change of venue.

Sufficiency of the Evidence: The trial evidence showed that Smith was not truthful about his relationship with Ms. Dively, the victim. The DNA evidence established he had engaged in sexual contact with her. It was reasonable for the jury to infer from the medical evidence that the timing of the sexual activity between the victim and Smith was just prior to her death, strongly suggesting that he murdered her. That inference was supported by the trial evidence that the victim got into a pickup like one Smith owned, with a man that resembled him, shortly before her death. The Court noted that cases from other jurisdictions supported their decision that there was sufficient evidence. The Georgia case, Walker v. State, contained similar facts. The court in Walker ruled that the role of interpreting the evidence belonged to the jury and the jury’s decision would be reversed only if it was unsupportable as a matter of law. In the instant case, there was no question that the evidence was sufficient to support the jury’s conclusion that the homicide was committed purposely and with malice.
Prosecutorial References to Defendant’s Refusal to Submit Sample for DNA Testing: The prosecutor referred to Smith’s refusal to submit a DNA sample in his opening and closing and also elicited testimony about Smith’s refusal from the lead investigator. The United States Supreme Court has expressly ruled that the Fifth Amendment right against self-incrimination only extends to testimonial or communicative evidence. In Schmerber v. California, the Supreme Court explained that blood evidence obtained from a suspect’s body is not testimonial or communicative evidence and does not fit within the Fifth Amendment privilege. In South Dakota v. Neville the Supreme Court recognized that protecting the defendant from being compelled to testify against himself is the lynchpin of the Fifth Amendment protection. Smith was asked to voluntarily give a DNA sample, when he refused, the State obtained a warrant. The sample and the associated test results were not testimonial or communicative evidence. The State did not coerce him and the evidence of his refusal did not fall within the Fifth Amendment protection. The prosecutor did not violate Smith’s privilege against self-incrimination or commit prosecutorial misconduct.
Alternative Suspect Evidence: The district court conducted a pre-trial hearing pursuant to W.R.T. 104 and concluded that some of the evidence was inadmissible under W.R.E. 403, some was inadmissible hearsay and that some was not admissible under Rule 403 because its probative value was very small while the possibility of confusion of the issues and misleading the jury was high. In Bush, the Court recognized that the district court should apply Wyoming’s standard rules of evidence in determining whether alternative suspect evidence is “legal” and therefore, admissible. The Court stated that the proffered evidence must demonstrate a direct nexus between the alternative suspect and the crime charged.
The district court did not apply a more stringent or different standard to Smith than it did to the State for admission of its evidence. It applied Wyoming’s typical rules of evidence in ruling that Smith’s proposed alternative suspect evidence was not admissible.
Habitual Criminal: Smith claimed that the application of the habitual criminal statute in his case was unconstitutional because the jury was allowed to consider crimes he committed after the instant offense. The jury determined that Smith was a habitual criminal and because he had been convicted of three other felonies, he was sentenced to serve life in prison. Two of the crimes considered by the jury in the habitual criminal phase of the trial occurred after the murder in 1986. The instant case is not a classic ex post facto case because the statute was adopted in 1983 and the crime occurred in 1986. The Court noted that in Green v. State, that the statute does not require that a crime be previously committed, only that there is a previous conviction. Under the language of the statute the district court properly allowed consideration of Smith’s prior convictions, despite the fact that two of these offenses were committed after he committed the murder. The habitual criminal statute does not create a separate offense but is a sentence enhancement for the offense at issue. The statute does not retroactively increase the punishment for conduct committed before its passage nor does it retroactively increase the punishment for prior convictions.
Change of Venue: The Court has developed a two-part test to determine whether a change of venue should be granted on the basis of pre-trial publicity. First the Court considers the nature and extent of the publicity and secondly, the Court analyzes the difficulty or ease encountered by the district court in selecting a jury. The defendant usually has the responsibility of proving actual prejudice on order to obtain a change of venue. There was apparently only one article but it contained information which could have potentially tainted the jury pool. The district court dismissed those members of the jury who stated that they were aware of the prior conviction. The jury was seated without any significant problems and the record did not demonstrate that the jury panel was actually prejudiced by the pretrial publicity.

Conclusion: There was sufficient evidence for the jury to find Smith guilty of second degree murder. The evidence that he was the perpetrator of the crime and committed it purposely and with malice was adequate under Wyoming law. The prosecutor did not violate Smith’s Fifth Amendment right to remain silent by eliciting testimony and commenting on his refusal to voluntarily provide a sample for DNA testing. The Fifth Amendment protection does not apply to non-testimonial evidence such as the DNA sample and Smith was not coerced into refusing to give the sample.
The district court properly applied Wyoming’s rules of evidence to exclude Smith’s alternative suspect evidence. The evidence that Mr. Myers potentially killed Ms. Dively was more prejudicial than probative under W.R.E.403. Smith’s proposed evidence that Mr. Wentz was the killer was properly excluded as hearsay and under Rule 403.
The application of Wyoming’s habitual criminal statute to enhance Smith’s sentence by using two convictions which occurred after he committed the crime in this case did not violate his constitutional protections against ex post facto laws. The district court did not abuse its discretion by denying Smith’s motion for a change of venue. He was unable to demonstrate the jury panel was prejudiced against him to justify a change of venue.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/8vrj4f .

[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 2009 WY 1

Summary of Decision issued January 13, 2009

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

Case Name: Wilson v. Wyoming

Citation: 2009 WY 1

Docket Number: S-08-0020

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

Representing Appellant Wilson: Tina N. Kerin, Appellate Counsel, Wyoming Public Defender; John D. King, Acting Faculty Director, Diane E. Courselle, Faculty Director, and Andy F. Sears, Student Intern, University of Wyoming Defender Aid Program.

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

Facts/Discussion: Wilson contended that the district court erred when it found that a police officer’s use of a patrol car computer to search for outstanding warrants did not constitute search and seizure. He also argued that the district court erred when it declined to find a search of Appellant’s person unconstitutional because the evidence did not support a finding that police used excessive force during the encounter.

Seizure: Initial Contact: Appellant claimed he was seized for purposes of the Fourth Amendment when the officer stopped him on the street and asked for his name. Under both the federal and Wyoming state constitutions, a person has been seized only if in view of all circumstances surrounding the incident a reasonable person would have believed that he was not free to leave. The Court has stated previously that a request for identification is not by itself a seizure. In Wilson v. State (1994), the Court found that a consensual encounter with police remained consensual when a police officer requested identification and ran a computerized warrant check using that information. The seizure occurred only after the citizen complied with the officer’s order not to leave while the check was being completed.
Search: Warrant Check: In Meek the Court stated that requesting an NCIC check was not sufficient to implicate constitutional rights. The situation in the instant case is similar. The search was complete within seconds while Appellant was in a consensual conversation with the officer. Appellant was in no way detained or restricted.
Suppression: Excessive Use of Force: The Court’s review of the record indicated that the district court had almost no evidence before it that would have allowed it to conclude that the force used by officers was excessive under the circumstances.

Conclusion: The district court did not err when it determined that Appellant’s initial contact with police was consensual and that running Appellant’s name through a warrant check computer did not constitute a search for constitutional purposes. The district court did not err in declining to find a search unconstitutional where the evidence presented did not support a conclusion that officers used excessive force in the conduct of that search.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/a8n4wr .

[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.]

Law Library Re-opening

Hello All –

The Wyoming State Law Library, now relocated to the newly renovated Supreme Court building, will re-open to the public on January 12, 2009. We have available the same items that were held in our temporary location in the Hathaway building. In the near future we will be integrating the (very large) remainder of our collection that’s currently in storage.

We look forward to welcoming you to our new space complete with fancy movable stacks of books!

See you soon, Meg